text:
    Erasmus D. Garnsey, App’lt, v. Joseph E. Rhodes, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1892.)

    1. Contract—Evidence.
    In an action upon a building- contract, evidence of conversations between the owner of the building and the architect, who in no manner represented the plaintiff, in relation to defects during the progress of the work: and in plaintiff's absence is inadmissible.
    2. Same—Construction—Extra work.
    The contract provided that the owner at any time should be at liberty to-require any alteration, addition or omission from the contract, and the same should not affect the contract, but would be added to or deducted, from the amount of the contract, as the case might be, by a fair and reasonable valuation. Held, that this did not bring a claim for extra work under the contract itself, and that unless the work on the contract was done ini such a negligent manner as to render the extra work valueless, the builder could recover the full value of the extra work although he may not have-completed his contract in accordance with its requirements.
    Appeal from judgment entered on report of referee.
    A! S. Church, for app’lt; J. A. Burr, for resp’t.
   Van Brunt, P. J.

This action was brought to recover a balance alleged to be due upon a contract for the erection óf a house-by the plaintiff for the defendant, and also for an amount alleged:, to be due for extra work.

It will not be necessary in the disposition of this case to consider the evidence in detail, because in consequence of errors in the admission of evidence it is necessary that- there should be a. new trial of the issues involved, and the court should not express, its opinion in the disposition of this appeal noon the question as to the weight of evidence so as to fetter or influence the new tribunal in considering the evidence which may be brought before it upon the new trial.

It seems to be clear that the introduction of the evidence of -conversations between the defendant and his architects, who were his agents-in respect to this transaction and in no manner represented the plaintiff, in-the absence of the plaintiff, after this contract had been entered into and during the progress of the work, were entirely inadmissible.

• These conversations were in respect to defects which the defendant is alleged to have found in the work which was being done, and agreements upon the part of the architects that the complaints were well founded and that the defect's should be remedied, and also a statement by the architects as to conversations which they had had with the plaintiff, and - the position which he is alleged to have taken in respect to some of the complaints.

■ Evidence of this character was clearly incompetent, as the plaintiff was in no respect responsible for the declarations of the architects, nor was he in any way responsible for any information which may have been conveyed to the architects by the defendant. This testimony was material. What influence it may have exerted upon the mind of the referee it is impossible for us to tell. It may have had influence in determining the referee in the conelusion at which he had arrived in respect to the merits of the controversy.

It may also be proper to consider the question of the claim for -extra work made by the plaintiff.

It is urged on behalf of the defendant that if there could be no recovery upon the main contract because of important deviations from that contract made intentionally by the plaintiff, there could be no recovery for extra work, because by the terms of the -contract extra work came within its provisions.

The clause of the contract relating to extra work is as follows r That should the owner at any time during the progress of the building request any alteration, deviation, addition or omission from the contract, he shall be at liberty to do so, and the same ¡shall in no wise affect or make void the contract, but will be .added to or deducted from the amount of the contract, as the -case may be, by a fair and reasonable valuation.

It seems to us'that the true interpretation of this clause does not by any means bring the claim for extra work under the contract itself. By the language of the clause in question, it is expressly provided that the addition or omission shall in no wise ■affect the contract or make void the contract, but that the value of such addition or omission is to be added to or deducted from the amount of the contract. It is apparent that the only office which this provision serves in the contract is to guard'againstany -claim that it should affect or nullify the contract or any of its provisions.^* The question in regard to payment or deduction for work -ordered which is not mentioned in the contract, or work omitted which has been mentioned in the contract, refers only to the regulation of the amount to be paid or to be deducted. Payment for such extra work is to be made at a fair and reasonable valuation, and in case of the omission of work ordered to be done by the contract a reasonable deduction is to be made. What this part of. the provision was intended to cover is somewhat problematical, as-no case has ever come before the court upon a building contract in; which there had been an omission for which the owner was claiming a deduction. There is undoubtedly some relation between: the extra work and the work contemplated by the contract, because if the work upon the contract should be done in so poor and negligent a manner as to render the extra work valueless, then, although it was not included in the contract, the builder could not recover. But unless some such condition of affairs as has been suggested is shown to exist, the builder is entitled to recover the full value of his extra work, although, perhaps, he may not have completed his contract in accordance with its requirements. Woodward v. Fuller, 80 N.Y., 312.

It seems to us, therefore, that there should be a new trial of this case, in consequence of the errors committed, before another referee, with costs to the appellant to abide the final event.

O’Brien and Patterson, JJ., concur.


source: Caselaw Access Project

author: Patterson, J. O’Brien, J.

license: Public Domain

text:
    Winthrop S. Gilman et al., Pl’ffs, v. The First National Bank of New York, Def't.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1892.)

    Bills and notes—Payment—Mistake.
    Plaintiffs, who were bankers, notified the payee of a foreign draft-drawn on them that the drawer had not sufficient funds with them to meet it, and were requested to apply upon it what funds of the drawer they had. On the following day the draft was presented with others by-defendant, and plaintiffs’ cashier paid it in full, and claims that at that time he did not know what balance there was on hand to pay it. Held, in the absence of other testimony, that no case of mistake was made out such as would entitle plaintiffs to recover back the excess so paid,, especially as by reason of such payment a protest of the paper was-prevented.
    (O’Bbien, J., dissents.)
    Exceptions by plaintiffs ordered heard at general term on dismissal of complaint

      H. B. Glosson, for pl’ffs; Fisher A. Baker, for deft
   Patterson, J.

This is an appeal from a judgment entered on¡ the dismissal of the complaint at circuit The action was brought, to recover back a sum of money which the plaintiffs claim was-paid by mistake on a draft or bill of exchange presented to them by the defendant and paid on the 10th day of February, 1891. There is no dispute as to the facts, which are, in brief, that a Mrs. Cockran, living at Cadiz, in Ohio, deposited for collection with a. bank located and doing business at that place a bond of a Kansas-township. That bond was sent by the Ohio bank to a Kansas-bank which collected its amount on the 23d January, 1891. The-plaintiffs were the New York correspondents of the Kansas bank, and on the day last named that bank by its cashier drew a sight draft on the plantiffs, which was after some delay received by the ‘Cadiz bank and was forwarded by that bhnk to the defendant for •collection.

Meantime, and on the 6th of February, the Cadiz Bank:notified dhe plaintiffs of the existence of the draft, and requested them to hold moneys of the Kansas Bank sufficient to meet it On the '9th February the plaintiffs telegraphed :the Cadiz Bank that ¡the •drawér had not sufficient funds to meet, the draft On-the same ■day the Cadiz Bank in reply to the telegram last referred to. requested by telegraph • the plaintiffs to apply to the draft what funds they had of the Kansas Bank. There is nothing in the •caseto show the exact state of the account, between .the drawing bank and the plaintiffs, but there were several transactions had between them intermediate the 23d January and the 10th February. ' On the last named day, and as appears from the letter and telegrams above referred to, the plaintiffs, with full knowledge of the fact that there was not enough money in their hands to the -credit of the account to which the draft was to be charged, paid it in full to the defendant. The next day the plaintiffs made reclamation, not of the whole amount paid, but only of the amount of the deficiency in the account of the Kansas Bank. There is nothing in the testimony to establish mistake of the plaintiffs. ’The only witness who testified on that subject is Burnham, the plaintiffs’ cashier, and he says he did not know what the balance •on hand was to pay the draft until after the payment was actually made. His principals did, however. In the absence of any ■other testimony, it is quite clear this draft was paid in the usual ■course of business, and notwithstanding the plaintiffs knew it was mot good in full on the day preceding its payment. We do not -think a case of mistake was made out such as would entitle the plaintiff to recover, and more especially as it is clear that by rea- ■ vson of the payment a protest of the paper was prevented. It was a foreign bill. Commercial Bank v. Varnum, 49 N. Y., 275. 'The act of .payment of course prevented the protest, and before an .action could be maintained against the drawer on the draft protest was necessary. 2 Dan. on Negot Ina, § 926.

. We think the complaint was properly dismissed, and that the judgment should be affirmed, with costs.

Van Brunt, P. J., concurs.

O’Brien, J.

(dissenting).—The action was to recover money paid by mistake by the plaintiffs to the defendant upon a draft presented to them for payment.

Although the amount involved is not large, the principle is "important as determining the rights and duties of drawers, endorsers and" drawees upon a foreign bill of exchange, and as the facts are not disputed and may be briefly stated, it will serve the purposes- of clearness to set them forth.

■ In January, 1891, a Mrs. Cockran, of Cadiz, Ohio, had deposited with thé First National Bank of Cadiz, for collection, a bond of dhe township of Augusta, Kansas. ■ That-bank-sent the bond for •collection to its correspondent, the -Farmers’ State Bank of Am gusto. The Farmers’ Bank collected the amount, and on January .23 its cashier drew a sight draft on the plaintiffs, its Rew York correspondent, in favor of the Cadiz bank, for $638.60.

It did not appear whether or not the balance of the Augusta bank with the plaintiffs was then good for this amount or not. There were subsequent drafts upon them presented, however, before this, which reduced the balance; but, on the other hand, deposits may have been made in the meantime.

This draft the cashier of the Augusta bank forgot to mail to the Cadiz bank, being just then about to abscond. He did ab.scond and his bank failed. Hearing of this the Cadiz bank telegraphed to Augusta for news of the bond, with the result that the draft in question was found and mailed to the Cadiz bank, as it was advised by wire. ■ Thereupon, on February 6th, before re■ceiving the draft itself, the Cadiz bank wrote to the plaintiffs asking them to hold an amount to cover the draft, but before re■ceiving the reply they paid the amount of the draft to their customer. When received they mailed the draft to their New York ■correspondent, the defendant. The plaintiffs, after the payment to the depositor by the Cadiz bank, replied that the account of the Farmers’ Bank was not good for the amount of the draft. Thereupon the Cadiz bank telegraphed the plaintiffs to apply any amount in their hands on the draft, and to the defendant to .accept partial payment thereof.

This draft, however, having been presented with some thirty ■ others by the defendant to the plaintiffs and the plaintiffs’ cashier having overlooked the fact that there was not sufficient funds in hand for the purpose, paid the draft in full. On the next day "the mistake was discovered and a demand was made upon the ■defendant for the return of the amount of the overdraft, which was refused.

There can be no question upon the evidence but that the payment of the draft was not a voluntary payment, but was made by the plaintiff under a mistake.

Unless, therefore, there is some other ground or principle that would prevent a recovery the plaintiffs were entitled as against the defendant, who was the mere agent of the Cadiz Bank, and against the Cadiz Bank itself to recover the money thus paid by mistake.

The ground upon which the complaint was dismissed was that the plaintiffs sue upon the bill of exchange, which they failed to protest, on the day when the demand was made, and that by reason of that failure to protest the defendant has lost its claim .against the drawer. We shall confine our attention to a determination as to whether this ruling was correct; for though some ■question is made as to the strength of the plaintiffs’ case upon the theory of the payment of the money by mistake, had this latter ground been relied upon, it might under permission to be •obtained from the court have been strengthened by other testimony. In other words, we think that this nonsuit must be sustained, if at all, upon the ground upon which it was asked and granted, unless there was some other ground upon which it would have been impossible for the plaintiffs, if their attention had been ■called to it, to obviate it by further proof.

We have been referred to no such other ground, and as stated it remains but to consider whether the ground relied upon, .for the nonsuit, viz.: the failure to protest the bill on the day the demand was made, will prevent a recovery.

As the plaintiffs were the drawees of the bill of exchange, .there was not, under the law governing commercial paper, any obligation upon them to protest the paper at all, and their failure to protest is therefore no bar to their recovery.

It may, however, be insisted, inasmuch as the defendant for the purpose of charging the drawer would undoubtedly have been required to protest the paper, that the payment of the money and the situation in which the defendánt was thus placed by the possession which the plaintiffs had of the draft, prevented it from, discharging its duty to protest the draft. This presents the question upon which we think the rights of the parties depend. And at the outset we do not agree with the claim of appellants that the fact that there were not funds sufficient in their hands to pay the draft in full, would have relieved the defendant from the obligation of protesting it in order to hold the drawer.

It is only in cases where there are to the knowledge of the drawer no funds, or where subsequent to the drawing of the draft the funds are taken out, or it is clear that the drawer has no-reasonable expectation that the draft will be accepted, that presentation and protest may be necessary. The reason for this is, that the act of the drawer is a fraud.

The rule is stated in Chitty on Bills, 444, as follows: “ If at, any time between the drawing of the bill and its presentment and dishonor, the drawee has some effects of the. drawer in his hands, though insufficient to pay the demand, he will, nevertheless, in general be entitled to notice of the dishonor, and the loches of the holder will discharge him from liability.”

Assuming, however, that the obligation rested upon the defendant of protesting the draft, it remains, to be determined whether the mistake prevented the defendant from discharging this duty, which if it did, by relieving the drawer, would prevent the plaintiffs from recovering the overdraft from the.* defendant.

We shall consider, therefore, the motion for a nonsuit as though made upon the ground that the plaintiffs by their delay in discovering the mistake had made it impossible for the defendant, to protest the draft, and that the defendant would, therefore., become answerable in damages to the Cadiz Bank if it had: returned the money.

The answer to this claim is that the situation was in no wavchanged by the failure of the plaintiffs to discover their mistake-until the morning of the day following the presentment, of the draft If the defendant had then acceded to the demands of the plaintiffs, and returned the payment as made by mistake, it could have protested the draft, and notified the drawer equally as well as on the day before.

We assume that the principle will not be disputed that the-protest of a bill can always be made on the business day next, succeeding that of presentment. Smith v. Poillon, 87 N. Y., 590; Farmers Bank v. Vail, 21 id., 485; 42 id., 538. Under the ■authority of these. cases, as the draft was only received by the defendant on the 10th, it could on returning on the 11th the payment made by’ mistake on the 10th, again have presented the draft for payment, and on its being refused immediately protested it, and given notice to the drawer, and it would thereby have been duly charged.

Where, as here, therefore, the mistake was discovered in time to enable the defendant to correct the same and discharge its duty to its principal by protesting the draft as against the drawer, it should not be allowed to take advantage of the fact that the draft by being paid was in the possession of the plaintiffs, because such possession could have been recovered by the repayment of the money when demand was made therefor.

In our view upon the facts, the discharge of the drawer from liability because of the non protest of the bill is not chargeable to the plaintiffs, but is directly the result of what must be considered the indefensible position assumed by the defendant’s principal, the Cadiz Bank, which with full knowledge of all the .facts that there was not money sufficient to pay the same had instructed the defendant to receive partial payment, and when through a mistake it had obtained possession of the whole amount, insisted on retaining the same illegally and unjustly as against the plaintiffs.

This circumstance alone, that the Cadiz Bank had requested the plaintiffs to make and the defendant to accept partial payment, would absolve the defendant from the obligation of protesting. Such a request was inconsistent with the right to require protest of the draft and must be considered as an express waiver of it. ’The Cadiz Bank knew that in the regular course of business the -draft would be protested, and notwithstanding this they telegraphed to the plaintiffs and defendant to make and accept partial payment; after which it would, of course, be impossible to protest the draft for the reason that the mercantile law knows no such thing as protest after partial payment of commercial paper, or the protest of partially paid negotiable paper.

The defendant owed a duty simply to the Cadiz Bank and to no one else, and the Cadiz Bank had the right to instruct the defendant as its agent to pursue a course which while it might release the drawer, who at the time was known to have failed, would at the same time secure the partial payment of the draft.

Under these circumstances, it would be impossible, it seems to ais, for the Cadiz Bank to maintain an action for damages against the defendant if it had returned the money which it had received ¡by mistake.

Our conclusion, therefore, is that the ground, upon which the non-suit was placed, viz.: the failure of the defendant to protest the draft, there being no sucli duty upon the plaintiffs as drawees, is untenable; and that upon the other theory upon which it is sought to justify the non-suit, viz.: that the release of the drawer was due to the mistake of the plaintiffs, thus barring a recovery, is not supported by the facts in the case or by the authorities bearing upon the subject.

We think, therefore, that the exceptions should be sustained and a new trial ordered, with costs to the plaintiffs to abide the event.

Judgment affirmed, with costs.


author: Per Curiam.

text:
    The Key West Building & Loan Association, Resp’t, v. The Bank of Key West, App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1892.)

    Attachment—Persons acquiring title prior to levy.
    A receiver or other person who has acquired title to property prior to-the levy of an attachment thereon has no standing in court to vacate the. attachment simply because under the attachment against another party his property has been seized. Section ,682 of the Code only permits such intervention in the case of a person who acquires title from the defendant subsequent to the levy.
    Appeal from order denying motion to vacate attachment.

      M. II. Cardozo, for app’lt; L. L. Kellogg, for resp’t.
   Per Curiam.

Without at all passing upon the question as to» the validity of the attachment in the case at bar, in the disposition of this appeal it is sufficient to say that the title of the receiver to. the property taken under this attachment against the-bank having been acquired, if at all, prior to the issuing of the-attachment, he has no standing in court to vacate the attachment simply because under an attachment against the defendant they seized upon his property.

If the- title to the property had been acquired by the receiver subsequent to the attachment, then by § 682, of the Code he-would have had a right to intervene; but such not being the-fact, no such right exists, the right of strangers to intervene being by the section of the Code limited to cases where interest in the property attached has been acquired' from the defendant subsequent to its levy. No attachment against the defendant’s property can affect in any way the right of the moving party here to» obtain possession of any property the title to which-had vested in him prior to the levy of the attachment.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Yan Brunt, P. J., O’Brien and Ingraham, JJ., concur.


text:
    George W. Allen, Assignee, App’lt, v. The Bank of Key West, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1892.)

    Appeal from order of the special term vacating attachment..

      L. L. Kellogg, for app’lt; M. II. Cardozo, for resp’t.
   Per Curiam.

For the reasons stated in the case of the Key-West Building & Loan Association against „fche Bank of Key West, decided herewith, we think that the order vacating the attachment should not have been granted.

The order should, therefore, be reversed, with ten dollars ■costs and disbursements, and the motion denied, with ten dollars ■costs.

Van Brunt, P. J., O’Brien and Ingraham, JJ., concur.


text:
    John Slater, Resp’t, v. The Manhattan Railway Co. et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed March 31, 1892.)

    1. Railroad—Elevated—Findings—Proximity of station.
    Where the plaintiff’s premises are situated two blocks from defendant’s station, a refusal of the referee to find that the presence of the station brings large numbers of persons into the immediate neighborhood, and its effect was advantageous to the business portion of the premises and a special benefit to the same for business uses, is not error of law calling for reversal, unless the evidence of that fact is clearly established by the evidence.
    2. Same.
    Where the referee has refused to find special benefits, it is proper for him to refuse to find that any special benefits should be set off againsl the damages.
    Appeal from judgment entered on report of referee.

      J. S. Wood, for app’lts ; G. A. B. Pratt, Jr., for resp’t.
   Per Curiam.

The only question in this case not settled by ■ prior adjudications of this court relates to the refusal of the referee to find, as requested by the defendants, that the presence of the station brings a large number of persons daily into Sixth avenue in the immediate neighborhood of the premises in suit and increases the traffic in and upon said avenue at this point, and that the effect of the proximity of defendants’ said station to the premises in suit is advantageous to the business portion of said premises, and produces a special benefit to the same for business uses. The station of the defendants’ railroad was situated at the comer ■of Fiftieth street and Sixth avenue, and the premises described in the complaint were at the corner of Fifty-second street and Sixth avenue, and Forty-eighth street and Sixth avenue, and not therefore in immediate proximity to the station. The evidence in the ■case would not justify us in saying that the fact was so clearly ■established as to make the refusal to find an error of law requiring us to reverse the judgment

And the refusal of the referee to find as a conclusion of law that, in estimating and fixing the sum which the defendant might ;pay to escape the injunction, the special benefit resulting from the proximity of the defendants’ station to the premises in suit should be offset against any consequential damage resulting to such lots and buildings respectively from the appropriation of or interference with the easements in Sixth avenue appurtenant thereto by the maintenance and operation of defendants’ railroad in front thereof, was not error, because it did not appear either from the evidence or from the findings of the referee that there were any such special benefits resulting from the defendants’ railroad to the-: premises in suit or either of them. The referee was not bound to pass upon abstract questions- of law which had no-relation to-the facts as proven before him and found by him. And in this connection- it should be -remembered that having refused to -find as a matter of fact that advantages accrued to the premises because-of the proximity of the station, it was entirely proper, that he should refuse to find what was, under such conditions of fact, simply an immaterial rule of law.

Ho other questions not heretofore settled by repeated adjudications of this court are presented, and further consideration there-, fore is not necessary.

The judgment should be affirmed, with costs.

Van Brunt, P. J., O’Brien and Ingraham, JJ., concur.


author: Merwin, J.

text:
    James Dougherty, Resp’t., v. The Rome, Watertown & Ogdensburg Railroad Co., App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed May 13, 1892.)

    1. Master and servant—Railroad—Save equipment.
    Plaintiff was a section foreman in defendant’s employ, and was injured! by being struck by a piece of timber projecting from a passing train after he had stepped about eight feet away to allow -it to pass. It appeared that, the car on which the timber was loaded was furnished with four drop-stakes on each side, to which false stakes were attached to hold the load; that one of the false stakes And the drop stake to which it was fastened, were broken, allowing the timber to project, and that the load was of the ordinary size. Meld, that it was the duty of the company to furnish cars; suitably equipped for the purpose of carrying such a load, and that as it- - was necessary for the safe carriage of such a load to have stakes as long-as the drop and false stakes combined it was proper to treat them together as the stake provided by defendant, and that its failure to furnish a safer equipment rendered it liable for the injury.
    2. Same—Damages.
    Plaintiff was thirty-two years old; was confined to bed eight weeks, suffered much pain and his leg was permanently shortened and his nervous-system affected. Meld, that a verdict for $4,750 was not excessive.
    Appeal from a judgment entered in Oswego county, on the-24th January, 1891, upon a verdict rendered at Oswego circuit in ■ favor of plaintiff for $4,750; also from an order denying a motion on the minutes for a new trial.
    The action is brought to recover damages for personal injuries-sustained by the plaintiff by reason, as he claims, of the negligence-of the defendant. On the 16th February, 1888, the-plaintiff was in the employ of defendant as section foreman, upon a portion off defendant’s track a few miles westerly of the city of Oswego, and was engaged in leveling up the track at a place called, McFadden’s-Cut While he was so engaged, a freight train of defendant came-from the east, and as it came up to where plaintiff was at work, he stepped to the north or right hand side of the track six or eight feet, but was hit by a piece of timber that projected from one of the cars in the train, and his thigh bone upon the left side was-1 fractured. The car from which the timber projected belonged to the defendant and was loaded with spruce lumber and timber. It was a flat car, having on each side four side arms orstakes that turned up. These were bolted to the side of the car and turned ■on the bolts so that when not in use they could be turned down. The loading of the car was spruce pulp lumber so called, and it was loaded by the shippers at Richland.. The height of the loading from the floor of the car was, according to evidence on the part of the plaintiff, about eight feet, while according to evidence on the part of the defendant, it was five to six feet. The side arms or drop stakes •of the car were lengthened by nailing on pieces of spruce board, ■reaching to the top of the load. These were called false stakes. 'Then across the top of the load the stakes opposite each other were connected by strips .of spruce board called stay laths, which were nailed to the false stakes. After the injury it was discov•ered that the false stake1 upon the rear end of the car upon the side next to the plaintiff was pulled from its fastening upon the drop stake and was broken, and that the drop stake was also broken. There was evidence tending to show that this false stake was improperly nailed upon the outside of the drop stake.
    It is alleged in the complaint that the defendant “ did not provide the car with sound, proper or safe stakes; ” that it allowed the lumber to be secured “ only by weak, insufficient and unsafe stakes and binders; ’’ that, knowing its condition, it “ carelessly and negligently run said car; ” that “ by reason of said weak, insufficient and unsafe stakes and binders, said lumber and timber broke loose and one large timber projected out a long distance from the side of the car," producing the injury complained of.
    At the close of the evidence on the part of plaintiff, as well as at the close of the case, the defendant moved for a nonsuit upon the grounds (1) that there has been no cause of action proven here against this defendant in behalf of this plaintiff, in that there was anything lacking in the duty which devolved upon the masters towards the servant or employee in this case; and (2) that plaintiff, with full knowledge of the risks involved in his employment, was injured by the acts of negligence of a co-employee, and one in the -same common line of employment as himself.
    This motion was denied and defendant excepted.
    The court, in giving the case to the jury, left it to them to say whether the defendant was guilty of negligence in not furnishing "the proper equipment for the carrying of the lumber, and charged at the request of defendant that it was required to furnish only a reasonably safe equipment.
    The defendant’s counsel asked the court to charge that the defendant was not responsible for any ■ damage occasioned by the breaking of the folding or drop stake, and to this the court replied: “Ho, they are not liable for that, unless its breaking was •occasioned by the breaking of the stake above. * * * Unless you are satisfied that the breaking of the drop stake was occa-sioned by the breaking of the other stake, then the defendant is •not liable.” Defendant’s counsel excepted to the modification.
    The defendant’s counsel asked the court to charge “ that if 'this damage and injury occurred from the negligence of their station agent at Richland, in not having properly inspected, any omission of duty on his part, an omission of duty on the part of the conductor to inspect .trains at the stations where he stopped, then it is the negligence of a co-employee, and the railroad company is not liable.’’ To this the court replied: “If the jury should find that that was the sole cause, then they will find a verdict for the defendant. If they find that, there were-these other causes operating, that is, insufficient equipment, that, does not relieve the road from liability.’’
    The defendant excepted.
    It was shown that defendant had a rule that “Agents must not-allow dangerously loaded cars to be taken from their station; ” also, that “ When cars are loaded by owners, agents must see that, the freight is sufficiently secure to be hauled without moving or falling; they must also not permit cars dangerously overloaded-to leave their station until the excessive weight is removed;”' also, a rule as to conductors that “ They will be held personally responsible for examining cars in their trains at every convenient point, especially at water stations, and, with thé help of their men,, must know that all cars are in safe condition and no wheels or brakes broken.”

      jEdmund B. Wynn, for app’lt; D. P. Morehouse, for resp’t.
   Merwin, J.

There was evidence in this case from which the-jury had a right to find that the injury happened by reason of the defective character of the false stake, so-called, and the imperfect manner in which it was attached to the drop stake. Had they a right to say, as they did in effect by their verdict, that, these defects in regard to the false stake were chargeable to the-defendant ? Was the false stake a part of the equipment of the-car which the defendant was obliged to furnish under its liability to furnish a reasonably safe equipment for the use of its employees ?

The counsel for the defendant claims that this case cannot be-distinguished from the case of Byrnes v. N. Y., L. R. & W. R. R. Co., 113 N. Y., 251; 22 St. Rep., 936, and that under the authority of that case the judgment here must be reversed. On the other-hand, the counsel for plaintiff claims that the case of Bushby v. N. Y., L. E. & W. R. R. Co., 107 N. Y., 374; 12 St. Rep., 9, fully sustains the theory upon which this case was given to the jury.

In the Byrnes case, the plaintiff’s intestate was in the defendant’s employ as a brakeman upon a freight train and was assisting in taking into the train a car loaded with lumber at. a way station. While this was being moved to the main track, he got. upon it to stop it, but in consequence of the improper manner in which the car was loaded the brake was rendered useless, a collision occurred and he was injured. The car before it was loaded was in perfect condition, with a brake in good order and entirely adequate for the purpose for which it was intended. By the negligence of the person who loaded the car, the lumber was placed against the brake rod and also against the wheel at the top of the-brake, so that thereby it became impossible to use it. The defendant by its rules made it the duty of the station master to either inspect the car himself or have some one do so before it was taken out and, had this been done, the improper loading would have-been discovered. It was held that the defendant was not liable, and that the question was not affected by the fact that the car was loaded by the owner of the lumber. The court in the opinion says: “ It cannot, we think, be properly contended that the master fails to provide a car which is a safe and proper one, or that he fails to provide one with proper appliances, because through, the negligent manner in which the car is loaded the appliance is, on that account only, made useless for the purpose for which it'was intended.”

In the Bushhy case the plaintiff was in the employ of the defendant as a brakeman upon a freight train that had in it a car loaded with lumber, and was injured by reason of the breaking of a defective stake of the lumber car. The car as furnished by defendant to the shipper had iron sockets for stakes or standards which were necessary in order to load the car. No stakes were furnished by defendant, as it was the practice of the defendant to furnish lumber cars without stakes, which were supplied by the shippers. The shipper put a stake in each of the sockets and loaded the car with lumber under the direction of defendant’s station agent. The defendant claimed among other things that “ the stakes were not appliances or machinery within the rule which requires a master to furnish, with reasonable care, proper and adequate machinery or other appliances for the proposed work,” but on the contrary “ were appliances furnished and employed by the shipper in loading the car with lumber to be transported by the defendant.” It was however held that the stakes were a part of the car and that defendant was chargeable with negligence if it failed to exercise proper care that suitable and proper ones were furnished, and that defendant’s practice or custom was no defense, as it only showed that it delegated to shippers a duty it should have performed itself.

In the opinion it is said : “ This rule should apply to any appliance which is made part of the structure, and it can make no difference that it may be for an occasion rather than constant use. The question relates to the condition of the car- when placed in the hands of the servant, and its delivery to him raises for his benefit the implication that the employer has used suitable care and foresight in adopting it as an instrument or means to carry on its. business. Upon this he might rely as an assurance not only that the body of the car and its running gear were safe, but that the needed requirement for the reception of the load placed upon it was also fit for the purpose. The platform and the stakes constituted the bottom and the sides of the car, and one was as much a part of it as the other.” In the same case at general term, 37 Hun, 105, it is said by Smith, P. J.: “ The stakes were used to keep the lumber in place upon the car, and were a part of the apparatus and appliances necessary for the transportation of lumber. The transportation of lumber was not an exceptional and unprecedented thing upon defendant’s road; it was done frequently, and as often as occasion required; the defendant had provided cars for the purpose furnished with pockets for the reception of stakes, and stakes were used whenever they were needed to keep the lumber in place. They or some other apparatus to keep the lumber in position were necessary to the prosecution of that branch of the defendant’s business.”

In the present case it is not claimed that the drop stake as such was defective, and the defendant claims it was not bound to furnish any other, and that whatever was done to lengthen this drop stake is to be deemed part of the operation of loading of the car, and, therefore, within the principle of the Byrnes case. There is •evidence tending to show that the load upon this car was an ordinary sized load for a lumber car, and that it was a part of the business of the defendant to transport this kind of lumber in this way. There was no evidence that it was loaded any higher than was usual for such lumber, and not in the ordinary way. It is quite apparent that for the safe carriage of such a load it was necessary to have stakes as long as the drop and false stakes combined. It is, therefore, difficult to see how the liability to furnish suitable stakes did not cover the whole. The case would, therefore, seem to call for the application of the rule of the Bushby •case, and make it proper to treat the drop and false stakes together as the stake provided by the defendant That being; so, it would follow that the case on that subject was properly submitted to the jury.

The case of Ford v. Lake Shore & M. S. R. R. Co., 117 N. Y., 638; 27 St. Rep., 246, does not apply, as there the defendant had furnished suitable stakes but the co-employees of the plaintiff’s intestate had neglected to use them.

It does not appear that the station agent of defendant at Rich-land had anything to do with the loading of the car in question. He had by the rules of the company some duties in regal'd to the loading of freight cars. He testifies that he had nothing to do with the equipment of cars; that he saw that they were properly loaded. If the agent failed to perform his duty and thereby contributed to the injury, that would not relieve the defendant from the result of the failure upon its own part to discharge its corporate duty. Fuller v. Jewett, 80 N. Y., 46. The court upon this subject charged as favorably to defendant as it had a right to expect

No question is made about contributory negligence. Upon the motion for nonsuit, a point was taken as to a release executed by the plaintiff but this is not urged here.

It is further claimed by the defendant that the damages are excessive. The plaintiff received a severe injury, was confined to his bed about eight weeks, much pain and suffering were consequent upon the injury and the necessary method of treatmenu His leg was permanently shortened and there is evidence tending to show that his nervous system is permanently affected. He was at the time of the injury about thirty-two years old and his ability to labor materially impaired. We find no sufficient reason to disturb the verdict upon this ground. •

It follows that the judgment should be affirmed.

Judgment and order affirmed, with costs.

Hardin, P. J., and Martin, J., concur.


text:
    Augustus E. Dickinson, App’lt, v. Edmund E. Price, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed May 13, 1892.)

    Bab—Summary proceedings—Breach oe contract.
    In summary proceedings to remove a tenant for non-payment of rent the answer of the tenant denied that any rent was due and set up a breach of contract of hiring by which the landlord was to take the rent from the-amount agreed to he paid for the services. Held, that the affirmative allegations in the answer did not broaden the issue, and that the judgment in . that proceeding was not a bar to an action for damages for breach of the-contract.
    Appeal from a judgment of the county court of Onondaga, county in favor of the defendant for $37.30 damages, besides costs ;. also from an prder denying a motion for a new trial upon the minutes. The trial was before the court and a jury, and the plaintiff was nonsuited as to the cause of action set up in the complaint, and judgment ordered for defendant for $37.30 upon admitted counterclaims.

      Wm. Lincoln Barnum, for app’lt; Homer Weston, for resp’t.
   Merwin, J.

The question in this case relates to the effect of a judgment in favor of the defendant against the plaintiff in. summary proceedings to recover the possession of real property.

In the complaint in the present case, it is alleged that, on or-about the 28th March, 1890, it was mutually agreed between plaintiff and defendant that plaintiff should work for defendant, at painting and paper hanging for the term of one year from and after the 1st day of April, 1890, at the price of two dollars a day for each day excluding Sundays, without loss of time, plaintiff, to be paid weekly at the end of each week; that plaintiff entered upon the work on or about April first, and worked for the defendant until October 18, 1890, when the defendant discharged him- and refused to employ or allow him to work any longer; that-plaintiff at divers times offered to work and complete his contract and has been ready and willing to perform, but defendant haa always refused to allow him to do so ; that for fifty-four days of the time after October 18, the plaintiff was unable to procure work elsewhere, although he often tried to do so ; that defendant, was indebted to plaintiff under said contract for $100, for which, judgment was demanded. The answer contained a general denial,, and also set up that defendant had good ground to discharge plaintiff, and that plaintiff had further employment As a further defense, the summary proceedings hereinafter referred to were set up.

Upon the trial of the action it appeared from the testimony of the plaintiff that he was first employed by the defendant in August, 1889, by the day, and so continued to April 1 following; that during the winter he lived in the house of the defendant^ paying seven dollars a month rent; that about 28th March,, 1890, there was a conversation between plaintiff and defendant in •which plaintiff said he was going to leave on 1st April because Ike could do better elsewhere, and defendant replied he wanted him to stay, and finally offered him two dollars a day for a year, with no lost time, and to this plaintiff replied he would consider it a day or two; that on the morning of April 1st the subject was continued, the offer of defendant being repeated, and he adding: •“ I was calculating to charge you $10 a month for the house after 1 fix it up, but I will let you have the house the same as you have been having it for, $7 a month for one year," and that plaintiff replied that he would take him up at his offer, and commence there that morning; that plaintiff continued to work under that contract until October 18, receiving his pay at the end of •every week; that on the 18th October he was disor/n-ged, and was also told to find another place to live in; that on IN ovember 6 he paid the defendant rent, receiving therefor ■ a receipt. The plaintiff also gave evidence as to the occasion of the discharge, ■and what subsequently occurred between him and defendant, the latter at one time denying that he ever made any contract with plaintiff. Upon cross-examination he testified to-the commencement of summary proceedings, and to his putting in an answer "therein. Thereupon the defendant put in evidence the record of ■ those proceedings. From this it appeared that on January 6, "1891, Price, the present defendant, presented to a justice of the peace a verified petition stating that he was the owner, and entitled to the possession of certain premises, and- that on or about the 26th April, 1890, he rented the same to Dickinson “for the term of week to week from the 26th April, 1890, at the weekly rent of $1.75 payable weekly in advance,” and that on the 3d January, 1891, seven dollars wás due for rent under the agreement, and remained unpaid, though duly demanded, and that Dickinson "held over and was in possession without permission; that thereupon a summons in usual form was issued returnable •on January 9, 1891, at which time "Dickinson appeared, and put in a verified answer, and the matter was adjourned by consent to January 13 ; that upon the adjourned "day Dickinson did not appear, and thereupon, as appears by the judgment entered by the justice, witnesses were sworn “ for petitioner to establish his claim therein, and said issue joined by said petition and answer having been tried by me, and my decision thereon being in favor of the petitioner, and that the amount of rent due him from said defendant is the sum of $7, which was payable on the" 3d January, 1891,” it was adjudged that such rent was due, and that possession of thé property be delivered to the petitioner, and that a warrant issue accordingly.

In the answer that was put in by Dickinson, the defendant therein, he denied that he rented the premises from week to week ■or that he was indebted in any sum for the rent and" alleged that the rent was paid in full. He also alleged for further answer that he and Price on the 28th March, 1890, entered into a contract by which" he, Dickinson, agreed to work for Price for one year from April 1, 1890, at the price of two dollars per day, without any loss of time on his account, and" that he, Dickinsori, was to have the use of the house in question for the term, of one year from April 1, 1890, at the price of seven dollars per month ; that Price was to pay him for said services at the end of each week; that he entered upon said work on or about April 1, 1890, and continued to work under the contract until 18th October, 1890, when Price discharged him and would not allow him to work any longer; that since that time he has been ready and willing to perform but Price has refused to allow him to do so; that Price agreed under and by the said agreement to take his rent for said premises from and in the amount of money agreed to be paid him, Dickinson, under the contract; that Price is not entitled to any rent since the 18th October, 1890, by reason of the breach by him of said contract.

The record above referred to being in evidence, the court, on motion of the defendant, held that it was a bar to the action and granted a nonsuit so far as plaintiff’s cause of action was con•cerned. So that in substance it was held that the jftdgment in the summary proceedings was an adjudication that there had been no breach by defendant of the contract of hiring and that nothing was due the plaintiff thereon. The plaintiff duly excepted

A judgment by default in such a summary proceeding is, as between the landlord and tenant, conclusive of the facts alleged in the petition and which are required by the statute to be alleged as the basis of the proceedings. Brown v. Mayor, 66 N. Y., 385. It is not conclusive as to the amount of rent due, but only that some is due. Jarvis v. Driggs, 69 N. Y., 143. We must therefore assume that at the commencement of the summary proceedings on the 6th January, 1891, the plaintiff owed defendant some rent. This alone would not affect the plaintiff’s cause of action .as alleged in the complaint. But the argument is that the finding of the justice that some rent was due necessarily disaffirmed the facts set up in the answer as to the breach of the hiring contract. Does this necessarily follow ?

Under the Code, § 2244, the only answer provided for in such, proceedings is one denying generally the allegations, or specifically any material allegation, of the petition. Under a denial, the tenant could prove payment, Durant, etc., Co. v. East River, etc., Co., 25 St. Rep., 928, or that the lease was void as being part of an usurious agreement, and therefore no relation of landlord and tenant existed. People ex rel. Ainslee v. Howlett, 76 N. Y., 574. So in the present case, the tenant might have shown under his denials that the rent was paid in fact, or that it was in effect paid by the defendant's breach of the agreement by which it was to be taken out of plaintiff’s wages. What was in fact shown by the present defendant in his evidence before the justice does not appear. It might have been shown that there was no agreement by defendant to take his rent in that way, and that the contract for hiring and the lease of the house were entirely distinct The petition alleged that the lease was made on the 26th April, while the hiring, as alleged by Dickinson and proved on the present trial, was on the 1st April. It is not essential to plaintiff’s cause of action that the lease should have been made on 1st April, or if made then, that there should have been no modification of it afterwards. Hor is it material to plaintiff’s cause of action whether defendant did or did not agree to take his rent out of plaintiff’s wages.

The issue as authorized by law was made by the petition and the denials. The affirmative allegations in the answer did not broaden the issue and should not be so considered in case of default. In Belden v. The State, 103 N.Y., 1; 3 St. Rep., 8, it was held that a judgment is not conclusive as to facts not in issue in the action but proof of which is given therein to establish facts in issue.

In Lewis v. O. N. & P. Co., 125 N. Y., 341; 34 St. Rep., 973, it was held that where a judgment may have proceeded upon either of two or more distinct facts, a party seeking to avail himself of it in a subsequent action as conclusive evidence as to one of those facts, must show affirmatively that it went upon that fact. According to that rule, if the defendant here claimed that the judgment that rent was due was based on the fact that there was no breach of the contract of hiring, rather than upon the fact that the contract did not apply to the rent, it was his duty to show it. If the possession of the house was in question in this action, then the doctrine, which is laid down in some cases, that a judgment is conclusive as to every matter directly at issue by the pleadings which the defeated party might have litigated, might be applied. But here there is an entirely different cause of action, and the real question is as to what facts by way of evidence the judgment should be deemed conclusive.

In Zoeller v. Riley, 100 N. Y., 102, it was held that the burden of proof is upon the party claiming an estoppel by a former judgment to show clearly that the fact in issue was determined in the former action. See also Shaw v. Broadbent, 41 St. Rep., 503. In People ex rel., &c., v. Hall, 104 N. Y., 171; 5 St. Rep., 578, it is said that a judgment is not an estoppel as to any fact not expressly decided and as to which contradictory inferences may be drawn from different provisions in the judgment.

The issue before the magistrate was whether there was any rent due. The judgment may or may not have involved the question whether there was a breach of defendant’s contract. The court below held in effect that it necessarily involved that question and was therefore conclusive. In this we think the court erred. It. follows that the judgment must be reversed.

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

Hardin, P. J., and Martin, J., concur.


text:
    In the Matter of the Judicial Settlement of the Account of Franklin A. Williams, Ex’r. Franklin A. Williams, Ex’r, and individually, App’lt, v. The Second Congregational Society of the Town of Coventry, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed May 13, 1892.)

    Will—Perpetuities—Legacy.
    By testator’s will he gave to “The Second Congregational Society of Coventry the sum of seven hundred dollars; the same to be loaned on bond and mortgage, and so kept by my executors; and the interests arising therefrom to be appropriated yearly to pay for the preaching of the gospel in said Congregational Church.” Held, that the gift was not void under the statute against perpetuities; that the gift was directly to the church, followed by a limitation upon its management which may be disregarded, and that the church was entitled to receive the legacy.
    Appeal from the decree of the surrogate’s court of Chenango county, entered on the 27th July, 1891, upon the petition of the appellant for a final judicial settlement of his accounts.

      W. G. Cady, for app’lt; W F. Jenlcs, for resp’t.
   Merwin, J.

controversy in this case is over the validity of the thirteenth clause of the will of Timothy D. Porter. That ■clause is as follows: :

Thirteenth. “ I give and bequeath unto the Second Congregational Society of Coventry the sum of $700, the same to be loaned on bond and mortgage and so kept by my executors; and the interests arising therefrom to be appropriated yearly to pay for the preaching of the gospel in said Congregational Church.”

It was held, by the surrogate that the legacy was valid and that the church was entitled to receive the amount thereof.

It is not claimed by the appellant that the church has no power to take the legacy, or that the specification of the object or purpose to which the interest is to be applied defeats the legacy, but that the gift is, in substance, to the executors in trust in perpetuity, and is, therefore, invalid under the law' as laid down in Adams v. Perry, 43 N. Y., 487.

The claim of the respondent is that the legacy is given absolutely to the church and vests in it, and that the attempt to create in the executors a trust in its management is not operative and does not defeat the legacy.

In Adams v. Perry it was held that a bequest to trustees of personal estate to invest and reinvest and pay over the income to an incorporated academy forever, is void under the statute of perpetuities. In that case the property was given expressly to the trustees and provision was made for the perpetuation of the. trusteeship. So that it was held that under the provisions of the will the title vested in the trustees. It was said by Judge Grover, in delivering the opinion of the court (page 497), that he would have found no difficulty in sustaining the bequest of the residue had it been made directly to the corporation, or if capable of being so construed as to vest the title of the corpus in the corporation, subject to the trusts and conditions specified. In Cottman v. Grace, 112 N. Y., 299 , 20 St. Rep., 783, the gift was directly to the trustees, and so it was in Read v. Williams, 125 N. Y., 560; 35 St. Rep., 909.

These cases are unlike the present. Here there is a gift directly to the' church, followed, however, by a limitation upon its management, and the question is whether such limitation can be disregarded. There are authorities which sustain such a conclusion.

In Dorland v. Dorland, 2 Barb., 63, the testator gave to his wife five hundred dollars, and directed his executors to put it at interest and apply the interest for her support. It was held that the widow was entitled to receive the legacy, it being said by Justice Strong that “ the gift of that sum is absolute. The direction to the executors to put the money at interest for her. support does not in any manner revoke or qualify the donation.. It merely relates to the investment, and, as it is inconsistent yzith the absolute title before given to her, it is null and void.”

In Pray v. Hegeman, 92 N. Y., 508, it was held that an invalid direction for the accumulation of a portion of 'the income of the share of a life estate man was to be regarded as stricken from the will, thus leaving the life estate man the owner of the entire income. The same principle was applied in Barbour v. De Forest 95 N. Y., 13. An ineffectual attempt to create a trust estate in regard to a bequest does not affect the validity of the bequest if in other respects it is valid. Everitt v. Everitt, 29 N. Y., 39, 82. In Greene v. Greene, 125 N. Y., 506; 36 St. Rep., 30, there was an inhibition against a partition or division for six years, and a restriction upon the power of alienation. It was held that the invalidity of these limitations did not affect the devise otherwise valid, it being said that invalid limitations upon the free ownership of property devised may be disregarded. Courts lean in favor of the preservation of all such valid parts of a will as can be separated from those that are invalid without defeating the general intent of the testator. Harrison v. Harrison, 36 N. Y., 543, 548, and cases cited.

It should be said here, as in the Greene case above referred to, that the attempted limitations upon the free ownership of - the legacy may be disregarded. It follows that the surrogate did not. err in holding that the church was entitled to receive the legacy.

The appellant further claims that the surrogate exceeded his jurisdiction in that in one of his conclusions of law he held that the legacy was a lien upon the farm devised to said Franklin A. Williams by a subsequent clause of the will. The evidence and . proceedings before the surrogate upon the trial are not returned. The findings of fact and law which appear in the record before us, are, according to the recitals therein, based upon the testimony and stipulations of the parties.” The petition, presented by the appellant, asked that the legacy be declared void and that the petitioner be discharged and held not liable to pay the same. The court held that he was liable. Whether in arriving at this. conclusion it was important or proper for the court to pass upon the effect of any other provision of the will, we cannot well determine without having before us the proceedings before the court, at the trial. What questions were in fact presented to the surrogate for decision does not appear. It does not appear what personal estate, if any, was in the hands of the executor. If it was-important for the appellant to raise the question that the surrogate had decided too much, he should have made a case containing the proceedings. The appellant does not claim that the legacy was not in fact a lien.

It follows that the decree of the surrogate’s court should be affirmed, with costs.

Decree of surrogate’s court of Chenango county affirmed, with costs.

Hardin, P. J., and Martin, J., concur.


author: Merwust, J.

text:
    Harry W. Link, by Guardian, Resp’t, v. Jay W. Sheldon et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed May 13, 1892.)

    1. Physicians—Malpbactice—Evidence.
    In an action against physicians for malpractice in setting a limb, evidence of exclamations of the patient while defendants had charge of him and concerning which they were informed when they called to see him is admissible.
    2. Same—Irresponsive answer.
    A witness was asked to state the proper treatment of Colles’ fracture, and replied that there might be halt a dozen different treatments of such fracture, and if counsel would designate which method he would have the witness would tell him the treatment Held, that the answer was irresponsive and was properly stricken out.
    3. Same.
    On Monday night defendants were prevented or postponed the re-dressing of plaintiff’s arm, and were discharged the next morning and another physician employed. On the trial an expert who had no personal knowledge of the case was asked whether he would trace any of the results testified to by the physician so employed to the lack of re-dressing on Monday night. Held, incompetent, as it called upon the witness to pass upon all the evidence in relation to the condition of the arm at that time and its prior treatment.
    4. Same.
    In such case a question as to how such a fracture usually occurs in young people is immaterial.
    5. Same—Ip,relevant issues.
    The fact that defendant testifies that he has treated numerous similar cases does not authorize an inquiry as to the results in such cases. If such inquiry was authorized, the question could be gone into on the other side, and thus irrelevant issues would be raised.
    6. Witness—Authorities.
    A question put to an expert witness as to whether the view expressed by him is sustained by the authorites is improper.
    Appeal from a judgment entered in Onondaga county on the 9th March, 1891, upon a verdict in favor of the plaintiff at the Onondaga circuit; also from an order denying a motion on the minutes for a new trial.
    Action for malpractice. On the '25th July, 1890, the plaintiff, then being about twelve years old, was playing in the hay loft of a barn and fell to the barn floor, a distance of about eleven feet, thereby breaking his right arm near the wrist. The defendants were called in to attend to it The claim of the plaintiff is that the defendants so negligently, unskilfully and improperly attended to the matter that plaintiff’s hand became permanently injured and deformed.

      F. K. Fuller, for app’lts; Goodelle & Nottingham, for resp’k
   Merwust, J.

this case, upon the evidence, it was clearly a question of fact whether the plaintiff had sustained an injury by reason of the want of proper skill or care on the part of defendants, within the rule applicable to such cases, Carpenter v. Blake, 10 Hun, 358, as was also the question whether the negligence or misconduct of the plaintiff or his parents contributed to the result. The motion for a nonsuit was therefore properly denied. We have examined the cases cited by the counsel for defendants upon this subject but find nothing that would call for a different conclusion.

It is claimed by the defendants that numerous errors, to their disadvantage, were made by the court in rulings upon evidence and in regard to requests to charge. These we will examine in detail.

1. The accident was in the forenoon of Friday and the defendants set the limb the same forenoon. The father of the plaintiff, being upon the stand as a witness for the plaintiff, testified without objection, among other things, that on Friday night the plaintiff “ was crying terribly, he said his hand pained him so he could not live through it, pained him same as if he had it on a hot stovethat upon the following day he saw one of the defendants and told him what pain the boy had been suffering; that upon the following night the boy “complained of a burning sensation, he did nothing but walk, he could not keep quiet, he walked around the house.” The question was then asked, “Did he continue those complaints ?” and the answer given : “Just the same, this burning, terrible burning pains. ” The counsel for defendants then said, “ I object to that class of evidence as incompetent, improper and inadmissible,” and- to this the court replied, “I think the exclamations of the boy are competent in this class of cases.” The objection was overruled and exception taken.

This evidence related to the condition of the boy while the defendants had charge of him and concerning which 'they were informed when they called to see him. The court evidently followed the rule laid down in Hagenlocher v. The C. I. & B. R. R. Co., 99 N. Y., 136, where it was held that exclamations indicative of pain were competent, and proof of these was not confined to the time of the injury. Roche v. Brooklyn City & N. R. R. Co., 105 N. Y., 297; 7 St. Rep., 361. Ho error is apparent 'The counsel for defendants specifies two other questions upon this subject, the objections to which were overruled, but as they were not answered it is not important to consider them.

2. A witness for the defendants was asked by the defendants’ counsel the following question:-“Q. I would like to have you take the matter up and state to the court and jury what is the proper treatment of Oolles’ fracture, including the subject of splints? ” To this the witness made answer: “ There may be half dozen different treatments of Colles’ fracture with the dislocation backwards; there are half dozen theories and methods of practice with reference to this fracture; some men have one method of treating; some have another, and some another. If you will designate which method you will have, I will tell you what treatment you want. There are a great many methods.” The counsel for plaintiff moved to strike out this answer, and the court replied : “ We desire his idea of the proper treatment of Colles’ fracture. I think I will strike the answer hut That this is a difficult fracture to deal with it may be assumed.” Defendants excepted.

The answer was not responsive to the question. Besides, the substance of the answer as given was afterwards fully stated by the witness.

3. Dr. Lee, an expert witness for defendants, was asked by defendants’counsel the following question: “Q. Would you trace any of the results which you have heard testified to by Dr. Doyle to the lack of re-dressing on Monday night ?”

This was objected to .as incompetent and immaterial, and objection sustained and exception taken.

Upon the Monday night following the accident, the defendants called at the house where the plaintiff was for the purpose of redressing the arm. It was a disputed question whether the defendants were prevented from then re-dressing the arm by the parents of the boy, or whether they voluntarily postponed it to the next day. Upon the morning of the next day the defendants were discharged, and Dr. Doyle then re-dressed the arm and thereafter took charge of the case. He in his evidence had given a description of the injury as he found it on Tuesday, and of the subsequent treatment and results up to the time of the trial.

The witness, Dr. Lee, had no personal knowledge of the case. He had, in answer to a hypothetical question, testified that the delay in the re-dressing from Friday evening to Tuesday forenoon was highly damaging to the boy. The question above set out was then asked. It not only called upon the witness to consider the evidence of Dr. Doyle as to the results referred to but also the evidence of other witnesses, which the witness had heard, as to the condition of the arm on Monday evening and its prior treatment. In no other way could the witness judge of the effect of the lack of re-dressing on Monday night. The witness was, therefore, in effect asked to pass upon all the evidence upon that phase of the case. In this view, the question was incompetent within the principle laid down in People v. McElvaine, 121 N. Y., 250; 30 St. Rep., 977, and cases there cited.

4. The counsel for defendants asked the witness, Dr. Lee, the following question: “ Q. How does it (referring to an ordinary Colies' fracture) occur in young people usually ?” This, being objected to, was ruled out, and properly so. The issue was not as to how such fractures usually occurred with young people, but whether the boy fell upon the palm of his hand, thereby producing the ordinary Colles’ fracture, or whether he fell upon the back of his hand, thereby producing a different kind of fracture or displacement.

5. Dr. Eisner, an expert witness for the defendants, after having given his opinion as to the proper treatment of a swelling-in the palm of the hand, was asked the question: “Is this view you have just expressed sustained amply by the authorities ?’? This being objected to was ruled out. The question indirectly called for statements from .medical books and was not proper. See Matter of Mason, 60 Hun, 57; 38 St Rep., 533, and cases cited. This was upon the direct examination of the witness.

6. Dr. Eisner was also asked the question: Do you trace the injury which now exists in that hand to tight bandaging ? This being objected to as incompetent and immaterial was ruled out The question in substance was repeated, but with an hypothetical basis and was answered. This gave to the defendants all they were entitled to have.

7. The defendant Sheldon, when called in his own behalf, testified that in his practice he had treated twenty-five or thirty cases of Colles’ fracture. He was then asked the question: “And with what results?”- This was objected to by plaintiff’s counsel as incompetent and immaterial, and objection sustained. If the results in each case that witness had treated could be gone into upon the one side, they could be upon the other and thus irrelevant issues be raised. Upon the question of general reputation as to skill, specific acts would not be competent Carpenter v. Blake, 10 Hun, 360.

In the case cited Judge Talcott says: “ The defendant cannot be supposed to be prepared to prove the facts in regard to all cases which had theretofore occurred in his practice, and the inevitable effect of allowing such evidence would be to introduce before the. jury a multitude of collateral issues, and thus tend to obscure and distract attention from the real issue in the case on trial.” It may be, as said by Judge Mullin, in Carpenter v. Blake, 60 Barb., 518, that the fact that a physician or surgeon possesses skill may be shown by those of the same profession who can Speak from personal knowledge of his practice. This, however, would not authorize either party to inject into the case an issue as to some prior transaction, as to whether the results there were good or otherwise, or as to whether the results, whatever they may have been, were due to skill or lack of skill.

8. The court was requested by the defendants' counsel to charge that “if the jury find the stiffness of the thumb resulted from its changed position from which the defendants left it, then the defendants are not liable.” To this request the plaintiff’s counsel suggested: “ That is a question of fact.” The court then said: “ Yes, I think that is a question of fact for the jury.” Defendants excepted. What the changed position was, that was referred to, was left indefinite. If by reason of defendants’ negligence a change of position was necessary, it could not be said as matter of law that defendants were not liable. The stiffness of the thumb was not the only injury complained of. The court afterwards charged, at the request of defendants, that if the jury found upon the evidence that any part of the injuries complained of were caused by the acts or neglect of the plaintiff or his parents, or by those who treated the plaintiff after the defendants ceased to do so, there could be no recovery. In view of this, the defendants’ counsel cannot complain of the action of the court upon the previous request.

9. The defendants’ counsel requested the court to charge that, “if the jury find from the evidence that the results complained of were not wholly caused by what the defendants did, or failed to do, the plaintiff cannot recover.” To this the court replied: “ That I think I will not charge, because the original injury may have had something to do with the matter. If the original injury has been complicated, made worse by the want of skill and care of the» defendants, they are responsible for just as much additional fault as resulted from that want of care and skill.” To this the defendants excepted. Thereupon the court, at the request of defendants, charged that, “ if the jury should find from the evidence that any part of the injuries complained of were caused by the defendants, and a part was also caused by the fault of the plaintiff or his parents, or of others who treated the case after the defendants left it, then the plaintiff cannot recover.” Taking these requests together, and the action of the court thereon, the defendants have no ground for complaint. See Carpenter v. Blake, 75 N. Y., 12, 24.

10. The defendants’ counsel requested the court to charge that, “if the jury find from the evidence that the contusion or injury on the back of the hand produced an inflammation in the sheaths of the tendons which spread to the adjacent parts, and that such contusion was an adequate cause for the inflammation, suppuration and stiffening which followed as a result thereof, and which do not develop at the surface for a period of from three to six days, then the injuries complained of are the natural results of the plaintiff’s fall and misfortune, and the defendants are not liable.” This the court declined to do, saying that it was a question of fact on the evidence. Thereupon, at the request of defendants, the court charged that, “ if the jury find from the evidence that it is just as probable that the injury complained of was caused either by the original severe injury, or by the interference of the plaintiff’s parents, or -by the subsequent manipulations and treatment of Dr. Doyle and others, as from the pretended tight bandaging, it is the duty of the jury to find a verdict for the defendants.” Taking these requests together, and the action of the court thereon, the defendants have no good ground for complaint.

11. The defendants’ counsel asked the court to charge that, “ if the jury find from the evidence that the position and stiffness of the thumb was caused by the abscess spoken of by Dr. Doyle in the palm of the hand, which was not opened by him, but allowed to gather and break, and destroy the muscles and tissues in that vicinity, the defendants are not liable therefor,” also that “ if, etc., the thumb was drawn down by an abscess as spoken of by Dr. Doyle, and was not opened, and the pus let out, but allowed to go on, then these defendants are not liable therefor, and the plaintiff cannot recover." These requests the court declined to charge, and defendants excepted. These requests assumed that the treatment by Dr. Doyle was not proper. That was a quéstion of fact upon the evidence. Besides the court had previously charged at the request of the defendants that, “if the jury find from the evidence that any part of the injuries to plaintiff’s hand and wrist were caused by the manipulations of Dr. Doyle, and the subsequent treatment of the same, the defendants are not liable, and the plaintiff cannot recover in this case; and their verdict should be for the defendants.” •

The charge as a whole was fully as favorable to the defendants as they had a right to ask. The principles needed by the j ury to the proper determination of the issues of fact were cletfrly and distinctly stated. The rights of the defendants, both on the taking of the evidence and in the laying down of the law applicable thereto, were fully protected. The case was exhaustively tried, and we find no error that would make it proper for us to grant a new trial.

The only other question presented relates to the amount of damages. It is claimed that the verdict was excessive. No special considerations are urged in support of this proposition. In the view that' the jury had a right to take of the case, not only was present injury and suffering to a large extent attributable to the acts or omissions of the defendants, but also a serious permanent injury. No sufficient ground is apparent for us to interfere.

Judgment and order affirmed, with costs.

Hardin, P. J., and Martin, J., concur.


text:
    Caroline Leach et al., Ex’rs, App’lts, v. John Newell Vining et al., Resp’ts.

      (Supreme Court, General Term, Fourth Department,

      Filed May 13, 1892.)

    1. Mortgage—Overpayment.
    In an action to foreclose a mortgage, the answer set up that it had heen overpaid, and demanded affirmative relief. The proof as to a prior payment, which was sufficient to satisfy the mortgage if made, was that the grantee of the premises had a claim against plaintiff’s testator which was disputed and submitted to arbitration, and an endorsemeht made on the account of the amount awarded “tobe applied on mortgage.” The arbitrators testified as to the settlement, and the endorsement was shown by comparison and otherwise to have been in testator’s handwriting. Held, that the failure of the grantee in subsequent transactions with testator to assert the existence of such payment was not conclusive against his claim, and that a finding of such payment would not be disturbed.
    8. Same—Demand.
    Where no question is made at the trial as to the necessity of a demand as a condition precedent to a recovery of such overpayments, nor any request for a finding on that subject made, a failure to show any other demand except as made by the answer is not ground for reversal of the judgment.
    3. Same—Interest.
    Where an overpayment has been made through mutual mistake, and no fraud can be imputed to either party, interest should only be allowed from the time of a demand,
    Appeal from a judgment entered in Broome county, February 7, 1891, upon the decision of the court at special term dismissing the complaint and directing judgment against the plaintiffs in favor of the defendant Atwood P. Yining for $302.13, without costs.

      The action is brought to foreclose a mortgage, executed by the defendant John ¡N". Vining to -Winslow 0. Leach, plaintiff’s testator, on the 1st April, 1888, to secure the payment of the sum of $500 in ten equal annual payments with annual interest. The answer of the defendants sets up not only, that the mortgage has been fully paid, but that overpayments to the amount of $314.38 have by mistake been made by the defendant Atwood P. Vining, and he asks an affirmative judgment for that amount against the plaintiffs. The premises were conveyed by the mortgagor to Atwood P. Vining subject to the mortgage before any payments were made thereon.

      Edward K. 0 larlc, for app’lts; D. S.& B. B. Richards, for resp’ts.
   Merwin, J.

The controversy in this case is over the matter of payments. Upon the trial, none of the payments that defendants claimed were disputed except one of $128 alleged to have been made on or about May, 1870, and one of $49 on May 7, 1872. As to both of these the court below decided against the plaintiffs. Upon applying those payments and others that were made on or before May 5, 1879, that are undisputed, the result followed, that on the 5th May, 1879, the mortgage was overpaid the sum of $4.35. The subsequent payments as found by the court were $84.38 October 22, 1886, and $154.08 ¡November 4, 1887. The over payment on May 5, 1879, and the subsequent payments, with interest from the date of payment, make up the amount of the judgment allowed against the plaintiffs,

¡No point is made here as to the $49 payment. The plaintiffs however claim that the evidence does not justify the allowance of the $128 payment. If this was not allowed, there would remain a balance due on the mortgage after applying all the other payments.

The evidence tends to show that in the spring of 1870 the defendant Atwood P. Vining had an account against Mr. Leach for about four hundred dollars for sawing .timber, for which he claimed credit upon the mortgage; Mr. Leach claimed the amount was too large and also that he had an account against John ÜST. Vining which should be first deducted; that the matter was referred to three arbitrators who decided verbally that the account of Atwood should be allowed, the account of ¡Leach against John ¡N". Vining be deducted and the balance be applied on the mortgage ; that this balance was $128; that this arrangement was satisfactory to both parties and that thereupon Leach endorsed upon Atwood’s account in his, Atwood’s, book the following: “ Settled this saw bill by arbitration, one hundred twenty:eight dollars to be applied on mortgage.” This endorsement was not signed by Leach or dated, but there was evidence tending to show that it was in Leach’s handwriting and that the transaction was in or about May, 1870. The three arbitrators, one of whom was the partner or hired man of Mr. Leach, were called as witnesses and gave evidence corroborating the settlement Upon the subject of the handwriting of the endorsement, there was evidence by way of comparison with admitted signatures or writings of Mr. Leach. Of this class of evidence we have not here the benefit so far as the inspection of the original papers is concerned. The failure of Atwood in some subsequent transactions between him and Mr. Leach, or the plaintiffs, to assert the existence of this payment' is urged as a strong circumstance against his theory. Still it is not conclusive. The evidence justified, I think, the conclusion of the special term. At least we have no right to say it is against the evidence.

Assuming that the court was correct in its findings as to the disputed payments, the question then arises whether the judgment in favor of the defendant Atwood for the overpayments is correct.

No point is made as to the form or sufficiency of the pleadings upon this subject It is very clear that the overpayments were made by mistake. The party paying did not intend to pay any more than was due, nor did the plaintiffs or their testator suppose that’they were receiving more than was in fact due. If the party paying was negligent in the matter, that would not be a bar to his claim, Lawrence v. Am. Nat. Bk., 54 N. Y., 432.

But the plaintiffs claim that the affirmative judgment was erroneous for the reason that no demand had ever been made either of the plaintiffs or Mr. Leach, and that until such demand was made no right of action or for an affirmative judgment could arise.

The general rule is that the obligation of a party to refund money voluntarily paid by mistake can arise only after the notification of the mistake and a demand of payment Southwick v. First Natl. Bank of Memphis, 84 N. Y., 420, 430.

There seems to be some question whether this rule would apply to the case of a defendant setting up overpayment by way of counterclaim. Sharkey v. Mansfield, 90 N. Y., 227. Be that as it may, no question was made at the trial as to the necessity of a demand as a condition precedent to the right of recovery, nor was any request for findings upon that subject made by the plaintiffs. The findings as made do not state whether any demand was made or not The answer in which these overpayments were set up and their recovery demanded was, as the statement in the appeal book shows, served on the 14th April, 1890. Under the circumstances of this case I am inclined to the opinion that the failure to show any other demand except what is made by the answer is not sufficient ground for the reversal of the judgment

The court included in the amount for which judgment was directed the interest on each overpayment from the time when such overpayment was made. This the plaintiffs claim was incorrect, and that interest was only allowable from the time of the service of the answer, which for the purpose of interest might be deemed the date of the demand. This question the plaintiffs are in a position to raise under their exception to the conclusion of law that the defendant was entitled to judgment in the sum of $302.18.

There was here a mutual mistake, and no fraud can be imputed to either party. In such a case interest should not be allowed except from the time when the demand was made. King v. Diehl, 9 Serg. & Rawle, 409; Ashhurst v. Field, 28 N. J. Eq., 315; 1 Am. Lead. Cases (2d ed.), 528; 11 Am. & Eng. Encyc. of Law, 398. That would exclude interest in this case prior to April 14,1890. The payments of October 22,1886, and November 4, 1887, were by way of account for work and materials furnished by defendant Atwood P. Vining under agreement with the plaintiffs or their testator that the amount thereof should be applied on the mortgage. No account was rendered in any other view or payment demanded until the service of the answer. The defendant is not in a position to obtain interest from the time of the presentment of the account, because then it was treated by all parties as a payment It follows that the recovery should be limited to the amount of the over payments with interest from April 14, 1890.

The aggregate of the over payments is $242.81, the interest from Aprü 14, 1890, to the date of the decree January 27, 1891, is $11.44, making a total of $254.25. The judgment should be modified by reducing it to this amount, and as modified affirmed, without costs.

Judgment modified by reducing the recovery as stated in the judgment from the sum of $302.13 to the sum of $254.25, and as modified judgment affirmed, without costs of this appeal to either party.

Hardin, P. J., and Martin, J., concur.


author: Lambert, J.

text:
    Charles F. Ackerson, Supervisor, Pl’ff, v. The Board of Supervisors of Niagara County and John J. Arnold, County Treasurer, Def'ts.

      (Supreme Court, Special Term, Niagara County,

      Filed January, 1892.)

    1. Town bonds—Railroad taxes—Limitation.
    An action cannot be maintained by a town under the act of 1869 for railroad taxes paid over to the county treasurer more than six years prior' to the commencement of the action.
    2. Same—Defense.
    It is no defense to an action brought under the act of 1869 that the portion of the railroad tax raised for town purposes was paid by the collector directly to the town officers, and a receipt therefor only delivered to the county treasurer, and that the county, in fact, never received the money.
    S. Same—Laws 1880, chap. 286.
    Chapter 286, Laws 1880, providing for the issuing of bonds to take up-bonds whose validity was disputed, and that the supervisor of the town should report to the board the amount thereof falling due, and pay the same from the tax levied and collected for that purpose, is consistent with, the act of 1869, and both may stand together, providing independent means of payment of the bonds.
    Action to recover taxes collected from a railroad for which* plaintiff’s town was bonded and paid to the treasurer.

      Cassius C. Davy, for pl’ff; John É. Pound, for def’ts.
   Lambert, J.

The right of a township to have all taxes, except school and road, collected of any railroad for the construction of. which bonds have been issued applied to the payment of the bonded indebtedness, and for a failure upon the part of any county treasurer to so apply or provide for the application of such taxes, a right of action is given by the act of 1869, as amended in 1870 and 1871,. has been settled by numerous authorities in this state. The statute of limitations applicable to a misappropriation of funds has been made applicable to an action under the provisions of the-laws referred to. Strough v. Board of Supervisors, 119 N. Y., 212; 28 St. Rep., 967.

Relying upon the application of the doctrine of this case, the defendants claim in any event the plaintiff ought not to recover for the taxes assessed in the year 1881, as that it was barred at the time of the commencement of the action, March 12, 1888.

• The proof given upon the trial indicated that this item of taxes, $1,515.36, assessed in 1881, was not passed over to the county treasurer until about the 9th of February, 1882. It follows that the statute would not commence to run until after payment to the county treasurer, and the failure on his part to observe the requirements of the statute. The complaint charges-in general terms the collection and payment to the county treasurer of a given sum in each of a given series of years, which includes the year 1881, the sum of $1,515.36, and then alleges that the treasurer of said county wrongfully and unlawfully paid out said moneys for the benefit of the county of Niagara. The defendants in pleading the statute of limitations use- the following terms : “ That the alleged cause of action * * * which accrued prior to and including the year 1881, accrued more than, six years previous to the time of the commencement of this action, and is barred by the statute of limitations.”

' The evidence permits the inference that prior to the 12th day of March, 1882, the item of tax paid by the railroad company to the treasurer was by him mingled with the other taxes-of the county and credited to one or more of the tax funds, and in whole or in part disbursed, so that as matter of fact a right of action for the misappropriation of the item levied in 1881 was barred by the statute of limitations at the time of the commencement of this action. The complaint, as has been mentioned, charged this amount to have been misappropriated in the year 1881, and hot only as charged, but as disclosed by the proof, the same was barred, and the defendants could do no more as matter of pleading than to allege that the cause of action relied on by the plaintiff was barred, and a right of recovery thereon defeated by lapse of time; an amendment of the complaint to conform to the proof was not asked, and had it been secured the defendant could have defeated a recovery by interposing the statute of limitations. This leads to the conclusion that the plaintiff in any event should not recover the item of $1,515.36 alleged to have been misappropriated in the year 1881.

The defendants also contend that of the aggregate sum paid in the years excluded from the operation of the statute of limitations, the sum of $5,729.26 should be deducted for the reason that such sum was raised to defray town expenses, and was by the collector paid directly to the town officers for such use, and delivered a receipt for the same to the treasurer of Niagara county in lieu of the moneys as directed by his warrant The statute provides that all taxes (except school and road) collected, shall be paid over to the treasurer of the county and to be by him applied as therein directed. Because the treasurer accepted vouchers instead of cash for the payment of taxes going to the town officers of the town of Somerset, the county of Niagara asks to be exonerated from liability on the ground that it had never received the taxes in question, and therefore owed no duty under the statutes for which liability would result.

This we believe to be untenable, as its adoption would permit, by indirection, the defeat of the plain provisions of the statute. The defendants insist that, so far as the town of Somerset is concerned, by the acceptance of the provisions of chapter 286 of the Laws of 1880, as amended by chapters 18 and 197 of the Laws •of 1881, it is not entitled to the benefits provided by the act of 1869 as amended. In other words, these enactments, by implication, worked a repeal of the act in 1869, and thereby deprive the town of the benefit of the taxes collected upon the property which it created. The act of 1880 contains no repealing clause, and therefore the act of 1869, as amended, must be treated as in force, unless it is so repugnant to and inconsistent with the statutes under which the bonds were issued that both cannot be treated as applicable to their payment. People v. Jaehne, 103 N. Y., 195; 3 St. Rep., 11; Heckmann v. Pinkney, 81 N. Y., 211; People ex rel. Mason v. McClave, 99 id., 83; In re Kiernan, 62 id., 457; People v. Supervisors, 73 id., 173.

The objects to be attained by the law are proper considerations in determining the hostility of statutes. In brief, the statute of 1869, as amended, provided for the payment to the county treasurer of all taxes, except school and road, collected in any town upon railroads, to aid in construction of which bonds were issued; that such county treasurer, with such moneys, should purchase, when he can do so at or below par, cancel and deposit the same ' with the board of supervisors. In case such bonds could not be purchased at, or below par, he is directed to invest the moneys for the redemption and payment of such bonds when they could be so purchased. By this statute it was intended to provide a system for the. payment of bonds issued in aid of the construction of railroads, so as to give to the towns for a given period of time the benefit of the taxes collected upon the property created by their aid, and, as has been said by the courts of this state, this was to the towns creating a bonded indebtedness for such a purpose a wise and beneficial provision. But it will be observed that such provision did not have the effect to grant complete absolution from the payment of such indebtedness, and only to such extent as the moneys realized in such manner would accomplish; the balance is raised by a tax upon the taxable property of the town, by and under the direction of the board of supervisors.

By the act of 1880, the town of Somerset was permitted to issue bonds to take up and discharge obligations the validity of which were in dispute, and as a part of the scheme it was provided that the supervisor of the town should report to the board of supervisors in each year the number and amount of bonds and coupons falling due within the next year, and then the board of supervisors should cause to be levied and collected of the property of the town, at the same time and manner as other taxes are-levied and collected, such sum or sums of money as shall' be necessary for the payment of principal and interest, and then provides that when the money is thus collected it shall be applied by the collector to the payment of the bonds, principal and interest. The claim is that by the provisions of the act of 1869, as-amended, the county treasurer was required to apply the taxes to the retirement of the bonds; that therefore, the provision of the-•act of 1880, requiring the collector to pay off and cancel the bonds, is inconsistent therewith, and that it is apparent it was the-intention to provide by the act of 1880 the exclusive means and manner of meeting these obligations as they became due, and thereby exclude the town from the benefits provided by the act óf 1869, as amended. To this proposition we do not lend our assent Except the moneys received by the county treasurer from the-railroads from which the town was bonded, the moneys raised to pay the bonded indebtedness, under the provisions of the act of 1869 as amended, and the law applicable to that subject, was levied and collected by and under the direction of the board of supervisors, in the same manner as provided by the act of 1880. Under either provision, it is the duty of the board to levy and authorize to be collected a sum sufficient to ,pay the maturing bonds and accumulated interest annually. And while the language of the act of 1880 requires the supervisor of the town to-report the entire amount falling due for principal and interest, the board is only required to levy and cause to be collected such sum as shall be necessary for the payment of principal and interest The language of the act is particularly significant in that respect^ especially when read in the light of the assumption that the treasurer, by his annual report, gave the board full information of the-bonds retired by him through the medium of taxes paid by theraílroad company.

It will be seen by the report of the supervisor of the town, and the report of the -treasurer of the county, the board of supervisors have full information of the amount of moneys that will be required to meet the maturing bonded obligations of the town, and therefore it may be said, notwithstanding the supervisor is required to report the entire amount falling due for principal and interest, the board is required to raise, and cause to be collected, only .a sum that may be necessary to pay the bonds due or to become-due during the ensuing year. If the bonds due at the time of any annual meeting of the board, or those to become due during the year ensuing, have been paid or cancelled by the treasurer of the county, then the board is not required by the provisions of the act of 1880 to levy and cause to be collected moneys to pay and discharge them, as its duty is limited to providing means for the payment of bonds due or to become due;; and if due and paid, or anticipated by payment, then, within the contemplation of the act, they would not be due at the time of holding the annual meeting of the board, or become due during the ensuing year. The suggestion that the provision of the act of 1880, as amended in 1881, by which the supervisor is required to pay and cancel the bonds falling due, is inconsistent with the performance of that duty by the treasurer under the act of 1869, as ■ amended, is unavailing, as the act only requires that he cancel the bonds paid from the moneys delivered to him by the collector for that purpose.

The effect of § 9 of chapter 13 of the Laws of 1881 is relied on as indicative of the intent of the legislature to repeal the act of 1869 as amended by the act of 1880. If the conclusion. reached that these acts are consistent, and provide independent means of payment of the bonds, is correct, then this position is-without merit.

Judgment is given for the plaintiff for the taxes levied and collected, as stated in the complaint, after the year 1881, with costs of the action.