text:
    George Langdon, Pl’ff, v. The New York Book Company, Def’t

      (New York Superior Court, General Term,

      Filed May 4, 1891.)

    1. Receivers—Corporations—Contempt proceedings—Notice to attorney-general.
    When a receiver oí a corporation, appointed in an action by a judgment creditor for the sequestration of the company’s property, obtains an order to show cause why a person who, without leave of the court, sues him in another court, he must serve notice upon the attorney-general of his application for the warrant, pursuant to the requirements of § 8 of chap. 878 of the Laws of 1883, and a warrant granted without such notice is void.
    Appeal by John B. Alden from an order adjudging him guilty of contempt of court for having brought an action without leave of court against George H. Stonebridge, Jr., who at that time was the receiver of the New York Book Company.

      Dill, Chandler & Seymour (James B. Dill, of counsel), for John B. Alden, app’lt; Straley, Hasbrouck & Schloeder (Charles E. Hughes, of counsel), for George H. Stonebridge, Jr., receiver, etc., resp’t
   Freedman, J.

—The above entitled action was brought in this court by a judgment creditor for the sequestration of the com- . pany’s property, and by final judgment entered therein George H. Stonebridge, Jr., was appointed permanent receiver of the corporation. After having qualified as such, the receiver procured from a justice of the supreme court a warrant of arrest against John B.' Alden pursuant to the provisions of § 12 of part 2, title 1, chap. 5, art. 8, of the Revised Statutes, which provisions are, by law, made applicable to receivers of corporations, and under this warrant Alden was arrested and produced by the sheriff for examination. His motion to vacate the warrant having been denied, he appealed to the general term of the supreme court, and upon such appeal the order of the special term denying his motion was reversed and the warrant vacated, 53 Hun, 545; 25 H. Y. State Rep., 425, upon the ground that the allegations of the petition,' being upon information and belief only, were insufficient to justify the issuance of the warrant.

Alden then sued Stonebridge individually in the city court upon.allegations to the effect that the warrant was void for want of jurisdiction, and that Stonebridge who had caused it to be issued as receiver, was personally responsible in damages.

Stonebridge as receiver, thereupon obtained from this court an order requiring Alden to show cause why he should not be punished for contempt of this court in instituting the action in the city court without the leave of this court, and the proceedings had upon this order to show cause finally resulted in the order adjudging Alden guilty of contempt and imposing a fine of $250 upon him besides costs. In making this order which is now presented for review, the learned judge who made it seems to have been of the same opinion which the general term of the supreme court must be deemed to have entertained on vacating the warrant (see 53 Hun, 545; 25 N. Y. State Rep., 425), namely, that there was jurisdiction in the justice who granted the warrant to pass upon the question whether or not the warrant should be granted upon the merits disclosed.

But since that time it has been determined that, irrespective of the merits disclosed, such a warrant cannot be granted unless notice of the application for the warrant was given to the attorney-general pursuant to the requirements of § 8 of chap. 378 of the Laws of 1883, and that a warrant granted without such notice is void. Matter of Vanamee, 29 N. Y. State Rep., 198; aff’d, 23 N. E. Rep., 1149; 29 N. Y. State Rep., 993; Matter of Stonebridge, 57 Hun, 441 ; 32 N. Y. State Rep., 1070.

These decisions are fatal to the order appealed from, because it sufficiently appears that no notice of the application to punish Alden for contempt was served upon the attorney-general. The motion to punish having been entitled in the sequestration action in which the receiver was appointed, and the action being, under the provisions of the Code of Civil Procedure, one for the distribution of the company’s assets, the act of 1883, commonly known as the Haggerty act, applies.

By that act it is provided that in such an action or proceeding a copy of all motions and all motion papers, and a copy of any other application to the court, together with a copy of the order or judgment proposed thereon to the court, shall, in all cases, be served on the attorney-general in the same manner as provided by law for the service of papers on attorneys who have appeared in actions, whether the applications but for this law would be ex parte or upon notice, and that any order or judgment granted in any such action or proceeding, without such service of such papers upon the attorney-general, shall, be void. This language is so broad and comprehensive that I fail to perceive-how it can be held that the receiver’s applications to punish Alden is not covered by it. This being so, it is unnecessary to consider the other questions involved.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion to punish denied, with ten dollars costs, with leave, however, to the receiver to renew the motion upon payment of such costs and upon proper notice to the attorney-general.

Sedgwick, Oh. J., and McAdam, J., concur.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Davis D. Searle, App’lt, v. Joshua W. Davis et al., Resp’ts.

      (New York Superior Court, General Term,

      Filed May 4, 1891.)

    Loira account—Reference.
    Where the trial of an action involves the taking of a long account, and an objection to the order of reference is made upon the ground that the account of defendants, if long, was such as would be taken under a counterclaim, it will be disregarded when the answer pleads as a defense what it pleads as a counterclaim, also.
    Appeal by plaintiff from an order of reference made at special term.

      Kellogg, Rose & Smith, for app’lt; Daniel O'Connell, for resp’ts.
   Per Curiam.

—There seems to be no doubt that the judge below was correct in holding that the trial of the action would involve the taking of a long account, unless the counsel for the appellant was correct in arguing that the account, if long, was such as would be taken under a counterclaim. The answer pleads as a defense what it pleads as a counterclaim, also. Then the long account would be involved in issue upon the complaint, irrespective of there being a counterclaim.

Order affirmed, with ten dollars costs.

Sedgwick, Ch., and Freedman, J., concur.


author: McAdam, J.

text:
    John Berenberg Gossler et al., Resp’ts, v. Jacob H. Lau et al., App’lts.

      (New York Superior Court, General Term,

      Filed May 4, 1891.)

    Sale—Agreement to accept drafts—liabilities of acceptor.
    Plaintiffs agreed to accept manufacturers’ drafts for goods sold defendants, who agreed to provide funds to meet the same before maturity, and guaranteed that all bills of lading accompanying the drafts would be genuine; a draft was drawn, accompanied by a bill of lading, the goods were shipped, but lost at sea, and no insurance was recovered through a defect in the bill of lading taken by the manufacturers. Plaintiffs brought an action to recover the amount paid by them on the draft. Held, that no duty devolved on plaintiffs of seeing to the manner of shipment or phraseology of the bills of lading, or of communicating to the defendants the mode of shipment or contents of the bills of lading.

      Appeal from interlocutory judgment entered upon an order , sustaining the demurrer interposed by plaintiff to the counter- j claim set up by the defendants.

      Wing, Shoudy & Putnam (Joseph A. Shoudy, of counsel), for app’lts; Hinrichs & Rudolph (Fred. W. Hinrichs, of counsel), for ! resp’ts.
   McAdam, J.

—The complaint sets forth that plaintiff John Be- ¡ renberg Dossier & Co., of Hamburg, and Schulz & Ruckgaber, of New York, for their common advantage, are engaged in business. That in February, 1890, they opened a credit for defendants, J. ! H. Lau & Co., of New York, to be availed of by Braun & Bloem, of Dusseldorf, Germany. Braun & Bloem are manufacturers of blasting caps, and sell goods to defendants. These are paid for 1 by plaintiffs accepting and paying the manufacturers’ drafts accompanied by invoices and bills of lading. Defendants agreed to provide, previous to the maturity of said drafts, sufficient funds ' to meet the same, with a commission of one per cent.

Furthermore, all goods shipped, and the proceeds thereof, the j bills of lading and the marine insurance (which defendants’ expressly agreed to secure) were pledged with plaintiffs as collateral , security, with power to dispose of them at their discretion. • !

The defendants finally expressly guaranteed that any bills of lading and invoices accompanying drafts would be genuine, and that they would represent actual shipments. 1

Braun & Bloem made a shipment, drew a draft for some marks (13,000), which was accompanied by,an invoice of blasting caps i and a bill of lading, and plaintiffs paid the draft. The caps were in fact shipped, but lost at sea. Defendants refused to reimburse , plaintiffs for the draft paid. A tender of the shipping documents j and a demand were made before action begun.

The counterclaim pleaded, aided by the previous allegations of the answer to which it refers, alleges in substance: ¡

(1) That the drafts or bills to be drawn in pursuance of thé credit were to be accompanied by the usual bill of lading, show- ■ ¡ ing the shipment of such merchandise to the amount drawn upon I such credits.

(2) That, according to the tenor and true intent and meaning : of the agreement, the plaintiffs were not required to, and were not authorized to, accept any draft or bill of exchange on account of the defendants, or under said credit, except such bills as should ¡ be accompanied by an invoice and the usual and ordinary bill of lading, and showing the shipment of the merchandise for the purchase price of which the bill of exchange was given, in the usual j and ordinary manner, and without any qualification as to the mode of shipment, and without any limit of the usual liability of . carriers under bills of lading. 1

(3) That, for several years prior to the opening of the credit referred to, the defendants had received numerous similar credits, : which had been used for -the purchase of blasting caps from ! Braun & Bloem, which had been invariably shipped to defendants by a clean and unqualified bill of lading which, in every case, i accompanied the drafts which weré accepted in pursuance of said letter of credit, and plaintiffs well knew that Braun & Bloem had no right or authority to receive for any shipment of blasting caps, any bill of lading stating thy shipment to be made on deck or at shipper’s risk.

(4) That on the 10th of April, 1890, defendants purchased of Braun & Bloem forty cases of blasting caps to be shipped from Hamburg to the port of Hew York, for the price of 13,300 marks.

(5) That Braun & Bloem, wrongfully and in violation of their duty received and accepted for the same, a bill of lading, which stated in substance, that the caps were to be carried on deck at shipper’s risk; whereas they should have been shipped under an ordinary clean and unqualified bill of lading; but that Braun & Bloem drew the bill of exchange referred to in the complaint and attached thereto the said qualified bill of lading so received by them.

(6) That plaintiffs carelessly and negligently, and contrary to the true intent and meaning of their agreement, and in violation of their duty, accepted the said bill of exchange with the said qualified bill of lading attached thereto without lawful right or authority so to do.

(7) That insurance upon said blasting caps was duly applied for by the defendants, and the same was written as a risk under their open policy, according to their agreement with plaintiffs.

(8) That the insurance company which issued the policy now claims that by reason of the manner in which the same was shipped the policy did not attach, and that no liability was incurred by the insurance company, and, on that ground, refuses payment under the policy.

That defendants had no knowledge or notice prior to the loss of the caps that the same were shipped on deck or in any. other than the usual way and by the usual bill of lading.

(9) That plaintiffs wrongfully accepted said bill of lading and bill of exchange and carelessly and negligently omitted to notify the defendant of the manner in which the goods were shipped, so that the defendants might have had the value thereof and their profits in the purchase, of the same covered by insurance upon the goods as on deck at shippers’ risk.

(10) That if the goods had arrived in the port of Hew York in due course the defendants would have realized thereon a large profit, to wit: $2,108.64.

(11) That by reason of the manner in which they were shipped the insurance has been lost, and the defendants have lost their said profits.

(12) The defendants demand judgment for the dismissal of the complaint and for the above mentioned sum against the plaintiffs.

The demurrer was upon three grounds :

First. That the counterclaim does not state facts sufficient to constitute a cause of action.

Second. That it.is not a counterclaim of the character mentioned in § 501 of the Code of Civil Procedure, in that it is not a cause of action arising out of the contract or transaction set forth in the complaint as the foundation of plaintiffs’ claim, or connected with the subject of the action.

Third. That the counterclaim is not of the character specified in said § 501, in that it does not appear to be an action on contract other than that set forth in the complaint and existing at the commencement of the action.

The demurrer was sustained at special term. The appeal is from the interlocutory judgment entered thereon.

Construing all the allegations of the answer as favorably to the defendants as the rules permit, the answer merely shows that the plaintiffs should not have advanced their money on the draft without first obtaining clean -bills of lading, without any qualification whatever. The "plaintiffs were not the shippers of the goods, did not obtain the bills of lading from the carrier, but from Braun & Bloem, from whom the defendants received the goods. The plaintiffs were not the agents of the defendants, in the sense that imposed on them the duty of seeing to the manner of shipment of the goods or to the phraseology of the bills of lading, or of communicating to the defendants the mode of shipment or contents of said bills of lading.

All these and such like things were matter of concern between Braun & Bloem, on the one hand, and the defendant on the other. There being no duty, and consequently no breach, the defendants could not have suffered any damage from any act or omission of the plaintiffs in the premises, and hence the counterclaim alleged no cause of action against them. For these reasons, and without considering the other objections urged to the defendants’ answer on the ground that it contains conclusions instead of facts, the demurrer was properly sustained, and the interlocutory judgment entered thereon in favor of the plaintiffs must be affirmed, with costs.

Sedgwick, Ch. J., and Freedman, J., concur.


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    John Berenberg Gossler et al., Resp’ts, v. Jacob H. Lau et al., App’lts.

      New York Superior Court, General Term,

      Filed May 4, 1891.)

    Sale—Agreement to accept drafts—Liabilitee of acceptor.
    Plaintiffs agreed to accept manufacturers’ drafts for goods'sold defendants, who agreed to provide funds to meet the same before maturity, and guaranteed that all bills of lading accompanying the drafts would be genuine. A draft was drawn, accompanied by a bill of lading, the goods were shipped, but lost at sea, and no insurance recovered, through a defect in the bill of lading taken by the consignors, and plaintiffs brought an action to recover the amount of the draft. BelA, that the plaintiffs were not the agents of defendants, in the sense that imposed upon them the duty of seeing to the manner of shipment of the goods or to the phraseology of the bills of lading, and that that part of defendants’ answer, which sets this up as a default on plaintiffs’ part as a defense to their claim, was rightly stricken out;
    Appeal by defendants from order made at special term striking out portions of answer.

      Wing, Hill & Shoudy (Joseph A. Shoudy, of counsel), for app’lts; Hinrichs & Rudolph (Fred W. Hinrichs, of counsel), for resp’ts.
   McAdam, J.

—Without going over the facts which have been fully stated in the opinion filed on sustaining the interlocutory judgment entered on the demurrer interposed by the plaintiffs to the counterclaim of the defendants, we have failed to discover any abuse of authority by the court below in striking out portions of the defendants’ answer. As we said in disposing of the other ■appeal, the plaintiffs were not the shippers of the goods, did not obtain the bills of lading from the carrier, but from Braun & Bloem, from whom the defendants received the goods.-

The plaintiffs were not the agents of the defendants, in the sense that imposed on them the duty of seeing to the manner of shipment of the goods or to the phraseology of the bills of lading or of communicating to the defendants the mode of shipment or contents of the said bills of lading. There are no facts alleged from which any such duty may be implied. The drafts of Braun & Bloem were honored by the plaintiffs upon receiving bills of lading for shipments actually made by Braun & Bloem. There is no allegation that the bills of lading did not truthfully represent the facts as they were. There was nothing upon the bills of lading to apprise the plaintiffs that they were improper in form or ■different than Braun & Bloem or the defendants intended.

The plaintiffs were justified in honoring the drafts, and the defendants should make the amount paid good. The subsequent loss of the goods at sea cannot be visited upon the plaintiffs, who are innocent of any misconduct. Braun & Bloem are the guilty persons, if any wrong was done to the defendants, and if they have any remedy it is seemingly against them. The defendants relied on Braun & Bloem for the manner of shipment and the obtaining of proper bills of lading. Braun & Bloem were selected by the defendants for their integrity and ability, and if they were agents in the transaction they were the representatives of the defendants, and in contemplation of law, what they did the defendants did.

Under these circumstances, the familiar rule that where one of two innocent persons must suffer by the wrong of a third, the loss must fall upon him who gave the credit or imposed the confidence, may be invoked. The effort by the defendants to spell out a duty and breach on the part of the plaintiffs, by the use in their answer of conclusions and inference, without support from facts, has failed to make that duty or breach clear.

The matters stricken out were irrelevant and redundant, were properly stricken out, and the order striking them out must be affirmed, with costs.

Sedgwick, Ch. J., and Freedman, J., concur.


author: Freeman, J.

text:
    James F. Pendleton, App’lt, v. Alexander Johnston, Resp’t.

      (New York Superior Court, General Term,

      Filed May 4, 1891.)

    Attorney—Services—Evidence.
    Plaintiff Drought an action for professional services as an attorney rendered by bis assignor. It appeared that he had received tour times as much as he originally stated would be sufficient, and the only issue was as to whether any additional service had been rendered, and, if so, its value; this rested exclusively on his testimony, and he admitted still having an interest in the claim. Meld, that the jury were not bound by his testimony, especially as his testimony as to value constituted only an opinion, and that a verdict of six cents for plaintiff would not be disturbed.
    Appeal by the plaintiff from a judgment for costs entered by the defendant upon the verdict of a jury in favor of the plaintiff for six cents, and also from an order denying plaintiff’s motion to set aside the verdict and for a new trial.

      A. Edward Woodruff, for app’lt; David Leventritt, for resp’t.
   Freeman, J.

—The action was brought to recover the value of services claimed to have been rendered.to the defendant by plaintiff’s assignor, an attorney and counselor at law. The answer is substantially a general denial. At the trial, evidence was given on both sides, and the issues were submitted to the jury under a charge to which no exception was taken. The jury having found a verdict for the plaintiff for six cents only, and the exceptions appearing in the record being utterly untenable, the substantial question presented for consideration relates to the alleged inadequacy of the verdict The power of the court to set aside a verdict for inadequacy cannot be, and has not been, questioned. But whenever its exercise is invoked, it should be made to appear that the prevailing party received a verdict for an amount less than any view of the testimony, consistent with the right of such party to a recovery justifies.

The services sought to be recovered for in this action were claimed to have been rendered by plaintiff’s assignor to the defendant in connection with the failure of E. H. Jones & Go., of which firm the defendant was a member. It appeared at the ti’ial that, at the instance of the defendant, the plaintiff’s assignor was retained by a committee of creditors to represent the creditors of that firm and to assist the defendant, at the expense of those creditors, in compromising and adjusting the affairs of said firm, and that for the services performed by plaintiff’s assignor pursuant to such retainer he received a compensation at least four times as large as the amount with which he had declared from the start he would be satisfied. In view of these facts the controversy finally became narrowed down to the question whether any additional services beneficial to the defendant and not covered by the committee’s retainer were rendered by plaintiff’s assignor to the defendant, and if so, what their reasonable value was. Upon this question the state of the evidence is of such a character, especially in view of the admissions made by plaintiff’s assignor in the course of his cross'-examination, that the jury cannot be blamed for having come to the concldsion that, although some slight additional service was rendered, its reasonable value was merely nominal. I have carefully read and considered the whole of the evidence appearing in the case, and I fail to pereeive how the verdict can be disturbed. The extent of such additional service and its reasonable value rests exclusively upon the uncorroborated testimony of plaintiff’s assignor, and, inasmuch as he inferentially admitted on cross-examination that, notwithstanding the assignment of his claim under seal to the plaintiff, he retained some interest in the claim, the jury were not bound by his testimony, especially as his testimony as to value constituted only an opinion.

The judgment and order should be affirmed, with costs.

Sedgwick, Oh. J., and McAdam, J., concur.


text:
    Richard Deeves, Resp’t, v. The Richardson & Boynton Co., App'lt.

      (New York Superior Court, General Term,

      Filed May 4, 1891.)

    Contract—Breach of—Damages.
    Defendants wrote to plaintiff that they would furnish and set sixty-three hot air pipes in the wall of a dispensary which plaintiff had contracted to erect for $248. Plaintiff accepted it in writing. Defendants then endeavored to withdraw the estimate on the ground of a mistake in their calculation; and plaintiff refusing to allow them to do so, refused to fulfill their contract. Defendant procured another firm to do the work at an estimate of sixty-three pipes for $614, forty-one pipes for $402, revised plans reducing the number of pipes to forty-one, which were set up at a cost to plaintiff of $402. Held, that plaintiff was damaged only in the difference between $402 and the amount of defendant’s bid of $248, as nothing was lost by defendant’s breach except that amount, and a due compensation to be assessed by the jury for his trouble and work in obtaining a new bid.
    Appeal by defendant from judgment entered on verdict for plaintiff, and from order denying motion for new trial.

      Arnold & Green, for app’lt; David Thornton, for resp’t.
   Per Curiam.

—The plaintiff was a mason builder. He was about to make a bid for the building of the Eastern Dispensary. Before» putting in that bid he procured from the defendants a proposal as to furnishing sixty-one lines of hot air pipes to the building and setting them in its walls. The defendants wrote to the plaintiff that they would furnish and set hot air pipes in the wall of the dispensary for $208, which was afterwards competently changed to $248.

Upon receiving this proposal, the plaintiff accepted it in writing.

The defendants, for the purpose of making the proposal, had been referred, in order to know the quantity of work that was to be done, to plans and specifications made by architects for the building. When the proposal was made it was understood that sixty-three lines of pipe were to be furnished.

After the acceptance by the plaintiff, the defendants endeavored to withdraw the estimate, on the ground that there had been a mistake on their part in calculating the number of feet of pipe that was to be furnished.

There can be no doubt that, upon the plaintiff accepting the proposal, there was a contract obligatory on both parties. The attempt to withdraw the estimate by defendant, after the acceptance, was ineffectual. If there was a question on this point, the defendant did not ask that it be decided by the jury.

The defendants made a defense that the contract was to be set aside because of a mistake, made by them, in framing their proposal. The mistake did not refer to the form or words of the proposal but in calculating, as asserted, the number of feet of pipe. Several things might be said of this. It may be sufficient to say that the so-called mistake was the result of inexcusable negligence which the plaintiff did not induce or participate in. Such a mistake is not the ground of equitable interference.

The defendant’s withdrawing the estimate, and not performing, as he did not, the question remains as to the damages the plaintiff was entitled to recover.

The contract was special in its character and one of purchase and sale. This was known to both parties. The pipe was not to become the property of the plaintiff, and it would become, when the contract was performed, the property of the owners of the dispensary.

The benefit, as disclosed by plaintiff’s evidence, would be such as would accrue to the plaintiff from his making his bid in part upon defendants’ estimate, and the bid being accepted by the dispensary, his being able to perform that part of the work at the expense of paying- the sum fixed by defendants’ contract

The plaintiff testified that upon the defendants’ estimate in fact, he made his bid for the contract, which was afterwards awarded to him.

The contract provided that the owner should be at liberty to make any alteration, addition or omission in, to or from the contract, and the same should in no way avoid the contract, but would be added to or deducted from the contract by a fair and reasonable valuation.

The plaintiff recognized that what was furnished was to be furnished according to the architect’s plan and specification. In accepting defendants’ estimate, he wrote: “ I hereby accept your estimate, etc., all to be done according to plans and specifications as made by Messrs. Rose & Stone, architects, and to their satisfaction.” ,

From the nature of the benefit the plaintiff was to receive from defendants’ contract, it is manifest that if the work were done for a less sum than he was to pay the defendants, there would be no loss or damage, or if the work cost a greater sum, he would be compensated by receiving the excess of it beyond that to be paid to defendants.

He was obliged to pay a greater sum, which entitled him to a recovery but not for the sum of the damages awarded below.

After defendants’ breach the plaintiff procured the following . estimate from the Mott Iron Works : “We will furnish for Eastern Dispensary, etc., forty-one lines of square heating pipe, etc., as per flue section, submitted by Rose & Stone, architects, for $402. If dispensary should be piped as per specifications of Mr. Richard Deeves, calling for sixty-three lines of pipe, the estimate will be $614.”

In fact the architect had changed the plans so as to call for only forty-one lines of pipe, and these were furnished and set by the Mott Iron Works at a cost to plaintiff of the sum named in the estimate, $402. He was, therefore, damaged only in the difference between this sum and the amount of defendants’ bid, viz.: $248, and a due compensation to be assessed by the jury for trouble and work in obtaining the new bid. He was not entitled to a recovery on a basis of a cost of $614, made upon the specification of the plaintiff, by the Mott Iron Works. The sixty-three lines of pipe were not called for by reason of a change made in the architect's plan, as permitted by the clause of the plaintiff’s contract with the owners, that has been cited. And the fact that defendants agreed to furnish more pipe than was actually used and did not furnish it did not injure plaintiff, for it did not affect the sum plainly received for building. It did not cause the plaintiff to change his bid, and there was no proof of the effect, under the clause allowing the owner to change the work to be done, of forty-one lines of pipe being used instead of sixty-three lines.

By the contract in suit, the pipes that might be furnished -and set or those not used were not to be delivered to the plaintiff and to be his property. If the phrase in plaintiff’s acceptance, “ all to be done according to plan, etc., of Messrs. Eose & Stone, architects, and to their satisfaction,” were not inconsistent with defendant’s promise to furnish and set sixty-three lines, then the implication was the plaintiff would see that an opportunity was given to the defendants to set sixty-three lines of pipe. An omission so to provide would be a breach by plaintiff. The change in the number that was made, was made as we have seen by a contract, that existed at the time of plaintiff’s acceptance. The plaintiff cannot claim a loss on account of something that would be a breach on his part. That is, the defendant could not have set the excess of twenty-one pipes by reason of the breach of the condition precedent to furnish place and opportunity for them to beset.

For these reasons the plaintiff was not entitled to recover the difference between defendants’ bid and $614. Rothing was lost, by defendant’s breach beyond the difference between bid $248 and the bid of the Mott Iron Works, $402. The amount he would receive as his contract, which comprised his whole interest, was not lessened except this difference.

As the contrary view was upheld at the trial there should be a reversal. Judgment and order appealed from reversed and new trial ordered, with costs to be abide the event.

Sedgwick, Ch. J., and Freedman, J., concur.


text:
    James H. Jones, App’lt, v. The Metropolitan Elevated Railway Company et al., Resp’ts.

      (New York Superior Court, General Term,

      Filed May 4, 1891.)

    1. Verdict—Contrary to evidence—Setting aside.
    In an action for damages to the rental value of plaintiff’s premises-caused by the defendants’ elevated railroad, the uncontradicted evidence on behalf of plaintiff was that the structure was distant from the premises about twenty feet; that there was a switch directly opposite; that trains passed every few minutes, and sent out smoke and steam that enveloped the premises; that the light of the store was greatly diminished; the rental value reduced, and that the road had been in operation four years. Held, that a motion for a new trial, made after a verdict of six cents for plaintiff, should have been granted, as it was contrary to the evidence.
    2. Costs op course—Actions concerning real property.
    The complaint alleged that plaintiff had certain rights in a street, and that they constituted an easement in- the bed of the street which attached to his abutting property, and that the defendants had taken no steps to condemn the easement, but had invaded the same; the answer denied any information sufficient to form a belief as to these allegations. Held, that upon the pleadings, the title to real estate came in question, and plaintiff was entitled to costs of course on a judgment in his favor, under § 3228 of the Code of Civil Procedure.
    Appeal by plaintiff from a judgment in favor of defendants, entered on a verdict for plaintiff for six cents damages ; from an order denying plaintiff’s motion for a new trial, on the ground that the verdict was for insufficient damages, and from an order refusing to allow the costs of the action to the plaintiff.

      G. L. Rives, for app’lt; Edward C. James, for resp’t.
   Per Curiam.

—So far as a judgment may be affected for error upon the trial there is no reason for reversal.

The damages given by the jury were, according to the testimony, insufficient, and the plaintiff was entitled to a new trial upon his motion. Section 999, Code Civ. Pro.

The action was for damages to the rental value of plaintiff’s house, caused by the building and operation of defendants’ railway along that house.

The evidence in behalf of plaintiff was not contradicted. The defendants called no witnesses.

The structure was about forty feet wide, with three tracks and a track walk on each side. It was floored over with strips of wood with small spaces between them. The structure was distant from plaintiff’s premises at one point twenty feet, and at the nearest 18.53 feet. The trains passed every few minutes, and such as ran to Rector street were switched in front of the premises. The locomotives sent out steam and smoke. It was proved that on damp days the steam sent out would occupy the entire width of the street and hug the buildings on either side of it.

It was proved by a competent witness what was the percentage of light cut off from the building by the structure and passing of the trains. The amount cut off was important. The light of the store was diminished by the structure and the trains, and the light of the floor above was diminished by the trains and the smoke and steam sent off by locomotives in front of the house.

A witness gave evidence as to the loss of rentals. Although he was an agent of the plaintiff, his testimony was uncontradicted, and there was no reason to believe that he did not testify truly. His testimony included the statement of many and different sums and quantities. It was difficult to keep the testimony in mind and to make a rational deduction from it. In reality, such a case is not one fit for submission to a jury, although the rules of law require that it should be tried by a jury.

It is to be further observed that no peculiar benefit was done by defendants’ road to the premises.

The jury in finding that the plaintiff had suffered in four years but six cents damages from the annoyances that have been partly described, must have neglected their duty to give effect to the testimony, however difficult and laborious the performance of the duty might be. The hardness of the task probably led to its not being thoroughly done, and the jury then must have thought that the plaintiff had not proved his case with certainty.

The motion for a new trial should have been granted, and as the charge was correct and the defendants not at fault. Robbins v H. R. R. Co., 7 Bos., the costs of the trial and the costs of this appeal are ordered to be cut in the action and to abide the event. The order denying this motion is reversed and a new trial ordered, with costs as above stated.

Upon the entering of judgment, the clerk refused to tax costs for plaintiff and taxed defendants costs and inserted them in the judgment. The correctness of the clerk’s action depends, under § 3228, Code Civ. Pro., upon whether “ a claim of title in real property arises upon the pleadings.” If it does, the plaintiff should have the costs. If it does not, the taxation was correct.

The sixth subdivision of the complaint is that the plaintiff has certain rights in Trinity place, and that those rights constitute an easement in the bed of the street, which attaches to his said abutting property. The subdivision contains the averment that the defendants have taken no proceeding to condemn the easement.

The answer denies any knowledge or information sufficient to form a belief as to the allegations of the sixth paragraph of the complaint.

This, of course, puts in issue the plaintiff’s title to the easement, which is real estate.

This is a material issue. The right of defendants to use the streets as they do use, is valid, excepting that they have not given compensation to the owners of the easements that they have taken. They, therefore, are not liable to one not entitled to compensation, that is, to one who is not owner. This is true, while it is also true, that the wrong:doing makes the defendants liable for damages as trespassers. That is, they are so to one who is owner of the easement.

The motion for retaxation should be granted, and the order denying that motion be reversed, with ten dollars costs.

Sedgwick, Oh. J., and Me Ad am, J., concur


author: Newburger, J.

text:
    John L. Douglas, Resp’t, v. William H. Leonard, App’lt.

      (City Court of New York, General Term,

      Filed April 24, 1891.)

    Parties—Non-joinder.
    Plaintiff was employed as an accountant in settling up the affairs of an estate by two executors, subject to the approval of a third executor, who thereafter consented, and throughout his employment he consulted with all three executors, and the services rendered by him were for their benefit. Held, that he could not recover in an action brought for such services against one of the executors alone, another being living.
    Appeal from, a judgment for plaintiff, entered on a verdict of a jury, at a trial term. '

      Edwards & Odell, for app’lt; W. W. Badger, for resp’t.
   Newburger, J.

—This action was brought to recover for services as an accountant.

George W. Parsons, Mrs. Reed and defendant were executors •of the will of Ebenezer Reed, deceased, and Parsons and defendant were trustees under the same will.

It appears that plaintiff and Parsons were brothers-in-law, and. occupied offices in the same building.

Plaintiff and defendant met at Parsons’ office, and the subject-of an accounting and proper examination of the affairs of1 the Reed estate and other matters were discussed between plaintiff, Parsons and defendant, and plaintiff was employed subject to .approval by Mrs. Reed, who subsequently consented to "such employment. At the close of plaintiff’s case defendant moved for a ■dismissal of the complaint; first, because there was no personal or individual employment of the plaintiff by the defendant; second, that the proofs show that the employment of the plaintiff, if any, was by Parsons, Mrs. Reed and defendant, and Mrs. Reed being alive, should have been joined, which motion was denied, and defendant excepted. We think the trial justice erred. The motion was a proper one and should have been granted.

Plaintiff’s testimony and exhibits show that, throughout his ■employment, he consulted with Parsons and Leonard, and communicated with Mrs: Reed, and that the services rendered by him were for their benefit. If there was any employment, it was by Parsons, Mrs. Reed and the defendant.

•For these reasons the judgment must be reversed and new trial ordered, with costs.

Ehrlich, Ch. J., concurs.


author: Van Wyck, J.

text:
    Mehrhof Bros. Brick Mfg. Co., App’lt, v. Frederick Wood, Resp’t.

      (City Court of New York, General Term,

      Filed April 24, 1891.)

    Trial.
    The court becomes the trier of both the law and the fact when both parties move for the direction of a verdict.
    Appeal from a judgment entered upon the verdict of a jury Tendered by the direction of- the court.

      Lilian H. Andrews, for app’lt; Artemus B. Smith, for resp’t.
   Van Wyck, J.

—This action was upon a promissory note for $1,500 to the order of plaintiff, and made by the defendant. There- is a conflict of evidence as to the circumstances under which the note was given; the plaintiff claiming that it was given in consideration of plaintiff’s agreement to return two notes of $750 each to one Russ, the maker thereof, and the defendant contending that it was given without consideration and as a mere accommodation to the plaintiff’s payee, to be paid at maturity by the plaintiff. At the close of the testimony the defendant requested the court to direct a verdict in his favor, and the plaintiff moved for a verdict in its favor, and no requests were made by either party to go to the jury. The court denied plaintiff’s motion and directed a verdict for the defendant It is the established rule in this state, that where upon a trial the defendant, after the close of the testimony, moves to dismiss the complaint, or for the direction of a verdict, and the plaintiff requests the court to direct a verdict, this is in effect an agreement to submit the questions of fact to the court; and if there is any evidence to uphold the decision it will be sustained. In the case of Stratford v. Jones, 97 1ST. Y, 589, the late Judge Rapallo applied this rule as follows:

“But both parties requested the court to direct a verdict. Under these circumstances it has often been held that the parties must be deemed to have submitted the questions of fact, if any, to the decision of the court and waived the right to go to the jury.”

And this rule is adhered to in Provost v. McEnroe, 102 N. Y., 650, and in Kirtz v. Peck, 113 id., 225 ; 22 N. Y. State Rep., 733, and when applied to the case now under consideration must lead to an affirmance, as disputed questions of fact were submitted to and determined by the judge at the trial.

Judgment affirmed, with costs.

Ehrlich, Ch. J., and Newburgee, J., concur.


text:
    John Brady Resp’t, v. The Coachman’s Benevolent Association, App’lt.

      (City Court of New York, General Term,

      Filed May 2, 1891.)

    Benefit or mutual Am societies.
    A member in arrears for dues amounting to less than sick benefits due him is in good standing. A by-law providing that a member three months dues in arrears is not entitled to sick benefit until three months after same are paid is unreasonable and inoperative.
    Appeal from judgment entered on verdict of jury in favor plaintiff.

      G. R. Carrington, for resp’t; Kenneson, Crane & Alling, for app’lt.
   Van Wyck, J.

—The plaintiff became a member of the Coachman’s Benevolent Association, a corporation, in February, 1870, which is admitted by defendant as follows, at folio 40 of the case: “It is admitted that the plaintiff has paid to the defendant $120.50 in dues, being dues for twenty years and one month, at the rate of fifty cents per month, and ending in March, 1890.” This action was begun on March 13, 1890, to recover $700, being sick benefits at the rate of ten dollars per week from November 4, 1888, at which time plaintiff claims that he was sick and disabled, and so reported to the association on that day. The defense was that the claim had been compromised by the payment of seventy dollars as settlement of a disputed claim, and that plaintiff was not a member in good standing. The by-laws of the association provide as follows: “ Article YI. Benefits. Sec. 2. Any person in arrears for three months’ dues ($1.50) on the books, shall not be entitled to benefits until three months after such arrears shall have been paid.” Sec. 4. “ Every mm. ber in good standing on the books, in case of sickness or disability to labor, .shall be entitled and receive ten dollars per week during continuance of such a sickness or disability, unless the same be brought on by improper conduct.”

The evidence, in reference to the payment of the dues, of the secretary and the books of the association, was that plaintiff -was always in good standing up to April 7, 1889, upon which day he paid two dollars and that that made his standing good up to May 27,1889, and that he was three months in arrears on August 27, 1889, and he continued in arrear until December 1, 1889, when he was six months and four days in arrear, but that he paid five dollars on December 1, 1889, which amounted to dues for ten months and hence he had then paid his dues from May 27, 1889, to March 27, 1890. The association claimed first that this condition in reference to payment of his dues was not controverted and hence that its counsel’s exception to the judge’s charge by which it was left to the jury to determine whether or not he was in arrear' on August 27,1889, was well taken, and secondly, that if as matter of law he was three months dues in arrears on August 27, 1889, and continued so until December, 1889, that he was not-entitled to sick benefits -until three months after December 1, 1889, that is, until March 1, 1890, for the reason that the by-laws, § 2, provide that “Amy person in arrears for three months’'dues ($1.50), on the books, shall not be entitled to benefits until three months after such arrears shall have been paid.”

It would seem that in leaving it to the jury to determine whether or not plaintiff was three months in arrears on August 27, 1889, the judge had, if anything, been too liberal to the defendant, as adjudicated authority would have justified him in instructing the jury that it would make no difference whether or hot the defendant on August 27, 1889, had failed to pay his dues since May 27, and continued in default until December 1, 1889, provided that they should find that plaintiff had become disabled on November 4, 1888, continued so until the beginning of this action, and had properly notified the association of his disability, and had not compromised his claim for seventy dollars, but had properly applied the seventy dollars on account of his claim; for these conclusions of fact would show that on August 27, 1889, when it was claimed that the defendant was in default $1.50, three months’ dues, the association itself was in default in its payment of the sick benefits due the plaintiff from November 4, 1888, amounting to about $400. It would, indeed, be strange law and bad morals which would hold him in -default for his dues and at the same time exonerate the association from payment of the sick benefits. The rule of law is that where there has been a part performance by a plaintiff, the defendant cannot avoid the performance of his covenants, by setting up a breach by the plaintiff of the residue.

The plaintiff certainly made part performance by promptly paying his monthly dues for more than nineteen years, that is, from February 27, 1870, to May 27, 1889, and up to that time it appears that the association had successfully avoided the performance of its covenants, as the jury finds that at that time it had defaulted about forty times in the payments which it had covenanted to make weekly to a member disabled by sickness.

And in addition to what has already been stated, it can be confidently asserted that two courts of this city have already declared that a by-law similar to § 2 of this association’s by-laws was void and must not be enforced, for the reason that it was too harsh and oppressive.

The general term of court of common pleas, in which Judge Brady, writing, says that the by-law of the defendant association, in the case there under consideration, provides that “ any member who shall be three or more months in arrears, shall be deprived of benefits for three months after liquidating the same; ” and continuing, says: “It is not only unreasonable, but oppressive and detrimental to the interest of the corporation, and one which, being fully understood, it seems, would, prevent persons from becoming members of the society.’’

And a judgment in this last case for a plaintiff who, being in arrears six months, paid up and claimed sick benefits within a month thereafter, was affirmed. Cartan v. Father Matthew Society, 3 Daly, 20. And Chief Justice Me Adam, in Neligan v. Typographical Union, 2 City Ct. Rep., 263, says that the city court, in following the case against Father Matthew society, holds that “the governing rule with regard to corporations is that their by-laws must be reasonable and all those which are vexatious, unequal, oppressive or manifestly detrimental to the interest of the corporation or its members are void, and concluded by holding that a bylaw like the present, operating as a forfeiture of benefits, after the corporation had accepted all the dues in arrear, was inoperative as a forfeiture, and that the beneficiary was entitled to recover. The decisions are based on sound grounds of public policy and find ample warrant and support in the law.”

All the disputed questions of fact were carefully and properly submitted by the trial judge to the jury whose verdict was proper, and as no error was committed against the defendant, the judgment must be affirmed, with costs.

-Ehrlich, Ch. J., and FTewburger, J., concur in result.


author: McCarthy, J.

text:
    Tobias, an Infant, by Guardian ad litem, App’lt, v. The Broadway & Seventh Avenue R. R. Co., Resp’t.

      (City Court of New York, General Term,

      Filed May 8, 1891.)

    Infants—Right to sub as a poor person.
    Section 458 oí the Code Civ. Pro., which provides that “apoor person, not being of ability to sue, * * * may apply, by petition, to the court * * * for leave to prosecute as a poor person * * *" applies to infants as well as adults.

      Appeal from order of special term requiring plaintiff to give security for costs.

      Love & Rott, for app’lt; Root & Clarke, for resp’t.
   McCarthy, J.

—The question is, has the infant plaintiff now the right to sue as a poor person, although the guardian ad litem, when applying for appointment as such, swore he was worth $250 ?'

I think the right of the infant plaintiff to sue as a poor person is a substantial right, and one that does not depend upon the responsibility of the guardian. Section 458, Code of Civil Procedure, declares that a poor person, not being of ability to sue * * * may apply by petition. Section 459 states what is required to be set forth in the petition, and § 460 declares that the court, if satisfied of the truth of the facts alleged in last section, may by order admit him to prosecute as a poor person. See, also, § 468.

This certainly is not confined to adults, but means infants as well. The law cannot and it never was the intention of the legislature to depiive an infant who was poor from prosecuting a good cause of action, for the court only grants the order on condition that the court is satisfied that the infant plaintiff has a good cause. Ror for the same reason can it be contended that unless security for costs is furnished by infant plaintiff suing as a poor person, he cannot proceed.

Section 469, which says that the guardian shall be responsible for costs, and § 3268, which says: “The defendant * * * may require security for costs where the plaintiff - was * * * an infant whose guardian ad litem, has not given such security,” means in a proper case. For the provisions must be qualified and limited by § 458, which gives the infant plaintiff the right to sue as a poor person,” and § 468 declares: “ Where an infant has a right of action he is entitled to maintain an action thereon, and the same shall not be deferred or delayed on account of his in7 fancy.” Sections 458 and 468 of Code of Civil Procedure are as mandatory and peremptory as § 3268.

In determining the question, however, we must take the act in general and endeavor to reach the intent and purpose of the legislature.

The court have, with the exception of one or two cases, adopted this view, for they have allowed the infant plaintiff against the demand of the defendant for security for costs, to prosecute as a poor person, even where a poor and irresponsible person was guardian. It could only be upon and for the reason that when the infant plaintiff complied with §§ 458, 459 and 460, he was entitled to the order.

If the plaintiff, being a poor person, has the right to sue when he has a good cause of action, and shall not be deferred or delayed from maintaining same on account of such infancy, see § 468, and that the fact of such suing as a poor person shall relieve him from liability for costs, see § 461, how can the guardian ad litem, who after all is but the representative of the infant plaintiff as well as an officer of the court, become liable for costs or be required to give security in such case.

It is the infant plaintiff against whom or for whom the judgment is entered, and the guardian is only personally liable to the extent of the costs in a proper case. Section 458, applying to this special class of cases, limits. See §§ 3268 and 468. See Hotaling, Jr., an Infant, v. McKenzie, 7 N. Y. Civ. Pro., 321, 322, 323 ; Nichols v. Cammann, 2 id., 375, 377 ; Irving, an Infant, v. Garrity, 4 id., 105, 107, 108 ; City Court, 5 N. Y. State Rep., 913.

It is true that in many of the cases decided it appeared that the guardian was poor and irresponsible. But this in my opinion ■only proves the correctness of the foregoing.

That it is not a condition in order to entitle infant plaintiff to maintain cause of action as a poor person that he should give security for costs or that the guardian ad litem should be a person of means.

The provisions of the Code of Civil Procedure are broad enough to permit an infant to sue in forma pauperis. See Erickson v. Poey, Court of Appeals, 5 Civ. Pro., 379; 7 id., 321, 322, 323 ; Hayes, an infant, v. Second Avenue R. R. Co., 5 id., 155.

The plaintiff was in time in making his application. Shearman by guardian v. Pope 106 N. Y., 665 ; 8 N. Y. State Rep., 710.

The order should be reversed and the infant plaintiff allowed to sue as a poor person.

Fitzsimohs, J., concurs.


author: Newburger, J. J.—The

text:
    Cyrus Schofield, Resp’t, v. Samuel Kreiser, App’lt.

      (City Court of New York, General Term,

      Filed April 24, 1891.)

    Action to becoveb a chattel—Title to maintain—Evidence.
    Where, in order to maintain his action, plaintiff must prove his title to the chattels involved, and it appeared that he had leased them to one F., the agreement being that F. should pay certain sums of money before the title should vest in him. Held, error to exclude testimony offered by defendant tending to show the amount of the payments made.
    Appeal from a verdict of a jury at trial term.

      Abram Kling, for app’lt; McAdam & McCrea, for resp’t.
   Newburger, J. J.—The

—The plaintiff leased to one Fairbanks certain chattels. The agreement between plaintiff and Fairbanks provided that Fairbanks should pay certain sums of money, as therein set forth; and it further provided that no title should be acquired by said Fairbanks until the said payments had been made as agreed. If all the payments had been made by Fairbanks, as specified in the agreement, the title would have vested in him. On the trial defendant’s counsel on cross-examination of plaintiff’s manager, at fol. 38, asked the following questions:

“Q. And you received from Fairbanks how much money?” Objected to as immaterial. Objection sustained. Exception.
“ Q. Will you tell the court and jury how much money in all you received from Fairbanks between the month of August, 1885, and the commencement of this action ? ”

Same objection, ruling and exception.

We think the trial justice erred in excluding the questions. They tended to show the payments made, and if they amounted to the sum agreed to be paid, divested the plaintiff of the title to the chattels and vested the title in Fairbanks, and would have prevented a recovery by plaintiff in this action.

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

Yan Wyok, J., concurs.


text:
    Susan Treanor, Resp’t, v. The Manhattan Railway Co., App’lt.

      (City Court of New York, General Term,

      Filed May 4, 1891.)
    Negligence—Elevated railroads—Drip pans.
    Shoveling accumulated refuse from elevated drip pans into carts standing on the street below, so as to fall upon passers by, is such negligence as will justify verdict against the company.
    Appeal from judgment entered on verdict in favor of plaintiff.

      Davies & Rapadlo, for app’lt; Charles D Ridgway, for resp’t.
   Van Wyck, J.

—This action was brought by a lady for damages for personal injuries caused by the carelessness with which the accumulated refuse of a drip pan of the elevated railroad was being removed from it into a cart standing on the street below. These drip pans are long, shallow sheet iron pans, about five feet wide, attached to and under the superstructure of the elevated railroads, reaching across the avenues and hanging directly over the crossings laid for and used by foot passengers. The construction of these pans was in obedience to a public demand for the protection of persons and their wearing apparel, especially the costly apparel of ladies, from the dripping of oil from the engines, as well as from the falling of small articles and broken parts of machinery and structural iron.

The method adopted by the elevated railroad of removing from these drip pans the accumulated refuse, is, first, to have two men shovel it into a heap on one side of the pan, and then to have them one on either side of the heap shovel it into a cart standing on the street about fourteen feet below.

The evidence in this case was that while these men were so shoveling the refuse from the pan into the cart below, a fireman, ever alert, saw falling with the dust, dirt and refuse an empty soda water bottle, which first struck the tail board of the cart and then rebounding struck this lady upon the side of her head ; that she threw up her hands and screamed and was caught by him and led from the avenue crossing to the sidewalk.

It was also in evidence that she was severely injured and was confined to her bed for four weeks. Chief Justice Ehrlich, sitting at trial term, submitted this evidence to the jury, with instructions that it was for the jury to determine whether or not the * injuries, if any, sustained by this lady were caused by the negligence of these two men, or the cartmen, all of whom were the servants of the company, and it is against this ruling which the company, through able counsel, now makes complaint, contending that it was incumbent upon the plaintiff to show the occurrence of prior accidents similar to this one in order to establish negligence in doing business in a method not obviously and notoriously dangerous, and claiming that the method adopted by them for removing this refuse was the best that could be adopted and had long been in successful operation, and that plaintiff has not proven that any accident had heretofore happened from its operation.

To sustain this contention and claim the defendant relies mainly upon the rulings in Lafflin v. Buffalo, etc., Railroad, 106 N. Y., 137 ; 8 N. Y. State Rep., 596, and quotes freely from the opinion of Judge Earl, writing for reversal of a judgment in favor óf a lady who sued for damages for injuries sustained by her while stepping from a car to the station platform, and in which case her only complaint was that- the platform was too far from the car, the space between them being about two feet, and in which she made no claim that human force had contributed to the proximate cause of the accident, but her complaint was directed against the very nature of the inanimate proximate cause of her injuries, and not against its present bad condition or its improper original construction, and in that case the court rightly held that she could not recover, as the evidence showed that the platform had been properly constructed; that the space between it and the car was no greater than required by the exigencies of the business and operations of the railroad; that it had been used for many years; that thousands of men, women and children had passed from it to the cars without injury, and that she had offered no evidence to assail either its original or present condition, but relied wholly upon the nature of its construction as relating to its proximity to the cars.

How different the case now under consideration, for here no complaint is made against the nature, construction or condition present or past of the drip pans, but plaintiff has directed her efforts at the proximate human cause of her injuries, the carelessness of the company’s servants in so removing the refuse as to shovel an empty bottle, not into the cart, but on its tail board, and from which it rebounded to plaintiff’s head.

Suppose the Lafflin case had been presented to tho court of appeals under these conditions: That the lady, while stepping from the car to the platform, had been struck upon the head with the brass nozzle of a rubber hose falling from the hands of a porter who was on the top filling the water tanks of his cars, what consideration then would have been given to argument of counsel that as the company had adopted the best method of filling the water tanks of its cars, the injured person must first affirmatively show that some poor unfortunate had previously met with a similar accident, and that until this had been done, the company’s porters could go on dropping rubber hose and brass nozzles down upon the heads of retreating passengers ad libitum. Instead of relaxing the established rules of law, which hold parties to a strict responsibility for the negligence of their servants, it is absolutely necessary to hold the elevated railroads to a strict responsibility as regards the construction, maintenance and careful managément of these drip pans in order that the hundreds of thousands of men, women and children who are daily compelled to pass under their structure, which is nothing more than a continuous iron bridge, may be protected from the annoyance of dripping oil and falling refuse and from the danger of falling pieces of broken machinery and iron. There seems to be no merit in the other objections raised by the defendant on this appeal, and the plaintiff’s recovery is not excessive.

Therefore, her judgment is affirmed, with costs.

Newburg-er, J., concurs.


author: Van Wyck, J. Ehrlich, Ch. J. (dissenting).

text:
    Floyd Clarkson, App’lt, v. Philip L. Meyer, Resp’t.

      (City Court of New York, General Term,

      Filed April 24, 1891.)

    1. Trial—Right to affirmative must be ascertained from the pleadings ALONE.
    In an action on a promissory note, the only allegation of the complaint denied in the answer was in reference to the ownership of the note that “ the note was, for value received, transferred and delivered to this plaintiff,” the answer alleging that “ upon information and belief defendant denies that said note was transferred or delivered to plaintiff for value received.” At the trial the defendant’s counsel admitted the naked ownership of the note in the plaintiff. Held, that the plaintiff was entitled to put the note in evidence, and thus prove that he was the holder of the note before maturity, and for full value, and therefore he held the affirmative. and was entitled to the opening and closing address to the jury.
    2. Same—Substantial right—Denial of which ground for reversal.
    The right to open and close to the jury by the party holding the affirmative is a substantial right, the denial of which alone will justify the reversal of a judgment.
    Appeal from judgment entered on the verdict of a jury in favor of defendant.

      Emanuel J. Myers, for app’lt; James Dunne, for resp’t.
   Van Wyck, J.

—The complaint was upon a promissory note-made by defendant Meyer to his own order, and endorsed by him and one Yeaton. The only allegation of the complaint which it was necessary for plaintiff to prove against Meyer (the only defendant at trial) that was denied by the answer was that “ the note was, for value received, transferred and delivered to this plaintiff.” This was the only allegation in the complaint in reference to the ownership of the note. The denial in Meyer’s answer was as follows : “ Upon information and belief he denies that said note was transferred or delivered to plaintiff for value received.”

This was the condition of the pleadings when the trial began, and the plaintiff had to come prepared to prove the truth of that allegation of his complaint by affirmative evidence, and he was so-prepared with the note, the inanimate witness. He was met here by this admission from defendant Meyer: “Defendant’s counsel admits the naked ownership of the note in the plaintiff.” This was not enough, the plaintiff was entitled to more, and he availed himself of his rights and put the note in evidence and then rested, and thereupon he had in law proved not only that he was its holder but that he was so before maturity and for full value, and hence it follows that the plaintiff held the affimative and was entitled to the opening and closing address to the jury, whether the question as to who holds the affirmative is to be ascertained from the pleadings alone, as the court of appeals has held in Lake Ont. Bank v. Judson, 122 N. Y., 278 ; 33 N. Y. State Rep., 459; or from the rule which prevails in some other states, that the party who holds the affirmative can be ascertained both from the pleadings and the oral admissions in open court at the commencement of the trial. The affirmative and the consequent right to make the closing address to the jury by the plaintiff was in this case now on appeal a substantial right, the denial of which entitles him to a reversal of the judgment,, and that he was so denied appears in the record, at folio 220, when the testimony was closed as follows: “ Plaintiff’s counsel asks leave to sum up to the jury last.” “ Motion denied.” “ Plaintiff excepts.” That the right to open and close to the jury by the party holding the affirmative is a substantial right, the denial of which alone will justify the reversal of a judgment, was squarely passed upon by the court of appeals in Conselyea v. Swift, 103 N. Y., 604; 4 N. Y. State Rep., 278, in which Judge Danforth, writing for reversal, says: “It was, therefore,for the defendant to establish the defense set up, and he has thus held the affirmative, he had the right to open and close, and the learned trial judge-erred in ruling to the contrary. The judgment appealed from should,' therefore, be reversed and a new trial granted.” In the Lake Ont. Bank case, 122 N. Y., 278; 33 N. Y. State Rep., 459, the rule is laid down that in order to ascertain who has the affirmative, the investigation must be confined to an examination of the pleadings only, and that no consideration must be given to the oral admissions at trial.

. And Judge Bradley in his opinion filed in that case on October 7, 1890, says, “ The question arises whether the oral admission at the trial of the plaintiff’s claim for the amount of the defendant’s-overdraft, entitled him to the right of the closing argument on the final submission of the case to the court for determination. And that depends upon the question whether the affirmative of the issue, with a view to such a right, must be ascertained from the pleadings, or may arise from admissions orally made at the trial. The issues to be tried can be ascertained only by reference to-the pleadings, and they must govern so far as relates to the right of the parties to open the case at the beginning, and conclude the argument at the close of the trial. The admission of a fact upon the trial is evidence merely. The test is whether, without any proof, the plaintiff, upon the pleadings, is entitled to recover upon all the causes of action alleged in his complaint.”

In the points an unjustifiable criticism is made upon the case of Katz v. Kuhn, 9 Daly, 166, for it can be safely said that that case is good law. Judge Van Hoesen in writing to sustain a trial judge of this court who had ruled that a counsel who appeared for three defendants, one of whom had admitted in his answer all the allegations of the plaintiff’s complaint and setup the affirmative defense of usury, had the right of closing to the jury, says:

“At the beginning of the trial, the counsel for all of the defendants (Kuhn, the maker and Boediger and Koenig endorsers of the note), claimed the right to open the case, and said that the action was on a note, and the defense was usury. Kuhn, the maker was-entitled to begin, for he had the burden of proof upon him, and it was not necessary for the plaintiff to prove the demand and notice of non-payment in order to recover against him. It was not in the power of the plaintiff to deprive him of that right by joining, as defendants in the action, the two endorsers. If it were erroneous for the court to deny the opening to the plaintiff as against Boediger and Koenig, it would have been quite as erroneous to deny Kuhn the opening on the issue joined between him and the plaintiff."

After examination and consideration of the whole case on appeal, it is concluded best to reverse the judgment and grant a new trial, with costs to appellant to abide the event.

NewbttRGER, J., concurs.

Ehrlich, Ch. J. (dissenting).

—The court of appeals, in Lake Ont. Nat. Bank, v. Judson 122 N. Y., 278; 33 N. Y. State Rep., 459, holds that the test in determining which side has the affirmative of the issue, is to inquire whether, without any proof, the plaintiff, upon the pleadings, is entitled to recover upon all causes-of action alleged in his complaint. See page 284. We would willingly subscribe to this- view of the law but for the fact, in which the trial judge no doubt acted, that our appellate tribunal, the court of common pleas, has decided that the right to open and close the case is to be determined, not from the pleadings alone, but from the admissions of counsel, at the commencement of the trial. Katz v. Kuhn, 9 Daly, 166.

Judge Van Hoesen, in that case, says: “It is difficult to see any good reason why the form, in which the defendant admits that the plaintiff will be entitled to recover, unless an affirmative defense is established, should control the substantial rights of the parties,’’ and following the same line of argument he states: “ There is no good reason for a distinction between the effect of an admission in the pleadings and the effect of an admission made at the trial,” and a judgment in an action in which the defendant has been awarded the affirmative was, under circumstances similar to those disclosed here, affirmed.

We must follow Katz v. Kuhn, supra, until the common pleas reconsider its rule. The defense to the note sued upon was fraud,' and it was established to the satisfaction of the jury, for they found a verdict, in favor of the defendant. When the fraud was proved it became the duty of the plaintiff to show that he was a bona fide holder for value, that is to say that he parted with money or something of value on the faith of the note sued upon. Coddington v. Bay, 20 Johns., 637 ; Stalker v. McDonald, 6 Hill, 93 ; Farrington v. Frankfort Bank, 24 Barb., 555 ; Moore v. Ryder, 65 N. Y., 438; Canajoharie N. Bank v. Diefendorf, 123 id., 191 ; 33 N. Y. State Rep., 389.

The plaintiff parted with nothing here unless it be a check of $150, and in reference to that the plaintiff made no request for a verdict for that amount The plaintiff tried the case on the theory that he was entitled to the whole amount claimed or nothing, and he is bound by the position he then took.

The defendant’s counsel requested the trial judge to charge that: “ If plaintiff, in taking the note in suit, paid only $150 in cash to Mr. Greaton, then the plaintiff can recover only the amount so paid.” The court refused so to charge, and the plaintiff apparently acquiesced in this ruling, a circumstance confirming the plaintiff’s theory that he was entitled to all or nothing. In addition to this, the plaintiff was the only witness as to the payment, and being interested, the jury are not bound to believe his statement in that regard. Gildersleeve v Landon, 73 N. Y., 609 ; Honegger v. Wettstein et al., 95 id., 252-261. The plaintiff did not move for a direction in his favor. Indeed he tried the case on the assumption that the jury would award him all he demanded. It was misplaced confidence. It has been held that by not asking the court to direct a verdict in his favor, the party conceded that there was sufficient evidence to carry the case to the jury; and having consented to a decision by that tribunal, and having taken his chances of a favorable verdict, which would have concluded his opponent, upon the facts, he should not afterwards be permitted to allege that the verdict is without evidence, or insufficiently supported by the evidence, and, for that reason, against law. Rowe v. Stevens, 34 Super. Ct. R., 436; Sickels v. Gillies, 45 How. Pr., 94; Pollock v. Brennan, 39 Super. Ct. R., 477. For these reasons, and those assigned by the learned trial judge in his opinion, and denying the motion for a new trial, the judgment appealed from will be affirmed, with costs.

Judgment reversed.


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    Elizabeth M. Levin, Resp’t, v. The Standard Fashion Co., App’lt.

      (City Court of New York, General Term,

      Filed April 24, 1891.)

    Master and servant—Wrongful dismissal—Damages.
    In an action to recover damages for plaintiff’s dismissal from defendant’s employ, it appeared that plaintiff was employed by defendant as an editorial writer, under a written agreement that “she was to render services to the satisfaction of the company ” for one year. There was no evidence of dissatisfaction on the part of defendant. Plaintiff testified that the president of the defendant dismissed her after treating her in a brutal manner. This he denied; and testified that he did not dismiss her, and that he subsequently offered to re-employ her for similar service. Held, that a judgment for plaintiff would not be reversed on the ground that defendant was the sole judge as to whether her services were satisfactory or not, and thus had a right to dismiss her.
    Appeal from judgment for plaintiff, entered upon the verdict of a jury.

      Wm. B. Ellison, for app’lt; Theo. N. Melvin, for resp’t
   Van Wyck, J.

—Miss Levin, the plaintiff, entered the employment of the defendant company under a written agreement by which she was to render services to the satisfaction ” of the company, as an editorial writer on its journal of fashion, for one year, at twenty-five dollars per week for the first six months, and thirty dollars per week for the remainder of the term.

The plaintiff brings this action, claiming that on March'9,1887, i Mr. Koewing, the president of the company, dismissed her after treating her in the most brutal manner, by shaking his fist in her face and calling her a liar and a thief in the presence of the other. employes of the company. However, Mr. Koewing denied all of' this, and testified that he did not dismiss her, and that he said to her, “ I want you,” btit that she insisted upon resigning, and did so; and he further testified that he had subsequently written her 1 a note offering to re-employ her, but she refused such re-employment j

All of these- disputed questions were properly submitted to the 1 jury, who returned a verdict of $515.16 in plaintiff’s favor. There had been a previous trial of this case some time before, at which , this plaintiff recovered $150.43, and from which both she and the defendant appealed to the general term, by which the judgment was affirmed, and again both continued their appeals to the court of common pleas, where a new trial was granted, and Judge 1 Pryor, in a carefully considered opinion, effectually disposes of every objection which is now made by the defendant, except, per- . haps, the one considered in the first point of the brief of appellant’s attorney, which is, that by the contract Miss Levin “ was to render services to the satisfaction ” of the company; that the jury having given her a verdict has found that she was dismissed, and hence that the company had done what it had a right to do, as it was the sole judge as to whether her services bad been rendered . to its satisfaction. There seems to be little or no force in this ! theory, for there does not appear anywhere in the case the slightest evidence, or even intimation, that either the company or Mr. : Koewing was in the least degree dissatisfied with her services ; 1 but, on the contrary, Mr. Koewing swears that he did not dismiss her, but that he said to her, “ I want you,” and that he did actually write her afterwards, offering to re-employ her to render sim- ‘ ilar services. All the other points made by appellant have been passed upon at general term of court of common pleas in this , very case, which is fully reported in 11 N. Y. Supp., 706; 34 N. Y. State Rep., 299.

The judgment should be affirmed, with costs.

Newburger, J., concurs.


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    David Friedman, Resp’t, v. Henry Myers, App’lt.

      (City Court of New York, General Term,

      Filed April 24, 1891.)

    Trial—Exclusion of witness—Disobedience of witness no ground FOR REFUSAL OF TESTIMONY.
    When the witnesses in a suit are ordered by the court_ to be excluded from the court room, and a witness remains in contravention of the order, it is error to refuse to permit the witness to be examined.
    Appeal from a judgment of the trial term entered on a verdict of a jury for plaintiff.

      A. H. Berrick, for app’lt; A. & L. Levy, for resp’t
   Newburger, J.

—This is an action brought against the defendant, one of the city marshals, for the wrongful taking of certain chattels. The defendant justifies under an extension. On the trial plaintiff recovered a verdict

The defendant appeals on the ground that the trial justice erred . in declining to allow one Mary Goldstein to testify.

It appears that at the opening of the case the defendant’s counsel asked “ that the witnesses in this case, except the parties, be ■excluded from the court room.” Plaintiff’s counsel consenting, the request was granted, and the justice ordered the witnesses to retire from the court room.

When the defendant called Mary Goldstein as a witness, the plaintiffs counsel interposed the objection that the witness had remained in the court room, and, therefore, had disobeyed the order of the court, and should not be allowed to testify. The objection was sustained and the witness was not permitted to testify, to which ruling defendant excepted.

The witness’ refusal to obey the order of the court, was undoubtedly a contempt The principal question is whether such ■contempt can deprive the defendant of the benefit of the witness’ testimony.

While it has uniformly been held that the court had the right of separating witnesses during the trial, the authorities seem to hold that the proper remedy for disobedience of the order, is to punish the offending witness, and to refer to the witness testimony, in the charge to the jury.

In Chandler v. Horne, 2 Moody & Robinson, 423, at Risi Prius, Erskine, J., said:

“ It used to be supposed that it was in the discretion of the judge, whether the witness should be examined. It is now settled and acted upon by all the judges, that the judge has no right to •exclude the witness; he may commit him for contempt, but he must be examined and it is then matter of remark that he has willfully disobeyed the order.”

In Cook v. Nethercote, 6 C. & P., 743, Alderson, B., says:

“The fact that a witness was examined after the witnesses on both sides had been ordered out of court, would be no ground for rejecting his evidence.
“ It would be only a matter of observation, respecting his testimony.”

This proposition has been cited in Beamon v. Ellice, 4 Carrington & Payne, 585; Thomas David, 7 id., 350. In Corbett v. Hudson, 1 Ellis & Blackburn, 11, the plaintiff conducted his cause in person. The lord chief justice told him that, if he addressed the jury, as an advocate, he could not be permitted to give evidence as a witness.

Lord Campbell, O. J., in delivering the opinion of the court, in granting a new trial, says:

“ We must be careful that we do not abridge the rights conferred on suitors by common or statute law, while we are acting merely on views of policy and expediency.”
“ With, respect to ordering the witnesses out of court, although this is clearly within the power of the judge, and he may fine a witness for disobeying this order, the better opinion seems to have been that his power is limited to the infliction of the fine, and that he cannot lawfully refuse to permit the examination of the witness,” and numerous authorities are cited.

The same practice seems to prevail in this country. Hubbard v. Hubbard, 7 Oregon, 47; State v. Thomas, 11 Ind., 515 ; Hey v Commonwealth, 32 Grattan (Va.), 946; State v. Sparrow, 3 Murphy (N. C.), 487; Pleasant v. State, 15 Ark., 650; Rooks v. State, 65 Ga., 331; Betts v. State, 66 id., 512; Smith v. State, 4 Lea (Tenn.), 430; Porter v. State, 2 Ind., 435.

In Parker v. State, 67 Maryland, 329, a material witness remained in the court room during the examination of the witnesses, after the court had ordered the exclusion of the witnesses on both sides from the court room. Held the court erred in refusing the witness to testify. Judge Byron in delivering the opinion of the court says: A person cannot be deprived of the benefit of a witness because of his misconduct in disobeying the order of the court.

“ All suggestions of this kind are alien to the spirit and genius of our jurisprudence.”

It seems to me thus entirely clear that the act of the witness Goldstein was one for which she alone was punishable.

It would be indeed a hardship to deprive defendant of the benefit of her testimony, which it is possible might have changed the result.

Following the reasoning of the authorities cited by me, the judgment must be reversed and new trial ordered, with costs to appellant to abide event.

Ehrlich, Ch. J., and Yan Wyck, J., concur.


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    Frederick W. Fink et al., App’lts, v. Rudolph Fraenkle, Resp’t.

      (City Court of New York, General Term,

      Filed April 24, 1891.)

    Execution—Personal property exempt prom.
    A male judgment debtor has no exempt personal property except such as is mentioned in §§ 1390 and 1391 of Code of Civ. Pro., and his earning-for personal services under § 3463, and these are exempt only when he is a householder or has a family for which he provides. A woman need not be a householder, and her property has the same exemption as a householder.
    Appeal from an order denying motion to punish judgment debtor, a physician, for refusing to deliver to his receiver furniture, books and surgical instruments used in his practice of the-value of about $350.

      John B. Pannes, for app’lts; Herman Fox, for resp’t.
   Van Wyck, J.

—The plaintiff issued an execution against the property of defendant which was duly returned unsatisfied, -whereupon he obtained an order in supplementary proceedings for the examination of defendant, and upon his examination the judgment debtor testified that he was a physician in active practice, lived at 115 Second street, was unmarried, had no children, and owned a set of furniture for his waiting room, a set for his bed room, a library of about 200 volumes and his surgical instruments, and that all his furniture was worth about $200, and the surgical instruments about $150, and that the books and office furniture were used by him in his business, and, though he does not so testify, it is to be presumed that he also used the instruments in his business. He made no attempt to show that he was a householder or that he had a family, or any person for which he provided.

At common law, neither a judgment debtor nor his family had any way of exempting any portion of his property from execution for his or their benefit, so that any privileges that he may now have in that direction must be sought for in the statutory law; and in this state the laws which exempt from execution the judgment debtor’s personal property are to be found in the Code of Civil Procedure, § 2463, which exempts his earnings for personal service within sixty days, when “ necessary for the use of a family, wholly or partly supported by his labor,” § 1390, which exempts certain articles of personal property therein enumerated, “ when owned by a householder,” and § 1391, which exempts furniture, professional instruments, library and certain other articles, not exceeding in value $250, “ owned by a person being a householder, or having a family for which he provides.”

The judgment debtor in this case, is left to the necessity of seeking and finding his justification for refusing to deliver his property to his receiver in these three sections of the Code.

Perhaps it would be well to state in passing that when the judgment debtor is a woman she has, by § 1392, the same exemptions as a householder has under §§ 1390 and 1391. The consensus of judicial thought is, that the harsh rule of the common law which stripped judgment debtors of everything except the clothes upon their backs, was mollified by statutory provisions, “ as a protection for poor and destitute familes,” and “ to mitigate the consequences of men’s thoughtlessness and improvidence.’

Judge Selden, in the Crawford case, in the supreme court, 9 How., 548, says: “Although our statutes, exempting certain articles of prime necessity belonging to householders from levy and sale upon execution, were intended for the benefit of the entire family and not of its head alone, still I entertain no doubt that the master of the family may waive the exemption.” However, the court of appeals, in the Kneettle case, 22 N. Y., 249, has held that the householder cannot even waive the right .of exemption, as it is for the benefit of the family for which he provides. In the Kneettle case the execution was issued upon a judgment recovered on a promissory note containing this provision, “and I hereby waive and relinquish all right of exemption of any property I may have from execution on this debt,” and Judge Denio, in that case, writing in support of the contention that the right of exemption cannot be waived, reiterates the oft-repeated construction given to these statutes, as follows: “These exemption laws apply only to householders who have families for which they provide."

All of this judicial reasoning goes to establish that only a householder’s property is exempt; that a householder is the master of a household, and that a household is a family living together, however, not necessarily wife and children, but it must be a family, small or large, for which he provides.

This judgment debtor has not in any way shown himself a householder or a man having a family for which he provides, and hence it follows that he should have been forced to yield up his property to his receiver in order that it might reach his creditor the plaintiff.

The order appealed from must be reversed, with costs.

Ehrlich, Ch. J., concurs.


author: Fitzsimons, J.

text:
    Louis Ahner, Resp’t, v. The New York, N. H. & H. R. Co., App’lt.

      (City Court of New York, General lerm,

      Filed May 8, 1891.)

    Summons—When service defective—When objection to be made.
    In an action brought under chap. 185 of the Laws of 1857 to recover a penalty for extortion by a railroad company, an objection that the summons was not served by the sheriff, in accordance with § 1895 of the Code of Civil Procedure, must be made before service of the answer.
    Appeal from special term.

      Page & Tafft, for app’lt; Henry Wehle, for resp’t.
   Fitzsimons, J.

—This action is brought to recover a penalty amounting to $50.15 under the statute entitled “An act to prevent extortion by railroad companies, passed March 27, 1857,"

„ because of alleged violation of said statute by defendant to plaintiff’s injury in said amount. Section 1895 of the Code of Civil Procedure provides, that the summons in actions of this character shall be served (in this instance) by the sheriff, who shall file proof of service theieof with the clerk of this court. *

The answer of the defendant, among other things, alleges “ That this action cannot be maintained, for the reason that the summons was not served by the person designated in said § 1895, and without prejudice, by appearing to defend, reserves said objection, and with right insists upon the same whenever deemed proper.”

If the summons was served by a person not designated by said section of the Code, then said service was merely irregular,- and objection should have been by motion before service of the answer. It is a trivial objection, at most,' and such objections are not encouraged and ought always to be disregarded and set aside unless taken in the proper time, viz., by motion and before answer.

This court has jurisdiction of the parties, the subject matter of the action, and the complaint appears to state a good cause of action. ■ The order appealed from is a proper' one and is affirmed, with costs.

Ehrlich, Ch. J., and McCarthy, J., concur.


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    John H. Wood, Resp’t, v. Charles G. Franklyn, App’lt.

      (City Court of New York, General Term,

      Filed May 8, 1891.)

    Trial—Verdict directed—Review—Evidence.
    When, at the close of a trial, defendant’s motion to dismiss the complaint is denied, and he does not request that the facts he submitted to the jury, and a verdict for plaintiff is directed by the court, it will not be disturbed on appeal if there be any evidence to sustain it.
    Appeal from a judgment of trial term, entered upon a verdict directed for plaintiff.

      Butler, Stillman & Hubbard, for app’lt; Leonard & Warren, for resp’t.
   McCarthy, J.

—The plaintiff sues to recover from the defendant the sum of $1,548.24, with interest, for work, labor and services. The defendant, in effect, pleaded a general denial.

The case finally came to trial, and was contested. At the close of the case the defendant moved to dismiss the complaint, which was denied, and thereupon the court directed a verdict for the plaintiff for $2,198.40, to which direction the defendant excepted. No request was made by the defendant to submit the facts to the jury, and both parties treated the case as involving questions of law. From this judgment the defendant now appeals. The defendant’s failure, after the motion to dismiss was denied, to request the court to submit the questions of fact to the jury, is fatal, if there be any evidence to sustain the verdict. I have examined the case carefully, and think there was sufficient evidence.

In Kirtz v. Peck, 113 N. Y., 226 ; 22 N. Y. State Rep., 733, Ruger, Ch. J., says: “ Neither party asked to go the jury upon any question of fact, and if, therefore, the evidence presented any such question, the court was authorized by the mode in which the case was tried to find thereon, and if there was evidence tó sustain the finding, it is conclusive upon the parties on this appeal. By requesting the court to determine the case as one of law, the party waived his right, if any, to go to the jury upon question of fact, and submitted all questions involved to the determination of the court.”

It is well settled that where the defendant moves for a nonsuit, or rests his defense upon questions of law, and does not request to go to the jury, and his motion is denied on the law held adversely to him, he is estopped from raising the point upon appeal that there were questions of fact which should have been passed upon by the jury. See Dillon v. Cockcroft, 90 N. Y., 649 ; Provost McEnroe, 102 N. Y., 650.

For these reasons the judgment should be affirmed, with costs.

Fitzsimons, J., concurs.


author: Ehrlich, Ch. J.

text:
    James A. Flack, late Sheriff, Resp’t, v. Samuel Thaxter et al., App’lts.

      (City Court of New York, General Term,

      Filed May 8, 1891.)

    Sheriff—Liability of indemnitors.
    A sheriff is under no obligation to his indemnitors, without request, to insure property seized by him under process, and held until the settlement of a disputed claim; and where the property is lost by fire, they will be obliged to repay to him the amount he was required to pay by reason of such loss.
    Appeal from judgment entered on verdict of jury in favor of plaintiff.

      Beltz & Large, for app’lts; David Tim, for resp’t.
   Ehrlich, Ch. J.

—The action is ón bonds of indemnity to the sheriff, and by the judgment-herein the sheriff recovers the amount he was obliged to pay by reason of doing the acts he was required to do and was indemnified against

There was no proof of negligence on the part of the plaintiff, or that he, of his own volition, did or omitted to do any act whereby the damages were created or increased. He was under no obligation, .without request, to insure the property lost by fire ; and there being a disputed claim of title tó the property seized, it could not be safely determined whether any part of the property ought to be returned to the defendant in the original action, or to the claimants of it.

Ho injustice has been done to the defendants. The judgment herein hereby indemnifies the sheriff, and that is what the defendants agreed to do.

We find no error. Judgment affirmed, with costs.

Fitzsimons and McCarthy, JJ., concur.


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    Joseph Wiener, Resp’t, v. Dietrich Hammell et al., App’lts.

      (City Court of New York, General Term,

      Filed May 8, 1891.)

    1. Negligence—Damages—Blasting bock in New Yobk city.
    Blasting rock in the city of New York is necessary, and, as a consequence, legal, and no recovery can be had for damages for injuries caused, except on proof of negligence.
    2. Same—Owneb not liable eob contbactob’s negligence.
    When the owner of property employs a competent contractor to do blasting and does not direct it himself, he is not liable to a person injured by the negligence of the contractor.
    Appeal from judgment entered on verdict in favor of the plaintiff.

      George C. Lay and W. G. Chittick, Jr., for app’lts ; J. H. Rogan, for resp’t.
   Ehrlich, Ch. J.

—Blasting rock in the city of Hew York is necessary, and, as a consequence, legal, and no recovery can be had for damages caused by blasting except on proof of negligence. The trial judge refused to charge this proposition. The owner of property, who employs a competent contractor to do the work and does not direct it himself, is not liable to a person injured by the negligence of the contractor. The trial judge refused to charge this proposition. These two errors require that the judgment be reversed and a new trial ordered, with costs to the appellant to abide the event.

Fitzsimons and McCarthy, JJ., concur.