text:
    In the Matter of the Application by the Department of Public Parks to Acquire Title to Real Estate. In the Matter of Martha N. Sproat.

      (Supreme Court, General Term, First Department,

      Filed October 18, 1895.)

    Guardian and ward—Award.
    An award, made for land of an infant taken for a publie use, is real estate, and its ancillary guardian cannot receive the award, but it must be disposed of by the court.
    Motion to confirm the report of the referee.

      H. Ketlell, for motion ; Charles A. O'Neil, opposed.
   O’Brien, J.

This is an application for an order for the payment of an award made to unknown owners, and comes before the court upon the report of a referee. The question presented is as to whether the award should be considered real estate or personal property. It appears that the petitioner, Martha R. Sproat, individually and as ancillary guardian of the property and infants, applies for payment of the award which was made to unknown owners. The city acquired title to the land long after the death of the father of such infants, and at the time of taking such title the property was owned by the three children, subject to the dower rights of the widow. Letters of guardianship in the state of Ohio were issued to the petitioner, who there gave a bond, and ancillary letters of guardianship have been issued to her by the surrogate of Rew York county. The •referee reports that the award made for the land should be paid to the petitioner by virtue of such ancillary letters of administration, while the city claims that the award should stand in the place of the land, and, being still real estate, should not be paid to the petitioner.

It has been held that the proceeds of real property sold by the court, belonging to lunatics or infants, will be considered real estate so long as the incompetency continues, and on the death of the lunatic or infant the money will go to his heirs. Horton v. McCoy, 47 N. Y. 21.

In Ford v. Livingston, 70 Hun, 176 (headnote); 54 St. Rep. 164, it is held :

“ Money paid by an elevated railroad company to the committee of a lunatic, in pursuance of the judgment of a court, as ‘ fee-damages,’ and as the price of a conveyance of the easements appurtenant to the lunatic’s real estate taken by the railroad, is to-be deemed real estate so long as the owner’s incompetency exists.”

And Mr. Pomeroy, in his work on Equity Jurisdiction (page 135, note to section 1167), says:

“ When land- has been taken, not by voluntary negotiation, but by compulsory proceedings authorized by statute, and the money paid into the court, it continues to be real estate until it is taken out by some one having the right to elect to treat it as money ; that is, by some person sui juris who is an unfettered owner. If the owner is an infant ór lunatic, or if the land is subject to a settlement, the moneys necessarily retains its character as real estate.”

Apart from this, however, we do not see by what right the award should be paid to the ancillary guardian, because she is not authorized to receive it. The authority conferred upon such a guardian by section 2840 of the Code of Civil Procedure only allows the person to whom such letters of guardianship are issued “ to demand and receive the personal property and the rents and profits of the real property of the ward.” As the award, therefore, must be considered as real estate, and as the ancillary guardian has no title to the real property of the infants in the state of New York, she should not receive the award, but the same should be disposed of by this court, by directing its deposit in a trust company, there to remain during the minority of the infants, the income arising therefrom to be paid to the guardian.

Ordered accordingly. All concur.


source: Caselaw Access Project

author: Van Brunt, P. J.

license: Public Domain

text:
    Mary Manning, App’lt and Resp't, v. John B. Manning, App’lt and Resp’t.

      (Supreme Court, General Term, First Department,

      Filed October 18, 1895.)

    1. Pleading—Accounting.
    A complaint, which alleges that plaintiff has deposited with defendant money for purposes of investment and speculation oh her account, that defendant has made large profits therefrom, which he has refused to account for, and that he has refused to deliver to plaintiff stocks, bonds and, personal property in his hands belonging to her, does not establish any ground for ah action in equity for au accounting.
    2. Same.
    Such complaint will not sustain a recovery for profits on an account opened by defendant in plaintiff’s name, with the intention of making her a gift of the income and profits of such account.

      'Both parties appeal from a judgment granting part of the relief sought

      B. B. Murray, for pl’ff; J. A. Straley, for deft.
   Van Brunt, P. J.

The complaint in this action alleges, in its first paragraph, that heretofore, at various times, the plaintiff had paid to, delivered to, and deposited with the defendant, certain sums of money, for the purpose ofoinvestment and for speculation in the purchase of stocks, bonds, and personal property, on her account. The complaint further alleges, in the second paragraph thereof, upon information and belief derived, from the statements of the defendant, that he had made large profits therefrom on her account, and alleged that the defendant had neglected' and refused, on demand, to account with the plaintiff for said profits, or to deliver to her the stocks, bonds, money, and personal property in his hands belonging to her, and that, among other things, defendant had stated to her that there was on deposit in various savings banks of the city of New York a sum in excess of $3,500, belonging to the plaintiff, and deposited in plaintiff’s name, and that the defendant had “Stated that he had in his possession, of her property, among other stocks and securities, 1,00 shares of the preferred stock of the Chicago & Northwestern Railroad Company, 100 shares of the stock of a railroad company designated as “Omaha Common,” fiveshares of the stock of the New York Central & Hudson River Railroad Company and other stocks named in the complaint. The plaintiff demanded judgment that the defendant pay over to her such money belongiug to her as he had deposited in any savings bank; that he deliver to her the bank books and vouchers therefor, and all certificates of stock belonging to her or representing stocks purchased for her, and all bonds belonging to her, or purchased for her account; and. that be render an account of all his dealings and operations with the money and property of the plaintiff, and pay over to her the balance that may be found to belong to her, with costs. The defendant answered, denying each and every allegation in the complaint.

Upon the termination of the plaintiff's case a motion was made by the defendant’s counsel to dismiss the complaint on the ground that the plaintiff had not shown facts sufficient to entitle her to an accounting, and upon the ground that the plaintiff had not shown facts sufficient to establish that any account was ever opened by her with Mr. Manning, by advancing money to Mr. Manning for the purposes of that account, and also upon the ground that the plaintiff had failed to make out a cause of action, in any aspect of the case, either at law or in equity. This motion was denied, and the defendant excepted. The defendant’s counsel thereupon asked the referee to state the grounds of his refusal, and the referee stated the ground to be because there was some evidence that the plaintiff delivered to and deposited with the defendant a certain sum of money for investment and speculation. The case then proceeded, and was finally submitted on both sides to the referee. The referee filed his report, stating, among the grounds of his decisión, and while the plaintiff had failed to establish paragraph 1 of her complaint, yet she had proved facts which were substantially, though imperfectly, alleged in paragraph 2 thereof, and which entitled her to the relief prayed for, and that it was proved that the defendant, who was plaintiff’s husband, and who was engaged in business as a stockbroker,' opened an account in her name for the purpose of speculating in stocks, and that all stock purchased —even that with which the account was opened—was charged against it, and thus only income, interest, and profits became the property of the account, and that this account had been continued to the present time, and there had resulted, as income and profits therefrom, certain stocks, bonds, and money, which were in defendant’s possession, or subject to his control, but which had either been delivered to and accepted by the plaintiff, or were the proceeds of the sale of stocks and bonds which had been so delivered, and that at the time of opening said account the defendant intended to make a gift of the income and profits thereof to the plaintiff.

It is apparent, upon reading the complaint, that the cause of action alleged, and the only cause of action alleged, is that the plaintiff had deposited with the defendant certain sums of money for the purposes of investment and speculation on her account, and that the defendant had made large profits therefrom (namely, from the sums of money deposited by the plaintiff with him for the purposes of investment and speculation), which he had neglected and refused, on demand, to account for to the plaintiff, and that he had further refused to deliver to the stocks, bonds and personal property in his hands, belonging to her; the allegation evidently referring to stocks, bonds, money, and personal property, the results of the money deposited by her with him for investment and speculation. Then follows an allegation that there are certain sums of money on deposit, and certain stocks held by him, which he refuses to deliver. Upon this state of the complaint, based entirely upon the allegation of deposits.of money by the plaintiff with the defendant for investment and speculation, a recovery is allowed to be had for a claimed gift inter vivas of the profits of a broker’s account. It seems to me that no such cause of action is alleged in the complaint. When the motion was made to dismiss the complaint upon the ground that no cause of action was made out, either in law or in equity, it was not intimated that the complaint could be upheld upon any such ground ; and the referee expressly placed his refusal to dismiss the complaint upon the ground that there was some evidence that the plaintiff had deposited with the defendant a certain sum of money for the purposes of investment and speculation. By his subsequent report the referee has found that there was no foundation for any such claim, and gives judgment upon a ground which is not even hinted at in the complaint. It is not necessary, in this condition of the pleadings, for us to discuss the question as to whether any cause of ac- . tian was made out. ,There was certainly no ground established for this action in equity for an accounting. The judgment should be reversed, upon the defendant’s appeal, and a new trial ordered before another referee to be appointed by this court, with costs of appeal to the defendant, to abide the event.

All concur.


author: Bradley, J.

text:
    Lawrence Roth, Resp’t, v. City of Rochester, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 16, 1895.)

    Boundaries—Question for jury.
    The evidence, on the issue whether the city had encroached upon plaintiff’s lot in opening a street on which such lot abutted, was held to require that the question as to the actual location should be submitted to the jury.
    Appeal from a judgment, entered on a verdict in favor of plaintiff.

      Eugene J. Dwyer, for app’lt; J. W. Stebbins, for resp’t.
   Bradley, J.

—The actionis trespass for alleged entry upon and appropriation of the plaintiff’s land. The plaintiff, having purchased in 1872 of Samuel Moulson, took from him, in March, 1874. a deed of the east part oE lot 37 and the whole of lot 38 in what was known as “Moulson’s Subdivision of the Kedie Farm,” then in the town of Irondiquont, Monroe county, according to a map recorded in the office of the clerk of that county, and bounded north by the center of Linden street and east by the center of Joiner street. The survey and map were made by Horace Jones, surveyor, in 1871, and he in the survey'and upon the map located and described Norton street as the northern boundary of the subdivision and parallel with and south of it, Linden street, and south of that, and parallel with it, Borchard street; also Joiner street at right angles with them. The western boundary of the subdivision was Clinton street. After the extension of the limits of the city of Rochester so as to embrace this tract, and in 1885, the city authorities proceeded to open and grade Linden street. The complaint is that in doing so there was an encroachment upon his premises, and-an appropriation of a strip of his land thirteen feet two inches in width at the east side, reduced to the width of eleven feet two inches at the west side of it, by putting it into that street as opened and graded by the defendant. The fact is undisputed that between the southern boundary of the plaintiff’s land and that street as opened and graded by the city there is that deficiency in the land described in his deed ; that is to say, his east and west lines are thus made to appear that much shorter than those described in Moulson’s deed to him. The only controverted question has relation to the location of Linden street as actually made by the owner of the premises and represented by the Jones survey and map. He laid it out and dedicated it as such at the width of three rods. And the plaintiff gave evidence tending to prove that the center line of it was indicated by stakes, and that, if its location, as thus represented, had been observed by the defendant in opening and grading the street, its southern boundary would have been further north, and he would have been left in the undisputed possession of the strip so alleged to have been appropriated of the northern portion of his premises. And such, in effect, are the views of Jones, the surveyor, as expressed by his evidence. Upon that state of facts treated as established, the plaintiff was entitled to recover. As represented by the map before mentioned, Norton street, Linden street, and Borchard street are parallel, and the lots in each tier of lots between those street are of uniform length north and south, and the fact is undisputed that Linden street as opened is at the distance south from Norton street described on the map as its location by the surveyor. But that is not a controlling fact if it is not the place where the street was actually located by the survey, unless it also appears that it is also the distance from the south boundary of the subdivision tract as represented' by the map. There is no question about the location of the west end of Linden street at its junction with Clinton street. The difficulty arises as it proceeds east to Joiner street. There the distance is not sufficient between the south line of the subdivision tract and Linden street as laid out and graded by the defendant to give the quantity of land or length of line north and south as described by the survey as represented by the map, and this deficiency is. that complained of by the plaintiff. The difference in length between the west line of the tract and on Joiner street may be explained by the fact that in a map of a survey of the Kedie farm, made in 1851, in which the lots were so described as to give them the greater length east and west, the lot there numbered 36, which was south of the street afterwards laid out and since known as “ Borchard Street,” before mentioned, was so described that its east line was twenty links, or thirteen feet two inches, shorter than its west line. While Jones, when he made his survey in 1871, had knowledge of this map of 1851, the difference in the length of the west line of the subdivided tract on Clinton street and that on Joiner street was not observed in making his map. Hence arose the discrepancy between the actual length of the line and as represented by his map of that tract along the latter street. His. evidence is to- the effect that he commenced his survey at the south side of the tract subdivided, and described Linden street as. parallel with the south line of it. If that is so, and the center line of Linden street was located at the east end of Joiner street, the' same distance from the south boundary as it was on the west end at Clinton street, the plaintiff’s contention is sustained. This corresponds with the evidence of the witnesses about the location of stakes to which they refer as before mentioned. And such view,, if supported, would place the discrepancy and deficiency in that portion of the tract north of Linden street. The witness, Jones,, the surveyor, by his evidence, so treats it.

The motions of nonsuit and for direction of a verdict for the defendant were properly denied. But the defendant’s exception to the refusal of the learned court to submit to the jury the question relating to the actual location of Linden street seems to have been well taken. The difficulty very likely has arisen from the mistake in the Jones map. And as it does not appear that he made an actual survey qf that part of the tract lying between Norton and Linden streets, the mistake may have been the result of his omission to do so. Nor does it necessarily appear that any stakes were on the ground indicating the actual location of Linden street at the time it was laid out by the defendant. It appears by the evidence of the city surveyor that he had before him the Jones map; that he commenced at and proceeded from Norton street to ascertain the location of Linden street. He determined it as described on his map, and as laid out and graded, by taking as his guide the distance between those streets as given by the Jones map. In that respect the result of his survey does correspond with the description on that map. But the evidence tends to prove that if he had commenced at the southern boundary, and proceeded north, according to the description in the Jones map, the city surveyor wonld, by the adoption of the distances there given, have reached the southern line of Linden street where the plaintiff claims it was located by the survey of 1871. Although the witnesses who testified to the location of the stakes referred to by them had no personal knowledge that they were the stakesxplaced there pursuant to the Jones survey, the inference was permitted that they were. Those witnesses, however, had such relation to lots bounded north by Linden street to give them some interest in the question. The weight of their evidence was for the consideration of the jury. There was also other circumstances furnished by the evidence, and to which it is unnecessary hereto refer, properly for their consideration. The question as to the actual location of Linden street by the survey as made by Jones and represented by his map was one of fact for the jury, and for the error in the refusal to submit that question to them the judgment should be reversed, and a new trial granted; costs to abide the event.

All concur.


author: Follett, J.

text:
    Stephen Leach, Resp’t, v. New York, New Haven and Hartford Railroad Company, App’lt.

      (Supreme Court, General Term, First Department,

      Filed October 18, 1895.)

    1. Trial—Nonsuit.
    Where the evidence is sufficient to require the submission of the case to the jury, it is not error for the court to refuse to nonsuit the plaintiff.
    2. Evidence—Paeol.
    In an action against a railroad company for a breach of a written contract to carry the equipment of a theatrical troupe, a custom of railroad companies to make such contracts as an incident to the carriage of the members of the company cannot be shown by the defendant, nor can it show that, had it known that the members of the troupe intended to travel by a different route, it would not have made the contract.
    3. Same—Breach of contract.
    In such action, a person, who has been engaged in selling theater tickets several years at a place at which a performance was advertised, may testify, upon the question of damages for preventing the troupe from giving such performance, that the amount of tickets sold in advance of a performance at such place is about one-fourth of total sale.
    4.. Same—Carrier.
    Where, in such action, the carrier claims that its refusal to carry the goods delivered to it, was because the frieght was not paid, the shipper may prove the value of the goods, for the purpose of showing that the carrier had ample security, and that there was no reason for stopping them in transitu.

    Appeal from a judgment -entered on a verdict in favor of plaintiff, from an order denying a motion for a new trial, made on the minutes.

      Henry W. Taft, for app’lt; Ira B. Wheeler, for resp’t.
   Follett, J.

This action was begun March 29, 1893, tore-cover damages for an alleged breach of a contract to carry the equipment of a theatrical'company. The plaintiff was the owner of a theatrical troupe called “Dark Secret Company,” and was engaged in performing a play called “The Dark Secret” in various cities in the New England states and in this state. On Saturday evening, December 31, 1892, the plaintiff gave a performance at Norwich, Conn., and after its conclusion loaded his scenery and properties, forming the stage outfit, on one of defendant’s cars, to be forwarded to the city of New York. Had the car been sent forward in due course, it would have reached the city of New York not later than half past six o’clock on the morning of Monday, January 2, 1893. The plaintiff had advertised to exhibit his play at Yonkers, N. Y., in the afternoon and in the evening of Monday, January 2, 1893, and sold tickets for both exhibitions. The defendant did not deliver the car at the Grand Central Depot in the city of New York until thirty-two minutes past seven o’clock in the evening of Monday, January 2d, so the plaintiff was unable to-give either exhibition advertised at Yonkers, and was compelled to refund the money received for tickets sold. The plaintiff alleges that the defendant contracted to deliver the car at the Grand Central Depot by half past six in the morning of January 2, 1893. The defendant admitted that it received the. plaintiff’s goods on board its car at Norwich, Conn., before midnight of December 31, 1892, but denied that it agreed to deliver the car at New York by-half past six a. m., January 2, 1893, and set up that the reason of its failure to move the car from New London, where it arrived Sunday evening at thirty-five minutes past seven, was because the plaintiff had failed to prepay the charges for the use of the car. On the trial, the defendant urged that the contract to transport the car was a mere incident to a contract to carry the persons composing the troupe from New London to New York, and, in violation of an implied agreement that the troupe should go by the defendant’s road, they went by boat from New-London to New York. This defense was not set up in the answer. There was a sharp conflict in the testimony over the terms of the contract. ' The witnesses sworn in behalf of the defendant testified that the agreement was that the charges for the car should be prepaid before it should leave Norwich, Conn. The witnesses sworn in behalf of the plaintiff testified that there was no such agreement. The witnesses agree that the car left Norwich, Conn., at seven o'clock p. m., Sunday, January 1, 1893, and arrived at New London thirty-five minutes later. The witnesses also agree that, in the forenoon of January 2d, the plaintiff called at the Grand Central station at the city of New York to inquire after his car, and, finding it had not arrived, called on one of defendant’s officers, who inquired by telegraph or telephone of the defendant’s agents of New Haven, and learned that the car was held for the prepayment of $47.50 charges. The plaintiff thereupon paid the charges to the defendant. There was a sharp controversy as to the time when the charges were paid, the plaintiff testifying that they were paid at about fifteen minutes past twelve p. m., and the witnesses for the defendant testifying that they were paid at about half past two p. m. It is conceded that, if the charges were paid at fifteen minutes past twelve p. m., the defendant might have, with due diligence, delivered the car at New York at half past four in the afternoon of the same day, but, if they were paid at half past two, the car could not have been delivered at New York before thirty-two minutes past seven in the evening, at which time it did arrive. These questions of fact were sharply contested on the trial, but were found for the plaintiff, and a verdict of $630 damages rendered, which cannot, under the well-settled rules, be set aside as contrary to the weight of evidence. The evidence being sufficient to require the submission of the case to the jury, it was not error for the court to refuse to nonsuit the plaintiff.

The exceptions taken by the defendant to the submission and exclusion of evidence relate (1) to evidence bearing upon the plaintiff’s right to recover; (2) to the amount of damages . recoverable in case he established a cause of action. The exceptions of the first sort do not require much consideration. . The defendant, by a series of questions to its general passenger agent, sought to show that it was customary for the members of theatrical troupes to travel on the line which transported the scenery and paraphernalia of the proprietor of the exhibition. This evidence was offered for the purpose of raising the issue that the plaintiff violated an implied condition of the contract by having the members of his troupe carried from New London to New York by boat, instead of by the defendant’s railroad. No such defense was set up in the answer. Besides, the contract as testified to by the witnesses on both sides, does not refer to the carriage of persons or of personal baggage, such as travelers are entitled to have carried in consideration of their payment of fare. The contract was to furnish a car at Norwich, Conn., for the purpose of transporting the plaintiff’s property to New York. After the car was loaded the plaintiff was given the keys, and there is no evidence in the case, and none was offered, from which it could have been inferred that the contract was for the carriage of the personal baggage of the members of the troupe, for which an extra charge was made, by reason of its amount. The articles in the car were not checked neither were they carried as an incident of the carriage of the passengers, but they were transported under a special contract, for which a fixed compensation was charged. No error was committed in not permitting the defendant to prove the custom of its road, or of other transportation companies, nor was it competent for the defendant to prove that it would not have made the contract had it known that the members of the troupe were to go from New London to New York by boat.

The refusal to permit Southard to answer the question, whether Mr. Mackenzie immediately repeated to you what the person at the other end of the telephone stated to him,” was not error. He had testified that he overheard the telephonic communication between the plaintiff and Mackenzie (the superintendent of the New London & Northern Bailroad), and testified to what he heard. Mackenzie testified to what was said between himself and the plaintiff, and that Southard overheard the conversation and commented on it at the time of its occurrence.

When it is uncertain whether damages have been caused by the violation of a contract, none can be recovered, a jury not being permitted to speculate whether damages may not have been occa-' sioned; but when it appears that damages have been caused by the breach of a contract, the amount of which is uncertain and incapable of ascertainment by computation or by direct evidence, the injured party is entitled to recover such as he can show to be the direct results of the breach of the contract. In many cases, the damages can be ascertained by computation, or are in their nature capable of being definitely fixed, and in such cases the parties are -confined to direct evidence, and are not permitted to prove collateral facts, from which inferences as to the amount of damages sustained may be drawn. In cases where the damages cannot be fixed by computation or by direct evidence, the kind and character of evidence admissible for the purpose of proving the damages depend upon the circumstances of each case. Evidence which would be quite competent in one case would be utterly incompetent in another, and the inquiry always is whether, under the circumstances of the case in hand, evidence has been given which would authorize a jury to award more damages than is shown to flow directly from the breach of the contract. In this case, the amount of the plaintiff’s damages was incapable of being accurately fixed, but that was no reason why he should be deprived of all damages. It was shown that, before it was known the car would not arrive, he sold tickets for the performances advertised for the afternoon' and evening of January 2d, This rnonéy (between $850 and $400) the plaintiff was compelled to refund. It is well known that only ■ a portion of tickets for entertainments are purchased long in advance of exhibitions, and we do not think it was error to permit the plaintiff to prove, by a person who had several years been engaged in the sale.of tickets for this particular place of amusement at Yonkers, and who sold these tickets, to testify that, generally, about one-fourth of the whole amount of tickets sold were sold in advance of entertainments. The damages awarded in this case were not large* and, under the evidence, probably not more than the plaintiff would have received for either entertainment.

The fact that the plaintiff was permitted to testify that the property contained in the car was worth about $8,000 was not error. It was stated, that it was offered for the purpose of showing that .the defendant had ample security for carrying the goods, and there was no reason for stopping them in transit to secure a prepayment of charges.

The judgment and order should be affirmed, with costs.

All concur.


author: O’Brien, J.

text:
    James Roarty, App’lt, v. Edward C. McDermott et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed October 18, 1895.)

    Partition—Costs and disbursements.
    Where the plaintiff, in a partition action, takes proceedings, after the rendition of final judgment, to compel the purchaser at the partition sale to complete his purchase, with the knowledge and approval of the other parties to the action, but without any agreement or undertaking on their part to reimburse him for any expenses he might be put to in such proceedings, the court cannot compel the parties to contribute their proportion, or, against their objection, allow the amount to be deducted from the proceeds of the sale.
    Appeal from an order, denying plaintiff’s motion to be reimbursed for legal services.

      William H. Hamilton, for app’lt; G. A. Seixas, for resp’ts.
   O’Brien, J.

This action was for partition, and under the decree the property involved was sold, and, before the time when the purchaser was to complete had expired, final judgment was entered, confirming the sale, and directing distribution of the proceeds. The purchaser refusing to complete, plaintiff moved to compel him to do so, and succeeded at special term, only to be reversed at the general term, and then again to be finally successful in the court of appeals, it is shown that the proceedings to compel'the purchaser to take were with the knowledge and approval of the parties to the action, although it is not claimed that there was any agreement, or that they undertook to reimburse plaintiff for any expenses he might be put to in such proceedings. It is- not disputed that the attorneys’ services and disbursements rendered and incurred subsequent to the final judgment were reasonably worth the claim, $597.47, but the motion to have this sum deducted from the proceeds of the sale was denied at the special term on the ground of want of power. In this we think the special term was right. After final judgment, and after the rights of the parties are fixed, there is no express authority for the granting of any additional amounts out of the fund. Becognizing the force of this, the plaintiff contends that, as the expenses of the sale were directed to be paid, these services may be regarded as coming within that category. What are to be included in the expenses of a sale are so well understood as not to require enumeration; it being sufficient to say that they do not include the expense of a proceeding such as was here brought, to compel a purchaser to complete. In common with the others, plaintiff claimed to have an interest in this property, and by the final judgment his interest was fixed and defined; and it was his privilege, upon the purchaser’s refusing the title, to take such proceedings as he thought proper to compel him to complete, and thus obtain the fund out, of which the amount of his interest could be paid. If he was unwilling ,to undertake this burden and expense alone, he could have arranged with the other parties by agreement for the payment of their proportion. In the absence of such an agreement, we do not think the court would be warranted in compelling the parties to contribute their proportions, or, against their objection, allow the amount to be deducted from the proceeds of sale.

That this is the correct view, we think, becomes clearer if we consider what would be the situation had the plaintiff failed, instead of succeeding, as he did, in the proceedings. Plaintiff’s theory is that, for expenses incurred for the common benefit of all, he should be reimbursed. If this principle is sound, there is no reason why they should not be paid him whether successful or unsuccessful, assuming that the proceeding is taken in good faith. Upon"the refusal of a purchaser to complete, it might very well happen, in a given case, that the objections to the title would be regarded as valid by some of the parties, though seeming untenable to the one who concluded to conduct the proceeding to compel the purchaser to take title. In such a case, if the proceedings were unsuccessful, it would be unjust to the one who concluded that the objections made were valid to compel him unwillingly to contribute to the expenses. Yet, if the plaintiff is right, no good reason can be suggested why in one case one should not be required to pay his proportion more than in the other. The underlying principle is that though one, in endeavoring to enforce his own right, may thereby confer a benefit on others, he cannot, in the absence of some express statute or agreement, compel the latter to share with him the expense. Our conclusion, therefore, is that, as the plaintiff could have no lien on the fund for such claim, and as there was no agreement between the parties, and we have been referred to no statute which would justify it, as stated, we concur in the view of the special term, that the court was without power to order the referee to pay the amount out of the proceeds of sale. The order, therefore, is affirmed, with $10 costs and disbursements. All concur.


author: Per Curiam.

text:
    Thomas J. Churchill, App’lt, v. Frederick Loeser et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed October 18, 1895.)

    1. DlBCOVBItY AND INSPECTION—WHEN.
    Where the plaintiff sues upon an agreement for a certain percentage of the amount of business done by him in lieu of salary, he is entitled to an inspection of defendant's books, to enable him to frame his complaint.
    2. Account stated—Motion.
    The question whether the rendering of an account constituted an account stated between the parties, should not be determined upon a motion, but is a matter to be disposed of at the trial.
    Appeal from an order denying a motion for an inspection of defendants’ books.

      John J. Adams, for app’lt; Johnson é Lamb, for resp’ts.
   Per Curiam.

The reasons governing applications of this kind are fully stated in the opinions of the special term and of this general term in' Veiller v. Oppenheim, 75 Hun, 22; 58 St. Rep. 190. Upon that authority, assuming the application to be made in good faith, it should have been granted. It is not seriously claimed that the papers used on the motion disclose any evidence of bad faith. It is true that accounts were rendered by the defendants to plaintiff, at the time the stock was taken in each year, showing the aggregate amount of profits and losses in the departments in which the plaintiff was employed, and in the profits of which, if any had been made, he would have been entitled to a percentage. These, however, only give the aggregate amount of profits and losses, without any details of how such totals were reached; and, claiming that they are incorrect, plaintiff says that an inspection of the books will be necessary, to show the incorrectness of such statements, and to enable him to frame his complaint. The suggestion that he is bound by the accounts so rendered, by failing to return or object to them, is met by his sworn statement that he did object when they were rendered, and was promised an inspection of the books from year to year, which, however, was never accorded him. Whether the rendering of such constituted an account stated between the parties, should not be determined upon motion, but is a matter to be disposed of at the trial. We do not see that any great hardship can be inflicted upon the defendants by permitting the inspection, it being within their option either to deposit the books with the clerk of the court, or submit them for inspection at their office during such hours and days as will cause them the least inconvenience.

The order appealed from shonld be reversed, and the application granted, with $10 costs and disbursements.


author: Parker, J.

text:
    The People ex rel. William Reilley, App’lt, v. Avery D. Andrews et al., as Board of Police Commissioners, etc., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed October 18, 1895.)

    Municipal corporation—Police—Retirement .
    Section 2, chap. 381 of 1885, providing for the retirement of policemen, does not make such retirement a matter of right, but leaves it to the discretion of the police board.
    Certiorari to review the findings and determination of the board of police commissioners in the city of Hew York, refusing to retire the relator from the police force and place him on the pension roll.

      Louis J. Grant, for relator; Francis M. Scott and Cornelius F. Collins, for resp’ts.
   Parker, J.

It is the intention of the relator that a policeman who has been on the force twenty years, and who at the time of his application for retirement has no charges pending against him, is, as a matter of right, entitled to be retired. His claim is based upon section 307 of the consolidation act, as amended by section 2 of chapter 864 of the Laws of 1885, which reads as follows :

“ Any member of the police force who has, or shall have, performed duty therein for a period of twenty years or upwards, upon his own application in writing, or upon a certificate of the board of surgeons, showing that such member is permanently disabled, physically or mentally, so as to be unfit for duty, or who shall have reached the age of sixty years, shall, by resolution, adopted by a majority vote of the full board, be relieved and dismissed from said force and service and placed on the roll of the police pension fund. * * * ”

In view of the decisions in People ex rel. Bolster v. French, 46 Hun, 232; 11 St. Rep. 551, and People ex rel. Brady v. Martin, 145 N. Y. 253; 64 St. Rep. 689, we regard this question as settled adversely to the relator. In both cases the statute upon which relator relies was considered by the court. In Bolster's Case the court held that the statute does not entitle a policeman to be retired unless he can obtain the favorable vote of a majority of the board sustaining his application; that the law does not declare that the board shall retire him, or direct that the commissioners, or a majority of them, shall vote in favor of his retirement; and therefore it must be construed as investing the members of the board with discretion to vote for or against the application, as the situation may seem to require. Both the decision and the reasoning of the court in Bolster’s Case were approved in Brady's Case. In the latter case the statute was carefully considered, and the conclusion reached that “ the board has been invested with authority to retire the applicant by a majority vote of the full board, but, as no direction has been given requiring the members to vote for the adoption of the resolution, it follows that they must be at liberty to vote in favor of or against such application.” It is true that the court, in considering the facts of that particular case, used language which, if considered independently of the main argument, would tend to convey the impression that, in the absence of pending charges of misconduct, it would appear to be the duty of the board to grant such an application. But in that case charges of misconduct had been preferred against the relator at or about the time of his application for retirement, and they were acted upon, and the relator dismissed from the force before his application for retirement was considered; and the discussion referred to related wholly to that situation, and followed that part of the opinion which considered and construed the statute, and which resulted in the conclusion that the members of the board were vested with the discretion to vote in favor of or against such an application. The legislative construction given by chapter 569 of the Laws of 1895, amending section 307 of the consolidation act, known as the “Bi-partisan Police Bill of 1895,” is in accord with that of the decisions to which we have referred. Section 6 re-enacts the provision above quoted, authorizing the retirement of a member of the police force, who has performed duty for a period of twenty years or upwards, upon his own application, by resolution adopted by a majority vote of a full board. And it also contains the further provision :

“ And any member of the police force who has, or shall have performed duty therein for a period of twenty-five years or upwards * * * upon his own application in writing, provided there are no charges against him pending, must be relieved and dismissed from said force and service by the board and placed on the roll of the police pension fund. * * *”

If it was the understanding that the statute in existence, and which the legislature re-enacted, compelled the retirement of any policeman requesting it against whom no charges were pending, after twenty years’ service, then surely the provision quoted was superfluous. It appears by the return that the relator first made application for retirement about the 13th day of December, 1894, and that later, and about the 11th day of April, 1895, he presented a petition to the respondents, in which he said, among other things, that he had been for several years a great sufferer from inflammatory rheumatism, and that he was at the time suEering from a permanent disability in one of his feet, by reason of which he was considerably disabled. On the day that the petition was presented to the board action was taken thereon by which it was referred to the board of surgeons for report. Five days later the board of surgeons made a report to the board of police commissioners', in which it was stated that the surgeons found the relator fit to perform police duty. A copy of this report was at once forwarded to the attorney for the relator, who addressed a further communication to the board of police commissioners, asking for immediate action on the application of his client. The board of police commissioners, on the 19th day of April, considered the application, and a resolution of one of the commissioners that the relator’s request be granted and he retired was decided in the negative, one commissioner voting in favor of its adoption and three against it. Apparently it was the view of a majority of the commissioners that, inasmuch as the relator was in a physical condition to render efficient service, he should not be retired on a pension, but compelled to earn the compensation which he should receive from the city. In view of the construction which has been given to the statute, it cannot be said that the commissioners committed legal error. The writ should be dismissed, with costs.

All concur.


text:
    George Burk, as Administrator, etc., Resp’t, v. Edison General Electric Company, App’lt.

      (Supreme Court, General Term, First Department,

      Filed October 18, 1895.)

    1. Negligence—Burden.
    In an action for personal injuries causing death, the burden is upon the plaintiff of establishing, not only the negligence of the defendant, hut that his intestate was free from any negligence which contributed to the accident.
    2. Same—Contributory.
    If a person, without need or cause, puts himself in a position of apparent danger, and, while in that position, suffers an injury resulting in death, it cannot he maintained that he has not contributed to such injury.
    3. Same.
    Where means of communication between the different parts of an apartment are furnished, one of which is obviously dangerous, and the others safe, and a person, for his own convenience or to save the few steps required to use the means of safety, chooses to walk into danger, he cannot recover damages for injuries received while in such a position.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Arthur P. Hodgkins, for app’lt; Frederick W Holls, for resp’t.
   O’Brien, J.

This action is brought to recover the statutory damages for the negligence of the defendant, resulting in the death of plaintiff’s intestate. The deceased was at the time twenty-one years of age, and had been employed in the Eingle Brewery for nine months previous to his death. At the time of the accident the defendant company were putting an electric plant into the brewery, and in the course of its work it became necessary to hoist some heavy machinery on the elevator. This elevator runs in a shaft beginning in the cellar, and extending to the top of the building. The floor of the cellar is thirty-five feet below the first floor, where the machinery was being rolled. The elevator did not quite fill the dimensions of the shaft, and, when the floor of the elevator was on a level with the first floor of the building, there was an interval of four and one-half inches between the edge of the car and the sill of the floor. The attention of the foreman of the defendant was called to this open space, and he was warned that the use of pieces of iron pipe, as rollers; which were so small as to fall readily between the elevator and the floor, would be dangerous. Notwithstanding such warning, the defendant’s employes permitted one of the iron rollers which were being used to fall through the opening into the cellar, where it struck the deceased on the head, inflicting the injuries from which he died. The elevator shaft was situated at a point where there is a division line between the east and west cellars, which division line is a heavy wall, about six feet thick. The elevator was inclosed in walls which were approximately six inches thick. Both the east and west are places for cold storage, being in fact parts of one cellar. It is possible to pass from the east to the west cellar by means of doorways in the elevator shaft, but these doors were kept constantly closed. Besides these doors, there were two openings between the east and west cellars; one being twenty-seven inches wide and about four feet high, and the other a full-height doorway, situated about thirty-six feet from the side of the elevator shaft. Neither of these openings has any door. The deceased had been at work in the westerly cellar, with another workman, washing barrels, and went from there, through the regular doorway, into the easterly cellar, with his companion, for the purpose of drinking a glass of beer. On their return they both went through the elevator shaft, and while so passingthe deceased was struck by the iron roller as described. There was a rule in the brewery which forbade the employes using the elevator shaft as an ordinary passageway, but it appeared that it was frequently so used; and there was no evidence that the deceased knew of the rule, although his companion did. The right of the plaintiff to recover upon these facts was submitted to the jury, and their verdict was favorable to the plaintiff; and from the judgment so entered, and from the order denying a motion for a new trial, this appeal is taken.

The question of defendant’s negligence, we think, was one properly submitted to the jury, but the more difficult and serious question is whether the facts would warrant the inference that the deceased was free from contributory negligence. The burden was upon the plaintiff of establishing, not only the negligence of the defendant, but that his intestate was free from any negligence which contributed to the accident. Was the burden thus placed upon the plaintiff, oishowing the absence' of contributory negligence, sustained? In disposing of this question, we shall assume that the deceased was not aware of the rule forbidding the use of the passage through the elevator shaft, and that he is to be held responsible only for incurring the obvious dangers which every reasonable man should anticipate from its use. If one, without need or cause, puts himself in a position of apparent danger, and, while in that position, suffers an injury resulting in death, it cannot be maintained that he has not contributed to such injury. In view of the other means of communication furnished, it cannot be claimed that it was necessary for the deceased to pass through the elevator shaft; and the only inference that the testimony affords as to the reason for his so using it is the inconvenience that would result, either from using the smaller passage, next to the elevator shaft, or the larger passage, which was sufficiently ample, though some thirty-six feet away. Undoubtedly, to save the steps and time required to return by the passage through which he had entered, the deceased deliberately selected the passageway through the elevator shaft. That such an adventure was obviously dangerous, we think, is evident; and it would be going beyond reasonable bounds to infer that a person who had reached the age of manhood, and who was familiar with the use of the elevator and shaft, could have approached it without a feeling that he was putting himself in a place of danger. It is to be remembered that this elevator was a mere platform, used only for freight, and that articles, heavy and light, large and small, were constantly being moved on and off at different floors; and when we recall the further fact of the space between the flooring of the building and floor of the elevator, which would permit of articles falling, it would be difficult to conceive how one familiar with the surroundings and use of such an elevator could regard the use of the elevator shaft as a passageway as other than dangerous. Upon this proof, we do not find that the burden placed upon plaintiff, of showing that the deceased was free from contributory negligence, was sustained; nor do we think that, in any reasonable view to be taken of the evidence, the inference can be justly drawn that the deceased was free from contributory negligenoe. Where, as here, means of communication between the different portions of the cellar was furnished, one of which was obviously dangerous, and the others safe, and where one, for his own convenience, or to save the few steps required to use the means of safety, chooses to walk into danger, it cannot be said that the evidence which the law requires is thereby furnished, to entitle him to recover damages for injuries received while in such a position. Upon the ground, therefore, that the plaintiff failed to prove the absence of contributory negligence on the part of the deceased, the judgment should be reversed, and a new trial ordered, with costs to, appellant, to abide the event.

All cencur.


text:
    James Everard, App’lt, v. Mayor, Aldermen and Commonalty of the City of New York, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed October 18, 1895.)

    1. Pleading—Affirmative defense.
    The defense, in an action for services performed, that the plaintiff did not produce the certificate of the engineer as required by the contract, is not available unless pleaded.

      2. Same—Amendment.
    An answer cannot be amended on the total so as to conform with the proof, where such amendment will introduce a defense not alleged in the original answer.
    Motion for a new trial on exceptions, ordered to be heard at general term in the first instance.

      Qratz Nathan, for pl’ff; Francis M. Scott, for def!t.
   Parker, J.

The plaintiff and the defendant entered into a contract in March, 1882, by which the plaintiff agreed to do the work of laying water mains in Jerome avenue, in the city of New York, and the defendant agreed to pay therefor on basis specified. The work was performed by the plaintiff in due course, and accepted by the superintendent of public works. Payments were made from time to time to the plaintiff down to and after the commencement of this action ; the last payment being $1,119.71. Plaintiff’s claim on the trial was that after the last payment there remained due to him $2,191.81, being for 337.4 cubic yards of rock excavation at $2.95 per yard; 2,504.2 cubic yards of earth excavation at thirty-three cents per yard, and 2,843.1 cubic yards of filling at. thirteen cents per yard; such being the prices specified in the contract for such work. The contract provided that the trench should be excavated two feet wider than the diameter of the pipe and one foot deeper than the bottom of the pipe, and that whenever, in the opinion of the engineer, it should be deemed necessary to place the pipe deeper, the trench should be excavated to such a depth as the engineer should direct, and the pipe laid accordingly. It appears that the plaintiff has been paid for excavation and filling on that basis. But each piece of pipe laid was twelve feet from' hub to hub, and, according to the testimony adduced in behalf of the plaintiff, the pipes could not be laid and the joints made as required by the contract without a still further excavation at the points of intersection. The contract provided, in effect, “that the spigot end of the pipe should be inserted into the hub, and the space around the pipe equalized, so as to give as nearly as possible an equal space for the packing; that the space between the pipe and hub be packed with clean, sound, hemp packing yarn, free from tar, far enough to leave the proper space for the lead, and the remaining space then filled by running it full of lead with a bead outside of the face of the hub large-enough to allow for caulking, so that, when the joint was properly caulked, the lead would be flush with the hub of the pipe, and, after the joint should have been run with lead, that it should be caulked by means of proper tools, so as to make a watertight joint.’’ To do this work, a space of eighteen inches beyond the hub'on each side of the pipe was required. As the hub projected six inches beyond the line of the pipe an excavation of one foot on each side of the pipe was needed. For this additional excavation and filling the plaintiff sought to recover. The learned trial judge, however, held that plaintiff could not recover, because of the making of a final certificate by the engineer, fixing the quantities of rock and earth excavation and filling, under a provision of the contract which reads as follows :

“ To prevent all disputes and litigations, it is further agreed by and between the parties to this contract that said engineer shall in all cases determine the amount or the quantity of the several kinds of work which are to be paid for under this contract, and he shall determine all questions in relation to said work and the construction thereof, and he shall in all cases decide every question which may arise relative to the execution of this contract on the part of the said contractor, and his estimate and decision shall be final and conclusive, and such estimate and decision, in case-any question shall arise, shall be a condition precedent to the right of the party of the second part to receive any money under this agreement.

The, question which we are required to pass on is whether the court erred in receiving the evidence upon which its decision was finally grounded. As the evidence stood when plaintiff rested, it appeared that the plaintiff had performed under and in pursuance of the contract an amount of work for which he was justly entitled to recover the amount claimed by him, and that he had requested the engineer to include the excess of work at the joints in his certificate, which he had refused to do. The court, therefore, properly denied the defendant’s motion for a dismissal of the complaint. The defendant, for the purpose of establishing a defense, offered in evidence the engineer’s final certificate of the amount of work done under the contract. This the plaintiff objected to, but his objection was overruled, and the paper was received, which led to the direction of a verdict against him. The effect of the certificate, supplemented by the engineer’s testimony was not to show that plaintiff had not done the amount of work testifled to by him, but to establish an arbitration by a person agreed upon in the contract between the parties. Such a certificate is ordinarily conclusive upon the parties, in the absence of proof or corruption, or bad faith, or misconduct on the part of the person designated, or palpable mistake appearing on the face of the certificate. Byron v. Low, 109 N. Y. 291; 14 St. Rep. 823; Sweet v. Morrison, 116 N. Y. 32; 26 St. Rep. 445; Phelan v. Mayor, etc., 119 N. Y. 86; 28 St. Rep. 683. It was an affirmative defense, which the defendant was bound to allege if it would make proof of it, for it is a fundamental law of pleading and evidence that the proof must follow the allegations of the pleadings. This it did not do. Indeed, there was nothing whatever in the answer suggesting such a defense. Its admission, therefore, was error. Woolsey v. Trustee of Village of Ellenville, 69 Hun, 489; 52 St. Rep. 720; Wright v. Delafield, 25 N. Y. 266; Day v. Town of New Lots, 107 id. 148; 11 St, Rep. 361; Reed v. McConnell, 133 N. Y. 425; 45 St. Rep. 227.

After the court had directed a verdict in favor of the defendant, the learned counsel for the defendant, appreciating that the defense upon which he had succeeded was not to be found in the pleadings, asked that the answer be amended by inserting an allegation setting forth the clause in the contract in respect to the certificate of the engineer, and an allegation that the certificate which had been offered in evidence was given by the engineer. While the motion was granted by the trial court, it has not helped the situation, for the granting of it was error. The general rule that the court may so amend pleadings as to conform them to the facts proved is not applicable to this case. It is not a case of mere variance or defect, but an attempt to amend a pleading after trial by alleging a defense not hinted at in it, and where the evidence upon which the motion was founded was received against the objection of the plaintiff. If this could be done, the useful objects which pleadings now serve in our system of jurisprudence would not be achieved. Instead of advising an adversary of the issue tendered, it would be possible to recover on a cause of action entirely different from that alleged, or, as in this case, to succeed upon a defense when the plaintiff has had no warning that he would be called upon to meet it.

The j udgment should be reversed, and a new trial granted, with costs to appellant to abide the event.

All concur.


text:
    Edwin Van Antwerp, App’lt, v. Edward F. Linton et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed October 18, 1895.)

    1. Master and servant—Third persons.
    An agent or servant is not liable to third persons for nonfeasance.
    2. Same,
    Where the agents of a corporation, charged with the duty of erecting on its grounds structures for the accommodation of the public, negligently permit a defective structure to be erected, they are guilty merely of nonfeasance.

      Appeal from a judgment, dismissing the complaint.

      Franklin Pierce, for app’lt; Edward W. S. Johnston, for resp’ts.
   Parker, J.

This appeal brings up a judgment entered on the dismissal of the complaint after the opening address to the jury by plaintiff’s counsel, which yas taken down. From the complaint and opening, it appears that the plaintiff was injured by the fall of the grand stand at the Yale-Princeton foot-ball game on Thanksgiving day, 1890, on grounds in possession of the Brooklyn’s Limited, a corporation organized under the -laws of the state of New York. The action was brought against the Brooklyn’s Limited and Messrs. Linton, Chauncey, and Wallace, who were appointed a committee of the board of directors of the Brooklyn’s Limited, to put the grounds in condition for the exhibition of the game. The Brooklyn’s Limited made default, and the question presented to the trial court, upon the motion to dismiss the complaint, was whether, from the complaint and opening, a cause of action against the individual defendants was stated. It was conceded that the individual defendants did not have any lease from the Brooklyn’s Limited nor any one else, running to them; and the sole ground upon which the plaintiff sought to charge them with liability was that they were appointed a committee by the directors of the corporation to erect a stand, and otherwise provide for the reception and convenience of the public, and that by reason of their negligent omission of duty there was a defective construction of the stand, which led to it falling, resulting in injury to the plaintiff. As it was conceded that the Brooklyn’s Limited was a domestic corporation duly organized under the laws of this state, and in possession of the premises when the stand was erected and also at the time of the accident, liability against the individual defendants could not be predicated upon their being directors, officers, or stockholders in such corporation. Demarest v. Flack, 128 N. Y. 205; 40 St. Rep. 383. That they were the agents of the corporation in directing and superintending the erection of the stand was assumed by the learned trial judge, as he was bound to do, upon the complaint and opening; and he reached the conclusion that the acts with which they were charged constituted nonfeasance, and not misfeasance. If he was right in such respect, it is conceded that the complaint was properly dismissed; for, whatever may be the rule in other jurisdictions, it is conceded that in this state an agent or servant is not liable to third persons for nonfeasance. As between himself and his master, he is bound to serve him with fidelity ; and for a breach of his duty he becomes liable to the master, who, in turn, may be charged in damages for injuries to third persons occasioned by the nonfeasance of the servant. For misfeasance the agent is liable to third parties suffering thereby. The distinction between nonfeasance and misfeasance has been expressed by the courts of this state as follows:

“ If the duty omitted by the agent or servant devolved upon him purely from his agency or employment, his omission is only of a duty he owes his principal or master, and the master alone is liable; while, if the duty rests upon him in his individual character, and was one that the law imposed upon him independently of his agency or employment; then he is liable.”

Appellant urges that although these individual defendants were charged by the corporation with the duty of erecting this stand,, and the acts complained of consisted in omitting to provide for a. construction of sufficient strength to withstand the strain to which-it was subjected, nevertheless they were guilty of misfeasance, rather than nonfeasance. With commendable diligence, he has-brought to our attention authorities in other jurisdictions tending to support his contention; but we refrain from their consideration because it is our understanding that the courts of this state have-determined otherwise. In Murray v. Usher, 117 N. Y. 542 ; 27 St. Rep. 928, the plaintiff, while employed upon a platform in-a sawmill belonging to two of the defendants, sustained injuries, by reason of its falling, 'which occasioned his death. His administrator brought an action against the owners of the mill, and one Lewis, who was their superintendent having general charge of the business, and being specially instructed to look after the necessary repairs, which included the duty of inspecting the platform from time to time to see that it was kept in a safe condition. Judgment was recovered against all of the defendants. In the court of appeals the question of the superintendent’s liability was considered; the court holding that the omission of the superintendent to perform the duty devolving upon him constituted nonfeasance, for which he was not liable in a civil action, but that his employers were. That case, it will be observed, is directly in point with the one under consideration. Lewis, the superintendent, neglected to perform the duty which his employers had devolved upon him, and such neglect led to the fall of the platform, which caused plaintiff’s injury. In this case the defendants were engaged in superintending the erection of the stand. As more than one was charged with such duty, they were called a committee. But the duties devolved upon them were of the same general character asín Murray's Case, and the charge is that the fall of the stand was due to their neglect to properly discharge the obligations upon them by the corporation. In Burns v. Pethcal, 75 Hun, 437; 57 St. Rep. 661, an attempt was made to recover of a foreman for the-loss of the life of an employe, due, it was charged to the omission of the foreman to warn the dead man of the danger of working in a particular place. There was a recovery at the circuit, but the general term reversed the judgment; holding that a servant is not liable jointly with his master, where the negligence of the servant consists of an omission of a duty devolved upon him by his employment, although he may be liable where he omits to perform a duty which rests upon him in his individual character, and one which the law imposes upon him independently of his employment. These cases fully sustain the decision of the trial court.

The judgment should be affirmed, with costs.

Yan Brunt, P. J., concurs. Follett, J., dissents.


text:
    Angus F. MacColl, App’lt, v. American Life Insurance Company of New York, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed October 18, 1896.)

    1. Pleading—Answer—Irrelevant and redundant,
    Where the complaint, in an action to recover money paid to defendant on account of an alleged stock subscription, states that plaintiff notified defendant of his refusal to take stock, whereupon the defendant sold the stock to others and thereby voluntarily abandon such subscription, an al legation in the answer that the payment was not on, account of the par value of the stock, but was pursuant to an agreement to pay such amount to be used for the expenses of organizing the company, and that the payment was received and used for that purpose, is neither irrelevant, redundant nor sham.
    2. Same—Inconsistent defenses.
    A defendant may plead inconsistent defenses. ‘
    Appeal from, an order, denying a motion to strike out the fifth paragraph of the answer for irrelevancy, redundancy and inconsistency, and the whole answer as sham.

      Gideon T. Ohappel, for app’lt; Wilson & Bennett, for resp’t.
   Per Curiam.

The action is brought to recover the sum of $800, paid to defendant on account of an alleged stock subscription of $10,000. Among other things, the complaint alleges that on May 3, 1894, plaintiff notified defendant of his refusal to take stock, and that thereafter defendant parted with its entire stock to others, and thereby voluntarily abandoned plaintiff’s subscription, released him therefrom; and that the defendant was capitalized at $500,000, which was paid up in cash prior to the date of its organization. The defendant, after admitting the organization of the company, the subscription by plaintiff to the stock, and his refusal to take it, then denies, except as so admitted, each and every allegation of the complaint, and by way of further answer alleges that the $300 sought to be recovered was not paid on account of the par value of the stock, but pursuant to an agreement whereby plaintiff, with other promoters of the company, agreed to pay on the call of the treasurer a sum equal to three per cent, on account of his subscription to said capital stock, which was to be used as a promoters’ fund, to meet the expenses of the organization of the company, and that the same was received and used for the purposes designated. We regard this motion made on these pleadings as entirely unnecessary, and therefore properly denied by the special term. The matter set up in the answer is neither irrelevant nor redundant, and, even though it might be construed as inconsistent, there is nothing in our practice which would prevent a person setting up inconsistent defenses, provided they are properly pleaded.

Nor do we think that the answer can be regarded as sham. The real issue between the parties—as to the terms under which the $300 was paid—seems to be as to a subscription to be used for the purpose of paying the expenses of organization, in addition to the par value of the stock. While there is in the prospectus issued by the president some warrant for the view taken by the plaintiff, this is fully offset by the agreements signed by the plaintiff, in one of which he agrees to pay three per cent, to meet the expenses of organization, and by the other agrees to pay the par value of the stock. The question thus presented is not to be disposed of on a motion, nor can it be said that a defense thus fortified is sham.

As already said, we think the order below was right, and should be affirmed, with $10 costs and disbursements.


text:
    In the Matter of the Judicial Settlement of the Accounts of Rachel Steward et al., as Administrators of Warner Steward, Deceased. Daniel Steward et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed October 16, 1895.)

    1. Descent and distribution—Widow.
    The interest of the widow, in addition to her dower right, does not include the latter, or bring it into consideration in making the value upon which the duty of the appraisers to set apart personal property is dependent, or in ascertaining the amount to be set apart for the use of the widow and minor children.
    2. Limitation—Husband and wire.
    Where the wife of the decedent! more than twenty years before his death gave him money, asking him to keep it for her, without any special arrangement at the time he received it or afterwards as to its use, but there was evidence that it was contemplated that he would use it for his own purposes and pay her interest upon it, the decedent is a debtor and not a depositary for his wife, and the claim is barred by the statute of limitations.
    3. Executors—Accounting—Taxes.
    Where the administrator pays taxes upon the real and personal property, upon an assessment made and completed by the assessors prior to the death of the intestate, such payment is properly allowed upon his accounting.
    Appeal from a decree of the surrogate .upon • the principal settlement of the accounts of administrators.

      N. M. Allen, for app’lts Daniel Steward and Oadwell; B. A. Hall, for app’lt Rachel Steward; W. 8. Thrasher, for resp’t Ella, Dedia, and Manley Steward.
   Bradley, J.

Warner Steward died intestate in September, 1889, leaving surviving him a widow, Rachel Steward, and five-children, some of whom were minors. This proceeding for final judicial settlement of the accounts of the administrators was instituted by them in June, 1891. The appraisers, having set apart for the use of the widow and minor children personal property to the amount of $150, ascertained that the real estate of which th e decedent died seised was of the value of $5,825, in which the value of the widow’s interest (as given by statute), exclusive of her dower right, was $570.35. And because this, with $150 added, was less in amount than $1,000, the appraisers set apart for the use of the widow and minor children $429.65 of the personal estate. It is urged that this was not permissible, and that, as the value of such interest of the widow, with that of her dower right added, would produce a sum in excess of $1,000, it was not in the power of the appraisers in that connection to set apart any personal property for the use of the widow and minor children. The disposition of this question is dependent upon the construction of the statute as it existed at the time of the death of the intestate. By the section added to chapter 2 of part 2 of the Revised Statutes, entitled “Of title to real property by descent,” it was provided that:

“If the intestate shall leave a widow and a descendant or descendants, then such widow in addition to any interest to which she may be entitled under the preceding sections * * ' * shall be entitled to the use during her life, of an additional portion of the estate, not exceeding in value one thousand dollars.” Laws 1889, chap. 406, § 1.

The next section contained the provision that:

“In case the interest of a widow in the real estate of a deceased husband, in addition to her dower right, and together with said one hundred and fifty dollars shall be of less value than one thousand dollars, then said appraisers shall set apart, for the use of sucli widow or child and children, in the manner hereinbefore prescribed, personal property which together with said real estate, shall amount to one thousand dollars in value.” Id. § 2.

By the first section the widow was given an interest in the real estate left by her husband, in addition to her dower right therein, and such is her interest had in view by the provision in the second section, referring to the interest of a widow in the real estate “in addition to her dower right.” This is descriptive of the interest, the value of which, when, with $150 included, is less than $1,000, the residue of the latter amount is to be made up of personal property set apart for the use of the widow and minor children. It seems to me that such is the fair and necessary meaning of the provision. I am therefore unable to adopt the construction given to it in Re Daggett's Estate, 29 St. Rep. 864; Daggett v. Daggett, 37 St. Rep. 810. The interest of the widow, in addition to her dower right, does not include the latter, or bring it into consideration in making the value upon which the duty of the appraisers to set apart personal property is dependent, or in ascertaining the amount to be set apart for the use of the widow and minor chiL dren. The words, “in addition to her dower right,” are words of description and limitation of the widow’s interest which, with $150 added, in its relation in amount to $1,000, determines the extent in value of the personal property to set apart pursuant to such direction of the statute. This was properly done by the appraisers in the present case. The provisions referred to of the act of 1889 did not exist long. They-were repealed by Laws 1890, chap. 173.

The claim made by Rachel Steward against the estate is for $600, which her husband received from her upwards of twenty years before his death. She presents her claim in form as a deposit of that amount of money with the intestate. The objection was made that the claim was barred by the statute of limitations. If the husband was the depository of the money as such, the statute is no bar to the claim. Boughton v. Flint, 74 N. Y. 476. The evidence of the person who paid the money to the claimant is that lie handed it to her, and that “she handed it to her husband, and told him to take care of it;” that he took the money, and told her he'“would pay it out toward his lands.” He never repaid the money to her. It appears that on several occasions( and up to near the time of his death, he stated that he had had the money, and intended to pay her. And there is evidence that on an occasion in 1881 he received from a person a sum of money in excess of $600, in the presence of his wife, and passed it across the table to her, and requested her to take it in payment of the money he had from her, and that she told him to keep the money until she called for it. On his further examination the witness testified that the intestate laid the money on the table, and said to his wife, “Take that toward what I owe you.” The witness could not say that she had her hands on the money. The person who paid the money testified that the decedent said to his wife, “You take this money on what I am owing you,’ and she said, ‘I don’t want it,’ and he took the money.” This witness did not recollect that' Steward said he wanted his wife to take it on what he was owing her. There does not seem to have been any special arrangement, at the time he received the $600 from his wife or afterwards, to keep or invest it for his wife; and there is evidence to the effect that it was contemplated that he would use'the money for his own purpose, and pay her interest upon it. While there may be some evidence to permit the inference that the husband received the money as depository of it for his wife, the conclusion of the surrogate that the element essential to a deposit was wanting in the transaction was fairly warranted by the evidence, and that, therefore, the allowance of the claim was barred by statute. Sheldon v. Sheldon, 133 N. Y. 1; 44 St. Rep. 260; Mills v. Mills, 115 N. Y. 80; 23 St. Rep. 604. The present case furnishes an instance where the statute of limitations is made available to bar a claim after the death of a debtor who, up to the time of his death, recognized his liability, and repeatedly promised to pay it, and who, on the day preceding his death, when he was without hope of living much longer, expressed his desire that it, with interest, be paid from his property.

Several objections are made to the accounts as rendered by the administrators in the proceeding, and some exceptions are taken to the rulings or conclusions of the surrogate in that respect. It seems that the oats, corn, hay, and straw on the premises at the time of the death of the intestate were of the value of $211.50. This was fed out on the farm, and the surrogate charged the administrators with one-half of that amount. The evidence on the subject was somewhat vague as to what portion of it was used for the stock belonging to the estate, but we are inclined to think the disposition made of the question was permitted. There was a payment made to one of the sons of the decedent for taking care of the property after the death of his father, for a portion of which sum so paid to him the administrators were allowed credit. In this there was apparently no error. They also paid a small sum for insurance upon the buildings and personal property on the premises. How much for each does not appear. While their right to pay it as to the realty may be questionable, we think there is no occasion upon the evidence to disagree with the views of the court below on the subject. Herkimer v. Rice, 27 N Y. 163; Clinton v. Insurance Co., 45 N. Y. 454. The administrators paid some taxes upon the real and personal property upon an assessment made and completed by the assessors prior to the death of the intestate. His liability to pay the tax levied upon the assessment was fixed. Mygatt v. Washburn, 15 N. Y. 316; Clark v. Norton, 49 N. Y. 243; Boyd v. Gray, 34 How. Prac. 323. There was ño error in allowing them credit for the amount so paid. Without specifically referring to other questions raised by the appellants, we think they are not such as to fairly require the direction for a further accounting by the administrators.

The decree of the surrogate’s court should therefore be affirmed, with costs of this appeal to the respondents, payable out of the estate.

All concur.


text:
    Joseph H. White, App’lt, v. John Koster et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed October 18, 1895.)

    1. Pleading—Motion to make mobe definite.
    Where the answer definitely puts in issue the allegations of the complaint, a motion by the plaintiff to make it more definite and certain will be denied.
    2. Same—Denial.
    A denial, general or specific, cannot be included in, and form part of, an affirmative defense, not containing a counterclaim.
    3. Same—Incobpobating mattebs albeady pleaded. ,
    A defendant has the right to incorporate affirmative allegations of a former defense in a subsequent defense by either repeating, or by such reference as should make them a part of the latter defense.
    Appeal from an order, denying a motion to make the answer more definite and certain.
    The amended complaint and answer are as follows :
    “The amended complaint of the plaintiff above-named respectfully shows: First. Upon information and belief, that the above-named defendants, on or about the 24th day of February, 1892, represented to one Marie Lloyd that they, said defendants, were in the theatrical business, having a variety theater on Twenty-Third street, near Sixth avenue, in the city of Hew York. Second. Upon information and belief that on the strength of the representations mentioned in the first paragraph, said Marie Lloyd, on or about said 24th day of February, 1892, entered into an agreement in writing with said defendants whereby she agreed to perform, in her usual business, which was that of comic songs and dances, for a period of nine weeks, to commence July 4, 1892, at Koster & Bial’s theater of varieties, then conducted" by said defendants at Twenty-Third street, near Sixth avenue, in the city of Hew York, aforesaid. Third. Upon information and belief, that said defendants did not have a theatrical license allowing them to conduct a theater of any kind at their said place on Twenty-Third street near Sixth avenue, on the 24th day of February, 1892, or at any time thereafter, and it was contrary to the laws of the state of New York for them to conduct a theater at said place without a license. Fourth. Upon information and belief, that on or about the 24th day of February, 1892, and continuously thereafter, and to and including the period for which said Marie Lloyd agreed to perform as aforesaid, said defendants sold wine, beer and strong and spirituous liquors to persons in the auditorium of their said theater of varieties, or place of giving performance,, while the theatrical performance was in progress at said place on Twenty-Third street, near Sixth avenue, in said city of New York, aforesaid. Fifth. Upon information and belief, that by reason of the selling of" said wine, beer, and strong and spirituous liquors as aforesaid, whatever license said defendants had, if any, was vacated, annulled, and rendered void of itself, without any action by the authorities of the city, county, or state of New York. Sixth. Upon information and belief, that said Marie Lloyd was wholly ignorant of the facts alleged'in the third, fourth and fifth paragraphs pf this amended complaint, and did not become aware of the same until she paid the $600 to said defendants hereinafter mentioned. Seventh. Upon information and belief, that on or about the 9th day of October, 1894, in an action in the supreme court of this state, wherein the above-named defendants were plaintiffs and said Marie Lloyd was defendant, a warrant of attachment against the property of said Marie Lloyd was issued, on the cause of action alleged in the affidavit of the defendant Rial, to recover the liquated damages for an alleged breach of said agreement on the part of said Marie - Lloyd to perform in said theater of varieties, as she had therein agreed to do, and that in said supreme court action the said Marie Lloyd, not then being represented by counsel, or being in possession of the proper facts, and by reason of the stress of said warrant of attachment, she, on or about the 11th day of October, 1894, paid to the above-named defendants the sum of $600 for the purpose of having said attachment removed; that since the payment of said $600, as aforesaid, said Marie Lloyd discovered that, at the time when the alleged breach of contract took place, and at the time said agreement was entered into, said defendants had not such license under the statute as would permit said Marie Lloyd to perform the act, to wit, to dance, which by said contract she was employed to do. Said ■ defendants, however, well knowing that said Marie Lloyd was to dance, and well-knowing that that was an act which could not legally be performed at their said place on Twenty-Third street, near Sixth" avenue, aforesaid, and that, even though she had been willing to perform said acts, said defendants then had no place, and' never had in said city a place, wherein her performance could legally have taken place, and said Marie Lloyd did not know at that timethat'said defendants had no license that would have permitted such performance, but she was under the belief, and relied on the belief, that said defendants' license, if any, would permit such performance, and through this mistake of fact, and by the stress of said warrant of attachment and the levy thereunder, paid said $600 to said defendants as aforesaid. Eighth. That, before the commencement of this action, for value received, by an instrument in writing said Marie Lloyd transferred and set over the foregoing claim, demand, and cause of action to the above-named plaintiff, who ever since has been the owner and holder thereof. Ninth. That, before the commencement of this action, and on or about the 15th day of November, 1894, said plaintiff duly demanded from said defendants the repayment of said $600 so paid by mistake as aforesaid, but said defendants have wholly failed to pay the same or any part thereof. Wherefore said plaintiff demands judgment against said defendants, and each of them, for said sum of $600, together with the interest thereon from the 11th day of October, 1894, besides the costs of this action.”
    “ The defendants answer the amended complaint in this action as follows : First. For a first defense, they admit that, in the action referred to in 'the amended complaint, a warrant of attachment against the property of Marie Lloyd was issued on a cause of action, alleged in an affidavit of the defendant Bial, to recover the liquidated damages for breach of an agreement on the part of said Marie Lloyd. Said agreement with Marie Lloyd was in writing. A copy thereof is in the possession of the defendants, and for greater certainty as to the terms thereof, defendants pray leave to refer to the same, when the same is produced and proven, if need be. The defendants deny, on information and belief, that Marie Lloyd was not represented by counsel in the settlement of said action. They deny, on information and belief, that, at the date of such settlement, she was in ignorance of any of the material facts as alleged in the amended complaint, or that she made the contract under any misapprehension, either of fact or law, as alleged in the complaint. They admit that Marie Lloyd, on or about October 11} 1894, paid to them the sum of $600 in settlement of the claim upon which said action was brought. They deny that said payment of $600 was made by Marie Llovd under any mistake of fact, or under the stress of said warrant of attachment, or in any respect under duress. They admit and allege, that, at the time they made said contract with Marie Lloyd, to wit, on or about February 24,1892, and at the time when said contract was to have been performed by Marie Lloyd, they were in possession of a place on Twenty third street, near Sixth avenue, in the city of New York, where public performances of such character as that contemplated in said contract could lawfully be given. They admit and allege that, at said times, they held a license from the mayor to maintain such place for such public performances, but as to the terms of said license, and the legal effect thereof, they pray leave to refer to the same, when the same is produced and proven, if need be. They deny that they had no place where said contemplated performance by Marie Lloyd could lawfully be given, They deny that any levy was made under said warrant of attachment, and on the contrary allege that said payment of $600 was a voluntary payment, made by Marie Lloyd in settlement of the claim, for which said action was brought. They deny, on information and belief, the allegations contained in the eighth paragraph of the complaint. Second. For a second and separate defense, the defendants, reiterating the denials and repeating the allegations contained in their first defense, further answering, allege on information and belief, that the plaintiff is not the real owner or holder of the claim to recover which this action is brought, and is not the real party in interest, but that the real party in interest is Marie Lloyd, who is a nonresident of this state, and has returned to her home in England. Wherefore the defendants demand judgment that the complaint be dismissed, with costs.”

      Jacob Fromme, for app’It; Francis G. Kimball, for resp’ts.
   Per Curiam.

Tho order appealed from denied plaintiff's motion to make certain allegations of the answer more definite and certain, by stating the character of the license which defendants held from the mayor to maintain a place of amusement at Twenty-Third street. The complaint alleged a contract with the plaintiff’s assignor, Marie Lloyd, by which she agreed to take part in certain performances, to be given by the defendants, for a period of nine weeks, and that she was induced to make such contract by the representations of the defendants that they had a variety theater on Twenty-Third street, near Sixth avenue, in the city of Hew York, where they were authorized to conduct a theatrical business; but that the defendants did not have, at the time of the making of the contract, or during the period provided for its continuance, a theatrical license allowing them to conduct a theater of any kind at such place. The answer alleges possession of a place on Twenty-Third street by the defendants, where public performances of such character as that contemplated in the contract could lawfully be given, and that they held a license from the mayor to maintain such place for such public performances. The answer, therefore, definitely and certainly put in issue the allegations of the complaint referred to, and more than that the plaintiff is not entitled to have on a motion of this character. What he seeks to obtain is'the evidence upon which the defendants rely to support their denials of plaintiff’s allegations, and their affirmative allegations that they held a license from the mayor authorizing them to give such performances as the contract contemplated. That evidence the special term properly decided they were not entitled to have, under the guise of making the answer more definite and certain. The defendants opened their second defense with the phrase, “ Reiterating the denials and repeating the allegations contained in their first defense.” As an affirmative defense not including a counterclaim necessarily admits and avoids the cause of action set out in the complaint, a denial, general or specific, cannot be included in and form a part of such defense. The denial may be pleaded in the same answer as a separate defense, but not as a plea of new matter. Stale v. McChesney, 87 Hun, 293; 68 St. Rep. 442. But, while the defendants’ attempt to repeat the denials was error, they had the right to incorporate the affirmative allegations of the first defense in the second one by either repeating, or by such reference as should make them a part of the affirmative defense. The motion was, therefore, too broad, and the moving party was not entitled to have his motion prevail to the extent asked. The denial of his motion, therefore, does not call for reversal.

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