author: Freedman, J.

text:
    Henry Siefke, Resp’t, v. The Manhattan Ry. Company et al., App'lts.

      (New York Superior Court, General Term,

      Filed June 3, 1891,)

      ■ Equitable action—Eminent domain—Assignment op damages—Trial. BY JURY.
    An action was brought to obtain injunctive relief against the maintenance and operation of defendants’ elevated railway in front of plaintiff’s premises, and for damages. Upon the trial plaintiff attempted to recover, besides damages to property during his own ownership, damages sustained for a former owner, which had been assigned to him. Held, that plaintiff could not recover for the assigned damages in the equitable action, as it would deprive defendants of their right to trial by jury.
    Appeal from judgment entered upon the decision of a judge,, after a trial at special term.

      Davies & Rapallo, for app’lts; William Allen, for resp’t.
   Freedman, J.

-The action was brought to obtain, and by the judgment appealed from the plaintiff did obtain, injunctive relief against the maintenance and operation of defendants’ elevated railway in front of his premises. Upon the trial the plaintiff attempted to recover, besides damages to the property during his own ownership, damages sustained by his fattier as former owner between April 17, 1882, and October 18, 1882, and which had been assigned to the plaintiff.

The defendants from the start, and throughout the trial, insisted that the assigned damages were not incidental to plaintiff’s equitable cause of action, and that as to them, they had a right of trial by jury. The trial judge overruled the objections of the defendants in this respect, and against their exceptions determined and awarded such damages. This constituted error. The principle which permits past damages to be assessed in actions of this character as incidental to the relief granted, is exceptional. Its purpose is to prevent the necessity of the plaintiff’s bringing two actions upon his own grievances. But it ought not to be so extended as to permit a plaintiff to purchase an outstanding claim of another person enforcible only at law, and to unite it with a claim of his own for equitable relief, and thus to deprive the defendants of the right to a mode of trial which would have been secured to them by the constitution and the laws of the state, had the claim been put in suit by its original holder. The precise point has been determined by the general term of the supreme court, first department, in Sommer v. The N. Y. Elevated Railway Co. 38 N. Y. State Rep., 419, and another, in accordance with the foregoing views.

I am also of the opinion that the award of past damages and the assessment of damages to fee value should not be permitted to stand. The premises with respect to which this action was brought consist of a lot of land on the northeasterly corner of Sixth avenue and West Third street, having a frontage on Sixth avenue of twenty-five feet and on West Third street of 100 feet. Upon said premises there are erected four small buildings. The corner building has been used as a liquor store and at least two of the others as houses of prostitution, but it is not necessary to stop to consider the question of illegal use. The facts which stand forth in bold relief are that the premises in question were sold in 1866 to Ignatius Flynn, for $20,000; that in 1867 they were sold to Henry Siefke, plaintiffs father, for $21,500; that in 1882 plaintiff’s father conveyed them to the plaintiff for $15,000; that the complaint demanded $12,000 for permanent loss of fee value, and that the trial judge awarded $26,900 for such loss. For past damages the complaint demanded $5,000 and the trial judge awarded $14,500.

The evidence is too voluminous and complicated to be discussed in detail and I have to content myself with the statement that a careful and thorough examination of it has satisfied me that it does not support the conclusions of the trial judge above referred to.

It is quite true that in consequence of the maintenance and operation of the elevated railway upon two sides of the premises, namely, on. Sixth avenue and West Third street, the plaintiff sustained a greater injury than any other owner of an abutting lot of equal size and similarly affected upon one side only, but, after all, the award of damages must be founded upon a fair and reasonable construction of the evidence in view of all the facts and circumstances disclosed and the probabilities properly deducible therefrom according to common experience, and such a construction of the evidence in this case does not sustain the relief granted.

The amounts awarded are, therefore, unwarranted by the evidence as well as in excess of the amounts demanded in the complaint.

The judgment should be reversed and a new trial ordered, with costs to the appellants to abide the event.

Sedgwick, Ch. J., and McAdam, J., concur.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Mary Senft, Resp’t, v. The Manhattan R. R. Co., et al., App’lts.

      (New York Superior Court, General Term,

      Filed June 10, 1891.)

    Appeal—Cannot eaise objection not made below.
    During the pendency of an action for an injunction against maintaining an elevated railroad and for damages, plaintiff conveyed to the present plaintiff the property in the action, and it was ordered that she he substituted as plaintiff and that so much of the cause of action alleged in the complaint as is for equitable relief continue in the name of fhe substituted plaintiff, upon condition that within forty days she serve a supplemental complaint setting up the equitable cause of action for which action was brought. It was served, but did not set up the equitable cause of action, but alleged an original cause of action in her favor that had accrued upon the conveyance of the property to her being made. The issues were tried without objection, and judgment ordered for plaintiff in a case that supported the supplemental complaint. Held, that no objection being made prior to or on the trial that the supplemental complaint alleged a cause of ' action which accrued after the action was begun, it could not be raised on the appeal.
    Appeal by defendants from judgment entered on findings, etc., made at special term.

      Davies & Rapallo (Julien T. Davies and Brainard Tolles, of counsel), for app’lts; James B. Ludlow, for resp’t.
   Per Curiam.

—The action was for an injunction against the defendants continuing to maintain their elevated railroad in front of plaintiff’s premises, and for damages.

The original plaintiff was one Christian Senft. After the action was begun he conveyed to the present plaintiff, the property in the action. Upon her application it was ordered that she be substituted as plaintiff and it was further ordered that so much of the cause of action alleged in the complaint as is- for equitable relief, viz.: for an injunction, etc., may be and the same is continued in the name of the substituted plaintiff upon condition that within forty days the substituted plaintiff serve a supplemental complaint setting up the said equitable cause of action.

Under this provision a supplemental complaint was served, but it may be here assumed that it did not set up the equitable cause of action for which action was brought, and that it alleged an original cause of action in her own favor, that had accrued upon the conveyance of the property to her being made.

The defendants served an answer to this supplemental complaint. The issues were tried, and judgment was ordered for plaintiff on a case that supported the supplemental complaint.

It is now objected to the judgment that it was not competent to try any other case than such as existed at the beginning of the action, by Christian Senft, and that the present plaintiff could not recover upon a cause of action that accrued after this action was begun.

This objection was not taken upon the trial. There had been no motion to set aside the complaint as one not allowed by the order of substitution. Uo proceeding was taken based upon the ground that the condition of the order had not been performed. All the exceptions upon the trial were such as applied to a case properly pleaded, and there was no allusion to any defect or irregularity of pleading. The judgment, therefore, cannot be reversed upon the ground taken on the appeal.

The other question of the appeal must be determined for the respondents as they have heretofore in other cases been heard and passed upon.

Judgment affirmed, with costs.

Sedg-wíck, Truax and Dugro, JJ., concur.


author: McGown, J.

text:
    The Garfield National Bank, Resp’t, v. William L. Bostwick, App’lt.

      (City Court of New York, General Term,

      Filed June 19, 1891.)

    Supplementary proceedings—Receivership—Extending—Code Civ. Pro., § 2466.
    In proceedings supplementary to execution, one C. was appointed receiver of the property of the judgment debtor, by an order of the supreme court, and duly qualified. Thereafter a judgment was recovered in the city court of New York against the same defendant, execution returned unsatisfied and proceedings supplementary thereto had, and an order entered by a justice of that court extending C.’s receivership to the proceedings in the action. Afterwards an order was made by the justice, vacating C.’s receivership and appointing one Y. in his stead. Beld, that such order was unauthorized by § 2466 of the Code of Civil Procedure.
    Appeal from an order removing a receiver, etc.

      Edwin R. Root, for app’lt; Jno. J. Adams, for resp’t.
   McGown, J.

—A judgment was recovered on the 7th day of April, 1885, in the supreme court, Tompkins county, by the Tompkins County National Bank, plaintiff, against William L. Bostwick, the above named defendant, for the sum of $3,815.81; and on the 17th day of April, 1885, in a special proceeding supplemental to an execution, issued on said judgment, Mynderse Yan Cleef was, by an order made and entered on April 17, 1885, appointed by the Hon. Marcus Lyon, justice of said court, receiver of the property of said Bostwick. In pursuance of said order, the receiver executed a bond as required by said order, with sureties in a penalty of $5,000, and which bond was duly approved and' filed in the office of Tompkins county, on the 18th day of April, 1885, and said receiver thereupon became invested with all the rights and powers of a receiver of the property of said defendant, William L. Bostwick.

On the 2d day of May, 1890, a judgment was recovered in this action against said defendant, and in favor of the above named plaintiff, for the sum of $749.81. Execution issued thereon, returned unsatisfied, and proceedings supplementary to execution were had and an order made and entered in the office of the clerk of the city and county of New York on the 13th day of March, 1891, extending the receivership of said Mynderse Yan Cleef (appointed receiver in the action in the supreme court8 as hereinbefore stated), to the proceedings in this action, as receiver of all the property of said defendant Bostwick, and requiring him to furnish additional security as such receiver.

On the 6th day of May, 1891, an order was made herein, vacating the order granted on the 13th day of March, 1891 (extending the receivership of said Yan Cleef, receiver), and appointing one George J. Yestner, receiver of the debts, etc., of said defendant Bostwick, in the place and stead of said Yan Cleef.

The defendant herein (the judgment debtor in the supplemental proceedings) appeals from this order.

Section 2466 of the Code of Civil Procedure provides, that “ only one receiver of the property of a judgment debtor shall be appointed. Where a receiver thereof has already been appointed the j edge, instead of making the order prescribed in the last section but one (§ 2464), must make an order extending the receivership to the special proceeding before him, etc.”

Section 2471 provides that “A receiver, appointed "* * * is subject to the direction and control of the court out of which the execution was issued. Where an order has been made, extending the receivership to a special proceeding founded upon a subsequent judgment, the control over and direction of the receiver, with respect to the judgment, remains in the court to whose control and direction he was originally subject.”

The order appealed from virtually removes Van Cleef as receiver by appointing Vestner receiver, “in place and stead of said Van Cleef, receiver.”

There is no power in this court to remove a receiver appointed 1 by the supreme court. Such removal can only be made by the supreme court by whom he was appointed. Upon the appointment of Van Cleef as receiver he became an officer of the court, and was appointed for the benefit of all creditors who have commenced or shall commence similar proceedings. Banks v. Potter, 21 How. Pr., 469.

The order appealed from must be reversed, with costs.

Bhrlich, Ch. J., and McCarthy, J., concur.


author: McAdam, J.

text:
    The Jackson Architectural Iron Works, Resp’t, v. Charles Broadway Rouss, App’lt.

      (New York Superior Court, General Term,

      Filed July 2, 1891.)

    Contract—Change of Architect’s plans—Ratification by owner.
    Where the architect, during the erection of a building, made at least seventeen changes from the original plans, which were ratified by the owner, Held, that the owner was'liable to the contractor for a further alteration made by the architect, necessitating an expense of $4,138 not included in the original plan, the owner having received the full benefit of the change.
    Appeal from the judgment of the special term in favor of the plaintiff and against the defendant for $11,536.96.

      Palmer & Boothby, for app’lt; Norwood & Coggeshall, for resp’t.
   McAdam, J.

—The action was brought for the foreclosure of a mechanic’s lien, the plaintiff claiming $6,308.50 as a balance due for contract and extra work and $4,138 as the agreed price of an iron staircase put up by the plaintiff in the defendant’s building.

The main controversy presented by the pleadings and tried by the court was over the question whether the staircase was included in the original contract between the parties, the defendant resting his claim of non-performance of the contract on the proposition that because a certain staircase was included in the contract, and not built as he claimed it was provided it should be by the contract, that, therefore, the plaintiff had not performed the contract, and that the agreement made by the architect of the defendant with the plaintiff for the building of the staircase put in the premises was without the authority of the defendant, and, therefore, not binding upon him.

The proof satisfactorily establishes the substantial performance of the contract and of the extra work and that $6,308.50 was actually due therefor. The staircase about which the main dispute arises was erected by the direction and under the superintendence of the defendant’s architect under a special agreement to pay therefor $4,188. The architect was the defendant’s chosen agent to superintend the erection of the building, and all alterations were to be made under his direction, and all disputes respect- ■ ing the plans and specifications and the manner of doing the work were by the contract left to his decision. The contract between the parties contemplated the erection of a structure agreeably to the plans and specifications, and the fact that certain enumerated powers were conferred upon the architect would not imply but rather negative any extension of his authority, yet the proof shows that the architect, in at least seventeen different respects, made changes and alterations which were subsequently ratified by the owner, a circumstance indicating that the owner did not mean to limit him to the powers expressly conferred, for he seems to have relied upon his superior experience to direct, as well as superintend, the erection, and do everything necessary to make it complete and satisfactory. Indeed, in almost every large structure, alterations and modifications are-found necessary to carry into practical effect the design of the architect, and the necessity for the changes become apparent as the building progresses.

The proof amply shows that the stairs, for which this $4,138 was to be paid, were not included in the original contract with the plaintiff, and that the agreement made by the architect for their erection was a proper exercise of authority which the owner, by his conduct, conferred upon the architect, in respect to the subject matter of his employment. The trial judge found that the architect had authority, and the evidence sustains the finding. While the contract confers certain specified powers 'upon the architect, it was competent for the defendant to enlarge them, and this he might do by word or writing, or by permitting the architect to make changes and alterations at pleasure, and afterwards paying for the things so done, and this he did in reference to the plaintiff and its work upon the building in question. This principle has been applied to various cases. Thus, where a clerk is usually intrusted to sign notes, or usually does sign notes for his-master, which are afterwards paid or recognized to be valid, he is presumed to possess a rightful authority to do so in other instances within the scope of the same business. Story on Agency, § 55. The defendant, with knowledge of the facts, ratified the previous acts of the architect in departing from the plans and specifications, and in the instance of the stairs about which he now objects there was no previous dissent upon his part.

" It would be inequitable to permit the defendant after he has received the full benefit of the stairs, to object for the first time to paying for their erection, particularly as the plaintiff was led to believe from the conduct of the defendant that the architect had power to direct the work, and that it like the other changes made would be compensated for by the defendant.

The certificates of the architect furnished to the plaintiff (there being no evidence of fraud or mistake) are evidence of due performance of the contract. Anderson v. Meislahn, 12 Daly, 149; Wyckoff v. Meyers, 44 N. Y., 145; Butler v. Tucker, 24 Wend., 449; Smith v. Brady, 17 N. Y., 175; Stewart v. Keteltas, 36 id., 388; Glacius v. Black, 50 id., 151.

The certificates have not the force of proving that something was embraced in the contract which was in fact not included therein, but merely that the contract itself had been performed.

The fining of the extra work, including the extra stairway, and their value were all established by competent evidence aside from the certificates. The case involves questions of fact which the trial judge on satisfactory evidence disposed of adversely to the defendant. We have failed to discover any reason for disturbing his findings or conclusions. Several exceptions were taken during the trial, but it is unnecessary to go over them in detail, for we regard them as without merit.

It follows that the judgment appealed from must be affirmed, with costs.

Dugro, J., concurs.


author: Gildersleeve, J.

text:
    Frederick G. Moore, Resp’t, v. The Prentiss Tool & Supply Company, App’lt.

      (New York Superior Court, General Term,

      Filed July 2, 1891.)

    1. Conversion—Chattel mortgage sale—Rights of purchasers.
    The Y. B. Co. executed to one J. a chattel mortgage, and subsequently executed another mortgage to plaintiff, covering the same property. Shortly thereafter the Y. B. Co. executed a bill of sale of all the chattels covered by the two mortgages to the defendant, who took possession. Both mortgages had been duly filed. Plaintiff foreclosed his mortgage, bought in the property, and the defendant refusing to deliver possession of the chattels, brought an action for conversion. Pending the action defendant agreed that the J. mortgage should be considered due, and it was foreclosed; defendant became the purchaser and ' served an amended answer, setting up the purchase as a defense. Held, that the defendant acquired no rights that could affect the issues in the action already bea:un by the purchase of the chattels at the sale under the foreclosure of the J. mortgage.
    2. Same—Evidence—What not admissible.
    Defendant offered to show that plaintiff had agreed to furnish the Y. B. Co. money to carry on its business in consideration of their giving him the mortgage, and that he had not fulfilled his contract. Held, that such evidence was inadmissible, as the defendant .could not avail himself of a breach of contract between plaintiff and the Y. B. Co.
    3. Same—Refusal to deliver possession—Declarations.
    Defendant’s refusal to deliver possession of the chattels upon a written demand by plaintiff, made after his purchase at the foreclosure sale, and the declaration of defendant’s agent that he proposed to hold on to the property, show a conversion of the property in question by the defendant.

      Appeal from a judgment for plaintiff entered on verdict of a jury at trial term, and from an order denying the motion for a new trial.

      John M. Perry, for app’lt; Phillips & Avery, for resp’t.
   Gildersleeve, J.

—On or about September 21,1889, the Yonkers Brass Works, a copartnership carrying on a brass molding business in the city of Yonkers, executed to one Leonidas 0. Jewett a chattel mortgage to secure the payment of a promissory note for $1,200, payable in twelve months from said 21st day of September, 1889. This mortgage covered a large number of chattels in the possession of the Yonkers Brass Works.

Subsequently, and on or about the 28th day of October, 1889, the said Yonkers Brass Works being indebted to the plaintiff in the sum of $2,350, executed a chattel mortgage to secure this indebtedness to the plaintiff, which mortgage covered the same chattels that were covered by the Jewett mortgage. On November 12, 1889, the said Yonkers Brass Works executed a bill of sale of all the chattels covered by the two mortgages to the defendant, and at the same time delivered to the defendant a key of the factory in which said chattels were contained, and the defendant thereupon took possession of said chattels. Both of said mortgages, to Jewett and the plaintiff had been duly filed. On the 27th day of November, 1889, the plaintiff’s mortgage became due, but was not paid; whereupon the plaintiff, on the 5th day of December, 1889, forclosed his said mortgage, and at the sale, which took place in front of the premises of the Yonkers Brass Works, in which the chattels were, the key to said premises being in the possession of the defendant or its agent, the plaintiff bought in the property, and then demanded of Mr. Perry, who represented the defendant at said sale, the key to the premises, which was in the possession of said Perry, so that plaintiff could take possession of the chattels.

The defendant’s said representative, however, refused to give up the key and declined to allow the plaintiff to take the said chattels, claiming that they belonged to the defendant. On December 10, 1889, plaintiff made both an oral and written demand upon the defendant to deliver or give up the said chattels to the plaintiff. On December 30, 1889, the plaintiff, being unable to obtain possession of the said chattels, commenced this action for conversion. After this action was so commenced, and on the 21st day of February, 1890, and after the defendant had appeared and answered the complaint, the Jewett mortgage was assigned to one Roy; and on or about the 24th day of February, 1890, the defendant and said Roy made an arrangement by which the said Jewett mortgage should be considered then due. On the 28th day of February, 1890, the said Jewett mortgage was foreclosed, the chattels covered by it sold, and the defendant became the purchaser, whereupon it served an amended answer setting up this fact as a defense. Prior to the foreclosure of plaintiff’s mortgage; a fire had taken place at the factory of the Yonkers Brass Works, in which the chattels covered by the two mortgages were, and some damage done to the chattels; but the preponderance of evidence is to the effect that the value of the chattels was abundantly sufficient to cover both mortgages.

The defendant acquired no rights that can affect the issues in this action, by the purchase of the chattels in question at the sale under the foreclosure of the Jewett mortgage, which mortgage had been previously assigned to said Boy, and which, although by its terms not yet due, was considered due by virtue of the arrangement entered into between the defendant and said Boy. Whatever right of action the plaintiff had at the time of the service of the summons and complaint herein could not be taken away from him without his knowledge or consent. Livermore v. Northrup, 44 N. Y., 112. The plaintiff was not a party to said agreement between Boy and defendant, and did not directly or indirectly acquiesce therein or assent thereto.

It was not claimed at the trial below, nor upon the argument at general term, that the Yonkers Brass Works did not have a good title to the chattels in question at the time they executed and delivered the mortgage to the plaintiff, and did not have the lawful right to execute said mortgage, subject, of course, to the prior lien of the Jewett mortgage. The subsequent bill of sale of the chattels in question by the plaintiff’s mortgagor to the defendant, although it did not specify in any way or recognize the plaintiff’s mortgage, cannot and did not deprive the plaintiff of any rights under said mortgage. The defendant’s rights to the chattels in question were acquired by the bill of sale, executed by the Yonkers Brass Works, and delivered to the defendant, with full knowledge and notice of the existence of both the Jewett mortgage and the plaintiff’s mortgage, as both had been duly filed. If defendant wished to retain possession of the property, it could hope to do so only after satisfying the claims of said mortgagees.

It is conceded that the Yonkers Brass Works owed the plaintiff, st the time of the execution of said mortgage to the plaintiff, the sum of $2,350. The mortgage seems to have been in proper form; no objection has been taken to its sufficiency in that regard, nor to the regularity of its execution and filing. We quote from the mortgage as follows: “ * * * for securing the payment of the indebtedness hereinafter mentioned, and in consideration of the sum of one dollar to them (Yonkers Brass Works), duly paid * * * have bargained and sold, etc., * * '* upon condition that if we, the said parties of the first part (Yonkers Brass Works) shall and do well and truly pay unto the said party of the second part (plaintiff), his executors, administrators or assigns, the sum of $2,350, within thirty days from this date, then these presents shall be void,” etc. lío other or further consideration than as above set forth is expressed in said mortgage, nor is any condition imposed, except the foregoing.

If the mortgage to the plaintiff was what it purports to be on its face; if it was properly foreclosed, and if there was sufficient evidence to justify the jury in believing that there was a conversion of the chattels in question by the defendant, the judgment and order appealed from should be affirmed.

But the defendant claims that there was more to the mortgage than appears upon its face. It alleges that the mortgage was given to the plaintiff by the Yonkers Brass Works “ upon the express understanding and condition that the plaintiff should, within the time mentioned in said instrument, to wit: thirty days from its date, start and establish the persons composing the Yonkers Brass Works, or furnish the means for the persons to start and establish the business formerly carried on by them at said city of Yonkers;” and that plaintiff has failed to comply with this condition.

The principal error assigned by defendant, and the one upon which he mainly relies for a reversal of the judgment herein, is the refusal of the court below to permit the defendant to show the foregoing alleged understanding and condition. When the plaintiff was on the stand, the defendant undertook, upon cross-examination, to show a conversation, that took place between the plaintiff and his mortgagors, at the time the chattel mortgage now under consideration was given. In the midst of this line of examination, he was interrupted by the court, as follows:

Court: “ I see you have a defense of that kind. The court is of opinion that the facts stated in your third defense (that being the defense last above indicated) do not constitute a defense. That would not constitute a defense, conceding that he did promise to advance the money to continue the business, if they would give him a chattel mortgage, the promise was made without consideration.”
Defendant’s Counsel: “ I shall endeavor to show that the chattel mortgage was given in consideration of that promise.”
Court: “ The chattel mortgage does not contain that consideration.”
Defendant’s counsel: “ It says 1 a consideration,’ and I can show that it was different from the one mentioned in the instrument. I offer by the line of questions, which I have been pursuing, to prove, or attempt to prove, that apart of the consideration for the giving of the alleged chattel mortgage under which he claims, was a promise on his part to start in business again the persons who gave the chattel mortgage; before the expiration of the time mentioned in the mortgage.”
Plaintiff’s counsel: “I object to that line of proof.”
Court: “You say" ‘to start in business again; ’ do you mean by advancing more money or goods ? ”
Defendant's counsel: “ No; the bald statement that he was to-start them up in business again, if they gave him the chattel mortgage.”
Court: “The objection is sustained.”

To this ruling the defendant’s counsel duly excepted.

Subsequently, and after the plaintiff had rested his case, the defendant, as a'part of its defense, called -one Siebert, one of the members of the co-partnership known as the Yonkers Brass Works, and who signed the mortgage in question, and asked him the following questions:

Q. “Was there any condition attached to the giving of that mortgage,? ”

Q. “Was there any consideration for the giving of that mortgage, other than the consideration expressed in the instrument ? " To both of these questions, plaintiff’s counsel objected, and the court sustained the objections, and defendant’s counsel duly excepted.

It will be observed that defendant’s counsel relied upon “ the bald statement” that he (plaintiff) was to start them (the Yonkers-Brass Works) up in business again, if they gave him a chattel mortgage. “Defendant’s counsel would not state whether the 1 start up ’ ” was to be by advancing money or goods.

It does not appear that it was intended that the original delivery of the mortgage in question was to be conditional. The defendant's claim is that an agreement, which was to take effect thereafter, was orally made between the plaintiff and the Yonkers Brass Works at the time of the execution of said mortgage. The question here presented is not on the admission of parol evidence to explain, vary or contradict a written instrument, nor is it a question as to the admission of parol evidence tending to establish an independent agreement. No agreement between the plaintiff and the defendant is claimed. The defendant in this action cannot avail himself of a breach of contract, if any such existed, between plaintiff and the Yonkers Brass Works. We are of the opinion that if such an agreement existed, and was a part of the consideration for the mortgage in question, it would not be a defense here. The Yonkers Brass Works might maintain a separate action for the damage if there had been a violation of such a covenant. If the Yonkers Brass Works ever had any such right they do not appear to have transferred it to the defendant or any other person, by assignment or otherwise; and the right, therefore, rests with them, and with them only. Lasher v. Williamson, 55 N. Y., 619; Bellows v. Folsom, 2 Robt. 138.

Even if the defendant’s claim that a part of the consideration was to start the Yonkers Brass Works in business again be correct, the contract between the plaintiff and the Yonkers Brass Works would not fail, as the rest of the consideration was good, to wit, the existing indebtedness; and the Yonkers Brass Works' remedy would be a separate action against the plaintiff for damages. Bellows v. Folsom, 2 Robt., supra. Defendant only claims that the agreement, if such existed, to start the Yonkers Brass Works in business again formed “a part of the consideration.” The rulings of the trial court upon this question were proper. The plaintiff became entitled to the property described in said mortgage upon the 27th day of November, 1889, the day said mortgage fell due and was not paid, subject, of course, to the Jewett mortgage not yet due. Jewett was not in possession of the property, nor was he entitled to the possession. The Yonkers Brass Works, the mortgagor, having defaulted in payment, the conditional title in the plaintiff, the mortgagee, became absolute, leaving to the mortgagor, or his assigns, only a right of redemption in equity. Campbell v. Birch, 60 N. Y., 214, 218; Coe v. Cassidy, 72 id., 133, 138; Judson v. Easton, 58 id., 664; Bragelman v. Daue, 69 id., 69, 74. The rule is the same where the mortgagee is not in possession. See Bragelman v. Dane, supra.

There is abundant evidence to justify the conclusion that the defendant was in possession of the property at the time of the foreclosure of plaintiff’s mortgage. On the day following the maturity of plaintiff’s mortgage, the defendant actually sold a portion of the property covered by plaintiff’s mortgage; the foreclosure sale under the plaintiff’s mortgage took place in front of the Yonkers Brass Works at Yonkers ; the defendant was represented at the sale by its attorney, Mr. Perry; a demand for the key was made by the plaintiff upon said Perry, who refused the plaintiff admission to the building where the chattels were, and stated that the goods and chattels belonged to the defendant; the sale proceeded in front of said premises of the Yonkers Brass Works, where said goods were, and they were brought in by plaintiff, but defendant refused to allow the plaintiff to take possession or to enter said building. On December 10, 1889, plaintiff served a written demand on the defendant for said chattels; the representative of the defendant refused to comply with said demand, saying : “ You can’t have it; it belongs to the Prentiss Tool & Machine Company; I propose to hold on to it” Plaintiff said: “Do you mean to rob me ?” Defendant’s representative and agent replied : “ I do not know anything about that, but we propose to hold on to that property.”

The facts also indicate clearly a demand for the property upon the defendant, and its refusal to surrender the same; two facts necessary to be established by the plaintiff to entitle him to maintain this action. These facts, together with the other evidence in the case, show a conversion of the property in question by the defendant. After demand, the defendant exercised dominion and control over the property, asserted its title thereto, and said to the plaintiff, “You can’t have it.” Pease v. Smith, 61 N. Y., 477, 481; Heald v. MacGowan, 5 N. Y. Supp., 450, 451, 452. 25 N. Y. State Rep., 579.

If the case were free from acts of the defendant indicating an exercise of ownership, we think the words of defendant might safely be relied on to constitute conversion. In Gillet v. Roberts, 57 N. Y., 28, Judge Earl, in the course of his opinion, says: “It is true that to constitute a conversion, a manual taking is not necessary ; but where words are relied upon, they must be uttered under such circumstances in proximity to the property as to show a defiance of the owner’s right, a determination to exercise dominion and control over the property, and to exclude the owner from the exercise of -his rights.”

The rights to the property that defendant had were acquired, as we have already said, with full notice of both the Jewett mortgage and plaintiff’s mortgage; and it is no hardship to the defendant to subject it to the operation of those instruments.

Several exceptions to the admission and rejection of evidence, not heretofore noticed, were taken by the defendant. They were not, however, urged upon the argument here. We have examined them, but do not consider them of sufficient importance to require discussion here.

There is, for the reasons stated, no grounds for the reversal of the judgment and order appealed from.

They must, therefore, be affirmed, with costs.

Feeedman and Dugbo, JJ., concur.


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    John S. Mertage, Resp’t, v. Sydney A. Bennett, App’lt.

      (New York Superior Court, General Term,

      Filed July 2, 1891.)

    Bill of particulars—When denied.
    Where the complaint set out a contract and its terms, from which it appeared that it was made for a certain specified term and at a rate agreed upon, and under it the plaintiff seeks to recover for the term specified and at the rate agreed upon, the claim is sufficiently particularized and a motion for a hill of particulars was properly denied.
    Appeal from an order denying defendant’s motion for a bill of particulars of plaintiff’s claim.

      Sol. Kohn, for app’lt; Isaac L. Sink, for resp’t
   Freedman, J.

—I fail to perceive that the order appealed from violates any substantial right of the defendant. The action is brought to recover the sum of $2,200 as damages for the breach by the defendant of a contract made between defendant and plaintiff’s assignor for the use and occupation of certain rooms and for board and lodging for the defendant, his wife, two children and maid. The complaint fully sets out the contract and its terms, from which it appears that it was made for a certain specified term and at a rate agreed upon, and under it the plaintiff-seeks to recover for the term specified (with the exception of the first two weeks of the term) and at the rate agreed upon, viz.: One hundred dollars per week. The claim is, therefore, sufficiently particularized in the complaint, and any bill of particulars thereof which the plaintiff could be compelled to furnish would be a mere repetition of what he has already alleged.

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

Ddgbo and G-ildeesleeve, JJ., concur.


text:
    George T. Shambow, Resp’t, v. The New York, New Haven & Hartford R. R. Co., App’lt.

      (New York Superior Court, General Term,

      Filed July 2, 1891.)

    Master and servant—Evidence—Negligence—Defective machinery.
    ■ In an action brought against a railroad company for personal injuries sustained by a brakeman while in their employ, at the trial defendant offered no proof and the case was submitted on the evidence adduced by-plaintiff to show that the injuries were sustained in consequence of a defect in the brake which plaintiff had to work, and that it might have been discovered by the exercise of ordinary care and diligence on the part of defendant. Held, that from the evidence submitted the jury had a right to find for plaintiff, and that the verdict would not be disturbed.

      Appeal from judgment entered in favor of the plaintiff upon the verdict of a jury, and from order, denying defendant’s motion upon the judge’s minutes for a new trial.

      Page & Taft, for app’lt; Thomas P. Wickes, for resp’t.
   Freedman, J.

—This action was brought by the plaintiff to recover damages for injuries sustained in consequence of the alleged negligence of the defendant while he was engaged in the performance of his duty as a brakeman in the Harlem River yard of the defendant

At the trial the defendant offered no proof and the case was summed up and submitted to the jury upon the evidence adduced by the plaintiff. Upon that evidence the jury had a right to find that the injuries were sustained in consequence of a defect in the brake with which the plaintiff had to work, and that the defect might have been discovered by the exercise of ordinary care and diligence on the part of the defendant. This was sufficient to call for a determination by the jury of the question of defendant’s negligence.

Upon the' question of plaintiff’s alleged contributory negligence the case, upon the facts presented, was also one for the jury. The various motions to dismiss the complaint were therefore properly denied and the issues were properly submitted to the jury. None of the exceptions taken to the admission of evidence presents, under all the circumstances, ground for reversal, nor was there any error in the charge or the refusals to charge otherwise. Hpon the whole, substantial justice seems to have been done.

The judgment and order should be affirmed, with costs.

Dugro and Gtldersleeve, JJ., concur.


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    Michael Shanley, Resp’t, v. John Stanley, App’lt.

      (New York Superior Court, General Term,

      Filed July 2, 1891.)

    Master and servant—Detective machinery—Negligence—Question FOR JURY.
    In an action brought to recover damages for personal injuries sustained by a servant through the bursting of a kettle, about which he was working, plaintiff testified that he did not know of the defect, nor did it affirmatively appear that he was otherwise chargeable with contributory negligence. Defendant introduced evidence to prove contributory negligence. There was evidence to show that the kettle fastening had become unsafe from long use, and that defendant could have discovered it by the exercise of ordinary care and prudence. Held, that the question of plaintiff’s contributory negligence and defendant’s negligence were properly questions for the jury.
    Appeal from judgment in favor of the plaintiff entered upon the verdict of a jury and from order denying defendant’s motion for a new trial.

      Frederick G. Gedney, for app’lt; Goff & Pollock, for resp’t.
   Freedman, J.

—This action was brought to recover damages for personal injuries sustained by the plaintiff through the negligence of the defendant. The plaintiff was a workman employed in and about the soap factory of the defendant, and engaged as such in the performance of his work at the time he sustained the injuries complained of. In the factory of the defendant there was an iron tank or kettle from which protruded a pipe which had been screwed into the tank or kettle in a way intended to secure a permanent fastening.

At the time of the accident the plaintiff, in the performance of his usual duties, was engaged, with the assistance of another man, in fastening another pipe to the pipe protruding from the tank or kettle, when the latter suddenly was blown or forced out and the boiling soap spurted out through the opening and injured the plaintiff. According to the testimony of the plaintiff he neither knew of the defect which caused the occurrence nor was he chargeable, as matter of law, with a neglect of duty in not having discovered the defect, nor did it appear affirmatively that he was otherwise chargeable with negligence which contributed. The question of plaintiff’s contributory negligence was, therefore, one for the jury. The testimony adduced by and on behalf of the defendant upon this branch of the case was not so convincing as to call for a different result.

The question of defendant’s negligence was also one for the jury. True, the defendant was not bound to furnish the best of known or conceivable appliances, and it was enough if the pipe protruding from the tank or kettle was fastened into it so as to be reasonably safe. But there was some evidence of improper and unsafe construction from the start which raised a question for the jury. Moreover, there was evidence upon which, if credited, the jury had a right to find that the fastening, if originally sufficient, had become unsafe by long continued use, and that the defendant,, by the exercise or ordinary care and prudence, could and should have discovered the fact, but that he failed to discover it because for years he had omitted to make any inspection or examination.

.The verdict, which was for only $500, accords with substantial justice, and upon the whole case none of the exceptions urged upon Ihe appeal presents ground for reversal.

The judgment and order should be affirmed, with costs.

Gtldeksleeve, J., concurs.


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    Paul W. Latham, Resp’t, v. Patrick B. Delaney, App’lt.

      New York Superior Court, General Term,

      Filed July 2, 1891.)

    Appeal—Verdict supported by evidence.
    A jury is not bound by the number of witnesses, but has the right to determine the questions submitted to them, according to the facts and circumstances established by the testimony which they believe, and where a verdict is supported by the evidence it will not be disturbed, though the other party produced the greater number of witnesses.
    Appeal from judgment entered in favor of the plaintiff upon the verdict of a jury, and from order denying defendant’s motion for a new trial.

      E. Louis Lowe, for app’lt; William C. Davis, for resp’t.
   Freedman, J.

—This action was brought in 1889 to recover upon a judgment alleged to have been obtained against the defendant in 1884, in the circuit court of Rockingham county, in the state of Virginia The plaintiff claims that the judgment was obtained after due service of process, and the voluntary appearance of the defendant The defendant, on the other hand, claims that the court of Virginia never acquired jurisdiction because he,, the defendant, was not served with process according to the laws of Virginia, and did not appear or authorize an appearance. Upon these issues both parties gave proof, in accordance with the decision of this court upon a former appeal (see 12 N. Y. Supp., 463; 35 N. Y. State Rep., 462), and all the questions arising thereon were submitted to the j ury under a charge which carefully guarded every right which the defendant had. There was no error in the charge, or the refusals to charge otherwise. It would have been error to dismiss the complaint, and it cannot be maintained that the verdict is against evidence or the weight of the evidence. The jury were not bound by the number of the witnesses, but had the right to determine the questions submitted to them, according to the facts- and circumstances established by the testimony which they believed. There were several admissions by the defendant which greatly damaged the effect of his denials, and undoubtedly had great weight with the jury. Ror can I find any error in the admission of evidence which, under all the circumstances, calls for a reversal.

The judgment and order should be affirmed, with costs.

Dugro and Gildersleeve, JJ., concur.


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    Frederick Schneider, Resp’t, v. The Second Ave. R. R. Co. et al., App’lts.

      (New York Superior Court, General Term,

      Filed July 2, 1891.)

    Negligence—Street Railroad—Question for the jury.
    Plaintiff brought an action to recover for personal injuries caused by ther alleged negligence of defendants, who were street railroad companies having no interests in common. Plaintiff was riding as a passenger on the platform of the S. car. The tracks of the defendants crossed at Thirty-sixth street. As the S. car approached the crossing, an H. car was coming at about twice its usual rate of speed; it was down grade, and owing to a defect in the brake its driver was unable to stop, ana shouted to the S. car-driver, who whipped up his horses, thinking to cross without a collision, but the cars met' and plaintiff was permanently injured so that he will be practically incapacitated for labor. Held, that the question of the defendants’ negligence was properly submitted to the jury, and that a verdict for plaintiff would not be disturbed.
    Appeal from a judgment in favor of the plaintiff and against both defendants, entered on the verdict of a jury, and from orders denying the motions of the defendants for a new trial.

      G. W. Smith, for resp’t; Miller & Wells, for app’lt, the Houston, W. S. & P. R. R. Co.; A. S. Hutchins, for app’lt, the Second Ave. R. R. Co.
   Gildersleeve, J.

—This action was brought to recover damages for a personal injury to the plaintiff, caused by the alleged negligence of the defendants. The defendants are domestic corporations, having no interests in common, engaged in operating street railroads as common carriers of passengers for hire through certain avenues and streets in the city of Hew York

On the 7th day of Hovember, 1888, at about ten o’clock in the forenoon, the plaintiff was riding down town on the front platform of a Second Avenue car, belonging to and operated by the defendant The Second Avenue Railroad Company. He had got on to the rear platform of the car, but, as ne had some paint brushes and pails with him, being a painter by trade, he was ordered by the conductor to go on to the front platform and ride there, which he did. The defendant The Houston, West Street & Pavonia Ferry Railroad Company has a single track railroad in Bast Thirty-sixth street, which crosses the Second Avenue Railroad Company’s tracks, and is used by the former for eastward bound cars only. The crossing of Second Avenue at Thirty-sixth street is approached from the west upon a down grade of two feet four and one-fifth inches in 100 feet As the Second Avenue car, upon which the plaintiff was riding, as aforesaid, neared the crossing at Thirty-sixth street, one of the cars of the defendant The Houston, W. S. & P. F. R. R. Co. was also approaching ■ said crossing, going east on the down grade, and at about twice its usual speed, to wit, “ about twelve miles an hour," as testified by Donohue, the driver of said car. Further evidence of said driver on this point is as follows : “ I tried to put on the brake, and found there was something the matter. I did not know what was up. I knew there was something not in good order.”

It appears from other evidence in the case that the failure of the brake to work was due to a broken brake rod, a part of the gear to which is applied the general term of “ brake,” and necessary to its effective operation. It further appears from the evidence that an examination of the broken rod disclosed a flaw in the iron, which was the cause of its breaking.

Donohue’s car being unmanageable, and the Second avenue car approaching the crossing at ordinary speed, Donohue shouted to the driver of the Second avenue car, who whipped up his horses, thinking to get over the crossing without a collision with the Thirty-sixth street car, but the Thirty-sixth street car struck the rear of the Second avenue car, and the plaintiff was thrown to the ground and injured. He was taken to a hospital, where he remained under treatment for about five weeks, and, after leaving the hospital, he was under medical care for some considerable time. There is evidence to justify the conclusion that he is permanently injured, in such a way as> to cause deformity, and practically incapacitated for labor. Before the accident he was earning three dollars a day in wages for painting. The action was tried before a jury, and a verdict rendered in favor of the plaintiff and against both the defendants for the sum of $15,000. From the judgment entered on this verdict, and from the orders denying the motions of the respective defendants for a new trial, both defendants appeal.

The defendant, the Second Avenue Railroad Company, claims that the complaint should have been dismissed as to it, on the ground that the evidence fails to show that it was guilty of any negligence. The evidence is conflicting on the question of the-negligence of the driver of the Second avenue car, but we think the evidence was amply sufficient to warrant the court in submitting the question to the jury. Three expert drivers, including Donohue, the driver of the Thirty-sixth street car, testified that the driver of the Second avenue ear might have averted the collision by stopping his horses and car. These experts all agree that either of the cars in question, at the points they were moving at the time under consideration, with the brakes in good order, could have stopped within the space of five or six feet. ' The plaintiff’s evidence places the Second avenue car at least thirty to-fifty feet from the Thirty-sixth street track, when the Second avenue driver saw, or should have seen, the Thirty-sixth street car approaching the crossing at unusual speed; it shows that when the Second avenue car was this distance away from the crossing, Donohue, the driver of the Thirty-sixth street car, shouted to the Second avenue driver, who had his face turned toward the east,, and was not looking ahead.

This evidence clearly indicated a neglect of duty on tne part of the Second avenue driver. He was nearing a. crossing, where, if a car was to be met with at all, it must come from the west, and yet he was looking towards the east, heedless of possible peril that might be encountered at the crossing directly in front of him,, by the rapid advance, on the down grade, of a Thirty-sixth street car. The question this evidence presents is not “ did he,” the-Second avenue driver, “do the best he could, when the peril was upon him ?” but it is “ did he exercise that care and caution which the law imposed upon him to avert the peril ? ” It was the duty of this driver to be vigilant in observing the crossing immediately in front of him, and the possible approach of a Thirty-sixth street car, that collisions might be avoided. Mangain v. Brooklyn, etc., R. R. Co., 38 N. Y., 455, 456; Murphy v. Orr,. 96 id., 14; Barrett v. Third Ave. R. R. Co., 45 id., 628.

Where from the circumstances shown, inferences are to be-drawn which are not certain and uncontrovertible, and as to which persons might differ, it is .for the jury to decide. See Hart v. Hudson River Bridge Co., 80 N. Y., 622; also see Flynn v. Central R. R. of New Jersey, 20 Civ. Pro. Rep., 179.

On the question of nonsuit, all disputed facts are to be decided in favor of the plaintiff, and all presumptions and inferences, which he had a right to ask from the jury, are to be conceded to-him. Ward v. Central Park, etc., R. R. Co., 1 J. & S., 395.

Applying this doctrine to the present case, it would clearly have been error, had the court below dismissed the complaint as against the defendant, the Second Avenue R. R. Co., for, if the testimony of the plaintiff were to be taken uncontradicted, the evidence unquestionably shows negligence on the part of the Second Avenue Railroad Company’s driver.

The evidence raised an issue of fact as to the direction in which the driver of the Second avenue car was looking as he approached the crossing, and the distance he was therefrom when the unmanageable condition of the Thirty-sixth street car should have been observed by him. What the driver of the second avenue car did, and what he failed to do, that he ought to have done, were questions of fact for the jury, to be determined upon all the evidence, which determination necessarily affected the verdict, and they were properly left to the jury. It was for the jury to say whether the Second avenue driver exercised the care required of him, under the circumstances. The instructions to the jury by the court below on the degree of care necessary on the part of the Second Avenue Company were favorable to that defendant The Second Avenue R. R. Company owed to the plaintiff, its passenger, the highest degree of care, and was liable J’or slight neglect. Maverick v. Eighth Avenue Railroad Company, 36 N. Y., 378, 381; Ganiard v. Rock City, etc., R. Co. 50 Hun, 22, 25; 18 N. Y. State Rep., 692.

Is there sufficient evidence to warrant the court in submitting to the jury the question of negligence on the part of the other defendant, the Houston, West Street & Pavonia Ferry Railroad Company ?

The evidence is uncontradicted that when the cars of this defendant was moving eastward on Thirty-sixth street, on the down grade, at the time in question, and within about seventy feet of the Second Avenue crossing, it became unmanageable, and rushed toward the crossing at a speed of about twelve miles per hour, twice the usual rate. Ho negligence can be imputed to the driver of this car. He showed courage in standing to his post in the face of imminent danger. He shouted to the driver of the Second Avenue car,, tried to put on the brake, and apparently did everything in his power to avoid the accident. Had the brake been in order, he could have stopped the car, and prevented the collision.

But the unusual and unlawful rate of speed at which this car was moving just before reaching a crossing; the failure of the brake to perform its functions; the fact that it was a large car, with two horses, and that there was no person in charge, except the driver; the fact that there was a rear brake that might have been applied, if there had been a conductor on the car; are all circumstances, which, together with the other evidence in the case, were for the consideration of the jury, on the question of the negligence of this defendant, and afforded good grounds for the refusal of the court to dismiss the complaint as to this defendant, the Houston, West Street & Pavonia Ferry Railroad Company. See Seybolt, as Adm’r, etc., v. The N. Y., L. E. & W. R. R. Co., 95 N. Y., 562; Palmer v. President, etc., of the Delaware & Hudson Canal Company, 120 id., 170; 30 N. Y. State Rep., 817 ; Breen v. N. Y. C., etc., R. R. Co., 109 N. Y., 297; 14 N. Y. State Rep., 835; 12 N. Y., 236, 242 ; 50 id., 203; 50 Hun, 22, 24.

The case of Palmer v. The President, etc., of the Delaware & Hudson Canal Company, supra, is very similar in some respects to this case. That was an action for damages for personal injuries, and on the trial it was shown that part of the machinery of the defendant’s car, to wit, the bell rope, which was attached to the engine and ran through the cars, struck the plaintiff in the eye and caused the injury.

Plaintiff proved that the severance, through the occurrence of which the bell rope was made to strike the plaintiff, was caused by the breaking of the spindle of the draw-bar on the forward end of the car next to the engine; that this, spindle was an iron rod an inch and five-eighths in diameter, and at the point where it broke there was a flaw three-fourths of an inch in depth. Defendant proved that the spindle, when on the car, was not accessible to observation or inspection, and gave evidence tending to prove that for the purpose of an examination it was necessary to put the car in the shop and take out the draw-bar, which it was not customary to do frequently; that the spindle and draw-heads of the bar had been renewed two years before; that they were made of the best wrought iron, and the vibration and strain was not such, when the car was in use, to require frequent examinations ; that such a spindle had never been known to break by use and that the period of availability of a car for use is ordinarily twenty-five years.

The court submitted to the jury the question whether defendant had failed to perform its duty in regard to inspecting the draw-bar so as to ascertain whether it was, or remained, in suitable condition for use, and the count of appeals held that it was not error. The court of appeals held further that “ whether the system of inspection and the manner of its execution are all that may be required of the carrier cannot be measured by any rule of law to be applied by the court, but ordinarily must be a question of fact, in view of the circumstances appearing by the evidence.”

Applying this doctrine to the case at bar, the'court below was justified in submitting the question raised by the broken rod of the Thirty-sixth street car to the jury. The broken rod was produced in court; witnesses were examined as to the quality of the iron of which it was made, the character of its construction, the degree of care exercised by the defendant, the Houston, West Street, etc., E. E. Oo., in inspecting the rod and car from time to time; and, under proper instructions from the court as to the duty of this defendant to the public in these matters, the question of this defendant’s negligence contributing to the accident, and being one of the proximate causes of damage to the plaintiff, was fairly submitted to the jury.

We think the evidence justified the conclusions of the jury on this question, and that no good reasons appear in this branch of the case for disturbing the verdict.

As to the contention raised by one of the defendants, that if negligence was proved against the other defendant, the first defendant should have had the complaint dismissed as to it, we sec no force in this argument; for the comparative degrees in the culpability of the two defendants will not affect the liability of either. If both were negligent in a manner contributing to the result, they are liable jointly or severally. See Barrett v. The Third Avenue Railroad Company, 45 N. Y., 628.

The evidence fails to show any contributory negligence on the part of the plaintiff. The fact that he was standing on the front platform was not negligence (see Nolan v. Brooklyn, etc., R. R. Co., 87 N. Y., 63), especially as he was directed to do so by the conductor of the Second avenue car.

We have carefully examined the questions raised by the exceptions taken to the admission and exclusion of evidence in the progress of the trial, and find no error in any of the rulings that can be held to be prejudicial to the defendants, or either of them. It is strenuously urged by the defendant, the Houston, eta, R. R Co., that it was error to allow the defendant, the Second Avenue R. R. Co., to contradict Donohue, the driver of the Thirty-sixth street car, by showing statements made by him previous to the trial to police sergeant McDonough in regard to th$ condition of the brake inconsistent with his direct evidence upon this point Either defendant had a right to test the credibility of Donohue in any legal way. Donohue was a witness for the plaintiff, and he testified that he did not know that there was anything the matter with his brake until within about 100 feet from where the collision occurred. The proper foundation for the interrogatories to Sergeant McDonough was laid by inquiries of Donohue, calling his attention to time and place, and he denied that he had made any such statements. This question was also put to Sergeant McDonough:

“ Q. Did, or did not, the driver of the Avenue C car (Thirty-sixth street car), when he was before you, state that the driver of the Second avenue car was in no way in fault, was not to blame for the accident, and did what he could to avoid it ?”

An objection to this question was made by the defendant, the Houston, etc., R. R. Co., and in ruling upon the objection the court said: “The objection of the Houston Street Road is sustained, and the evidence is not to be considered as against that road.”

The court permitted the witness to answer the question, and the defendant, the Houston, etc., R R. Co., duly excepted. The court distinctly charged the jury that the testimony of the police sergeant as to what the witness Donohue said could be considered by the jury only for the purpose of affecting the credibility of Donohue as a witness. As to the defendant, the Houston, etc., R. R. Co., this evidence is not admissible, and it cannot be said that the direction of the court to disregard it entirely cured the defect of its admission. But this testimony was brought into the case by one of the defendants, and against the opposition of the plaintiff, and should not be allowed to defeat the plaintiff’s claim against the defendant, the Houston, etc., R R. Co., which is f.ully established by other and competent evidence. The error is not such an one, when considered together with the whole case, as to call for a reversal of the judgment upon the ground that substantial justice requires it. See Code of Civil Procedure, § 1003; Carley v. N.Y. O. & W., 16 N. Y. State Rep., 307.

The charge of the learned' trial judge, when considered as a whole, is correct, and no error of substance was committed in the manner in which he submitted the case to the jury.

The injuries the plaintiff received were such that he can never stand erect, must carry a physical deformity through life, always suffer more-or less pain, and continue physically incapacitated for labor. The damages are not, therefore, excessive.

For the reasons above stated, the judgment and orders appealed from are affirmed, with costs.

Freedman J., concurs.


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    Clarence A. Parsons, Resp’t, v. Charles Robinson, App’lt.

      (New York Superior Court, General Term,

      Filed July 2, 1891.)

    1. Contract—Sufficiency of consideration.
    Plaintiff and defendant entered into an agreement whereby the former tvas to keep watch of the market, and when he heard of a good investment he was to notify the latter, who would advance the money to buy the stocks, and then, if successful, plaintiff was to share the profit. Held, that such information was a sufficient consideration for the promise made by defendant.
    2. Same—Past consideration—Assent—Sufficiency.
    Plaintiff,-after furnishing such information and the purchase had been made, said, “What will my interest be; 200 shares, as before?” and defendant replied, “All right.” Held, that the objection of defendant, that such promise was given for a past consideration, was not tenable, he having assented and received the benefit.
    Appeal from a judgment entered in favor of the plaintiff on the verdict of a jury, and from an order denying the motion for a new trial.
    Vanderpoel, Cuming & Goodwin, for app’lt; Boardman & Boardman., for resp’t.
   Gildersleeve, J.

—Prior to the 5th day of October, 1886, the plaintiff and defendant had entered into a sort of an agreement for the purchase of stocks, bonds, etc., according to the terms of which the plaintiff was to keep watch of the market, and when he heard of a good investment he was to notify the defendant, who- would advance the money with which to make the investment ; and then, if it was successful, plaintiff was to share in the gains. A number of such investments were made, and on each occasion plaintiff received his share of the profits.

On October 5, 1886, the plaintiff advised the defendant to buy 500 shares of the reorganized trust receipts of the Texas Pacific Eailroad Company, stating his reasons for such advice. The defendant agreed, and plaintiff ordered the purchase. He then returned and informed the defendant of the purchase, and at the time asked him, “What will .my interest be? Two hundred shares, as before? ” To which the defendant replied, “All right.” The stock was subsequently sold at a considerable profit, but defendant refused to give plaintiff his share, whereupon the plaintiff brought this action and recovered a judgment of $1,438.63.

The defendant’s contention is that there was no consideration for the agreement to give plaintiff the 200 shares, and that the agreement, if made at all, was made after the purchase of the stock.

But reliable information as to facts, upon which the future price of a stock will depend, is a sufficient consideration to uphold an agreement or contract in relation to such stock. See White v. Drew, 56 How. Pr., 53. The plaintiff had what turned out to be reliable information, which he imparted to the defendant, who acted upon such information with profitable results to himself. This forms a sufficient consideration. See White v. Drew, supra ; 3 Pars. on Cont., 359.

As to the promise to give the plaintiff the 200 shares being made after the purchase of the stock, we see no value in the defendant’s contention; for a past consideration, beneficial to the defendant, to which he afterwards assents, is sufficient to support an action. See Doty v. Wilson, 14 Johns., 378.

The evidence, although conflicting, was sufficient to warrant the submission of the question to the jury, who found in favor of the plaintiff.

To the charge no exception was taken, and we find no exception to the admission or exclusion of testimony that raises a question of sufficient importance to require discussion here.

The judgment and order appealed from are affirmed, with costs.

Dugro, J., concurs.


author: Dugro, J.

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    Felix A. Duffy, App’lt, v. James H. Work et al., Resp’ts.

      (New York Superior Court, General Term,

      Filed July 2, 1891.)

    Conversion—Estoppel.
    W. loaned money held in trust by him to W. &Go., D.’s employers, and induced the latter to execute in blank a deed of his property, promising him that it should not be recorded, but that he simply wanted to hold it to show to his co-trustees and beneficiaries for the money loaned. W. afterwards inserted the name of a grantee by whom the property was conveyed for value to S. In an action by D. for conversion, it appeared that at W.'s request, before the conveyance to S., he had endeavored to find a purchaser, and that he afterwards accepted §1,000 to give possession of the deed to S. Held, that he was estopped from claiming that the sale to S. was a conversion.
    Appeal from special term.

      Redfield & Redfield, for app’lt; A. L. Pincoffs, for resp’ts.
   Dugro, J.

—The plaintiff appeals from a judgment dismissing his complaint, entered upon the findings and decision of a judge at special term. At the trial both parties gave evidence. A careful examination of the papers presented, fails to disclose any ground which calls for a reversal of the judgment The burden of establishing his cause of action by a fair preponderance of evidence, was not satisfactorily borne by the plaintiff at the trial.

If the second conveyance is considered to have been given as security, and so a mortgage, it would not help the plaintiff’s case, as by his conduct he has estopped himself from claiming that the sale to Sexton was a conversion, for he took service to find a pur- ' chaser, and, when unsuccessful in his efforts, accepted $1,000 to give possession to a purchaser.

The judgment is affirmed, with costs.

Freedman, P. J., and Gtldersleeve, J., concur.


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    John L. Stroub, Resp’t, v. The Manhattan Railway Company, App’lt.

      (New York Superior Court, General Term,

      Filed July 2, 1891.)

    Injunction—Eminent domain.
    An elevated railroad company will be enjoined from constructing an additional track in front of plaintiff’s premises, under article 1, § 6 of the state constitution, which provides that no one shall be deprived of his property without due process of law, and that private property shall not be taken for public use without just compensation, unless it has acquired the right so to do by condemnation proceedings.
    Appeal from special .term.

      Smith & Perkins, for app’lt; Davies, Short & Townsend, for resp t.
   Dugro, J.

—The plaintiff sought an injunction to prevent defendant from unlawfully taking his property.

For the reasons stated in the opinion of the learned judge at special term an injunction which will prevent this wrong should have been granted.

The order appealed from contains a provision by which defendant is in effect provided with a way to obtain plaintiff’s property other than that fixed by statute. As the facts presented do not show a necessity for such extraordinary aid, it should not have been granted.

The order appealed from is modified by striking therefrom all therein that follows the words, “ or until the further order of this court,” and inserting in lieu thereof the following : “ Or until the defendant shall have obtained the right to enter upon the said premises in the way provided by statute.”

As thus modified, the order should be affirmed, with ten dollars costs and disbursements to the appellant.

Freedman, P. J., and Gildersleeye, J., concur.


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    Mary Heath, Resp’t, v. The Broadway & Seventh Ave. R. R. Co., App’lt.

      (New York Superior Court, General Term,

      Filed July 2, 1891.)

    Railroad—Negligence—Instruction to jury.
    In an action brought to recover damages from a railroad company for injuries claimed to have been sustained by plaintiff by reason of the negligence of defendants, it was not error for the trial judge to refuse defendants’ request to charge “that there is no evidence in this case which shows to a reasonable certainty that the condition of the plaintiff's body, as testified to by Dr. O., was caused by the accident,” and charging instead, “ It is for you to determine from the evidence whether they were or were not caused by this accident.”
    Appeal from a judgment for plaintiff entered on a verdict of a jury, and from an order denying a new trial.

      Root & Clark, for app’lt; Vanderpoel, Cuming & Goodwin (Henry Thomnson, of counsel), for resp’t
   Gildersleeve, J.

—This action is brought by the plaintiff to recover damages from the defendant for injuries, claimed to have been sustained by plaintiff, on November 10, 1886, by reason of the negligence of the conductor on one of defendant’s cars in starting said car suddenly, while the plaintiff was alighting therefrom. A verdict was rendered in favor of the plaintiff for $3,500, and judgment entered thereon. From this judgment "and from the order denying the defendant’s motion for a new trial, the defendant now appeals.

The only ground urged by the defendant as a reason for setting aside the verdict herein is the alleged error of the trial judge in refusing to charge the defendant’s request, to wit, “ That there is no evidence in this case which shows to a reasonable certainty that the condition of the plaintiff’s body, as testified to by Doctor Outerbridge, was caused by the accident of November 10, 1886.”

The reply of the learned judge to this request was as follows : “ It is for you to determine from the evidence whether they were or were not caused by this accident. If they were not, of course, she cannot recover for them.”

It is difficult to see what reply more suitable to the request under consideration could well have been made by the court below. The issue in the case, towards which this request pointed, was fairly left to the jury, upon all the evidence.

We have examined the other exceptions to which attention is directed by the defendant, but fail to find any error. We are of the opinion that the court below, in the conduct of the trial, fully protected the rights of the defendant, with a due regard for the well settled principles of law applicable to the questions presented.

The judgment and order appealed from are affirmed with costs.

Freedman, P. J., and Dugro, J., concur.


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    In the Matter of the Application of the Directors of the Christian Jensen Company Limited, for a Voluntary Dissolution.

      (New York Superior Court, General Term,

      Filed July 2, 1891.)

    Corporations—Voluntary dissolution—Order.
    Where, in voluntary proceedings for the dissolution of a corporation, the petition prayed for j' the dissolution of the corporation," and the order required all persons interested in it to show cause ‘ ‘ why the prayer of the petition should not be granted, Held,, that the order was a substantial compliance with § 2423 of the Code of Civil Procedure, which provides that the court must make an order to show cause “ why the corporation should not be dissolved.”
    Appeal from parts of an order made at special term restraining the appellants as creditors from prosecuting certain suits and proceedings.

      John Fennel, for app’lts ; John C. Coleman, for resp’t
   Per Curiam.

—The order should be affirmed, with ten. dollars costs and disbursements upon the opinion of the learned judge at special term.

The receiver for the appellants moved for an order permanently restraining and enjoining William Eggert and Edward Eggert, the sheriff of the county, Charles Wahlig, Frank A. and Frederick Wahlig, Michael Goode, city marshal, and all other persons, from taking any further steps in various actions and proceedings heretofore taken by or on behalf of them or either of them against “ The Christian Jensen Co.’’

Second. Directing the receiver to borrow sufficient money to enable him to properly box and stamp certain segars of the corporation and prepare the same for sale, and to issue receiver’s certificates for any sums so borrowed.

Third. To made such arrangement as may be equitable and reasonable with the landlord of the premises where said segars are, for the use of said premises until April 1st next.

Fourth. Directing the receiver to sell all of the property of the Christian Jansen Company, Limited, except book accounts.

The following was the opinion of McAdam, J., at special term:

“Jurisdiction of the subject matter is conceded, and it is also conceded that the petition is in proper form and contains all the statutory requirements. The petition prays for ‘ the dissolution of the corporation,’ and the order requires all persons interested in it to show cause ‘ why the prayer of the petition should not be granted.’

“ The order is entitled in the proceeding which expressed its purpose, and refers to the petition on file. This is a substantial, if not literal compliance with the statute, and all the law requires. The objection to the order is that it should have required those interested to show cause ‘ why the corporation should not be dissolved.’ It did so state, not in words repeated, but in words so plain that repetition was unnecessary. The object of the proceeding was the dissolution of the corporation; the petition prayed for a dissolution, and requiring those interested to show cause ‘ why the prayer of the petition should not be granted,’ intelligently required them to show cause ‘ why the corporation should not be dissolved.’ It meant that, could mean but that, and no person of ordinary intelligence would claim that he understood anything different. The objection is a mere juggle on words, not meaning; is one of form, not substance, and jurisdiction even.in special proceedings does not depend on so fine a thread. It is a rule in special as well as in other proceedings, to look at substance, not form so long as there is a substantial compliance. The form used was taken literally from Abbott’s New Forms Yol. 1, p. 668, and anything that leaves the hands of Austin Abbott comes well recommended.

“In re Pyrolusite Co., 29 Hun, 429 ; 3 Civ. Pro. R., 270, the petition was defective, and no jurisdiction was in consequence aquired. In pointing out its numerous defects, the court incidentally referred to the form of the order, and said it did not comply literally with § 2243 of the Code. If that so-called defect had been, the only one in the case, the jurisdiction of the court would no doubt have been sustained. The order made herein was sufficient in form. It needed no amendment, yet the court in furtherance of justice had the power to amend it; the petition being in accordance with the statute conferred power on the court to act.

“ The other cases relied on as authorities against the validity of the order have no application. They relate to the following subjects: The People v. Hulburt, 46 N. Y., 110, to the authority of taxpayers of towns ; Battell v. Torrey, 65 id., 294, to infants’ estates; In re Valentine, 72 id., 184, to lunatics’ estates, and Stilwell v. Swarthout, 81 id., 109, to administrators’ sales. The objection to the jurisdiction being untenable must be overruled. As to the perpetual stay, the application will be denied as to the Eggerts, whose rights became vested before the order herein1 was made. As to the Wahligs, the application must be granted. Their proceedings were instituted after the order was granted and after the receiver acquired title, which relates back to the time the order was signed. The second, third and four branches of the application are in the interest and for the benefit of all concerned and will be granted.

“ Settle order on notice.”


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    James Renwick, Resp’t, v. The New York Elevated Railroad Co. et al., App’lts.

      (New York Superior Court, General Term,

      Filed July 2, 1891.)

    Bailboad—Elevated—Injunctive belief—Past damages.
    In an action against an elevated railroad for an injunction and for past damages, the right of the plaintiff to recover his past damages cannot be defeated by proof that during the pendency of the action the defendants had instituted condemnation proceedings, had the value of plaintiff’s easements appraised and had paid the award.
    Appeal from a judgment entered upon the decision of a judge after a trial of the issues at the equity term.

      Davies & Rapallo, for app’lts; Henry G. Atwater, for resp’t.
   Freedman, J.

—The judgment appealed from restrains the defendants from maintaining or operating their elevated railroad in front of plaintiff’s premises, Nos. 148, 150, 152 and 154 East Forty-second street, unless within a time fixed by the judgment they produce proof satisfactory to the court that they caused the plaintiff’s easements appurtenant to said property to be condemned and acquired according to law prior to the date of the judgment. The judgment also awards past damages with respect to said property. It is now claimed that the trial judge erred in granting injunctive relief as to said property and in retaining jurisdiction ■of that cause of action for any purpose ; because it was proved at the trial that the defendants had instituted condemnation proceedings, had procured the appointment of commissioners, had the value of plaintiff’s easements appraised, and had paid the award, and that the plaintiff had accepted the amount and waived all right of appeal. This claim is untenable for the following reasons: Prior to the trial the defendants had moved at special term for leave to serve a supplemental answer setting up these facts and the motion had been denied. The issues had, therefore, to be determined upon the pleadings as they originally stood. At the time of the commencement of the suit the plaintiff had the right to injunctive relief and the court had jurisdiction to grant it, and, as incidental to the right to equitable relief, the plaintiff had the right to recover his past damages. Under these circumstances the right of the plaintiff to recover his past damages could not be defeated by proof that during the pendency of the action the defendants had in part satisfied plaintiff’s claim. The defendants had no right in such a case to have the question of past damages tried by a jury, Sears v. Metrop. El. R. Co., 13 N. Y. Supp., 886; 38 N. Y. State Rep., 353, and Bergman v. Manhattan R. Co., 14 id., 384; 39 N. Y. State Rep., 150.

Moreover, under the judgment as given, the defendants are perfectly protected. In framing it the court gave full "effect to the facts as they existed at the time. Instead of adopting the usual course of fixing the fee value of the easements taken and decreeing an injunction unless such sum was paid within a certain time, the court did not fix the fee value, and gave to the defendants the privilege of avoiding the injunction by producing to the court within thirty days proof that the easements were acquired at some time between the beginning of the action and the date of the judgment. I fail to perceive what more the defendants can ask.

As to the award for past damages on account of the Forty-second street property, the record discloses no error which calls for reversal, nor can it be held that the amount is excessive.

The judgment also restrains the defendants from maintaining or operating their elevated railroad in front of plaintiff’s premises, Ros. 1322, 1324 and 1326 Third avenue, unless within a time fixed by the judgment the defendants pay to the plaintiff the sum of $11,000 as the value of so much of the easements in Third avenue appurtenant to said premises as has been taken by the defendants for the purposes of their railroad, and finally the judgment awards to the plaintiff $5,000 damages with respect to the Third avenue property, besides costs.

Upon this branch of the case it may be said generally that no error was committed in the admission of evidence or in the findings or refusals to find which, under the decisions in this class of cases, constitutes grounds for reversal.

The amounts awarded for past and permanent damages are well supported by the evidence adduced on the part of the plaintiff. The "testimony given on behalf of the defense created a sharp conflict, and in the determination of that conflict a good deal depended on the credit given to the witnesses for the respective parties.

Upon the whole case I do not see how these amounts, or either of them, can be disturbed as excessive without a violation of settled principles of law.

The judgment should be affirmed, with costs.

Dugro and G-ildersleeve, JJ., concur.


author: Dugro, J. Freedman, P. J.

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    W. H. Haydn Miller, Respt, v. William H. Curtiss, App'lt.

      (New York Superior Court, General Term,

      Filed July 2, 1891.)

    Fraud-Principal and agent—Evidence.
    In an action to recover the amount paid for shares of stock, it appeared that plaintiff told defendant to see whether one A., would sell his shares of a certain stock; later defendant informed plaintiff that A. would sell his stock, and was then told to buy it for plaintiff. Defendant thereupon transferred his own stock to plaintiff, who believed it to be A.’s, and the amount therefor. Held, that such conduct was fraudulent, and plaintiff was entitled to recover the amount paid.
    Exceptions from trial term.

      Marshall P. Stafford, for resp’t; Leavitt & Keith, for app’lt.
   Dugro, J.

—The defendant’s, exceptions were ordered to be beard, in the first instance, at general term.

It seems the plaintiff told defendant to see whether Allen would .sell his stock. Some time later defendant informed plaintiff that Allen’s stock could be got, and was then told to buy it for plaintiff. Defendant thereupon transferred to plaintiff his own stock instead of Allen’s, the plaintiff believing that he was buying, that of Allen.

The plaintiff having offered to return the stock to the defendant, and having demanded and been refused the return of the purchase money, asked for judgment for the amount paid. These facts appear conclusively from the evidence, and upon them the plaintiff is entitled to a judgment upon the verdict, unless there be a valid exception in the case. The case discloses none.

The purchase was by defendant from himself without any authority from the plaintiff, and in view of the relation existing between the parties, was a constructive fraud. Conkey v. Bond, 36 N. Y., 427. The defendant, as in Gillett v. Peppercorne, 3 Beav., 78, was in a situation of trust, which did not allow him to deal with his own property when his principal had reason to believe he was dealing with another’s.

The plaintiff was entitled to be put into possession of the actual facts, and their suppression was an act of impropriety to be discountenanced. Doubtless no fraudulent or corrupt intent impelled the defendant in making the sale himself, but the law has settled it that such facts and circumstances as appear in this case show constructive fraud. Conkey v. Bond, 34 Barb., 283.

The exceptions are overruled and judgment is ordered to be ■entered for the plaintiff upon the verdict, with costs.

Freedman, P. J.

—The reasons assigned by the general term upon the former appeal for a reversal of the judgment which the defendant had obtained compel me to concur in the result now announced by Judge Dugro.

GtlderslÉeve, J., concurs.


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    City Savings Bank, Resp’t, v. Henry E. Stevens, Jr., et al., App’lts.

      (New York Superior Court, General Term,

      Filed July 2, 1891.)

    1. Accord and satisfaction—What does not constitute.
    Plaintiff, by discount, in the usual course of business, became the holder of the note in suit, before maturity, and without notice that it was accommodation paper. In an action against the makers it appeared that the plaintiff held judgments amounting to $27,589, including the note in suit, against the payee, and had agreed that they should be discharged on payment of $20,691, and that plaintiff should hold all bills receivable in its possession, belonging to the payee, and endeavor to collect the same from the makers and credit the proceeds on the $20,691. That $5,000 had been received from the receivers of the payee’s property, and credited under the agreement. Held, that the transaction did not constitute an accord and satisfaction of the plaintiff’s demand against the makers, nor impair his remedies against them, they not- having pleaded the receipt by plaintiff of the $5,000, nor claimed any pro rata benefit from it.
    Appeal from judgment in favor of plain tiff, entered upon the decision of McAdam, J., at a trial term, a jury having been duly waived.
    The plaintiff, a corporation doing business at Chattanooga, Tennessee, sues the defendants as makers óf a promissory note, dated August 15, 1889, wherein they promised to pay, four months after said date, to the order of the North Alabama Lumber &, Manufacturing Company, $1,463.91. The payees endorsed and transferred the note to the plaintiff. The defense is two-fold, first, that there was no consideration for the note; and next that it was discharged by an executed agreement made between the payees and the plaintiff, the terms of which are hereafter stated.
    The opinion of McAdam, J., delivered at the trial term, was as follows:
    “ The plaintiff, by discount, in the usual course of business, became the bona fide holder of the note before maturity, without notice that it was accommodation paper, and had the right to deal with the payees thereof as if it had been made for a full consideration. Hoge v. Lansing, 35 N. Y., 136; Central Bk. v. Hammett, 50 id., at p. 160; Union Bk. v. Crine, 33 Fed. Rep., 809. Upon this hypothesis the agreement made between the payees and the plaintiff does not affect the right of the latter to prosecute the-makers. The agreement (which is pleaded as an accord and satisfaction) recites that in a certain attachment suit pending in the Federal court at Huntsville, Alabama, wherein the plaintiff herein is plaintiff and the North Alabama Lumber & Manufacturing Company is defendant, there shall be a judgment entered for $17,191.78 damages (including the note in suit), that the judgment shall not be now enforced, but that three jiersons named as assignees in an assignment made by the Lumber Company shall act as receivers, with power to sell the attached property. That, said persons shall also act as receivers in respect to a $3,500 judgment between the same parties in the chancery court of Marion county, Tennessee. That, although there is actually due to the plaintiff $27,589.04, that amount is to be considered discharged as.

      soon as the judgments aggregating $20,691.78 are paid. It is also agreed that the plaintiff shall hold whatever hills receivable it has in its possession and endeavor to collect the same from the parties by whom they were made, crediting the proceeds on the $20,69178, aforesaid. The plaintiff has thus far received $5,000, and has the right under the agreement to continue to enforce whatever obligations it holds until the entire $20,691.78 is realized. The transaction stated does not constitute an accord and satisfaction of the plaintiff’s demand, nor does it any way pre-. judice the defendants, and consequently does not impair the plaintiff’s remedies. The doctrine of suretyship sometimes applied to the makers of accommodation notes, transferred by the payees to third persons, is inapplicable here, because the plaintiff, the holder of the instrument, had no knowledge of any facts creating the relation of principal and surety, and acted, as it lawfully might, on the assumption that the note was business paper, and that the parties to it held that relation to each other which the form of the contract disclosed (vide authorities before cited). The defendants did not plead the receipt by the plaintiff from the trustees of the $5,000 on account, nor claim any pro rata benefit from it, nor do they claim “payment” (in the technical sense) of the obligation sued upon, either in whole or in part, for the term “ payment,” in its legal import, “ means the satisfaction of a debt by money, not by an exchange or compromise, or an accord and satisfaction.” Manice v. R. R. Co., 3 Duer, 441; Morley v. Culverwell, 7 Mees. & W., 171. The defendants are not, therefore, in a position to invoke the application of the equitable doctrine, Orleans Bank v. Moore, 112 N. Y., 543; 21 N. Y. State Rep., 609, that, where a creditor receives money on account of his debtor, he may be compelled to apply it ratably to all claims against the debtor, as well as to those upon which other persons are liable. Upon the pleadings and proofs the plaintiff is entitled to judgment for $1,567.23, the amount claimed, and interest.

      Kelly & MacRae, for app’lts ; George W. Van Slyck, for resp’t.
   Per Curiam.

—Judgment affirmed, with costs, on the opinion of the court below.


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    Eugene F. Lethbridge, App’lt and Resp’t, v. The Mayor, etc., of New York, Resp’t and App’lt.

      (New York Superior Court, General Term,

      Filed July 2, 1891.)

    1. Municipal corporations—Whether power to remove includes POWER TO SUSPEND.
    PlaintiS was appointed in 1886 a clerk in the Department of Public Works of the City of Hew York. He served until 1887, when he was suspended from his position by a written communication from the commissioner then in office. From that day he has not been allowed to render any service, although he applied repeatedly to he allowed to return to work. In an action to recover salary claimed to be due, Reid, that the power to remove or expel does not necessarily include the power to suspend, and the latter power may not be implied from the mere grant of the former, and in this case such power did not exist.

      2. Same—Money earned in other work, by officer unlawfully suspended, NOT TO BE DEDUCTED PROM SALARY.
    Where an officer, entitled by law to a fixed annual salary, has been prevented for a time, through no fault of his own, from performing the duties of his office, and has during that time earned wages in another employment, he cannot be compelled, in an action to recover his unpaid salary, to deduct the amount so earned.
    Cross-appeals taken from a judgment rendered in favor of the plaintiff and against the defendants upon a trial by the court without a jury.

      B. C. Chetwood, for pl’ff; William H. Clark, counsel to the corporation, (Sidney J. Cowen, of counsel), for def’ts.
   Freedman, J.

—The plaintiff was appointed May 15, 1886, a clerk in the department of public works of the city of New York at a salary of $1,000 per annum. He served until January 20, 1887, when he was suspended from his position by a written communication from the commissioner then in office. From that day he has not been allowed to do any work for the city, although he applied repeatedly to be allowed to return to work. The action is brought for the recovery of the salary for two years and about six months subsequent to his suspension. The evidence shows neither a discharge nor an abandonment or relinquishment of the office, and inasmuch as under the decision of the court of appeals in Gregory v. The Mayor, 113 N. Y., 416; 22 N. Y. State Rep., 703, and the decisions of the general terms of the supreme court and of this court in the aqueduct cases, I am compelled to hold that the power of suspension did not exist, the plaintiff was entitled to recover. The failure to make an appropriation constitutes no defense. All the questions presented on defendants’ appeal are discussed at length in the able opinion rendered by the learned judge below and it is not necessary to add anything to the reasons there assigned. The only error committed by the trial judge consists in the deduction of the sum of $600 earned by the plaintiff from temporary employments during the period for which salary was claimed. Under the decision of the court of appeals in Fitzsimmons v. The City of Brooklyn, 102 N. Y., 536; 2 N. Y. State Rep., 475, this deduction was unauthorized. The plaintiff is, therefore, entitled to prevail on his appeal.

The judgment should be amended by adding the $600 deducted, and, as so amended, affirmed, with costs to the plaintiff.

Dugro and Gildersleeve, JJ., concur.