author: Van Brunt, P. J.

text:
    Elise Reich, as Administrator, etc., App’lt, v. Union Railway Company of New York City, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed May 18, 1894.)

    Evidence—Negligence—Immaterial.
    Where the plaintiff’s intestate is guilty of contributory negligence, evidence as to defendant’s negligence is immaterial.
    Appeal' from a judgment dismissing the complaint.

      O. W. Smith, for app’lt; W. S. Cogswell, for resp’t.
   Van Brunt, P. J.

This action was brought to recover damages because of the' killing by one of the defendant’s cars of the plaintiff’s intestate. It appeared upon the trial that upon the evening in question, which was pleasant but dark, the deceased was playing with some comrades in the street at a considerable distance from the crossing. There was a crowd of youngsters chasing the boy. A car was goiug north at about seven miles an Hour, making a stop at the crossing. There was also a car' going south. Just as the tail end of the north bound car was passing the boy, he left the east sidewalk to go across Third avenue diagonally, tending towards the south, and, when he stepped on the southbound track, the northbound car was about 25 or 30 feet away, and the southbound car was about 4 feet away from him. Before the boy came upon the southbound track, the motorman shouted, and rang the bell, the other boys at this time being 6 or 7 feet away from him. One of the witnesses testified that when the motorman shouted, and rang the bell, the deceased attempted to go across the track. He was struck by the car, and run over and killed. In another place one of the witnesses stated that the boy ran within 8 feet from the rear dashboard of the north bound car, and that this car cut off his view of the car coming south. Upon this evidence the court dismissed the complaint,' and, from the judgment thereupon entered, this appeal is taken.

The only question which seems to'be at all important upon this appeal is as to whether the court was justified in excluding the questions put to the witness Klebs as to the distance at which this boy could have been seen by the motorman rof the southbound car, the southbound car and the northbound car being in the position stated in the questions propounded. It is undoubtedly true that expert evidence will not be allowed where the facts can be stated and described to the jury in such a manner as to enable them to form a correct judgment thereupon. But where it is impossible to so state the facts that the jury may be able to comprehend them, and no better evidence than the actual observations of the witness is attainable, then they become admissible. In the case at bar it was claimed, on the part of the plaintiffs, that the question as to how far the motorman of the southbound car could see the deceased after the passing of a northbound car was material. But it seems to us, from the evidence in the case, that the motorman of the southbound car had no right to expect or anticipate the fact that this boy was going to cross the track in the middle of the block. He undoubtedly, under the- rules, was required to be more vigilant at the crossing, where he might naturally expect parties to cross the track, than in the middle of the block. Furthermore, if the motorman could see the boy in the dark, it being conceded that it was dark, the boy certainly could see the car, a very much larger and more conspicuous object; and he, crossing in the position in which he was, was bound to look and see that the way was clear. If the car was within sight sufficiently long for the motorman to have avoided the boy, it was in sight sufficiently long for the boy to have avoided the car. It appears from the evidence that, as soon as the motorman saw that the boy was going to cross the track, he warned him, and the only result was an attempt upon the part of the boy to rush in front of the car, and go over ; when he first presented himself in'front of the car, he being only four feet away. Under the rules laid down in the case of Fenton v. Sec. Ave. Railroad Co., 126 N. Y. 625; 36 St. Rep. 385, under such circumstances a recovery cannot be had. Therefore the evidence which was excluded seems to have been immaterial. It may further be suggested that, in the questions which were put, no one of them “in its facts coincided with the testimony which had been introduced showing the position of these cars and the boy previous to and at the time of the happening of the accident The case seems to be entirely free from any proof of negligence upon the part of the motorman, and shows that the accident was the result of the carelessness of the deceased.

Judgment should be affirmed, with costs. All concur.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Julia Benoit, an Infant, by her Guardian ad litem, etc., App’lt, v. Troy and Lansingburgh Railroad Company, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed May 8, 1894.)

    Negligence—Runaway houses.
    In an action for injuries inflicted by a runaway team of defendant, if the horses, before the accident, had run away only on one occasion to the knowledge or notice of defendant’s.superintendent, a submission to the jury of the question as to the vicious or dangerous character of the horses is proper. • . .

      Motion for a new trial on exceptions ordered to be heard at general term in the first instance.

      James F. Crawford'(Galen R. Hitt, of counsel), for pl’ff; R. A. Parmenter, for deft.
   Per Curiam.

Plaintiff, an infant seven years of age, was injured by a span of horses belonging to defendant, while they were running away on Ontario street, in the city of Cohoes. The complaint alleges that said span were addicted to running away, to defendant's knowledge, and also that the sled or vehicle before which they were driven at the time of the accident, was defective, not' affording sufficient means to control said horses, and hence the injury to plaintiff resulted from negligence on the part of the defendant. The trial judge nonsuited the plaintiff.

The only matter for our consideration is whether, on the evidence given, the question of the defendant’s negligence should have been submitted to the jury. It is not denied that the owner of dangerous or vicious animals, with notice, is liable for damages done by them. Van Leuven v. Lyke, 1 N. Y. 515; Dickson v. McCoy, 39 N. Y. 400-403. Had this case been submitted to the jury, they could have found from the testimony that the team which injured the plaintiff had run away twice before the injury. If, however, it had been made to appear that the horses, before the accident, had run away only on one occasion, of which fact it was shown that the superintendent of the defendant had notice, we think a submission to the jury of the question as to the vicious or dangerous character of the horses would have been proper. Helmke v. Stetter, 52 St. Rep. 528; 23 N. Y. Supp. 392; Kittredge v. Elliott, 16 N. H. 77 ; Arnold v. Norton, 25 Conn. 92. The jury, if allowed to pass on the questions of fact raised by. the pleadings, therefore, would have been justified in finding that, a week before the injury to plaintiff, the same horses which caused the injury, in passing some school children “ snowballing ” in the street,—became frightened and unmanageable, so that the driver was unable to control them; that, with knowledge of this fact, defendant, on the occasion of the injury to plaintiff, allowed the same team, driven before the same sled by the same driver, to go over the same route, and h)' the same school, where the team was frightened as before, and again became uncontrollable and ran away, causing the injury to plaintiff for which this action was brought. We think that the evidence was such that the case should have gone to the jury. The jury could have properly found that a team that became frightened and uncontrollable at a very ordinary occurrence in a public street were dangerous and vicious, and that defendant, having notice of the character of the horses, was negligent in again sending said horses, with the same driver and sled, and on the same route where they were before frightened. We also think it was a question proper for the consideration of the jury whether the sled used by defendant as a vehicle before which to drive the team to the barn was a safe one for the purpose.

There should be a new trial, with costs to abide the event.

All concur.


author: Putnam, J.

text:
    Mary M. Carney, App’lt, v. Miner Brome, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed May 8, 1894.)

    1. Animals—Trespass.
    The owner has the right to drive .trespassing cattle from his premises into the highway, and, if he does so in a proper manner, is not liable for any injury to the animals.
    3. Damage—Cause.
    Where two causes, for one of which the defendant is not responsible, contribute to an injury, the plaintiff must fail if it is just as probable that the injury came from one, as the other, cause.
    Appeal from a judgment of the county court reversing a judgment of the justice entered on a verdict in favor of the plaintiff.

      M. H. Couch, for app’lt; Charles H. Stage and Peter K Polen {T. F. Bush, of counsel), for resp’t.
   Putnam, J.

I have entertained considerable doubt as to the proper disposition of this case. My first impression was that the evidence presented a fair question of fact for the jury in the trial court, and that the judgment entered on the verdict rendered therein should not have been disturbed, for the reasons stated, and under the authorities cited, by the learned counsel for the appellant ; but a careful examination and consideration of the facts of the case have led me, although with some hesitation, to concur in the conclusion reached by the learned county judge. It seems the plaintiff's cattle came upon defendant’s premises. The latter had the right to drive them therefrom into the highway, and, if he did so in a proper manner, is not liable for any injury to the animals. It was for the plaintiff to show that the defendant, in exercising the right he had to drive the cattle off of his premises, in some manner abused or ill-treated them. It was shown by the admission of the defendant that he chased the cattle twice around his farm. But there was not a scintilla of evidence showing any fault on his part in this regard. It is not to be inferred that he would voluntarily or unnecessarily drive the animals twice around his farm. The presumption is rather that they were wild, and ran as they did despite his efforts to prevent them. Defenddnt admitted that he set his dog on the cattle. In the absence of any proof of the circumstances, or that the dog was an ugly one, that fact does not show any abuse of the cattle. A farmer may use a dog, if not ugly, under certain circumstances, to aid him in driving trespassing cattle from his premises. Defendant also said he used a pitchfork to separate the cattle, but it was not shown that any injury resulted to the plaintiff’s animals thereby, or that he used the pitchfork on them, or in fact in what way he did use it. I fail, therefore, to find any evidence showing abuse of the animals by defendant while they were on his premises: Had there been, a submission of the case to the jury was proper; but, in the absence of such evidence, it was improper to allow the jury to imagine that the defendant ill-treated the cattle. I therefore agree with the views stated by the learned county judge. It was not a wrongful act on the part of the defendant to drive plaintiff’s cattle from his premises. It was not wrongful for him to chase them twice around his farm, unless they were so chased unnecessarily, and this was not shown. It was not wrongful to use a pitchfork to separate the cattle, unless he used it in a wrongful way, and on plaintiff’s cattle, and these facts were not proved. It was not wrongful to set the dog on the cattle under certain circumstances, and it does not appear under what circumstances he used the dog to aid in driving-the cattle, or to what extent theEog chased the cattle, or that he in any manner injured them.

It is claimed, however, that, in driving the cattle towards plaintiff’s premises along the highway, defendant’s hired man, Fred Ernie, ran and abused them. It appears that, after defendant succeeded in getting the cattle into the highway, he directed Ernie to drive them to and into the road leading to plaintiff’s house. As suggested on the argument, this direction evinced a neighborly and friendly spirit on the part of the defendant, and the absence of an intent to injure the plaintiff. While Ernie was driving the cattle towards plaintiff’s premises, it was shown that they were running rapidly, followed by Ernie and a dog owned by one Dutcher. It does not appear that Ernie called the dog or set him on the cattle, or had any control over him, nor whether he caused the cattle to run, or whether they voluntarily ran,—he being compelled to do likewise to keep up with them,—or whether they were started by the dog. Dutcher testified that the cattle ran by his place. He saw his dog running down by them. The cattle were running fast. He judged his dog caused the running. It appears, therefore, that defendant was doing a neighborly act, sending plaintiff’s cattle home. On the way they were shown to have run rapidly; but it does not appear by any satisfactory evidence whether the running was caused by defendant’s servant or by the dog, or in consequence of the cattle being wild. The jury were not at liberty to imagine that Ernie abused the animals by running them, in the absence of any satisfactory proof that he was responsible therefor. It was for the plaintiff to establish her cause of action, and if the running of the animals, under the testimony, could as well be attributed to the act of the dog as to that of Ernie, the jury had no right to guess that it was caused by him. It is hardly to be presumed that Ernie, at such a season of the year, would willingly have driven the cattle at a rate of speed rendering it necessary for him to run rapidly to keep up with them. Doubtless, the evidence was sufficient to establish the fact that the injury to plaintiff’s cattle was caused by running, but it was not to show whether such running was caused by a wrongful act on the part of defendant, or by some other cause for which defendant was not responsible. It was just as likely to have been owing to the latter as the former cause. As was said (although not in asimilar case) in Taylor v. City of Yonkers, 105 N. Y. 202-209 ; 7 St. Rep. 332, the plaintiff must fail “if it is just as probable that the injury came from one cause as the other, because he is bound to make, out his case by preponderance of evidence, and the jury must not be left to a mere conjecture,’ or to act on a bare possibility.” We think that the plaintiff failed to show any abuse of the cattle by the defendant while they were being driven along the highway at, the time in question. On the whole case we conclude that the plaintiff failed to show- any wrongful act on the part of the defendant, as charged in the complaint, and hence that the judgment should be affirmed, with costs. All concur.


text:
    Norman Clapper, App’lt, v. William E. Kells, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed May 8, 1894.)

    Evidence—Landlord and tenant.
    In an action for breach of a covenant by the lessor to repair an ice house, evidence as to what was paid for the ice and what the purchaser said he would have paid for it if the ice house had been in good repair, is not competent to show damage.
    Appeal from an affirmative judgment in favor of the defendant on his counterclaim.

      Nelson Webster, for app’lt; Alfred A. Guthrie, for resp’t.
   Putnam, J.

This action was brought in a justice’s court to recover on an alleged claim for rent, goods, chattels, and labor. The defendant in his answer, besides a general denial, set up several counterclaims. The third alleged counterclaim was for damages sustained by him in consequence of the failure of plaintiff to fulfill an agreement to repair an ice house leased by plaintiff to defendant. The case was tried before a justice and a jury, and the defendant obtained judgment against the plaintiff in the action for $49.20 damages and costs. The jury, therefore, must have allowed the defendant his counterclaim, or some part thereof. On the trial the written lease executed by plaintiff to defendant was received in evidence, and it contained a covenant on the part of plaintiff to keep the premises rented in good repair. There was testimony showing that plaintiff had failed to perform said covenant. The defendant was, therefore, entitled to recover whatever damages he had sustained. But, after a careful examination of the testimony contained in the case, we are unable to discover any proper evidence on which the jury could estimate the damages resulting from such breach of covenant. There was no proof whatever as to what extent the ice melted or was damaged in consequence of plaintiff’s failure to repair the ice house. There was no satisfactory proof as to what repairs the ice house needed, orto show how much less the ice was worth in consequence of plaintiff’s breach of covenant than it would have been had that covenant' been performed. In fact, the judgment seems entirely unsupported by the evidence. The testimony given on the trial as to what Hayes paid for the ice, and what he said he would have paid for it had the ice house been in good repair, was so clearly not competent to show damage that it is unnecessary to discuss the matter.

On the trial, also, objections of the plaintiff to clearly improper ¿evidence offered by defendant were overruled by the justice. For instance, defendant having shown that he sold the ice for $300, and asked $500 for it, the following proceedings were had: “Ques1■tion. Did purchasers, at the time of the purchase, state the reason for refusing to pay the sum of $500.00? (Objected to as immaterial, and as calling for a conversation between third parties in absence of plaintiff. Objection overruled. Answer. Yes, sir. Question. What was the reason ? (Objection Same as ^before. Overruled.) Answer. Because the ice was in such bad shape. Question. What further did they say ? (Objected to same as before, and upon the further ground as not a proper rule of damages. Overruled.) Answer. They said they would not give but $300.00 just as it was. I took the $300.00. They would have given me $400 if the ice was in good shape.”

It requires no discussion or "citation of authorities to show that the above evidence so objected to by plaintiff was hearsay and improper. ^

Other objections of the plaintiff to incompetent evidence offered by the defendant were incompetently overruled by the justice. For instance, plaintiff claimed to recover of defendant for an ice-bar. The justice allowed the following question to be asked of the witness Hayes: “Q State what, if anything, Wm. Garrison said to you in regard to the ice bar. (Objected to as conversation between third parties, hearsay, improper and immaterial. Objection overruled.) A. He said the bar was his.”

It follows that the judgment of the courts below must be reversed, with costs to appellant in this court and in the county court.

All concur.


text:
    John F. Davis, Resp’t, v. Anna R. Kling, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed May 8, 1894.)

    1. Payment—Mistake.
    Money paid under a mistake of fact may be recovered back, even though, the payer, if vigilant and careful, could have avoided the mistake.

      2. Same.
    The over-payments were held, in this case, to have been made under a mistake of fact.
    Appeal from a judgment entered on a verdict directed by the county court in favor of plaintiff.

      J. I. Ourtis {T. F. Bush, of counsel), for app’lt; John F. Anderson (Lewis F. Carr, of counsel), for resp’t.
   Putnam, J.

This action was brought to recover for milk sold and delivered during the months of February and March, 1892, under the provisions, of a written contract between the parties, which took effect on April 1, 1891, and continued until April 1, 1892, and by which plaintiff during said period agreed to deliver milk to defendant. The latter was to pay on the 15th of each month for the milk delivered the prior month. In pursuance of the contract, plaintiff delivered milk from April 1, 1891, to April 1, 1892, and following the delivery of each month defendant made the payments required by the contract by-checks. The check of May, 1891, is as follows:

“Jersey City, N. J., May 12, 1891.

“First National Bank.

“Pay to the order of A. Davis, twenty-five and 2-100 dollars.

“$25.02-100.

“Paid in full, to May 1st, ’91.

Anna B. Kling.”

Each month thereafter up to February, 1892, defendant paid for the milk delivered the previous month by a similar check. It is conceded that the milk delivered in February and March, 1892, has not been settled for. There is no dispute about the amount delivered, and its value at the contract price was $43.90, the sum for which the county judge directed the jury to render a verdict in favor-of plaintiff. The only question in the case arises out of the claim of defendant that in making the payments for the months of April, May, June, July, August, and September she overpaid plaintiff the sum of $27.45, which should be allowed on the demand for milk delivered in February and March, 1892, leaving due plaintiff the sum of $16.52, instead of $43.90. It was provided in the written contract that if plaintiff—and others who executed the same agreement with him—should deliver as much milk in November, December, and January of the year embraced in said contract, as they shall deliver in May, J une, and July of said year, the defendant would pay for the months of April, May, June, July, August and September, one-half of one per cent, per quart less than the price made by the New York Milk Exchange; but, if plaintiff shall fail to deliver as much milk in November, December and January, as in May, June and July of said year, then defendant would pay for the milk delivered in April, May, June, July, August and September, three-quarters of one per cent, per quart less than the price made by the New York Milk Exchange. As above suggested, the contract provided that on the 15th of each month during its continuance the milk delivered the prior month should be paid for. Whether, however, the plaintiff should be entitled the first six months to be paid at the rate of one-half of one per cent.,-or three-quarters of one per-cent, less per quart than the price made by the New York Milk Exchange could not be determined until after the following months of November, December and January, as until then it could not be known whether plaintiff would or would not furnish in those months as much milk as he had in May, June and July. In making the payment for the first six months of the year defendant apparently assumed that plaintiff, in November, December and January thereafter, would deliver the same quantity of milk he did in May, June and July, and paid for the milk delivered one-half of one per cent, per quart less than the price made by the New York Milk Exchange. In fact, plaintiff in November, December and January did not furnish the same quantity of milk as in May, June and July, atid hence plaintiff was only entitled to receive for milk delivered the first six months a sum three quarters of one per cent, less per quart than the price made by the New York Milk Exchange. The defendant therefore overpaid for said first six months of the contract; such overpayment amounting to $27.45.

There was no dispute as to the facts,— the amount of milk delivered, the sums paid by defendant, and that she had for the months above specified made an overpayment that plaintiff was not entitled to under the contract. The court below directed a verdict for the plaintiff for the amount claimed, holding that the conceded overpayments made during the first six months of the contract by defendant could not be allowed her. We cannot concur in the view of the case taken by the county court. We can see no satisfactory reason why 'all sums paid by defendant under the contract for milk delivered by plaintiff should not be allowed. As above suggested, the milk was delivered and payments made under a continuing contract extending from April 1, 1891, to April 1,1892. The price which plaintiff should receive for the first six months could not, for reasons above stated, be determined until the expiration of nine months from the time of its going into operation. This being so, defendant, being obligated to make monthly payments, made them at the maximum prjce mentioned in the agreement When it was found at the end of nine months that she had for the first six months paid a larger sum than plaintiff was entitled to, we can see no reason whatever why the overpayment should not be allowed on subsequent payments becoming due. She made the overpayments, when it was uncertain what the amount of the monthly payments should be, at the maximum rate. When it turned out that'she paid more than was due for the first six months, it is but just that the excess should be applied on the subsequent payments becoming due on the contract. No sufficient reason is stated by counsel for the respondent why the overpayments should not be so applied. The monthly payments by defendant to plaintiff, above referred to, did not make a monthly accord and satisfaction, as suggested by the learned' counsel for respondent. There was never any dispute or' controversy between the parties. There is nothing in the transaction in question like an accord and satisfaction., Nor can the giving of the check each month be deemed an account stated as to the milk delivered the prior month. The monthly payments in question did not affect ah account stated, because they were made at a time when it was impossible to determine the true amount that should be paid plaintiff. An account stated is where the parties settle, and are deemed to intend to settle and state their accounts. The parties here, under the plain provisions of the contract, could not, when the monthly checks were given, settle the amount due the plaintiff. They could not make an account stated. Nor does the evidence in the case show any intent to make an account stated by any agreement or settlement between the parties. Nor can the overpayments made by defendant be deemed voluntary payments. What are called “ voluntary payments ” are when one knowingly pays and intends to pay an illegal or unfounded claim, with full knowledge of its illegality or groundlessness; as, for instance, had plaintiff, at the termination of the contract, demanded of defendant as the sum due him $43,90 — being the amount for which he obtained judgment—and had defendant paid him what he demanded voluntarily, with the knowledge of all the facts which she now knows, this would have been deemed a voluntary payment, and defendant could not have recovered the overpayment. See Trust Co. v. Manning, 3 Sandf. Ch. 58; Ritter v. Phillips, 53 N.Y. 586; Bennett v. Bates, 94 id. 354; Cox v. Mayor, etc., 103 id. 519 ; 3 St. Rep. 672; Redmond v. City of New York, 125 N. Y. 632; 35 St. Rep. 917. Many other cases to the same effect might be cited. These authorities show that a “ voluntary payment ” is one made with full knowledge of the facts — a voluntary payment of an unfounded or illegal claim. It does not appear in this case that defendant intended to pay any sum in excess of the amount due on the contract. She made payments in advance of the time when she was bound to make them; larger monthly payments than, as it now appears, the contract called for. But when she made them the proper amount to pay was uncertain. The over-payments made by defendant in said months were not in pursuance of any demand of plaintiff. It does not appear that there was any settlement between the parties, or that plaintiff asserted any claim for the sums paid. All that the case discloses is that at the end of each of the first six months, the price per quart for the milk that plaintiff, would, in the end, be entitled to, under the contract, being uncertain, the defendant paid him the highest sum he could receive thereunder. She paid on the contract in advance, but it does not appear that she intended to pay, in the end, on the contract, a greater sum than plaintiff was legally entitled to. Therefore there was no “voluntary payment” of the overpayment in question, no intent being shown (and none will be presumed) on the part of defendant to pay plaintiff more than the contract price for the milk delivered. We think that the overpayments made by defendant during the six months in question might be deemed paid under a mistake of fact. The payments were apparently made and received on the assumption that plaintiff would furnish the same quantity of milk in November, December and January as in May, June and July. There was a mistaken assumption. We suppose that there may be a mistake as to a fact expected to happen as well as to one deemed already to have occurred. It is well settled that money paid under a mistake of fact may be recovered. Thompson v. Otis, 42 Barb. 461; Tinslar v. May, 8 Wend. 561; Bank of Commerce v. Union Bank, 3 N. Y. 280; Boyer v. Pack, 2 Denio, 107; Renard v. Fiedler, 3 Duer, 318. And this is the case although the party making the payment, if vigilant and careful, could have avoided the mistake. Kingston Bank v. Eltinge, 40 N. Y. 391; Waite v. Lygett, 8 Cow. 195.

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

All concur.


author: Finch, J.

text:
    In the Matter of the Proceedings of the Long Island Railroad Company, Resp’t, to Acquire Title to the Real Estate of Charles Moran, App’lt.

      (Court of Appeals,

      Filed, June 12, 1894.)

      Í. Condemnation Proceedings—Charters.
    Corporate charters are not forfeited in fragments, or annulled as damages for the violation of private contracts.
    3. Same—Private Contract.
    The power of condemnation is not destroyed by the incident that individuals, through the force of a special contract with the company, may compel the use of some motive power other than steam upon a small portion of the line.
    3. Same.
    A corporation does not lose its conferred right of eminent domain by merely breaking a private contract with a private individual.
    4. Same—Defense.
    The fact that the act, authorizing the company to run cars over its road on, the avenue by steam power, is unconstitutional, and the use of steam power on the avenue illegal, is no defense to condemnation proceedings.
    Appeal from.an order of the general term of the supreme court in the second judicial department, which affirmed an order of special term appointing commissioners of appraisal in condemnation proceedings.

      John M. Bowers, for app’lt; M B. Hinsdale, for resp’t.

      Affirming, 50 St. Rep. 257.

   Finch, J.

I do not think that the question argued at the bar, and which was reserved and left undecided in People v. Brooklyn, F. & C. I. R. R. Co., 89 N. Y. 83, is even yet presented.in a form to justify our .final determination. That question is whether the landowners on Atlantic avenue who paid assessments under the alleged contract lor the discontinuance of steam propulsion upon that avenue, acquired a right which the legislature could not take away, and which makes the use of steam power upon that portion ol petitioner’s line unlawful. If we-were to admit the alleged fact and should hold that the Long Island Co. had lost its right to use steam on the avenue end of its line, both under its own charter and as lessee, it would furnish no adequate answer to the present application. . The petitioner would yet remain a steam railroad company, having possession of its charter' and the rights secured thereby, using steam upon many miles of track, and doing so legally and by competent authority, and so at liberty to condemn land for its corporate purposes. Whether it may or may not use steam upon a small fraction of its line is a question irrelevant to its power of condemnation. That power remains until the charter is forfeited or annulled. If the company has become bound to use horses, or compressed air, or electricity upon a part of its line it may still need accommodation for freight, and the handling of. cars and further terminal facilities, and there is no proof before us that the necessity existing rests or depends upon the ability to use steam upon the avenue end of the line. The evidence is that the company runs four hundred trains a day, and that its terminal facilities are so insufficient as to compel an occupation of Flatbush avenue by its ears, and nothing indicates that the pressure for room would be materially lessened if some motive pover other than steam should be substituted in the city streets. At all events, until it is proved that the added accommodation sought is only necessary while steam is exclusively used, the fact that it cannot be lawfully used upon a few miles of track is no answer to a justified demand for the condemnation of further land. Corporate charters are not forfeited in fragments, or annulled as damages for the violation of private contracts. The argument of the learned counsel for the appellant is strongly framed until it reaches this fatal point. As to that the authorities which he .cites are either irrelevant to his purpose or adverse to the current of his reasoning. Brooklyn Steam Transit Co. v. Brooklyn, 78 N. Y. 581, shows that the corporate life and power, once fully granted and completely existing, may be lost in tow ways : sometimes because the charter itself provides for self-executing causes of forfeiture which, whenever established, effect at once the corporate death; and sometimes where no such provisions exist, the forfeiture comes and can only come from a judicial decree at the suit of the state. This last remedy against the company has been tried and failed. The use of steam upon the avenue has been held to be lawful as against the intervention of the state; and so it follows that even if it be unlawful against contract rights of individuals the fact works no forfeiture, the corporation remains intact with no power crippled, since the wrong it has done, if it be a wrong, is neither a cause of self-executing forefeitu re, or a ground of destruction at the suit of the state. The company’s corporate right of eminent domain, therefore, remains unaffected and may still be exercised when the proper occasion comes. In the Matter of Niagara Falls & Whirlpool R. R. Co., 108 N. Y. 875 ; 18 St. Rep. 690, it was held that a company seeking to exercise the power of condemnation must show first, a legislative warrant for its acts, and, second, that it is engaged in a railroad enterprise of a public character. In the present case both facts exist beyond dispute, and the power of condemnation is not destroyed by the incident that individuals through the force of a special contract with the company may compel the use of some motive power other than steam upon a small portion of the line. Other cases cited on behalf of the aJpellant were those in which some express condition of the corporate life remained unfulfilled, or in which the rights of the company came in collision with and were subordinated to the police power of the state. The cases are very far from holding that a corporation loses its conferred right of eminent domain by merely breaking a private contract with a private individual.

The general term opinion accedes to this view of the case but speaks of it as quite technical. For us and in this court itis much more than that, for it renders unnecessary and so improper a discussion of the constitutional question upon which the private right of the appellant turns. To decide that when after all the result must remain unchanged would be to violate a prudent and useful rule which governs our judicial action.

The appellant and those situated like him have apparently suffered an injustice. They paid their money to get rid of steam on the avenue and it has come back under legislative sanction. If there is a remedy, however, and a right has been violated, the redress must come through an enforcement of the contract and not by an attack upon the corporate life and power.

The order should be affirmed, with costs.

All concur.

Order affirmed.


text:
    Simon Paltrovitch, Resp’t, v. Phœnix Insurance Company of Hartford, App’lt.

      (Court of Appeals,

      Filed June 19, 1894.)

    1. Insurance—Fire—Policy—Construction.
    The stipulations of a policy, which relate to the procedure merely, after the occurrence of a loss, are to be reasonably, and not rigidly, con strued.
    3. Same—Certificate of nearest notary.
    Good faith on the part of the company' requires that, when it rejects a certificate on the ground that there is a nearer notary, whose certificate it requires, it should give the name and address of such notary, to enable the insured to comply with its demand.
    3. Same.
    In this case, a provision requiring the certificate of the nearest notary to accompany the prdofs of loss, was held to be waived by the company's retention of the certificate of another notary for twenty-three days.
    Appeal from judgment of the general term of the supreme court in the fifth judicial department, which affirmed a'judgment in favor of plaintiff, entered upon a verdict.

      G. M. Bushnell, for app’lt; Moses Shire and Edward Jellenck, for resp’t.

      Affirming 52 St. Rep. 277.

   Finch, J.

The loss by fire which the plaintiff seeks to recover occurred in the city of Buffalo on the eleventh day of May, 1891. The insured made out and forwarded his proofs of loss, which reached the defendant company on the 15th of the following June. Accompanying such proofs of loss was a certificate in the substantial form required by the policy, which was signed by A. J. Eoehner, a notary public. The policy-provides that such a certificate made by the magistrate ori notary “ living nearest the place of the fire ” shall be furnished by the insured if required. No such requirement had been ' made when the proofs of loss were sent, but the certificate was furnished voluntarily and in advance to meet the emergency of a possible demand for it. The proofs of loss were kept until the 8th day of July by the company and then returned to the insured with a notice that the company required a certificate from the notary “ living nearest the place of the fire,” and that the certificate furnished would not be accepted as a compliance with the policy. There was no statement that other notaries were found to be living nearer the place of the fire, and stating their names and residences, as good faith and a moderately fair treatment of the insured required, but he was left to carry on his own investigations about notaries in his own way and at his own risk. It turned out that three other notaries lived nearer the place of the fire in one sense of the phrase. This company, in its anxiety for its precise and rigid rights, hired a city engineer to measure the distances with a tape, and both by way of the streets and in a air line over the tops of the houses, and so was able to prove that there were three notaries who boarded and slept a few hundred feet nearer the place of the fire than the one whom the insured supposed to be the nearest. But these later-discovered notaries had their offices and transacted their official business at much greater distances away, and there had their signs and expected their customers. Where they boarded and slept they had no signs, and there was nothing to indicate their presence and existence; and the plaintiff, unaware of their proximity, and not suspecting the sort of investigation to which he was to be invited, took the nearest one he could find whose office and notarial .sign and residence were at the same place. It is upon this narrow and technical ground, with no pretense of substantial justice in it, that the action of the insured is now defended.

We have recently held, and I think very properly, that the stipulations of a policy which relate to the procedure merely, after the occurrence of a loss, are to be reasonably and not rigidly construed, McNally v. Phœnix Ins. Co., 137 N. Y. 398; 50 St. Rep. 680, and I think that the phrase “ living nearest the place of the fire”, ought not to be confined entirely to the food and sleep of the notary and should take account of the place where he lives officially and to which by some public sign he invites those who do business with him, Turley v. N. Am. Fire Ins. Co., 25 Wend. 374; but at all events good faith on the part of the company requires that'when they reject one certificate on the ground that there is a nearer notary whose certificate they require, they should give the name and address of that nearer notary to enable the insured to comply with their demand, and that if they do not do so a jury will be justified in concluding that they do not in reality require the further certificate for any practical or beneficial purpose, but have waived it as an essential condition. For they either want another notary’s certificate or they do not. If they desire it they will name him so that the insured may comply. Otherwise, it is clear that they do not want the further certificate, and will be disappointed if they get it, and make the demand solely and only to secure a technical defense. When to that is added the fact that the company kept the certificate sent for twenty-three days without objection, I think the jury were justified in saying that the demand of a further certificate was not made in good faith and a different performance of the condition was waived.

A suggestion was made to induce a favorable vietv of the technical point raised. It is said that the evidence justified a suspicion of fraud. None was alleged except a very exaggerated estimate of the loss and that the jury corrected by their verdict. It is always easy to say that the company suspects as a reason for a purely technical defense. All parties should have their rights in this court fairly and fully, but a severely formal defense resting wholly upon immaterial matters of procedure ought not to be allowed to work injustice.

While we feel bound to enforce these contracts fully and fairly according to their terms, yet where those terms respect the modes of proof and procedure after the loss, we shall give them always a reasonable and liberal construction and not a severe and technical one. In this case we approve of the conclusions reached by the courts below.

The judgment should be affirmed, with costs.

All concur.

Judgment affirmed.


author: Peckham, J.

text:
    Patrick Murphy, App’lt, v. Dennis Shea, Resp't.

      (Court of Appeals,

      Filed June 19, 1894.)

    1. Service — Summons—Proof.
    The affidavit of a person, who did not serve a summons, is sufficient to prove its service, where he swears unequivocally and positively thereto.
    2. Same.
    It is sufficient, though in form a petition for the appointment of a guardian ad litem for an infant defendant in an action for the foreclosure of a mortgage.
    3. Same.
    On a motion by the purchaser in a foreclosure suit that he be relieved from the purchase on the ground that an infant defendant had not been served with the summons, a decision that the guardian ad litem was duly appointed, includes, if necessary to sustain the judgment, a finding that the summons was served.
    Appeal from judgment of the general term of the court of common pleas for the city and county of New York, which affirmed a judgment in favor of defendant entered upon an order dismissing the complaint on trial at special term.

      William A. Dylcman, for app’lt; Dclward W. S. Johnston, for resp’t.
   Peckham, J.

The plaintiff and defendant entered into an agreement by which the defendant agreed to sell and convey to the plaintiff certain real estate in New York city upon payment of a certain price. The plaintiff in his complaint alleges that he was ready at the appointed time to carry out his part of the agreement by paying the agreed-upon price, but the defendant neglected and refused to fulfill by conveying the fee of the premises, as there was an outstanding interest in the premises, or some portion thereof, which the defendant did not by his tendered deed convey. The plaintiff had paid five hundred dollars down at the execution of the agreement, and had expended $150 in making searches, etc. He demanded a specific performance of the contract on payment of the balance of purchase money to the defendant, after making a just deduction from the amount due from him as purchase money, because his money had lain idle on account of defendant’s failure to comply with the contract and give a good title. The defendant in his answer alleged full performance of his contract by tendering a good and sufficient deed to convey the fee simple of the entire premises. The defendant’s title to the premises came through a foreclosure suit, in which there were infant defendants. It was claimed that one of such defendants had not been served with the summons, and that, hence, his interest ■(which was one-sixth) in the premises was not cut off by the foreclosure judgment and the sale thereunder to defendant. The plaintiff upon the trial offered the judgment roll in the foreclosure action in evidence. It contained a petition in the foreclosure action, signed and sworn to by the father of the infant, in which the father swore that the summons and a copy of the complaint were served on the infant defendant on the-day of September in the year stated. He prayed for the appointment of a guardian ad litem for the infant defendant. Upon this sworn petition •the court appointed a guardian who appeared in the action and ■put in the usual answer of a guardian for an infant. The action proceeded to judgment of foreclosure and sale, a referee was appointed and the premises were sold and the defendant became the purchaser.

The judgment roll contained sufficient and competent, evidence of the actual service of the summons on the infant. The affidavit of the person who actually served the summons is unnecessary so long as there is other, competent proof of such service. A third person may have actual knowledge of such service, and when he swears unequivocally and positively there is a presumption that he swears from personal knowledge and not from hearsay. The affidavit in question here was made positively and not on information and belief, and being made by the father of the infant it is still more probable that it was founded upon personal knowledge. At any rate there was enough stated to call upon the court for a decision upon the fact of service, and-the court must have found such fact as the basis for its order for the appointment of a guardian.

The judgment in the foreclosure action does not recite that jurisdiction over the infant was acquired by the voluntary appearance of the guardian ad litem. It recites the fact that the infant had appeared by his guardian ad litem, but there is no statement that jurisdiction was only obtained in that way.

The guardian had in fact appeared as the judgment roll showed, and be had put in the usual answer.

There is no inconsistency in the recital with the fact that the summons had been served as stated in the affidavit of the father, and the judgment roll is sufficiently full to show jurisdiction in the court over all the defendants in the action.

This was all the evidence offered by plaintiff upon the question .as to the service of the summons on the infant defendant. We think it apparent that he wholly failed to show there was no service of the summons, and the contrary appears by the judgment roll itself.

The defendant herein then put in evidence certain papers used by him as the purchaser in the foreclosure action and forming the basis of a motion he made in that action to be relieved from his purchase on the ground that this infant defendant had never been served with tiie summons. As a foundation for that motion he procured the affidavit of the father in which the father swore that he was mistaken in his statement in his former affidavit when he said that the summons and copy complaint had been served on the infant, and in this subsequent affidavit denied that the infant had been so served, and he stated the infant was at the time of the alleged service in Kansas.

The court denied the motion and held that as the record showed service it was not a case to set aside the judgment, and the purchaser was compelled to fulfill. The defendant claims that this decision is another adjudication as to the jurisdiction of the court made in the -foreclosure action, and hence is binding on every one and' cannot be attacked collaterally.

If we assume, without in any manner deciding, that the defendant is mistaken in that matter, the plaintiff is no better off. There is in the judgment roll sufficient evidence upon which to base a finding by the court therein that the service on the infant had been made and, therefore, the appointment of a guardian was proper.

If the fact of such service should be traversed in this action the burden under these circumstances rests with the plaintiff to show that there was no service. To support the fact of service the original affidavit of the father attached to and forming part of the judgment roll is at least prima facie sufficient. All that the case here shows is that the father subsequently made another affidavit in which he, says he was mistaken when he made the > first. Treating the affidavit as if the affiant were sworn as a witness in this case, such evidence is by no means conclusive. At most it calls upon the court to now say which is the truth. The father may have been right in his first and wrong in his second affidavit. The court in this action finds as a fact that the guardian was duly appointed in the other action, which includes, if necessary to sustain the judgment, the finding that the summons was served on the infant, there being evidence to sustain such finding.

The papers on which the application to be relieved from his bid was made by defendant as purchaser are no part of the judgment roll in the foreclosure case, although if they-were I see no materiality in that fact. The question would still be which affidavit is correct. But they are not, in any sense, a part of the roll, and cannot be regarded as such.

The result is that the plaintiff has failed to make good his attack upon the regularity and sufficiency of the judgment in the foreclosure action, and the judgment of the trial court herein in favor of defendant should be affirmed, with costs.

All concur: Judgment affirmed.

      Affirming, 52 St. Rep. 938.


author: Gray, J.

text:
    The People ex rel. Perrin A. Strough, App’lt, v. Board of County Canvassers of Jefferson County.

      (Court of Appeals,

      Filed June 22, 1894.)

    1. Statutes—Repeal.
    Unless a general and a local statute are clearly inconsistent, the former doesnot repeal the latter by implication.
    3. Same.
    An amendment of a repealed statute “so as to read as follows," is a re-enactment of such statute as amended.
    Appeal from order of the general term of the supreme court in the fourth judicial department, which reversed an order of special term granting a motion for a peremptory writ of mandamus.

      John N. Carlisle, for app’lt; Watson M. Rogers, for resp’t.

      Affirming 60 St. Rep. 410.

   Gray, J.

The relator by this proceeding has sought to compel a re-canvass of the votes cast at the election held in November, 1893, for school commissioner of the third school commissioner’s district, in the county of Jefferson. His object is thereby to secure his election as a school commissioner; which would be accomplished, he alleges, if those votes were canvassed which were cast in the school district as its boundaries were fixed prior to 1892. In that year the board of supervisors of Jefferson county, at their annual meeting, undertook to change the boundaries of the different school commissioners’ districts, and if they had the power to do so, then it is not disputed that their act was valid. That power was, apparently, given to them by the provisions of chapter 414 of the Laws of 1883; but the relator insists that the act of the legislature was ineffectual for the purpose claimed, because it was in amendment of a section of the Common School Law, which had been repealed; either directly or by implication. The act passed in 1883 was entitled “An act to amend § 16 of chapter 179 of the Laws of 1856, entitled ‘An act to provide for a more thorough supervision and inspection of common schools, arid further to amend the statutes relating to public instruction in this state.’ ”

It provided as follows:

“ Section 1. Section 16 of chapter 179 of the Laws of 1856, is hereby amended so as to read as follows :

“Section 16. The several cities which already or which shall hereafter under special acts elect superintendents of common schools or whose board of education choose clerks doing the duty of supervision under the direction of the board of education, shall not be included in any commissioner’s district created by this act or authorized to be formed by the board of supervisors; and the several boards of supervisors in counties in which such cities are joined to towns in the formation of an assembly district, may divide the county, exclusive of such cities, into school commissioners’ districts as they may deem advisable, but no town shall be divided in forming such districts.”

Section 16 of chapter 179 of the Laws of 1856 had provided as follows: “The several cities in this state which under special acts already elect superintendents of common schools, or whose board of education choose clerks doing the duty of supervision under the direction of the board of education shall not be included in any school commissioner’s district created by this act or authorized to be formed by the board of supervisors and the several boards of supervisors in counties in which such cities are joined to towns in the formation of an assembly district, may divide the county, exclusive of such cities, into school commissioners’ districts as they may deem advisable, but no town shall be divided in forming such districts.”

' In 1864 the legislature passed an act (Chap. 555, Laws 1864) in revision and consolidation of the general acts relating to public instruction, and section two of the second title, which treated of the election, powers and duties of school commissioners, provided as follows:

“The districts as organized under existing laws, and as recognized in the election of school commissioners at the annual election in 1863, shall continue to be held and regarded as the school commissioner districts in this state, except as the same shall be altered or modified by the legislature.”

Section 14 of title thirteen of the act repealed all repugnant or inconsistent provisions of law ; but provided that nothing in the act shall be construed “to impair or in any manner affect or change ary special law touching the schools or school system of any city or incorporated village of the state.” It is argued for the relator that this latter section directly repealed § 16 of the act of 1856; or, if that was not its effect, that it was repealed by'implication and upon the principle that where the revising statute has covered the whole subject-matter of the former statute, it must be deemed to contain the whole law on the subject and to work the repeal of all previous legislation touching it. I should say that there was neither a direct repeal, nor a repeal by implication of the particular provision of the act of 1856 in question and the reasons given in the opinion of the General Term justices are satisfactory upon that point.

The existence of the act of 1856, which was by its terms limited in its application to particular counties of this star.e and concerned certain of its cities, was not inconsistent with the provisions of the general act of 1864, and, in the absence of language expressing unequivocally the intention of the legislature to repeal the special act, the courts should not incline to the^view that there was an implied repeal.

But this case may rest, for its decision, upon the broad principle that chapter 414 of the Laws .of 1883 was a re-enactment of the law, as contained in the act of 1856 and, as an independent statute, is unaffected by considerations of whether the provision of law, which it purports to amend, has been repealed or not by previous statutes. It is the duty of the court, when passing upon an act of the legislature, to uphold and give effect to it, where it is possible and.when the legislative intent is plain, and there is no room for doubt here as to what the legislature intended. They enacted a law which exempted certain cities from the supervision of school commissioners and which authorized the several boards of supervisors, in counties where such cities were joined to towns in the formation of assembly districts, to divide, as they might deem advisable, their county, exclusive of such cities, into school commissioner districts.

The enactment of this law is put in to the form of an amendment of a law, which was standing upon the statute books and whether that earlier law, by force of subsequent legislation, had become inoperative is wholly immaterial. The only question is, has the legislature in the enactment complained of expressed its purpose intelligibly and provided fully upon the subject. If it has, then its act is valid and must be upheld.

That is the case here. The act of 1883 contains all that is provided for in the particular section of the act of 1856 andgivesfull power to the boards of supervisors, with respect to the formation of school commissioners’ districts. A law thus explicit and complete may not be disregarded, or invalidated, because of a possible mistake of the legislature with respect to the existence of the statute, in amendment of which the act is passed. It is an enactment of a law, in any view.

Further discussion upon this question is needless, in view of the fhllness and ability with which it is treated in the opinion below and, for the reasons there and here stated, the order appealed from should be affirmed, with costs.

All concur, except O’Brien, J., not voting.

Order affirmed.


author: Earl, J.

text:
    Georgie French, App’lt, v. Jacob Vix et al., Resp’ts.

      (Court of Appeals,

      Filed June 22, 1894.)

    Contract—Building—Liability or contractor.
    A contractor for building, who covenants to be responsible to the owner for damage to neighboring property during the work, is not liable for injury to such property from the blasting operations of an independent subcontractor.
    Appeal from order of the general term of the court of common pleas for the city and county of New York, which sustained defendants’ exceptions, set aside a verdict in favor of plaintiff and granted a new trial.

      William H. Arnoúx, for app’lt; Robert M Deyo, for resp't.

       Affirming 50 St. Rep. 577.

   Earl, J.

This action was brought to recover damages to the plaintiff’s house in the city of New York under the following circumstances: One Henry owned a rocky lot adjoining the plaintiff’s house, and in May, 1891, he entered into a written contract with the respondents, whereby they agreed to build a house for him upon his lot, which contract contained the following clause: “And the parties of the second part further agree to become answerable and accountable for any damages that may be done to the property or person of any neighbor or passer-by during the performance of said work.” Subsequently the respondents entered into contract with one Dolan to do the rock and earth excavation requisite for the building of Henry’s house, which contract contained the following clause : “The said Dolan hereby assumes all responsibility for any loss or damage which may occur to persons or property while he or his employees are engaged in the performance of such work, and hereby agrees to save the said Jacob Vix and sons harmless from the payment of any such loss during the progress of the work.” Dolan entered upon the performance of his contract, and in blasting the rock upon Henry’s lot caused the damage to the plaintiff’s house which is complained of in this action.

There was evidence tending 4o show that the damage to the plaintiff’s house was caused by the negligent manner in which Dolan conducted the blasting of the rock, and there was also evidence from which the jury might have found that some damage might have been done to to the plaintiff’s house if the blasting had been done with the utmost care. The trial judge, in submitting the case to the jury, charged that the plaintiff was in any event entitled to a verdict, and that the only question for their consideration was the amount of the damages. He reached this conclusion by holding that the respondents had, by the clause in their contract above quoted, indemnified Henry against these damages, and that as Henry was liable to the plaintiff, to prevent circuity of actions she could commence her action directly against them as indemnitors. The jury having rendered a verdict for the plaintiff, the judge directed the respondents' exceptions to be heard in the first instance at the general term. There the exceptions were sustained and a new trial was granted on the ground, in substance, that it did not conclusively appear that the work which Henry contracted to have done would necessarily cause damage to the plaintiff’s house; that the damage may, therefore, have resulted from the careless manner in which the work w7as done by Dolan, an independent contractor, which, under the case of McCafferty v. Spuyten Duyvil R. R. Co., 16 N. Y. 178, and other cases, imposed no liability' upon Henry, and that, therefore, as he was not liable, the respondents, as his indent nitors, were not liable for these damages.

There was no claim upon the trial, and no contention upon the argument before us that the respondents could be made liable for damage caused by the mere carelessness of Dolan in blasting the rock, and so far as the damage to the plaintiff’s house was due to mere carelessness, that may be eliminated from the case. Nor can Henry or any one working under him be liable for damages which were the inevitable consequence of the blasting. The case of Booth v. Rome, W. & O. R. R. Co., 140 N. Y. 267; 55 St. Rep. 656, had not been decided when this case was under consideration in the courts below. There, after the fullest consideration, in an opinion carefully reviewing the authorities which leaves nothing to be said, we laid down the doctrine that one who in the reasonable use of his land blasts” rocks thereon with due and proper care is not liable for the inevitable damage caused thereby to neighboring property. We see no reason for reconsidering the points decided in that case, and it must be regarded as a precise authority for the respondents unless they can be held liable for these damages by virtue of the clause in the contract above quoted; and whatever view may be taken of that clause it cannot impose liability upon them. If it be treated as a contract of indemnity it could impose no liability because Henry not being liable there was nothing to call the indemnity into operation. The indemnitors could not be liable unless the party to be indemnified became liable. If it be claimed that this clause in the contract was intended for the benefit of the plaintiff, and that, therefore, she can enforce it, there are two answers to such a claim. It cannot be said that it was inserted for her benefit. The parties did not intend to provide indemnity against damages for which they were in no way liable. The sole purpose of the clause was the indemnity of Henry, and he alone, or some one in his right could in a proper ease enforce it. But even if it could be held that the contract contained in this clause was intended for the plaintiff’s benefit, she was not a party to the contract nor in the privity therewith, and as to her it was wholly without consideration. As Henry could not, under any circumstances, become liable for these damages, either on the ground of careless blasting or of inevitable damage, the case of Vrooman v. Turner, 69 N. Y. 280, is an authority for holding that the plaintiff cannot sue upon and enforce the contract.

Our conclusion, therefore, is that the order of the general term should be affirmed, and judgment absolute rendered against the plaintiff, with costs.

All concur. Ordered accordingly.


text:
    Edward F. Beddall, App’lt, v. British and Foreign Marine Insurance Company, Limited, Resp’t.

      (Court of Appeals,

      Filed June 22, 1894.)

    Insurance—Marine—Duration oe risk.
    A provision in an open policy on future shipment of cotton, which insures the goods “until safely landed at--does not continue the risk until the goods arrive at the warehouse or into the hands of the consignee, though there is a statement on the margin of the policy that it “ covers all risks at and from the port of destination to the final destination.”
    Appeal from judgment of the general term of the supreme ■court in the first judicial department, which affirmed a judgment in favor of defendant entered upon an order dismissing the complaint on trial at special term.

      J. Parker Kirlin and W. 0. Choate, for app’lt; William Allen Butler, for resp’t.

       Affirming 50 St. Rep. 745.

   Gray, J.

The policy of insurance, upon which this action was brought, was issued to the branch house of the Liverpool firm of T. A. Wooley & Co. at Norfolk, Va., in September, 1885, as an open policy, to cover shipments of cotton from Atlantic, or Gulf, ports in the United States to ports in Europe; “Beginning the adventure upon the said goods and merchandises from and immediately following the loading thereof on board of the said vessel, at-as aforesaid, and so shall continue and endure until the said goods and merchandises shall be safely landed at-as-aforesaid.”

Any shipments might'be covered by this policy, through an authorization, contained therein, to the assured to issue certificates, signed by the company’s manager in the United States and certifying that the bales of cotton mentioned therein were covered by the policy. Among the risks assumed by the insurers was that of fire. Written upon the margin of the policy was this clause: “ This policy covers also all risks at and from the port of destination to the final destination of the cotton.”

In October, 1886, a shipment of bales of cotton was made at ¡Norfolk, upon a steamship for Liverpool. The cotton was safely landed upon arrival at that port; but, in the night following the discharge of the shipment, a fire occurred and the cotton was badly damaged. When it was shipped at ¡Norfolk drafts were drawn against it and accepted and, with the bills of lading, came into the hands of certain English bankers. Upon the arrival of the steamship, a firm of brokers took up the bills of lading at the request and for account of Wooley & Co.; agreeing with the holders of the acceptances to pay them at maturity and, meanwhile, to-hold the property; or its proceeds, in trust to secure their payment, and further agreeing to effect insurance upon the cotton against fire, in warehouses or upon docks situated within six miles of the Liverpool town hall, etc.

After the fire the brokers abandoned the cotton to the fire insurance companies, which paid the loss and took assignments of the interests of the assured. They subsequently assigned to the plaintiff all the rights they might have against this defendant and he then commenped this action; claiming that the liability of the defendant under its policy was so extended by its terms, as to cover the cotton after it was landed and while upon the dock at Liverpool. Under the general rule, in such cases of marine insurance, when the cotton was safely landed at the port of its destination, the policy certainly would have expired; but the argument is that the effect of the added clause, written upon the margin of the policy, and which made the insurance cover all risks “at and from the port of destination,” etc., was to continue the risk until arrival at the warehouse in Liverpool, or until delivery into the manual custody of the consignees.

I do not think it to be necessary to have recourse to evidence to show what was the purpose of, or the understanding as to the insertion of the marginal clause in question. If this policy had been issued upon the occasion of, and for this particular shipment, the appellant’s argument that the risk extended beyond the landing of the goods would have some force. But this was an open policy, issued some time before, and intended to cover future shipments of cotton, as they might be certified under the policy by the assured. The general form of the policy was such as to, make it apply to risks while the goods were in course of shipment from ports to ports; but as it was plainly in the contemplation of the parties that the port of destination of the shipment might not always be the final destination of the cotton itself, there was added to the policy a clause, under which the risk, in such a case, would, endure until the cotton had reached its final destination beyond the port for which the vessel was destined. The language may be open to criticism, for failing to express as clearly as it was possible the precise obligation of the insurer; but, however that may be, it is certain that the protection of the policy is not suspended while the goods shipped from ports in this country are in transit to points beyond the port of -destination. The use of the word “ at,” in connection with “ the port of destination,” in the marginal clause, may well have been to cover the goods while upon the dock and intermediate their landing from the ship and their forwarding from the particular port to their final destination. I do not say that its use was legally necessary for that purpose; but it may be said to have prevented any doubt upon the subject of the duration and extent of the risk.

In the construction of this contract of insurance, the extent of the obligation of the insurer is to be ascertained by considering, in connection with the language of the policy, the situation of the parties at the time and the nature of the transactions to which it might become applicable. We are afforded certain knowledge as to what was the final destination of the bales of cotton, by reading the certificates, which were issued by the assured in order to bring them within the protection of the policy, and the bills of lading. In each, the shipment is defined to be as from Norfolk, Ya., to Liverpool, England. That the insurer is not supposed to have knowledge of the contents of the bills of lading, does not affect the question of what was the destination of the goods insured. They do show, as do the insurance certificates, as a matter of fact, that destination to have been the port of Liverpool and not some further point, which would call into operation the provision of the marginal clause in question. This contract, as all other contracts, should receive a fair and reasonable interpretation. The addition of the clause in writing upon the margin introduced no ambiguity, nor contradiction, into the insurer’s contract and called for no outside explanation of its object. That is clear from the language and the nature of the policy and upon a consideration of the situation of the parties to it at the time of its making.

I think that there was no error in holding that a practical construction was placed upon the contract of insurance by the assured, in effecting through their brokers further insurance against fire with the Liverpool companies, upon the arrival of the ship at that port. It need not be considered a controlling fact; but it was a circumstance which illustrated an understanding of the extent of the risk and serves to confirm the view that the policy by its terms expired, as to the shipment of cotton in question, upon its being safely landed.

It is quite unnecessary to discuss the question of whether there was any actual delivery to the consignees, by reason of the official relations to the consignment of the master porter; an officer appointed under act of parliament by the Mersey dock board and invested with certain duties connected with the supervision, the weighing and other acts specified to be done with respect to goods landed on any quay. The finding that the cotton was safely landed at the port, before the fire occurred, was not excepted to and is conceded and that was the fact which caused the cessation of the risk.

The opinion at the general term is full and satisfactory and we might well have rested our affirmance upon it.

The judgment appealed from should be affirmed, with costs.

All concur.

Judgment affirmed.


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    The People, Resp’t, v. Michael Cady, App’lt.

      (Court of Appeals,

      Filed June 22, 1894.)

    Election—Residence—Pbison.
    A person cannot, under the guise of, or if even without, a commitment, go to the Tombs as a prisoner with a right to be there only as a prisoner, and gain a residence there for voting purposes.
    Appeal from judgment of the general term of the supreme court in the first judicial department, which affirmed a judgment of the court of oyer and terminer of the city and county of New York, entered upon a verdict convicting the defendant of the crime of illegal registration.

      James J. IVaM, for app’lt; John D. Lindsay, for resp’t.
   Earl, J.

The defendant was convicted for illegal registration in the fail of 1893, in an election district in the city of New York of which he was not at the time a resident. He claims he was a resident of the election district, and whether he was or not is the question to be determined upon the present appeal. At and before the time of his registration he was in the Tombs city prison under a commitment by a magistrate, of which the following is a copy:

‘•The Warden and Keeper of the City Prison of the City of New York will receive and safely keep in his custody, for examination by the Commissioners of Public Charities and Correction, the body of Michael Cady, Charged with Destitution on Confession.

“Í District Police Court, New York, Aug. 14, 1893.

“C. W. Meade,

•‘Police Justice.

“Committed to W. H. Six Months. Edward C. Sheehy.”

Sheehy was one of the commissioners of charities, and this commitment is supposed to have been made under section 412 of the New York Consolidation Act of 1882, which reads as follow's :

“It shall be lawful for the Board of Charities and Correction to commit to any of the institutions under their charge other than penal for a period not exceeding six months, any person or persons committed to their charge by any police magistrate of the city of New York, and such vagrants as ask for commitment.”

He had been in the Tombs prison for about seven years, most of the time under similar commitments. He was always committed upon his own application, and when a commitment ran out he would immediately, or after the lapse of some time, make application for another, and thus there might be an interval of time, probably overlooked, between two successive commitments. He was, during all the time, supported at the public expense in the prison, and was there frequently employed to carry messages and do some slight work for the warden of the prison, and while thus employed was permitted to go in and out of the prison. He was received into the prison and detained there solely by virtue of the commitments and could be formally discharged from the prison, according to the practice in vogue there, only by the authority of one of the commissioners of charities. As a witness in his own behalf he testified that he lived in the Tombs prison in the election district where he registered; that he had lived there nearly seven years; that he had no other home and never had had any other home since he went to the prison ; that during that time he did not intend to have any other home; that he did intend to make the prison 1ns home “as long as he could not do any better—could not get any other home,” and that he had such intention during the whole time; that he was committed upon his own application ; that he had no home, no work, and made application to be committed to get a home and work.

Now, 'under these circumstances did he gain a residence in the Tombs? The constitution provides in article 2, § 3, that “no person shall be deemed to have gained or lost a residence by reason of his presence or absence while kept at any almshouse or other asylum at public expense, nor while confined in any public prison.”

It does not appear where his residence was before his commitment to the prison. He was at all times in a real sense a prisoner at the Tombs. He was not there as a laborer working for wages or even working for his own support, or as a member of the warden’s family. He was maintained at the public expense and was confined like others of his class. One committed to prison does not cease to be a prisoner because he is not strictly confined and is permitted by the prison officials to go in and out of the prison upon errands. Nor does it matter for the purpose now in hand that the commitment was irregular or even illegal. One may even be taken by violence and thrust into prison and confined there, or he may be detained there by his consent without any commitment, and yet he could not by such detention in prison gain a residence there for the purpose of voting. Before going to the prison, the defendant had a residence somewhere, and before he could change that it was requisite that he should go to the Tombs intending to make that his home and domicile, either permanently or for some unlimited time without any intention of returning or reverting to his former residence, and in fact intending thereby to change his former residence to the Tombs. The domicile or home requisite as a qualification for voting purposes means a residence which the voter voluntarily chooses and has a right to take as such, and which he is at liberty to leave, as interest or caprice may dictate, but without any present intention to change it. It is preposterous to suppose that the defendant had witliin these rules and the law laid down in Silvey v. Lindsay, 107 N. Y. 55 ; 11 St. Rep. 185, and many other cases found in the learned brief submitted in behalf of the people, made the Tombs his residence. lie was a single man. The Tombs is not a place of residence. It is not constructed or maintained for that purpose. It is a place of confinement for. all except the keeper and his family, and a person cannot under the guise of a commitment, or even without any commitment, go there as a prisoner, having a right to be there only as a prisoner, and gain a residence there.

We think upon all the evidence it is clear and without reasonable dispute that the defendant was not a resident in the district in which he registered; and are of opinion that no error was committed upon the trial to his prejudice.

The conviction should be affirmed.

All concur.

Judgment affirmed.


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    In the Matter of St. Nicholas Terrace. In the Matter of John F. Pentz et al. In the Matter of Ira Shafer.

      (Court of Appeals,

      Filed June 12, 1894.)

    Estoppel — Executors.
    The successors of an executor, who has sold lotsibounding on a private street, are estopped from contending that the street was illegal, and that, therefore, no easement in it passed as appurtenant to the lots.
    Appeal from an order of the general term of the supreme court, first department, reversing an order of the special term.

      George G. Hunger and J. A. Leering, for app’lts ; John C. Sham, for resp’t.

      Affirming, 59 St. Rep. 109.

   Per Curiam.

We agree with the conclusions reached by the general term, and deem it unnecessary to discuss questions that must now be considered as settled in this court, renting to the rights of grantor and grantee where the former sells lots to the latter bounding them on a private street laid out by the grantor on his own land.

The petitioners, on this appeal, insist that no private easement were created in favor of the abutting owners on so-called “Pentz Street” by the conveyance from Barker, the executor and trustee of the Pentz estate, in 1872, to the grantor of the respondent Shafer, for the reason that the former was prohibited by private statute from laying out any street in tlie city of New York independently of those laid down on the permanent maps of the city, and that Pentz street was not so laid down. We do not think the present executors of the Pentz estate can raise this question. They are estopped from making any such claim, and, as between them and Shafer, the latter is vested with the usual private easement in and over Pentz street. We do not decide the question sought to be raised. The city of New York has never made any objections to Pentz street.

The order of the general term is affirmed, with costs.

All concur.

Order affirmed.


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    Pasqualo Streppone, Resp’t, v. William F. Lennon, App’lt.

      (Court of Appeals,

      Filed June 19, 1894.)

    Evidence—Parol—Contract.
    In an action on a written contract to “do all the mason work,” under an estimate including all brick work, parol evidence is admissible to show that defendant veils to furnish the brick.
    Appeal from a judgment of the general term of the common pleas of the city of New York, affirming a judgment in favor of plaintiff.

      James Kearney, for app’lt; Lorenzo UUo, for resp’t.

       Affirming 51 St. Rep. 945.

   Finch, J.

The substantial question argued in this case respects, the construction of one sentence in the written contract between the parties. The work which the plaintiff contracted to do was a certain amount of excavation and mason work necessary for the construction of five houses. In the plaintiff’s proposition he said, “I also agree to do all the mason work below'the first tier of beams,” and added, “ This estimate includes all brickwork below the first tier of beams, except the piers under the girder.” The plaintiff did the stipulated work, but did not furnish the brick, and called upon defendant for them, who supplied them, and now seeks to charge their value against plaintiff's claim, on the ground that the contract required him to furnish them. Evidence was given, under objection, to show what the parties themselves meant and understood by the disputed language, and also what it meant in the usage of the trade ; the defendant insisting that such proof was inadmissible, because the written contract required plaintiff to furnish the brick, and, needing no explanation, could not be contradicted ; while the 'plaintiff insists that the writing requiring him to do the brickwork did not include the furnishing of the material, and at all events was sufficiently ambiguous to justify a parol explanation. An agreement to “ do ” an amount of “ brickwork ” may mean simply to perform the work of laying the brick, or, in addition, to furnish the brick as well as lay them. A recurrence to another portion of the contract throws some light upon the interpretation. The plaintiff, in agreeing to do the stonework, describes it as “masonwork,” but adds “and furnish all the building stone for same." He evidently understood that mason work meant only the labor, unless coupled with an agreement to furnish the materials ; and, since no such agreement accompanied the proposition to do the brickwork, it is a natural supposition that only the labor was intended. Plaintiff called upon defendant for cement, which the latter furnished, and concedes he was to furnish, and in exactly the same manner he was called upon to furnish and did furnish, the brick, making no objection and expressing no surprise; and in making payments he seriously overpaid the plaintiff if the latter was to be charged with the brick. The plaintiff’s construction is, therefore, both the possible and reasonable one, and at all events shows that the contract language, if not conclusive in plaintiff's favor, was at least ambiguous and open to explanation. The plaintiff testified that the bargain, as made, and which was meant to be repeated in the contract, was for work alone, while the defendant swears that it explicity included the brick. I think the parol evidence was competent, and that the writing did not conclusively put upon plaintiff the burden of supplying the brick. Ho other question in the case needs comment.

The judgment should be affirmed, with costs.

All concur.

Judgment affirmed.


author: O’Brien, J.

text:
    William H. Camp, Resp’t, v. James R. Treanor et al., App’lts.

      (Court of Appeals,

      Filed June 22, 1894.)

    Appeal—Fhtoiugs.
    Until the trial court has found that a writing does not express the intention of the parties and the agreement as they actually intended to make it, the court of appeals is not at liberty to resort to the evidence for the purpose of spelling out what they intended to embody in the paper.
    Eeargument.

      Hector M. Hitchings, for the motion; Durnin & Henbrick, opposed.

       See 60 St. Rep. 85.

   O’Brien, J.

The learned counsel for the respondent, on a motion for reargument, contends that the contract upon which this action was brought should be interpreted as containing a promise on the part of the defendants to pay to the plaintiff a percentage on the labor and materials as compensation for his services in superintending the work, without regard to the pecuniary result of the enterprise, or whether there was a profit or a loss. He does not claim that this is the necessary and natural import of thedanguage which the parties have embodied in the writing itself, but from certain oral testimony given at the trial and the surrounding circumstances, including the conduct and situation of all the parties, which he insists must be read with the agreement; and, when thus read, the intention of the parties was to make an agreement of the character claimed. When the language used in a contract is ambiguous or equivocal, and its meaning depends upon the sense in which the words are used in view of the subject to which they relate, the relation of the parties, and the surrounding circumstances properly applicable to it, the intent of the parties becomes a matter of inquiry, and the, interpretation of the language used by them is a mixed question of law and fact. White v. Hoyt, 73 N. Y. 505; Dwight v. Germania L. Ins. Co., 103 N. Y. 341; 3 St. Rep. 115 ; Kenyon v. Knights, etc., Association, 122 N. Y. 254; 33 St. Rep. 467. This contract, if within the principle at all, is clear enough except in respect to the plaintiff’s interest in it. The counsel contends that the intent was to define his compensation for services as 10 per cent, of the cost of labor and materials, and that he was to share in a certain way in any surplus, and there was none. It goes further, and provides in the clearest language that in case of a deficiency, or, in other words, a loss, he shall pay the proportion of such loss. The learned counsel has not attempted to explain this clause, and, unless it can be shown that it has no application whatever to the plaintiff, then, even upon the theory that the contract provided for an absolute sum to be paid to the plaintiff as compensation, the sum to which he would be entitled should be reduced by his share of the loss when ascertained upon an accounting. It may be that the writing does not express the agreement and intention of the parties, but, upon the record before us, we cannot so hold as matter of law, and the trial court has not so found as matter of fact. Our attention has been called to certain testimony and to circumstances tending, as is claimed, to show that the agreement was in accordance with the plaintiff’s contention. The evidence is by no means conclusive. It might have justified a reformation of the contract or a finding of fact that would give interpretation to the writing in harmony with the plaintiff’s contention; but, until the trial court has found that the writing does not express the intention of the parties and the agreement as they actually intended to make it, this court is not at liberty to resort to the evidence for the purpose of spelling out what they intended to embody in the paper. We have held that the writing alone does not give to the plaintiff any sum as compensation. The language confines him to a share of the profits, and subjects him to payment of his share of the loss. If a mistake was made in drafting the instrument, or if it is ambiguous or indefinite, or does not express the thought in the minds of all the parties, the trial court should find the facts, and from the evidence should find just what the parties intended. The referee has not found any fact that would warrant us in going outside of the written agreement. If the case is one where an ambiguity can be solved, or an omission to express in writing what the parties had in mind can be supplied, by oral proof, then 'the particular fact which is established by such proof should be found. The referee has only found the execution of the writing, and then, without finding any other fact, has given to it an interpretation which, we think, the language will not bear.

The motion for reargument should be denied, with $10 costs.

All concur, except Gray, J., dissenting. Motion denied.


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    Margaret Hayes, as Administratrix, etc., v. The Consolidated Gas Company of New York.

      (Court of Appeals,

      Filed June 22, 1894.)

    Appeal—Order refusing preference.
    An appeal lies from an order denying plaintiff a preference on the trial calendar to which he was entitled. '
    Appeal from an order of the general term of the common pleas of the city of New York, affirming an order of the special term denying plaintiff’s motion for a preference on the calendar.

      Edgar J. Levy, for app’lt.

       See 59 St. Rep. 893.

   Per Curiam.

This action was brought in the New York common pleas by the plaintiff to recover damages against the defendant for negligently causing the death of the intestate, and she claimed a preference upon the trial calendar, under § 791 of the Code, on the ground that she was administratrix, and as such sole plaintiff. Her claim was undoubtedly well founded ; but she is without relief in this court. She has no respondent upon this appeal. The defendant did not oppose her motion for a preference, and did not appear at the general term, and has not appeared in this court Her controversy is with the trial judge. He refused to give her the preference claimed — refused, in substance, to try her case, when she claims she was entitled to have it tried. For such illegal action by the judge, her remedy is not by appeal, but by mandamus to compel him to do his duty. Suppose a trial judge refused to try a case, or puts it over the term upon his own motion, what is the remedy of the party desiring the case to be tried ? Certainly not an appeal from the determination of the judge. He or his court cannot be made a respondent upon an appeal, and the complaining party has no controversy with his adversary. Suppose we should reverse this order, how could our decision be enforced ? No precept of any kind based upon it could be issued for its enforcement. The only way the trial judge could then be moved, if he still persisted, would be by mandamus. The appeal should be dismissed, without costs.

All concur.

Appeal dismissed.


text:
    Holly Manufacturing Company, Resp’t, v. Clarence H. Venner, App’lt.

      (Court of Appeals,

      Filed June 22, 1894.)

    Appeal—Judgment for contempt—When affirmed.
    Where the court of appeals cannot, on the evidence say that the defendant was not guilty of contempt, the judgment of the lower court will he affirmed.
    ■ Appeal from a judgment of the general term of the supreme court, first department, affirming an order adjudging defendant guilty of contempt for failing to produce certain books, pursuant to a subpoena duces tecum.

      Bronson Winthrop, for app’lt; David McClure, for resp’t.

       Affirming 57 St. Rep. 230.

   Per Curiam.

It was the province of the court below to determine the import and significance of the facts proved - in the proceeding to punish the appellant for contempt. We cannot say. that it was no.t permissible for the court to find that he had some complicity in the mysterious disappearance of the books about the same time in New York and Boston just when they were wanted. It is still open to him to relieve himself from punishment by more satisfactory proof of his good faith, and of his inability, without any fault on his part, to produce the books. The order should be ■■affirmed, with costs.

All concur.

Order affirmed.