author: PRATT, J.

text:
    Catherine Weldon, Resp’t, v. Third Avenue Railroad Company, App’lt.

      (Supreme Court, Appellate Division, Second Department,

      Filed, April 7, 1896.)

    1. Nbslioenoe—Imputed.
    Where plaintiff, at the time of the collision with a street car, was riding in a cab driven by her son, who had his own horses, and had no control of the vehicle or the driver or no authority to give instructions for their movements, he is not her agent so as to charge her with contributory negligence on account of his want of care.
    3. Same—Instructions.
    An instruction that if the injured party saw the approaching car,and attempted to cross the track in front of it, and erred in judgment as to the i chances of doing so safely, then plaintiff cannot recover, is properly refused.
    3. Trial—Instruction.
    A refusal to charge that, if the jury find, as a fact, that defendant’s witnesses are entitled to be believed equally with plaintiff’s, then defendant is entitled to a verdict, is not error.
    4. Same—Discretion.
    Where a judge sees that a witness is so confused, by a long or irrelevant cross-examination, that his memory seems to have left him, it is a proper •exercise of discretion to let the,witness rest for a short time in order to •collect his thoughts and become composed, so as to continue his examination.
    Appeal from a judgment in favor of plaintiff.’
    Hoadly, Lauterbach & Johnson, for appjt; Foley & Wray for vesp’t.
   PRATT, J.

This action was brought to recover damages for personal injuries, resulting from a collision between a cab in which the plaintiff was riding a*id one of the defendant’s cable cars, on th'e 28th of April, 1895, at about 8 o’clock p. m., at Ninety-seventh street and Third avenue, New York city. The plaintiff was sixty-mine years of age. In the afternoon of that day she asked her son Patrióle to get a team and cab, and take her and her daughter-in-law to West Farms, to visit a niece. Patrick owned a pair o£ horses, and obtained a cab, and took in his mother and sister-in-law, and his brother, Mathew Weldon, rode upon the seat with Patrick, and they went to West Farms. On returning in the evening, Patrick drove down Third avenue in the rear of one of the defendant’s cars with a trailer attached. How near he drove to the trailer car is one of the disputed questions of fact, but it is conceded that, when he had driven down to Ninety-seventh street he turned out to the left, and attempted to cross the uptown track, upon which a car was approaching. How near to Ninety-seventh street the car was at that time is another disputed question of fact. The plaintiff claims it was from 125 to 160 feet away from the cab, and defendant claims it was only from eight to thirty feet away. When the cab had nearly cleared the uptown track, the car struck the hind wheel, and swung the cab around, brealcing the windows and lanterns, and otherwise injuring it, and throwing the plaintiff across the cab,'and bruising her severely, so that, as she claims, she became permanently injured. The jury returned a verdict for the plaintiff of $3,500, and the defendant thereupon made a motion upon the judge’s minutes to set aside the vprdict, and for a new trial, upon various grounds, which was denied.. This motion, as well as the judgment, is brought up for review.

One of the main questions upon the trial was as to the relations of the plaintiff with Patrick Weldon, the driver. The defendant insisted that the judge should take this question from the jury, and should charge “ that the driver was the agent of the plaintiff, and was so shown to be by the testimony of the plaintiff herself,” and to “make her liable for his negligence.” This was refused.

The judge had already charged the jury as follows:

“ The mother who brings this suit was in the carriage. She was not driving. So I am not able to say to you that the negligence of the driver wo.uld be her negligence. On the contrary, you may not attribute the negligence of the driver to her, 'unless she was associated with him, or directed him in what he was doing. It is only her negligence that you may attribute to her on the question of whether she was negligent.”

We think this charge was as favorable to the defendant as the facts warranted. The jury were told that, if they found he was under her direction in what he was doing, or she was associated with him, in that case his negligence might be imputed to her. But it appears that the sons, or Patrick, took entire control of the journey. He says, in his testimony: “We went to get the old lady’s picture taken. She was a little superstitious about it, and we took her off to her unbeknowns, for that purpose,”—which negatives the claim that she was giving directions at the time of the accident. If the charge rendered it necessary for us to pass upon the question, we are of the opinion that the case falls unden that line of cases where a person accepts a gratuitous ride, and where the plaintiff had no control of the vehicle or the driver,! and no authority to give directions for their movements. Hennessy v. B. C. Railroad Co., 73 Hun, 569; 56 St. Rep. 131; affirmed by court of appeals, November, 1895; Hoag v. N. Y. C. & H. R. Railroad Co., 111 N. Y. 199; 19 St. Rep. 80; Brickell v. N. Y. C. & H. R. Railroad Co., 120 N. Y. 290; 30 St. Rep. 932.

The defendant asked the court to charge that “if the jury find, as a fact, that the defendant’s witnesses are entitled to be believed -equally with the plaintiff’s, then the defendant is entitled to a verdict,” which was refused, and excepted to. This ruling was correct. That is not the test to be applied to a case when the evidence is in. In that connection the court did charge “ that the jury are not bound to believe the testimony of the plaintiff, even though it was- not contradicted or impeached,” and also charged u that if the weight of testimony was even to give the benefit to the defendant. ” He further charged that the burden of proof was upon the plaintiff, and the plaintiff must establish her case by a fair preponderance of evidence, and also that, if the testimony on behalf of the plaintiff and on behalf of the defendant is equally balanced, then the plaintiff cannot recover. He also charged: “ If either the conclusion of the defendant’s negligence, or the absence of negligence on the part of the defendant, may with equal fairness be drawn, then the defendant is entitled to a verdict.” He also charged “ that the gripman of the car had a right to assume that the driver would use ordinary diligence, and that, if in á place of safety, he would not take chances in passing before an approaching car, and encountering great risks.” These instructions were as favorable to the defendant as the facts warranted.

Defendant also requested the court to charge that; "if Weldon saw the approaching car, and attempted to cross the track in front „of it, and erred in judgment as to the chances of doing so safely, then plaintiff cannot recover.” This was refused.' This is consistent with the previous ruling, where the court refused to hold, and to decide as a matter of fact, that Weldon was the agent of the plaintiff, and his negligence should be imputed to her. If Weldon had been the plaintiff, that charge would have been correct; but as to the plaintiff it was not true, and the ruling was consistent with the judge’s previous ruling. And the same remark is applicable to the next request (No. 12) of the defendant, and also the fifteenth, sixteenth, and seventeenth. The facts of this case were determined by the jury xipon conflicting evidence. The issue, as to the negligence of the gripman, was clearly and fairly submitted to the jury. The claim o£ the plaintiff was that the gripman was not looking straight ahead, so as- to observe the cab when it first turned to cross the uptown track, and while the gripman used his best endeavor to stop the car when he was apprised by the two Weldons of the danger of a collision, yet the plaintiff claimed, and the jury must have so found, that he was not looking straight ahead, and did not observe the cab as soon as he ought to have done if he had been 'tending properly to his duties. This is the main charge of negligence against the gripman.

The defendant also excepted to the judge’s refusal to charge that, “ if Weldon saw the approaching car, and attempted to cross the track in front of it, and erred in judgment as to the chances of doing so safely, then plaintiff cannot recover.” We have already answered this exception' by saying that that would have been the law had Patrick Weldon been the plaintiff in the case, but the defendant urges that this was material and proper in another view, to wit, that this was an inevitable accident, for which the gripman was not in fault; that it was purely a misadventure, and therefore that the plaintiff cannot recover, on the ground that an error of judgment is not negligence. But the court was not. asked to charge that, in case the jury found that it was a pure accident, the defendant cannot be held responsible; but the case was presented to the jury upon the testimony as to the distance that the cab was from the car when it first attempted to cross the-street, and the various other circumstances of the case authorized the jury to find that the gripman was negligent in observing the= cab and in failing to stop the car.

We now come to the exception raised by .the defendant for the-reason that the court stopped the cross-examination of the witness-John Conway.' It has always been conceded that the court held the power to control all matters, in the exercise of sound discretion, in the trial of a case. It may be observed, as to this exception, that it appears by no means certain that the defendant was. injured by the court sending the witness from the stand. It appears, beyond all question in the case, by all the witnesses on both sides, that the cab turned to the left, and went towards the east, across the uptown track of defendant’s road. The examination had been long, and the defendant’s counsel says that the witness was confused. He made a mistake in the points of the compass, but it was upon a point upon which there was really no dispute in t the case, and the cross-examination seemed calculated, not to elicit, the truth, but to confess the witness. Under these circumstances, we think it was in the discretion of the court to send the witness-from the stand. It also appears that the defendant had the privilege of assuming and continuing the cross-examination at a later-stage of the case. It is to be observed that the witness did not. see the collision, and was not in a position to see it. We think that the act of sending the witness from the 'stand was clearly in the discretion of the trial judge, and that that discretion was not-abused. The whole purpose of examining witnesses is to elicit, the truth, and when a judge sees that a witness is so confused, by a long or irrelevant cross-examination, that his memory seems to have left him, it is a proper exercise of discretion to let the witness rest for a ghort time, in order to collect his thoughts and become composed, so as to continue his examination.

We think the judgment should be affirmed, with costs.

All concur."


source: Caselaw Access Project

author: BROWN, P. J. PRATT, J.

license: Public Domain

text:
    Cornelius E. Bimson et al., Resp’ts, v. Albert H. Bultman, App’lt.

      (Supreme Court, Appellate Division, Second Department,

      Filed April 7, 1896.)
    1. Estoppel—Equitable.
    Where a party, by his declaration or conduct, has induced another person to act in a particular manner, he will not afterwards be permitted to-deny the truth of the admission, if the consequence would be to work an injury to such other person, or to some one claiming under him.

      2. Same—Rbsteictions.
    Where an owner of land contracts with the purchaser of successive parcels in respect to the manner of occupation and improvement of such-parcels, he thereby affects the remainder of the land with an equity which requires it also to be occupied and improved in conformity to the general plan; and this equity is binding upon a subsequent purchaser of the remaining parcel, who has notice of the prior agreement, though his legal-title be unrestricted. So held, .where an improvement company laid out a large tract in building lots, and circulated maps, which contained the statement that only buildings of brick or stone would be allowed to be built thereon, and the same statement appeared in signs placed on the-property, and was made orally by the officers of the company to certain grantees, who covenanted in the deeds to them not to erect on the lots any frame buildings.
    3. Same—Injunction.
    In such case, a court of equity has power to grant relief by injunction.
    4. Same.
    Such applications are addressed to the sound judgment and discretion-of the court, and courts of equity will refuse such relief when it will result in great hardship and injustice to one party, without considerable gain or utiility to the other.
    6. Same.
    The restraining power of the court should not be exercised, unless the property where the frame dwelling is being erected lies in the same street or the same block with the plaintiff’s lots, or if in another street or blocks in close proximity to the plaintiff’s property.
    Appeal from a judgment in favor of plaintiffs.
    Charles H. Otis, for app’lt; Charles M. Earle, for resp’ts.
   BROWN, P. J.

The German Improvement Company, in the-the year of 1892, was the owner of a tract of land in the Twenty-Sixth ward of the city of Brooklyn, of which it caused maps to be made, upon which said tract was laid out into streets and lots. These maps were distributed and circulated among real-estate-brokers and prospective buyers, and upon the reverse side thereof, there appeared a lengthy advertisement, which contained, interalia, the following: '

“The attention of builders, buyers of houses or lots is called tu the largest and most perfect real-estate developing enterprise ever attempted in either Brooklyn or New York. Over 1,600 city lots 20x100 feet, located in the Twenty-Sixth ward, Brooklyn, on the line of Kings county L. road. * * * Five miles of streets, improved under direction of city engineer, The entire tract re» stricted and controlled by one management All. buildings must be brick or stone; no frame.”

In addition to the map and the statements thereon, signs were -erected in three different places on the property, containing the statement that “only brick or stone buildings were allowed to be built; no frame buildings.” ' ,

In 1893 the said company conveyed six lots to one Eierman, and two lots to the plaintiff--Bischoff. The deeds of these parties contained covenants upon the part of the grantees that they would not erect upon the lots conveyed any frame building, or buildings of material other than brick or stone. Eierman and Bischoff built upon their lots dwellings in accordance with the terms of the deeds, and subsequently Eierman conveyed five of his lots to the respondents other than Bischoff. At the time of the sales' toEierman and Bischoff, the officers of said company orally repeated, the statements contained in said map and signs, and represented, that no frame buildings would be permitted to be erected on said tract of land. On August 28, 1895, the improvement companyi conveyed to the appellant three of said lots of land by a deed which contained no restrictions against the erection of frame buildings; and immediately after the conveyance to him, the ap-, pellant commenced the erection thereon of two frame dwellings. .So far there is no dispute as to the facts of the case.

The court found that the appellant purchased with knowledge, of the restrictions in the deeds to Birman and Bischoff, and of the statements and representations that had been made by the im-' provemsnt company and its officers, and that Eirman and Bischoff purchased in reliance upon such • representations; and these conclusions, excepting that in reference to Birman’s having been induced to purchase by said representations, we think, have support in the testimony.

The principle which supports he judgment in this action is that, where an owner of land contracts with the purcnaser of sue- ¡ cessive parcels in respect to the manner of the occupation and improvement of such parcels, he thereby affects the remainder of the land with an equity which requires it also to be occupied and im-¡ proved in conformity to the general plan; and this equity is bind-, ing upon a subsequent purchaser'of the remaining parcel, who has notice of the prior agreement, though his legal title be unrestricted. Tallmadge v. Bank, 26 N. Y. 105; Trustees v. Lynch, 70 N. Y. 440-447; Parker v. Nightingale, 6 Allen, 341; 3 Pom. Eq. Jur. § 1295, and cases cited in note.

The appellant contends that as the premise of the improvement company that the whole tract should be made subject to the same restrictions as were contained in the deeds to Eierman and Bischoff was by parol, and related to an incorporeal right in real estate, it is void by the statute of frauds. It would be difficult to overcome this objection if the existence of a contract in reference to the use» of the balance of the land by the improvement company was essential to the plaintiff’s right of action. Oases of mutual covenants on the part of grantor and grantee as well as cases between grantees, of a common grantor, both of whom have covenanted to-restrict; the use of the several parcels conveyed to them, are easily taken out of the operation of the statute. Parker v. Nightingale, 6 Allen, 341. But in this case no interest in the grantor’s land has been created by any instrument in writing. The agreement by which the use and improvement of such land is claimed to be restricted rests in parol only. In Tallmadge v. Bank and the other ■cases cited by the respondents, the oral agreement had been executed; and, of course, neither party could thereafter recall what had •been done. Newman v. Nellis, 97 N. Y. 285. In the disposition of this case, we may assume, I think, that the promise of the improvement company could not be sustained as a valid contract which would support an action either for its enforcement or its breach; but it does not necessarily follow from that conclusion that a court of equity, at the suit of a grantee, may not restrain the grantor from doing upon- the remaining land that which he orally promised not to do, and that which the grantee covenanted not to do, upon the land conveyed to him. The rule applied in the cases upon this subject rests upon the doctrine of estoppel Where a party, by his declaration or conduct, has induced another person to act in a particular manner, he will not afterwards be permitted to deny the truth of the admission, if the consequence would be to work an injury to such other person, or to some one ©laiming under him. Wendell v. Rensselaer, 1 Johns. Ch. 344-354; Storrs v. Baker, 6 Johns. Ch. 166; Dezell v. Odell, 3 Hill, 515; Brown v. Sprague, 5 Denio, 545; Plumb v. Insurance Co., 18 N. Y. 393; Brown v. Bowen, 30 N. Y. 519; 3 Washb. Real Prop. c. 2, § 6, subd. 8. An estoppel in pais does not create a technical title in land. Its effect is to conclude a party from denying the effect of his statements or admissions designed to and which have influenced the conduct of another, and, when so applied, it is as effectual asa deed would be from the party estopped. Numerous ■eases'on the subject are cited by Mr. Washburn in his work on Beal property, supra, and others are collected in the notes.

The statements upon the map circulated by the improvement ■company, and upon the signs upon the property, and which were repeated by the officers of the company to Eierman and Bischoff, were that the entire tract of land was restricted, and that all buildings erected thereon must be of brick or stone. This was a representation of an existing fact relating to the property, of the same character as a representation as to a dividing line or a boundary of land conveyed; and neither the improvement company nor the appellant can be permitted to deny the truth of those statements. The power of a court of equity to grant relief by an injunction in cases of this character is too well settled to admit of dispute; and, so far as my examination has informed me, it is within proper limits applied with general approval in the courts of this country and England. But cases of this character are analogous to actions to enforce specific performance of a contract to convey real estate. Such applications are addressed to the sound judgment and discretion of the court, and it has been the settled doctrine of courts of equity to refuse such relief when it will result in great hardship and injustice to one party, without considerable gain or utility to the other. Trustee v. Thacher, 87 N. Y. 311; Conger v. N. Y. W. S. & B. Railroad Co., 120 N. Y, 29; 30 St. Rep. 124.

In the present case the improvement company laid out into-streets and lots a tract fully one-half mile in length and a quarter of a mile in width. There are shown upon the map seven streets running north and south, and eight streets running east and west. There are about thirty-six blocks, containing in all 1,600 city lots. It was, undoubtedly, the intention of the improvement company that the whole section should be built up with briclc and ston'e dwellings. It made the representations in that regard in entire-good faith without any intention to deceive or mislead. After four years of effort, eighty-six lots had been built upon, all of. which are owned by the company except twenty-two. The ap. pellant’s lots are located on the west side of Bradford street, about. 500 feet from the north line of the tract, and about 550 feet from.! the east line thereof. The lot owned by Bischoff is on the third-street west of Bradford street, and upon a block further to the south.. In a direct line it is distant from appellant’s lot about 800 feet. The lots owned by the plaintiffs Bimson and Lane are upon the west, side of Wyona street, next west of Bradford; and those owned by the other plaintiffs are on Vermont street, one block further to the west. The question, therefore, is presented whether the court-will enforce this restriction against the improvement company, or a grantee thereof with notice, upon every lot within the tract described, or, if it will not, within what distance from the lot where-the restriction is violated will it enforce it. It is impossible, of course, to fix any arbitrary line to control this question. We are of the opinion, however, that the restraining power of the court, should not be exercised unless the property where the frame-dwelling is being erected lies in the same street or the same block with the plaintiffs’ lots, or if in another street or another block in close proximity to the plaintiffs’ property. In all the reported cases that have come under my observation the property of the respective parties has been either adjoining or in the same street. The covenant in the deeds permits the erection of two-story brick buildings for residence or business purposes, without any restriction as to price; and it is quite apparent that buildings-could be erected that would be entirely within the restriction which would be more detrimental to the surrounding property than a frame cottage. It is a matter of common observation in cities that the character of buildings in one street has very little effect upon the value of property in parallel streets. That has been so even with the elevated railroads, and those structures have caused little or no depreciation in the value of the property in the parallel streets. We are of the opinion that Bischoff’s. property and the lots upon Vermont street are to remote from the appellant’s lots to be affected by the erection thereon of a frame dwelling. The lots upon Wyona street, next west of Bradford, are owned by the plaintiffs Bimson and Lane, and they derive-their title through Eierman; and the testimony does not satisfy us that either he or either of his said grantees purchased in reli. anee upon the representation that none but brick or stone buildings should be erected within the tract owned by the improvement company. Lane was not called as a witness. Bimson did not testify that he bought in reliance upon any such representation. He testified that he had so informed Bultman, but he did not say that such was the fact. Eierman did say on his direct examination that he relied upon the statements that were made to him, but upon his cross-examination he testified as follows:

“ I didn’t take any stock in it. I didn’t care what came, as long as I was above board, and carried out my agreement.' I never thought no more of it. * * * I bought the lots very cheap; very low, indeed. In reference to this, Mr. Brommer said, ‘ We will sell you these lots very cheap, indeed, if you will put up brick buildings upon them, setting back fifteen feet from the street.’ ”

This testimony, we think, is not sufficient to create an estoppel.

We are of the opinion, therefore, that the judgment as to all the plaintiffs except Bimson and Lane should be reversed, and the complaint dismissed, without costs. As to Bimson and Lane it should be reversed, and a new. trial granted, with costs to abide the event.

CULLEN, BARTLETT, and HATCH, JJ., concur.

PRATT, J.

(dissenting),—The principle is well established that a purchaser of real estate takes subject to all equities of which he has notice. In the present case it sufficiently appears that defendant knew when he purchased that plaintiffs bought upon the faith of the restriction announced by the common grantor. The defendant states that he consulted counsel upon the matter, and was advised that, if he secured a deed which contained no restriction, he would be able to use his' land as he desired. We think he was badly advised, and that.he must abide by the case of his grantor. The plaintiffs were prior purchasers in point of time, and can enforce the restriction against subsequent purchasers with notice. It appears that plaintiffs have not paid for their lots, and the circumstances of their alleged purchase create a 'great deal of doubt whether it was more than colorable. What would probably be a good test is to inquire if their grantor could have built the house in question. If he could not, neither could his grantee with notice. In a case where the lot was so far away as that the damage to the plaintiffs was not appreciable, equity would not take cognizance of a violation of the restrictions ; but, where the fact is found that the plaintiffs will be materially damaged, equity ought to intervene and grant relief.

. Judgment afgjmed, with costs.


author: WILLIAMS, J.

text:
    John Shields, App’lt, v. John N. Robins, Resp’t.

      (Supreme Court, Appellate Division, First Department,

      Filed April 10, 1896.)

    1. Master and servant—Risk.
    Where the servant knows that there was no roof or cover to ^n elevator and continued in the defendant’s employ and uses the elevator with such knowledge, he assumes the risk incident to the use of the elevator as it is and waives the performance of the duty by the master to furnish a .covering therefor, whether or not required by the statute or inspector of buildings.
    2. Same.
    But an employe will be held to have assumed the risk incident to the use of defective appliances, where the master has failed to comply_ with provisions of the statute, in case the actual condition of the appliances is known to the employe.
    So Same.
    If the proximate cause of the accident is the manner of closing the door of the hatchway and the condition of a ladder leading thereto, and these defects are obvious and known to the servant to exist, he therefore assumes the risk thereof. So held, where one of the master’s employes who, while standing upon said ladder and endeavoring to fasten said door, slipped and thereby caused to fall from his hand a mallet which, after striking the floor, bounded into the elevator shaft and struck the plaintiff who was coming up on an uncovered elevator.
    Appeal from a judgment, entered upon the decision of the court dismissing the complaint.
    The action was brought to recover damages for personal injuries to the plaintiff, alleged to have been caused by the negligence of the defendant. The defendant occupied the building No 32 Washington street, where he carried on the business of repairing steamships. The building was six stories high, with an elevator shaft running from the bottom to the top. The elevator was an uncovered platform that went up and down on a-wire cable, and was used by the workmen in the building to carry iron bars, rods, coal, and other materials used in the business. There was a blacksmith’s shop on the upper floor, and above this floor, in the" roof of the building, there was a scuttle or hatchway, which was closed with two trapdoors, one shutting down from. above and. the other shutting up from below. The upper door was origi-; nally provided with a hook and staple to fasten it, but at the time of the accident the staple was broken, and a nail and string had been put in its place. The lower door was bung upon hingesj and was fastened up by the use of a stick resting upon the ladder running from the upper floor to the scuttle or hatchway. This ladder had board steps about four inches wide, instead of round, and at the time of the accident the steps were greasy and slip-" pery. The elevator platform was uncovered, had no grating or screen or iron above it. The accident occurred July 3, 1893. The plaintiff was going upon the elevator in the performance of his duties. At the same time, McDowell, another employe had-gone up the ladder to fasten the lower door in the scuttle or hatchway in the roof. He had with him a piece of wood and a oaken mallet, the one or the other to be used in securing the lower door. The stick generally used for the purpose was gone. McDowell pushed the door up to its place, and tried to fasten it with the piece of wood, but it did not work. He tried the mallet, and that would not do. He then held the mallet in one hand, and tried to. work the piece of wood in tight between the door and the step of the ladder, and in doing this his foot slipped on the ladder, and the mallet slipped out of his hand and fell. It struck the floor below, and .bounded into the elevator shaft, and, falling down, struck the plaintiff, who was coming up on the elevator, upon his head and shoulders, and caused the injuries for which the action was brought. McDowell was a boiler maker, arid his hands were greasy and slippery at the time of the accident. The plaintiff had been in the defendant’s employ for twenty-one years, was originally a machinist, and was made assistant superintendent in March or April, 1893. The business was moved into the Washington street building a few months before the accident. There had been a soap manufactory in the building before that. Changes were made in the building to adapt it to the uses of the business, from time to time, before the accident. Plaintiff had knowledge of these changes. He personally directed the location and setting up of the machinery. He reported to the defendant such alterations and repairs as were necessary to be made in the. building, and they were generally made under plaintiff’s direction. As to the elevator, boards were put around the hatches on each floor, and coverings, like trapdoors; new pulleys were put in the elevator, and a new wire cable for it to run on ; also a new carriage and car. Plaintiff, had charge of these changes and repairs. He also directed repairs in the floors of the building, and suggested any other alterations or repairs that he thought ought to be made.
    On the trial the plaintiff read in evidence a deposition made by defendant, wherein defendant testified that the inspector of buildings called upon him, after he went into the Washington street building, and, among other things, directed him to put a covering or roof over the elevator; but he did not comply with this direction until after the accident. The plaintiff alleged in his complaint that his injuries were caused solely by the negligence of the defendant, and by the improper and defective construction of the hatchway in the roof of the building; and plaintiff’s counsel, iri his brief, claims the real cause of the accident was the defective construction of the hatchway or scuttle in the roof and the defectictive condition of the ladder leading to it.
    Everett P. Wheeler, for'app’lt; Alden S. Crane, for resp’t.
   WILLIAMS, J.

The complaint hardly alleges as ground of negligence the failure of defendant to comply with any statutory duty imposed upon him to provide a roof or cover for the elevator as directed by the inspector of buildings. But, even if the pleading was sufficient to enable him to litigate that question, still the evidence, taken altogether was insufficient to support a recovery upon such a theory. The plaintiff knew there was no such roof or cover to the elevator, and continuing in defendant’s employ, and using the elevator with such knowledge, he assumed the risks incident to the use of the elevator as it was, and waived the performance of the duty by the defendant to furnish such appliance, whether required by the statute or inspector of buildings or not. Freeman v. Mill Co., 70 Hun, 531; 53 St. Rep. 786; affirmed, without opinion, 142 N. Y. 639; Knisley v. Pratt, 75 Hun, 323; 58 St. Rep. 213; reversed, 148 N. Y. 372. These cases effectually dispose of several decisions of general terms in the state to the effect that an employe could not be held to have assumed the risks incident to the use of defective appliances, where the employer had failed to comply with provisions of the statute, but where the actual condition of the appliances was known to the employe. See, also, Marsh v. Chickering, 101 N. Y. 396. There could, therefore, be no recovery here for the negligence of the defendant in failing to put the roof or cover over the elevator. This defect was obvious, and was well known to the plaintiff, and he voluntarily assumed the risks incident to the use of the elevator without this appliance.

The only question remaining is whether, under the evidence, the jury could properly have found negligence on the part of the defendant which caused the accident with reference’ to the construction or condition of the lower door of the hathway or scuttle in the roof, and the ladder leading to it from the upper floor. The only defects that could be complained of were in the manner ■of fastening the doors, and greasy and slippery condition of the ladder. It is doubtful if these defects could be said to have been the proximate cause of the accident. The defendant suggested that the proximate cause of the accident was the carelessness and negligence of McDowell, the co-employe of the plaintiff, and therefore no recovery could be had. We think this is hardly an answer to the plaintiff’s theory of negligence. Even if it was found that McDowell was negligent, still the question would remain whether the accident would have occurred but for the negligence of the defendant himself, as to the construction and condition of the door and ladder. If it would not, then the defendant would be liable, notwithstanding the negligence of McDowell» may also have contributed to the accident. This question would, have been one of fact for the jury. The appliance for fastening the door, and greasy and slippery condition of the-ladder, might well have been found by the jury to be defective and dangerous, and, if the accident had resulted directly from such defective condition, they might' have been found to have been 'the proximate cause of the accident. It is said the direct result of these defects was the dropping by McDowell of the oaken mallet. The mallet dropped upon the floor below, and, bounding, happened to go down the elevator shaft. If it had bounded in any other direction, or the trapdoor in the upper floor in the elevator: shaft had been closed, or there had been a cover or roof over the. elevator, no injury would have resulted to the plaintiff. It is doubtful, under these circumstances, if it could properly be saidj ■that these defects were so directly connected with, the accident that they were the proximate cause, thereof. It seems to us, however, ■that it must be said these defects were obvious, and were known to the plaintiff to exist, and that, under the rule hereinbefore referred to, he must, be held to have assumed the risks incident to the use of the door and ladder as they were. They were open to ■observation; and the position of the plaintiff, his employment, and the duties performed by him after the occupation of the building, were such as would, fully apprise him of the condition of the door • and ladder as they actually existed. We are of the opinion, therefore, upon the whole case that the complaint was properly dismissed by the trial court, and that the judgment should be affirmed, with costs. '•

All concur.


author: O’BRIEN, J.

text:
    People ex rel. Oscar, Thorn, Resp’t, v. Jeremiah Pangburn, Jr., App’lt.

      (Supreme Court, Appellate Division, First Department,

      Filed April 10, 1896.)

    1. Corporations—Directors—Elec iton.
    Where, in. an election of officers of a corporation, printed ballots had been prepared containing the names of such candidates as had been theretofore placed in nomination, among whom was a candidate for secretary, and another candidate was nominated for the same position, and his name was directed to be written on all the ballots in a space left for that purpose, and in casting the ballots the greater number of those voting erased one of the two names, but two ballots were cast containing both names, with neither erased, and, discarding such ballots, neither nominee had enough to elect, the written name cannot, in such case, be considered as controlling the one printed in indicating the choice of the voter, and the two ballots were properly rejected and a new vote ordered.
    '3. Same.
    Where the voter can only designate his choice by striking out a name, the mere writing^ of a name upon the ballot underneath the printed name for some office will raise no presumption that the person writing it intended to vote for the one whose name appears thereon in writing, as against the person whose name is printed.
    Proceedings in the nature of quo warranto on the relation of -Oscar Thorn against Jeremiah Pangburn, Jr., to determine the right to the office of secretary of the Retail Coal Exchange of the •city of New York, a domestic corporation. There was a judgment of ouster against the defendant, and he appeals.
    The Retail Coal Exchange of this city is a corporation duly organized under the laws of the state of New York, having, among •other officers, a seoretary, who, according to the by-laws, is to be -elected annually at the first meeting in December of each year, which election is to be by ballot. , On December 7, 1894, at a meeting of this corporation, nominations for officers for the year 1895 were made, at which Jeremiah Pangburn, Jr., -was nominated for secretary. The annual meeting was held December 21, 1894. The secretary brought to this meeting the printed list of •nominees, whereon, for secretary, appeared the defendant’s name, •and following that name was a blank space of about half an inch. The chairman called for additional nominations for secretary, and the relator was then also nominated. The printed slips were distributed among the members, and the presiding officer announced the additional nominations made at this meeting, and directed “thatz the members would please write those in; that is, proceed incomplete the ballot. * * * After which a recess was declared for the preparation of ballots.” Under the by-laws, “ a majority vote of t]pe members present and voting shall be necessary to elect,, and the mode of taking a vote or ballot on any question shall be-in such manner as the meeting shall decide.” After the recess,, ballots were cast, and the count showed that, of "the 42 ballots, cast, 21 had the,printed name J. Pangburn, Jr., and the name Oscar Thorn in writing underneath it, with a line drawn through the name J. Pangburn, Jr.; 7 had the name J. Pangburn, Jr., in print, and the name Oscar Thorn in writing underneath it, with a, line drawn through the name Oscar Thorn; 12 had the name J. Pangburn, Jr., in print, only; and 2 had the name J. Pangburn., Jr., in print, and the name Oscar Thorn in writing underneath it,, with neither name crossed off, so that these two ballots, read:
    “For Secretary,
    ■ “ J. Pangburn, Jr. [in print],
    “ Oscar Thorn [in writing].”
    The inspectors of election decided that these two ballots were-defective, and the president of the exchange declared that there had been no election for secretary, and ordered another vote to be taken, which was immediately done, and showed 19 for Mr. Thorn, and 24 for Mr. Pangburn, whereupon Mr. Pangburn was declared duly elected and installed into office. The action was tried by the court without a jury, and the decision rendered was to the effect that the tellers erred in declaring the said two ballots defective; and from the judgment entered upon that decision,^this appeal i& taken.
    Louis Wertheimer, for app’It; Robert A. B. Dayton, for resp’L.
   O’BRIEN, J.

It is not disputed but that, if these two ballots were defective, the ruling of the chairman that there had been no-election for secretary was right, because, in that event, neither of the candidates had received a majority vote of the members present and voting, as required by the by-laws. The crucial question,, therefore, is, were these ballots defective ?

The respondent contends that they were not, and in support of such contention cites the case of People v. Saxton, 22 N. Y. 310, which was followed in People v. Love, 63 Barb. 535. In the Saxton Case, there were three candidates for the office of county clerk, who were to be voted for- upon separate printed ballots-Upon the printed ballots containing the names of the other candidates the name of Saxton appeared in writing. It was therein held, in regard to the intention of the voter, as to whether such a ballot should be counted in favor of the written or the printed name, that “ writing a name upon a ballot in connection with the title of an office is such a designation of the name for that office as to satisfy the statute, although he omits to strike out a name printed, upon it in connection with the same office. The writing is to prevail as the highest evidence of his intention.” This is but another application of the well-settled rule that, where there is any repugnancy between the written and printed portions of an instrument, the written portion is to prevail over that which is printed. And where, as in that case, upon a ballot which contained the name of another candidate, a person wrote the name of the candidate Sax-ton, erasing the printed name, there was no difficulty in getting at what was the intention of the voter.

That case, however, is clearly distinguishable from the one at bar. Here the nominations first made were all printed, and other nominations were permissible upon the day of the election ; and,, the relator having been presented’for the office of secretary, the direction of the president was that his name should then be written on the ballot which contained the printed names of all the other candidates; and, with a view of having all the ballots SO' arranged before they were cast for any candidate, a recess was ordered, and a direction by the chairman made as to the manner of making up the ballot. It is true that some of the members neglected to complete the ballots by writing in the name of Thorn" but the effect of this upon the validity of such ballots, when cast,, . we are not called upon to determine. The by-laws provide that the “ mode of taking a vote or ballot on any question shall be in such rnannef as the meeting shall decide.” And the acquiescence, of members in the direction of the president as to the manner in which the ballots were to be prepared before proceeding to an election must be regarded, in the absence of any other action by the meeting, as controlling. Be that as it may, however, the great majority of those present and voting proceeded to comply with the directions of the president by placing, in writing, under the printed name of the defendant, the name of the relator; and when the ballots were thus all prepared, as is shown by the result, many who desired to vote for Pangburn emsed the name of Thorn written upon the ballot, and many who desired to vote for Thorn erased the printed name of Pangburn. On the two ballots in question both names appear, without either being erased; and, as there was no means of determining for whom these were intended, we think the inspectors of election were right in holding that they were defective, and should not be counted.

The distinction between the Saxton Case and this is clear. In the former, the writing of the name raised the presumption that it was the voter’s intention to vote for the man whose name he wrote upon the ballot, and it was the only means by which he could indicate such choice, while here the voter was directed to write the name of Thorn on the printed ballot before he could make his choice. In the Saxton Case "the voter designated his choice by writing a name, while in this case he could only designate his choice by striking out a name. Under such circumstances, therefore, the mere writing of a name upon the ballot underneath the printed name for the same office could raise no presumption thafÜ the person writing it intended to vote for the one whose name appeared thereon in writing, as against the person whose name was printed. After both names were on the ballot, the choice of the voter was to be indicated by crossing out the one for whom he did not intend to vote. Unless this were done, there was nothing to indicate the voter’s choice. It was .error, therefore, to hold, upon the facts here appearing, that the written name took any precedence over the printed one. We think the inspectors were right in holding that the persons casting the disputed ballots had, under the mode prescribed, failed to indicate their choice.

The judgment appealed from should be reversed, and there .should be judgment in favor of the defendant, dismissing the complaint, with costs.

All concur.


author: VAN BRUNT, P. J.

text:
    Abby S. Martin, Resp’t, v. The Second Avenue Railroad Company, App’lt.

      (Supreme Court, Appellate Division, First Department,

      Filed April 10, 1896.)

    1. Appeal—Evidence.
    A judgment on a verdict will not be interfered with where there is any evidence to sustain it.
    2. Negligence—Burden op proop.
    Where a car has stopped and the passengers are called upon to alight, if, while in the act of alighting, a passenger is thrown from the car by a jerk of the car, it is necessary for the company to prove that it was not responsible for the happening of that movement, in order to absolve itself from liability.
    8. Same.
    It is negligence upon the part of the company to allow the car to move while the passengers are in the act of alighting.
    4. Same—Contributory.
    It is not negligence as a matter of law, for a passenger to get off a car. which is perfectly still, and which is stopped for the purpose of permitting the passengers to alight, without holding fast to supports.
    Appeal from a judgment in favor of plaintiff, and from an -order denying a motion for a new trial.
    P. Merrill, for app’lt; I. D. Warren, for resp’t.
   VAN BRUNT, P. J.

This action was brought to recover for personal injuries sustained by the plaintiff, who claims to have fallen while alighting from one of the defendant’s cars on the 8th day of August, 1893. The plaintiff and her daughter took one of the defendant’s cars at Eighty-Second street and Second avenue, to go to the ferry at Ninety-Ninth street. It was an open summer oar, with seats running across it, and with a board or step extending the entire length of the car. When the car arrived at Ninety-Sixth street, at which the depot of the defendant is situated, the ■conductor announced that passengers going to Harlem should take the forward car, as the car upon which the plaintiff was did not go any further. The plaintiff testified:

“As I was not going to Harlem, I did not make any special haste, but got up, and, after most of the passenger had stepped off the car, my little daughter stepped off, and I followed her. I stepped down onto the platform which ran along the -side of the car, and a sudden jerk, I should call it, — I don’t know what other word would express it,—I felt as if I -were pushed, and I was thrown that way to the right, going down upon the botton of my hand. * * * When the car gave that start I was on the platform, * * * just about to step down onto the ground. * * *■ I think it was the horses that started the car. I did not see what started the car. * * * Just previous to the time when I fell, the car was jerked, and pitched me off.” She could not tell who far the car had been moved, — whether it was three inches, or more, or less.

Upon the part of the defendant the conductor of the car in question testified that, after the car stopped, it did not move until after the plaintiff fell; that he had just stepped from the rear plat-dorm, and was going along the easterly side of the car when the plaintiff fell over towards him ; that he could not see what made Tier fall,—did not see her stumble or do anything; that as soon as she alighted she fell over on her right side. The driver of the car says that, from the time when he stopped to discharge his passengers until his car was taken into the car house to be housed for the night, the car did not move, and that he did not start to go into the car house until after the accident. The transfer clerk, who was standing beside the car giving transfer tickets to passengers, says' that he saw the plaintiff fall when she was about five ieet away from him, and that she fell as she stepped upon the ground, and that there was no movement of the car at the time. The conductor of the car following stated that his car came up behind the car upon which the plaintiff was, while the passengers were getting off; that he went up from his car to see whether the , switch "was right, and had got abreast of the car in question when the plaintiff fell, and that there was no jerk or other movement of the car. The driver of the following car witnessed the accident from the front platform of his own car, and he testifies that the car did not move at or about the time of the accident. A patrolman for the Commercial Cable Company, who was looking after the conduit of the cable company in the street, says that he saw the car come up and stop, and the plaintiff fall; and he swears, also, that the car was standing still, and that there was no jerk.

Upon this state of the evidence the jury found a verdict in favor of the plaintiff. We do not see that such conclusion can be interfered with. It is urged upon the part of the appellant that the only person who testified that the car moved or jerked says that she d-id not see what started it. The car having stopped, .and the passengers being called upon to alight, if, in the act of' alighting, the plaintiff was thrown from the car by a jerk of the _ car, it was necessary for the appellant to prove that it was not responsible for the happening of that movement in order to absolve itself from liability. It was not incumbent upon the plaintiff to say what caused the jerk. It was negligence upon the part of the appellant to allow the car to move while the passengers were in the act of alighting.

There was some evidence given that there were handles which people could take hold of in getting down from the car, and some claim appears to have been made that it was negligence on tha part of the plaintiff to let go of the handle in getting down. But the evidence seems to be that a party alighting could not hold this railing without turning entirely round, and getting off backwards. It is not negligence, as matter of law, for a person to get off a car which is perfectly still, and which has stopped for the purpose of permitting its passengers to alight, without holding fast to handle.

There do not seem to be any exceptions in the case which need, especial mention. The objection raised in respect to the question-as to whether the plaintiff’s injuries would be lasting or not-, was not sufficiently specific to call the attention of the trial court to the particular infirmity which is now complained of.

We think the judgment should be affirmed, with costs.

All concur.


author: BROWN, P. J.

text:
    Dyker Meadow Land and Improvement Company, Plff, v. George H. Cook, Def't.

      (Supreme Court, Appellate Division, Second Department,

      Filed April 7, 1896.)

    1. Constitutional law—Title.
    An act, which purports to amend an existing local law, expresses its subjects sufficiently in its title, if it refers to the law which is amended.
    2. Same.
    Chapter 622 of 1886, entitled “an act to amend the title of and to amend an act entitled ‘an act,’etc., passed May 24, 1878,” sufficiently expresses the subject of the act within § 16, article 3 of the state Constitution.
    3. Taxation—Special assessments.
    Special assessments for local improvements are laid in the exercise of the taxing power, and the legislature has power to exempt property from their operation.
    4. Municipal corporations—Streets—Notice.
    The length of notice to be given of the presentation of the commissioner’s report to the court for confirmation, and the manner of publication of such notice, are matters resting in the discretion of the board of. supervisors.
    Action by the Dyker Meadow Land & Improvement Company against George H. Cook, on a contract for the conveyance of land, submitted on agreement of parties.
    George W. Wingate, for pl’ff; John L. Devenny, for def’tj Joseph A. Burr, for city of Brooklyn.
   BROWN, P. J.

This case has been agreed upon by the parties, and is submitted to the court pursuant to section 1279 of the Code of Civil Procedure. The plaintiff is the owner of land on the west side of Seventh avenue in that part of the city of Brooklyn, which formerly constituted the town of New Utrecht. It has entered into a contract with the defendant to convey to it a portion of said land, and the controversy between the parties relates to the validity of an assessment imposed upon said land for the grading of said avenue. It is the defendant’s contention that said assessment is a lien upon the land, while the plaintiff contends that it is void, and that its invalidity appears upon the face of the assessment proceedings, and that for that reason it does not constitute a lien upon the property,, The resolution of the board of supervisors for the opening and grading of the street provided that the assessment district should extend to the distance of 350 feet on each side of the street for the whole length thereof. Upon the assessment map the Sisters of Mercy, a charitable corporation, appears to be the owner in fee of lots numbered thereon as 487 and 488. Upon neither of these lots was any assessment imposed by the grading commissioners, but the case states that the commissioners, in omitting to impose any assessment thereon acted pursuant to the provisions of' chaper 622, Laws 1886, which declared that real property situate in the county of Kings, then or thereafter owned by any hospital, orphan asylum, house of industry, or other charitable corporation, society or institution, having for its object the reformation of offenders, the care, support, or education of the sick, the infirm, the destitute, the deaf, the dumb, or the blind, should be exempt from all assessments for local improvements: It is conceded that the Sisters of Charity fall within the class of corporations designated in this act.

The plaintiff’s first proposition is that the act referred to is unconstitutional, in that it is a local act, the subject of which is not expressed in the title. Const, art. 3, § 16. It appears that in 1878 the legislature enacted a law (chapter 364) entitled “An act relating to the assessment of real property in the city of Brooklyn, county of Kings, owned and occupied by charitable corporations, societies, or institutions,” which exempted from local assessments the real property in the city of Brooklyn owned and, occupied by charitable corporations and societies therein named. And the object of the act of 1886 was to extend such exemption to the real property owned by the same class of charitable corporations and societies within the county of Kings. If this had been done by an entirely new act, no one would have claimed that such act embraced more than one subject. To extend the exemption to all property owned by charitable corporations and societies in the county of Kings by an amendment to the law of 1878, it was necessary to amend the title of that act; otherwise the subject would not have been expressed in the title. I do not think that in doing only that which was necessary to legally accomplish this purpose it can be said that the act embraced two subjects. The exemption of the real estate from assessments was the purpose of the legislature, and- the sole object of the law. The amendment of the title of the act was not a separate subject, but a thing necessary to carry out that purpose, and effect the one subject, to wit, the exemption of the land. All that the act contains is the necessary change in the title and body of the law, and its provisions relate to the details of one general subject. It was not essential that the amendment should appear in the title. An expression of the general subject is sufficient. People v. Lawrence, 41 N.Y. 137; Neuendorff v. Duryea, 69 id. 557. An act which purports-to amend an existing local law expresses its subject sufficiently in its title if it refers to the law which is amended. People v. Briggs, 50 N. Y. 553. In that case it was said:

“It is not requisite that the most expressive title should be adopted, nor should courts criticise too rigidly the details of a bill to find extraneous matter. Every presumption is in favor of the-validity of legislative acts, and they are to be upheld, unless there is a substantial departure from the organic law.”

The act there under consideration was entitled “An act to amend the several acts in relation to the city of Rochester,” and it was held that “such a title expresases a subject comprehensive-enough to embrace all the details of a city charter.” The purpose of the provision of the constitution referred to has been frequently stated. In People v. Briggs, supra, it was said that its object was twofold:

“First.. To prevent a combination of measures in local bills, and secure their passage by a union of interests commonly known as ‘log-rolling.’ Second. To require an announcement of the subject, of every such bill, to prevent the fraudulent insertion of provisions upon subjects foreign to that indicated in the title. It was-intended that every local subject should stand upon its own merits, and that the title of each bill should indicate the subject of its-provisions, so that neither legislatures nor the public would be misled or deceived.”

In Astor v. Arcade Railway Co., 113 N. Y. 93; 22 St. Rep. 1, it was said:

“Its purpose is to prevent fraud and deception by concealment,, in the body of acts, of subjects not by their titles disclosed to the-general public and legislatures who may rely upon them for information as to pending legislation. When the subject is expressed, all matters fairly and reasonably connected with it, and all measures which will or may facilitate its accomplishment, are-proper to be incorporated in the act, and are germane to the title. The title must be such, at least, as fairly to suggest or give a clue-to the subject dealt within the act; and unless it comes up to this-standard it falls below the constitutional requirement.”

In Re Mayor, etc., of New York, 99 N. Y. 570, it was said the-most valuable test of such a title, and the one usually employed, is to inquire whether the title was so framed as to be deceptive or misleading. To the same effect is In re Prospect Park & C. I. R. Co., 67 N. Y. 371. There is nothing misleading or deceptive-in the title of the act under consideration. To any one reading it,, it appears that it amends the earlier law and the title to that law ; and we are of the opinion that this was a sufficient expression of.. the subject of the act. It follows that it does not violate the constitutional provision referred to.

The plaintiff’s second proposition is that the act violates the constitutional provision that no person shall be deprived of life, liberty or property without due process of law. This proposition rests upon the assumption that special assessments are laid in the exercise of the power of eminent domain. That they are laid in the exercise of the taxing power has been over and over again decided. People v. Mayor, etc., of Brooklyn, 4 N. Y. 419; Public School v. Davis, 31 id. 574; Howell v. City of Buffalo, 37 id. 267; Litchfield v. Vernon, 41 id. 124; People v. Lawrence, 41 id. 137; In re Van Antwerp, 56 id. 261; Cooley, Tax’n, p. 424-430, and cases cited in notes. . Where no rule for exemptions is provided in the constitution, the power to make them is unquestioned. Such power is not limited to exemption from general taxation, but the legislature'may exempt property from the operation of ‘any form of the-taxing power. Cooley Tax’n, p. 145. The question as to the extent this power shall be exercised is one of state policy, of which the legislature is the sole judge. The plaintiff has cited no authorities to the contrary. The cases referred to in the brief presented questions of statutory construction, and are in accordance-with the current of authority, which holds that a general exception of property from taxation will not exempt it from special assessments for local improvements. Stuart v. Palmer, 74 N. Y. 189, decided nothing applicable to the question here presented. The jurisdiction of the board of supervisors to direct the opening of the avenue is not assailed; and it is conceded by the learned counsel for the plaintiff that the commissioners who made the assessment were legally appointed, and the assessment is not claimed to be void upon any other ground than that discussed. The length of notice to be given of the presentation of the commissioners’ report to the court for confirmation, and the manner of publication of such notice, were matters resting in the discretion of the board of supervisors. All the law required was that the parties interested should, by the resolution of the board,, be afforded an opportunity to be heard. Stuart v. Palmer, supra. As that was given, the resolution was valid, and upon thé completion of the commissioners’ report the assessment became a lien, upon the. property, and the defendant, therefore, cannot be compelled, under his contract to accept it

Judgment must therefore be rendered for the defendant on the-submitted case, with costs.

All concur.


text:
    Charles Krone, Resp’t, v. Frederick E. Klotz, Def’t.

      (Supreme Court, Appellate Division, First Department,

      Filed April 10, 1896.)

    1. Supplementary proceedings—Dispute.
    In supplementary proceedings under section 2447 of the Code, the court has no power to determine the question of ownership ; and, wherever a> dispute exists in good faith, the parties should he left to their action.

      2. Attorney and client—Lien.
    An attorney, who has in his possession money belonging to a client, has a lien thereon for services rendered in proceedings other than the suit in which the money was recovered.
    Supplemental proceedings in an action by Charles Krone against Frederick E. Klotz to require a thirty party, Frederick Beltz, to pay over to the sheriff, to be applied on a judgment in favor of plaintiff, a sum of money alleged to belong to defendant Klotz. From an order as prayed, defendant Beltz appeals.
    The appellant, the third person, had acted as attorney for the judgment debtor in an action against" the, Germania Publishing Company, and had received in that action, for his client, $350, about January 1, 1895. The appellant was paid for his services in the action $150, and the balance, $-200, he held for his client, the judgment debtor. His client had another claim against the Germania Publishing Company, growing out of the alleged fraudulent issue to him of stock in the company, and a suit was in contemplation. Appellant also rendered services for the judgment debtor and others in the organization of a corporation in the state of New Jersey, for which he was to be paid $150, but had been paid' nothing, and his client had acknowledged this claim. April 13,1895, the appellant wrote his client, saying, among other things, that his client’s draft upon him for any amount not exceeding the $200 in his hands belonging to his client would be honored. April 16, 1895, the sheriff, having an attachment in this action against the property of the judgment debtor, served a notice thereof upon the appellant; and, pursuant thereto, the appellant gave the sheriff a certificate to the effect that he held $200 of his client’s money in his hands, subject to the appellant’s lien for fees. August 26", 1895, and -again October 16 and 18, 1895, the appellant was called and examined in these supplemental proceedings, and the foregoing facts appeared. The appellant then claimed that he was entitled to retain the $200 for his services in the suit which was in contemplation, but was never com-" menced, and for his services in organizing the New Jersey corporation, all of which services were worth fully $200. Upon this condition of things appearing, the court made the order appealed from.
    Fulton McMahon, for app’lt; Julius J. Frank, for resp’t
   WILLIAMS, J.

It seems to be conceded by counsel for respondent that, if there was a substantial dispute as to the ownership of the $200, the order appealed from was improperly granted' under section 2447, Oode Civil Proc., and this is true. Wherever such dispute exists in good faith the court cannot settle such dispute in supplemental proceédings, but should leave the parties to their action. Rodman v. Henry, 17 N. Y. 482; Banks v. Pugsley, 47 id. 368; Barnard v. Kobbe, 54 id. 516; Waldron v. Walker, 43 St. Rep. 605. The fact of ownership should be -clearly and conclusively established, in order to warrant the making of the order to pay over the money, under this section of the Code. The appellant claimed a right to retain these moneys for services by him for the judgment debtor in proceedings other than the suit in which the money was recovered. The rendering of such other services and the value thereof was proven, and apparently were uncontradicted. But, if there was any conflict of evidence in reference thereto, the judge had no power to determine the question of fact in these proceedings. The appellant claimed that he had a general lien upon the money for these services. That such lien exists, and enables the attorney to hold the money ■as against the judgment debtor himself, seems to have been frequently held in this state. In re Attorney, 87 N. Y. 521; Ward v. Craig, id. 550; In re Knapp, 85 id. 284; Bank v. Todd, 52 id. 489.

Our attention is called to the case of Williams v. Ingersoll, 89 N. Y. 508 which, it is claimed, held that such lien was confined to the judgment in the same action in which the services were rendered for which the lien was claimed. Let us see what these various cases do really decide. In Bank v. Todd, supra, the action was to foreclose a mortgage. After the decree in foreclosure was made, a receiver of the plaintiff was appointed. He continued the same attorneys, who caused the mortgaged property to be sold, and received the proceeds of such sale. Besides their costs and fees in that action, the attorneys retained a-sum from such proceeds to apply upon the indebtedness of their ■client to them for other professional services. The court held that the attorneys had a lien upon the papers in the foreclosure suit, not only for costs and charges of that suit, but for any general balance due them for any other professional service, that this rule is not peculiar to attorneys, but applied to an ordinary factor who had a lien upon goods consigned to and received by him for unpaid balances theretofore accrued. In re Knapp, supra, the petitioner applied to the court to compel her attorney to pay over to her $4,411.50, alleged to have been unlawfully retained by him out of moneys collected for her. The deceased, in his lifetime, instituted proceedings to recover moneys due him from the city of Hew York for the erection of an armory, and employed the attorney in such proceedings. At his death the proceedings were pending, and thereafter the petitioner was appointed as executrix, and continued the same attorney in the proceedings. Under a power from her, the attorney received from the city in the proceedings $6,781.85. The estate was insolvent. The attorney claimed his right to retain from the moneys so received by him $4,411.50, not alone for his services in the particular proceedings in which the money was recovered, but in part of his services in other matters in which he bad been retained by the deceased and the executrix. All of such services were rendered in the general effort to enforce the same claim. It was held that the attorney had a lien on the moneys received for all his services rendered in connection with the claim sought to be recovered, which lien was not confined to his services in the particular proceedings in which the money was recovered. In re Attorney,, supra, the proceeding was instituted to compel the attorney to surrender up to his client a policy of insurance delivered to tho attorney for the purpose of enabling him to perfect or confirm the* rights of his client therein. His client was indebted to him for other professional services, and the courts held that the attorney’s-lien extended to a general balance of account for professional services, and was not confined to such services as were rendered in. the litigation which terminated in the particular judgment; citing Ward v. Craig, and In re Knapp, supra. In Ward v. Craig, supra, attorneys were employed to obtain a remission of a forfeiture of certain property by the United States government. Their client made an assignment for the benefit of creditors, and the assignee retained the attorneys in the same proceeding, which was-continued in the name of the assignor, and resulted successfully. The action was brought by the assignee to recover from the attorneys the money received by them from the United States government. It appeared that while this proceeding was pending, and-, before the assignment was made, there was a criminal action. ■against the assignor, at the suit of the United States government,, and a civil action for customs due; and, after the assignment, there-were two other actions against him bn warehouse bonds; and in-these actions these same attorneys were employed. There were-also three other civil suits for custom duties, which were included in the remission proceedings, and the attorneys’ services in all these cases and proceedings were worth the amount the attorneys-had received in the remission proceedings. It was held that the-attorneys had a lien upon the money so received for their services-in all these matters. The attorneys did not set up a technical counterclaim, but they alleged the performance of the services,, their value, and the right of the attorneys to retain therefor the-moneys received from the government,, and this was held sufficient. The cases of Bank v. Todd, and In re Knapp, supra, were cited in-that case. In Williams v. Ingersoll, supra, the plaintiffs were employed as attorneys and counsel in various suits and legal proceedings. One case was for malicious prosecution brought by their client. There was an oral agreement between them and their • client that they were to be paid for their servicés out of any moneys their clients might obtain or become entitled to from any of the suits or proceedings, and that they should have a lien for all such services upon such moneys, which should be superior to-any right their client might have. All these actions were finally, by agreement, submitted to an arbitrator, who awarded to their-client $10,000 for malicious prosecution. The services of the attorneys in all these matters were worth $10,000. It was held that the agreement operated as an equitable assignment, which attached to the award as soon as made, and was good against the client and any attaching creditor. It was said in the opinion that the attorneys could claim no general lien upon the award as attorneys, and could not base their claim to an equitable lien upon mere promise--of their client that they should be paid out of any moneys recovered; and that an agreement, oral or in writing, to pay a debt out of the designated fund, did not give an equitable lien upon the fund, or operate as an equitable assignment thereof. These statements, however, were with reference, to an abstract question, which was not necessarily involved in the decision of the case. The attorneys were permitted to hold the award upon the theory of an equitable lien, as above stated, and all that was said thereafter by the court was clearly obiter, and no reference was made to the cases above analyzed, nor were any of them considered or criticised.

The theory of the order made in this case was that the judgment debtor himself would have been entitled to recover the $200 from his attorney, the appellant, if the order had not been made. Suppose that he had sued the attorney for the money, and the attorney had counterclaimed the indebtedness for his services; would he not thereby have defeated the client’s right to recover ? In this condition of authorities, and in view of the suggestions we have made, it cannot be said that the claim made by the appellant to the $200 was not made in good faith, or that there was no substantial dispute as to the debtor’s ownership of the money at the time the order was made, or that the fact of the debtor’s ownership was clearly and conclusively established. We are not called upon to determine whether, in an action between the parties, the appellant or the judgment debtor would be found to be such owner. The fact of such ownership of the debtor was in doubt, and could not therefore be determined in these supplemental proceedings.

It seems to us that the conrt had no power to make the order appealed from, and that such order should be reversed, with costs of the appeal, and the motion should be denied, with $10 costs.

All concur.


author: PER CURIAM.

text:
    Ida F. Crampton et al., Resp’ts, v. Brooklyn Elevated Railroad Company et al., App'lts.

      (Supreme Court, Appellate Division, Second Department,

      Filed April 7, 1896.)

    1. Damages —Elevated railway.
    Where, in an action against an elevated railway company for injury to the fee value of abutting property, it appears that the rental value had declined only $60 per year, and the recognized ratio between rental and fee values is about ten per cent., such decline should be taken as a basis for establishing the damages to the fee value.

      2. Same—Expert evidence.
    The court ought to reject the statements of an expert on value when his testimony is at variance with any substantial basis and can only be supported by the adoption of his arbitrary standard.
    3. Same.
    The fee damage is most satisfactorily established by ascertaining how the rental values have been affected by the act which interferes with the property.
    4. Same.
    The inquiry is limited alone to this, and the whole subject is to he considered as though the property was sought to be condemned by right of eminent domain.

      Appeal from a judgment in favor of plaintiffs.
    E. Percy Chittenden, for app’lts; Francis E. Whitney, for resp’ts.
   PER CURIAM.

This is the usual action for the recovery of past damages, and to restrain the operation and maintenance by defendants of its elevated railroad in the street upon which plaintiff is an abutting property owner. The court found that the damage to the rental value and occupancy of the premises since the construction of the road was the sum of $300, for which sum it ordered judgment. The court also found that the permanent maintenance of the railroad depreciates the fee value of the premises in the sum of $1,700, which sum it adjudged that defendants pay within thirty days, or to be enjoined and restrained from continuing its railroad. It is claimed that the amount awarded as fee damage is excessive, and is not based upon any fair construction of the proof. This contention presents the only substantial question raised by this appeal.

The property affect is now used, and always has been, as a dwelling house. The lot is 20 feet front by 100 feet in depth, and the building a three-story brick, with a basement. The owners do not occupy the property, but rent the same, and the present lessee uses the house by leasing furnished rooms. Prior to the construction and operation of the railroad, the premises rented for fifty dollars per month. They have rented for forty-five dollars since. The decline is therefore sixty dollars a year. There was evidence tending to show that such depreciation was due in part to other causes than the condition produced by the railroad, and this view seems to have been adopted by the court, as the award for rental damage is at the rate of fifty dollars a year. This being accepted as the basis for past damage, it is at once seen that there is a large and marked disparity between it and the sum awarded as fee damage. The record does not disclose any proof of actual sales or transactions with this property, and no satisfactory knowledge, on the part of the witnesses, of actual transactions with any property in that vicinity appears. The case therefore rested, respecting values, mainly upon its rental value, which was satisfactory established, and upon the opinions of witnesses acquainted with the property and values generally. Two expert witnesses, Thorne and Cook, called by plaintiff, fixed the depreciation in fee value since the construction and operation of the road at from $3,500 to $4,000. Two experts, Eustin and Grace, were called by defendant. The former made the depreciation from $500 to $1,000, and the latter increased its value by $2,000 to $2,500. It is quite apparent, therefore, that the expert testimony furnished very little aid in determining fee damage.

As to Thorne, after he had been examined quite fully, sufficient to exhaust his information, the court felt constrained to say that “he don’t know anything of values in this vicinity.” He was subsequently recalled, and gave some further testimony, and was then permitted to answer respecting fee values. It does not seem to us that his subsequent testimony changed in any essential re" spect his competency to speak upon the subject. But it was not improper to receive his testimony, as- he evidently had some knowledge upon the subject. He stated that there was a recognized ratio between fee and rental values of this kind of property; that in 1885 the rental value was about ten per cent, of the fee value. Cook states that in 1886, two years before the road was constructed, the fair ratio for rental returns would be about twelve years’ purchase,—about eight per cent.,—and the fair ratio at the present time would be ten per cent, gross. Based upon the established rental value and the depreciation therefrom, his testimony shows that the fee damage did not exceed $400 to $500. Taking the whole testimony, it seems clear that the sum fixed as fee damage by these witnesses is quite arbitrary in its character. And the same may be said of the witness Grace, who represented the other extreme. The testimony of Rustin, who places the fee damage at from $500 to $1,000, seems to come much nearer what the actual fact is. His testimony is in substantial harmony with what the rental values establish, and the rental value is the only substantial basis upon which the testimony of the other experts can stand. The court ought to reject the statements of an expert on value when his testimony is at variance with any substantial basis, and can only be supported by the adoption of his arbitrary standard.

We agree with the learned counsel for the respondent that fee damage is most satisfactorily established by ascertaining how the rental values have been effected by the act which interferes with the property. It is only where exceptional circumstances exist that this rule is the subject of exception. Sutro v. Met. E. Railway Co., 137 N. Y. 592; 50 St. Rep. 701; Jamieson v. Kings Co. E. Railroad Co., 147 N. Y. 322; 69 St. Rep. 688. Of course, the inquiry is not limited alone to this, and the whole subject is to be considered as though the property were sought to be condemned by right of eminent domain. But only such damages 93 could . be awarded therein can be considered on this branch of the case, and the subject is not left open to abitrary discretion, but must rest on proof. American Bank-Note Co. v. New York El. R. Co., 129 N. Y. 252-270; 41 St. Rep. 531.

Taking the most favorable view of this case in favor of the respondent, we are unable to see how a fee damage is established beyond the sum of $1,000. Of this sum defendants’ proof is susceptible, and they cannot be heard to question the sufficiency of its basis. In this view of the case, we do not see that the defendants will be prejudiced by any of the rulings of the trial court, if we assume that technical error existed therein.

The judgment appealed from should be reversed, unless plaintiff, consents to reduce the sum awarded as fee damages by $700 and interest, in which case the judgment, as modified, is affirmed, without costs to either party. ~ 1

All concur.