author: Freedman, J.

text:
    William L. Hughes, Resp’t, v. The New Jersey Steamboat Company, App’lt.

      (New York Superior Court, General Term,

      Filed January 7, 1895.)

    Negligence—Pnoop.
    The evidence, iñ an action for personal injuries, caused by falling on the stairs of defendant’s boat, was held to be insufficient to carry the case to the jury.

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

      W. P. and R. K. Prentice, for app’lt; Edwin G. Davis, for resp’t.
   Freedman, J.

This action was brought for the recovery of damages alleged to have been sustained by the plaintiff through the negligence of the defendant. The plaintiff had engaged passage on the steamer Dean Richmond, belonging to the defendant, and while going up the main stairway on board of said steamer, to his stateroom, with his grip in his right hand, and his key, tickets, and umbrella in his left, his foot slipped, and he fell and broke his kneecap. Under all the circumstances disclosed by the record, the question of plaintiff’s contributory negligence was a question of fact for the jury, and as such it was properly submitted, and the finding of the jury upon this point should not be disturbed, if the ■case was one for the jury. It is a serious question, however, whether sufficient evidence was given to charge the defendant with negligence. There is no claim that the stairs, as maintained by the ■defendant, were out of repair, but the contention of the plaintiff ■simply is that they were too slippery to be safe. At the trial the plaintiff testified that, when he placed his foot upon,,the third step ■of the staircase, he slipped and fell; that upon the stairs was a ■covering of very highly polished brass, which was very slippery; and that the slipperiness of this brass covering caused his fall. This testimony as to the slippery condition of the staircase was not corroborated. In opposition to it the defendant showed, by quite a number of witnesses, that the stairs were not slippery; that the treads were covered with brass sheathing, which was polished, but that the surface of the brass sheathing was raised in small stars; that they were the best stairs that could be constructed ; that there was no defect whatever in them; and that no accident had ever been known to have occurred upon these stairs, although the steamboat had carried over 5,000*passengers that month, and about 62,000 that year. Among these witnesses was John E. Hofirnire, a stair builder and ship and steamboat joiner, who had built the stairs.in 75 to 100 first-class steamers, and built -600 or 700 flights of stairs, and who testified as follows :

“I always considered the stairs in the People’s Line [meaning defendant's line] were the best form that I ever constructed. The treads are covered with brass to protect the wood. ° The brass is made, and then it is struck up, raised in a star form, and the stars are about an inch and a half apart, running in a diamond shape. Brass is the best covering for stairs now, like this. I have never known an accident by anyone falling on the stairs. I have seen these stairs lately. I saw them last Wednesday, and examined them. I have seen them every year. I go up and down them every year. There has been no change in them. The «condition is as it was when they were first constructed. You ■can’t make it any better than what it is. This photograph [defendant’s Exhibit A] is a correct picture. There is ■sight inches rise and fourteen-inch tread, and it is the same in all the boats. That tread is rough enough for a man to hold his feet on. Stairways that have rubber on them have a metal nosing. I have had experience on stairways with rubber on them and metal nosing. I came down one of them headfirst. I fell, by the nosing rising a little above the rubber; my heel got caught, and tripped me.”

Even the plaintiff, on his cross-examination, although not willing to admit that the brass covering was raised in stars to give an uneven and somewhat rough surface, conceded that “ it was raised with some kind of device.” And the explanation given by him as to the manner in which he slipped favored rather the theory that his injuries were the result of a pure accident than the theory that they were caused by defendant’s negligence; for it showed that his foot which slipped had not béen planted upon the step in-question with sufficient exactness. His testimony upon this point was: “ My foot was on the step to the heel of the shoe. My foot up to the hollow was on the step.” Under these circumstances, there was not sufficient proof of negligence on the part of the defendant. The conflict of evidence, if it be deemed there was any at all, was only superficial, and, even in that aspect of the case, the clear preponderance of evidence was in favor of the defendant. Theo submission of the case to the jury, therefore, constituted error. The judgment and order should be reversed, and a new trial ordered, with costs to the appellant to abide the event,

All concur.


source: Caselaw Access Project

license: Public Domain

text:
    George Reilly, App’lt, v. Charles A. Parker, Resp’t.

      (New York Superior Court, General Term,

      Filed January 7, 1895.)

    Master'and servants—Interference of third party.
    A master is not liable for the breaking of an appliance used by a servant which results from the interference of third persons.
    Appeal from a judgment dismissing the complaint.

      George H. Fearons and Arthur S. Luria (Raphael J. Moses, of counsel), for app’lt; Wilson & Wallis (Hamilton Wallis, of counsel), for resp’t.
   Freedman, J.

This action was brought to recover damages for personal injuries sustained by the plaintiff through the alleged negligence of the defendant. The plaintiff, while in the employ of the defendant-as a hod carrier, was injured by falling from a so-called “runway” over which he carried building material into the cellar of a building in process of erection. The runway consisted of a wooden horse, and several planks supported by it, and it was a contrivance which had to be shifted with the progress of the work. There was no defect in 'the horse or the planks furnished by the defendant for the purpose. The placing of them and the shifting of them were regulated by fellow servants of the plaintiff, and, if it was negligence not to place a piece of board under the legs of the horse to prevent it from sinking into the ground, it was, under the circumstances of this case, the negligence of plaintiff’s fellow servants, for which the defendant, in the absence of personal participation,—of which there is no claim,—is not liable. So, if there vras a defect for the reason ■ stated, it was a patent one, and the plaintiff took the risk. Moreover, the evidence shows that the runway, as constructed, was probably adequate for the purpose for which it was constructed, and that plaintiff’s fall from it was ■caused by its unauthorized and unexpected use by third parties for a business for which it was not intended. Two employes of a framer, in no wise connected with and in no wise under the control of the defendant, and without the knowledge of or permission from the defendant, undertook to carry a heavy timber across it, and the plaintiff closely followed them. The extraordinary weight to which the runway was thus subjected caused the legs of one part of the horse to sink into the ground, and the horse to' tilt, and in consequence thereof the plaintiff fell. But even that fall would not have materially injured him, if the beam had not been there, for the framers, to save themselves, threw the beam off their shoulders, and it was the beam which fell upon the plaintiff, and broke his ribs and otherwise injured him. For this intervention of a third and independent cause the defendant is not liable. Under all the circumstances, the complaint was properly dismissed. The judgment should be affirmed, with costs.


author: Gildersleeve, J.

text:
    Samuel Bailie et al., Resp’ts, v. Leopold Plaut et al., App’lts.

      (New York Superior Court, General Term,

      Filed January 7, 1895.)

    1. Lease—Renewal.
    The holding possession and payment of rent after the expiration of the original term, with the consent of the lessor, operate as a renewal of the lease and a waiver of a provision in the lease providing for a notice to effect this purpose.
    2. Pleading—Statute of frauds.
    In order to avail himself of the statute of frauds, the defendant must, if the defect appears upon the face of the complaint, interpose it by demurrer, and, if it does not appear, present it by answer.
    Appeal from a judgment entered"on a verdict in favor of plaintiffs, and from an order denying a motion for a new trial.

      Edwin F. Stern, for app’lts; Edward S. Clinch, for resp’ts.
   Gildersleeve, J.

The plaintiffs, by a written lease dated •January 30, 1888, leased to the defendants, who were co-partners in business under the firm name of L. Plaut & Co., the top floor of a building on Cherry street, in this city, for the term of three years from May 1, 1888. The lease contained the following provision, i. e. :

And it is further agreed that the parties of the second part shall have the right to renew the lease of the within demised premises for a term of two years, at the rate of $1,800 per year, on the same terms otherwise as hereinbefore specified; provided, however, that they, the parties of the second part, shall, in writing, notify the parties of the first part at least six months prior to the expiration of this lease.”

"It is admitted that there was no written renewal of the lease, but the plaintiffs claim that there was a verbal renewal of this lease, while the defendants admit there was a verbal renewal for one year, but deny that it was renewed for any longer period. It is admitted that the defendants remained in possession of the premises after the expiration of the original term of three years, on May 1, 1891, and until some time in February, 1892, when they moved out, but paid the rent up to May 1, 1892, when they refused to pay any more. This action is for the rent of the months-of May, June, and July, 1892.

There is a very sharp conflict of evidence with regard to the verbal renewal. The plaintiff D. J. Bailie swears that in November or December, 1890, the defendant Leopold Plaut (the senior member of the firm of L. Plaut & Go., of which the defendant Joseph Plaut is the other member) told him that the defendants would avail themselves of the privilege to take a renewal of the lease, and asked the said plaintiff if plaintiffs would accept the verbal notice, saying, “ There is no further use for me to* write about it, or anything else ?” To which plaintiff swears he replied, “No, sir; that is all acceptable, if you are going to stay.” The defendant Leopold Plaut, on the other hand, swears that no such conversation took place, but admits that in March 1891, in answer to Bailie’s question, “ How about keeping on here ?” he replied, “Well, I guess we can hang on for another year.” And he adds: 'T said to him, we would hold on for another year.” That year I spoke of expired on May 1, 1892. We paid our rent up to May 1, 1892.” This testimony is substantially corrobortaed by his brother and his bookkeeper. The question of fact raised by this conflict of testimony was properly -submitted to the jury, who found in favor of plaintiffs. It seems to us that there is sufficient evidence to justify their conclusions.

The provision for a written notice of renewal in the lease seems to us to have been waived by the actions of the parties, which showed an election by the defendants to renew the lease, since they continued to hold possession and pay rent after the ‘expiration of the original term, with the consent and approval of the plaintiffs; and it seems to us that they are bound thereby, and that they made themselves liable to the end of the term. See Long v. Stafford, 103 N. Y. 275; 3 St. Rep. 87. Whether notice of renewal was given or not is inessential, as the acts of the part-ties worked a renewal.

The question raised by the defendants with regard to the statute of frauds is not material, as the statute is not pleaded. If the defendant in an action for breach of a contract within the statute desires to avail himself of the benefit of the statute, he must plead it. If the defect appears on the face of the complaint, the defense must be interposed by demurrer. If it does not so appear, it must be presented by answer. If the objection is not taken either way, defendant will be deemed to have waived it See Crane v. Powell, 139 N. Y. 379; 54 St. Rep. 659.

There are no other- points raised upon this appeal that are of sufficient importance to demand discussion. We are of the opinion that the judgment and order appealed from should be affirmed with costs. All concnr.


text:
    Marie Collins, App’lt and Resp’t, v. Mary V. Collins, App’lt, and Resp’t.

      (New York Superior Court, General Term,

      Filed January 7, 1895.)

    1. Gift—Causa Mortis.
    The donor may revoke a gift causa mortis upon his restoration to health.
    2. Same.
    The transfer of a certificate of railroad stock was held, in this case, tube a gift causa mortis.

    Cross-appeals from a judgment of the special term.

      Clarence F. Swart, for pl’ff; William G. Wilson, for def’t.
   Gildersleeve, J.

This action was brought by the plaintiff to recover the possession of a certificate for six shares of railroad stock, and the dividends declared thereon since 1884. Upon the trial the plaintiff had judgment for a portion only of the relief prayed for, and from this judgment both parties have appealed.

The defendant claims that the judgment is erroneous because it adjudges that the plaintiff is entitled to the possession of the stock sued for on the death of the defendant, and because it refuses to compel a retransfer of the said stock to the defendant. The plaintiff, on the other hand, claims that the judgment is erroneous in so far that it adjudges that the defendant is entitled to collect and receive for her own use and benefit, and during the rest of the term of her natural life, the dividends on the stock in controversy, and that for that purpose she may indorse in the plaintiff’s name all checks received therefor.

The facts of the case, as fairly established by the evidence, are as follows : The defendant, some time in December, 1884, being

in ill health, which she believed might result in her death, took the plaintiff, her daughter, who was then a child of about 12 years of age, to the office of the Buffalo, Hew York & Erie Railroad Company, and then and there surrendered a certificate of six shares of stock of said company, of which she was then the owner, and had a new certificate issued in the plaintiff’s name for the said stock. The defendant, however, has always retained possession of the certificate of stock, and collected the dividends in the name of the plaintiff. The plaintiff now sues for possession of the certificate, and for the sums collected thereon, with interest, claiming that the transfer was a gift inter vivas. It seems to us, however, that, by a fair preponderance of evidence, the defendant has shown that it was a gift causa mortis. And this conclusion is in accordance with the probabilities. A lone woman, in the humble circumstances of the defendant, would not be likely to give up all her possessions, except in view of death. The defendant thought that her illness might very possibly result in her death, and she wished to secure to her surviving daughter the six shares of stock, so that she might, to that extent, be provided for. The apprehended dissolution did not take place. Her right, therefore, to revoke the gift, is incontestable. She has revoked it, and consequently is entitled to the unqualified possession of the certificate of stock in question. The judgment herein should be reversed, and a new trial ordered, with- costs to the defendant to abide the event.


author: Per Curiam.

text:
    Julia M. Phyfe, as Executrix, etc., et al., Resp’t, v. The Metropolitan Elevated Railway Company et al., App’ls.

      (New York Superior Court, General Term,

      Filed January 7, 1895.)

    Elevated Railway—Easements.
    A finding that the appurtenant easements have a certain value, does not mean that such is the value apart from the consequential damages, where other findings and the conclusions of law expressly recognize the company’s liability for consequential damages only to the premises as a whole.
    Appeal from a judgment in favor of plaintiffs.
    Davies, Short & Townsend (Julien S. Davies, Sherrill Babcock, and Henry J. Hemmens, of counsel), for App’lts. ; Hawkins & Delafield (Eugene D. Hawkins of counsel), for Resp’ts.
   Per Curiam.

In finding that the value of the easements appurtenant to said premises taken, appropriated or interfered with by the maintenance and operation of said elevated railroad, is the sum of $11,500," the learned chief justice who tried this cause did not .mean to be understood that that is the value of the easements taken, considered by themselves and apart from any consequential damage to the premises to which they are appurtenant; for by another finding he expressly found that the easements appurtenant to the plaintiffs’ land taken for the said railway uses in and of themselves, apart from any consequential damage to said land from.said taking, have only nominal value.” Other findings speak of the damage to the entire premises, and of its continuous' character, and the conclusions of law found expressly recognize the liability of the defendants for consequential damages only to the premises as a whole. It may plainly by seen, therefore, that the sum fixed to be paid by the defendants in avoidance of the injunction represents the consequential fee damage. After a careful examination of the whole case, we are of the opinion that substantial justice has been done between the parties, and that there is no exception which calls for a reversal of the judgment. The judgment should be affirmed, with costs.


author: Hatch, J. Titus, C. J.

text:
    Josephine Pozepka, Pl’ff, v. American Glucose Company, Def’t.

      (Buffalo Superior Court, General Term,

      Filed January 15, 1895.)

    Pleading—Negligence.
    A complaint, in an action for the death of plaintiff’s intestate caused by the burning of defendant’s building in which said intestate was at worb, which alleges that the fire originated in the dynamo room of the structure burned, by reason of defects in the appliances and machinery operated therein, and that by reason of the defective insulation, the wires conducting the electrical current to the electric lights set fire to the woodwork, and further alleges that the fire .and the burning of the building were due wholly to the carelessness of the defendant, sufficiently states a cause of • action for negligence, which is not rendered bad by an averment of negligence on the part of defendant’s employes in not attempting to put out the fire.

      Demurrer to the complaint on the ground that it does not state facts sufficient to constitute a cause of action.

      Ullman & Ullman, for pl’ff; Rogers, Locke & Milburn (L. L. Babcock, of counsel), for def't.
   Hatch, J.

The complaint alleges that the fire originated in the dynamo room of the structure burned, by reason of defects in the appliances and machinery operated therein, add by reason of the defective insulation of the wires conducting the electrical current to the electric lights, by reason of which defects the woodwork of said dynamo room was set on fire. This is the only fire alleged to have been started, and it resulted in the destruction of the building. This is followed by a separate allegation that the taking fire of the building, and the burning, were due wholly to the carelessness and negligence of the defendant. The latter is not to be treated as a separate, general allegation of negligence, independent of the facts before alleged. The facts are stated, showing how the fire originated, and the allegation of negligence is of that fire. Consequently, such allegation applies to the specific acts alleged, and characterizes them as negligent. There was but one fire, and its manner of starting is stated. It resulted in the destruction of the building from which the injury was sustained. The fire was therefore the direct and proximate cause of the injury. The allegation of negligence on the part of the engineers does not negative the allegation of negligence as to the cause of the fire. There was no failure of duty on their part, which caused the fire to start; they simply made no attempt to put it out when they might have done so. Their failure in this regard, even though it be called a “ proximate cause ” of the burning, does not aid defendant; for it would then be only one of two proximate causes, and within the rule laid down in Ring v. City of Cohoes, 77 N. Y. 83, the defendant would still be liable. Ehrgott v. Mayor, etc., 96 N. Y. 283. The fact is not changed that the fire originated from the negligence of defendant. The case, as thus presented by the pleading, shows that'the fire was caused by the negligent acts of the defendant, and was the proximate cause of the injury ; that the negligence of the co-employes, in failing to put the fire out, was, at most, concurrent with the negligence of defendant. But the latter fact does not render the pleading bad, as such negligence does not exonerate the defendant for its acts of negligence. Ellis v. Railroad Co., 95 N. Y. 546. The pleading is inartificially drawn, but a cause of action is sufficiently well stated to resist a demurrer. Judgment should therefore be ordered for the plaintiff on, the demurrer, with costs, with leave to the defendant to answer within 20 days on payment of costs.

Titus, C. J.

(concurring).—The defendant demurs to the plaintiff’s complaint. The complaint alleges that the fire through which the plaintiff’s intestate was killed originated in the dynamo room of the defendant’s building, by reason of defects in the appliances and machinery operated therein, and that by reason of defective insulation the wires set fire to the woodwork. In paragraph 4 it is alleged that the “taking fire of said building, and. burning thereof, was due wholly to the carelessness and negligence of the defendant.” It then describes the building and room in which the intestate worked, and alleges that the windows were screwed down, and that after the fire occurred it might easily have been extinguished by the men employed in the engine room, and other facts in detail. We think there is clearly a specific allegation of the negligence of the defendant, in not properly attaching the electric wires, and in their faulty and defective insulation. The negligence in this case is predicated wholly upon the defective construction and attachment of the machinery and appliances, and is-a sufficient charge of negligence to maintain the action. The description of the room in which the intestate worked, and the fact that the windows were screwed down, are proper allegations in the complaint, and competent to be shown upon the trial; but the allegation of negligence of the defendant’s employes, while it may be a harmless surplusage, adds nothing to the charge of negligence against the defendant in causing the fire. Heither does it exculpate it from the consequences of such negligence,' because the neglect of the employes to put out the fire, while it may have prevented the serious consequences which followed, was not the proximate cause of the intestate’s death. In Pauley v. Steam, Guage & Lantern Co., 131 N. Y. 90; 42 St. Rep. 636, no claim was made that the fire was occasioned by any act or omission of the defendant, nor was it in any manner the product or result of its fault or negligence, and the court held that no negligence was shown against the defendant. Here the complaint charges-direct and specific negligence against the defendant, which clearly distinguishes it from that case. We think the demurrer must be overruled, and judgment ordered for the plaintiff, with costs, with leave to the defendant to answer within. 20 days, on payment of the costs of the demurrer.

White, J., dissents.


author: Hatch, J.

text:
    Achille J. Oishei, Pl’ff, v. James B. Craven, Def’t.

      (Buffalo Superior Court, General Term,

      Filed January 15, 1895.)

    1. Pleading—Note.
    An allegation that the note was assigned, transferred, delivered and indorsed to plaintiff, creates the presumption that it was lawfully delivered and that plaintiff has title.
    '2. Same.
    It is not necessary to allege a consideration for such assignment.
    8. Same.
    The statement, required by § 534 of the Code, is not absolutely essential where the complaint complies sufficiently with § 481 of tin Code.
    Demurrer to a complaint on the ground that it does state facts sufficient to constitute a cause of action.

      Charles Oishei, for pi’ff; C. S. Crosser, for def’t.
   Hatch, J.

The pleading is upon a promissory note, and is in attempted compliance with section 534, Code. It first alleges that on a given date defendant, for value, made and delivered his promissory note to one Vendello. It then sets out the note :

“Buffalo, N. Y., December 20, 1893.
“Six months after date I promise to pay to the order of Vendello three hundred and thirty-one ($331.02) dollars and two cents, at Third National Bank, Buffalo, N. Y. Value received.
J. B. Craven.”

Second. Alleges that on or about the 20th day of February, 1894, said note was “assigned, transferred, delivered and indorsed” to the plaintiff. Third. That no part of the said note, which is due, has been paid ; that on the 2d day of July, 1884, it was protested for non-payment,^—“all to the damage of the plaintiff in the sum of $332.23,” and interest from said 2d of July. Then demands judgment for the last-mentioned sum, with interest and costs.

The first objection is that it is not alleged that the owner ever transferred the note to plaintiff. But it is alleged that the note was assigned, transferred, delivered, and indorsed to the plaintiff. This allegation creates the presumption that the note was lawfully delivered, and that plaintiff has title. In Prindle v. Caruthers, 15 N. Y. 431, the allegation was that the contract became plaintiff’s property by purchase, and the court say : “The allegation cannot be true, unless he purchased of the parties having the lawful right to dispose. The whole matter will be capable of litigation on the trial.” Legally, this note could not be assigned and delivered to plaintiff except'by one having right and title so to do. But it is not necessary to allege this; it is sufficient to aver the fact of assignment and delivery. So in Hays v. Hathorn, 74 N. Y. 491, it is said: “The production of the paper by him was prima facie evidence that it had been delivered to him by the payee, and that he had title to it.” These are cases upon which defendant relies. But this doctrine supports the allegation of the complaint. It is not necessary to allege consideration for the assignment, for, if it be the fact that it is assigned, it is of no consequence whether it be for value or not. Certainly the maker cannot complain. It is said that the complaint does not allege the facts required by section 534 of the Code, in that it fails to state that there is due the plaintiff on this note the sum named therein, or any other sum. This is true, but it does not follow that the complaint is bad for that reason. It does allege that the note is due, and that no part of it has been paid ; that it has been protested,—all of which has damaged the plaintiff $332.23, for which sum and interest judgment is demanded. We have no difficulty in spelling out of this allegation that defendant has made default in payment of his note, or any part of it, and that he is now owing thereon, and that plaintiff is entitled to the sum due. It does not comply with section 534, Code, because it does not state in place of “to the damage,” etc., “that there is due to plaintiff thereon.” But it does, imperfectly and poorly, yet sufficiently, comply with section 481, in that it does, coupled with the other allegations, state a cause of action. Smith v. Fellows, 26 Hun, 384 ; Vogle v. Kirby, 18 St. Rep. 287; Keteltas v. Myers, 19 N. Y. 231; Sanders v. Soutter, 126 N. Y. 193; 37 St. Rep. 1. Judgment should be ordered for plaintiff on the demurrer, with costs, with leave to defendant to answer in 20 days on payment of costs! All concur.


author: Fitzsimons, J.

text:
    Frederick S. Myers, App’lt, v. Moses S. Rosenback, Resp’t.

      (New York City Court, General Term,

      Filed January 12, 1895.)

    Appeal—Harmless error.
    A refusal to dismiss a counterclaim does not prejudice the plaintiff where the jury finds thereon against the defendant.
    Appeal from a judgment in favor of defendant.

      Hamilton B. Squier, for app’lt; Horwitz & Herschfield, for resp’t.
   Fitzsimons, J.

The defendant’s answer alleged that he was induced to sign the lease in question by fraudulent representations made by plaintiff. This issue was, in our judgment, clearly established in defendant’s favor by a preponderance pf evidence. The fact that the defendant remained in possession of the demised premises until June 6th, under the circumstances, did not make him liable for the June rent, for the reason given by the general term of this court. See 5 Misc. 337 ; also Wallace v. Lent, 1 Daly, 48L

The plaintiff suffered no injury because of the denial of his motion to dismiss defendant’s counterclaim. The jury found against the defendant upon said counterclaim. The same thing may be said of the alleged error of the trial justice concerning the admission of evidence to sustain the counterclaim. If there were any errors, evidently, they were harmless, so far as plaintiff was concerned. After carefully reading the record, we are convinced that the judgment is a just one, and should be affirmed. Judgment affirmed, with costs. All concur.


author: Conlan, J.

text:
    Frank S. Baker, Resp’t, v. James R. Thomas, App’lt.

      (New York City Court, General Term,

      Filed January 12, 1895.)

    Broker—Commissions.
    A broker is entitled to commissions on producing a purchaser able and willing to purchase on the owner’s terms, though he may not have been personally present while the negotiations were either pending or actually consummated.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Sidney H. Stuart, for app’lt; W. Manning Van Heusen, for resp’t.
   Conlan, J.

This action was brought to recover commissions as broker on a sale of real estate. The complaint alleges, and the answer admits, that one William H. Simonson was the authoriged agent of the defendant in the matter of effecting a sale of certain real property of defendant, known and designated as “Mo. ,52 West 105th Street,” in the city of Mew York. As such agent, authority to employ a broker may be presumed. The evidence shows that the plaintiff was a real estate broker, and that early in October, 1893, he received a communication in the following words:

Mew York, October 6th, 1893.
Dear Sir: We are in receipt of yours of the 5th, inclosing check for $217.91. The price for 50 and 52 West 105th street is $27,000 for the single house, mortgage $15,000, at 5 per cent. ; double house, $40,000, mortgage $30,000, at 5 per cent. We will entertain exchange for the property, but there must be cash with any trade' we may make. If you have an offer, let us know.
Yours, truly, T. H. Simonson & Son.

It further appeared that about one week after the receipt of said communication, at the instance of the plaintiff, W. H. Simon-son and one Mr. Flahive (who subsequently became the purchaser of the premises in question) met at the office of the plaintiff, where the price and terms of sale were talked over generally, but no agreement was reached. The plaintiff testifies to a second meeting about a week .later at his office, where Simonson offered the property for $38,000; that Flahive said he would consider the offer, and let the plaintiff or Simonson know. The testimony as to the second meeting and what took place is denied by Simon-son and Flahive. It also appears that, in the latter part of December following, Flahive purchased the property in question, at the same price and on the same terms offered by Simonson in the office of the plaintiff. At the time of the purchase, Flahive had not reported to the plaintiff his acceptance or rejection of the offer submitted, nor had plaintiff’s agency been revoked or terminated by Simonson.

The rule is that, before a broker can recover his commissions, he is bound to prove that he found a purchaser, and produced him to his principal, ready and willing to purchase the real estate upon his terms. Gerding v. Haskin, 141 N. Y. 514; 57 St. Rep. 716. The broker need not be personally present during the negotiations, nor when they are actually concluded. He may just as effectually produce and create the agreement, though absent when it was completed, and taking no part in its final details. Glentworth v. Luther, 21 Barb. 147, approved in 83 N. Y. 382. The fact, therefore, that the bargain was concluded between the same partes and on the same terms as originally proposed in the office of the plaintiff, which brought them together, and within about 60 days from the introduction, was for the jury, as bearing directly upon the question of performance by plaintiff as broker, within the rules laid down. The trial judge submitted two questions to the jury : First, employment of the plaintiff; and, secondly, whether the plaintiff was instrumental in bringing the minds of the parties together on a bargain. The jury found for the plaintiff, and we think there is sufficient evidence to sustain the verdict. No errors of law were committed on the trial.

The judgment should be affirmed.


author: Ehrlich, C. J.

text:
    Richard N. Post, Resp’t, v. Butler Brothers, App’lts.

      (New York City Court, General Term,

      Filed January 12, 1895.)

    Pleading—Statute of frauds.
    When the complaint does not disclose an agreement invalid upon its face, the defendant must take the objection by answer ; and, if it is not taken that way, it is deemed to have been waived.
    Appeal from a judgment in favor of plaintiff.

      Kneeland & Stewart, for app’lts ; J. E. Ludden, for resp’t.
   Ehrlich, C. J.

The action was by the plaintiff to recover damages for alleged wrongful discharge. The main questions litigated were—First, whether the hiring was by the year; and, second, whether the defendants were authorized to discharge the plaintiff before the expiration of the term stated. The jury found on both issues in favor of plaintiff, on evidence which satisfactorily sustains their finding.

The defendants urge that the contract was one which, by its terms, could not be performed within a year, and was therefore void by statute. The rule is that when the complaint does not, as in this case, disclose an agreement invalid upon its face, the defendant must take the objection by answer, and, if not taken that way, it is deemed to have been waived. The defendants did not plead the statute, and thereby waived the benefit of it. Porter v. Wormser, 94 N. Y. 431, 450 ; Hamer v. Sidway, 124 N. Y. 538, 548 ; 36 St. Rep. 888; Wells v. Monihan, 129 N. Y. 161; 41 St. Rep. 409.

The exceptions taken appear to be without merit. The case went to the jury on a fair charge, and their verdict was for the damages legally assessable. The judgment must therefore be affirmed, with costs.

All concur.


text:
    George D. Sweetzer et al., Resp’ts, v. Edward E. Kembert et al., App’lts.

      (New York City Court, General Term,

      Filed January 12, 1895.)

    Pleading—Answer—Frivolous.
    Where the defendant has voluntarily appeared in the action, his answer to the jurisdiction of the court on the ground that he is not a resident of this state, and has no property and was not served with process herein, is frivolous.
    •Appeal from an order awarding judgment to plaintiffs on defendants’ answer as frivolous, and from a judgment entered thereon.

      John R. Abney, for app’lts; Thompson & Allen, for resp’ts.
   Ehrlich, C. J.

—The complaint is the ordinary one for goods sold and delivered by the plaintiffs, a firm doing business in this •city, to the defendants, a firm doing business at Sumter, in the state of South Carolina. The answer, by way of pleading to the jurisdiction of the court, alleges that the defendants are not residents of the state of New York, having no property within the state, and were not served with process within the state. The plaintiff thereupon moved'for judgment on the answer as frivolous. The application was granted, and the appeal is from the order awarding judgment.

The action being by resident plaintiffs, on a contract presumably made here, the allegations of the answer tendered no issue which required a trial, unless it be the statement that the defendants were not served with process within the state. This allegation, standing alone, would imply simply that the plaintiffs had not brought the defendants within the jurisdiction of the court. Such fact could not anticipate the action of the plaintiffs, nor authorize the defendants to tender it as an issue. The proper remedy was to move to set aside any unauthorized service or attempted service as irregular. Nones v. Hope Mutual Insurance Co., 8 Barb. 541. This is not a case where the defendants were •coerced within the jurisdiction of the court, and compelled, in defense, to resort to the plea of non jurisdiction, as in Hamburger v. Baker, 35 Hun, 456. Here defendants voluntarily appeared, and attempted to try an issue of their own making. The answer was therefore properly adjudged frivolous, and the judgment directed thereon must be affirmed, with costs.

All concur.


author: Bookstaver, J.

text:
    Loyd B. Hess, Resp’t, v. D. J. Van Auken, App’lt.

      (New York Common Pleas, General Term,

      Filed February 4, 1895.)

    1. Appeal—Requests to charge.
    Requests to charge, which suppose a state of facts not presented by the evidence, are properly refused.
    3. Insurance—Accident.
    Under a provision in an accident policy that no claim should be made if an injury resulted from voluntary exposure to unnecessary danger, the insured can recover, if the injuries were unintentional and did not happen in consequence of voluntary exposure.
    3. Evidence—Admissions—Compromise.
    Evidence of the admission of an independent fact is admissible, though made during a negotiation tending toward a compromise.

      Charles Schurz Petrasch, for app’lt; Seth B. Robinson, for resp’t.
   Bookstaver, J.

This action is founded on an accident insurance policy, to recover from one of a hundred individual underwriters the proportionate share' of his liability thereunder. The plaintiff, a cashier of a bank, called at a sawmill for the purpose •of having some lumber cut the requisite lengths for a cabinet to be used in the bank. While waiting for the work to be done, he asked an employe to have a cut-off saw started. This saw protruded through a movable table upon which the lumber or blocks of wood to be cut were laid. When in operation, the highest point.in the circumference of the saw was about two inches above the table, and was operated by pushing the saw table away from the operator and towards the saw. When the operator stopped pushing, the table came back automatically to its original position. Plaintiff sawed off a board twice, and then stopped. This was about 6 o’clock in the evening of September 29tb, and twilight was coming on in the mill. After plaintiff had finished cutting the blocks, he stood by the side of the table (whether leaning against it or not, he could not definitely say), watching the workmen ; and, while turning or moving around, he stepped upon a. block of wood lying concealed in the sawdust on the floor, and intinctively threw out. his arm to recover his balance. His hand came in contact with the saw, and was cut off at the wrist. This occurred some five or ten minutes after plaintiff had stopped using the saw.

We are not-able to say, as a matter of law, on the facts before us, that plaintiff voluntarily exposed himself to unnecessary danger. He was acting within the scope of his employment, ordering material for a cabinet to be used for a particular purpose by the bank. He was not injured while operating the saw, but his injury was primarily caused by his slipping or stumbling upon a. concealed block of wood while waiting for his order to be filled. The refusal to direct a verdict for defendant was therefore proper,

Appellant excepted to the refusal of the court to charge that, if plaintiff's injuries happened in consequence of voluntary exposure to unnecessary danger, the verdict must be for the defendant. The policy contained the usual clause that no claim should be made if-an injury resulted from voluntary exposure to unneccessary danger, hazard, etc. The courts have applied this provision to various cases, but appellant seems to have lost sight of the fact that respondent is seeking to recover upon an accident policy. His contention appears to be that plaintiff walked into the mill, and cut off his hand. If the provision in question is extended to meet this contention of the insurance companies, a recovery for injuries would be impossible, for the primary object of a policy of the kind under consideration ife to provide against an accidental injury arising from a danger more or less apparent. While the request was, in the abstract, correct in law, I think it was sufficiently covered by the charge as made, which was to the effect that if the injuries were unintentional, and did not happen in consequence of voluntary exposure, the plaintiff could recover, otherwise not. Phillips v. N. Y. C. & H. R. Railroad Co., 127 N. Y. 657 ; 38 St. Rep. 675. This portion of the charge does not appear to be altogether clear, from the stenographer’s minutes, but we think that it was sufficiently explicit to instruct the j ury correctly on that point.

The request to charge that “ if you find that the plaintiff was-injured while operating a buzz saw or cut-off saw,” and also, “if you find that the operation of the cut-off saw was the approximate cause of his injury, your verdict must be for the defendant,” were properly refused, as such requests suppose a state of facts-not presented by the evidence. Plaintiff was not operating the saw, and the fact that he had been doing so some five or ten minutes previous to the accident can have no bearing upon the case, except as a fact going to show the circumstances surrounding the accident.

Appellant also contends that the admission in evidence of the offers of compromise, under his objection, was error. The law is well settled that evidence of the admission of an independent fact is admissible, although made during a negotiation tending towards a compromise. 1 Greenl. Ev. (10th Ed.) § 192, and authorities cited. The letter contained the following statement:

“ In view of the fact that the case will likely be appealed by the losing side, in the event of your final success, you are doubtless aware that a considerable portion of our underwriters have-failed to provide any funds with which to dischargs their liabilities, and $500 at this time would doubtless be more than you would realize, even in the event of your success.”

The circular furnished by the insurance underwriters, and which induced plaintiff to take out the policy, contained the following :

“ The subscribers have deposited a large cash guaranty fund in the New York Security and Trust Company, which, in addition to the premium receipts, is available for the settlement of claims. In addition to this, the subscribers are each individually liable, to-the full extent of his wealth, for every risk so made by them. These hundred men represent over $400,000,000, thus making insurance by them much stronger than by any company. * * *" The security offered by the Guarantee and Accident Lloyds is. unlimited liability. * * .* In case of a vacancy occurring either through death or business embarrassment of a subscriber^ his place is immediately filled by one from the waiting list.”

The statement in the letter before quoted flatly contradicts these representations of the circular, and was admissible for that purpose. Bartlett v. Tarbox, 1 Abb. Dec. 120; Mount v. Bogert, Anth. N. P. 259; Marvin v. Richmond, 3 Denio, 58; Slinglerland v. Norton, 58 Hnn, 578 ; 35 St. Rep. 426; applied, McElwee Manufacturing Co. v. Trowbridge, 68 Hun, 28; 52 St. Rep. 64; Jones v. Sparks, 2 St. Rep. 139; 9 Am. & Eng. Enc. Law,. 353, 354. Smith v. Satterlee, 130 N. Y. 677; 41 St. Rep. 711, does not apply, because, as the court said, “ the letter which was put in evidence did not contain an admission of the fact, but rather an-offer of compromise.” The justice having committed no error requiring reversal, and the verdict being supported by evidence-, the judgment must be affirmed, with costs.


author: Parker, J.

text:
    Peter Flanagan, Resp’t, v. New York, Lake Erie and Western Railroad Company, App’lt.

      (Supreme Court, General Term, First Department,

      Filed January 18, 1895.)
    Evidence—Experts.
    The question as to whether the gates at a station can he operated in a-safe manner and with safety to the operator, is one for the jury, and is not the subject of expert testimony.
    Appeal from a judgment entered on a verdict in favor of plaintiff and from an order denying a motion for a new trial.

      Frederic B. Jennings, for app’lt; Frederick T. Hill, for resp’t.
   Parker, J.

We think this judgment must be reversed, because the court received, against the defendant’s objection and exception, the opinions of alleged experts upon the leading issue to be determined by the jury, in violation of the rule that, to make such evidence proper, the subject must be one of science or skill, or one of which observation and experience have given the opportunity and means of knowledge, which exists in reason, rather than descriptive facts, and therefore cannot be intelligently communicated to others, not familiar with the subject, so as to possess them with a full understanding of it.

Plaintiff entered the employment of the defendant on the 18th of December, 1890, to act in the capacity of gateman at the Grove street crossing, Jersey City. Grove street is crossed by five tracks of the defendant, running parallel with one another, and at right angles to Grove street. For the protection of the public at that crossing, gate poles, capable of being raised and lowered, were situated on either side of the crossing. They were raised or lowered by means of handles projecting from upright posts located between tracks Nos. 3 and 4. At these posts the plaintiff, as gateman, was stationed at the time of the injury, which was about half-past 4 on the morning of December 21st,—three days after his employment. At that time he observed a milk train, of 20 or more cars, running at the rate of about 12 miles an hour, going -west on track No. 3 ; and he commenced to lower the gates, turning the handles of the east post first, and then the handle of the -west one. The gates being lowered, he stood one side of the posts, as he had been instructed to do, with his left hand on the handle of the left post, and facing track No. 3. This position he took as the milk train was about reaching him, and, according to his testimony, he remained in that position, neither turning nor stepping forward or backward, when suddenly, and before the milk train had passed-, and without any previous warning, he felt a sudden blow on the back of his head ; and he fell forward upon one of the rails of track No. 3, under .the moving cars of the milk train, his left arm being crushed beneath the wheels, necessitating amputation. At the time of the accident, an engine, without any cars attached, was going west on track No. 4 ; and, according to the testimony of the men on it, it was opposite the eighth car on the milk train, which was running somewhat faster than the engine. It is the claim of the plaintiff that he was struck by some part of the light engine, and the evidence is of such a character as to warrant the finding that such was the fact. He contends that the defendants failed to discharge its duty towards him, as an employe,-in that it did not use reasonable care and prudence in providing a safe place in. which to do the work assigned him. The facts, other than those already referred to, offered for the pur* pose of establishing his contention, are that the entire space between tracks Nos. 3 and 4, where plaintiff was stationed at the post, was 8 feet 3 5-8 inches, and the distance between the handles projecting from the posts and track No. 4, upon which the light ■engine ran, was 3 feet 4 3-8 inches, and the overlap of freight ■cars, on a standard guage road, is from 1 foot 9 inches to 2 feet, and of engines about the same. The engine that struck him belonged to the heaviest .class, and had an overlap of 2 feet, thus leaving an average space of 16 3-8 inches between plaintiff and the engine passing at his back. A witness with considerable railroad experience testified to the effect of rapidly passing trains upon a person in close proximity, and unaccustomed to the sensa-' tian. Another witness suggested that a gate man would be more secure if he should push himself between the posts after the gates had been lowered; but there was some evidence that this only could be done when the handles happened to be hanging exactly ■right, which was not always the case. Maps descriptive of the locus in quo, and photographs were put in evidence, together with testimony to the effect that, it was entirely feasible to have provided a place for a gateman to raise and lower the gates, entirely «outside of the railroad tracks.

We have thus called attention to some of the leading facts bearing upon the question whether the defendant had omitted to discharge the duty resting upon it, of using proper care and caution in providing a reasonably safe place for the employe to work. And we think the evidence was of such a character as to present a question for the jury. But the plaintiff, after proving the facts, was not content to permit the jury, in accordance with the long«stablished rule, to determine from them whether or not the defendant had discharged the duty which it owed to the plaintiff, and he undertook to have that question determined for them by the opinion of experts. This was attempted to be done by means of hypothetical questions, which assumed the existence of the facts to which we have referred, and concluded, “Would you consider that these gates could be operated in a safe manner, and with safety to the operator ?” This question was for the jury, and the plaintiff was not entitled to have it determined for them by experts. Harley v. Buffalo Gar Manufacturing Co., 142 N. Y. 31; 58 St. Rep. 437 ; Schneider v. Second Ave. Railroad Co., 133 N. Y. 583 ; 44 St. Rep. 680; Roberts v. N. Y. E. Railroad Co., 128 N. Y. 455; 40 St. Rep. 454; Van Wycklen v. City of Brooklyn, 118 N. Y. 424 ; 29 St. Rep. 790. The ruling of the court in receiving the evidence against the objection and exception of the defendant -constitutes error, for which the judgment must be reversed. Judgment reversed, and a new trial granted, with costs to the appellant to abide the event.

All concur.


author: Bischoff, J.

text:
    Robert Tucker, Respt, v. Pennsylvania Railroad Company, App’lt.

      (New York Common Pleas, General Term,

      Filed February 4, 1895.)

    A carrier is not negligent in forwarding fruit, received in freezing weather, on the day of receipt, instead of retaining it in storage until  warmer weather.
    Appeal from a judgment of the city .court, affirming a judgment entered on a verdict in favor of plaintiff, and an order denying a motion for a new trial.

      Henry Galbraith Ward, for appl’t; George W. Poucher and Charles Caldwell, for resp’t.

       Reversing.

   Bischoff, J.

Plaintiff delivered to the defendant 40 boxes of lemons for transportation from New York to Milwaukee. While-in transit the goods were injured by frost, and the plaintiff recovered for the injury upon the theory that it occurred through the defendant’s negligent manner of shipment. To us it clearly appears that upon the issues submitted to the jury, there was no evidence to charge the defendant with negligence, or with any breach of its legal duty to the plaintiff. The damage to the-goods is claimed to have occurred by reason of their shipment in. a “ box car” at a time when the temperature was under 32 degrees, this class of vehicle not being constructed with a view to-the exclusion of cold, and the temperature being lower than the-degree noted upon the day when delivery was made to defendant and the goods forwarded. From the record it appears that there were two classes of cars by which shipment could have been safely made—refrigerator cars and Eastman cars; the former class being constructed merely to exclude cold in winter, and the latter' having the additional safeguard of artificial heat. The evidence-shows that these cars were known to the plaintiff to be furnished only upon special arrangement. Upon the shipping receipt tendered by plaintiff on delivery of the -goods to defendant he had stamped the words “ Refrigerator car.’.’ These words were erased by defendant’s agent, and the receipt was returned to plaintiff,, stamped “ Not to be loaded in refrigerator car.’1 The only cars-shown to have been available or in any way suitable for shipment, of the goods were box cars, “ refrigerator,” and 11 Eastman” cars, and the trial justice instructed the jury that the defendant was under no duty to ship by cars of the two latter classes, but left the-question “ whether or not the loading of the lemons on that day, the weather being in the condition testified to, was lack of ordinary care,” to the jury for determination. Of what, then, was-this assumed negligence predicable ? Solely of the defendant’s-act in forwarding in forwarding the goods upon the day of their receipt by the proper variety of vehicle. By their verdict the jury necessarily found that the defendant failed of its duty in that-it did not retain the goods in storage when received, pending^ a more propitious state of the temperature. No such duty attached to this defendent. As carrier, it agreed to transport the goads,. .and its duty with regard to their shipment called for reasonable expedition them after their receipt, with perhaps some duty of greater expedition in the case of perishable goods, and and unreasonable delay rendering it liable for resulting damages. (2 Am. & Eng. Enc. Law, p. 841 et seq.; Tierney v. N. Y. C. &. H. R. Railroad Co., 76 N. Y. 305, and cases cited), but it is not part of the law of this state that a carrier should, in the course of his duty as such, assume the functions of a warehouseman for the purpose of delaying transit of goods after the consignor had himself selected the time of shipment. Judgments of general and trial terms below reversed, and new trial ordered, with costs to appellant to abide event.

All concur.


text:
    Henry C. Miner, Resp’t, v. Jonas Stolts et al., App’lts.

      (New York Common Pleas, General Term,

      Filed February 4, 1895.)

    Appeal—Exclusion of evidence.
    Where evidence is excluded upon an objection which states no grounds, and none are called for by the adverse party, it will be assumed, if any ground exists for the exclusion, that it was place upon the right ground.
    Appeal from a judgment of the city court, affirming a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for new trial.

       Affirming.

   Per Curiam.

This is an action to recover the contract price of an electric light plant claimed by the plaintiff to have been sold by him to the defendants. The answer was general denial. The evidence given on the part of the defense was that the plant was purchased, not from the plaintiff referred the defendant in these words : “I will have nothing to do with it. You deal with Mr. May. Whatever Mr. May will do with you, it is all right.”

The judge charged as follows:

“If you find the evidence that that statement [referring to the one just quoted] was made by Mr. Miner, and the transaction had by the defendants with Mr. May, it would be binding upon Mr. Miner, and a verdict should be rendered for the defendants.. If, however, you find from the evidence that no such statement was made by Mr. Miner, and that the defendants are mistaken about that, and that there was some error in regard to it, the plaintiff would be entitled to a verdict for $1,250, together with $72.91, interest.”

The appellants ask for a reversal upon the sole ground of alleged error in the exclusion of evidence, under the following circumstances: The plaintiff was asked, upon cross-examination, whether he had “any arrangement with Mr. May, previous to the interview with Mr. Stolts for the putting in the electric plant in a joint venture,” and denied that he had. The following question was subsequently asked of May, in his direct examination by the ■the defense, “Did you and Mr. Miner have any arrangement about going into a venture and furnishing electric light plants ?” which was objected to and excluded. The appellants urge that the evidence so sought to be elicited bore directly upon the question of credibility as between the story of Mr. Miner and the story of Mr. Stolts, and rely upon the principle that, in case of a conflict of testimony, either party may be allowed to show auy incidents connected with the matter in question which tend to render probable the truth of his evidence, or to render improbable that of his adversary. Abb. Tr. Briefs, 109, and cases cited. ■ Conceding, without so holding, that, had the question been so framed as to include only the time of the transaction in litigation or time previous to it, its exclusion would have constituted error, the judgment must, nevertheless, be affirmed. The question might be taken to refer to some relation between the plaintiff and May subsequent to the sale in suit, and in this aspect was certainly objectionable. But where evidence is excluded upon an objection which stated no grounds, and none are called for by the adverse party, he is not misled, but may be supposed to understand them; and if any ground in fact existed for the exclusion, it will be assumed that it was placed upon the right ground. Height v. People, 50 N. Y. 34. We think, for these reasons, that the judgment should be affirmed, with costs.


author: O’Brien, J.

text:
    William L. Andrews, App’lt, v. Richard W. G. Welling, as Assignee, et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed January 18, 1895.)

    Trusts—Identification.
    Where, in addition to the admission, on the record, of the original purchase of the specific bonds by plaintiff, testimony of the plaintiff and the defendant assignee, which is entirely uncontradicted, is clearly sufficient to identify the bonds as the property of the plaintiff, and an indorsement in the handwriting of the assignor, found on the envelope containing the bonds, states that they are the property of the plaintiff, the evidence is. sufficient to identify, in the hands of the assignee for the benefit of creditors, property alleged to have been held in trust by the assignor for the plaintiff.
    Appeal from a judgment, dismissing the complaint.

      Alfred J. Taylor, for app’lt; John L. Wilkie, for resp’t.
   O’Brien, J.

This action was brought to recover possession of two bonds of $1,000 each of the Land & River Improvement Company. Among other property which came into the possession of the defendant as assignee were the two bonds in question, against which a claim was asserted by the plaintiff and the defendant Williams. Upon the reference the latter presented no proof to sustain her claim, and, not having appealed, she may be regarded as no longer a claimant. As to plaintiff’s claim, it appears that he purchased these bonds, which were numbered respectively 1,046 and 824, of Weeks & Co., brokers ; the former bond being paid for and delivered to plaintiff February 13, 1891, and the latter on March 18, 1892. In addition to these, the plaintiff from time to time had purchased ofher bonds of Weeks & Co., and about April 7, 1893, he delivered ten bonds so purchased, including the two in dispute, to Francis H. Weeks, an attorney, for sale. Bight were sold, and the proceeds accounted for by Weeks to plaintiff, and the remaining two of the ten left for sale were put in an envelope, and marked in the handwriting of Weeks as follows: “$2,000 Land & River Improvement Company bonds, property William L. Andrews, 16 Bast 38th Street. ” Francis H. Weeks made a general assignment on the 29th day of April, 1893, for the benefit of his creditors, and the property and securities belonging to-Weeks, and the property and securities that he held in trust or as agent, were in separate packages. The assignee testified :

“ When Mr. Weeks delivered the assignment to me, he handed to me two packages of papers, one of which- he said, as near as he could tell, contained his personal property, assets ; and the other of which, * * * as far as he knew, contained trust property, —that is, property he held in trust. Mr. Weeks assumed to assign to me the property represented by the papers in the first package. These bonds which are the subject of this litigation were in the second package.”

And in this second package of trust property was contained the envelope marked in the manner already stated in the handwriting of Weeks.

Upon the record we find the following admission:

“ It is admitted by all parties that the two bonds in suit were delivered by the firm of Weeks & Co., brokers, at 18 Wall street, to William L. Andrews, plaintiff herein; on February 13, 1891. No. 1,046, and on March 18, 1892, bond No. 824.”

It is not claimed that the plaintiff was indebted to Weeks, nolis there any contridiction of the testimony that the bonds were delivered by plaintiff to Weeks as his agent to sell. The referee, because in one or two instances it was shown that Weeks had incorrectly designated the owners of some of the securities which he turned over to the assignee, concluded that he was hot bound to determine the question in plaintiff’s favor, and upon the ground that there was not sufficient identification of the bonds as plaintiff’s he dismissed the complaint. In this, we think, the referee was clearly in error. Apart from the admission on the record of the original purchase of these specific bonds by plaintiff, we have the testimony of the plaintiff and of the defendant assignee, which is entirely uncontradicted, and clearly sufficient to identify the bonds as the property of the plaintiff; and, in addition, we have the indorsement in the handwriting of Weeks, found on the envelope containing the bonds, which states that they are the property of the plaintiff. Upon such evidence there is not even room for discussion, as under the authority of Govin v. De Miranda, 140 N. Y. 474; 55 St. Rep. 837, the plaintiff was entitled to judgment. Though in some respects like that case, the one at bar is stronger in favor of plaintiff. In the ease cited, after the death of the testator, there was found in a box in a safe at his office a sealed envelope, with the following indorsement thereon in Spanish :

“ A declaration in favor of Emilia, .Felix, Guellermina Govin, and Luz Diaz y Sanchez, who lived in 147 Bast 37th Street.”

In the enevlope was a paper, which contained the following, among other declarations:

“ There is, besides, in my safe, a parcel containing $29,000 in bonds of the Iowa Division Railroad, and out of them $10,000 belong to Luz Diaz y Sunchez, mother of the aforesaid persons, for ■covering a memorandum or note for the same sum subscribed by me ; and the balance belongs to the aforesaid Emilia, Felix, and '(ifuellermina, share and share alike.”

Of the 38 bonds contained in the box, the plaintiffs claimed 19, and it was held that, in the absence of any evidence explaining or contradicting the endorsement on the envelope, it furnished complete proof of ownership ; the judge, in the course of the opinion, saying :

“ The case depends entirely upon the force and effect to be given to that paper as evidence, and we think it shows that nineteen of these bonds belonged to the plaintiffs. • They were found in the safe, and there is the unqualified declaration that they belonged to them. We infer from that language that they came to the ownership of the plaintiffs in some legal way by purchase or gift from some one; and, if there was nothing else in the paper qualifying the declaration, no one would dispute that it furnished absolute evidence of their ownership of the bonds.”

In the case at bar we are not left in doubt as to the manner in which plaintiff acquired the ownership of the bonds, ñoras to how they came to be in the possession of Francis H. Weeks at the date •of his assignment, it clearly appearing that these' specific bonds were .bought and paid for by the plaintiff, and were in his possession until delivered to Weeks for sale with eight other bonds; and, he not having sold them, they remained the property of the plaintiff, and as against the assignee, who succeeds to no other or greater rights than his assignor, the plaintiff should have been awarded the title and possession. The judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.


author: Follett, J.

text:
    Hannah Conabeer, App’lt, v. New York Central and Hudson River Railroad Company et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed January 18, 1895.)

    Eminent domain—Acquisition by city.
    In the absence of evidence that a railroad company intends to surrender the title "to its structures or its easements in the street, the city, by condemnation proceedings, takes the title thereto, and a subsequent conveyance of the abutting property is subject to the grant of its original owner to the company.
    Appeal from a judgment, dismissing the complaint on the merits.
    This action was begun in November, 1891, (1) to perpetually enjoin the defendants from operating their railroad in Fourth avenue in front of plaintiff’s premises ; (2) to compel defendants to remove their structure in front of the plaintiff’s premises; and (3) to recover damages sustained by reason of the construction and operation of the road. April 25, 1831, the New York & Harlem Railroad Company was incorporated by § 263 of the Laws of that year, and authorized to construct a railroad from the north side of Twenty-third street to any point on the Harlem river between Third and Eighth avenues; and n 132 it constructed its road in Fourth avenue from Forty-second street to the Harlem river. The avenue at this time was 100 feet in width. The roadbed was an embankment in the center of the avenue, but the height and width of the embankment, as the road was originally constructed, .are not definitely disclosed by the record. On the 18th of Janu•ary, 1832, Margaret McGowan was the owner of a fee of a tract of land bounded on the east by Fourth avenue, on the north by One Hundred and Sixth street, on the south by Hinety.Seventh street, and on the west by a line so far west from Fourth avenue that it included the premises now owned by the plaintiff. .On the date mentioned, she, by a deed duly executed, delivered, and recorded August 18, 1835, conveyed to the New York & Harlem Railroad Company certain premises, described in •said deed as follows: “All that certain piece of land situate, lying, and being in the Twelfth ward of the city of New York, being part of one of the avenues laid out on the map of the city of New York as the Fourth avenue, and is included within a space •of twenty-four feet wide running through the center of said avenue, and between 97th and 106th streets, from the day of the date thereof, for and during the full period of time during which the said New York and Harlem Railroad Company may remain an incorporated •company, and on which they are to construct their railroad, and for no other purpose, with the power of sloping their embankments or excavations so much farther beyond the lines of said premises hereinbefore granted as may be necessary to support their work, not, however, extending' beyond .the width of the avenue.” Pursuant to chapter 274, Laws 1832, the width of the avenue from Thirty-Fourth street to Harlem river was increased to 140 feet, a strip of land 20 feet in width being added to each side of said avenue. In 1853 the city laid out the avenue to the width prescribed by said act, acquiring the title thereto for street purposes, opened it, and assessed the benefits on the abutting lots, an assessment being made on the lot now owned by the plaintiff, which was paid, and the railroad and others whose lands were taken receiving compensation for the lands acquired.
    By chapter 702, Laws 1872, entitled “An act to improve and regulate the use of the Fourth avenue in the city of New York,” it was provided:
    “ Section 1. The New York and Harlem Railroad Company is hereby authorized and required to regulate the grade of their rail’road in the Fourth avenue in the city of New York, and to construct such viaducts, foot and road bridges over the same, and such excavations and tunnels under the same, with openings for proper ventilation, for the purpose of rendering the same safe and convenient to any persons crossing the same, and the railroad trains and passengers traveling thereon, in the following manner, namely: * * * From Hinety-Sixth street arid thence continuing upon the present grade to the centre of One Hundred and Fifth street. * * * From Ninety-Eighth street to One Hundred and Fifteenth street, the railroad shall be carried upon a viaduct, with stone arches or iron bridges in said viaduct over the cross or intersecting streets above One Hundred and First street, to and include One Hundred and Thirteenth street.”
    Shortly after the passage of this act, the New York & Harlem Railroad Company, pursuant to plans agreed on between it and the city, erected in the center of said avenue, crossing One Hundred and Fourth street, and in front of the premises of the plaintiff, a viaduct, about 56 feet wide, and 33 feet high, retained by walls of masonry running parallel with the lines of the avenue, and laid, on the surface of the viaduct, tracks for the use of the railroad. Whenever intersecting streets were crossed, openings were constructed of masonry for the accommodation of persons traveling on said street. One-half of the expense of such reconstruction was paid by the city, and one-half by said railroad company. The road, as it now exists, was constructed by the joint act of the city and the railroad corporation. April 1, 1873, the New York & Harlem Railroad Company was leased to the New York Central & Hudson River Railroad Company, a corporation of this state, for 401 years, since which time the lessee has been in possession and has operated the road. Prior to 1887, Thomas Foy, by mesne conveyances from Margaret McGfown, became the owner of part of the land owned by her when she conveyed the strip to the New York & Harlem Railroad ; and on June 29, 1887, by a deed duly executed, delivered, and recorded on that date, he conveyed to the plaintiff a piece of land described as follows: “All that certain lot, piece, or parcel of land, with the improvements thereon, situate, lying, and being in the city of New York, and bounded and described as follows: Beginning at the southwest corner of Ohe Hundred and Fourth street and Fourth avenue, and running thence southerly, along the westerly side of Fourth avenue, one hundred feet and eleven inches, to the center line of the block; thence westerly, along said center line, and parallel with One Hundred and Fourth street, sixteen feet; thence running northerly, parallel with Fourth avenue, and part of the way through a certain party wall, one hundred feet and eleven inches, to the southerly side of One Hundred and Fourth street; and thence running easterly, along the southerly side of One Hundred and Fourth street, sixteen feet, to the point or place of beginning.” At that date there was, and now is, standing on the lot, a three-story brick dwelling. The plaintiff, on the date of the deed, entered into possession of said premises, and has ever since occupied them as a dwelling. From that time the defendants, during every day and night, have run a large number of trains over said viaduct, drawn by locomotives propelled by steam, which emit smoke, steam, soot, ashes, and sparks, which, from time to time, have entered the windows of the plaintiff’s dwelling, and have fallen, upon her premises, to the injury thereof. The operation of said road produces» loud and disagreeable noises, and its construction and operation interrupt the natural passage of light and air to and from the plaintiff’s dwelling.

      Joseph Ullman, for app’lt; Henry H. Anderson, for appellees.
   Follett, J.

The plaintiff’s lot is bounded on the north by the south line of One Hundred and Fourth street, and on the east by the west line of Fourth avenue, she having no title or estate in the bed or soil of either street, and she claims no private rights or interests in either street, except such as are incidental to lots abutting on streets. The title to these streets is in the city of New York, in trust. By the deed of January 18, 1832, Mrs. McGrown, the former owner of the fee of the plaintiff’s lot, conveyed to the New York & Harlem Railroad Company a strip of land 24 feet wide, in the center of the avenue, and extending from Hinety-Seventh street to One Hundred and Sixth street. By the terms of this deed, the grantee was authorized to construct a railroad on the land conveyed, with the right of extending the embankment on which the rails were to be laid to the exterior lines of the avenue. At the date of this conveyance, the avenue was 100 feet wide; and on each side of the land conveyed, and within the avenue, there was a strip of land 38 feet wide, the title to which was not conveyed, but the right to cover these strips with an enbankment was expressly granted. The embankment as now constructed is 56 feet wide, covering the land conveyed by Mrs. McGrown, and a strip 16 feet wide on each side of the strip granted by her, which is 22 feet less on each, side of the strip conveyed than the defendants by the grant were authorized to use. By the conveyance the grantee was authorized to construct a railroad on the subject of the grant, and, if necessary, to occupy the whole width of the avenue adjacent to the grantor’s remaining land. The grant of the right to construct a railroad carried with it the right to operate it when constructed, and the defendants could not have been held liable to Mrs. McGown for incidental damages caused to her remaining property by operating the road, without showing that the road was improperly constructed or negligently operated. The plaintiff stands in the shoes of her predecessor in title, and has no greater rights than she had. There is no assertion that the road wus improperly constructed. On the contrary, the proof is that it was built in accordance with the statute of 1872 and the requirements of the city authorities, and it is not alleged or proved that the defendants have been negligent in the operation of the road.

But the plaintiff insists that when the city, in 1853, increased the width of the avenue from 100 feet to 140 feet, and acquired the title to all lands within its exterior lines, including the strip granted to the railroad, Mrs. McGown’s grant was annulled, and the successors to her title were from that date vested with all the rights in the avenue that they would have had in case no such conveyance had been made by her. In support of this contention, it is urged that, this avenue having been laid out pursuant to chapter 86 of the Revised Laws of 1813, section 176 of which provides (2 Rev. Laws 1813, p. 414) that the city shall become seised in fee of lands taken for streets, subject to the trust that lands so acquired shall be kept open and used as streets, the title of the railroad to the strip of land in this street was not only ac•quired, but from that time its right to use the street for railroad purposes became subject to the right of the abutting owners to recover damages for injuries to their street easements, occasioned by the subsequent use of the street by the railroad. In support of this position it is asserted that the city could not acquire the fee of the street, subject to the right of the railroad to use a portion of it for its purposes. Incumbrances and easements burden many estates, the title to which is held in fee, and such burdens are not necessarily inconsistent with a title in fee. ■ When the city acquired the title to this avenue, the New York & Harlem Railroad Company was, and for more than 20 years had been, occupying the central part of the street, under legislative and municipal authority, for railroad purposes, and had erected therein, pursuant to such authority, an expensive and valuable structure ; and it cannot be assumed, in the absence of proof, that, for an award of one dollar, the city intended to acquire, or the corporation to surrender, its title to the structure, or that the railroad intended to surrender its long-enjoyed light to operate its road in the avenue. The practical construction by the city and by the railroad of the effect of the acquisition of the title to this street is opposed to such a contention. The city never claimed to be the owner of the structure, and the corporation was not compelled to remove it,- nor was its right to use it abridged, and it has been held that the structure is not the property of the city but of the railroad. People N. Y. & H. B. B. B. B. Co. v. Commissioners of Taxes, 101 N. Y. 322. By chapter 702, Laws 1872, the title of the railroad to its structure in the avenue, and the right to continue to operate its road therein, are expressly recognized. We are referred to Hill v Mohawk & H. Railroad Co., 5 Denio, 206, affirmed 7 N. Y. 152, as an authority for the position that, when land is acquired for public use by condemnation, an easement therein cannot be reserved in favor of the person from whom acquired. This case is not an authority for this position, as it simply holds that an easement in. lieu of or in diminution of the owner’s damages cannot be reserved without the consent of the owner of the property taken. With the consent of the owner an easement may be reserved and considered upon the question of damages. Mills, Em. Dom. 112, and cases cited.

In the case at bar it is apparent that the railroad assented to an award of one dollar as compensation for its land taken, in consideration that its easement in the street was not to be disturbed, but was to be continued.

We think the judgment is right, and that it should be affirmed, with costs. All concur.


text:
    Esther Lea Davis, App’lt, v. Simon Davis, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed January 18, 1895.)

    Contempt—Disobedience op obder—Knowledge.
    The court has power to punish a party for contempt of court in refusing to obey its order before its service upon him, provided it is made to appear that he had knowledge of the making and the terms of such order.

      Appeal from an order, denying a motion to punish defendant for contempt.

      David May, for app’lt; John C. Clark, for resp’t.
   Parker, J.

The special term denied plaintiff’s motion to punish the defendant as and for a contempt of court, because of hie refusal to pay alimony awarded by an order of the court, on ths ground that such order had not been served upon him within thistafe. The suit was for a divorce, and was commenced by personal service of the summons and complaint and order of arrest on defendant, who was held to bail in the sum of §1,000. Subsequently he appeared and answered, after which he departed from this state, and has since continued to reside in the state of Massachusetts. The question is whether the court, having acquired jurisdiction of the defendant in this action, is nevertheless powerless to proceed against him for his alleged contempt in. violating an order of the court, because by absenting himself he has rendered it impossible to serve the order upon him within this state. That he had knowledge of the existence of the order of the court requiring him to pay alimony is clearly established. It was personally served upon him in the state where he is at present residing, after which he made payment of the sum awarded to the plaintiff for costs, and also of a weekly allowance for alimony for a period of about 11 months, when he refused to make further payment. While the general rule is that the court will not punish a party for contempt of court in refusing to obey its order until after the order has been personally served upon him, the power of the court to do so is established, provided it shall be made to appear that the party had knowledge of the making and the terms of the order disobeyed. ' People ex rel. Platt v. Bice, 80 Hun, 441; 62 St. Rep. 189, affirmed 144 N. Y. 249 ; 63 St. Rep. 110. In that case an order was made that a mandamus issue, but none was in fact issued, nor was the order ever served upon the parties proceeded against as for a contempt for a failure to obey it; but, it appearing that they had knowledge of the order, it was held that they could nevertheless be punished for contempt because of their refusal to obey it. The general term in the prevailing opinion, after discussing a number of cases, said :

“It is true that these cases I have referred to are all cases of violations of injunctions, but I can see no difference in principle between the violation of an injunction, or of an order for an injunction, or of an order for an injunction, and the violation of an order for a writ of mandamus. The principle is the same. It is the order of the court that has been disobeyed, and it .has been brought equally into contempt, whether that order be for an injunction, mandamus, writ of prohibition, or any other writ or order which the court has power to grant or issue.”

As this case established the authority of the court to proceed against a party as and for contempt, who, while not legally served with a copy of the order, proceeds in violation of it with full knowledge of its existence; and the court having denied this motion, solely on the ground of want of power,—it follows that the order must be reversed. In Fairchild v. Fairchild, N. J. Ch. 13 Atl. 599, the court reached a like conclusion, and we deem it not out of place to extract from the very satisfactory opinion of Yice Chancellor Bird the following :

“The order issued requiring the defendant to show cause why he should not be attached as for contempt in not paying the alimony and counsel fee which he had been directed to pay by the former order, which had been served on the solicitor of the defendant, but not on the defendant personally because of hiso absence from the state, the question is whether, under the rules and practices of the court, it can proceed in the matter or not. While the practice is to take no steps in such cases without a personal service, when that can be had, yet, if the defendant absents himself and renders such service impossible, the court will not be balked in its-proceedings, and prevented, from making a final order or decree, in case service be made upon the solicitor of the defendant, who has appeared in the case and represented him, or, in case there be no solicitor, the order or notice be left with the clerk of the court. Such has been established practice, I infer, for a long period of time. Rider v. Kidder and De Manneville v. De Manneville, 12 Ves. 202, 203. While in such case the court is solicitous in protecting every right of the defendant, and also to avoid the commission of any wrong against him, yet, when the defendant puts it beyond the power of the court to make further inquiry, the end of such solicitude has been answered, and every principle which either equity or justice demands satisfied.”

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

All concur.