author: HARDIN, P. J.

text:
    Thomas Brown, App'lt, v. Buffalo, Rochester & Pittsburgh Railroad Company, Resp't.

      (Supreme Court, Appellate Division, Fourth Department,

      Filed April, 1896.)

    1. Railroads—Fibes—Negligence.
    In order to charge a railroad company with negligence in so operating its trains as to set fire to plaintiff’s adjacent premises, it is incumbent upon the plaintiff to point out specifically the negligence, or negligent act, of the company in operating its trains along its tracks, and-that such negligence caused the injuries of which the plaintiff complains.

      2. Same.
    In such case, it is not sufficient to produce evidence to indicate that sparks emitted from the smoke stack of the locomotives occasioned the fire, unless the emission of the sparks was unusual in degree or character, or the sparks were of extraordinary size and such as would not be emitted from perfectly constructed locomotives.
    8. Same—Question bob jury.
    The question whether the omission of the company to cut the grass and weeds and remove the debris from the railroad premises, and whether by reason of such omission and negligent acts of the company a fire started on its premises and communicated to the plaintiff’s premises and caused the damages, is one for the jury to determine,"
    Appeal from a judgment in favor of defendant, and from an order denying a motion for a new trial on the minutes.
    J. E. Robson, for app’lt; H. G. Danforth, for resp’t.
   HARDIN, P. J.

It was incumbent upon the plaintiff to point out specifically the negligence, or negligent act, of the defendant in operating its trains along its track, and that such negligence caused the injuries of which the plaintiff complained. It was not sufficient to produce evidence to indicate that sparks emitted from the smoke stack of defendant’s locomotives occasioned the fire, unless the emission of the sparks was unusual in degree or character, or the sparks were of extraordinary size, and such as would not be emitted from perfectly constructed locomotives. McCaig v. Railway Co., 8 Hun, 599. The evidence was not definite and certain to indicate any particular engine from which the fire escaped. The grade was ascending adjacent to the plaintiff’s lands, and it was to be expected that some sparks, in the reasonable use of the defendant’s engines, would escape. Frier v. Canal Co., 86 Hun, 464; 67 St. Rep. 541. In Miller v. Railroad Co. 71 St. Rep, 729, it was said:

It may be, as alleged in the complaint, that sparks emitted from the engine were thrown upon the plaintiff’s premises, and caused the fire. But if, as we must assume here, the engine was perfect, that would not of itself establish negligence.”

In Flinn v. Railroad Co., 142 N. Y. 11; 48 St. Rep. 431, it was said that a railroad company may not be made liable “for the unavoidable or usual consequences to adjacent property of the proper operation of its road.” And in that case it was further held that tl the defendant could not be charged with negligence in not fully introducing a new system of arresting sparks upon all of its engines previous to the fire, in the absence of evidence that it was reasonably practicable and possible so to do.”

2. It is claimed there was some evidence of the defendant’s negligence in its omission to cut the grass and weeds and remove the debris from the railroad premises, and that by reason of such omission and negligent acts of the defendant a fire started on the premises of the defendant, and communicated to the premises of the plaintiff and caused damages; and that, whether such was the fact ,or not, was a question for the jury to determine. In support of such contention the appellant calls our attention to the evidence of Edward S. Brown, at folio 93. He said that he remembered the summer of 1893, the months of June, July, and August of that year, and that it was a dry season. “ The defendant’s track adjoining our premises was very dry. There was grass on it. The grass was dry. I don’t know whether it had been cut or not. I think it had, but I would not be positive. Fires occurred there in July.” The witness continues:

“ On July 22d we had two fires. The first occurred about ten o’clock. I saw it start.» It started on the railroad side of the fence, in whatever was there to ignite the grass or weeds. It burned east away from the track. The wind was blowing west quite hard that morning. It burned ten acres of hay stubble, two tons of hay, and two shade trees, and extended over about a quarter of a mile. We had fourteen of our men there that morning, and the railraad section men were there.”

The witness Carver testifies that he saw fires on the plaintiff’s promises in 1893, in the month of July. And he adds :

“ I saw the fire of July 22d in the morning. The condition of the railroad bed along the Brown farm at that time was very dry. The weeds and grass were very dry. The weeds had been cut by the track men, and they lay along the side of the railroad track between that and the fence, and in places where there wasn’t as much they left the grass ctanding, and cut close like, and they mowed that where the grass was, and where there was some weeds they would clip them. I observed this in July of 1893. This fire started up near the top of the hill. My men came there, and tried to get it under control, and just managed to keep it from the buildings, and it burned through to the highway. It had burned on the railroad side of the fence, between the track and the fence, and of course it had run out and through the lot.”

This witness further testified:

“ There was some grass and weeds on the railroad bed, and occasionally some willows above the crossing, and by Mr. Brown’s. * * * The roadway on each side of the track, between the track and the fence, is covered with sod. * * * This railroad runs by the Brown farm, on an embankment from three to five feet high. The Brown farm runs up from the hill. I think the men had been through that year, cutting the weeds and grass, about July 1st. It was pretty dry in June and July of that year, and the grass and rubbish was very dry; just as dry on the railroad as on the Brown farm. Some of this grass on the railroad at the time of these fires was probably a foot to a foot and a-half high. It would be that, some of it, at any time. In the winter or spring, in places, some of it wouldn’t be more than three inches high. I mean at this time of year — at the the time the ground was burned—there was something there besides old dry grass. It would stand up in some places a foot and a-half high. In some places it would be quite thick and in some places quite thin. Along there where these fires started, in some places it was heavier and in some places lighter. * * * The grass that had been cut was left lying where they cut it. I saw three of the fires; two occurring in the forenoon and one in the afternoon.”

On his recross-examination he said that some one had cut the grass and weeds in July.

“ I couldn’t make an estimate of how much grass you could have collected along the easterly side of the roadway along the Brown farm, if you had gone over it with a rake; I don’t know bow much there would be; it would make a good ordinary load if it was all raked up; there was some of the weeds and hay lying in swaths as the counsel had called it; it lay there some of it burned.”

And further on in his testimony he says :

“ I thought there was a load or more of grass I saw cut along the Brown premises.”

The witness McGuire says that he was present at the fire of July 22d, and that he observed the condition of the roadbed between the tracks and the fence, and he adds:

“ Along the track, a foot or two beyond the ties, it was grassy. More or less of the grass and weeds had been cut. It had not been removed after cutting. Along the length of the Brown premises there would be probably a load of it. There were places where it varied in thickness; places where there was a handful, and places where there was a forkful. It had been cut with a grass scythe. * * * I know there was a freight train passed there between ten and noon ordinarily. I have seen it set fires in July, 1893.”

We are inclined to think, according to the doctrine laid down in O’Neill v. Railway Company, 115 N. Y. 579; 26 St. Rep. 269, and the comments made in that case by Danforth, J., that the evidence we have quoted required the question as to the defendant’s negligence to be submitted to the jury. In that case it was said :

“That, conceding the escape of fire from an engine is inevitable, a railroad company is bound to remove combustible material from its path, or to prevent such an accumulation thereof by the side •of its tracks as will, in consequence of fire falling upon it, endanger the property of others.”

Danforth, J., after stating the rule we have just mentioned, says:

“The fire on the track was its fire as much as if confined in the engine, and it owed a like duty to see that it did no harm.”

And he further observes:

“There was, moreover, in the plaintiff’s case, abundant evidence of conduct on the defendant’s part in so storing its useless material and retaining upon its premises brush and other refuse matter as to make it quite right and proper for the jury to declare it negligent.”

That case seems to have been placed upon the general doctrine of ‘negligence, and does not refer to section 25 of chapter 283 of the Laws of 1885, which reads as follows:

“ Every railroad company whose road passes through waste or forest lands liable to be overrun by fires within this state, shall twice in each year cut and burn off or remove from its right of way, all grass, brash or other inflammable material, but under proper care, and at times when the fires thus set are not liable to spread beyond control.”

Following the O'Neill Case Is the case of Van Ostrand v. Railroad Co., 46 St. Rep. 456, decided in July, 1892, by the Third department, where it was held:

“ Whether a railroad, in cutting and leaving by the roadside a quantity of grass and brush exposed to the danger of fire from its passing engines is guilty of negligence, is properly a question for the jury.”

In that case there was evidence to show that the defendant had previously cut the grass along the track, and also brush, which it permitted to remain in the vicinity of the track; that the brash took fire from the sparks of a passing engine, and communicated to the plaintiff’s land, and during the trial the court charged the jury:

“ That if they found that such conduct on defendants part was negligent, and that the fire was caused by reason of it, and could not otherwise have occurred, and was communicated from this pile of brush to plaintiff’s lands, and did this damage, plaintiff was entitled to recover.”

The court approved of the language thus used in the charge.

We are of the opinion that the trial court erred in refusing to submit the question to the jury whether the fire which was occasioned by the sparks falling upon the premises of the defendant, and communicated to the premises of the plaintiff, was caused by the negligence of the defendant, and in granting the defendant’s motion for a nonsuit. The foregoing views lead us to the conclusion that a new trial should be ordered.

Judgment and order reversed, and a new trial ordered, with costs to abide the event.

All concur.


source: Caselaw Access Project

license: Public Domain

text:
    Frank Dorman, as Administrator, etc., Resp't, v. Stephen Gannon, as Executor, etc., App'lt.

      (Supreme Court, Appellate Division, Fourth Department,

      Filed April, 1896.)
    1. Limitation—Deposit.
    The statute of limitations will not run against the deposit by a wife with her husband until a demand for its return has been made.

      Appeal from a judgment in favor of plaintiff,
    C. F. Kingsley, for app’lt; J. F. Parkhurst, for resp’t.
   HARDIN, P. J.

Platintiff produced in evidence a deed executed by Stephen and Adaline Dorman to John L. Dorman, dated September 7, 1867, which conveyed some eighty-seven acres of land, for the consideration of §2,800. Plaintiff then called eight witnesses whose testimony reveals very clearly the fact that Stephen received the $2,800 on money which belonged to his wife; and it tended strongly to support the findings of fact made by the trial judge, to the effect that Adaline deposited the moneys in the hands of her husband, Stephen to be kept by liim for her, as a deposit until she should demand the same, and that he kept the money “from that time until the time of his death, for her, and held the same as a deposit for her during all of that time, to be paid to her upon her demand." The only evidence given by the defendant, bearing upon the question of fact consisted of a statement made by Cress to the effect that in 1868 he called at Dorman’s house, and wanted to sell a note: “ She (Adaline) said that her husband had her"money, and was doing with it as he saw fit; would probably buy the note." The declarations and statements made by Stephen Dorman occurred during a period of several years, and commenced shortly after he received the money, and were made at intervals. One of the statements made by Stephen was to Christler, “ on Monday or Tuesday, as he died on the following Friday. The conversation was at his house.” The witness said :

“ Then he went on, and told me about the $2,800 of his wife’s money,—he had taken it to keep for her; that is, the same as though she wasn’t capable of taking care of it herself. That was the substance of it. He said, by Gr-d, she wasn’t capable of taking care of it herself, and he was taking care of it for her. I had another conversation about two years before the one spoken of, at the sawmill; Bckles, one of the men, being present. He said he had twenty-eight hundred dollars of his wife's money, and he was taking care of it for her; that she was not capable of taking-care of it herself.”

After applying to the evidence the scrutiny rule laid down in Van Slooten v. Wheeler, 140 N. Y. 624, to the effect that “ publio policy requires that claims against the estates of the dead should be established by very satisfactory evidence, and the courts should see to it that such estates are fairly protected against unfounded and rapacious raids,” it is difficult to resist the conclusion that the evidence given by the plaintiff tends strongly to support the essential findings of fact made by the trial court. In the case from which we have just quoted, comment was made upon the testimony of Maurer, and it was said:

“ The evidence of this witness was somewhat confused, and his statement about the check was drawn out by plaintiff’s counsel only after the form of his questions had drawn his mind to what he wanted. * * * This was a- casual conversation about & matter in wiiicli he had no interest. Such evidence of distant conversations has always been regarded as the most unsatisfactory and unreliable evidence.’’

The comments made as to that witness cannot reasonably be applied to all of the numerous declarations found in the appeal book before us. Accepting the findings of fact made by the trial court as evincing a reasonable interpretation of the evidence offered by the plaintiff, the case seems to fall within the line of authorities that support the right of recovery notwithstanding the statute of limitations. In Payne v. Gardiner, 29 N. Y. 146-168, a deposit was clearly defined, and a quotation was made with approval from Pothier, viz.:

“ When a man deposits money in the hands of another, to be kept for his use, the possession of the custodian ought to be deemed the possession of the owner until an application and refusal, or other denial of the right; for until then there is nothing adverse, and I conceive that, upon principle, no action should be allowed in these cases without a previous demand,—consequently, that no limitation should be computed further back than such demand.”

The learned judge who delivered the opinion in the case from which we have quoted said:

“A distinction exists between a mere loan and a deposit. They are governed by different rules; and in the absence of any legislative prohibition, or of any rule of public policy, parties should be permitted to take upon themselves the obligation of either form of contract which they deemed proper, and the law should give effect to their intentions, when ascertained.”

That case was cited with approved by Rapallo, J., in Boughton v. Flint, 74 N. Y. 482. In that case it was insisted that the statute of limitations applied to an item of $800, and that learned judge said:

“More than six years had elapsed from the time of the receipt - of the money by the testator to the time of his death, but there was no evidence that the money had ever been demanded of him, or that he refused to pay it over, or laid any claim to it hostile to that of his wife. We think that the transaction amounted to a simple deposit, upon which the statute would not begin to run until a demand and refusal to pay, or some equivalent to act. The money was not loaned to the testator at his request, but was being kept by him for his wife at her request; and he was not in default in not paying it over until she should demand it, as he was requested to keep it until then. Payne v. Gardiner, 29 N. Y. 146.”

Payne v. Gardiner, supra, was again approved in Smiley v. Fry, 100 N. Y. 265. In that case $4,000 had been received, “returnable on demand; ” and the court held that it was in the nature of a certificate of deposit, and that “ no cause of action arose thereon until a demand was made for the sum deposited." And in the course of the opinion delivered, approving Payne v. Gardiner, supra, an approval was also given to Howell v. Adams, 68 N. Y. 314, and Boughton v. Flint, 74 id. 576. In Re Grandin, 61 Hun, 219; 40 St. Rep. 655, it appeared that certain funds were held by a trustee, and it was said that “ until he repudiated the trust, or in some way claimed title to the fund in defiance of it, there was no beginning of the running of the statute of limitations.” A somewhat similar question was involved in the case of In re Camp. 126 N. Y. 377; 37 St. Rep. 767, and it was held that the statute of limitations was not a bar to proceedings requiring the party to act. In Re Wiltsie, 12 St. Rep. 144, “certain moneys were not loaned to Wiltsie, but deposited with him,” and it was said, “He was the custodian of her funds,—her depositary,—and 1 was to make over to her mortgages, when she demanded it done. * * * ’ ” And it was said the statute would not commence to run against her until he had refused to perform his part of the agreement. Appellant calls our attention to Mills v. Mills, 115 N. Y. 80; 23 St. Rep. 604; and in that case it was said that where one receives money for the use of another, “ under such circumstances that it is the duty of the former to pay it over, an action for money had and received may be brought to recover it, without a demand, and the statute of limitations begins to run from the day of the receipt of the money.” And of the party who received the moneys it was said: “ It was his duty at once to pay them over, and, upon his failure to do so, he was liable without demand. That, therefore, the six years statute of limitations applied (Code Civ. Proc. § 382), and the action was barred.” We are of the opinion that the case does not come up to the contention of the appellant According to the evidence upon which the trial court has acted, there was no duty resting upon the testator to pay over the money without a demand made by his wife, if the money was received under the circumstances disclosed by the numerous declarations made by the testator. In Sheldon v. Sheldon, 133 N. Y. 1; 44 St. Rep. 260, in the opinion delivered the question now presented to us was under consideration, and it was said: “The.only question that is open for consideration in this court is whether this important part of the finding is based upon evidence; ” and the court after an extensive review of the evidence delivered in that case, said that it did not prove the important fact “ with respect to the specific $768,” which was the consideration for a deed executed by the husband and wife, and the money paid to the husband. In that case there was evidence that a settlement had taken place between the parties, and there was also some evidence to the effect that the plaintiff had received payment by way of a mortgage; and, , upon an extensive review of the evidence, it was held not to be sufficient to support the findings that were challenged. Appellent calls attention to Wood v. Young, 141 N. Y. 211; 56 St. Rep. 820. In that case the plaintiff demanded the sum of $500, and the statute of limitations was interposed as a defense. The plaintiff had insured her husband’s life for $5,000, payable to her upon his death, and he died in 1876, and proofs of death were filed; and the plaintiff executed a power of attorney authorizing the defendant’s testator to receive from the company the moneys due her upon the policy, and they were actually paid to him, and the plaintiff “supposed and believed Shat her brother had collected and received the money more than ten years prior to the presentation to her claim.” The learned judge says:

“ The law imposed upon him the obligation to pay it over to. the plaintiff as soon as received, or at least within a reasonable time. There was nothing in the circumstances under which the money came to the hands of the testator from which the right or duty can be implied to hold it until actually called for by the owner. The obligation of the party who has received the money in such cases to pay it over, and his liability in an action to recover the same, without any demand before suit, has been firmly settled by a long line of cases that cannot be distinguished from this by any sound distinctinction.” See cases cited in the opinion.

Appellant calls our attention to In re Neilley, 95 N. Y. 383. In the course of the opinion it was said :

Here was no actual deposit. The origin of the transaction was an admitted indebtedness from Alexander Waldron to Sarah Byron, which was actually due in 1828.”

The case differs quite essentially from the one at bar.

Evidently the trial judge saw nothing in the appearance or demeanor or statements of the witnesses authorizing him to discredit their statements, and an inspection of the record has not produced an impression that they falsified. On the contrary, the impression seems to be warranted that the finding of fact is in accordance w itli the truth of the case as presented bv the evidence in behalf of the plaintiff

Judgment affirmed, with costs.

All concur.


text:
    John L. Yates, as General Assignee, etc., Resp't, v. John M. Root, as Executor, etc., App'lt.

      (Supreme Court, Appellate Division, Fourth Department,

      Filed April, 1896.)

    1. Witness—Section 839 of the code.
    A claimant cannot testify as to the value of services rendered to decedent if performed in his presence.
    3. Same—Opinion.
    In such action, a question calling for witness’ opinion of the value of his services “as appears hy the evidence herein,” is improper.
    3. Services—Value.
    A finding hy the referee that the services rendered “as manager, general overseer, his skill, experience and good judgment, were worth to the decedent the sum of $3 per day,” adopts an erroneous rule in measuring the value of such services.
    Appeal from a judgment m favor of claimant, entered on the report of a referee.
    J. B. Rafter, for app’lt; W. H. Van Steenburgh, for resp’t.
   HARDIN, P. J.

Upon a careful examination of the evidence, mo definite proof is found of the exact number of days of service rendered by Lowell for the deceased. The only definite evidence as to the labor performed by Lowell is found in the testimony of Wain man, the carpenter who was engaged in repairing the deceased’s building. He testified that he (the carpenter) commenced work for the deceased about the middle of October, 1892, and worked there until about March 25, 1893,—less some seven days. And he testifies,viz.: “I do not think there was a day, during the whole time I was there, but what Mr. Lowell was there. He was always working around at something.” The period of time covered by this witness does not exceed 138 secular days. This witness was allowed to testify that Lowell’s services “during that time were worth $2 per day, he boarding himself.” After some other evidence given as to the services rendered by Lowell for the deceased, in doing chores, and giving further and other attention to the business and affairs of the deceased, the plaintiff called Lowell as a witness; and thereupon several letters of the deceased, written to Lowell, were produced and read in evidence. In the letters the deceased mentioned the services and attentions that had been received from Lowell. Thereupon the following question was propounded to the witness Lowell: “What was the fair, reasonable value per day of the services so performed by you, as appears by the evidence herein, for H. Gr. Root ? ” This question was objected to “as improper, incompetent, and inadmissible; second, improper and inadmissible under section 829 of the Code of Civil Procedure, and tends to prove services by the witness for deceased, and prove personal transactions between this witness and the deceased; third, no foundation has been laid, by showing this witness to have knowledge of all the evidence herein.” The objections were overruled, and an exception taken, and the witness was allowed to answer, “The value is $2 per day.” From the course of the evidence, it appears that Lowell was present with Root a portion of the time, when rendering some of the services embraced in the question. As to such services the question called for a personal transaction, and was improper. Holcomb v. Holcomb, 95 N. Y. 316; Fisher v. Verplanck, 17 Hun, 150. In Taylor v. Welsh, 92 Hun, 272, it was held that it was not proper to allow a plaintiff to testify that he did chores, errands, etc., for the deceased, and that the admission of such evidence was harmful error, which required a new trial to be ordered. See, also, Heyne v. Doerfler, 124 N. Y. 508; 36 St, Rep. 497. The question propounded was improper in another respect. It called for the opinion of the witness of the value of the services performed, by him “as appears by the evidence herein.” It was not made clear that he knew and understood accurately all the evidence that had been given. In Reynolds v. Robinson, 64 N. Y. 589, a similar question was condemned, and in that case it was said, “It is not the province of a witness to reconcile, or draw inferences from, the evidence of other witnesses, or to take such facts as he thinks their evidence has established, and thus form and express an opinion.” The doctrine of that case has been asserted • in numerous other cases. Guiterman v. Steamship Co., 83 N. Y. 358 ; Hagadorn v. Insurance Co., 22 Hun, 249; Ayres v. Water Commissioners, Id., 297. We ought not to disregard the error in receiving an answer to the question propounded, as it does not clearly appear that no injury resulted from the error. Brague v. Lord, 67 N. Y. 499 Taylor v. Welsh, 92 Hun, 272.

The referee, in his report, says that the services rendered “as manager, general overseer, his skill, experience and good judgment were worth to the said H. George Root the said sum of $2 per day.” Instead of finding the actual value of the services, the referee seems to have adopted an erroneous rule in measuring the value of the services of the witness. The rule for estimating the services should have been their actual value, and not such value as-the services may have been supposed “to be worth to the defendant in the particular circumstances in which he was placed.” Perrine v. Hotchkiss, 58 Barb. 77. This is a case which, according to numerous authorities, we should scrutinize, and the claim should lie established by satisfactory evidence relating to the extent of the services and the value thereof. Kearney v. McKeon, 85 N. Y. 139; Rowland v. Howard, 75 Hun, 1; 56 St. Rep. 722; Forbes v. Chichester, 30 St. Rep. 370; Van Slooten v. Wheeler, 140 N. Y. 624. In the latter case it was said, “The courts should see to it that such estates are fairly protected against unfounded and rapacious raids.” See, also, Dorman v. Gannon, 38 Supp. 659, decided by this court in April, 1896. The foregoing views lead to a reversal of the judgment.

Judgment reversed and a new trial ordered, with costs to abide the event.

All concur.


author: BARTLETT, J.

text:
    William D. Marvel, Resp't, v. Georgiana C. Stone et al., as Executors, App'lts.

      (Supreme Court, Appellate Division, Second Department,

      Filed April 28, 1896.)

    Pleading—Definite and certain.
    The complaint, in an action to recover damages from defendants as executtors on account of the alleged misconduct of their testator, was held, to be indefinite and uncertain, by reason of the failure of the pleader to disclose the character of the trust undertaken by testator, or what were the duties and obligations which he assumed towards the plaintiff under such alleged trust.
    Appeal from an order denying a motion to make complaint more definite and certain, and to strike out allegations thereof as irrelevant and redundant.
    Alfred Jaretzki, for app’lts ; George C. Lay, for resp’t.
   BARTLETT, J.

The plaintiff seeks in this action to recover damages to the amount of S3,500,000 from the defendants, as the executors of one George F. Stone, deceased, on account of the alleged misconduct of their testator. The complaint attempts to set out two causes of action. It alleges, in substance, that the plaintiff was possessed of valuable interests in a firm known as William D. Marvel & Co; in a corporation called the Marvel Iron Company; as the owner of a railroad in Spain, constructed by him under a concession from Alfonso XII.; and also as the owner of certain valuable iron mines in the same country. It further alleges that in May, 1888, for the purpose of reorganizing the business of the Marvel Iron Company, and for the formation of a Hew York railway corporation which should take in the said Spanish railroad, and for the consolidation of the Marvel Iron Company with said railway corporation, the plaintiff entered into an agreement with George F. Stone and others, which provided, among other things, that the plaintiff should convey the said Spanish railway to the said George F. Stone in trust, to be by the said George F. Stone conveyed to a railway corporation to be organized by him, the whole of whose capital stock was to be delivered to him, and held by him in trust as trustee for the purposes of said reorganization, and for no other purpose; and which agreement also provided that 6,000 shares of the stock of the Marvel Iron Company should be delivered to the said George F. Stone, to be held by him in trust as such trustee for the same purposes. The complaint further alleged that the plaintiff executed powers of attorney authorizing the transfer of the Spanish railway property, and delivered the 6,000 shares of stock, and that subsequedtly the said George F. Stone, with intent to defraud the plaintiff, violated his trust, and committed breaches of trust, by taking possession of the stock and the railway property individually, and not as trustee, and appropriating the same to his own-use. The details of the manner in which this is alleged to have been done are then set out, and the statement of the first cause of action concludes with various specifications of the damages which the plaintiff claims, to have suffered. We think it is plain that this portion of the complaint is indefinite and uncertain, by reason of the failure of pleader to disclose the character of the trust undertaken by Stone, or what were the duties and obligations which he assumed towards the plaintiff under such alleged trust. The phrases, “for the purpose of reorganizing the business of the Marvel Iron Company,” and “for the purposes of said reorganization,” convey no idea whatever as to what Stone really undertook to do with reference to the various properties mentioned; or is there anywhere in the complaint anything to indicate how, if at all, the plaintiff was to-profit by any reorganization which might be effected. The defendant's motion should have been granted, therefore, so far as these matters are concerned.

The second cause of action alleges that in January, 1891, the plaintiff was the owner of a certain chronometer and other personal property of the value of $1,100. of which the said Géorge F. Stone wrongfully took possession, and which lie unjustly detained, to the plaintiff’s damage in that amount. This seems to us to be stated with sufficient certainty and definiteness.

So far as the application was directed against matter in the com* plaint as irrelevant or redundant, we see no occasion to interfere with the order below, especially as any substantial objections to the complaint on this ground may be obviated by the amendments necessary to make the first cause of action more definite and certain, as required by the views we have expressed.

The order appealed from should be reversed to the extent indicated in this opinion, and the motion granted so far as it seeks to have the complaint made move definite and certain by setting out in full the purposes of reorganization therein referred to, the terms of the trust assumed by the defendant’s testator, George F. Stone, and the duties and obligations undertaken by him thereunder.

All concur.


author: DALY, J.

text:
      Ambrose P. Hullar, as Assignee, etc., Resp't, v. Mary T. Wynne, App'lt.

      (Supreme Court, Appellate Division, First Department,

      Filed April 24, 1896.)
    1; Appeal—Conflicting evidence.
    The rule that the appellate term will not, ordinarily, disturb the decision of a justice of a district court upon conflicting evidence, applied.
    2. Same—Ruling on objection.
    An objection, not followed by a ruling or exception, does not show error.
    Appeal from a judgment in favor of plaintiff for recovery and costs.
    Joseph L. Keane, for app’lt; Mitchell Herschfield, for resp’t.
   DALY, J.

In the fall of 1892 the defendant to Morris Schwartz, who was carrying on business for his wife; the plaintiff’s assignor, as a furrier, two sealskin garments, one of which had been previously purchased from him for $225, and a mink garment, all to be repaired or altered. The garments were returned as finished, but were sent back to Schwartz for further alterations. When they were subsequently delivered, the defendant was compelled, as was claimed, to take them to another furrier, to have them put in order, at an expense of $75 ; and the sum of $30 was counterclaimed against the demand of the plaintiff.

The case presented a question of fact (1) as to whether there was, originally, a contract for a specified sum for the alteration and repairs; or, (2) in the absence of a special agreement, whether the labor and the material in the work were worth the sum charged; and (3) whether the work was properly performed by the plaintiff’s assignor, and whether she was chargeable with the expense subsequently incurred by the defendant. Upon these points the testimony was extremely conflicting, and presented a question which the justice determined in favor of the plaintiff, holding, in effect, that the work was properly performed, and was worth the sum sued for. Upon such a conflict of testimony, we are not warranted in disturbing the judgment. Upon the return as presented to us, it was a fair case for the exercise of judgment by the justice.

The exceptions to the admission and exclusion of testimony do not show error. The objection to the allowance of the question to plaintiff, “ What is the amount due T was not followed by a ruling or exception. The objection was, “ Objected to, unless he knows.” And the witness was not permitted to answer until he had testified that he did know. The objection to the question, <l Who is Ambrose P. Hullar?” was not followed by a ruling or exception, and the return shows no error. Inquiry as to the amount paid for the assignment was properly excluded.

The judgment must be affirmed, with costs.

All concur.


author: MERWIN, J.

text:
    Henrietta Church, Respt, v. Egbert S. Wright, App'lt.

      (Supreme Court, Appellate Division, Third Department,

      Filed April 14, 1896.)
    1, Adverse possession—-Tenant.
    The possession of a tenant in subordination to the title of the landlord continues not only during the running of the term, but is presumed to be such, and to remain unchanged, until twenty years after the end of the term, and notwithstanding any claim by the tenant or his successors of a hostile title, " "
    2. Same—Rebuttal.
    This presumption may be rebutted, but to do so effectively, and initiate an adverse holding, the tenant must surrender his possession to the landlord or do something equivalent to that and bring home to him knowledge of the adverse claim. ....
    8. Same.
    Judgment in ejectment for nonpayment of rent brought against a tenant by the landlord, does not terminate the lease or render the possession o£ the tenant adverse.
    The denial of a motion by the owner of a judgment for leave to issue an execution on the ground that the rent and costs have been paid, where the title of the plaintiff, or the existence of the lease or the right of possession of plaintiff or her predecessor was not adjudicated thereon or involved, is not material on the issue of adverse possession.
    6, Same.
    If the granting of such order was discretionary, its denial would not affect the rights of the parties in a subsequent action.
    Appeal from a judgment in favor of plaintiff, awarding to her certain land.
    W. & G. W. Youmans, for app’lt ; Hun & Johnston, for resp’t.
   MERWIN, J.

This is an action of ejectment, and by the judgment the plaintiff recovers the possession of about thirty-one acres, of which the defendant has been in possession since 1858. The main question here is whether the referee erred in holding that the defendant had not made out the defense of adverse possession. The action was commenced April 3. 1894. On the 13tb January, 1796, Stephen Van Rensselaer was the owner and in possession of a farm in the town of Berne, of which the premises in question are a part At that date Van Rensselaer and one Thomas Hayes mutually executed, sealed, and delivered an indenture called a manorial lease in perpetuity," which provided for the payment of certain yearly rent bv Hayes, his heirs and assigns, and gave to Van Rensselaer, his heirs and assigns, in the usual form, the right to re-enter for nonpayment of rent Hayes entered into possession under the lease. On the 29th March, 1858, John Youngs, by warranty deed, conveyed to the defendant in this action forty-seven acres, part of the original farm, which included the premises here recovered. In this deed, after the description, there was the following clause : “ Subject only to all demands that may be made a lien thereafter by Stephen Yan Rensselaer or his heirs from this date.” On the 18th day of April, 1864, Stephen Yan Rensselaer, son of the original grantor, and who had become the owner of all his rights in the property and the covenants and conditions in the deed, commenced in the supreme court an action of ejectment against the defendant, Wright, to recover the possession of the farm, for and by reason of a breach of the covenant for the payment of rent, and on the 24th November, 1866, a judgment was duly entered awarding to the plaintiff therein the possession of that part of the farm of which Wright was in possession under said lease, and which was the same covered by the deed from Youngs. On the 2d May, 1864, Stephen Van Rensselaer transferred all his interest in the property and covenants to James Kidd and Peter Cagger, and on the 8th July, 1878, Walter S. Church became the owner of the same, and thereafter, and before the commencement of this action, the plaintiff became the owner of the same. It is found by the referee that no rent has been paid for or on account of the premises here recovered since 1858; that at the time of the commencement of the action the defendant, was in the actual occupation of the same under said lease; that the defendant entered into possession thereof under a claim of title, exclusive of any other right, founding said claim upon the deed from Youngs as being a conveyance thereof, and had been in the continual possession thereof under the same claim ever since the year 1858. As matter of law the referee found that the judgment of 1866 terminated the lease, and that after the entry thereof no rent accrued upon or under the lease, and that the evidence failed co establish an adverse possession for twenty years by the defendant as against the plaintiff.

It is very clear that the possession of the defendant was subservient to the lease, at least down to the time of the entry of the judgment in 1866. It had been recognized by him in a deed of a portion of the premises in 1858. The presumption was that he was in under the lease. Bradt v. Church, 110 N. Y. 537; 18 St. Rep. 551. That such was the fact is in substance conceded. It is, however, claimed by the defendant that by the judgment the lease was terminated, and that at the date of its entry an adverse possession by the defendant commenced to run, which, after the lapse of twenty years, formed for him a perfect defense. The claim of the plaintiff is that, if the lease was terminated by the judgment, the plaintiff is entitled to the benefit of the provision of section 373 of the Code of Civil Procedure, and that adverse possession would not commence to run as against the plaintiff until the expiration of twenty years thereafter, and so had not continued for twenty years before the commencement of this action. Section 373 is as follows:

‘Where the relation of landlord and tenant has existed between any persons, the possession of the tenant is deemed the possession of the landlord, until the expiration of twenty years after the termination of the tenancy; or, where there has been no written lease, until the expiration or twenty years after the last payment of rent; notwithstanding that the tenant has acquired another title, or has claimed to hold adversely to his landlord. But this presumption shall not be made, after the periods prescribed in this section.”

This section has received judicial consideration in several cases, Whiting v. Edmunds, 94 N. Y. 309; Bedlow v. Dock Co., 112 id, 265; 20 St. Rep. 707; Church v. Schoonmaker, 115 N. Y. 570; 26 St. Rep. 779; Hasbrouck v. Burhans, 42 Hun, 376. These cases support the proposition that under the section referred to presumptively adverse possession does not commence to run until twenty years after the expiration of the tenancy. The defendant, therefore, to sustain his view, must show something more than a simple termination of the tenancy. In the Whiting Case, 94 N. Y. 314, it is said:

“ The possession of the tenant in subordination to the title of the landlord continues not only during the running of the term, but is presumed to be such, and to remain unchanged, until twenty years after the end of the term, and notwithstanding any claim by the tenant or his successors of a hostile title. Code, § 86; Code Civ. Proc. § 373. This presumption may be rebutted, but to do so effectively, and initiate an adverse holding, the tenant must surrender the possession to the landlord, or do something equivalent to that, and bring home to him knowledge of the adverse claim. 1 Washb. Real Prop. (3d Ed.) 492; Jackson v. Stiles, 1 Cow. 575; Thayer v. Society of United Brethren, 20 Pa. St. 62; Towne v. Butterfield, 97 Mass. 105.”

Has the defendant met the requirements of this rule? The referee, in effect, finds that he has not. The defendant argues that the act of the plaintiff or her predecessor in entering the judgment was of such a character that necessarily thereafter the possession of the defendant was adversé. It is to be observed that the action was ejectment fdr the nonpayment of rent. In such an action, under the law as it then stood (1 Rev. St. pt. 3, c. 8, tit. 9, §§ 32-34), the tenant, at any time before judgment, could, by the payment of the rent in arrear and the costs, stop all further proceedings in the cause. If at any time after the judgment, within six months after possession of the premises had been taken by the landlord under any execution issued upon the judgment, the tenant paid or tendered the rent in arrear at the time of such payment and the costs, all further proceedings in the cause ceased, and “ such premises shall be restored to the lessee, who shall hold and enjoy the demised premises without any new lease thereof, according to the terms of the original demise.” In case the rent in arrear and costs remained unpaid for six months after execution, then the lessee and his assigns, and all other persons deriving title under him, were barred of all relief in law or equity, and the landlord thenceforth held the jpremises free and discharged from the lease. Such being the character and effect of the judgment and the rights of defendant thereunder, it is apparent that the cpntinuance by defendant in possession was not necessarily hostile to the rights of plaintiff or her predecessor, and would not of itself initiate adverse possession. It would not indicate that the defendant repudiated all right or claim of the plaintiff. The entry of the judgment did not bar the defendant, and the plaintiff therein never obtained execution on his judgment, and never obtained possession under it. The defendant, for aught that appears, never relinquished his right to redeem, and as late as 1888 it appeal’s that on a motion for leave to issue execution the defendant claimed that the judgment, rent, and costs had been fully paid and satisfied. As the judgment was never executed, and the defendant neyer relinquished his right to redeem, I see no basis for the argument that as matter of law defendant’s adverse possession should be deemed to commence at the date of the entry of the judgment. It is not, I think, clear that the lease was terminated by the unexecuted judgment of 1866. If it was not, the defendant here has no defense to the present action. His adverse claim, such as it was, was founded on a conveyance that recognized the lease. Besides, his status was fixed by the judgment. If that operated to terminate the lease, no good reason is apparent for relieving the defendant from the effect of section 373, Code Civ. Proc. He never surrendered the possession to the landlord, nor did anything equivalent to it.

The defendant offered to show that in November, 1888, a motion was made by the owner of the judgment of 1836 for leave to issue execution, and that this motion' was, on appeal to the general term, denied. It was not suggested that the title of the plaintiff, or the existence of the lease, or the right of possession of plaintiff or her predecessor was adjudicated upon or involved. If the question was whether the defendant had actually or presumptively paid the rent Van Rensselaer v. Wright, 56 Hun, 39; 29 St. Rep. 469, and so relieved himself from the judgment, that would not be important for defendant on the issues here. If the granting of the order was discretionary. Id., 121 N Y. 626; 31 St. Rep. 897, its denial would not affect the rights here. It is not apparent that any error was committed in excluding the offered evidence. No other question needs to be specially considered. The judgment should be affirmed. Judgment affirmed, with costs,

concur, except LANDON, J., dissenting.


author: VAN BRUNT, P. J.

text:
    Robert J. Mills, App'lt, v. Elizabeth McMullen et al., as Administrators, etc., Resp'ts.

      (Supreme Court, Appellate Division, First Department,

      Filed April 17, 1896.)

    1. Evidence—Books ok account.
    The testimony of a witness, based solely upon entries made in his books which were not made by him, is properly stricken out.
    8. Same—Presumption.
    The giving of a check is presumptively the payment of a debt, and, to raise the presumption that it was a loan, additional proof is required to be given.
    3. Same—Payment.
    Entries on stubs in plaintiff’s check book, in his own interest, are not admissible to rebut presumption that checks were given in payment of the debt.
    Appeal from a judgment dismissing the complaint,
    George H. Starr, for app’lt.
   VAN BRUNT, P. J.

This action was brought to recover the sum of $1,500 alleged to have been loaned by the plaintiff to the defendant John Curran. The defendant answered denying each and every allegation of the complaint. Before the trial, the defendant Curran having died, his administrators substituted as defendants.

Upon the trial it was endeavored to prove the loan of the moneys by the plaintiff to the defendant Curran, by establishing the fact that the plaintiff had given to the defendant Curran checks ior a certain amount; and a witness by the name of Dahlman was called, who testified that he had had transactions with Curran by •selling horses to him, for which Curran made payments during the year 1888; and a check for $400 was presented to the witness, and he stated that the indorsement thereon was made by Curran, and that the check was received by his firm in payment for hoi'ses and was placed to the credit of Curran upon the firm books,which the witness produced. It appeared, from the evidence, that the witness had no recollection whatever of the transactions with Curran, outside of the entries in his books, and that these entries were not made by him. A motion was thereupon made to strike out all the testimony of the witness, except as to the fact that he had the check in his possession, and that it was indorsed by the defendant Curran. This motion was granted, and it is claimed to be error; it being now urged that the objection to the receipt of the entries in the book as evidence did not go to the point that their accuracy was not sufficiently shown, or that sufficient foundation had not been laid, for their introduction, and that, if that had been the objection, it might have been cured by the introduction of further preliminary proof.

It is difficult to see how, in connection with the téstimony of the Witness, any of the entries in these books could possibly be ¡gyidence. No witness had been sworn or examined who had any personal knowledge of these transactions, or who made the entries' in the books and could testify as to their accuracy. The motion was directed entirely to the testimony of Dahlman, and as to what he learned from the books in respect to transactions about which he had no recollection; his testimony being based upon entries in the books, as to the correctness of which he had no knowledge. The books were not offered in evidence, but the testimony of Dahlman was given, and that was stricken out. There' seems to have been no error whatever in striking out all of Dahlman’s testimony, except that which related to the possession o£ the check and its indorsement by Curran. And it is to observed that, even if the testimony of Dahlman were allowed to remain, it could not have affected the case at bar. The fact that the plaintiff-gave Curran the check, and that Curran gave the check to Dahlman, proved nothing. The case of Nay v. Curley, 113 N. Y. 575; 23 St. Rep. 496, expressly hold that the giving of a check is presumptively the payment of a debt, and to raise the presumption that it was a loan, additional proof is required to be given. This rule was recognized by the connsel for the plaintiff when he attempted to introduce in evidence the stub in the plaintiff’s check book upon which stub was the following memorandum: “Dated May 22, 1888, order of John Curran, for loan.” This was sought to be introduced as part of the res gestas, as is claimed.But it is difficult to see upon what theory the entries in the plaintiff’s own book, in his own interest, could possibly be evidence against John Curran. It might just as well be claimed that, if somebody had been standing by at the time the plaintiff drew liis check, Curran being absent, and the plaintiff had told the bystander that he drew the check for a loan to Curran, such declaration could be used as evidence against the latter. It is clear that no such declaration of the plaintiff could be offered in evidence under such circumstances, and the entry in his check book is of precisely similar character. In considering this question, we have not overlooked the case of Bank v. Madden, 41 Hun, 116. But no such question was decided in that case, and it is not an authority for any such proposition.

The above views dispose of the objection to the ruling in regard to the stubs relating to the other checks. It is conceded by the counsel that, in respect to the admissibility-of these stubs, they stand upon the same footing as that of the check first above mentioned. Hone of the authorities cited by the appellant seem to sustain any such proposition as is contended for here.

The judgment and order appealed from should be affirmed with costs.

All concur.


author: BROWN, P. J.

text:
    Herman F. Koepke, as Committee, etc., Resp't, v. Lucy B. Bradley et al., Def'ts. Louis Dreyer, App'lt.

      (Supreme Court, Appellate Division, Second Department,

      Filed April 28, 1896.)

    1. Judicial sale—Basement.
    The sale of property is presumed to have been made subject to an open and visible easement of a railroad.
    8. Lunatic—Committee. i
    The committee of a lunatic may maintain an action for the partition of real estate in his own name, adding his official title, without making the lunatic a party to the action.
    Appeal from an order denying a motion by the purchaser to be discharged from the purchase.
    Max Klein for app’lt; William P. Picketts, for resp’ts.
   BROWN, P. J.

The objection made by the appellant, that the title to the property was incumbered with a consent or release given to the Brooklyn Elevated Railroad Company, is answered by the decision of the general term of this department in Webster v. Trust Co., 80 Hun, 240; 62 St. Rep. 112. It must be assumed that the sale was made subject to the open and visible easement of the railroad. The other objections made by the appellant to the title will be disposed of in considering the question whether a committee of a lunatic may maintain an action for the partition of real estate in his own name, adding his official title, without making the lunatic a party to the action. It may be assumed that, prior to the enactment of the Code of Civil Procedure, such an action could not be maintained; that the only way in which legal partition could be made of property in which a lunatic was seised of an undivided share, except by an agreement between the committee and other tenants in common, was to make the lunatic an actual party to the action. It was so decided in Petrie v. Shoemaker, 14 Wend. 85; Burnet v. Bookstaver, 10 Hun, 481; and in Gorham v. Gorham, 3 Bar. Ch. 25-40,—and we have no reason to disagree with those decisions. The last ease cited was an action for the partition of land, and was brought by the committee of an habitual drunkard, in his own name, without joining the drunkard as plaintiff, or making him a defendant to the action. While that ease was pending the legislature enacted chapter 112, Laws 1845, and empowered committee's of lunatics or habitual drunkards to sue in their own names for any debt, claim, or demand transferred to them, or to the possession or control of which, as such committees, they were entitled. This provision was re-enacted in 1874 (chapter 446, tit. 2, § 5), and was the sole statutory authority for committees to sue in their own name, until the enactment of the Code of Civil Procedure. It was there provided (section 2340) that a committee might maintain in his own name, adding his official title, any action or special proceeding which the person with respect to whom he is appointed might have maintained if the appointment had not been made.” In his note to this section, Mr. Throop says that it is the provision of the act of 1874 “amended so as to embrace cases where a remedy is pursued,” The law existing when the Code was passed authorized committees to sue only in cases relating to personal estate. The language of the Code is broad enough to embrace an action relating to real estate, and must, I think, be given that effect, unless some substantial reason exists why its application should be limited to cases relating to personal property.

The appellant has cited but one case to sustain his contention, —Skinner v. Tibbitts, 13 Civ. Proc. R. 370. That was a decision by a single judge, made in an action of ejectment brought in the name of the incompetent person. The defendant contended that it should have been brought in the name of the committee, and urged that section 2340 was mandatory. The court held that it was permissive only, and, in the course of the opinion, stated that it was not applicable to actions in relation to real estate. No reasons are given for that opinion, and the question now raised was not presented for decision on the facts of the case. I can see no reason why section 2340 of the Code should not be held to apply to' actions in relation to land. It is true that a committee of an incompetent person has no title to the latter’s real estate, and that he is its custodian merely, and is the representative of the court, and has no independent power to dispose of it. But it is equally true that the incompetent person is the ward of the court, that his person and estate are under its control, and that the sale of the lands of the incompetent person, and the time and manner of such sales, are subjects within the direction of the legislature. Provision has been made by statute for the sale of real estate of incompetent persons upon the petition of the committee, and the committee may, with the approval of the court, agree to an actual partition or a sale of real estate in which the incompetent person has an undivided share. Such undivided interest may also be sold in partition actions brought against the incompetent person, and I know of no reason why an action may not be maintained for partition of land, in the name of an incompetent person, by his committee, against other tenants in common. Such is the import of the chancellor’s opinion in Gorham v. Gorham, supra. His conclusion that a decree in partition would not transfer the legal title of the incompetent person was based upon the fact that a committee was not authorized to maintain such an action, either by statute, or by the practice of the court of chancery. The statutory authority is now supplied in the section of the Code referred to. In the proceedings instituted by the petition of the committee, and in cases of actual partition by agreement, the incompetent person does not appear on the record, but is represented before the court by his committee. In other cases he appears, and acts through his committee. Actually naming the incompetent person as a party on the record is a matter of form only. In such a case as the present one, nothing is gained by making the lunatic the plaintiff. His rights are fully protected by his committee, and no¡ sale can be made except pursuant to the direction and judgment of the court. That the legislature may authorize actions affecting the real estate of incompetent persons to be maintained by or against his committee admits, I think, of no doubt. And the question before us, therefore, is one solely of the construction of the section of the Code referred to. That the legislature, in adopting this section, intended to enlarge the powers of committees in respect to bringing actions on behalf of lunatics and other incompetent persons, is very clear, and it has prescribed the limitation upon that power. The test is, could the lunatic have maintained ,the action if the committee had not been appointed ? As that test is fulfilled in this case, we are of the opinion that the court had jurisdiction of the subject matter of the action, and that the judgment was properly granted; and the order appealed from, must be affirmed, with costs.

All concur.


author: PRATT, J.

text:
    Christina Donnelly, as Administratrix, etc., App'lt, v. New York and Harlem Railroad Company, Resp't.

      (Supreme Court, Appellate Division, Second Department,

      Filed April 23,1896.)

    Mastbb and servant—Appliances
    In the absence of proof to show that the railroad or the car or the track was out of order, the company is not chargeable with negligence in permitting a switch to be open, where it was in perfect order and of the same pattern of switch as is used by other street railroad companies and there is no evidence to show how the switch came to be opened.
    Appeal from a judgment dismissing the complaint.
    Irving Brown, for app’lt; Charles C. Paulding, for resp’t.
   PRATT, J.

This action was brought to recover damages for the death of Edward Donnelly, plaintiff’s intestate, upon Eighty-Fifth street, in the city of New York, June 11, 1894. The allegations of negligence set forth in the complaint are that the defendant- permitted its switch in Eighty-Fifth street to remain open without proper attention, that defendant did not provide at said place a switchman to attend to such switch during the da}*-, in not providing a proper and safe switch at said place, and in not keeping the same in good condition, closed and fastened. Defendant denies that the accident occurred bjr reason of any negligence on the part of the defendant, and alleges that the negligence of Edward Donnelly, or that of a competent fellow servant, caused the accident.. At the time of the happening of this accident Edward Donnelly was a horse-car driver, employed by the New York & Harlem Railroad Company. On June 11,1894, he was the driver of a car which ran from Madison avenue and Eighty-Sixth street :to Eighth avenue and Eighty-Fifth street, going west. On Eighty» Fifth street there were switches leading from the main track of defendant into its stable, and, while the car driven by Donnelly was passing over these switches, it jumped the track, and Donnelly fell over the car, and was killed. The switch at* the time was turned so as to turn the car into the stable, although, five minutes before the accident, a Second avenue car, going west through Eighty-Fifth street, had passed over the same switches in safety, and cars had been going west, and passing over the switch every three minutes, since 8 o’clock in the morning. The switch was a “ standard switch,” which swung from right to left, and, when set, was secured by an iron plug and a rubber. It was closed that morning, and cars were going over it all the morning. During the day the switch was not" open at all. It was in use only in the morning to take out cars, and in the evening to put in cars, and during the day was closed, and secured by the iron plug. The same pattern of switch is used by other street-railroad companies.

How this switch happened to be connected at this time with the railroad, so as to turn the car to the right, towards the stable, does not appear. Undoubtedly, the switch was either turned, so as to connect and turn the car off, by some fellow servant of the plaintiff, or by accident the plug got out, so as to allow the switch to move. The device for switching off the car towards the street was in perfect order, had been in use that morning, and was in use afterwards. The car, turning suddenly to the right, threw the plaintiff off of the platform, and over the dashboard, or to one side, and he was killed. There is no theory upon which this action can be maintained. If he was thrown off from the car by the sudden turning or the car, the risk of his being thrown from the car was what he assumed by accepting the employment. If the switch was turned by a fellow servant, that no liability was incurred by the company is too well settled to require citation of authority. No proof whatever was offered to show that the railroad or the car or the track was out of order, which caused the accident. The defendant was under no obligation to keep a man at this point to watch all the time, but only while the switches were in use, to take the cars out and in to the stable. It does not appear in what manner Donnelly was driving, whether slow or fast, whether he observed the track to see if the switch was open or closed, whether he saw the open switch and regulated his conduct accordingly, or whether seeing it he attempted to drive past it. There was a failure to prove any negligence upon the part of the defendant.

Judgment affirmed, with costs.

All concur.


author: BISCHOFF, J.

text:
    Frederick Lowey, Resp't, v. Fidelity Surety Company, App'lt.

      (Supreme Court, Appellate Term, First Department,

      Filed April 27, 1896.)

    Witnesses—Credibility.
    Where the only evidence of plaintiff’s claim is to be found in the testimony of himself and his brother who is a stockholder in, and part owner of a corporation whose assets, or the proceedings of the sale of such assets, are applicable to the payment of the company’s debts with Which it is sought to charge defendant, if the effort to charge the defendant with such debt should prove unavailable, the credibility of the witnesses is to be determined by the jury, notwithstanding that such credibility may not have been directly assailed or impeached.
    Appeal from a judgment of the general term of the city of New York, affirming a judgment in favor of plaintiff on a verdict directed by the court.
    Jonathan C. Ross, for app’lt; T. B. Wakeman, for resp’t.
   BISCHOFF, J.

In this action, the plaintiff sought to charge the defendant corpoaation with certain liabilities upon transactions had in the year 1891, between him and another corporation, the Lowey Printing and Stationery Company, upon the grounds (1) that the defendant has succeeded to the rights and assets of the Lowey Company, and (2) that, upon a sale of such assets to the defendant, it was contractually assumed to pay the Lowey Company’s debts. A verdict for the plaintiff was directed at the trial, against the defendant’s objection, áiiu, to the ruling, due exception ears in the record.

t is clear that the court below entertained the action upon no other ground than the one last above alluded to. It was not even attempted to show that the defendant was the Lowey Company reorganized or consolidated with another corporation, pursuant to the provisions of the business corporation laws (Laws 1890, c. 567, §§ 5, 13, 17), in either of which events only the new corporation would assume the liabilities of the former by operation of law (Thomp. Corp. § 365, etc.) and if, by succession to the rights and assets of the Lowey Company alone, the defendant, to that extent, was bound for the debts of its predecessor, for purely equitable reasons, the court, being without the jurisdiction of a court of equity, could not render the judgment appealed from.

We do not deem it essential, upon this appeal to go into the facts touching the claims against the Lowey Company, although there is room for contention as to whether the plaintiff’s first cause of action could prevail upon the evidence adduced. In our view, the judgment is well assailed, for the error which appears from the exception taken to the trial justice’s withdrawal of the case from, the jury. No motion was made by the defendant’s counsel, after both sides had concluded the introduction of evidence, either for dismissal of the complaint, or for the direction of a verdict. It cannot therefore be urged that the defendant consented to a determination of the facts by the court. Its liability in this action,, as well as the facts, was contested by the defendant, by answer and upon the trial. The only evidence, if any, of an assumption by the defendant of the Lowey Company’s liabilities is to be found in the testimony of the plaintiff and of his brother William Lowey, called as a witness in the former’s behalf; and so with regard to the evidence of the value of the chattels claimed to have been converted. Both witnesses were interested in the event of the action j the plaintiff obviously so, and his brother as a conceded stockholder in, and part owner of, the Lowey Company, Canajo harie Nat. Bank v. Diefendorf, 123 N. Y. 191, 200; 33 St. Rep. 389, its whose hands the assets of the last named company, or the proceeds of the sale of such assets, were applicable to the payment o£ that company’s debts if the effort to charge the defendant with debts should prove unavailing. The credibility of these witnesses, therefore, was to be determined by the jury, notwithstanding that such credibility may not have been directly assailed or impeached. Elwood v. Telegroph Co., 45 N. Y. 549; Wohlfahrt v. Beckert, 92 id. 490; Cady v. Bradshaw, 126 id. 188; 26 St. Rep. 518; Canrjoharie Nat. Bank v. Diefendorf, 123 N. Y. 191, 200; 33 St. Rep. 389; 29 Am. & Eng. Enc. Law, 774.

Errors also appear in the admission and exclusion of evidence. It would be supererogatory, however, to discuss them, since they may not occur upon a retrial of the action, and reversal of the judgment appealed from is imperative upon the error hereinbefore pointed out. ¡

The judgments of the general and trial terms of the court below are reversed, and a new trial is ordered, with costs to the appellant to abide the event.

All concur.


author: HATCH, J.

text:
    C. Louis Pierson, Jr., Resp't, v. Louis K. Fries, App'lt.

      (Supreme Court, Appellate Division, Second Department,

      Filed April 28, 1896.)

    1. Courts—Inferior local.
    Inferior local courts of civil and criminal jurisdiction must, by chapter 182 of 1892, be in fact limited in the exercise of the jurisdiction to the locality where they exist.
    2. Same—Constitutional law.
    This act. in attempting to vest the court with power to cause its process to run into any place in the county of Westchester, and to authorize its order in supplementary proceedings to be served in like manner, is in clear conflict with the Constitution, and is, therefore, to that extent void.
    Appeal from an order adjudging defendant guilty of contempt of court for failure to pay an order, in supplementary proceedings, commanding him to appear before a referee and be examined concerning his property.
    Theodore M. Hill, for app’lt; Frank A. Bennett, for resp’t.
   HATCH, J.

The present appeal challenges the constitutionality of act by city court jurisdiction to make the order appealed from. This court was created by act of the legislature (Laws 1892, c. 182) as a local and inferior court, in virtue of the power conferred by section 19, art. 6, of the constitution in force when the act was passed, which authorized the legislature to establish inferior local courts of civil and criminal jurisdiction. The acts provides that the court shall have no jurisdiction of an action unless one of the parties thereto reside in the city of Mt. Vernon. Section 60 reads:

“The summons in an action brought in the said court may be served at any place within the county of Westchester, but not elsewhere.”

By section 111, concurrent jurisdiction is given, where a transcript of the docket of a judgment of the city court is filed in the office of the clerk of the county, with the county court, of proceedings to enforce the judgment.

The power of the legislature respecting the jurisdiction which may be conferred upon courts created under this article of the constitution has been clearly defined, and no longer presents a debatable question. These courts must, by the act creating them, be in fact limited in the exercise of jurisdiction to the locality where they exist. The provisions of the act above quoted clearly exceed the legislative power in this regard, as has been judicially declared many times.

In Geraty v. Reid, 78 N. Y. 64, the court, in speaking of this question, said:

“The only authority conferred is to establish local and inferior courts. The jurisdiction of a local court must be exercised within the locality, and its process cannot be executed outside of it. Whatever power constitutionaLjustice of the peace may possess to send their process into adjoining towns, no local court, created under the clause referred to, could be vested with that power.”

In Carroll v. Langan, 63 Hun, 380, 44 St. Rep. 224, the court said:

“If the legislature could confer upon the recorder power to act beyond his local. jurisdiction in supplementary proceedings, it could confer power to act in all counties of the state in other proceedings.”

Under the present act, the attempt is made to confer upon the court, in the cases specified in the act, the right to exercise power and assume jurisdiction of the action, wherever arising, subject, only, to the exception that one of the parties 'shall reside in the city of Mt. Vernon and that process shall be served within the county of Westchester.

In the present case, the judgment, upon which the proceeding which led to the order appealed from was based, was recovered upon a contract made in the county of Hew York, between the parties hereto. The defendant resided in the town of New Rochelle, in the county of Westchester. The summons and complaint were served upon him at the latter place. He did not ap= pea? in_the_aption, and judgment passed against him by default. The order in supplementary proceedings, to appeal* and he examined, was also served upon the defendant at the same place. It is therefore apparent.that the city court of Mt. Vernon never acquired jurisdiction of the person of the defendant or the subject-; matter of the action, and no valid judgment was ever rendered against him in this action. The act, in attempting 'to vest the court with power to cause its process to run into any piece in the county of Westchester, and to authorize its order in supplementary proceedings to be served in like manner, is in clear conflict with the constitutional provision, and -is therefore to that extent void. Petterson v. Welles, 1 App. Div. 9; Landers v. Railroad Co., 53 N. Y. 450; Anderson v. Reilly, 66 N. Y. 189 ; Village of Deposit v. Vail, 5 Hun, 310.

It follows that the order appealed from sho.uld be reversed» with $10 costs and disbursements.

All concur.


text:
    Davis Katz, App'lt, v. Jacob Diamond, Resp't.

      (Supreme Court, Appellate Term, First Department,

      Filed April 27, 1896.)

    1. Troves and Conversion—Who mat sue.
    One having the possession of goods by agreement with the owner, either upon contract of sale to himself, or for the purpose of selling to third parties upon his own account, may maintain an action for conversion, or to recover the possession of the goods against a person who unlawfully retains or receives them. Where there is a conditional sale of goods, to be paid for in installments, the goods to be surrendered on default in any installment, refusal to deliver on demand must be shown, in order to maintain an action for conversion, unless there has been actual conversion by defendant.
    3. Costs—Appeal—Dismissal of Complaint after Default.
    In an action in a district court, where an inquest was taken for default in appearance by the defendant, and the justice dismisses the complaint, the remedy is by appeal; but whether the judgment is reversed, anda new trial is ordered, or the judgment is affirmed, no costs will be allowed, there being no respondent.
    Appeal from a judgment dismissing the complaint without prejudice to a new action, and without costs.
    E. Rosenthal, for app’lt.
   DALY, J.

In this case the plaintiff sued for conversion of furniture, by defendant, which had been sold to him by plaintiff, to-be paid for on installments, under an agreement that the title was not to be acquired by him until all the installments were paid, and that he was to surrender the goods on failure to pay any installment. The defendant did not appear nor answer, and the plaintiff proceeded to take an inquest. It appeared that the plaintiff was described in the contract of sale as manager of the Hew Installment Company. The written agreement of the defendant was to surrender the goods to the firm, or its agent or manager. The plaintiff was examined on the inquest, and swore that he was owner of the goods, and had bought them and paid his money for them ; but, on examination by the justice, lie gave evidence from which at might be inferred that he had himself purchased the property from one Tanscn under an agreement somewhat similar to that on which he sold to the defendant, L e. that the title should not pass until the goods were paid for. Upon this evidence the justice, as appears from his memorandum in the return, dismissed the complaint without prejudice to a new action, “because of failure of proof of ownership of the goods.”

In order to maintain an action for a conversion of goods, or to recover them, proof of ownership is not necessary. Possession, or the right to possession, suffices. “To recover in trover, there must have been possession of the property by the plaintiff, or there must be an existing right to take immediate and aotual possession.” Petrie v. Stark, 79 Hun, 550, 554; 61 St. Rep. 569. “ A carrier, bailee, or the person who finds a chattel, has, in regard to his possession, sufficient property to entitle him to maintain the action.” Hotchkiss v. McVickar, 12 Johns. 403. “Absolute unqualified ownership is not necessary in order to authorize a person entitled to the possession of property to sue for its .conversion. A person entitled to the temporary possession of chattels for a particular purpose may maintain such an action.” Phillips v. McNab, 16 Daly, 150 ; 30 St. Rep. 853. The fact that the plaintiff has executed a mortgage upon his interest, and that the mortgage is overdue, does not prevent him from maintaining an action for conversion, where it does not appear that the mortgagee had ever demanded the money or taken possession of the property. Burns v. Winchell, 44 Hun, 261.

If the plaintiff in this case, by agreement with the owner of the goods, was entitled to possession under a contract of sale to himself, or for the purpose of selling to third parties upon his own account, he might maintain an action for conversion, or to recover possession, against a person who unlawfully retains or receives them. The defendant in this action, while entitled to possession, could have maintained such an action against a stranger,and oven against the plaintiff, for any unpermitted disturbance of his possession. 4 Am. & Eng. Enc. Law, 117. So, when his right to possession as against the plaintiff was gone, he was liable to an action by’ the latter, who had become entitled to repossess himself of the goods.

The judgment will, however, have to be affirmed, because there was no proof either of failure to pay any installment or of demand of the goods from the defendant before bringing the action. The original possession of the defendant was lawful because it was by agreement with the plaintiff, and to make it tortious there must be a default of payment and a refusal to deliver after demand. "Where there has been no actual conversion by defendant, demand, is necessary before an action for conversion can be maintained.

I had some doubt as to whether the remedy of the plaintiff, if aggrieved, was by appeal, since there is no respondent, and the controversy of the appellant is with the court below, and not with m adverse party, as no adversary appeared on the trial 03? upptt this appeal, Hayes v. Gas Co. (N. Y. App.) 37 N. E. 648. But the plaintiff would, be remediless if not entitled to an appeal; for a mandamus, as suggested in the case last cited, would not lie to compel the j ustice to decide in a particular way. “The only mode of reviewing a judgment rendered by a justice of the peace in at civil action is by an appeal as prescribed in this title.'' Code, § 3044.

The judgment is affirmed, but without costs, as there is no respondent. Had the judgment been reversed, and a new trial ordered, no costs would have been allowed for the same reason. Costs, where new trials are allowed, are in the discretion of the court, and where judgments are affirmed costs are allowed to the respondent. If there be no respondent, there can be no_ allowance of costs. Code, 3066, 3213.

Judgment affirmed, without costs.

All concur.


author: PUTNAM, J.

text:
    Lewis A. Dumond, App'lt, v. Charles L. Baker et al., Resp'ts.

      (Supreme Court, Appellate Division, Third Department,

      Filed April 14, 1896.)

    1. Mortgage—Foreclosure—Parties.
    In an action to foreclose a mortgage, one who claims adversely to the mortgagor, cannot properly be made a party defendant for the purpose of trying the validity of such adverse claim or title.
    2. Same—Sheriff’s deed.
    A conveyance by a sheriff of real estate sold under execution, no matter how long it is executed after the time to redeem, relates back to that period.
    Appeal from a ¡judgment in favor of egrtain defendants, ren-j dered upon the report of a referee.
    W. & G. W. Youmans, for app’lt; Hun & Johnston (Marcus T. Hun, of counsel), for resp’ts.
   PUTNAM, J.

The plaintiff brought this action for the foreclosure of a bond and mortgage executed on the 6th day of gust, 1874, by one Ferdinanda Baker to Merritte A. Baker, as-' signed to him on January 3, 1876, making the defendants Charles Spotholds, Mrs, Charles Spotholds, and Henrietta Church, as par-., ties who had or claimed to have some interest in the mortgaged premises, which accrued subsequently to the lien of the mortgage.' The defendants, in their answer, admitted that they claimed an interest in the premises in question, but denied that it accrued subsequently^ the execution of the said mortgage. Among his conclusions of fact the referee found “ that the evidence fails to establish that prior to or at the time of the commencement of this action either the defendant Charles Spotholds or Henrietta Church had or claimed to have any interest or lien upon said mortgaged premises, or any part thereof, which had accrued subsequently to the lien of said mortgage,’’ and he directed a judgment in favor pf said defendants dismissing the complaint, from which the plaintiff has appealed. If the above finding of the referee was supported by the evidence, the judgment directed in favor of the defendants cannot be disturbed. Fire Co. v. Lent, 6 Paige, 635; Corning v. Smith, 6 N. Y. 82, and cases cited; Holcomb v. Holcomb, 2 Barb. 20; Fifth Ave. Bank v. Cudlipp, 37 Supp. 248, and cases there cited. These authorities hold that in an action to foreclose a mortgage one who claims adversely to the mortgagor and mortgagee and prior to the mortgage cannot properly be made a party defendant for the purpose of trying the validity af such adverse claim or title. In Ruyter v. Reid, 121 N. Y. 498 ; 31 St. Rep. 387, it was shown that the title under which the defendant claimed was under conveyances subsequent to the execution of the mortgage. In this case it appeared that the bond and mort'gage set out in the complaint were executed on the 6th dav of August, 1874. The defendants Spotholds were tenants of Henrietta Church. Her claim of title was under a judgment obtained on the 1st day of February, 1855, in favor of one Stephen Yan Rensselaer against David Baker, then the owner of the premises in question, and under whom the party who executed the mortgage sought to be foreclosed claimed title. Under the judgment aforesaid the said premises were sold by the sheriff of Albany county on January 30, 1865, to James Kidd and Peter Cagger, the certificate of sale being recorded in the clerk’s office of Albany county on February 6, 1865. A deed was thereafter—in December, 1885—executed to Walter S. Church, deceased, who had succeeded to the rights of said Kidd and Cragger in said premises, by Lemuel H. Rodgers, as undersheriff of said county. The defendant Henrietta Church claimed an interest in said premises under said judgment, sheriff’s certificate of sale, deed from the undersheriff, and a devise in the will of said Walter S. Church, The referee found “ that at the time of the commencement of this action the defendants Charles Spotholds, Mrs. Charles Spotholds, and Henrietta Church claimed an interest in said premises under and by virtue of said judgment, the sale and conveyance thereunder, and the devise contained in the will of said Walter S. Church.” It is an established principle that a conveyance by a sheriff of real estate sold under execution, no matter how long it is executed after the time to redeem, relates back to that period. Reynolds v. Darling, 32 Barb. 418; Cook v. Travis, 20 N. Y. 400-402; Holman v. Holman, 66 Barb. 215-220; Wright v. Douglass, 2 N. Y. 373. As the sheriff’s deed to Walter S. Church executed in December, 1885,. under which the defendant Church claimed, related back to the sheriff’s sale, and was, under the statute, valid and effectual to convey all the right, title, and interest which was sold by him on the 30th day of January, 1865, we are of the opinion that the findings of fact by the referee above set out were not erroneous. The defendant’s claim was under a title which accrued in 1865 on the execution and filing of the sheriff’s certificate of sale, about nine years before the execution of the mortgage in question. But the plaintiff insists that, as his mortgage was executed in 1874, over ten years after the recording of said certificate of sale, and long prior to the execution of the sheriff’s deed to Walter S. Church, such deed was void as to the mortgagee (Reynolds v. Darling and Cook v. Travis, supra); and he insists that in this action, brought to foreclose said bond and mortgage, the question of the validity of the defendant’s claim of title under the aforesaid deed and certificate of sale could be ad-' judicated and passed upon. We think this contention of the plaintiff cannot be sustained. As held in the authorities above cited, and as said by HARRIS; J., in Holcomb v. Holcomb, supra (page 23): The mortgagee, on filing a bill of foreclosure, has no right to make one who claims adversely to the title of the mortgagee and prior to the mortgage, a defendant in a suit for the purpose of contesting the validity of such adverse claim of title.” The question of the validity of the defendant’s claim was not before the referee, and cannot be passed upon by this court. The only matter to be determined in the action was whether the interest which the defendants had or claimed to have in the mortgaged premises accrued before or subsequent to the lien of the mortgage. Under doctrines laid down in Reynolds v. Darling, and Cook v. Travis, supra, if the bond and mortgage in question were taken by the mortgagee in good faith, for value, and without notice of the previous sheriff’s sale of the mortgaged premises to Kidd and Dagger, it may be that the title of the plaintiff under the mortgage to the premises in question is superior to that of the defendant therein under the sheriff’s deed and certificate of sale; but, as above suggested, and as held by the authorities above referred to, the referee was not authorized in the action to try and poss upon the question of the validity of the defendant Church’s adverse claim of title.

The judgment should should be affirmed, with costs.

All concur.