author: BISCHOFF, J. McADAM, J. DALY, P. J.

text:
    Isabella Horowitz v. Hamburg Americas Packet Co.
    (Supreme Court, Appellate Term, First Department,
    September 28, 1896.)
    1. Negligence—Res ipsa loquitur.
    The maxim, “ Res ipsa loquitur,” applies where plaintiffi, while standing on the deck of defendant’s steamship, on which she was a passenger, was injured by the fall of baggage which had been piled up on the deck.
    2. Trial—Reception op evidence—Discretion.
    It is discretionary with the trial court to receive on the redirect examination evidence which should have been elicited on the direct examina» tion.
    8. Evidence—Materiality.
    In an action for injuries to a passenger on defendant’s ship, caused by the fall of baggage which had been piled up on the deck, witnesses, who had testified as to their experience in ocean travel, and that such piling of baggage was the common practice on ships, will not be permitted to state whether or not they believed such piling of baggage to be consistent with the safety of passengers, and whether or not they had ever heard of any accident resulting therefrom.
    4. Damages—Permanent injuries—Evidence.
    Evidence that at the time plaintiff was injured she was a strong, healthy woman, fifty years of age; that at the time of the trial three years later she was still suffering from the injuries sustained, and under treatment therefor, reduced in weight, and physically feeble,—is sufficient to authorize-
    the jury to make an award for permanent injuries, though no expert had testified that the injuries were permanent. Daly, P. J,, dissenting.
    5. Evidence—Presumption—Failure to call witness.
    Failure of a party to call witnesses who had knowledge of the facts in dispute does not raise the presumption that the testimony would have been adverse to such party, wh >re it does not appear that the testimony was not equally available to the other party.
    Appeal from city court of New York, general term.
    Action by Isabella Horowitz against the Hamburg-American Packet Company to recover damages for personal injuries sustained by plaintiff while a passenger on one of defendant’s steamships. The injury was alleged to have been caused by the careless piling of baggage on a part of the deck to which passengers were allowed access. A judgment in favor of plaintiff was affirmed by the city court (37 N. Y. Supp. 1146), and defendant appeals.
    Julius J. Frank, for appellant.
    Armour C. Anderson and Morris Cukor, for respondent.
   BISCHOFF, J.

—At the time of the accident, the plaintiff, then upwards of fifty years of age, and four of her children, were passengers on board of th e defendant’s steamship Augusta Victoria, plying between the city of Hamburg, in Germany, and the port of New York. On August 28, 1892, the vessel had arrived at the end of the voyage and was moored to the dock at Hoboken, N. J., awaiting the disembarkment of her cabin j>assengers. Pending such disembarkment, the steerage passengers, including the plaintiff, were, without caution or remonstrance on the part of those in command, permitted to occupy the upper deck upon which, some time before the landing, the passenger’s baggage had been piled to man’s height, leaving a passageway of about three feet in width between the pile and the guard rail at the outer edge of the deck. While the plaintiff was standing at the railing on the dock side, facing the dock, the baggage behind her, without any apparent direct cause, shifted. Several heavy pieces of baggage fell upon the plaintiff, striking her upon the back, and thus causing the injury complained of in this action. The facts touching the fall of the baggage, and narrated above, bring the cause squarely within the rule “Res ipsa loquitur” (Volkmar v. Railway Co., 134 N. Y. 418, 47 S. R. 631; 16 Am. & Eng. Enc. Law, 448; 2 Rice, Ev. 1099), which, when applied to the relation of carrier and passenger, is at least of undiminished intensity (Miller v. Steamship Co., 118 N. Y. 199, 28 S. R. 874; Railroad Co. v. Anderson [Md.], 20 Am. St. Rep, 483 [20 Atl.2] and note; also cases collated in note b, Barnowski v. Helson [Mich.] 15 Lawy. Rep. Ann. 35, 50 N W. 989), and, failing of any circumstance tending to show an obvious risk of injiuy by the presence upon the upper deck near the baggage pile, the permission of such presence without caution or remonstrance on the part of the defendants’ officers and crew absolved the plaintiff from all imputation of contributory negligence. True, the defendant did introduce testimony by its servants tending to show that at the time of the accident the vessel was not yet moored, that a sudden and unavoidable lurch caused the baggage to fall, that the plaintiff had been previously warned to keep away from the baggage, and that she had gained access to the upper deck despite a rope barrier to prevent it; but it is to be born in mind that upon a conflict of evidence, or in case of the testimony of Avitnesses interested in the issue of the trial, the jury alone are to determine the facts (Volkmar v. Railway Co., supra), and that upon appeal from a judgment of affirmance in the city court of Ncav York, it is beyond our proAÚnce to reverse, although, in our opinion, the verdict may be against the weight of the evidence. Meyers v. Cohn, 4 Mise. Rep. 185, 53 S. R. 223. The motion for a non-suit Avas AArell denied, and it remains only to notice the .ex-cep Lions Avliich Avere taken to the rulings of the trial justice and to his charge and refusals to charge.

Upon the plaintiff’s redirect examination she was permitted, over the defendant’s objection that the testimony was immaterial, and that it should have been given upon her direct examination, to describe Castle Garden, from which place she claimed to have been taken to her husband’s home. To the first objection it is to be said that the testimony was not prejudicial to the defendant, and could in no manner have affected the result of the trial; to the second objection, that the admission of the testimony at that stage of the action was discretionary Avith the court. In part the witness’ answer Avas irresponsive, but it does not appear that such testimony Avas asked to be stricken out,

Jennie HoroAvitz, the plaintiff’s daughter and fellow passenger, Avas asked upon her direct examination as a Avitness in her mother’s behalf to state what happened while the latter AAras consulting the ship’s surgeon immediately after the accident, to which question the defendant’s counsel objected, upon the ground of immateriality of the testimony only. This objection Avas properly overruled, as the immateriality of the testimony sought to be elicited was not then apparent. True, the witness’ answer contained much that AAras incompetent and irrelevant as well as immaterial; but, if the defendant felt aggrieved thereby, counsel should have asked the court to strike such matter out, and to instruct the jury to disregard it.

Carl Sclnnidt, William Mayer, EdAvard L. Mays, Bastain von Walraven, Nicholas Blanquet, Adolph Albers, and Gustav Bachman, Avitnesses for the defendant, were permitted to testify to their experience in ocean travel, and that the piling of passengers’ baggage, previous to landing, at the place chosen by the defendant’s servants in the case before us, Avas the common practice upon ocean steamships. When the Avitnesses Avere asked to state AA'hether or not they believed such piling of the baggage to be consistent with the safety of the passengers, and whether or not they had ever shown or heard of any accident result!hg therefrom, the questions were excluded, and, in our opinion, properly so. It is sufficient to observe that the gravamen of the plain tiff’s, charge of negligence was not that the defendant’s servants had piled the "baggage at a place which necessarily menaced the safety of the passengers, but that the baggage was carelessly piled at what may well have been an ordinarily proper place. Hence the testimony excluded was wholly immaterial.

The question asked of Dr. "Wheeler, physician and surgeon in charge of the medical department of the emigration service, “Is it [the approach to the place of inspection at Ellis Island] constructed so as to compel persons to walk unaided, so that your assistant may observe whether the person is a sound or an unsound person?” was clearly incompetent, as calling for a conclusion. Besides, it was substantially answered by the testimony of the same witness which immediately followed the question excluded.

Capt. Barends, in command of the Augusta Victoria at the time of the accident, examined as a witness for the defendant, was asked upon his direct examination: “Please state what the rule is on board the ships of the company as to injuries suffered in reference to any report being made in reference thereto. Did you at anytime hear that a passenger by the name of Horowite claimed to have been injured on board the Augusta Victoria in August, 1892?” Assuming that the testimony called for was admissible, still no harm resulted to the defendant from its exclusion, as it was conceded by the testimony of the defendant’s witness Dr. Hildebrand, the ship’s surgeon, that he saw the accident complained of, that it was reported to him, and that he examined - the plaintiff to ascertain the extent of her injury. The same is to be said with regard to the exclusion of a question similar to the one last above quoted and addressed to the defendant’s witness ICaeding. The testimony of Dr. Hildebrand that access to the upper deck, where the baggage "was piled, “was strictly forbidden to passengers,” without more, was a mere conclusion, and no error is apparent from the court’s direction that it be stricken out.

Adolph Albers was asked upon his direct examination by the defendant’s counsel: “State whether or not there is any rule forbidding steerage passengers from passing through these doors [leading to that part of the vessel where the baggage was piled].” The question was objectionable, in that it did not call for testimony concerning a rule which was extant at the time of the accident. Furthermore, the fact of the rule became unimportant by the admission of the defendant’s counsel, in answer of the court’s inquiry, that he was without evidence tending to show notice of it to the plaintiff.-

As already stated, the fall of the baggage without any apparent direct cause was evidence of the negligence within the rule “Res ipsa loquitur.” The court, therefore, properly refused to charge that, “if they [the jury] find the method employed by the defendant in storing baggage before entering port was the method usually employed, * * they must presume the absence of negligence on the part of the defendant.”

The complaint alleged that the injury sustained by the plaintiff was in part of a permanent character, and the "court charged the jury that in the assessment of the plaintiff’s damages they were at liberty to consider “the lasting or permanent character” of the injury, to which charge the defendant’s counsel excepted. True, there was no expert testimony to support the fact of lasting or permanent injury. But such would not have been essential if the injury had been of a visible, structural kind, as, for instance, the loss of a hand, an arm, a foot, or a leg. The opinion of a physician or surgeon would not in the least strengthen the objective fact of a permanent injury in such a case. It is equally so where the fact of the injury is only subjectively apparent. Is it not within the common experience of mankind that a violent blow upon the back or spine and other parts of the human body will create functional disturbances from which the particular person dees not wholly recover? The opinion of the physician or surgeon, because of his peculiar skill in the detection of such injury, may be resorted to in such cases; but, even so, his testimony is in the nature of advice, and not conclusive upon the jury, if their own experience demonstrates the improbability of its accuracy. It was in evidence that at the time of the accident, in August, 1892, the plaintiff was a strong, healthy woman, fifty years of age; that at the time of the trial, in May, 1895, nearly three years later, she was still suffering from the injury sustained, and under treatment therefor, reduced in weight, and physically feeble. Is the deduction from these facts that the violence of the blow caused an organic abnormity, or functional disturbance, which, in view of the plain liff’s advanced age, will in some degree endure for the ren finder of her life, an unreasonable or improba .ole one? 1" e think not. Record v. Village of Saratoga Springs, 46 Hun, 448, affirmed 120 N. Y. 646, 26 N. E. 1102. It may ue that, without evidence tending to show with reasonable certainty the extent of the permanent impairment of the plaintiff’s health, the jury would not have been justified in the award of a substantial sum for lasting or permanent injury; but the question presented to us is not one which concerns the degree of such permanent impairment. It is claimed for appellant, in effect, that the trial court erred in its charge to the jury that the latter could award any sum for a permanent impairment of the plaintiff’s health, whatever the extent of such impoirment may be; and to this we do not accede. The plaintiff’s right of recovery in this action comprehended future as well as past suffering (Schuler v. Railroad Co., 1 Misc. Rep. 351, 48 S. R. 663), whether the result of a curable or permanent injury (Ehrgott v. Mayor, etc., 96 N. Y. 264, 277).

For the reasons last above stated, also, the trial court did not err in its refusal to charge that there was no proof that the plaintiff, at the time of the trial, was still suffering as a result of her injury, or that the proof failed to show that the plaintiff’s injury was of a permanent character.

The plaintiff did not call as Avitnesses in her behalf her husband, certain of her children, and some of the physicians AA'ho had at various times since the accident prescribed for her; but, for aught that appears, the testimony of the persons not called was as available to the defendant as it was to the plaintiff. Under the circumstances, therefore, the court rightfully declined to charge, at the request of the defendant’s counsel, that the nonproduction by the plaintiff of the persons alluded to as Avitnesses in her behalf would authorise an inference that if called, they Avould have testified adversely to the plaintiff’s right of recovery. LaAArson, Fres. Ev. 23. Neither did the evidence disclose that the persons not called as Avitnesses by the plaintiff had any better knoAvledge of the facts than those called, or that they had even equal knoAvledge; and the mere omission of a party to a civil action to call a Avitness avIio at the most has no other or better knowledge of the matter in dispute than those AA'ho are produced and give evidence, is not necessarily supicious, entitling the adverse parly to every presumption to his prejudice,” Bleecker v. Johnston, 69 N. Y. 309, 312.

It Avas not error for the court to refuse to charge that the “medical testimony” demonstrated an improvement in the plaintiff’s physical condition since the accident. The testimony of the plnintiff and of her daughter was at variance A\T-th the testimony alluded to by the defendant’s counsel in his request, and the jury’s conclusion aauis to be based upon all the evidence.

The judgment of the trial and general terms beloAV should be affirmed, Avith costs.

McADAM, J.

(concurring). But one action could be main tained by the plaintiff for her damages, and she was entitled to reeoArer upon proper proofs for both past and future pain of body, as Avell as for past and present depreciation of health or of any of her bodily poAvers. Curtiss v. Railroad Co., 20 Barb. 282, 292; Akron v. Railroad Co., 2 Daly, 127; Kane v. Railroad Co., 132 N. Y. 160, 43 S. R. 494; Miller v. Steamboat Co., 73 Hun, 150, 56 S. R. 94 affirmed 149 N. Y. 598. The court beloAV laid down this general rule in instructing the jury, and if the defendant,by its exception to that portion of the charge relating to the lasting or permanent character of the plaintiff’s injuries intended to rest upon the technical position that such damages had not been established to a reasonable certainty or by the best eA-idence the nature of the case afforded (Curtis v. Railroad Co., 18 N. Y. 534, 542; Griswold v. Railroad Co., 115 N. Y. 61, 63, 23 S. R. 729) the specific ground of objection should have been stated to make the purpose clear. It has been held in many cases that the party complaining of the charge of a judge must put his finger on the point as to which he complains. If he does not do so no court of revieAV can regard it. The rules upon this subject are tending rather tOAvards increased strictness than to relaxation. They haAre their foundation in a just regard to the fair administration of justice which requires that when an error is supposed to have been commilted there should be an opportunity to correct it at once. Jones v. Osgood, 6 N. Y., at page 235; McGinley v. Insurance Co., 77 N. Y. at page 497; Lindheim v. Duys, 11 Misc. Rep. 16, 63 S. R. 453. But there Airas evidence given from which the jury Avere authorized to find that the plaintiff would in all probability continue to suffer in the future as in the past. The accident occurred August 28, 1892, and on the trial, nearly three years afterwards the plaintiff, after testifying to the serious character of her injuries, how she had suffered, and the medical treatment she liad undergone, proved that she Avas still afilcte.d ,—-had pains in the side, over the heart, in the stomach, in the head, Avith trouble in breathing cold feet, no appetite, was often compelled to go to bed during the day,—and that, Avhile she had always been a strong, healthy woman before the accident she had become reduced in Aveight, and very weak since it occurred. It would be contrary to all experience to say that these facts did not establish injuries of a lasting character. See People v. Gonzalez, 35 N. Y., at pages 60—62. They aptly describe a wrecked physical condition, aaIiícIi continued A\Tith slight variations for nearly three years Avith a certainty of extending into the future Avithout any apparent prospect of relief; and they bring the case AA'itliin the rulings in Kane v. Railroad Co., and Miller v. Steamboat Co., supra, that the submission of the question of future loss upon such proofs is proper. The request to charge that there was no proof that the plaintiff had sustained any lasting results of the injuries and was not now suffering from the accident, sought to withdraw from the jury the fact of the plaintiff’s then enfeebled condition, though a direct consequence of the injury, and a proper element of damage. It assumed the fact to be contrary to the evidence narrated, and was properly declined. Bay-lies, New Trials, 183.

No error was committed to the prejudice of the defendant and I concur for affirmance.

DALY, P. J.

(dissenting). The court charged the jury that in assessing the damages to the plaintiff they had the right to consider the lasting or permanent character of the injuries to which the defendant excepted, and asked the court to charge that, there being no proof that the plaintiff has suffered any lasting results of the accident, or that she is now suffering from the accident, or that she is likely to suffer any permanent injury resulting therefrom the jury cannot award her any compensation for lasting or permanent injuries. This was refused and defendant excepted. Taking the evidence of plaintiff, and all the possible inferences from it, it appears that she was bruised by the fall, suffered pain; that she was a strong, healthy woman, fifty years of age at the time, and that nearly three years after when testifying on the trial, she was still suffering from it, was reduced in weight, and physically feeble; but there was no testimony of any medical expert that her injuries were incurable, nor even that they were reasonably certain to be permanent, or to continue for any time longer; no bones were broken, and she testified that no physician ever told her which of her internal organs was injured and she did not ask about it; that she was ill in general, feels hurt in the direction of her heart, chest and stomach, and the upper part of her body hurts. It would seem from this state of the proof that there was nothing from which the jury could reasonably determine that the plaintiff’s injury was lasting.

In Filer v. Railroad Co., 49 N. Y. 42—46, the court observed:

There is no evidence other than that of experts by which courts and juries can determine whether a disease or an injury has been or can be permanently cured or what its effect will be upon the health and capability of the injure I person in the future.”

In Mosher v. Russel, 44 Hun, 12, the supreme court said:

“Two medical experts were examined on the trial by the plaintiff but neither of them expressed any opinion as to the probable future effect-of the alleged injury upon the plaintff and there appears to be no evidence in the case from which the jury would have a right to speculate or infer that the injury was permanent or one from which the plaintiff was likely to suffer in the future.”

As was said in Griswold v. Railroad, 115 N. Y, 61, 64, 23 S, R. 72:

9 “Medicine is far from being an exact science. At the best, its diagnosis is little more than a guess, enlightened by experience. The chances of recovery in a given case are more or less affected by unknown causes and unexpected contingencies. The wisest physician can do no more than form an opinion based upon a reasonable probabilty.”

If a defendant’s liability in damages may be allowed to rest upon opinion, it should not be the opinion of a jury without the help of science. If a guess is to have such serious consequences, it should be the guess of a medical man of learning and experience. These observations do not apply of course, to the loss of a member, nor, perhaps, in the case of a fracture (Bateman v. Railroad Co., 47 Hun, 429; but see Crawford v. Railroad Co., 55 N. Y. Super. Ct. 255; Schmidt v. Railroad, March 3, 1892, Sp. Term, Com. Pl. 1); hut “damages are to be proved and none can be allowed except such as are shown by the proof to he at least to a reasonable degree certain. *" e * Future damage can only be awarded when it is rendered reasonably certain from the evidence that such damage Avill inevitably and necessarily result from the original injury.” Curtis v. Railroad Co„ 18 N. T. 534. In this case the jury had nothing before them except the condition of the plaintiff at the time of the trial and before. She could not, of course, be permitted to say that that condition AArould continue. No medical man was called to testify that it would continue, and therefore the jury had no legal basis for concluding that it Avould. For the error in the charge, and refusal to charge, the judgment should be reversed and a-new trial ordered.


source: Caselaw Access Project

author: CULLEN, J.

license: Public Domain

text:
    John P. Handshaw v. John S. Arthur.
    (Supreme Court, Appellate Division, Second Department,
    October 6, 1896.)
    Justice of the peace—Personal liability for official acts.
    A justice who adjourns a case when plaintiff: fails to appear, instead of giving a judgment of nonsuit, as required by Code Civ. Proc. § 3013, and afterwards renders judgment in favor of plaintiff on the adjourned day, is not liable to defendant in damages, as liis act in adjourning the case, though erroneous, is not void. Brown, P. J., dissenting.
    Appeal from Suffolk county court.
    Action by John P. Handshaw against John S. Arthur to ^recover damages for an alleged trespass on the part of defendant, as justice of the peace, in issuing an execution under which plaintiff’s property was sold. There was a. judgment in favor of plaintiff, and defendant appeals.
    Ackerly & Miles, for appellant.
    Livingston Smith, for respondent.
   CULLEN, J.

—This action was before the general term of this court at the July term in 1895. The decision of the court on that appeal is reported in 89 Hun, 179, 34 N. Y. Supp. 1034. In the prevailing opinion the facts of the case are fully stated. The question is whether a justice of the peace who had adjourned a case pending before him on the failure of - both parties to appear, and thereafter had granted a judgment in favor of the plaintiff, and issued an execution thereon, is liable as a trespasser. The late general term, holding, though with dissent, the defendant liable, reversed a judgment of the county court in his favor, and ordered a new trial. On the second trial a verdict was directed in favor of the plaintiff, and from the judgment, entered on the verdict this appeal is taken.

If the question presented were wholly new, we should be inclined to follow the previous decision, though against our own judgment, on the rule of stare decisis, giving the defendant leave to go to the court of appeals. For some reason, the late general term denied the defendant that privilege. We think, however, that the decision of the general term was not only erroneous but it was against the authority of the adjudicated cases. Section 3013 Code Civ. Proe.,, provides that judgment of nonsuit, with costs, must be rendered against a plaitiff if he fails to appear within one hour after the time to which the trial has been adjourned. The claim of the plaintiff is that, under this provision of the Code, the justice had no power to adjourn the case when the plaintiff failed to appear, and that his subsequent action was as absolutely void as if no suit had ever been instituted before him. The direction in the section cited, that the justice should grant a judgment of nonsuit, doubtless forbade him to adjourn the cause. But the first question is, was the adjournment absolutely void, or merely erroneous ? If, in .his answer to this, it be held that the adjournment was void, then the second question arises, was it so far a judicial act on the part of the justice as to protect Mm from liability on account of his error?

At the time of the action by the justice, there was a cause pending before him, in which he had both jurisdiction of the subject-matter and of the parties. The statute prescribed that he should act in one way. He acted in another. The provisions of the Code as to proceedings in justices courts are practically renactments of the provisions of the Revised Statutes on the same subject, with some changes in form, and but slight changes in substance. The provisions of sections 2959 and 2960, Code, as to adjournments, are fully as mandatory and as restrictive in their terms as section 3013; yet it has been held that adjournments had in opposition to the direction of the statute, though eroneous, were not void, as without jurisdiction.

In Horton v. Auchmoody, 7 Wend. 200, the plaintiff in error was a justice of the peace, and the defendant in error had been sued before him. In that suit, on the application of the plaintiff therein, Horton had adjourned the case, against the provision of the statute, and against the protest of the defendant, that he would not thereafter appear, and the parties would proceed at their peril. On the adjourned day "the plaintiff appeared, and Horton gave judgment in his favor, and issued execution thereon. Auchmoody then brought this action against Horton in trespass for a levy under the execution. It was held that the justice had jurisdiction, and that the judgment and execution, though erroneous and voidable, were not void and that the justice was not liable. It was there said:

“"Where a justice acts without acquiring jurisdiction, he is a trespasser; but, having jurisdiction, an error in judgment does not subject him to an action. He is entitled to the protection afforded to a judge of a court of record. * e ¡ü mugt be conceded that, so far as the parties litigant before the justice in that suit are concerned, this court would have considered an unauthorized adjournment an end of the suit; but, where a remedy is sought against the justice, the principle of judicial irresponsibility should be interposed, so far as it is applicable. * * In this case the justice had jurisdiction of the cause, of the parties, and of the question of adjournment. His error was an error of judgment, and, according to the decisions above referred to, the consequence of that error ay as that the cause Avas discontinued as between the parties, and any judgment entered after such adjournment, Avas liable to be reversed; but I believe none of the cases consider such a judgment a proper subject of inquiry as to its merits in another tribunal.”

We do not see Iioav the present case is to be distinguished from the one cited. That case has remained as authority unchallenged for over 60 years.

The question again arose in Hard v. Shipman, 6 Barb. 621. There, also, the justice adjourned the case Avithout authority; yet it was held that the judgment rendered by the justice upon such adjournment was valid, and could not be attacked collaterally.. It was there said :

“But, according to the decision in Horton v. Auchmoody, the justice did not, by such adjournment, lose his jurisdiction of the cause. He had jurisdiction of the cause, of the parties, and of the question of adjournment. His error was an error of judgment,—a judicial error; and the only consequence of the error was that the judgment entered after the adjournment Avas reversible on certiorari. Although it is said in the cases that the adjournment of a case by a justice, at his oavh instance, or at the instance of the plaintiff, Avithout authority, amounts to to a discontinuance of the suit, yet by this expression nothing more is meant than an irregularity or nothing error, for Avhich the judgment subsequently entered could be avoided or reversed on certiorari. The judgment is valid and binding until reversed.”

It seems that the present case is not to be distinguished in principle from that of Austin v. Vrooman, 128 N. Y. 229, 28 N. E. 447. In that case, Austin was charged with supplying diluted milk to a butter manufactory. When arraigned before the magistrate, he pleaded not guilty, Avaived examination, and offered to give bail to the grand jury. The magistrate refused to bail the prisoner, proceeded to try him; and sentenced him to imprisonment. On appeal the conviction and sentence were reversed, upon the ground that the magistrate should have accepted bail and proceeded no further. Austin then sued the magistrate and the complainant for false imprisonment. The argument hoav presented to us was presented in that case. It was urged that, AArhen the plaintiff elected to give bail, the magistrate was thereafter Avholly without jurisdiction. It was held that the magistrate erred in further proceeding with the cause; but it was further held that the the error was in a judicial determination made in a case of Avhich he had jurisdiction, and that he was protected from a civil action in regard to it. In the opinion delivered by Judge Beckham, the case of Horton v. Auchmoody, supra, is cited AA’ith approval.

We think these authorities are conclusive on the question involved in this case, and, on principle, it falls Avithin that plainly just and fair doctrine enunciated in Jones v. Reed, 1 Johns. Gas. 20:

“The sound rule of construction in respect to the courts of the justices of the peace is to be liberal in revieAving their proceedings as far as respects regularity and form, and strict in holding them to the exact limits of jurisdiction prescribed to them by the statute.”

Here the defect was not in jurisdiction, either as to subject-matter or person, but in method of procedure.

The judgment appealed from should be reversed, and the «complaint dismissed, Avith costs, with leave to respondent to appeal from this decision to the court of appeals, if he so «elects.

All concur except BROWN, P. J., dissenting.


author: WILLARD BARTLETT, J.

text:
    Jacobina Fleck et al. v. Carolina Rau et al.

    (Supreme Court, Appellate Division, Second Department,
    October 6, 1896.)
    1. Appeal—'Weight oe evidence.
    The findings of the trial court are conclusive on appeal, where there is no certificate or statement that the case contains all the evidence.

      % Same—Objection not raised—Appeal.
    An objection that a witness was allowed to volunteer testimony cannot be raised for the first time on appeal.
    Appeal from special term, Westchester county.
    Action by Jacobina Fleck and others against Carolina Rau and others for partition. There was a judgment in favor of defendant Carolina Rau, and plaintiffs appeal.
    Zeller & Miehling, for appellants.
    John F. Brennan, for respondents.
   WILLARD BARTLETT, J.

—This is an action for the par, tition of certain real estate in the county of Westchesterwhich Avas formerly owned by Frederick W. Rau, the husband of Carolina Rau, the respondent. On May 22, 1871, he executed a conveyance of the premises to Martin Heldt in trust to receive the rents, issues, and profits therof and apply the same to the use of Frederick Rau, of Spielberg, in the grand duchy of Baden, during the term of his natural life, and after the death of the said Frederick Rau to sell the property, and pay over the proceeds of the sale to the heirs of the said Frederick Rau who should then be living. This deed, according to the testimony of Martin Heldt, was delivered to him by Frederick W. Rau, the grantor, in the year 1871. He did not record it at once however, but kept it in his possession until March 17, 1894, when it was placd upon record in the register’s office of Westchester county. The trustee never took possession of any part of the premises, but they remained in the possession of Frederick W. Ran,, the grantor, and his wife the respondent, up to the time of the death of Frederick W. Rau, which occurred on December 24, 1893, and the widow has been in possessor ever since. Frederick Rau, of Spielberg, the first beneficiary named in the trust deed, died in 1894; and in 1895, after Martin Heldt the trustee, had recorded this deed, he made a conveyance of the premises to the defendants Jacobina Fleck, Charles A. Rau, Emil Rau, and Max Rau, who are four of the heirs of the said Frederick Rau, of Spielberg, and who brought this suit, as plaintiffs, for the partition of the property, in which they claim to have thus acquired an interest* The only defendant who interposed an answer was the widow of Frederick W. Rau, who alleged, and prove to the satisfaction of the trial court, that she had no knowledge or notice of the exisence of the trust deed from her husband to Martin Heldt until after the same was recorded, on March 17, 1894; that on or about the 21st day of Novenber, 1889, her husband conveyed the premises in question to one Frederick L. Schmeisohl, and the said Frederick L. Schmeisohl conveyed them to her; that this transfer through an intermediary was made in consideration of a large indebtedness existing on the part of Frederick W. Rau to his wife, and of the payment by her to him of $6.000 at the time of the delivery of the deeds; and that these facts made the respondent Carolina Rau the lawful owner and holder of the property, and deprived the plaintiffs of any interest therein. There being no certificate or statement that the case on appeal contains all the evidence; the findings of the learned judge at special term are conclusive upon us unless there was some other error in the admission or exclusion of testimony which calls for a reversal. Porter v. Smith, 107 N. Y. 531, 14 N. E. 446. We find no such error. The deed from the respondent’s husband to Schmeisohl is lost, and the defendant was obliged to rely upon oral evidence to establish its character and contents. Some of this testimony was put in before the loss of the deed had been sufficiently proved, but this omission was supplied subsequently, during the trial, by the respondent herself, who swore that she had searched for the instrument in vain among her own papers and those of her deceased husband. The proof as to what this lost deed contained was rather meager, and consisted to a great extent of statements of conclusions of fact, rather than of specific facts themselves. It hardly came up to the standard declared in Edwards v. Noyes, 65 N. Y. 125, where the court, speaking through Earlj C., said:

“Parol evidence to establish the contents of the lost deed should be clear and certain. It should show that the deed was properly executed with the formalities required by law, and should show all the contents of the deed, not literally, but substantially. If anything less than these requirements would suffice, evil practices, which it was the object of the statute of frauds to prevent, would be encouraged.”

But it may be that there was. other testimony, not printed in the appeal book, which strengthened the case in this respect; and we cannot interfere with the judgment, as already stated, on the ground of the insufficiency of the evidence to sustain the findings.

In addition to proof concerning the contents of the missing deed, the defendant gave evidence as to declarations made by her husband to the effect that he had conveyed to Schmeisohl. One John Schlobaum testified that Frederick W. Rau, the respondent’s husband, with whom he was intimately acquainted, told him that “he had deeded his property to a gentleman in New York by the name of Schmeisohl, and from Schmeisohl over to his wife, and he thought it was not necessary for him to make a will just yet.” Proof of this declaration would not have been admissible, if proper objection had been interposed. The person making it had long ago parted with the legal title to the land, by the execution and delivery of the trust deed and the declaration was in no sense against his interest, but, so far as the claim of the plaintiffs was concerned, plainly in favor of his interest. But there is no objection or exeception in the ease which raises the question of its admissibility, or which could have brought any such question to the attention of the trial judge. Mr. Schlobaum was merely asked whether he had ever had any conversation with Frederick W. Rau at a specified time. The question was objected to as immaterial, irrelevant, and incompetent. The objection was overruled, and plaintiffs’ counsel excepted. The exception was not well taken. The question did not call for the conversation, but merely asked whether there had been any conversation or not, and was fully and responsively answered when the witness said, “Yes, sir.” Thus far there was no error. The record is largely made up in narrative form, and these words are followed at some distance by a statement of what Frederick W. Rau said to the witness about having made a deed to Schmeisohl. It may well be, therefore, that another question was asked, calling for this conversation, to which no objection was made. The real ground of complaint, if any, on the part of the plaintiffs, is that the witness was then allowed to go on and volunteer testimony. But, so far as appears, no objection was made to his course in this respect, nor was any motion made to strike such testimony out. This was requisite in order to raise the question. Platner v. Platner, 78 N. Y. 91; Holmes v. Moffat, 120 N. Y. 159, 30 S. R. 779; Hickenbottom v. Railroad Co., 122 N. Y. 91, 33 S. R. 312. The motion to strike out which was made at the end of the trial did not accomplish this purpose. It was the renewal of a motion made earlier in the case, and there was nothing in it which recalled to the mind of the court the declaration to which Scholbaum had testified. The motion related to testimony about the deeds, and was too general to testify us in saying that the court understood, ought to have undeistaod, that it referred as well to Frederick W. Rau’s declaration made to Schlobaum.

The judgment should be affirmed, with costs .

' All concur.


author: HATCH, J.

text:
    Michael Foley v. Brooklyn Gaslight Company.
    (Supreme Court, Appellate Division, Second Department,
    October 6, 1896.)
    Master and servant—Place to work—Conditions created by servant.
    Where the manner in which, the workmen engaged in unloading a ship perform their work may make certain parts of the ship dangerous to them, their employer is not liable to them for injuries resulting therefrom, as thp dangerous condition was created by themselves.
    Appeal from trial term, Kings county.
    Action by Michael Foley against the Brooklyn Gaslight Company to recover damages for personal injuries sustained by plaintiff while employed by defendant to assist in unloading a ship. The action was brought in the city court of Brooklyn and being still pending on January 1, 1896, was transferred to the supreme court by the constitution of 1895. From a judgment entered on a verdict in favor of plaintiff for $2,250, besides costs, and from an order denying motion for a new trial defendant appeals.
    William N. Dykman, for appellant.
    Britton H. Tabor and William S. Bennet, for respondent.
   HATCH, J.

—Practically, there is no disputed question of fact in this case. It appeared that plaintiff was employed with others in unloading a vessel laden with a cargo of coal. He was perfectly familiar with the work and the method of unloading, having been employed in similar work by the defendant for upward of 20 years. The coal was shoveled into buckets, which were raised. and lowered into the hold of the vessel by means of a hoisting apparatus. The coal was removed from various parts of the vessel, and as the depth in the hold became greater the men ascended— when they had occasion—to the deck by means of rope ladders, which were let down the hatchway from the deck. It does not appear that the ladders furnished belonged to defendant, but to the vessel, and it was usually the custom for the workmen to obtain the ladders from it. Plaintiff was unable to state who furnished them, and those of his witnesses who were questioned upon the subject said that the men generally got the ladders from the vessel, or were told by defendant’s manager to get them on the vessel, and they were lowered by the men from above who announced to those below where the ladders were situate. There was no particular place where the ladders were placed. That depended upon where the men were at work, the amount of eonl that had been removed, and the selection by the men who lowered the ladders. The circumstances which led up to the accident were these: The coal had been removed until the keelson in a part, at least, of the barge, was exposed» The ladder was let down a hatchway for the men to ascend for dinner. In order to reach this ladder, plaintiff and others were obliged to get upon a bucket of coal, step upon the keelson, which was 3 1-2 to 4 feet high, and pass along that to the ladder. The keelson was usually about 2 feet wide, but had been narrowed and worn rounding by the action of the coal. One of the men from above announced where the ladder was, and plaintiff, with others,—some ahead of him, some behind, started for the ladder to ascend. Plaintiff stepped upon the bucket of coal, and from thence onto the keelson, and took one step, when, on account of the rounding top, he slipped and fell, sustaining the injury complained of. Some workmen preceded him, some followed after, and all but himself had a safe passage.

We are of opinion that upon these facts no cause of action was made out against the defendant. The men engaged in unloading this vessel were paid by the ton for unloading, and, while their wo.k was under the general supervision of a manager, yet it is evident that in its prosecution, to a very large extent, they regulated the course and conduct of th© work. So far as the conditions existing in the hold of the vessel were concerned, they were created by the workmen and were con finally shifting and changing as the work progressed. It is quite evident that whether a given place in the hold became dangerous or not, would depend entirely upon the manner in which the workmen removed the cargo, and whether it was safe or otherwise would become a condition of their own creation. Under such circumstances, no liability attaches to the master for injuries received on account of such condition. O’Connell v. Clark, 6 App. Div. 33, Loughlin v. State, 105 N. Y. 159, 6, S. R. 826. This keelson was exposed by the workmen themselves, and they knew, or were chargeable Avith knoAvledge of its condition The defendant could not be supposed to know at what ruonent it would be exposed or Avhat would be its condition wh en exposed, or that the men would attempt to make use of it. Nor could he know if it would be plainly visible, or dimly seen. But all of these conditions Avere known to plaintiff or his fellow workmen, and they Avere chargeable with knoAvledge of whatever danger© there was in the situation. Nor was the master responsible for the ladder being placed in this position. The men made selection of the place where they would lower the ladder, and over this matter it is not pretended that he exercised or was expected to exercise the slightest control. It is true that the evidence warrants the assumption that the manager told the men where to get the ladders. But what use they should make of them when obtained what hatchway they should be let down, and what notice should be given to the men below, was always regulated by the men, and there is not the slightest proof to show that the master exercised any control, or gave any directions, or was expected to give any, in connection therewith. We are not aware of any case, and none has been called to our attention, where liability attached to the master under such circumstances. We are unable to discover from the record any evidence upon which to predicate negligence of the defendant.

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

All concur.


text:
    Edward Freel v. Queens County
    (Supreme Court, Appellate Division, Second Department,
    October 6, 1896.)
    Counties—Powers of agents to bind.
    Commissioners appointed by the board of supervisors to take charge of and superintend certain public improvements, and to make all necessary contracts for doing the work, are authorized to bind the county only as prescribed in the resolutions of the board of supervisors, and persons dealing with them are chargeable with knowledge of the limits of their auauthority.
    Appeal from judgment on report of referee.
    Action by Edward Freel against the county of Queens to recover for work done by plaintiff for defendant. There was a judgment in favor of plaintiff, and defendant appeals.
    D. E. Delavan, for appelant.
    William C. De Witt, for respondent.
   CULLEN, J.

—In the year 1892 the board of supervisors of the county of Queens, by two resolutions, directed-tlie improvement of certain highways in the town of Jamaica, in that county. By these resolutions certain named persons were appointed commissioners to take charge of and superintend such improvements, and the commissioners were authorised to- make all necessary contracts for doing the work. The commissioners were directed to prepare plans and specifications, and all other instruments in writing, for doing the work: “provided, however, that all such plans specifications, «contracts, and other instruments in writing shall be submitted to this board for its approval as to form and sufficiency before being signed by said commissioners; and provided, further, that preposals for the doing of such work shall first be publicly advertised for as directed by section 4 hereof.” In pursuance of this authority the commissioners entered into written contracts with the plaintiff for improving certain highways. The contracts for the several highways were all of the same general form, and were entered into in pursuace of advertisements for proposals made by the commissioners, and of bids made by the contractor in answer thereto. The advertisement for proposals gave the engineer’s estimate of the quantities and qualities of the work, but expressly stated that the quantities ay eré approximate only, and required any bidder to satisfied himself as to the accuracy of the estimate. It was further expressly provided that “no extra compensation beyond the amount payable for the several classes of work before-enumerated, which shall be actually performed, at the prices therefor to be specified by the loArest bidder, shall be due or payable for the entire work.” It Avas further specified that no deviation from the specifications would be alloAved, unless a written permission should have been previously obtained from the commissioners, and that Avork or material not specified, and for Avhich a price is not named iu the contract, will be allowed for.” The bidders Avere required to state a price per running foot for completed pavement. The bid of the plaintiff stated that lie had examined this request for proposals, and the proposed contract, and offered to contract for all the Avork for a specified price per running foot of completed pavement. By the contract subsequently executed by the parties the plaintiff “admits and agrees that the amounts and quantities of material to be furnished and work to be done, as stated in the proposals for estimates for the said work, are approximate only, ® " ® and that he covenants and agrees that he will do the entire work to the satisfaction of the said commissioners, and in substantial accordance with said specifications, and that he Avill not ask, demand, sue for or recover, for the entire Avork, any extra compensation beyond the amount payable for the several classes of Avork in this contract enumerated, which shall be actually performed at the prices therefor herein agreed upon and fixed.” The claim in this action is for an unpaid balance of the contract price for the improvement of the Merrick road, and for extra work done in the pavement of Van Wyclc Avenue and Broadivay, The items of extra work claimed "by the plaintiff, and allowed by the referee, Avere for loam spread on Broadway and Yan Wyck avenue; fon labor in surfacing Yan Wyck avenue; and for screenings thereon; for Roar Hook gravel furnished for Broadway; and for excavations and hauling on that street; amounting in all to $11,130.

We are inclined to the opinion that, as aiming it to be within the power of the commissioners to modify the contract, and order extra work, the plaintiff has not shown himself entitled to recover for the work in suit, except for unpaid balance of the contract price for the Merrick road. The contract was drawn to preclude claims for extra work of the character of that here presented. The plaintiff expressly admitted that the amounts and quantities of materials were approximate only, and stipulated that he would not only ask, demand, or sue for extra compensation for the several classes of work enumerated in the contract, and as to the work of a class not enumerated in the contract, and for which no price was named, he should no the allowed anything therefor. It is apparent from the testimony that the commissioners did not assume to modify the contract. The plaintiff was referred by them to the engineer, and directed to comply with his instructions in the performance of the-work. In the main the work done by the plaintiff was not directed to performed as additional to, or outsideof, the contract, but as in the proper performance thereof. The plaintiff’s foreman festines that such work did not help the road a bit, but we have to do it, or stop work. ® * * I declined, to do it. The result was, we had to do it or stop. It was necessary because the commissioners told us that we must do as the engineer says.” Therefore, when the plaintiff yielded to the demand of the engineer or commissioners to perform such work, he acceded to their contention that the work wasnecesary to properly perform the contract. As to the item of the- Roar Hook gravel, the evidence seems to support the plaintiff’s claim that this was in excess of the contract material. It was testified that, the foreman having suggested to the engineer that this gravel Aras the best covering, the engineer agreed to order it, if the commissioners Avould authorise it. For 500 yards actually used, the plaintiff received additional pay. The claim in suit is for the value of 300 yards delivered at the Ayork, but not used. This quantity, the plaintiff claims, AAras rendered worthless, because the engineer stopped him from further using that material. As to this item the claim, is not in truth, for extra work, but for breach of the contract to take the material. Such a claim AAras not alleged in the complaint, nor do avg find the evidence sufficient to sIioav that there Avas an agreement to receive any definite amount. The plaintiff would therefore not be entitled to recover the value of this material. But, however this may be, we are clear that the commissioners had no power to impose on the count)7" any liability for work outside of and beyond the provisions of the contract. The commissioners were public officers. Their sole authority to bind the county proceeded from the resolutions enacted by the board of supervisors. All persons dealing with them were bound to ascertain the limits of their powers and authority, and are chargeable with knowledge of such limits. Lyddy v. Long Island City, 104 N. Y. 218; Donovan v. Mayor, etc., 33 N. Y. 291. The resolutions did not constitute the commissioners sole judges of the improvements to be prosecuted, or authorize them to make such contracts for the improvements as they deemed proper. The grant of authority to the commissioners was expressly subject to the provision that not only the plans and specifications of the improvements, but also the contracts for its performance, should be submitted to the board of supervisors for approval. If the work done by the plaintiff is not within the terms of the specifications, then the commissioners were not authorized to contract for its performance ; for it is only workr required by specification, approved by board of supervisors that the commissioners were authorized to contract for or prosecute. If within the requirements of the specifications, then by the express terms of the contract the plaintiff is not entitled to recover for such work. The only power given the commissioners was to execute a contract previously approved by the board of supervisors. A modification of an existing contract, without such approval, would be as invalid as the execution of an original contract, without complying with this provision of the resolutions. While it "was intended that the commissioners should not only have charge and superintendence of the physical prosecution of the work, but also should in the first instance determine what the work should be and Avhat character of contract should be made theretor, still it was also intended that the action of the commissioners in the latter respects should not become final or operative except Avith the assent and approval of the board of supervisors; and it aa’us further intended that no liability should be imposed on the county, except in pursuance of a contract approved by that board, and aAvarcled after advertisement. Therefore no action of the commissioners, except Arhen had in strict compliance with the authority vested in them by the board of supervisors, could in any wise bind the county. As to the first item, the unpaid balance of contract price, Ave think this Avas properly alloAved to plaintiff. There is no evidence in the case sufficient to show that he forfeited this amount by his failure to perform the work1 in Lime. On this question the burden of proof was upon the defendant, and it was to establish affirmatively that it was entitled to retain the money.

The judgment appealed from should be reversed, and a new trial granted before a new referee, costs to abide the event, unless the plaintiff stipulates to reduce the amount found due to him to the sum of $1,730, with interest from January 1, 1894, in which case the judgment as reduced, should be affirmed, without costs to either party,

All concur.


text:
    Joshua R. Jones v. Home Furnishing Co. (three cases).
    (Supreme Court, Appellate Division, Second Department,
    October 6, 1896.)
    Negotiable instrument—Fictitious payees—Liability of maker.
    The maker oí a note given for a valuable consideration cannot escape liability on the ground that the note was made payable to a company which had no existence, and that, therefore, the indorsement to plaintiff was fictitious, and passed no title, where it appears that the name of the payee was the name under which plaintiff did business, and that the consideration for the note was received by the maker from plaintiff.
    Appeal from Kings county court.
    Actions by Joshua R. Jones against Home Furnishing Company. Judgment rendered by a justice of the peace in each case in favor of plaintiff was affirmed by the county court, and defendant appeals.
    R. W. Newhall, for appellant.
    John B. Green, for respondent.
   HATCH, J.

— Separate actions were brought upon three promissory notes. The notes were each in the same form, excepting the dates and amounts, were made payable to the order of the National Publishing Company, and were signed by the defendant, through its president. The defendant is a domestic corporation, having its place of business in Brooklyn. The National Publishing Company is a name assumed by plaintiff in carrying on his business, and represents nothing beyond that assumption. It is conceded that the notes were each given for a Amicable consideration received by the defendant from the plaintiff. But the claim is made that the notes were made payable to a company that liad no existence, and, therefore, the paper was fictitious, and as the indorsement Avas fictitious and spurious, no title passed to the notes. This defense savors of delay, and the use of legal remedies to prevent collection of a bona fide debt. The notes Avere as much payable to Jones when they ivere made payable to the name under which he carried on his business as though he had been named therein. It was not, in legal contemplation, a fiction, but it was the plaintiff under this business name and represented him. When notes were made and delivered to plaintiff under these conditions they createil a liability against the defendant in plaintiff’s favor. And, had the complaint set out the fact that the payee was the plaintiff’s business name, and that the notes on account thereof ivere so made payable, there would be little doubt that defendant would not have had the temerity to interpose a defense. At the most, the question now here is one of pleading, as plaintiff has' made the usual allegation of delivery to the payee and indorsement by it to the plaintiff. But the facts were all known before issue was joined and when the trial was had. The complaint, therefore, will be deemed amended in accordance with the facts. The note in plaintiff’s hand is a subsisting liability against the defendant in his favor. Bank v. Straiten, *42 N. Y 365; Maniort v. Roberts, 4 E. D. Smith, 83. These notes having been given for bona fide debts, and delivered to the plaintiff, defendant is estopped from setting up, as against plaintiff, that they were made payable to a fictitious payee, if by such averment the notes would be defeated in plaintiff’s hands. Bank v. Alley, 79 N. Y. 536.

The judgments appealed from should be affirmed, with costs.

All concur.


text:
    John Gray v. Kaufman Dairy & Ice-Cream Co.
    (Supreme Court, Appellate Division, Second Department,
    October 6, 1896.)
    1. Landlord and tenant—Abandonment by tenant—Duty to relet.
    Where a tenant abandons the demised premises, it is not the duty of the landlord to relet, in order to reduce his claim for damages against the tenant.
    9. Same—Consent to reletting question for jury.
    Where a landlord relets the premises after abandonment by the tenant, and after notice to the tenant that he would do so, to which no reply was made, it is a question for the jury whether the tenant assented thereto.
    Appeal from trial term, Kings county.
    Action by John Gray against the Kaufman Dairy & Ice-Cream Company to recover two months’ rent of premises in New York City. A judgment was entered ona verdict rendered under the direction of the court in favor of plaintiff, and defendants appeal.
    A. Britton Havens, for appellant.
    Jacob F. Miller, for respondent.
   HATCH, J.

—The state of the law governing the disposition of this case is far from satisfactory, and in some respects there seem to have been a departure from well settled rales governing the relation of landlord and tenant, and the rights and obligations which flow therefrom. We seem forced in the disposition of this case to make choice between authority which may not be reconciled. We proceed to state the dilemma.

In Underhill v. Collins, 132 N. Y. 269, 43 S. R 785, it was held that a landlord who had notified his tenant, before the latter had vacated the premises, that, if he vacated, he would hold him for the rent, but -would lease the premises for his benefit, might, upon the vacation of the premises, by the tenant, relet the same, and collect the difference in the rent reserved under the reletting and the amount reserved in the original lease, and that this transaction did not destroy or affect the relation of landlord and tenant between the original parties, but that the same subsisted to the end of the term. That action was brought to recover installments of rent due as reserved in the lease, less the amount received on the reletting, and a recovery therefor was upheld. The report of this case in the supreme court (Underhill v. Collins, 15 N. Y. Supp. 495) shows that this was the second action brought to recover installments of rent under the lease as they fell due, and it was held that the former recovery was no bar to the second action. This view was upheld by the court of appeals, although the question is not discussed beyond the statement that the action was properly brought for the recovery of rent, instead of damages, as the relation of landlord and tenant continued to exist. The court recognized that a reletting would ordinarily operate as an acceptance of the surrender of the premises, and destroy the relation of landlord and tenant, but that an express or implied agreement for such a reletting would defeat such result, and leave the relation intact. From the circumstances of that case such an agreement was implied. When the present case was before the general term on a former appeal (Gray v. Ice-Cream Co., 89 Hun, 144, 69 S. R. 238) the court reversed a decision which dismissed plaintiff’s complaint, and ordered a new trial. This determination proceeded upon the ground that, as plaintiff had notified the defendants after they had vacated the premises that he did not accept a surrender, but should hold them for rent, and let the premises, on their account, holding them for any loss that might be sustained, and they not replying thereto, it presented a question of fact for determination by the jury, whether defendants had not assented to the terms thus prescribed within the authority of the Underhill Case; that from such circumstances there might be implied an agreement authorizing such reletting, and continuing the relation of landlord and tenant. The only difference that is suggested between this and the Underhill ■Case is that in the latter the notice was given before the tenant vacated the premises, while here the notice was given after. We must conclude that the court on the former .appeal, did not regard this circumstance as controlling to the extent of removing the case, in principle, from the doctrine of the Underhill Case, and we- must now so regard it. It is not now claimed that any material change has been made in the case from that presented on the former appeal. So far as discussion of this particular case is concerned, the law is settled.' But it will be found most difficult to reconcile these decisions with the later case of In re Hevenor, 144 N. Y. 271, 63 S. R. 692. In that case there was an express clause in the lease authorizing the lessor to relet the premises as agent of the lessee, in the event the latter abandoned them. The lessee having failed, and made a general assignment, the lessor relet the premises, and made claim to the assignee of the lessee for the rent reserved, less the amount received from the reletting, under the lease. The claim was rejected by the assignee, and the court sup-' ported him therein. Judge Gray, writing the opinion, says:

“The appellants in their argument, lose sight of the fact that by their acts in re-entering the premises, and re-letting them, as the agent of the assignor, which they were permitted to do under the lease, they put an end to his fixed obligation under the' lease, and left it for the future to determine whether they would have any claim against him. His liability was changed, and thereafter could only be for a possible deficiency.”

And further he says:

“A liability which, if it arose, could only be finally and definitely ascertained at the expiration of the demised term, while it might not arise at all.”

If such be the effect of an express agreement to relet, I am at a loss to determine from what source more authority and virtue are injected into an agreement implied from circumstances. If the effect of the action under the express authority is to put an end to the fixed liability under the lease, and substitute therefor a liability to pay any deficiency which might or might not arise, I am at a loss to understand upon what theory it can be said that the relation continues in pristine vigor, and the liability exists for the rent reserved as it falls due. In the Hevenor Case, however, the point which the court makes as above adverted to was not essential to a determination of the case, The rent there sought to be recovered had accrued subsequent to the general assignment. Consequently it was not a debt due at the time when the assignment was made, and could not be regarded as a debt or liability which the assignment contemplated or provided for paying. The court so decided, and the discussion upon the effect of the reletting as applied to the rent reserved was in answer to the argument of counsel, and not necessary to a disposition of the case, As we have seen, such was not the condition which confronted the court in the Underhill Case; and we must therefore regard the latter, as interpreted by the general term, as controlling in the disposition of this case. Although we reach this conclusion, we also conclude that there must be a new trial ordered. The general term did not at all decide that the question was one of law for the court’s disposition. It simply held that, from the silence of defendants after receipt of the written notice, the jury might find that they assented to the reletting. No right to relet for their benefit existed unless they assented thereto. If, without such assent, the landlord relet the premises, such act amounted to an acceptance of the surrender. The general principle of law that for a breach of contract for the sale of personal property, or of a contract of hiring, it is the duty of the party suffering from the breach to make the damages as light as possible, has no application to a contract of leasing, as the latter is governed by peculiar and entirely different rules. Whether defendants assented to the reletting, and whether plaintiff relet for them or for his own benefit, became questions for the jury. It did not conclusively follow upon the service of the written notice by plaintiff that his right to relet them existed. All the circumstances were to be considered. This involved a consideration of the acts of the defendants, their silence upon receipt of the-notice, the repudiation by them of liability for rent, and of the relation of landlord and tenant when plaintiff applied to them for payment of rent after they bad left the premises, the negotiation for the rent of the basement, and all the acts of the parties; also, a consideration of the acts of the plaintiff, the sending of the two notices, the negotiation and consideration respecting the rent of the basement, the collection of rent from the tenants in the basement, the fact that the lease to Keogh was absolute, under seal, and no-mention made of defendants or their interest or that plaintiff acted for them. This was all evidence for the jury to pass upon, in order to determine whether plaintiff in fact relet for the benefit of defendants or for himself, and whether defendants assented to the reletting for their benefit. If such assent was given, and plaintiff acted thereunder, then plaintiff becomes entitled to recover. If no assent wás given, or plaintiff acted for himself, then this action cannot be maintained. These were questions for the jury, and not the court.

The judgment appealed from should therefore be reversed, and a new trial granted; costs to abide the event,

All concur.


author: HATCH J.

text:
    Garrit Furman et ux. v. William H. Furman et al.

    (Supreme Court, Appellate Division, Second Department.
    October 6, 1896.)
    Conditional Order—Compliance with Conditions—Presumption.
    It will be presumed that costs imposed as a condition of vacating a judgment and discontinuing the action were paid, so as to authorize the entry of an absolute order, where no attempt was ever made to enforce
    • the judgment, or any measure taken to collect such costs, and a subsequent action was brought by the party entitled to the costs for the same relief as was sought in the discontinued action.
    Appeal from special term, Queens county.
    Action by Gafrit Furman and Julia Furman against William Furman and others for partition. From an order vacating and annulling a judgment and discontinuing the action, Minnie W« Furman and Mirabeau L. Towns appeal.
    Delos McCurdy, for appellants. Henry A. Monfort, for respondents.
   HATCH J.

The property affected by this order was originally owned by the grandfather of the plaintiff, who devised a life estate in the same to his son, William H. Furman, the father of the plaintiff, with remainder over to his issue. William H. Furman had five children, and each child took an undivided one-fifth interest in the property, subject to the life estate of William. In 1870 the latter proposed to the children that the property be partitioned, and this was assented to upon the understanding that there should be no sale of the property, but that it should be divided so that each would have his interest immediately available for a favorable market when a sale could be effected if the parties so desired. Confidence was reposed in the father by the children, and he was given exclusive management and control of the partition action. It was claimed that, instead of having the property divided, he procured to be entered a judgment of sale of the-property, and the appointment of a referee to sell. Upon the. property being advertised for sale, this condition was discovered by the plaintiff, who in August, 1877, procured an order to show cause why the judgment should not be set aside and vacated, and the action discontinued. This step resulted in au order of reference to Thomas S. Moore to determine the costs to which the respective parties were entitled, and, upon and being so determined and paid, the judgment was to be set asido the suit discontinued. While the partition action was pending, Victor B. W. Furman, one of the sons of William, died, and Minnie W. Furman, how Braun, one of present appellants, claiming to be the lawful issue of Victor, was brought in as a party defendant, and was adjudged to be the daughter of Victor, and entitled to share in the property. From the order vacating the judgment the said Minnie and William H. Furman appealed—the. former through her guardian ad litem—to the general term of the .sunreme court, where the order was affirmed. Furman v. Furman12 Hun, 441. Thereafter, and in May, 1879, all of the remainder, men except Mrs. Braun consented to an order, which was entered, vacating the judgment, and discontinuing the action without costs. Tire costs of the guardian ad litem not having been taxed under the former order, and Moore declining to act, another reference was ordered. Upon the coming in of the report'of the referee the court fixed the costs of the guardian at $95, and ordered that upon payment of the same the judgment should be vacated and the action discontinued. It does not affirmatively appear that this order was •complied with by the payment of the costs. It is now claimed that this judgment is in full force and vitality as to Minnie W. Braun, •and is res adjudicata of her legitimacy, and that the court has not the power, or if it has, ought not to exercise it in the disturbance ■of so grave and important a matter. It is further claimed that Mr. Towns, who has succeeded to some of the rights of Mrs. Braun, is improperly brought in as a party to this motion, and that his rights, cannot be disturbed or affected in this summary manner. It is clear that the court discontinued the action, contingent upon payment of costs. And the court, upon appeal, confirmed that decision. Without regard, therefore, to whatever lights were established by the judgment, or of the reasons which were assigned for the court’s action, that decision is res adjudicata; and upon compliance with the terms of the order all rights established by the judgment, however grave, were wiped out. As to all the remainder-men except Mrs. Braun, the judgment was annulled by affirmative -order, and all of the parties, including Mrs. Braun, have, by their acts; consistently asserted that the action was discontinued. If the judgment was to stand as to Mrs. Braun, then her rights in and to the property were definitely and affirmatively settled by the adjudication, and needed no further steps to make them effective, except by use of the remedy of enforcement. She, however, evidently understood that the judgment was no longer of validity as to her ; for in October, 1895, she and Towns, who claims under her, brought .an action for partition of the same premises,—an entirely unnecessary action, if the former judgment stood undisturbed. We think that this act upon her part is sufficient to raise the presumption that the order of discontinuance was complied with. Such presumption is still further strengthened by the action of the other remainder-men in entering the order of discontinuance, and the acts of all the parties in treating the judgment as annulled. Nearly all of the attorneys who appeared in or were connected with the action up to the order of discontinuance are now dead. And the costs could have been paid under the order of the court, and no record made of it; nor would it necessarily appear, unless formal order was entered reciting it. That no attempt wras ever made to enforce the judgment or other remedy resorted'to by the guardian to collect his costs is a strong circumstance in favor of the presumption, created by the action of Mrs. Braun, that the costs were paid and the ■order complied with. Nothing which appears in opposition to the motion tends in the slightest degree to overcome this presumption, Jior is explanation offered why Mrs. Braun and Towns commenced their parlition action IE they intended to claim under the judg ment There can be no question of the power of the court to malte the order appealed from, or to grant relief upon motion, whether the application be treated as in aid of the former order, or as an orginal application. Ladd v. Stevenson, 112 N. Y. 325, 20 S. R. 746; Vanderbuilt v. Schreyver, 81 N. Y. 646; Beards v. Wheeler, 76 N. Y. 213. So far as Towns is concerned, he -cannot be prejudiced by the order which has been made. He was mot a party to the action, and upon a trial he can now assert any right of which he is possessed.

We think the order appealed from correct. It should therefore be affirmed, with $10 costs and disbursements.

All concur.


text:
    William E. Clarke v. Nassau Electric R. Co.
    (Supreme Court, Appellate Division, Second Department,
    October 6, 1896.)
    1. Negligence—Defective Electric Wire—Bes Ipsa Loquitur.
    Where a horse, on stepping on the rail of defendant’s electric car line, received a fatal shock, the mere happening of the accident is enough to raise a presumption of negligence on the part of defendant.
    2. Same—When Maxim Applies.
    The maxim of'res ipsa loquitur relates merely to negligence prima facie, and is available without excluding all other possibilities.
    Action by William E. Clarke against the Nassau Electric Railroad Company to recover damages for the alleged negligence of defendant causing the death of the plaintiff’s horse. The complaint was dismissed in the county court, and plaintiff moves for a new trial on .exceptions ordered to be heard before the appellate division in the first instance.
    Abram H. Dailey, for appellant.
    James C. Church, for respondent.
   WILLARD BARTLETT, J.

The defendant maintains an ■electric railway in Brooklyn, which passes through Thirty-Ninth' street. According to an expert electrician, who was a witness for the plaintiff, the trolley wire is the positive and the rails form the negative pole, and the current, in the ordinary operation of the cars, passes from the overheard wires to the motor, and from the motor to the wheels, and from the wheels to the track. The overhead wires are insulated, so as to prevent the positive current from being conveyed away through the supporting trolley poles to the ground. This being the condition of things, the plaintiff, an expressman, was driving through Thirty-Ninth street on August 21, 1895, when his horse stepped on one of the rails of the defendant’s electric line with his left foot, sprang suddenly up into the air, and fell down upon the track, dying. The plaintiff, as he testifies, jumped out of his wagon, and, rushing to the horse’s head, seized the hames, when he himself received a shock which distorted his hands, and produced in them a sensation of numbness that lasted several weeks. The horse died in a few minutes. The present suit was instituted in the county court of Kings county to recover damages for the loss of the animal, whose value was proved to be from $100 to $250. The learned trial judge dismissed the complaint, holding that the action could not be sustained, and saying to plaintiff’s counsel :

“ This road was lawfully constructed, and there is no proof in the case that there was any fault in its construction, or that in its running there was any negligence. I think you are bound to show at least some fact from which an inference of negligence could be drawn. I am of the opinion that it would be mere speculation for the jury to say that this shock was the result of negligence, or inaction, or want of repair, on the part of this defendant.”

We find it impossible to take the same view of the proof. On the contrary, we think there was clearly enough in the plaintiff’s evidence to call upon the defendant for some explanation of the accident. That evidence amply warranted the inference that the horse was killed by an electric shock received from some source. The defendant confessedly had established -and was operating a railway which.employed electricity in wires over the street and in rails upon its surface. Here were sources from which, or agencies by which, an electric current eould be generated, under such conditions, and with such direction and force, as to be capable of killing a horse traveling along the roadbed, and touching one of the rails with his foot. It is true, the expert testimony indicated that such an accident could not occur unless, through the defective insulation a£ the overhead wires, some portion of the positive current was withdrawn therefrom, and found its way into the ground or other surface upon which the animal was stepping at the time he also came into contact with the negative rail; but the very accident itself tended to show that such defective insulation existed, or some other condition which would produce the same effect. The plaintiff or any other traveler suffering a similar misadventure could have no means of ascertaining the precise state of the defendant’s plant in respect to insulation or in respect to contact, with other sources of electrical energy. The fact that the defendant brought electricity into the street for use as a motive power, and the fact that electricity so employed was capable of escaping in such a w.ay as to produce the casualty which actually took place were sufficient, taken together, to justify the inference that the accident was due to the agency of the defendant, in the absence of proof that it was otherwise caused. The maxim “ Res ipsa loquitur” is directly applicable. Scott v. Docks Co., 3 Hurl. & C. 596; Kearney v. Railroad Co., L. R. 5 Q. B. 411, L. R. 6 Q. B. 759. The learned counsel for the respondent, in his brief, apparently assumes that this doctrine can not be invoked unless the facts are such as to exclude every hypothesis but that of the defendant’s negligence, and argues that the railroad in Thirty-Ninth street might have been in perfect order, and that the accident might have been occasioned by the carelessness of third persons engaged in stringing telegraph or telephone or electric light wires. But the rule is one which relates merely to negligence prima facie, and it is available without excluding all other possibilities. The case of the warehouseman who stores barrels furnishes a good example of the proper application of the doctrine. “It is the duty of persons who keep barrels in a warehouse to take care that they do not roll out,” said Chief Barron Pollock in Byrne v. Boadle, 2 Hurl. & C. 722, “and I think that such a case would, beyond all doubt, afford prima facie evidence of negligence.” And yet, while proof of injury to the plaintiff by the fall of such a barrel would sustain a verdict in his favor against the warehouseman, in the absence of a sufficient explanation constituting a defense, nevertheless the prima facie case might be completely overcome by evidence in behalf of thé defendant, who might prove, for instance, that the accident was wholly due to the malicious act of a trespasser upon his premises. So in the case of Kearney v. Railway Co,, supra, where the plaintiff was injured by a fall of a brick from a railway bridge, just after a train had passed over it, it was held that the accident itself gave rise to a presumption of negligence, notwithstanding the possibility that the brick might have been loosened by the action of frost or some sadden change in the temperature operating so rapidly that the utmost care could not have prevented its fall. The doctrine of res ipsa loquitur simply calls upon the defendant, after proof of the accident, to give such evidence as will exonerate him, if any there be, and relieves the plaintiff from the burden of proving the non-existence of an adequate explanation or excuse.

We are asked wholly to discredit the plaintiff’s evidence, because there is some testimony in the record to the effect that an electric shock sufficient to-have killed his horse, would have left marks on the animal’s body. As to this point it is sufficient to say that the case does not show whether there were any scars on the horse or not.

The exceptions must be sustained, and a new trial granted, with costs to abide the event All concur.


author: PER CURIAM.

text:
    People ex rel. Crummey v. George W. Palmer, Comptroller.
    (Supreme Court, Appellate Division, Second Department,
    Oct. 6 1896.)
    Oivil service law—Confidential position.
    The assistant warrant clerk in the office of the comptroller of the city of Brooklyn, whose duties are to look up the accounts against which warrants are drawn, and to act as messenger between the officers who sign and countersign warrants, does not occupy a confidential position, though he sometimes, in the absence of the warrant clerk, fills up warrants.
    Appeal from special term, Kings county.
    Application by Robert. Grummey for a writ of mandamus to -compel George W. Palmer, comptroller of the city of Brooklyn, to restore relator to the position of assistant warrant clerk in the comptroller’s office. Relator’s duties were to help in finding the proper accounts against which warrants should be drawn; to act as a messenger of the deputy comptroller and warrant clerk among the different officials who sign, countersign, and examine warrants; to examine lien dockets, etc., though not for the purpose of filling out warrants or handling money; and, in the absence of the warrant clerk, to fill out warrants. A peremptory writ was granted, an'1 defendant appeals.
    Alfred E. Mudge, Asst. Corp. Counsel, and Samuel T. Maddox, for appellant.
    James C. Cropsey, for respondent.
   PER CURIAM.

In January, 1895, the relator, who was a veteran fireman, held the position of assistant warrant clerk in the office of the comptroller of the city of Brooklyn. He was removed from that position by the comptroller, without cause shown or hearing had; and, to procure his reinstatement, he instituted this mandamus proceeding. An alternative writ was granted, to which a return was made, setting up, by way of defense, that the-comptroller, prior to the service of the papers herein, had no-knowledge whatever that the relator was or claimed to be a veteran fireman, or entitled to any privileges under chapter 577 of the Laws of 1892; and, furthermore, that the relator’s position was a confidential relation to the appointing officer, and therefore excepted from the operation of that statute. When the issue ■thus joined came on to be tried, the justice who presided at the trial held, as matter of law, that the relator did not occupy any confidential relation to the comptroller, but the court submitted to the jury the question whether he had waived any of his rights- and privileges, under chapter 577 of the Laws of 1892, by any action or want of action on his part. This question the jury answered in the negative. They also assessed the relator’s damages under section 2088 of the Code of Civil Procedure, in the sum of $1,375. From the final order entered upon this verdict, as well as from an order denying his motion for a new trial, the comply trailer now appeals.

In our opinion, the proceedings have been regular and without substantial error, and the orders made below must be affirmed. The position occupied by the relator was not a confidential relation to the appointing officer. People v. Sutton, 88 Hun, 173; 68 S. R. 494. The rulings of the court upon the trial were correct. The failure to serve notice to produce the papers which the relator claimed to have mailed to the comptroller, in regard to his service as a fireman, and whose contents he was allowed to prove, was of no importance, in view of the comptroller’s denial that he had ever received such papers. The proof that the relator had not had any employment since his discharge was beneficial, rather than injurious, to the comptroller on the question of damages, since the learned trial judge held that it was relator’s duty to get work if he could. The questions put to the comptroller on. cross-examination, as to what he had said in reference to veteran firemen generally, were permissible within the discieiion of the court* The exclusion of the civil service regulations was not error. Even, though the civil service commissioners of the city of Brooklyn deemed the relator's position to be a confidential one, for the purpose of classifying positions in the municipal service, we do not think their conclusion in this respect would be binding upon the court in the construction or application of the veteran act, whose protection was invoked by the relator in this proceeding. The advice which the comptroller received from counsel, as to his-power to remove veteran firemen generally, was immaterial, and was properly excluded. It did not apply to the case of the relator. The comptroller himself could hardly have deemed the relator’s position to be confidential, for he testified upon cross-examination : “ IE I had known that Crummey was a veteran fireman, I would not have dismissed him. I would have retained him, because I believe I would have no right to dismiss him.” Ample • authority for allowing the jury to assess the damages sustained by the relator is found in the provisions of section 2088 of the Cod© of Civil Procedure.

The orders, appealed from must be affirmed, with costs.


text:
    Edward H. Moubray v. Richard Dieckman et al.

    (Supreme Court, Appellate Division, Second Department,
    Oct. 6, 1896.)
    1. Specific performance—Recovery of damages.
    Damages may be awarded in an action for specific performance, though the specific performance is denied.
    3. Same—Parties.
    In an action for specific performance of a contract to convey land,, the person who holds the legal title is a necessary defendant, though he has no beneficial interest.
    3, Action—Joinder of causes.
    A complaint may ask for specific performance, or, in the event that such relief can not he decreed, for an award of damages, or may ask for both specific performance and damages.
    Appeal from special term, Kings county.
    Action by Edward H. Moubray against Bichard Dieckman and another for specific performance of a contract entered into between plaintiff and defendant Eunston for the exchange of real estate in the city of Brooklyn, the record and titte to which was in defendant Dieckman. From an interlocutory judgment overruling defendant Dieckman’s demurrer, said defendant appeals,
    Charles M. Stafford, for appellant.
    Charles M. Snedeker, for respondent.
   PER CURIAM.

The appeal in this case is without merit, and, upon the law, does not present a debatable question. It is well settled that an action for specific performance the specific relief may he denied, and an award of damages may be made. Hoffey v. Lynch, 143 N. Y. 241; 62 S. R. 171; O’Beirne v. Bulbs, 2 App. Div. 545; 38 N. Y. Supp. 4. The pleader had the clear right to ask for speeihc performance, or, in the event that it could not be decreed, to ask for an award of damages, or to ask for both specific performance and damages. Witherbee v. Meyer, 84 Hun, 146; 65 S. R 806. Dieckman was a necessary party, as he held the legal title. The complaint alleged that he was without interest in fact, but that he held the legal title for the benefit of the other defendant, who alone was beneficially interested. In order to obtain specific performance, it was absolutely necessary that Dieckman be made a party, in order that the proper conveyance might be made. In section 447, Code Civ. Proe., is found the authority for making him a party; and the fact that he might not be affected by the judgment if specific performance was denied, and damages awarded, in no way affects the question of his proper joinder as a party defendant in the action.

The judgment appealed from should be affirmed, with costs, with leave to the defendant Dieckman to answer within 20 days after the service of a copy of the judgment, on payment of costs.


text:
    Manhattan Rubber Shoe Co. v. Chicago, B. & Q. R. Co.
    (Supreme Court, Appellate Division, Second Department,
    October 6, 1896.)
    1. Carriers—Storing goods at destination.
    Where the consignee refuses to accept goods, the carrier may place them in storage, and thereby relieve itself from further responsibility.
    $. Same—Refusal of consignee to accept goods—Notice.
    A carrier need not give the consignor notice that the consignee refuses to accept the goods, where such notice was given by the consignee.
    Appeal from trial term, Suffolk country.
    Action by the Manhattan Rubber Shoe Company against the Chicago, Burlington & Quincy Railroad Company to recover damages for the alleged nondelivery of goods shipped by plaintiff over defendant’s railroad. From a judgment entered on the verdict in favor of defendant, and from an order denying the motion for a new trial made on the minutes of the court, plaintiff appeals.
    Thomas J. Ritch, Jr., for appellant.
    Edwin D. Worcester, Jr., for respondent.
   CULLEN, J.

The plaintiff shipped by the defendant’s railroad certain cases of rubber goods, consigned to Kirkendall, Jones & Co., Omaha, Neb. When the goods arrived at Omaha the defendant delivered them to a local express company, who for many years has received the goods consigned to Kirkenclali, Jones & Co., the express company paying defendant the freight;. The consignees refused to accept the goods from the express company, asserting that they had not bought or ordered them. Thereupon the express company took the goods back to the station, saying to the defendant’s agents that the consignees had refused to accept them, but that the matter would probably be settled in a short time. The ■express company asked and obtained permission to place the goods, for a short time, in the station building. The goods remained there for some four or five weeks, when the express company placed them in the warehouse of one Stimmel on storage. Here they remained for a year when Stimmel sold the goods at auction for unpaid storage. Subsequently Stimmel failed, and the plaintiff was unable to obtain from him the proceeds of the sale. The defendant gave the plaintiff no notice of the refusal of the consignees to accept the goods, nor of their subsequent disposal of them. Immediately after the arrival of the goods at Omaha, the consignees wrote to the plaintiff that they had rejected the goods, and that the goods were at the depot, subject to plaintiff’s orders. To this plaintiff answered, acknowledging that its agent had improperly shipped the goods, and requesting the consignees to “ take them in,” the parties to arrange subsequently the terms. Here the correspondence seems to have ceased, and the plaintiff took no further action in the matter. The cause was submitted to the jury under instructions that, if the local express company had authority from the consignees to receive and accept goods consigned to them, then, by the delivery to the express company, the defendants discharged its duty, and was not liable, but, if the express company had not such authority, then the defendant was liable. The plaintiff took no exception to this charge, nor did it ask for a direction of a verdict in its favor. But, having made a motion for a new trial, it now insists, upon an appeal from an order denying that motion, that the evidence to establish the authority of the express company to bind the consignees was not sufficient to j ustify the submission of that question to the jury.

We are not required to decide the question now raised, as we think that, on the undisputed facts of the case, the defendant was not liable. The defendant had fulfilled its contract, and discharged its duty as a carrier, when it tendered the goods to the consignees. Its subsequent liability was that of a warehouseman. Fenner v. Railroad Co., 44 N. Y. 505; Weed v. Barney, 45 id. 344. And it could discharge itself from further responsibility in that respect by placing the goods in store, for the account of the owner, in the warehouse of a responsible person. Fisk v. Newton, 1 Denio, 45; Mayell v. Potter, 2 Johns. cas. 371; Hamilton v. Nickerson, 11 Allen, 308. Therefore, even if the express company be deemed the agent of the defendant in storing the goods, the course taken was proper. This much the learned counsel for the appellant concedes, but he insists that the defendant is liable because it failed to give the plaintiff notice that the consignee had rejected the goods or notice of their storage. We think it is not the law that the carrier must invariably give such notice to the shipper. In Fisk v. Newton, supra, no notice was given to the consignor, yet the defendant was held not liable. In Weed v. Barney, supra, it is said:

“ But it is insisted that the defendant should have given notice to the consignor when the consignees did not receive and pay for the package. Was there any contract so to do ? * * * The authorities would not seem to require notice, under the facts of this case, though notice may sometimes he necessary.”

The true rule seems to be that if the carrier has not the right to abandon or unnecessarily expose the goods to loss or damage, but. must conduct himself as a reasonable man would do with reference to them, and that the carrier is bound to give notice only when reasonable care would require it. Hudson v. Baxendale, 2. Hurl. & N. 574; Kremer v. Express Co., 6 Gold. 356. The object of giving notice is to impart information. In the case before-us the plaintiff was informed by the consignees that the goods shipped had arrived, had been rejected, and were then at the station. To this the plaintiff answered, practically asking the eolito take charge of the goods. From that time till the sale of the goods—a period of a year—the plaintiff did nothing. It may have had no notice that the goods had been stored with Stimmel, but the absence of such information does not affect the question, for the plaintiff made no inquiry upon the subject. When the plaintiff knew that the goods were rejected, it was its duty to have at once taken action in the matter, and directed the disposition tobe made of the property. It could at any time have obtained any information by inquiry of the defendant. It could not, by its inaction, cast the duty of caring for its property upon the railroad company—a duty properly imposed upon itself. The loss to the plaintiff in this ease has occurred solely by its gross negligence in failing to look after its own property, and not from the fault of the defendant.

Tiie judgment and order appealed from should be affirmed with costs. All concur.