author: Rumsey, J.

text:
    Mary S. Brooks, Pl’ff, v. Rochester Railway Company, Def’t.

      (Supreme Court, Monroe Special Term,

      Filed October, 1894.

    1. Witness—Credibility—Contradiction.
    The cross-examination, of an expert as to testimony given by him on another action, in order to affect his credit, is discretionary with the court.
    2. Trial—Submission or case.
    Tiie testimony of a physician that he “thinks ” the injuries are permanent, warrants the submission of that question to the jury.
    3. Evidence—Judgment.
    The record of a judgment in a former action is admissible if it tends to prove any relevant fact.
    4 Appeal—Error cured.
    Where something has been inadvertently said by the court which might bear hardly upon one or the other party, the retraction of these remarks will cure any error that might have been committed.
    6. Trial—Charge.
    Where the plaintiff has refused to permit an examination of her injuries by defendant’s physician, a refusal to instruct that defendant could not procure an examination without her consent, is not error.
    6. New trial—Fraud upon court and jury. '
    A new trial in cases, where it is claimed that a fraud has been practiced upon the court and the jury, can properly be granted only where the evidence of such fraud is exceedingly strong.
    Motion for a new trial on the minutes and affidavits.

      W. & Subbell, for pl’ff ;'G J. Bissell, for def’t.
   Rumsey, J.

These two motions, although made and argued at different times, were finally submitted at the same time, and for convenience they will be considered together. The case is one which has interested me very considerably, not only on account of its peculiarities, but because of the earnestness with which the positions of the defendant have been presented upon these two motions.

The motion for a new trial upon the minutes is made solely upon certain of the exceptions, which will be considered in the order in which they are presented. In the first place, it is claimed that the court erred in sustaining the objection made by the plaintiff to cer tain questions asked of Dr. Julia F. Haywood upon cross-examinatian. This action was the second which was brought by the plaintiff against this defendant, the first action having been brought for a previous injury which she claimed to have sustained because of the negligence of the defendant, and this action having been brought for another negligence causing a second injury, which she received before she had entirely recovered from the injuries received in the first accident Upon the trial of the first action, Mrs. Haywood, who was the attending physician of the plaintiff, had been sworn as a witness, and had testified to the nature and extent of the injuries then received. Those injuries consisted of a hurt to the back of the plaintiff, and also, as testified by Mrs. Haywood, to a broken kneepan. A good deal of testimony was given upon the first trial as to the inj ury to the knee, and the extent and permanency of that injury was the principal question then litigated. Upon this trial, Mrs. Haywood was again sworn as a witness. At this time no claim was made for an injury to the knee, but the claim of the plaintiff, in substance, was that the former injury to her back, received at the first accident, was so aggravated by the injuries received at the second accident that it had become permanent in its nature, and it was for this permanent injury that she sought to recover. It will be seen, therefore, that the injury to the knee was not at all in litigation upon this trial. After Mrs. Haywood had been examined in this case, and had given her testimony as to the facts of the plaintiff’s condition, and as to the probable result of her injuries, she was asked, upon cross-examination by defendant’s counsel, referring to the injury to the knee at the former accident, “You expressed an opinion that that was a permanent injury, and that she never would recover from it, at the last trial, did you not ? ” which was objected to as immaterial, and the objection was sustained. Subsequently, the defendant’s counsel asked this question, “ I -ask you if you are still of the opinion which you were,— that the injury to the knee is a permanent one; ” to which an objection taken by the plaintiff’s counsel was sustained. To each ruling the defendant’s counsel excepted, and this ruling is insisted upon as an error. It is very evident that the injury to the knee was entirely a collateral matter, and that any question asked this witness could be material, if at all, only by way of affecting the credit to which she was entitled as an expert. It was undoubtedly not an improper cross-examination to show by her, even upon a collateral matter, that at another time she had been mistaken in an opinion which she had expressed upon the trial; but the extent of the examination upon such a matter is entirely within the discretion of the court, aud_ unless there is a clear abuse of that discretion, so that it is apparent that a manifest injustice has been done by its exercise, the exception to it will not be sustained. It is impossible to gather from the case that there was any abuse of the discretion, or that any injury resulted to the defendant from it, and for that reason I think that the exception is not well taken.

The next exception taken was to the action of the court in submitting to the jury the question whether the injury to the wrist was or was not a permanent one. It is very clear that the evidence upon this subject was exceeding slight; so slight that I have had grave doubts whether or not it was not error to submit it to the jury. It consists solely of the opinions of Mrs. Dr. Haywood, supplemented very slightly by the evidence of Dr. Wolcott, who does not, however, undertake to give an opinion as to the permanency of the inj ury to the wrist. Whether, upon the testimony, there could be a finding that the injury to the wrist was permanent, it is not necessary to discuss. The question here is simply whether there was any evidence which ought to have been submitted to the jury, so that it should be left to them to decide as to the permanency of that injury. That question must, I think, be answered in the affirmative. In the nature of things, there could be no proof of the permanency of that injury except the opinion of those people whom the law recognizes as competent to give a judgment upon those subjects. Mrs. Haywood was such a person. After having described the condition, she gave her opinion that the plaintiff would never entirely recover from the condition which she described; and, while that opinion was prefaced by the words “ I think,” it still was an opinion, and was given as such, and was the only thing which could be said upon the subject, because whether the injury was or was not permanent was simply to be answered by the expression of an opinion. That being in the case, and properly there, I think' that it should have been submitted to the jury to pass upon the weight which they would give to it. It is quite true that a party is not entitled to recover for a permanent injury unless from the evidence it can be said that there is a reasonable certainty that the injury is permanent. But when a competent physician, acquainted with the facts, and judging from objective symptoms which are consistent with the opinion expressed, expresses an opinion that in his judgment an injury will be permanent, the jury may, I think, find upon such testimony that the opinion is well founded. Certainly, when such an opinion is expressed in that way, the question is for the jury, and not for the court.

I do not see that there was any error in the admission of the record of the judgment in the former action. That it was competent between the parties, of course, is not disputed, and it necessarily was admissible if it tended to prove any relevant fact It was none the less material if such fact had been proved by other testimony. That some of the facts which were established by this record were relevant in the case cannot be denied. It was material for the plaintiff to show the time when the other accident took place, the time of the trial of .that action, and the nature of the claim which was there made. All these things had a direct bearing upon the question of damages in this case. They were all established by the admission of this judgment-roll; and for that reason, I think, it was not immaterial, and consequently it was not error to receive it.

It was seriously disputed, upon the trial, what was the nature and dxtent of the claim made by the plaintiff upon the other trial. As to that, considerable was said by the counsel for the defendant, and an. argument to the jury was based upon the claim which he made with regard to that contention. In the charge, the judge presiding gave to the jury his recollection of the claim which was submitted to the jury upon the first trial, at which, also, he presided. His recollection differed from that of counsel, and took away much of the weight of the argument of the defendant to the jury. Upon the attention of the court having been called to this portion of the charge by an exception, it was withdrawn from the jury, and they were told to dismiss it from their minds. The defendant’s counsel now suggests that, this action of the court, in giving his recollection of what occurred upon the former trial, was an error, and that for that error this verdict should be set aside. Upon a careful consideration of the case I am very clearly of the opinion that it would have been better had the court refrained from saying what was said upon that subject, but yet it was not beyond the right of the judge to say what he did to the jury. At the most, it was an error of judgment. Such a thing as that is not a reversible error, unless it shall be made to appear, by proof or by necessary inference, that injustice was caused by it. I think it does not so appear in this case. The question presented to the jury was the nature and extent of the injuries as they had been shown to exist in the particular case which was on trial. That was to be decided by the evidence then before them. It was not claimed that upon the former trial there was any false swearing which should detract from the credit of the witnesses, but simply that there was a claim made of greater injury than was actually shown to have existed. It cannot be inferred that, because such a claim was made in that trial, the evidence upon this trial should be discredited; and unless that was the result, I cannot see how the extent of the claim upon the other trial was particularly material. For that reason I think that, even had these remarks been permitted to stand without explanation or correction, no such injustice could be predicated as the result of them which would warrant the granting of a new trial. But they were not permitted to stand. The jury were told that the court ought not to have said anything about it, and to dismiss what was said from their minds, and that the question for them was not what was claimed, but what was adjudicated upon the former trial. This was a full and complete retraction upon the part of the court of what had been said upon that subject, and the presumption must be, I think, that the jury received it precisely as it was intended they should. It is a well-settled rule of law, now, that where improper testimony has been received, but is subsequently stricken out, and the jury directed to disregard it, the error is cured. Holmes v. Moffat, 120 N. Y. 159; 30 St. Rep. 779; Lindsey v. People, 67 Barb. 548; 63 N. Y. 143. The case oí Erben v. Lorillard, 19 N. Y. 299, does not establish any proposition contrary to this, as will be seen from the opinion of Judge Parker in Holmes v. Moffat, 120 N. Y. 159; 30 St. Rep. 779. It is also the rule that where the judge has made a mistake in his charge to the jury, and afterwards corrected it, so that the jury may understand what the correct ruling is, the error is cured. Chapman v. Erie Railway Co., 55 N. Y. 579. The reason of those rules is that it will be presumed that the jury have done what the court directed them to do. Applying that rule to this case, it must be that, where something has been inadvertently said by the court which might bear hardly upon one party or the other, the retraction of these remarks will cure any error that might have been committed. Especially must this be so unless there is something to show that the retraction was not accepted by the jury. In the absence of actual proof that injustice was done, it would be a very inconvenient rule to lay down that a verdict was to be set aside for any phrase which might inadvertently be spoken by the court, which tended to show a bias on one side or the other. All that can be asked by either party is that the law shall be properly laid down, and that the evidence, if stated or summarized, shall be fairly stated. It is not only the right, but in many cases the duty, of the court, in charging the jury, to advise them as to his impressions in regard to the case, where, in his.judgment, such advice is necessary to prevent the jury from falling into error or from doing an injustice. The power of the court to do this is essential, in my judgment, to the proper conduct of a jury trial, and a verdict is mot to be set aside for such expressions unless it is plain to be seen that they have caused an injustice.

The defendant also excepted to the refusal of the court to charge that, under the existing law, the defendant could not obtain an examination of the plaintiff without her consent. That charge was refused because, as the court expressed it, the point was not regarded by him as being material in the case. During the trial the plaintiff, who gave considerable testimony as to the extent of her injuries, was asked if she would permit an examination to be bad by the physicians of the defendant, which she declined to do. Her refusal to do this was the subject of comment, as it might properly be. It was of no importance to the jury whether or not the defendant had power, by application to the court, to procure such an examination. The only point to be made to the jury, and which was made, was that the plaintiff was not willing to permit any physician to examine her except such as she herself had selected. For that reason I do not think it was error for the court to refuse to charge the jury as to what were the absolute legal rights of the defendant in that regard.

The defendant’s counsel asked the court to charge the jury that the presumption was that upon the former trial the jury gave to the plaintiff damages for the injuries to her back, not only up to the time of the trial, but for such reasonable time beyond that as they might have believed they would exist, even if they did not believe they were permanent. The court declined to charge in these words, but did give to the jury what is conceded to have been the true rule of law. Upon careful consideration, I am still of the opinion that the charge, as given, was all to which the defendant was entitled, and that the exception to it was not well taken. For these reasons the motion for a new trial upon the minutes must be denied.

At the special term a motion was made upon a case and affidavits for a new trial. The evidence given on the trial tended strongly to show that the injury to the plaintiff’s back was a permanent one, from which she would probably never recover. The case was submitted to the jury upon this theory, and they were told that, if they believed the injury was permanent, they should make their award for damages accordingly. The verdict was a very considerable one, and was undoubtedly based to some extent upon the idea that the injury was permanent. The affidavits presented by the defendant’s counsel upon this motion tended to show that after the trial the plaintiff’s condition rapidly changed for the better to such an extent that it was fair to infer that she was somewhat of a malingerer, and that she had nursed her symptoms and her injuries up to the time of the trial for the purpose of increasing the verdict which she might get. Upon this condition of affairs the defendant moves for a new trial, basing its motion upon the case of Cole v. Fall Brook Coal Co., 40 St. Rep. 834; 16 N. Y. Supp. 789. In that case Cole had recovered a very large verdict against the Fall Brook Coal Company, upon the theory—which the evidence tended to sustain—that the injury received by him was of such a nature that he was physically ruined, and would be utterly unable to do any work, to stand erect, or to support himself at all. The affidavits presented by the defendant upon that motion showed that immediately after the verdict hehad experienced a sudden and miraculous recovery, having become, from a confirmed invalid, a strong and vigorous man, able to do a day’s work as well as anybody, and to defeat in single encounter a strong and vigorous young man, who was one of the prominent witnesses against him on the trial. The court held that this condition of affairs tended to establish a practical fraud practiced upon the court and the jury, and that justice required that these new facts should be presented to another jury, which might pass upon the question of the damages suffered, and of all those facts before it. I am not disposed in the slightest to limit the rule laid down in Cole v. Fall Brook Coal Co., which I regard as essential for the administration of justice, not only in negligence, but in all other cases. It is not to be denied, however', that a new trial in such cases can only properly be granted where the evidence of fraud practiced upon the court is exceedingly strong. Ordinarily where a question has been thoroughly litigated upon both sides, and the witnesses fully cross-examined, it is better that the verdict rendered upon such an examination should be permitted to stand, even though there may be some doubt as to the correctness of the result which has been reached. Such a verdict should only be set aside when the court is thoroughly satisfied that a fraud has been committed. I have examined the affidavits in this case with considerable care, and I was much impressed with the argument of the learned counsel for the defendant upon this motion ; but after such a careful examination of the affidavits I am of the opinion that there is no such proof that a fraud was practiced upon the court in this testimony as would warrant the granting of a new trial. Nor does it seem to me that all these facts necessarily establish that the plaintiff is not suffering, to some extent, with the spinal trouble which was shown to exist at the time of the trial. It is quite true that the young men who made the affidavits on behalf of the defendant swear to facts which, unexplained, would warrant the inference that the plaintiff had very considerably improved from the condition which the evidence showed her to be in at the time of the trial; but the. testimony of the two physicians from Northville, who examined her carefully, and the evidence of the lay witnesses, lead me to believe that the inferences to be drawn from the defendant’s affidavits are not of a complete recovery, or even of a recovery to any considerable extent, but I am compelled to infer, from all the affidavits, that the evidence shows that the plaintiff is still a sufferer from the same trouble from which she suffered at the trial as the result of the injury.

For these reasons the motion for a new trial upon these affidavits must also be denied.

Motion denied.


source: Caselaw Access Project

author: Gtldersleeve, J.

license: Public Domain

text:
    John H. Smallwood et al., Pl’ffs, v. Herman H. Schwietering et al., Def’ts.

      (New York Superior Court, Special Term,

      Filed October, 1894.)

    Costs—Extra allowance.
    An extra allowance cannot be granted in an action to enjoin the sale of shares of stock.
    Motion for an extra allowance.

      Lamed, Warren & Knapp, for motion; Preston Stevenson, opposed.
   Gtldersleeve, J.

This is a motion for an additional allowance. The action was brought to restrain the defendants from disposing of certain shares of stock which had been given to them as security for the payment of certain promissory notes. The trial occupied several days, and resulted in favor of the defendants, who now move for an extra allowance. While it may be conceded that the action is a difficult and extraordinary one within the meaning of the statute (Code, § 3253), still I can find nothing upon which to base an extra allowance. The statute allows five per centum “ upon the sum recovered dr claimed, or the value of the subject-matter involved.” There is no sum recovered or claimed, and no method of fixing the definite value of the subject-matter involved. The right of the defendants to sell the shares of ■ stock at their pleasure, and without notice to the plaintiffs, is the subject-matter involved. The amount of the promissory notes for which the shares were given as security, was originally $10,-000, but considerable sums have been paid upon these notes, both before and since the commencement of, the action. Some of the payments are not yet due. Even if we assume that the shares of stock form the subject-matter involved, there is still nothing upon which to base an extra allowance; for it is impossible to say what these shares would have brought at the time of the commencement of the action, or what they would bring at the present time. It is not sufficient that a case is one where there may have been a pecuniary value to the subject-matter involved in the litigation. If the value is not shown and no evidence, admission or proof given from which the court can arrive at any conclusion as to the value, no allowance can be made. Hanover Fire Ins. Co. v. Germania Fire Ins. Co., 138 N. Y. 252; 52 St. Rep. 334. But the subject-matter of the action is the right of defendants to sell the shares without notice to the plaintiffs. Of the value of this right there is no evidence. It, therefore, seems to me that, although the case is a difficult and extraordinary one within the meaning of the statute, still, as the value of the subject-matter involved cannot be computed, and no sum has been recovered or is claimed, it is not a proper case for an allowance. People v. Genesee Val. Canal R. Co., 95 N. Y. 666.

Motion denied.


author: Bischoff, J.—

text:
    Charles E. Fleming et al., App’lts, v. Martin F. Ryan et al., Resp’ts.

      (New York Common Pleas, General Term,

      Piled December 3, 1894.)

    Principal and agent—Authority.
    The acceptance of rent by an agent, who is authorized to lease, is not a ratification of an alleged lease made by another agent, whose only authority was to collect rents.
    Appeal from a judgment in favor of the defendants.

      Moses Weinman, for app’lts; H. M. Gescheidt, for resp’ts.
   Bischoff, J.—

Upon the former appeal in this proceeding, (Fleming v. Ryan, 9 Misc. Rep. 496; 61 St. Rep. 99) we held that the evidence taken upon the trial failed to support the various theories whereby the defendant Johanna Ryan sought to justify the final order awarding her the possession of the premises, and it is now claimed that the testimony given upon the second trial supports the similar order thereupon made, and from which the landlords have taken this appeal. The record of the first trial was by stipulation made evidence in the second, and upon this evidence the plaintiffs rested their case in chief. The defense, which, upon the first trial, this court held to have been unsuccessfully attempted, proceeded upon the theory that a verbal lease of the premises in question had been given to the tenant defendant either by the landlord’s agent, Burnham, or by their agent, Place, and the case turned upon the nature of the conversations had with the former and the lack of authority in the latter to make leases. It is contended by the respondents’ counsel that the transactions had with Burnham were shown by the defendant Johanna Ryan’s testimony, as now given, to have resulted in the making of a lease ; but in view of the testimony given by Burn-ham at the first trial, which, upon the former appeal, we held to be deserving of credit, rather than that of the defendant, and the direct contradiction by this witness, Ryan, of her previous testimony, taken together with the evasive character of her answers upon cross-examination, and her failure to in any way explain the inconsistencies noted when confronted with them, we unhesitatingly hold the weight of the evidence upon this issue to be with the appellants.

With regard to the claim that the alleged lease from Place was confirmed by Burnham, it suffices to say that, crediting the tenant’s testimony, it appears merely that she was instructed by the latter agent to pay certain arrears of rent to the former; and this clearly had not any such effect as that contended for; neither did it intend the ratification of any acts beyond the scope of that agent’s customary duties, of which the receiving of rent was one.

The claim is also made that the tenant had obtained a lease of the premises from the firm of Beadleston & Woerz, to which firm a lease had been given by the agent, Burnham, after the date of the conversation had with him by her; and it certainly appears that some transactions were had between these parties, although there is a conflict between the testimony of Johanna Ryan and of the plaintiffs’ witnesses as to what the exact particulars of the agreement were.

However, it very clearly appears from the evidence that this tenant, Ryan, understood this agreement, whatever its terms, to be executory merely ; that the execution of certain papers, whatever she took to be their nature, was an essential part of the transaction; that a written lease was to be produced and executed and that the verbal negotiations but looked to the final execution of that instrument according to the terms considered. Moreover, at the time of these negotiations, Beadleston & Woerz had obtained no lease of the premises from the plaintiffs, having merely been promised one, and it was when they had obtained the lease as expected that the completion of their agreement with the defendant was offered by them and refused by her. In view of the facts of this litigation, these circumstances are found to have much significance upon the probabilities of the case. What would have been the effect of a positive agreement of lease made between the third parties and the defendant under the circumstances noted it is unnecessary now to state, since it is clear to us upon the evidence that no such agreement resulted. Our conclusion is that the preponderance of the evidence upon the whole issue was with the appellants, and that the determination of the court below is not to be supported.

Final order reversed, with costs, and new trial ordered.


author: Pryor, J.

text:
    Peter McDugan, Resp’t, v. New York Central and Hudson River Railroad Company, App’lt.

      (New York Common Pleas, General Term,

      Filed December 3, 1894.)

      1. Master and servant—Place and appliance.
    Where the servant enters upon service with knowledge of an unsafe place or appliance, the master is under no obligation to alter or amend its condition.
    2. Same—-Risks.
    By entering the employment with such knowledge, the servant assumes the risks of the dangerous place or appliance.
    3. Same—Duty oe servant.
    The servant, in such case, must use due diligence in ascertaining the danger.
    4. Same.
    Such opportunity for knowledge is the legal equivalent of actual knowledge.

      5. Negligence—Contributory.
    Contributory negligence was held sufficient to defeat the action.
    6. Appeal—Verdict against evidence.
    The general term set aside the verdict in favor of the plaintiff as against the weight of evidence.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a new trial.

      Daniel W. Tears, for app'lt; Gilbert D. Lamb, for resp’t.
   Pryor, J.

Manifestly, negligence is not to be imputed to the defendant because of its omission to promulgate rules for the protection of the plaintiff in the performance of his very simple duties, and against the casualty by which he sustained the injury. Berrigan v. N. Y., L. E. & W. R. R. Co., 131 N. Y. 582; 42 St. Rep. 858. The negligence with which the defendant is charged consists in laying its tracks in such close proximity-—-about seven inches at the place of accident—as to expose the plaintiff to the danger incurred. But the arrangement of the tracks was permanent, existed at the time the plaintiff entered the defendant’s service, and was obvious to the eye of any one. The plaintiff was an experienced bralceman. For eight days he had worked in defendant’s freight yard, for two days and a night about the locality of the occurrence, and for three hours that very morning. It was broad daylight. The plaintiff denies knowledge of the condition of the tracks, but nevertheless we are of the opinion that upon this uncontroverted state of fact he has no cause of action. The action proceeds on the postulate of a violation of a duty on the part of the defendant to the plaintiff. But.to one engaging in service with knowledge of an unsafe place or appliance a master is under no obligation to alter or amend the condition of the place or appliance. By entering upon the employment with such knowledge the servant himself assumes the hazards of the dangerous place or appliance; and if, by due diligence, the servant may ascertain the danger, but chooses rather to forebear the exercise of that care, such opportunity of knowledge is the legal equivalent of knowledge. In law, what a man ought to know he doesknow. These propositions are so sustained by adjudication, as to be now settled principles in the law of negligence. “Though it is part of the implied contract between master and servant that the master shall provide suitable instruments and a suitable place for the servant, yet it is the power of the servant to dispense with this obligation. When he assents, therefore, to occupy the place prepared for him, and incur the dangers to which he will be exposed thereby, having sufficient intelligence and knowledge to comprehend them, it is not a question whether such place might, with reasonable care and by reasonable expense have been made safe. His assent has dispensed with the performance on the part of the master of the duty to make it so. Having consented to serve in the way and manner in which the business was being conducted, be has no proper ground of complaint, even if reasonable precautions have been neglected.” Sullivan v. Manufacturing Co., 113 Mass. 396. “There was no danger which, in view of the plaintiff’s knowledge and capacity, must not have been well understood by and apparent to him, and there was therefore no negligence on the part of the defendant in exposing him to it.” Goodnow v. Emery Mills, 146 Mass. 261; Leary v. Railroad Co., 139 Mass. 580. “-It is the right of the employer to carry on his own business in the manner that seems best to him, and it is for the workman to determine whether or not he will enter the service. If he does enter upon the service, knowing the risks that he incurs, he must be regarded as having voluntarily incurred such risks.” Buzzell v. Manufacturnig Co., 77 Am. Dec. 222 (where large collection of cases). “ Obvious imperfections in methods or machinery, existing at the time of the employment, cannot be made the basis of liability in favor of an employe who suffers an injury in the course of his emploj'ment, for the reason that the employer has a right to have and use imperfect methods and tools, and to ask others to enter his employ to aid him in such use. The doctrine that a servant’s want of knowledge of a defect in the appliances furnished by the master precludes the inference of an assumption of risks, and makes the master liable, does not justify carelessness on the part of the servant. The master has a right to expect him to be alert to inform himself of existing conditions; and he cannot attack the master from the shelter of unjustifiable, ignorance of the business, machinery, and methods which he is employed to use.” Ragon v. Railway Co., 97 Mich. 265. “The structure was permanent in its character, and the risks resulting from its location were as apparent to the ordi: nary laborer as to a skilled mechanic or expert. They were visible to all. * * * He took service subject to all risks incident to the position and mode of construction of the station house, and, if the defendant did nothing after the employment to aggravate the danger, there was no liability.” Gibson v. Erie Railway Co., 63 N. Y. 449, 452, A servant who enters upon employment, from its nature hazardous, assumes the usual risks and perils of the service, and of the open, visible structures known to him, or of which he must have known had he exercised ordinary care and observation. Williams v. D., L. & W. Railroad Co., 116 N. Y. 628, 634; 27 St. Rep. 760, where held error to refuse a nonsuit because “the plaintiff, had he exercised care and observation, must have known that the bridge was not of sufficient height to permit a person to pass under it, standing on the top of a car.” The case is distinguished in Wallace v. Central Vt. Railroad Co., 138 N. Y. 302; 52 St. Rep. 351, but not so as to affect its analogy to the case under review. “ Whatever there was of danger to one engaged in the coupling of the cars in this yard, must have been apparent and obvious to him.” De Forest v. Jewett, 88 N. Y. 264, 268; Sweeney v. B. & J. Envelope Co., 101 N. Y. 520; Hayden v. Manufacturing Co., 29 Conn. 548, and collection of cases in Ragon v. Railway Co., 57 Am. St. Rep. 345. The complaint should have been dismissed for insufficient proof of defendant’s negligence.

Equally obvious is the infirmity of plaintiff’s case in respect of his own negligence. The other men engaged with him in coupling the cars returned safely, and they returned safely because they got on the car before in motion, and by the end ladder. Not so the plaintiff. He got on the car while moving, and he ascended by a side ladder. This was the only car with a side ladder. The car next ahead and the car behind both were equipped with end ladders. Ascending the car before it started, or by an end ladder, he could not have been hurt; and yet he chose the only time and the only method of getting aboard by which he was exposed to the possibility of injury. “The deceased, at his own volition, and without any necessity connected with his duties as conductor of the train, undertook to climb the cars when under way, and just at the point of danger, and, so far as appears, at the only point of especial risk. This he did at his peril,” and for this the judgment was reversed. Gibson v. Erie Railway Co.. 63 N. Y. 449, 454. So here the complaint should have been dismissed for the contributory negligence of the plaintiff. Wiwirowski v. L. S. & M. S. Ry. Co., 124 N. Y. 420 ; 36 St. Rep. 405. In any event, the order denying a new trial should be reversed, because the verdict is against the weight of evidence. Kaare v Troy S. & I. Co., 139 N. Y 369, 377; 54 St. Rep. 653.

When first on the stand the plaintiff testified, in reply to his own counsel, that: “I was sent on this track 20, along with the -rest of the men, to get some cars out, and I went down, and I made one coupling.” These men testified that plaintiff was on the engine, and that they “ went between the string of cars on 19 and 20, and as we went along we were obliged to edge through. We could not walk abreast in some places. Some places you ■might squeeze yourself through without your shoulders squared." Plainly, therefore, if plaintiff accompanied these men, as he and they swore he did, he must have had actual knowledge of the proximity of the tracks, and of the danger he incurred by ascending the car on the side. Recalled next day by his counsel, he repudiated his former statement, and substituted the incredible story that he approached the place of coupling, not on the engine -or with the men, but from another direction, and by walking over the tops of the cars,—a palpable afterthought, to recall the admission of a fact fatal to his case. The proof is irresistible that- the plaintiff was apprised of the danger from which he suffered, and that he ventured the risk of boarding the moving car before it reached the place of peril. He -must be resigned to the consequence of his foolhardy experiment. Judgment and order reversed, and a new trial awarded, costs to abide the event.

All concur.


author: Gtegerich, J.

text:
    George J. Vestner, Resp’t, v. William G. Findlay, App’lt.

      (New York Common Pleas, General Term,

      Wiled December 3, 1894.)

    Assignment—Proof.
    A party cannot recover upon a claim, originally belonging to another, in the absence of proof of an assignment.
    Appeal from a judgment in favor of plaintiff.

      George B. Dunn, for app’lt; John J. Adams, for resp’t.
   Gtegerich, J.

This action was brought to recover the sum of $250 for money had and received. The answer was a general denial, and a counterclaim was interposed. The plaintiff, during the times above mentioned, was managing clerk in the office of John J. Adams, Esq., plaintiff’s attorney in this action, and had not been admitted to practice. The defendant was an attorney and counselor at law, and had clients named Samuel and Joseph Pellertier, who then did business in this city, and against whose property a warrant of attachment had been issued and levied. According to the evidence adduced on the part of the plaintiff, said Adams, upon the defendant's retainer, appeared in the suit in which the attachment was issued, and rendered services therein, and also rendered other legal services. On the other hand, the defendant and said Samuel Pellertier and Joseph Pellertier testified that the plaintiff, not Adams, was retained in said suit on the supposition that he was admitted to practice, and that his compensation in this suit and other matters was dependent upon his procuring an extension of time from the creditors of said Pellertiers, which he failed to procure. Assuming that the justice was justified in crediting the plaintiff’s version as to these disputed points, he clearly erred in deciding the issues in this case in favor of the plaintiff, in the absence of proof of the receipt by the defendant of any money to the use of the plaintiff, or an assignment of Adams’ claim to the plaintiff. Both plaintiff and his witness, Regensberger, testified that the defendant was given a mortgage for $1,500 by Pellertier Bros., of which $1,000 was to be paid to the defendant for services rendered by • him, and $500 for services rendered by Adams, and that the arrangement with the latter was modified so that the defendant should pay $250. No evidence of any assignment of this right from Adams to the plaintiff was given, and the objection was properly presented bv the motion to dismiss the complaint upon the ground that the plaintiff was not the real party in interest. The argument that the judgment may be sustained upon the ground that the plaintiff acted for Adams in the whole transaction, and consequently could, under § 449 of the Code of Civil Procedure, maintain this action as a trustee of an express trust, is unavailing, because the plaintiff does not sue as trustee, but individually. The plaintiff also argues that the paper writing dated April 13,1894, given by the defendant to the plaintiff, is an account stated. Conceding, for argument’s sake, this to be so, the plaintiff cannot recover thereon, as his cause of action as alleged is for money had and received, not upon an account stated.

For these reasons the judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event.

All concur.


text:
    Adolph Prince, Resp’t, v. Jacob Feller et al., App’lts.

      (New York Common Pleas, General Term,

      Piled December 3, 1894.)
    Appeal—Conflicting evidence.
    The decision of the justice of the district court, upon conflicting evidence, will not be disturbed on appeal.
    Appeal from a judgment in favor of plaintiff, rendered by a . justice without a jury.

      Charles F. Holme, for app’lts; Jacob Levy, for resp’t.
   Gtegerich, J.

The complaint alleges that the Burger Brewing Company sold and delivered to the defendants merchandise, consisting of beer, amounting to $147.35; that no part thereof has been paid; and that prior to the commencement of the action the claim was assigned to the plaintiff. The defendant Jacob Feller interposed no defense. The defendant Israel Doushkess put in an answer which substantially denied all the allegations of the complaint, and, as a further defense, alleged that he, individually, purchased beer from the plaintiff’s assignor, upon which he was allowed a rebate of $19.50; that he paid to the plaintiff’s assignor thirty dollars “on account of said beer,” leaving a balance of $28.50, which plaintiff’s assignor refused to accept, and which sum he alleged his willingness to pay and produce on the trial of the action. The record, however, fails to show that such, or any other sum, was produced upon the trial. There was a conflict of testimony upon the questions raised by the pleadings between the plaintiff, who was an agent and collector of his said assignor, and the defendant Feller, upon the one hand, and the defendant Doushkess on the other; and, upon the whole, we conclude from the evidence that the justice was amply justified in finding, which, from the judgment rendered, we assume he did,, that the defendants were copartners during the times alleged in the complaint; that beer was sold and delivered to them, as such,, for the amount claimed ; that no payments were made on account thereof; and that no rebate had been earned or allowed. The determination of these questions being peculiarly within the province of the justice, they are, therefore, not the subject of review here; the elements justifying such review not appearing in this case. Lynes v. Hickey, 4 Misc. Rep. 522; 54 St. Rep. 120; Weiss v. Strauss, 39 St. Rep. 78; 14 N. Y. Supp. 776.

It follows that the judgment should be affirmed, with costs.


author: Giegerich, J.

text:
    Westchester Hardwood Company, Resp’t, v. Manhattan Electric Light Company (Limited), App’lt.

      (New York Common Pleas, General Term,

      P'iled December 3, 1894.)

    Negligence—Precautions.
    Where the injury is produced by an occurrence that could not have been foreseen and guarded against, there is no negligence ; but, if it could have been foreseen and guarded against, it is the duty as much of one, as of the other, party to have taken proper precautions for this-purpose.

      Appeal from a judgment in favor of plaintiff, rendered by a justice without a jury.

      Chandler P. Anderson, for app’lt; T. Clement Campbell, for resp't.
   Giegerich, J.

The injuries upon which this action is based were received by the plaintiff’s norse while being led across the street by a fifteen year old boy employed for that purpose. The defendant’s wagon, drawn by a single horse, was coming up the street, and, when about to pass the horse which was being led, one of the front wheels dropped into a hole in the street caused by the settling of that portion of the pavement. The result was that the shafts were swung suddenly about, and one of them pierced the flank of the horse to such a depth that he was ordered to be destroyed by his owner, the plaintiff. There is considerable conflict as to the rate of speed at which the wagon was being drawn. Some of the witnesses say at a slow trot, others at a rapid trot, and still others that it was at a run. It is undisputed, however, that the horse attached to it had been driven since 7 o’clock that morning (the accident happened about 2 o’clock in the afternoon) and had just made a trip of eight miles, and was drawing a load of copper wire weighing between 1,300 to 1,800 pounds. Upon the whole, we should be disposed to conclude from the evidence that the rate was not a reckless one. Moreover it is undisputed that the wagon was in plain sight for a distance of over half a block. This would have given the boy in charge ample time to lead the horse which was injured out of the track of the approaching wagon, had any danger of a collision been apprehended. The fact seems to be, however, that all concerned expected that the wagon would safely clear the horse, and such would have been the result had not the thills been unexpectedly swerved by the hole in the pavement. If this swerving was an occurrence that could not have been foreseen, there was no negligence, and the defendant is not responsible. If, on the other hand, it could have been foreseen and guarded against, it was as much the duty of the boy who was leading the plaintiff’s horse to draw him further out of the course of the wagon as it was the duty of the defendant’s driver to take precautions on his part. The condition of the street was equally patent to both. In short, if there was negligence, there was contributory negligence (Fahr v. Man. Railway Co., 9 Misc. Rep. 57, 60; 59 St. Rep. 683), and no recovery can be had. For these reasons the judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event.


author: Bisghoff, J.

text:
    Margaret O’Rourke, Resp’t, v. John Hancock Mutual Life Insurance Company, App’lt.

      {New York Common Fleas, General Term,

      Filed December 3, 1894.)

    1. Insurance—Life—Application.
    An applicant for insurance, who cannot read or write, is not chargeable with statements in the application which was filled up by the agent and not signed by her, and the company is, after receiving the premiums, estopped from setting up a breach of warranty.

      2. Same—Proofs op death—Waiver.
    • The refusal of a company to allow a policy holder to prepare the proofs of death, on the ground that the policy is void, waives such requirement.
    3. Same—Children—Amount op insurance.
    Section 55, chap. 690 of 1892, does not forbid several policies of the amount specified in the accompanying table, but merely limits the amount of a single policy.
    4. Same—Insurable interest.
    A mother has an insurable interest in the life of her child.

      M D. Stener, for resp’t; Leonard J. Langbein, for app’lt.
   Bisghoff, J.

It is claimed that the plaintiff’s recovery upon the policy in suit is opposed to law upon three separate grounds: First, that it appears from the application for the policy that there had been a breach of warranty ; second, that no proofs of death were filed with the defendant company; and, third, that this policy was obtained in contravention of §55 of the insurance law (chapter 690, Laws 1892), regulating insurance upon the lives of infants. The facts in the case are practically uncontradicted, and these are that the insurance was effected through the solicitation of one of the defendant’s agents; that the policy was delivered to the plaintiff, was for the sum of $30, and that the premiums were paid as they fell due ; that the plaintiff was unable to read or write, and was the mother of the insured, an infant between the ages of one and two years; that at the time when this policy was taken out there existed insurance upon the life of the child to the extent of $30 ; that the plaintiff was not asked for particulars, or to make any statement with regard to the matters appearing in the application as warranties, the application being filled out by the agent, and the plaintiff being uninformed as to its purport, nor was she called upon to sign it. Under these circumstances as last set forth, the claim that the statement with reference to the absence of prior insurance constituted a breach of warranty with which the plaintiff was chargeable has no foundation, the defendant being estopped from availing itself of this objection. Miller v. Phænix Mut. L. Ins. Co., 107 N. Y. 296; 12 St. Rep. 1; Rowley v. Empire Ins. Co., 36 N. Y. 550; O'Brien v. Home Ben. Society, 117 N. Y. 318; 27 St. Rep. 326. As groundless, also, is the defense that no proofs of death were furnished. It is uncontradicted that the defendant refused to allow the plaintiff to prepare these proofs, claiming that the policy was void. Thus a waiver of the requirement resulted. Grattan v. Met L. Ins. Co., 80 N. Y. 281.

The main and much-contested point in the case has reference to the construction of the late legislative enactment regulating the amount of insurance policies upon the lives of children. The act in question (Laws 1892, c. 690, § 55), in so far as it bears upon the matters in suit, is as follows : “ Ho policy or agreement for insurance shall be issued upon the life or health of another or against loss by disablement by accident, except upon the application of the person insured; but a wife may take a policy of insurance upon the life or health of her husband or against loss by his disablement by accident. * * * And a person liable for the support of a child of the age of one year and upward may take a yearly renewable term policy of insurance thereon, the amount payable under which shall not exceed the sums specified in the following table, the ages wherein specified being “the age at time of death, and which, after the age of thirteen, may become an ordinary life policy for an amount not exceeding the sum specified in the table. Between the ages of one and two years, thirty dollars.”

It is urged by the appellant that the language adopted, viewed in the light of the circumstances leading to the passage of the act,, and construed liberally, for the purpose of upholding the legislative intent, limits the entire amount of insurance to be obtained upon the life of the infant to the sums named in the schedule ; while the respondent contends that a strict construction of the act should obtain, and its effect be limited to individual policies only. There would seem to be little doubt that the statute was intended to be aimed against the obtaining of excessive general insurance by parents upon the lives of their children, and there is certainly much to be commended in the policy suggested, but the act cannot be given the force which would carry that policy into full effect without a disregard of the rules governing the courts in their construction of statutes. This statute, in so far as its limits the amount of insurance to be carried, is in derogation of the right of a parent at common law to effect insurance upon the life of a minor child, and is, therefore, to be given that strict construction which must obtain in the case of such an enactment. That by the common law the parent had the right to insure the child’s life is not open to question as a general propositi on. (Grattan v. Nat. L. Ins. Co., 15 Hun, 74; Mitchell v. Ins. Co., 45 Me. 104; May, Ins. §§ 104, 105), although the authorities have been in some conflict as to whether this right must have its foundation upon some pecuniary interest in the child’s life, or whether the ties of natural affection suffice to uphold the contract. Morrell v. Ins. Co., 57 Am. Dec. 94, note. The weight of authority in this country favors the view that the interest must be a pecuniary one, but precedents of eminence in support of a contrary view are by no means lacking. Warnock v. Davis, 104 U. S. 775; Ins. Co. v. Bailey, 13 Wall. 619; Grattan v. Nat. L. Ins. Co., supra. A parent, however, who is entitled to the services of a child, has an insurable interest of a pecuniary nature in the life of a child, resting upon the expected benefit to be derived from such services; and this interest is sufficient to take the policy out of the class of wager-contracts, and thus to give it validity. Mitchell v. Ins. Co., supra. The fact that the child is in infancy at the time cannot affect the question, in view of the rule of the law which authorizes a recovery by the parent of damages for the loss of expected services of an infant child in an action against an individual causing its death through negligence. Etherington v. P. P, etc., Railroad Co., 88 N. Y. 641; Birkett v. Knickerbocker Ice Co., 110 N. Y. 504; 18 St. Rep. 130; Butler v. Man. Railroad Co., 143 N. Y. 421; 62 St. Rep. 432. It results that this statute is to'be construed strictly as an act in derogation of the common law, and such construction precludes the giving of effect to a supposed intention of the legislature when that intention .is not actually expressed. 23 Am. & Eng. Ene. Law, p. 420, and cases cited. In such a case we are bound to assume that the legislature intended to change the common law only so far as the strict letter of the act provides. Dean v. Met. El. Railroad Co., 119 N. Y. 540, 547; 30 St. Rep. 81. The words “ may take a policy,” following the general restriction against the effecting of any life insurance without the consent of the insured, are not, therefore, to be read as intending the making of but one such contract, this not being the natural interpretation of the phrase. The same phrase is used with regard to a wife’s insurance upon the life of her husband, and it is in no way to be gathered from the phraseology of the act that the legislature thereby sought to abridge the right of a wife to make unlimited contracts on insurance upon such life, which right was theretofore undoubtedly possessed. Holmes v. Gilman, 138 N. Y. 369; 52 St. Rep. 873. The effect of the statute, according to the necessary construction, is that a policy taken upon the life of a child by virtue of its provisions cannot exceed the sums specified in the schedule set forth, and so far only does the restriction extend.

We have, in the above discussion, considered the statute with regard to its effect upon the common law rights of the party whose pecuniary interest in the services of the child would afford a basis for the contract of insurance. The policy in suit was taken by the child’s mother during the lifetime of the father, with whom she and the infant resided continuously; and it may well be that the contract would have been invalid at common law if depending upon a pecuniary interest alone, by reason of the exclusive right to the benefit of the child’s services which was possessed by the father under such circumstances. Geraghty v. New, 7 Misc. Rep. 30; 57 St. Rep. 497. In such a case, however, no better support for the contract could be found in the act considered, owing to its provision regarding the liability for the child’s support as determining the right of an individual to effect the insurance, which provision appears to be but declaratory of the law governing the rights of the respective parents to the services of the child. Geraghty v. New, supra. However, a later statute (Laws 1893, c. 195), in operation shortly prior to the date when this contract was made, has, by clothing a mother with powers, rights, and duties with regard to her children equal to those of her husband, necessarily extended to her the benefit to be derived from a child’s services theretofore enjoyed exclusively by the father, and as limited by the statute first above considered, in a case where the facts bearing upon the domestic relations of the parties were as here appeared. This would seem to be the obvious result of the enactment, and support is thus to be given to the policy of insurance in suit.

The judgment is affirmed, with costs.


author: Bischoff, J.

text:
    Davie Schaff et al., Resp’ts, v. John Miles, Impleaded, etc., App’lt.

      (New York Common Pleas, General Term,

      Filed December 3, 1894.)

    1. Appeal—First instance.
    A party cannot be heard to complain that it was error to submit the case to the jury, where he did not, at any time, make objection to the sufficiency of the evidence.
    3. Same— Charge—Exceptions.
    Error is not to be predicated of the charge, in the absence of an excep tian which indicates the exceptant’s objection.
    Appeal from a judgment entered on a verdict in favor of plaintiffs, and from an order denying a motion for a new trial.

      B. C. Ghetwood, for app’lt; A. Stern, for resp’ts.
   Bischoff, J.

The record does not disclose that any exception was taken on the trial to the admission or exclusion of evidence, and upon evidence, to the sufficiency of which neither party at any time made objection—except that the defendants did so upon a ground so clearly untenable that it was not urged upon this appeal—the facts litigated were submitted to the jury for determination. Ho injustice is apparent from the verdict in the plaintiffs’ favor, and having speculated upon the chance of a result favorable to themselves, the defendants should not now be heard to complain that it was error to submit the case to the jury. Barrett v. Third Ave. Railroad Co., 45 N. Y. 628, 632; Rowe v. Stevens, 44 How. Pr. 10; St. John v. Skinner, id. 198; Casper v. O'Brien, 47 How. Pr. 80.

Error is not to be predicated of the charge, in the absence of an exception which indicates the excepting party’s objection. Mc-Ginley v. U. S. Life Ins. Co., 77 N. Y. 495; People ex rel. Dailey v. Livingston, 79 N. Y. 279, 292. From the absence of an exception to the remark when the learned trial judge, in addressing the jury, said, “I observe that some of you are business men,” it is apparent that counsel for the defendants did not disagree until after the jury had made known the result of their deliberations. It is not to be inferred from the remark that the trial judge intended to instruct the jury that they were to disregard the evidence, and arrive at a result agreeably to their sense of business propriety, or that the jury so understood it.

The judgment and order should be affirmed, with costs.

All concur.


author: Per Curiam.

text:
    Henry Schwabeland et al., Resp’ts, v. Herman Buchler et al., App’lts.

      (New York Common Pleas, General Term,

      Filed November 15, 1894.)

    Appeal—First instance.
    An erroneous assumption by a judge in charging the jury, to be available, must be objected to at the time.
    Appeal from a judgment in favor oE plaintiffs.

      Henry L. Roth, for app’lt; Forster, Hotaling & Klenke, for resp’ts.
   Per Curiam.

The case was disposed of in the court below upon the assumption that the representations made in January were repeated in March. The judge, in his charge to the jury, assumed that to be the fact If he was in- error, the appellants should have had the correction made at the time. As this was not done, the general term was justified in regarding that as the fact. • If such was the fact, then the fraud was clearly made out, for the vendees were then indebted beyond the amount represented ; and the verdict cannot be disturbed.

Judgment affirmed.


text:
    Charles L. Strong, Resp’t, v. Prentice Brown Stone Company, App’lt.

      (New York Common Pleas, General Term,

      Filed December 3, 1894.)

    1. Principal and agent—Compensation.
    An agreement to pay commissions, based in amount upon an excess over a stipulated purchase price to be procured by the agent, imposes upon the principal a liability for such payment when the sale is made.
    2. Appeal—First instance.
    An exception to the admission of testimony, where the grounds of objection are not specifiéd, is nugatory.
    Appeal from a judgment of the general term of the city court, affirming a judgment of the trial term in favor of plaintiff.

      Niles & Johnson, for app’lt; Warren Iiigley, for resp’t.
   Bischoff, J.

This is an action for commissions. The plaintiff, at the instance and request of the defendant, procured a contract for the sale of a quantity of stone. After the making of this contract the purchaser refused to complete his agreement, and no payments upon the sale were received by the defendant. The terms of the agreement of agency between the parties to this action with regard to the employment and compensation of the plaintiff are found only in the correspondence which passed between them, and which appears in evidence; the case turning practically upon the question whether or not the construction put upon this agreement by the trial justice below in his submission of the case to the jury was correct. This construction was that the plaintiff was entitled thereunder to his commissions, at the rate agreed, immediately upon the execution of the contract of sale procured by him; the sole question left to the jury being as to the amount due, there being some question of fact with regard to one item of that amount. The appellant’s exceptions sufficiently raise the point .here made that by the agreement between these parties the commissions were to be paid only in the event of payments upon the sale being made, the plaintiff to take his commissions from such payments. The correspondence in evidence shows that the plaintiff was engaged to procure a contract for the sale of the defendant’s stone at the price of sixty-five cents a cubic foot delivered to the purchaser, the freight being figured by the defendant at fifteen cents per foot, and the stone to net the seller fifty cents. It was agreed that the plaintiff was to have as commissions the excess in price of sale over this amount. The appellant’s contention that these commissions were payable only when payments upon the contract were made is based upon the contents of a letter sent to the plaintiff by the defendant after negotiations concerning the above terms. As material, the letter is as follows: “ Yours of the 26th received, and contents carefully noted. We will deliver to you No. 1 good stone at sixty-five cents per foot, on board of vessel alongside of your dock, * * * without commissions or handling in Cleveland. We should want the stone to net us that, giving you anything that you can get above that for commissions and handling. Would want you to advance freights, and take your pay from the sale of stone. This is way down in price. Will that be satisfactory ? * * * You can commence selling on the terms I gave you, and please write me, on receipt of this, what you think you can do.”

The terms referred to were as before noticed. Following this, the plaintiff wrote to the defendant, requesting that the latter communicate with a certain expected purchaser, referring him to the plaintiff, as agent, for details of the sale; but no further mention as to commissions was then made. Negotiations between the plaintiff and the expected purchaser continued, ending in the contract being made at the rate of 70 cents a foot for the stone, the last letter sent from the defendant to the plaintiff concerning the'matter before its final completion being as follows: “Your dispatch of the 16th is just at hand, saying: ‘Make Charles Kickox a proposition to furnish stone for his building, No. 1 quality, on vessel here, seventy cents per foot, mailed to me. Think I have secured it. C. T. Strong.’ We will accept seventy cents a foot on vessel at Cleveland for our No. 1 stone, and furnish it to our best ability, but we know so little about what he wants that we think it is best for you to make a contract, and send it to us for our signature. You can readily see we do not know how.fast they want it, or when they want to begin to ship. * * * Make the contract as you would make it if it was your own quarry, and I think it will be all right Of course, we expect to pay your commission. Hoping you will secure the contract, we are,” etc.

We think the only authorized construction of this agreement to be that the defendant undertook to pay the plaintiff his commissions according to the price netted, as determined by the contract of sale, and he was thus entitled to them when that contract was entered into. Loffler v. Brestensiein, 19 Week. Dig. 444; Gorman v. Scholle, 13 Daly, 516. The proposition contained in the defendant’s letter that the plaintiff should take his pay “ from the sale of the stone ” was no more than a suggestion that the agreed compensation should be paid in that way, and is not to be interpreted as a condition of payment, there having been no acceptance of it, and the defendant having subsequently, in the face of the plaintiff’s failure to answer or in any way accede to the proposition, clearly expressed its understanding of the liability assumed to pay the commissions. An agreement to pay commissions, based in amount upon an excess over a stipulated purchase price to be procured by the agent, is undoubtedly within the rule which imposes upon the principal a liability for such payment when the sale is made, Loffler v. Brestenstein, supra.

The question as to what amount of freight was saved to the defendant by the plaintiff, for the purpose of determining the sum to be netted the seller under the contract over and above the required price of fifty cents per cubic foot, was properly submitted to the jury, and their, determination is not without evidence in its support.

It is claimed that the admission of plaintiff’s testimony as to what the amount of his commissions was to be presents error, but whatever force there may be in the objection is nullified, for the purposes of this appeal, by the absence of an exception to the ruling made. The exception taken to admission of other testimony of the plaintiff, following an objection of which the grounds were not stated, is nugatory. Myers v. Cohen 53 St. Rep. 223; 23 N. Y. Supp. 996. The point raised being thus found to present no error, the judgments of the general and special terms of the court below are affirmed, with costs. All concur.


text:
    Ephraim C. Gates et al., App’lts, v. Ellen Williams, Impleaded, etc., Resp’t,

      (New York Common Pleas, General Term,

      Filed December 3, 1894.)

    Appeal—Reargument.
    A reargument will not be granted on account of an omission in the re turn, which could have been amended on proper application.
    Appeal from an order denying a motion for a reargumeñt of an appeal from an order of the city court, made at general term, which reversed a judgment rendered at the trial term and granted a new trial.

      Gee. W. Stephens, for app’lts; James A. Beering, for resp’t.
   Per Curiam.

After reversal by this court of the order of the court below, the respondent for the first time objects to the jurisdiction of this court to hear and determine the appeal; and leave to reargue the appeal is applied for to enable her to interpose the objection, which is predicated exclusively of the fact that, as alleged, judgment of reversal was not entered in the court below on the order appealed from, and here reversed at the time when the appeal was taken. From the affidavit of counsel for the appellants submitted on this motion', it appears that judgment of reversal was entered in the court below when the appeal from the order granting a new trial vras argued, submitted, and determined. The return of the court below did not include the judgment of reversal in extenso; but, if the return was defective in that respect, the respondent could have had it amended upon proper application. Failing such an application, she must be deemed to have waived the defect. This court was justified in entertaining and determining the-appeal, since from the return of the court below, certified as required, it appears that “ judgment was in due form entered ” on the order of reversal and granting a new trial.

Motion for reargument denied, with $10 costs.


author: Bisohoff, J.

text:
    Mayor, Aldermen and Commonalty of the City of New York, Resp’t, v. New York and Harlem Railroad Company, App’lt.

      {New York Common Pleas, General Term,

      Filed December 3, 1894.)

    Railroads—Street—City ordinance.
    The city of New York has authority to pass an ordinance requiring the defendant to run its cars, during certain periods of the day, at intervals of not less than twenty minutes.
    Appeal from a judgment in favor of plaintiff, rendered by a justice without a jury.

      Henry H Anderson, for app’lt; Henry J. Appel, Jr., for resp’t.
   Bisohoff, J.

This action was brought to recover a penalty alleged to have been incurred by the defendant through its violation of a certain ordinance adopted by the board of aldermen of the city of New York, whereby all railway companies operating lines of cars in the streets of the city were required to run their cars during certain periods of the day at intervals of not less than twenty minutes. Upon the trial no question as to the reasonableness of this requirement was raised, and it was admitted that the defendant had failed to operate its line of cars in Madison avenue between Eighty-sixth and Ninety-sixth streets, as alleged in the complaint; the question litigated being confined to the validity of the ordinance noted as against the defendant, and the issue presented involved solely a question of law. The case of Mayor, etc., of City of New York v. Dry Dock, E. B. & B. R. Co., 133 N. Y. 104; 44 St. Rep. 94, where the principal discussion was confined to the question of reasonableness of the ordinance, is not therefore of particular applicability to the case at bar. The defendant company was incorporated by chapter 263 of the Laws of 1831, and by the terms of its charter was authorized to construct and operate a line of railway “ from any point on the north bounds of Twenty-third street to any point on the Harlem river between the east bounds of the Third avenue and the west bounds of the Eighth avenue,” and was vested with the right and privilege of maintaining such line of railway for the term of thirty years from the passage of the act. It was further provided that the line was to' be constructed and used only with the consent of the mayor, aider-men, and commonalty of the city of New York, who were thereby authorized to grant or refuse such consent, and, after the railway had been constructed, “ to regulate the time and manner of using the same.” This act provides that, in the operation of the railway thus authorized to be constructed, the company “ shall have and exercise the same rights and privileges which are now possessed and exercised under former grants and laws,” and there are no former grants or laws in evidence other than the act of 1831 referred to, the rights obtained under which act are modified by the restrictive clause therein contained. Under this clause it is clear that the ordinance in question, directing the manner in which the railway should be operated, is authorized and binding upon this defendant. The act of 1872 cannot be construed as intending that any greater privileges than were enjoyed by the corporation under its former grant were thereby conferred. The wording of the act provides for the exercise of the “ same ” privileges, and these necessarily were defined and limited by the restrictions originally placed upon the rights conferred. In construing the statute of 1831, effect is to be given to all of its terms, and the express benefits to be derived thereunder must be considered in the light of the accompanying restrictions for the ultimate determination as to what the “ rights and privileges ” granted by the legislature may be. The fact that this earlier statute granted the right to maintain the railway for a period of but thirty years thereafter is unimportant to the question of construction here raised. Whether or not during the interval of time from April, 1861, to May, 1872, this corporation operated its railway under a grant or law made or enacted subsequent to April, 1831, does not appear from the the evidence; but, in construing the defendant’s charter in the light of what is before the court, the conclusion is that the ordinance upon which the action is founded is operative against such defendant by the force of the terms accepted by it from the legislature. We are not to assume that the rights and privileges conferred by the act of 1831 were altered in terms by any grant or law of date subsequent thereto, nor has our attention been directed to any such ; and having no judicial knowledge of the existence of such a grant, nor of the enactment of a statute necessarily private in nature (Leland v. Wilkinson, 6 Pet. 317, 322; State v. Twitty, 11 Am. Dec. 781, note), we affirm the judgment upon the evidence presented to the justice below.

Judgment affirmed, with costs.


author: Van Brunt, P. J.

text:
    James E. Lyon, App’lt, v. Warren Hussey, Resp’t.

      (Supreme Court, Central Term, First Depcvrtment,

      Filed November 16, 1894.)

    1. Contract—Champerty. ,
    An agreement to employ counsel, furnish money for disbursements and procure the evidence, cannot be enforced.
    2. Same—Validity—Public Policy.
    A contract to procure evidence for another in consideration of part of the recovery is against public policy.
    Appeal from a judgment entered on a decision sustaining a demurrer and dismissing the complaint

      Noah Davis, for app’lt; E. W. Armstrong, for resp’t.
   Van Brunt, P. J.

It may not be necessary to add anything to the opinion which was handed down upon the decision of the demurrer in the court below; but it may be proper to call attention to the fact that part of the contract, damages for the breach of which this action was brought to recover, was to furnish evidence to establish the claim of the defendant in a litigation to be commenced. It is clear that' such a contract is against public policy. The recognition of contracts of this character would be the introduction of all sorts of fraud and deception in proceedings before courts of justice, in order that parties might receive compensation out of the results of their successful manufacture of proofs to be presented to the court, thus holding out 'a premium upon subornation. The mere statement of the proposition seems to .show that such a contract could never be recognized in any court of justice.

The judgment should be affirmed, with costs.

The opinion of Mr. Justice O’Brien at special term is as follows:

.The complaint alleges that the defendant was the owner of certain shares of stock which, by false representations, he was induced to give an option upon ; that plaintiff, subsequently meeting defendant, informed him of the fraud that had. been perpetrated upon him to induce him to part with his stock, which the complaint alleges was entirely, unknown to such defendant; that plaintiff procured the evidence, and furnished it to defendant, so that he was fully satisfied of the fraud, but that, due to the financial inability of the defendant at tho-t time to employ counsel and to pay the necessary disbursements to prosecute a suit to recover his stock, the plaintiff, on the defendant’s suggestion, entered into an agreement by which he (plaintiff) undertook, in consideration of receiving one-tenth of the amount recovered, to aid him in the employment of counsel and to furnish the money for disbursements, and obtain the evidence to establish defendant’s claim; that pursuant to such agreement he did employ counsel, advance moneys, expend time in preparing the suit and furnishing evidence ; and that, as a result thereof, suit was commenced by the defendant, who subsequently received in settlement of such suit a certain sum, none of which he paid to plaintiff, and to recover one-tenth of which, under the agreement alleged, this suit was brought. •

It is true that champerty and maintenance are abolished in this state, except so far as preserved by the Revised Statutes, and what remains would not literally touch an agreement such as is here sought to be enforced. Apart, however, from any statutory prohibition, there can be no question but that such an agreement would have been- void at common law; and, in addition to the illegality under the early statutes in this state relating to maintenance and champerty, such an agreement was made a crime. The penalty with the offense having been repealed, and no express statute existing which in terms decrees that an agreement of the character alleged is illegal, it yet remains to be determined whether such an agreement can be enforced. Having in mind the fact that it is void at common law, I do not see upon what ground its legality can be placed, unless some express sanction or authority can be found in some statute or decision which would give it support. Such agreements directly tend to promote litigation, to disturb the peace of individuals, and are directed to subverting the settled policy of this state, which, as shown by the history of the enactments on the subject, more particularly those applicable to attorneys (§§ 73 and 74 of the Code) has sought to prevent the stirring up of strife and litigation. Here, concededly, an entire stranger to the transaction obtruded himself into it, and not only-instigated a suit, but agreed to procure counsel and maintain the suit, the fruits of which, if successful, be was to share; and, more than this, be undertook to furnish the evidence upon which the recovery was to be assured. Such an agreement is repugnant to every instinct of propriety and justice, and the portion of it which provides for pay as a consideration for procuring evidence should be regarded as immoral, illegal, and void. Unless, therefore, some sanction or authority can be found for its enforcement, or some statute legalizing such an agreement is shown to exist, the rule as it existed at common law should prevail. I have been referred to no statute and to no decision, either in England or in this country, by which such an agreement has been sanctioned. The plaintiff relies upon the case of Fowler v. Callan, 102 N. Y. 395; 1 St. Rep. 1; but that, as shown by the facts stated in the opinion, was a case wherein it appeared that the defendant, as devisee under a will, was entitled to certain real estate which was-imperiled in some manner by threatened proceedings before the surrogate, and “made a defense essential to its protection. In this emergency he sought the aid and professional services of the plaintiff, and retained him as an attorney. The latter neither sought the retainer nor did anything to induce it. So far as it appears, it was not occasioned by any offer or solicitation of his, but originated in the free and unbribed choice of the client. The evidence does not show whether the defendant had gained possession of the land devised or was out of possession, but he gave to the attorney a deed of the one undivided half part of the property, taking back his covenant to conduct the defense to its close, paying all costs and expenses of the litigation, and indemnifying the devisee against all such liability.” The validity of the agreement was upheld upon the distinct ground, as shown by the sentence in the opinion that follows those above quoted, that “the agreement appears to have been purely one for compensation. * * * The contract in no respect induced the litigation. That was already begun, and existed independently of the agreement, and originated in other causes.” And, as enforcing this ground, the opinion closes with the following language: “But our conclusion rests more strongly upon the conviction that the agreement made was one for compensation merely, and had in it no vicious element of including litigation or holding out bribes for a retainer.” It is true that in that case it was a question between client and attorney, where the client approached the attorney in the first instance; but there can be no doubt that if, as stated by the court, the elements had been present showing that the attorney had induced the litigation, or had held out a bribe for the purpose -of securing a retainer, the judgment would have been different. The present case differs from that in all its essential features. Here was a layman, who, as stated, was a stranger to the transaction, and who forced himself upon the attention of the defendant with a statement of his ability, in consideration of a percentage of the recovery, to employ counsel, instigate the litigation, pay the necessary disbursements, and procure the evidence; thus introducing every vicious element. Were it not for the abolition of the statutes relating to maintenance and champerty, this agreement would be both illegal and criminal, and it is one such as has never received the approval or sanction of any court. In my opinion, such an agreement cannot be enforced, and should be condemned, for which reason the demurrer to the complaint should be sustained, upon the ground that such complaint does not state facts sufficient to constitute a cause of action, and judgment absolute should be ordered for the defendant, with costs.


author: Wright, J.

text:
    John Kelley, Jr., Pl’ff, v. City of Syracuse et al., Def’ts. Jacob Heagle, Pl’ff, v. Same, Def’ts. James Dixon, Pl’ff, v. Same, Def’ts. Syracuse Pressed-Brick Company, Pl’ff, v. Same, Def’ts. John Preston, Pl’ff, v. Same, Def’ts.

      {Supreme Court, Onondaga Special Term,

      Filed November 30, 1894.)

    1. Contracts—Building—Architect’s certificate.
    Where, under a contract providing that no payment shall he made except on the written certificate of the architect stating that he considers the payment justly due, the contractor fails to complete, and the owner completes, the contract, regard must he had, in making such certificate, to the amount and value of the work to he performed.
    2. Mechanic’s lien—Notice.
    Service of a copy of the notice of lien is sufficient.
    3. Assignment—Equitable.
    The contract between the subcontractor and material-man was held, in this case, to constitute an equitable assignment of money to become due to the subcontractor to the extent of the value of material delivered thereafter, as well as of that already delivered.
    Actions to foreclose mechanics’ liens.

      Costello & Welch, for John Kelley, Jr., and others; Charles K Ide, for city of Syracuse ; Allis & Rogers, for Jacob Heagle ; Hancock, Beach & Devine, for James Dixon ;• Kennedy, Tracy, Mills & Ayling, for Syracuse Pressed-Brick Co; Knapp, Nottingham & Andrews, for Anson E. Alvord; P. J. Ryan, for John Preston and others.
   Wright, J.

On June 18, 1892, the defendant John A. Isley entered into a contract with the city of Syracuse, through its board of education, for the construction of a brick schoolhouse for $23,200. Isley commenced work about September 9th, and continued until December 10th, when he suspended work. On December 15, 1892, the board of education served on Isley a notice that, unless he should resume work within 48 hours, the board would consider the contract abandoned, and proceed to complete the building under the clause of the contract authorizing such action in the case of an unreasonable suspension of the work. Isley did not resume. Isley had subcontracted the mason work to James J. Dixon for $10,879, who; up to December 1, 1892, had performed work at an expense of $3,788 ; but a part was defectively constructed, and the .value of properly relaying that defecting part was $200, which left, as the value of the work, $3,588; and he had deposited on the premises, for use in the continuance of the mason work, materials of the value of $700. He had received thereon only $1,000. At this time, Isley, the contractor, applied to the architect for an estimate for $2,000, which was refused on the ground that it was not due. This refusal caused the contractor to become financially embarrassed, and compelled him to suspend the work on December 10th. The city thereupon, on December 15th, served the 48-hour notice above mentioned, and, Isley not resuming work, the city, on December 17th, took possession of the building, and on December 31st let the contract for its completion for $21,675, which sum, added to the $1,000 which had been paid Isley, is $525 less than the original contract price. All concede that sum, at least, to be liable to the claimants according to the priority of their rights. But it is urged by Dixon and other lienors that the city should be held liable to the extent of $2,000, on the ground that the architect unreasonably refused to give the certificate above mentioned. The contract provides that the contract price shall be paid “in payments as the work progresses,” and that on all payments 15 per cent, of the amount due shall be retained to insure the faithful performance of the agreement, “and that no payment shall be made except on the written certificate of the architect, stating that he considers the payment properly due.” The value of the work performed was not the sole guide in determining the amount due. The architect must have had regard also to the amount and value of the work remaining to be performed; and, if it were apparent that the expense of completing the contract from that point would be substantially the full amount of the unpaid contract price, nothing was due the contractor. The court can hold the architect to only a fair and reasonably correct judgment in that regard, and the fact that the expenses of completing this building was only $525 less than the balance of the orginal contract price which remained unpaid at the time when the certificate was demanded is conclusive evidence of such fairness and reasonableness of judgment. We are referred to Fosbay v. Robinson, 137 N. Y. 134; 50 St. Rep. 192. In that case it was held that the material man had a lien to the extent of an installment which had been earned, though the owner, after the contractor had abandoned the building, expended more than the amount of the contract price remaining unpaid at the time of such abandonment; but in that ease, “by their contract, the owner was to pay the contractor in installments fixed by different and designated stages'of the work of building,” and it was further provided “that a certificate of the architect should be obtained as each of the stages was reached.” It will be noticed in that case that the contractor specified the precise contingencies upon which certain definite installments should become due, but in this case no such arbitrary standards were fixed. There were no segments in either the building or price. Payments, indefinite in amount, were to be made when, in the architect’s judgment they became due; and in order to determine whether the $2,000 or any sum were due, the architect necessarily was obliged to observe the contract and building as entireties. The injury to the walls, caused by the elements during the winter, yras not occasioned by the neglect of Isley or Dixon ; hence the amount due either of them is not diminished thereby.

Objection is raised against the lien of John Preston on the ground that a copy instead of a duplicate original notice of lien was served on the president of the board of education. The original was served on the city treasurer. Since the statute does not in terms require the service of the originals, this method of service is sufficient. Smith v. Kerr, 17 St. Rep. 351; 1 N. Y. Supp. 454. Notices of liens aggregating about $4,000 have been filed against the building on account of work and material furnished to the subcontractor, Dixon; but the claimant John J. Preston urges that, as assignee of P. Preston & Bro., he is entitled to payment prior to any lien, on the ground that he held, by an order, an equitable assignment of the money due from Isley to. Dixon up to the -sum of $684, which was accepted by Isley prior to the filing of any-lien. P. Preston & Bro. furnished brick to Dixon, the subcontractor, and on October 25, 1892, when brick to the value of ninety dollars had been delivered, the Prestons and Dixon entered into a written contract for the furnishing of brick at an agreed price, and which “ were to be paid for as fast as the outer walls of each story are substantially laid.” And the contract further states that “ an order is hereby given by the party of the second part [Dixon] to party of the first part [P. Preston and John Preston] on John A. Isley for the payment of the purchase price of said brick; and it is hereby agreed that-said John A. Isley may pay to the parties of the first part the purchase price of said brick as aforesaid; and said parties of the first part are hereby given a lien on the contract price between said John A. Isley and said Dixon for the purchase price of all the brick delivered as herein spécified.” The contract was signed by both parties, also by John A. Isley, on the day of its date, and a copy delivered to Isley. The order was taken by Preston & Bro., as payment for the "brick already delivered and which might be thereafter delivered. Preston & Bro. continued to deliver brick until November 15,1892, when a quantity worth $684 at the agreed price had been delivered. Preston & Bro. duly filed their lien on December 10, 1892. P. Preston subsequently assigned his interest in the claim to John Preston. Several other liens were filed prior to that of Preston & Bro. It is objected that this contract and order do not constitute an equitable assignment, on the ground that the specific fund out of which Isley was directed to pay the Prestons is not sufficiently identified, and further, that, if the fund is sufficiently identified, the order operates as an equitable assignment to the extent only of ninety dollars, that being the value of the brick delivered at the time of the execution of the contract, for the reason that only that sum was then due. These objections are untenable. The contract, read in the light of the surrounding circumstances, shows with sufficient clearness what fund is intended, Brill v. Tuttle, 81 N. Y. 454, and. from the wording of the whole contract it is evident that the parties intended the order to cover the value of the brick to be thereafter delivered, as well as those already delivered. Isley’s signing the contract was an acceptance of the order. The amount of this claim was determined by the delivery of all the brick prior to the filing of any lien. The liens would attach only upon the money which Dixon was entitled to receive from Isley at the respective dates of their filing; but on October 25th, after the execution and acceptance of the order, the amount of Dixon’s claim against Isley was thereby diminished by the amount of the purchase price of the brick. -Prior to the filing of the liens, the claims of the lienors were merety contractual, each standing on an equality, and Dixon had a right to make a preference among them, which he did in favor of the Pres-tons. The office of the mechanics’ liens is to intercept moneys in the hands of the payor, due or to become due his payee. In this case nothing would become due the payee, Dixon, until after Isley had paid to the Prestons the amount of Dixon’s order. Stevens v. Ogden, 130 N. Y. 182; 41 St. Rep. 331; Lauer v. Dunn, 115 N. Y. 405; 26 St. Rep. 412; McCorkle v. Herman, 117 N. Y. 297; 27 St. Rep. 333; Hirshfield v. Ludwig, 69 Hun, 554; 53 St. Rep. 390. This claim amounting to more than the entire sum due from Isley to Dixon, it is unnecessary to give further consideration to the other liens, except to direct their discharge. Costs are awarded to John Preston, as plaintiff, against all parties, except as against the city of Syracuse, and costs are awarded to the city of Syracuse, as defendant, against all the parties except John Preston.

Judgment ordered accordingly.