text:
    John Manion v. Hugh Hagan, et al.

    (Supreme Court, Appellate Division, Second Department,
    October 6, 1896.)
    Evidence—Competency and matebiality.
    In an action for personal injuries it is erroneous to admit plaintiff’s-testimony that he had an interview with defendants after the accident, in -which he asked if they were going to do anything for him, that he was a poor man, and had a wife, and that defendants refused to do anything for him, as such evidence is calculated to excite the sympathies of the jury.
    Appeal from trial term, Queens county.
    Action by John Mannion against Hugh Hagan and Patrick Daly for personal injuries. From a judgment entered on a verdict in favor of plaintiff for $4,000, and from an order denying a motion for a new trial, defendants appeal.
    James J. Conway, for appellants.
    William H. Good, for respondent.
   HATCH, J.

The evidence tended to establish that the work winch plaintiff was directed to do was of a dangerous character, of which defendants had notice, and of which plaintiff was ignorant. This condition imposed upon defendants the duty of imparting such information and giving such instructions as would reasonably apprise plaintiff of the dangers attending the employment, and of the precautions necessary to be taken to avoid them. In this respect the court correctly ruled ,at the trial, and the case was properly submitted to the jury.' The evidence was conflicting in this regard, both as to the danger being apparent and as to the instruction which was given. It presented a question of fact for solution by the jury, and was not a question of law to be disposed of by the court.

We should affirm this judgment were it not for the fact that a prejudicial error was committed in the reception of evidence. Some time after plaintiff had received his injury, and after his discharge from the hospital, he called upon the defendants. His counsel asked:

“ Q. What happened ? (Objected to as incompetent. This was long after the accident, and had no connection with it. Objection overruled. Exception by defendants.) A. Well, I asked them if they were going to do anything for me; that I was a poor man, and had a wife. (Objected to by defendants’ counsel, further, as incompetent, immaterial and irrelevant. Objection overruled. Exception by defendants’ counsel on each ground.) The witness: They said they couldn’t do anything for me; that it was not their fault for my being blinded.”

We think that this evidence was clearly incompetent, and its effect distinctly prejudicial. It did not bear upon any issue in the case, and its nature was such as to excite sympathy on the part of the jury for a distressed condition, and arouse prejudice against defendants for an apparent disregard of an appeal to their generosity. Instead of being harmless, we think its direct tendency was the reverse, as its nature was to enhance the damages based upon a disregard of plaintiff’s cpndition. The reception of evidence of this character has been condemned by the United States supreme court (Pennsylvania Co. v. Roy, 102 U. S. 451); and we think that it ought to be by us. The first question might be held to be proper, as it might have produced an answer entirely competent. The answer which was given, however, was entirely incompetent, and counsel for defendants again objected immediately. This called the matter sharply to the court’s attention, and had the practical force of a motion to strike out the testimony. Besides, it was followed by an answer of the same character. For this error we think a new trial should be had.

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

All concur.


source: Caselaw Access Project

author: CULLEN, J.

license: Public Domain

text:
    Jesse Mott v. Walter F. Clayton.
    (Supreme Court, Appellate Division, Second Department.
    October 6, 1896.)
    1. Highways—Title to fee—Dutch boads in New York.
    The ownership oí the fee of roads established during the Dutch occupancy of New York is governed by the Dutch law, which vests it in the public. Dtinham v. Williams, 37 N. Y. 251, followed.
    2. Stabe decisis—Rule of pbofebty.
    The decision in Dunham v. Williams, 37 N. Y. 251, that the title to the fee of the Brooklyn & Jamaica Road was in the city of Brooklyn, on the faith of which title to parts of the highway it was acquired by individuals, is a rule of property.
    8. Title to highways—Conflict of laws—Confirmation of dutch
    GRANTS.
    The guaranty given by the English authorities to the occupants on the surrender of New York by the Dutch, that the occupants should peaceably enjoy their possessions, merely confirmed the rights which they had under the Dutch law, and therefore did not affect the rule that a grantee from the Dutch government of land abutting on a highway acquired no title to any part of the highway. *
    Controversy between Jesse Mott, as plaintiff, and Walter F. Clayton, as defendant, submitted, without action, on an agreed statement of facts, pursuant to Code Civ. Proc, § 1279. Judgment for plaintiff.
    Robert H. Wilson, for plaintiff.
    Foley & Wray, for defendant.
   CULLEN, J.

The plaintiff agreed to sell, and the defendant to purchase, certain real estate in the city of Brooklyn. The defendant declined to complete the purchase, on the ground that the plaintiff’s title was defective. The question of the validity of the plaintiff’s title is the only one submitted to us for determination.

The northern front of the plot contracted to be sold falls within the limits of the old Brooklyn & Jamaica Turnpike Road. The submitted case concedes “ that the Brooklyn & Jamaica Road was an ancient highway, and had been used as a road at the time that the colony of New York was a province of the States General, and when it was in the possession of the original settlers, and subject to the dominion and laws of the Dutch government.” The history of this road is detailed at length in the report of Dunham v. Williams, 37 N. Y. 251. For some years past the road has been abandoned. ' The plaintiff traces his title to so much of the property as abuts the road from one Sarah Lefferts, admittedly the owner of the adjoining farm, through mesne conveyances, including a deed from Edward Copeland to Clarence D. Saclcett, continuously to himself. No criticism is made on this chain of title so far as it relates to that part of the plot in suit lying south of the limits of deeds in the chain of title were insufficient to carry the adjacent half of the road, assuming that Sarah Lefferts owned it. In the deed from Lefferts to Moser and others, the description commences at a point on the southerly side of the turnpike road, then running on various courses and various distances to “’the said last-mentioned- road, thence along the said road, to the point of beginning.” The corner “formed by the intersection of the Westerly side of Sackett avenue with the southerly side of the Jamaica turnpike,” and running various courses and distances to the “ southerly side of the Jamaica turnpike, thence easterly along the same, to the point or place of beginning.” We think it too clear for debate that, under the authorities, neither of the conveyances included any part of the road. Insurance Co. v. Stevens, 87 N. Y. 287; Blackman v. Riley, 138 N. Y. 318, 52 S. R. 865. The plaintiff can therefore establish no title through this source.

But the character of this road was not the same as that of a modern highway. It was an old Dutch road. Under the Dutch law, the fee of the highway, not the mere easement, was in the public. The original patent or charter from the Dutch authorities of the town of Brooklyn is lost. After the English acquired possession of the province, two patents were granted to the town, —one October 18, 1667, by Richard Nicolls, governor general ; and one May 13, 1686, by Thomas Dangon, lieutenant governor. These patents granted to the patentees, “for and on behalf of themselves and their associates, the freeholders and inhabitants of the town of Brooklyn, their heirs, successors, and assigns, forever,” all the lands within the limits of the town. On these facts, it was held in Dunham v. Williams; supra, that the title to the bed of the highway was not in the adjacent owners, but, under its patents, vested in the town of Brooklyn and the city, its successor. At an early date the road was acquired- by a corporation for a .turnpike. Subsequently, it was changed into a plank road. The court of appeals, in the case cited, refrained from deciding whether the turnpike company had acquired an easement or the fee of the road. This question is not material in the present case, for the plaintiff has acquired, by conveyances from the city of Brooklyn and the Brooklyn & Jamaica Plank-Road Company, all the title of each of those parties to the premises in suit. Therefore, under the authority of Dunham v. Williams, the plaintiff has perfect title to the land contracted to be sold.

Counsel for the defendant cites Mortimer v. Railroad Co. (Sup.) 6 N. Y. Supp. 898, to show that the Dutch colonial government did not own in fee of the old highways existing at. the time of their possession of the province. The opinion delivered by Judge Truax in that case goes to the extent stated. The burden of the argument of the learned judge is to establish the proposition that the Dutch never had any valid claim to the province of the New. Netherlands. In that conclusion Judge Freedman concurred, and further stated that “neither the Dutch nor Roman law ever prevailed in the state of New York de jure, and that the common law must be deemed to be the original source of all our law.’1 The-proposition contended for by Judge Truax is not decisive of the question involved, for the rights of the Dutch in the province were finally determined by the terms of the capitulation. 2 Col. Hist. N. Y. p. 250. The effect of the capitulation was considered in Dunham v. Williams, and it was there held that, by virtue of the capitulation, the title to the bed of the road remained in the government till the confirmatory grant to the town. The question discussed by the learned judge in Mortimer v. Railroad Oo. was not absolutely necessary to the decision of the case. However that may be, in the respects cited, the opinion is directlv opposed to the decision in Dunham v. Williams. Nor does the authority of Dunham v. Williams stand unsupported by decisions in other cases.

In Canal Appraisers v. People, 17 Wend. 572, Senator Beardsley held that, the original grant of the Manor of Rensselaerwick having been obtained from the Dutch government, its construction was to be controlled by the civil law, and that the grant did not convey the bed of the Mohawk river. See, also, Commissioners v. Kempshall, 26 Wend. 404.

In Smith v. Rochester, 92 N. Y. 463, in discussing the right of the people to the beds of rivers, Chief Justice Ruger said, in referring to the cases cited:

“We think this and similar cases might properly have been decided, for reasons peculiar to the Mohawk and Hudson rivers, upon the grounds stated in Commissioners v. Kempshall by Senator Yerplanck, and by the chancellor and Senator Beardsly in Canal Appraisers v. People. The titles granted to the original settlers in the Hudson and Mohawk valleys, as construed by the rules of'the civil law prevailing in the Netherlands, from whose government they were derived, did not convey to their riparian owners the banks or beds of navigable streams. Upon the surrender of this territory, the guaranty assured by the English authorities to its inhabitants of the peaceable enjoyment of their possessions simply confirmed the right already possessed; and the beds of navigable streams, never having been conveyed, became, by virtue of the right of eminent domain, vested in the English government as ungranted lands; and the state of New York, as a consequence of the Revolution, succeeded to the rights of the mother country.

This is equally true of the beds of highways, except that in this case the crown, before the Revolution, granted its title in such beds to the town.

It is now too late to question the authority of Dunham v. Williams. The road under discussion formerly traversed the city of Brooklyn for a distance of about six miles. It was not one of the highways retained when the system of city streets and avenues was adopted. It has been almost wholly abandoned, and the land lying within its limits has been incorporated into city lots. The decision cited has become a rule of property in this city, and title to the abandoned part of the highway has been acquired on the faith of that decision. Its binding force should, therefore, not now be questioned.

There should be judgment for the plaintiff on the submitted case, that the defendant complete his purchase.

All concur.


author: WILLARD BARTLETT, J.

text:
    William Mills, Jr., v. William H. Woolverton.
    (Supreme Court, Appellate Division, Second Department,
    October 6, 1896.)
    Contributory negligence—Question for jury.
    Contributory negligence is a question for the jury, •where it appears tha* plain1 iff, a newsboy about eleven years old, while standing on the foot-board of a street car, selling newspapers to the passengers, was knocked off by defendant’s wagon. Connolly v. Ice Co„ 114 N. Y. 104, followed.
    Appeal from trial term, Kings county.
    Action by William Mills, Jr., an infant, by William Mills, bis guardian ad litem, against William H. Woolverton, president of the New York Transfer Company, for personal injuries. From a judgment entered on a verdict for $3,000 in favor of plaintiff, and from an order denying a motion for new trial on the minutes of 'the court, defendant appeals.
    John N. Hill, for appellant.
    James D. Bell, for respondent.
   WILLARD BARTLETT, J.

The accident which gave rise to this action occurred on the evening of the 5th day of September,. 1895, upon one of the open trolley cars of the Brooklyn Heights Railroad Company, running through Myrtle avenue, in the city of Brooklyn. The plaintiff, at that time about eleven years of age, was engaged, as a newsboy, in endeavoring to sell papc.s to some of the passengers in the car. For this purpose he had boarded the car, and was standing upon the step which runs along the side. While in this position, according to his testimony, a wagon belonging to the New York Transfer Company, and driven by a person in the employment of the defendant, approached the car so closely that it struck him and knocked him off the step into the street, inflicting very considerable injuries. The evidence of the conductor in charge of the car showed that, although the plaintiff was not a passenger, he was on the car with the consent of the company, but at his own risk, so far as the place which he occupied was concerned. The argument of the learned counsel for the appellant is devoted prin•cipally to the proposition that the plaintiff was guilty of contributory negligence, and, therefore, that the complaint should have been dismissed. The cases which he cites in support of this proposition would be applicable in behalf of the Brooklyn Heights railroad company, if this was a suit against that corporation; Imt they have no application here, in behalf of a third party, who by hi_s negligence nas broup it about a collision between his own vehicle and the car upon which the plaintiff was being conveyed. In this respect the present case seems to be distinguishable in principle from Connolly v. Ice Co., 114 N. Y. 104; 22 S. R. 675. There the plaintiff, a lad seven years old, got on a street car, at the request or the conductor, to get a penny for turning a switch, and, while standing on the side platform, was injured by a collision with the defendant’s ice wagon. 'The plaintiff did not see the wagon, or Eoolc to see if any wagon was coining, or make any observation or ascertain whether he was liable to be endangered by the contact, of the car with anything which might pass it on the street; yet the court of appeals held that he was not required, as matter of law, to apprehend that there might be an occurrence of that character, nor was his failure to look for approaching vehicles necessarily an act of negligence. Applying the same rules to the case at bar, the trial court was clearly right in holding that the question of contributory negligence was a question for the jury.

The only other exceptions argued by the appellant are those to-the refusal of the learned trial judge to charge the two requests at folios 311 and 312 of the appeal book. They were substantially to the effect that the plaintiff could not recover if he knew that it was dangerous for him to mount and remain upon the step of the-car while in motion, or was capable of understanding that it was-dangerous, and if his presence on the step did contribute to produce the injury. The refusal to charge the jury as thus requested waa not erroneous, for both requests omitted all reference to the question whether what the plaintiff did was or was not what a prudent person of his age and capacity would do, or ought to have done, in the exercise of reasonable care under similar circumstances. It by no means follows that a person is guilty of contributory negligence because he voluntary assumes a position which may involve danger. The conductor of every open street car, who is obliged to walk along the side step in order to collect fares from the passengers, runs just as much risk of being hurt by collision with passing vehicles as did the lad who brought this action; yet no one would think of claiming that a conductor who was thus injured had contributed to the accident through any fault of his own, by reason of the mere fact that he was on the step at the time, and did not see the colliding vehicle before he was hurt.

The judgment and order appealed from must be affirmed, with costs. All concur.


text:
    Leopold Meter v. Brooklyn Heights Railroad Company.
    (Supreme Court, Appellate Division, Second Department,
    October 6, 1896.)
    Street cars—Collision with vehicle—Contributory negligence.
    A person who attempts to cross a street car track about 150 feet in front of a rapidly approaching electric car, not at a street crossing, and without indicating to the motorman that he intends to cross, is guilty of contributory negligence.
    Appeal from circuit court, Kings county.
    Action by Leopold Meyer against the Brooklyn Heights Railroad Company for personal injuries, caused by a collision between defendant’s street car and plaintiff’s buggy. From a judgment for $920.54, damages and costs, entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes, defendant appeals.
    William W. Goodrich, for appellant.
    James D. Bell, for respondent.
   WILLARD BARTLETT, J.

The plaintiff in this action did not sustain the burden which the law placed upon him of proving his own freedom from contributory negligence. The accident which gave rise to the suit occurred on Fulton 'avenue, near Throop avenue, in the city of Brooklyn, on the 29th day of September, 1894, at about 9 o’clock in the evening. The plaintiff had been driving-in a buggy along the south side of Fulton avenue, in an easterly direction. When he reached a point about 75 or 80 feet from Throop avenue, he turned his horse to the left, so as to cross the tracks of the defendant’s railroad diagonally, and get into that street, which runs out of Fulton avenue on the north, but does not cross it. His horse was walking. At the same time, a car of the defendant’s was coming down Fulton avenue on the north track, having reached a point about 75 feet the other side of Throop avenue. The plaintiff himself did not testify definitely as to these distances, but the figures were given by the principal other eyewitness of the accident. They show that when the plaintiff started his horse at this slow rate, in a diagonal direction, across the track upon which was the approaching car, his buggy and the car must have been about 150 feet apart. The car was brightly illuminated by a headlight in-front and electric lights within, and was in plain view of the plaintiff, who saw it distinctly, there being no other vehicles on the-block. He testified that he thought he had lots of time to cross. In fact, however, the car collided with his buggy when he had gone only “the distance of two houses in this diagonal direction.” We think these circumstances point clearly to his own imprudence asoné of the causes contributing to the collision. He does not appear to have given any sign to the motorman on the defendant's car to indicate that he meant to turn into Throop avenue, and that, intention could hardly have been made manifest in the short time during which he pursued his diagonal course before the accident occurred. To start in such a direction, with his horse at a walk, and the approaching car only 150 feet distant, was to invite disaster, unless he took some efficient means to let the motorman know where he proposed to go. The case is not like that of a vehicle driven along a cross street at right angles over a railroad track in the intersecting street There the passage of trucks,, wagons and carriages of various kinds is to be expected, and persons operating the railroad cars must be watchful to avoid them. But Throop avenue does not cross Fulton avenue, and the defendant’s motorman was not bound to anticipate that the driver of a buggy, in order to get into that street, would drive diagonally onto the track, towards his approaching car, at a dangerously short distance from it, and without any notice. The plaintiff’s act may be compared to that of a mariner whose vessel is run down because he has not given himself room enough when he undertakes to sail across the bows of another craft. Such experiments are perilous, and apt to result in misfortune.

The judgment and order appealed from must be reversed, and a new trial granted, with costs to abide the event All concur.


author: PER CURIAM.

text:
    John McGrath v. Third Ave. R. Co.
    (Supreme Court, Appellate Division, Second Department,
    October 6, 1896.)
    1. Damages—Evidence—Cause and effect. '
    A finding that the death of plaintiff’s horse was caused by a collision with defendant’s street car is not sustained by the evidence, where it appears that the horse, which was thrown down by the force of the collision, immediately got up, was again attached to the wagon, and driven off, without showing any appearance of injury, and that he was after-wards afflicted with sore throat, and died three weeks after the accident; there being no evidence of any connection between the sore throat and the accident.
    3. Appeal—Modification of judgment.
    Where a recovery, in an action for injuries to the person and to property, is had as to both causes of action, as to one of which plaintiff was not entitled to recover, the appellate court may modify the judgment by deducting the erroneous item.
    Appeal from trial term, Queens county.
    Action by John McGrath-against the Third Avenue Railroad Company for personal injuries and for injuries to plaintiff's horse, "wagon and harness, alleged to have been caused by defendant’s "negligence. From a judgment for $3.234.37, damages and costs, ■and from an order denying a motion for a new trial, made on the minutes, defendant appeals.
    B. Franklin De Frece and William N. Cohen, for appellant
    Thomas C. Radien, for respondent.
   PER CURIAM.

Upon the main question of the negligence of qhe defendant and of contributory negligence upon the part of the plaintiff, we are of opinion that the evidence is sufficient to uphold the recovery for the personal injuries sustained. It would be of little service to here set down the process of reasoning by which this result is reached, as it simply involves the application of well-■established rules to slightly differing proof.

So far as the injury to the horse is concerned, a different question is presented. There does not seem to be any sufficient evidence to show that the death of the horse was a consequence of the ■accident. The evidence upon this point tended to establish that the horse was thrown down by the force of the collison, immediately got up, was again attached to the wagon, and driven off. There was no appearance of injury to the horse, and he exhibited none as he moved off. The only testimony showing its subsequent «condition comes from the plaintiff, and is, in substance, that after the accident the horse was “ pining away ”; that be was afflicted with a soreness of the throat, which was the only trouble; and that he died in three weeks. The evidence does not show that the horse was injured in the throat or elsewhere, nor was any attempt made to show connection between any injury and the disease of which he died. Inference from the testimony that the throat trouble was the result of the accident we do not think is permissible, as such a result would be quite unusual, and is in no sense a natural consequence. The proof of the value of the horse is unsatisfactory, and much of the testimony bearing thereon was incompetent. The court declined to charge that there could be no recovery for its value. Counsel for appellant raised all of these questions upon the trial, and now insists that, for the errors thus committed, the judgment must be reversed, and a new trial ordered. This result would inevitably follow if we were unable to relieve defendant from the consequences of the error. But the value placed upon the horse clearly appears; and if we deduct this amount, as we may do (Ludlow v. McCarthy, 5 App. Div. 517 519 ; 38 N. Y. Supp. 1075), then defendant will have sustained no injury therefrom. The value of the horse was placed at $200. This sum should be deducted from the amount of the recovery.

The judgment will therefore be modified by deducting there from the sum of $200, together with a proportionate amount of the extra allowance, and, as thus modified, should be affirmed without costs to either party in this court.


author: BROWN, P. J.

text:
    Henry M. Kaiser v. Frederick B. Latimer.
    (Supreme Court, Appellate Division, Second Department.
    October 6, 1896.)
    Warehousemen—Negligence—Burden oe Proof.
    In an action against a warehouseman for injuries to goods caused by the collapse of the warehouse while a contractor was engaged in making necessary repairs, the burden is on plaintiif to show that the injury was due to the negligence of defendant.
    Appeal from trial term, Kings county.
    Action by Henry M. Kaiser against Frederick B. Latimer to re cover damages for injuries to plaintiff’s goods while in defendant’s warehouse. Judgment entered on a verdict for $700 in favor of plaintiff, and from an order denying a motion for a new trial defendant appeals.
    Robert H. Wilson, for appellant.
    Elliott, Jones, Breckinridge & Dater, for respondent.
   BROWN, P. J.

The defendant, in the year 1894, was a warehouseman, owning and occupying a storage warehouse on Atlantic avenue, in the city of Brooklyn, wherein the plaintiff had stored a large quantity of household goods and furniture. In the month of April, 1894, a fire occurred in the basement of the warehouse, which caused no injury to the plaintiff’s goods, but necessitated considerable repairs to the building. One Martin Peterson entered into a contract with the defendant to do certain carpenter work, which consisted of the removal of burned timbers and beams, and replacing them with new ones furnished by the defendant. During the progress of this work the building collapsed. Afterwards the ruins were taken down, and the goods stored in the building were removed. Those belonging to the plaintiff were restored to him, some uninjured, but many in a damaged condition. This action was brought to recover the loss thus sustained, and upon the trial the plaintiff had a verdict of $700. We are of the opinion that the question of the defendant’s negligence was, upon the-testimony, one of fact, and that the case was in all respects one-for the jury. The learned trial judge, however, charged the jury as follows:

“The burden is on the defendant, who has concededly failed to-return these goods, or a portion of them, to satisfy you by a fair preponderance of evdence that he acted in regard to these goods, or dealt with them, as a prudent man would deal with his own property. The goods having been deposited with the defendant, and he having failed to return some of them, the burden is upon the defendant to satisfy you by a fair preponderance of evidence that he dealt with these goods as a prudent man would deal with, his own. If he has satisfied you of that contention, that is the end of the case, and your verdict should be for the defendant.”

To this charge the defendant took.an exceptiou, and requested the court to charge that the burden of proof was on the plaintiff to prove that the defendant lost the goods through his neglect. To-this the court replied, “I decline so to charge,” to which refusal and charge the defendant again took exception. We are of opinion that this ruling was erroneous, and that the court should have charged as requested. The general rule is that the burden of proof remains where “the issue made by the pleadings places it. Heilman v. Lazarus, 90 N. Y. 672. A failure upon the part of a bailee to deliver to a bailor his property on demand raises a presumption of liability, but this presumption is prima facie only, and may be overcome by evidence; and, when it appears that the loss was caused by some accident, the onus continues upon the bailor to prove that such accident was caused by the want of care upon the part of the bailee. Claflin v. Meyer, 75 N. Y. 260; Draper v. Canal Co., 118 id. 118; 27 S. R 931; Stewart v. Stone, 127 N. Y. 500; 40 S. R 314.

The complaint in this action alleged that the plaintiff’s goods were lost through the negligence and. improper conduct of the defendant. This allegation was denied by the answer, and, upon the issue thus made, the burden of proof was upon the plaintiff. He made out a prima facie case when he proved that the defendant had failed to deliver his goods to him upon demand; but, when it appeared that their loss was due to the collapse of the warehouse while the contractor was engaged in repairing the injury caused by the fire, the burden was on the plaintiff to show that that result was due to the negligence of the defendant. There is in such a case as this no shifting of the burden of proof. The warehouseman, in the absence of bad faith, is liable only for negligence. The fact is the basis of the plaintiff’s cause of action, and the burden of proving it rests upon him throughout the trial. He may make out a prima facie case of liability by showing a failure on the defendant’s part to deliver the goods on demand; but, when that refusal is sustained by testimony, upon the whole case the burden rests upon the plaintiff to establish the defendant’s negligence by a preponderance of evidence. The cases cited by the respondent do not conflict with this rule, but hold simply that proof of a failure to deliver the goods on demand raises a presumption of the bailee’s negligence.

For this error in the charge, the judgment must be reversed, and a new trial granted, with costs to abide the event.

All concur.


text:
    Mary C. Stapleton v. City of Newburgh.
    (Supreme Court, Appellate Division, Second Department,
    October 6, 1896.)
    1. Municipal corporations—Defective condition of sidewalk—Evidence.
    The evidence is sufficient to show that the plaintiff’s fall on a sidewalk was caused by ice and snow, where plaintiff and other witnesses testified that the sidewalk had been slippery and uneven for a long time, that there was snow and ice on it at the time of plaintiff’s fall, that the sidewalk had never been cleaned, and that it looked as “if the children rode sleighs over it,” though no witness expressly stated that the ice and snow were the cause of the accident.
    S. Highways by prescription—Evidence.
    Testimony of the superintendent of defendant city at the time plaintiff was injured, by falling on the sidewalk of a street which had been in use for twenty years, that during the winter of the accident he had employed men to clean the walks on the street in question, and had notified property owners thereon to clean the walks when snow fell, is sufficient to show that the city had adopted such street as a public street, though the city clerk testified that it had never been opened by the city or accepted as a public street, and that no grade line had ever been established thereon.
    8. Excessive damages—Personal injury.
    A verdict for $1,100 is not excessive when plaintiff’s leg was broken, and had to be kept in a plaster cast for five weeks, though the fracture was a simple one, and a recovery was expected.
    Appeal from trial term, Orange county.
    Action by Mary 0. Stapleton against the city of Newburgh to recover damages for personal injuries to plaintiff, who slipped on a sidewalk in defendant city, and broke her leg. From a judgment entered on a verdict for $1,100 in favor of plaintiff, and from an order denying the motion for a new trial, made on the minutes of the court, defendant appeals.
    C. L. Waring, for appelant.
    Grant B. Taylor, for respondent.
   WILLARD BARTLETT, J.

The plaintiff recovered a verdict of $1,100, damages for injuries received by falling upon Gidney avenue, in the city of Newburgh, on the 25th day of January, 1895, at a point on the sidewalk which was at the time in a slippery, unsafe, and dangerous condition for the passing and repassing of persons on foot, and which the defendant corporation had knowingly and for a considerable period allowed to remain in such condition.

The first assignment of error in the brief for the appellant ia the reception of proof as to the thickness of ice on the sidewalk of Gidney avenue five days after the accident, and at a point other ^than that where the plaintiff fell. The principal testimony on this subject was given by the plaintiff’s son, without a single objection or exception on the part of the defendant No suggestion was made that the place which he examined was not the place where his mother had fallen, and, although his measurement was made five days later, he swore that the walk was in about the same condition then as it was when she fell. The only objection which the record discloses on this subject was made to the testimony of another witness, who saw the plaintiff’s son making this measurement, and told how it was done. I cannot see why his statement in confirmation of that of the son, was not entirely proper to be laid before the jury.

The next point which the brief brings to our attention is the alleged failure of the plaintiff to prove that the ice and snow upon the sidewalk were the cause of the accident. It is true, there is no single sentence in which the plaintiff or any of her witnesses say in so many words that the slippery and uneven condition of the walk occasioned by the accumulation of snow and ice caused her to slip and fall; but such is the fair inference from all the facts to which they testify. A few extracts from the record will show this. Thus, we find in the cross-examination of the plaintiff' herself : “ Q. - Yon saw it [the sidewalk] was slippery and rough and uneven? A. Yes, sir. Q. And you knew it had been in that condition a long time previous? A. Yes, sir.” A gentleman who helped her up testified: “ I noticed the condition of the sidewalk at the time. There was snow and ice on it.” And a lady who was with the plaintiff at the time of the accident swears: “I was about two steps ahead of Mrs. Stapleton when she slipped and fell. The sidewalk had never been cleaned. *" * * The walk was very holey and hilly, and iatted down in the center by pedestrians, as if the children rode sleighs over it.” These statements, taken together with the testimony of the plaintiff's son that he found four inches and a half of ice there on the 30th of January; 1895, and that the place was then in about the same condition as when his mother fell, tend strongly to show that the accident was due to the uneven and icy state of the highway. Whether the plaintiff was in any way at fault herself, and so contributed to the injury, was a question properly left to the jury, which they determined in her favor.

It is also argued that there is no proof that Gridney avenue was-a public street. The city clerk of Newburgh testified that it had never been opened by the city, or accepted as a public street -r that no grade line had ever been established thereon by the city, and, although there was flagging on a portion of the street, it was not put there by the city, or at its instance. In answer to this, the plaintiff proved a public user of Gridney avenue as a street for 20 years; but the appellant relies upon the case of Speir v. Town of New Utrecht, 121 N. Y. 420, 31 S. R. 414, as upholding the proposition that even this user did not make it a highway, unless it had been kept in repair, or taken charge of, or adopted by, the-public authorities. Evidence of such adoption, however, appears in the record, and was supplied by one of the witnesses for the defendant, who was the superintendent of streets at the time the-plaintiff was injured. During that winter, he said, he sent out notices after every storm to have sidewalks cleaned. “ I had men employed by the city to clean the walks in case the owners did not do it. * * * Notice was served on the owner of the

property where the accident occurred to clean the sidewalk. At the first snowfall he received notice, and after that there was a notice served on him after every snowfall.” Here was proof which certainly indicated that the city had adopted Gidney avenue as a public street, assumed authority over it, and recognized the obligation of the municipality to exercise some degree of care in respect to its condition.

Another point upon which the appellant relies is the proposition that if new ice had formed upon the old ice which was said to have been on the sidewalk for several weeks, and the plaintiff slipped upon the new ice, she was not entitled to recover without showing that the old ice was a concurring cause of the accident. In Lawless v. City of Troy (Sup.) 18 N. Y. Supp. 506, the plaintiff fell upon an icy sidewalk covered with freshly-fallen snow, and a judgment in her favor was reversed because, upon the evidence, it was impossible to determine whether the old ice was a concurring cause, without which the accident would not have happened. But in the case at bar there is really no proof that any new ice had formed where the plaintiff fell. There had been rain four days previously, but whether it resulted in the formation of new ice at this spot or not in no wise appears. To hold that new ice had been formed there would be merely to speculate upon a possibility. No doubt, the ice and snow melted to some extent, and the water froze again, with the changes of temperature; but the testimony, as a whole, indicates quite clearly that the accident was caused by an accumulation of snow and ice, which had been in this part of Gidney avenue quite long enough to give the municipal authorities constructive notice of its presence.

That portion of the charge of the learned trial judge is criticised in which he referred to the absence of ashes from the place on the sidewalk where the plaintiff fell, but we do not find that any exception was taken in behalf of the defendant to what he said on this-subject.

The only other point requiring notice is the claim that the damages were excessive. The plaintiff’s leg was broken. It was kept in a plaster of Paris cast about five weeks. Although the fracture was a simple one. and complete recovery is to be expected, the plaintiff still complained of discomfort in walking at the time of the trial, more than a year after the accident. Making all the circumstances into account, we cannot say that the verdict was too large.

The j udgment and order appealed from should be affirmed. All concur.


author: CULLEN J.

text:
    Antonio Latorre v. Stamping Co.
    (Supreme Court, Appellate Division, Second Department.
    October 6, 1896.)
    1. Master and Servant—Instruction op Inpants—Obvious Danger.
    The danger incident to immersing in spirits of turpentine metallic articles which had just previously been immersed in melted metal, and then in hot grease, is not so obvious to an ignorant hoy, 14 years old, as to "dispense with the necessity of instructing him in regard thereto,
    3. Same—Absence op Previous Accidents.
    The danger of igniting spirits of turpentine from dipping heated metal in it is so probable that its occurrence might reasonably have been foreseen by a person possesing a technical knowledge on the subject, and therefore a master, in performance of whose work such dipping-is done, is not relieved from liability to servants injured thereby by the fact that ho previous accident had happened.
    Appeal from trial terms, Kings county.
    Action by Antonio Latorre, as administrator of John Latorre, deceased, against the Central Stamping Company, to recover damages for the death of plaintiff’s intestate. From a judgment entered on a verdict in favor of plaintiff for $1,250, and from an order denying a motion for a new trial, defendant appeals.
    Francis Farquhar, for appellant.
    William J. Courtney, for respondent.
   CULLEN J.

This action is brought to recover damages for the death of plaintiff’s intestate. The deceased, who, at the time of the accident which caused his death, was 14 years old, was employed in the factory of the defendant. The defendant was engaged in the manufacture of household utensils. The particular work upon which the deceased was employed was the cleaning of spoons. The general process of cleaning the spoons was briefly as follows : The spoons were first dipped into melted or boiling grease, and then into a pot of melted metal. They were then again dipped into the boiling grease, then taken out, and the grease allowed to drain off to some extent; then after being shaken, placed on a perforated pan, which was put into a bath of turpentine. After remaining there about two minutes, the spoons were taken out of the turpentine, and placed in sawdust. The turpentine was used to clean the grease from the spoons, and at times would smoke from the repeated insertions of the heated metal. It was the custom to change the turpentine from time to time, as it became dirty from use. The deceased had been in this employment for three days. At the time of the accident, which was shortly after the noon intermission from work, the deceased placed a tray of spoons in the turpentine, which then ignited. The boy’s cloths took fire from the turpentine, and he was burned to such an extent that he died the following day.

The only exceptions taken on the trial were to the refusal of the court to dismiss the complaint. Hence the sole question presented by this appeal is whether, in any aspect of the evidence, the jury was warranted in finding that the defendant had been guilty of negligence which caused the accident. The occurrence of the accident was not sufficient to impute fault to the defendant. The plaintiff was required to go further, and establish some particular fault or shortcoming in the discharge of the master’s duty. The -defendant not only contends that, if there was fault, it was not on the part of the master, but the fault of a fellow servant, but further insists that the evidence was not sufficient to show from what -cause the accident happened. The evidence established that the turpentine had not been changed during the day of the accident. Of course, the repeated insertions of the hot spoons tended to heat the turpentine, and render it liable to ignite. The failure to change the turpentine, it is claimed, was the negligence of a fellow servant. This would doubtless be the case, had the master made any rule or regulation on the subject to guard against the danger. But none such seems to have been made. Whether the absence of any regulation would have been a sufficient ground upon which to predicate negligence presents a serious question, which we need not decide, as we agree with the counsel for the defendant in his claim that the evidence would not warrant a finding that the failure to change the turpentine caused it to take fire. Had the turpentine ignited before the dinner hour, it might have been attributed to this cause. But the fire took place almost immediately after the dinner hour. During this intermission of three-quarters of an hour the turpentine must have cooled, and it is difficult, if not impossible, to see how the fire is to be attributed to its previously heated state. But, though the fire did not occur from the failure to change the turpentine, we think the jury might well have found that it proceeded from the insertion of the heated spoons. The imilammable character of turpentine is a fact well known, and was established in this case by proof. That a metal spoon could be heated to a sufficient temperature to ignite turpentine, or a far less inflammable material, is unquestionable. The fire occurred upon the insertion of the hot spoons. No other cause for the fire is shown. It is suggested that a spark from one of the fives in the room might at the time have fallen into the turpentine, but no such fact was proved. I think, therefore, the fact was that the turpentine took fire from the spoons, and that the evidence would' justify a finding to that effect. The statement of one of the witnesses, that shortly after the accident he felt the spoons, and that they were cold, was not sufficient to conclusively negative the presumption that might be drawn from the occurrence of the fire. It may well be that the witness was mistaken as to the condition of the spoons, or, if correct as to that, then in error as to the time when he felt them. This view as to the cause of the fire was strengthened by other testimony, that the spoons when taken from the grease, were very hot—“ hot enough to burn your hands”—and were allowed to hang for a time to let the grease -drain off and the spoons cool. I think the real cause of the fire was that the spoons had not sufficiently cooled, and were too hot, when placed in the turpentine, or, at least, that the jury might well have so found.

The question then arises, was this cause of the fire to be ascribed to fault on the master’s part ? It was undoubtedly the act of the deceased himself that led to the fire. If he knew, or should have known, of the danger of inserting the spoons when too hot,, and the duty of seeing that they had, to some extent, cooled, before placing them in the turpentine, the fault of negligence was his own. But the deceased was an ignorant Italian boy, only fourteen years old. He had worked in his occupation only three days. He was given no instruction as to the danger of his employment, and no caution as to the care which he was to exercise to avoid such danger. In Hickey v. Taaffe, 105 N. Y. 26; 6 S. R 416, a recovery by the plaintiff, a child employed at an ironing machine, was defeated on the ground that she had acquired, by a period of six weeks’ service, all the information that instruction could impart to her. But it was there said:

“ Assuming the plaintiff’s statements in this case to be true,— that she had no instructions as to the danger of the machine, and that she had never worked at any machinery before,—if, under such circumstances, this accident had happened within a short time of her employment, and because of her unfamiliarity with, and lack of appreciation of the dangers attendant upon the working of, the machine, the defendant may well have been held liable for the damages sustained by her on account of such ignorance.”

Here, as already stated, the deceased had been engaged at the work but three days. In the case of obvious and patent dangers, no instruction is necessary. In Buckley v. Manufacturing Co., 113 N. Y. 540; 23 S. R 618, the plaintiff was injured by having his fingers crashed between cogwheels. He slipped on the floor, and, to save, himself from falling, instinctively put out his hand upon the moving cogs. It was held that the defendant was not liable, because the danger from placing his fingers between the revolving cogs must have been as obvious to the plaintiff as to any grown man. It was said :

“ There is no rule of law that a minor may not be employed about a dangerous machine, and the simple fact that a machine is-dangerous does not make an employer liable for an injury received by a minor employed upon such machine.”

At the same time, however, the court .recognized that instruction might be necessary, for it is further said :

“ All the law requires is that the minor should be properly instructed as to the danger to which he is exposed, and, if he is injured because he has not received such instruction, then, as a general rule, the employer may be held responsible.”

So, in Crown v. Orr, 140 N. Y. 450; 55 S. R 834, the plaintiff was injured by the knives of a planing machine. It was held that the danger was obvious, and the plaintiff could not recover. Still, it was again said:

“If the injury to the servant is attributable to the master’s-neglect in omitting to furnish safé and adequate appliances for the work, according to the nature of the business, or competent co-servants, or even if he neglects to give persons unacquainted with tin; use of machinery proper instructions with respect to its use, he is liable.’’

The question is therefore further narrowed to this: Was the danger of the work obvious to plaintiffs intestate, or, if not, was it sueh that proper instructions would have enabled the deceased to guard against it? If this latter was the case, then the failure to instruct was negligence. We are of opinion that the danger was not obvious. Of course, we know that turpentine is a very inflammable substance. Whether the boy was chargeable with that knowledge, we doubt. But, assuming that he must be presumed to have had such knowledge, that knowledge alone did not render the risk obvious. This case is to be distinguished from those 'of Buckley v. Manufacturing Co. and Crown v. Orr. In those cases, contact with dangerous machinery would necessarily cause injury, and the employment did not necessitate contact. Here the employment of the deceased required him to do the very thing which caused the accident, to wit, to insert the spoons. The danger depended on the heat of the spoons. It may be that it was necessary to place them in the turpentine before they were entirely cooled, because in the latter case the grease would become hard, and not so easily removed. But at the same time it seems plain that they should have been allowed to cool sufficiently to prevent any danger of igniting the turpentine. We think the jury might properly find that a mere boy, of the age of the deceased, could not have been expected to know the danger and the means of avoiding it, and that he should have been instructed, not only to see that the spoons had sufficiently cooled before bathing them in the turpentine, but that he should have been given some practical standard for him to apply, or that there should have been some regulation or rule on the subject, and that the fire was caused by the failure to give such instruction or prescribe such regulation.

The fact that no previous accident of this character had happened does not relieve the master from liability, provided the accident was such that the probality of its occurrence might reasonably have been foreseen. We think this accident of such a character. The danger of igniting the turpentine from inserting the heated metal was one that should have been anticipated by a person having the technical knowledge on the subject that the master should have possessed.

The point is made that the deceased was not in the employ of the defendant, but of one Corrigan, the foreman, as an independent contractor. The evidence of the relation Corrigan bore to the defendant is meagre, and its purport not entirely clear. He testified at first:

“ I am foreman of this factory. The factory was carried on by the Central Stamping Company,—owned by the Central Stamping Company; and the foremen were employed by the Central Stamping Company, and they were paid by the Central Stamping Company, and I was paid by the Central Stamping Company, and they owned the business, and I was foreman in the business."

On.cross-examination the witness testified that he was paid by the gross or hundred for the articles turned out in his department, and that out of that he paid the boys who worked under him. But this latter statement was again qualified by the further testimony that he was only the foreman for that department, and under the superintendent. We think, at most, this evidence presented a question of fact for the jury to determine,—whether the deceased was in the employ of the defendant or of Corrrigan The^ learned trial judge seems to have assumed, in his charge to the jury, that the defendant was the employer of the deceased. To this the defendant made no objection, nor did it ask that the question be submitted to the jury. Therefore, if there was any evidence to justify the conclusion that the defendant was the employer, it can not now complain of the action of the trial court.

The judgment and order denying motion for a new trial, appealed from, should be affirmed, with costa.

All concur.


text:
    Richard Saniford v. Carmen Frost.
    (Supreme Court, Appellate Division, Second Department.
    October 6, 1896.)
    1. Appeal—Review of facts.
    Finding of fact can not be reviewed where the appeal book does not state that the case contains all the evidence.
    3. Champery—What constitutes.
    A contract between plaintiff and defendant for acquiring title to land and obtaining possession thereof, one party to do the work and the other to furnish money, is not cliampertous, where the parties did not know that the grantor was out of possession, and that the premises were the subject of pending action.
    3. Same—Conveyance under judicial decree.
    Pen. Code, § 129, forbidding the buying and selling of pretended titles to land, does not forbid conveyances to be made under a decree of court.
    4. Witness—Privileged communications—Attorney and client.
    Communications made to an attorney by one of two clients, in the presence of the other, while they were consulting him for their mutual benefit, are not privileged in a subsequent action between the clients.
    Appeal from special term, Kings county.
    Action by Richard Sandford against Carman Frost to obtain an adjucation that defendant held the land described in the complaint as trustee for a partnership between plaintiff and defendant, and that plaintiff be declared to have a one-third interest in the land, and that defendant be enjoined from selling, conveying, or transferring the title without plaintiff’s consent, and that defendant execute a declaration of trust as to plaintiff’s one-third interest. There was a judgment in favor of plaintiff, and defendant appeals.
    Calvin D. Van Name, for appellant.
    W. P. Prentice, for respondent.
   WILLARD BARTLETT, J.

There is no statement in the appeal book that the case contains all the evidence. Hence we can not review the findings of fact. Aldridge v. Aldridge, 120 N. Y. 614, 31 S. R 948. According to these findings there was an agreement of partnership in 1887, 1888, and 1889 between the plaintiff and the defendant, for acquiring title to a large tract of land on the south shore of Long Island, known as the “Long Beach Property,” and obtaining possession thereof. The defendant undertook to secure the necessary records, searches, deeds, and other documents, while the plaintiff was to furnish money for the necessary expenses of the enterprise, and the personal expenses of the defendant, and to aid the undertaking by his own services. The interests of the parties were to be one-third in the plaintiff, and two-thirds in the defendant. The agreement was embodied in a written memorandum signed by the parties, which had been lost at the time of the trial, but the substance of which was proved as already stated. The learned trial judge further found that the plaintiff had duly performed his part of the partnership agreement, having furnished more than $1,600 thereunder; that the defendant, with the active aid and co-operation of the plaintiff, obtained title to said Long Beach property, and the muniments of title; and that, there having been no settlement or accounting between the plaintiff and the defendant when the object of the partnership had been thus far secured, the plaintiff demanded a declaration of trust as to his one-third interest in the partnership property, with which demand the defendant refused to comply. It was accordingly adjudged that the defendant had obtained and held title to the property in question as trustee for a partnership between the plaintiff and the defendant, in which the plaintiff had an undivided interest of one-third. The judgment, however, directs a conveyance to thé plaintiff of all the right, title, and interest acquired by the defendant in the lands therein described. This is obviously a mistake, which must be corrected so as to provide for the conveyance of a one-third interest only, if this portion of the judgment is otherwise proper.

So far as questions of law are concerned, the judgment is assailed in two respects only: (1) On the ground that the contract amounted to champerty ; and (2) on the ground that Charles De Kay Townsend, the legal adviser of the parties, was erroneously allowed to testify to the contents of the lost memorandum, against the objection and exception of the defendant.

1. We see no reason to regard the agreement as champertons. By its terms, as found by the trial court, it contemplated nothing which is forbidden by the statute against buying- lands in suit. Nor does the testimony show that when the conveyance was actually taken by the defendant the grantor was out of possession, to his knowledge, and the premises were the subject of a suit in court* of which the defendant also knew. Pen. Code, § 129. The appellant insists, still further, that the trial court itself attempted to bring about champerty, by directing the defendant to convey to the plaintiff, inasmuch as there undoubtedly was a litigation-concerning the land pending ot the time of the trial, to the knowledge of both the parties and the learned judge. It is well settled, however, that the statute against buying and selling pretended titles does not prevent the transfer of property by operation of law, or by conveyance made under the decree of a court of competent jurisdiction. Tuttle v. Jackson, 6 Wend. 213, 224; Truax v. Thorn, 2 Barb. 156, 159. And the same is true, we think, of the statute concerning the transfer of land in suit.

2. The testimony of Mr. Townsend was properly received, as his knowledge of the facts stated was obtained at an interview in which both parties consulted him, as an attorney, for their mutual benefit. Under such circumstances, the communication is not privileged in a subsequent litigation between the clients. Hurlburt v. Hurlburt, 128 N. Y. 420; 40 S. R. 436; Rosseau v. Bleau, 131 N. Y. 183; 42 S. R. 871.

The judgment should be modified so as to direct the conveyance by the defendant of only one-third, instead of the whole, of his interest in the premises described in the decree, and as thus modified should be affirmed, without costs.

All concur.


author: L ANDON, J.

text:
    William N. Howell v. John Cappelli.
    (Supreme Court, Appellate Division, Third Department,
    September 22, 1896.)
    Justices of the peace—Postponement—Non-appearance of plaintiff.
    Code Civ. Proc., § 3013, providing that a justice must render judgment of nonsuit if plaintiff fails to appear within an hour after the summons is returnable, prohibits a justice from granting an adjournment on the nonappearance of plaintiff, though plaintiff was prevented from attending by storms .which rendered travel impossible.
    Appeal from Columbia county court.
    Action by William N. Howell against John Oappelli. From a .judgment of the county court affirming a judgment of a justice in favor of plaintiff, defendant appeals.
    Upon the return of the summons, the parties appeared in the justice’s court, the plaintiff in person, the defendant. by his attorney. Issue was joined, and the case adjourned, upon motion of the defendant, until February 9, 1895, at 2 p. m. The return recites :
    “ Feb. 8. 3:00 p. m. Case called. Milton M. Hall, Esq., ap-
    pears for defendant, and states that he has been requested by Mr. Crandell, defendant’s attorney, to appear for him, and, if plaintiff appeared, to secure an adjournment; if plaintiff did not appear, to have action dismissed.
    “A telegram having been received from plaintiff from New York, dated Feb. 8, 1895, stating that all trains upon New York Central Railroad had been abandoned on account of severe snowstorm. and it being a fact that all railroads and means of communication between New York and Hudson are blocked and impassable by reason of snow, the justice, upon his own motion, and upon the telegram referred to (filed and marked ‘ B ’), adjourns this case to February 22d, 1895, at 2:00 p. m., no objection being made to said adjournment by Mr. Hall, appearing for the defendant.

      “ Feb. 22. 3:00 p. m. Case called. Plaintiff appears in person. Defendant does not appear, either in person or by attorney.
    “The Western Union Telegraph Company received at Hudson, N. Y., 11:45, Feb’y 8, 1895, dated New York, to H. W. Aldea (filed ‘B’):
    “ Trains abandoned. Cannot reach Hudson to-day. Adjourn -case, and mail ine notice two weeks from to-day, if possible.
    “ ‘ Wm. N. Howell.’ ”
    The justice then took the evidence of the plaintiff, and thereupon rendered judgment in his faAor.
    John L. Crandell, for appellant.
    Mark Duntz, for respondent.
   L ANDON, J.

The plaintiff having failed to appear upon the adjourned day, either in person or by attorney or agent, we think the statute required the justice to render a judgment of nonsuit, with costs against him. Code Civ. Proc., §§ 3013, 2861. We do not think, in view of the statement made by the person representing the defendant, that he consented to the adjournment.

Judgment reversed, with costs.

All concur.


author: LANDON, J.

text:
    Effie B. Oliver v. Margaret R. French et al. Margaret R. French v. Effie B. Oliver.
    (Supreme Court, Appellate Division, Third Department,
    October 2, 1896.)
    Judgment—Correction—Time or motion.
    Where an order denying a motion to correct a judgment, made withm one year after entry of the judgment, as required by Code Civ. Proc., § 724, was affirmed on appeal after the expiration of the year, with leave to renew, the renewed motion cannot be denied on the ground that it was not made within the year.
    Appeal from special term, Columbia county.
    Action by Effie B. Oliver against Margaret B. French, as administratrix of John W. French, deceased, and others, to have a sale of mortgaged real estate made under a judgment of foreclosure in the action bv Margaret R. French, substituted as plaintiff in place of John W. French, deceased, against Effie B. Oliver, and others, set aside, with the referee’s deed on such sale, and for a resale under the judgment of foreclosure. Judgment was entered in favor of plaintiff on April 26,1893. Plaintiff moved on March 26, 1894, to conform the judgment to the findings and decision. The motion was denied on March 31. 1804, and the order of dismissal was affirmed in December, 1894, with leave to renew the motion. The motion was renewed in March, 1895. It was again denied, and plaintiff appeals.
    John H. Chadsey, for appellant.
    A. Frank B. Chace, for respondent.
   LANDON, J.

We overrule the objection that the motion was not made within one year from the entry of the judgement. It was first made within the year, and denied ; and upon appeal to the general term the order was affirmed, because the irregularities complained of were not sufficiently specified, but without prejudice to the renewal of the motion. 30 N. Y. Supp. 52. Then the motion was renewed, upon additional papers, after the year had expired. While this is not technically the original motion, it is substantially so, as amended pursuant to leave granted by the general term.

The learned trial judge, by his findings and decision, held that the plaintiff was bound by the Bain mortgages and the judgment of foreclosure thereon, but in no other respect. The plaintiff’s interest is also subject to the life estate therein of her mother. The decision of the trial court, in effect, holds that such life estate is. not subject to any trust in favor of the plaintiff, since the decision further holds that, as French went into possession thereof under the life tenant, French’s administrators need not account to the latter for the income thereof since such entry; that is, plaintiff’s mother, having the life estate, could dispose of it for her life. If in this respect the trial judge erred, the remedy is not upon this motion, since the motion proceeds upon the assumption that the decision was right. The decision directs a resale of the premises-under the valid foreclosure judgment, and, from the avails of the sale, directs the payment to the administrators of French of the two Bain mortgages, with interest thereon, without mentioning to what date, and the costs. The judgment entered directs that such interest be computed to the date of sale. Except in this respect,, and the amount of the surplus money thus affected, the judgment, entered upon the decision^ conforms to it, so far as the plaintiff is concerned. The plaintiff’s mother, the life tenant, does not complain of the judgment as entered ; and we therefore need not inquire whether, as to her, it is broader than the decision, unless we find that thereby the plaintiff is prejudiced.

The material question, then, is whether the judgment as entered follows the decision and the findings in respect to the date to which the plaintiff’s remainder in the real estate is chargeable with interest upon the Bain judgments. From the facts found by the learned trial judge, it appears that French, the owner of the Bain mortgages, went into possession of the real estate May 19, 1886; As against this plaintiff, he was mortgagee in possession of her mother's life estate. It is found that the annual value of the mortgaged real estate was $600. Clearly, the'interest upon the Bain mortgages should be paid from this income during the life estate. The plaintiff’s mother joined in the mortgages, and the will does not exempt the life tenant from liability for the interest upon them. Moseley v. Marshall, 22 N. Y. 200. The judgment should have been entered in conformity with the facts found in this respect. We therefore reverse the order appealed from, with costs, and direct that the judgment be corrected by providing that the interest upon the Bain mortgages shall be computed to May 19, 1886, and that the direction therein that same be computed to day of sale be stricken therefrom.

The order in French v. Oliver (argued herewith) is affirmed, with costs. The order in Oliver v. French indicates the rights of the parties, and under the decision of the trial court no part of the inhome of the life tenant is applicable to the payment of the Bain mortgages.

All concur.


author: HATCH, J.

text:
    Frederik Ranscht v. Sabah Ann Wright.
    (Supreme Court, Appellate Division, Second Department,
    October 6, 1896.)
    Easements—Creation by deed—Riqht of way.
    A deed describing the premises conveyed as bounded by a “ road or right of way ” which up to the time of conveyance had been used by the grantor in connection with the premises conveys also the right of way, where the beneficial use of the premises requires its use, though it is not a necessity.
    Appeal from special term, Westchester county.
    Action by Frederick Rnnscht against Sarah Ann Wright to restrain defendant from closing or obstructing a certain road or right of way, on which plaintiff’s land was bounded. There was a judgment in favor of plaintiff* and defendant appeals.
    Isaac N. Mills, for appellant.
    Wilson Brown, Jr., for respondent.
   HATCH, J.

We agree that this judgment can not be supported upon the ground that this lane was a public way, as there is no proof which would warrant such a finding, and for the further reason that such question was eliminated by the concession made upon the trial that such question would not be relied upon. It may not, therefore, be now considered. We also agree that no right has been acquired by the plaintiff in the land by user alone, or by express grant, or by virtue of convenience or necessity; for when plaintiff acquired title there was no obstacle which prevented his reaching any part of his premises from the public highway which ran in front, and upon which he bounded. This brings-us to the only remaining question in the case, which is, did a right way arise by implication, as an appurtenant to the premises, under the grant made by Purdy to Patrick Fahey, through whom plaintiff makes title ? It may be observed that the question is somewhat close, and some authority exists warranting the claim that a right of way in the lane is not, in a technical sense, an-appurtenant to the premises conveyed. However this may be, we think the question is one that must be governed by the intent of the parties, to be extracted from the grant and its language, and the circumstances and conditions which existed at the time when the grant was made. It is undisputed that the lane was established by Purdy, as a private way for himself and certain of his grantors, upwards of fifty years ago, and that it has since been continuously-used by these and other persons prior to the time when the pres» <ent plaintiff acquired, all the interest of Purdy and the other parties in interest, except the plaintiff, to the lands and the lane, and thus became the owner of both the dominant and servient tenements. When Fahey took his deed from Purdy, the lane was in existence, and was then being used in substantially the same manner as it had been before that time. Fahey received his deed from Purdy in 1889. The lane had then been open and used for upwards of thirty years. The conveyance was of Purdy’s homestead lot, and the lane had been used in connection with this property since its establishment. So far as important here, the description in this deed reads:

“Beginning at the northeasterly corner thereof, at the westerly line of a lane or right of way running southerly from the south•erly side of the street or avenue known as ‘ Central Avenue,’ and between the premises herein described and other lands, formerly ■of said Hart Purdy; thence running southerly from Central avenue along the westerly side of said lane or right of way.”

And thence, by different courses and distances given, it bounds the Jnnd, and returns to the point of starting. This description not only bounds the land upon the lane or way, but it locates with practical definiteness the way itself. Are this description and the circumstances sufficient to raise an implied right of use of this lane in connection with plaintiff’s premises? In Parsons v. Johnson, 68 FT. Y. 62, relied upon by the appellant, the way was laid out by tenants in common. One of the tenants subsequently mortgaged the land lying on the east of the way, “ with appurtenances.” The mortgage gave the western boundary of the premises on a line coincident with the east line of the way. The way was not mentioned or referred to in any manner, and it was not essential for access to the mortgaged premises. The court held that no easement passed in the way under the mortgage, or judgment of foreclosure thereunder; that the use of the word “ appurtenances” did not pass it; and that defendant, having become possessed of the dominant and servient tenements, had the right to close the way. It is at once seen that a radical difference exists between the grant in that case and the present one. There no reference was made to the way. Here the way is asserted as existing, it is practically located, and the boundary of the premises is thereon. This distinction is clearly pointed out in the discussion. Judge Earl, in distinguishing Huttemeier v. Albro, 18 N. Y. 48, said:

“ Here no mention was made in the Jones mortgage of the way. That case (18 N. Y. 48) was decided upon the well-settled rule that a reference to a way owned by the grantor, as a boundary, .gives a right of way therein. Smyles v. Hastings, 22 N. Y. 4l7; Waslib. Easem. marg. p. 170.”

In the Smyles Case, cited to sustain this doctrine, there was present the element of necessity. A map was made at the time the land was subdivided into lots, and these elements were considered in the disposition of the case. It cannot, therefore, be said to support the doctrine announced by Judge Earl in its fullest extent. The same criticism is, however, not true of the further authority of "Washburn on Ease-merits. It is there fairly to be gathered from the text of the learned .author, and the authorities which he cites, that a reference in a deed to an existing way owned by the grantor, as a boundary line, carries in such way an easement in the sentence. This is clearly the rule of the Massachusetts authorities cited to sustain the text and subsequent decisions of that state sustain the doctrine to the fullest extent. In Insurance Co. v. Cousens, 127 Mass. 258, a mortgagor had laid out on his premises a private way running from one public street to another, ‘The mortgage made no reference to the way, but the premises bounded on its exterior lina Subsequently the mortgagor executed another mortgage to a third party, of other premises, including therein, by metes and bounds, the private way. The first mortgage was recorded before the second mortgage was given. It'was held that the purchaser acquired an easement in the private way, the ■court saying:

“The only question in this case is whether the plaintiff took by implication a right of way over the thirty-foot passageway, and we .are of opinion that it did. The rule is that, when a grantor conveys land bounded on a street or way over his other land, he and those claiming under him are estopped to deny the existence of such street or way.”

This case may carry the doctrine of implied grant beyond the rule laid down in the courts of this state. But it is authority for the rule announced in the Parsons Case, supra,—that a reference to an existing way in the grant carries with it an easement in the way in the grantee. We think the same question is decided in Huttemeier v. Albro, 18 N. Y. 4g. It is true that that case presented an element of necessity. But the reasoning of the court places the decision as well upon the description of the grant contained in the deed as upon an existing necessity, and applies the rule other grantees, where the necessity did not exist. Taken in connection with the enunciation of the court in the Parson Case, supra, we think it the intention of the court of appeals to lay down as a rule of law that where the grantor is the owner of a way then in use, in connection with the premises granted, and grants the land bounding therein, by reference to such way as a boundary in the grant, and the beneficial use of the land conveyed may require the use of the way, although not in the sense of being a necessity, an easement in such way passed under the grant, which neither the grantor n >r subsequent grantees of the premises can defeat. Newman v. Nellis, 97 N. Y. 285. In all of the cases where the question has arisen in this state, which have fallen under our observation, there has been present some condition beyond the boundary of the land onveyed by reference to the way. But the trend of authority seems to be that where the way exists, and the boundary is made thereon by reference to the existing way, such description indicates an intent that the way shall -remain open, as appurtenant to the premises conveyed. As we said by Judge Strong in Huttemeier v. Albro, supra :

“ If the alley was to be abandoned, and no longer exist, it would hardly be made a part of the description of the land, to aid in identifying it, not merely at the time of giving the deed, but in the future.”

A like rule is adopted in Michigan. Smith v. Lock, 18 Mich. 56. This rule is in harmony with that laid down by Mr. Justice Story in U. S. v. Appleton, 1 Sumn. 492, Fed. Cas. No. 14,463,— that every grant of a thing necessarily imparts a grant of it as it actually exists, unless it he otherwise provided. And this rule was adopted by the court of appeals in Holloway v. Southmayd, 139 N. Y. 390-407; 34 N. E 1047, 1052, the court adding:

“It is the better .rule to hold that, to exclude a grantee from the perpetual beneficial use of the open way in front of the premises granted to him, the language of the deed should clearly express such an intention.”

If we are correct, it follows that the judgment should be affirmed, with costs.

All concur.


text:
    Robert Wallace v. George E. Payne.
    (Supreme Court, Appellate Division, Second Department,
    October 6, 1896.)
    Wills—Action to declare void—Equitable jurisdiction.
    An equitable action to declare a will void will not lie, as the party aggrieved has a remedy at law, by an action under Code Civ. Proc. § 2653a, to determine the validity of the probate of the will.
    Appeal from special term, Kings county.
    Action from Robert Wallace against George B. Payne, individually and as executor of the will of Eliza Ann Williams, deceased, impleaded with another, to declare a will void. The complaint was dismissed, and plaintiff appeals.
    George Hahn, for appellant.
    A. T. Payne, Jr., for respondent
   BROWN, P. J.

The plaintiff, who claimed to be the heir at law of Eliza Ann Williams, deceased, seeks in this action to have the will of said deceased declared void. He alleges in his complaint that said will was on June 10,1895, filed for probate in .the surrogate’s office of the county of Queens, and that he has filed an-answer to the petition for the probate thereof, contesting the validity of the will on the grounds set out in the complaint. These grounds are that the will was not executed as required by statute, that it was not the free and unconstrained act of the testatrix, and that at the time the will purports to have been executed the executrix was of unsound mind. The will relates to real and personal property. It was pointed out on the argument that chapter 238 of the Laws of 1853 and chapter 316 of the Laws of 1879, under which the plaintiff claimed the right to maintain this action, had been repealed. Laws 1880, ch. 245; Horton v. Cantwell, 108 N. Y. 255; 15 N. E. 546; Anderson v. Anderson, 112 N. Y. 104; 19 N. E. 427. In the place of the provisions of those repealed statutes were enacted sections 1866 and 1867 of the Code of Civil Procedure. But these sections do not authorize the prosecution of such an action as the present one. The only authority cited by the plaintiff to sustain the action is the case of Brady v. McCosker, 1 N. Y. 214. In the view we take of the case, it is not necessary for us to determine whether the plaintiff has brought himself within the principle of that case. The general rule was there recognized that equity would not entertain jurisdiction of an action to set aside a will on the ground of fraud, or on the ground of the testator’s incompetency, where there was a perfect remedy at law; and it was because there was an outstanding, valid trust term in the whole estate, and a valid, outstanding lease of a part of the land, which would have prevented the plaintiff maintaining an action of ejectment against the devisee under the will, that the court in that case entertained jurisdiction of the action. We are of the opinion that the plaintiff here has a perfect remedy at law, under section 2653a of the Code of Civil Procedure. The moment the will is admitted to probate the plaintiff may have his action, and the question that will be determined there will be whether the writing produced is the last will of the testatrix. The fact that that cause of action does not accrue to the plaintiff until the will is admitted to probate is of no importance. The utmost relief that a court of equity would grant to the plaintiff would be to restrain the devisee from pleading as a defense the outstanding lease of the tenants. Or, if it granted more than that, it would be compelled to frame an issue, and send the case to the jury for trial. The action authorized under the section of the Code quoted is made triable before a jury, and the relief that the plaintiff seeks in this action can be granted to him there. When Brady v. McOoslcer was decided, there was no form of action available to the plaintiff, such as is now authorized by the Code. The present plaintiff has an ample remedy at law, and a court of equity should therefore ■refuse to entertain jurisdiction of the present action.

The judgment must be affirmed, with costs. -

All concur.