text:
    Sandor Kohn, Resp’t, v. Manhattan Railway Company, App’lt.

      (New York Superior Court, General Term,,

      Filed January 7, 1895.)

    Appeal—Harmless error.
    The refusal to allow a certain question to he put to a witness is not prejudicial, where the record on appeal contains the evidence sought to be’ elicted thereby.
    Appeal from a judgment in favor of plaintiff.
    Davis, Short & Townsend (Howard Mc Williams, of counsel), for app’lt; William W. Badger, for resp’t.
   Gildersleeve, J.

The only question raised on this appeal which demands discussion is the defendant’s contention that the court erred in refusing to allow the following question,—i.e.r “Now, after you brought this suit, you conveyed this property to Mr. Hogan ?” The court sustained the objection to this question-on the ground that the transfer was made after the suit was-brought, and is not pleaded. All the deeds, however, were ordered to be printed as part of the case on appeal, and therefore appear in the evidence presented to the general term. It seems that the case was begun on February 17, 1891, and that on March 14,1893, plaintiff conveyed the property, through one D. J. Hogan, to himself and wife jointly. Subsequently, on October 4, 1893, a month or so before the trial of the action, there was a reconveyance to the plaintiff of the property, including all rights of the wife against the defendant; so that the title was restored to its exact status before the commencement of the action. At the time of the trial, plaintiff’s title was complete. As the plaintiff and his wife each took title to the entirety by the deed from plaintiff, through Hogan, to himself and wife, there was never any interruption of plaintiff’s previous and entire ownership by title in fee-from his original grantor, Katie Kohn, except, indeed, for the few moments, when the title stood in the name of Hogan. Any interest that the plaintiff’s wife acquired after issue in this action, she released to the plaintiff before trial. It would therefore: seem that defendant’s rights can hardly be said to have been prejudiced by the refusal of the court to allow the question. See McGean v. Met. E. Railway Co., 133 N., Y. 9 ; 44 St. Rep. 75. We do not think .the amount awarded is excessive, and are of the opinion that the conclusions of the learned court below are warranted by a fair preponderance of evidence. The judgment appealed from must be affirmed, with costs.


source: Caselaw Access Project

author: Freedman, J.

license: Public Domain

text:
    Thomas Collins, Resp’t, v. Thomas E. Crimmins, App’lt.

      (New York Superior Court, General Term,

      Filed January 7, 1895.)

    1. Master and servant—Safe place.
    The rule that a master is bound to provide a reasonably safe place for his servants in which to do their work, has no application, where the servant is making, or assisting to make, his own place in which to work.

      2. Same.
    Where the master provides competent foremen and sufficient materials to make the. place safe, his duty to his servants is performed.
    3. Same—Fellow-sebvaítts.
    Foremen, to whom the master intrusts the manner of doing the work, ' are in that respect fellow-servants of the workmen.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Charles C. Nadal, for app’lt; McAdam & McAdam (Henry Schmitt, of counsel), for resp’t.
   Freedman, J.

This action was brought to recover damages for personal injuries sustained by the plaintiff through the alleged negligence of the defendant. The plaintiff was employed by the defendant as a laborer, and was injured by the falling of a bank of earth while he was engaged in excavating the bank in a trench in Third avenue, at the intersection of 125th street, during the building of the Third Avenue Cable Railway. The trench occupied the greater part of the entire width of the roadway of the avenue, and, at the time of the accident, was in some places eight or ten feet deep. The excavating was being done by steps or benches ; that is, an excavation was made to a depth of about four feet, and alongside of it another excavation was made to a further depth of about four feet. There was only one step or bench, so that there were, so to speak, three levels: First, the street level; second, the top of the bench; and third, the bottom of the trench. Upon the trial the testimony of the witnesses was conflicting as to the precise spot at which the plaintiff was at work at the time of the accident; but the great preponderance of evidence was to the effect, and the plaintiff himself admitted, that the bank which fell on him was one about four feet high, and that he was digging at it at the time. This feature at once distinguishes the case at bar from the case of Kranz v. L. I. Railway Co., 123 N. Y. 4; 33 St. Rep. 46, where it was held that a servant ordered by one occupying the position of master to clean out certain underground water pipes, and to that end to go into a trench already dug and completed by another set of workmen for that purpose, had the right to assume that the trench had been made reasonably safe by the master, through other and competent servants employed by him. In the present case the plaintiff was steadily making, or assisting in making, his own place in which to work; and for this reason the authorities which hold that a master is bound to provide a reasonably safe place for his servants in which to do their work have no application to the case at bar. That being so, and assuming, but not deciding, that, upon the whole case, it was for the jury to determine whether the plaintiff was or was not free .from contributory negligence, and whether the falling of the bank in question was or was not a risk assumed by the plaintiff under his contract of employment, the next question calling for serious consideration is whether the defendant, in the exercise of reasonable care, was or was not, after all, bound to protect the bank in question in some way in order to prevent its caving in. It was claimed on the part of the plaintiff that the defendant should have shored up or sheath-piled the bank But five experts in excavating testified that the defendant did his work in the usual and proper way ; that it was not necessary to .shore up or sheath-pile a bank only four feet high ; and that it was impracticable, if not impossible, to have such a bank shored up or sheath-piled at the samte time that it was being dug away. Upon this point the preponderance of direct evidence as well as the probabilities was with the defendant. But, independently of that, the defendant showed that, even if there was any negligence in not shoring up or sheath-piling, it was the negligence of plan-tiff’s fellow servants, for which he (the defendant) is not liable.

The following facts were proved by substantially uncoil tro verted testimony, viz.: One Thomas P. Morrell was general foreman of the whole work. He' was a man of great experience in such work, and liis duty were to see that the work was properly done. Under him was John J. McManus, as foreman in charge at the point of the accident. He was also an experienced man. His instructions were to have everything shored up and braced whenever and wherever it was required. He was at the scene of the accident at the time, ready to attend to the shoring as soon as it should become necessary. But he had examined the bank shortly before the accident, and had seen nothing to indicate that it then was necessary to shore it up. In this he stands corroborated by the plaintiff, who, in the course of his testimony, repeatedly admitted that he had perceived no sign of any danger. Moreover, Charles T. King, a professional and experienced “ shorer up,” had been engaged to do the shoring up at 125th street and Third avenue. His instructions were to go down into the excavations, and shore up wherever it was necessary, and to make everything safe and satisfactory. He was actually on the spot at the time, and was standing near the plaintiff, waiting for the plaintiff to get through with the digging, and then to proceed with the shoring. And finally, it was shown that the defendant had furnished plenty of timber and planks for shoring. These facts clearly established that, in providing competent foremen and sufficient proper appliances, the defendant had done all that the law required of him under the circumstances; that, the manner of doing the work having been intrusted to Morrell, McManus, and King, they were in that respect fellow servants with the plaintiff ; and that if they were, or either of them was, negligent in conducting the progress of the work, and such negligence was the cause of plaintiff’s injury, it was the negligence of a fellow servant, for which the defendant, in the absence of personal participation, is. not liable. In such a case the superior rank of the fellow servant guilty of negligence makes no difference. These propositions are fully sustained by the following authorities, viz.: Murphy v. Bostun & A. Railroad Co., 88 N. Y. 146 ; Loughlin v. State, 105 N. Y. 159 ; 6 St. Rep. 826; Hussey v. Coger, 112 N. Y. 614; 21 St. Rep. 848; Filbert v. D. & H. Canal Co., 121 N. Y. 207; 30 St. Rep. 494; Cullen v. Norton, 126 N. Y. 1; 36 St. Rep. 359.

For the foregoing reasons, it was error to submit the case to the jury; and for such error the judgment and order should be reversed, and a new trial ordered, with costs to the appellant to abide the event.


text:
    Patrick J. McLarney, Resp’t, v. Long Island Railroad Company, App’lt.

      (New York Superior Court, General Term,

      Filed January 7, 1895.)

    Negligence—Contributory—Question of fact.
    The question of plaintiff's contributory negligence was held, under all the circumstances of the case, to be one of fact for the jury.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.
    v W. C. Beecher, for app’lt; Charles StecMer {Alfred Sleekier, of counsel), for resp’t.
   Freedman, J.

This action was brought to recover damages for personal injuries sustained by plaintiff through the alleged negligence of the defendant. The plaintiff was a brabeman in defendant’s employ. He was injured at about 8 o’clock in the evening of July 29, 1892, while in the act of coupling a train of cars to the engine, as he had been .directed to do by the acting superintendent of the road. The engine should have had attached to it a so-called “bustle,”' which is a large piece of metal to be inserted between the locomotive and the head car, to keep the car and engine steady and prevent vibration. It is of sufficient size to protect a brakeman in the act of coupling the cars to the engine. The engine in question had no such bustle attached, and, as a result, plaintiff’s body got caught between the car and the engine, and he was severely injured. It was undoubtedly part of plaintiff’s duty at the time to see that everything was in its place and in order, and, if not, report to the engineer; but, unfortunately for the plaintiff, his lantern had gone out a few minutes before, and he had not had time to relight it. He was not aware of the fact that the engine did not have the customary bustle attached to it, and he first noticed its absence when the engine was almost on top of him, and when it was too late for him to escape. Under all the circumstances, the question of plaintiff’s contributory negligence was a question of fact for the jury, and’, as such, it was properly submitted.

The question relating to defendant’s negligence arising from the absence of the bustle was, upon all the facts disclosed by the whole case, also a question of fact for the jury, and, as such, it was submitted in every aspect that could be taken. The jury were specifically instructed that, if the absence of the bustle was due to any act or omission of any fellow servant of the plaintiff, the defendant was not liable; and, furthermore, that the plaintiff had no cause of action if, under all the circumstances, the absence of the bustle constituted a risk incidental to his employment which he had assumed. Taken together, the charge of the learned trial judge carefully guarded every right which the defendant had. Upon the whole case, no reason appears which would warrant the disturbance of the verdict. The judgment and order should be affirmed, with costs.


author: Per Curiam.

text:
    Barbara Sebald, Resp’t, v. James Mulholland, App’lt.

      (New York Superior Court, General Term,

      Filed January 7, 1895.)

    Party-wall—Agreement.
    The question whether an agreement for the erection and use of a party-wall is to be construed as a covenant running with the land so as to be enforceable between successors in title, is to be determined upon all the circumstances attending and surrounding the execution and delivery of the agreement in connection with its language.
    Appeal for a judgment, dismissing the complaint on the-merits.

      Kurzman & Frankenheimer (John Frankenheimer, of counsel), for pl’ff; Edward W. Sheldon (Samuel E. Benton, of counsel), for def’t.
   Per Curiam.

The questions presented by the cross appeals in this case are important, and have received the most thorough examination, but upon a consideration of all the circumstances we have concluded to content ourselves with the following brief statement, viz.,: The learned judge who tried this cause has filed a very learned and exhaustive opinion. The reasons assigned by him for disallowing plaintiff’s second cause of action meet with our most cordial approval The counterclaim interposed by the defendant was also correctly disposed of. As to plaintiff’s first cause of action, it is not absolutely certain whether the correct rule was adopted. The question presented by this branch of the case is whether a certain agreement between predecessors in title for the erection and use of a party wall is to be construed as a covenant running with the land so as to be enforceable between the parties to this action. This is to be determined upon all the circumstances attending and surrounding the execution and delivery of the agreement in connection with the language of the agreement. Upon these matters the plaintiff invokes the-rule laid, down in Mott v. Oppenheimer, 135 N. Y. 312; 48 St. Rep. 75, while the defendant claims that the case at bar is to be distinguished, and is to be controlled by the rule laid down in Cole v. Hughes, 54 N. Y. 444, and reaffirmed in Hart v. Lyon, 90 N. Y. 663. The trial judge, upon a review of the authorities, and after giving his reasons at length, which, although somewhat artificial, seem to be supported bv the weight of authority, sustained defendant’s contention. The question is a very close one, and one which can only be set at rest by the court of appeals. The case, as it stands, is in the best possible shape to be taken to that court at once. For the reasons stated, we deem it best,to approve also the disposition which was made of the first cause of action. Upon both appeals the judgment should be affirmed upon the opinion of the learned court below, but without costs to either party upon the appeal.


text:
    Theodore L. Hermann, Resp’t, v. Thomas B. Van Buren, App’lt.

      (New York, Common Pleas, General Term,

      Filed January 7, 1895.)

    Appeal—Record.
    A ruling admitting in evidence a paper, not included in the justice’s return, will not he reviewed.
    Appeal from a judgment in favor of plaintiff.

      Albert Day, for app’lt; Cuggenheimer, Untermyer & Marshall, for resp’t.
   Per Curiam.

A certain paper was admitted in evidence .against the objection and exception of the defendant (appellant), but is not included in the justice’s return. A motion by the appellant for leave to amend the return by supplying this paper has been denied because not made until after this court had intimated, upon the argument, its decision upon the questions presented by the return as filed. Warren v. Campbell, 37 St. Rep. 762 ; 14 N. Y. Supp. 165. The exception is therefore ineffectual, as, in the absence of the paper, it cannot be determined that it was improperly admitted. The appellant has consequently failed to show error of law, and only a question of fact remains to be passed upon; and, after a review of the evidence, we are confirmed in our opinion, formed and intimated upon the argument, that the facts would not warrant a reversal of the justice’s decision.

Judgment affirmed, with costs.


author: Bookstaver, J.

text:
    James Burke et al., App’lts, v. John Slattery, Resp’t.

      (New York Common Pleas, General Term,

      Filed January 7, 1895.)

    Savings bank—Ownership.
    Where a deposit is made iu the name of a person or his wife, the transaction, in the absence of other evidence, simply evidences a purpose of the depositor that the moneys should be drawn out by either of the persons named, and does not prove ownership.
    Appeal from a judgment, dismissing the complaint.

      Michael Fennelly, for app’lts ; James P. Campbell, for resp’t.
   Bookstaver, J.

This is an action for the conversion of a savings bank book. The book stood in the name of ‘‘ James Burke or wife, Bridget.” The original deposit was $3,000, which sum James Burke claimed had been given to him by one James Slattery on the evening of his marriage. James Slattery and the defendant are brothers, and the plaintiff Bridget Burke is their sister. She was insane at the time of the trial, and did not appear to give testimony. James Slattery flatly contradicted James Burke, testifying that he gave the $3,000 to his sister, and not to her husband. It appears that the defendant had for some eight years been paying out money for Bridget Burke for taxes, and since she has been insane, for her support.and care, and that he is now supporting her in an asylum. He testified that she pledged the bankbook with him as security for these payments, which already amount to a larger sum than remains in the bank. The court of appeals has held in Re Bolin, 136 N. Y. 177,179 ; 49 St. Rep. 59, where the deposit had been made in a form similar to the above, that, “in the absence of other evidence, the transaction simply evidenced a purpose of the depositor of the moneys that, they should be drawn out by either of the persons named. The only presumption would be that the depositor so arranged for the. purpose of convenience.” The weight of the evidence is with defendant’s contention that the book had been given to Bridget Burke, and the deposit in the name of her husband or herself was for convenience, and did not create any ownership in him. She therefore had a right to do with it as she pleased, and so could give it to the defendant or pledge it with him. The complaint, was properly dismissed, and the judgment should be affirmed with costs.


text:
    Eugenie Ruffin, App’lt, v. Salvatore Ruggiero, Resp’t.

      (New York Superior Court, General Term,

      Filed January 7, 1895.)

    Carrier—Failure to deliver goods.
    The carrier was held, under the evidence, to have delivered the machine in accordance with the directions given him.
    Appeal from a judgment in favor of defendant.

      Robert A. B. Dayton, for app’lt; Morris Putnam Stevens, for resp’t.
   Bookstaver, J.

This action is brought to recover damages from an' expressman for failure to deliver a sewing machine. Plaintiff sent the machine to one Balliard, who was to receive it as her agent at his office address, No. 1300 Broadway. Balliard gave the bill of lading to defendant’s driver. Defendant brought the machine to 1300 Broadway, carried it up to the door of Balliard’s. office, and found the door locked. On the door was a notice directing that articles for Balliard should be delivered to the janitress. -It appears that defendant went up to Balliard’s office, and then returned and carried the machine upstairs. On his way back with the machine he met the janitress, who asked, “ What have you got?” to which he answered, “A machine box for Mr. Balliard.” She then asked if that was all he had, and he replied “Yes,” and went away. The machine was subsequently stolen by parties unknown. We think the defendant delivered the machine in accordance with the directions given him, and his liability thereupon ceased. There was only a question of fact to be determined. The justice decided in favor of defendant, and we think the evidence fully sustains his finding. No error of law affecting the verdict was argued. The judgment is therefore affirmed, with costs.


text:
    Charles H. Reynolds, Resp’t, v. Alfred Van Beuren et al., App’lts.

      (New York Common Pleas, General Term,

      Filed January 7, 1895.)

    1. Negligence—Proof.
    The mere falling of a signboard from a building into the street is prima, facie evidence of negligence, though the wind was then high, but not unusually high for that vicinity.
    2. Evidence—Opinion.
    The question as to whether wood was, or was not, rotten, is not a subject-matter of expert testimony.
    3. Appeal—Motion to strike out.
    Refusal to strike out evidence is a matter within the discretion of the trial court.

      Leroy B. Crane, for app’lts; Hyland & Zabriskie, for resp’t.
   Bookstaver, J.

This action was originally brought against, the defendants, as lessees of the roof privileges and sign on the-premises No. 1277 Broadway, and also against the owners of the building. At the close of plaintiff’s case the action was dismissed as to the owners of the fee, and the appellants contend that it should also have been dismissed as to them, on the grounds: (1) That the plaintiff had failed to prove that the appellants were lessees and in possession of the roof of the premises 1277 Broadway, or that they had erected or caused to be erected thereon the-signboard in question for advertising purposes. (2) That the plaintiff had failed to prove that the signboard was negligently constructed, maintained, or used by appellants, or that the same-was negligently or improperly fastened to the roof of the building, or had been permitted by the appellants to be or become out of repair, rotten, dilapidated, or unsafe. . (3) That the plaintiff had failed to show that the sign was dangerous to human life and limb, or that the use thereof by the appellants constituted a nuisance. (4) Because it appeared from the evidence that the appellants had not erected or caused the sign to be erected, and that their connection therewith was simply as- lessee of the privilege to advertise thereon at a stipulated rental, and that, consequently, the appellants were under no legal obligation to keep the signboard in repair. (5) That plaintiff had failed to show that the appellants had any knowledge of the defective condition of the sign at the time of the accident, or that they ought to have known it was in a bad, dangerous, improper, and. insecure condition. (6) On the ground that the injury sustained by the plaintiff was the result of unavoidable accident; and (7) that the plaintiff had failed to show that he used such efforts as a reasonable man, under like circumstances, would or could have done to avoid the injury, and that, he contributed to the injury by his own negligence, in the want, of due care, or bad judgment, in not avoiding or running away from threatened danger. The lease of the roof privileges to the appellants, made by the lessee of the entire premises, was put in and from it it that such roof were to be, used for advertising purposes. It also appeared from the evidence that the appellants maintained thereon a sign 9 feet 6 inches high and 23 feet long, consisting of a wooden frame covered with galvanized iron, on which were pasted -advertising bills, and which was without holes to permit the wind to pass through. This structure was fastened to the roof with four wooden braces,—one at -each end, and two at the center,—which came down from the top, and were bolted into the joists of the roof; but it was not in any way fastened to the adjoining building, or stayed by any other arrangement than that before mentioned. On the 26th September, 1892, the plaintiff, while walking along the westerly side of Broadway, in front of these premises, was hit by this sign falling, .and thereby received injuries on his side, and the large toe of the left foot was badly hurt,—so much so that it became necessary to amputate it. From the evidence, it appears,, that the wind had been blowing that day at the rate of 33 miles an hour between 1 and 1 o’clock p.m., but had moderated to about 23 or 24 miles an hour between 2 and 3 o’clock of the same afternoon, at which time the accident happened.

The mere falling of a sign into the public street is prima facie evidence of negligence. Thus, it is said in Volkmar v. Man. Railway Co., 134 N. Y. 420; 47 St. Rep. 631: “It has been held that where a building adjoining a street falls into the street, in the absence of explanatory circumstances, negligence will be presumed, and the burden is placed upon the owner of showing the use of -ordinary care; that where a plaintiff was passing oh a highway under a railroad bridge, when a brick fell from one of the pilasters -upon which an iron girder of the bridge rested, striking him upon the shoulder, causing injury, negligence would be presumed; that where a barrel rolled out of the window of a warehouse onto a .street, injuring a person’ passing, negligence would be presumed; that where a person, while walking along the street'in front of a building, was struck by a falling chisel, the presumption of negligence is sufficient- to call for an explanation; that where plaintiff was injured while walking on the sidewalk of a street, immediately under the defendant’s railroad, by being struck with a heavy piece of metal, which fell from one of the defend.ant’s cars passing above, that, from the nature of the accident, negligence might be inferred;” citing Mullen v. St. John, 57 N. Y. 567; Kearney v. Railroad Co., L. R. 5 Q. B. 411; L. R. 6 Q. B. 759 Byrne v. Boadle, 2 Hurl. & C. 722; Cahalin v. Cochran, 1 St. Rep. 583; Goll v. Man. Railroad Co., 24 St. Rep. 24; 5 N. Y. Supp. 185 ; Id., 125 N. Y. 714; Payne v. Troy & B. Railroad Co., 83 N. Y. 572.

And in the same case the court, at page 422, says: “But even if this evidence was sufficient to remove the presumption, as held by the general term, the credibility of the witness would still be involved, and be a question for'the jury;” citing Dean v. Van Nostrand, (N. Y. App.) 4 N. E. 134; Elwood v. W. U. Telegraph (Co., 45 N. Y. 549, 554.

Where an accident is one which would not ordinarily have hap-’ pened, if due care and caution had been used, the presumption of negligence is sufficient to call for explanation, and if this is not offered the jury may find negligence. Cahalin v. Cochran, 1 St. Rep. 583. While, as a general proposition, it is true that the burden of showing negligence on the part of the defendant causing an injury rests in the first instance upon the plaintiff, yet in an action of this character, when he has shown a situation which could not have been produced, except by the operation of abnormal causes, the onus rests on the defendant to prove that the injury was caused without his fault. Caldwell v. N. J. Steamboat Co., 47 N. Y. 291; Edgerton v. N. Y. & H. Railroad Co., 39 N. Y. 227; Curtis v. Rochester & S. Railroad Co., 18 N. Y. 534 ; Ginna v. Second A. Railroad Co., 67 N. Y. 597. When the motion for a dismissal was made, therefore, the evidence had clearly raised a presumption of negligence against the defendant; and the only question relating thereto was whether this presumption had been sufficiently negatived by the evidence introduced by the appellants which was a question for the jury. This court has held, in Millie v.Railway Co., 5 Misc. Rep. 304; that where a person passing along public streets sustained injury by being struck with a substance thrown or falling into the highway, or by the tumbling down of a ruinous building, the maxim “res ipso loquitur" applies; citing some of the cases before mentioned, and Mullen v. St. John, 57 N. Y. 567; Woodman v. Railroad Co., 149 Mass. 335; Railroad Co. v. Locke, 112 Ind. 404. See, also, Anderson v. Railroad Co., 21 N. Y. Supp. 1. We thing that, when the motion was made to dismiss the complaint by the appellants, they had not only not rebutted the presumption of negligence thus created, but that the plaintiff had affirmatively shown actual negligence on the part of the appellants, for from such evidence the jury could draw the conclusion, if they believed the witnesses for the plaintiff, that the sign was old and rotten ; that the nails had been drawn through the wood; that no repairs had been done on it since December, 1891,—and there was no evidence offered by the appellants tending to show that any examination of the sign had been made by them, their agents, servants, or employees, after that time, although they daily used it; and it was their duty to exercise at least ordinary care and prudence to discover whether or not it was in any way defective. The carpenter whose business it was to look after the signs was not produced by the appellants, ór sworn.

Whether or not the injury was caused by an inevitable accident, over which the appellants had no control, was, under the facts proven in this case, eminently a question for the jury to decide, and we think they decided properly. The wind had been blowing nearly one-third faster an hour before the accident than at the time of the accident. It is the duty of persons erecting and maintaining such appendages as this sign to secure the same so that it would not only be equal to the ordinary vicissitudes of the weather, but would be able to withstand the force of gales which experience has shown to be liable to occur in this vicinity; and it is within the knowledge of every one that' a much higher rate of wind is frequently experienced than the highest rate at which the wind was blowing on that day. See Morris v. Strobel & Wilken Co., 81 Hun, 1; 62 St. Rep. 572.

Appellants contended upon the trial, although they did not urge it on the argument oE the appeal, that the plaintiff in some way contributed to the injury, by his own negligence in running-into danger, instead of out of it, at the time the sign fell. But, frbm the relative situation of the sign and of the plaintiff at the time that it gave way, he could net see the sign. He simply heard a crash, as of something giving way. This naturally disturbed his. mental equilibrium; and if, under the impulse of sudden terror;, produced by the imminency of danger, the plaintiff instinctively attempted to escape, the law does not require of him the same-prudence it does of one not in danger, and absolves such a person from the imputation of negligence, even if he does not take the best means of avoiding it. Under the circumstances, he is not accountable for the direction in which he ran.

A witness for the plaintiff has testified as follows : “I came back from the station house to this building, and I said, ‘I guess I will look at this sign;’ and it looked to be all broke,—lots of old broken boards and stuff there.”

He was then asked in what condition was the wood. This was objected to by appellants’ counsel, but the objection was overruled, and the witness was allowed to answer the question. But. from the record, as it appears before us, the witness did not answer the question thus put. He did, however, immediately after-wards, in response to questions put by- appellants’ counsel, say of the sign: “It was old, rotten wood. It seemed as though all the nails were drawn out. The nails were not broken. I went up and examined it myself, and the nails were not broken, but old, rotten wood; just the thing to draw it out, and all old, rotten wood.”

The testimony objected to, therefore, appears to have been drawn out by appellants' counsel himself. But, even if this testimony had not been given in answer to the appellants’ counsel, it would not have been error to admit it. It was not a question of expert evidence, but, if it were, every one at all conversant with wood is a sufficient expert to know whether wood is rotten or not, when he sees it. Besides, he does more than merely say it was-rotten. He goes on to show the facts as to the rottenness. A witness for the plaintiff was examined as to the manner in which the sign was fastened on the roof, and on cross-examination it appeared that he had been on the roof but once and that nearly two-years before the accident, whereupon appellants’ counsel moved to strike out the evidence, which was denied. Such a motion is in the discretion of the court, and not reviewable on appeal; Hutton v. Murphy, 9 Misc. Rep. 151; 59 St. Rep. 662. But, even if this were not so, there was no testimony to show that any change had been made in the way in which the sign was fastened after the witness had seen it. The presumption, therefore, would be that it continued as it then was.

Appellants contend that the court, in delivering the charge to the jury, improperly reflected upon the credibility of one of their witnesses, and argue that it had no right to seek to discredit the witness, but that it was the province of the jury to determine the credibility. As we read the charge, this is precisely what the learned judge did, for he said, “This question of the credibility of the witness is exclusively for you.” Besides, he did not seek to discredit the witness’ testimony. He simply pointed out what was the fact,—that the witness was the lessee of the building on which the sign was, which he had let to'the appellants, and that, under certain circumstances, he would be as responsible to the plaintiff as the appellants themselves, and charged them that they were to consider that fact in determining his credibility. • He nowhere indicated that he did not, or the jury should not, believe his testimony.

The court charged: “(4) If, notwithstanding the wind, the sign would not have fallen, had it been secure, the defendants are liable. If the sign had fallen anyhow, under the pressure of the wind, though secure, then, of course, the defendants are not liable. Then it was an inevitable accident.”

To the first sentence of this portion of the charge, appellants counsel excepted. But this was no more than pointing out the difference between the security and the insecurity of the sign, and was equivalent to saying that, if the sign fell by reason of its insecurity, then the appellants were liable, but that if properly secured, and caused to fall by the pressure of the wind, without referring to any degree of rapidity, then it would be the result of inevitable accident, and the appellants would not be liable. This was clearly as favorable to the appellants as they had any right to ask.

Appellants’ counsel contends that the verdict was against the weight of evidence. We have carefully read over all the testimony in the case, and are of the opinion that the verdict was fully sustained by the evidence, but do not think it necessary to discuss that question further than has been done in considering the motion for the dismissal of the complaint.

As to the contention that the damages are excessive, the court expressly charged : “It is for you, upon the evidence, to say what you think will be a fair, just and reasonable compensation for the injuries sustained. I lay the emphasis on the word ‘compensation,’ in this case, because, I charge you, you would not be authorized to give what the law calls ‘punitive’ or ‘vindictive’ damages,”—thus clearly calling the attention of the jury to the fact that they were not to award punitive damages; and we cannot say that a verdict of $2,000 for the injury to plaintiff’s side and leg, and the loss of a great toe, was excessive, although he was disabled by reason thereof for a period of only two months and a half, especially in view of the fact that he testified he .still suffered occasionally from the injuries received, and was at times disabled by reason thereof. The law recognizes no distinction between white and colored suitors, and in the absence of any evidence of passion, prejudice, or bias, we must conclude that the jury fairly awarded compensation merely on the facts established by the evidence.

Our attention has not been called to any other alleged errors, either on the argument of the appeal, or in appellants’ brief. The judgment must therefore be affirmed, with costs. All concur.


author: Daly, C. J.

text:
    Hyman Israel, App’lt, v. Metropolitan Elevated Railroad Company et al., Resp’ts.

      (New York Commons Pleas, General Term,

      Filed January 7, 1895.)

    1. Damages—Elevated railroads.
    Where, in an action to enjoin the operation of an elevated railroad and for damages, the evidence established that the value of the premises had not been, in the slightest degree, affected by any of the inconveniences caused by the road, the complaint is properly dismissed.
    2. Costs—Extra allowance.
    Where, in such action, it appears that the property was worth, and the plaintiff claimed that the damage amounted to $125,000, it furnishes a sufficient basis for awarding an extra allowance to defendant, upon the rendition of judgment in his favor.
    Appeal from a judgment, dismissing the complaint on the merits.

      Kurzman & Frankenheimer (John Frankenheimer, of counsel), for app’lt; Davies & Rapallo (Edward C. James, Julien T. Davies, and Arthur O. Townsend, of counsel), for resp’ts.
   Daly, C. J.

The plaintiff sought to rejoin the operation of the elevated railroad on Sixth avenue in front of his premises, which were situated on the southeast corner of that avenue and Fortieth street, in this city, until the defendants should make proper and adequate compensation for the easements appurtenant to the said premises which they had taken and. appropriated by the erection of their elevated structure and the operation of their trains; and also sought to recover for loss of rents and rental value of the premises. To maintain this action it was incumbent upon the plaintiff to prove a diminution of the value of his property caused by the defendants’ acts; but, so far from that fact being established, the evidence tended to prove the contrary. It appeared that the premises had been let for many years as an hotel until destroyed by fire in 1892. They were let in 1874,' four years before the railroad was operated, and three years before the railroad structure was built, at $18,000 per annum for ten years; but it was apparent that this was a very high rental, for it was reduced. in 1876 to $15,000, and was paid at that rate up to March, 1878, when it was again reduced to $12,000, and in May, 1878, further reduced to $10,000,—all before the operation of the railroad. In September, 1879, the premises were let for four years, at $10,000 for the first year, and $11,000 for the balance of the term; and in 1883 they were let for five years, at $11,300 per annum, which, was increased in 1887 to $14,000 per annum, at which rate a lease was made for five years, and at which rate rent was paid until the destruction of the premises in 1892. It thus appeared from the evidence that the rents of the premises steadily decreased down to the time of the operation of the elevated railroad, and increased. steadily afterwards, so that in the end the premises brought more than they did immediately before the railroad was operated ; and this, notwithstanding that evidence was given of the invasion of the premises by cinders, smoke, steam, and odors emitted by the engines of the elevated railroad, the interference with light by the passing trains, drippings from the railroad structure, etc. The evidence when the plaintiff rested his case tended, therefore, to establish that the value of the premises had not been in the slightest degree affected by any of the inconveniences caused by the defendants’ railroad. Sillcocks v. Man. Railway Co., 10 Misc. Rep. 260; 64 St. Rep. 112, and cases cited. The fact that the values of property in neighboring streets had increased very much more than values on Sixth avenue, in the neighborhood of the plaintiff’s premises, did not establish that the plaintiff’s premises would have yeilded a greater rental than that actually received had the railroad never been constructed or operated. Brush v. Man. Railway Co., 44 St. Rep. 111 ; 17 N. Y. Supp. 540. It is urged, however, that, notwithstanding the failure of the plaintiff to make out a case, a dismissal of the complaint upon the merits was improper ; that the dismissal was actually a non-suit, the court having, in effect, decided that there was no evidence adduced on plaintiff’s behalf which would justify a judgment. Scofield v. Hernandez, 47 N. Y. 313; Place v. Hayward, 117 N. Y. 492; 27 St. Rep. 710; Forbes v. Chichester, 125 N. Y. 769 ; 36 St. Rep. 248; Cowen v, Paddock, 137 N. Y. 188; 50 St. Rep. 386; Terry v. Horne, 59 Hun, 492; 37 St. Rep. 58. But the referee at the close of the plaintiff’s case had before him evidence sufficient to justify a judgment for the defendants upon the merits. The plaintiff had' not only failed to show damage to the fee. and rental value of his premises, but his evidence warranted a finding that there was no injury caused by defendants’ acts. The referee by his findings clearly shows that the complaint was not dismissed for failure of proof or insufficiency of evidence. He found that the existence and operation of the elevated railroad in Sixth avenue, with its stations, rendered the plaintiff’s premises more accessible than they otherwise would be; that the value of plaintiff’s property has been largely increased since the defendants’ railway was built and put in operation ; that his premises would not be worth as much as they now are if the railroad and stations were removed, or had not been built; and that no decrease of the fee or rental value of the plaintiff’s premises has taken place in consequence of the construction, maintenance, and operation of defendants’ elevated railway. These findings of fact require judgment upon the merits in favor of the defendants.

The granting of an extra allowance of $1,000 was not unwarranted. The plaintiff claimed in his complaint damage to the amount of $250,000. Though this formed no basis for an extra allowance, as it was denied "by the answer (Hanover Fire Ins. Co. v. Germania Fire Ins. Co., 138 N. Y. 252; 52 St. Rep. 334), yet-upon the trial the value of the plaintiff’s property was shown to be at least $125,000, and it was manifested that his claim was that the value of the premises had been affected to very nearly that amount; because he claimed that the fee value of land in the neighboring street had increased 100 per cent, since 1878, while there had been no substantial increase in the value of property on Sixth avenue in the neighborhood of plaintiff’s premises, and he gave evidence showing that the present value of the premises was not over $100,000. There was a sufficient basis, therefor, for the awarding of an extra allowance, and the amount was not excessive. The judgment should be affirmed, with costs.

All concur.


text:
    Abram P. Kerley, Resp’t, v. Oscar Mayer, App’lt.

      (New York Common Pleas, General Term,

      Filed January 7, 1895.)

    1. Lease—Unlawful purpose.
    A lease of premises to be used only as a strictly first-class liquor saloon, is not a letting for an unlawful purpose merely because a license had not been obtained, in the absence of anything in the lease or in the evidence to show that the business was to be carried on without a license.
    2. Same—Restriction.
    . Such provision does not restrict the use to saloon business, but merely the character of that business.
    IS. Same—Release of tenant.
    The provision of § 43, chap. 401 of 1893, passed after the execution of a lease for saloon purposes of premises within its description, but before the commencement of the term, does not release the tenant.
    Appeal from a judgment in favor of plaintiff.

      Einstein & Townsend (B. F. Einstein, of counsel), for app’lt; Havens & Beebe, for resp’t.
   Daly, C. J.

One of the objections to the enforcement of the lease under which the rent is claimed, and which is dated April 26, 1892, is that the attorneys and agents of the lessor, Messrs. Havens & Beebe, who assumed to execute the lease on his behalf, were not lawfully authorized thereunto by writing. 2 Rev. St. p. 135. The only written authority produced on the trial was a power of attorney which, it was conceded, was not received from the plaintiff by his agents until several months after they had signed the lease, although it bore date June, 1889 ; but they testified that long prior to the execution of a lease they had written authority under seal to make it, although after search for such paper it could not be found, and they were allowed to give secondary evidence of its contents, which appeared to be similar to those of the written power which was produced. Both of them testified on this point, and they were not contradicted. It is argued, however,' by appellant that the identity of contents and date between the lost paper and the writing produced on the trial shows that there was but one instrument, and that it was the one produced ; and,-the evidence being that it was in possession of the principal at the time of the execution of the lease by Havens & Beebe, the inference was that it had been revoked. The evidence does not establish that the lost paper (or papers, for the testimony showed that there were two different powers of attorney originally executed) was identical with the writing produced, but, rather, that the latter was a later instrument, antedated to agree in time with the original power. The point which appellant urged most strongly on the trial was that the plaintiff, having offered the writing as an authority for the execution of the lease, could not recede from that position and offer proof of any previously executed paper; but that contention was. manifestly untenable. As the testimony of Messrs. Havens & Beebe, concerning the earlier authorization to make the lease, was uncontradicted, the court was justified in charging the jury that the uncontradicted evidence was that they had authority, and the appellant’s exception to that instruction was not well taken. He now insists that the question of the credibility of those witnesses should have been submitted.to the jury, but he did not ask it at the trial. The request which he did make, that the jury be charged, “ if they find that Havens & Beebe did not have written authority to sign the lease in question at the time of the execution of the lease, the finding must be.for the defendant,” did not present the question of veracity. The principal objection made by defendant to the enforcement of the lease arises upon the clause that the premises were let “ to be used and occupied only as a strictly first-class liqour saloon.” It is claimed that, as there was no license then existing for such business on the demised premises, it was a letting for an unlawful purpose. But nothing appears in the lease or in the evidence to show that it was intended that a liquor business should be carried on there without a license. On the contrary, •evidence of the previous negotiations showed that the procurement of a license was contemplated. The tenant was to carry on the business, and was the party to procure the license, which he could not do until he had a lease. The execution of a lease might therefore properly precede the granting or even the application for a license. After the execution of the lease, and before the commencement of the term, to wit, on April 30, 1892, an act of the legislature went into effect which provided that “no person or persons who shall not have been licensed prior to the passage of this act shall hereafter be licensed to sell strong or spirituous liquors, wine, ale or beer in any building not used for hotel purposes and for which a license does not exist at the time of the passage of this act which will be on the same street or avenue and within 200 feet of a building occupied exclusively as a church or schoolhouse.” Laws 1892, c. 401, § 43. The premises in question were •so situated, and were not licensed at the time of the passage of the act, nor used for hotel purposes, and the tenant had not been licensed prior to the enactment of the law; and it appeared that his application for a license for the demised premises was refused by the board of excise. Upon this state of facts it is contended by appellant that the lessee, being deprived of the beneficial use and enjoyment of the premises under the terms of the lease between the execution of the lease and the commencement of the term, is thereby released from the payment of rent, and that the case is governed the which released the lessee where the deraised premises were destroyed by fire before the commencement of the term. The lessee was not deprived of the beneficial use of the premises by the failure to procure ’a license to carry on a liquor saloon. They might be used for any lawful purpose. He contended on the trial that the lease was conditioned upon his obtaining a license. Evidence was taken on that point, and thequestion submitted to the jury, with a result adverse to his contention. It was assumed by the court—most favorably to him upon thé submission of such a question to the jury—that he was restricted by the lease to the saloon business. I do not regard the clause in question. The restriction is manifestly upon the class of liquor saloon,—that it should be only first-class. ” It could not have been the intention of the parties, in view of the contingencies affecting the procurement of a license,—-which rests in the .discretion of public, officers, and, above all, was subject to legislative control,—that the lessee might have to pay $2,000 per annum for five years for premises which were to remain idle unless he could open a saloon there. The lease itself indicates the contrary., for it provides in another clause against the use of the premises for a “ disreputable or extra hazardous ” purpose of business; and we find that the lessor, by his agents, expressly waived any such restriction early in the term, for their letter of July 1st, two months after it was to commence, required the lessee to “ pay the rent of the premises, and proceed to occupy the same in some manner, within the next week,” under penalty of the lessor’s re-entering and reletting. It is only when the lessee is deprived without his fault of the use of the premises for any purpose that rent ceases; and if the lessee were deprived in this instance it was his own fault, for he should have stipulated against the contingency of a refusal of a license. It further appears that the lessee took possession of the premises, being an undertenant; that about a year after the term commenced a license was issued to the latter under an amendment of the statute' (Laws 1893, c. 480, § 11), and the saloon was opened, and the-rent thereafter accruing paid ; and the only question here is whether the lessee is liable for that which accrued while the license was withheld. For the reasons above given we think that he was. Judgment should be affirmed, with costs. All concur.


text:
    Joseph J. Kittel, Resp’t, v. Henry Stueve, App’lt.

      (New York Common Pleas, General Term,

      Filed January 7, 1895.)

    1. Statue of frauds—Memorandum.
    A note or memorandum, if signed by the vendor alone at any time after the sale, satisfies the statute.
    2. Same.
    A paper, which contains the names of the parties to the contract by sufficient identification, the subject-matter, the price and the terms of sale, possesses all the essentials of a valid note or memorandum.
    Appeal from a judgment in favor of plaintiff.

      Louis A. Wagner (Frederic W. Hinrichs, of counsel), for app’lt; Straley, Hasbrouck & Schloeder (John A. Straley, of counsel), for resp’t.
   Daly, C. J.

The defendant objects that the sale of the lots to him at auction was void, because there was no contract, note, or memorandum in writing subscribed by the vendor or his authorized agent. 2 Rev. St. p, 135, § 8. Immediately after the auction sale, the defendant signed the following memorandum, which was attached to the printed terms of sale:

“ Memorandum of Sale.
“I, Henry Stueve, have this 25th day of June, 1892, purchased the premises, lots No. 20, 21, 24, 25, 27, 28, 29, 30, 31, 34, 36, 37, 38, 39, 40, 41, 42, 43, 44, and 45, described in the annexed map of sale, for the sum of fourteen . thousand eight hundred and seventy-five years, and hereby promise and agree to comply with the terms and conditions of the sale of said premises, as above mentioned and set forth.
“ Dated at Mount Vernon, June 25th, 1892.
“ Henry Stueve, Purchaser.”

The memorandum so signed by the purchaser was left by him with the attorneys of the vendor, and was subsequently, at a later date, subscribed by them, on behalf of their principal, by his authority. This was a sufficient memorandum of the contract to satisfy the statute. The paper being entitled “ Memorandum of Sale,” and subscribed, “ Joseph J. Kittel, Owner, per Straley, Hasbrouck & Schloeder, Attorneys,” and containing the name of the purchaser, the price at which he bought the lots, and a sufficient identification of them by map numbers, together with a reference to the terms and conditions of the sale in a paper to which the memorandum was attached, it contained all the essentials of a valid note or memorandum, viz., the parties to the contract, by sufficient identification, the subject matter, the price, and the terms of sale. 8 Am. & Eng. Enc. Law, 724, 726. The writing was not itself the contract of the parties, because that was effected by the sale at auction. It was merely the note or memorandum of the contract on the part of the vendor required by the statute. It was not material that the owner did not subscribe at the time of the sale, and it was not material that the purchaser should subscribe at all in order to effect a sale. The note or memorandum, if signed by the vendor alone, at any time after the sale, satisfies the statute. 3 Pars. Cont. 8, note, and cases; Mott v. Oppenheimer, 29 Abb. N. C. 228, note; Sievewright v. Archibald, 17 Q. B. 107 ; 79 E. C. L. 102, 114; Webster v. Zielly, 52 Barb. 482; 8 Am. & Eng. Enc. Law, 715 ; Earle v. Campbell, 14 How. Pr. 330.

In this case the memorandum in question was signed by the purchaser at the time of the sale, and it is claimed that it was insufficient as a written contract, for want of the name of the vendor, and that the subsequent addition of his name, with the description “owner,” not.only did not make it a good contract, but actually destroyed it, as the contract of the vendee, by the material addition or alteration so made. As originally executed by the purchaser, it was insufficient, because it did not contain the name of the vendor. Calkins v. Falk, 1 Abb. Dec. 291; Mentz v. Newwitter, 122 N. Y. 491; 34 St. Rep. 207; Marston v. French, 43 St. Rep. 538; 17 M. Y. Supp. 509. And it is quite certain that, if his written contract were necessary, it could not be made valid by the subsequent addition of the name of the vendor, either in the body of the instrument, or in the subscription by the latter, except with the purchaser’s consent. But the statute does not require that the ■contract should be in writing, and subscribed by the vendee, and the defects in the instrument, as originally signed by him, are therefore immaterial. The paper became of no effect whatever until the vendor subscribed it, and it then became his note or memorandum of the contract, and, as such, satisfied the statute.

The contention of the defendant that the terms of sale are inconsistent, and impossible of execution, is without merit. The terms of sale prescribed for the payment of 10 per cent, of the purchase money to the auctioneer, 10 per cent, at ihe time of delivery of the deed, and the balance, 80 per cent., to be secured by a bond and mortgage, payable as follows : 10 percent, in-30 days, 10 per cent, in 60 days, Í0 per cent in'90 days, and the remaining “sixty per cent." in three years. As the balance was but 50 per cent., it is claimed that the terms are impossible of performance ; but, as there was manifestly only a clerical error in writing “sixty per cent.” instead of “fifty per cent.,” it might be disregarded, unless the purchaser claimed the benefit of a larger sum remaining on bond and mortgage, in which case the court might have so ordered, he being entitled to any benefit he chose to claim from the ambiguity of the conditions of sale. He expressed no preference, however, in this case, and cannot complain of the judgment awarded, which gives him the utmost allowance he could ask for. The judgment should be affirmed, with costs.

All concur.


author: Bischoff, J.

text:
    Edward Hensey, Resp’t, v. Dulany Howland, App’lt.

      (New York Common Pleas, General Term,

      Filed January 7, 1895.)

    1. Conversión—Master and servant.
    A servant is not liable for a conversion of chattels, of which he has the custody at the hands of his employer and which he refuses to ^surrender at the demand of another, though he may have reason to believe that the latter has good title to them.
    2. Same—Possession.
    The failure of a person, who has not the possession, to return chattels upon demand cannot form the basis of an action against him for conversion.
    Appeal from a judgment in favor of plaintiff rendered by the justice without a jury.

      John Townshend, for app’lt; William John Wurburton, for resp't.
   Bischoff, J.

This is an action for the conversion of certain printing forms. The chattels in suit had been placed by plaintiff’s vendor in the possession of the New York Herald, under a contract for certain printing work, in performance of which the use of such forms was required ; the contract being made through the defendant, the superintendent of the New York Herald. Prior to the sale of the chattels to the plaintiff, a demand for their return was made of the defendant by the plaintiff’s attorney, then acting on behalf of the vendor ; and in reply a letter was received by him, bearing as heading "The Herald,” and subscribed, “James Gordon Bennett. Dulany Howland, Superintendent,”—which was to the effect that a deposit would be required as a condition to the return of the goods. Recovery below was resisted by the defendant upon the ground that he was but an employee of Bennett, the proprietor of the Herald, and that he had not the possession of the chattels, and it is upon such ground that the appeal is rested.

It is true that a wrongdoer may not plead agency for another in extenuation of his wrongdoing; yet, on the other hand, a servant is not to be made liable as for a conversion of chattels of which he has the custody at the hands of his employer, and which he refuses to surrender at the demand of a stranger, and this, also, even where he may have reason to believe the stranger to have good title to the chattels. Goodwin v. Wertheimer, 99 N. Y. 153; Mount v. Derich, 5, Hill, 456. There appears to be no conflict as to the essential facts of the case, and it was shown that the plaintiff’s vendor, in making his contract for the printing work, understood that the New York Herald was to assume the performance. His contract was “with the Herald, through Mr. Howland;” he knew that the defendant was “superintendent of the Herald f lie ordered the chattels “to be delivered to the New York Herald and he “ employed the proprietor of the New York Herald to do this work.” Thus, in making the agreement in accordance with which the goods were delivered, the plaintiff’s vendor dealt knowingly with the defendant as an agent, and the goods were not then intrusted to the defendant’s personal custody, but to the New York Herald. Possession was not, therefore, in defendant when dominion over the goods was originally transferred from the plaintiff’s vendor to the Herald; and the evidence fails to show any change in this relation towards the same, either before or after their sale to the plaintiff. Hot having possession, his failure toreturn the chattels upon demand cannot form the basis of an action against him for their conversion. 26 Am. & Eng. Ene. Law, p. 729d, and cases cited. And, while he may have had some control over or access to the goods, this appears to have been but in his character as 'servant,—the identity of his employer being fully disclosed to the parties,—and he was thus under no duty to comply with the demand made. Upon the facts disclosed, the recovery below is not to be sustained; and the judgment is therefore reversed, and a new trial granted, with costs to abide the event

All concur.


author: Haight, J.

text:
    William G. Crisp, App’lt, v. Francis Rice, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed December 27, 1894.)

    1. Justice’s court—Adjournment.
    The power- of the justice to adjourn a case upon the application of the plaintiff, except in cases provided for in § 2944 of the Code, is restricted to the return of the summons or the joining of issue, unless a commission has been issued.

      2. Same—Objection—Waiter.
    An objection that the justice has no power to adjourn the cause on an adjourned day upon the motion of plaintiff, is not waived by an appearance on the adjourned day in order to file such objection in writing.
    Appeal from a judgment, reversing a judgment in favor of plaintiff rendered in justice’s court.

      Charles D. Newton, for app’lt; Strang & Doty, for resp’t.
   Haight, J.

It appears from the return of the justice that the summons was issued by him March 7th, returnable March 15th and that it was personally served. On the return day the parties appeared, and the plaintiff filed his complaint in writing. The defendant answered by denying each and every obligation of the complaint. The case was then adjourned until April 12th, and on that day the parties again appeared, and the defendant filed an amended answer in writing. The plaintiff then asked for an adjournment, for the reason that his counsel was unexpectly detained in Rochester, and had in his possession, a note which was material evidence in the case. The defendant objected to a fur-i ther adjournment. The court thereupon adjourned the case until April 13th, at 9 o’clock. On the latter day the following appears from the return:

“ Parties appeared and answered. Defendant offered the objections, in writing, his counsel made to the adjournment, and went away. The plaintiff then went on with his claim, after hearing which I rendered judgment for the plaintiff.”

The written objections filed by the defendant were to the effect that the court had no authority "to adjourn the case on the plaintiff’s motion, as the case had beén adjourned once before, and asked for a dismissal of the case.

There appears to be no question that the power of the justice to adjourn the case upon the application of the plaintiff, except in cases provided for in § 2944 of the Code, is restricted to the return of the summons or the joining of issue, unless a commission has been issued, in which case he is entitled to one or more adjournments of the trial as may be necessary to procure a commission to be executed and returned. Code Civ. Proc. §§ 2960, 2983; Redford v. Snow, 46 Hun, 370. It is claimed, however, that the defendant waived the question by appearing on the adjourned day. As we understand the return, the parties were present, and the case was called. It says “ they answered,” from which we conclude that the names of the parties were called by the justice, and each answered, “ present.” The return then states that the defendant offered the objections, in writing, his counsel made to the adjournment. It appears to us that this act tends to show that his appearance and answering to his name was for the purpose only of filing the objections to the jurisdiction of the justice, which his counsel had prepared, and that it was not his intention to appear generally in the action. It is not claimed that any step was taken in the trial by him before such paper was filed. We think, therefore, that it cannot be said that he waived the question as to the power of the justice to adjourn. In this cáse the plaintiff did not comply with, the provisions of § 2944 of the Code.

The judgment appealed from should be affirmed.

All concur.


text:
    Lotila Herrington, App’lt, v. Lake Shore and Michigan Southern Railway Company, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed December 27, 1894.)

    Master and servant—Fellow.
    A conductor and fireman on different trains of the same company are fellow servants.
    Motion for a new trial on exceptions, ordered to be heard at general term in the first instance.

      George M. Osgoodby, for pl’ff; James Fraser Gluck, for def’t.
   Haight, J.

This action was brought to recover damages for the alléged negligent killing of the plaintiff’s intestate. It appears that Wallace Herrington, the deceased, in his lifetime, was in the employ of the defendant as a fireman: that, on the occasion of the accident in question, he was acting as fireman on train No. 51, which was known as a “fast freight train,” running on schedule time. It left Buffalo at 2 o’cloolc a. m., February 3d, for Erie, and consisted of 24 cars. It arrived at Ripley at 6:02 a m., and was due in Erie at 6:15. The seventh section of train 43 left Buffalo the evening before at 8:50, bound for Erie. It arrived at Angola at 12:15 a. m.,' where it left a number of cars, and then proceeded on its way as section 6 of train 43. It was run as an irregular, on extra time. It arrived at Westfield at 5:25 a m., and was delayed 15 minutes. It reached Ripley at 5:50 a m., at which place it was ordered to allow 51 to pass. The conductor then proceeded to run his train west of the station to a switch, and was in the act of backing his train upon the branch track when 51 approached, striking the second car from the engine, causing the death of the plaintiff’s intestate. The collision occurred at 6:02, 12 minutes after the arrival of train 43 at the station. Six minutes were occupied by the conductor in receiving and answering the dispatch. He then had but 6 minutes to switch his train from the main track onto the branch track, in order to allow 51 to pass in safety. No flagman was sent out by him in the rear to warn 51.

It appears that there were but two brakemen upon train 51, and it is contended on the part of the plaintiff that the defendant was negligent in not providing more brakemen. We think, however, that the cause of the accident is not attributable to the want of brakemen on train No. 51, for it appears from the plaintiff’s own showing that but an instant occurred after the engineer of No. 51 discovered that the tracks were blocked before the crash came. The engineer saw the cars on the main track as the headlight shone upon them, sounded the whistle, and jumped from the train, just as the collision occurred. The conductor tells us that the whistle sounded and the collision occurred almost immediately; “ there was not time enough to think between, hardly :” that “ there wasn’t time for anybody to do anything,”—so that it is apparent that, had there been 20 brakemen upon the train, they would have been powerless and unable to avoid the accident.

Again, it is contended that the defendant was negligent in not providing more servants upon train 43, but the plaintiff has neglected to furnish us with any evidence showing the number of servants engaged in operating that train. We are consequently left without evidence upon which this question can be determined.

It is further contended that the train dispatcher of the defendant was negligent in not having informed the conductor of train '51 that 43 was ahead of him, and to be passed at Ripley. It appears, as we have seen, that train 51 left Buffalo at 2 o’clock, and received its first order at Washburn, wherein the conductor and engineer were directed to pass all trains they might overtake, and run to Erie ahead of them. This was at 3:33 o’clock. By this dispatch the conductor and engineer were warned that there were trains ahead which should be looked out for and passed. A second dispatch to the conductor and engineer of train 51 was sent to Washburn, in which they were directed to “approach. Dunkirk carefully.” At Dunkirk they were again communicated with, and directed to “look out for freights ahead. Pass them at Brocton. Do your best to get in on time.” It appears that they passed two freight trains at Brocton, and then proceeded on without further instructions until they collided with No. 48, at Ripley. It also appears that 43 was delayed at Westfield, a station between Brocton and Ripley, for a space of 15 minutes; that a dispatch was sent to the conductor and engineer of 43 at Ripley to let 51 pass. The dispatch arrived at Ripley at 5:33, nearly half an hour before 51 was due. Had it not been for the delay of 43 at West-field, it would have been at Ripley within 2 or 3 minutes after the arrival of the dispatch, and would have had 25 or 26 minutes in which to take the siding and clear the main track. It appears to us that the orders were ample and proper, and, had it not been for causes over which the train dispatcher had no control, no accident would have occurred. But, as we have seen, 43 was delayed 15 minutes at Westfield, and, when it reached Ripley, had but 12 minutes left in which to take the siding. The conductor, knowing of this delay, and that he was being followed by a train running on schedule time, should have sent out a warning to the approaching train, so as to have avoided the collision. In this he was negligent, and it is quite evident that this negligence was the cause of the accident. He was a coemploye of the plaintiff’s intestate, and it consequently follows that the verdict was proper.

Plaintiff’s motion for a new trial denied, and judgment ordered for the defendant upon the verdict. All concur.


text:
    Minnie Wheadon, Resp’t, v. Edward Huntington, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed December 27, 1894.)

    Fraud—Proof.
    In an action for fraud in incurring a debt, the plaintiff must prove all the elements of fraud, including damages therefrom.

      Appeal from an order granting a new trial, made on the, minutes after a nonsuit.

      William S. Moore, for app’lt; Coburn & Hunter, for resp’t.
   Haight, J.

The complaint alleges that on the 23d day of January, 1893, the defendant executed and delivered to the plaintiff his promissory note for $50; that prior to the giving of the note, and for the purpose of obtaining credit with the plaintiff, as she is informed and believes, the defendant willfully and falsely represented that he had valuable property, consisting of unincumbered real estate and other property in the village of Geneva, N. Y., belonging to him, and that he was perfectly' sol vent and pecuniarily responsible; that she relied upon and believed the representations made to be true, and gave him credit in consequence thereof, and that said representations were false. Upon the trial the plaintiff gave evidence tending to show that at the time of the giving of the note the defendant stated that he owned the tdwelling house where he lived; also the block in which his business was located, a portion of which was occupied by the express company, and a steam bakery; also a lot used in winter for a skating rink, and some personal property; and that it was free from incumbrances. The plaintiff then called the defendant as a witness, who was sworn in her behalf, and he testified that he did not own the house and lot where he lived ; that that was owned by his wife, but that he did own the block where the steam bakery and express office were kept, and that he also owned the lot which was used as a skating rink in the rear thereof; that the skating-rink property was unincumbered at the time; that he also owned a number of knitting machines, which were in the block,' of the value of between $3,000 and $4,000, and that they were unincumbered ; that the block owned by him occupied in part by the express company and the bakery was incumbered for $8,000,,, but that it was of the value of $12,000 over and above the incumbrance. He further testified that he had no indebtedness besides the incumbrance mentioned upon the real property. When the plaintiff rested, the defendant moved for a nonsuit upon the ground that the plaintiff had not proved the cause of action alleged by her, and the motion was granted. The trial court, in granting the order for a new trial, says “that the nonsuit was directed upon the theory that, in order to establish the fraud alleged in the complaint, it was necessary for the plaintiff to prove all the elements of fraud which- are material to recover in an action sounding in tort. In such cases it is well settled that the essential requisites are representations, falsity, scienter, deception and damage. Brackett v. Griswold, 112 N. Y. 454 ; 21 St. Rep. 791; N. Y. Land Improvement Co. v. Chapham, 118 N. Y. 288; 28 St. Rep. 780; Hotchkin v. Third Nat. Bank, 127 N. Y. 329; 38 St. Rep. 754. There was sufficient evidence of the presence of all these elements, save the last one, to warrant a submission of the case to the jury, but I thought upon the trial, and lam still of the that there was no evidence whatever of re suiting to the plaintiff from the representations made by the defendant at the time he gave the note in suit, and consequently, although for the purpose of the motion it was to be assumed that such representations were false and were made with intent to deceive, it seemed proper to take the case from the jury.” The learned justice then proceeds with an argument attempting to show that he was in error in granting the nonsuit, for the reason that the action was upon contract, and that in such an action it was not necessary to show damages resulting from the fraud ; citing as his authority Hoboken Beef Co. v. Loeffel, 22 St. Rep. 466. In this view we are unable to concur. Subdivision 4 of section 549 of the Code of Civil Procedure provides that the defendant may be arrested “in an action upon contract,-express or implied, other than a promise to marry, where it is alleged- in the complaint that the defendant was guilty of a fraud in contracting or incurring the liability, but where such allegation is made, the plaintiff cannot recover unless he proves the fraud on the trial of the action ; and a judgment for the defendant is not a bar to a new action to recover upon the contract only.” It will be observed that upon an examination of this statute, while the action may be based upon a contract the plaintiff may allege that the defendant was guilty of a fraud in procuring it, and where such an allegation is made the fraud must be proved upon the trial. To our mind, this does not change the rule that existed before the adoption of this provision. The fraud must be proved in all of its essential elements, not only that the representations were made, that they were false, that the person making them knew them to be false, that they operated to deceive the plaintiff, but also that she suffered injury in consequence of such representations. If either of these essential elements are omitted, the proof of the fraud alleged was not complete, and therefore the plaintiff was not entitled to recover. By again referring to the evidence, we see that it affirmatively appears from the plaintiff’s own showing that the defendant had unincumbered real estate and pers.onal property out of which the plaintiff could have made good any execution that should be issued upon her judgment. It consequently does not appear that the defendant was insolvent at that time, or that he has since become insolvent. It therefore follows that the representations were harmless, and that the learned trial justice was correct in granting the nonsuit. The order appealed from should be reversed.

All concur.


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    Mary M. Seeley, Resp’t, v. Arthur M. Bisgrove, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed December 27, 1894.)

    Justice’s court—Justice in jury room.
    It is error for the justice to enter the. jury room during their deliberations and without the knowledge or consent of the plaintiff or his attorney, read to them the defendant’s original answer, which had not been read to them before.

      Appeal from a judgment, reversing a judgment in favor of the defendant, rendered in the justice’s court. ■-

      W. R. & F. Hughitt, for app’lt; C. R. Milford, for resp't.
   Haight, J.

This action was brought to recover for a quantity of hay alleged to have been sold by the plaintiff to the defendant. -The case was tried before a jury. The verdict was not satisfactory to the plaintiff, and she appealed. It appears from the return of the justice that he entered the jury room on two separate occasions during the deliberation of the jurors upon their verdict. He states that this was done with the knowledge and consent of both the plaintiff and the defendant. In this respect his return is in conflict with the affidavits of the plaintiff and of her attorney, who both swear that they did not know or consent to his so visiting the jury. But, assuming that the return is correct that he entered with the knowledge and consent of the parties, he further returns that, on the occasion of his first visit to the jury room, he asked the jury if they could agree, and they said they could not; that he then told them that he had a paper which might help them to decide, and he then read to them the original answer of the defendant, which had not been read to them before. And he further returns that he read the answer to the jury without the knowledge or consent of either party, but says that he told the parties afterwards ; that, on the occasion of his second visit to the jury, he found they had not agreed ; and that he then told them*that, if it would help bring them to a decision, he would throw off some of his costs, as he thought that the difference was slight between them, etc. We think that the reading of the defendant’s answer to the jury without the knowledge or consent of the plaintiff was error. It contained what is alleged to have been the statement of the plaintiff in reference to the character and quality of the hay, and the alleged statements of the defendant as to the quality, character, and condition in which it was found ; it also contained alleged statements of the plaintiff to the effect that she told the defendant that he need not take the hay, etc., all of which might have prejudiced the plaintiff’s case. This question has recently been considered by this court in the case of People v. Linzey, 79 Hun 28 ; 61 St. Rep. 240; in which the authorities were collected and discussed. See, also, Valentine v. Kelley, 54 Hun, 78 ; 28 St. Rep. 481; and Gibbons v. Van Alstyne, 29 St. Rep. 461. For the reasons stated, the county court properly reversed the judgment. The judgment appealed from should therefore be affirmed.

All concur.


author: Dwight, P. J.

text:
    Henry S. Danolds, App’lt, v. James H. Lord, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed December 27, 1894.)
    Accounting—Profits as compensation.
    On an accounting at the expiration of a contract, by the terms of which, the defendant was to be the sole proprietor and owner and plaintiff to receive half of the net profits as compensation for his services in carrying on

      the business, it is competent, in estimating the net profits, to charge to the-business the depreciation in personal property purchased by defendant for ■ use in the business.
    Appeal from a judgment in favor of defendant

      W. H. Woodward, for app’lt; C. J. Church, for resp’t.
   Dwight, P. J.

This was an action to recover what was alleged to be due to the plaintiff for his share of the profits of a business undertaken and carried on for a little over two months, under the following agreement:

“ Agreement made this 26th day of May, 1891, by and between James H. Lord and Henry S. Danolds, as follows: The parties-hereto are to carry on the business of painting roofs under the name of Flour Oity Roofing Company, of which said James H. Lord shall be sole proprietor and owner. Each of the parties hereto agree to give their whole time and attention to said business. Books of account shall be kept which shall be accessible to-both parties, and as often as twice each year .an account of said business shall be taken, and the profits ascertained, and one-half of such net profits shall be paid to and received by said Henry S. Danolds, as full compensation for his services rendered in the carrying on of the business aforesaid. This agreement shall continue for one year from this date.”

The business was terminated, by the mutual consent of the parties, early in August of the same year; and, the parties having failed .to reach a settlement of their matters which was mutually satisfactory, the plaintiff brought this action, claiming a balance of profits of the business’due to him. The trial necessarily involved an accounting, which was had before a most careful and capable referee, and the result was a finding that the ¡plaintiff had received his full share of the net profits of the business, and his-complaint was dismissed.

The only question of any moment presented by this appeal is-whether the referee properly included in the accounting certain personal property purchased by the defendant for use in the business, and which, at the termination, was sold, and the proceeds-accounted for. We think the referee was quite right in his dispositión of this question. All agree that the relation of the parties-was not that of a copartnership, and there has been no attempt to charge him (the plaintiff) with any losses in the business. There was no loss. The result was a net gain. But it was plainly necessary, in order to ascertain what the net gain was, to charge-to the business the cost of the materials consumed, of the tools and implements worn out, and, equally of the depreciation, by wear and tear or other necessary causes, of such tools, implements, and appliances which were not rendered absolutely worthless, but only depreciated in value. The phrase employed in the contract, “of which said James H. Lord shall be sole proprietor and owner,” does not affect the question of the form of the accounting necessary to arrive at the net profits of the business. The reference in that phrase is to the business, of which Lord should be sole proprietor and owner, and especially, no doubt, to the good will of the business; but, even, if it were to be regarded as applying to the property used in the business, it would be necessary to take an account of all such property purchased, consumed, worn out, or depreciated in value, in order to ascertain what was the net profit realized in the business during its continuation.

The case of Emery v. Wilson, 79 N. Y. 78, 83, from the opinion in which counsel quoted an isolated expression of Danforth, J., is not at all in point here. That was the case of a copartnership, and the learned judge who had said, as quoted, “ Nor did the referee err in refusing to deduct from the profits so ascertained the amount of the depreciation in value which the property of the firm had undergone," also said: “ The arrangement between Emery and Wilson did not contemplate a final winding up or settlement of the affairs of the firm of John T. Wilson & Co. before payment to Emery should be made, but only that the profits of the business of the firm for the year should be ascertained or stated in the manner referred to.” In the case at bar the final conclusion of the business was reached. The arrangement was to all intents and purposes a copartnership, except in respect to liability for losses ; and, for the purpose of ascertaining the amount of net profits, an accounting substantially as in case of a copartnership seems to have been necessary and proper. Such an accounting was taken by the referee, with careful attention to the rights of the plaintiff, and the result reached by him seems to have been fully justified. The judgment should be affirmed. All concur.

So ordered, with costs of this appeal.


author: Lewis, J.

text:
    Edward W. Hatch, Resp’t, v. George E. Matthews, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed December 27, 1894.)

    Libel—Per se.
    It is libelous psr se to charge a person with being a member of a “gang,” which had entered into a scheme or arrangement to seize what could not be obtained peacefully and by proper means.
    Appeal from an interlocutory judgment, overruling a demurrer to the complaint.

      Charles B,. Wheeler, for app’lts ; Simon Fleischmann, for resp’t.
   Lewis, J.

This is an action of libel brought against the defendants as proprietors and publishers of the Buffalo Morning Express, a newspaper published in the city of Buffalo, for publishing an article in their paper of and concerning the plaintiff. The demurrer was taken upon the ground that the complaint failed to state a cause of action. The article complained of is set forth in full in the complaint In determining the sufficiency of this complaint, it must be assumed that the facts stated therein, as well as such as may by reasonable and fair intendment be implied from the allegations made therein, are true. Milliken v. Western Union Telegraph Co., 110 N. Y. 403 ; 18 St. Rep. 328. The article was headed : “Hatched Out. Why That New Paper Died A-Borning. Enquirer not for Sale, at Least not on the Terms Bill Sirret Offered. The Gang Enters into an Alleged Arrangement With the Queen City Bank to Seize What It could not Get Peacefully—In Telling the Story Editor Kingsley Uses YYords as Hot as Tobasco Sauce—The Bank’s Denial.’’ And then follows a statement that rumors that the proposition of certain Platt Republicans and disgruntled politicians to start another Republican newspaper here continue to be circulated, but the eager disclaimers of some of the men whose names have been connected with the scheme have tended to dull public interest in the project. It continues :

“ The latest reports, however, are far more interesting to the community than anything that has thus far been said regarding the scheme. It is now reported that Judge Edward W. Hatch, his brother, Charles S. Hatch, William B. Sirret, and others, who are credited with the ambition to win glory and renown as the publishers of a Republican newspaper which shall be the salvation of the party and of boosting Thomas 0. Platt in particular, as well as a means of boosting their own political aspirations, have realized that it is impossible for them to obtain an original news franchise, and that, in their extremity, they have entered into an arrangement with the Queen City Bank to obtain possession of the Buffalo Enquirer.”

And then follow statements that the Queen City Bank had obtained a judgment of $13,000 against a former owner tof the Enquirer, and that a reporter of the Express had interviewed Mr. Inglehart, the attorney for the bank ; that Mr. Inglehart admitted that they had levied upon the Enquirer’s plant, and intended to sell it, but that he denied that there had been any conspiring to obtain the Enquirer’s plant. The article then states that the paper’s reporter called upon Mr. Charles F. Kingsley, the editor and manager of the Enquirer, and then proceeds to give Kingsley’s version of the case to the reporter for the Express. The material part is as follows:

“The attempt of the Queen City Bank to rob the present owners of the Enquirer of their property is a high-handed outrage, and cannot be too strongly condemned. The knowledge of what that corporation has attempted to do is sufficient to convince all fair-minded men that it has lent itself to a most despicable conspiracy. Some time ago William B. Sirret came tome and asked the price upon the Enquirer newspaper and plant When he found out that the paper could not be bought for any such sumos he mentioned, he remarked that the Queen City Bank had a judgment against a former owner of the Enquirer, which several of the persons interested with him in starting a new Republican paper believed would hold good against the present owners. * * * About noon of Wednesday, April 11th, I was informed by a prominent city official that John F. McGee and Aid. William K. Williams had said that our price for the Enquirer newspaper and plant was altogether too high, and that a scheme was on foot to get possession of it in some other manner than by direct purchase. He said that he had been told by Williams and McGee that Sirret had called upon W. F. Creed, of the Queen City Bank, and had entered into an arrangement with that individual to have the bank seize the plant of the'Enquirer on a judgment obtained against one of its former owners, many days after it had passed out of her possession, and sell the same at sheriff’s sale. In other words, Creed was to seize our property and run our business in disregard of the fact that we were in peaceful and undisturbed possession, and had been for months. For committing this outrage, Creed was to get the face of the judgment which he held against a former owner of the Enquirer, and the Platt clique was to get a newspaper by bidding it in at the face of the judgment. * * * We have evidence in our possession which leads us to believe that the Queen City Bank, through Creed, has entered into an arrangement to commit the outrage which is charged. * * * Either this is persecution of the most flagrant nature, or it is an organized attempt at highway robbery. If it is true,- as I believe, that the. Queen City Bank has entered into a deal with the Platt Republicans to ruin our business, then it is the principal offender, and it deserves the condemnation of the community more than the cheap politicians who are in the scheme, because it is a business institution, and should adhere to reputable business methods.”

If this article contains statements which tend to hold the plaintiff up to scorn or ridicule, or which tend to degrade or disgrace him in the estimation of others, it is libelous per se. Bergmann v. Jones, 94 N. Y. 51. If it imputes to the plaintiff dishonesty or unfair dealings, or unjust conduct, it is libelous. Holmes v. Jones, 121 N. Y. 467; 81 St. Rep. 379. While the plaintiff was not charged in the article with having violated the criminal law, he is charged with being a member of a gang which had entered into a scheme or arrangement to seize what could not be obtained peacefully and by proper means. The word “ gang ” is sometimes used to describe a body of men associated together for purposes entirely proper, as a gang of laborers, etc., but it is more commonly used to describe a body of men .banded together for improper or unlawful purposes, like a gang of thieves or a gang of robbers. It was in the latter sense that it was used in this article. It was alleged that the persons composing the gang had entered into an arrangement with the bank to rob the ownersof theEnquirer of their property, which was charged to have been " high-handed outrage. Such conduct would be considered as improper and unbecoming a good citizen, and to charge a person with having been guilty of such, conduct would tend to disgrace and depreciate him in the estimation of his acquaintances. There does not seem to be much room for doubt that the article was libelous. It therefore follows that the complaint stated a cause of action. The judgment appealed from should be affirmed, with costs; but with leave to the - defendants, on payment of the costs of the demurrer and of this appeal, to withdraw their demurrer and answer over within 20 days after service of notice of the entry of the order of affirmance.

All concur.


text:
    In the Matter of the Settlement of the Account of Hadley Jones, as Assignee for the Benefit of Creditors of William Sutcliff.

      (Supreme Court, General Term, Fifth Department,

      Filed December 27, 1894.)

    Assignment fob creditors—Accounting.
    Where the assignee, with the consent and advice of the creditors, forms a stock company for the purpose of carrying on the business of the assignor he is properly charged, on an accounting, with the value of the assigned estate, and credited with the amount of incumbrances, payments, • costs, expenses and disbursements.
    Appeal from a decree, settling the assignee’s accounts.

      James B. Backenstose, for app’lt; E. C. Aiken, for resp't.
   Lewis, J.

On the 5th day of January, 1892, William Sut- " cliff, a resident of the city of Auburn, made a general assignment of all his property to Hadley Jones in trust for the benefit of his creditors. The assignee made and filed an inventory of the estate, from which it appears that the only property that went to the assignee under the assignment was two parcels of land, described in the inventory as parcels No. 1 and No. 2. No. 1 was a lot with a brewery on it; No. 2 .was a vacant lot,—both situate in the city of Auburn. All the personal property in the brewery was, at the time of the assignment, in the hands of the sheriff, and was subsequently sold by him at execution sale. The book accounts and evidences of debt that had accrued in the brewery business had been, prior to the assignment transferred to the assign- or’s wife in part payment of a debt he owed her. The assigned property was largely incumbered, at the time of the assignment, by mortgages, judgments, and mechanics’ liens. Its actual value, inclusive of incumbrances, was §81,500. There were outstanding, besides the debts secured by mortgages, judgments, and liens, claims against the assignor amounting to some $30,000, including the claim of the appellant, Nestor, of $6,344.08. The assignor, at the time of making the assignment, was engaged in operating the brewery, and it was important to all interested that the business should be continued. The personal property with which the brewery had been operated was, as stated, in the hands of the sheriff, and was soon sold. The assignor’s wife, Mrs. Sutcliff, became the owner of this personal property, and the business was continued. The assignee made diligent efforts to sell the brewery property, and, being unable to find a purchaser, he attempted to . borrow money by mortgaging the property. He was not able to raise any money in that manner The holders of incumbrances were pressing for payment of their claims ; foreclosure of one of the mortgages had been commenced, and the assignee consulted with the creditors, including the appellant, as to the best course to be pursued with the property. It was determined that it was for the interests of all concerned that the brewery should be put into a stock company. The creditors, including the appellant, so advised, and the assignee proceeded to form a stock company for the purpose of operating the brewery. Bonds of the corporation were issued, and with them the assignee arranged with the creditors, the most of them taking bonds in payment of their claims. Bonds were tendered to the appellant in payment of his claim. Mr. Nestor declined to receive them, and commenced this proceeding before the special county judge to compel the assignee to render an account of his proceedings. The assignee filed an account, and the proceeding came on for hearing before the special county judge of Cayuga county, and, after hearing the evidence, the court found and decided-that the assignee should be charged with the value of the assigned property, which was found to be the sum of $81,500. The assignee was credited with the amount of the incumbrances upon the property, and the amount that he had paid to the holders of the incumbrances; the amount of a preferred claim held by a Mr. Wildner for wages; the costs of an appeal allowed the creditor, Nestor, in a former proceeding; his expenses, disbursements, and commissions as assignee,—which sums deducted from the value of the estate, left a balance to be distributed among-the unsecured and unpreferred creditors of $14,-742.60. The court further found that the pro rata share to which the appellant was entitled to be paid to apply upon his claim was the sum of $3,084.55, with interest from the 13th day of July, 1892 ; and the assignee was adjudged liable to pay said sum, and in addition thereto the sum of $119.03 costs allowed upon - a former appeal to the general term, together with $150 costs of the proceeding. We are satisfied, from an examination of the case, that the findings and conclusions of the trial court are fully sustained by the evidence. The neglect of the assignee to dispose of the property in the usual manner was satisfactorily explained. What he did, as stated, was by the advice and consent of the parties interested in the estate, and the manner in which the property was disposed of was manifestly for the best interests of the unsecured and unpreferred creditors. Such being the case, charging the assignee with the full market value of the assigned property, and crediting him as stated, was a proper disposition of the matter. Adair v. Brimmer, 74 N. Y. 539. The assignee having arranged and paid the claims against the estate in the manner stated, he was entitled to be subrogated to the rights of the creditors therein, and he was entitled to have them reckoned in ascertaining Úíq pro rata share to which the appellant, Nestor, was entitled. 24 Am. & Eng. Enc. Law, p. 290. The demands of the creditors against the estate contained in the schedules filed by the assignee were shown upon the trial to have been valid claims. There was' sufficient evidence, we think, to justify the trial court in allowing Mrs. Sutcliff’s claim of $1,623.11, which was presented during the trial of the" proceeding. Our attention is called by the appellant’s counsel to the omission of the trial court to allow the appellant interest upon the item of $119.03 costs. If the court fell into an error in that regard, the amount involved is so small as not to justify a modification of the decree for that reason, for, if allowed, it would not increase the amount awarded to the appellant by more than from one to two dollars. We do not find any cause for disturbing the decree appealed from; it should be affirmed, with posts.

All concur.