author: VAN BRUNT, P. J.

text:
    Franklin National Bank of New York, Resp’t, v. Isaac B. Newcombe et al., App’lts.

      (Supreme Court, Appellate Division, First Department,

      Filed February 7, 1896.)

    1. Pledge—Sale.
    Where one holds collaterals as security for a note, which, by the terms of bis contract, he is, at any time after maturity of the note, at liberty to sell, at public sale, with or without notice, he has the right to sell without notice and at any time.
    2. Same.
    In such case, he cannot be held liable by reason of selling them when the market is in poor condition, where they are sold two weeks after maturity of the note, at public sale, after notice.
    S. Same.
    In such case, the pledgee need not demand payment before selling.
    Appeal from a judgment on a verdict directed for plaintiff.
    P. S. Dean, for app’lts; P. Carpenter, for resp’t.
   VAN BRUNT, P. J.

—This action was brought to recover the balance due upon a promissory note for $20,000, to secure 'which certain stock and bonds bad been pledged as collateral. The note fell due upon the 15th day of August, 1893, and was not paid. Certain of the collaterals were sold in the open market, by the consent of the defendants, and the sums realized thereon credited upon the note, and the 21st of August there’ remained due upon said note the balance of $10,155, for the payment of which the plaintiffs held certain collaterals. _ By the terms of the note, upon nonpayment at maturity, the plaintiff had full power and authority to sell, assign, and deliver the whole or any part of the securities at any brokers’ board, or at public or private sale, at their option, at any time or times thereafter, with" out advertisement or notice, and to purchase at such sale or sales, freed or discharged of any equity of redemption. On the 30th of August, 1893, the plaintiff sold certain of these collaterals, at auction, at the Real-Estate Sales-Rooms, on Liberty street, after-having advertised the same. At this sale the securities brought very low prices, and were bought in by the plaintiff. This action having been brought to recover the balance due upon the note after having credited the amount realized upon the securities, the defendants alleged, as an answer to the plaintiff’s claim, that the plaintiff had made the sale above mentioned, wholly disregarding its duty in that behalf, and reckless of the rights of the defendants, and at a time when it was impossible to sell stocks and bonds in open market at anywhere near their actual value; and that said sales were not made with due and proper care, and not in the usual course of business, and at a time when it was impossible to get a fair market value for any stock or bonds, and at a time when no person, in the exercise of due business discretion, would sell his own stock; and that said stock and bonds were bought by plaintiff (except one bond) with scarcely any opposing bidding, at a price far below their actual value. There was no complaint in the defendants’ answer that due notice of the time and place of sale had not been given, nor that the sale had been duly advertised. Upon the trial, evidence was attempted'to be offered that the securities sold far below their actual value, and that they were bought in by the plaintiff: and it was argued that this evidence tended to show an intent to injure the defendants, upon the part of the plaintiff, in making the sale. This evidence was excluded, and an exception taken, and upon the termination of the trial a verdict was directed for the plaintiff, and from the judgment entered upon such verdict this appeal is taken.

It is claimed upon the part of the appellants that the exclusion of evidence showing the absence of due care in the sales of col-laterals was error ; and it is urged in support of this objection, that the plaintiffs had no light to sell the collaterals, in consequence of the condition of ihe market; that they must have known that the market would appreciate, and that they were bound to wait until the unusual depression had passed away. It is to be observed that the note for which the collaterals were pledged became due on the 15th of August, and no sale of these securities was made until the -30th of August, showing that the plaintiffs waited over two weeks for the payment of the note before they enforced their rights as against these col-laterals. They had a right to- sell without notice, and at any time. Instead of making a sale in that way, it appears, by implication at least, that notice was given, and ample time afforded to the defendants to take care of these securities, and they were sold in the only way in which the plaintiffs could have safely sold the securities, had it not been for the special-terms of the contract which they had entered into with the defendants at the time of the receipt of the note in question. Even if the plaintiffs were bound to wait a reasonable time before making the sale, which we by no means admit, there is no evidence of any undue haste, but, on the-contrary, it appears that they exercised great deliberation before enforcing their rights, as against the defendant's, upon these securities. If they were bound to wait longer than two weeks, tliev might be required to wait two months; and could they ever tell when they could safely proceed with a sale? This was not the contract between the parties. The action of the plaintiffs was strictly within the terms of the contract, and hence the defendants have no reason for complaint.

It is urged that there was no necessity for selling this loan out 'at"such a time; that it was amply secured, and none of the securities were being unloaded on the market, and that they were in no immediate danger. But, upon such consideration, can a debtor obtain a forced loan from bis creditor ? Has not his creditor a right to collect when due, and can the debtor compel him to wait because .it is inconvenient to pay, and a bad time to realize upon his assets? We are not aware of any such rule.

It is further claimed that the exclusion of evidence which tended to show an intent to injure the defendants was error. It may be observed, in the first place, that no such defense was set up in the answer; and, in the next place, that no evidence was offered tending to show any such intent. The sole evidence was that the securities brought very low prices, and that the plaintiffs bought them in. The plaintiffs were pursuing their legal rights, and the defendants,, if they had chosen, eon Id have protected the securities, as they knew of the sale. We know of no' reason why a creditor may not enforce his legal rights, in a legal way at any time. There can be no presumption against a creditor who has proceeded with the deliberation and the regularity with which the plaintiffs in this action seem to have acted. '

It is further urged that the sale of the securities was illegal, for the reason that no demand of payment was made, and that the right to sell the collaterals did not accrue until after such demand. It is true that, in the case of Lewis v. Graham, 4 Abb. Prac. 106, such a rule was laid down. But it was not necessary to the decision of the case in question; and the rule was not supported by the case cited as an authority, namely, Wilson v. Little, N. Y. 4482. The rule, as stated in that case, was that, whére no time is expressly fixed by contract between the parties for the payment of a debt secured by a pledge, the pawnee cannot sell the pledgr with-; out a previous demand of payment. In the case at bar, there was a time expressly fixed, by contract between the parties, for the payment of the debt, namely, when the noté became due; and it will be observed, on a consideration of the cases where the question of demand and notice has been the subject (if discussion, that the two terms are used in the same sense, and that they are used where the necessity of notice is.the subject of adjudication, and then the phrase “demand and notice ” is employed. But, in all those cases, the question under discussion was whether the pawnee could sell his pledge without notice; and it was, of course, held that, in the absence of an express contract, he could not do it. In the case of Wilson v. Little, supra, the difference between a debt due upon a certain day, and a debt without fixed date of payment, is borne in mind. In that case, notice had been waived, but demand had not been waived; and the court held that the pawnee ■could not sell without making a demand, there being no express time when the debt became due. This was undoubtedly a salutary rule. Where a debtor does not know when his money is to be called for, it would be exceedingly unjust that his securities should be sold behind his back, without his being notified that payment of his debt was expected. But this in no way applies to a case where a fixed time is expressly agreed upon, by the parties to a contract, for the payment o£ a debt, like the case at bar.

It would seem, therefore, that none of the rights of the defendants have been infringed by the action of the plaintiffs, and the judgment appealed from should be affirmed, with costs»

All concur»


source: Caselaw Access Project

author: RUMSEY, J.

license: Public Domain

text:
    People ex rel. Felix McKenna, App’lt, v. James J. Martin et al., as Police Commissioners, etc., Resp'ts.

      (Supreme Court, Appellate Division, First Department,

      Filed February 7, 1896.)

    I» Municipal corporations—Policeman—Removal.
    The notice provided for by section 250 of the Consolidation Act, as a-mended by chapter 180 of 1884, is essential to the authority of the police commissioners to try and punish any member of the police force upon charges preferred against him.

      % Same.
    According to rule 189 of the police board, a member of the police force cannot be put upon his trial until lie lias had two days’ notice of the trial, accompanied with a copy of the charges and specifications.
    3. Same.
    Where notice was served on the 9th, fixing the date of hearing on the 15lli, tlie police board cannot, by the service of another notice on the 18th, require the officer charged to submit to trial on the 14th.
    Proceedings for a writ of certiorari to review the action of the . police commissioners, in removing relator as an officer of the police force.
    C. W. Dayton, for relator; Theodore Connoly, for def’ts.
   RUMSEY, J.

—The relator was a sergeant of police, against whom charges were preferred in August, 1894, upon which he was tried before the police board, and dismissed. He sues out this writ of certiorari to review this action of the board. In the view we have taken of this case, there lies, at the very beginning of it, so serious an irregularity and defect that we are required to reverse the proceedings, without considering the merits, and it must be understood that our decision is made solely upon the irregularity hereafter slated, and without in any way expressing an opinion as to the correctness of the proceedings after the trial was begun, or the correctness of the final decision. It appears, from the return, that ■charges were preferred against McKenna, upon which he was suspended early in August, 189-1. On the 9th day of August, 1894, a copy of these charges was served upon him, with a notice that such charges would be examined before the commissioners on the 15th day of August, at 10 o’clock in the morning. On the 13th day of August, another notice was served upon him, that his trial had been set down for 1 o’clock p. m. on the 14th, which was one day sooner than the notice originally provided for. He appeared on that day, pursuant to the order, but objected to the trial proceeding, upon the ground that he had not received the notice prov¡ iod for by the rale. His objection in that regard was overruled, the trial was proceeded with, and he was dismissed. As it appears to us, the proceeding with the trial under those circumstances was a fatal irregularity. By section 250 of the consolidation act the board of police commissioners is authorized to adopt rules and regulations for the examination, hearing, investigation and determination of charges preferred against any member of the police force, and no member shall be dismissed until written charges shall have been preferred against him, nor until such charges have been examined, heard, and investigated before one or more commissioners, upon such reasonable notice to the member charged as the said board of police may, by rules and regulations, from time to time prescribe. Pursuant to that provision of the statute, the police board had prescribed, by its rale number 189, that when written charges should be preferred against any member of the police force they should be filed with the. chief clerk, whereupon specifications of the charges, with a notice of the time and place of trial, shall be served upon the party charged, two days before the trial, the day of said service being counted as one of the two days. This rule prescribes what the police commissioners considered as a reasonable notice under the statute. Such notice is essential to the authority of the police commissioners to try and punish any member of the police force upon charges preferred against him. People ex rel. Weston v. McClave, 123 N. Y. 512 ; 34 St. Rep. 274. The rules thus made, having been made in pursuance of statutory authority, have themselves the force and effect of statutes, and all persons, the police commissioners included, are just- as much bound by them as are the members of the police force who are to be tried. In re Moore, 108 N. Y. 280; 13 St. Rep. 621. According to that rule, the relator could not have been put upon his trial until he had two days’ notice of the trial, accompanied'with a copy of the charges and specifications. This he did not have. It is quite true that the charges and specifications were served upon him on the 9th day of August, ’accompanied by a notice that he would be tried on the 15th. He was entitled, therefore, to rely upon that notice, and to depend upon it that he would not be put upon his trial upon those charges until the day mentioned in that notice. If it was thought advisable by the police board to try him sooner, they might have done so, no-doubt, by serving another notice, with another copy of the specifications, prescribing an earlier day for the trial, if such notice was served two days before the time set in it on which the trial would proceed. But they had no authority, under their own rules, having once fixed the time for trial, to shorten the time fixed by the notice which they had already given. This is not a mere technical violation of the rights of the relator. The notice which he has is given for the purpose of enabling him to prepare for trial. He has the right to depend upon it that he will not be brought for trial until the time fixed in the valid notice which lie receives. An arbitrary change of that time, without complying with the provisions of the rule, may work great injustice to the culprits That is evident in this case. It appeared that, when he was suspended, knowing that he would ’be tried, he retained an attorney to defend him, who was instructed in the case. On the 13th, when he received the notice that an earlier day had been fixed for his trial, he sought to communicate with that attorney, but was unable to find him, and he was forced to proceed to trial without the assistance of his counsel, but with other counsel who was not at all acquainted with the case. Such an irregularity as this cannot be overlooked upon the ground that it is merely technical. In all cases where a man is accused of a serious crime, it is important that the rights which are guarantied to him should be respected, in the mode of investigation of the charges against him. These rules have been made because they were deemed necessary to the protection of the accused. A just regard for those rights requires that their observance should be insisted upon.

For the irregularity above stated, the proceedings must be annulled, and the relator restored, with $50 costs.

All concur.


author: WILLIAMS, J.

text:
    Baker Transfer Company, App’lt, v. Merchants’ Refrigerating and Ice Manufacturing Company, Resp’t.

      (Supreme Court, Appellate Division, First Department,

      Filed February 7, 1896.)

    Contracts—Implied covenants.
    In a contract, a covenant to do essential acts will be implied. So held, where, in an agreement, it appeared that the agreement was signed and sealed by both parties; that it stated that defendant was engaged in the manufacture of ice and would put out from 75 to 100 tons a day; that plaintiff should take the ice and, for a stated compensation, deliver it to various customers, and should provide suitable horses, harness and wagons, which defendant might purchase after one year; that, if plaintiff failed to deliver the ice; defendant might have it delivered and charge plaintiff any excess beyond the amount paid plaintiff for like services.
    Appeal from a judgment dismissing the complaint for insufficiency of facts. _ ,
    The action was brought upon a written agreement of the parties, wherein it was provided that the defendant was engaged in the manufacture of artificial ice in the city of New York, and would have an output of from seventy-five to one hundred tons per day, and the intention was to dispose of this ice, and deliver the same to various customers; that the plaintiff was engaged in forwarding and trucking merchandise, and agreed to take such ice from defendant’s,plant, and deliver the same to various persons in the city, and when requested, to store the same in ice boxes or bunkers situated in the buildings of said customers, and to furnish the necessary new wagons, properly painted and lettered, with good horses and harnesses, together with the necessary appliances and proper help, sufficient to deliver the said ice with reasonable dispatch, and that the defendant would pay the plaintiff on the first day of each month for the'ice that he delivered during the previous month, at the rate per ton therein specified, and'that, in case of the failure of plaintiff properly to deliver the ice as therein .agreed, the defendant should give written notice to the plaintiff, and thereafter, if the plaintiff was unable to perform the work properly, the defendant had the right to arrange for the delivery of said ice, and charge any excess of expenses over the prices therein agreed upon to the plaintiff; that the agreement was to continue for two years from May 1, 1892, and the defendant should have the option of buying the horses, trucks, harnesses, etc., from the plaintiff after the first year of the term of the agreement. This agreement stated it was made between the parties, and it was signed and sealed by both of them. The complaint set out this agreement, and further alleged that, pursuant to the agreement, the plaintiff purchased the necessary horses, harnesses, trucks and appliances, and fully prepared itself to receive and deliver the ice, and entered upon the performance of the agreement, —and that there wore, and ever since had been, customers sufficient to take the 100 tons daily,—and that the pi an tiff was fully prepared to receive,and deliver the iee, was ready to do so, and so presented itself to. the defendant; that on the first day of May, 1892, it began to receive and deliver the ice, and continued to do so up to January 1,1893, but though there were customers for at least the 100 tons of ice daily, and although the defendant had agreed to produce seventy-five to one hundred tons a day for such 'delivery, he failed to do so, and only produced on an average about twenty-five tons per day for such delivery, and on or about January 1, 1893, stopped producing any ice for such delivery, and the plaintiff was therefore unable to get any ice for delivery, and so the defendant was guilty of a breach of the agreement, and by reason thereof the plaintiff suffered damages in the sum of $41,550, for which it sought to recover judgment at the trial. Before any evidence was taken the defendant moved for a dismissal of the complaint, on the grounds: (1) That while the agreement ■ ■obliged the plaintiff to receive the ice manufactured by the defendant for delivery, and to deliver the same to customers, there-was no corresponding obligation imposed on the defendant by the agreement to deliver any ice to the plaintiff, and the plaintiff could not recover damages for the failure of the defendant to deliver that which the contract did not require it to deliver; (2) that the agreement was void for want of mutuality, there being no obligation on the part of the defendant to deliver ice to the plaintiff: {3) the agreement was void for uncertainty, for the reason that no definite quantity of ice was specified. The court granted 'the motion and the plaintiff accepted to such ruling. From the judgment entered on this decision, the appeal is taken.

      Almet F. Jenks. for app’lt; Theron G Strong, for resp't.
   WILLIAMS, J.

—The question raised by this appeal is whether, under the facts alleged in the complaint, a covenant should be implied on the part of the defendant to furnish the ice for delivery to customers, There is no uncertainty in the agreement as to the quantity of ice. It was seventy-five to one hundred tons ■daily; at least seventy-five tons.

The general rule of the law relating to implied covenants are well settled and have been frequently stated by the courts. Booth v. Mill Co., 74 N. Y. 21; Jugla v. Trouttet, 120 N. Y. 27; 30 St. Rep. 182; Genet v. Canal Co., 136 N. Y. 608, 609; 50 St. Rep. 53; Jocquin v. Boutard, 89 Hun, 437; and cases therein referred to.

In Booth v. Mill Co., supra, it was said by Allen J.:

“There is no particular, formula of words or technical phraseology necessary to the creation of an express obligation to do or forbear to do a particular thing or perform a specific act If, from the text of an agreement and the language of the parties, either in the body of the instrument or in the recital or inferences, there is manifested a clear intention that the parties shall do certain acts, courts will infer a covenant in the case of a sealed instrument, or a promise if the instrument is unsealed, for nonperformance for which an action of covenant or assumpsit will lie.”

In Jugla v. Trouttet, supra, Bradley J. said:

“Where any act of the parties, or either of them, is essential to carry out the intention of the parties appearing by the provisions of the contract, the stipulation for the performance of such act will be deemed within its provisions as effectually as if actually expressed.”

. And in Genet v. Canal Co., supra, Finch, J., said

“I know very well that implied promises should be cautiously, and not hastily, raised. They always exist where equity and justice require the party to do or refrain from doing the thing in question; where the covenant on one side involves some corresponding obligations on the other; where, by the relation of the parties and the subject-matter of the contract, a duty is owing by one not expressly bound by the contract to the other party, in reference to the subject of it. In this court we have thrown some safeguards about the doctrine to secure its prudent application, and have said that a promise can be implied only where we .may rightfully assume that it would have been made if attention had been drawn to it, and that it is to be raised only to enforce a manifest equity or reach a result which the unequivocal acts of the parties indicate that they intended to, effect.”

In Jacquin v. Boutard, supra, which was an action brought to recover damages for a breach of a contract whereby the defendants employed the plaintiff in their business, among other things, to sell goods as their agent, the general term of the supreme court in this department held that, although there was no express promise in the contract that the defendants should furnish the plaintiff with samples and price lists of their goods, yet such promise should be implied from the facts and circumstances surrounding the execution of the contract and the conduct of the parties thereunder; citing Booth v. Mill Co. and Genet v. Canal Co., supra, and other cases. Parker, J., said

“The failure of this promise to appear in the contract was not an intentional omission, but a mere inadvertence; and while-the-courts hesitate to imply promises in formal contracts, they should do so where otherwise the manifest intention of the parties would be defeated.”

These are some o'f the latest expressions of the courts upon this1 subject, and may well be relied upon as correctly stating the principles to be applied in this case; and, in view of these principles, we think the trial court was clearly in error in. holding that no-covenant on the part of the defendant to furnish the ice to the plaintiff could be implied. The agreement in form was mutual, and signed and sealed by both parties. It is stated that the defendant was engaged in the manufacture of ice; and'would have an output of from 75 to 100 tons per day, and that the intention was to dispose of this ice, and deliver the same to various customers. It further provided that the plaintiff should- take the ice from the defendant’s plant, and deliver it to the customers; that the plaintiff should incur great expense in providing horses, wagons, harnesses, etc., in preparation for the special work of taking and delivering the ice, and, if plaintiff failed promptly to take and deliver the ice as agreed, defendant might itself arrange to have it delivered, and plaintiff should be liable to any excess in the expenses thus incurred over and above the prices agreed tobe paid plaintiff under the agreement; that the price to be paid plaintiff for such delivery was fifty cents and seventy-five cents per- ton, and the term of the agreement was two1 years, with the option to the defendant after one year to purchase the horses, wagons, etc., from the plaintiff, and thus, by implication, terminate the agreement. The intention of the parties is very apparent from the language of the agreement itself. The defendant was to manufacture 75 to 100 tons of ice per day, and plaintiff was to take and deliver all of it to customers. There 'is no suggestion in the agreement, express. or implied, that the plaintiff should take .or deliver less than the whole amount of ice manufactured. How could such an intention be carried out unless the defendant furnished the ice to plaintiff so to deliver. The furnishing of the ice by the defendant was essential to carry out this intention, and therefore the court should imply a covenant to perform this act. The covenant on the part of the plaintiff involved a corresponding obligation on the part of the defendant to furnish the ice. In view of the relations of the parties and the subject-matter of the contract, a clear duty was owing on the part of the defendant to deliver the- ice. This was understood and assumed. Upon no other hypothesis it is conceivable that the plaintiff would have covenanted as he did. The covenant must be implied to reach a. result which the unequivocal acts of the parties indicated that they intended to effect. Sufficient reasons thus appear why the covenant contended for should be implied in this agreement, and it does not seem to be necessary further to consider the facts or discuss the law of the case.

Our conclusion is that the judgment should be reversed, and a new trial ordered; with costs to. the appellant to abide the event.

All concur.


text:
    Erwin Steinback, Resp’t, v. Louise Diepenbrock et al., App’lts.

      (Supreme Court, Appellate Division, First Department,

      Filed Feb. 7, 1896.)

    1. Insurance—Lies policy—Assignment.
    A policy of insurance, effected, by a person upon his own life, is assignable like an ordinary chose in action, and the assignees entitled, upon the death of the assured, to the full sum payable, without regard to the consideration given by him for the assignment or to his possession of any insurable interest in the life of the assured.
    3. Appeal—Harmless error.
    The vacation of an order for the examination of a witness before trial is without prejudice, where the witness is present at the trial and is not examined.
    Appeal from a judgment in favor of plaintiff,
    A. E. Woodruff, for app’lts; Thomas E„ Rowlett, for resp’t,
   RUMSEY, J.

—In December, 1887, Alois Diepenbroclc took out a policy of insurance on his own life in the-Equitable Life Assurance Society. In December, 1892, the surrender value of that policy was_ about $485. In that month the defendant Erdtmann bought the policy of Diepenbrock, and took an assignment of it, absolute in form, expressing as a consideration one dollar “and other valuable considerations.” The real consideration paid by Erdtmann was $600, On the same day, Erdtmann sold the policy to the plaintiff for $700, and gave an assignment also absolute in form. At the time these transactions took place, neither Erdtmann nor Steinback held towards Diepenbrock any relations of trust or confidence whatever, nor was there any reason why they should not purchase the policy for the best price for which they could get it In April, 1895, Diepenbrock died. The plaintiff made the proofs required by the policy, and, when it was not paid, brought this suit against the insurance company to recover the amount due upon it. The company, admitting its liability to some one, paid the money into court, and procured the defendant Louise Diepenbrock, as executrix of Alois, to he substituted as defendant, together with Erdtmann, the plaintiff’s assignee. The executrix answered, claiming the money. At the trial, the foregoing facts were not disputed, and the court gave judgment for the plaintiff. The executrix appeals. She insists, in the first place, that the assignment of the policy by the testator to Erdtmann was as collateral security, and not absolute, with regard to which it is necessary -only to say that there is no evidence upon the subject except the assignment, which, by its terms, purports to be an absolute assignment.

It is said that the assignment of the policy to Erdtmann is not valid because it appeared that he had no insurable interest in the life of Diepenbrock. It is, no doubt, the rule that if one takes out a policy of insurance upon the life of another, in which he has no interest, the policy is a pure wager policy, and void. Ruse v. Insurance Co., 23 N. Y. 516. But, where one takes out a policy on his own life, it is a valid contract, and becomes operative ]ust as soon as it is perfected. It is practically a promise on the part of the insurer to pay a sum of money to the insured upon the happening of a condition. As such it is a valid contract, properly a' subject of sale, and is valid in the hands of any person to whom it is assigned for value. Such is the well-settled law of this state. St. John v. Insurance Co., 2 Duer, 419, affirmed, 13 N. Y. 31, 39; Valton v. Assurance Co., 20 N. Y. 32 ; Olmsted v. Keyes, 85 N. Y. 593. In the courts of the United States a different rule is laid down (Warnock v. Davis, 104 U. S. 775); but in that case, Field, J., delivering the opinion of the court, says that the court of appeals of this state holds that a policy of insurance effected by a person upon his own life is assignable, like an ordinary chose in action, and that the assignee is entitled, upon the death of the assured, to the full sum payable, without regard to the consideration given by him for the assignment or to his possession of any insurable interest in the life of the assured. This is an accurate statement of the rule in this state. Within this rule, the assignment to Erdtmann was valid, and his assignee was entitled to the amount of the policy which had been paid into court by the insurance company.

After this case had been on the day calendar, and called, and marked “Ready,” the counsel for the executrix procured an order for the examination of the defendant Erdtmann before trial, which on motion,' was vacated. The defendant, upon her appeal, seeks to bring up and review the order for the examination of Erdtmann. There is no merit in this part of the appeal. Erdtmann was present and ready to be examined as a witness at the trial, and no reason was shown why the defendant needed any opportunity to examine him in any other place. Besides, he was produced for examination before trial, but defendant declined to examine him. It is apparent that the proceeding to obtain his examination before trial, and to postpone the trial until it should be done, was a mere subterfuge to delay the trial of the action.

It is objected here that the court, at the trial term, erred in denying the motion of defendant to postpone the trial. No good reason was shown why it should have been'granted.

The judgment and the orders should be affixed, with costs to plaintiff.

All concur.


author: INGRAHAM, J.

text:
    Charles W. Brown App’lt, v. Martha M. Wysong, Resp't.

      (Supreme Court, Appellate Division, First Department,

      Filed February 7, 1896.)

    1. Negligence—Icy sidewalk.
    To entitle a person injured in a public highway to recover for injuries sustained because of a defect or obstruction in the highway, it is necessary to allege and prove that the obstruction, which caused the injury, was unlawfully placed in the street by the defendant or his servants, or that it was negligently left by him unguarded.
    3. Pleading—Complaint—Negligence.
    , A complaint, which alleges that the defendant allowed snow and ice t® melt on her premises, the water from which flowed over the adjacent sidewalk, and froze, rendering the walk icy, by reason of which plaintiff was injured, does not state a cause of action against the defendant for the injury.
    Appeal from a judgment, sustaining a demurrer to to the complaint, on the ground that it did not state facts sufficient to constitute a cause of action,
    James A. Ryan, for app’lt; J. Frederic Kernochan, for resp’t,
   INGRAHAM, J.

—The complaint alleges that the defendant is the owner and occupant of tile premises known as “ No. SO East Thirty-Fourth Street,” in the city of New York, and as such owner and occupant, had and has the care and control of the areas, a rea ways, and other appurtenances therewith connected and belonging; that on the 30th day of January, 1895, a sheet of ice partially covered the portion of the sidewalk in said East Thirty-Fourth Street, a public street or highway in front of said premises- and ran or extended from a gate or door leading from an area or areaway of said premises into and upon the said sidewalk, and across the same; that said ice was formed from water proceeding from the melting of a heap or pile of snow or ice, which had been carelessly and negligently left by the defendant or her servants in said area or areaway behind or near said gate or door, and said defendant or her said servants carelessly and negligently allowed the said water to flow or run from said snow or ice to and upon said sidewalk, and the said water freezing thereon formed the aforesaid sheet of ice; that it was the defendant’s duty to keep the said sidewalk in front of said premises in a safe and proper condition for the passage and repassage of travelers along and upon the-same; that the s.aid defendant and her servants so carelessly and negligently conducted themselves in and about the premises that the said sidewalk became and was negligently left in said dangerous and unsafe condition, although said defendant and her said servants had knowledge and due notice thereof; and that on the said 30th day of January, 1895, the plaintiff, while walking on the-said sidewalk in front of said premises, slipped and fell on the ice above mentioned and described, and was injured, for which injury he seeks to recover damages in this action. No statute or ordinance is alleged that makes it the duty of the defendant to keep the sidewalk or the street in a safe condition. The act of the defendant, which it is alleged was negligent, was leaving a pile of ice and snow upon her own premises adjacent to the street and allowing water to flow or run from said snow or ice upon the sidewalk, and that the water freezing thereon caused the street to become unsafe. It is not alleged that the defendant melted the snow or ice upon her premises, or froze the water flowing from such melting snow or ice upon the street.

It is settled that no obligation to repair a street or sidewalk rests, upon the lot owners at common law, but that the duty todo so, if any, arises out of'the statutory obligations imposed by the state or municipality upon them. City of Rochester v. Campbell, 123 N. Y. 412; 34 St. Rep. 77. And, to entitle a person injured in a public highway to recover for injuries sustained because of a defect or obstruction in the highway, it is necessary to allege and prove that the obstruction which caused the injury was unlawfully placed in the street by the defendant or his servants, or that it was negligently left by him unguarded. City of Rochester v. Montgomery, 72 N. Y. 68. This principle is illustrated in the case of McGoldrick v. Railroad Co., 20 N. Y. Supp. 914. There the defendant had constructed a water tank and spout, from which its engines obtained water. The end of this spout when turned off was about four feet from the sidewalk, and water was accustomed to drip or flow therefrom upon occasions when it was used and turned off.

Directly under the end of the spout where it was turned off, and for the purpose of taking off the overflow, the defendant had put in a plank hopper, and a plank sewer extended from there southerly across the Ontario & Western Railroad to the end of the sewer, on James street. Over the top of this hopper there was placed a wire screen. There was evidence in that case tending to show that the opening of this outlet or hopper was, prior to the accident, clogged up by ice or snow, so that the surplus water did , not pass off by the sewer, but did pass onto the sidewalk, and made it dangerously icy. There was no claim that the defendant had any license from the city to use the sidewalk, and the court, in sustaining the judgment in favor of the plaintiff, says:

“The defendant claims that there is no basis for a recovery because the obstruction was upon a sidewalk, and the city, therefore, only liable. It has, however, been held that an owner of adjacent premises, who, without authority, interferes with a sidewalk for his private purposes, and fails to restore it to a safe condition, is liable to any one sustaining injury thereby. In the present case the court charged that the defendant could not be held liable except upon the theory that its failure to provide a place for the water which was allowed to escape from the pipe made the walk more dangerous than it otherwise would have been. This was sufficiently favorable to the defendant.”

Applying this principle, it is clear that the complaint is fatally defective in not alleging that the defendant had created the obstruction upon the sidewalk, or had used the sidewalk in any way for her own purposes. She had simply allowed snow or ice to remain upon her premises. The effect of the sun upon this snow or ice caused it to melt, and the water subsequently froze in the street; but that was the operation of natural causes, for which the defendant was not responsible. We think that the complaint failed to allege any facts that would justify a finding that the defendant had obstructed the street, or was responsible for its dangerous condition.

The demurrer was therefore properly sustained, and the judgment must be affirmed.

All concur.


author: PATTERSON, J.

text:
    Hugh Lamb, Resp’t, v. Augusta Hirschberg et al., App’lts.

      (Supreme Court, Appellate Division, First Department,

      Filed Feb’y 7, 1896.)

    Principal and agent—Authority.
    Where there is notice, direct or implied, to pay to the principal and not to the agent, payment to the latter will nut "bind the principal So held, where defendant bought goods through an agent, with g,ri understanding that the price was to be paid directly to the seller, or to him through the agent, and the goods were shipped by the seller directly to defendant, and defendant’s manager thereafter received a letter from the seller requesting a remittance which, on consultation with the agent, he ednstrued as a demand for payment directly to the principal, and authorized the agent to write to his principal in regard thereto.
    Motion for a new trial on exceptions ordered to be heard in the first instance at the appellate division.
    Samuel Fleischman, for app’lts; Albridge C. Smith, for resp’t.
   PATTERSON, J.

—This cause was tried in the court of common pleas in and for the city and county of New York, and resulted in direction by the trial judge of a verdict for the plaintiff, subject to the opinion of the court at general' term. Erom the record before us, we understand the facts to be that Mr. Bradley, a cloth manufacturer at Leeds, in England, and the assignor of the plaintiff herein, employed one Beaumont, of the city of New York, to make sale of goods in the United States of America and Bañada. In January, 1890, Beaumont called upon the defendants, who were cap manufacturers in the city of New York, and obtained from them an order for goods made and-to be delivered by Mr. Bradley. The order was given under circumstances testified to by Simon S. Hirschberg, who, at the time mentioned, was the manager of the defendants’ business. The only testimony in the case as to what was said and done by Beaumont at the time the order was given comes from the witness Hirschberg. He states that Beaumont called upon him, and wanted an order for some goods, and that, being asked what inducements were offered Beaumont replied that he would give to the defendants, exclusively, all patterns they might order, so that they would have no competitor. This witness knew that Beaumont was the representative of Bradley, and he declares that the terms of the transaction were agreed upon as follows: Pay cash 3-J- per cent, dis-' count, or if you [defendants] want four or five months, it will be net; and if jmu can pay me the money, you can save save the price of exchange.” The witness then declares that he stated to Beaumont that he did not know much about the importing business, to which Beaumont replied: “Pay me in American money and I will send it over in English money.” And so the order was given. It further appears by the record that the goods were shipped by steamship from England in the month of April, 1690. At the same time there was sent an invoice, and according to Bradley’s statement, a letter dated April 23, 1890, in which the invoice was inclosed. In that letter, Mr. Bradley wrote to the defendants, among other things: “Kindly favor me with your remittance on receipt of goods, and oblige.” The witness Ilirschberg testifies that the invoice was received, but that he had no recollection of receiving the letter accompanying the invoice. But he did receive a letter from Bradley under date of August 20, 1890, inclosing a statement of the account between the defendants and Bradley, and which contained the following: “Will defendants you kindly send check for above amount by return or in case you have remitted part, kindly send balance to recover.” The defendants did not pay for the goods on receiving them, and thereupon the contract became a time contract, and according to-the testimony of Mr. Hirschberg, the due date for the payment was October, 1890. On September 22d, Beaumont called upon the defendants, and asked for the payment of the bill to him. He was paid $100 on account. On October 2, 1890, he was paid $50 on account. The balance of the'whole bill, some $500, was remitted by the defendants direct to Bradley, in November, 1890. This action was brought to recover the $150, and the defense set up is payment to Bradley through his agent, Beaumont.

It appeared in evidence that Beaumont was authorized to make-sales of Bradley’s manufactures, but that there was a distinct limitation upon his authority to collect moneys. He was prohibited from collecting unless specially requested so to do by Bradley. It-is not important to consider whether it was error to admit in evidence the written agreement between Bradley and Beaumont showing this limitation, for the transaction between the latter and the-defendants may be considered irrespective of that written agreement. It is plain from the nature of the transaction, and from the testimony given by the witness Hirschberg, that Beaumont was merely a solicitor of orders to be filled bv his principal in England; the goods to be shipped directly from England to the purchaser. Beaumont never had possession of the goods, or any part of them, and was not in any way connected with their delivery. It was also distinctly understood that the purchase price was to be remitted to-England, either directly or through Beaumont. The apparent authority, therefore, which Beaumont possessed, was hot as extensive as claimed by the defendants. They contend that Beaumont is to be treated as a general agent, having power to do everything that the principal might do with reference to the transaction. That Beaumont had the power to arrange all the conditions of the sale, including the price and the time of. delivery, is, doubtless true, because those details would constitute terms of the orders; but wlmt transpired between the witness Hirschberg and himself respecting the remittance would not justify the inference that the purchase price, or any part of it, was to be paid to Beaumont, unless for the distinct purpose of being remitted at once by him to his principal. But even conceding, for the sake of the argument, that all the circumstances surrounding the transaction might originally have justified Hirschberg in believing that he was at liberty to pay money to Beaumont to be forwarded, vet if, before any payments were made he was advised by the principal to make those payments directly to him, he would not be excused for paying contrary to that direction. Evidence appears in the case that such direction was given, and it is furnished by Hirschberg himself. On the 20th of August, 1890, Mr. Bradley wrote from Leeds the letter inclosing the statement, and containing the request for remittance above quoted. The meaning and effect of this letter, and the sense in which Hirschberg understood it, are not to be mistaken, for be testifies that on the day he received, that letter, or the day afterwards, he showed it to Beaumont, and had a conversation with him respecting it, and told him of the agreement he had made, and thereupon Beaumont said: “Leave that to me, and I will write to them and it will be all right.” Hothing was paid until long after this conversation. It therefore appears that Hirschberg knew that direct payment was requii’ed, and that he left it to Beaumont to write to Mr. Bradley concerning the subject. When he subsequently paid the two amounts on account to Beaumont, without waiting to hear further from Bradley, he did it at the defendants’ risk, and. without authority from the plaintiff.

Our attention has been called to various authorities which are claimed by the defendants to sustain their contention as co Beaumont’s relation to the transaction. Scott v. Hopkins, 2 St. Rep. 324, is especially relied on as determining the precise question involved here. Ho authority is cited in the opinion of the court in that case, but, from the facts as they are there made to appear, it would seem that Hopkins made a contract to buy a barrel of coffee from Scott’s traveling salesman. All the terms of the contract were settled, and the coffee, was delivered without any bill therefor having been sent by Scott, and without any notification whatever from Scott as to the manner of payment or requiring it to be made to him. The salesman subsequently collected the amount due, and the general term held that there was apparent authority in the salesman to receive the price. This decision cannot be regarded as laying down á general rule of law, and it appears to be contrary to Basset v. Lederer, 3 Thomp. & C. 671, and Gallup v. Lederer, Id. 710. Putnam v. French, 53 Vt. 402, is also cited. In that case it was held that a traveling salesman authorized to give credit has implied authority to receive payment, and that a purchaser would not be bound by constructive notice to the contrary where the words “payable at office” appear on the bill rendered. But in that case the court laid particular strees upon a custom, proved as existing in New England, and affecting transactions of that character, to make payment either to the principal or agent. Trainer v. Morison, 78 Me. 160, also cited by the defendants, holds that an agent authorized to sell by sample may collect the hill where there is no prohibition known to the customer, and that a notice not prominently printed on the bill requiring payments to be made at the office of the seller does not affect the purchaser. But that case does not apply here, for the reason that Bradley’s requirement contained in the letter of August 20, 1890, was construed by the defendants’ manager himself as a notice that payment was to be made direct to Bradley, and was the subject of a conversation between him and Beaumont, and the original arrangement contemplated remitting the purchase price to Bradley either directly or through Beaumont. If there is notice, direct or implied, to pay to a principal, and therefore not to the agent, payment to the latter will not bind the principal, as has been held in the case of brokers. Higgins v. Moore, 34 N. Y. 417: Wright v. Cabot, 89 N. Y. 570; Bassett v. Lederer, 3 Thomp. & C. 671; Gallup v. Lederer, Id. 710. We are therefore of the opinion, under the special facts of this case, that the payments to Beaumont were insufficient to discharge the liability of the defendants to the plaintiff for that much of their indebtednéss.

Exceptions appear in the record to a refusal of the court to grant an application for an adjournment of the trial on account of the absence of Beaumont. This exception does not call for any' consideration, for there was no legal reason presented to the court which should-have impelled it to postpone the trial, and so the objections to questions put to Bradley respecting Beaumont’s authority to collect are not material in the view we have taken of the relations of the parties and of the main question involved.

The exceptions are overruled, and judgment ordered upon the verdict, with costs.

All concur.


text:
    Henry C. Valentine, Resp’t, v. Warren M. Healey et al., App’lts.

      (Supreme Court, Appellate Division, First Department,

      Filed Feb’y 7, 1896.)

    1. Pleadings—Amendment.
    The allowance or disallowance of an amendment to 'the answer, in an action for rent, by striking out an admission that defendant went into possession under the lease, is a matterpn the discretion of the trial court.
    2. Landlord and tenant—Possession.
    A lessee’s possession after taking a lease is under it, though he was theretofore in possession. ,
    3. Tenants in common—Lease—Holding over.
    Where tenants in common lease their property to a firm of which one of them is a member, and the lease provides that rent shall be payable to each of the lessors in proportion to his interest in the property, the legal effect of a holding over by the firm cannot he changed, as regards the rights of the lessor not in the firm, by the other giving the firm permission before the expiration of the term, to remain in possession for a short time after such expiration, upon paying pro rata rent for the period of such occupancy.
    Appeal from a judgment on a verdict directed in favor of plaintiff.
    The action was brought to recover rent under a lease. The real property leased was owned by plaintiff and defendant Healey as tenants in common. May 30, 1891, these owners joined in a lease of the property to defendants, who were copartners, and one of whom, Healey, was a part owner of the property. The lease was for one year, at a yearly -rent of $8,500, payable quarterly, three-fourths to the plaintiff and one-fourth to defendant, with the privilege to the lessees of a further term of two years, at $7,000 a on their giving notice in writing to each of the lessors, and signing and executing agreements with such lessors on or before February 1, 1892. The lessors covenanted- to pay the rent to plaintiff and defendant Healey, and the assigns of each, and at the expiration of the term to quit and surrender the possession of the property. The lease contained other provisions usually in leases, which do not appear to be important here. The complaint alleged, and the answer admitted, that the defendants went into possession of the property under the lease May 30, 1891, and remained in possession pursuant to such agreement until May 30, 1892, and that they continued and remained in possession of the property after the expiration of the term of one year. The plaintiff proved that the defendant occupied the property for the purpose of the manufacture and repair of carriages, and that their occupancy was substantially the same after as before May 30, 1892. The defendants moved to amend their answer by striking out the admission that they went into possession under the lease, and by inserting an allegation putting that fact in issue. The evidence showed that they were in possession before the lease was made. This motion was denied, and the defendants proved, and offered in evidence, two letters, constituting the correspondence between the defendant Healey and his firm, hearing date April 29, 1892, wherein the firm notified Healey that they had not exercised the option, and would not renew the lease, but would like to continued occupying the property a few weeks after the expiration of the term of one year, paying pro rata rent for such use and occupation. Healey replied that they were at liberty to occupy the property at a pro rata rent for the period of such occupancy, and that this privilege was accorded to them only with the understanding and agreement that such occupancy should be terminated on a week’s notice from either party, so as to permit a lease for the full year to other parties, if desired. These letter excluded, under the objection that the immaterial, irrelevant, and incompetent, and the defendants excepted. Defendants also made a motion for a nonsuit, and for a direction of a verdict for the defendants. Both these motions were denied, ami defendants excepted. On motion of the plaintiff, a verdict was ordered for the plaintiff for the amount of his share of the rent, and the defendants excepted. From the judgment entered on this verdict, this appeal is taken.
    Robert Thorne, for app’lts; William Allen Butler, for resp’t.
   WILLIAMS, J.

—This case has twice been tried. On the former trial the complaint was dismissed, on the ground that Healey being a part owner of the property, it was to be presumed that he remained in possessien after the term of one year with his partner, as part owner, and not under the lease, and therefore, remaining in possession did not entitle the plaintiff to treat the lease as renewed for another year. Upon a motion for a new trial on a case and exceptions, ordered to be heard in the first instance at the general term, the exceptions were sustained, and a new trial ordered. 86 Hun, 259; 66 St. Rep. 802. We see no reason for dissenting from the conclusion there arrived at.

There remains only for us to consider the questions as to the proposed amendment of the answer, and the exclusion of the correspondence between the defendant Healey and his firm. The allowance or disallowance of the amendment to the answer was a matter in the discretion of the trial court, and it does not seem to us there was any abuse of such discretion. Whether the defendants were in possession of the property before the least was made was immaterial. They made.the lease, and from that time on, it being a lease of the whole property, they assumed to be, and were in possession under the lease, and that-alone, during the term of one year. The least established the relation of landlord and tenant, and they could not be in possession under any other claim during the term of the lease. They admitted this in their answer, and such admission stood, until after the decision of the general term, and an amendment on the second trial was very properly denied. The correspondence between the defendant Healey and his firm was properly excluded. It was immaterial, and if admitted would not have changed the result. The firm letter to Healey, was, in effect, a notice that, the lessees would not renew the lease, and a statement that they desired to remain in the occupancy of the property a few weeks after the expiration of the term of one year, paying rent for the.actual time the occupancy continued. The notice that the lessees would not renew the lease, even if it had been given to both lessors, would not, of itself, have avoided the legal effect of the holding over beyond the term. Schuyler v. Smith, 51 N. Y. 309 ; Haynes v. Aldrich, 133 id. 287 ; 45 St. Rep. 243. The letter of Healey was a consent that the lessees might hold over, as desired by them, and if he had power to bind the plaintiff by such consent, then the ordinary legal effect of the holding over was avoided, and this action could not be maintained. It is not claimed that the plaintiff had any knowledge of this correspondence. The lease; by its terms, made the'rent payable to éach of the tenants in common, according to their respective interests in the property. Healey was not authorized to act for plaintiff, as his agent or otherwise, and the consent could not be operative as plaintiff’s consent in any way. The only theory upon which it can be claimed that this consent oí Healey’s avoided the legal effect of a holding over is that he was a tenant in common with plaintiff, as owner of the property, and, being such tenant in common, he could give his firm the right, outside of the lease, to remain in the occupancy of the property. At the time this consent was given, however, he was, as we have seen, not in possession or occupancy as owner, but merely as tenant under the lease, as a member of his firm. Such was the relation assumed by him and his firm iii taking the lease, and they could not change this relation during the term so as to affect the plaintiff’s rights under the lease, without his knowledge or consent. It cannot be said that Healey, by his consent given before the expiration of the term, could avoid the legal effect of the holding over, when we hold that the legal effect of the holding over was not avoided by reason of Healey’s being ■a member of the firm, lessees, who held over.

We are of the opinion that the judgment should be affirmed, with costs.

All concur.


author: PER CURIAM.

text:
    Martin McMahon, Resp’t, v. Mayor, Aldermen and Commonalty of the City of New York, App’lt.

      (Supreme Court, Appellate Division, First Department,

      Filed February 7, 1896.)

    Municipal corporation's—Notice to sue.
    Notice of an intention to sue a city for personal injuries, under section 1, chapter 572 of 1886, is sufficiently filed by being delivered in the office of the city counsel to one who is acting for an assistant in making the examination of the plaintiff regarding the same claim.
    Appeal from a judgment in favor of plaintiff.
    T. Connoly, for app’lt; A. H. Smith, for resp’t.
   PER CURIAM.

—The only question presented upon this appeal is whether the notice required by the statute was duly filed with the corporation counsel. We think, under the peculiar circumstances of this case, that there was a sufficient filing. The gentleman tp whom the notice was delivered was acting at the time as assistant to one of the assistants of the corporation counsel. He was intrusted with the important duty of examining the plaintiff with regard to the accident. He was himself an attorney at law. He was in the corporation counsel’s office at the time of the service, actually engaged in the examination of the plaintiff with regard to ■the very claim which is the subject of this action. It was entirely natural that the notice should be delivered to him at such a time, in such a place, and under such circumstances. The question whether the notice was then and there actually delivered to him was fairly submitted to the jury, and we cannot disturb their verdict. Upon the facts thus found, we think the notice was filed, within the letter and the spirit of the law.

The judgment should be affirmed, with costs.


author: BROWN, P. J.

text:
    Bernard Fresenborg, Resp’t, v. Hugh J. Reilly, App’lt.

      (Supreme Court, Appellate Division, Second Department,

      Filed Feb. 11, 1896.)
    1. Pleading—Mortgage—Foreclosure.
    Where the complaint in an action to foreclose a mortgage given by an indorser of a note before delivery, alleges that the mortgagor expressly covenanted to pay the note, an allegation that the indorsement was made to give credit to the maker, is unnecessary.
    2. Judgment—Foreclosure suit.
    In the absence of a provision in the judgment in such action, providing: that the mortgagor shall be liable for any deficiency arising upon the sale of the mortgaged property, he has no cause for an appeal.
    Appeal from a judgment in favor of plaintiff.
    Browne & Sheehan, for app’lt; George H. Finck, for resp’t.
   BROWN, P. J.

—This appeal is from a final judgment entered in an action to foreclose a mortgage upon real estate, and the notice-of appeal presents for review an intermediate order overruling a, demurrer taken to the complaint, on the ground that it does not state facts sufficient to constitute a cause of action. The complaint alleges: (1) The making of a promissory note by Adeline Reilly, payable to the order of the plaintiff, which was, before its delivery, indorsed by the appellant, and, so indorsed, delivered, for a good consideration, to the plaintiff. (2) That thereafter the appellant, for the purpose of securing the payment of said note, duly execued and delivered to the plaintiff a mortgage upon the real estate-described in the complaint. That the said mortgage contained the following provison: “Provided, always, * * * .that the said party of the first part will pay the indebtedness as hereinbefore provided, and, if default be made in the payment of any part thereof, the party of the second part shall have power to self the premises herein described, according to law.” It further contained allegations of default in the payment of the note by the maker, and demand the payment thereof from the appellant, and refusal. The criticism made upon the complaint by the counsel for the appellent is that it was necessary for the plaintiff te allege that the appellant indorsed the" note in question for the purpose of lending credit to the maker, and that, in the absence of such an allegation, the legal presumption arising from the face of the note was that the appellant was a second endorser. We deem it unnecessary to express any opinion upon this question. Whether parol evidence would have been admissible to show the real purpose and intent of the indorser, in the' absence of an allegation to that effect, need not now be decided.

The complaint before ús contains an allegation that the appellant in the mortgage, expressly covenanted to pay the note. There was, consequently, a good cause of action pleaded, entirely outside of any question of liablity arising upon the note. But the judgment appealed from contains no provision adjudging the appellant to be personally liable for the debt, and there can be,. of course, no question but that the mortgage was enforceable against the property. In the absence of a provision in the judgment providing that the appellant shall be liable for any deficiency-arising from the sale of the mortgaged property, I am unable to . perceive what cause he has to appeal.

The judgment and order must be affirmed, with costs to be paid by the appellant personally.

All concur.


text:
    City of Philadelphia, Pl’ff, v. Postal Telegraph Cable Company, Resp’t. R. S. Guernsey, App’lt.

      (Supreme Court, Appellate Division, First Department,

      Filed Febr’y 7, 1896.)

    1. Attorney and client—Removal of attorney.
    Upon a motion 'to require an attorney to dissolve his connection with his client in all actions in which he is acting for him as attorney and give up the papers in those actions upon which he has a lien for his services, it is
    " error to order him to do so without providing for the settlement of all matters Between them and for fixing the amount due him and for its payment.
    2. Same—Reference.
    In such a case, the court may refer the matter to a referee, to fix the value of the attorney's fees in such other actions.
    Appeal from an order made at special term, requiring the attorney for defendant to consent to the substitution of another attorney for defendant in all actions in which he represents defendant, and to deliver up on demand papers in regard thereto.
    R S. Guernsey, for app’lt; W. W. Cook, for resp’t.
   RUMSEY, J.

—As Guernsey refused to take any steps or consent to a substitution in the action in which this motion is made* it is quite probable that, had the order simply directed a substitution in that action, this court would not have interfered with it to modify its terms. Tuck v. Manning, 53 Hun, 455; 25 St. Rep. 130. But it went further, and required Guernsey to dissolve his connection with the defendant in all actions in which he was attorney, and give up the papers in those actions upon which he had a lien for his services. McKibbel v. Nafis, 76 Hun, 344 ; 59 St. Rep. 101. When the court undertook to do that, it should have provided for the settlement of all matters between the attorney and his client, and for fixing the amount due to him, and for its payment, because he would have lost his lien, and thus have been deprived of a right which, as to these cases at least, he had done nothing to forfeit it. Id. Where the client has made a summary application to remove his attorney, this court has the power to send it to a referee to fix his compensation. Ackerman v. Ackerman, 14 Abb. Prac. 230; Dimick v. Cooley, 3 Civ. Proc. R. 141, 151. This is a proper case for the exercise of that power.

The order should be modified by sending it to a referee to ascertain the amount to be paid by defendant to the attorney for his services in the several actions, and to report to the court the testimony, and his opinion thereon, without costs of appeal to either party. If the parties cannot agree upon the referee, he will be appointed upon the settlement of this order. '

All concur.


text:
    John Mahony, Resp’t, v. Herman Clark et al., App’lts.

      (Supreme Court, Appellate Division, Second Department,

      Filed Feb’ry 4, 1896.)

    1. Appeal—Chang® of theory.
    Where there can be but one inference from plaintiff’s testimony and that is, that a salary was payable monthly, on the regular pay days, and the jury have adopted on the trial his version of the contract made with the defendant, he cannot be permitted on appeal to claim that the terms of payment were otherwise, and that his salary was not due or payable till the end of the work.
    $. Same—Limitation—Contract.
    In such case, the plaintiff is entitled to recover only such amount as fell due within six years prior to the commencement of the action.
    Appeal from a judgment in favor of plaintiff, and from an order denying a motion for a new trial.
    William W. Niles, Jr., for app’lts; Franklin Pierce, for resp’t.
   BROWN, P. J.

—The complaint in this action sets forth five separate causes of action, upon two of which the plaintiff recovered. There was ample testimony to support' the conclusion of the jury, and we find no reason to disturb the verdict on the facts. The statute of limitations was pleaded as a defense to all the. causes of action alleged in the complaint. The first cause of action was for services performed by the plaintiff for the defendants in superintending the excavation of a cut oh a railroad in process ■of construction near Oyster Bay, in Queens county, between June 9 and November 1, 1888, which plaintiff claimed were rendered under a contract whereby defendants agreed to pay him therefor $100 per month. This action was commenced on August 20, 1894; and, at the close of the testimony, the defendants moved to ■dismiss the complaint as to those items which were barred by the statute of limitations. The court thereupon dismissed two claims made by the plaintiff,—one for the use of cars prior to August 20, 1888, and the other for money loaned to the defendants. To this ruling the defendants took an exception. The record does not show that the defendants’ counsel at that time called the court’s attention to the specific..claim now made that a recovery for services rendered prior to August 20, .1888, was barred by the statute of limitations; but, at the close, of the charge, exception was taken to the instruction given to the jury that, if they were satisfied that there was an entire contract for the completion of the whole work, then plaintiff was entitled to recover his whole wages from the commencement of the employment, and counsel then stated to the court that upon that point his claim was that there was no evidence to go to the jury. We are therefore of the opinion that the point now made by the appellants that all claims for services rendered more than six years before the commencement of the action were barred by limitation was raised at the trial, and is available on this appeal. We see no answer to the appellants’ proposition upon this branch of the case.

The disagreement between the parties to the action was whether the services were rendered under a contract of employment whereby plaintiff was to be paid the sum of $100 a month, or whether they were rendered under a contract whereby plaintiff agreed to excavate the material for a specified price per cubic yard. The jury adopted the plaintiff’s version of the contract, and his is the only testimony in the case relating to the terms thereof. Upon* the subject of payment the plaintiff testified that his salary was to be $100 per month, and expenses; that July 20th was pay day for the month of June; that on that day he called upon defendant Dwyer for his-pay, and Dwyer told him he was short of funds, and asked him .for a loan of $200, which he then made to him; that on the next pay day, in August, he called on Dwyer again for his pay, and that again he was told by Dwyer that he was short of funds, and that he must wait until the next month; that on the September pay day he called again at defendant’s office for his pay; that Dwyer was absent; that he saw his bookkeeper, who gave him a statement of the work; and after that he did not see Dwyer until the work was completed. George W. Andrews, who was the defendant’s bookkeeper, was called as a witness for the plaintiff. He corroborated the plaintiff as to the conversation with Dwyer on the July pay day, and testified to a subsequent conversation with Dwyer, when the latter said he would settle with the plaintiff at the end of the work. There is no testimony, however, that plaintiff was present when Dwyer made that statement to Andrews, or that he was ever informed of it or acquiesced in it. There can be but one inference froin plaintiff’s testimony, and that is that his salary was payable monthly, on the regular pay days; and having so testified at the trial, and the jury having adopted his version of the contract made with the defendant, he cannot be permitted now to claim that the terms of payment were otherwise, and that his salary was not due or payable until the end of the work. His action in attending at the defendant’s office on the regular monthly pay days, and demanding his monthly salary, is absolutely inconsistent with the theory that the salary was not due until the work was completed. The verdict for the whole salary cannot therefore stand. The plaintiff is entitled to recover only such amount as fell due within six years prior to the commencement of the action. Inasmuch, however, as he testified that the regular pay day for the July work was on August 22, and the action was commenced on August 20, 1894, the effect of the application of the statute of limitations to the claim is to bar a recovery for the June work only, which amounts to $75.

We have examined the other exceptions in the case, but none of them require notice.

The judgment must be reversed, and a new trial granted, with costs to abide the event, unless the plaintiff stipulates within twenty days to deduct from the verdict the sum of $75, and interest thereon from November 1, 1888, and five per cent, allowance thereon. If such stipulation is filed, the judgment so modified is affirmed, without costs of appeal.'

All concur.


author: BARTLETT, J.

text:
    In the Matter of the Judicial Settlement of the Accounts of Robert Seabury, as Executor, etc., of Maryette Matthews, Deceased.

      (Supreme Court, Appellate Division, Second Department,

      Filed Feb’ry 4, 1896.)

    1. Evidence—Presumptions—Legitimacy.
    The burden of proving legitimacy is on the party asserting it.
    2. Same.
    Testimony as to declarations in respect to the birth and parentage of a party, made by persons now deceased, are admissible in regard to matters of pedigree, where they emanate from deceased persons connected by blood or marriage with the family of the persons whose pedigree is under investigation.
    3. Same.
    The refusal of the surrogate to receive testimony under a formal offer “ to prove by the neighbors that the claimant was illegitimate,” is not error.
    Appeal from a decree in so far as it directs the executor to divide a certain portion of the estate into fourteen equal parts, instead of eleven equal parts, and to pay one of such parts to Hiram Smith, one to Ira Smith, and one to Thomas Smith, and also from the award to them of $90 costs.
    Horace Secor, Jr., for app’lts; Jesse Johnson, for resp’ts Smith and others; John Lyon, for resp’t executor.
   BARTLETT, J.

—The next of kin who have appealed in this matter desire to exclude the respondents Hiram, Ira and Thomas Smith from any share in .the estate of Maryette Matthews, on the ground that their mother was illegitimate. The petition of the executor, by which the proceeding was commenced, alleged that Hiram Smith, Ira Smith, and Thomas Smith, all residing in the town of Hempstead, Queens county, N. Y., where the children of Harriet Smith, a deceased half-sister of testatrix This allegation was not controverted in the objections filed in behalf of the appellants ; that is to say, they did not dispute the fact that the respondents were the children of a half-sisterof Maryette Matthews, but they did deny that the said Hiram, Ira, and Thomas Smith were “ in any way legally related to said decedent, or entitled to any share of her estate as next of kin.” At the beginning of the hearing before the acting surrogate, he ruled that the burden of establishing this objection was upon the appellants, “ and not upon the executor, nor upon Hiram, Ira, and Thomas Smith,” to which ruling the counsel for the appellants took an exception. As I understand the record,' this was merely equivalent to holding that there was a presumption of legitimacy, which would prevail in the absence of evidence to oppose it, and in that view of the law the acting surrogate was correct. That the relation of parent and child existed between Harriet Smith, a half-sister of Maryette Matthews, and each of the respondents was not questioned. Such relation was presumed to be lawful. “ That a person born in a civilized nation,” says Mr. Wharton, “is legitimate, is a presumption of law, to be binding until rebutted.” 2 Whart. Ev. (Ind. ed.) § 1298. “ The law presumes morality, and' not immorality ; marriage, and not concubinage; legitimacy, and not bastardy,” said ANDREWS, J., in Hynes v. McDermott, 91 N. Y. 451, 459. And, in the old court of appeals, Judge DAVIES, in delivering the prevailing opinion in the well-known case of Caujolle v. Ferrie, 23 N. Y. 90, 108, used this language, not only in reference to the presumption, but the cogency of the evidence needed to overcome it:-

“ I have been unable to find any authority in this state, on a question of legitimacy, which requires the heir and acknowledged and conceded child to prove an act of marriage as a requisite to maintain his legitimacy. The presumption and the charity of the law are in his favor; and those who wish to bastardize him must make out the fact by clear and irrefragable proof.”

The evidence offered by the appellents to establish the alleged illegitimacy of the mother of the respondents consisted of testimony as to declarations in respect to the birth and parentage of Harriet Smith made by persons now deceased. This proof was received under the-rule which makes such declarations admissible in regard to matters of pedigree, where they emanate from deceased persons connected by blood or marriage with the family of the person whose pedigree is under investigation. 1 Whart. Ev. (Ind. ed.) §§ 208, 216; Eisenlord v. Clum, 126 N. Y. 552, 565 ; 38 St. Rep. 446. Three of the four witnesses called to prove declarations of this kind were objecting parties in the present prqceeding, and directly interested in the result. The testimony of the other witness (John H. Raynor), as set out in the record, is confused and contradictory. The declarations appear to have been made between eighteen and thirty-five years ago. On the other hand, there was testimony from Mr. Seabury, the executor, indicating that Maryette Matthews, the testatrix, in her life time, recognized the respondents herein as persons who were lawfully related to her. Upon all the evidence, I think the acting surrogate was quite right in holding that the presumption of Harriet Smith’s legitimacy had not been overcome.

The only other question presented by this appeal arises upon an exception to the refusal of the acting surrogate to receive testimony under a formal offer “ to prove by the neighbors that Harriet Smith was illegitimate,” which offer was accompanied by a statement from the learned counsel for the objectors that he was not prepared to say that such testimony was admissible. As I understand the offer, his doubts were well founded, and there was no error in thei ruling.

The decree, so far as appealed from, should be affirmed, with costs to the respondents Smith. All concur.


author: CULLEN, J.

text:
    August Muller et al., App’lts, v. Kasper Wahler, Resp’t.

      (Supreme Court, Appellate Division, Second Department,

      Filed Feb. 4, 1896.)

    Parties—New defendants.
    Where, in an action to declare that plaintiffs were not personally liable on an agreement signed by them as individuals, and plaintiffs' only interest in the controversy was to relieve themselves from liability, they are not entitled to an order bringing in, as the defendant, the association of which they were officers.
    Appeal from an order, denying a motion by plaintiffs to bring in the Wyckoff Heights Improvement Association for Queens county, as a party defendant.
    M. Hallheimer, for app’lt; Walter G. Rooney, for resp’t.
   CULLEN, J.

— This is an appeal from an order made by' the city court of Brooklyn denying plaintiffs’ motion to bring in the Wyckoff Heights Improvement Association for Queens County as a party defendant to the action. The complaint charged that the plaintiffs had signed their names as individuals to an agreement purporting to be made between the association and the defendant, while it was in truth intended that they should sign only as officers of the association; that defendant had brought an action against them on such agreement; and demanded as relief that the contract be reformed, and that it be adjudged and declared that' the plaintiffs did not enter into said contract individually. The defendant answered, denying no allegation of the complaint, but pleading only the pendency of another action.

It may be conceded that the plaintiffs should originally have made the association a party defendant. It may also be that the defendant could insist that no judgment should be made relieving the plaintiffs from liability on the contract unless at the same time it imposed such liability on the association. But the defendant has taken no such objection. He does not complain of the absence of the society as a party to the action. In fact, he admits the allegation that the plaintiffs simply intended to sign it,'not individually, but as officers. The only interest that the plaintiffs have in this controversy is to clear their own skirts from liability on the contract, not to impose the obligations of the contract on any one else. Therefore, as the defendant does not complain, the plaintiffs have no right to bring in the society.

The order appealed from should be affirmed, with costs.

. All concur.


author: CULLEN, J. BARTLETT, J.

text:
    Amzi L. Barber, App'lt, v. George H. Kendall Resp't.

      (Supreme Court, Appellate Division, Second Department,

      Filed February 4, 1896.)

    1. Former adjudication—Matters determined.
    The estoppel of a former judgment extends to every material matter within the issues which are expressly litigated and determined, and also to those matters which, though not expressly determined, are comprehended and involved in the thing expressly stated and decided, whether they were, or were not, actually litigated or considered.
    2. Same.
    Where a vendor, by the terms of his contract, agreed to pay off a mortgage on the land conveyed, and, on his failure to do so, the purchaser sued for specific performance of the agreement, and the vendor answered, alleging that the contract was procured by fraud of the purchaser, and asked that it be canceled, hut he did not appear on the hearing of the case and judgment was rendered against him that he perform his contract and pay off the mortgage, which iie subsequently did, the issue of fraud was not tried or determined in that action for the reason that the defendant therein failed to appear on the trial.
    3. Contract—Rescission.
    If a party defrauded elects to rescind a contract, he must do so promptly after discovering the fraud, and if, with knowledge of the fraud, he im any measure carries out the contract or received a benefit under it, Ms. election is made and his right to rescind is gone.
    4. Same.
    In such- case, it is as much his duty to resist compulsory compliance with the terms of the contract as it is to refrain from voluntary compliance.
    5. Estoppel—Fraud.
    The fact that the vendor in such case suffers the judgment to be taken against him without appearing on the trial and afterwards performs the-judgment, waives the alleged fraud on the part of the purchaser in procuring the contract and estops him from afterwards suing the purchaser foil a recission of it.
    Appeal from, a judgment dismissing the complaint on th& merits.
    Niles & Johnson, for app’it; Tyler, Pratt & Hibbard, for resp’t^
   CULLEN, J.

—This is an appeal from a judgment of the special term dismissing the plaintiff’s complaint on the merits. The action is to rescind a contract, under which the plaintiff conveyed to-the defendant certain real estate, and to compel a reconveyance bv the defendant to the plaintiff, on the allegation that the plaintiff was induced to enter into the contract by false and fraudulent representations made by the defendant. The defendant answered, denying the fraud, and also set up, as a bar to the action, a judgment between the parties recovered by the plaintiff under the following circumstances: By the contract between the parties, made September 27, 1890, the plaintiff agreed to pay off and discharge, on or before July 1, 1893, a mortgage on the lands conveyed by him for the sum of $8,000. The plaintiff failed to pay off this mortgage, and in December, 1893, the defendant brought-an action against the plaintiff, to compel the latter to specifically • perform his covenant in this respect. The plaintiff interposed an answer, admitting the agreement, but charging that the contract ■was procured by fraudulent representations on the part of the defendant, and praying, as relief, that the contract be decreed fraudulent and void, and be canceled. The cause was brought on for hearing on the issues, and, the defendant in that case failing to appear, judgment was entered that he specifically perform the contract and pay off the mortgage, with which judgment he subsequently complied. When the present action came on for trial, to save time, the parties agreed that the court should first determine whether the action was barred, or could be maintained, and if the court held that it was barred, the trial should then proceed. On this issue the court decided in favor of the defendant, and the judgment appealed from resulted from that decision. The respondent alleged in his answer, and maintains on this appeal, that the judgment first recovered is a conclusive adjudication on the issues of fact as to the fraud. We think this proposition incorrect. The general rule to the estoppe of a former adj udication is well settled, and, so far as it is relevant to this case, is probably best stated in Pray v. Hegeman, 98 N. Y. 351 : “The estoppel of a former judgment extends to every material matter within the issues which was expressly litigated and determined, and also to those matters which, although not expressly determined, are comprehended and involved in the thing expressly stated and decided, whether they were or were not actually litigated or considered, -x- * * Whatever is expressly implied in the former decision is, far the purpose of the estoppel, deem to have been actually decided.” In the first suit between these parties, the issue of -fraud was not tried or determined, for the plaintiff here failed to appear on the trial. The question, then, is whether the defendant’s recovery necessarily negatived the plaintiff’s claim of fraud. Fraud, it is said, vitiates all contracts. Still, it does not make, them void, but simply voidable, at the election of the party defrauded. The recovery of the first judgment necessarily affirmed the existence of the contract sued on, and also that the contract was, at the time of rendering the judgment, a valid obligation binding upon both parties. This, hower, is entirely consistent with the fact that the contract was induced by the defendant’s fraud. “A contract remains a contract until it comes to an end. In the form of a truism, it is binding throughout its life. It is binding, then, until it is rescinded, unless it is terminated in some other way. * * * But fraud would not prevent its coming into existence, and, of caurse, could not terminate it; that is, it is the rescission of the contract, and frand is only the ground of the rescission, ” Bigelow, Fraud, 73. So, also, it is elementary law that, in case of a contract induced by fraud, the party defrauded has his election of remedies, and may either affirm the contract, and bring his action for damages, or may rescind the contract. Till rescinded, the contract is in full force and effect. Nor do we think that the fact that the plaintiff, in his defense in the first action, alleged fraud, increased the effect of the judgment His defense practically was an equitable counterclaim to rescind the contract, and could have been the subject of an affirmative action on his part. His failure to appear on the trial could have no greater effect than the dismissal of his complaint for the same reason in his own suit in equity (Freem. Judgm. § 270), or his total failure to defend the action.

Though the estoppel of the prior judgment is stated in the decision to be the ground of the dismissal of the plaintiff’s complaint, a reference to the opinion of the learned trial judge will show that he placed it on no such ground. He substantially held that the plaintiff, having asserted in his answer the same charges of fraud that are now made in his complaint, by thereafter acquiescing in that judgment affirmed the contract, and lost his right to subsequently rescind it. We are somewhat embarrassed in the disposition of this question, from the fact that the decision signed by the justice does not proceed on that ground, probably from the inadvertence of the attorney in drawing it, and also by the terms of the agreement under which the .case was tried in piecemeal, and which are, possibly, open to differences of construction. We think, however, it was the intention of the parties that, if the first action and the judgment therein would, for any reason, whether as an estoppel or otherwise, preclude the plaintiff from successfully maintaining the action, then judgment should be rendered for the ■defendant, without further proof. In our judgment, the position taken by the trial judge in his opinion was correct. If a party defrauded elects to rescind a contract, he must do so promptly after discovering the fraud, and, if, with knowledge of the fraud, he in any measure carries out the contract, or receives a benefit under it, his election is made, and his right to rescind is gone. Cobb v. Hatfield, 46 N. Y. 533. “The party defrauded, by performing his part of the contract, with a knowledge of the fraud, is deemed to have ratified it, and is precluded thereby from subsequently dis-affirming it,” though still retaining his right to damages for the fraud. Whitney v. Allaire, 4 Denio, 554. Hence, if the plaintiff, after knowledge of the fraud, had voluntarily paid off the mortgage," he would have unquestionably lost his right to rescind. While we can find no direct authority in point, we cannot see why, on principle, it was not as much his duty to resist compulsory compliance with the terms of the contract as it was to refrain from voluntary compliance. His duty, on discovering the fraud, was to repudiate the contract when and wherever it might be asserted, whether in hostile litigations against him, or in proceedings on his own behalf. We do not see that any oral evidence could have been given which would abrogate the election to affirm the contract, which the pleadings in the earlier action,, showing plaintiff knew of the fraud and the judgment therein, necessarily imported, and therefore the judgment appealed from should be affirmed, with 'Costs

BROWN) P. J., and PRATT and HATCH, JJ., concur,

BARTLETT, J.

(dissenting). —I agree with Judge CULLEN, that the judgment in the former action was not a bar to the maintenance of the present suit. It seems to me, however, that the plaintiff’s acquiescence in that judgment is not so clearly established as conclusively to deprive him of the right to rescind. While he complied with the judgment, he may be able to show that he did so under circumstances of compulsion which prevent that compliance from being in any real sense an election on his part. I think a new trial should be granted.


text:
    Annie Nilan, as Administratrix, etc., App’lt, v. Richmond County Gaslight Company, Resp’t.

      (Supreme Court, Appellate Division, Second Department,

      Filed Feb. 4, 1896.)

    Negligence—Excavation in stbeet.
    Negligence cannot be predicated of an act such as simply shoveling soil out of a trench, in the course of work being .performed on a public highway, merely because horses may he caused thereby to shy.
    Appeal from a judgment, dismissing the complaint, and also from an order denying a motion to set aside such dismissal and grant a new trial.
    Charles A. B. Pratt, for app’lt; Sidney F. Rawson, for resp’t.
   BARTLETT, J.

—This action was brought to recover damages for the alleged negligence of the defendant corporation in so carelessly excavating a trench upon a highway in Richmond county as to cause the plaintiff’s husband to be thrown from a wagon in which he was riding, and suffer injuries which resulted in his-death. The accident occurred on Central avenue, in the town of Castleton, on the afternoon of December 31, 1894. The defendant through its servants and agents, was engaged in constructing a trench across a portion of Central avenue, in which to lay a gas-service pipe. This trench did not extend the entire width of the street, but left sufficient space for the passage of the wagon in which the plaintiff rode. This wagon was a beer truck, drawn by four horses. It was capable of carrying 94 quarter kegs of beer, and was laden with a considerable number at the time. The driver testifies that, as he approached the trench, he did not see the men working in it, as he could not see how deep it was until he came right opposite, when it seemed to be from 5J to 6 feet deep. Coming down the avenue, he had on the brakes as tight as they could be held, and he had his horses under full control when he passed the trench. The manner in which the accident occurred is thus described by this witness:

“In passing'the trench my lead horses were right opposite the trench, when a man in the trench threw out some earth, which made my lead horses shy, and they swerved over to the left side of the sidewalk, and I pulled them over again, and in pulling them over, the rear part of the wagon slued against the curb, and. the first tiling I knew I was thrown over the horses, and the kegs and everything came down, and Hilan was thrown over.”

The driver further testified that the space over which he tried to drive slanted towards the curb, having a fall of about six inches; that his horses were halfway past the excavation when they shied; that the horses were under full control, and did not run at all, until he was thrown off; and that after the leaders shied he still had them under control. It is plain, from this statement of the facts (which seems to me as favorable to the plaintiff as the evidence will justify), that the sole ground on which any negligence could be imputed to the defendant is suggested by the seventh request of plaintiff’s counsel, in which he asked to go to the jury on the question'whether the throwing of the dirt from the excavation while the horses were passing constituted negligence. There is no evidence that'defendant was not authorized to do the work which it was engaged in doing. The excavation did not prevent vehicles from passing to and fro; for, as matter of fact, there was sufficient space left for the passage of this beer truck, and it actually did pass, inasmuch as according to the driver’s testimony, lie was about 10 feet beyond the excavation when he was thrown out of the wagon. He knew the situation perfectly, — just where the trench was, and just what space he had to drive through,— and it is manifest, from what he says about the condition of the brakes and his control over his horses, that he could not have had them better in hand if he had been expressly informed in advance that a few shovelfuls of earth would be thrown from the ditch as he approached the excavation. This brings the case right down to the question whether negligence can be predicated of such an act as simply shoveling soil out of a trench, in the course of a work properly being performed on a public highway, merely because horses may be caused thereby to shy. There is no suggestion that anything struck any of the horses, or that there was anything extraordinary in the way of throwing out the earth. The learned trial judge evidently thought that to pronounce the conduct of the defendant negligence, even under the most favorable view of the circumstances for the plaintiff, would be to impose too onerous a burden of care upon those engaged in work of this character. In this conclusion I think he was right. It would be practically impossible to guard against the happening of every event which might chance to frighten a timid team. It seems unreasonable to require the exercise of exceptional care, simply because it sometimes happens that a very trifling occurrence will occasionally induce a sensitive horse to shy. In my opinion, the proof failed to make out any negligence on the part of the agents of the defendant leading to the injury to the plaintiff’s intestate, and hence the complaint was properly dismissed.

For these reasons, I think that the plaintiff’s exceptions should be overruled, and the order denying the motion for a new trial should be affirmed.

All concur.