author: TRAUX, J.

text:
    Jackson, Pl'ff, v. Charles C. Bradhurst et al. Def'ts.
    (Supreme Court, New York Special Term,
    Filed February, 1896.)
    Partition—Section 1540 oe the Code.
    Section 1540 of the Code was intended to apply only to a case where an actual partition, and not a case where a sale, is made. |
    Charles A. Jackson, for pl’ff; William J. O’Leary, for def’ts.
   TRAUX, J.

On the 17th day of February, 1892, prior to the filing of the lis pendens in this action, which is an action of partition, a lis pendens was filed in an action brought by one Mary E. Smith against the above-named Charles C. Bradhurst, in an action to enforce the specific performance of a certain contract, by which the said Charles C. Bradhurst agreed to give a mortgage upon his interest in certain premises which were afterwards sought to be petitioned in this action. The above-named Mary E. Smith was not made a party to this action. There was no advertisement in this action for liens upon the undivided shares of the various parties, and the lis pendens in the action of Smith against Bradhurst is still upon the interest of the said Bradhurst. Certain premises were sold under the decree in this action, and purchased by the moving party, who now seeks to have said purchase set aside upon the ground that the lis pendens filed in the action of Smith against Bradhurst is a cloud upon the title to said premises. Section 1540 of the Code of Civil Procedure provides that “the plaintiff may, at his election, make a creditor, having a lien on an undivided share or interest in the property, a defendant in the action. In that case he must set forth the nature of the lien, and specify the share or interest in which it attaches. If partition of the property is made, the lien, whether the creditor is or js not made a party, shall thereafter attach only to the share or interest assigned to the party upon whose share or interest the lien attached, which must be first charged with its just proportion of the costs and expenses of the action in preference to the lien.” This section of the Code was intended to apply only to a case where an actual partition is made, and not a case where a sale is made. ° The sections of the Code relating to partition make a difference between an actual partition anrl a sale. For instance, by section 1532, which is the first section of the article of the Code relating to actions for partition, it is provided that two or more persons holding as joint tenants or tenants in common may maintain an action for partition according to the respective rights of the persons interested, and for the sale thereof if it appears that partition cannot be made. From this section it appears that a sale is only to be made in case an actual partition cannot be made. Section 1540 does not apply to the case of a sale, because it does not use the word “sale,” nor does the language, “that the liens shall attach only to the share or interest assigned,” contemplate the case of a sale and distribution of the proceeds. The share is only assigned to the party where actual partition is made. In other cases there is a distribution of the proceeds.

Motion granted.


source: Caselaw Access Project

author: WRIGHT, J.

license: Public Domain

text:
    Roxanna Alden, Individual and as Executrix, etc., Pl'ff v. Charles E. Barnard, as Executor, etc., et al., Def'ts.
    (Supreme Court, Oneida Special Term,
    Filed January, 1896.)
    Limitation—Running op statute.
    Where a husband obtains money from his wife on his agreement to use it in procuring an assignment to her of an overdue mortgage on his residence, and he, instead procures, without her knowledge, a satisfaction thereof and puts it on record, and when, a short time thereafter, upon her discovering the misappropriation, they make an ag-reement that the mortg-age should stand as a valid security for the amount of the funds misappropriated, and that she should have the same interest in the land as if she held the assignment thereof and that, as long as they should live together as husband and wife on the premises, he should be released from payment of interest, the statute of limitations was held, in an action by her against his executors and others to have such satisfaction piece cancelled and to be adjudged owner of said mortgage, not to begin to run against her until the date of her husband’s death.
    J. A. Pease and S. M. Lindsley, for pl’ff; Charles G. Irish and Thos. S. Jones, for def'ts Charles E. Barnard, Minnie E. Hughes, and Nellie C. Barnard.
   WRIGHT, J.

In 1883, Mr. Alden, a few weeks prior to his marriage with the plaintiff, obtained from her $700, upon the agreement that he would use the money in procuring an assignment to her of a mortgage then outstanding against his residence in Utica, and overdue. A few weeks after their marriage, he obtained another sum, of $800, upon the agreement that he would use it in procuring the assignment to her of another mortgage outstanding against his residence, and overdue. Instead of procuring assignments, he procured, without her knowledge, satisfactions of the mortgages, and put them on record. A short time thereafter, upon her discovering the misappropriation of the funds, they made an agreement that the mortgages should stand as valid securities in her hands for the amount of the funds misappropriated, and that she should have the same interest in the land as if she held assignments thereof, and that, as long as they should live together as husband and wife on the premises, he should be released from the payment of interest. He had no other property, and they lived together in the enjoyment of the possession of the property until his death, which occurred in December, 1890. The defendants who have answered are the executor of the will of Mr. Alden and his children by a former marriage. They interpose the statute of limitations as a defense.

As between the plaintiff and her husband, these mortgages were never paid nor satisfied. Equity does not give his wrongful deflection of the fund the force of payment, but considere what ought to be done as done. By the use of her money as described, under the agreement to obtain assignments, she became at once the equitable owner of those mortgages, with the right to enforce them. Johnson v. Parmely, 14 Hun, 398; Short v. Currier, 153 Mass. 182; Purser v. Anderson, 4 Edw. Ch. l8. If there were no subsequent agreement, the statute of limitations would begin to run from that date. But the subsequent agreement above detailed, by "which he conceded all of her rights, rendered litigation unnecessary. Her possssion and right of possession under the agreement had a characteristic additional to that of a wife in the enjoyment of her husband’s real estate; and it was so recognized by her husband on a subsequent occasion, when she complained of having been excluded by his children from the enjoyment of certain rooms, contrary to the agreement above mentioned, and proposed to leave the house unless he should rectify the matter, which was accordingly done. And since, under that agreement, nothing became due on the mortgages while they were in mutual possession and enjoyment of the premises, the statute of limitations did not begin to run against the plaintiff until the date of Mr. .Alden’s death. The statute never runs against a contractor while he is in the full enjoyment of his rights under the contract. While the plaintiff was in possession of the premises with her husband, she, under the agreement, was in the enjoyment of all the rights she had, or could have, as owner of those mortgages, according to their terms of payment, as modified by the agreement. The executor and heirs occupy Mr. Alden’s position. The complaint may stand as amended to conform to the The is entitled to

Judgment for plaintiff.


author: PER CURIAM.

text:
    Lynch v. Sauer.
    (Supreme Court, Appellate Term, First Dept.,
    Filed March 27, 1896.)
    1. Appeal—Leave to appeal.
    Leave to appeal to the appellate division of the supreme court from the appellate term for hearing appeals from the district and city courts will be granted only (1) where the determination involves great interests, or settles a principle of law affecting the decision of numerous other occasions; or (2) where the decision of the court is in direct conflict with one rendered by a general term of the district.
    S, Same.
    Such leave will not be granted where the subject-matter involved is trifling in amount, and the delay will work a hardship on the respondent, nor where the principle involved is not of sufficient importance to justify the application.
    Motion for leave to appeal to appellate division under rule 7 of such division.
    B. Metzger and G. M. Curtis, for the motion; Anderson, Howland & Murray, opposed.
   PER CURIAM.

The practice in regard to granting leave to appeal to the appellate division from judgments and orders of this Term must be assimilated to that formerly prevailing in the court of common pleas on like motions for leave to appeal to the court of appeals in actions commenced in the city and district courts. By such practice leave would be granted only (1) where the determination involved great interests, or settled a principle of law affecting the decision of numerous other cases (Jackson v. Purchase, 1 Hilt. 357: and see Brand v. Godwin, 15 Daly, at page " 469; 29 St. Rep. 143); or (2) where the decision of the court waa in direct conflict with one rendered by a general term of this district (Clapp v. Graves, 2 Hilt. 243). The provision of section 1344 of the Code, allowing appeals from this term to the appellate division, like that previously contained in section 191 permitting appeals to the court of appeals, is permissive only, bear? the same interpretation, and requires like regulation. A practice so long tried, and respected alike by bench and bar, is the safest test of judicial discretion to be adopted under existing conditions. We have therefore concluded to adhere to it for future guidance. Leave will not be granted where the subject-matter involved is trifling in amount, and the delay would work a hardship on the respondent (Ahern v. Steamship Co., 11 Abb. Pr. [N. S.] 356), nor where the principle involved is not of sufficient importance to justify the application. Woodward v. Bugsbee, 2 Hun, 683. A novel question of evidence does not present such a case. Id. 128, 683.

As the application is not within any of the rules with the modifications stated, it must be denied, with $10 costs.


text:
    Hand v. Rogers et al.

    (Supreme Court, Appellate Term, First Dept.,
    Filed March 27, 1896.)
    Appeal—Reargument.
    A reargument, in the appellate term, will not he granted (1) unless some question decisive of the case has been overlooked; or unless the decision is in conflict with an express statute or a controlling decision; or (3) unless, sinee the decision, the court of appeals or the appellate division has decided adversely the precise question involved. '
    Motion for reargument under rule 4 of the appellate division, regulating the hearing of appeals from city and district courts.
    Charles De Hart Brower, for motion; John Henry Hull, opposed.
   PER CURIAM.

The practice is settled that no motion for a reargument will be entertained except upon papers showing clearly (1) that some question decisive of the case, and duly submitted by counsel, has been overlooked by.-the court; or (2) that the decision is in conflict with an express statute,’ or with a controlling decision, either overlooked by the court, or to which its attention was not drawn through the inadvertence of counsel (Mount v. Mitchell, 32 N. Y. 702, followed by the common pleas as a rule of practice in reference to appeals from the city and district courts; Curley v. Tomlinson, 5 Daly, 283; and see Marine Nat. Bank v. National City Bank, 59 N. Y. 67, 73); or (3) that, since the decision by this term, the court of appeals or the appellate division has decided adversely the precise question involved; hut even then there must be doubt as to the correctness of our decision (Butterfield v. Radde, 40 N. Y. Supr. Ct. 169).

As the application does not f all_ within any off these rules, it must be denied, with $10 costs.


text:
    Davis v. Bonn.
    (Supreme Court, Appellate Term, First Dept.,
    Filed March 27, 1896.)
    Motion for reargument or leave to appeal.
    Fromme Bros., for the motion; Manheim & Manheim, opposed.
   PER CURIAM.

The chief ground of the application is that we disposed of the case upon a point not raised in the court below nor discussed in its opinion. It was, however, called to the attention of counsel upon the argument before us, and was suggested by the facts in evidence. The testimony which it is claimed was overlooked would not alter the result. The questions of law involved arise upon facts peculiar to this case, and do not appear to be of general interest, or to affect any other pending or probable litigation.

For these reasons, and those assigned in Hand v. Rogers, 74 St. Rep. 370, and Lynch v. Sauer, 74 id. 369 (opinions filed filed, the motion will be denied, with $10 costs.


text:
    Gleason v. Thom et al.

    (Supreme Court, Appellate Term, First Dept.,
    Filed March 27, 1896.)
    Motion for reargument or for leave to appeal to the appellate division.
    J. T. Davies and B. Tolles, for the motion; L. J. Morrison, opposed.
   PER CURIAM.

For the reasons assigned in Hand v. Rogers, 74 St. Rep. 370, and Lynch v. Sauer, id. 369, opinions this day filed, the motion will be denied, with $10 costs.


text:
    John Stewart v. Simon Arendt.
    (Supreme Court, Appellate Term, First Dept.,
    Filed March 27, 1896.)
    Motion for reargument or for leave to appeal to the appellate 'division.
    H. A. Sperry, for the motion; D. P. Mahoney, opposed.
   PER CURIAM.

For the reasons assigned in Hand v. Rogers, 74 St. Rep. 370, and Lynch v. Sauer, id. 369, in which opinions were this day filed, the motion will be denied, with $10 costs.


text:
    William E. Uptegrove et al., v. Central Railroad of New Jersey.
    (Supreme Court, Appellate Term, First Dept.,
    Filed March 27, 1896.)
    Motion for leave to appeal to the appellate division from a judgment, affirming a judgment in favor of plaintiffs.
    De Forest Bros., for the motion; M. P. O’Connor, opposed.
   PER CURIAM.

For the reasons assigned in Lynch v. Sauer, 74 St. Rep. 369, in which the opinion was this day filed, the motion will be denied, with $10 costs.

All concur.


author: O’BRIEN, J.

text:
    James R. O'Beirne, App'lts. v. Spencer S. Bullis et al., Resp'ts.
    (Supreme Court, Appellate Division, First Dept.,
    Filed March 20, 1896.)
    1. Specific performence—Damages.
    In case a plaintiff, in an equitable action, shows that he is entitled to equitable relief, which, if granted, would be unavailable because of the defendant’s inability to perform, the damages sustained by the plaintiff may be recovered in the same action.
    3. Trial—Jury.
    Where the relief, demanded by the plaintiff in an action for specific performance, is purely equitable, the defendant is not entitled to a jury trial, before his inability to perform is disclosed.
    3. Same—Jury trial.
    If the defendant, in such action, wishes for a trial by jury after it appears that he is unable specifically to perform, he should then make a specific demand.
    4. Same—Assignee.
    An assignee of a contract for the purchase of lands has the same rights to enforce the contract as his assignor.
    5. Same—Deed of Trust.
    Where, in pursuance of a sealed contract to mortgag-e certain lands, in order to secure bonds, a deed of trust is made which, by fraud, is substituted for other lands which were valueless, a bondholder, on behalf of himself and of other bondholders can, on refusal of the trustee to sue for this specific performance of the contract, sue therefor.
    Appeal from a judgment in favor of plaintiff, entered upon a decision after trial.
    William W. Cook and Adelbert Moot, for app’lt Barse; Joseph Koch and Frank Rumsey, for app’lt Bullis; Frank Sullivan Smith, for resp’t O’Beirne; Adrain H. Joline, for resp’t Central Trust Company.
   O’BRIEN, J.

When this case was before the general term on a former appeal, (80 Hun, 570; 62 St. Rep. 583), one question •seems to have been presented and decided, and that was whether or not the plaintiff could maintain this action as an action in -equity for specific performance, when it appeared on the trial Shat the defendants would be unable to perform the contracts, -on the ground that they had no title to the property .which they had agreed to mortgage to the trust company, to secure the payment of the bonds. That question was decided in favor of the plaintiff on that appeal, and it is unnecessary to say more upon that question than that we adopt the opinion of the court delivered upon that appeal as a correct exposition of the law upon that question, and agree in that opinion. It was therein said:

“We take it to be too well settled to require the citation of any authorities that in case the plaintiff in an equitable action shows -that he is entitled to equitable relief, which, if granted, would be unavailable, because of the defendant’s inability to perform, the ’damages sustained by the plaintiff may be recovered in the same action. It has been held in many cases brought to compel the specific performance of contracts that damages may be awarded the plaintiff, though specific performance be refused.

And we think this rule is expressly recognized by the late case of Haffey v. Lynch, 143 N. Y. 247; 62 St. Rep. 171, where it is said?

“It is a general rule in equity that the specific performance of 'a contract to convey real estate will not be granted when the vendor, in consequence of a defect in his title, is unable to perform. In such cases specific performance is denied because the court cannot enforce its judgment, and because, also, it would be oppressive to the vendor. But if the defence in the title existed lat the date of the contract, or was due to some fault, or to some act of the vendor subsequent to the contract, the court will generally entertain an action for specific performance, and retain ¡jurisdiction for the pnipose of awarding damages for breach of the contract. But where, as in this case, the defect in the title 'arises after the making of the contract, without any fault of the vendor, the vendee knew of the defect in the title when he commenced his action, it was formerly the rule that the court would not retain the action for the purpose of awarding damages. Wiswall v. McGowan, Hoff. Ch. 125; Morss v. Elmendorf, 11 Paige, 277. This rule was adopted because the vendee should not commence a fruitless action in equity simply to recover there his damages for a breach of contract. The rule has been modified since the code practice, which authorizes the joinder of legal and equitable causes of action; and while the equitable relief will be denied in such a case, now the action will be retained, and the issue as to the breach of contract and damages will be sent to a jury for trial. Sternberger v. McGovern, 56 N. Y. 12.”

After the case was called, and before any witnesses were examined, counsed for defendants said: “We should make a formal demand for trial by jury.” This motion was denied, and defendants excepted. It is claimed that this was error, the insistence being that as the general term had sent the case hack to be tried as an action for damages, defendants were entitled to a trial by jury. To determine whether the motion should then have been granted, the trial judge had before him the pleadings, and his ruling was necessarily based thereon. If therefrom it had appeared that the action was one for damages only, which would be triable by a jury, there might he some ground for the motion. If the pleadings presented questions of equitable cognizance, then the court was right in proceeding with the trial, and taking the evidence, with a view to determining whether or not the plaintiff was entitled to equitable relief. In effect, the complaint alleged —¡First, that the defendants Bulbs and Barse agreed to convey to the trust company a certain number of acres of unincumbered timber land, to be included in a mortgage as security for the issue of bonds, but instead thereof, and fraudulently, and as a compliance with these contracts, they assumed to mortgage land which which was not unincumbered, hut the greater part of which was subject to mortgages or other liens or incumbrances, for a large amount of which they had.no title at all; and, second, that the said defendants were interfering with the construction com.pany engaged in constructing the railroad under the agreements, and that said defendants are making certain unauthorized construction of lines of railroad; and, third, that the defendant trust company is threatening and is about to execute a release of lands to the defendants Barse and Bullís, and that the plaintiff is without an adequate remedy at law to prevent the same. The relief demanded is a judgment for the immediate specific performance, of the agreement to convey, or that the defendants Bulbs and. Barse be required to pay to the trustee, for the security of the bondholders, such a sum of money as the court shall ascertain’ to be equivalent to the value of the lands which they had agreed to convey; and, second, an injunction against the trust company and the other defendants to prevent the other acts complained ojff The answer denied the fraud, and claimed that the defendants] Bulbs and Barse were not required to convey the lands until such] time as a certain number of miles of railroad were built and con.x] structed. It will thus he seen that the answer does not allege^ inability to comply with the contract, nor does it allege that thei, plaintiff has an adequate remedy at law; hut it puts in issue thei| plaintiff’s charge of fraud, and disputes the construction of theti contract as contended for by the plaintiff; and the whole defenses in effect, is that the defendants Bulbs and Barse have fully com-] plied with the agreements which they entered into. Upon these^ pleadings, it would have been entirely competent for the plaintiff! to show, if he could, that Bulbs and Barse had the land which the: court could compel them to convey; and the alternative relief prayed for, which is the usual one in an action for specific per-, ■formance, is not a demand for damages in the ordinary sense» namely, damages which the plaintiff has suffered, and which Should be ascertained. bTor did the plaintiff demand a sum in liquidation to be paid over to him by the defendants. What he ¡asked was that Bullís and Barse should mortgage the lands; and, inability to perform not having been set up by way of defense, \ it would have been entirely competent for the defendants Bullís and .Barse, upon the judgment going against them, to have complied with their contract, by mortgaging the lands which the court ¡adjudged they had contracted to mortgage, by acquiring the title to the lands, and mortgaging them to the trust company, and thus have relieved themselves from a judgment for the alternative relief asked for. We think, therefore, regard being had to the ¡pleadings, that the relief demanded by the plaintiff was purely equitable, and that the refusal to comply at that stage of the case kvith the formal demand for a jury trial was right; and, if defendants wished for a trial by jury after it appeared that they were unable specifically to perform, they should have then made a specific demand.

The right of either the plaintiff or the trust company, as trustee for the bondholders, to maintain this action to enforce specifically a contract made between Newcombe & Co. and the defendants Bullís and Barse is questioned by the appellants. The contracts were under seal. Newcombe & Co. had been asked to furnish capital to complete the railroad contemplated by the parties. With this end in view, and to obtain the money necessary for the completion of the railroad by the agreements of October 8, 1889, and December 9, 1889, the defendants agreed that they would cause to be created a mortgage or a deed of trust upon the railways, properties, and franchises of several railroad companies that the parties contemplated consolidating into one corporation, and also upon 30,000 acres of land, to be duly executed to the Central Trust Company of New York, as trustee, for the purpose of securing "mortgage bonds to an amount specified. Upon the mortgage being executed, thus becoming a lien upon the said railroad, property, and franchises, and upon the said 30,000 acres of land, Newcombe & Co. undertook to sell at par a certain number of the said bonds, and to use the proceeds thereof, for the purpose of completing the railroad which was to be built. As a compliance with this contract, the defendants Bullís and Barse executed a mortgage to the Central Trust Company, which purported to comply with the contract by creating a lien upon the railroad, properties, and franchises, and upon the said 30,000 acres of land. It subsequently appeared that, of the 30,000 acres of land which the mortgage purported to convey to the trust company to secure the payment of the bonds, the defendants had no title to a large portion thereof, and another part was valueless, and did not comply with the contracts, as all the timber upon it had been removed, and the balance, or substantially all the balance, was covered by other liens and incumbrances. When this conveyance was made to the trust company, if Newcombe & Co. had themselves purchased and held the bonds, and adanced the money required by the contract» to be advanced by them from the proceeds of the bonds, the trust company would have been trustee for Newcombe & Co.; and it is clear that Newcombe & Co., or the trust company, as trustee of' the express trust, could have maintained an action for tire specific performance of the contract made by the defendants to convey this land to the trust company, to secure the payment of the bonds. Newcombe & Co. having transferred the bonds to bona fide holders for value, such bona fide holders would have been subrogated to the rights of Newcombe & Co. to enforce this contract, and the trust company, as trustee for such bondholders, would have been entitled to commence an action to compel the specific performance of the contract made by the defendants with Newcombe & Co. for the benefit of the bondholders. Whther that cause of action would have vested exclusively in th trust company, or whether the bondholders would have been entitled to maintain such an action as those who had become subrogated to Newcombe & Co.’» right of action to have the contracts specifically enforced, is not important, as the plaintiff sues on behalf of himself and all other*' bondholders; and he could enforce any rights existing in the bondholder’s or in the trust company as trustee for them. It is settled that an assignee of a contract for the purchase of lands-has the same rights to enforce the contract as his assignor. See-22 Am. & Eng. Enc. Law, p. 936, and cases cited. And the purchaser of these bonds would be considered in equity as the assignee of Newcombe & Co.’s interest in their contract with the-defendants, whereby the defendants agreed to convey to the trust company the said 30,000 acres of land, as security for the payment of the bonds. It is also clear that the -execution of the mortgage-by the defendants, as a compliance with this contract, whereby they purported to convey to the trust company 30,000 acres of land, to secure the payment of the bonds, was a distinct representation both to the trust- company and to Newcombe & Co. that they had such a title to the land that the lien provided for by the agreements attached to such land to secure the payment of' the bonds. Thus, a contract between the trust company and the defendants was created, which the trust company was entitled to enforce.

We think it clear, therefore, that the plaintiff, suing’ on behalf' of himself and all other holders of the bonds issued under the mortgage given in pursuance of the contracts between Newcombe & Co. and the defendants, and having alleged a request to the trust company to enforce this contract, which was refused, was entitled to maintain whatever action either Newcombe & Co. had to enforce the contracts, or the trust companv, as trustee for him and the other bondholders, had to enforce the covenants of the-defendants contained in the mortgage which ourported to complv with the contracts to convey the lands, so that the same should be held subject to a lien to secure the payment of .the bonds. A careful examination of the testimony1 has satisfied us that the findings of fact by the court below were amply sustained by the evidence, and we are clearly of the opinion that, upon those findings, the plaintiff was entitled to the relief granted to him by the judgment.

The judgment should, therefore, be affirmed, with costs.

All concur.


author: DALY, P. J.

text:
    Albert A. Manada, App'lt. v. Sullivan County Club, Resp't.
    (Supreme Court, Appellate Term, First Dept.,
    Filed March 23, 1896.)
    Indivisible Contract—Performance.
    Where a landscape architect and dealer in gardeners’ materials submitted an estimate for labor and materials in laying out grounds, specifying the different items of labor, trees, vines, grass seed, etc., giving the price and sum of each item, and also recommended three tons of sheep manure for fertilizing the ground, which he could furnish at $38 per ton, and his estimate, including the manure, was accepted, it was held, that there was an indivisible contract for the whole work and materials, and that he could not sue separately for the manure without proof of the performance of the whole contract.. _ __
    Appeal from a judgment in favor of defendant for costs.
    Omar Powell (Elliott, Powell & Damron), for app’lt; John Corwin (Harris & Corwin), for resp’t.
   DALY, P. J.

The plaintiff, a landscape architect and dealer in materials for gardens, submitted to the defendant, by letter, an estimate for laying out and planting the grounds adjoining its clubhouse “for stock of the best quality, for the purpose of giving jthe best results,” specifying shrubs, foliage, vines, trees, grass, clover seeds, etc., stating separately the number or amount of each' and the price of each, with the sum for each item,—the total being ;$439; adding: “I would strongly recommend two to three tons-‘of pure sheep manure for fertilizing the ground, which is very poor. This I could furnish at $38 per ton.” He also added an estimate of the probable expense and outlay for the services of himself and a foreman to execute the work, for labor, hire of horses and carts, freight to the nearest depot and carting from the depot, stating a sum separately for each item; the total being $460. The defendant, by letter, accepted the estimate “for laying out and planting club grounds” at the sums named, $439.20 and $460, with the addition, “Three tons of pure sheep manure, at $38 per ton, delivered at the club grounds, $114,” and summing up the whole at $1,013.20. By the terms of the acceptance as well as of the offer it would appear that the parties contemplated one contract for the whole work and materials. They had in view a single engagement, which was the laying out and planting of the club grounds; and every item of the contract had ¿reference to that work. It was, therefore, not permissible for the plaintiff to split the contract into several demands, and sue upon any item separately; nor, in case of so doing, to recover for any item without proof of performance of the whole contract. This was nevertheless attempted in this action, which was brought to recover for the three tons of sheep manure; the plaintiff claiming that it was a separate contract for a sale and delivery of that article. As well might he claim for the separate items “300 shrubs and semi-trees at .35, $105;” or, the “100 foliage shrubs at .35, $35;” or the “200 hardy vines, trailing and rock plants, at .20, $40;” or the “12 bushels of grass and clover seeds, $3.50, $42,”—which were thus separately specified in the estimate, on the ground of separate contracts for the sale and delivery of each of these articles. It appears that the sheep manure was to be spread over the ground, and was recommended by the plaintiff as a benefit to the whole place, he testifying that he thought it would cause the trees and grass to grow better. It was therefore, evidently intended to be used in connection with the whole work, and to he of advantage to it, and to be used by the plaintiff upon it. It is contended that there was a separate contract for the sale and delivery of manure, because the defendant’s letter specified that it was “to he delivered at the club grounds;” but this was manifestly a condition intended to exclude an extra charge for freight and cartage, such as was added to the cost of the other items, but does not indicate, with respect to this item, an intention to make a separate contract for a sale and delivery. As it is apparent from the testimony that the manure was to be used in the work by the plaintiff, it is hardly conceivable that the parties intended it to be the subject of a contract independent of that which they made for the whole work.

The above considerations dispose also of the suggestion that it must be deemed the subject of a separate contract, for the reason that it could not he the subject of a mechanic’s lien, like the other items, because it was not to he used in the work. The testimony of the plaintiff was: “Q. You thought the trees and grass would grow better if you had sheep manure on it? A. Yes, sir.” This indicates clearly that plaintiff was to use the manure in his work under the contract, and that it was, therefore, but one of the many items of material to be furnished in the work. As it was not a mere purchase and sale of goods to he delivered, the authorities cited, showing in what cases such sales are held to be separable, are not in point. The plaintiff was bound to sue upon the whole contract, and, of course, to prove performance under it, before he would he entitled to recover; and, as he did not do so, the judgment against him must be affirmed.

Judgment affirmed, with costs and disbursements.

All concur.


author: McADAM, J.

text:
    Mason Stable Company, Resp't, v. Margaret Lewis, App'lt.
    (Supreme Court, Appellate Term, First Dept.,
    Filed March 23, 1896.)
    1. Lien—Livery stable keeper.
    A notice to a liveryman that the horse did not belong to the de fendant and that she would no longer be responsible for its board is sufficient to require him to enforce his lien, or otherwise assert his legal rights, within a reasonable time thereafter, so as not needlessly to permit the damages to grow.
    2. Appeal—Findings.
    Where the reasons assigned by the trial court for its decision are irreconcilable or ambiguous, the appellant has the right to claim the benefit of those most favorable to him.
    Appeal from, a judgment in favor of plaintiff.
    Coleman & Donohue for app’lt; Cannon & Atwater, for resp’t.
   McADAM, J.

The action was to foreclose a livery stable keeper’s lien, under chapter 91 of the Laws of 1892, for the care and keep of three horses belonging to the defendant.. The de^ fendant admitted that she was the owner of two of the horses, and that they had been kept and cared for by the plaintiff at her request. The contention was over the third horse (designated for convenience the “Doyle Horse”); the defendant denying that it was her property, or that it was kept or cared for by plaintiff at her request. It was admitted that the defendant had bought (the horse from Doyle & Cook on December 2,1892, had sent it to plaintiff’s stable to be kept and cared for, and that plaintiff had kept and cared for it during the period claimed. About three jWeeks after defendant had the Doyle horse taken to plaintiff’s stable, the horse ran away, and the defendant requested Doyle & .Cook to take it back, but they declined. Defendant’s coachman was directed to take the horse back to Doyle & Cook, and he attempted to do so; but, instead of taking it to their stable, he left it in another stable, on the same street. Mr. Doyle, learning ¡the next day that the horse had been left at this stable, sent a boy to take it to the plaintiff’s stable. The boy took it there, and said he had a horse for Mr.Lewis, whereupon Mr. Winthrop, who was then in charge of the plaintiff’s establishment, sent for the Lewis coachman, who came and took the horse, and put it in one of the stalls of the plaintiff’s stable. The plaintiff proved that its officers did not know of the attempted return of the horse to 'Doyle & Cook, or that they had sent it back. The defendant brought an action ag'ainst Doyle & Cook, alleging they had sold her a horse, and warranted it to be sound and kind; that she had paid them $400; and that the warrant proved untrue, to her damage of $400, which she sought to recover. Mr. and Mrs. Lewis ¡testified that they saw Mr. Mason, of the plaintiff company, ‘shortly after the Doyle horse was returned to the plaintiff’s stable; that they told him the horse did not belong to them, that they had reurned it to Doyle & Cook, that the plaintiff should look to that concern for the stabling of the horse, and that Mrs. Lewis would never pay it. It was certainly understood at that time, if not before, that the defendant had taken the horse away from the plaintiff’s stable, and put it in another, for the purpose of returning it to the vendors, and that the defendant did not intend, by any act of hers, to acknowledge that the horse, after such return,' was her property. She was willing to pay the bill up to the time the horse was returned to Doyle & Cook,' but persisted that, if the plaintiff kept the horse after the notice given by her, it was not to be on her account. The plaintiff kept the animal for some eight months thereafter, and undertook to hold the defendant for the care and keep during the entire time it remained in its possession.

The notice given by the defendant required the plaintiff to enforce its lien, or otherwise assert its legal rights, within a reasonable time thereafter; for it was the plaintiff’s duty, when in-' formed of the situation, not to needlessly permit the damages to grow. Field, Dam. § 126; 1 Suth. Dam. 148; Clark v. Marsiglia, 1 Denio. 317. There was evidence in the case negativing the' giving of the notice, but the trial udge seems to' have regarded the notice as of no importance whatever, for in his decision he says:

“Notice, even if given by Mrs. Lewis to Mason the same day,, that she would not be responsible for the horse’s keep, and con-'1 taining a request that Mason return the home, was not sufficient to end the liability incurred on her behalf by her coachman, as Mason was under no duty to take the active step of returning the horse.” i

Assuming that the plaintiff was under no obligation to return' the horse to Doyle & Cook, the request to do so did not detract from the effect of the express notice that the horse did not belong to the defendant, and that she would no longer be responsible for its board. The legal effect of this notice was to impose upon the, plaintiff the duty of bringing the relation between the parties to a close in some form which would save either from unnecessary loss; otherwise the plaintiff might have suffered the damages to go on; until it suited its convenience to determine the amount which the defendant eventually should pay. There is no such accommodating rule of damages.

Where there are no findings the Code (section 1022) requires the court to “file a decision stating concisely the grounds upon which the issues have been decided.” .One of the reasons assigned by the trial court for its decision was that the notice, even if given, did not terminate the defendant’s liability, and it was accordingly treated as an immaterial circumstance in the case. This was error. The respondent insists that there is n.o finding that; notice was given. Although not found in express terms, the language used leans directly to the implication that notice was giver? hut for some reason it was not pertinent to the question of continuing liability. The rule under the practice as to separate findings was that, where they were irreconcilable or ambiguous, the appellant had the right to claim the benefit of those most favorable to him. Conselyea v. Blanchard, 103 N. Y., at page 231; Redfield v. Redfield, 110 N. Y., at page 673; 18 St. Rep. 560; Green v. Roworth, 113 N. Y., at page 467; 23 St. Rep. 149. Logically, the same rule applies to grounds assigned for a decision under the pervading practice. H the trial judge intended to find for the plaintiff on the conflict as to the giving of notice, he should have said in his decision that no notice had been given, or omitted reference, to the subject, leaving the appellate court to infer everything in favor of the conclusion reached.

For the reasons stated the judgment must be reversed, and a new trial ordered, with costs to the appellant to abide the event. f All concur.


author: BISCHOFF, J.

text:
    Thomas B. Gale, App'lt, v. Thomas Heckman, Resp't.
    (Supreme Court, Appellate Term, First Dept.,
    Filed March 23, 1896.)
    1. Evidence—Parol.
    Parol evidence is competent to enlarge the effect of a written instrument.
    2. Landlord and tenant—Appurtenances.
    Deterioration of a restaurant, conducted by the lessor in an apartment house, is not such a violation of a lease of an apartment room as to constitute an eviction, where the lease itself is silent.
    Appeal from a judgment in favor of defendants.
    Holm & Smith, for app’lt; Howe & Hummel, for resp’t.
   BISCHOFF, J.

To an action for rent upon an instrument in writing whereby the plaintiff had let to the defendant “the apartment designated as Humber 29,’ containing five rooms and bath, in the second story of the building known as ‘The Hotel San Re-mo,’ ” for one year from October 1, 1894, at $1,200, payable, in equal monthly installments, on the 1st day of each month during the term, the defendant pleaded eviction. The parties had bound themselves, the lessor to supply “heat, light and chamber service” for the demised apartment, and the lessee to use such apartment as a private dwelling only, and not to “permit cooking to be done upon the premises.” At the time when the lease was made the lessor carried on a restaurant in the same building with the demised apartment, but the instrument was silent with regard to such restaurant. Some time before the accrual of the May, 1895, rent, the lessee vacated the apartment; and to the lessor’s demand for such rent, after it had accrued pursuant to the provisions of the lease, he interposed that the lessor had persistently refused to supply “heat, light and chamber service” sufficient for the comfortable use of the demised apartment, and also that the restaurant had been permitted to deteriorate, as well in its appointment as in jits management and purveyance.

Upon the trial below the defendant was permitted, against the objection of the plaintiff’s counsel, to introduce testimony offered to show the existence of the restaurant, and that it had deteriorated as above mentioned, and the exception taken to this ruling presents error for which the judgment for the defendant must be reversed. Parol evidence is incompetent to enlarge the effect o£ a written instrument. Mott v. Palmer, 1 N. Y. 564, 574; Green v. Collins, 86 N. Y. 246, 254. In support of the ruling the defendant’s counsel assumes to rely upon Ryan v. Jones, 2 Misc. Rep. 651; 49 St. Rep. 140. That case is, however, readily distinguishable from the one at bar. It there appeared that the leash was of an apartment dwelling, which, with several others, was situated in the lessor’s building, and .that the building was so con-: strueted that the several apartments were capable of comfortable: inhabitation during the cold season only when supplied with heati distributed from an apparatus which was situated in a part of the) building of which the lessor retained the exclusive control. Obviously, therefore, the supply of heat from the apparatus was an' appurtenance to the several apartments, and the duty of the lessor, to supply it an integral part of'his covenant for the lessee’s quiet’ enjoyment. Hence it was held that the lessor’s refusal to supply: adequate heat during the cold season would, if such refusal had. been persisted in at the time of the lessee’s abandonment of the demised apartment, have been a sufficient ground for claiming an eviction. Tallman v. Murphy, 120 N. Y. 345, 352; 31 St. Rep. 483. We may assume, in the case at bar, that the defendant waa^ induced to enter into the lease of the apartment because of the propinquity at the time of the lessor’s restaurant. Nevertheless,! the use of the restaurant by the lessee, at Ms option, was, thoughl perhaps a convenience, in no sense ap appurtenance of the apart-¡ ment. The very fact that such use was optional with the lessee demonstrates it as a convenience only. Let us suppose that the' restaurant was in an adjoining building, or that, instead of a res-' taurant, the lessor had conducted a haberdashery or maintained a physician’s office in the same building with the demised apartment, would it not be absurd to contend that the lessor mustj nolens volens, continue either, because the occupant of an apart-! ment in the last-mentioned building was influenced in his accept-l anee of a lease of such apartment by the fact that a restaurant ap4 proved by the latter, or a well-stocked haberdashery, or the service! of a skillful physician seemed at all. times readily accessible to! him? Is the propinquity of the restaurant, the haberdashery, or? the physician’s office anything more than a convemence? True,! an appurtenant follows the demise, by implication of law. Huttemeier v. Albro, 18 N. Y. 48; Newman v. Nellis, 97 id. 285; 6 Lawson, Rights, Rem. & Prac., p. 4579, § 2806. But an appur-j tenance is that only which is incidental or indispensable to the! proper use of the premises demised. Ogden v. Jennings, 62 N. Y. 526, 531; Woodhull v. Rosenthal, 61 id. 382, 390; 1 Am. & Eng. Enc. Law, 641. A mere convemence does not create an appurtenance. Griffiths v. Morrison, 106 N. Y. 165; 8 St. Rep. 585; Root v. Wadhams, 107 N. Y. 384; 12 St. Rep. 30; Parsons v. Johnson, 68 N. Y. 62 In consonance with the foregoing, it was held in Denison v. Ford, 7 Daly, 384, that the lessor’s discontinuance of the use of a building in which he had previously let a market stall for a time unexpired, for the purposes of a public market, worked an eviction of the lessee; and in Lawrence v. Mycenian Marble Co., 1 Misc. Rep. 105; 48 St. Rep. 719, that the lessor’s persistent refusal to maintain an elevator which was not expressly included in the demise, but incidental to the proper use of tire demised loft, in a condition fit for use, had the like effect.- Other cases illustrative of appurtenances may be cited, but the above appear to us to be sufficient. It follows that, if the defendant could not be heard to complain had the plaintiff entirely abandoned his restaurant, he could not be so heard because the restaurant had deteriorated. If he wanted board at such restaurant, he should have contracted therefor, as a part of his. lease, in which event it might have been claimed with force that the contract was an entire one, the supply of adequate board a constituent part thereof, and the lessor’s failure to supply such board a breach of the contract which absolved the defendant from further performance on his part. It is futile to consider whether, or not, the testimony admitted to show the plaintiff’s alleged refusal to supply proper “heat, light and chamber service” was sufficient to justify the conclusion of the trial justice, since the record does not affirm that such conclusion was not wholly or in part based upon the incompetent and irrelevant evidence hereinbefore alluded to.

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


text:
    Pandia C. Ralli et al., Resp'ts, v. The Equitable Mutual Fire Insurance Corporation of New York, App'lt.
    (Supreme Court, Appellate Term, First Dept.,
    Filed March 23, 1896.)
    1. Complaint—Sufficiency.
    A complaint, which bases plaintiff’s rig-ht to sue upon an allegation that “the plaintiffs, in respect to the policies above mentioned, and to the receipt of said unearned premiums, are trustees of an express trust, each of the said insured, above mentioned, in the said policies, having authorized and requested the said plaintiffs to collect and receive from the said defendant all of the said unearned portions of the said surrendered policies,” is fatally defective.
    3. Same.
    The fact that a person is constituted a collection agent, does not authorize him, as trustee of a.n express trust, to bring an action upon the claim to be collected, in his own name.
    Appeal from a judgment of the general term, affirming a final judgment entered on an order overruling a demurrer to the complaint, interposed on the gound of insufficiency in substance.
    Alex. S. Bacon, for app’lt; Chas. Wehle, for resp’ts.
   BISCHOFF, J.

The complaint alleged a cause of action in various parties, other than the plaintiffs, against the defendant, upon certain contracts of insurance, and the only manner in which the plaintiffs’were sought to be connected with the transaction was through the allegation that “the said plaintiffs in respect to the policies above mentioned, and to the receipt of said unearned premiumes, are trustees of an express trust, each of the said insured, above mentioned, in the said policies, having authorized and requested the said plaintiffs to collect and receive from the said defendant all of the said unearned portions of the said surrendered policies.”

"We are not advised by the record as to the grounds upon which the court below became satisfied with the sufficiency of this complaint, and, in our opinion, there can be no doubt that the pleading is fatally defective, if not, indeed, frivolous." Failing privity of contract or title in the plaintiffs to the demand in suit, the complaint did not state facts sufficient to constitute a cause of action. Bliss, Code Pl., § 234; Mosselman v. Caen, 1 Hun, 648; Davis v. Mayor, etc., 14 N. Y. 506; Weichsel v. Spear, 47 N. Y. Supr. Ct. 223. And the argument that the objection should have been taken to the capacity to sue is unfounded. As natural persons, the plaintiffs of course had capacity to sue, in the absence of affirmative allegations to the contrary; and, if the demurrer had been placed upon the ground noted, it would have, of necessity, been overruled. Bank v. Donnell, 40 N. Y. 412; Insurance Co. v. Baldwin, 37 id. 651.

The allegation of trusteeship was merely a conclusion of law, and not alone thus objectionable; moreover, an erroneous conclusion, from the attendant averment upon which it appears to have been based. The fact that a person is constituted a collection agent does not authorize him, as trustee of an express trust, to bring an action upon the claim to be collected, in bis own name. Pom. Rem. & Rem. Rights, § 174, and cases cited. The plaintiffs were obviously not parties with whom the contracts in suit were made for the benefit of others, nor were they persons having title to the demand as the real parties in interest. Code Civ. Proc., § 449.

The judgments of the court below must be reversed, and the demurrer sustained, with costs to the appellant,

All concur.


text:
    Edwin R. Fox, App'lt, v. Wabash Railway Company, Resp't.
    (Supreme Court, Appellate Term, First Dept.,
    Filed March 23, 1896.)
    Carriers—Injury to Baggage—Connecting Lines.
    Where passenger baggage is checked through to any point upon a coupon ticket for a continuous passage over several connecting lines of railroad, and is delivered in a damaged condition, that company only is liable upon whose road the baggage is injured. The owner may, however, sue the company in whose custody he finds it damaged, and may recover without proving that the company received it uninjured, the original good condition being presumed to continue; but the presumption may be rebutted by proof on the part of the company that the property was damaged when received by the defendant, in which case defendant is exonerated.
    Appeal from a judgment in favor of defendant.
    Appeal by the plaintiff from a judgment of the Sixth district court in favor of the defendant. The action was brought to recover the value of certain articles contained in a valise which was checked for the plaintiff in El Paso, Texas, to Detroit, upon a coupon ticket to New York over several railways, including the Texas Pacific, the Iron Mountain, the Wabash (to Detroit), and several others. The plaintiff opened the valise en route at Big Springs, Texas, on the Texas Pacific Railroad, and saw it again at Danville, 111., on the Wabash Line, when, as he claims, he found it had been broken open, and that some of the contents were missing. The defendant, the Wabash Railroad Company, gave evidence' to prove that the valise was delivered in the state in which it was received by them, viz., in bad order and open, and that none of the contents were lost or abstracted while in its possession; also, evidence that the valise could have held no more than the articles in it when delivered.
    Edwin R. Fox, pro se; Williams & Ashley, for deft.
   DALY, P. J.

The appellant is under a misapprehension concerning tbe law of this state applicable to cases like the present. Where several carriers unite to complete a line of transportation, a passenger who has delivered baggage in good condition to the first one of the series may bring action against any subsequent one in whose hands he finds the baggage in a damaged condition, and can recover without proving that the particular company sued received the property uninjured, as the original good condition will be presumed to have continued up to the timé the company sued received the property; but this presumption is not conclusive, and may be rebutted by proof upon the part of the company sued that the property was in fact damaged when received by defendant. In Smith v. Railroad Co., 43 Barb. 225, the court said:

“Give to such party the benefit of the presumption that the goods he has delivered in good order in such case continued so until they come to the possession of the company which delivers them at the place of destination in a damaged condition, and his rights will be completely protected. The burden is then shifted upon the latter company of proring that such goods came to its possession in a damaged condition, by way of defense.” Affirmed 41 N.Y. 620.

In an action against a transfer company for injury to baggage, the railroad ticket for which was given to its agent before the plaintiff reached his destination, it is not incumbent upon the-plaintiff to show that such baggage was in good condition when received by the defendant, but proof that it was delivered in good condition to the railroad company is sufficient to throw upon the defendant the burden of showing that it was not received by it in the same condition. Myerson v. Woolverton, 9 Misc. Rep. 186; 61 St. Rep. 78. That company only is Iaible upon whose road the baggage is lost or destroyed. Kessler v. Railroad Co., 61 N. Y. 538; Milnor v. Railroad Co., 53 id. 363. The language quoted by appellant from the decision in Hawley v. Screven, 62 Ga. 347: “When the company has paid McIntosh for the baggage, let it reimburse itself out of one of the links of the combination whose fault or negligence lost it. The defendant company alone has the power to trace it and fix such responsibility,”—does not express the law of this state. In this case the defendant company sustained the burden which the law oast upon it, of showing that any loss of contents, as well as injury to the valise, happened before the property came into its possession; and the remedy of the plaintiff, therefore, is against some preceding company guilty of the wrong, and not against this defendant, whose responsibility did not commence until it received the baggage. Kessler v. Railroad Co., supra.

The judgment should he affirmed, with costs and disbursements. All concur.


text:
    John Norton, Pl'ff, v. The Mayor, Alderman and Commonalty of the City New York, Resp't.
    (Supreme Court, New York Trial Term,
    Filed March 19, 1896.)
    1. Mijnicipl couponation—Notice.
    Under chapter 572 of 1886, the fact of the filing- of the notice-within six mouths must be set up in the complaint, or a-cause of action is not alleged.
    2. Same—Wbitten notice.
    When the law requires a notice to be filed, it implies that it shall be in writing.
    3. Limitation—Infants.
    Infants, like other persons, are barred by an act for limiting suits" at law, if there is no saving clause in their favor. ;
    Action for personal injuries.
    William Stainton and J. P. Berg, for pl’ff; F. M. Scott and R. C. Beatty, for def't.
   McADAM, J.

The plaintiff on March 12,1895, sustained personal injuries hy reason of the negligence of defendant in respect to the highway known as “Eighth Avenue.”. The defendant moved to dismiss the complaint upon the ground that notice of intention to commence the action had not been filed with the counsel to the corporation within six months after the cause of action -accrued, as required by chapter 572 of the Laws of 1886. The notice was given, but not until about ten months after the happening of the accident, and the fact is so alleged in the complaint. 'The fact of the filing of the notice within six months must be set up in the complaint, or a cause of action is not alleged. Merz v. City of Brooklyn, 33 St. Rep. 577; affirmed, 128 N. Y. 617; 38 St. Rep. 1014; Curry v. City of Buffalo, 135 N. Y. 366; 48 St. Rep. 482; Foley v. Mayor, 73 id. 187. The legislature can attach such a condition to the maintenance of either a common-law or statutory action. Reining v. City of Buffalo, 102 N. Y, 308. It is a condition precedent. Bauer v. City of Buffalo, 44 St. Rep. 814; Babcock v. Mayor, etc., 56 Hun, 196; 31 St. Rep. 110; Dawson v. City of Troy, 49 Hun, 322; 17 St. Rep. 559; Frankel v. Mayor, etc., 18 id. 241; Sullivan v. City of Syracuse, 77 Hun, 440; 60 St. Rep. 674; Harrigan v. City of Brooklyn, 119 N. Y. 156; 28 St. Rep. 957, and McDonough v. Mayor, etc., 37 N. Y. Supp. 1,—merely hold that in actions ex delicto a demand for adjustment need not be served upon the comptroller, and in no manner affect the proposition involved here.

It is claimed that, because the plaintiff is an infant, the statute not apply to until one year after the disability has been removed. Code, § 396. The answer to this is that the exceptions in the Code do not apply to the statute in question, which is special in its character, and contains no exceptions. Infants, like other persons, are barred by an act for limiting suits at law, if there is no saving clause in their favor. Ang. Lim. (May’s Ed.), §§ 195, 476.

Plaintiff asked leave to amend by alleging oral notice to an attache of the corporation counsel’s office. The amendment, if granted, would be unavailing; for, when the law requires a notice to be filed, it implies that it shall be in writing. Foley v. Mayor, etc., supra.

It follows that the motion to dismiss the complaint must be granted.


author: GAYNOR, J.

text:
    In the Matter of an Application of Charles Guess for a Writ of Mandamus.
    (Supreme Court, Kings Special Term,
    Filed March, 1896.)
    1. Mandamus—Affidavit.
    Where, in a mandamus proceeding to compel the enrollment committee to place petitioner upon the rolls, the petitioner testifies that he is an adherent of the Republican party and its principles, that he supported its ticket at the last election and intends to support its principles and candidates in the future, a denial upon the information and belief that the petitioner is attached to the principles of the Republican party and that he supported its ticket last fall is worthless.
    S. Same.
    Only positive statements of fact are considered in mandamus ■ proceedings; unspecific and indefinite statements and denials, or statements and denials upon information and belief are of no value.
    3. Same.
    It is the legal rig’ht of a party voter to vote at the primaries of his party.

      i. Same.
    The question whether the petitioner is entitled to be enrolled and to vote at the primaries does not depend upon the discretion or upon the decision of vthe enrollment committee, but upon the fact of whether he possesses the requirements.
    Application for a writ of mandamus to compel a political association to place the applicant on its rolls.
    Roger M. Sherman, for petitioner; C. H. Young, for deft’s.
   GAYNOR, J.

The petitioner aslcs for a writ of mandamus to compel the individuals who constitute the enrollment committee of the Republican Association of the First ward of the city of Mount Vernon to place him upon the rolls of the said association. He has applied to them to be so enrolled, hut they have refused, fo-r the stated reason that he is not an adherent of the Republican party, but of the Democratic party. The petitioner swears that he is an adherent of the Republican party and its principles, that he supported its ticket at the last election, and intends to support its principles and candidates in the future. This explicit declaration is met by affidavits which contain much that is vague and irrelevant. That he was a Democrat in 1892 or in 1894 does not tend to show that he did not support the Republican party at the last election, or that he does not intend to do -so in the future."1 The statement in the affidavit of Glover that it was “known and1stated by some of the members of the committee” that the petitioner voted the Democratic ticket last' fall, is too indefinite. If false, it would be quite impossible to predicate perjury upon it.1 Nor can he say that the fact was known to some of the members of the committee. His denial upon information and belief that the petitioner is attached to the principles of the Republican party, and that he supported its ticket last fall, is worthless. Only posi-' tive statements of fact are considered in mandamus proceedings.' Unspecific and indefinite statements and denials, or statements, and denials upon information and belief, are worthless. Merrill, Mand., § 274; Spell. Extr. Relief, § 1664; People v. Common Council of City of Brooklyn, 77 N. Y. 503. His denial that he knew the petitioner was a republican is of no consequence. He could say'the same of many Republicans. His denial in gross that the petitioner progresses the qualifications required by law as well as-by the regulations and usages of the. Republican party, has no force. That is a conclusion which can only he drawn from the facts, but he gives no facts. The petitioner states what the requirements are, and specifically states the facts which, if true, show that he possesses them. Pease says he “has known” the petitioner “to be a Democrat, who always supported, loyally the full Democratic 'ticket.” This is very loose. He “has known” him to support the Democratic ticket, it may be; but this does not meet the specific statement of the petitioner that he changed to the Republican party last fall, and supported its ticket and principles, and now adheres to its principles. Pease also says that last fall, on election day, he “asked and urged” the petitioner to vote for Hodge, who was among those running for office on the Republican ticket, and that the petitioner “consented to split his ticket,” and vote for Hodge. This seems to be intentionally adroit instead of specific. Why is not the fact of what the petitioner said given so that the court may draw the conclusion? Though the petitioner’s allegations are met only in this vague and dubious manner, I have concluded to vllow only an alternative writ, for it is a difficult matter to prove or disprove a man’s politics. The question of fact can be better and more safely decided by a jury or court of the vicinage. Besides, if a false return be made, the petitioner may be in a position to get redress, which he is not in now#

The court has jurisdiction of the plaintiff’s alleged grievance. Political primaries are now under the sanction and control of the ¡law. Section 53 of the election law is as follows: “Mo person shall be entitled to vote at any primary unless he may be qualified ¿to vote for the officers to be nominated thereat, on the day of election. i They shall possess such other qualifications as shall be authorized by the regulations and usages of the party holding the primary.” The Republican city committee of Mount Vernon is the controlling organization of the Republican party there. Article 8 of its constitution provides that Republican voters shall not be entitled to vote at primaries “unless duly enrolled;” and on January 7, 1896, it passed a resolution that no one should be enrolled or vote at a primary who had not voted the ticket of the Republican party at the last preceding election. It may well be [doubted whether this latter condition is reasonable or lawful, in view of the secrecy of voting required by law. May a voter be thus compelled to disclose how he voted? But the petitioner has accepted the condition, and I therefore do not decide the question. It is the legal right of a party voter to vote at the primaries of his party. It is there that candidates for office are selected in the manner prescribed by law, and voters cannot be arbitrarily excluded from them. The selection of proper candidates is more important than the subsequent voting for them. The question whether the petitioner is entitled to be enrolled and to vote at the primaries does not depend upon the discretion nor upon the decision of the respondents, but upon the fact of whether lie possesses the requirements.

Let an alternative writ issue.


text:
    Everett MacKinstry, Resp't, v. Emma Condit Smith, App'lt.
    (Supreme Court, Appellate Term, First Dept.,
    Filed March 23, 1896.)
    1. Attorney and Client—Action for services—Counterclaim.
    In an action by an attorney against Ms client for professional services, the answer pleaded (1) a counterclaim; then (2) set up new matter not described either as counterclaim or a defense, but in which judgment for a sum of money as damages was demanded against the plaintiff; and (3) alleging- “new matter as a defense,” and similarly demanding judgment against the plaintiff. Held that, if it were a question of pleading-, the plaintiff would not leave .been required to reply to the matters not expressly characterized by the answer as counterclaims, and if evidence establishing the facts were received under the allegations, an affirmative judgment in defendant’s favor, or a set-off against the plaintiff’s demand as upon a counterclaim, would be proper.
    2. Same—Waiver.
    The matters so alleged were that the plaintiff, while advising or claiming- to act for the defendant was secretly aiding and advising, the adverse parties, naming- them. At the close of the testimony in the case the defendant asked the court to submit to the jury the question whether or not the plaintiff was entitled to recover at all by reason of his subsequent transactions with those parties. The court stated it would submit the case only upon the question, of the value of the services, and not at all upon any question of counterclaim. The defendant’s counsel then stated that he waived the counterclaim, because, since the action was brought, another action upon which the counterclaim was based was decided in favor of the defendant. The record then stated that “defendant’^ counsel excepts.” Held: (1) That the waiver of the counterclaim might be understood as a withdrawal of the whole subject of the allegations of the answer, there being no request for a submission of the matters pleaded as a defense as distinguished from a counterclaim. (2) That the request was for the submission to the jury of a question of law and not of fact, i. e. whether the plaintiff is entitled to recover upon a certain state of facts, and the refusal to submit was not error. .
    3. Trial—Objection to Evidence.
    The record states: “Plaintiff’s counsel reads letters which are marked in one of the packets or bundles of letters in evidence. Plaintiff’s counsel also reads letter dated January 5, 1894.. Objected) to by defendant as not in evidence. Objection overruled. Defendant) excepts.” Held that, as the objection was not made upon the ground that the letter was not competent or admissible, and as not in evidence, it must be deemed that the only question raised was as to whether it was included among the letters in the packets or bundles in evidence; that this was a question for the court to decide, and there is nothing to show error in admitting it; and that, the admission of the letter obviated the objection that it was not in evidence.
    4. Same.
    An objection was made to a paper offered in evidence, on the ground that it was incompetent, immaterial, and irrelevent. Held, that this objection did not raise the question of the due execution of the paper by the parties.
    Appeal from a judgment of the general term of the eitv court, affirming a judgment entered on a verdict in favor of plaintiff, and affirming an order denying a motion for a new trial. ,
    Alexander Thain, for app’lt; Leonidas Dennis, for resp’t.
   DALY, P. J.

The plaintiff’s action was to recover $930.30 for professional services in consultations with her and others in negotiations for loans and settlements, offering securities for sale, collecting moneys, recovering property, drawing instruments in writing, examining records, etc. And the defense, besides a denial, set up (1) a counterclaim; (2) new matter, alleging that the plaintiff, while undertaking to advise the defendant, aided the adverse parties, to her damage in $1,600, for which she demanded judgment against the plaintiff; and (3) for a further defense alleged that the plaintiff, while claiming to act for and advise the defendant, secretly advised and aided the adverse parties, by which she .was misled, to her damage in the sum of $1,000, for which she asks ¡to recover judgment against the plaintiff. Evidence was taken Upon both sides, and the questions submitted to the jury were employment, and the rendition of services, and whether the plaintiff had been fully compensated by moneys collected. At the close of the testimony defendant’s counsel asked the court to submit to the jury the question whether or not the plaintiff was entitled to recover at all by reason of his subsequent transactions with the persons named in the answer as the adverse parties whom, it is charged, he had secretly aided. The court said: “I will submit the case only upon the questions of value of the services, and not at all upon any question of counterclaim. ’’The defendant’s counsel then said: “I waive the counterclaim, because, since the action was brought, another action upon which the counterclaim was ¡based was decided in favor of the defendant.” The record then states: “Defendant’s counsel excepts.”

The question which the defendant’s counsel asked the court to 'submit to the jury was one of law, i. e., whether the plaintiff was untitled to recover by reason of certain transactions. There was no request for an instruction of law, and no request for the sub¡mission of any .question of fact. Refusal to submit a question of Saw to the jury was not error. But, if the request could be regarded as a request to submit any question of fact arising out of -the transactions, or for any instruction of law, the subsequent .waiver of the counterclaim might be understood as a waiver of the whole matters alleged in the answer with regard to the transactions in question. These transactions were embodied in two allegations of the answer. The first set up new matter, and described either as a defense or as a counterclaim, but alleging damage to the defendant in a certain sum, for which she asked to recover judgment against the plaintiff. Similar transactions were alleged in a separate “defense,” in which, however, damages were alleged, and judgment for a specific sum demanded against the plaintiff. If it were a question of pleading only, this new matter set up in the answer, not being characterized as a counterclaim, would not have required a reply, although plaintiff did reply in this action. But, evidence having been taken under the allegations, if damages had been proved, the defendant would have been entitled to a reduction of the plaintiff’s claim, or to an affirmative judgment as upon a counterclaim. Acer v. Hotchkiss, 97 N. Y. 395, 408. At the time of the request made by the defendant’s, counsel, it was available to the defendant to rely upon the matters alleged and proved, as a counterclaim as well as a defense; and the waiver of the counterclaim, without specifically claiming the benefit of the-matters in evidence as a defense, did not apprise the court that the benefit of the defense was claimed. As is said above, the waiver might be understood as applying to the whole case as made out under the allegations.

The exceptions to the admission or exclusion of evidence do not show error. The case shows that:

“Plaintiff’s counsel reads letters, which are marked in one of the packets or bundles of letters in evidence. Plaintiff’s counsel also reads letter dated January 5, 1894: Objected to by defendant as not in evidence. Objection overruled. Defendant excepts.”

The admission of the specific letter named is claimed to he error. If the objection was that the letter in question was not among those marked in the packets or bundles, that was a question of fact, for the court to decide upon inspection of the paper, and there is; nothing to show that its admission was improper. The objection does not raise any question as to the proof or admissibility of the-letter,—only that it was “not in evidence.” This objection was cured by its admission.

Another paper was admitted under objection that it was incom-. petent, immaterial and irrelevant. This objection did not raise-the question now argued, that it was not duly executed, not a binding or valid agreement, and that the defendant was not a party to it, or had any knowledge of it. It purported to be signed by her husband, and was introduced by the plaintiff to show a transaction concerning which the defendant had undertaken to testify.

The only other exception referred to on brief of .the appellant is-to the exclusion of proof which, it appeal’s, was subsequently admitted, and which, in any event, was immaterial.

As the exceptions do not show error, the judgment and order must he affirmed, with costs.

All concur.


author: WARD, J.

text:
    Patrick Sweeny, App'lt, v. Vacuum Oil Company, Resp't.
    (Supreme Court, Appellate Division, Fourth Dept.,
    Filed March, 1896.)
    1. Master aud servant— Fellow.
    Where the authority is conferred on a servant "by the master over his fellow servants, and his negligence canses an injury to one of them, the master is not exempt from liability under the rule-relating to the negligence of fellow servants.
    2. Same.
    The fact that a superintendent, after "having negligently directed’ the work, assisted in its performance, does not affect the question of the master’s liability.

      Motion for a new trial on exceptions, ordered to be heard in the first instance at general term.
    J. H. Waring, for pl’ff; W. F. Cogswell, for def’t.
   WARD, J.

This action was brought to recover damages for personal injuries received by the plaintiff at the oil-refining works of the defendant at Olean, N. Y., on the 21st day of June, 1892, caused by the alleged negligence of the defendant. The defendant was a corporation, and was engaged in refining and manufacturing the products of petroleum oil at. Olean, N. Y. The plaintiff entered into the defendant’s employ in March, 1892, and his business in the refinery was to press the oil from, wax which is produced from crude oil by means of presses for that purpose. The presses were in a room in the refinery. Underneath the presses-were two tanks for the reception of the oil that was forced out of the wax. It became necessary, in the course of the business, for the defendant to place a third tank below the presses, for the reception of all the oil that they created, for which purpose the excavation in which the tanks were located in the ground under the floor of the refinery was enlarged, by the direction of the defendant, and a new tank was placed between the old ones. For this purpose, the old tanks had to be crowded apart. This work had been going on for several days prior to the accident to the plaintiff. ' The plaintiff had been taken from his ordinary work of pressing the oil from the wax by George W. Hooker, the defendant’s superintendent at the factory, and put upon the work of excavation, and- of putting in this new tank. After the excavation had been completed, tackle blocks were rigged up to move one of the old tanks. They were put up through the ceiling of the room above the tanks, some ten feet above the floor, and a rope or chain ¡was attached to them and to the tank, so that, by .pulling upon the -ropes passing through the tackle blocks, the tank could be slid along to malee room for the new one that was put in its place. The ropes passing through the tackle blocks got entangled in some ¡way, and the superintendent got a piece of iron pipe, about nine feet long and two inches in diameter, which he placed between the ropes, and, by twisting it, tried to disentangle them. For some reason it did not work satisfactorily, and the superintendent, leaving the iron in this position, directed the plaintiff to go up on a ladder to untwist the rope or chain, which the plaintiff did. The plaintiff then descended, and the superintendent called to plaintiff: “dome on here, come on here, Sweeney! Pull on this rope! Slack on this rope! ” This the plaintiff did, and'just as quick as he did so the iron came down, and hit him on the head. The plaintiff did not see the iron when he was up on the ladder, nor did ■he see it when it came down. The iron hit the plaintiff upon the head, knocked him down, and rendered him insensible, and inflicted a serious injury upon him.

The answer of the defendant admitted, and it was conceded upon the trial, that the said George W. Hooker was employed as its superintendent during all the time that the plaintiff was in its employment, and that the defendant gave him (the said superintendent) full charge, control, and direction of all its affairs in and about its business in Olean, which said Hooker assumed and discharged during all the time the plaintiff was in its employment. In the transaction, therefore, out of which this action grew, Hooker was the vice principal, or alter ego, of the defendant. Had the defendant been an individual, and been present and personally directed the work and the plaintiff, as was done by this superintendent, no question would arise but that he was guilty of negligence, or, at least, there was a question of his negligence to go to the jury. This corporation could not personally be present, except through, its officers and agents. The acts of Hooker were the acts of the corporation defendant. The plaintiff was not engaged in his ordinary work of extracting the oil from the wax. The defendant was enlarging its place of business,—adding a new structure in the press room, so as to increase the capacity of that room for storing the oil that should be pressed from the wax thereafter. It was, in a measure, a matter of •original construction,—a matter that falls primarily within the duties of a master. All that was done by the defendant was necessary in carrying out the purpose of the defendant as above indicated, and each step that was taken by the plaintiff in 'this business, including the final act which precipitated upon his head the iron that had been placed among the ropes by the superintendent himself in carrying on the defendant’s business then in hand, was done through the positive command of the master, through its superintendent. No further statement would seem to be necessary to show that a proper case was presented to the jury, as to the negligence of the defendant, and as to whether the plaintiff was guilty of contributory negligence. The defendant, however, takes the position that the acts of the superintendent above detailed were not those of the master (the defendant), but of a fellow servant of the plaintiff in carrying on the detail of the defendant’s business; so that at that time the superintendent occupied the dual relation of master and servant, representing the master in all matters that it concerned the master to do, and being a servant of the master, and a fellow servant with the plaintiff, in such matters as the plaintiff was ordinarily engaged in, in his work in that refinery,—and relies upon Crispin v. Babbitt, 81 N. Y. 516, and Cullen v. Norton, 126 N. Y. 1; 3 St. Rep. 359, to sustain that position. An examination of these cases will disclose such a different state of facts from the one at bar as will leave them of no value as authority here. In Crispin v. Babbitt the plaintiff was engaged as a workman at the iron works of the defendant at Whitesboro, N. Y.; and by the order of John Babbitt, who was called the financial agent, superintendent, overseer or manager for the defendant, the plaintiff had assisted to draw a boat into a dry dock connected with the works. After Ntke boat was in the dry dock, it became necessary to pump out the water. This was done by means of a pump worked by an engine. While plaintiff, with others, was engaged in lifting the fly wheel of the engine off its center, said John L. Babbitt carelessly let the steam on, starting the wheel, throwing the plaintiff on the gearing of the wheel, and injuring him. It was held that Babbitt, in doing this act,—being a part of the details of the ordinary work of getting the boat into the dry dock, and pumping out the water so that it could be repaired,—was the fellow servant of the plaintiff, and not engaged in any act in which he represented the master. This was held by a divided court, Judges Earl, Danforth, and Finch dissenting. Judge Earl wrote a remarkably strong and clear dissenting opinion, in which he says, at page 526:

“I have made a thorough examination of the reported cases in this country and in England, and think I may safely affirm that there is no case in which the question was involved where this -dual relation has been recognized, and the rule thus laid down. The rule is thus stated in Wood, Mast. & Serv. §§ 438, 451, 453, and there is a dictum to the same effect by Judge Potter in Brickner v. Railroad Co., 2 Lans. 506-516. The only case I have been able to find in which the precise point was involved and decided is that of Stone Co. v. Kraft, 31 Ohio St. 287. In that case Kraft was a laborer in a stone quarry of the company, and one Stone was the agent of the company, and foreman of its quarry. Stone carelessly and improperly fastened certain hooks to a soft stone, for the purpose of raising it with a derrick about which Kraft was also engaged. The court was asked to charge 'that if the injury happened by the negligence of the defendant’s foreman when he was doing the work of a colaborer with the plaintiff, and not when in the discharge of his duties as foreman and representative of the defendant, the plaintiff cannot recover, unless the plaintiff shows that the defendant did not exercise reasonable care and prudence in the selection of a foreman.’ Both requests were refused, and the refusal was held to be proper. Boynton, J., writing the opinion of the court, said: 'The fact, if it be true, that Stone’s negligence in assisting in fastening the hook to the stone to be raised may have caused the injury, and that he was then performing the duty of a common workman, and not those strictly pertaining to the duties of foreman, in no wise relieves the company from liability. If the act done by him had been done under his directions, as he did it, by one of the employes of the company, its liability could not be doubted, and for the reason that the negligent act, although committed by the hand of another, was, in law, the act of the foreman, and consequently the act of the master, and it could be no less the act of the master when performed by the foreman in person.’ ”

I feel justified in this extended quotation from this dissenting opinion because of its historical importance in connection with this question, and its reference to the then only reported decision in this country, within the research of Judge Earl, that had asserted any such doctrine, and also to justify the view that Crispin v. Babbitt, should not be followed further than the facts in that case absolutely warrant. In Cullen v. Norton, above cited, where the decedent was employed as a laborer in a quarry, and was engaged in drilling rock for blasting purposes under the direction of the defendant’s foreman, and after it was found that a blast in one of the holes had not exploded, the foreman examined it, and found the fuse unconsumed, but failed to remove it, and set another workman to drilling within two feet, and directed the decedent to drill at a place some twenty or thirty feet distant; and the fuse caught fire, and the charge in the hole exploded, causing the death of the decedent. It was held that the foreman in this work was a fellow servant of the deceased. It will be seen that the case of Cullen v. Norton it was only a foreman of the.work' whose act caused the death, not a general superintendent or vice principal of the defendant. In Hankins v. N. Y., L. E. & W. Railroad Co., 142 N. Y. 416; 59 St. Rep. 802, plaintiff, who was a fireman on one of the defendant’s freight trains, was injured by a collision with another train-. Both trains were behind schedule time, and their movements were controlled by special telegraphic orders from one of the defendant’s train dispatchers, and the accident was caused by the negligence of one of the traiii’ dispatchers in giving those orders. It was held that the defendant was liable,- the court holding that the act of this train dispatcher. was the act of the defendant, and not the" act of a fellow servant of the plaintiff, although the dispatcher and the plaintiff were engaged as the servants of the defendant in the same general business, of operating the defendant’s railroad; and it was sternuously contended by the defendant in that case that, as the_gencral term of the Eifth department, from which the appeal had been taken, had held that the train dispatcher was the fellow servant, of the plaintiff, the defendant was not liable.-

Shear. & R. Neg. § 102, states:

“One to whom his employer commits the entire charge of the business, with power to choose his oto assistants, and to control and discharge them as freely and fully as the principal himself could, is not a fellow servant with those who are employed under him; and the master is answerable to all the underservants for the negligence of such managing assistant, either in his personal conduct within the scope of his employment, or in his selection of other servants.’,’

In Pantzar v. Mining Co., 99 N. Y. 368, defendant was the owner of a coal mine in Putnam county, N. Y., conducted under the management of a superintendent who was invested with the same powers as the superintendent in the case at bar. An accident occurred to the plaintff, who was an employe of the defendant and while working in a pit- of the mine upon a wall in the course of construction for the purpose, viz. to furnish a place behind which to deposit the refuse material of the mine, was injured by the fall of a mass of rock from an overhanging cliff. The negligence claimed was that the attention of the superintendent had been called to a crack in the wall back of the cliff, and that the superintendent had taken no precaution, though practicable, to support the rock and to prevent the falling of the rock from the cliff. Held, that this negligence of the superintendent was that of the master, and that the master was bound to furnish the plaintiff with a safe place to work, which had not been done in this instance. In McGovern v. Cent. Vt. Railroad Co., 123 N. Y. 280; 33 St. Rep 416, it appeared that the defendant operated, in connection with its railroad, a grain elevator, which was under the entire control of a superintendent appointed by it. The superintendent ascertained that the grain had not been entirely discharged from one of the bins of the elevator, and that the grain was heated, and he knew that when heated it was liable to stick together and adhere to the sides of the bin; also, that when detached it would fall into the bottom of the bin, and jeopardize the life of any one who might be there. He sent McGovern, the deceased (a laborer-employed by the defendant to shovel grain), into the bin, through a trapdoor at the bottom thereof, which had been constructed to allow workmen to enter for the purpose of clearing out the bin; having opened the door himself, and placed the ladder in position. The bin might have been examined from the top to ascertain the amount of grain in it, and its location, but the superintendent omitted to do this.- After McGovern had entered the bin, the grain fell and buried him, causing his death. Plaintiff was nonsuited. Held error; that the superintendent stood in the place of the defendant, with respect to its servants, and whether the defendant discharged the duty it owed the plaintiff’s intestate was a question of fact, to be determined by the jury, as was also the question as to contributory negligence on the part of McGovern. The case at bar is stronger for the plaintiff than the one just cited,'for the reason that in the case cited the servant and the superintendent were engaged in the detail of the business of the defendant at such elevator, and not in the work of constructing or repairing a place to carry on the' defendant’s business. It is certainly a strong case to sustain the plaintiff’s contention here, and received the sanction of the court of appeals long after the dual doctrine in Crispin v. Babbitt had been announced. In Benzing v. Steinway, 101 N. Y. 547, plaintiff, an employe in the defendant’s factory, was called from his work to assist in putting up girders to support a roof in another part of a factory. This was not in the line of His general duty, and he had no previous knowledge of the anpliances used in the prosecution of the work. He was ordered by the foreman to get upon a platform which was defective and broke. The plaintiff was injured, and brought an action to recover damages therefor. The complaint was dismissed on the ground that the negligence, if any, was that of a coservant, for which the master is not liable. This was held to be error, for which the judgment was reversed. In McCampbell v. Cunard Steamship Co., 69 Hun, 131; 53 St. Rep. 330, the plaintiff was-ordered by the defendant’s superintendent to truck a load from; the deck of a steamer to the dock, over a skid, at a steep angle. The skid was furnished with mouth-pieces at each end, so as to follow the swaying of the ship. On starting down the skid, drawing a truck after him, the load on the truck began to move, owing to insufficient means to keep the load stationary, and the plaintiff: was injured. Held, in that case, that the superintendent was-not a fellow servant of the plaintiff. In Hardy v. Railroad Co., 36 Fed. 657, defendant’s yardmaster mounted te switch engine, and, while acting an engineer, directed deceased to assist in uncoupling cars. The latter, while doing so, was killed. Held, that the court propedly refused an instruction that while the yardmáster was acting as engineer he was a fellow servant of the deceased, and defendant would not be liable for his acts as such. Though actually engaged as engineer, he was none the less yardmaster, and entitled to be obeyed in the work of making up the-train. Where authority is conferred on a servant by the master, over his fellow servants, and his negligence causes an injury to one of them, the master is not exempt from liability, under the rule relating to the negligence of fellow servants. Dock Co. v. McMahon, 30 Ill. App. 358. The fact that the superintendent, after having negligently directed the work, assisted in its performance, does not affect the question of the master’s liability. Malcolm v. Fuller (Mass.), 25 N. E.. 83. The foreman or boss of a gang and hand car, who furnishes one of the hands with a defective lever wherewith to propel the car, and places him in a dangerous place to operate it, is, pro hac vice, the employer whom he represents; and his knowledge of the premises is to be attributed to his employer, who will be liable to the servant for injuries resulting therefrom. Banks v. Railway Co., 40 Mo. App. 458. In an action for personal injuries, the evidence showed that the plaintiff was sixteen years old, and, while working in defendant’s machine shop, he was sent to assist in making a wrench.' The foreman, knowing the plaintiff’s minority and lack of strength, directed him to reach under a heavy trip hammer, operated by a treadle, and.seize with a pair of tongs a piece of iron. The iron was too heavy for the.plaintiff to handle, and1 the tongs fell from his hands, and fell upon the treadle, thus precipitating the trip hammer on plaintiff’s hand, and injuring it. Held, that the defendant cannot exculpate itself by claiming that the man who directed the plaintiff while at work was a fellow servant. Yeaman v. Machine Co. (Ind. App.), 30 N. E. 10.

Many similar cases might be cited in other states, but enough' states have been taken for that purpose. The plaintiff insists that, under the circumstances of the case, the superintendent had created an unsafe place and unsafe condition where the plaintiff worked at the time he was injured, and that the rule requiring the-defendant to furnish a safe place and proper tools for his employes to work at and which has application to this case. Be that as it may, I have reached the conclusion that the question as to whether such place was safe, or as to whether the superintendent was acting for the master in the discharge of the master’s duties, were questions for the jury, as held by the court of appeals in the case of McGovern v. Railroad Co, supra, and kindred cases. Wannamaker v. City of Rochester, 44 St. Rep. 45, affirmed without opinion, 137 N. Y. 529; 50 St. Rep. 930; McLean v. Oil Co., 21 N. Y. Supp. 874 (plaintiff injured by falling-from a scaffold that defendant’s carpenter had made, caused by a defective plank); Crowell v. Thomas, 35 N. Y. Supp. 936. But assuming that the case of Crispin v. Babbitt, supra, is to be regarded as announcing the law of this state, unshaken by subsequent decisions of the court of appeals, it is easily distinguishable from the case at bar. As we have before said, in that case the superintendent and the plaintiff were plainly engaged in the ordinary work of the servant, in the details of the business. In the case at bar, as we have shown, the servant was taken from his-ordinary work, and put by the representative of the master at work which it is the duty and the province of the master to control and perform; so that this case is within the rale, in all its-strictness, asserted by the cases upon which the defendant relies, .The motion for a new trial should be granted, with costs to abide-event.