text:
    Cortland Wagon Company, App’lt, v. Margaret Lynch, Resp’t.

      {Supreme Gourt, General Term, Fourth Department,

      Filed December 7, 1894.)

    Principal and agent—Mote.
    A note signed as “ agent ” does not bind a principal, who is not named either in the body or signature of the note.

      Appeal from a judgment entered, on a decision made on the trial before the court.
    The trial court found as conclusions of fact:
    i'(l) That on or about April 7, 1893, at Brockport, N. Y., Thomas Lynch made and executed a promissory note in writing, of which the following is a copy :
    “ 1 $50.00. Brockport, N. Y., April 1th, 1893.
    “ ‘ November first, I promise to pay to the order of Fred B„ Hixson fifty dollars, at the First National Bank, Brockport, N. Y. Yalue received, with use. Thomas Lynch, AgV
    “ (2) That said note was duly transferred to the payee, Fred B. Hixson, who, before the note became due, for value received, indorsed the same, and said note, thus indorsed, was thereafter transferred to the plaintiff,
    “ (3) That, after said note became due, it was duly presented for payment at the First National Bank, Brockport, N. Y., and payment thereof duly demanded, which was refused, and thereupon said note was protested for non-payment.
    “ (4) That the said Thomas Lynch was the husband of the defendant, and was at that time carrying on a retail hardware business at Brockport, N. Y., -in defendant’s name.

      “ (5) That the consideration for said note was a road cart bought •of Fred R. Hixson.”
    As conclusions of law the trial court found, viz.:
    “ (1) Defendant is in no wise bound or made liable by the signature, 1 Thomas Lynch, AgV

      “ (2) A principal cannot be made liable on a written instrument made by his agent, unless it is shown in the body of the instrument or in the signature that the contract was made for and on behalf of the principal whose name was disclosed therein.
    “(3) The affix”1 Ag’t ’ is merely descriptive of the person, and not of the character of the liability.”
    The court thereupon ordered judgment for the defendant.

      Kellogg & Van Hoesen, for app’lt; Delbert A. Adams, for resp’t.
   Hardin, P. J.

Plaintiff’scomplaint is based upon a negotiable promissory note, which is se.t out in the findings of fact made by the trial judge. The note was not signed by the defendant Nothing appears in the body of the note, or in the signature attached thereto, indicating that it was the promissory note of the defendant. The complaint contains no allegations to support a recovery for the consideration entering into the note, and the plaintiff has rested its right of recovery solely upon the commer cial character of the instrument declared upon, and found td have been executed by Thomas Lynch, who added after his name the affix “ Agt.” Doubtless, Thomas Lynch was personally liable upon the note. However, as nothing appears in the body of the note or in the signature placed thereto indicative of any liability on the part of the defendant, the plaintiff failed to establish a •cause of action against her. Taft v. Brewster, 9 Johns. 334; Guyon v. Lewis, 1 Wend. 26; Moss v. Levingston, 4 N. Y. 208; Bowne v. Douglass, 38 Barb. 315, in which case Ingraham, P. J., points out the distinction between the maker of a note and the indorser of a note who adds words indicative of a special character after his name. In Pentz v. Stanton, 10 Wend. 271, it was held that in order to bind a principal—“ The agent in such case 'must either sign the name of the principal to the bill, or it must appear on the face of the bill itself, in some way or another, that it was in fact done for him, or the principal will not be bound; the particular form of the execution is not material, if it be substantially done in the name of the principal.”

In De Witt v. Walton, 9 N. Y. 571, Gardiner, C. J., said: “ The plaintiff has declared upon a promissory note as his only' cause of action. He must sustain his complaint by proof that the defendant was a party to the express contract upon which he has counted. He has given evidence tending to prove that Hoyt had authority to bind the defendant personally and legally, under the designation of ‘ The Churchman.’ But the contract produced is one according to which Hoyt assumes to pay, and signs his own name, with a statement appended that he is 1 Agent for the Churchman.’ This is not enough. The good sense of the many authorities upon this subject would seem to be that, where a party is sought to be charged upon an express contract, it must at least appear upon the face of the instrument that the agent undertook to bind him as principal. The appellation by which the contractor may be distinguished is of no importance, provided it be sanctioned by the principal and embraced in the power conferred upon the agent. * * * There is no great hardship in requiring that if one-man undertakes to oblige another, by note, bill of exchange, or other commercial instrument, he should manifest his purpose clearly and intelligibly, or that his principal will not be bound, whatever may be the result in reference to himself.”

That authority has been cited in numerous cases decided by the supreme court and the court of appeals, and apparently remains unshaken. It was referred to with approval in a case decided by this court in 1876, entitled Bank v. Hayes, 7 Hun, 530 ; and after explaining the apparent deviation from that cáse by the court in deciding Green v. Skeel, 5 Thomp., & C. 25, the learned judge adds: “We must, therefore, hold the'law to be that a principal is not bound by the contract of an agent, unless the name of the principal is set forth in the contract, or annexed to the signature of the agent, showing that it was the intention of the agent to contract for and in behalf of the principal. If the contract does not show this important fact, the principal is not bound, but the agent "may be personally responsible on the contract.” See page 535.

The language of Gray, J., in Merchants Nat. Bank v. Clark, 139 N. Y. 310; 54 St. Rep. 593, seems to be applicable to the case in hand. He says: “ Where a negotiable promissory note has been given for the payment of a debt contracted by a corporation and the language of the promise does not disclose the corporate obligation, and the signatures to the paper are in the names of individuals, a holder, taking bona fide and without notice of the circumstances of its - making, is entitled to hold the note as the personal undertaking of its signers, notwithstanding they affix to their names the title of an office. .Such, an affix will be regarded as descriptive of the persons, and not of the character of the liability. Unless the promise purports to be by the corporation, it is that of the persons who subscribe to it; and the fact, of adding to their names an abbreviation of some official title has no legal significance as qualifying their obligation, and imposes no-obligation upon the corporation whose officers they may be. This-must be regarded as a long and well-settled rule.”

He then, cites numerous authorities, among them De Witt v. Walton, supra. He then .adds: “ It is founded on the general principle that in a contract every material thing must be definitely expressed, and not left to conjecture. Unless the language-creates or fairly implies the undertaking of the corporation, if' the purpose is equivocal, the obligation is that of its apparent, makers.”

In the course of the opinion delivered in Briggs v. Partridge, 64 N. Y. 863, in respect to circumstances under which paroi evidence may be received where a paroi executory contract has been made by an agent in his own name, Andrews, J., said: “ There is a well-recognized exception to the rule in the case of notes and bills of exchange, resting upon the law merchant. Persons-dealing with negotiable instruments are presumed to take them on the credit of the parties whose names appear upon them ; and a person not a party cannot be charged upon proof that the ostensible party signed or indorsed as his agent.”

Among other cases cited by the learned judge to sustain that-proposition is De Witt v. Walton, supra.

The doctrine of Be Witt v. Walton, supra, is referred to by Land ON, J., in Leavens v. Thompson, 48 Hun, 391; 16 St. Rep. 386; and, after recognizing the rule laid down by that case and others, he says: “ These are cases of negotiable commercial paper, in which, from the form of the obligation, it was held that nobody appeared to be bound but the person who signed or accepted it; and the rule was applied that a person not appearing to -be a. party to negotiable paper cannot be charged upon it.”

Lerned v. Johns, 9 Allen, 419, asserts the same doctrine. See, also, Daniel Com. Inst. (Ed. 1892) p. 278, §§ 300, 301, 303; 305; 1 Rand. Com. Paper, § 380; Pumpelly v. Phelps, 40 N. Y. 60.

Appellant calls our attention to Brown v. Bank, 6 Hill, 443, which was a case where the indorsement was made with a lead pencil, and the party had used in place of his signature the figures-1, 2, 8 ; and evidence was given “ strongly tending to show that the figures were in Brown’s handwriting, and that he meant they should bind him as indorser; ” and the court charged that, if Brown used the figures, “ intending thereby to bind himself' as indorser, he was liable,” which charge was approved; and we see nothing in the case which sustains the position of the appellant.

Appellant calls our attention to Bank v. Warren, 15 N. Y. 577, which, was a case where one partner, without authority, and for his own exclusive benefit, indorsed a promissory note made by himself in the firm name, and the indorsee took the note with the full knowledge of the facts; and it was held that the co-partner, whose name was used, became liable by his ratification of the indorsement and his subsequent promise to pay the note. We find nothing in the case which supports the contention of the appellant that the note in suit is to be treated as the note of the defendant.

If the foregoing views are correct, the exceptions to the conclusions of law stated in the decision made by the circuit court present no error, and the conclusions reached at the circuit must be approved.

Judgment affirmed, with costs.

All concur.


source: Caselaw Access Project

author: Hardin, P. J.

license: Public Domain

text:
    William B. Reynolds, as Executor, etc., Resp’t, v. Amanda J. Strong, App’lt.

      {Supreme Court, General Term,, Fourth Department,

      Filed December 7, 1894.)

    1. Husband and wife—Grant.
    A deed to husband and wife creates an estate by entireties.
    ¡3. Vendor and purchaser—Title.
    Where a purchaser refuses to accept a deed on the ground that a third person claims the title, such question will not be determined in an action by the vendor for the purchase money.
    3. Same.
    Where, in such case, the vendee will, in order to defend his title, be obliged to resort to paroi evidence, he may refuse to complete his purchase, except in extraordinary cases, in which it is very clear that the purchaser can suffer no harm from the defect or incumbrance.

      4. Same—Legal action.
    The defense of a want of marketable title is as available in a law action, brought to recover the purchase price, as it would be in an equitable actipn for specific performance.
    Appeal from a judgment, entered on a decision in favor of plaintiff on a trial by the court.

      Fared T. Newman, for app’lt; Charles S. Everett, for resp’t.
   Hardin, P. J.

Grideon Reynolds and Oelancy Reynolds, his wife, November 5, 1867, received a conveyance from William ■Cory of the lands described in the complaint, consisting of about 125 acres lying in the town of Hector, Schuyler county, for the consideration of $5,000 recited in the conveyance. They took as tenants by the entirety, and the survivor took the whole estate. Bertles v. Nunan, 92 N. Y. 152; Bram v. Bram, 20 Wkly. Dig. 519: Baker v. Stewart, 19 Pac. 904; Wurz v. Wurz, 15 N. Y. Supp. 720; 27 Abb. N. C. 58, and notes; O’ Connor v. McMahon, 54 Hun, 66; 26 St. Rep. 596; Coleman v. Bresnaham, 54 Hun, 619; 28 St. Rep. 208; Miner v. Brown, 45 St. Rep. 188; Zorntlein v. Bram, 100 N. Y. 12; Steltz v. Shreck, 128 N. Y. 263; 40 St. Rep. 267; Germania S. Bank v. Jung, 18 N. Y. Supp. 709; Jooss v. Fey, 41 St. Rep. 211. On the 7th day of November, 1867, Gideon Reynolds executed a mortgage to William Cory for $3,000, which was recorded on the 26th of March, 1875, which still remains open on the record, not having been satisfied by Cory in his lifetime or by his administrator. Subsequent to his death his administrator commenced an action in this court for the foreclosure of the mortgage. Subsequent to the death of Gideon Reynolds, which occurred on the 23rd day of March, 1875, his widow and their three children, William B. Reynolds, Amanda J. Strong, and Mrs. Thomas, interposed an answer to the foreclosure suit, challenging the validity of the mortgage and the attempted lien upon the property, and the issues formed in that action were brought to trial at a special term of this court held on the 25th of June, 1878, which court “found and decided that said Gideon and Celancy Reynolds took and held said premises as tenants by the entirety; that, on the death of said Gideon Reynolds, said mortgage was void; that the plaintiff had no right of action upon said mortgage ; and that the complaint in said action be dismissed,— and directing judgment thus to be entered dismissing the plaintiff’s complaint, without costs to or against either party; which findings and decisions were filed and entered in the office of the clerk of Schuyler county on the 19th day of April, 1892.” It does not appear that any judgment was entered on that decision. On the 23rd day of May, 1873, Gideon Reynolds made and published his last will and testament, which was duly admitted to probate, after his death, by the surrogate of Schuyler county, wherein, among other things, he bequeathed unto his wife, Celancy Reynolds, all his personal property, of every kind and nature; and he also, in the same will, gave to his wife “entire possession, use, and control of all my farm or real estate, consisting of 120 acres of land on lots Nos. 85 and 86 in the town of Hector, * •* * where I now reside, to be used and enjoyed by her without impeachment for waste during her natural life, for her comfortable support and maintenance.” The will also contained further provisions, to wit: “It is my will, and I hereby order and direct, that my whole estate, personal and real, shall be applied and devoted to and for the comfortable support and maintenance of my said wife, Celancy Reynolds; * * * and in case the personal property left at my decease, after paying debts and funeral charges, together with the rents, issues, and profits of real estate, shall not be sufficient for her comfortable support and maintenance, as above provided for and specified, * * * then and in that case I hereby authorize and direct my executor hereinafter named to raise the additional amount necessary to meet such deficiency by executing a mortgage upon such real estate or otherwise, and pay the amount, when so raised, to her for such support, as hereinbefore provided.”

And the will also further provided as follows; “(3) After the death of my said wife, Celancy Reynolds, I hereby authorize my said executor to sell and convey all my real estate, and whatever may remain of my personal estate, and out of the funds arising from such sale or sales pay the funeral expenses of my said wife, and such debts and liabilities as herein authorized and contemplated, and the residue and remainder of my estate to be disposed of as hereinafter directed.”

I give and bequeath to my daughter, Amanda J. Strong, wife of Lerue P. Strong, and Lydia Tliornas, wife of John E, Thomas, each the sum of $1,700. The above legacies to my daughters is intended to make them equal sharers with my son, William B. Reynolds, to whom I have already given a like amount, and the residue of my estate, if any, after paying the two-legacies to my two daughters as above provided, I give and bequeath to my three children, my two daughters above named, and my son, William B. Reynolds, equally, share and share alike.”

The will named William B. Reynolds as executor, and he received letters testamentary and settled up the estate, and «was discharged by the surrogate upon a final accounting. The testator left no other real estate. The personal property, after the payment of the debts and expenses, amounted to about $1,220, and the possession thereof was delivered to Celancy Reynolds, she executing back to the executor a promissory note conditioned to be paid in the event it was necessary for the payments of his debts, she claiming the property under the will. When the executor settled the estate he had ascertained that it was not necessary that her note should be paid, and he brought it into the settlement, and received credit therefor in his final accounting. Inasmuch as her note had been simply given to protect the executor in case he should be compelled to pay the’ Cory mortgage or any other indebtedness of- the testator, he was credited with the note upon the assumption that he had paid to her the amount there of, as legatee under the will. The final accounting did not take place, however, until after the death of Celancy Reynolds, which occurred on the 1st day of September, 1890. She remained in possession of the personal property thus acquired under the will of her husband, and she remained in possession of the real estate mentioned in the complaint and mentioned in his will, as aforesaid, and continued therein until the time of her death. She left a last will and testament, made and published on the 24th day of September, 1885, which was duly admitted to probate by the surrogate of Schuyler county, and letters testamentary were issued to the plaintiff, her son, who was named therein as the executor. In her will she bequeathed to her daughter Lydia Thomas and to her son, William B. Reynolds, each the one equal one-third part of all her real and personal estate absolutely; and the second paragraph of her will was as follows: ‘'The remaining one-third part of my said estate I give, devise,, and bequeath to my daughter Amanda J. Strong, to be used by her for her use and benefit during her natural life, hereby giving her full power to sell and convey the same, and use it as she may see fit; and, in the event of her dying without a will, that portion which shall remain at her decease, or the proceeds of the same, I hereby give, devise, and bequeath to her five children, viz. Leander Strong, Cory Strong, Lewis P. Strong, Ella Strong, and Lee Strong, or to such ones of said children as shall be living at the decease of said Amanda.” .

And the third provision of her will was as follows : “I hereby authorize and empower my executor hereinafter named to sell and convey any,and all of my real estate, and divide the proceeds as herein provided. Likewise, I make, constitute, and appoint William B. Reynolds, my son, to be executor of this, my last will and testament, hereby revoking all former wills by me made.”

The plaintiff, her executor, about the 2d of October, 1890, received letters testamentary from the surrogate, and entered upon the discharge of his duties as such; and on the 14th day of March, 1892, he entered into an agreement with the defendant, his sister, under their hands and seals, for the sale of the farm described in the complaint, and by the terms of the contract so entered into by the parties, the plaintiff agreed to sell the land described in the complaint, consisting of about 125 acres of land, for the sum of $4,375, which she agreed to pay for as follows: “On the 1st day of April, 1892, $2,916.67 in money, $500 by receipt for that amount to apply on her distributive share or legacy under the will of Celancy Reynolds, deceased, and her note for $958.33, with interest from the 1st day of April, 1892, to be collaterally secured by an assignment on her interest in the estate of Celancy Reynolds, deceased."

And he agreed as follows: “On receiving such payment, at the time and in the manner above' mentioned, shall, at his own proper cost and expense, execute and deliver to the said party of the second part, or to her assigns, a good and sufficient executor’s deed of said premises, accompained by a certified search from the clerk of the courtty of Schuyler.”

Indorsed upon that contract is the $500 down payment by way of a receipt mentioned in the contract. It may be observed that the covenants in the contract were mutual and dependent (James v. Burchell, 82 N. Y. 108), and that the vendor was obliged to give a good title (Bostwick v. Beach, 31 Hun, 343), and that the language used required, not only a deed good in its phraseology and form, but one that transferred a good and sufficient title (Story v. Conger, 36 N. Y. 673), and a title that was not merely valid in point of fact, but one that was marketable,—such a one as might be sold to a reasonable purchaser, or mortgaged to a person of reasonable prudence as security for the loan of money. Moore v. Williams, 115 N. Y. 586; 26 St. Rep. 259; Meth. E. Church Home v. Thompson, 108 N. Y. 618; 13 St. Rep. 127; Haffey v. Lynch, 143 N. Y. 247; 62 St. Rep. 171. The defendant was in possession of the premises at the time the contract was entered into, having had the occupancy from the time of her mother’s death, and claims to occupy as a devisee under her father’s will, subject only to the power of sale given to his executor as a tenant in common with her sister, Lydia B. Thomas, and her brother, William B. Reynolds. Apparently, the defendant in good faith entered into the contract for the purchase of the premises, and sought with " some diligence to perform the requirements of the contract on her part. However, when she sought to raise money upon the premises, of a lender who had given her assurances that he would furnish her money, she was finally refused a loan by the party to whom she had applied, he having made inquiries as to the condition of the title to the property, and having learned that the mortgage given to 'Cory remained unsatisfied of record, and that the sister of defendant and of the plaintiff, Mrs. Thomas, claimed an interest in the property to the extent of $1,700, the legacy named in the will of her father, and the lender refused to make the advance necessary to enable the defendant to complete the purchase; and thereupon the defendant was unable to carry out the terms of her contract for the purchase of the premises according to the tenor and spirit of the contract entered into by her with her brother, the plaintiff, executor of the will of Celancy Reynolds. Thereupon this action was commenced to recover the purchase price mentioned in the agreement, and the plaintiff in his complaint alleges a tender of the deed, and demand of performance of the contract. In answer thereto the defendant says that he has not tendered a good title, and that he was not possessed of a good titleorpower to convey such a one, inasmuch as it is asserted that Celancy Reynolds, by accepting the personal property mentioned in the bequest made to her by Gideon Reynolds, elected to adopt, confirm, and approve his will, which undertook in terms to dispose of the real estate in question to his heirs at law, and the answer of the defendant also sets up that the title tendered by the plaintiff was not a marketable one, and therefore she was not obliged to fulfill the stipulations of the agreement on which the plaintiff rested his right of recovery. The trial court held, as matter of law, that the plaintiff was entitled to recover, and awarded judgment for thé balance stated to be due upon the contract, to wit, $3,875, and interest.

It is insisted in behalf of the appellant that Celancy Reynolds, by receiving the personal property bequeathed to her by the will of Gideon Reynolds, elected to carry out the provisions of her husband’s will, and hence that at the time of ■ her death she had not title to the real estate in question which would pass under her will, and that the power of sale mentioned in her will of the real estate was "inoperative, and therefore that the plaintiff, by tendering a deed, did not offer to the defendant a good title to the property described therein. It appears by the evidence that, before the deed was tendered by the plaintiff to the defendant, the sister, Mrs. Thomas, had instituted proceedings before the surrogate against the executor (the plaintiff), seeking to recover the $1,700 mentioned in her father’s will, and that the plaintiff had notice of such claim, as did also the defendant. A hearing was had before the surrogate, and he finally reached the conclusion to dismiss the proceedings “ upon the ground that it is not proven to the satisfaction of the surrogate that there is money or other personal property of the estate of Gideon Reynolds, deceased, applicable to the payment or satisfaction of the petitioner’s claim, within subdivision 2, § 2817, Code Civ. Proc., and without prejudice to an action or accounting in behalf of the petitioner.” The decision seems to have been made on the 5th day of May, 1892, and about that period the plaintiff and the defendant were advised, in behalf of Mrs. Thomas, that her claim would be persisted in, and that proceedings would be taken to enforce the same, and on the 12th day of May, 1892, when the plaintiff tendered the deed, he had knowledge of the position taken by his sister Mrs. Thomas, who insisted that, by reason of the election of her mother to accept the personal property mentioned in the will of the father, her claim was a valid one, and could be enforced out of the real estate in question. In Havens v. Sacked, 15 1ST. Y. 365, it was held: “In equity, one who accepts a benefit under a deed or will must adopt the whole contents of the instrument, and renounce every right of-his own inconsistent with its full effect and operation, though otherwise legal and well founded. He must elect to renounce the beneficial interest given by the instrument, or to make good any disposition which the testator has affected to make of property which is not his own, but that of a beneficiary thus bound to make an election.”

In Leonard v. Crommelin, 1 Edw. Ch. 206, it was held that: “A person shall not claim an interest under an instrument (either deed or will) without giving full effect to the same as far as he can, and renouncing any right which would defeat it. He who makes his election is bound to abide by it, unless he can restore the property to its original situation, and the taking possession binds the performance, although there be a loss.”

In Caulfield v. Sullivan, 85 N. Y. 159, it was said, viz. : “ By accepting the provisions made for her, she assented to all the terms and conditions annexed to it, and yielded every right inconsistent with such terms and conditions. One who accepts of a devise or bequest does so on condition of conforming with the will. Ho one is allowed to disappoint a will under which he takes a benefit, and every one claiming under a will is bound to give full effect to the legal dispositions thereof, so far as he can, Chamberlain v. Chamberlain, 43 N. Y. 424; and, where one is thus put to his election under a will, it matters not that what he takes turns out to be greater or less in value than that which he surrenders. Brown v. Knapp, 79 N. Y. 136.”

The same doctrine was stated in Lee v. Tower, 124 N. Y. 375; 36 St. Rep. 344, in the following language: “Ho one can be allowed to disappoint a will under which a benefit is accepted, but, on the contrary, must concede full effect to the dispositions thereof.”

' Appellant calls attention to Worthington v. Wiginton, 20 Beav. 67, and 6 Am. & Eng. Enc. Law, 251, and other cases in harmony with those from which quotations have already been made. On the other hand, it is claimed by the respondent that an election was not proven by unequivocal acts; that the presumption is that she did not elect—and it is insisted that, if her acts can be construed, or a meaning given to them, inconsistent with an election, then no election was made; and in support of that contention reference is made to Cox v. Rogers, 77 Pa. St. 160; Story, Eq. Jur. §§ 1097, 1098; Pom. Eq. Jur. §§ 514, 515; Spread v. Morgan, 11 H. L. Cas. 588; Marriot v. Badger, 5 Md. 306, and Whitridge v. Parkhurst, 20 Md. 62. And it is also insisted by the respondent that Celancy Reynolds did not take possession of the personal estate or the real estate under the will of Gideon Reynolds, and that there were no certain and unequivocal acts indicating an election. It appears in the evidence that she remained in possession of the real estate from the time of the death of her husband, in 1885, to 1890, the time of her death. It is to be borne in mind, however, that by the terms of the will of Gideon Reynolds she was given a life use of the property, and whether she was in possession as owner, or in the enjoyment of her life estate in virtue of the will, if she had made an election, is not made absolutely clear by the evidence furnished upon the trial. It is insisted in behalf of the respondent that the fact that she joined in the defense made to the Cory management indicates that she had made no election. However, it is to be observed that nothing is discovered in the findings made on the trial of that action which indicates precisely the nature and character of the defense interposed, nor the evidence offered in support of the position taken in the answer of the defendants in that action. It is to be observed that a solution of the question presented by the contention of the respective parties in regard to whether there was an election, if determined in this action, would not bind Mrs. Thomas; and in Fleming v. Burnham, 100 N. Y. 8, where the question was raised as to whether a purchaser should be required to take a title as to which certain objections were made, it was said “ the purchaser is entitled to a marketable title, free from reasonable doubt; ” and, after stating that the parties to an action are bound by the determination therein made, the court observes: “ But the court stands' in quite a: different attitude where it is called upon to "compel a purchaser to take title under a judicial sale, who asserts that there are outstanding rights and interests not cut off or concluded by the judgment under which the sale was made. The objection may involve a mere question of fact, or it may involve a pure question of law upon undisputed facts. In either case it may very well happen that the question is so doubtful that, although the court would decide" it upon the facts dis closed, in a proceeding where all the’partiés interested were before the court, nevertheless it would decline to pass upon it in a proceeding to compel'a purchaser to take title, and would relieve him from his purchase. The reason is obvious. The purchaser is entitled to a marketable title. A title open to a reasonable doubt is not a marketable title. The court cannot make it such.by passing upon an objection on a disputed question of fact or a doubtful question of law, in the absence of the party in whom the outstanding right was vested. He would not be bound by the adjudication, and could raise the same question in a new proceeding. The cloud upon the purchaser’s title would remain, although the court undertook to decide the fact or the law, whatever moral weight the decision might have, it would especially be unjust to compel a purchaser to take a title, the validity of which depended' upon a question of fact, where the facts presented upon the application might be changed on a new inquiry, or are open to opposing inference. There must doubtless ,be" a real question and a real doubt; but, this - situation existing, the purchaser should be dis-" charged. Shriver v. Shriver, 86 N. Y. 575, and the' cases cited; Hellreigel v. Manning, 97 N. Y. 56.”

And in Abbott v. James, 111 N. Y. 673; 20 St. Rep. 230, the case from which the quotation has just been made was approved; and it was an action to compel specific performance, on the part of the defendant (the purchaser), of a contract to purchase certain real estate; and, in the course of the opinion delivered in that •case, Finch, J., observes : “ Yumerous authorities are cited on both sides, and many considerations are advanced not necessary to be repeated. While upon the inquiry involved I have, perhaps, formed some decided opinion, I am obliged to admit that the question is doubtful and debatable, and justified the differences of -opinion which have risén among us. Those differences have not been wholly founded upon questions of law, but have rested somewhat upon the uncertain and undisclosed character of the facts; for, while they are settled in this case by the complaint and demurrer, the heirs may show them to be entirely different, and will be at liberty to .do so if they can. * * * In such an emergency we must remember that, if we force this title upon the purchaser, he may have to confront the heirs at law in a future litigation. They are not before us, and will not be bound by our decision. They will have a right to be heard, both as to the facts and the law ; and, since the question is doubtful and quite evenly poised, we think we ought not to expose the purchaser to the possible risks of the situation. We have therefore briefly stated the question sufficiently to disclose its general character, and without any argument upon it, which would be improper in view of our -conclusion.”

With due deference to the cases from which the quotations have been made, we are led to the conclusion that the question of election ought not to be passed upon in such a way as to compel the ■defendant to accept the title tendered by the deed of the plaintiff, and that if such a conclusion were to be asserted in this action it would not bind Mrs. Thomas, who is not a party to the suit. If the plaintiff had brought this action for specific performance of the contract in question, and had interpleaded Mrs. Thomas, so that all of the questions of fact, as well as of law, could have been authoritatively established, and made binding upon Mrs. Thomas as well as upon this defendant, the questions which the plaintiff has sought to have solved in his favor might been considered and conclusively determined. Bearing in mind, besides the question of election, to which reference has been made, it appeared at the trial of this action that the Cory mortgage remained unsatisfied of record, and that no judgment in the action of foreclosure had been entered, we are of the opinion that the plaintiff did not present a marketable title which the defendant-should be compelled to accept. The defendant would be exposed to litigation. She would have a piece of real estate which her father had at least clouded by his will, and which had on it an apparent lien created by the mortgage executed by her father to Cory. In Jordan v. Poillon, 77 N. Y. 521, in speaking of a purchaser, the court observed: “ He should not be left, upon receiving a deed, to the uncertainty of a doubtful title, or the hazard of a contest with other parties, which may seriously affect the value of the property if he desires to sell the same. It is easy to see how a claim of this kind might impair the value of the real estate sold by casting a cloud over the title, or by subjecting the purchaser to the risks of a contest at law. From such a result he is entitled to protection, and the case should be very plain which would authorize a court to decide a question arising on a motion to compel a party to take a conveyance.”

And in Meth E. Church Home v. Thompson, 108 N. Y. 618; 13 St. Rep. 127, which was an action brought to recover back a payment made upon a contract of purchase, it was said: “ A reasonable doubt as to the vendor’s title, such as to affect the value of the property, and to interfere with a sale thereof to a reasonable purchaser, is sufficient. This rule applies as well in such case as where the vendor sues for specific performance.”

The same doctrine was reasserted in Kilpatrick v. Barron, 125 N. Y. 751; 36 St. Rep. 15. In Moore v. Williams, 115 N. Y. 586; 26 St. Rep. 259, it was held that: “ Where there is a defect in the record title, or an apparent incumbrance upon the premises, and the vendee, in order to defend his title, would be obliged to resort to paroi evidence, he may refuse to complete his. purchase, at least except in extraordinary cases in which it is very clear the purchaser can suffer no harm from the defect or incumbrance.”

In that case there was an outstanding lien, and near the close of the opinion it is said: “ The vendors should be at the expense of clearing the title of this cloud, and it is not just that they should cast that burden upon the vendee, and require him to take an unmarketable title.”

And in Fisher v. Wilcox, 77 Hun, 208; 59 St. Rep. 764, it was. held, viz.: “ When the validity to the title of real estate is doubtful, the court ought not to determine the question, and compel an acceptance of the title, in the absence of, and without hearing, all parties whose rights depend on tfie decision of the same.”

McPherson v. Smith, 49 Hun, 255; 17 St. Rep. 19. And in Crouter v. Crouter, 133 N. Y. 55; 44 St. Rep. 315, it was said, near the close of the opinion: “ The defect is also curable if the proper proceedings are taken for that purpose; but the burden of causing the necessary steps to be taken to conclude the defendants in this action cannot be cast upon the purchaser at the same. He has a right to expect and demand a marketable title, and one free from a reasonable doubt as to its validity.”

Vought v. Williams, 120 N. Y. 253; 30 St. Rep. 899. In Moore v. Williams, supra, it was" held, “Although the distinction between good and marketable titles is peculiar to courts of equity, since the union in this state of law and equity in the same courts, an action at law by the vendee to recover back purchase money paid may be based upon the equitable ground for rejecting a title, i. e. that it is not marketable.”

That case seems to be an authority for holding that the defense of a want of marketable title is as available in a law action brought to recover the purchase price as it would have been in an equitable action for specific performance. See opinion, page 597, 115 N. Y. The foregoing views lead to the conclusion that the judgment should be reversed and a new trial ordered.

Judgment reversed, and a new trial ordered, with costs to abide the event.

All concur.


author: Putnam, J.

text:
    The People, Resp’t, v. Troy Steel and Iron Company, App’lt. Amelia Lortie, as Administrator, etc., Resp’t, v. Same, App’lt.

      (Supreme Oowrt, General Term, Third Department,

      Filed December 4, 1894.)

    1. Appeal—Corporation—Receiver.
    An appeal, in the name of a corporation, from an order'continuing an action against it after its dissolution, will be deemed to have been taken by the receiver.
    2. Abatement and revival—Corporation.
    The supreme court, under §§ 755, 756 of the Code, has the same power to continue an action against a corporation when it was dissolved as the court of chancery had under chap. 295 of 1832.
    3. Same—Death by wrongful act.
    An action against a corporation for death by wrongful act survives its dissolution, and may be continued against its receiver.
    Appeal from a judgment in favor of plaintiff.

      Thomas S. Fagan, Edward W. Douglas, and Frank 8. Black, for appl’t; Countryman & Du Bois, for resp’t.
   Putnam, J.

This action was brought in the month of March, 1893, by the plaintiff, as administratrix, to recover damages for the death of her husband, which the complaint alleged was caused by defendant’s negligence. The defendant, a corporation, was dis-' solved by a judgment of the supreme court in August, 1893, in an action brought by the attorney general in the name of the people of the state, and receivers appointed. On plaintiff’s motion, in March, 1894, an order was made at special term continuing the action against the receivers, and from such order this appeal is taken.

It is urged by the respondent that, as the receivers have not appealed, and the corporation is “ defunct,” the appeal taken in its name should be dismissed; that in fact there is no appeal now pending. We think defendant’s position is not well taken. The receivers could take an appeal, either in their own name, or in that of the corporation, and hence the appeal under consideration should be deemed that of the receivers in the name of the corporation. Talmage v. Pell, 9 Paige, 410. It is held that a jndgment in a sequestration action brought by a creditor against a corporation under the provisions of § 1784 of the Code of Civil Procedure, appointing a receiver, does not dissolve the corporation, or prevent the prosecution of actions against it. Del Valle v. Navarro, 21 Abb. N. C. 136; Auburn Button Co. v. Sylvester, 68 Hun, 401; 52 St. Rep., 180. A judgment, however, for the dissolution of a corporation and the appointment of a receiver, in an action by the people of the state, brought under the provisions of § 1785 of the Code of Civil Procedure, ordinarily' has the effect of preventing the maintenance of an action against the corporation; and, if actions are pending at the time of the rendition of such judgment, they cannot be continued unless by order of the court by whom the judgment was rendered. Sturges v. Vanderbilt, 73 N. Y. 384-388. After such a judgment against a corporation, in the language of Field, J., in Bank v. Colby, 21 Wall. 609-615: “Its existence as a legal entity was thereupon ended. It was then a defuntit institution, and judgment could no more be rendered against it in a suit previously commenced than judgment could be rendered against a dead man dying pendente lite. This is the rule with respect to all corporations whose chartered existence has come to an end, either by lapse of time or by decree of forfeiture, unless by statute pending suits be allowed to proceed to judgment notwithstanding such dissolution."

By chapter 295, Laws 1832, it was provided that if a corporation shall have been dissolved by a decree of the court of chancery, or by expiration of its charter, during the pendency of an action against it, the court shall have power, on the application of either party, to make an order for the continuance of the action, and the same shall be continued until.final judgment. The power thus conferred upon the court to continue actions after the dissolution of a corporation in terms apply to all actions. The statute of 1832 remained in force until 1880, when it was repealed. We are inclined to believe that under the provisions of §§ 755, 756 of the Code of Civil Procedure the same power is now vested in the supreme court to continue actions pending against a corporation, when it is dissolved under the provisions oE § 1785 (supra), as was conferred upon the court of chancery by chapter 295, Laws 1832. That the court now possesses that power was decided in the case of People v. Ins. Co., 17 Wk. Dig. 563. In People v. Knickerbocker Life Ins. Co., 106 N. Y. 619-623; 11 St. Rep. 165 (decided after the repeal of the act of 1832), Judge Dahforth, in his opinion, says: a It is therefore plain that the funds in his hands should not be affected by it (the judgment obtained after the appointment of the receiver) unless, by interference or otherwise, under the direction of the court appointing him, he has made himself responsible for the final result of the litigation between the parties. McCulloch v. Norwood, 58 H. Y. 563. Ilis authority to do the acts relied upon by the respondents was derived from the court from which he received his appointment, and its exercise was necessary for the protection of the property which had come to his hands."

In the above-cited case it will be seen that it was suggested that the receiver, under the direction of the court appointing him, might subject the funds in his hands to the payment of a judgment obtained after his appointment, as was held he could in McCulloch v. Norwood, decided when the act of 1832 was in force. We think it was intended to confer on the supreme court by §§ 755 and 756, supra, the same power that was vested in the court of chancery by chapter 295, Laws 1832, and hence the order appealed from was properly granted, unless the action abated on the dissolution of the corporation. Under § 755, actions that do not abate are those where the right of action survives or continues. Whether the action set out in the complaint herein is one that survived the dissolution—the death—of the corporation, is a question as to which we have entertained some doubt. , It is held that the cause of action given by § 1902, Code Civ. Proc., to the representatives of a decedent whose death was caused by the negligence of another abates on the decease of the wrongdoer, and cannot be maintained against his representatives. Hegerich v. Keddie, 99 N. Y. 258. It is urged with much force that a judgment dissolving a corporation ends its existence; that on the rendition of such a judgment a corporation is extinct, and the same rule, as to the survival of causes of action against it, should apply as to survival in actions against an individual. In Greeley v. Smith, 3 Story, 657, 658, Judge Story says : “ How, I cannot distinguish between the case of a corporation and the case of a private person dying pendente lite. In the latter case the suit is abated at law, unless it is capable of being revived by the enactments of some statute, as is the case as to suits pending in the courts of the United States, where, if the right of action survives, the personal representatives of the deceased party may appear, and prosecute or defend the suit.”

As an original question, we should have entertained some doubts whether the cause of action set out in the complaint—the alleged negligence of the defendant in causing the death of the plaintiff’s intestate—was one that survived the dissolution of the corporation, and hence whether the court below had the right to continue the action against the receivers. But we have been cited to the opinion delivered by Justice Cullen of the second district in Hepworth v. Union Ferry Co., in which the learned justice reached the conclusion that an action for assault on a passenger of a ferry company by one of its employees, pending against the corporation on its dissolution in consequence, of the expiration of its charter, survived, and could be continued against the trustees of the corporation. The decision was affirmed by the general term of the second district. 62 Hun, 257; 41 St. Rep. 783. The appeal from the judgment of the general term to the court of appeals was dismissed. 131 N. Y. 645. We may assume that if the court of appeals had reached the conclusion'in the consideration of the case that the action did not survive, and hence that the court below had no power to continue it, the appeal would probably not have been dismissed. Under the doctrine laid down in Hepworth v. Union Ferry Co., the cause of action set out in the complaint in this action survived the dissolution of the corporation, and the case could be continued against the receiver. Under the authority of that case, the order from which the appeal is taken should be affirmed. Order affirmed, with costs.

Mayham, P. J., concurs in result • Herrick, J., not acting.


text:
    James R. Duncan, Resp’t, v. George C. Treadwell Company et al., Def’ts. F. T. Herz et al., Judgment Creditors, App’lts.

      (,Supreme Court, General Term, Third Department,

      Mled December 4,1894.)

    Corporations—Receiver.
    A receiver, appointed in an action against a corporation and two directors for waste, will not be continued in office after such directors have been removed, in the absence of a request to dissolve the corporation or dis tribute the assets.
    Appeal from an order, denying a motion by the judgment creditors of a corporation, for an order directing the receiver to pay to the sheriff the amount due on their judgments.

      Simpson & Werner (Louis Werner, of counsel), for app’lts; Zeb. A. Dyer, for resp’ts.
   Putnam, J.

If the receiver had been appointed in an action for the dissolution of the George C. Treadwell Company, and the distribution of its assets among creditors, brought by the attorney-general or a judgment-creditor after an execution had been returned unsatisfied, or in a proceeding for the voluntary dissolution of the corporation, the order from which the appeal is taken would not have been disturbed. Attorney- General v. Continental Life Ins. Co., 28 Hun, 360; Woerishoffer v. North River Const. Co., 99 N. Y. 398. But this was an action by a stockholder against the corporation and two of its directors. Plaintiff alleged waste of assets in consequence of the wrongdoing and mismanagement of said directors and others confederating with them, and a scheme of said persons to wreck the corporation, and asked for an accounting by said directors, that the corporation and its officers be restrained from exercising any of the corporate rights, and for the appointment of a receiver. Plaintiff did not ask to dissolve the corporation or distribute its assets, but commenced the action on the ground of the wrongdoing of the said directors and their confederates, and hence the waste of assets and mismanagement of the corporate business. Since the commencement of the action a new election of directors of the corporation has been had, and the two malfeasant directors removed, and plaintiff and those in accord with him are in control of the corporation. It is hence difficult to see on what ground the receivership continues. Directors against whom no charge is made are in control of the corporation, and, although the action may be continued for the purpose of a judgment against the malfeasant directors, there can be no object in continuing such receivership. The object for which plaintiff obtained the appointment of the receiver has been attained by the voluntary action of the corporation and its stockholders. We are not aware of any statute or law which justifies the continuance of the receivership for the purpose of giving the corporation time to raise money to pay its debts. There seems to‘be no other reason why there should continue to be a receiver of the George C. Tread-well Company. If the corporation is insolvent and unable to meet its obligations, it should make the application for a volunary dissolution under the provisions of the statute. We think-the papers before us clearly show, assuming that the appointment •of the receiver in this action was originally authorized, that the ■continuance of the receivership is unnecessary and improper. However much we might desire to, under the peculiar circumstances of this case, we cannot properly make use of such receivership for the purpose of giving time to the corporation to meet its obligations. It follows that the petitioners who have obtained judgment against the corporation should not be delayed in the collection thereof by an unnecessary receivership which should not continue. For reasons unnecessary to state, we also think that the prayer of the petitioners should have been granted, although it had not been made to appear at that time that the two malfeasant directors had been removed. See Webster v. Lawrence, 47 Hun, 565; 15 St. Rep. 140.

The order should be reversed, with costs, and the motion granted, without costs, permitting the sheriff to proceed and sell the coporate property.

Mayham, P. J., concurs; Herrick, J., not acting.


text:
    George H. Fleetham, Resp’t, v. George C. Reddick, App’lt.

      (Supreme Oourl, General Term, Third Department,

      Filed December 4, 1894.)

    -Chattel mortgage—-Property not in existence.
    Mortgage on crops before they are planted, to secure a debt other than the rent of the land on which they are to be grown, confers upon the mortgagee only a license to seize such crops and, until such seizure, he cannot maintain an action for conversion in justice’s court.
    Appeal from a judgment in favor of plaintiff.

      Joseph George, for app’lt; G. W Hurlbut, for resp’t.
   Putnam, J.

This is an appeal from the judgment of the county court of St. Lawrence county.' On the 27th day of February, 1893, defendant gave plaintiff a chattel mortgage on all grain raised on the farm that he worked for said Fleetham in the year 1893. When the mortgage was executed the grain was not in -existence, nor in the ground. After the grain was raised on the farm, it was ‘sold by the defendant, and subsequently demanded by plaintiff. An action was brought in justice’s court for the ■conversion of the oats raised on said farm, and judgment was rendered in said court against the defendant for $>113.10. The debt secured by the mortgage was not for the rent of the farm.

To maintain the action, plaintiff was bound to show that he was the owner of the grain in question. If he had title to such property at the time the defendant sold it, such title was derived from the chattel mortgage executed February 27, 1893, long before the grain was sown. It has been deemed established that growing crops may be sold or mortgaged, but, under the authorities, it is doubtful whether the owner or lessee of land can give a mortgage on crops not yet planted, which shall have the effect of conveying the legal title thereto. That the lessee could convey such crops to his landlord to secure the rent has been decided; under such a contract, it being deemed that the title to the future-crops, when grown, vested at once in the landlord, and not in the lessee. Van Hoozer v. Corey, 34 Barb. 9; Conderman v. Smith, 41 id. 404; Smith v. Taber, 46 Hun, 313; 14 St. Rep. 644; Rochester Distilling Co. v. Rasey, 142 N. Y. 570-576; 60 St. Rep. 284. Ordinarily, however, legal title to property not in existence, actually or potentially, cannot be transferred by way. of a mortgage. Deeley v. Dwight, 132 N. Y. 59; 43 St. Rep. 409; Rochester Distilling Co. v. Rasey, 142 N. Y. 570; 60 St. Rep. 284. In the authority last above cited, it was held, in the case of a mortgage-given by the lessee of land on crops not planted, that crops which are the annual product of labor and of the cultivation of the earth have no actual or potential existence before planting. It would seem to be indicated by the authority above cited that the mortgage under which the plaintiff claimed being given upon crops not having any actual potential existence at the time the instrument was executed, and not made to secure rent, no legal title to said crops was ever in plaintiff, and hence that the action should not have been sustained in a justice's court. We think the proper doctrine, in regard to such a mortgage of crops to be planted as that under which plaintiff claimed in this action, is well stated in McCaffrey v. Woodin, 65 N. Y. 459-464: “At law, a mortgage upon property not yet acquired is, according to the authorities, only a license until a new act intervenes.” In that case the mortgagee, pursuant to the license contained in the mortgage, had seized the property; and it was held that such seizure was lawful, and that, after seizure, title to the property vested in the mortgagee. In Williams v Briggs, 16 Alb. Law J. 387,—which was, like this, an action of trover by the mortgagee against the voluntary assignee of the mortgagor,—it was held that a mortgage of personal property to be subsequently acquired conveys no title to such property, when acquired, which is valid against the mortgagor or his voluntary assignee, unless, after acquisition by the-mortgagor, possession of such property is given to the mortgagee or taken by him under the mortgage.

We conclude that plaintiff, under his chattel mortgage, took no legal title to the crops thereafter planted or raised by the defendant. His mortgage conferred on him a license to take such crops, and, had he seized them before the sale by the defendant, the title to such property would have then vested in him; but as, prior to any such seizure, the defendant sold the property, plaintiff never had such a legal title thereto as enabled him to maintain an action of trover in justice’s court. See Page v. Larrowe, 22 N. Y. Supp. 1099; Cressey v. Sabre, 17 Hun, 120; Rochester Distilling Co. v. Rasey, 65 id. 512; 48 St. Rep. 301; Milliman v. Neher, 20 Barb. 37.

We do not think it necessary to discuss the question whether the mortgage, by its terms, conveyed grain to be planted and raised after the date of its execution.

The judgment should be reversed, with costs.

All concur.


author: Putnam, J.—This Herrick, J.

text:
    Frances E. Williams, Resp’t, v. United States Mutual Accident Association of the City of New York, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed December 4, 1894.)

    1. Insurance—Accident—Burden of proof.
    In an action on an accident insurance policy, the plaintiff is not obliged to prove that the death of the insured was not caused by the means excepted to in such policy.
    2. Same—Question of fact.
    ' The jury were held, under the evidence in this case, to be justified in determining that the death of the insured was caused by accidental means, and was not the result of a voluntary exposure to unnecessary danger.
    Appeal from a judgment in favor of plaintiff.

      Winsor B. French (Richard L. Hand, of counsel), for app’lt ¡ Theodore F. Hamilton (Edgar T. Brackett, of counsel), for resp’t.
   Putnam, J.—This

action was brought on a contract of accident insurance by which defendant insured the life of Alonzo G. Williams for the sum of $5,000 against death through external, violent and accidental means. On the evening of November 22,. 1889, said Alonzo was struck by a locomotive on the crossing of the Adirondack Railway track at Church street, Saratoga Springs, N. Y., and killed. Due proofs of death having been furnished defendant, it became liable to the plaintiff under the insurance contract, unless the defenses set up in the answer were established by the evidence on the trial. The contract, among other things, provided that the insurance “ shall not extend to or cover * * *. suicide, felonious or otherwise, sane or insane; * * * voluntary exposure to unnecessary danger; * * * or walking on the roadbed or bridge of any railway.” Defendant claims, that Williams, at the time he was injured, in going on the railroad track in front of an approaching engine, in plain view, and which he saw, acted with a suicidal intent, or at least voluntarily exposed himself to unnecessary danger; that his death resulted from gross negligence, and hence plaintiff was not entitled to recover. On the first trial plaintiff obtained a judgment, which was reversed by the court of appeals. 133 N. Y. 366; 45 St. Rep. 238. It is important, therefore, to determine to what extent, if at all, the facts established on the last trial differ from those appearing on the first. At the place where Williams was killed the street runs east and west, and the railroad track north and south. Immediately before the accident, deceased was coming easterly from some point west of the railroad track. From the opinion of Judge Gray (133 N. Y. 369 ; 45 St. Rep. 238), it appears that on the first trial the following facts appeared : Williams met two Germans 100 feet east of the railroad track, walking in an opposite direction, and said to them : “ Boys, look out for the engine. May be it will catch you.” One of them replied : “ I am not afraid. My life is insured.” The deceased must have turned, and retraced liis steps, as the engineer on the locomotive immediately afterwards saw him standing ten or fifteen feet from the track. The train was then going at the'rate of four miles an hour. When the locomotive was about twenty-five feet from th'e ■crossing, deceased walked onto the Jtrack in front of the approaching cars, and, in the language of the witness, “ squatted down,” and received the injuries which caused his death. There was no evidence showing that the two Germans were intoxicated. They had gotten off the track when the engine came by, and deceased was not called upon to incur danger in their behalf. In his opinion Judge Gray remarks: “When seen just before the train .struck him, ho was, at first, standing away from the track crossing, with the train about twenty-five feet off, and then deliberately going upon the track, stopping and lowering his body in front of the engine. The men whom he had met and addressed had crossed, .and were away from the track. There was no evidence of their ■coming back upon it, nor of any circumstances requiring the assured to change the position of safety in which he was, as the train was approaching the crossing.”

It being urged by counsel for plaintiff that, as the evidence in the case was such as to negative the idea of any motive on the part of Williams to destroy his life,' and as from the facts appearing another motive might" be inferred to account for his actions at the time, the case was not one where the court could presume a suicidal intent, or impute negligence on the part of deceased, Judge Gray further says: “ The argument would be unanswerable in a ■case where the facts were disputed, and any at all existed from which an inference was possible that there was a reasonable or excusable cause for the occurrence. In the present case there'is no dispute as to how the accident occurred, nor as to the conduct of the deceased which permitted it.”

On the last trial a different state of facts was established, asíate •of facts which plaintiff claims justly entitle her to the judgment she obtained, under the opinion of Judge Gray above referred to. "The 'witness Powers testified that he was 80 or 90 feet from the ■crossing at the time of the accident, and saw deceased when he met the Germans. Instead of such meeting being at a point 100 .feet east of the track, it was at or a few feet from it. The men ■were intoxicated, noisy, and staggering from side to side of the street. As deceased met them at the track they all stopped a moment while Williams made some remark which the witness did not understand. Williams turned around, apparently motioned to the men to leave the track, and then seemingly endeavored to ■escape himself, but slipped, and, falling, was struck by the engine. In the language of the witness: “He saw the locomotive, and started to get out of the way and fell. He slipped. He started to take a step, slipped down, and fell.” The witness’ account of the meeting of Williams and the two men, on his cross-examination, which I quote from appellant’s points, was as follows: “ Mr. Williams, when they within a foot of the railroad, was just across on the west side. He came across the railroad, and met them as they ■were on the east side of the railroad track. He met them when they were about a foot from the railroad track, or on the track. The cars were then probably 30 or 40 feet below. Electric lights were burning, and the headlight shining, and the bell ringing, but the Dutchmen and Mr. Williams stopped and talked with each other, and the cars kept coming. Williams didn’t go any further. The Dutchmen went on the track. They went on, but they didn't go across. Williams looked back, and motioned them to get off. After the Dutchmen stepped off the track he turned to go off the track,—turned southward,—and he saw the cars, and he whirled and started to run and get out of the way, northwestward. He was on the track, and turned to get out of the way,—turned kind of southward,—and it looked to me that he saw the cars were so close to him that he could not get out of the way, and turned northwest to go across. He was about half way across when he turned to go southward.”

As the evidence disclosed the fact that Williams was killed in consequence of being struck by a locomotive engine, under the contract of insurance plaintiff was entitled to recover unless defendant made it appear, or the evidence showed, that it was a case of .suicide, or voluntary exposure to unnecssary danger. It was for the defendant to establish this defense. Plaintiff was not compelled to show, as part of her affirmative case, that Williams did not commit suicide, or did not voluntarily expose himself to unnecessary danger. Van Valkenburgh v. Am. P. L. Ins. Co., 70 N. Y. 605; Jones v. Brooklyn L. Ins. Co., 61 N. Y. 79. I am of "the opinion that the testimony of Powers and the other evidence in the case raised a question of fact on the issues raised by the pleadings for the jury to pass upon. The jury could have properly found from Powers’ testimony that deceased, meeting two drunken men on the railroad track, and in their condition exposed to the danger of being killed by the approaching locomotive, in the attempt to hasten them over the track unconsciously stepped or remained on it, slipped down, and was himself killed. It may be gathered from the evidence that, had he not fallen, he would not have been run over. He was trying to escape, as Powers testified; and the witness Myers said if he had continued to walk, and had not sank down on the track, he could probably have escaped. The jury could well have found that the death of Williams was the result of a mere accident, being occasioned by his slipping down in front of the approaching engine. Powers, in one part of his testimony, said deceased met the Germans from one to three feet east of the track. - If so, while speaking to the two men, and endeavoring to hasten them on their way, he might naturally and unconsciously take a step or two towards them. But the witness is not clear as to the exact location where they met. He said “ he met them when they were about a foot from the railroad track, or on the track.” In any view of the case, I cannot believe that it should be held as matter of law that deceased moved in front of the cars with a suicidal intent, or in consequence of a voluntary exposure to unnecessary danger. “Voluntary” is defined to mean “ done by design or intention ; purposely ; intentional; not accidental.” To show a voluntary exposure on the part’of deceased the evidence must have disclosed a design or intention on his partió expose his life, or a high degree of negligence; something more than mere ordinary negligence. As we have seen, the evidence of Powers'allowed the jury to find that, seeing two drunken men were exposed to danger of being killed by the approaching engine, in the humane desire to save them he unconsciously remained or stepped on the track, slipped, fell, and was run over.

It has been held in an action for damages against a railroad corporation that where one had time, or had reason to believe he had, to cross a railroad track in front of an approaching train, and in crossing fell and was injured, negligence would not be imputed, to him as matter of law. See Baxter v. R. R. Co., 30 How. Pr. 219; Belton v. Baxter, 58 N. Y. 411; Bernhard v. R. R. Co., 1 Abb. Dec. 131. So, Williams, as tile jury could have found, had he not fallen, would have had time to leave the track before the engine struck him, and hence could not, as matter of law, be-deemed to have, been even negligent. Certainly, under the circumstances, the jury could properly determine that he should not-be held to have been guilty of that degree of negligence which, was equivalent to a voluntary exposure of his life to danger. The law hesitates to impute negligence to one who has exposed himself to danger for the purpose of saving life. Tucker v. Mut. B. L. Ins. Co., 50 Hun, 50; 23 St. Rep. 957; Id., 121 N.Y. 718; Eckert v. L. I. R. R. Co., 43 N. Y. 502. Deceased, if the witness Powers is to be credited, at the time of the accident was engaged in a humane effort to save two drunken men from injury or death. There is no reason to doubt that the men were in peril, or that Williams thought so. When the latter met them, the locomotive, going four miles an hour, or five feet per second (according to appellant’s computation), was thirty feet distant (as Powers testified), and required only six seconds to reach them. Men under the influence of liquor, staggering from side to side of the street, and on or quite near the track, with an engine only six seconds distant, could properly be deemed in a dangerous position. It should also be remembered that from the time Williams met the Germans until he was struck was also only six seconds. He was-compelled to act hastily, and without time for reflection. These facts have an important bearing on the questions involved in the case. I think, under the testimony, the jury were justified in determining that the death of Williams was caused by accidental means; that there was no evidence sufficient to establish the fact that he died in consequence of a voluntary exposure to unnecessary danger. The evidence rather shows that his death was the result of the accident of his slipping down on the track when he was endeavoring to escape from the engine; that he had inadvertently stepped or remained on the track while endeavoring to save, the two men from injury.

The jury were authorized to credit the evidence given by the witness Powers. He was not impeached. Nothing in his testi many rendered his statement incredible. Nor was the preponderance of contradictory evidence so great as to authorize the trial judge to withdraw his testimony from the consideration of the jury. . His statement of the transaction was the more probable one, and the jury were justified in believing it. First: As to the two Germans being, intoxicated. They admitted having come from a liquor saloon, where they each drank three glasses of beer, and had passed a portion of the afternoon before meeting. Williams. The remark of Williams, “Boys, look out for the engine. May-be it will catch you,” to them, is not one that he would probably have made to two sober men, strangers to him, but a natural remark to men under the influence of liquor, and exposéd to danger from an approaching engine. Again, it was shown by two witnesses that when struck Williams gave a long, loud, and shrill scream. Vogel, who was much nearer than these witnesses, did not hear the scream, and the other German testified to hearing a noise, but-does not mention the cry of Williams when struck by the locomotive. If these men were sober, and within 20 or 25 feet of deceased when he was struck, it was strange that one or both should not have noticed a sound that attracted the attention of Galusha and Van Doren, who were, much further away. On the whole, it is extremely probable that Powers told the truth when he testified that the two men were intoxicated. Again, the whole account of the transaction given by Powers, in connection with other evidence in the ease, was the more probable and reasonable one. From such account, and the other testimony, the.following state of facts appeared : Williams was a man over 60 years of age, religious, of exemplary habits, of good character and cheerful disposition, and not in seriously embarrassed circumstances. He had left his home a short time before, to make a business call west of the railroad track, and was returning when the accident occurred. As, coming east, he crossed the track, a locomotive was approaching, and he met two intoxicated Germans, staggering aud noisy, and made the remark to them above quoted. The cars were almost upon them. He turned, and motioned to them to cross, and in so doing doubtless stepped onto the track. Turning to escape, he slipped, and, falling, was run over. On the other hand, the theory of defendant, founded on the testimony of the two Germans and Myers, is that Williams, a man as above described,—religious, cheerful, of good character, and exemplary habits,—coming across the railroad track, and meeting the two men, who were sober, and presumably acting like sober men, 100 feet east of the track said: “ Boys, look out for the engine. May be it will catch you.” After he passed the two sober men he turned, followed them back to the railroad track, and then, in the language of Myers, “squatted down” on the track in front of the approaching locomotive. It seems to me that the jury were fully justified in believing the probable story of the transaction as related by Powers, and in not believing the improbable and almost incredible statement of the two Germans. I have not overlooked the testimony of the witness Myers that the first he saw of Williams the latter was 10 or 15 feet from the track, and from that point walked directly in front of the locomotive. It w.as for the jury to determine which ■of the two witnesses, Powers or Myers, gave a correct statement of the transaction. If however, Williams, in his desire to hasten the two intoxicated men from a position which he thought dangerous, went back a few steps onto the track, that fact would not compel a reversal of the judgment. It did not show a voluntary exposure to unnecessary danger. As above suggested, the evidence indicates that when he went or was on the track he probably had time to move out of the way of the engine had he not slipped and fallen, and that his death was caused by the accident of his fall. It will not be doubted that in fact deceased accidently fell, as Powers testified, instead of “ squatting down,T on the track, according to Myers’ statement.

The learned counsel for the appellant is not correct in his statement that four witnesses swore positively that Powers was not present at the time of the accident. The witnesses referred to simply testified that they did not see him there. It was shown that there was “ quite a crowd ” of people, who gathered immediately after the accident, and the attention of the witnesses was not called to who were present.

It was clearly within the discretion of the court below whether or not to allow an amendment to the answer on the second trial of the case. Other questions were raised which I do not think necessary to discuss. I conclude that the learned trial judge was justified in submitting the questions of fact' involved in the case to the jury, and that the verdict was sustained by the evidence.

The judgment should be affirmed, with costs.

Mayham, P. J., concurs.

Herrick, J.

(dissenting).—This case has already been before this court upon appeal, and will be found in 133 N. Y. 366; 45 St. Rep. 238. The facts are so fully set forth there that a recital of them now I think is unnecessary, as, with the exception hereinafter stated, they appear to be substantially the same as they, appeared upon the former trial and hearing. Upon the second trial a witness named powers was sworn, who did not testify upon the former trial. His testimony, if true, relieves the deceased from any charge of suicide. Upon the former trial the engineer testified that he saw Williams start to go upon the track. He says that if the man had kept on walking he could in all probability have crossed in safety, but that he “ squatted down,” as in the position of kneeling. Powers’ testimony is to the effect that, instead of deliberately squatting down or kneeling, Williams slipped down and fell. It seems to me that constitutes the only substantial difference in the facts as they appeared upon the first trial and as they appear now. Assuming Powers’ version to be the correct one, the question arises as to whether there is sufficient in the case to warrant its submission to a jury. The theory of the plaintiff appears to be that Williams lost his life in an endeavor to warn or save two intoxicated persons from danger. The only one of the two persons ■ declared by Powers to have been intoxicated who was sworn upon the trial swears that neither he nor his associate was intoxicated, and Powers only saw them at a distance of 90 feet or more, on a misty evening. While none of the witnesses sworn knew anything about Powers’ presence and while his testimony as to what took place is in conflict with that of all the other witnesses sworn upon the trial, yet it must be assumed that the jury found his version of the transaction the true one.

For the purpose of disposing of this case as it now appears, it will be assumed that the deceased, instead of deliberately or voluntarily losing his life, lost it in an endeavor to save others from death or danger) although as a matter of fact the witness Powers says that the two persons Williams stopped to warn were not in danger, and the testimony of one of the persons who was so warned negatives any idea that they were in danger, and indicates that they were fully as able to take care of themselves as was the deceased, and were equally aware of the perils of the place. I do not think that exposure of one’s self to danger for the purpose of saving the life of another is such a “voluntary exposure to unnecessary danger,” etc., as to release the defendant from liability upon its policy. The law has so high a regard for human life that it will not impute negligence to any effort to preserve it, unless made under circumstances constituting rashness in the judgment of prudent persons. Eckert v. L. I. Railroad Co., 43 N. Y. 502. Efforts to save the lives of other are to be commended and encouraged, and not prohibited either by statute or contract, and dangers necessarily incurred in such efforts may be properly and rightly incurred, even under the terms of a policy like that issued by the defendant in this case; but the assured is not justified in doing unnecessary things, or taking unnecessary risks, to save the life or limbs of others. And while the court will not attempt in cold blood to scrutinize too carefully acts done upon the spur of the moment in an endeavor to protect others, or measure acts of heroism by rule of thumb, still, when it appears that the assured has been injured or lost his life by doing unnecessary or reckless things, it cannot justify him under the plea that they were done to save human life. What was done by the deceased in this case does not appear to have been in a hurry, or under any excitement, or under conditions where it might be inferred that he had become confused, and that, therefore, allowance should be made for his acts, as would bed one in the case of one who suddenly finds himself in danger, where the court will not scrutinize too carefully the measures that he takes to extricate himself therefrom, and will not hold him responsible because, under such conditions, he did not choose the best. Here he saw the coming danger, and attempted to warn others of it. He did not hurry to do it, but did it quietly and deliberately. The train did not come upon him suddenly and without his knowledge. It came with the ringing of bells, with the glare of the headlight upon the engine, and was seen by him approaching. There was no occasion for him to get in the way, and there was ample time for him to get out of the way. The account of the witness Powers is not entirely clear, but any view that we may take of his testimony shows that the deceased was guilty of negligence not to be justified by the plea of an endeavor to save others from danger. Assuming that they were in danger, what was done by the deceased, which resulted in the sacrifice of his life, was wholly unnecessary.

The witness Vogel, the only one of the persons warned by him, who was sworn upon the trial, says that when he first saw the deceased, he was about 200 feet away. “We looked away ahead and saw him. Then he was on the other side of the railroad. Then he crossed the track, and was coming towards us, and we met him by Smith’s gate. He says, 1 Boys, 'look out for the cars. May be the engine will catch you.’ He says: “Look out boys, the engine will catch you.” August said, ‘I am not afraid. My life is insured.’ He stopped when he said that. We did, too. ÍSTothing else was said there. He started east, and we west.”

The witness at another point testifies that they went on across the railroad tracks. The cars were going slower and slower, the bell ringing, and then they stopped. That they thought that something must be the matter. That they went to the place where the train had stopped, and found the deceased injured upon the rails. Powers’ version of what took place is: “ That he was going up the street which the railroad crosses, when he saw two other men going up the street. That they were going westward. They got-up near the Church street crossing, and stopped. There was another man coming down,—coming east,—and they stepped on the railroad. As he stepped off, they stopped again, and he. turned and said something to them. I don’t know what it was.. Then they stepped off, and he followed them. He didn’t follow them, but just turned around, and as he turned around he stood there probably half a minute, and all at once he looked down, and motioned as though he was going to turn around, and he saw the locomotive, and started to get out of the way and fell. He slipped; he started to take a step, and slipped down and fell.”

Again he says, “ The gentlemen met these two men on the east side of the railroad track. I could not say how far from the east rail. It might have been three or four feet; it might not have been so far; that is as near as'I can fix it. I should say I was distant from there in the neighborhood of eighty or ninety feet.” And again: “ Mr. Williams, when they were within a foot of the railroad, was just across on the west side of the track, coming east. He came across the railroad and met them as they were on the east side of the railroad track. He met them when they were about a foot from the railroad track, or on the track.”

He further stated that at the time the deceased met the Dutchmen the cars were probably 30 or 40 feet south on the track going north; that the Dutchmen and the deceased stopped and talked with each other while the cars were coming up, or, as he explained it, “ they just turned around and spoke.” He states that when Williams met these two men they were on the east side of the railroad track, within a foot or two of the rail, the cars being forty feet from them; that the Dutchmen were going westward ;' “ that after the Dutchmen stepped off the track he turned to go off the track,—turned southward,—and he saw the cars, and he whirled and started to run and get out of the way.” Taking this testimony, it would appear that the deceased, for the purpose of warning the two Dutchmen, so called, when he saw them near the railroad track, but not on it, himself stepped right on the track between the rails, when a train of cars was approaching, distant only 30 or 40 feet from him, to warn them of their danger. It is true that the train was going at a slow rate of speed, estimated from four to six miles an hour; but if it was dangerous to them it was dangerous to him. For the purpose of warning them of their danger there was no occasion for him to step in. front of an approaching engine, and talk with them, it was not necessary for him to stop, it was not necessary for him even to cross the track for the purpose of warning; and if he had crossed the track there was no occasion for him pausing to talk with men who were not upon it. It does not present the case of a person prostrate upon the railroad track, and the rescuer going thereon for the purpose of lifting or dragging him off. Here is a mere verbal warning being given, which could just as well have been given across the track as upon it, or, in passing by, across the railroad track, without stopping. While, as stated before, it is not well to hold too closely as to what is or what is not necessary to be done in an effort to'save the life of another, still what is alleged to have been done in this case was so wholly unnecessary, and so grossly negligent, that even under a liberal construction as to the allowance to be made for efforts made by an assured in endeavoring to save another from death or injury I cannot hold that in this case he did not necessarily and negligently expose himself to unnecessary danger within the meaning of the defendant’s policy issued to him. For these reasons I think the judgment should' be reversed, and a new trial granted, costs to abide the event.

Mayham, P. J.—I am inclined to hold that whether or not the assured unnecessarily and negligently exposed himself to unnecessary danger within the meaning of the policy,” was, under the circumstances of this case, a question of fact for the jury, with whose findings the appellate court should not interfere. The deceased had time to cross the track before the train reached him, and there was evidence that he slipped and fell. This the jury might have found.


author: Dykman, J.

text:
    In the Matter of the Rockaway Park Improvement Company, Limited.

      (Supreme Court, General Term, Second Department,

      Filed December 10, 1894.)

    Supervisors—Validity op action.
    Where the hoard of supervisors have full power to do what it did, its action is not rendered illegal by a mistake in the recitation of the source of its power.
    Application for repayment of a tax, alleged to have been illegally and improperly assessed and levied.

      William J. Kelly, for app’lt; A. N. Weller, for resp’t.
   Dykman, J.

While it is true that the law under which the board claim to have acted had been repealed by the county law of 1892, chapter 686, and the recital of the source of power in the resolution was erroneous, yet, by § 37 of the county law, the same powers were conferred upon the board of supervisors, almost in the same language, namely: “ The board has power to create the fire districts outside of incorporated villages, and authorize such district to procure supplies, or water, purchase apparatus for the extinguishment of fires therein, and rent or purchase suitable buildings for the keeping and storing of the same and provide forth e assessment, levy or collection of the costs thereof on such district, in the same manner, at the same time and by the same officers as the taxes of the town or towns in which such districts are located are assessed, levied and collected, upon the written verified petition of more than one-half of the taxable inhabitants of the proposed fire district.”

So far, therefore, as the powers of the board of supervisors are concerned, they are the same in the county law as under the laws, stated by the board, and this county law was in existence and in full force at the time of the action of the board. If the board thus had full power to do what they did, their action was not rendered illegal by a mistake in the recitation of the source of its power. It is true that § 37 of the county’law requires the legal voter’s of the district to elect fire commissioners, to have title to, and hold in trust for the district, all property acquired by it for fire purposes, and to make all contracts for the purposes herein-contemplated and within the appropriations voted by the resident taxpayers of the district, and also to elect a treasurer, to have the custody of the funds, and to pay out the same. It is not, however, necessary that the acts therein required should precede the acts of the board of supervisors, nor are the acts of the board of supervisors creating a fire district, authorizing the purchase of fire equipment and apparatus, and directing the levying and collecting of the costs thereof upon the district required to be based upon the action of the legal voters of such district. Evidently the election of fire commissioners and the treasurer, and the purchasing of property and the taking of title, thereto, must follow, and not precede, the act of the board of supervisors creating the district, and authorizing the procurement of the water supplies, and the purchasing of apparatus. The addition to the law of this paragraph and § 37 relate solely to the regulation of the care and custody of the property, and conduct of the internal affairs of the-district, after the board of supervisors has acted.

The petition does not show nor claim that the legal voters of the district have not strictly complied with the requirements of the additional part of the section, and, in the absence of any such allegation or proof, the presumption is that all of those conditions have been performed by the legal voters of the district. But it is claimed that the clause giving power to the fire commissioners to make all contracts for the purpose herein contemplated, and ■ within the appropriations voted by the resident taxpayers of the district, in some way requires a vote of the district to precede the act pf the board of supervisors creating the district and authorizing the purchase of apparatus. That clause docs not in terms nor by implication declare it must precede the acts of the board of supervisors, and clearly, from the whole context of the section, it relates to future appropriations which may be necessary to maintain the district after it shall have been first created and organized. It is claimed that the resolution No. 17 does not create a fire district at Bockaway, but only authorizes the expenditure of $10,000 to acquire a supply of water, purchase apparatus, fire equipments, etc., and that is true. But the petition shows that the district had been created in April, 1887, and all that was necessary to be done after that was to authorize the procuring of a water supply, and the purchase of fire equipments, etc. This is all the resolutions. undertake to do. The fire district has been created, and the water supply and fire apparatus acquired at considerable expense. Its territory contains a large proportion and many inflammable buildings of value, and a fire department is necessary therein. To set aside the tax, therefore, and reverse the action of the board of supervisors, would create confusion in the district.

Our conclusion is that the acts of the board of supervisors are sustained by law, and should be upheld by the court, and that the order of the county court sustaining the acts of the board should be affirmed, with costs.


text:
    Patrick McDermot, Resp’t, v. Brooklyn City Railroad Company, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 10, 1894.)

    Master and servant—Appliances—Question of fact.
    Where, in an action for injuries to a servant, the master contends that the injury resulted from the act of a.fellow-servant, and the servant contends that such act would have been harmless, if. sufficient appliances had been furnished, the matter is properly submitted to the jury.
    Appeal from a judgment entered on a verdict in favor of plaintiff.

      Morris & Whiiehouse, for app’lt; Roswell H. Carpenter (A. H. Dailey, of counsel), for resp’t.
   Dykman, J.

It is the claim of the plaintiff that he was sus-. tained serious personal injuries by reason of the negligence of the' defendant, while he was in the service of that company, assisting in unloading stone from a scow. It appears from the testimony that the stones were in the hold of the scow, and, for the purpose of unloading them, they were placed in buckets, which, when filled, were raised by a rope suspended from the boom of a derrick, which was standing on the dock near the boat. When the buckets were raised to a sufficient height, they were swung over a wagon standing alongside of the boat ready to receive them. It was the duty of tbe plaintiff to stand in the wagons, receive the buckets as they swung to him, and unload the stone into the wagons. He was engaged in the performance of that duty when he was injured. His claim is that the bucket swung out beyond him, and, as it swung back, it struck him, and knocked him off of the-wagon. The precise claim of negligence is that there was no tag rope attached to the end of the boom ; that it was usual to have such a rope with one end fastened to the dock, and the other end to the boom, so that, when the boom swung over the wagons to unload the buckets, and return, it could only swing so far, either off shore or on the land; that, while the bucket which injured the plaintiff was in the air, the boat was moved forward, and as there was no tag rope to hold the boom, and prevent it from swinging around the mast of the derrick, the bucket was carried around -themast, and then returned with a sweep, and struck the plaintiff. In short, the claim is that the absence of the tag rope caused the injury, and that the failure to provide one was negligence, because that rope, with sufficient slack only to allow the boom to carry the bucket over the wagon and back to the proper part of the boat, would enable the man holding the guide rope to control the movement of the bucket.

The defense was twofold: First, that the plaintiff was not in the employ of the defendant; and, second, that his injury resulted from the carelessness of his fellow servant. The facts upon which the first defense is based are these: The answer admits the employment of the plaintiff by the defendant. The defendant paid the men employed by Ward. The plaintiff insisted upon the trial that-the arrangement with Ward simply authorized him to furnish the machinery, materials, and men for the defendant, and the defendant paid them, and could discharge them at will. They were all the servants of the company. The trial judge left the question to the jury as one of fact, in the following language: “So I leave it to you to say whether the doing of this work was under the direction and control of the Brooklyn City Railroad Company or not. If you find that it was, and that this foreman was acting for the Brooklyn City Railroad Company, then the question arises whether he was negligent in having this boat moved forward with this boom without a tag rope. That is all the question of negligence that there is in this case. You have heard one witness say that it is usual for derricks to have a tag rope fastened to its end, and the other end of the rope fastened to the dock, so that, as the boom goes into the dock to unload the bucket and swing back, it can only swing back so far, probable lengthwise of the boat, and not continue to swing. The difficulty with this boom was it did not sw-ing out beyond and hit this man, but, having swung out beyond, it swung back to the dock with increased velocity; so that the man with the guide rope could not hold it, and so struck him on the wagon, and knocked him off. Was there any negligence in the foreman’s moving this boat forward with the boom liable to swing in this way? And if their men did pull it along the dock a few feet, as they stated, did that cause the boom to swing out in the way it has been said?”

Again he said: “If you find that the defendant was in control and direction of this work, and moved this boat forward, the question comes down in the case to that, and that alone, so far as I can see, whether it was a negligent thing to move the boat forward without having a tag rope on the boom.”

Again the trial judge said in his charge: “There is no way to fasten negligence on the company, unless you find that they have not furnished the sort of appliances they should have furnished, if they were the ones that furnished this thing at all. You will have first that they were in control of it, and did it. Mr. Whitehouse: I ask your honor to charge that if the jury find the derrick and the work they were or was under the charge and control of an independent contractor, Ward and his men, the defendant cannot be held liable. The Court: I so charge.”

There was no exception to the charge. The claim of negligence on the part of a fellow servant is based upon the order of the foreman to move the boat forward at the particular time he did, before the wagon was loaded. The plaintiff answers that contention by saying that the movement of the boat would have been harmless if a tag rope had been in use. We think these questions required the submission of the case to the jury, -.and the verdict is supported by facts which we must assume ¡were found by the jury.

The judgment and order denying the motion for a new trial on the minutes of the court should be affirmed.

All concur.


author: Brown, P. J.

text:
    Daniel E. Christie, Resp’t, v. Robert Bowne, App’lt.

      {Supreme Court, General Term, Second Department,

      Filed December 10, 1894.)

    Corporations—Stockholders—Liability.
    A stockholder is liable personally for the corporate debts, unless a certificate that the stock is paid is filed, not only in the secretary of state’s office, but also in the county cleik’s office.
    Appeal from a judgment, entered on" a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Chas. Strauss, for app’lt; Henry L. Brant, for resp’t.
   Brown, P. J.

plaintiff brought this action as a creditor of the corporation known as the New York Advertising Agency, Limited, to recover his debt from the defendant, who was a stockholder in said corporation, on the ground of the failure to file in the office of the couiity clerk the certificate of the full payment of the capital stock of said corporation, as required by § 37, chap. 611, Laws 1875, under which statute the corporation was organized. The question discussed by the appellant requires only a brief notice. No exception presents the question as to the proper construction of the peculiar language of § 37. That section requires the certificate to be filed “ in the office of the secretary of state and of the county in which the principal business office of such corporation is situated.” It was decided by a very recent decision of this general term that the language quoted required the certificate to be filed with the county clerk. Jones v. Mail & Ex. Publishing Co., 62 St. Rep. 61; 30 N. Y. Supp. 335. The repeal of the act of 1875, by chapter 687, Laws 1892, does not affect the plaintiff’s cause of action. It was preserved by the saving clause of the repealing act (§ 35).

The exception to the admission of the evidence of Mr. Seaver that the plaintiff was a competent bookkeeper is not available on this appeal. The question of plaintiff’s competency was not an issue at the trial. It was withdrawn from the consideration of the jury by the court in its charge, without objection by the defendant, and no request was made to have that question submitted to the jury.

The verdict is sustained by the evidence, and the judgment and order are affirmed, with costs.

All concur.