author: Putnam, J. Herrick, J.

text:
    Wakefield Rattan Company, Resp’t, v. Shepard Tappan, as Sheriff, etc., App’lt.

      (Supreme Court, General Term, Third Department,

      Filed July 14, 1894.)

    Evidence—Declarations—Principal and agent.
    Statements, made by an agent as to the financial condition of a firm, are not admissible against the firm, unless he was specially authorized to make them, or made them with the knowledge of the firm.
    Reargument.
   Putnam, J.

—Without considering any of the other questions raised in the case, I think a new trial should be granted for the reason last stated in the opinion of Justice Matham. 70 Hun, 405-414 ; 53 St. Rep. 70S. The exception of the defendant to the reception of the testimony of the witness Seaver, plaintiff’s agent, showing that in making the sale of the goods which were the subject of this action he relied upon the report of the Edward Russell Company, founded on the statements of Frank Andros, made March 1 and September 13, 1890, was clearly well taken. But the error of the court in overruling the objections of defendant to such report might have been obviated if the plaintiff had afterwards shown that Andros was authorized to represent the Keith Company in making the statements in question to the mercantile agency. I think, however, it failed to show any such authorization. The evidence in the case relating to this authority of Andros was, substantially, as follows: It was shown by the witness Dabell that Andros was the bookkeeper of the Keith Company in 1890, and had been for several years. The witness Coffey testified that Andros had charge of the books, and was in general charge of the store, at the time he called. The last-named witness further testified that lie understood that Andros was manager of the business. When asked from whom he understood it, he answered, “from himself.” It is well settled that the power of an agent. cannot be shown by the declarations of the alleged agent. It is said in Gould v. Town of Sterling, 23 N. Y. 456-463: “No representation of the agentas to the fact of his age .cy, or as to the extent of his power, is of any force to charge the principal. But it being shown, by other evidence, that the agency existed, and that the act done was' within the general scope of the power, the principal is bound by the representations of the agent as to any essential facts known to the agent, but which the party dealing with him had no certain means of ascertaining.”

The last named witness also testified that he had no recollection of going to the store of the Keith Company at any other time than the 13th of September, 1890, to acquire any information. Andros, as a witness, in answer to the question by the court, testified that he was not the manager of the business; he was a bookkeeper. Hence the testimony in the case only shows that Andros was a bookkeeper of the Keith Company, and had been for several years, and when Coffey called at the Keith Company’s store, in September, 1890, was in charge. There is no evidence whatever that he had any authority from the Keith Company to make statements for the use of the mercantile agency. I think no such authority is to be implied. Andros was a clerk and bookkeeper in a retail store, and should be presumed to be authorized to sell goods and to do the ordinary business there carried on. But I do not think he should be deemed, in the absence of evidence, to have had the right to bind his principals by statements to the mercantile agency. Therefore, it was erroneous for the court to allow the statements of Andros to be read in evidence and to overrule the objections to the.testimony of Seaver, plaintiff’s agent, that in making the sale of the goods in question he relied on the mercantile agency’s report, founded on such statements. The reception of this evidence probably influenced the jury. !:■ is true that some representations made by Hyland, a member of the Keith Company, as to the financial standing of the firm at the time the Keith Company ordered the goods in question, were shown. But these representations were so vague and indefinite that a jury would have been justified in refusing to render a verdict founded thereon. It is probable that the jury, in reaching the conclusion that the Keith Company obtained the goods in question by fraud and deceit, were influenced by the testimony given as to the statements of Andros to the agent of the mercantile agency. It was for the plaintiff to show the alleged false representations of the Keith Company. It attempted to do- this by testimony of the statements of one of the members of the Keith Company, which was competent; also by evidence of representations of Andros to the agent of the commercial agency, which I have endeavored to show was incompetent. The defendant was not compelled to offer evidence to show the lack of au- * thority on the part of Andros. He could properly rest on the failure of plaintiff to show affirmatively such authority. I have examined the authorities cited by the learned counsel for the respondent, and am unable to see that they conflict with the views above stated. They are generally cases holding that one employed in the office or place of business of a corporation or individual, apparently having charge or some charge of the business there carried on, and assuming to transact business, as agent, for such corporation or individual, will be presumed to be authorized to act. as such in matters relating to the ordinary business of the parties for whom he assumed to act; as if, for instance, Andros had assumed to sell goods in the store of the Keith Company with a warranty or on credit. Any act of Andros in the store relating to the ordinary business of the firm would doubtless have pound the Keith Company. But the act of making statements of the financial standing of his employers to the mercantile agency was not ordinarily the duty of a clerk or bookkeeper, or within his ordinary powers, and no special authority was shown on his part to make such representations. The case of Corning v. Walker, 14 Wkly. Dig. 314, cited by counsel for respondent, was where, after a person was shown to be a general manager of a party, it was held proper to allow evidence of his declarations. Here, as we have seen, not only is there no proof that Andros was general manager, but, on the contrary, his uncontradicted evidence shows that he was not. There has been no discussion before us on the question of plaintiff’s right to maintain this action of replevin under subdivision 3, § 1690, Code Civ. Proc. See Wise v. Grant, 140 N. Y. 593; 56 St. Rep. 496.

For the reasons above stated, I am in favor of a reversal of the judgment.

Mayham, P. J., concurs.

Herrick, J.

(dissenting).—Owing to some misapprehension of the facts in this case upon the former argument, arising in part from imperfections in the record, a rehearing was ordered, and the case in now before us for reconsideration, such reargument having been had. The plaintiff brings its action in replevin to recover possession of fifty-four baby carriages and twenty-two brakes, of the value of $638.35, which, it is alleged, the defendant wrongfully took possession of, and wrongfully and unlawfully detained. The defendant claims to hold such property by virtue of certain executions placed in his hands upon judgments against the Isaac Keith Company, in whose possession such baby carriages and brakes were at the time of the issuing of such executions. The plaintiff’s claim, is that it was induced to sell such property to the Isaac Keith Company by false and fraudulent representations, and, in consequence thereof, it alleges that the legal title to the same has never been parted with by them. The Isaac Keith Company is a copartnership consisting of William H. Hyland and Phoebe Link. The business appears to have been established by one Isaac Keith, and upon his death continued for a period of time by his heirs, from whom an interest was purchased by the said William H. Hyland. The plaintiff is a corporation. About the last of January or the first of February, 1891, a sale of the property in question was made through one of its agents, who called at the place of business of the defendant, and in the course of the negotiations was informed by Hyland that, “ They had an unusually good holiday business, that the business was prosperous, and that the concern was doing a nice business, and everything was looking promising. Q. How about its financial condition ? A. The financial condition was all right.”

At that time the order was given for the carriages and brakes in question; the order, together with this statement of Hyland’s, was communicated by said agent of the plaintiff to plaintiff’s credit man. The credit man then applied to a commercial agency, and obtained a report of the financial condition of the said Isaac Keith Company, which was as follows :

“Exhibit A.
“Statement made March 1, 1890. Their inventory, taken February 1st, as follows:
Merchandise — furniture..................... $22,887 45
Merchandise — carpets........................ 8,933 47
Cash.............. 569 21
■ Bills receivable................... 1,459 40
Book accounts........ 22,201 18
Total assets............................... $56,050 71
Bills payable....... ...............$6,700 00
Book accounts..................... 9,823 67
Total liabilities............................ $16,523 67
Net assets................................ $39,527 04
“The book accounts in the assets were $32,201.18, but in the inventory they deducted $10,000 for poor accounts.
“ Sept. 13, 1890 — Mr. Frank Andros, manager, tells us to-day that there has been no change in their affairs since their statement last March.”

Witli the statement that the condition was reported to be substantially unchanged.

This statement was received on or about the 7th or 8th of February, 1891, and the baby carriages and brakes were shipped on the 14th of February, 1891. In March following, judgments were entered against the Isaac Keith Company, and executions thereof issued to the sheriff, and the property of that firm levied upon, and subsequently sold. Upon the sale the property brought abouts$13,000. In addition to the executions, there were also placed in the sheriff’s hands, at about the same time, for foreclosure, two chattel mortgages, one for $4,000, and one for $1,500. What these mortgages were given for does not appear in the case. The plaintiff commenced this action by the service of a summons the 26th day of March, 1891, claiming that the representations made to it whereby it was induced to part with the property in question were false and fraudulent, and that the said Isaac Keith Company, at the time thereof, was insolvent and unable to pay its debts.

William II. Hyland went into the firm of the Isaac Keith Company about the 1st of March, 1890. What bis interest was does not appear; it will therefore be assumed that he and Phoebe Link Were equal partners. He paid no money at the time of entering into the copartnership, but the consideration of his purchase of such interest was $12,000, which he states was to be paid by paying the debts of the firm. He was at that time indebted to Harriet L. Keith, from whom lie purchased his interest in the concern, in the sum of $5,000, payable in from one to five years. On the 1st of March, 1890, the statement to the commercial agency, hereinbefore set forth, was made by the bookkeeper of the new firm, who had likewise been the bookkeeper of Isaac Keith, in the same business, for a number of years. In September he stated to the commercial agency that there had been no change in their affairs since the statement of March. On the 21st of October, 1890, the Isaac Keith Company executed and delivered a note on demand, for the sum of $6,000, payable to the order of William H. Hyland, which note was subsequently given to the Central Hational Bank of Troy. On the 18th day of October, William H. Hyland and Phoebe Link, as copartners, under the name of the Isaac Keith Company, executed and delivered their promissory note, whereby they promised to pay Elizabeth Hyland, on demand, $3,000. On the 9th day of December, 1890, Phoebe Link made her promissory note, payable to the order of William H, Hyland, for $1,500, payable three months after date. This note appears to have been subsequently indorsed by Hyland, and transferred to Richard A. Cunningham and William H. Taylor. The case does not disclose whether this note was given for the benefit of the copartnership or not; the judgment subsequently entered upon it was against both parties. On the 3d of February, 1890, William H. Hyland gave to Harriet L. Keith five separate promissory notes of $1,000 each, payable, respectively, in one, two, three, four, and five years from the date thereof. On the 22d day of January, 1891, the Central National Bank of Troy commenced an action against the said William H. Hyland and Phcebe Link upon the note of $6,000 I have referred to. No appearance was made by them in said suit, but judgment was not entered thereon until the 20th of March, 1891. Confessions of judgment upon the other notes I have described were given by the said Hyland and Link on the 22d and 23d of March, 1891. In the confession of judgment given upon the note for $3,000 to Elizabeth Hyland, it is stated that such note was given for money actually loaned by the said Elizabeth Hyland to the said William H. Hyland and Phcebe Link. At the time of the commencement of plaintiff’s action, judgments had been entered against the said William H. Hyland and Phoebe Link, by default or by confession, as follows: Central National Bank, March 20, 1891, by default, for the sum of $6,170.95; Henry Heywood and others, March 23, 1891, upon confession, for the sum of $610.96; Elizabeth'Hyland, March 23,1891, upon confession, for the sum of $3,078.01; Richard A. Cunningham, and William H. Taylor, March 23,1891, upon confession, for the sum of $1,542.01. And, in addition, chattel mortgages had been placed in the sheriff’s hand for foreclosure, amou nting to $4,500, making an aggregate in all of $15,901.2.1; and, in addition', there had been entered, by confession, a jugdment against William H. Hyland, individually, upon thefive notes of $1,000 each, given by him, as above stated, to Harriet L. Keith. And, at the time the goods in question were replevined, the sheriff was in possession of them under executions issued in favor of Elizabeth Hyland and Harriet L. Keith. Executions had also been issued upon the Central National Bank judgment, but whether upon the other judgments does not appear.

The first thing that occurs to one in reviewing these facts is that while Hyland, for his interest in the concern, purchased of only one of those at that time interested in sucli firm, and presumably an equal partner with Phoebe Link, was to pay debts to the amount of $12,000, and the entire indebtedness of the firm, if that was so, must have been greatly in excess of that amount, yet the statement rendered to the mercantile agency, almost immed1 lately upon his becoming a partner, shows the liabilities of the concern to have been only $16,523.67. The same statement shows gross assets of $56,050.71, and net assets of $39,527, • after deducting $10,000 for poor accounts. It strikes one as extraordinary, if these statements as to their assets are true, that Hyland should have been able to purchase an equal interest for the sum of $12,-000, payable in the manner claimed by him. In October the new firm incurs an indebtedness of $9,000, having, during the previous month, made the statement to the commercial agency that they were in the same condition that they were at the time of the March statement. This indebtedness they seem to have been unable to meet, for on the 22d of January, 1891, an action was commenced against them to recover $6,000. In addition to the firm’s indebtedness, it will be observed that Hyland was individually indebted to the amount of $5,000; and, while such debts are not payable out of copartnership assets until the copartnership debts are paid, still the fact that members of a copartnership are individually indebted does not improve the credit of the concern. This, then, was the condition of affairs at the time of the sale of the property in question, and at the time the plaintiff was assured that their “financial condition was all right,” when, in about a month after such sale and assurance of solvency, their store was closed, judgments entered against them, one by default, others by confession, and chattel mortgages upon their property placed in the hands of the sheriff for foreclosure. Was their financial condition all right at that time,when a very few months before that time they had been compelled to borrow money, presumably to carry on their business, and which was due upon demand, and when, at the very time of the statement, a suit was being prosecuted against them to recover the sum of $6,000, in which suit they made no appearance or defense? Upon the part of the defendant, the bookkeeper of Isaac Keith Company and William H. Hyland were called as witnesses. They gave no explanation of these facts I have referred to whatever. Hyland, after stating how long he had been in the business, whom he purchased his interest from, and what occupation he had been engaged in prior to going into the copartnership, testified that at the time of the purchase of the baby carriages, the value of the stock of goods of the copartnership was $20,000, and that the book accounts amounted to about $21,000. The bookkeeper testified that the statement made by him to the mercantile agency was correct, and that the cost value of the stock on hand February 1st was about $20,000, and the amount of the book accounts about $21,000. Ho other evidence on the merits was given on the part of the defense. The total indebtedness of the Isaac Keith Company does not appear.

It seems to me that these facts present a proper question for a jury to pass upon, to determine whether the sale was in fact induced by fraudulent representations. The general principles of law by which such a transaction is to be gouged were correctly set forth by the court, when the case was heretofore before us. 70 Hun, 405 ; 53 St. Rep. 703. And under the principles there stated, it seems to me the-facts in this case require its presentation to a jury, and, if properly presented, there is no reason why we should disturb the verdict, unless some error was committed in the reception or rejection of evidence. Upon the whole, the trial court seems to have made a fair submission of the facts, and to have committed no substantial error of law in its charge to the jury. Most of the objections to the charge argued before us were to portions of it to which no exceptioñs were taken. The errors pointed out, conceding them to be errors, are not of sufficient importance to call for the reversal of the judgment because of them. The only question of importance arising upon the reception or rejection of evidence is upon the reception in evidence of the report of the mercantile agency. The statement, was made to the agency by the bookkeeper of Isaac Keith Company. He had been connected with the business for a number of years, when it was conducted by Isaac Keith. When the reporter of the agency called, neither member of the firm was present, and he seemed to have charge of the store. He also furnished the other statements to the agency. This was the condition of the testimony at the close of the plaintiff’s case, and, conceding it to be slight evidence of authority to make the statement, still, without that statement being in evidence, there was enough in the case to warrant the court in denying a motion for a nonsuit. So, at that stage of the case, the defendant was not injured by its reception in' evidence. The defendant called both the bookkeeper and Hyland as witnesses, and there is no pretense on their part of any lack of authority to make the statement, and no claim of ignorance, on the part of the Isaac Keith Company, that any such statement had been made. If there was no authority to make the statement, or if there was a lack of knowledge that it had been made, there was abundant opportunity to show that fact. The witnesses were on the stand by whom it could have been proved, and failure to do so strengthened the evidence of authority already received, and, it seems to me, made it proper evidence to submit to the jury.

The judgment should be affirmed, with costs.


source: Caselaw Access Project

author: Mayham, P. J.

license: Public Domain

text:
    Mary Le Bahn, as Administratrix, etc., App’lt, v. New York Central and Hudson River Railroad Company, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed July 14, 1894.)

    Master and servant—Negligence—Contributory.
    A servant, who is injured in consequence of disobeying his instructions, is guilty of contributory negligence.
    Appeal from a judgment of nonsuit

      Morrel & Spraker (D. S. Morrel, of counsel), for app’lt; C. D. Prescott, for resp’t.
   Mayham, P. J.

—The learned judge at the circuit dismissed the plaintiff’s complaint, on the ground that the plaintiff’s intestate was guilty of contributory negligence in not signaling the east-bound train, by which he was struck and killed, to stop, by the use of the lantern signal, as he was instructed to .in case it was necessary to stop an east-bound train which had passed the semaphore signal stationed 3,000 feet west of the station. The undisputed evidence shows that the lantern signal could be seen for about 1,400 feet west of the station; and that an approaching train from the west could be seen from the station for that distance; and that, if the lantern signal had been displayed, the east-bound train could and would have been stopped ■ before reaching the station, and thus the accident would have been averted. It was clearly a part of the duty of the deceased, as well for the protection of himself as that of the passengers and other persons on west-bound trains stopping at this station, either to turn the reel, and thus display the danger signal at the semaphore, or, if the train going east passed the semaphore before that signal could be displayed, then to swing his lantern as soon as an approaching train from the west hove in view, at, as we have seen, a distance of 1,400 feet from the station, and in that way halt the approaching train. This the deceased failed to do, although he was notified that the east-bound train, then past due, had not passed, and might at any moment arrive. Had either of these precautions been adopted, the fatal train would have been brought to a standstill before reaching the place of the accident.

• It is idle to speculate whether or not the place of the employment of the deceased could or could not have been made more secure for the employes of the defendant at that point. The defendant had, it Would seem, done its whole duty to the deceased by placing in his hands and under his control two effectual methods of protecting himself from injury, either of which, if applied in this case, would have saved him from harm. It cab. hardly be said, as matter of law, that the plaintiff in this case proved the deceased free from contributory negligence; nor was this one of the class of cases where the question of contributory negligence was involved in such doubt as to make it a question of fact for the jury. The rule of law in this class of cases has been so frequently adverted to, and repeated in the courts, and so thoroughly settled in the court of last resorts in this and other states, that the citation of authorities seems unnecessary. The rule is well summarized by the learned trial judge in dismissing the plaintiff’s complaint.

The judgment should be affirmed, with costs.

All concur.


author: Putnam, J.

text:
    James N. Sickles, as Administrator, etc., Resp’t, v. New Jersey Ice Company, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed July 14, 1894.)

    1. Negligence—Contributory—Inference.
    Absence of contributory negligence may be inferred from the circumstances, or the nature, of the accident.
    2. Same—Skating on river.
    A person, skating on a river; is not negligent in assuming that guards had been placed around all places where the ice had been cut.
    3. Same.
    The fact that defendant or others had used a similar guard before does not tend to show the sufficiency of the fence.
    Appeal from a judgment in favor of plaintiff.

      Frank H. Osborn, for app’lt; Cadman & Peck, for resp’t.
   Putnam, J.

-—The only question which requires consideration is whether, on the trial, there was evidence produced tending to. show the absence of contributory negligence on the part of the deceased, which the trial judge was justified in submitting to the jury. While it was for the plaintiff to show that the negligence of deceased did not contribute to the injury, it was not necessary for him to do so by direct evidence. Absence of such negligence might be inferred from the circumstances, or the nature of the accident. Judge Denio, in Johnson v. Hudson River Railroad Co., 20 N. Y. 65-73, uses the following language: “ The jury must eventually be satisfied that the plaintiff did not, by any negligence of his own, contribute to the injury. The evidence to establish this may consist in that offered to show the nature or cause of the accident, or in any other competent proof. * * * It is not absolutely essential that the plaintiff should give any affirmative proof touching his own conduct on the occasion of the accident. The character of the defendant’s delinquency may be such as to prove, prima fade, the whole issue, or the cause may be such1' as to make it necessary for the plaintiff to show by independent evidence that he did not bring the misfortune upon himself.”

In Hart v. Hudson River Bridge Co., 80 N. Y. 622, the same doctrine is stated, and it is held that: “Where, from the circumstances shown, inferences are to be drawn which are not certain and uncontrovertible, and as to which persons might differ, it is for the jury to decide." See, also, Boyce v. Man. Railway Co., 118 N. Y. 314; 28 St. Rep. 692.

Under the .doctrine established by the above cited cases, was the evidence produced on the trial proper to be submitted tq> the jury, and from which absence of contributory negligence could be found, or should the trial judge have granted defendant’s motion for a nonsuit? With considerable hesitation, I have reached the conclusion that the case was rightfully disposed of by the learned trial judge. Deceased, when he met his death, was skating on a navigable river He was rightfully there. French v. Camp, 18 Me. 432 ; Woodman v. Pitman, 79 Me 456 ; 10 Am. & Eng. Enc. Law, 861. He was upon a public highway. It is said in the opinion delivered by Judge Gray in Turner v. City of Newburgh, 109 N. Y. 301-307 ; 15 St. Rep. 93, in reference to one traveling along an ordinary highway: “A person using a public highway is not bound to anticipate danger, without some notice of a condition of things suggesting iP peril of travel. It was for the jury to decide, as matter of fact, whether, under the proof, the plaintiff conducted herself as a person ordinarily does under similar circumstances ^

In Jennings v. Van Schaick, 108 N. Y. 530, 531; 13 St. Rep. 686, Judge Fiitch stated, in regard to one passing along a highway : “She had a right to assume the safety of the sidewalk, and so was not called upon to give attention to her steps until, in some manner, warned of danger.

In Pettengill v. City of Yonkers, 116 N. Y. 558-564; 27 St. Rep. 531, the doctrine laid down in the above cited cases was followed, and it was held that: “A person using a public street has no reason, to apprehend danger, and is not required to be vigilant to discover dangerous obstructions; but he may walk or drive, in the daytime or nighttime, relying upon the assumption that the corporation whose duty it is to keep the streets in a safe condition for travel has performed that duty, and that he is exposed to no danger from its neglect.”

I think, to a certain extent, the same doctrine should apply to one traveling on the ice on a river highway; that is, that one so traveling is not negligent in assuming that he runs no risks, except the ordinary risk incident to such a highway. He is not, as matter of law, negligent in assuming that his life will not be imperiled by the gross negligence of parties in omitting to guard their ice cuttings as directed by the statute. Deceased, at the time of the accident, was lawfully skating on the river. The ice, ordinarily, was of great thickness, and perfectly safe for skating. Defendant had cut and removed the ice from three large cuttings, and there was no sufficient fence or guard around such cuttings, as required by § 429 of the Penal Code, which is as follows: “A person or corporation cutting ice in or upon any water within the boundaries of this state for the purpose of removing the ice for sale, must surround the cuttings and openings made, with fences of bushes or other guards sufficient to warn all persons of such cuttings or openings. Which fences or guards must be erected at or before the time of commencing the cuttings or openings, and must be maintained until ice has formed therein to the thickness of at least six inches. Whoever omits to comply with this section is guilty of a misdemeanor.”

The evidence was such that the jury could properly have found that in two of the cuttings the ice was thick enough to bear up a person skating, while upon the third opening it was only three-fourths of an inch thick. On this cutting, deceased skated. The ice gave way, and he was drowned. There was evidence that the ice in all of the three cuttings was of the same color and appearance. The statute above quoted required defendant to make and keep a sufficient fence or guard around its openings or cuttings until the ice was formed thereon at least six inches thick. Although Sickles probably knew that he was skating on a cutting made by defendant, it does not appear that he knew that the ice there was only three-fourths of an inch thick; and I do not think he was, as a matter of law, negligent in assuming that the defendant would comply with the statute, and keep a fence or guard around the cuttings until the ice had become safe. It was not negligence for him to assume that defendant would not be grossly negligent. The absence of a fence was an assurance to him that the ice was six inches in thickness. It was as if an agent of defendant had been stationed at the place in question, and so informed him. The object of. the statute is to prevent the occurence of such casualties as happened in this case, by compelling those taking ice from the river to surround their cuttings with proper guards, so that one on the river, as above suggested, shall run no risk, except the ordinary perils of being on such a higlnvay. Hence, persons skating on the river have the right, without being necessarily negligent, to rely upon the observance of the statute by those taking ice therefrom, and to believe that where there are no fences or guards there are either no ice cuttings, or, if otherwise, that the ice has become six inches thick, and safe. It is probably true, as appellant claims, that deceased knew that he was skating on an ice cutting, but it is not shown that he knew that the ice thereon was unsafe. The absence of the guards, and the statute, told him that the ice was six inches thick,—was perfectly safe for him to go upon. As one walking along the streets ‘of a city may, without negligence, rely on the assumption that the municipal corporation will perform its duty in keeping the streets safe, so deceased, skating on the river, could assume that the defendant had performed its duty by complying with the provisions above quoted of the Penal Code. I think, therefore, that it was under the circumstances, a question for the jury whether there was any negligence on the part of the deceased. The color of the ice was the same in all the cuttings, and hence the color of the part where he lost his life was not notice to him of the danger. If he knew he was where defendant had removed the ice, he might, as we have seen, without being negligent, conclude that the ice, four days after defendant had ceased cutting, had formed six inches thick. The facts were all before the jury, It was a case where the inferences to be drawn therefrom were not certain and uncontrovertible, and hence for the jury to decide.

There was some evidence in the case that deceased was warned by young Van Vallcenburg not to go on the ice at the place where he was drowned, but it was not clearly shown that Sickles heard the warning. He was shown to be hard of hearing, and hence it was a question for the jury to decide whether he did hear it.

I think the evidence offered and excluded by the learned trial judge, that the fence or guard around the cutting was the same as had been used and maintained by others engaged in the same business, and that no accident had happened before, was properly excluded. The question was whether the fence erected by defendant at the time of the accident was sufficient, under the statute. The fact that defendant or others had used a similar guard before would not tend to show the sufficiency of the fence. The trial judge could have properly instructed the jury that the guard in question, put around the cuttings of defendant, was insufficient, under the statute.

The learned counsel for appellant calls our attention, among other authorities, to the case of Weston v. City of Troy, 139 N. Y. 281; 54 St. Rep. 493. That case is not a parallel one. There the action was for damages by reason of a fall on a sidewalk, occasioned by a slippery ridge. The plaintiff was a witness on the trial. The accident occurred in the daytime, and the ridge, as the case states, was plainly visible. The court held that: “ The presumption which a wayfarer may indulge, that the streets of a city are safe, and yhich excused him from maintaining a vigilant outlook for dangers and defects, has no application where the danger is known and obvious.”

The distinction between that case and this is clear. In that decision it was not intended to overrule the doctrine stated in Jennings v. Van Schaick, supra, and kindred cases above cited. In Weston v. City of Troy, the obstruction in the streets, was obvious, and the plaintiff, as a witness or otherwise, was bound to show how she slipped and fell on a ridge plain to be seen in the daytime. In Jennings v. Van Schaick, supra, and many other cases where the defect in the street was not obvious, it is held that one passing along a highway has the right to assume the safety of the street, and so is not called upon to give attention to his steps until in some manner warned of his danger. So, in the * case under consideration, where the thinness of the ice in the cutting was not apparent, deceased, without negligence, could assume, in skating on the river highway, that he incurred no risk except the ordinary ones incident to such a highway, and that the ice in the cuttings around which there were no guards as required by the statute was of such a thickness as to render skating thereon safe. I, therefore, conclude that the judgment should be affirmed, with costs.

Mayham, P. J., concurs; Herrick, J., concurs in result.


text:
    Wayland D. West, as Executor, etc., Resp’t, v. William Place et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed July 14, 1894.)

    Appeal—Notice—Service.
    On appeal by contestants in action by executor to construe the will, the notice of appeal must be served uuoh the defendants who admitted its validity.
    Appeal from a judgment in favor of plaintiff.

      Anibal & West, for app’lts; William Green, for resp’t.
   Mayham, P. J.

—An action was prosecuted in this court by the executor and trustee named in the will of Isaac V. Place, deceased, for a judicial construction of that instrument. All of the legatees and devisees named in the will of the testator were made parties to the action, and none of them took issue, by their answer, with the allegation of the complaint, except five, who answered, denying the validity of the will, and demanded that the same be adjudged void, while all the other defendants who appeared by their answer admitted the validity of the will. The will, by the decree of the court, was declared valid, and all of its provisions sustained, and construed in accordance with its provisions, upholding all the devises and bequests therein. From that decree the five contestants appeal, naming as respondent, in their notice of appeal, only the executor, who was plaintiff in the action, and serving the notice of appeal only on him and the clerk of the county with whom the records of the decree are filed and entered.

This appeal seeks to reverse the decree establishing the validity of the will, and to have it adjudged invalid and void, without serving a notice of appeal upon those defendants who are beneficiaries under the will, and who, by their separate answer, had asked that the will be sustained. The will and motion papers show that a reversal of the decree would deprive some of the defendants, who are not made parties to this appeal, of any share in the estate of the testator. It is, therefore, insisted that they are necessary parties to the appeal, and, as they gave proper written notice of the entry of the judgment or decree upon the appellants, the notice of appeal should have been served upon them, and that without making them respondents in the appeal no determination of the question raised by it can be had, and, the time limited for the service of a notice of appeal on them having expired, the appeal is irregular, and should be dismissed.

Section 1300 of the Code of Civil Procedure prescribes the mode of bringing appeals, and provides that it must .be by serving a notice upon the attorney of the adverse party and the clerk. The defendants, whose interests are adverse to the appellants, and who have appeared and"answered by answers hostile to them, must, we think, be held to be adverse parties to the appellants, within the meaning of § 1300 of the Code. The notice of appeal should therefore have been served upon the defendants who appeared and interposed answers hostile to that of the appellants, and the failure to do that was a failure to fully comply with the statute under which only appeals can be taken. Section 1351 of the Code of Civil Procedure limits the time within which an appeal can be taken to thirty days after the service of a copy of the judgment or order upon the appellant’s attorney, and written notice of the entry thereof; and § 784 of the same Code expressly prohibits the court or judge from enlarging the time for taking an appeal. The appeal in the case not having been served upon the defendants who were, as to the appellants, adverse parties, and whose interests are adverse to that of the appellants on the appeal, and a review as to such parties being necessary to a complete and proper determination of the appeal, and the time having expired for appealing, as to such adverse parties, with no power in this court to relieve the appellants from the consequences of their delay, this appeal must be regarded as irregular and invalid, and must, therefore, be dismissed.

Appeal dismissed, with costs to the respondent, together with costs and disbursements on this motion.

All concur.


text:
    First National Bank of Plattsburgh, Pl’ff, v. John J. Fitzpatrick et al., Def’ts. The People ex rel. John J. Fitzpatrick, App’lt, v. Ransom, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed July 14, 1894.)
    1. Contempt—Adjudication.
    Disobedience of an order requiring the defendant in supplementary proceedings to pay money is not punishable as a contempt, unless there is an adjudication that plaintiff’s rights are prejudiced.
    2. Same.
    Where he is ordered to pay or stand committed, he cannot be imprisoned for failure to pay, unless another order is, after such failure, made commiltingihim.
    Appeal from an order, made in supplementary proceedings on a judgment in favor of plaintiff, directing one of the judgment debtors to,pay to his receiver or stand committed to jail until the same is paid, and from an order dismissing a writ of habeas corpus, issued on the petition of said judgment debtor, for the review and reversal of the first mentioned order.

      Riley & Hager (T. F. Conway, of counsel), for app’lt; Beckwith, Botsford & Beckwith (Geo. H. Beckwith, of counsel), for resp’t.
   Putnam, J.

—I think the order of February 13th, under which the defendant. was imprisoned, and from which the appeal is taken, was erroneously granted for the reasons pointed out in Fischer v. Raab, 81 hi. Y 235. In that case the plaintiff was directed to pay certain referee fees, and failed to do so. An order to show cause was granted, requiring him to pay the said fees within a certain time or show cause why he should not be committed for contempt in disobeying the order and not paying the fees. On the return of the order, plaintiff not having paid the money, the court made an order that he be committed to the common jail of the county, there to remain charged upon the contempt until he should pay the fees and ten dollars costs. The order was reversed by the court of appeals, that court holding that the misconduct which can be treated and punished as a contempt must be such as to defeat, impair, impede or prejudice a right or remedy of a party to a civil action, “ and that the alleged misconduct does have that effect must be made to appear and be adjudicated.” The court held in that case that it did not appear that the alleged offense affected or impaired the defendants’ rights, and also used the following language: “ And there does not appear to have been any adjudication that the alleged misconduct defeated, impaired, impeded or prejudiced any right or remedy of the defendants. So far as appears in the papers before us, the sole purpose of the proceeding was to compel payment for the benefit of the referee, as the defendants were not liable to pay him.” It will be seen that the order from which the appeal is taken is subject to one of the objections pointed out in Fischer v. Raab, supra, as to the order in that case. There is no adjudication that the alleged misconduct of defendant defeated or in any way affected or prejudiced any right or remedy of the plaintiff. In the subsequent decision of the court of appeals in the same case—Fischer v. Langbein, 103 N. Y. 84; 2 St. Rep. 768—it was not intended to overrule the doctrine established when the case was first before that court. The other cases cited by the learned counsel for respondent, if inconsistent with Fischer v. Raab, supra, must be deemed overruled by that authority. See, also, Swenarton v. Shupe, 40 Hun, 41-43, Sandford v. Sandford, id. 540, 541; 2 St. Rep. 133; Boon v. Me Gucken, 67 Hun, 251; 50 St. Rep. 901; Code Civ. Pro. §§ 14, 2281-2283.

The is a further objection to the order in question. It assumed to commit the defendant to jail for an offense that he could not commit until after the order took effect. The order to pay the receiver the sum of $2,916.45 necessarily preceded the offense "of defendant in disobeying it. Its direction to defendant to pay the money to the receiver forthwith must be understood as a command to pay the said money immediately after the order was signed, a copy served, and a demand made for the money. There was no order defendant was compelled to obey until it was signed by the judge, and a copy served on him, and a demand made. If he then refused to obey, another order was required. The contempt could not precede the making of the order. It is true that the court, on February 13th, could have made an absolute order, if properly drawn, committing defendant for contempt on account of his previous refusal to pay the money up to the receiver; but no such order was made. Defendant was required to pay to the receiver the money in question or stand committed. After the making' of the order he should have had an opportunity to make said payiñent, and, if not made, another order was required. See Brinkley v. Brinkley, 47 N. Y. 40-47; Kuhn v. Kuhn, 23 St. Rep. 387; 4 N. Y. Supp. 952; Rice v. Ehele, 55 N. Y. 518-521. I think, therefore, that the order in the first above entitled action should be modified by striking therefrom the words, “or stand committed to the Clinton county jail until such delivery be made, or until discharged by law or order of this court,” at the end thereof, and inserting in the place of the wprds so stricken out, “ upon the demand of said receiver for said sum; ” and that the order in the second above entitled action or proceeding should be reversed, with the usual costs and disbursements on both appeals, and the defendant discharged from arrest.

All concur.


text:
    The People, Resp’t, v. Irving Gumaer, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed July 14, 1894.)

    1. Seduction—Jurisdiction.
    Where the indictment charges that the offense was committed at the town of Forestburg, in the county of Sullivan, and the evidence describes the seduction as occurring near Sand Spring, without showing that such locality was within the said county, a conviction will not be reversed on the ground that the crime was not committed in that county.
    3. Evidence—Seduction—Corroboration.
    Evidence of defendant’s attentions, as a suitor, to prosecutrix, are a sufficient corroboration of her testimony, in an action for seduction under a promise of marriage.
    Appeal from a judgment of conviction for seduction under a promise of marriage.

      John W. Lyon, for app’lt; David S. Hill, for resp’t.
   Mayham, P. J.

-—The appellant relies mainly upon two grounds for a reversal of the conviction: First. That it does not affirmatively appear that the alleged crime was committed within the territorial jurisdiction of the court of sessions of Sullivan county. Second. That the testimony of the prosecutrix is not supported by other evidence, as required by § 286 of the Penal Code. The indictment charges that the offense was committed at the town of Forestburgh, in the county of Sullivan, and while the evidence describes the seduction as occurring near Sand Spring, without specifically showing that that locality is within the limits of Sullivan county, still we think, in the absence of any evidence showing that locality outside of the county limits, or of any question being made, upon the trial, upon that subject, the court and jury were authorized upon all of the evidence to find it within that county, and that the defendant cannot now, on appeal, without any proof to support his contention, ask a reversal of this conviction on the ground that the evidence fails to show that the crime was committed within territorial jurisdiction of the trial court. The indictment complied with the provisions of subdivision 4 of § 284 of the Code of Criminal Procedure, by stating that the offense was committed within the county of Sullivan, and the proof, in the absence of any objection or suggestion to the contrary, sustained-that allegation. This brings us to the consideration of the second ground urged by the defendant for a reversal of this conviction, viz., was there a sufficient corroboration of the evidence of the prosecutrix to satisfy the requirements of § 286 of the Penal Code ? The corroborating circumstances relied upon by the people consist mainly of the evidence of attentions of the defendant upon the prosecutrix in the character of a suitor. The undisputed evidence shows that their acquaintance commenced in January, 1891, and that his attentions were unremitting from that time until the 7th of June, when it is alleged the offense was committed. During that interval, he visited her every Sunday, frequently rode out with her, attended upon her, and escorted her to parties, and to visit her friends, and evinced for her such partiality, by his attentions, as to furnish some evidence which the jury had the right to consider as bearing upon the alleged promise of marriage, and, to some extent at least, corroborated the testimony of the prosecutrix upon that subject. This alleged promise of marriage and seduction, according to the testimony of the prosecutrix, occurred on the 7lh of June, 1891, and the adulterous intercourse was repeated, according to her testimony, on the next Sunday, the 14th day of June, at about the same place, on their return from Port Jarvis, and defendant continued his visits every Sunday after that, except one, until the 15th of August. During all the summer months of that year he was a constant visitor of the prosecutrix. On the 6th of April, 1892, prosecutrix gave birth to a child, which she alleges was the fruit of the defendant’s intercourse with her. Other circumstances are detailed in the evidence which the jury might properly regard as bearing upon the question of the alleged promise and seduction. There was, therefore, other evidence supporting the testimony of the female seduced, which, if believed by the jury, was clearly sufficient to meet the requirements of § 286 of the Penal Code. The case was, therefore, a proper one for the jury, and there is sufficient evidence to sustain their verdict. Some criticism is made by the appellant’s attorney upon the charge of the judge, and while, in some respects, his characterizations may have too plainly reflected his own feelings, there was no legal error in the charge for which this judgment of conviction can be reversed. Judgment of conviction affirmed.

Putnam, J., concurs; Herrick, J., dissents.


text:
    Nancy E. Van Dermoor, App’lt, v. William Van Dermoor, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed July 14, 1894.)

    Husband and wipe—Anti-nuptial agreement.
    An anti-nuptial agreement by a wife that she will not claim any dower, share or interest in her husband’s estate, does not estop her from claiming, after his death, the proceeds of a policy of insurance on his life.
    Appeal from a judgment dismissing the complaint.

      Sanders & Myers (R. A. Parmenter, of counsel), for app’lt; Alonzo P. Strong, for resp’t.
   Putnam, J.

—This is an appeal by the plaintiff from a judgment of the supreme court entered upon the report of a referee dismissing the complaint upon the merits. The action is brought to recover the amount of an insurance policy issued by the New England Life Insurance Company on the 3d day of July, 1867, on the life of one Adolph R Yan Dermoor, for the sum of $2,000. The policy contained the following provision as to the payment of said sum : “And the said company do hereby promise to and agree with the said assured, his executers, administrators, and assigns, well and truly to pay the said sum insured to the said assured, his executors, administrators, or assigns,- sixty days after due notice and proof of the death of the said assured during the continuance, and before the determination, of this policy, for the benefit of his widow, if any.”

The assured was then about 50 years of age, and was living with his first wife, Harriet J., whom he had married in 1843, and who was of about the same age as her husband. Harriet, the first wife of the assured, died on the 9th day of November, 1881, leaving, her surviving, said Adolph and certain of their children. O11 the 26th day of September, 1882, Adolph married the plaintiff in the action. On the day preceding this latter marriage, and, in contemplation thereof, a marriage contract was entered into between the parties, by the terms of which the said Adolph R. conveyed to the plaintiff, in fee, after his decease, and in case she should survive him, a house and lot in the city of Schenectady, in consideration of which the plaintiff covenanted that ■—■ “ The lands and premises so assigned and set apart for her shall be in full satisfaction of her dower in his, the said Adolph R. Yan Dermoor’s estate, and shall bar her from claiming any dower, if she shall survive him, after said marriage, and that she- shall not claim any share or interest in his personal estate, unless the said Adolph R. Yan Dyrmoor shall give her some part thereof by his will, or by some act done by him subsequent to the execution of these presents.”

On the 8th day of October, 1885, the said Adolph R. Yan Dermoor died, not having, by any act done by him subsequent to the execution of the antenuptial contract or marriage settlement, given the plaintiff any share, interest, or portion in or to the policy of insurance above mentioned, or in orto the moneys payable or paid thereunder. On the 7th day of January, 1886, the insurance company paid to the defendant, as executor, etc., of deceased, $1,727.69, in full of the amount payable under the policy above mentioned. It is for the recovery of this sum that this action is brought. I have carefully examined and considered the brief of the learned counsel for the respondent, and the authorities by him cited, but am of the some opinion as that entertained by the learned referee : that by virtue of the provisions of the insurance policy issued to Adolph E. Van Dennoor by the New England Life Insurance Company on the 3d day of July, 1867, plaintiff, as his widow, was entitled to recover in the action, unless estopped from claiming under the said insurance policy by the covenant contained in the antenuptial contract. Under the policy, the sum insured was to be' paid to the deceased, his executors, administrators, or assigns, “for the benefit of his widow, if any.” It was not provided in the policy that such payment should go to any particular person who might become his widow, as, for instance, his wife at that time. The provision was a general one, that -the insurance money should go for the benefit of his widow, if any. I think it does not require any discussion to show that plaintiff, by the plain language of the policy, was entitled to the money payable thereunder. The referee, while holding that plaintiff, as the widow of Adolph E. Van Dermoor, was entitled under the provisions contained in said policy, to the money that became due and payable thereunder on his death, finds, however, that she was estopped from claiming the same by the antenuptial contract in which she covenanted and agreed that, in case she should survive him, she wouldgnot claim any share or interest in his personal estate. Although with some hesitation, I have reached a conclusion different from that arrived at by the referee as to the construction that should be given to this contract. It was not made in contemplation of the marriage of plaintiff with the deceased, and of her surviving him, and the personal property referred to therein was not that which was owned by him at the time of making the contract, but the personal property he should have at the time of his death. The question is, did the contract refer to the policy of insurance, or to the money payable thereunder after the death of deceased? The antenuptial contract did not expressly refer to said policy of life insurance. It provided that, if plaintiff should survive the said Adolph E. Van Dermoor, from and after his death she should become seized in fee and the owner of a lot of land described therein ; and in that event, she covenanted not to claim dower in his real estate, or any interest or share in his personal estate. If plaintiff did not survive the said Adolph E. Van Dermoor, the agreement should become null and void. The agreement only became operative in case the said Adolph E. Van Dermoor left the plaintiff surviving him, and hence the personal property that plaintiff covenanted not to claim any share or interest in was, as above suggested, such as he left at the time of his death. He had, at the time of making the antenuptial contract, an agreement with an insurance company by which that company insured his life for $2,000, agreeing to pay said sum, on his death, to his executors, administrators, or assigns, for the benefit of his widow, if any. In other words, the insurance company had entered into a contract with the said Adolph to pay to his executors, administrators, or assigns, when the antenuptial agreement should become operative by his death,-leaving the plaintiff surviving him, the sum of $2,000 for her benefit. This insurance contract .was never changed during the lifetime of the insured. I am unable to see how plaintiff, in claiming the money paid by the insurance company under said policy, is violating her covenant contained in the antenuptial contract. She agreed not to demand any interest in the personal property left by the said Adolph at his decease; that is, in the estate that should go to his personal representatives. The money in question never belonged to his estate. It was received by his personal representatives as trustees for the benefit of plaintiff. In re Van Dermoor, 42 Hun, 826; 3 St. Rep. 713. When the antenuptial contract was made, plaintiff did not agree to waive the benefit of the insurance contract then in force, made by the deceased for her benefit when the said antenuptial contract, by its terms, should become operative. ' When Adolph R. Yan Dermoor died, the insurance moneys in question belonged to plaintiff, as his widow. She was not estopped by the antenuptial agreement for claiming it. That paper referred to the personal property that went to the personal representatives of the deceased as a part of his estate. The insurance money, by the terms of the insurance contract between the company and deceased, at his death went to the plaintiff. She claims it, not by virtue of her right, as his widow, to a distributive share of his estate, but as her own property, under a contract made by deceased, for her benefit, with an insurance company, under which, on his death, the money at once vested in her, and hence never became a part of his estate. In claiming her own property she is not violating the covenant in the contract not to demand any interest in the personal estate left by deceased. I conclude, therefore that the judgment, should be reversed, and a new trial ordered, costs to abide the event.

All concur.


author: Per Curiam.—

text:
    Solomon Fleischman et al., Resp’t, v. Gertrude Fleischman et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed July 14, 1894.)

    Appeal—Dismissal.
    The appeal will be dismissed where the appellants have ceased to be parties to the action.
    ■ Appeal from an order, denying a motion that plaintiffs be required to reply to new matter set up in the answer.

      Chas. B. Cole, for app’lts; Parker & Fiero (J. Newton Fiero, of counsel), for resp’t.
   Per Curiam.—

This is an appeal from an order denying defendants’ motion that plaintiffs be required to reply to the new matter set up in the answer. There is also submitted an appeal from an order in the same action, made at the same time, granting plaintiff’s motion to discontinue the action as to said appealing defendants. The two appeals were argued together. There can be no object, therefore, in passing upon the question submitted to us on this appeal. The defendants have ceased to be parties to the action. Should we conclude to reverse the order, the plaintiffs cannot be compelled to serve a reply. The only effect of a decision would be to obtain the opinion of this court upon the legal questions involved. Appellate courts have uniformly refused to pass upon “ mere abstract questions, from the determination of which no practical result cau follow.” People ex rel. Geer v. Common Council of Troy, 82 N. Y. 575; Commercial Union Assurance Co. v. Smith, 40 St. Rep. 758; 16 N. Y. Supp. 114.

Appeal dismissed, without costs to either party.

All concur.


text:
    George V. R. Lewis, as Administration, etc., App’lt, v. President, etc., of Delaware and Hudson Canal Company, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed July 14, 1894.)

    Eegliqence— Contributory.
    A railroad company is not liable for injuries to a passenger, who alights voluntarily from a moving train.

      Verbeck & Lewis (James W. Verbeck, of counsel), for app’lt; Lewis E. Carr, for resp’t.
   Mayham, P. J.

—Two questions seem to be presented for our consideration on this appeal. First. Was the defendant guilty of any negligence or breach of duty to the plaintiff's intestate which resulted in the injury of which the plaintiff complains? Second. Was plaintiff’s intestate free from negligence? The deceased boarded a train at Cobleskill, which was a through train from that point to Albany, stopping at no intermediate stations between those two points, and was so designated on defendant's published schedules and time tables. After the train left Cobleskill, the conductor, in passing through the train collecting the tickets and fare of passengers, was handed a mileage book by the deceased, and at the same time informed by him that he desired to stop at Quaker Street, an intermediate station, at which that train was not permitted to stop, to which the conductor replied that he did not think they would stop at Quaker Street. Eeturning in a short time he said, “ We will not stop at Quaker Street,” but “will see.” The train proceeded on its way until after it passed Central Bridge station, when it was compelled to slow up or stop), to allow a freight train going in the opposite direction to pass through a bridge on which there was not sufficient room for two trains to pass, and -at this point the conductor said to deceased: “ It is going pretty slow now, and it will be going faster, and you had better get off now; that is all I have -to say about it,”— whereupon the deceased stepped off between the freight and passenger trains, and was hit by the freight train, and so seriously injured that he died soon after. There was ample space on the opposite side of the passenger car from the freight train for the deceased to have alighted, and thus to have avoided all possible danger of being hit by the freight train ; but the evidence does not disclose whether or not he was aware of the proximity of the freight to the passenger car at the time he alighted. It is quite apparent that the defendant, in running these trains, was acting strictly within the lines of its duty, and that as to the manner of running the same it owed the plaintiff’s intestate no duty or obligation which it did not fully perform. Conductors, in the running of railroad trains, are properly held by their companies and the public to the most rigid and scrupulous observance of the rules and orders of the company in the management of their trains. To have stopped this train in violation of that rule, without authority from'the train dispatcher or other officer authorized to control the movement of trains, would have been such a breach of duty as would make him amenable for injury resulting from such violation. Was the deceased misled by the statement of the conductor in his attempt to alight from the train, or coerced into such a hazardous.step by the statement of the conductor, and, if so, is the company liable for such acts or statements of the conductor? It was known as well to the intestate as to the conductor, at the time the former left the train, that it was a through train, and that it was not allowed by the defendant to stop to enable passengers to alight, after it left Gobleskill station, until it reached its final destination at Albany; and that the incidental slowing or stopping for the purpose of allowing another train to pass was not for the purpose of enabling a passenger to alight, and that the conductor had no authority, as agent of the company, to stop or slow a train to enable a passenger to alight until the train arrived at Albany; and the statement of the conductor to the deceased at the time that he alighted was not the demand or request of the company that the intestate might alight from the train, but simply a statement of the conductor, outside of his official control of the train, that that was the best opportunity intestate would have to leave the train before it reached Albany ; and that it was not a command of the conductor, as such, to intestate, to leave the train, is evidenced by his concluding remark, “ All I have to say about it” It is clear, therefore, that the intestate, of his own volition, and without any fault of the defendant or its employe, and without looking to see what dangers he was about to encounter, carelessly stepped from the passenger car, to be hit, and almost instantly killed, by the train on the next track. In doing this act, for which the company was in no way legally responsible, he took the hazard of the consequences of his negligence, and it cannot now be imputed to the defendant. The defendant had given him no reason to expect that he could leave the train until it reached Albany, and, if he saw fit to avail himself of the temporary slowing of the train as his opportunity to alight, we think that the risk of that act was assumed by him. If we are right in our conelusion that the defendant was chargeable with no negligence or breach of duty towards the intestate, we might stop this discussion here ; but, if wrong in that conclusion, then we must examine the facts to see whether or not the intestate was free from negligence on his part, or whether he, by his own negligence, contributed to the happening of the injury of which the plaintiff complains. It has frequently been held that to alight from or board a moving train is negligence per se. In Hunter v. Cooperstown, etc., R. R. Co., 126 N. Y. 23; 36 St. Rep. 367, Gray, J., in delivering the opinion of the court, uses this language: ‘‘To alight from or board a train in motion is a negligent and hazardous act, which can only be made to appear excusable when, in the situation of the person, he is under such coercion of circumstances as to raise a fair question as to whether he was really in the free possession and use of his faculties and judgment.’’

In the same case on a former appeal (112 N. Y. 373-375 ; 21 St. Rep. 1), Peckham, J., in delivering the opinion of the court, put and answered the following question : “The important question that arises in this case is : Does a man who is sui juris, and in the full possesion of his faculties, with nothing to disturb his judgment, act with ordinary care in endeavoring to board a train moving at the rate of four, five, or six miles an hour ? It seems to me there can be but one answer to this question. That it is a dangerous — a most hazardous — attempt must be the common judgment of all men. Persons are taught from their earliest youth the great danger of attempting to board or leave a train while in motion, and no person of mature years and judgment but has the knowledge that such an attempt is dangerous in the highest degree.”

In that case, as in this, there was proof that the conductor suggested to the passenger to jump on the moving train, and the court in disposing of that request of the conductor, says: “That notification certainly cannot be interpreted to mean more than that the train would not stop or go slower than it was then going, and that, if the deceased wanted to take it, he must jump on. That docs not alter the highly dangerous nature of the act itself. The deceased was in absolute safety at the time the direction was given. It created no emergency which called for the exercise of immediate judgment in the choice between two dangers.”

So in this case, had the deceased remained on the train, he would have been in a position of absolute safety. But when the deceased determined to alight it was his duty tb exercise caution in the attempt. If he had looked he would have seen the approaching freight train, and there was nothing to prevent his alighting upon the opposite side of the car from that on which the freight train passed. It was his duty to look and listen before alighting on the track of a railroad away from a depot, when trains were liable to pass and might be expected at any moment. Halpin v. Third Ave. R. R. Co., 40 N. Y. Supr. Ct. 175-185; Morrison v. Erie Railway Co., 56 N. Y. 302. In this last case it was held that, where the facts are undisputed, negligence is a question of law. The fact that the approaching freight train could have been seen in time to have avoided the injury, had the deceased looked, is undisputed. If he had looked, he would have seen and escaped the danger, and not to have looked under such circumstances was negligence.

The judgment must be affirmed, with costs.

All concur.


text:
    Emmett M. Fitch, as Administrator, etc., Resp’t, v. Edward M. McDowell et al., App’lts.

      (Supreme Court, General Term, Third Department,

      Filed July 14, 1894.)

    Mortgage—Assignment—Equities.
    Assignee o*f a mortgage can foreclose only for the balance of the mortgage debt after deducting the amount of a note, previously given by mortgagor in part payment and transferred by mortgagee, unless he indemnifies the mortgagor against the note.
    Appeal from a judgment in favor of plaintiffs.
    Weeds, Smith & Conway (T. F. Conway, of counsel), for app’lts; Shedden &Booth (L. L. Shedden, of counsel), for resp’t.
   Putnam, J.

—The arrangement under which the mortgagor,. Edward M. McDowell, in November, 1887, made and delivered to Andrew Williams the note for $1,750 described in the answer of defendants as a conditional payment on the bond and mortgage in suit, is as valid and binding upon plaintiff as if the assignment by Williams to Jane Ellis, made in 1886, as collateral security, had not been executed. McDowell was not informed of such assignment ; it was not recorded. Williams had possession of the bond and mortgage, and, in fact, was authorized to receive payments thereon. Van Keuren v. Corkins, 4 Hun, 129; 66 N. Y. 129; Kelly v. Bruce, 17 Wkly. Dig. 89. Besides, the unrecorded assignment of 1886 was afterwards destroyed, the absolute title to-the bond and mortgage revesting in Williams, and the transfer under which the plaintiff claims was executed subsequent to the execution of said note and the transfer thereof to the Iron National Bank of Plattsburgh. It is proper, therefore, to pass on the questions submitted to us as if the note was executed and transferred when Williams was the absolute owner of the-bond and mortgage, and the assignment as collateral security had not been made. The situation, then, was as follows: Williams had a bond for the whole amount of the mortgage debt, and' also a note for $1,750 thereof. If Williams had not, after the execution and transfer said note, made the assignment of the bond and mortgage to plaintiff’s intestate, and had the foreclosure action been brought by him as a plaintiff, he could not have obtained a decree of foreclosure, establishing the mortgage debt, without deducting the amount of said note, unless he was able to procure and surrender it. Battle v. Coit, 26 N. Y. 404-406; Burdick v. Green, 15 Johns. 247 ; Seymour v. Lewis, 19 Wend. 512 ; Lord v. Bigelow, 124 Mass. 185 ; Elwood v. Diefendorf, 5 Barb. 398-408 ; 18 Am. & Eng. Enc. Law, 176; and authorities cited. And this is the case, although expressly agreed that the note should only apply as a payment on the bond and mortgage when paid. In the absence of such an express agreement, the law would have implied one; would have ingrafted such a provision in the contract. A note given by a debtor for a pre-existing debt is deemed a payment thereon only when expressly agreed to be such. Murray v. Gouverneur, 2 Johns. Cas. 438; Van Eps v. Dillaye, 6 Barb. 244— 252 ; Waydell v. Luer, 3 Denio, 410-415 ; Seymour v. Lewis, 19 Wend. 512. A careful examination of the case of Read v. Marine Bank, 136 N. Y. 454; 49 St. Rep. 675, cited by the learned counsel for respondent, will show that the authority does not sustain the position taken by him on the argument. It was held in that case that—“Performance of an impossible thing was not demanded, and the law imported into the contract an exception, and if the paper had been actually lost, and he did not know, and could not reasonably be expected to ascertain, where it was, or if, knowing of its existence, it was beyond his power to reclaim it bj^ any lawful method of procedure, the defendant would not be discharged from liability, but a recovery could be had by making substantial indemnity at the trial.”

No indemnity was tendered by the plaintiff in this case. Therefore, had Williams remained the owner of the bond and mortgage, and brought an action to foreclose it, instead of the plaintiff, he would only have been entitled to a decree establishing the amount of the mortgage debt at the sum secured by said bond, less the amount of the note, unless he could produce and return the note to the mortgagor. We are of opinion that plaintiff’s intestate acquired no other or superior rights under the bond and mortgage in question than her assignor possessed at the time of the assignment. It is held that “ the equities existing between the assignor and assignee of a chose in action not negotiable attend the title transferred to a subsequent assignee for value and without notice. The latter takes the exact position of his assignor.” Bush v. Lathrop, 22 N. Y. 535; Green v. Fry, 93 N. Y. 323; Hill v. Hoole, 116 N. Y. 299; 26 St. Rep. 657. Hence, plaintiff, as against McDowell, the mortgagor—the assignor, Williams, having transferred the note in question to the Iron National Bank of Plattsburgh, the present owner thereof, and of the judgment obtained thereon—being unable to produce and surrender said note, is not entitled to a decree for that part of the mortgage debt represented by the note. As held in Battle v. Coil, supra, the not.e given to Williams operated at first as a conditional payment on the mortgage debt, but, being transferred, and remaining in the hands of the assignee, who had obtained judgment thereon, it operated as an absolute payment on the original consideration as between McDowell, Williams, and plaintiff as the assignee of the latter. The note, therefore, under the circumstances, operating as a payment on the mortgage debt, the recording act which is invoked by respondents cannot be deemed to apply. Plaintiff’s intestate took the bond and mortgage reduced by the amount of the note in question. The Iron National Bank of Plattsburgh cannot be considered an assignee of a portion of the mortgage debt within the meaning of the recording act.

The learned counsel for the appellant assumes that, the Iron National Bank of Plattsburgh having taken the note with notice that it was given to Williams to apply on the bond and mortgage in question when paid, the mortgagor, McDowell, could have successfully defended the action brought by said bank on said note; that it was, in fact, an accommodation note, and the bank had notice of that fact. Granting that when the note in question was discounted by the bank its cashier was informed bv Williams that the note was given to apply on the McDowell mortgage, if paid, and, if not, he (Williams) would have to take care of it himself, as found by the court below, we are unable to see how McDowell could have successfully defended an action upon the note by the bank. Assuming, as claimed by plaintiff, that the note under consideration was accommodation paper, yet, by its terms, the maker, McDowell, agreed to pay, two months after its date, $1,750 at the Iron National Bank of Plattsburgh, value received. There was no restriction placed upon Williams as to the use of the said note. Therefore, Williams had a right to transfer the note to the bank, 'and, there being no unlawful diversion, the latter could recover thereon as against McDowell. Seneca Co. Bank v. Neass, 3 N. Y. 442; Agawam Bank v. Strever, 18 N. Y. 502: Bank v. Townsend, 13 Wkly. Dig. 295. See, also, Lord v. Bigelow, 124 Mass. 184-189. The knowldge of an indorsee of a note that it was given for the accommodation of the indorser, where there is no unlawful diversion, docs not prevent a recovery by the former. National Bank v. Wells, 79 N. Y. 498. It follows that, if plaintiff was legally entitled to the decree entered in this case, the mortgagor, McDowell, may be compelled to pay $1,750 of the mortgage debt twice. The note was lawfully transferred by Williams to the Iron National Bank of Plattsburgh; the judgment was lawfully obtained by the bank against McDowell thereon, and may at any time be enforced. We are of opinion that the bank was not chargeable with notice of the unrecorded assignment from Williams to Jane Ellis in 1866, as claimed bv respondent. Merchants’ Nat. Bank v. Clark, 139 N. Y. 314; 54 St. Rep. 593.

Without discussing other questions in the case, it follows that there must be a reversal of the decree. We are unable to come to a conclusion that will result in the mortgagor’s being compelled to pay a portion of the mortgage debt twice. Probably a proper disposition of the case would be a simple modification of the judgment by reducing the amount found due plaintiff. But as the defendant McDowell so requests, we see no objection to making the following disposal of the case: The amount secured by the mortgage shall be deemed the amount found due by the decree. Out of the sale of the mortgaged premises, plaintiff shall first be paid the amount secured by the bond, less the said note and interest, and also the costs of the action as now in the judgment: and out of the balance of said proceeds, if any, the Iron National Bank of Plattsburgh shall be paid the amount of its judgment recovered on its note. The transfer of the note from Williams to the bank, operating as a payment, as between McDowell and Williams or his assignee, may have also operated in equity as an assignment of the mortgage security for the amount of the note. But we are unable to say that it could have the effect of giving such equitable assignee the right to a priority of payment before the payment of the legal assignee of the mortgage. Let the decree be so modified, with costs of this appeal to be paid by plaintiff to appellants.

All concur.


text:
    George N. Manchester et al., App’lts, v. Guardian Assurance Company, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed July 14, 1894.)

    Insurance—Pike—Conditions—Waiver.
    The insured cannot rely upon the paroi executory promise of the general agent of the company to perform an act, the performance of which, if omitted, will work a forfeiture of his policy.
    Appeal from a judgment dismissing the complaint, notwithstanding a verdict in favor of plaintiffs.

      Sackett & Lang (Charles E. Patterson, of counsel), for app’lts ; A. H. Sawyer, for resp’t.
   Mayham, P. J.

—On the 8th day of January, 1889, Ebenezer S. Strait, who was on that day the owner of lands in the town of Brunswick, Rensselaer county, on which there was a dwelling house, procured from the defendant an insurance policy on the same for $2,000, against loss and damage by fire, in the ordinary form of standard fire insurance policies of the state of New York. At the time of the issuance of this insurance policy the premises insured were subject to three several real estate mortgages, aggregating the sum of $16,000. The policy was prepared and delivered to Strait by the general agents of the defendant at the city of Troy, who were furnished by the defendant with policies in blank, signed by the proper officers of the company, and such general agents were authorized by the company to receive applications for insurance, and to issue policies thereon which became binding upon the defendanton being signed by the agents, who were also authorized to continue policies in force, and make all proper indorsements thereon, on the transfer of property by any transfer of title thereto, and to renew policies and continue the insurance for the benefit of persons acquiring an interest in the insured property in the manner provided by the terms and conditions of the standard fire insurance policies of the state of New York. On the 1st day of August, 1890. Ebenezer S. Strait, the owner of the insured premises, to whom this policy was issued, conveyed the same to Emily J. Manchester, one of the plaintiffs, who went into possession. On the 21st of September, 1890, the building covered by this policy was completely destroyed by fire. After the fire. George N. Manchester, the other plaintiff in this action, purchased all the outstanding mortgages on these premises. At the time of the transfer of these premises b)r Strait to Mrs. Manchester, he informed her of this policy, and that the same had been transferred to the Troy Savings Bank as collateral to a mortgage held by that bank on the premises, and he, as the agent of Manchester, notified the general agent of the defendant who wrote this policy, and who was authorized to indorse the memorandum of transfer upon the same, of the fact of such sale and conveyance, and requested him to make such indorsement upon the policy then deposited in the savings bank, which said agent, as was found by the jury, promised to attend to, but which he failed to do before the happening of this fire. For this failure or neglect to indorse such transfer in writing on the policy, the defendant insists that the policy is avoided, and the trial court sustained that view, and dismissed the plaintiffs’ complaint.

The principal question urged on this appeal is as to whether the promise of the general agent of the defendant that he would attend to the making of the indorsement of the transfer of this property on the policy, as required by the terms of the standard policy, bound the defendant, either as a waiver of the conditions, or as an equitable estoppel growing out of the agreement of the general agent to indorse the transfer on the policy then in the Troy Savings Bank. It is not claimed by the learned counsel for the appellants that there was any waiver by the agent of the requirement of the policy that the consent to the transfer shall be indorsed on the policy, so that the question of waiver of that condition need not be considered here. But it is insisted that the general agent, in making this indorsement, stood in the place of the company, with full power and authority to make this indorsement, and bind the defendant thereby, and that as such indorsement could not be made by the plaintiffs or either of them, but mnst, in the nature of the case, be made by the company, through its officers or agents, the agreement of the general agent, having the authority of the company to make such indorsement, was the agreement of the company to do an act which it, and not the plaintiffs, could and must do; it cannot be permitted to take advantage of its own neglect for the purpose of avoiding its obligations to pay this policy in case of loss. Is this contention sound, and supported by the authorities ? Both parties in the case seem to rely upon the doctrine enunciated by the court of appeals in the recent case of O’Brien v. Prescott Ins. Co., 134 N. Y. 28; 45 St. Rep. 389. But that case turned entirely upon 'the inability of a general agent of the defendant to waive by paroi the provisions of the policy against permitting the insured premises to remain unoccupied without the written consent of the company indorsed on the policy, when it, in express terms, prohibited the agent from waiving any of the conditions of the policy except by an indorsement of such waiver on the policy, in writing, and the assured, instead of insisting upon the indorsement of the waiver upon the policy, contented himself with a waiver by paroi by the agent Such attempted paroi waiver was in clear and unmistakable violation of the express terms of the policy. The case at bar differs from that in this; that here the parties did not undertake to waive the provisions and requirements of the policy, but sought to perform them literally, by the assured calling upon and obtaining the promise of the company, by its general agent, to do an act which was in the power of the company to perforin, and the performance of which was its duty, and which could not be performed by the plaintiff. It is true that the defendant, on being requested to consent to this transfer, might have refused, and canceled the policy ; but this it did not do or attempt, and left the assured to assume and believe that the indorsement was made as requested. The condition in the policy under consideration in this case, which it is claimed by the defendant was violated, is as follows : “This entire policy, unless otherwise provided by an agreement indorsed hereon or added hereto, shall be void if any change, other than by the death of an assured, take place in the interest, title, * * * whether by legal process, or judgment, or voluntary act of the insured, or othenvise.”

It also provides that: “ This policy is made and accepted subject to the foregoing stipulations and provisions.”

It follows that the sale of the insured premises, and the taking of possession by the purchaser of the insured premises, works, by the terms of the policy itself, a forfeiture thereof, unless consented to in writing by the defendants, with such consent indorsed on the policy, or added to it. No consent was ever given in the manner prescribed in the policy, and within the rule laid down in the recent case of Baumgartel v. Providence Washington Ins. Co., 136 N. Y. 547; 50 St. Rep. 19, the insured could not rely upon the paroi executory promise of the general agent of the company to perform the act, the performance of which, if omitted, would work a forfeiture of his policy. That case is too clearly analogous in many of its features to this to be distinguishable. The policy, by its terms, made the placing of additional insurance on the property, without the consent of the company indorsed theieon in writing, ground of forfeiture. It also prohibited any change of the provisions of the policy by any agent by paroi, and contained other restrictive provisions similar to the. one in question. The assured put on additional insurance of $1,000, and soon thereafter, meeting the general agent on the street, informed him of that fact, for the purpose of having the proper indorsement made on the policy; and the agent, in answer to such information, said: “All right. I will see to it.” On these facts this court affirmed the judgment of the trial court (39 St. Rep. 627; 15 N. Y. Supp. 573) in favor of the assured, on the ground that the plaintiff had the right to rely upon such assurance from the company by its general agent, and that the defendant was estopped from saying, in its defense against a recovery on the policy after the loss, that it had not performed its agreement. But the court of appeals reversed the judgment, and held that as the agent had no power to grant the permission, except in the manner prescribed in the policy, his paroi agreement was ineffectual, and that, as the policy was not present and presented to him at the time his consent was requested, his executory promise to make the written consent in the future did not bind the company. We see no way of distinguishing that case from the one at bar, and must regard it as controlling and conclusive in principle on this appeal.

Examination of the other questions raised on this appeal seems unnecessary.

Judgment affirmed, with costs.

All concur.


author: Mayham, P.

text:
    Effie B. Oliver, Resp’t, v. Margaret R. French et al., Def’ts. Def'ts Emma J. Kenworthy and Charles A. Kenworthy, App’lts.

      (Supreme Court, General Term, Third Department,

      Filed July 14, 1894.)

    Appeal—Appealable—Judgment by default.
    An appeal does not lie from a judgment by default.
    Appeal from a judgment in favor of plaintiff.
    Action by Effie 13. Oliver against John W. French, Emma Jane Kenworthy, individually, and as executrix and trustee under the will of Charles W. Kenworthy, deceased, Charles A. Kenworthy, Oasper P. Collier and Edward P. Magoun to have a sale of mortgaged real estate, made under a judgment of foreclosure of the mortgages thereon, set aside and vacated, together with the referee’s deed on such sale, and all subsequent mortgages on and conveyances of the premises, and for a resale of such mortgaged premises under such judgment of foreclosure. Defendant John W. French died after the commencement of the action, and Margaret B. French and Frances M. French, his widow and daughter, respectively, were substituted as defendants in his place.

      J. Rider Cady, for app’lts; A. Frank B. Chace, for resp’t.
   Mayham, P.

—This case on appeal contains none of the evidence, and there are no exceptions to the findings of fact or conclusions of law of the learned trial justice on the trial, and the appellants now seek to reverse the judgment solely upon the alleged ground that the conclusions of law of the learned trial judge are not supported by the facts found by him. The appeal is by Charles A. Kenworthy and Emma, J. Kenworthy, individually, and as executrix and trustee under the will of Charles W. Kenworthy, deceased. The judgment in this case as to Emma J. Kenworthy, both as an individual and in her representative capacity, was entered by default, she not having appeared or answered in the action. We do not see' how she can question this judgment taken against her by default The right of a party to appeal is provided for in § 1294 of the Code of Civil Procedure. That section provides as follows: “A party aggrieved may appeal in a case prescribed in this chapter, except when the judgment or order of which he complains was rendered or made upon his default." This exception, by clear implication, deprives a party in default of an appeal. The only remedy left for a party in default, who is aggrieved by a judgment or order, is to open the default, and thus take issue upon the law or facts, and upon such issue have a determination in the trial court, where an appeal from such determination can be taken. The right of a party to be heard on an apipeal in cases where an appeal is not given by statute was determined in Trevettt v. Barnes, 110 N. Y. 503; 18 St. Rep. 533. There a party sought to be heard on an appeal in the court of appeals where the amount in controversy was less than $500. when the action was one not affecting the title to real property, or an interest therein, and that court held that the appeal must -be dismissed, under the provisions of subdivision 3 of § 191 of the Code, which contains exceptions to the general jurisdiction of that court, that case coming within one of those exceptions. It would seem, therefore, that this court is entirely without jurisdiction to hear and consider this appeal of Emma J. Kenworthy. Avery v. Woodin, 44 Hun, 266 ; 10 St. Rep. 160; Flake v. Van Wagenen, 54 N. Y. 25. It is also insisted by the respondent that the same is true as to the appellant Charles A. Kenworthy, no answer or demurrer having been made as to him, and, although an "infant at the time of the foreclosure and sale under the mortgage sought to be set aside, he was of full age at the time of the commencement of this action, and cannot be heard on appeal from a judgment taken against him by default. In this respect we see no reason for any distinction between his right to appeal and that of Emma J. Kenworthy, the other appellant, and think the disposition of the appeal its to her must follow in his case. It is also objected by the learned counsel for the respondent that there is no.question in this case, as made and presented, wdiich this court can consider on the appeal in behalf of the defendants Emma J. and Charles A. Kenworthy, as no exceptions were taken by them to any of the findings of fact or conclusions of law of the learned trial court, and that, within the rules of law and practice, nothing is presented to this court for its determination. Sections 992-994, 998 of the Code of Civil Procedure provide for the manner of raising questions of law upon the findings or refusals of the judge to find, on questions of fact, or upon his conclusions of law, where exceptions are taken. Section 996 provides that “ a ruling to which an exception is taken as prescribed in the last four sections can be reviewed only upon an appeal from the judgment rendered after a trial," etc. The appellants, as we have seen, having suffered judgment to pass against them by default, are, as we think, in no condition to review the judgment on appeal, and, no case or exception being before this court, it has no power to review the facts or law so ably discussed by counsel for the appellant, and examination of the same upon the merits is unnecessary. Judgment affirmed, with costs.

Putnam, J., concurs; Herrick, J., concurs in result.