text:
    William Glassheim, as Administrator, etc., Resp’t, v. New York Economical Printing Company, App’lt.

      (New York Common Pleas, General Term,

      Filed June 3, 1895.)

    1. Negligence — Factory law.
    Shafting, suspended nine and one-half feet above the floor, is properly guarded, within the meaning of section 8, chap. 673 of 1893.
    3. Same.
    Tlie owner of premises, occupied for business purposes, is required only to use reasonable care and prudence for keeping the property in .such con- ' dition that those who go there shall not unnecessarily be exposed to danger.

      Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial on the minutes.

      Henry M. Russell, for app’lt; Edward Wells, Jr., for resp’t.
   Bookstaver, J.

— This action was brought against Hugh Resbitt and the Rew York Economical Printing Company for alleged negligence, whereby Samuel Glassheim suffered injuries from which he died. From the case it appears that the deceased was at the time of his death, on June 14, 1893, about twenty-eight years old, and had been for several years a painter in the employ .of the defendant and Resbitt. The defendant company was a domestic corporation engaged in the printing business at 24 and 26 Yesey street, in this' city, occupying the entire building, as tenants of Robert Hoe, who furnished the power for the various shaftings and presses owned by the company. The main belt ran from the engine to the fourth floor, and the power was thence belted down to the third floor by another belt. On the third floor this shafting ran nearly the whole length of the building from north to south, and had on it four cone pulleys, or a series of wheels of different sizes combined in one, making a cone in shape. The pulleys were held in place by collars, which are round bands of iron-fastened to the shaft by means of set screws. The heads of these screws necessarily project beyond the collar. There was no box or fence around the shafting, and no clutch to throw off the power, and the belts were shifted by means of sticks called “ belt shafts.” But the ceiling was eleven feet high, and the shafting was suspended by hangers with a drop of about eighteen inches from the ceiling, and about nine and a half feet from the floor. Shortly before the accident the defendant Nesbitt had contracted with Hoe, the owner, to kalsomine the walls and ceilings of the premises in question; and the deceased; with another workman, had been engaged on that work for about three days. On the 14th of' June, 1893, he, together with a fellow workmen, had been nearly all day on the third floor, kalsomining, and a little after four o’clock he was standing, according to plaintiff’s witness, on a board stretched between two ladders, and, according to defendant’s witness, on the slippery and inclined free board of a printing press, when he slipped, and his clothing was caught in a set screw which projected about two inches from one of the collars on the shaft, and he was rapidly whirled about the shafting, in the narrow space between it, the ceiling, and the wall. Before the machinery could be stopped, he was so injured that he died soon thereafter. The plaintiff was duly appointed administrator of the deceased,, and thereafter commenced this action. At the close of the plaintiff’s case the complaint was dismissed as to the defendant Nesbitt, and the trial continued against the defendant company, resulting in a verdict in favor of the plaintiff for the sum of $2,500. The defendant company moved to dismiss the complaint, both at the close of plaintiff’s case and, also, when all the testimony was in, on the grounds that no negligence had been shown on the part of the defendant company, and it liad not been shown that the deceased was not guilty of contributory negligence; also that the -dangers to be apprehended were obvious to the deceased, and. he ■assumed the risk of the work.

First, as to defendant’s negligence : It is conceded that it is the duty of the master to furnish reasonably safe machinery and appliances, and a reasonably safe place in which to work; but the master is not bound to furnish or use the latest and most approved appliances. Burke v. Witherbee, 98 N. Y. 562 ; Carlson v. Bridge Co., 132 id. 273 ; 43 St. Rep. 942; Kern. v. Refining Co., 125 N. Y. 50; 34 St. Rep. 363; Stringham v. Hilton, 111 N. Y.. 188; 19 St. Rep. 621. The plant had been installed by Yan Allen & Boughton, — a firm who had made that kind of work their particular business, and were among the largest and best known firms in the trade. The shafting and appliances were of a kind in common use in such places, and were considered in the trade sufficient for the purposes for which they were constructed. It had been in use for a number of years without accident. No expert was called on behalf of the plaintiff, but Mr. Entwhistle, defendant’s expert, testified that he never knew of any accident 'to happen from the use of a set screw of the kind in use on this shafting, and that he knew of no appliance in general use for obviating the danger from such screws. The shafting was in good repair and perfect order, as constructed. It had been used as it was at the time of the accident, save ordinary repairs, which did not change the structural • shape or condition, for a number of years. Under such circumstances, it was held error to submit the question of negligence to the jury in Riordan v. Steamship Co., 32 St. Rep. 328. No machinery or shafting is constructed in such a way that it cannot be made safer; but it is a well-settled rule of law that, in determining the question whether or not the use of a particular machine was negligence, the question must be viewed from the standpoint of what was known at the time of the occurrence, and not from what was discovered after the accident took place. Dougan v. Transportation Co., 56 N. Y. 1; Loftus v. Ferry Co., 84 id. 455. The accident happened, not in the use of an improper structure, but in the misuse of one that was entirely safe. "The shafting had been in continuous daily use for five years before this accident, without injury or harm to any one. The defendant had no reason to suppose that the shafting was in any way dangerous, defective, or inadequate for the purpose for. which it was intended. The owner of premises occupied for business purposes is only required to use reasonable care and prudence for keeping the property in such condition that those who go there shall not unnecessarily be exposed to danger. Flynn v. Railroad Co., 142 N. Y. 439 ; 59 St. Rep. 814; Hart v. Grennell, 122 N. Y. 374; 33 St. Rep. 553 ; Larkin v. O'Neill, 119 N. Y. 225; 29 St. Rep. 34.

But respondent contends that notwithstanding these facts the defendant was guilty of negligence, in not complying with chap. 373, section 8, Laws 1892, known as the “ Factory Act,” which provides that “all vats, pans, saws, planers, cogs, gearing, belting, shafting, set-screws and machinery of every description therein shall be properly guarded.” The main belt was boxed to a height which prevented anybody from being caught in it, and it was testified that it would be impossible to box or inclose the shafting, or belting, as there was continual need of shifting and changing the belts upon the pulleys; and that this must have been the case needs no argument. IE it had been boxed or guarded so as to have prevented absolutely any accident, it would have been entirely useless for the purpose of communicating power to the machinery. The law never requires an impossibility to be performed. Accordingly, it was said in Cobb v. Welcher, 75 Hun, 288; 58 St. Rep. 200, “ We do not understand the statute the (factory act) to make the factory man the insurer of the safety of his employes, or that it requires him to guard against extraordinary accidents which careful and prudent men could not forsee, or anticipate as liable to occur.” The shafting was suspended from the ceiling at such a height as to render it impossible, under ordinary circumstances, that an accident like this could have occurred. The court will take judicial notice that men are not nine feet high, and therefore, without climbing up to it, there was no possibility of any danger either from the shafting or the set screw. Surely, under the circumstances, with this shafting that height above the floor, the defendant had, as fully as possible, properly guarded this portion of the machinery; or it must be assumed that the act in question was only intended to guard against such accidents as were likely to happen in the ordinary and common use of the place where the machinery was. Besides all this, there had been a visit of the factory inspector to the premises in question the month before the accident, and certain changes had been made, but none touching the machinery or shafting.

Respondent also contends that the defendant was guilty of negligence in not providing a clutch, which is a device to throw the machinery out of gear. The main purpose of this device is to throw off the power when different parties are users of it upon different floors of the same building, so that none of it may be wasted; but as the defendant occupied the entire building, and" controlled its own power, there was no reason for such a clutch. But, even if there had been one, it could not possibly have prevented the accident, as the Shaft was making from 125 to 150 revolutions per minute, and it would have taken several seconds before it could have been stopped, and would therefore have made many revolutions in that time; so that the deceased would have been as certainly mortally injured, had there been a clutch, as he was without one. ,

The respondent also contends that it was negligence on the part of the defendant to have used the collar with a set screw projecting above it, and in the position in which it was found after the accident; but in regard to this the learned judge who tried the case very properly charged the jury:

I do not find in the case any evidence that prior to the time of this accident anybody that had seen it (that is, the set screw) in .any place away from the pulley to which the machinist said it was certainly inténded to be attached. That being the case it seems to me that we should dismiss from our consideration any question of negligence growing out of the position of the collar; for, so far as we know now, it may have been displaced by the accident itself., which must have been of an exceedingly violent character.”

Besides all this, the defendant’s foreman had asked the deceased if he desired the belts thrown off, and the machinery stopped, the day of the accident; and he said he only wanted the cross belts thrown off, and the main belt left running, as it gave him more room to do the whitewashing. Even had the defendant company been negligent in some respects, yet, had this offer of its foreman been accepted, it needs no argument to show that the accident could not have happened. We therefore think the appellant was guilty of no negligence causing the accident. On the other hand, we think it clearly appears that the deceased himself was guilty of negligence. The shaft was revolving at a rapid rate. The deceased had been working around it nearly three days, and must have known it was negligent and careless for him to work around it while in motion. He should have accepted the offer of the defendant’s foreman to-stop the machinery, but he refused to have it stopped, preferring to-have it kept running, as that gave him more room to do his whitewashing. This only rendered his work easier, and was for his own convenience, and he alone should suffer .the consequences. He was-warned by his employer not to work around the machinery, and not to go where it was dangerous. He could have used a brush with a long handle, and stood on the floor, and so avoid coming anywhere near the shafting; but he chose, instead, to use a short brush, thus being obliged to stand close to his' work. This, again, was for his own convenience, and was manifest negligence on his part. There is some contradiction in the evidence as to where the deceased stood at the time of the accident, and, if he stood where the witness. Ulmer swears he did, — upon the feed board of one of the printing presses, which was of smooth, highly-polished wood, inclined at an angle, — that was manifestly a dangerous position. This particular matter, however, will be farther considered upon another branch of the case. We therefore think that the plaintiff not only failed to show the absence of negligence on the part of the deceased, which must be affirmatively shown, Bond v. Smith, 113 N. Y. 378; 22 St. Rep. 666; Weston v. City of Troy, 139 N. Y. 281; 54 St. Rep. 493., but the case also clearly establishes the negligence of the deceased, directly causing the accident. Having arrived at this conclusion, it is only necessary to suggest, and not to argue, that if there was any danger it was obvious to the deceased as to the defendant, and that he assumed the risk of his danger. Williams v. Railroad Co., 116 N. Y. 628; 27 St. Rep. 760; Wise v. Ackerman, (Md.) 25 Atl. 424.

But, even if we are mistaken as to the law in regard to defendant’s negligence and the deceased’s contributory negligence, there should still be a new trial! in this case, as the verdict was clearly against the weight of evidence, and should have been set aside. After the verdict, a motion was made to set it aside on this ground. We have repeatedly held that it is not only our duty to review the evidence on such a question, but also to set aside the verdict, if, in our opinion, justice requires it. The case of the plaintiff rests almost- wholly upon the testimony of Max Lang, and his evidence seems to us to be of such a character as to require the closest scrutiny. He is a self-confessed spy upon the superintendent. His testimony is contradictory, and is flatly controverted by two or three other witnesses on the several different points, — witnesses who were men of long-continued service in their positions, and good character; notably, the witness Ulman, who was his fellow workman, not in the employ of the defendants, and apparently entirely trustworthy, who swears the deceased was standing upon the feed board of the press, right alongside of him, while Lang testifies that he was standing upon boards placed between ladders.

For these reasons, we think the judgment should be reversed, •and a new trial ordered, with costs to the appellant, to be paid before such trial.

All concur.


source: Caselaw Access Project

author: Bookstaver, J.

license: Public Domain

text:
    Sheffield Farms Company, Resp’t, v. William H. Burr, Deft; Euphemia C. Burr, App’lt.

      (New York Common Pleas, General Term,

      Filed June 3, 1895.

    Appeal — Who mat.
    A person, not a party to the action in which the order is made, nor entitled by law to be substituted in the place of a party, cannot appeal from such order.
    Appeal from an order of the city court, affirming an order in supplementary proceedings.

      H. Joseph, for app’lt; William T. Carlisle, for resp’t.
   Bookstaver, J.

— The respondent obtained a judgment against the defendant in the city court of Hew York July 10,1894. Execution was issued thereon, and returned wholly unsatisfied. Thereafter, and on December 8, 1894, the respondent obtained an order for the examination of the judgment debtor in that action. Under that order his examination was proceeded with on the 15th of that month, when, at his request, it was adjourned until the 15th of January, 1895, and thereafter to the 21st, when his examination was concluded and filed. On the day last named the defendant testified that no receiver had been appointed of his property, and the respondent thereupon moved for the appointment of a receiver. The appellant herein, who is the mother of the defendant, obtained a judgment by confession in the city court on the 9th January, 1895, and such proceedings were thereafter taken by her attorney that on the 14th January, 1895, a receiver was appointed of the defendant’s property, with the consent of defendant. Although proceedings supplemental to execution in this action were then pending, no'notice of motion for the appointment oí a receiver was given to the respondent, as required by section 2465, Code Civ. Proc. Afterwards, and on the 28th January, 1895, an order to show cause why the order appointing such receiver should not be vacated and set aside was issued out of the city court, directed to the receiver and to the defendant in that action, but not to Euphemia Burr, the plaintiff therein. Such proceedings were had on such order to show cause that on the 5th Febuary, 1895, an order was made vacating and setting aside the order of January 14, 1895, made in the Euphemia Burr action. The order to snow cause, as before stated, was not directed to her, nor was it served upon her, nor did she appear in answer thereto. It is true that the attorney who obtained the judgment for her did appear upon the motion, but, as we understand from the printed, papers, on behalf of the defendant William H. Burr. It therefore follows that the order appealed from was null and void as to her, but as she is not a party to the action in which the order was made, she cannot appeal therefrom to this court, for section 1294 of the Code only provides for an appeal by a party aggrieved. It is true that section 1296 of the Code provides for an appeal by a person aggrieved who is not a party to the action, but. only in case such a person is entitled by law to be substituted in the place of a party, and there is not pretense that the appellant can. be substituted in the place of her son, William H. Burr. Nor can it be contended that, since the making of the order appealed from, she has acquired an interest which would entitle her to be substituted in William H. Burr’s place. But, even if she fell under either of these provisions, she coutd not even then be;heard upon this appeal, for she has not in fact been substituted in the place of the party, as required by the section last cited. The appeal must, therefore, be dismissed, with costs.

< All concur.


author: Daly, C. J.

text:
    James Kettle, App’lt, v. John Turl et al., Resp’ts.

      (New York Common Pleas, General Term,

      Filed June 3, 1895.)

    HeGLIGE-NCE — CONTRIBUTORY.
    In an action for personal injuries, the plaintiff is bound to give some evidence showing the exercise of ordinary care, if the danger is obvious to ordinary inspection.
    Motiom for a new trial on exceptions, ordered to be heard at general term in the first instance.

      George H. Hart (John H. Whiting, of counsel), for pl’ff; Niles & Johnson (William W. Niles, of counsel), for def’ts.
   Daly, C. J.

— The complaint was dismissed by the trial judge because the plaintiff had failed to show absence of contributory negligence. He was driving a truck down Tenth avenue, on the right side or the avenue, and stopped close to the sidewalk below Twenty-fourth street, in order to dismount and pick up a knife which he saw lying near the railroad tracks, which were in the middle of the avenue. After he picked up the knife, he went back to his truck, and stood on the side of it next to the middle of the street, to put the knife into his feed bag. Then he attempted to mount his truck from the same side, by placing his-right foot on the hub of his wheel, and holding on by his hand to the seat of the truck. While standing on the hub of his wheel, and about to mount higher, his legs were struck by the whiffletree of defendants’ truck, which was heavily loaded with car wheels, and was coming down the avenue. Plaintiff was swept off to the ground, receiving injuries to his ankle for which he sued. He had seen this truck coming when he went back topi ck up the knife. It was then on the other side of the crossing of Twenty-fourth street, and it was coming right down to him, and when he stood to put the knife in his feed bag, it was coming right down behind him; but he did not look to see where it. was when he attempted to mount his truck and got on the-wheel.

If it be assumed that defendants’ driver was negligent in driving so close to the plaintiff’s truck that his whiffletree would be likely to strike a man who attempted to climb, as plaintiff' did, on the wheel, what evidence is there that he had cause to apprehend that plaintiff would get on his wheel, or that there was time to stop the heavily loaded wagon after he perceived the plaintiff in that position ? It was not negligence in the driver to approach so close unless there was reason to apprehend injury from that cause, and I do not find, in the facts detailed, evidence to justify any such expectation on the part of an ordinarily prudent person. But, if there be a question on the evidence as to defendants’ negligence, the case is barren of evidence upon which to base a finding that plaintiff exercised due care. He knew that the truck was coming right down to him, and he-never looked to see whether it was safe for him to mount on the side on which it was approaching. Want of negligence may be established from inferences, which may be properly drawn from the surrounding facts and circumstances; but in this case the undisputed facts leave no room for inferences. The plaintiff, without taking any precautions for his own safety, seeks to hold defendants liable for not being vigilant to avoid injuring him, although defendants’ driver could not know the danger in which plaintiff was about to place himself, and plaintiff, by the exercise of very slight care, could have perceived it. Plaintiff is bound to give some evidence showing the exercise of ordinary care if the danger is obvious to ordinary inspection. Weston v. City of Troy, 139 N. Y. 282; 54 St. Rep. 493. Were there no evidence to-show that he gave attention to the position which the coming truck would be certain to occupy when he attempted to motint his own, .his case would be barren of the proof necessary to sustain the action for negligence ; and, where he expressly admits that he gave no heed and paid no attention, failure of his case in an essential particular is unquestionable.

Motion for a new trial denied, exceptions' overruled, and judgment ordered for defendants.

All concur.


author: Bischoff, J.

text:
    Maria Isola et al., App’lts, v. John Webber et al., Resp’ts.

      (New York Common Pleas, General Term,

      Filed June 5, 1895.)

    Constitutional law — Retrospective force.
    The constitutional inhibition of any limit of recovery, in actions for death by wrongful act, does not apply to rights of action which had become vested prior to the day upon which such prohibition became a part of the organic law of the state..
    Appeal from an order, denying plaintiff’s motion for leave to amend the complaint by increasing the claim for damage to an amount in excess of $5,000.

      George H. Hart, for app’lts; George K Mott, for resp’ts Webber; Thomas F. Grady, for resp’t Powers.
   Bischoff, J.

— The action is by the personal representatives of a deceased person, in behalf of his widow and next of kin, to recover damages resulting from his death in May, 1892, through the alleged wrongful act, neglect, er default of the defendants. It was commenced in May, 1892; service of the summons upon all the defendants being complete in September of the same year. The complaint alleged and demanded damages in the sum of $5,000. In January, 1895, the action having been in abeyance meanwhile, the plaintiff applied for leave to amend the complaint by increasing the allegation and demand of damages to $25,000. Such application was denied, upon the sole ground that the court had not jurisdiction to allow a recovery in excess of the sum already demanded.

No right of action for damages existed at common law against a person who by his wrongful act, neglect, or default had caused the death of another, 5 Am. & Eng. Enc. Law, p. 125 ; Whitford v. Railroad Co., 23 N. Y. 468; such right being purely of statutory creation, 3 Suth Dam. (2d ed.) § 1259. In this state it was conferred by Laws 1847, chap. 450, upon the representatives of the decedent, for the benefit of his widow and next of kin, in every case where the decedent himself could have recovered for the injuries sustained had he survived. No limit of recovery, however, was prescribed by that act. By Laws 1849, chap. 256, the limit was fixed at $5,000; and by Laws 1870, chap. 78, the benefit of the recovery was extended to the husband of the decedent. In 1880, by Laws 1880, chap. 178, the provisions of the several statutes above alluded to were incorporated as a part of the Code of Civil Procedure (sections 1902, 1904); and thus the law remained at the time of the death of plaintiffs’ intestate, and the commencement of this action,' and until it was affected by the constitutional provision next to be alluded to. By the constitution of the state of New York, adopted November 6, 1894,• and directed to take effect as of January 1, 1895 (article 15), it is provided (article 1, § 18) as follows: “ The right of action now existing to recover damages for injuries resulting in death shall never be abrogated ; and the amount recoverable shall not be subject to any statutory limitation.”

The precise question, therefore, which we are asked to decide upon this appeal from the order denying the plaintiffs’application for leave to amend, is whether or not the constitutional inhibition of any limit of recovery applies to rights of action which had become vested prior to the day upon which such prohibition became a part of the organic law of the state. It is conceded that there can be no vested right to a mere remedy, and that the state may therefore, at will, abolish existing remedies. But it is urged that here the remedy is “ of the essence of the right,” Lowry v. Inman, 46 N. Y. 119, and therefore the abolition of the remedy necessarily involves the annihilation of the right. It would be futile, however, by consideration of the effect upon the plaintiffs and their beneficiaries had the constitution undertaken to abolish vested rights of action of the kind here involved, or to diminish the liability herein, to discuss correlatively the rights of the defendants which are affected by an increase of the liability, since it is clear that if such rights of action had been taken away, or the liability had been diminished, the constitution of the United States would not have been impinged. Article 5 of the amendments to the constitution of the United States, which inhibits the taking of property “without due process of law,” is restrictive of the powers -of the federal government only. Spies v. Illinois, 123 U. S. 131; In re Sawyer, 124 U. S. 202, 208. The plaintiffs’ property and that of their beneficiaries (Quin v. Moore, 15 N. Y. 432) could have been taken, and why may not the defendants’ ? Unless, therefore, restraint is to be found in the constitution of the United States, the sovereign power of the people of the several states extends to the adoption of retrospective laws, whatever their effect may be. Burch v. Newbury, 10 N. Y. 374, 392; Charles River Bridge Co. v. Warren Bridge Co., 11 Pet. 420; Watson v. Mercer, 8 Pet. 88; Satterlee v. Matthewson, 2 id. 380; Railroad Co. v. Nesbitt, 10 How, 395; Drehman v. Stifle, 8 Wall. 595; Randall v. Krieger, 23 id. 137. Such restraint is imposed (Canst U. S. art. 1, § 10) only with regard to ex post facto laws and laws impairing the obligation of contracts. The first refer exclusively to crimes, forfeitures, and penalties, 7 Am. & Eng. Enc. Law, p. 529, .and cases collated in note 1; Calder v. Bull, 3 Dall. 386 ; and, obviously, a consideration of the provision of the state constitution under review raises no question with reference to the last. In French v. Deane (Colo. Sup.) 36 Pac. 609, the Colorado supreme court held that a statute which allowed punitive or exemplary damages in actions brought to enforce rights of action which had accrued before the enactment of the statute to be ex post facto ; but this upon invocation of the doctrine prevailing in that state, Murphy v. Hobbs, 7 Colo. 541, and here rejected, that such damages are not, in the absence of statute authority, a part of the redress to be secured in civil actions; and hence that the statute allowing such damages is of a penal character. Whether or not, therefore, the constitutional provision in controversy applies to rights of action which had become vested at the time of its adoption, presents a question purely of intention and interpretation. In this connection it may be noted that it seems of doubtful propriety to consult the contemporaneous debates and proceedings of the convention from which the proposed constitution issued, since the inquiry is not with regard to the intention of its framers, but with the people who adopt it. The contemporaneous debates and proceedings of legislatures have frequently been resorted to as an aid in determining, in cases of uncertainty, what the law enacted was intended to effect, but in such cases the inquiry has: been with regard to the intention of the body which framed and enacted the law. In considering a constitutional provision, the relevancy of the debates and proceeding of those who framed it to the intention of those who adopted it is certainly not apparent. However, in consulting the debates and proceedings we must follow precedent. In re Oliver Lee & Co's Bank, 21 N. Y. 9, 13.

Every change in the law, however desirable the change may appear, if it is permitted to disturb conditions which were created by or with reference to the existing law, is fraught with serious mischief and resultant confusion. While, therefore, the right of civil liberty and self-government implies the power of a people to alter its laws at will, the endurance of social order and the political prosperity of the state require that the mischief and confusion resulting from a change of the law should always be minimized; hence the principle, which governs alike the interpretation of constitutions and legislative enactments, that, unless an intention to lend them a retrospective effect is apparent, all laws must be presumed to have been intended to operate prospectively only. “ Nova constitutio futuris formam imponere delet, non pretoritis.” Bract. lib. 4, fol. 288; 2 Inst. 292 ; Broom. Leg. Max. (8th Am. ed.) 34; Dash v. Van Kleeck, 7 Johns. 477; Butler v. Palmer, 1 Hill, 324; In re Oliver Lee & Co.'s Bank 21 N. Y. 9; Suth. St. Const. § 463, etc. “ Constitutions operate prospectively only, unless on their face the contrary intention is manifest beyond reasonable question.” Shreveport v. Cole, 129 U. S. 36. Thus, we are brought to a scrutiny of the language of the constitutional provision under review : “ The right of action * * * shall never be abrogated ; and the amount recoverable shall not be subject to any statutory limitation.” The clear import of this is to attach the inhibition of any limit to all future recoveries, and so comprehends recoveries under rights of action which had accrued at the time when the constitution went into effect; as well as recoveries under rights of action which might thereafter accrue. That the language is sufficiently comprehensive to include a retrospective as well as a prospective effect affords no plausible ground for holding that the latter effect was intended to be exclusive of the former. To restrict, therefore, the operation of the provision under review to recoveries under future rights of action, requires distortion of the apparent and unambiguous sense of the language used, — that sense in which the people must be presumed to have understood, the provision when it was adopted by popular vote. We are not permitted to consider any alleged and resultant hardship from such a provision, or to question the wisdom of its adoption, our office being at all times to give effect to the supreme will of the people. . If reference is had to the contemporaneous debates and proceedings, of the constitutional convention when the proposed provision was the subject of consideration, we are met by the rejection of propositions the import of which was to inhibit the limit of recovery with regard to future rights of action only. From such rejection the inference plainly manifest is that the provision as finally evolved and issued from the convention was intended to be retrospective as well as prospective in its operation. “ The right of action is hereby given, * * * and no statutory limitation shall be placed upon the amount of damages recoverable,” etc. Record of Debates & Proceedings, p. 595. “ Whenever the death of a person shall be caused by wrongful act, etc., the person who or the corporation which would have been liable if death had not ensued shall be liable to an action for damages. * * * No law shall be passed limiting the amount to be recovered for damages,” etc. Id. p. 651. “ The right of action is hereby given for loss of life, etc., and whatever statutory limitation may be placed upon the amount of damages recoverable shall be the minimum as well as the maximum amount,” etc. Id. p. 947.

Our conclusion is that it was error to deny the plaintiff’s motion for leave to amend the complaint upon the ground stated. The order appealed from should be reversed, with costs of this appeal, and the plaintiff’s motion for leave to amend should be granted, with costs.

All concur.


author: Bradley, J.

text:
    William H. Clapp, Resp’t, v. Town of Ellington, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 21, 1895.)

    1. Bridges — Towns—Liability.
    A bridge, which is partly in one and partly in another town, is in each town within chapter 700 of 1881.
    2. Same — Severable action.
    In such case, either town may be sued separately for damages caused by a defect in such bridge.
    3. Same — Notice of defects.
    Section 3, chap. 383 of 1857, does not relieve a commissioner, so jointly liable with another for the repair of a bridge, from the duty of warning the public at once against the danger.
    4. Same — Question for jury.
    When the negligence of the commissioner in failing to discover and remedy the defect in the bridge is a question for the jury.
    Appeal from a judgment for plaintiff, and an order denying a motion, on case and exceptions, for a new trial.

      William H. Henderson and Frank W. Stephens, for app’lt; A. C. Wade, for resp’t.
   Bradley, J.

— The purpose of the action was to recover damages for personal injuries suffered by the plaintiff and alleged to have been occasioned by the negligence of the commissioner of highways of the defendant. They resulted from the breaking of the middle beam of a bridge over which the plaintiff was passing with a steam traction engine on the 1st day of September, 1885. The bridge constituted part of the highway on the line between the defendant, in the county of Chautauqua, and the town of Conewango, in Cattaraugus county, and the center of the bridge was such line. Upon that fact it is contended that this action is not maintainable against the defendant, because (1) it does not come within the statute which permits an action against a town, and (2) that the liability of the defendant is joint, only, with that of the town of Conewango.

The right of action against a town for the negligence of its commissioner of highways is dependent upon the statute which provides that, “The several towns in this state shall be liable to any person suffering the same, for all damages to person or property by reason of defective highways or bridges in such town, in cases in which the commissioner or commissioners of hiShways of said .towns are now by law liable therefor, instead of such commissioner or commissioners of highways.” Laws 1881, chap. 700. The view urged is that this was not a bridge in the town, but is only partly in it. It is true that the bridge was not entirely in the town of Ellington, and the liability of the two towns to maintain it was-joint and each of them was chargeable with one-half of the expense of its maintenance. Laws 1857, chap. 383, § 1. We think the bridge was in each town in the sense requisite to bring it within the operation of the act of 1881. And although the duty of taking care of the bridge rested upon the commissioners of both towns, and the towns were jointly liable for the consequences of the negligent default of their commissioners, the remedy by action was not necessarily against both towns jointly. The action is in its nature for tort. In such case, parties chargeable may be sued severally as well as jointly by the person aggrieved. No reason appears why that rule is not applicable to actions against towns situated as these were in relation to the bridge. In Theall v. City of Yonkers, 21 Hun, 265, there was an expression, not necessary to the result, that the defendant was not liable, because the accident occurred on the portion of the bridge outside the city of Yonkers and within the limits of East Chester. That view was not adopted by the court in Hawxhurst v. Mayor, etc., 43 Hun, 589 ; 6 St. Rep. 637. And by the court in the department where the Theall Case was decided it was said obiter by Mr. Justice Barnard, in Oakley v. Town of Mamaroneck, 39 Hun, 448, that, “When an accident results from joint negligence, all or either of the towns may be sued.” This is in accord with the general rule relating to actions at law not on contract. There is also a further answer to the objection in the fact that the nonjoinder of the other town is not pleaded as a defense. Lyman v. Hampshire, 140 Mass. 311; Sweet v. Tuttle, 14 N. Y. 465.

Upon the subject of the maintenance of a bridge at the joint-expense of two towns, the statute provides that it shall be lawful for the commissioners of either of them, the other refusing to act, to enter into joint contract, which may be enforced against them jointly or severally (Laws 1857, chap. 383, § 2), and "that if the commissioners of either town shall not within twenty days after written notice from the commissioned' of the other, or within a reasonable time thereafter, consent in writing to repair the bridge, the commissioner giving the notice may proceed to make the repair and maintain an action to recover the share of the expenses chargeable to the' town represented by the commissioner so served with notice. Id. § 3.

It may be assumed that the commissioner of highways of the defendant was not required alone to expend money to repair the bridge, until he had taken some steps to have the commissioner of the town of Oonewango join with him in doing it, or to charge the latter town with liability to contribute to the expense of the reparation. In view of such provisions of the statute, it is urged that no negligence is imputable to the defendant’s commissioner of highways founded upon any notice of the defective condition of the bridge with which he may have become chargeable within the time preceding the accident, requisite for him to charge the other town with liability as prescribed by the provisions of section 3 before mentioned of the act of 1857, because it does not appear that he had not duly taken the steps to create such liability of the town of Oonewango. The asserted reason for this contention is that the burden is upon the plaintiff to prove that he had not done so. While the onus was with the plaintiff to prove negligence of the defendant’s commissioner, and so continued throughout the trial, the fact whether or not he had done anything under the statute to charge the other town with liability was peculiarly within his knowledge, and if it would tend to relieve him from the imputation furnished by evidence it was for the defendant to prove it, and not for the plaintiff to prove the negative of the fact. 1 Greenl. Ev. § 79; Smith v. Railroad Co., 43 Barb. 229. The proceeding under the statute to charge liability of one town by the commissioner of highways of the other, in the case provided for, is not necessary unless the commissioner of such other town in the outset declines then to consent to incur its share of the expense, and if he then absolutely refuses to help do it, he may be treated as having waived'the statutory notice. Day v. Day, 94 N. Y. 153. Heither of them can justify his omission at once in some manner to warn the public against the danger, if the bridge be so defective as to necessarily require it, provided he has or is chargeable with knowledge or notice that such is its condition.

The evidence tends to prove that the needle beam which gave way was then so decayed as to render the bridge dangerous for ordinary travel upon it. The main question of fact litigated upon the trial was whether the defendant’s highway commissioner then in office was chargeable with negligence in the matter. He was elected in February before, and had been such commissioner nearly seven months. The highways in the town aggregate about one hundred miles in length, and the bridges about forty in number, of which that in question is probably the longest. Its length was fifty-two feet. The floor of the bridge was laid on joists, resting on needle beams, of which there were three, and the abutments at either end of the bridge. The needle beams were sustained by means of iron rods supported by trustees at the sides of the structure. By the breaking oi the middle needle beam the ends of the joists resting upon it and the plank necessarily went down, and with them the engine, with the plaintiff upon it. The evidence on the part of the plaintiff tended to prove that the needle beam, by the process of decay, had become somewhat rotten as early as 1883, which was observable by inspection from beneath the bridge, and at the time of the accident there remained only about an inch and a half of the diameter of the needle beam sound, and that was in the center of it. This was a beech stick eight inches square. The bridge was built in July, 1879, and it was the judgment of some of the witnesses that beech timber might be expected to continue sound for from eight to ten years. The practical test, as shown in the present case, was that the soundness of this timber, cut and when applied to the use which it was, did not survive five years. It does not appear that the cpmmissioner had actual notice of the condition of the bridge, nor does it appear that he had given it any attention other than to authorize, on request of his overseer in that road district, to cause new plank to be put upon it. He was required to use ordinary care to see that the bridges^in his town were reasonably safe for public use. This duty fairly implies that some attention should within due time be given to each bridge of sufficient size to be dangerous to travel if in defective condition. The evidence tends to prove that the process of decay of this beam, which had been going on for about two years, and which rendered it unfit to serve its purpose, was apparent to the observation of any person who was disposed to examine it. Notwithstanding the very able argument of the defendant’s counsel in support of the proposition that the charge of negligence of the commissioner is not supported by the evidence, we think, after a careful examination of the evidence, that the question whether or not the accident may be attributable to the want of reasonable care on the part of the highway commissioner of the defendant was one of fact for the jury, who, it may be assumed, took into consideration all circumstances appearing by the evidence in reaching the result represented by the verdict. And as such conclusion was permitted by the evidence, the motion for nonsuit was properly denied. It is not seen that the verdict was so against the preponderance of evidence as fairly to require the direction of a new trial. The question of contributory negligence of the plaintiff was properly and fairly submitted to the jury, and there was no error in the rulings at the trial. The judgment and order should be affirmed.

All concur.


author: Per Curiam.

text:
    John Eastwood, Administrator, etc., Resp’t, v. Retsof Mining Company, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 12, 1895.)

    1. Appeal — First instance.
    When one seeks to enforce the rule that facts proven in the case are not available unless they are pleaded, he must take this position at the trial, and, if the objection to the proof of the facts is not put upon this precise ground at the trial, it cannot be taken advantage of at any later time.

      A Negligence — Question oe fact.
    The question of negligence is to be submitted to the jury, not only when the facts are disputed, but when the disputed facts are such that reasonable men may draw different inferences from them upon the question involved.
    3. Master and servant — Rules.
    Where the action of one employe makes that dangerous which, if he took no action, would be safe, it is undoubtedly the duty of the common employer to make such rules as will enable the person whose safety is put at risk to be advised of the danger and to avoid it.

      4. Same — Question of fact.
    The question for the jury is whether, in the first place, the employer took reasonable care to conclude whether rules were necessary, or, in the second place, if they were, whether the rules made were proper for the purpose for which they were intended.
    Appeal from a judgment, entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes.

      Satterlee & Taylor and Strang & Doty, for app’lt; F. A. Mann, for resp’t.
   Per Curiam.

— Judgment and order affirmed on opinion of Bumsey, J., at circuit.

The opinion oE Rumsey, J., at circuit, is as follows :

The plaintiff’s intestate was a boy fifteen years old, and at the time of his death was in the employ of the defendant, in a room known as the screening room.” The business of the defendant was mining salt and preparing it for market. Just off the room in which the plaintiff’s intestate was at work was a large bin, holding many tons of salt, into which the salt of a certain grade was delivered from the machinery of the works. At certain times when the bin became nearly full, it was necessary that some one should go into it for the purpose of freeing the mouth of the -chute, through which the salt was delivered into the bin. To do this it was necessary to shovel away the salt which was accumulated at the mouth of the chute leading into the bin. When the bin became full, the salt was drawn off by three chutes in the bottom of it. The drawing off of the salt through these chutes ■caused the salt on the top to settle with more or less rapidity, depending entirely upon the manner in which it was drawn off. It ^appeared from the testimony, and was not disputed, that if one was in the bin at the time the salt was drawn off, and his feet became entangled in the salt which was running down to the lower chutes, it was very difficult for him to free himself; and if he got into the salt above his knees it was almost impossible for him to get out unassisted. The chutes through which the salt was delivered out of the bin were situated in a row along one side of it at the bottom. Hanging from the top of the bin were ropes, which •one standing in the bin might seize if he was in danger of being -engulfed in the salt, and thereby drag himself out. On two or -three sides of the bin, and at a height at which it would be necessary for a man to stand in shoveling the salt, was a narrow platform of one plank, a foot or so wide, upon which a man might stand when he shoveled the salt away from the mouth of the chute. It appeared in the evidence, however, that the men who were engaged in shoveling in the bin were not accustomed to-stand upon this plank, which was not in every respect, convenient for that purpose, but stood upon the salt, and that there was no rule of the corporation forbidding them so do so if they saw fit. On the day on which the plaintiff’s intestate met his death, so much sail was in the bin that the delivery from the chute into the bin was impeded by the accumulation of salt at its mouth; and the plaintiff’s intestate, at his own request, was sent into the bin for the purpose of shoveling it away. It appears that he had never been there before for that purpose. He went into the bin, remaining there for a few minutes, came out for some purpose, went back, and went to work. Shortly after he went back the-second time, directions were given by the proper person that the salt should be drawn off from ihe bin, and one or more chutes at the bottom of the bin were opened for that purpose. After this had been going on for a few moments, the plaintiff’s intestate was. missed. Search was made for him, but he was nowhere to be-found in the building. It was then surmissed that perhaps he might have been engulfed in the salt, which was rapidly drawn off, and, after a large portion of the salt in the bin had been drawn off, the plaintiff’s body made its appearance at one of the chutes, and he was taken out dead. The position in which the body appeared will be considered later. There was some dispute upon the evidence whether the bin was sufficiently light for a person inside to see conveniently about it. It appears upon the testimony offered by the plaintiff that the bin was quite dark, while the testimony of the' defendant tended to show that one standing in the bottom of the bin, on an ordinarily clear day, could read ordinary handwriting without difficulty. In discussing the case, however, it must be assumed that the jury might have found the fact in this regard to be as claimed by the plaintiff. It is thought, however, that the fact itself is not of much importance. The foregoing are all the facts which it is thought necessary to advert to, or which were material upon the claim of negligence of the defendant.

It is claimed by the plaintiff that this negligence consisted in the failure to make rules on the part of the corporation which would regulate the drawing off of the salt when the men were in the bin, or which would provide for the safety of men who had occasion to be there when that process took place. The question was submitted to the jury whether the defendant was negligent in failing to provide rules upon that subject, which should protect, the men who were in its employ. The defendant excepted to the submission of that question to the jury, but took no exception to the manner in which the submission was made. It is objected upon this motion that no such ground of negligence was stated in the pleadings, and for that reason it was improper to submit it to the jury. But no such position was taken on the trial. The evidence upon that subject was admitted without objection, and it was not claimed at all during the trial that such evidence was-not within the pleadings, or that the claim submitted was not properly presented by the complaint. It is settled that, when one seeks to enforce the rule that facts proven in the case are not available unless they are pleaded, he must take this position at the trial, and, if the objection to the proof of the facts is not put upon that precise ground at the trial, it cannot be taken advantage of at any later time. Voorhees v. Burchard, 55 N. Y. 98. In that case the facts which it was claimed were not pleaded were offered in evidence, but were objected to as immaterial. The referee overruled the objection, and received the facts, and the case was decided upon these facts. The defense proved by them was not pleaded in the answer. But nevertheless, upon an appeal, both the general term and the court of appeals held that the plaintiff could not avail himself of the point that the facts were not pleaded unless he could put his objection to their admission upon the precise ground. In this case there was no objection to the proof of' the facts which are now claimed as constituting negligence, and the defendant, having allowed them to be proved without objection, cannot now insist that they shall be discarded from the case. There is no doubt of the rule that in an action for damages on account of negligence the negligence of the defendant must be-proved, and that the jury, in the absence of proof, cannot be allowed to base its verdict upon any guess or inference that there was negligence on the part of the defendant which might have tended to do the mischief. Pauley v. Steam G. & Lantern Co., 131 N. Y. 90, 98 ; 42 St. Rep. 636. It is also the fact that ordinarily no presumption of negligence arises from the mere fact that-an accident occurred. Weston v. City of Troy, 139 N. Y. 281, 282; 54 St. Rep. 493. There is a class of cases, to be sure, in which the fact of negligence may be inferred from the mere happening of the accident, but the case at bar is not one of those. It cannot be said that the claim of negligence is to be decided in this case as a question of law simply because the material facts of the case are not disputed. The question of negligence is to be submitted to the jury, not only when the facts are disputed, but when the undisputed facts are such that reasonable men may draw different inferences from them upon the question involved The court can only take the case from the jury where not only the facts-are undisputed, but where only one set of inferences can be drawn from those facts, and those inferences lead to only one conclusion. Gardner v. Railroad Co.. 150 U. S. 349, 361. It is quite clear in this case that the question whether or not the case was a proper one for requiring the defendant to establish rules for the government of its employes in drawing salt from this bin when men we reengaged inside of it, was one as to which reasonable men might differ. The rule is well settled that it is the duty of all persons and corporations having many men in their employ in the same business to make and promulgate rules which, if observed, will afford protection to the employes. This is the more necessary where the manner of doing business is such that the danger or safety of an employe at any given time depends upon the way in which some other employe is engaged at the same time. In such a. case, where the action of one employe may make that dangerous which, if he took no action, would be safe, it is undoubtedly the duty of the common employer to make such rules as will enable the person whose safety is put at risk to be advised of the danger, .and to avoid it. Abel v. D. & H. C. Co., 103 N. Y. 581; 4 St. Rep. 269; Slater v. Jewett, 85 N. Y. 61; McGovern v. Central Vt. Railroad Co., 123 N. Y. 281, 289; 33 St Rep. 416. To be sure, the company is not only required to make rules to guard against such accidents and casualties as may reasonably be foreseen, and it is not bound to use more than reasonable care in deciding whether rules are necessary. Berrigan v. Railroad Co., 131 N. Y. 582; 42 St. Rep. 858. In every case its duty is performed by the exercise of reasonable care in deciding, in the first place, whether rules are necessary, and, in the second place in making such rules as appear to be sufficient. But the question in either case may be for the jury whether, in the first place, the company took reasonable care to conclude whether rules were necessary, or, in the second place, if they were, whether the rules thus made were proper for the purpose for which they were intended. When the question is whether the case was one in which rules ought to have been made, the fact that other people or corporations engaged in the same business had or had not found it necessary to make rules upon that subject, is one which might well be considered. But the fact that no such rules had been made is not conclusive against the necessity of making them. It is simply a fact to be considered. Where the business is complicated, the circumstances are those which do not occur often, and the danger is not serious, it may well be that the fact that other people engaged'in the same business have found no necessity for making rules for the particular case may be almost conclusive that such rules are not necessary. But where the circumstances are such that any person can see what .might happen in a given case, and the danger is plain and obvious, the jurors might be at liberty to infer that rules to protect the employe were necessary, although they had no experience in the particular business, and although there was no evidence that other corporations in the same business had made rules for such cases. Morgan v. Hudson River Ore & Iron Co., 133 N. Y. 666; 45 St. Rep. 112. In the case at bar, it is evident that if a man were in the bin at work, standing upon the salt, he might very easily be engulfed so as to be unable to extricate himself, if the chutes below were suddenly ■opened. Starting from that fact which is undisputed, the infer■ence might very well be drawn that a well-devised set of rules, giving warning to the men who were in the bin, or forbidding the ■drawing off of salt when any one was in the bin, would conduce .greatly to the safety of the men who had occasion to be there. 'There is nothing in the evidence which would lead the jury to believe that such a rule was impossible, or even difficult, to enforce ; and it is quite clear that such a rule might be of great use "in insuring the safety of the men who had occasion to be in the ¡bin. For these reasons I think that it was proper for the jury to consider, upon the question of the defendant’s negligence, the failure to make rules for the government of its employes in this regard.

The question of the contributory negligence of the plaintiff's intestate is a very serious one. There was absolutely no evidence as to what occurred after the boy went into the bin the second time. All that is possibly known is that the salt was set in motion after that time by drawing it off from the bottom, and that, in process of time, his dead body made its appearance at one of the lower chutes. It was presented head first. The arms were crossed under the forehead, and the eyes were closed. There were upon the body a few abrasions, but nothing very serious. It appeared from the testimony of certain witnesses that the salt was so heavy that a body going into the salt in a certain position could not be turned, but must come out of the bin in the same position. That is, if a man went into the salt with his feet down, he necessarily would come to the bottom chute in the same position, and so, if he went into salt with head downwards, his head would first make its appearance at the lower chute. The defendant argues from this that it must necessarily have been the case that the plaintiff’s intestate lay down upon the salt, and went to sleep, with his head towards the place from which the salt discharged, and so was drawn down head first into the chute. If that fact appeared, it would be necessarily established that he was guilty of contributory, negligence, but I cannot see that any such fact can fairly be inferred from the testimony. It appeared in the evidence that across the bin, at some distance below the top of the salt, were heavy timbers, extending from one side to the other, with narrow spaces between then. It might very well be that the body of the boy, caught upon one of these timbers, was turned so as to come head first to the chute. It might be that he fell in some way in the bin, and thus was drawn into the chute head first. All that can surely be said is that, having been in the bin, his body was presented head downwards at the bottom of the chute. Can it be said from that fact alone that the intestate was guilty of contributory negligence, or that there was a failure to prove his freedom from it? Of course, there is no presumption one way or the other, but the plaintiff is bound to prove the absence of contributory negligence, or he fails in his case. Weston v. City of Troy, supra. The care which is required of a person in each case is that which might reasonably be expected from a person of his age and experience under the same circumstance, and with the knowledge which he had upon the particular subject. In this case the boy who was killed was between fourteen and fifteen years old. He was mature for his age. He was wholly unacquainted, so far as appears, with the duty which he was set to do in this bin, and he had not been informed as to the extent or nature of the dangers which he might incur therein, if, indeed, it can be said that he knew there was any danger there. There can be no presumption, in the absence of evidence, that he did anything that he ought not to have done, and it may fairly be presumed that he took such reasonable care for his safety as one of his age, under those circumstances, would be likely to do. In all these cases the presumption may be made that every man is desirous of preserving his life and keeping his body from harm. Morrison v. Railroad Co., 63 N. Y. 643. Whether he went to sleep or not was a matter which was to be inferred, if at all, by the jury. They might take into consideration all the presumptions, as well as what appeared from the facts, and then it was for them to say upon the whole case, I think, whether the plaintiff had shown that the intestate had used proper care in looking ou$ for his own safety. For these reasons I am of the opinion that upon the whole it was not error to submit the case to the jury, and that a new trial must be denied.


text:
    Mary E. Johnson, App’lt, v. James Brasington et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed April 12, 1895.)

    Will — Construction.
    Where a testator devises property to his son. for life and directs that at. his death the property-should he divided among the “ children or heirs ” of said son in equal shares, the word “heirs” is used as equivalent of “ children,” and not technically.
    Appeal from a judgment, sustaining a demurrer to the complaint and directing the cancellation of a lis pendens.

      Henry M. Davis, for app’lt; Artemus A. Bradley, for resp’ts.
   Per Curiam.

— Judgment affirmed in opinion of Greene, J., at special term.

The opinion of Mr. Justice Green at special term is as follows:

February 27, 1874, Samuel Brasington died in the town of Porter in the county of Niagara, leaving a last will and testament made on the day previous, which will was duly admitted to probate in said county. He left, him surviving, Betsey Brasington, his second wife, and Stephen L. Brasington, a son by his wife Cassandra Knapp Brasington. His first wife died in the month of July, 1854, nearly twenty years before the execution of said will. To his second wife, Betsey, he gives and bequeaths all of the personal property of every name, nature, and kind absolutely, and also all of his real estate of every name, nature, and kind, for and during the full term of her natural life to he used by her as she thinks best for her comfort, to do with the avails of the same as she pleases. After her death he gives and devises the said real estate to his son Stephen, to have the same for and during the full term of his natural life, then at the decease of1 his said son, he directs that it is to be equally divided among the children or heirs of said Stephen L. Brasington in equal shares, share and share alike, they to have the same forever in fee-simple. His second wife, Betsey, survived the said Stephen L. Brasington for a period of about five years, and the said Stephen L. Brasington died, never having had wife or child, and leaving no brother or sister or any descendant of any brother or sister him surviving. The plaintiff in this action and her brothers and sisters are the children of the deceased stster’of the first wife of Samuel Brasington. This plaintiff brings this action in partition, claiming to own an interest in the said property as an heir of Stephen L. Brasington.

The question is, whether the word “heirs" is to be taken in its primary or technical sense, or in a restricted or secondary sense as meaning heirs of the body, issue, or lineal descendants. The clause in question must be construed according to the testator’s intention, irrespective of any other consideration, if such intention can be ascertained, after examining the will of the testator, his surroundings, and the object which, from these, we may infer he sought to attain. The ascertainment of this intention is not a matter of speculation or arbitrary conjecture, but must be arrived at, having due regard to established rules by which particular words and expressions, standing unexplained, have obtained a definite meaning in the law, are used in a different sense, and were intended to convey a different meaning, such intention must prevail, notwithstanding the interpretation which these words had previously received. Hence, as no wills are ever exactly alike, and as the circumstances which surround each testator vary, adjudications upon the construction of other wills have little weight except so far as they illustrate the general laws governing the construction of such instruments. Drake v. Drake, 56 Hun, 595 ; 31 St. Rep. 921. The word “heirs" has a well-known technical meaning, and is to be understood in its legal sense, unless, from the contents of the will, it plainly appears that the testator intended to use it in a different sense; and when the testator uses only technical phrases the court is bound to understand them as such, because the court cannot say that he did not know their meaning. But if the testator uses other expressions, which shows he did not mean to use those phrases technically, then the intention must prevail. And when the word “heirs” is used, not to denote succession, but to describe legatees or devisees, and there is not context to explain it otherwise, there seems to be no reason to depart from the natural and ordinary sense of the word. Wallace v. Miner, 86 Va. 555, 10 S. E. 423. If there be two equally probable interpretations of the will that one is to be adopted which prefers the kin of the testator to strangers. Quinn v. Hardenbrook, 54 N. Y. 86. Words may be enlarged or restricted as may best comport with the evident intention and purpose of the testator. In re Logan, 131 N. Y. 460; 43 St. Rep. 667. “While technical words in a will, when uncontrolled by the context, are presumed to have been used in their technical sense, still the context may overcome i the presumption when it appears thereby, and from extraneous facts of the kind already alluded to, that the testator used the words in their common and popular sense.” Lawton v. Corlies, 127 N. Y. 105; 37 St. Rep. 823. “Each judgment stands upon the construction or interpretation due to the words under examination, as they are looked at in the light of circumstances surrounding the parties to the instrument, and the situation of persons intended to be benefited." Greenwood v. Holbrook, 111 N. Y. 469 ; 19 St. Rep. 367, In Hard v. Ashley, 117 N. Y. 606-614; 28 St. Rep. 601, there was a devise to Z. fdr life, remainder to her children. By a codicil this was revoked, and the testator gave to Z. “and her heirs" a legacy “in lieu and instead of said bequest.” Held, that the testator used the word “heirs” in the codicil as the equivalent of “children” in the will; In Drake v. Lawrence, 19 Hun, 112, the devise was to the daughter for her life, the remainder “to her children and lawful heirs.” At the death of the testatrix the daughter had children, all of whom died before her, unmarried and intestate. It was held that the children of the daughter took vested remainders, which, upon their death, passed to the mother. The court said that the words “and lawful heirs” were added “simply as another designation of the persons who were to take the remainder in the property. The testatrix through them referred to the same persons who had been previously mentioned, — who were the children of her daughter, — and those children she designated as her daughter’s lawful heirs. * * * She gave the remainder absolutely to the children of Mary M. Keese, who were also designed to be designated by her as the lawful heirs of their mother. * * * As the remainder was given to these children in terms, it was not a devise which was limited to the heirs, or the heirs of the body, of the person to whom the life estate was given.” Where a life estate was given to the daughter, and, in case she should die leaving issue, then the property to be divided among her lawful heirs, and the daughter died without leaving issue, held, that the remainder in fee was not disposed of by will. Wood v. Keyes, 8 Paige, 365. In Scott v. Guernsey, 48 N. Y. 122, the court said : “The testator has used the word “heirs” in the sense of “children.” In Kiah v. Grenier, 1 Thomp. & C. 388, 392, the word “heirs” was construed to mean heirs of the body. In Bundy v. Bundy, 38 N. Y. 410-421, the words “die without heirs” were held to mean heirs of the body or lineal descendants, — that the presumption is-that the testator used the word in a general sense, meaning lineal and collateral heirs, unless it appears from the will and the extrinsic fact, known to the testator, that it was used by him in the restricted sense, as including lineal heirs only.

In order to entitle the plaintiff to recover in this action, we must hold that the testator intended simply, by the use of the words “or heirs," to devise the remainder in fee to his own kindred and the relatives of his first wife, in case his son Stephen should have no issue, although there is no expression in the will of any such intention. To give such a construction to those words-would be, we believe, to impute to the testator an intention he-never entertained. If such was his intention, it is a very reasonable supposition that he would have given some expression to it in words, by providing in express terms that in case the son should have no children or issue, then the remainder should go over to» others. But the testator here failed to make any such provision. It would be a stretch of language to contrue the clause “children or heirs,” as meaning that if Stephen should have no children,, then the fee should go to his (Stephen’s) heirs generally. It is evident that the testator employed the word “heirs” in its ordinary or common acceptation, as meaning children, issue, heirs of the body, or lineal descendants, and not in its technical or legal sense. It is limited in scope and meaning by the word “children,” and must be taken in the special or secondary sense of issue, heirs of the body, etc. The words “or heirs”#were not used in the will to-denote substitution or succession, but merely as designating the heirs of the body as devisees (as purchasers), and should not, therefore, be taken in their primary legal sense, which it appears from the context’that the testator used them in different sense ; for an intention actually expressed or to be gathered from the terms of the will must prevail over the technical meaning of the words. The testator evidently used the words in a colloquial, and a technical, sense, as meaning heirs of the body of Stephen. The testator contemplated the. event of Stephen marrying and having issue, and to provide for such an event he carves out a life estate for Stephen, and devises the fee to his children or heirs, but stops-there, and makes no provision for disposition of the fee in case the expected event should not happen. The fee was not given to-Stephen, because the testator hoped or expected that he would marry and have children, and he wished to secure the property to them; but he has failed to evince any intention to devise the fee to the heirs generally of Stephen upon his death without issue. It-should be particularly observed that the persons entitled to the remainder, if entitled at all, must take as purchasers, — that is, by direct devise from the testator himself, and not by way of succession or inheritance from Stephen, — -for he was only given a life-estate, and the fee was devised to his children or heirs. “Where a remainder shall be limited to the heirs or heirs of the body of a person to whom a life estate in the same premises shall be given, the persons who, on the termination of the life estate, shall bo the' heirs, or heirs of the body of such tenant for life, shall be entitled to take as purchasers by virtue of the remainder so limited to them.” 1 Rev. St. p. 725, § 28; Knight v„ Weatherwax, 7 Paige 182. Consequently we must assume, in support of plaintiff’s title, that it was the intention of the testator at the time he made this will to devise the fee to the collateral relatives or kindred of his first wife, as well as to his own kindred,, in case his son should have no children born to him ; for if the-word “ heirs ” is to be taken in its primary legal sense, it would include them all. To hold that such was the testator's intention, to deprive his own heirs of the whole or a portion of his estate, and to give it to strangers in blood without any expression indicative of such purpose, would be in violation of well settled rules-of construction, and contrary to the will of the testator. There is nothing in the will indicating that the testator intended that his first wife’s relatives should have any part of his estate by virtue of the terms of the will, or even his own brother or kindred. Such an intention cannot be inferred from the clause “ children or heirs.”' The reports are full of instances where the word “ heirs ” has been construed to mean “ children,” heirs of the body, issue, and descendants. When that word is connected with the word “ children,” it is clearly evinced that it was used by a testator in its popular,. common, or ordinary sense and meaning, as issue, etc., and not in its broad, general comprehensive, legal, or technical sense, as heirs generally, and especially so when we consider the surrounding facts and circumstances, the particular relationship of the testator to the parties to this action, the fact that his first wife died twenty years before the making of the will, and that neither she nor her relatives were mentioned in the will.

It is difficult to draw any substantial distiction between a devise to “ children and heirs ” and a devise to “ children or heirs ” of a life tenant, and to hold that in the one case the word “ heirs ” is but another designation for “ children or issue,’’ while in the other it means heirs generally. Such a distinction would be more fanciful than real. However, there are many instances where the word “or’’has been construed “and,” and there is ample warrant for substituting the one for the other in this case, in order to effectu-" ate the intention of the testator and to accomplish the purpose he had in view. The fee descended to the persons who were the heirs of the testator at the time of his decease, and the heirs of Stephen take nothing. It follows that the plaintiff has no title, and the demurrer must be sustained, with costs to the defendants.


text:
    White, Corbin and Company, Resp’t, v. William Martin Jones, App'lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 12, 1895.)

    1. Evidence — Corporations—Stockholders.
    Evidence as to the value of the property in payment for which the stock was issued, and as to the contract made by the trustees with the owners of the property bought, is admissible in an action to enforce the liability of a stockholder under chap. 40 of 1848, as amended by chap. 333 of 1853.
    2. Same — Purchaser.
    Such statutory liability of a stockholder follows the stock into the hands of an innocent purchaser.

      3. New trial — Newly discovered evidence.
    A motion for a new trial on the ground of newly discovered evidence will be denied, where there is no probability that it would have changed the result of the trial.
    Appeal from a judgment entered in favor of plaintiff and from an order denying a motion for a new trial, made on a case and exceptions, and on the ground of surprise and newly discovered evidence.

      W. Martin Jones, in pro. per.; David Hays, for resp’t.
   Per Curiam.

— Judgment and order affirmed, on opinion of Btjmsey, J., at circuit.

The opinion of Mr. Justice Btjmsey, denying the motion for a new trial, is as follows :

This action was brought against the defendant, who was a stockholder in the Bochester Printing & Lithographing Company, to recover a debt of that company by reason of the defendant’s liability as a stockholder, under section 10 of the manufacturing corporations’ act (Laws 1848, chap. 40, § 10). The language of that section is: “ All the stockholders of every compauy incorporated under this act, shall be severally individually liable to the creditors of the company in which they are stockholders, to an amount equal to the amount of stock held by them respectively, for all debts and contracts made by such company, until the whole amount of capital stock fixed and limited by such company shall have been paid in.” The plaintiff, which was a creditor of the Rochester Printing & Lithographing Company, claimed that the liability of the defendant existed because, at the time of the organization of the company, the stock was issued in payment for property sold to the company at a fraudulent overvaluation, and for that reason the stock was not in fact fully paid stock. The defendant himself, as was conceded, was no party to the fraudulent transaction, and did not become a stockholder until a considerable time after the organization of the company.

By chapter 333 of the Laws of 1853, the trustees of such a corporation were permitted to purchase the property necessary for their business, and issue stock to the amount of the value therefor. When that has been done, if one who is a creditor of the corporation tries to insist upon the individual liability of the stockholder under section 10 of chapter 40 of the Laws of 1848, he is bound to prove — First, that the stock issued exceeded in amount the value of the property in exchange for which it was issued; and, second, that the trustees deliberately, and with knowlege of the real value of the property, overvalued it, and paid in stock for it an amount which they knew was in excess of its actual value. Lake Superior Iron Co. v. Drexel, 90 N. Y. 87, 92. It will be observed that the transactions which are to be investigated to enable the plaintiff to establish these facts must have taken place at the time when the property was bought and stock issued in payment for it, and the creditor is bound to establish that at that time there was an overvaluation to the knowledge of the trustees, by which the assets of the company were deliberately sacrificed. It follows that the evidence must be directed to the occurrences of that time, for those occurrences are the ones to be explained. The plaintiff must show the value of the property at that time, and he must also show by competent evidence that the trustees, knowing the actual value, intentionally overvalued it, and issued stock for it at the overvaluation. Any testimony which goes to show what was the true value of the property at that time is competent. So, also, it is competent to show what contract was actually made by the trustees with the owner’s of the property bought, and what consideration was paid to them, and the way in which the consideration was paid, because all those things are material as bearing upon the intention with which they paid in stock more than the value of the property. So, also, the knowledge of the trustees, and their deliberate intention at that time to buy the property at a fraudulent overvaluation, must be proven; and any testimony which is competent upon that point is competent in the action.

These considerations necessarily dispose of nearly all the exceptions which were taken in the case-as to the admission of evidence. For instance, Pitt, upon his examination, was asked what was his opinion of the value of the assets of the Willard, Pitt & Moore business, which were turned over to the corporation, at the time when they were so turned over. That evidence called for precisely one of the facts which the court of appeals says must be proved by the plaintiff to establish his cause of action. It called for the opinion of the witness as to the value of certain assets which were turned over, at the time when they were turned over.

There was several exceptions to the conversations which were had between the different directors at the time when the property was bought and stock turned out for it. The persons between whom these conversations were had were owners of the property bought, and directors of the company as well. It was necessary for the plaintiff to show that these people knew at the time that the property was overvalued, and what was said and done at the time when they entered into the transaction was clearly competent to show not only their knowledge which they expressed at that, time, but also their intention. Loos v. Wilkinson, 110 N. Y. 195, 211 ; 18 St. Rep. 110, and cases cited. So, also, it was competent to show the disposition which was made of the assets, as bearing upon the good faith of the whole transaction on the part of the trustees.

It was claimed on behalf of the defendant that the good will of the several partnerships which were turned over to the Rochester Printing & Lithographing Company was of such value that, in adtion to the actual value of the assets of those establishments, it was equal to the amount of stock which was paid for them, To meet this claim on the part of the defendant, it was competent for the plaintiff to show that these partnerships and corporations, which were consolidated into the Rochester Printing & Lithographing Company, were doing a losing business, because that bore directly upon the value of their good will. The other exceptions which were taken are covered by considerations hereinbefore expressed.

It is claimed 'by the defendant that no liability against him can exist under this section, because it is not alleged or proved that he was a party to the overvaluation, but, on the contrary, it appears that he bought the stock after the property had been purchased and the stock had been issued to pay for it, and that the liability can only be based upon the fraud of the defendant. It would perhaps be sufficient to say upon this subject that no such point is raised by any motion made by the defendant in the case. If it had been, it is possible that evidence might have been given to charge the defendant with a knowledge of the condition of affairs at the time he bought the stock. But, passing that point, I am of opinion that the liability existed against every one who purchased stock issued in the same way in which this was issued, without regard to any knowledge he may have had upon the subject. Section 10 of the statute which has been quoted above establishes a liability against “all stockholders.” Under that section, every man who bought stock of a manufacturing corporation was liable for the debts of the company until the certificate provided in that section shall have been filed. All that it was necessary

ior him to know, to find out whether or not he was liable, was to ascertain whether the certificate had been filed. If it had, he was not liable ; and, if it had not, he was liable. By the law of 1853, a new power was granted to the trustees. It was no longer necessary for them to require the payment in money of the stock which was issued. They might, under that statute, issue stock to the value of the property bought, in payment for such property ; and, in the certificate which they filed that the stock was paid up, the manner of payment must be reported according to the fact. Laws 1853, chap. 333. When stock was issued under that permission of the statute, it became paid-up stock, not necessarily by the filing of the certificate, bu,t by the filing of a certificate which was true. Any one who had occasion to buy stock issued in that way was bound not only to see that, the certificate had been filed, but was bound, at his first peril, to ascertain whether or not the certificate represented the truth, and that the property which had been taken in payment of the stock was worth the stock which had been delivered for it. The construction of the statute is, it seems to me, plain and clear. , It was the one which was adopted by the judge in the case of Lake Superior Iron Co. v. Drexel, supra; and and it was the only construction upon which that case could have been submitted to the jury. I can find in no case which has been reported any suggestion that a stockholder who buys stock issued in this way is not liable if the stock was issued at an overvaluation. In several of the cases cited by the defendant’s counsel the defendant himself was one of the parties consenting to the overvaluation, and in these cases the court says that it was necessary to prove that the defendant knew of it. But that was said because the defendant was one of the parties to the transaction. Undoubtedly, the liability thus created is a grave one, and it may in some cases, as possibly it did in this case, work an injustice to the individual stockholder. But it is within the plain construction of the statute, and therefore it cannot be escaped.

So far as the motion for a new trial in this case is made upon the ground of newly-discovered evidence, the papers are fatally defective. There is no statement anywhere in.the papers of what the newly-discovered evidence is, except the paper which is said to be in the handwriting of Pitt, stating that there was a small amount of money on hand when a dividend was declared, at a time when he swore there was no money in the treasury of the company. But, if it could be assumed that this paper established that fact, it would be a matter of no importance whatever. If the fact had appeared, according to the statement in the paper, there is no probability that it would have changed the result of the trial; and, if it should be made to appear upon a new trial, I cannot see how it would have any elect whatever. There is no statement of any other evidence which was newly discovered.

The defendant also asks for a new trial upon the ground that the jury misunderstood the the charge of the court, and that their verdict was based upon such a misunderstanding." To this part of the motion there are several serious objections. In the first place, there is no competent evidence to prove the fact. If the affidavits of the jurors had been offered to establish that their verdict proceeded upon a mistaken view of the law, they could not have been read. Clum v. Smith, 5 Hill, 560. Nor can such facts be established by the declarations of the jurors, made after the verdict had been rendered, to other persons who embody them in an affidavit. Mitchell v. Carter, 14 Hun, 448. But, passing that objection, it is very clear that no intelligent person could have misunderstood the direction given the jury. The charge upon the point referred'to was clear, and was reiterated ; and it appears, from the testimony of one of the jurors, not only that he made no such declaration as is stated in the affidavits, but that the jury did understand the charge of the court, and based their verdict upon the directions which they received.


text:
    Benjamin C. Miller, App’lt, v. J. Wesley Bush, as Sole Overseer, etc., Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 21, 1895.)

    1. Towns — Okbtcebs—Contract liability.
    Under section 182, chap. 569 of 1890, an action on a contract of a town overseer of the poor must be instituted against the town.
    2. Same.
    Such action must be brought against the town if commenced after, though the contract was made before, the passage of said act.
    Motion for a new trial on exceptions, ordered to be heard at general term in the first instance.

      W. E. Davis, for pl’ff; C. W. Stanton and J. F. Little (M. Ramsey Miller, of counsel), for def’t.
   Bradley, J.

— The alleged purpose of the action is to recover compensation for the services of W. Martin Jones as attorney and counsel in an action which had been prosecuted in the name of a predecessor in office of the defendant against a party charged with illegally selling intoxicating liquors and to recover penalties for such violation of- the law. The alleged services commenced in 1887, and terminated in 1890. The claim was assigned by Jones to the plaintiff, and this action was commenced in August, 1892.

The only question requiring consideration on this review is whether the overseer of the poor is a proper party defendant, for the purpose of the relief sought by the action. Prior to the time the act of 1890, known as the “ Town Law,” took effect, the town had a very limited corporate power. 1 Rev. St. p. 337, §§ 1, 2. In cases coming within such power, the town could sue and be sued, except where the town officers were authorized to sue in their names of the office for the benefit of the town. Id. p. 357, § 2. Although the overseers of the poor, and other administrative officers, were elected at town elections, they, in the performance of their official duties, were not in any legal sense the servants or agents of their respective towns. They and their successors in office alone could sue and be sued upon their contracts, and for other causes of action relating to, and within the scope of, their official powers. Palmer v. Vandenburgh, 3 Wend. 193 ; Lorillard v. Town of Munroe, 11 N. Y. 393 ; People v. Board of Town Auditors, 74 id. 310. The first general statute shifting the direct liability of any of the town officers, as a party defendant, was that which relieved the highway commissioners, in certain cases, from that relation to an action. Laws 1881, chap. 700. Afterwards, by the town law, it was provided that:

“Any action or special proceeding for the benefit of a town upon a contract lawfully made with any of its town officers, to enforce any liability created or duty enjoined upon those officers, or the town represented by them, or to recover any penalty or forfeiture given to such officers, or the town represented by them, or to recover damages for injury to the property or rights of such officers or the town .represented by them, shall be in the name of the town. Any action or special proceeding to enforce the liability of the town upon any such contract, or for any liability of the town for any act or omission of its town officers shall be in the name of the town ; and all contracts made by such officers for and in behalf of their towns shall be in the name of the town. When such contracts are otherwise lawfully made they shall be deemed the contracts of the town notwithstanding it is omitted to be stated therein that they are in the name of the town.” Laws 1890, chap. 569, § 182.

The provisions of the Revised Statutes hereinbefore referred to, so far as they are not consistent witn those of the act of 1890, are repealed by it. And it is evident that the purpose of those provisions of the act was to place the town, as a party plaintiff or defendant, in the same relation to actions as those, officers before then had to like actions for causes legitimately arising out of or relating to the performance of their official powers or duties. Although the officers are not there mentioned, otherwise than as those by whom the town is represented, that expression, as commonly understood, embraces the officers of the town whose powers are administrative, and must be deemed to include them. As to those officers, there were statutory provisions for their indemnity by the town when they were subjected to expense arising out of the lawful discharge of their auties. And in such case it was provided that, as against them, other than the commissioners of highways, no execution could be issued. 2 Rev. St. p. 475, § 107; Code Civ. Proc. § 1931. For those reasons the policy, as well as the apparent purpose, of the provisions of the act, was to require that the town have direct relations as a party to actions, instead of such officers. In support of the contrary view, reference is made by counsel to sections 1926 and 1927 of the Code of Civil Procedure, which provide that actions may be maintained by and against those officers upon contracts lawfully made by them, and for other causes of action arising from their official actions. And it is urged that, as those provisions are permitted to remain unrepealed, the right of such officers to maintain actions, and their liability to be sued, are not taken away by the provisions of the act of 1890 before mentioned. While those sections are unrepealed, their provisions, so far as they relate to those town officers, are relieved from any want of harmony with those of that act by the next section of the Code of Civil Procedure, which •provides “that the last two sections do not apply to a case where it is specially prescribed by law that an action" may be maintained by or against the body represented by an' officer designated in those sections.” The provisions referred to, of the act of 1890, are within the contemplated application of that section of the Code.

The fact that the plaintiff’s alleged cause arose prior to the time that act took effect does not relieve his action, commenced since then, ftom its operation. While his contract, and the right to enforce it, cannot be impaired by state legislation, the form of his remedy may be modified by statute. The saving provisions of section 241 of the act of 1890 purport to relate to existing rights, and not to the remedy for their enforcement.

These views lead to the conclusion that the town of Oohocton, and not the overseer of the poor, was the necessary and only proper party defendant, and therefore the exception to the direction of nonsuit was not well taken. No application was made at the trial for leave to amend, and on this review it is not deemed proper to direct an amendment making the town the party defendant.

The motion for a new trial should be denied, and judgment directed for the defendant.

All concur.