author: Learned, P. J.: Bockes, J.,

text:
    JAMES W. WHITFORD, Respondent, v. THOMAS LAIDLER and Others, Appellants.

      Principal and agent — Sealed instrument — when the subscribers are individually liable, when the society, of which they are the officers, is liable— Knowledge of one lessee, when it concludes his co-lessees.

    A lease commenced: “This indenture, made the 5tli day of February, 1872, between James W. Whitford, of the town of New Lisbon, county of Otsego and State of New York, of the first part, and Thomas Laidler, president; Norris Gilbert, William Elliott, Elias G. Mather and Hiram A. Matteson, vice-presidents; Wm. J. Kellogg, secretary; Hiram O. Potter, treasurer, and Adam H. Elliott, Frederick W. Russell, Jonathan O. Hollister, William Rockwell, Seeley C. Gregory and Isaac Gregory, directors, being the board of managers of the Garrattsville Agricultural Society and Farmers’ Club of the town, county and State aforesaid, of the second part, witnesseth.” It ended: “In witness whereof, the said parties have hereunto set their hands and seals the day and year above written.
    JAMBS W. WHITFORD. [l. s.] THOMAS LAIDLER. [l. s.] NORRIS GILBERT. [l. s.] WILLIAM ELLIOTT. [l. s.] H. A. MATTESON. [l. s.] ---. [l. s.] WM. J. KELLOGG. [l. s.] H. O. POTTER. [l. s.] FREDERICK W. RUSSELL, [l. s.] ”

      Held, that the contract, on its face, was the contract of the individuals signing it, and not of the Garrattsville Agricultural Society and Farmers’ Club.

      Semble, that it was a proper question for the jury, on proof of the circumstances attending its execution, whether the parties executed the contract supposing it to be the contract of the association, in which case the persons signing it would not be individually liable thereon.

      Semble, that the fact that the contract was subscribed by a part only of the persons named as parties of the second part therein, should be submitted to the jury on the question whether or not it was the understanding that the instrument should not take effect until all the parties of the second part had subscribed it, together with such proof as to the acts of the parties as was given, tending to show a waiver of any such condition.
    That the knowledge of one of the lessees, with whom the lease was left to secure the signatures of the parties of the second part, was the knowledge of his co-lessees.
    Appeal from a judgment of the Otsego County Court, in favor of the plaintiff. The action was brought to recover $200 rent, alleged to be due from the defendants under the following lease:
    This indenture, made this 5th day of February, 1872, between James W. Whitford, of the town of New Lisbon, county of Otsego and State of New York, of the first part, and Thomas Laidler, president; Norris Gilbert, "William Elliott, Elias C. Mather and Hiram A. Matteson, vice-presidents; William J. Kellogg, secretary ; Hiram C. Potter, treasurer, and Adam H. Elliott, Frederick W. Russell, Jonathan C. Hollister, William Rockwell, Seeley C. Gregory and Isaac Gregory, directors, being the board of managers of the Garrattsville Agricultural Society and Farmers’ Club, of the town, county and State aforesaid, of the second part, witnesseth, that the said party of the first part, for and in consideration of the rents and covenants hereinafter mentioned, hath granted and leased, and by these presents doth grant and lease for agricultural fair purposes unto the said parties of the second part and their successors in office, all that certain piece of land as surveyed by Soloman C. St. John, October 28, 1871, with the privilege of erecting thereon necessary fair buildings and pens for stock, etc., on exhibition, and containing about twelve acres of land, be the same more or less, to have and to hold the said above described premises unto the said parties of the second part or their successors in office, three days in each year,'from the 5th day of February, 1872, for and during the term of ten years thence next ensuing, yielding and paying therefor unto the said party of the first part, his heirs or assigns, yearly and every year during the said term hereby granted,, the yearly rent or sum of $200. And the said parties of the second part doth for themselves and their successors in office, covenant and agree to and with the said party of the first part, his heirs and assigns by these presents, that the said parties of the second part and their successors in office, shall and will yearly and every year during the term hereby granted, well and truly pay or cause to be paid unto the said party of the first part, his heirs and assigns, the said yearly rent of $200, and the said party of the first part for himself, his heirs and assigns, doth covenant and agree by these presents, that he will cause the grounds above leased to be properly fenced with a tight board fence eight feet high, with suitable places of entrance upon the said grounds, such places of entrance to be closed and protected by suitable gates, and to keep the said fence anid gates in suitable and proper repair during the said term of ten years; and that he will also build and keep in repair a good and substantial road bridge across the Butternut Creek, near the tannery of Asa B. Chase, for the accommodation of the said Agricultural Society and Farmers’ Club, and also grant to the said society and club the right of way across his lands from the Butternut Creek road across said bridge to the grounds herein leased. And the said party of the first part further covenants and agrees to and with the said parties of the second part'and their successors in office, that he will make and execute unto them a new lease similar to this, and to run for the same period of ten years of the premises aforesaid upon the due request and application of the said parties of the second part or their successors in office; such application to be made within twenty days of the expiration of the aforesaid term, granted by these presents.
    In witness whereof the said parties have hereunto set their hands and seals the day and year above written.
    Sealed and delivered in presence of )
    JAMES W. WHITFORD. [l. s.]
    THOMAS LAIDLER. [l. s.]
    NORRIS GILBERT. [l. s.]
    WILLIAM ELLIOTT. [l. s.]
    H. A. MATTESON. [l. s.]
    ---[l. s.}
    WM. J. KELLOGG. [l. s.]
    H. O. POTTER. [l. s.]
    FREDERICK W. RUSSELL, [l. s.]

      H. Sturges, for the appellants.

      J. A. lynes, for the respondent.
   Learned, P. J.:

This action is on a sealed contract of lease. The plaintiff is the party of the first part. The defendants parties of the second part. In the lease the defendants are severally described as president, vice-presidents, secretary, treasurer and directors; being the Board of Managers of the Garrattsville Agricultural Society and Farmer’s Club.” This society and club was an association, not shown to have been incorporated. Of the thirteen persons named in the lease as parties of the second part, the lease is signed and sealed by only seven. The lease is to the parties of the second part and their successors in office, and is for the term of ten yeai’s.

The first point made by the defendants is that, on its face, the contract was with the association and not with the defendants individually. The defendants cited Hood v. Hallenbeck (14 Sup. C. N. Y., 362). The distinctions between that case and the present are several. That was an action on a promissory note, signed by five persons, describing themselves as trustees of St. Johns Lutheran Church. That church was a corporate body, and its corporate seal was affixed. Whatever might have been the presumption of law in that case, it was proved, as a fact, that the note was given for a previous indebtedness of the corporation.

The case of Bellinger v. Bentley (8 Sup. C. N. Y., 562), was an action on an unsealed contract, made in the name of trustees of a cheese manufacturing company — a corporation. Proof was given ■of the authority of the trustees and of the plaintiff’s knowledge that the trustees were contracting not for themselves.

But, without examining other and early authorities,- it seems to us that recent decisions of the Court of Appeals have settled this ■question. In Kiersted v. O. and A. R. R. Co. (69 N. Y., 343) the plaintiffs, as lessors, and Smith, as lessee, executed -a lease under seal. The lease recited that Smith was the general agent for a certain route comprising the following railroads, naming the defendants. This fact also appeared extrinsically; and it also appeared that Smith had authority to negotiate for a lease for an office for their business, and that he occupied the premises for the purposes of his agency. The court said that the lease was signed and sealed in his individual capacity; that the form of the lease made him lessee; that the covenants could only be enforced against the party who on the face of the lease appeared to be covenantor, although in fact he acted for another. The court cite with approval Briggs v. Partridge (64 N. Y., 357) and the old ease of Taft v. Brewster (9 Johns., 334). In that case a bond, signed by persons describing themselves as trustees of a certain Baptist society, was held to be their individual bond. And, also, the case of Stone v. Wood (7 Cow., 452), where a charter party between Stone of the one part and Wood, as agent of J. & R. Raymond,” signed and sealed by said Stone and said Wood, was held to be the contract of Wood. Also the case of Guyon v. lewis (7 Wend., 26), which is very similar. These old cases are, therefore, approved in that recent case, notwithstanding that the doctrine as to instruments not under seal has probably been modified in the point under consideration. The case of Randall v. Van Vechten (19 Johns., 60), and similar cases, are explained in Briggs v. Partridge {ut supra) to be based on this principle, that where the sealed contract is, in form and in law, the agent’s, but the principal’s interest appears on the face and he has ratified it by acts in pais, and the contract would have been valid without a seal, the principal may he liable in assumpsit on the promise contained in the instrument. Evidently that principle does not apply here. The question is here, not whether, under some possible proof, the association might not have been made liable, but whether, on the face of the contract, the signors are not liable themselves prima facie.

But, again, the learned judge did not hold that the contract was conclusive as to the defendant’s liability. After stating that, on its face, it was their contract, he submitted the question to the jury, on proof of the circumstances attending its execution, whether the parties executed it supposing it to be the contract of the association, and he charged that if they did so the defendants were not liable. The jury found for the plaintiff and, therefore, we have the fact that the parties, plaintiff and defendant, executed this contract, understanding that it bound the defendants individually. On such a finding the defendants would be liable, even if the contract had been unsealed.

Next, it was urged that the contract was executed upon a condition that it was not to be valid or operative until it should be signed by the other parties, whose names appear in the instrument, and that it was to be delivered to Kellogg, to be held by him until so signed, and then deposited in the town clerk’s office. This question the learned judge submitted to the jury on conflicting evidence.

He further charged that if the contract was executed on these conditions, that the defendants might, if they chose, subsequently waive these conditions; and he submitted to the jury the question whether or not they did waive the same. And on this point he charged that the defendants, having the contract in the hands of one of their number, holding it as their agent, would be charged with knowledge whether or not the condition was complied with; and if they went on and acted under the contract, and allowed plaintiff to do the same, and supposed that the conditions had been waived or complied with, understanding it was their individual contract, then it was a waiver of the conditions. The defendant excepted to the charge that Kellogg, as agent, held the contract, and that defendants were chargeable with knowledge of it. Kellogg, in the lease, is called secretary of the association. The plaintiff had signed the lease, and according to the evidence, the object of leaving it with Kellogg was that he should procure the signatures of the others. He did subsequently procure the signature of Elliott, and he still continued to retain the lease. We see no error in the language of the learned judge. Kellogg was one of the lessees. His possession of the lease was for the lessees ; even if it was under the conditions above stated. And we do not see why (if the lease was delivered on the conditions alleged) the defendants were not chargeable with knowledge whether or not the conditions had been complied with. This lease was dated February, 1872. The plaintiff subsequently built the fence as he had agreed. The association held its fair on the grounds in 1872, 1873,1874 and 1875. They received rent. They rented the privilege of selling refreshments. In 1872 they graded a track. In 1873 and 1874 one of the defendants repaired the track which had been injured by a freshet, and for several years they paid the rent to the plaintiff. These acts were done by these individual defendants or some of them. Now the learned judge, in submitting to the jury the question whether, by these and other acts, the defendants had waived the conditions (if any there were), was careful to say that, if these acts were done by the defendants simply in their capacity as members of the association, and had nothing to do with the contract they had signed, then there was no waiver. Thus the jury must have found either that there were no conditions such as were alleged, or that those conditions had been waived by acts of these defendants done, not as members of the association but as individual lessees. (Ireland v. Nichols, 46 N. Y., 413.)

The defendants urge that the fact that a fair was held on the grounds was no waiver of the alleged conditions; but we must remember that the jury must have found that the defendants signed the lease, understanding that it was their individual contract. If that were so, then they understood that they, and not the association, were the lessees, and that they individually were entitled to possession. Whatever then they permitted the association to do, in the way of possession and improvement, was an acceptance on their own part of the benefit of the lease. If they took possession, or authorized the association to take possession, they did so only under the lease, and therefore they affirmed its validity. Having had the benefit of it, they are estopped from saying it never was completely executed. They entered into possession under it, and thereby asserted their rights as tenants. We see no error in the case.

The judgment should be affirmed with costs.

Boardman, J., concurred.

Bockes, J.,

dissenting:

I think enough appeared on the face of the instrument to admit the parol proof that the parties executing it were not to be personally bound, and the evidence is entirely conclusive to my mind that the parties sought to be charged had no intention of incurring personal obligation by ’their acts. The plaintiff also understood this perfectly well. The evidence shows lie did not himself suppose, at the time the instrument was prepared and executed, that the defendants were to be personally bound by it. So it is laid down in the books that in such case and where the party to whom the obligation is given understands the character in which the other is acting, the facts may be shown by parol with a view to relieve the latter from a claim of personal liability. It is only when there is nothing in the body of the instrument or attached to the signature to indicate that it was intended to create other than a personal obligation that such evidence becomes inadmissible. In this case the parties (lessees) are described in the instrument as “ President,” “ Vice-President,” “Secretary” and “Board of Managers” of the Garrattsville Agricultural Society and Farmers’ Olub,” and the. lands were leased “ for agricultural fair purposes.” The lease, too, ran to the officers named, and “ their successors in office,” and the instrument purported to bind “ the successors in office,” to the payment of the rent. Thus the instrument showed on its face that the officers had no personal interest in the subject-matter of the lease, and that they were acting, not for themselves, but for and in behalf of the society. But putting the case most strongly for the plaintiff, there was at least an ambiguity on the face of the instrument as to the character in which the lessees named were acting; hence parol proof was admissible to show the real and true position of the parties in the transaction; and the proof is conclusive to the effect that all of them, plaintiff and defendants, well understood that the latter were not acting for themselves, and were not intended or expected to be held personally liable as lessees. Any inference to the contrary, based on tlie verdict of the jury, is clearly and manifestly contradicted by the proof. To hold the defendants personally liable to the plaintiff on the facts proved in this case would, as it seems to me, be grossly unjust, and, as I think, would be contrary to law as settled by many decisions in this State. It may be, and I think the fact is, that a different rule from that above indicated exists in some of the other States. I do not deem it necessary here to collate the cases in those States, nor to mark a distinction often noted between instruments under seal and those not sealed. This distinction is without force in this State. Here, as I think, the law applicable to an instrument raising on its face a question, at least, as to the personal liability charged, is firmly settled in favor of the allowance of parol proof with a view to show the intention of the parties. This does not infringe upon the doctrine that parol evidence is inadmissible to contradict a written instrument. The following are some of the cases on which I base my conclusion: Bellinger v. Bentley (1 Hun, 562); Haight v. Sahler (30 Barb., 218); Hood v. Hallenbeck (7 Hun, 362); Lee v. Methodist Episcopal Church of Fort Edward (52 Barb., 116); Chouteau v. Suydam (21 N. Y., 181, 182); Auburn City Bank v. Leonard (40 Barb., 136); Stanton v. Camp (4 Barb., 274). That the instrument was under seal does not affect the question here under examination. A seal is presumptive evidence of a consideration, but has no such sacredness attached to it as will operate as an estoppel against proof of the truth. In several of the cases cited the instruments brought under examination were under seal. In my judgment the defendants established a complete defense on this branch of the case.

Second. It further seems to me that the proof is entirely insufficient to show a delivery of the instrument. It was distinctly agreed that the instrument should not be deemed to be delivered until signed by all the persons whose names were inserted in it as officers of the society, and until deposited in the clerk’s office fully executed. The evidence is uncontradicted in this, that Mr. Kellogg was to keep the contract in his possession, undelivered, until all the signatures were procured, and then it was to be placed in the town clerk’s office “for all the parties.” These were the terms of delivery, the conditions on the performance of which the instrument should become operative, and the plaintiff himself was a party to this understanding and arrangement. All the signatures were not obtained nor was the paper placed where it was agreed that it should be placed for the parties.” The instrument was to have no binding force unless all signed and the deposit was made. Such is the uncontradicted evidence. Indeed, the plaintiff himself testified to the fact of these conditions. Thus it seems the instrument was not to be deemed operative until executed and deposited as agreed upon by the parties to it. These conditions and terms were never performed ; and it may be added here that there is no evidence whatever that they were ever waived. Nor can it be maintained that the evidence of non-performance of the conditions was inadmissible. {Roberts v. Jackson, 1 Wend., 478; Bronson v. Noyes, 7 id., 188; Lovett v. Adams, 3 id., 380; Chouteau v. Suydam, 21 N. Y., 179, 181; The People v. Bostwick, 32 id., 445 ; in Sup. Ct., 43 Barb., 9.) The doctrine of the last case cited has been questioned {Russell v. Freer, 56 N. Y., 71; Richardson v. Rogers, 50 How., 403), but only to the extent that a promisee should not be made the victim of private understanding between the promissors of an instrument, of which understanding the former was ignorant. In this case the plaintiff knew of and indeed was a party to the agreement, that the instrument should not be deemed operative until the conditions agreed upon should be performed. Those conditions remaining unperformed, the instrument was inoperative. To allow the plaintiff to repudiate his own agreement as to those conditions would be most unjust to these defendants. It is entirely clear on the proof, as it seems to me (1), that the plaintiff himself did not understand that the defendants were to be personally liable, and that he understood that he was to look to the society for his rent; and (2) that the instrument, however it should be construed, was inoperative because of the non-performance of the conditions which were, by the understanding of the parties, to give it validity.

In my judgment the defendants are entitled to a new trial.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Learned, P. J.:

license: Public Domain

text:
    THOMAS KAIN, Appellant, v. JOHN G. SMITH, Respondent.

      Duty of master to furnish safe machinery — negligence of one employee in this respect,' no defense to the master in an action by another of his employees — Bffect of knowledge, by the employee, of the imperfections.

    The duty of the master as to furnishing suitable and safe machinery, and keeping it in repair, only requires him and his agents to exercise due care to that end. The master who fails, either himself or by his servant, to furnish safe machinery and keep it in repair, cannot set up as a defense to an action, brought by one of his employees to recover damages arising from such neglect, that the machinery was not safe because' of the negligence of a co-employee.
    When the knowledge by the employee of imperfections in the machinery will excuse the master, considered.
    ,Appeal by plaintiff from a judgment of nonsuit.
    The action was brought to recover damages for injuries sustained by the plaintiff, owing to a pair of car-wheels rolling off a “ jigger,” a track or incline to connect the rails with the platform of a car in loading car-wheels.
    The defendant, in the year 1872, was one of the board of trusteed and managers of the Yermont Central Railroad, who were operating the Ogdensburg & Lake Champlain Railroad under a written contract.

      Louis IlasbroueJc and Leslie W. Russell, for the appellant.

      Edward Q. James, for the respondent.
   Learned, P. J.:

It is strongly urged by the defendant that the plaintiff was guilty Of contributory negligence; and that, although the nonsuit was not put on that ground, yet that that ground will sustain it. The recent decisions of the Court of-Appeals, however, seem to tend towards making the question of contributory negligence, in nearly every case, one of fact. (Stackus v. N. Y. C. and H. R. R. R. Co., 79 N. Y., 464.) Whether a plaintiff was negligent is, in other words, whether he did what a prudent man would not have done; and that is generally a question for the jury. The defendant insists, in this case, that it was negligence in the plaintiff and his fellow laborers to start the wheels with a run along the rails so that the momentum thus acquired would send them part of the way up the “ jigger.” Now it seems to us that this doctrine cannot be laid down as a rule of law. Whether such an act was negligent or not must depend on many circumstances. And it is to be judged of as it appeared at the time, not in the light of the subsequent accident. The difficulty of rolling the wheels up without the momentum thus acquired; the number of men employed; the number of wheels which had already been loaded in this way; these and other matters must enter into the question of negligence. In every such labor as this there is some peril; and whether the plaintiff was negligent or not, in respect to such peril, was not, we think, in this case, to be decided by the court. Nor did the learned justice who tried the case give any intimation, in his remarks, that he thought that the plaintiff should be nonsuited for his own negligence.

The defendant was operating the railroad on which the accident occurred. Ames was the master mechanic at Ogdensburgh, with power to make repairs and to employ and discharge men. Forrest was foreman of the yard where the injury occurred. The plaintiff was employed by Ames and was put under the jurisdiction of Forrest. . Forrest directed the loading up of the wheels upon the cars. The plaintiff was a carpenter and received his directions from Forrest. On the day in question Forrest ordered the plaintiff and others to go and load wheels upon cars. He told them to go and get the “jigger.” They did so, and rested one end of the jigger on the end of the car which was to be loaded and the other end on the track where the wheels were. A pair of wheels with the axle weigh about 1,300 pounds. They were greasy and hard to handle. The wheels are loaded by rolling them- along the track to the jigger, then up the inclined plane of the jigger upon the car. The upper end of the jigger has hooks, or grabs, to hold upon the car; the lower end rests upon the rails. It was claimed by the plaintiff, and there was some evidence on this point, that the jigger was defective, in that the hooks, or grabs, were blunt; that it was not long enough; that the lower end was “ broomed up; ” that one side was shorter than the other; that it was shaky in the joints. The learned justice in nonsuiting the plaintiff stated that the evidence tended to show that this implement was somewhat out of repair. But the learned justice held that the default of Forrest in not observing that the implement was out of repair, and in not communicating this fact to his principal, was the default of a co-servant and did not.make the defendant liable; that there was no evidence that Ames had anything to do with this implement, and that it was not a thing that he would consider so dangerous that he ought to give his personal attention to it, and that actual notice was not brought to Ames.

The remarks of the late chief judge, in Malone v. Hathaway (64 N. Y., 5, at p. 12), show that the question of the liability of the principal in such Cases as the present has not been laid down with entire uniformity in the numerous cases decided in the Court of Appeals. The safest rule, therefore, is to take the latest decisions as being, for the present, the law. ¥e find in Cone v. Delaware, Lackawanna and Western Railroad Company (81 N. Y., 206) that it is held that “ as between the plaintiff and defendant it was the duty of the latter to furnish its employes, for use in the prosecution of. its business, good and suitable machinery, and keep it in repair.” This rule is found, also, in Fuller v. Jewett (80 N. Y., 46), where it is said that “ acts which the master as such is bound to perform for the safety and protection of his employes, cannot be delegated, so ás to exonerate the former from liability to a servant who is injured.” The duty of maintaining machinery in repair for the protection and safety of employes is the same in kind as the duty of furnishing a safe and proper machine in the first instance.” But it is added: “ The duty of the master to furnish suitable and safe machinery and to keep the same in repair, is relative and not absolute. He is only bound, by himself and his agents, to exercise due care to that end.” "We need not cite the other cases which are referred to in that opinion to support this doctrine. We understand it to be that the master is under a duty to the servant to furnish safe machinery and to keep it in repair. That, therefore, in respect to this duty the familiar doctrine as to the negligence of co-employes does not arise. And, further, that the master is not absolutely bound to furnish safe machinery and to keep it in repair, but is bound, by himself and his agents, to exercise due care to that end.

In this view of the law, the learned justice, admitting that there was evidence that the jigger was out of repair, was not justified in holding that the defendant was not liable, because the default oí Forrest was that of a co-employe. The question rather was this: Did the defendant exercise due care to furnish a safe jigger and to keep it in repair ? And, in regard to this duty, it is said in Fuller v. Jewett {ut supra) that “ the servant who undertakes or omits to, perform it is the representative of the master and not a mere co-servant.” If such servant in this case was Ames, did Ames exercise due care in furnishing a safe jigger and keeping it in repair? Now, undoubtedly, the degree of care which is required may vary according to the kind of machinery furnished. And it is to this that the learned justice referred, when he said that the jigger was not a thing which Ames would consider dangerous. , It may be that a less degree of care would be a discharge of duty on the part of the defendant in keeping this implement in repair, than would be in the case of a locomotive. (Jones v. N. Y. C. & H. R. R. R. Co., 22 Hun, 284.) Still it seems to us that it was a question for the jury, what would be, in this ease, due care, and whether it was exercised.

But it is urged that under the decision in DeGraff v. New York Central and Hudson River Railroad Compcmy (16 N. Y., 125), there was no evidence of want of due care. Now we must notice, as worthy of consideration, that the learned justice did not nonsuit on this ground, but on the ground that the negligence (or want of due care) was the act of Forrest, not of defendant. In the DeGraff case the court said that there was no evidence what the defect was, if there was any, and no evidence that ordinary care would have discovered the defect, or any defect which might have existed. In the present case, the defects charged to exist were such as were apparent, on- a very slight inspection. They had existed for some time previous. Notice that the jigger was worn out had been given to Forrest some time before, and he had said that he had no lumber to make a new one, and similar accidents to that which caused plaintiff’s injury had happened several times.

The defendant further insists that the plaintiff knew of the defects as well as the defendant, and therefore cannot recover. (Gibson v. Erie Railway Company, 63 N. Y., 449.) But the principle in that ease is qualified by the exception, “unless the master, by urging on the servant, or coercing him into danger, or in some other way directly contributes to the injury.” Now, in the present case the plaintiff was directed by the foreman, under whose control he was, to take this jigger and to do this work. It would be hardly possible for him to refuse. In the Gibson case the injured party was struck by a projecting roof. He had voluntarily climbed upon a car; not at the request of the defendant or its officers. But the plaintiff here did not voluntarily expose himself fo injury. There was no other jigger which he eould take, and he was expressly directed to use this one. According to the argument of the defendant, the master may furnish defective machinery, if the defects are such that the employes can see them. Thus he can put the employes to the risks arising from defective machinery, or else compel them to refuse to work. • There may be cases where the imperfection of the machinery is such that the servant would be voluntarily assuming the risk if he used it. But we cannot say this of the present plaintiff as a matter of law. He had never loaded wheels before or seen them loaded.

On the whole we think that the case should have gone to the jury.

Judgment reversed, new trial granted, costs to abide event.

Boardman, J., concurred ; Bocees, J., dissented.

Judgment reversed and new trial granted, costs to abide event.


author: Per Curiam:

text:
    JAMES ROACHE, Respondent v. PATRICK J. KIVLIN, Appellant.

      Pleadings — unverified answer to v&t'ifed complaint — excuse for not verifying, how to be shewn.

    The court will not assume, merely from the pleadings, that an answer to a verified complaint was not verified, for the reason that the party answering “ would be privileged from testifying as a witness concerning an allegation” contained in the complaint.

      Semble, That it is proper, when a defendant claims the right to serve an unverified answer to a verified complaint, that he should serve therewith an affidavit showing his excuse for not verifying his answer.
    That in any event when a motion is made to set aside the answer, an affidavit should be made showing a valid reason why the answer is not verified.

      Appeal from an order made at Special Term, allowing plaintiff to take judgment against the defendant, unless within ten days he served a verified answer. The action was for crim. con., and the complaint was duly verified. The defendant served an unverified answer, which plaintiff elected to treat as a nullity, and so notified the defendant, who afterwards served an “ amended ” answer, which was also unverified, and which was in like manner disregarded by plaintiff, and the notice required by section 528 of the Code of Civil Procedure, served. The defendant’s time to answer having expired, plaintiff moved on notice for judgment, and the order appealed from was thereupon granted.

      Hanoley & McNamara, for the appellant.

      Reilly ds Hamilton, for the respondent.
   Per Curiam:

In this case the complaint was verified. The defendant served an answer unverified. The plaintiff served notice that he elected to treat it as a nullity, on the ground that it was not verified. Then the plaintiff moved for an order, striking out the answer on this ground and for judgment. The motion was granted unless defend-* ant should serve a verified answer in ten days. Prom this order the defendant appeals.

No affidavit was made by the defendant giving any reason why the answer was not verified. Put, on the argument, the defendant claimed that he was excused from verifying his answer, for the reason contained in the second sentence of section 523 of the Code-viz.: That he would be privileged from testifying as a witness concerning an allegation contained in the pleading. His claim is that to testify concerning his alleged criminal conversation with plaintiff’s wife would tend to disgrace him.

There is one consideration which seems to us important in this matter. Whenever, on a trial, a witness claims such a privilege, he must, if required, state (and of course on oath) that the answer, if given, would tend to disgrace him. Now, in the present case, we have no sworn statement to this effect, either served with the answer or used in opposition to the motion. It would seem at least proper, when a defendant claims the right to serve an unverified answer to a verified complaint, that he should serve therewith an affidavit showing his excuse, in analogy to the case of a witness on the stand. But, if not, when a motion to set aside the answer is made, then (if not before) an affidavit should be made showing a valid reason why the answer was not verified. For we have no right to assume merely from the pleadings that the defendant, if he were a witness, could not have testified concerning some allegation in the complaint without tending to disgrace himself. Certainly, if he were to have verified the answer which he actually served, denying the criminal conversation, the answer would have had no tendency to disgrace him. Without therefore some affidavit on his part, we cannot assume that he could not have served a verified answer which would not have had any tendency injurious to his character.

The order should be affirmed, vith ten dollars costs and printing disbursements.

Present — Learned, P. J., Bookes and Boardman, JJ.

So ordered.


author: Pee Oubiam :

text:
    NATHAN FEDERGREEN, Respondent, v. THE TOWN OF FALLSBURGH, in the County of Sullivan, Appellant.

      Interest on town bonds issued in aid of a railroad — what constitutes pa/yment by the town.

    The raising by tax and payment to the commissioners appointed to pay interest on town bonds, issued pursuant to an act authorizing the bonding of the town for railroad purposes, of the interest on such bonds, does not constitute a payment of such interest as between the town and the holders of the bonds.
    Such bonds, as well as the coupons thereon, are pecuniary obligations and debts of the town.
    Appeal from a judgment in favor of the plaintiff in an action tried at the Sullivan County Circuit.
    This action was brought to recover upon coupons owned by the plaintiff, which are detached from bonds which purport to have been issued pursuant to two acts of the legislature of the State of New York, viz.: Chapter 398 of the Laws of 1866, and chapter 917 of the Laws of 1867.
    After said coupons were due, and while plaintiff was the owner and holder of them, they were presented at the American Exchange National Bank, where they were made payable, for payment, and payment was refused for want of funds. No funds had been deposited in said bank for the payment of said coupons, and no money on the coupons recited in the complaint has been paid to the plaintiff, • or any other holder of said coupons, and they are unpaid.
    During the years of 1877 and 1878, John H. Divine and Medad T. Morss were the commissioners for the town of Eallsburgh, pursuant to the acts aforesaid, and reported to the board of supervisors of Sullivan county at the annual session in 1877, the amount .required to pay the interest on all bonds issued as aforesaid, which would fall due on the first day of January and the first day of July in the year 1878, which amounted to $6,914.19; and said board of supervisors caused the same to be levied and collected from the taxable property of the town of Eallsburgh, pursuant to law, and said sum was, by the collector of said town of Eallsburgh, paid to said commissioners as follows: To Medad T. Morss $6,766.27, and to John H. Divine $178.22, before the coupons mentioned in the complaint were presented for payment as aforesaid.

      T. F. Burt, for the appellant.

      M. H. Couch, for the respondent.
   Pee Oubiam :

The argument of the learned counsel for the defendant is really based on this proposition, viz.: That the bonds and coupons constituted no debt or pecuniary obligation of the defendant, but only imposed on the defendant the single duty of once raising by taxation the money needed for payment. We do not think this proposition is sound. The bonds and coupons, on the contrary, although executed under a special, and perhaps an unwise law, are pecuniary obligations or debts of the defendant. Eor them, therefore, the defendant remains liable until they are paid. They have not been paid, and, therefore, the defendant is still liable.

It is because they are obligations of tbe defendant, that the defendant is required to raise by taxation the money for their payment. But the handing of that money to the commissioner, does not pay the obligation, any more than the receipt by a county treasurer of money raised by taxation discharges county liabilities. This is plain common sense. It is shown also by another circumstance. The defendant through its supervisor is seeking to recover back from the commissioner the very moneys which should have paid these claims, and has recovered a judgment and issued execution therefor. Suppose that execution be collected, and the supervisor should fail to pay these obligations and should misapply the money, could it still be claimed that the obligations had been discharged.

It is very possible, as held in People v. Mead (24 N. Y., 114), that a mcmdamus would be the only remedy by which this plaintiff could compel the commissioner Morss to pay over the specific money in his hands. But it does not follow from this that it is the only remedy which the plaintiff has to collect his debt. If the money had been wasted or spent by the commissioner, a mcmdamus would be of no avail. And there is no reason why the receipt of the money by the commissioner should be a payment to the creditors. The commissioner is not their agent in any respect.

The defendant insists that if these actions are sustained it will be obliged to tax itself again for a matter for which it has already laid a tax. But there is nothing peculiar or strange in this. The defendant owes these debts-. The money which it raised for their payment has unfortunately not been applied to that purpose. The creditors are not to blame and the debtor must pay.

The ground on which this evil system of town bonding is to be sustained is immaterial. On whatever ground sustained the system authorized the creation of debts or obligations of the town. It is not disputed that those in question were validly created; and since they have not been paid the town owes them.

Some doubt was formerly held as to the right of creditors of a town or county to maintain a common law action for the recovery of their claims. But we think that since the legislature have so largely authorized the issue of such negotiable securities as those in question the right of action thereon has been admitted. (Thompson v. Perrine, 103 U. S. R., 806.)

The judgment should be affirmed, with costs.

Present — Learned, P. J., Pockes and Poardman, JJ.

Judgment affirmed, with costs.


author: Per Curiam :

text:
    JOHN CALHOUN, Respondent, v. JAMES D. HALLEN, Appellant.

      A denial of "every allegation set forth in the complaint, except as herein admitted,r is proper.

    An answer denying " each and every allegation set forth in the complaint, except as herein admitted, qualified or explained,” contains an authorized form of denial, and should not he stricken out as frivolous.
    Appeal from an order overruling the answer of the defendant herein as frivolous and giving judgment to the plaintiff, and from the judgment entered thereon.
    The first paragraph of the defendant’s answer admitted certain allegations of the complaint. The second paragraph alleged that as to certain payments “ this defendant has not information sufficient upon which to form a belief.” The third and last paragraph was as follows: “ The defendant further answering denies each and every allegation set forth in the complaint, except as herein admitted, qualified or explained.”

      J. D. Hallen, for the appellant.

      Wm. J. Palmer, for the respondent.
   Per Curiam :

In Allis v. Leonard (46 N. Y., 688, reported in full, 22 Alb. Law Jour., 28), it was held, that in an action on a note alleged to have been transferred to the plaintiff, an answer admitting the making and delivery of the note$ and denying every allegation except those expressly admitted, was a good denial of the transfer and authorized the defendant to prove that the note belonged to the payee.

This form of answer, viz.: a denial of everything not admitted, is thus approved of by the Court of Appeals. Here the third clause of the answer is a denial of every allegation set forth in the complaint, except as herein admitted, qualified or explained. We think that the decision of the Court of Appeals clearly authorized the form of denial which is used in this third clause, and that that decision overruled some earlier cases cited by the plaintiff.

For these reasons we think the answer was not frivolous, and that the judgment and order should be reversed, with costs.

Present — Learned, P. J., Bockes and Boardman, JJ.

Judgment and order reversed, with costs.


text:
    GEORGE M. AYLESWORTH, Appellant, v. DAVID B. ST. JOHN, Respondent.

      Libel —judicial proceedings privileged — pertinaney and materiality — good faith.

    A communication directed to the County Court, and added to matter returned thereto by a justice of the peace on appeal from his judgment, and signed officially, is privileged if it be material and pertinent, irrespective of motive. Semble, that if the justice believed in good faith that it was pertinent and material, then it is privileged, although he was mistaken in his belief.
    Although in an action for libel there is no finding as to the defendant’s belief, the appellate court will not, on an appeal taken on the judgment roll, without any case made, reverse the judgment because such fact is not found, there being nothing to show that it was not in fact proved.
    Appeal from a judgment in favor of the defendant, entered on the report of a referee. The action was brought by the plaintiff to recover damages fora libel written concerning him by the defendant, who was a justice of the peace.
    The plaintiff was an attorney-at-law, and acted as attorney for one Mary J. Brooks, against whom judgment was recovered before the defendant as justice of the peace, and appealed from such judgment to the Otsego County Court.
    In response to an order of the County Court requiring an-amended return, the defendant made such return, adding thereto the alleged libel, which consisted in stating that the plaintiff had slipped a bogus answer among the justice’s papers.

      U. M. Aylesworth and L. I. Bundy for the appellant.

      O. F. Matterson and James A. lynes for the respondent.
   Learned, P. J.:

The questions involved in this case are very ably discussed in the opinion of the learned referee.

After the defendant had made his return to the County Court, an order was made requiring an amended return and answers to several interrogatories. In response to this order the defendant answered the three interrogatories of the plaintiff in the original suit and signed his name and official title. Then he answered the four interrogatories of the defendant in the original suit, signing in like manner. Then he gave the testimony referred to in one of his answers. Then he proceeded: “ To the County Court of the county of Otsego: I wish to say to the court in addition to my amended return,” etc. Then followed the alleged libel; and the whole is signed by the defendant with his official title.

Now, it seems quite plain that this writing was in the course of a judicial proceeding. It is directed to the County Court. It is signed officially, and it is additional to the amended return. If it had been added to the answer to the third interrogatory, it would have been undoubtedly a part of a judicial proceeding. That it is added farther on in the paper cannot change its character.

If, then, the alleged libel was a part of the defendants return, it was privileged if it were material and pertinent, irrespective of motive. (Marsh v. Ellsworth, 50 N. Y., 309.)

It is further to be noticed, that in the case last cited the court comment on the case of White v. Carroll (42 N. Y., 161), and state that the rule there laid down is that, in the case of judicial proceedings, if the alleged libel is in fact pertinent and material, it is privileged ; and, further, that if the person who utters it believes it in good faith to be pertinent and material, then it is privileged, although he was mistaken as to its pertinency and materiality, and that it is a question for the jury whether he so believed.

Applying that rule to this case, then, it seems that if the alleged libel was pertinent and material to the inquiry it was privileged; and, further, that if the defendant in fact believed it in good faith to be pertinent and material, then, also, it was privileged. Of course, in the latter case, evidence of actual malice would tend to show that the defendant did not believe the alleged libel to be pertinent and material.

Now, on this appeal there is no case. The appeal is taken simply on the judgment roll. (Code Oivil Pro., § 998.) The plaintiff was nonsuited at the close of his evidence, which, nonsuit was a decision that on the whole evidence, as it then appeared, the action could not be maintained. It may be a matter of doubt whether section 998, limited to exceptions taken under section 994, is quite applicable to a nonsuit. The question on a nonsuit is as to the effect of the whole of the evidence, not as to the correctness of the referee’s conclusions on certain facts, which do not contain all the evidence.

At any rate, if the alleged libel was pertinent and material, or if the referee held, as matter of fact, on the plaintiffs showing that the defendant believed it to have been pertinent and material, it was privileged.

It is true that the referee makes no special' finding as to the defendant’s belief. But we do not understand that, on an appeal without a case made, we ought to reverse because some fact is not found by the referee which might really have been proved before him. And if we may be guided at all by the very able opinion of the referee, we find that he states that he thinks that, at least, the case fell under the class of “ conditionally privileged ” communications ; where the words are spoken in good faith and in the belief that they come within the discharge of a duty.” (Bradley v. Heath, 12 Pick., 163 ; Smith v. Higgins, 16 Gray, 251; White v. Carroll, ut supra.)

The case, therefore, stands thus: The alleged libel was made in the course of a judicial proceeding, therefore it was privileged; first, if it was pertinent and material; or, second, if the defendant in good faith believed it to be pertinent and material; and whether he did so or not is a question of fact. As we have not the testimony before us, we cannot say that the referee was not justified in holding that the defendant believed the alleged libel to have been pertinent and material. As in White v. Carroll {ut supra) the mode of answering and all the circumstances might determine this question of fact in the mind of the referee. If the appellant had thought that there was no evidence which could show the good faith of the defendant, he should have made a case. But we are asked to say that there was evidence enough to maintain the action, when we are not informed what the evidence was; and whether the referee held the alleged libel, being in a judicial proceeding, to be privileged because it wras actually pertinent and material, or because the defendant in good faith believed it to be so, we are not informed.

We think, therefore, that the judgment should be affirmed, with costs.

Present — Learned, P. J., and Boardman, J.; Bocees, J., not acting.

Judgment affirmed, with costs.


text:
    ADAM B. SMITH, as Administrator, etc., of JOHN NEWLAND, Deceased, Respondent, v. EMILY H. HATHORN, and Others, Appellants.

      Usury — proof of payment of unlawful interest — not conclusive — Evidence of conversation with a deceased pm'son — Interest.

    In the absence of any direct evidence of a usurious agreement, proof of subsequent payments of interest, in excess of the lawful rate, is not conclusive upon the question of usury.
    A mortgagor who, after conveying the mortgaged premises, has been made a party defendant to an action to foreclose the mortgage (but against whom no money judgment is asked, and by whom no answer has been put in) is incompetent to testify in favor of his grantee in regard to a personal transaction between himself and the plaintiff’s intestate.
    Seven per cent interest was allowed after January 1,1880, in accordance with the decision in Erwin v. Neversink Steamboat Company (23 Hun, 578).

      Appeal from a judgment in favor of the plaintiff, entered on the report of a referee.
    The action was brought to foreclose a mortgage executed by the defendant Frank H. Hathorn to John Newland, the plaintiff’s testator, December 1, 1874, to secure notes amounting to $6,000, and covered one undivided half of the property known as Hathorn Spring.
    The notes which were secured and the bond accompanying the mortgage were made by the mortgagors Frank H. Hathorn and Henry H. Hathorn.
    The defendant, Emily H. Hathorn, a subsequent grantee of the mortgaged premises, and the defendants, Stephen H. Richards and John S. Leake, subsequent incumbrancers, set up the defense of usury.
    The defendants Frank H. Hathorn and Henry H. Hathorn did not answer but suffered default.-
    No claim was made in the complaint for a personal judgment for deficiency against any of the defendants.
    The defendant, Emily H. Hathorn, on the trial offered to prove by the defendant, Henry H. Hathorn, that at the time of the loan it was corruptly agreed that Newland should receive and Hathorn ' pay ten per cent per annum for the money loaned. This was objected to as calling for a personal transaction between the witness- and the deceased mortgagee. The objection was sustained.

      Charles 8. Lester, for the appellants.

      A. Pond, for the respondent.
   Learned, P. J.:

This action was brought to foreclose a mortgage. The defense-was usury. The trial was had before the Special Term, and a decision was rendered for the plaintiff. There was no direct evidence-of a usurious agreement. The evidence tending to establish such an agreement consisted of proof that, in five instances, the defendants had, in fact, paid an amount of interest which, if it had been promised at the time of making the contract, would have been usurious. The obligations were notes at three months time, amofinting in all to $6,000. At about the time when the notes became-payable, the payee called for his interest and said it was $150. That amount was paid, and he gave a receipt therefore, stating the money to be for three months’ interest on the notes. The same amount was paid four times afterwards, each for three months’ interest. Letters from the payee to the debtors were given in evidence calling for $150 for three months’ interest on the notes; about six months after the last payment, asking for the interest, $300 ; and a year from the last payment another letter asking for the interest now due, $600.”

The counsel for the defendants insists that these payments and letters, with no contradictory evidence, show conclusively that a usurious contract was in fact entered into at the time when the notes were made.

The counsel for the plaintiff insists that the evidence of payments of interest at a usurious rate, subsequent to the making of the original contract, is not sufficient to establish that a usurious agreement was made at the time of the original contract.

Of course, it is not doubted, that to constitute usury the corrupt agreement must have been part of the contract. {Real Estate Trust Co. v. Keech, 69 N. Y. 248.) A voluntary payment of more than the legal rate would not be usury. Now, we think, that it is decided that subsequent payments of more than the legal rate are evidence, which should go to the jury on the question whether there was a corrupt agreement. They constitute some evidence and the court could not reject them. {Catlin v. Gunter, 11 N. Y., 368; N. Y. Firemens' Ins. Co. v. Ely, 2 Cowen, 678.) The plaintiff further insists that, even admitting this doctrine, still the evidence in this case was submitted to the court, in the absence of any jury, and that the decision of the court on the effect of the evidence is-conclusive.

This we think must be the true view of this case. While the-evidence of subsequent payments at a rate greater than lawful interest, is some evidence for a jury of a prior usurious agreement, we do not think such evidence can be held absolutely conclusive, so that a court could thereon direct a verdict for the defendant. And the learned justice who tried this case admitted and heard this evidence. It did not convince him that a usurious agreement had been made. The forming of inferences and conclusions from the evidence was his duty.

It may be urged by the defendant that these payments, in excess of the usual rate, would never have been voluntarily made; that they must have been made in pursuance of a prior agreement.

But we-must remember that if there was such an agreement, still, as that supposed agreement was usurious, the defendants would not have been legally bound to make the payments, and, therefore, even in that case they would have been voluntary.

And we must also bear in mind that, as usury is a crime, there is a presumption in favor of innocence. We think, therefore, that the proof was not such as to require us to reverse the finding of fact, of the learned justice. It is a case not of undisputed evidence establishing a certain fact, but of evidence from which a jury or a judge might or might not deduce a certain inference.

It is claimed that the evidence of Henry H. Hathorn was improperly excluded. • Hathorn was a party defendant. He was a proper party, because he was presumably liable on the obligations. There has been no severance of the action. If there had been a final judgment in favor of the defendants, he would have been a party to that judgment, for it is not a case where there could be a severance under section 456. Therefore he would be a party defendant in an action where it had been'adjudged against the plaintiff that the hond and mortgage were void for usury. How then could he thereafter be sued on his bond ? (Church v. Howard, 80 N. Y., 415.)

The appellant cites some cases to show that the defendant, Henry H. Hathorn, had no right to set up any defense in this action. But .none of them sustain this doctrine. National Fire Insurance Company v. McKay (21 N. Y., 191), and Agate v. King (17 Abb. Pr., 159), are cases of counter-claim, not of defenses. Payn v. Grant (30 Sup. C. N. Y., 134), is the case of an allegation of alleged prior rights. It is true that this defendant did not answer, and therefore no judgment could be had against him personally. But he might have answered, and, if he had done so a personal judgment might have been rendered. (Code Civil Pro., § 1207.)

The appellants claim that after January 1, 1880, interest should have been allowed only at six per cent. On that point there is a difference of opinion between the members of the court. But we conclude that it is best to follow the decision of the General Term in the First Department in Erwin v. Neversink Steamboat Company (23 Hun, 578).

The judgment appealed from is therefore affirmed, with costs.

Present — Learned, P. J., and Boardman, J.; Bockes, J., not acting.

Judgment affirmed, with costs.


author: Bockes, J.:

text:
    ELIZA MARVIN, as Administratrix, etc., of ALONZO D. MARVIN, Deceased, Respondent, v. FRANZ B. MULLER and WILLIAM HARMAN BROWN, Appellants.

      Master and semant— a master furnishing a perfect derrick and employing competent workmen is not liable for injuries to one of his workmen.

    An employer furnished to his workmen, who were all competent and fit persons for the employment, a derrick in all respects complete and in good condition. The derrick had, from time to time during the progress of the work, to be moved. Owing to one of the workmen having insecurely fastened a guy-rope attached to and forming part of the derrick, the derrick fell and killed the plaintiff’s intestate, who was one of the workmen engaged in doing the work.
    In an action brought by the legal representatives of the deceased:

      Held, that the employer was not liable in damages because of the death.

    Appeal from a judgment in favor of the plaintiff, entered on the verdict of a jury at the Greene County Circuit. The action was brought to recover damages caused by the death of the plaintiff’s intestate, resulting from the falling of a derrick.

      Tompkins Westervelt, for the appellants.

      Andrews & Edwards, for the respondent.

      In Holden v. Fitchburg Railroad Company (129 Mass., 268), the court, on page 278, lay down the rule as follows: “It being admitted that the derrick was suitable for the work for which it was designed, and there being no evidence of negligence on the part of the corporation in selecting or instructing the workmen, any negligence of theirs in setting up or using the derrick is the negligence of fellow servants of the plaintiff, for which the defendants cannot be held liable.” — [Rep.

   Bockes, J.:

The plaintiff’s intestate was injured while engaged in the defendants’ service, so seriously as to cause his immediate death. He, with other employes or servants of the defendants, was engaged on the occasion of the injury in raising and putting in place timbers or heavy materials in the construction of an addition to an ice-house. The immediate cause of the injury was an omission on the part of some or one of the workmen properly and safely to fasten at its foot one of the guys attached to the top of the mast of the derrick or hoisting apparatus furnished for the occasion; the purpose of which guys was to keep the derrick in proper position for use.

As the case is here presented on this appeal, it stands undisputed that the derrick in all its parts, the mast, the guys, the tackle, the entire hoisting apparatus and every part of it, was of good material, well constructed and, as an instrument, sufficient in all respects for the use in which it was to be employed; and further that the persons employed by the defendants in and about the work and in the use of the derrick were all competent and fit persons for the employment, tested by the rule of ordinary care and prudence. This is the condition of the case as it comes before the court on this appeal under the rulings of the learned judge before whom the trial was had, and on the concession of the plaintiff’s counsel then made. The case then is this: The plaintiff’s intestate with competent and fit workmen was employed by the defendants in the construction of an edifice, and with that end in view, they were provided with proper materials and appliances for its erection, and among them was a movable hoisting apparatus, complete and perfect in itself, to be used by the workmen in and about the work. This apparatus, called a derrick, was to be changed in its location by the workmen from time to time as the circumstances of its use should require, and was to be by them fastened in place — such anchoring was to be effected by firmly and safely fastening the lower extremities of the guy-ropes attached to and forming part of the derrick, to something fixed and stable by nature or to something made firm and stable by artificial means.

When a" change in the location of the derrick should be made, where it should be placed, and how anchored and fastened in place were left to the workmen to determine, and were matters of detail in the performance of the work in which they were engaged. The negligence charged consisted in an omission on the part of the workmen to make the fastening secure; and it should be here remarked that personal negligence on the part of the defendants, as distinguished from negligence by their employes, is not imputed in this case.

The rule of duty applicable to employers in cases like this in hand, has been repeatedly declared in the books, and is this: That the master or employer is responsible to his servants and employes for due care in .furnishing for their use in his service proper machinery and other materials and appliances necessary for the work to be performed, and also skillful fellow servants. If he fail in these obligations of duty to his workmen and in jury occurs to them by reason of such failure, he is responsible therefor, and this is the extent of his liability in this class of cases. (Besel v. N. Y. C. and H. R. R. Co., 70 N. Y., 173; Malone v. Hathway, 64 id., 5; Wright v. N. Y. C. and H. R. R. Co., 25 id., 562; Laning v. N. Y. C. and H. R. R. Co., 49 id., 532, 533; Flike v. B. and A. R. R. Co., 53 id., 549, 553; Coughtry v. G. W.Co., 56 id., 124; De Graff v. N. Y. C. and H. R. R. Co,, 76 id., 125.)

Now it must be noted that there was no defect in the derrick. It was fully adequate to the necessities of the work in all its parts as a hoisting apparatus. This was conceded or assumed on the trial. The injury was caused solely by an omission on the part of the workmen to safely fasten one of the guy-ropes, that is, to make the fastening in a suitable and proper manner. This was what the workmen were employed to do. It pertained to the use of the apparatus by them, and thus the injury was occasioned by the negligence of the workmen in the manner of its use. The defendants did not furnish to their workmen for use an imperfect, improper or unsafe apparatus. It only became unsafe when negligently or carelessly used. The appellant’s counsel well says that the workmen took what the master provided and proceeded to use it, and in the course of such use they so handled and applied it that the accident occurred, and one of the workman was injured; but not from any defect in what the master furnished. In King v. New York Central and Hudson River Railroad Company (4 Hun, 769) the derrick furnished to the workmen for use by them was itself imperfect and unsafe. The judgment in this case was reversed by the Court of Appeals (66 N. Y., 181), but not on the point here under discussion. (S. C., 72 N. Y., 607.) In Coughtry v. Great Western Company (56 N. Y., 121) the scaffold furnished by the employer was imperfect and unsafe in itself, and the court laid stress on the fact that it was so furnished to their workmen for use. The latter had nothing to do with its erection. It was provided for them as a place to work upon, and fell, owing to its defective construction. The case differs from the one here before the court in all its material features. As above suggested, here the derrick was fully adequate for the purpose for which it was to be employed. It was delivered over to the workmen to be used by them and, if properly used, its employment would be without other dangers than such as pertained to the service in which they were engaged. But they so negligently used it that injury resulted to one of their number. The injury resulted, therefore, from the negligence of the workmen themselves while engaged in a common employment. This conclusion renders it unnecessary to consider other grounds of alleged error urged by the appellants’ counsel. It follows that within the rule of law repeatedly laid down, liability therefor did not attach to the defendants.

The judgment should be reversed and a new trial granted, costs to abide the event.

Learned, P. J"., and Boardman, J., concurred.

Judgment and order reversed and new trial granted, costs to abide event.


author: Boardman, J.:

text:
    JOHN MARSH, Appellant, v. MENZO DUNCKEL, Respondent, Impleaded, etc.

      Bequest by surety to holder of note, to sue an insolvent maker — effect thereof— Insolvent— who is.

    The liability of a surety, upon a promissory note, is not lessened or terminated by the neglect of the holder to sue the maker upon the request of the surety, where it appears that the maker was at the time of such request and at all times thereafter insolvent.
    The term insolvent means one whose estate is not sufficient to pay his debts, or one who is unable to pay all his debts from his own means.
    Appeal from a judgment, entered on the verdict of a jury at the Otsego County Circuit, and from an order denying a motion for a new trial made upon the minutes of the court.
    This action was commenced to recover upon a promissory note, of which the following is a copy:
    $200. Cooperstown, April 2, 1877.
    On the first day of April next (1878), for value received, I promise to pay John Marsh, or order, two hundred dollars, with interest.
    HARYEY L. SMITH.
    MENZO DUNCKEL.
    ADELBERT SMITH.
    Issue was joined by the service of an answer by the defendant, Menzo Dunckel, alleging that he was an accommodation surety on the note, and that he had been released from liability on the same by reason of the neglect of the plaintiff to prosecute Harvey L. Smith, the principal debtor, upon being requested to do so by him.
    The cause came on for trial at the Otsego County Circuit, and the jury rendered a verdict in favor of the defendant.

      John Lewis, for the appellant.

      James A. Li/nes, for the respondent.
   Boardman, J.:

This action was against Dunckel, as surety upon a promissory-note given by Harvey L. Smith to the plaintiff. At the time when the note became due, and.at all times thereafter until this action was brought, Smith was insolvent, that is, he had not property-enough to pay his debts. After the note became due, Dunckel requested the plaintiff to proceed and collect this note. The plaintiff neglected to do so for a period of some six months. The defendant had a verdict.

Plaintiff’s counsel requested the court to charge the jury that he is entitled to recover, unless the principal debtor was solvent at the time when the request was made and subsequently and before the commencement of the action became insolvent. The court declined so to charge. The court did charge the jury that the principal debtor was insolvent when the note fell due, and had so continued thereafter. In various forms the fact of the continued insolvency of the principal debtor after the note fell due was insisted upon by the plaintiff, as evidence that no legal injury could have resulted to defendant from the neglect to sue upon defendant’s request. Exceptions to the refusal so to hold were duly taken. The learned judge left it to the jury to determine whether defendant had been injured by plaintiff’s neglect to collect the note as and when requested, -wholly ignoring the question of Smith’s continued insolvency and its legal effect.

The same question was presented by request to direct a verdict for the plaintiff upon the ground that there was no evidence showing that the principal debtor was solvent at the time the request was made, and able to pay his debts in the ordinary course of business, which request was declined.

The question is thus fairly presented whether there can be any injury which the law will recognize in the case of a neglect of the holder of a promissory note to sue it upon the request of a surety, the principal debtor being then and all times thereafter insolvent and unable to pay his debts in full when due.

It was conceded by the trial judge, upon a motion for a new trial, that the motion should be granted if Herrick v. Borst (4 Hill., 650) presents the true rule of law as it now exists in this State. ~We also think so. But we do not concur in his conclusion that the injury to the surety depends upon the possibility or probability that the debt might have been collected from an insolvent debtor. Nor do we think the recent decisions in the Court of Appeals intend to establish any such doctrine. Indeed, the case of Herrick v. Borst (supra) has been often cited as authority, as may be seen by reference to Wait’s Table of Cases and the supplement thereto, and in not a single instance has a doubt been thrown upon it as a sound authority. In Remsen v. Beekman (25 N. Y., 557) and Goodwin v. Simonson (74 id., 135) real estate was the primary fund for the payment of the debt, and the question was, whether the plaintiffs were responsible for losses falling upon the surety by depreciation in value of the property after it was the creditor’s duty to go on and collect. They were not questions of continued inadequacy of value in the real estate to pay its debts and incumbrances. The judges do say that some injury should be done to the surety, but they do not say a creditor loses his remedy against the surety if he fails, on request, to sue an insolvent principal debtor. In Colgrove v. Tallman (67 N. Y., 99) Judge Folger says it is the settled law of this State that the surety, while the principal is solvent and can be made to pay the debt, may require of the creditor that he collect it, and if the creditor neglect to do so, and the principal becomes insolvent and unable to pay, the creditor may not then have his debt of the surety, citing Herrick v. Borst as authority. Clark v. Sickler (64 N. Y., 231) holds only that the indulgence of a creditor to a debtor will not discharge a surety. These are all the authorities relied upon to change the rule as laid down in Herrick v. Borst. They do not profess to lay down any new or different rule nor do we think any was intended.

On the contrary, each of the following authorities recognize and adopt the law as laid down in Herrick v. Borst: Warner v. Beardsley (8 Wend., 194); Huffman v. Hulbert (13 id., 377); Thompson v. Hall (45 Barb., 214); Field v. Cutler (4 Lans., 195); Hunt v. Purdy (in Ct. of Ap., 11 Week. Dig. 82); Pain v. Packard (13 John. R., 174); King v. Baldwin (17 Johns. 392, 393); Maier v. Canavan (57 How., 506). The case of Pain v. Packard (supra) introduced a new rule into our law much doubted, the history of which is given in 1 Parsons on Notes and Bills, 237, note 7. But for that rule defendant would be remediless in this action.

“ The term insolvent usually means one whose estate is not sufficient to pay his debts, or one who is unable to pay all his debts from his own means.” (Riper v. Poppenhausen, 43 N. Y., 75.) One is solvent who has property sufficient to pay all his debts, and all his debts can be collected by legal process. (Herrich v. Borst, 4 Hill, 652, approved in Walkenshaw v. Perzel, 32 How., 240; Brouwer v. Harbeck, 9 N. Y., 594.)

The rule adopted is founded upon principle. There can be no partial dischai-ge of a surety for such a cause. The plaintiff must recover his whole debt or he mus't wholly fail. The jury cannot speculate how much might have been collected if the creditor had diligently obeyed the request and give a verdict for the balance. Such an investigation would lead to wild and vague conjecture subject to no legal restraints whatever.

An investigation of the evidence might show that the principal debtor’s condition as to property was as good when this action was brought as when the note fell due ; that the proportion of debts to assets was equally or more favorable to the creditor when the action was brought; that the only difference arose from the securing some unsecured debts, the payment of others and the earning or creating by growth other assets in place of those spent or appropriated. If that should prove to be the case, how can it be claimed that the surety has been injured by the delay unless he has the right to demand that this debt shall be fully paid at the expense and loss of other creditors of the principal debtor. Such a claim is a violation of the principle that equality is equity.

In short we are led to the conclusion that the learned justice was misled, by ambiguous expressions in the books, into the adoption of erroneous views of the law, and that he erred in refusing to direct a verdict for. the plaintiff, upon the conceded facts as they existed when application for such verdict was made by the plaintiff and also in his refusals to charge.

For this reason the judgment and order must be reversed and a new trial granted, costs to abide the event.

Learned, P. J., and Bockes, J\, concurred.

Judgment and order reversed, new trial ordered, costs to abide event.


author: Boakdman, J.:

text:
    SUSAN A. JOHNSTON, Respondent, v. JUDSON SMITH, Appellant, Impleaded, etc.

      Insurance policy is assets — examination by surrogate before issuing letters — Presumption arising from the issuing of letters — Estoppel on piincipal and sureties on administrator’s bond — decree of surrogate, conclusive on sureties.

    The interest of B., in an insurance policy issued upon the life of A., as one of the parties to whom the amount provided to be paid on the death of A. is made payable, constitutes assets within the definition of the Revised Statues, and gives jurisdiction to the surrogate of the county in which the policy is, to issue letters of administration upon the estate of B.
    It is not essential that the examination under oath, which the surrogate is authorized to make before issuing letters of administration, should be embodied in a verified petition.
    The legislature has power to authorize a surrogate to sign orders entered, but left unsigned by his predecessor in office.
    It is presumed, where letters of administration are issued, that proper evidence of the facts giving jurisdiction to the Surrogate’s Court, was given before the surrogate.
    Letters of administration, regular Apon their face, are presumptive evidence of the legal appointment of the administrator named therein.
    It will be presumed, in the absence of proof to the contrary, that an administrator of an estate has taken the oath of office.
    The execution of an administrator’s bond precludes both principal and sureties from gainsaying the surrogate’s jurisdiction, in any proceeding taken against them for the purpose of obtaining the assets which the appointment and the bond have enabled the principal to receive.
    The decree of the surrogate, upon an accounting by an administrator, is conclusive both against the administrator and also against his sureties, in an action against them upon the administrator’s bond.
    Appeal by the defendant, Judson Smith, from a judgment, entered on the decision of the court in favor of the plaintiff.
    The aqtion was brought against Judson Smith, the appellant, and Barna B. Johnson and Yelles Belcher, to recover on an administrator’s bond, signed by defendant Johnson as principal, and by the other, defendants as sureties. The defendants appeared and defended separately. Trial was had at the Broome Circuit, before Mr. Justice Follett, without a jury. Judgment was entered on his. decision for the plaintiff, and the defendant, Smith, appealed from the judgment.

      The court found among other things as follows : That Susan A. Johnston is the widow of Samuel T. Johnston, and that Lowery S. Johnston, Samuel C. Johnston, Ida M. Johnston and Martin D. Johnston were children of Susan A. Johnston and Samuel T. Johnston. That on February 1, 1866, Samuel T. Johnston and Susan A. Johnston, his wife, were residents of the borough of Susquehanna, county of Susquehanna, State of Pennsylvania, where Lowery S. Johnston resided and was an inhabitant. ^
    That on February 1, 1866, said Lowery S. Johnston died intestate at said borough of Susquehanna, Susquehanna county, Pennsylvania.
    That in August, 1868, Samuel T. Johnston and Susan A. Johnston removed to the city of Binghamton, in the State of New York, and became residents thereof, and that on March 24, 1869, Samuel T. Johnston died at the city of Binghamton, New York.
    That on July 24, 1863, the New York Life Insurance Company issued a policy upon the life of Samuel T. Johnston for the sum of $1,500, payable to his children, Samuel C., Ida M., and Lowery S. Johnston, or legal representatives, share and share alike. Shortly after the death of Samuel T. Johnston the insurance company paid to Barna R. Johnston the amount of the policy. One-third of this amount was paid to him as administrator of Lowery S. Johnston, and two-thirds of it to him as guardian of Samuel C. and Ida M. Johnston, and that when said Samuel T. Johnston removed.to Binghamton from Susquehanna he brought such insurance policy with him, and it was in Broome county when he died.
    That on May 6, 1869, said Susan A. Johnston verified and presented to the surrogate of the county of Broome a petition praying that letters of administration be issued upon the estate of Lowery S. Johnston, a copy of which petition is here set forth as follows:

      To the Surrogate of the County of Broome, N. Y.:

    The petition of Susan A. Johnston of the city of Binghamton, in the county of Broome, respectfully showeth, that Lowery S. Johnston of the borough of Susquehanna, in the county of Susquehanna, and State of Pennsylvania, died in the said borough of Susquehanna on or about the first day of February, in the year of our Lord one thousand eight hundred and sixty-six; that at the time of his death he was an inhabitant of the county of Susquehanna aforesaid ; that he left .no will as far as your petitioner has heard or been able to discover ; that he left him surviving a -father, since deceased, your petitioner his mother, and brothers and sisters, to wit: Samuel O. Johnston, Ida M. Johnston and Martin B. Johnston ; and your petitioner further showeth that all the goods, chattels and credits of the said deceased do not exceed in value the sum of $500, and your petitioner prays that letters of administration of the goods, chattels and credits of the said deceased may be granted by the surrogate to Barna B. Johnson, the general guardian of Samuel O., and Ida M. Johnston aforesaid.
    SUSAN A. JOHNSTON.
    Hated May, 5, 1869.
    Broome County Surrogate’s Court, ss. :

    On the 5th day of May, 1869, personally appeared before me, in open court, Susan A. Johnston, the above named petitioner, and made oath that the matters set forth in the above petition are true to the best of the knowledge, information and belief of said petitioner.
    NEWELL H. WHITNEY,

      Surrogate's Clerk.

    Broome County, ss. :

    I, Barna B. Johnson, do swear that I will well, honestly and faithfully discharge the duty of administrator of the estate of Lowery S. Johnston, deceased, according to law.
    Subscribed and sworn the day of 18 before me.
    Indorsed as follows:
    Surrogate’s Court : Lowery S. Johnston, deceased. Petition for letters of administration, filed May 5, 1869.
    No citations were issued upon such petition.
    That on May 11, 1869, an order was entered in the order book relating to the administration of estates of which the following is a copy:
    At a Surrogate’s Court, held at Binghamton, in and for the county of Broome, on the 11th day of May, 1869 — present, H. S. Gris-wold, surrogate.
    In the matter of the administration of the goods, chattels and credits w-hieh were of Lowery S. Johnston, deceased.

      On reading and filing the petition of Susan A. Johnston, the mother of Lowery S. Johnston, late of the town of Susquehanna, Pa., in the county of Susquehanna, Pa., deceased, praying that the administration of all and singular the goods, chattels and credits which were of said deceased, be granted to Barna B. Johnston, and it appearing that no person has a prior right thereto ; and a bond with two competent sureties, as required by law, having been ■filed, and the oath of office duly taken and subscribed by said Barna B. Johnston, who is in all respects competent to act as administrator of the personal estate of said deceased, it is ordered that the prayer of the petition herein be granted, and that letters of administration be issued to said Barna B. Johnson; and it is further ordered that and of said county, two disinterested persons, be, and they are hereby appointed appraisers to estimate and appraise the personal property of the deceased.
    W. B. EDWARDS,

      Surrogate.

    Signed April 23, 1880, by me.
    W. B. Edwards,

      Surrogate.

    Said order, at the time it was issued, was not signed by Horace S. 'Griswold, the then surrogate of the county of Broome. That in August, 1870, Horace S. Griswold died, and in August, 1870, Benjamin N. Loomis became the surrogate of the county of Broome by appointment, and held until January 1, 1871, when William B. Edwards became surrogate of said county, and has continued to be the legal and acting surrogate of said county until this day, having been once re-elected to fill the second term of office meanwhile. That April 30,1880, William B. Edwards signed the aforesaid order, pursuant to chapter 9 of the Laws of 1874, also pursuant to chapter 298 of the Laws of 1878, and other statutes that may relate thereto. That on May 7, 1869, letters of administration were issued, signed and delivered by said Horace S. Griswold, surrogate as aforesaid, to Barna B. Johnson.
    That upon due inquiry and search made by the clerk of the Surrogate’s Court of the county of Broome, no oath of Barna B. Johnson as administrator can be found in the. records of said office, but that an oath prepared in'the usual .form and annexed to the petition, but unsigned, is found.
    That on May 5, 1869, Barna R. Johnson, as principal, and Judson Smith and Yelles Belcher, as sureties, signed a bond in the usual form.
    That February 2, 1880, Barna R. Johnson verified and filed a petition in the Surrogate’s Court of Broome county, asking for an accounting upon the estate of said Lowery S. -Johnston, and on April 23, 1880, upon'the aforesaid petition, the surrogate of the county of Broome entered a decree, by which it appeared'that there was a balance of the estate of said Lowery S. Johnston in the hands of his administrator.
    A copy of this decree was served upon Barna R. Johnson, May 7, 1880.
    April 24, 1880, the said surrogate issued a certificate setting forth the provisions of the decree as to the payment of such balance.
    This certificate was filed in the office of the clerk of the county of Broome, April 24, 1880, and the same was duly entered and docketed in the books kept for docketing judgments.
    April 26, 1880, an execution, in the usual form, was issued upon said decree and certificate to the sheriff of the county of Broome. May, 7, 1880, the sheriff of the county of Broome returned said execution wholly unsatisfied, which execution and return thereon were filed in the office of the clerk of the county of Broome, May 7, 1880.
    April 24, 1880, the plaintiff filed a petition in the office of the surrogate of the county of Broome, asking that the bond be assigned to the plaintiff for the purpose of prosecution as far as her interest therein might appear.
    That on May 7, 1880, the surrogate of the county of Broome made and entered an order assigning the bond.
    That the usual practice of the Surrogate’s Court of the county of Broome, in 1869, was for the administrator to subscribe the oath prepared in blank upon the paper containing the petition.

      G. L. /Sessions, for the appellant.

      Clark, Brown <& Babcock, for the respondent.
   Boakdman, J.:

The insurance policy held by Samuel T. Johnston, in Broome county, at the time of his death thereby became assets, in part belonging to Lowery S. Johnston’s estate. Until Samuel T. Johnston’s death it was a contract imposing upon the insurance company the obligation to pay to the representatives of Lowery S. Johnston a certain sum of money upon certain terms and conditions. It was a thing in action and an asset within 2 Revised Statutes, *83, § 6, sub. 8. Such asset was within the county of Broome and came there after the death of Lowery S. Johnston. (2 R. S., *73, § 23, sub. 4.) The surrogate of Broome county, therefore, had jurisdiction of the subject-matter.

By section 26 of 2 Revised Statutes, *74, the surrogate is authorized to make preliminary examinations under oath as to essential facts before granting letters of administration. In practice it is usual to embrace such facts in a sworn petition. It is not, however, deemed essential that they should be so stated and, in the absence of proof to the contrary, it may be presumed, in favor of the performance of official duty and of the regularity of official acts, that proper evidence of jurisdictional facts was given before the surrogate. Especially is this so in view of the recitals in the letters of administration. (WestCott v. Cady, 5 Johns. ch., 334, 343; Bolton v. Brewster, 32 Barb., 389, 394; Shuyer v. Richman, 16 Ohio St., 455 ; Van Deusen v. Sweet, 51 N. Y., 385 ; Porter v. Purdy, 29 id., 106.)

The letters issued to Mr. Johnson, as administrator, are regular upon their face, and are presumptive evidence of his legal appointment. (Belden v. Meeker, 47 N. Y., 307, 310; Farley V. MCConnell, 52 id., 630.) No evidence is given to overthrow such presumption.

Such presumption renders it unnecessary to notice the several objections taken to the order granting letters, to the letters granted,, to the bond and to the issuing of letters without citation. But a. word may be said as to each.

The order was made valid and effectual, under Laws of 1874r (chap. 9), when signed by Judge Edwabds.

It will be presumed, in the absence of proof to the contrary, that Johnson took the oath of office. (Cases cited supra, and Dayton v. Johnson, 69 N. Y., 419, 426.) Also that the hond was duly acknowledged, and that the certificate was not signed, by mistake or oversight; besides it would be an irregularity only, and not fatal to the proceedings. (Bloom v. Burdick, 1 Hill, 134; Lawrence v. Parsons, 27 How., 29; Skellinger v. Yendes, 12 Wend., 306; Van Deusen v. Hayward, 17 id., 67.) So, too, of the neglect to issue citations. (James v. Adams, 22 How., 409.)

Mr. Johnson is the legal administrator and his sureties are estopped from denying that fact. It is recited in the bond signed by them. The execution of the bond precludes both principals and sureties from gainsaying the surrogate’s jurisdiction in any proceedings for the assets ■ which the appointment and bond have enabled the principal to receive.” (People v. Falconer, 2 Sandf., 83 ; Field v. Van Cott, 15 Abb. [N. S.], 349.)

The decree of the surrogate upon the accounting is equally conclusive against Johnson and his sureties in this collateral action. {Casoni v. Jerome, 58 N. Y., 315; Kelly v. West, 80 N. Y., 139 ; Dayton v. Johnson, 69 id., 426.)

"We conclude the surrogate of Broome county had jurisdiction to issue letters of administration ; that letters were duly issued; that the bond is good and valid, and that the surety is bound in the action by the accounting had in the Surrogate’s Court as to the amount of Johnson’s indebtedness to plaintiff. The apparent defects and omissions are not such as affect the surrogate’s jurisdiction or render void his proceedings. The surety should, therefore, be held to the responsibility which he assumed voluntarily when he signed the bond.

The judgment should be affirmed, with costs.

Learned, P. J., and Bogkes, J., concurred.

Judgment affirmed, with costs.


author: Boardman, J. :

text:
    ELIZABETH C. BENNETT and Others, Appellants, v. HIRAM LEACH and Others, Respondents.

      Judgment in ejectment against a tenant— not conclusive upon Ms landlord.

      A judgment in ejectment, recovered against a tenant in possession of the land in question, is not binding upon his landlord (not a party to the action), although notice of the pendency of the action was given to him by the tenant, and he refused to defend.
    Appeal by the plaintiff from a judgment dismissing the complaint as to Hiram Leach and wife, and for costs.

      Wm. (& Geo. Youmcms, for the appellants.

      Arthur More, for the respondents.
   Boardman, J. :

This action was brought for the partition of real estate. The defendant Leach, by his answer, claimed to hold and own the whole property in fee, and that plaintiffs had no title thereto. The appeal is from the judgment rendered in favor of the defendant Leach upon the decision of Mr. Justice Follett. By that decision it apjiears that the plaintiffs in several actions of ejectment brought against one Mathewson,. a tenant in possession under defendant, recovered judgment by default for an undivided share of the lands in question, that Mathewson gave notice of the pendency of the actions to Leach who refused to defend; that Leach was not made a party defendant in such actions, and did not appear or defend the same; that at and prior to the time of the recovery of said judgments the defendant Leach had a perfect title and possession to the premises in question and to the whole thereof, and that such title and possession in Leach was not affected or in anywise impaired by the judgments in the actions of ejectment against Mathewson his tenant. This last conclusion is the one assailed upon this appeal, the appellants contending that such judgments are conclusive against defendant Leach. Defendant Leach could have been made a party defendant to those actions of ejectment. (Code of Pro., sec. 118; Fosgate v. Herkimer Co., 12 N. Y., 580; Finnegan v. Carraher, 47 id., 493.) He would then have been bound by it. The action being against Mathewson, his tenant, and Leach having refused to appear or defend, the judgments were only conclusive against Mathewson and those claiming under him subsequent to the commencement of the actions. (2 R. S., * 309, secs. 36, 38.) It was not evidence against Leach. (Ainslie v. Mayor, etc., 1 Barb., 168; Thompson v. Clark, 4 Hun, 164; Leland v. Tousey, 6 Hill., 328; Sheridan v. Andrews, 49 N. Y., 484.) Leach was not a party to the judgment nor a privy.

The notice given by Mathewson to Leach of the pendency of the ejectment action was effectual for certain purposes after judgments recovered therein. Mathewson could have defended against an action by Leach for rent, and the judgment with the notice would have been conclusive upon Leach. So Mathewson could recover damages from Leach for any breach of covenants in the lease upon the same evidence. But that arises from the duty of Leach to defend Mathewson’s possession under the lease.

Upon the facts found as contained in the decision the defendant Leach showed a perfect title, and the plaintiffs failed to show any title as against defendant Leach.

The judgment must therefore be affirmed, with costs.

Learned, P. J., and Bockes, J., concurred.

Judgment' affirmed, with costs.