text:
    Agnes Zoliewski, Adm’rx, Resp’t, v. The New York Central & Hudson River Railroad Co., App’lt.

      (Superior Court of Buffalo, General Term,

      Filed February 3, 1893.)

    Negligence — Railroad crossing.
    In the early morning, when it was quite dark, plaintiff’s intestate, with another man, attempted to pass over defendant’s tracks at a crossing, when he was struck by an engine backing rapidly on the third track, without any light on the rear end or giving any signals. Plaintiff’s evidence tended to show that they made observations before crossing each track. The evidence as to the distance objects could be discerned was conflicting. Held, that there was sufficient evidence to justify the jury in finding an absence of care by defendant, and tliat whether the deceased exercised due care was one for the jury to determine.
    Appeal from a judgment entered upon the verdict of a jury and from an order denying defendant’s motion for a new trial made upon a case and exceptions.

      Edward T. Durand (William Armstrong, of counsel), for resp’t; Ashbel Green (Charles A. Pooley, of counsel), for appl't.
   Hatch, J.

The evidence in this case tended to establish that the agents of defendant caused to be run, at a rapid rate of speed, backwards, a locomotive engine over and upon its tracks crossing a public street in the city of Buffalo, at an early hour in the morning, when it was quite dark, without at the time exhibiting any light upon its rear end, or giving any signal by bell or whistle or otherwise of its approach beyond the noise attendant upon its running. This authorized the court to submit, and the jury to find, negligence in the management and operation of the engine by defendant. It only remains to be seen if the deceased was guilty of any act of negligence upon his part. Upon this subject the evidence was to the effect that deceased, in company with another man, approached the crossing, with which he was familiar, on foot. Three tracks of defendant crossed the street, two tracks were passed in safety; upon the third deceased was killed. Before entering upon and before crossing each track, observation was made.

There was a conflict of testimony as to the distance objects could be discerned, ranging from three to 200 feet. The testimony of deceased’s companion tended to show that both he and deceased looked and listened before attempting to cross the track upon which they were struck, saw nothing, and heard nothing from the engine. A man about three feet in front of deceased, passing along the street, in the same direction, testified that he first saw the engine when it was about three feet away, and on cross-examination that he first saw it twelve to fifteen feet away. Other witnesses state that they saw deceased, when struck, from a distance of twenty to sixty feet away, and that they could see the engine for that distance. Othérs testified that objects were visible 200 feet away.

Upon this testimony the court submitted the question of due care upon deceased’s part to the jury, whether he looked and listened for the engine, or whether, if he exercised due care, under all the circumstances, he ought to have seen the approaching engine. The charge was quite as favorable to defendant as it was entitled, no complaints were made or exceptions taken by its counsel thereto. I think the case, under all the evidence, was properly-submitted. The evidence justified the jury, as before observed, in finding absence of care by the defendant; whether under the existing darkness deceased could distinguish the engine, or if able to do that, he could distinguish its unlighted end, and determine upon the instant that it was about to cross the street, I think, were questions for the jury.

It is quite possible that under the darkened light an object could be discerned some feet away, but whether distinctly or not is not certain, or whether it was at the time stationary or in mo- • tion might be difficult of determination, while the deceased was required to act at once. It seems, therefore, that whether he acted as a prudent and careful person would act under the circumstances was a question of fact. Criticism of the testimony by defendant was proper for the consideration of a jury, and is not improper here, yet upon this record the court would not be justified in disregarding it. An examination of the exceptions to the admission of testimony has been had, but no substantial error is found therein. The judgment and order appealed from is, therefore, affirmed, with costs.

White, J., concurs; Titus, Oh. J., hot sitting.


source: Caselaw Access Project

author: Titus, Ch. J. Hatch, J.

license: Public Domain

text:
    Harvey J. Hurd et al., App’lts, v. George Newbrook, Resp’t.

      (Superior Court of Buffalo, General Term,

      Filed February 3, 1893.)

      1. Guaranty — Consideration.
    A delivery of goods to a third party on the faith of a guaranty of payment previously executed on presentation of a bill of said goods, is a sufficient consideration for such guaranty.

      2. Same — Construction.
    The guaranty provided for payment “ according to the terms of payment agreed to in the building contract.” Such contract provided for payments as the work progressed, and final payment on completion of the work. Before the final payment the contractor abandoned the work and the owner completed it at an expense which left more due on the contract than the balance on said bill. Reid, that the reference to the building contract was to determine the times when payments fell due and for no other purpose, and that notwithstanding such abandonment the guarantor was liable.
    Appeal from judgment of the municipal court of Buffalo in favor of defendant.

      Howard & Clark, for app’lts; Adelbert Moot, for resp’t.
   Titus, Ch. J.

This action was brought in the municipal court to recover against the defendant for a bill of lumber furnished to one Abraham Walty on a guaranty of payment. It appears that on the 23d day of July, 1891, William G. Newbrook, son of defendant George Newbrook, contracted with Abraham Walty to build him a house according to certain plans and specifications contained in a contract, the work and material to be furnished by Walty. It was agreed that Walty should receive $1,450 for the job, $500 when one-third of the work was done, and $500 more when two-thirds of the work was done, and $450 to be paid to said Walty when the house was completed and ready for occupancy. • Some days after the date of this contract the plaintiffs made out a bill of lumber necessary to build the house and presented the same to George Newbrook for his approval and guaranty. The defendant wrote upon the bill the following: “I approve of the above bill amounting to $460 and agree to see it paid according to the terms of payment agreed to in the building contract. (Signed) George Newbrook, July 29, 1891.” Thereupon the plaintiffs furnished to Walty the necessary materials for building the house. On the 19th of October, and before Walty had completed his job according to his contract, he absconded, leaving the building unfinished and without having paid the plaintiffs the full amount of their bill. William G. Newbrook, the owner, then proceeded to complete the house, at a cost of $275.42. There still remained, at the time of the commencement of this action, unpaid on the plaintiffs’ bill, $119.02. It is not quite clear from the evidence given on the trial how the account between Walty and William G. Newbrook stands. He testifies that Walty abandoned his contract about the x20th of October and that $1,080.60 was paid to him up to the 19th of October. Then he says the balance of the plaintiffs’ bill was $160 at that time; that he accepted the different liens and orders, and above that he had $242.40.

The accepted orders were $65 for hardware and two liens for $53.58 and $75.20, respectively. Then after completing the house for $275, he paid the plaintiffs $40.98 on their bill, which made the amount of the contract price, namely, $1,450. It is not stated anywhere in the case that the thousand and eighty dollars and sixty cents paid to Walty includes the two payments to the plaintiff, but it probably does include the $300 paid them, as they received that amount before the date of his abandoning the contract, although they claim to have received it in checks from Mr. Newbrook. On his cross-examination the witness was asked by the defendant’s counsel: “ Leaving the liens out of the question, how much money has been paid out, first and last, on that house, all of it?” and the answer was, “ $1,450.” This is exclusive of the two liens, which amount to $128.83.

The validity of the liens and the amount unpaid to Walty, in the view which I have taken of this case, cannot be of much importance. The liens can only be enforced to the extent of any unpaid balance due the contractor, and it is apparent that at the time of filing the liens the contractor had been overpaid. It thus appears that William G. Newbrook has paid the whole contract price for building his house, leaving the $119.02 of the plaintiffs’ claim unpaid. But I do not think the question is to be determined either from the fact that the contract price has been paid or of the failure of Walty to complete the work according to the terms of his contract. It is claimed that the guaranty was without consideration, and cannot be enforced against the defendant I think the delivery of the lumber was a sufficient consideration for the guaranty. Before the plaintiffs would deliver the lumber they had a bill of it made out and submitted to the defendant for approval. On his approving and agreeing to see that it would be paid, the lumber was delivered to the contractor, on the faith of the guaranty. Under the authorities, it was a sufficient consideration to uphold the undertaking of the defendant. Beakes v. Da Cunha, 126 N. Y., 293; 37 St. Rep., 14.

According to the contract of guaranty the defendant agreed to see the amount of the bill paid according to the terms of the contract, and it is necessary to examine the contract to determine how the payments were to be made. It appears that $500 was to be paid when the work was one-third completed, and $500 more when two-thirds of the work was done, and $450 was to be retained by New brook until the work was finally completed, so that when the house was completed the whole amount became due. It is claimed that because the contractor, Walty, did not complete the work, but abandoned the same, and Newbrook was obliged to complete it, that there was no compliance with the terms of the contract, and hence nothing became due on the last payment I do not think such a construction of the contract of guaranty is either just or tenable. The plaintiffs were not a party to the contract with Walty. It was no concern of theirs that the work was not well or completely done, and a failure of a contractor to carry out his contract cannot operate to deprive the plaintiffs of their remedy on the guaranty. We resort to the contract only to determine or to ascertain the terms of payment, and they are to be construed as a part of the guaranty for that purpose. It does not create a condition precedent to the right of the plaintiff to maintain the action against the surety. It simply fixes the terms of payment and the time within which it is to be made, so that when the work was done, no matter who completes it, the surety becomes liable. Any other construction would put it in the power of the contracting parties to defeat any person who might furnish material relying upon a guaranty for payment Evidently the defendant was interested in giving the contractor Walty credit with the plaintiffs, that, he might go on and build the house for his son.

The lumber was furnished by the plaintiffs, relying upon the assurance expressed in the writing of the defendant, that Walty would pay, or, in default thereof, that he would pay the amount of their bill. The contract of guaranty, construed with the undertaking of Walty, is a complete and perfect contract, fulfilling all the essential requirements of the cases cited by the counsel for the defendant. Since the amendment to the Revised Statutes in 1863, it is not necessary to express a consideration in the instrument guaranteeing against the default of another, and the cases cited upon that question are not in point here.

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

Hatch, J.

I concur in the result reached by Titus, Oh. J., upon the ground that the guaranty, in this case, is to be construed as referring to the building contract to determine the time when payments fell due, and for no other purpose. And, as it appears the contract was finished to the extent of entitling Walty to two payments, it then became the right of plaintiffs, under the guaranty, to demand pay thereon, and that, upon the proof here, without reference to the subsequent acts of Walty; for, if all the damage occasioned by Walty’s breach of contract be deducted, there still remained, and was paid to him, a sum sufficient, and more than sufficient, to discharge plaintiff’s debt Under this construction, it is clear that a time came when Walty was entitled to demand a sum of money, due upon the contract, exceeding the amount of plaintiffs’ bill. When that moment arrived, defendant’s guaranty attached, and his contract then was to see plaintiffs paid. There is no hardship in this, for defendant then had it in his power to protect both himself and plaintiffs. He chose to permit payment to be made to Walty without seeing that it was properly applied, and thereby assumed the risk of Walty’s default. This construction was overlooked by the court below, and in consequence the judgment must be reversed, with costs.

White, J., concurs in result.


author: Titus, Ch. J.

text:
    The City of Buffalo, Resp’t, v. Frederick Schleifer, App’lt.

      (Superior Court of Buffalo, General Term,

      Filed February 3, 1893.)

    Municipal corporations- Ordinances — Hawkers and peddlers.
    An ordinance prohibiting the hawking or peddling of fruits, garden or farm produce in the public streets between five in the morning and one in the afternoon, is clearly within the power conferred by charter of Buffalo upon the common council to enact ordinances to license and regulate hawkers and peddlers, and to regulate the sale of meats, fish and vegetables, and is not an unreasonable one, or in restraint or prohibition of trade.
    Appeal from judgment of the municipal court of Buffalo in favor of plaintiff.

      George M. Browne, for resp’t; George A. Lewis, for app’lt.
   Titus, Ch. J.

This action was commenced in the municipal court by civil warrant against the appellant for a violation of § 4, chapter XVII, of the city ordinances.

By subdivision 6, § 17 of title 2 of the charter, the common council is authorized to enact ordinances “ to license and regulate cartmen, owners and drivers of all vehicles used for the transportation of passengers or property for hire and to fix the rates of compensation to be taken by them, to license and regulate plumbers, auctioneers, butchers, hawkers, peddlers and pawnbrokers * * etc.” By subdivision 8 of the same section the common council mav “ regulate the sale of meats, fish and vegetables.”

Under one or both of these provisions the common council has enacted ordinances prohibiting and regulating various businesses relating to health, good order and government of the city. Among others it is enacted that, “No person or persons shall hawk or peddle fruits, garden or farm produce in the public streets of the city of Buffalo between the hours of five o’clock in the morning and one o’clock in the afternoon of each day, under a penalty of ten dollars for each and every offense.” Section 4, chapter XVII, of the city ordinances.

The defendant has a peddler’s license issued pursuant to the charter, authorizing him to sell green garden and farm produce throughout the city, subject to the laws and ordinances of said city, and to all existing regulations imposed by the common council.

On the 23d day of June, 1892, the defendant was peddling strawberries and vegetables on Ellicott street, a public street in the city, between ten and eleven o’clock in the morning, visiting from house to house and selling to the inhabitants his fruits and vegetables. These are the acts complained of which are claimed to constitute a violation of the ordinances of the city and for which he was brought before the municipal court to answer.

The power to license hawkers and peddlers existed at common law and has been exercised from time immemorial in this state either under the common law or by virtue of an act of the legislature.

This power has been delegated by the legislature to the municipalities of the state, and within the limits of the various cities that power is now exercised by the city authorities.

It is not claimed that the defendant is not a peddler within the meaning of the ordinance, nor that the city has not power to regulate and license peddlers, but it is insisted that the ordinance is not a regulation, but an unlawful restriction upon the right of the defendant to use the public streets of the city to peddle and sell farm produce, and that it is a prohibition in that it forbids the sale •of farm produce by peddling on the streets by any person within the hours of five o’clock in the morning and one o’clock in the afternoon.

It may be assumed for the purpose of the question here presented that the common council would not have the right to prohibit the peddling of farm produce at any time, although the question is not before us and we do not intend to pass upon it. The ■sole question presented for decision is, is the regulation a reasonable one, or does it prohibit the carrying on of a lawful business? It needs no citation of authority to hold that where the common council is empowered to regulate,traffic, the regulation to be upheld must be reasonable in view of the evil sought to be remedied. Dunham v. Trustees of Rochester, 5 Cow., 462; Dillon on Municipal Corporations, § 357.

We cannot agree with the counsel for the defendant that the ordinance is prohibitory or in restraint of trade and void. It is clearly within the power conferred upon the common council by the charter and such provisions have been held not to be in restraint of trade. City of Brooklyn v. Cleves, Hill & Denio Supplement, 231; Brooklyn v. Breslin, 57 N. Y., 591.

In the Village of Buffalo v. Webster, 10 Wend., 100, it was held that an ordinance which enacted that it should not be lawful for any person within the limits of a corporation, during certain months, to hawk about or sell by retail any kind of fish, beef, pork, lamb or mutton, except at the public markets or within certain limits around the same, was a valid ordinance; that a bylaw for the regulation of trade and imposing particular restraints as to time and place was good and not in restraint of trade, but a regulation of that right

We think the ordinance is within the power conferred upon the common council by the legislature and fairly deducible from the language used, to license and regulate peddlers. It does not seem, in view of the circumstances of this case, that it is unreasonable or open to the criticism of the learned counsel in his brief. It does not follow that because the council may fix a time within which certain things are not to be done,' it may prohibit them altogether. The city has established, at large expense, markets where the people may conveniently be provided with, everything necessary for family use, and where hucksters and peddlers may vend their wares. It has established a system of food and meat inspection, and prescribed ordinances against the sale of unhealthy or diseased meats and vegetables for the health, comfort and convenience of the citizen. Its officers and employes are there to see that only fresh vegetables and healthy meats are sold, and it would seem not unreasonable that during market hours persons should be permitted to sell only at such places as the city has or may designate. It is a safe and reasonable police regulation, intended to promote the health and well being of all. The street is a public highway intended for and devoted to the transport of goods and passengers from place to place, and not a public mart where goods may be exposed for sale without regulation or restriction by the public authorities, and when they have, in the language of one of the cases above cited, only imposed a restraint as to time and place in which hucksters and peddlers may ply their vocation, it does seem to us to be neither unreasonable nor in restraint of trade or in violation of any right or privilege which the citizen has in the public highway.

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

Hatch and White, JJ., concur.


author: Maynard, J.

text:
    In the Matter of the Judicial Settlement of the Accounts of William L. Denton, Ex’r.

      (Court of Appeals,

      Filed March 14, 1893.)

    1. Will — Construction of.
    Testator, by his will, after providing a fund, the income of which was to he paid to his wife and daughter, then unmarried, during their lives, gave the residue of his estate to his three sons and a married daughter, and provided that in the case of the death of either leaving issue before e ther of the different parts could be divided, such issue should take the parent’s share; “if without issue, then the survivors to take.” One of the sons died before the widow and daughter, leaving no issue, his children having died before him. Held, that his share went to the survivors, and no part of it to his widow.

      2. Appeal — Costs.
    On the modification of a surrogate’s decree, the general term has discretionary power to determine as to whether the appellant here should he allowed costs in the surrogate's court, and this court has no discretion to review the exercise of its discretion.
    Appeal from judgment of the supreme court, general 'term, second department, modifying decree of surrogate of Queens county.

      John Fleming, for app’lt; Henry A. Monfort, for resp’t.

       Affirming 34 St. Hep., 330.

   Maynard, J.

This appeal involves the construction of the ninth or residuary clause of the will of Amos Denton, who died in 1857, and who left surviving him a widow, three sons, a married and an unmarried daughter.

By the clause in question, he gave the residue of his estate to the three sons and the married daughter, to be divided equally between them, and added this paragraph, which has given rise to the present controversy: “ In case of the death of either of them, leaving issue, before either of the different parts thereof, as hereinbefore mentioned, can be divided, then such issue to take the share or part the parent would have been entitled „to if living; if without issue, then the survivors to take.” “ The different parts ” here intended, manifestly have reference exclusively to the residuary estate, and the appropriateness of the term is at once apparent, if we consider the other provisions of the instrument

Under the scheme of the will the testator evidently contemplated a residue divisible into at least three parts, and distributable at three different periods of time. If the personal estate was sufficient to pay debts and expenses and a legacy of $500 to one of the sons and to create a fund of $8,500 for the use of his wife and unmarried daughter, the remainder would be at once divisible among the residuary legatees. If the wife died before the unmarried daughter, $4,000 and the proceeds of the sale of the homestead would be released, and fall into the residuary estate, and become subject to distribution; and upon the death of the unmarried daughter, if she survived her mother, there would be the further sum of $4,500 to be finally distributed. The order of distribution, and the sums available at different times for that purpose, might be varied in the event of the wife surviving the daughter, but the ultimate disposition of the estate would not be materially changed. But when either one of these parts was capable of division, it might happen that one or more of the legatees would not be living, and the occurrence of such a contingency twas specially provided for. It is clear that the testator intended ico limit the distribution of his residuary estate to the issue of his own blood, and in the clause which he added, and which we have quoted above, he has expressed such intention in language so plain that we think it is susceptible of no other reasonable construction. If at the time any part of the residue could be divided there was the issue of a deceased legatee surviving, such issue would take the share given to such legatee, otherwise the surviving legatees would take the whole of such part

One of the sons, Elias B. Denton, died in 1878, without leaving any issue surviving him. The appellant here is his widow, to. whom he gave by will his entire estate, and who insists that, as his legatee, she is entitled to one-fourth of the residuary estate created by his father’s will.

The unmarried daughter died in 1879, and the widow of the testator in 1887. The executor instituted proceedings for a final accounting and distribution of the estate after her death, upon which it appeared that the property remaining for distribution consisted of the proceeds of the sale of the homestead, and the principal and accrued interest of the fund of $7,500, which remained for the use of the widow after the death of the unmarried daughter.

Elias B. Denton had six children born to him, all of whom pre-deceased him, and four of whom died in the lifetime of the. testator, and when the will was executed he had no children living.

The surrogate held that the residuary legacy to Elias B. was not defeated by his death without issue surviving; that the contingency upon which his estate depended was the birth of issue, and not its survivorship, and that the condition attached to his legacy was satisfied by the proof of the existence of issue in his lifetime; in other words, that the phrase “ without leaving issue,” was equivalent, in the connection in which it was qsed, to the phrase “without having had issue.” He also held, that as the son survived the period when one of the parts of the residue might have been divided, the contingency ha*d not occurred upon the happening of which his share of the other parts of the residue was given to the surviving brothers and sister. The general term, by a divided court, reversed the decree of the surrogate, and excluded the representative of the deceased son from all participation in the distribution of the residuary estate.

The appellant’s counsel invokes the rule of construction that when there is a bequest to one person absolutely, and, in case of his death without issue to another, the contingency referred to is a death in the lifetime of the testator. But this rule has only a limited operation, and cannot be extended to a case where a point of time is mentioned other than the death of the testator to which the contingency can be referred, or to a case where a life estate intervenes, or where the context of the will contains language evincing a contrary intent. Vanderzee v. Slingerland, 103 N. Y., 47; 2 St. Rep., 732; Matter of N. Y., L. & W. R. R. Co., 105 N. Y., 89; 6 St. Rep., 851; Fowler v. Ingersoll, 127 N.Y., 472; 40 St. Rep., 206; Mead v. Maben, 131 N.Y., 255; 43 St. Rep., 167; Mullarky v. Sullivan, 136 N. Y., 227; 49 St. Rep., 333. All the circumstances which preclude the application of the rule exist in the present case. The contingency plainly refers to the time when each part of the residue becomes distributable; the life estate of the wife and daughter intervenes before the event can be finally determined upon which the contingency depends; and it is evident from the context that it was not his own death which the testator had in mind when he made the survivorship of the residuary legatee a condition, which must be shown to exist before he can be admitted to share in the distribution of the fund.

It would also be subversive of the manifest purpose of the testator to hold that if the legatee survived the time when but a single part of the residue could be divided, his right to share in the distribution of the subsequent parts became vested and indefeasible.

The term “ either of the parts ” is here used distributively, and is equivalent in meaning to each or every one of the parts. The condition is annexed to each part, and the testamentary plan, which seeks to preserve the estate in the family of the testator, is ‘thus rendered consistent in scope, and rational in application. For the same reason we cannot adopt the suggestion that the contingency in this case of death “ without issue ” is eliminated because it appears that Elias B. Denton had issue in his lifetime. The last clause of the provision in the residuary paragraph, if without issue, then the survivors to take, ” is an elliptical form of expression, and is antithetic to the first clause, which relates to the time of the death of the son, and if fully written out would be' a declaration to the effect that “ if either of my said children should die before either part of the residue of my estate can be divided, without leaving issue, then the surviving legatees shall take the share or portion of such part which the deceased legatee would have been entitled to if living.”

Upon the modification of the surrogate’s decree, the general term had discretionary power to determine whether the appellant here should be allowed costs in the surrogate’s court, and we have no jurisdiction to review the exercise of its discretion.

The judgment appealed from must be affirmed, with costs to both parties to be paid out of the estate.

All concur.


author: Gray, J.

text:
    Joseph H. Leinkauf et al., Resp’ts, v. Josiah Lombard et al., App’lts.

      (Court of Appeals,

      Filed March 14, 1893.)

    1. Carriers.
    Plaintiffs made a shipping contract with an agent of the “ N. Y. & M. S. S. Line,” under which name defendants were claimed to have heen engaged as common carriers in transporting freight between New York and Mobile. The vessel was lost, and in an action to recover defendants claimed that they were not running the line in their individual interests, but that it was run by the corporation of L. A. & Co. The trial judge instructed the jury that they could consider whether the running of the steamship line was not something foreign to and independent of the corporate business of L. A. &. Co., and not a necessary or proper incident of its business. Held, error; that the judge should not have submitted the question of defendant’s liability to the jury where there was no evidence which could properly and justly have warranted them in finding against them, or which could have withstood the test of a motion to set aside the verdict.
    3. Same — Ultra vires.
    However much said corporation may have exceeded its authorized powers in engaging in such a business; nevertheless it did engage in it, and a contract liability arising thereout could not be avoided by any plea of having exceeded its powers. That was a question which concerned its stockholders, or the state, and not the plaintiffs.
    (O’Brien, J., dissents.)

      Appeal from judgment of the New York superior court, general term, affirming judgment in favor of plaintiffs upon verdict of jury.

      John A. Deady, for app’lts; Horace E. Deming, for resp’ts.

       Reversing 43 St. Rep., 74.

   Gray, J.

The plaintiffs were a mercantile firm in Mobile, Ala., and have brought this action to recover for the value of goods shipped to them from New York upon a steamship of what was known and advertised as the New York & Mobile Steamship Line. The shipping contract had been made with a person signing as “agent,” merely; the paper being headed “New York & Mobile Steamship Line.” The vessel was lost upon the voyage and the defendants are sued as having been engaged as common carriers, under the name above stated, in the business of transporting freight and merchandise between the ports of New York and Mobile. Their answer denies that allegation. Upon the trial it was shown that the New York & Mobile Steamship Line was not a corporation, but a mere name or title; and the plaintiffs introduced evidence for the purpose of establishing that the defendants were associated together in transacting the business under that name. Upon the part of the defendants evidence was given to show that the defendants were the officers and managers of a corporation, organized under the general manufacturing act of this state, and transacting business under the name of “ Lombard, Ayres & Co,” and that this steamship enterprise was conducted by that corporation, in connection with their chartered business ; which was the “ distilling and refining of petroleum ” and the buying, selling or otherwise dealing “in all materials, apparatus and products necessary or useful thereto, or resulting therefrom," etc.

The defendants’ counsel, at the close of the plaintiffs’ proofs, moved to dismiss the complaint on the ground, among others, that no cause of action was shown against the defendants, and when all the proofs were in, he moved to direct a verdict for the defendants, on the ground that no connection was shown between the plaintiffs and them in the contract. Both motions were denied and the denials were excepted to, and the question is thus raised as to whether there was any evidence for the jury to consider which established, or tended to establish, the fact that the defendants were associated in running this steamship line in their individual interest, and not the corporation of Lombard, Ayres & Co. If the evidence was conflicting upon that question; if it was open to opposing inferences by the jury, we should not be authorized to interfere with their verdict; but we are unable to find anything in the record from which it could justly be inferred that these defendants were individually concerned in this enterprise ; or that, in all its incidents, it was not conducted by and for Lombard, Ayres & Co.; the defendants, as the managers of that corporation, having the management and direction of the steamship business, through agents, selected by them, at the two ports. This was made evident upon the testimony of the witnessess whom the plaintiffs called and examined. One of these witnesses, named Tweedy, had been a clerk of the firm of Bowring & Archibald, who chartered the vessels, and his testimony was that that firm acted as agents for the corporation of Lombard, Ayres & Co. in securing the charter party; that they acted for a while as agents of the line and kept an account for each voyage, and that the expenses in excess of receipts were paid by Lombard, Ayres & Co. and when receipts were in excess of expenses, they would hand over a check to that corporation. From the evidence of that witness it would seem clear enough that the defendants did not inaugurate and run the line for themselves. Upon the evidence, however, of another witness, Haven, it is insisted that the jury were warranted in finding against the defendants on the question of who were the principals behind the agent who had made the contract with the plaintiffs. But his testimony does not, when fairly read, bear the construction, nor j ustify the inference contended for.

Haven was secretary of the Lombard, Ayres & Co. corporation, and he particularly managed this line of steamships. From his testimony, it appeared that the establishment of the line was determined upon between himself and Mr. Lombard and Mr. Ayres, who were, respectively, the president and vice-president of the Lombard, Ayres & Co. corporation. Undoubtedly, between these three, the inauguration of this enterprise, its policy, management and all measures in the interest of the line were, or we must assume that they were, discussed and decided upon. There seems to have been no reference of matters to the action of the board of trustees of Lombard, Ayres & Co., and the official records of that company were said to be bare of any official action by that body in reference to the direction of the affairs of the line ; and it appeared that those three gentlemen decided all such matters by themselves and in the most informal way, so far as the corporation was concerned. While from Haven’s testimony it did certainly appear that this line of steamers was started and run as the result of the informal action or decision of himself and his two associates ; that they controlled and managed it equally informally between themselves ; that the board of trustees of Lombard, Ayres & Co. did not act officially with respect to it, and that the company’s books contained no record of resolutions, nor memoranda, upon the subject of the management of this line, nevertheless it did appear, upon his examination by plaintiffs, that Lombard, Ayres & Co. furnished the agents of the line with the funds to pay its bills and expenses, and, upon his cross-examination, that Mr. Lombard and Mr. Ayres were the appointed managers of the affairs of Lombard, Ayres & Co., having absolute control; that the agents of the steamship line were the agents for that corporation; that this line was run as one of its departments, and that the witness, Lombard and Ayres were neither associated together nor had any interest in the line, except as they were interested in the corporation as stockholders and the principal officers or managers.

The plaintiffs placed much reliance upon this evidence in its failure to show any facts making this steamship enterprise to appear in any wise as a corporate matter, and because, from the way it was started and conducted, it might fairly be inferred that these three defendants were concerned in the undertaking as individuals and not as trustees. They argue that this inference is not only warranted by the evidence, but that it is borne out by the legal limitations upon the chartered powers of Lombard, Ayres & Co., which, being incorporated under the provisions of the General Manufacturing Act, was legally incapable of operating a steamship line, or of acting as common carriers in the transportation of merchandise. They- say that there was a strong, if not a conclusive, presumption that such an undertaking was no part of the corporate business in which Lombard, Ayres & Co. was authorized to engage, and they suggest that the trial judge should have ruled, because of the provisions of the charter of that corporation, that there was no question of fact for the jury at all. Upon the proposition advanced, and assuming, for the purpose of the discussion, that it was without the chartered powers of Lombard, Ayres & Co. to charter vessels and to carry freight, we think a plea of ultra vires would have been unavailable as a defense to the corporation, if it had been sued upon tan executed contract made by its agent. An extended discussion of this question is hardly necessary to be entered upon. It is sufficient for our purpose to say that the plea of ultra vires cannot be availed of to defend against an obligation incurred, when the contract has been in good faith performed by the other contracting party and the corporation has had the benefit of it. Whitney Arms Co. v. Barlow, 63 N. Y., 62; and see Holmes v. Willard, 125 id., 75-80; 34 St. Rep., 455. The plaintiffs were dealing with the agent of an undisclosed principal, and they had the option to sue the agent, or the principal when discovered. If they had sued Lombard, Ayres & Co. to enforce this liability under the contract of its agent, it could not have escaped by the plea of ultra vires.

To admit of such a proposition would be to overlook the rule that the plea should never prevail when it would not advance justice. That a corporation has engaged in a business foreign to its chartered powers might afford ground for complaint and action by its stockholders ; but not for a defense to its liability to others, who have acted under such circumstances as are here disclosed, in good faith in their dealings with its agents. We do not see that the argument referred to by the'respondents in that connection has any force, or bearing, upon the question of whether the defendants were liable to the plaintiffs. The trial judge fell into a great misapprehension when, in his charge to the jury, he, in effect, instructed them that in determining the question of the defendants’ liability, they could consider whether the running of this steamship line was not something foreign to, and independent of, the corporate business of Lombard, Ayres & Co.,and not a necessary or proper incident of its business.

What had that to do with establishing the defendants’ liability upon the contract? • It might be perfectly true that the corporation had engaged in a business project not contemplated by its charter, and yet that fact would not go to establish a contract liability in the individuals who were its officers, and who had, as such, managed and directed the undertaking. If the evidence was such as to warrant two inferences; one, that the line was the individual enterprise of the defendants, and the other that it was an enterprise conducted as a department of the corporation of which the defendants were officers, then the question to be submitted to the jury was, which of these two inferences they would draw. The inference that it was the individual enterprise of these defendants must, however, be based upon evidence tending to establish the fact affirmatively and not negatively, that, if the corporation did not own. the enterprise, because it could not lawfully do so under its charter, therefore, the defendants were associated in its ownership and conduct as individuals.

Eeturning, then, to the question of what evidence there is in the record to show that the defendants were engaged in this business enterprise, we find that whatever may have been the language, or the more or less general expressions of the witness Haven as to its inception upon the sole decision of himself, Lombard and Ayres, and as to its conduct in the same way; and however informal and irregular the undertaking, from the absence of any official or corporate action by the board of trustees, or by the stockholders, Haven did positively testify that he, Lombard and Ayres had no individual interest in it, and that it was a department of the business of Lombard, Ayres & Go. Upon that evidence, supplemented, on the part of the defendants, by evidence showing that Lombard and Ayres had been appointed managers of Lombard, Ayres & CCo., with full and absolute powers of control and management over and relating to its business affairs; that the steamers were chartered by agents for that corporation, in aid of its business, in order to procure staves and shooks for the manufacturing of barrels and cases; that no one had any interest in that business except as a stockholder of the corporation, and that moneys received were paid to and all expenses incurred were paid. by the company; in that and like evidence, we do not think that there was anything which justified an inference that the defendants were running this line as their individual enterprise. Conceding to the testimony of Haven the widest sense, we could, at most, extract fairly from it that he, Lombard and Ayres, with apparently unlimited powers in relation to the affairs of the corporation of Lombard, Ayres & Co., engaged it in more or less independent enterprises, on their own judgment and without much, if any, regard to the chartered powers of their corporation, and without going through the form of putting their acts in official guise, or seeking corporate sanction. But with all that in view, and with the positive and uncontradicted denials of any individual, interest, it cannot be said to follow that because of this utter indifference, or neglect, to secure authority from, or to cover their acts by some action of the board of trustees, the officers became individually liable as partners to third parties. As formerly suggested, such conduct, or misconduct, might give rise to proceedings by the state, or by the stockholders ; but it would not constitute any ground for a defense by the corporation, when sued upon its agent’s contract, as in a case like this.

At most, it was only open to a surmise that the defendants were individually concerned in running this steamship line, and that was not enough to justify the trial judge in letting the case go to the jury. To permit a jury to speculate and surmise upon a question of responsibility, is to withdraw from the litigant a safeguard intended for the protection of his rights. He is entitled to the judgment of the pourt upon questions, to which the character of the evidence admits of but one answer. No such possibilities of a failure of justice should be countenanced. In the case of the Improvement Company v. Munson, 14 Wall., 442, Justice Clifford well said: “Nor are judges any longer required to submit a question to a jury merely because some evidence has been introduced by the party having the burden of proof, unless the evidence be of such a character that it would warrant the jury in finding a verdict in favor of that party. Formerly it was held that if there was what was called a scintilla of evidence in support of a case, the judge was bound to leave it to the jury ; but recent decisions of high authority have established a more reasonable rule; that in every case, before the evidence is left to the jury, there is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it upon whom the onus of proof rests."

The rule should be regarded as settled, under all the authorities, as well by the decisions of the courts of this state, as by those of England, that where there is no evidence upon an issue before the jury, or the weight of the evidence is so decidedly preponderating in favor of one side that a verdict contrary to it would be set aside, it is the duty of the trial judge to non-suit or to direct the verdict as the case may require. Reference to the following cases will suffice. Rudd v. Davis, 3 Hill, 287; 7 id., 529; People ex rel Peck v. Board of Police, 35 Barb., 651; Herring v. Hoppock, 15 N. Y., 409; Wilds v. R. R. Co., 24 id., 430; Corning v. Troy, etc., Factory, 44 id., 577; Neuendorff v. Insurance Co., 69 id., 389; Dwight v. Germania Life Ins. Co., 103 id., 341; 3 St. Rep., 115; Schofield v. Railway Co., 114 U. S., 615-619; Gunther v. Ins. Co., 134 id., 110,116; Directors of Metropolitan R. Co. v. Jackson, L. R., 3 Appeal Cases, 193, Lord Blackburn’s opinion.

Applying this just rule in this case, it is clear that the judge erred in submitting the question to the jury of the defendants’ liability, when there was no evidence which could properly and justly have warranted them in finding against them, or which could have withstood the test of a motion to set aside the verdict. If it could have been shown that the conduct of this line was the subject of recorded official action by the board of trustees of the Lombard, Ayres & Co. corporation, it could not have been pretended that the defendants were liable.

The cases referred to, where members of a corporation, continuing to do business after the expiration of its charter, have been held as partners as to third persons for the acts or contracts of agents; or where parties who are actually partners inter sese,_and who do business under some corporate name, have been individually held to a partnership liability, have no application to this _ case, where the corporation was a going concern, but, as it is claimed, had engaged in a business beyond the scope of its chartered powers. The fact is that, however much it may have exceeded its authorized powers in engaging in such a business, nevertheless, it did engage in it and a contract liability arising thereout could not be avoided by any plea of having exceeded its powers. That was a question which concerned its stockholders, or. the state, and not the plaintiffs. If the defendants could not have been deemed liable, had it been shown that the business of the steamship line was the subject of the official action of the board of trustees and was within the corporate management of Lombard, Ayres & Co., it does not follow, because of the loose, defective or irregular way in which that corporation’s interests were evidenced and managed in that undertaking, into which it had been launched by its managers, that the liability had shifted from it upon the individuals who were its officers or managers.

Our conclusion is that the trial judge erred in refusing to dismiss the complaint, or subsequently to direct a verdict for the defendants, and that the judgment appealed from should be reversed and a new trial ordered, with costs to abide the event.

All concur, except O'Brien, J., dissenting.


author: Earl, J.

text:
    In the Matter of the Application of Rosalia Whitmore, Resp’t, v. The Village of Tarrytown, App’lt.

      (Court of Appeals,

      Filed March 14, 1893.

    1. Villages — Change of grade of street.
    Before any proceeding can be instituted under § 1, chapter 113, Laws 1883, for damages caused by change of grade, etc., the grade of the street in a village must have been “ changed orcaltered” by or under the authority of the village. And there must have been some formal action by resolution or ordinance of the village fixing the new grade.
    2. Same.
    If the street commissioner or other persons wrongfully interfere with petitioner’s soil in the street, her remedy is against them for the wrong, and not against the village under the act of 1883.
    Appeal from judgment of the supreme court, general term, second department, affirming order appointing commissioners and judgment confirming their report.
    In 1890 Rosalia Whitmore owned certain real estate on Benedict avenue, in the village of Tarrytown, and she addressed her petition to the supreme court under the act, chapter 113 of the Laws of 1883, in which she stated that the grade of the avenue along her real estate was materially changed and altered between the first days of January, 1884 and 1889, so as greatly to injure and damage her property; and that such change in the grade of the avenue, and the removal of the soil and dirt thereof, was done under and by direction of the village and its officers; that the change of the grade consisted in cutting down and lowering the avenue, and the removal of the soil and dirt therefrom, so as to leave her real estate bordering upon the avenue several feet above the new grade; and she prayed for the appointment of commissioners to ascertain and determine the amount of her damages in consequence of the change of grade. The village answered the petition, denying the material allegations thereof.
    The issues thus formed were brought to trial at a special term of the supreme court, and upon the evidence submitted to the trial judge, he found, as matter of fact, that during the years 1882 to and including 1889, the grade of the avenue was materially changed and altered, and dirt and stone and soil were removed therefrom, and that the avenue was cut down and widened, from time to time, during those years, so as to leave the whole line of her property elevated several feet above the new grade, and that the changing of the grade and the widening of the avenue, and the removal of the soil and dirt therefrom, were made and done under and by direction of the village and its officers. And he found, as matter of law, that the village was liable for whatever damages the petitioner had sustained by reason of the facts found. Upon the petition, answer and findings, three commissioners were appointed to estimate the damages, and upon the evidence produced before them they found that, during the years 1884, 1885, 1886, 1887 and 1888, the grade of the avenue was materially altered and changed, the roadbed in the center thereof widened, and the bank of earth next to the land of the petitioner cut away and removed and deposited upon other streets where earth filling was needed; that by the changing of the natural grade and. the widening of the avenue and the removal of the earth, the petitioner had suffered damage to the amount of $1,000. The report thus made was confirmed at the special term, and judgment was entered in favor of the petitioner against the village for that amount, with costs. Proper exceptions were taken to the findings of the judge at special term and of the commissioners, and thereafter the village appealed to the supreme court from the order appointing the commissioners, and from the final judgment confirming their report and awarding damages and costs to the petitioner. Both the order and judgment were affirmed at the general term, and then the village appealed to this court.

      George C. Andrews, for app’lt; Wilson Brown, Jr., for resp’t.

       Reversing 43 St. Rep., 25.

   Earl, J.

It is provided in § 1 of chap. 113 of the Laws of 1883, under which this proceeding was instituted, that “ whenever the grade of any street, highway or bridge in any incorporated village in this state shall be changed or altered, so as to interfere in any manner with any building or buildings situate thereon, or adjacent thereto, or the use thereof, or shall injure or damage the real property adjoining such highway so changed or altered, the owner or owners of such building or real estate may apply to the supreme court in the judicial-district in which such property is situated for the appointment of three commissioners to ascertain and determine the amount of damage sustained thereby.” Section 2 provides that “all the provisions of the general railroad act relative to the appointment of commissioners, their powers and duties, shall be applicable to the appointment of, and the powers and duties of commissioners appointed in pursuance of the provisions hereof.” Section 3 provides that all damages ascertained and determined under the provisions of the act, together with the costs of the proceedings, shall be a charge upon the village, town or other- municipality chargeable with the maintenance of the street, highway or bridge altered or changed.

We think the meaning, force and effect of this act were wholly misapprehended by the courts below. Before any proceeding can be instituted under the act, the grade of the street must have been “ changed or altered,” by or under the authority of the village. Before it can be said that the grade has been changed or altered there must generally have been some formal action by resolution or ordinance of the village fixing the new grade. There may, however, be exceptional cases where, under peculiar circumstances, a new grade may be established by directions given, or by acquiescence.

According to the ordinary understanding of the language used in the act, there is implied some definite action, or at least some definite acquiescence fixing a new grade to which a street is either to be raised or lowered. If the street commissioner in a village should go upon a street, and from time to time take a few loads of earth from one place and deposit it in another, or for the purpose of repairing and improving a street should cut it down in one place and raise it in another, or dig out earth on the sides of the street for the purpose of widening the traveled bed thereof, by all these acts, although in the process of years they may work an actual change in the grade of the street, the grade is not changed or altered within the meaning of the act. Could an adjoining owner, every time the street commissioner takes a yard of earth o,ut of the street at one place and deposits it at another, thus causing an appreciable damage to his abutting property, institute proceedings under this act for the appraisement of his damages ? Such a construction of this act might involve a village in constant litigation -with numerous owners of real estate along streets which are from time to time improved. In this case there is not an atom of evidence that the board of trustees of the village ever changed or altered the grade of this avenue after the year 1882. It appears that in that year persons living in the vicinity of the petitioner’s property, and interested in the improvement oí the avenue, voluntarily made contributions of money, and entered into a contract to have the grade of the avenue in front of this property altered, and upon their application the trustees of the village, on its behalf, contributed $300 toward the expense of the improvement, the total cost of which was $1,850. The whole improvement was in the hands of the citizens who inaugurated it, and the only action taken on the part of the village was the appropriation of $300 toward the expense thereof. The trustees did not fix or determine the grade, or have anything to do with the actual execution of the work. The street along the petitioner’s property was three rods wide. In making the improvement the persons engaged therein lowered the street in front of her property about six feet, to a width at the bottom of about twenty-five feet, and at the top of the excavation about thirty-five feet, leaving an embankment at the original grade of about ten feet between the space thus excavated and the line of her property. That improvement was completed in 1882. That work was done before the act of 1888 was passed, and the petitioner does not claim any damage for the change of the grade at that time. As the village assented to that improvement, and aided in making it by the contribution of money, we must assume that the grade of the street was fixed as it was left by that improvement

There is no evidence whatever that that grade has ever since been changed or altered by any one. A large part of the earth in the embankment next to the petitioner’s property has since been removed, but the grade of the street has not been changed. The grade of the street having been established in 1882, it was not altered or changed by the cutting down of the embankment on either side of the street for the purpose of making the whole street conform to the grade thus established. Such an improvement of a street is not, within the fair meaning of the statute, a change or alteration ” of the grade thereof.

But, furthermore, what happened after 1882 to this avenue was as follows: The embankment on the side of the street, by the action of the elements, would, from time to time, cave down and fill up the gutter on the side of the street, and the earth, which fell into the gutter, would be removed by the street commissioner, and accordingly, from time to time, he would take a few loads of earth from "the embankment and put it elsewhere, and, from time to time, the citizens residing in the neighborhood, who desired sand or gravel, would dig and draw some of it away for their own private purposes. In these ways this embankment, which was, after the improvement of 1882, as before stated, about ten feet wide at the top, was substantially carried away, although the traveled bed of the street was not actually widened. Now, was there a change in ¿he grade of this street every time the street commissioner removed a yard, or a few yards, of earth? Could the petitioner, in each of these succeeding years, have instituted a proceeding under this act, alleging a change of the grade of the avenue in front of her property ? When was the grade changed ?

During all the years subsequent to 1882 the village -took no action whatever in reference to the grade of this avenue, and it does not appear that the trustees gave any directions whatever in reference to the same. Whatever earth was removed from the side of the avenue in front of the petitioner’s property, by the street commissioner, was, from time to time, removed by him in the exercise of his own judgment and in the discharge of his duties in the improvement and repair of the avenue. Gradually, by the action of the elements and the removal of earth thus made by the street commissioner and other persons, this embankment was mostly cut away. But we think it is quite unreasonable to say that this constituted a change or alteration of the grade within the meaning of the act The act was passed to meet cases where the grade of a street having once been established, or naturally existing, was, by act of the village, raised or lowered by ordinance or resolution, or some municipal action, which effects a change of the grade within the ordinary meaning of that term.

There was, therefore, no basis whatever upon any facts appearing in this record for the maintenance of this proceeding. If the-street commissioner or other persons wrongfully interfered with the petitioner’s soil in the street, her remedy was against them for the .wrong, and not against the village under the act of 1883.

It is said, however, that the village failed to appeal from the first order made by the court at special term, which determined that the grade had been changed and appointed commissioners to appraise the damages, and that, therefore, the defendant’s appeal must rest entirely upon the judgment entered upon the report of the commissioners of appraisal; and that the only questions which the village can now raise are those which relate to the amount of damages awarded. There are two answers to this contention. The village, in its notice of appeal from the final judgment awarding the damages, specified the order appointing the commissioners, and also appealed from that, and hence the appeal was in time-under § 1316 of the Code. A further answer is that the record contains all the evidence and proceedings upon the trial at the special term of the issue formed by the answer to the petition and the findings of the trial judge upon that evidence. It also contains all the evidence given before the commissioners and the proceedings before them and their findings, and also the proceedings taken upon their report It does not appear in the record that the petitioner made any motion to dismiss the appeal from the first order, or made any objection that it should be entertained, and it was actually entertained at the general term, and the order was there affirmed. We must, therefore, assume that that appeal was valid and effectual, and before the general term without objection.

We are, therefore, of opinion upon the whole case that the judgment of the general term, entered upon the report of the commissioners, and the order appointing them, should be reversed, with costs in this court and the supreme court to the appellant, and a new trial ordered at the special term of the issues formed by the answer to the petition.

All concur, Maynard, J., in result.


author: Per Curiam.

text:
    Sarah E. Mellen, App’lt, v. Abner Mellen et al., Resp’ts.

      (Court of Appeals,

      Filed March 14, 1893.)

    Partition — Appeal—Waiver.
    After the entry of interlocutory ancl final judgment in partition, the defendants appealed. Two days afterwards the referee executed the deed and received the entire purchase price, and two days later paid two of the defendants $72,500 each, their share of proceeds, hut which did not include their costs. The defendants, B. and W., as executors, have not received. anything under the judgment. Held, that as defendants have received nothing to which they would not be entitled iu any event, and as the only share in question has been deposited with a trust company, etc., defendants have not waived their right to prosecute their appeals.
    Appeal from order of the supreme court, general term, first department, denying motion to dismiss appeals.

      Henry Daily, Jr., for app’lt; George Hill, for resp’ts.
   Per Curiam.

This was an action of partition, and after the entry of the interlocutory and final judgments herein, the defendants who had defended the action appealed from both judgments to the general term on April 7, 1892, the same day the final judgment was entered. The interlocutory judgment was entered November 24, 1891, and the sale had pursuant to it January 20, 1892.

On April 9, the referee executed the deed to the purchaser, and received from him the entire purchase price, amounting in all to over $250,000.

On April 12th the defendants, Helen J. Banning and Maria L. Kendall, each received from the referee $70,000 on account of their share of the proceeds of sale pursuant to the judgment, and on April 22d, the further sum of $2,500 each. They have not received any part of the costs allowed them in the judgment, and the defendants Wilcox and Banning, as executors, have not received anything under the judgment. The respondents, on December 24, moved to dismiss these appeals upon the ground that the appellants, by accepting the benefits accorded to them by the j udgment, have waived the right to further prosecute the appeals. From an order denying the motion, the plaintiff has brought this appeal. As the defendants Wilcox and. Banning, as executors, have received nothing under the judgment, there is no ground for the claim that they are estopped from showing that the judgment was erroneous. The plaintiff made a motion to stay proceedings for a sale under the interlocutory judgment, which these defendants opposed, and insisted that the sale should be had pursuant to the judgment The property was in the hands of a receiver; it was indisputably the subject of a common tenancy, and a sale was proper for the preservation of the rights of all parties. The. title of the purchaser would not be in any manner affected by the appeal, nor the situation changed in any material respect The proceeds of the sale would be brought into court, and the subsequent litigation would be transferred from the land to the fund; and it is not seen how the rights of the plaintiff could be materially prejudiced by such a course. '

A different question is presented in regard to the appeal of Mrs. Kendall and Mrs. Banning. They have each received $72,500 under the final judgment, and it is insisted that they ought not to be heard to complain of a judgment whose fruits- they are now enjoying. But this objection, we think, is deprived of its force because of the conceded fact that they have received nothing to which they would not be entitled in any event, regardless of the final result of the litigation. It is admitted by the pleadings that these defendants were the owners of ten-sixteenths of the premises sold, and they are, therefore, rightfully entitled to a corresponding share of the net proceeds of the sale. It is not claimed that they have received any greater sum, or that they have received the costs, or any moneys of which they would be required to make restitution, if the judgment should be reversed and the complaint dismissed; or judgment should be awarded for the relief demanded in their answer. The sale would not be disturbed, and as the purchaser refused to complete the purchase unless the defendants, individually, released or conveyed to him whatever interest they might have in the property, their right to the shares which they have received does not depend upon the judgment, but they would be entitled to retain the moneys as the consideration of the deeds they have executed to the purchaser. The only issue of fact litigated involved the plaintiff’s title to the undivided five-sixteenths conveyed to her by the defendant, Abner Mellen, Jr. This conveyance the other defendants allege to be fraudulent as to them, and that the title is still in the grantor and equitably charged with liens in favor of the estates of his father and mother for the amounts which it had been decreed, upon a final accounting, he should pay to them as legatees or next of kin.

In view of the appeals taken, the court below directed this share to be deposited with a trust company to await the final determination of the controversy, and required the appellants to execute an undertaking in the sum of $20,000 to indemnify the plaintiff against loss on account of the stay of the execution of that part of the judgment pending the appeal. The plaintiff is thus fully protected, and we think it must be held that, under all the authorities, the defendants have not waived their right to prosecute their appeals. Farmers' L. & T. Co. v. Bankers & M. Tel. Co., 109 N. Y., 344; 15 St. Rep., 516; Alexanders v. Alexander, 104 N. Y., 643; 5 St. Rep., 499; Knapp s. Brown, 45 N. Y., 207; Higbie v. Westlake, 14 id., 281.

The order must be affirmed, with costs.

All concur.


text:
    Evan Jones, App’lt, v. Morgan Jones et al., Resp’ts.

      (Court of Appeals,

      Filed March 14, 1893.)

    1. Deed — Mental capacity.
    Sanity and ability to transact business are the usual and ordinary conditions of grown men, and he who asserts a lack of ability on the part of a grantor to execute a deed whose due execution is prima facie shown, must prove that lack of ability by a preponderance of evidence.
    2. Same.
    Where there is an entire absence of those facts upon which confidential relations between the maker and grantee can be predicated, and an entire absence of any influence whatever proved or to be inferred on the part of such grantee, the ordinary presumption attaches as to the validity of the deed and the disposing capacity of the grantor upon proof of the due and proper execution of the instrument, and the burden rests • with the party attacking the deed to prove his case.

      Appeal from judgment of the supreme court, general term, first department, affirming judgment rendered at circuit on verdict of jury in favor of defendant

      John E. Parsons, for app’lt; Joseph H. Choate, for resp’ts.

       Affirming 43 St. Rep., 434.

   Per Curiam.

In this case, after a careful perusal of the whole evidence, we are of the opinion there was no ground for the claim that the deceased, John Jones, at the time of the execution of these deeds, occupied such a confidential relation towards defendant, Morgan Jones, as to create a presumption arising from the fact of such relations that the transaction resulting in the execution of the deeds was a fraud and, therefore, void. Hence, there was no error in the charge of the learned court as to the burden of proof, when he said that if the evidence before the jury was of even balance, whether the grantor had a disposing mind, the verdict must be for the defendant.

The plaintiff claimed as heir at law of John Jones. If the relations between the parties to the deeds were not confidential, so as to create a presumption of fraud in the transaction and, therefore, calling for a full explanation and proof that it did not exist, then upon proof of the due execution of the deeds the defendant could rest his claim, and it would be for the plaintiff to overthrow it by evidence. Sanity and ability to transact business are the usual and ordinary conditions of grown men, and he who asserts a lack of ability on the part of a grantor to execute a deed whose due execution is prima facie shown, must prove that lack of ability by a preponderance of evidence. This is an old rule and well known. Jackson v. King, 4 Cow., 207.

The many cases cited by the learned counsel upon the question of what will constitute these confidential relations, we do not war with.

Such relations may undoubtedly exist outside of those arising from the position of guardian and ward, attorney and client, pastor and churchman, physician and patient and the like. Cowee v. Cornell, 75 N. Y., 91; Fisher v. Bishop, 108 id., 25; 13 St. Rep., 466, and many other cases.

The evidence in this case shows, as it seems to us, an entire absence of those facts upon which confidential relations can be predicated, and an entire absence of any influence whatever proved, or to be inferred, on the part of Morgan Jones upon John Jones with regard to this transaction.

In such case the ordinary presumption attaches as to the validity of the deed and the disposing capacity of the grantor upon proof of the due and proper execution of the instrument, and the burden rests with the party attacking the deed to prove his case.

There being no confidential relations, the case contains no sufficient evidence of any other undue influence to warrant the submission of that fact to the jury.

The other ground for a new trial lies in the charge of the judge that these deeds, if valid, were absolute and no question as to their being intended as a mortgage arose in the case.

In this, we think, the court below correctly decided. A careful reading of the evidence convinces us there was not enough to be submitted to a jury to permit them to find there was any such agreement or understanding. "

" Sheridan’s evidence as to his manner of bookkeeping and the fact that sometimes, after the execution of the deeds, John Jones collected some of the rents under the circumstances proved, constitute substantially the only testimony in the case which the appellant claims tends to prove the existence of any such agreement or understanding. The declarations said to have been made by John Jones subsequent to the execution and delivery of the deeds were not admissible for the purpose of proving this fact, and, if admitted, they are not sufficient even when taken in connection with the rest of the testimony to make out the claim as to a mortgage.

These are the chief points alluded to for the purpose of procuring a reversal. We have read the opinion delivered at the general term, and are entirely satisfied that the case has been correctly disposed of.

The judgment must be affirmed, with costs.

All concur.


author: Andrews, Ch. J.

text:
    Joel Wheeler et al., App’lts, v. Charles A. Sweet et al., Resp’ts.

      (Court of Appeals,

      Filed March 14, 1893.)

    1. Trial — Instructions to jury in the absence oe counsel.
    Upon the trial of an action on an indemnity bond the trial judge, on the return of the jury into court for further instructions, in the absence of plaintiffs and their counsel, instructed them that the question as to the validity of the chattel mortgage under which the plaintiffs claimed title to the property taken by the sheriff on the execution in favor of a third party, was not material for their consideration in the disposition of the case. Held, error.

      2. Same — Appeal.
    Such a proceeding may be reviewed here either upon the appeal from the order refusing to grant a new trial, or upon the appeal from the judgment.
    3. Indemnity — Rights oe indemnitors.
    A sheriff who has taken a bond of indemnity should not by his collusive act deprive the indemnitors of the opportunity to present and have tried and determined in the ordinary course of judicial proceeding his liability when sued by third persons for an act to which the indemnity extends, and where the sheriff intentionally and in bad faith prevents the indemnitors from presenting a defense interposed in good faith, and which is not frivolous, he cannot afterwards avail himself of a judgment obtained in that action as a ground of recovery on the bond.
    Appeal from judgment of the superior court of Buffalo, general term, affirming judgment in favor of defendants, and affirming order denying new trial.

      Spencer Clinton, for app’lts ; Adelbert Moot, for resp’ts.

       Reversing 43 St. Rep., 225.

   Andrews, Ch. J.

We think the judgment and the order refusing to grant a new trial must be reversed for the reason that the trial judge, on the return of the jury into court for further instructions, erroneously and in the absence of the plaintiffs and their counsel, instructed them that the question as to the validity of the chattel mortgage under which the plaintiffs claimed title to the property taken by the sheriff on the execution in favor of the Third National Bank, was not material for their consideration in the disposition of the case. It obviously was a fact of great importance as bearing upon the defense that the judgment obtained by the plaintiffs in the action against Bartholmy, the administrator of the sheriff, was collusive and fraudulent

It was properly conceded by the counsel for the defendants on the argument- that this instruction was erroneous. But it was urged that, in the absence of an exception, the error was not available for the reversal of the judgment. In the case of Watertown Bank & Loan Co. v. Mix, 51 N. Y., 558, it appeared that the judge, after the jury bad been charged and had retired for consultation, returned an answer in writing to a written inquify by the jury upon a material point, prejudicial to the plaintiff, and without the knowledge or consent of the plaintiff, or of its counsel. Subsequently, the plaintiff moved the judge at special term to set aside the verdict and grant a new trial for this error, which motion was granted. The defendant appealed to the general term from the order of the special term, setting aside the verdict and granting a new trial, and the order was there reversed. The plaintiff thereupon áppealed to this court from the order of reversal, and this court reversed the order of the general term and affirmed the order of the special term, and upon the point of jurisdiction determined that the order was appealable to this court on the ground that it affected a substantial right in a matter not resting in discretion. The opinion of Johnson, J., contains a clear and satisfactory statement of the reasons upon which the court proceeded, and we entertain no doubt of the soundness of the conclusion reached.

This case is decisive of the present appeal upon the point taken, unless a distinction arises upon the form in which the question is presented. In the present case, a motion for a new trial was made before judgment upon a case and exceptions, in which the proceeding in question was set out in full. What particular grounds were urged in support of the motion do not appear. An order was made denying the motion, and, on judgment being entered on the verdict, the plaintiffs appealed both from the judgment and order to the general term of the superior court of Buffalo, in which court the action was brought. The general term affirmed the judgment and order, and the appeal here is from both the judgment and order of affirmance.

We are of the opinion the question may be reviewed here either upon the appeal from the order refusing to grant a new trial under subdivision 2 of § 190 of the Code of Civil Procedure, or upon the appeal from the judgment We perceive no substantial distinction as to the appealability of the order between the case cited and the case in 51 N. Y. The fact that the motion in that case was confined to the specific ground of error of the trial judge in the particular matter makes no difference in principle. The same question, with others, was presented upon the case and exceptions, upon which the motion for a new trial in this case was made, and it must be assumed that it was passed upon by the judge in denying the motion.

But independently of the order we are of the opinion that an appeal from the judgment presents a reviewable question in this court, founded upon the erroneous proceedings of the trial judge. There can be no doubt that the judge, in assuming to further instruct the jury, in the absence of the plaintiffs and their counsel, in a matter material to and adverse to their interests and plainly erroneous and prejudicial, committed an error of law. The proceeding appears upon the face of the record. It was a matter occurring in the course of the trial. The plaintiffs had no opportunity to interpose a formal exception. Under such circumstances we think the party injured may, on appeal from the judgment, raise the question, as though a formal exception had been interposed. The protection of a most valuable and important right requires that the court, in the interest of justice, should take notice of the error. The cases in which it has been held that relief against the misconduct of jurors, or referees, or parties not appearing upon the record, in matters arising in pais and presented by affidavits, must be applied for and obtained in the court of original jurisdiction, and that orders made in such cases are not reviewable here, depend upon different considerations.

The nature and extent of the misconduct and how far it affected the proceedings is examined by the court in which it occurred, and the orders made in such cases are regarded as discretionary, and as not presenting strictly legal questions. Williams v. Montgomery, 60 N. Y., 648; Livermore v. Bainbridge, 56 id., 72; Gale v. N. Y. C., etc., R. R., 76 id., 594; Howell v. Mills, 53 id., 322.

The only question on the merits presented by this record of which we can take notice, aside from the one just considered, relates to the defense that the judgment obtained by the plaintiffs against Bartholmy, the administrator of Lawson, the sheriff, was collusive. The other defenses relied upon at the trial were either overruled by the court or were not considered, and we cannot consider them for the purpose of sustaining the judgment of the respondents. On the new trial these defenses will be open for litigation and may then be determined.

The judgment recovered January 8, 1889, by the plaintiffs against Bartholmy, administrator of Lawson, was relied upon by the plaintiffs in the complaint and on the trial as concluding the defendants as to the existence and extent of their liability on their bond of indemnity to the sheriff. The bond bound them to indemnify the sheriff against any judgment which might be obtained against him by reason of his levying upon and selling the property under the executions in favor of the Third National Bank. The recovery of a judgment against the sheriff by the plaintiffs, for taking and selling the property levied upon, obtained in due ■course, and without fraud or collusion, would fix the liability of the indemnitors, because by their contract they made themselves privy to any action brought against the sheriff for that cause, although they were not parties in fact to the litigation, and even although they had no notice of the action, and on the recovery of the judgment they would become immediately liable to the sheriff on the bond for the amount of the judgment so recovered before satisfaction. Gilbert v. Wiman, 1 Comst., 550, and cases cited; Douglass v. Howland, 24 Wend., 53; Casoni v. Jerome, 58 N.Y., 315.

The plaintiffs here, as assignees of the bond, stand in the place, and upon the right of the sheriff. Whatever defense the defendants would have had if the sheriff, or his administrator, had retained and sued upon the bond they have against the plaintiffs, who have merely succeeded to his right. If the judgment obtained by the plaintiffs against Bartholmy, as administrator, could not have bound the indemnitors, if the action had been brought by the sheriff or his administrator, it does not bind them in the present action. It was an implied condition of this bond that the sheriff should act in good faith, and not permit or suffer a collusive judgment to be obtained against him, with a view to bring upon the indemnitors a liability within the words of the bond, when there was no rightful claim made against him, or any claim which would stand against an honest defense.

The only judgment to which the defense of collusion properly relates, is the judgment of January 8,1889. The prior judgment of February 3,1888, was vacated before the commencement of the action. The circumstances connected with the obtaining of that judgment are unimportant, except so far as they tend to throw light upon the motives of the parties to the judgment of January 8, 1889. In other words, if the former judgment was collusive or fraudulent, that of itself does not affect the subsequent judgment and make that collusive also. The facts in respect to the prior judgment may give significance to the acts and transactions resulting in the later judgment, and only such prior facts as were relevant for this purpose were admissible. We express no opinion as to the alleged fraud or collusion in procuring the judgment of January 8, 1889, or in respect to the subsequent proceedings tending to prevent a review of the judgment This will necessarily be the subject of another investigation by the court and jury.

It is claimed by the counsel for the plaintiffs that the plaintiffs were entitled to the charge requested by him, “ that unless there was a good defense to the action brought by the plaintiffs against Lawson, the defendants were not entitled to recover.” The court denied this request, but charged in substance that if the defense was made in good faith, and was meritorious, then if Lawson, by collusion with the plaintiffs, prevented the trial of the issues, and suffered judgment, the judgment did not conclude or bind the indemnitors.

It is to be observed that this action is not brought to set aside the j udgment against the estate of Lawson. The validity of that judgment between the parties to it is not assailed. The indemnitors had been permitted by the sheriff to defend the action brought by the plaintiffs against him, and their attorneys had interposed several defenses, and the questions were stoutly litigated before the referee, and although judgment passed for the plaintiffs, an appeal was taken by the indemnitors in the name of the sheriff. The questions raised by the defenses were not frivolous. While the matter was in this situation, by arrangement between the plaintiffs and Bartholmy, the administrator of Lawson, the judgment of February 3, 1888, was vacated, a new attorney was appointed by Bartholmy, the case was referred to the same referee to hear and determine the case on the evidence taken on the former trial, and a new report and judgment entered for the plaintiffs. The vacation of the judgment and all the subsequent proceedings referred to took place on one day, January 8, 1889. It is doubtless true that it is the general rule that acts which work a discharge of a surety must be legally injurious or inconsistent with his legal rights. Clark v. Sickler, 64 N. Y., 231. But here the indemnitors do not rely upon the acts relating to the manner of obtaining the judgment as a discharge of their liability on the bond. They simply insist that a judgment so obtained does not establish a breach of the bond.

It is certainly reasonable that a sheriff who has taken a bond of indemnity should not by his collusive act deprive the indemnitors of the opportunity to present and have tried and determined in the ordinary course of judicial proceeding his liability when sued by third persons for an act to which the indemnity extends, and where the sheriff intentionally and in bad faith prevents the indemnitors from presenting a defense interposed in good faith, and which is not frivolous, we are of opinion that he cannot afterwards avail himself of a judgment obtained in that action, as a ground of recovery on the bond. The law is extremely jealous of the rights of all who are not parties to an action, where it is sought to bind them by the judgment therein. Cowen, J., Douglas v. Howland, supra.

The proper time to try the question of the sheriff’s liability is in the action brought against him. The investigation of the question collaterally in an action on the bond would be attended with difficulties. We think good faith and fair dealing require that a sheriff, if requested, should give the indemnitors a right to present any defense in the action against the sheriff, and that if this is refused or prevented by his act, he cannot say that the indemnitors have not been injured, or that the judgment determines their liability.

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

All concur.


author: Gildersleeve, J.

text:
    John F. Halsted, App’lt, v. The Manhattan Railway Co., Resp’t.

      (New York Superior Court, General Term,

      Filed March 6, 1893.)

    1. New trial — Insufficiency of evidence.
    A party against whom a verdict is rendered on conflicting evidence cannot sustain a motion for a new trial on the minutes, either on the ground of insufficiency of the evidence, or that the verdict is contrary to the evidence, if he neglects to request the court to direct a verdict in his favor.
    3. Railroad — Elevated—Verdict.
    There is no law which requires a jury, no matter what the evidence may he as to the facts, to always find for the plaintiff in actions against an elevated railroad to recover damages for injuries to real property by the maintenance and operation of its road.
    Appeal from judgment, entered on a" verdict of a jury, and from an order denying motion for a new trial.

      Roger Foster, for app’lt; Davies & Rapallo (R. L. Maynard, of counsel), for resp’t.
   Gildersleeve, J.

This action was brought to recover damages for injuries to plaintiff’s premises caused by the maintenance and operation of defendant’s elevated railroad. It was tried before a j ury, who found in favor of defendant. From the judgment entered on their verdict, and from an order denying plaintiff’s motion for a new trial, the plaintiff appeals to the general term.

The plaintiff mainly relies for a reversal upon the contention that the plaintiff was at least entitled to nominal damages, and that, therefore, the motion for a new trial should have been granted. We do not think this proposition can be sustained. The plaintiff did not, at the .close of the case, request the court to direct a verdict in his favor. He seemed to regard the case as one for the jury, in view of the conflict of evidence. He took his chance of securing a favorable verdict, which would have concluded the defendant upon the facts. He cannot now be heard to allege that the verdict is without evidence, and, therefore, against law. The question of law, sought to be made here, should have been made on the trial. If there was no evidence to warrant the verdict, it was error to submit the questions to the jury, which upon timely objection would have been the subject of an exception, to be reviewed here. But, by not taking the objection and exception at the tria!, the plaintiff waived it, and it cannot be raised by a motion, addressed to the discretion of the court, to correct the error of the jury. Barrett v. Third Avenue R. R. Co., 45 N. Y., 632.

It is the settled law of this court that the party against whom a verdict is rendered on conflicting evidence cannot sustain a motion for a new trial on the minutes, either on the ground of the insufficiency of the evidence, or that the verdict is contrary to the evidence, if he neglects to request the court to direct a verdict in his favor. But, where there is no conflict of evidence, the question whether it is sufficient to support the verdict may, without such request, be considered on a motion for a new trial on the minutes, made on the ground that the verdict is against law. Keeler v. Barretts’ Dyeing Establishment, 54 N. Y. Super. Ct., 369.

In the case at bar, there is a material conflict of evidence, and the questions of fact, arising therefrom, were properly submitted to the jury by the learned trial judge, and the jury, by their verdict, found in favor of defendant. We are not disposed to interfere with this conclusion.

There is no law which requires a jury, no matter what the evidence may be as to the facts, to always find for the plaintiff in cases of this character, in which the elevated railroad companies are defendants. It is the duty of the jury, under proper instructions of the court, to find as their conscience directs, in view of all the evidence. This is, presumably, what they have done in the case at bar, and there is sufficient evidence to sustain their verdict.

There are no exceptions of enough importance to warrant a; reversal

The judgment and order appealed from must be affirmed, with costs.

Sedgwick, Ch. J., and Dugro, J., concur.


author: Sedgwick, Ch. J.

text:
    John Beyer, App’lt., v. George E. Vietor et al., Resp’ts.

      (New York Superior Court, General Term,

      Filed March 6, 1893.)

    Master and servant — Assumption of risk.
    Plaintiff had been employed as porter by defendants for seven years and knew the construction and manner of operation of their elevator. He was taking a heavy case upon a truck to the upper story, and when he had moved it half way out a chain was shaken as an inquiry whether the elevator was in use, to which he did not reply,and the platform descended and the case was thrown against and injured him. He then called out and the platform ascended. Held, that plaintiff, by continuing in the service with knowledge of the way of working the elevator, assumed the risks which he saw and understood, and that if there was any negligence in lowering the platform at that time it was that of a fellow servant, which would forbid a recovery.
    Appeal by plaintiffs from judgment entered upon an order dismissing complaint at trial term.

      August P. Wagener, for app’lt; Blumenstiel & Hirsch, for resp’ts.
   Sedgwick, Ch. J.

The action was for damages to plaintiff from defendants’ alleged negligence in not furnishing a safe elevator. The facts were as follows: The plaintiff had been for seven years a porter, employed by the defendants in their store. Through that time he knew, as did the other porters, of whom a witness Lieb was one, the construction of the elevator and the way in which it was intended to be worked and in which it was worked. At the time of the accident, the elevator was used as it had been used always. On the day in question the plaintiff in the course of his work rolled upon the platform of the elevator a heavy case of goods, which was on a four-wheeled truck and remained there. The plaintiff set the elevator in motion by pulling a rope and it went to the fourth floor. He moved the truck so that it went about half upon the floor. Before he had gone farther, a chain that went down through the platform below was shaken. He knew that was meant to obtain an answer whether the elevator was in use. The chain was shaken by Lieb, upon the floor below. On the trial the plaintiff was uncertain whether he, upon seeing the rope shake, spoke to the man, as the custom was. Perhaps he believed that, as the truck was half off, he could get it all off at once, so as to clear the elevator for use, and that it was not necessary to speak. The platform went down about two feet. The truck tipped towards the plaintiff. In this way it was that he received the bodily injuries; when the case fell against him, be made a loud noise and forthwith the platform was raised again, so as to be level with the floor.

From these facts it is evident that the plaintiff understood the way of working the elevator, and in particular the liability of a premature going down of the platform. When, after knowledge of this, he continued in his service, he bore the risks which he saw and understood. Indeed, the immediate occasion of the accident was that he did not make known in time to Leib below that he was using the elevator. Such had been the practice of years and the plaintiff knew the necessity of it. After he did speak loud enough, the platform was returned to a level with the fourth floor. On the other hand, if Leib’s negligence in the management of the chain and of the rope that let on steam caused the accident, it was the negligence of a fellow-servant that would forbid a recovery by the plaintiff.

The action of the judge below was called for by the evidence.

Judgment affirmed, with costs.

Ditgro and Gildersleeve, JJ., concur.