text:
    Emil Forster et al., Resp’ts, v. Johm Wilshusen, App’lt.

      (New York Common Pleas, General Term,

      Filed December 2, 1895.)

    1. Rescission contracts—Misrepresentations.
    Actual fraud is not necessary to support an action for rescission of a contract ; innocent misrepresentation is sufficient.
    A Fraud—False statements.
    A false statement of a material fact, with the intent and effect of deceiving, is actual fraud.
    3. Principal and agent—Fraud.
    The misrepresentation of an agent to sell is the misrepresentation of the seller, and where the seller receives and retains a benefit from the sale his innocence of the fraud is ineffectual to exonerate him from liability for the fraud.
    Appeal from a judgment in favor of plaintiffs.

      George F. Langbein, for app’lt; Edward F. Hassey, for resp’ts.
   Pryor, J.

Upon evidence clearly sufficient to sustain his conclusions, the learned trial judge found that, by his agent, the defendant, with intent to deceive the plaintiffs, made representations as to the rentals of the property ; that those representations were untrue, and material in inducing the plaintiffs to purchase'; and that with due diligence, after discovery of the fraud, plaintiffs demanded a rescission of the contract, and the' return of the money paid upon it. These facts, by all authorities, suffice to support the action; and we should not be justified, on a mere conflict of evidence, in reversing the judgment. Baird v. Magor, etc., 96 N. Y. 567; Westerlo v. DeWitt, 36 id. 340 ; Krumm v. Beach, 96 id. 399 ; Hammond v. Penncock, 61 id. 145; Vail v. Reynolds, 118 id. 297; 28 St. Rep. 707; Griffing v. Diller, 21 N. Y. Supp. 407; Fairchild v. McMahon, 139 N. Y. 290; 54 St. Rep. 495.

It is objected that the plaintiffs had an adequate remedy at law, but the defense was not pleaded, Town of Mentz v. Cook, 108 N. Y. 504; 13 St. Rep. 845 ; and to cancel the contract the interposition of equity was requisite. Gould v. Bank, 86 N. Y. 75; Bosley v. Nat. Machine Co., 123 N. Y. 550; 34 St. Rep. 277.

It is also urged that the plaintiffs made no effort to ascertain from tenants the actual rent, to which the answer is that the -defendant diverted them from such inquiry; that they had a right ¡ to rely on the mere statement of the broker. Mead v. Bunn, 32 N. Y. 275; Schwenck v. Naylor, 102 id. 683; and that want of diligence in discovering the fraud is not sufficient to deprive a party of his right to rescind a fraudulent contract. Baker v. Lever, 67 N. Y. 304, 309. ¡Nor, were the point before us, would an attempt by plaintiffs to resell the property defeat their claim to a rescission. Kountze v. Helmuth, 140 N. Y. 432; 55 St. Rep. 798.

It is said, again, that an actual fraud on the part of the broker was not shown. The trial judge finds that he made the misrepresentation with intent to deceive, and surely this is the legal equivalent of actual fraud. Kley v. Healy, 127 N. Y. 555, 561; 40 St. Rep. 215. Moreover, “a mistake or innocent misrepresentation” was enough for rescission of the contract. Kountze v. Kennedy, 147 N. Y. 124, 129; 69 St. Rep. 388; Crowe v. Lewin, 95 N. Y. 423.

The objection that the defendant is not responsible for the misstatement of the broker is obviously untenable. Defendant’s agent in the sale of the property, his misrepresentation was the defendant’s misrepresentation. Fairchild v. McMahon, 139 N. Y. 290, 295 ; 54 St. Rep. 495. A further contention is that plaintiffs did not rely solely on the broker’s statement, but also upon the defendant’s misrepresentation. If this be the fact, of what avail to the defendant? Eeliance upon his own statement as well as his-broker’s only aggravates the deception practiced on plaintiffs. It was sufficient, however, that the misrepresentation of the broker was one, though not the sole, inducing cause. Kley v. Healy, 127 N. Y. 561 ; 40 St. Rep. 215.

Adverting to the alleged errors in evidence to which due objection and exception were tajeen, we find none; at all events, none of prejudice to the defendant. The supposed errors specially indicated are either untenable or innocuous. . Plaintiffs’ reljanqe on the misrepresentation was of the essence of the action, and they were peculiarly competent to prove it. N. Y. Land Improvement Co. v. Chapman, 118 N. Y. 288; 28 St. Rep. 780; King v. Fitch, 40 N. Y. 432, 449. Proof that plaintiffs were instructed by their attorney to ascertain the amount of rent was-probably immaterial, but it was certainly harmless. Proof that the defendant never employed the broker to sell the property was rightly rejected, because contrary to'an admission in the answer. Proof that the defendant never authorized his broker to make the-misrepresentation was irrelevant, because, nevertheless, the defendant was responsible for the misrepresentation. Krumm v. Beach, 96 N. Y. 898, 405. Defendant insists that the number of children borne by a witness was a circumstance affecting her credibility, but we own ari inability to apprehend the alleged relation between the two facts. The cause was well tried, and correctly determined.

J udgment affirmed, with cost's.


source: Caselaw Access Project

author: Daly, C. J.

license: Public Domain

text:
    The People ex rel. Joseph B. Eakins, App’lt, v. Theodore Roosevelt et al., as Police Commissioners, etc., Resp’ts.

      (New York Common Pleas, General Term,

      Filed December 2, 1895.)

    1. Municipal corporations—Policemen—Retirement.
    A complaint against a police officer, filed by a citizen with the police board, notice of which is given to the officer, is a “charge pending,” within section 307, chapter 569 of 1895.
    2. Same. '
    • In such case, an officer is not entitled to be retired as a matter of right, though no formal charges have been preferred.
    Appeal from an order, denying the application of relator to be relieved and dismissed from the police force, and placed on the fund.

      Hess, Townsend & McClelland', for app’lt; Francis M Scott, for resp’ts.
   Daly, C. J.

The relator, Police Captain Eakins, of the Fifteenth precinct, had been a member of the police force of the city of New York, and performed duty on such force for a period of twenty years and upward on the 18th day of May, 1895, upon which daté he made application to the board of police commissioners to be relieved and dismissed from the force and service, and placed on the roll of the police pension fuud; and he was entitled, of right^ to have his Application granted by the board, provided there were at that date no charges against him pending. Laws 1895, chap. 569, amending Consolidation Act, section 307. On May 13, 1895, five days before his application, the board had received from C. H. Parkhurst, T. D. Kenneson, and Frank Moss, executive committee of the Society for the Prevention of Crime, a letter, inclosing copies of papers, with a statement that they had been sent that day to the mayor, the superintendent of police, and the captain of the Fifteenth precinct (the relator’s). The paper sent to the relator on May 18th, a copy of which was transmitted to the board on the same day, was as follows:

New York, May 11th, 1895.

Joseph B. Eakins, Captain 15th Police Precinct, New York City—Sir: You will find inclosed a list of resorts in your precinct which, presumably with your knowledge and by your connivance, are being conducted in op°en and flágrant violation of law. Whether you had ever made yourself familiar with your obligations in such matters prior to your appointment to a captaincy may be something of a question, but for the past three years there has been such an amount of educational matter sent out from the office of the Society for the Prevention of Crime bearing upon the official delinquincies of the police, and the sworn duties devolving upon them, that it would seem that even the intelligence, and possibly the conscience, of a police captain would have received certain impressions of a quickening and stimulating character. The opinion seems to have been formed in your mind, and in that of your fellow captains, that the criminal administration of the affairs of your department had been so long a part of the life of the town that no change in municipal government could suffice to work, any substantial alteration or betterment. Things could not have been managed in your precinct, as we know them to have been managed in the months that have transpired since the new city administration came into power, if you had' had any particular concern or anxiety as to what that administration might intend and undertake. We have, in the meantime, been keeping careful watch upon you and your colleagues, and have decided to furnish you and the new police commissioners with some of the results of our observation, not because of the existence of a certain amount of criminal lawlessness, in your precinct, but for the reason that the viciousness of the resorts which you are harboring is so gross and open that the Fifteenth precinct is now, as it has long been, a moral plague spot in the city and a reproach to our civilization, and a disgrace to. the department that has hitherto tolerated it. Careful evidence has been secured in regard to the resorts specified in the accompanying letters, most of which you probably instantly recognize. We shall observe your method of dealing with your complaint, and shall return to the matter later if you show any disposition to temporize or to evade your distinct obligation.

“ Yours, truly, ‘ “C. H. Park hurst,

“T. D. Kenneson,

“Frank Moss,

“Executive Committee.

“ Rooms of the Society for the Prevention of Crime, United Charties Building.

“ Saloons which are frequented by prostitutes ; Woffers’, 72 University Place; Stevenson’s, S. W. corner Thorhpson & West Third st.; Monell’s, 121 West Third st.; ‘ The Golden Swan,’ S. E. corner Sixth -Ave. and West Fourth st.

“Houses of prostitution: 204 Thompson street; 230 Wooster street; 127 West Third streot (rear); 224 Wooster street; 141 West Third street; 134 West Third street.

“Houses of Assignation: 48 Great Jones street; 52 Bond street; 54 Great Jones street; Daly’s Hotel, 50 East Thirteenth street; 12 East Thirteenth street; 69 West Tenth street; Hotel St Lawrence, 30 East Thirteenth street; 82 West Third street; 230 Thompson street; Hotel Jerome, S. W. corner Twelfth street and University place; 245 Wooster street; 132 Macdougal street; 210 Thompson street; 209 Wooster street; 14 East Thirteenth street”

The letter received by the board on May 13th was as follows:

“Hew York, May 11th, 1895.

Theodore Roosevelt, Chairman Board of Police Commissioners, Hew York City—Dear Sir: Accompanying this please find copies of papers which, as representing the Society for the Prevention of Crime, we have to-day sent to the mayor, superintend-cut of police, and to the captain of the Fifteen! precinct. With assurances of our cordial support in the work so recently devolved upon you, we are, Yours, very truly,

“ 0. H. Parkhurst,

“ T. D. Kenneson,

“ Frank Moss,

Executive Committee.

“Rooms of the Society for the Prevention of Crime, United Charities Building.”

On the date of the receipt of these papers the board referred the subject to one of the commissioners (Parker), to formulate the charges contained in them more in detail, and obtain evidence in support of such charges. Commissioner Parker thereupon, on the same day (May 13th), had an interview with the acting superintendent of the Society for the Prevention of Crime, and requested him to produce evidence in support of the charges. On the 14th the latter produced to Commissioner Parker voluminous evidence, and on the 15th the commissioner requested the attorney for the society to put the, charges in more detailed form, and the attorney thereupon took the matter in charge. Such was the condition of affairs when, on the 18th, Captain Bakin made his application to be retired; and the sole question is whether at that time, in the sense of the statute, charges were pending against him. On the 22d and 23d of May the relator was informed by Commissioner Parker of the charges against him, and that they were being looked into. On the 27th the charges, in detailed form and verified, were brought before the hoard, and the relator’s application for retirement was denied. On the 28th the charges were put into another form, according to a system of the department, by superadding'to the charges made by the citizens a charge, in form, by a commanding officer of the force. In that form they were served upon the relator on May 28th.

It seems impossible to answer the question submitted upon this appeal except in the affirmative, and there is little to add to the careful opinion of the learned justice at special term, who held that charges were pending against Captain Bakins at the time of his application, and that his petition for mandamus to compel the police board to relieve him and place him upon the pension roll must be denied. The objections to this conclusions, it seems to me, are based, not upon substance, but upon words, and the technical meaning of “ charges ” and “charges pending.” The accusation of neglect of duty and inefficiency, against the captain, had been made by responsible citizens, directly to him and to his superior officer, and to the board whose duty it was to take cognizance of such allegations. It was after receipt of those accusations in writing that the relator applied for retirement, and this, it seems to me, is exactly what the legislature intended to prevent, namely, resignation under charges. In considering whether such accusations so made were li pending charges,” Judge Bischoff has referred to the authorities holding that the words of a statute, if of common use, “ are to be taken in their natural, plain, obvious, and ordinary signification,” People ex rel. Bockes v. Wemple, 115 N. Y. 302; 26 St. Rep. 330; Polhemus v. Fitchburg R. R. Co., 123 N. Y. 502; 34 St. Rep. 420, and that, where words have two significations, the popular one should have'the ■preference. Suth. St. Const. §§ 247-258, 357.

It has been held that the expression. “ charged with crime,” signifies that legal proceedings have been commenced by complaint or indictment, State v. Duncan, 9 Port. (Ala.) 260; Day v. Inhabitants of Otis, 8 Allen, 477 ; Mary v. State, 5 Mo. 72; and that “ charges ” signifies an accusation made in a legal manner, Tom-pert v. Lithgow, 1 Bush, 178, and implies an original complaint in the first instance preliminary to a formal trial for a-crime, Ryan v. People, 79 N. Y. 598. What is the legal manner of accusing a police officer before the police board ? What constitutes an original complaint in the first instance in such prosocution ? The statute prescribed nothing more than that charges must be “ written.”- Consolidation Act, § 272. - No particular form is prescribed or required. . It is not required that more should be done than to specify the offense by any language which conveys that information, and enables the accused to prepare for trial. People v. Board of Fire Com'rs, 77 N. Y. 153-155. The police board is not a court, and the same formalities in its procedure as in ordinary tribunals of criminal jurisdiction is nót required. A general charge is sufficient to answer the purpose intended. People v. Board of Police Com’rs, 93 N. Y. 97. No particular rules of procedure govern the police board. They may proceed in their investigation in any manner they choose. People ex rel. Weston v. McClave, 123 N. Y. 512; 34 St. Rep. 274. In order that the discipline, efficiency, and utility of the police force may be maintained, and those unfit for such duties'may be removed, the law should be construed liberally, with a view to accomplish the purpose intended. People ex rel. Lee v. Doolittle, 44 Hun, 293; 7 St. Rep. 651.

Having in view these requirements, the letter addressed by the society to Oapt. Bakins and transmitted by it to the board as above described, were written charges within the statute, if the communication specified an offense, in plain language, which enabled the accused to meet the accusation. There can be no doubt that an offense wa's so described and specified as to leave no room for question. He was told that a number of vicious resorts were conducted in open and flagrant violation of law in his precinct, presumably with his knowledge and by his connivance, and a list of them was given, with a statement of their character, and he was charged substantially with neglect of his duty as a police captain in harboring such resorts of viciousness. which were so gross and open that this precinct then was, and "had long been, a disgrace to the department The fact that the captain concluded to demand his retirement from the force within five days after receiving the society’s letter is evidence that the charges were sufficiently specific and fully uriderstood. The board might undoubtedly, therefore, have acted upon those charges and cited the accused to answer them; but, although they were received by the board on the 13tb, the same day that they were sent to the captain, he was not summoned to answer until after his application for retirement on the 25th. Where these charges pending at the time of such application ? It is contended, on his behalf, that, until notice had been given to the accused by the board, or he had been cited to answer, there were no charges pending against him. But notice to the accused is only one step in the pendency of such a prosecution. The first step is the presentation of charges to the board. The next may be notice from the board to the accused, or may be refefence of the complaint to counsel or committee, to be formulated. In any case the proceeding is commenced when the written accusation subscribed by the complainant is presented to the board in any form of which it must take notice; and after the proceeding was commenced it is pending until terminated. Suppose that the statute forbade the commissioners to retire an officer against whom charges were pending. Could the fcommissioners, after receipt of charges, postpone notice to the accused in order to accept his application for retirement, without violating the statute? If not, could the accused, taking advantage of the delay necessary for formulating the charges already presented, interpose his application and defeat the statute ? That is the case here; and, inasmuch as the statute does substantially forbid the retirement of an officer while charges are pending, I do not see how the commissioners themselves could escape'accusation of breach of duty had they disregarded the complaint made" by the society and retired the relator upon his subsequent application.

The order appealed from should be affirmed.

All concur.


text:
    Caspar Strobel, App’lt, v. John Ochse, Impleaded, etc., Resp’t.

      (New York Common Pleas, General Term,

      Filed December 2, 1895.)

    Mechanic’s lien—Joint contract.
    Joint contractors, who divide the work and compensation, with the ' owner’s assent, may file and enforce separate liens.
    Appeal from a judgment dismissing the complaint.

      Wilson, Barker & Walsh, for app’lt; Samuel Mullen, for resp;t.
   Daly, C. J.

Stroebel, .the plaintiff, and one Schreiber, who were not copartners, signed a contract with the defendant, Ochse, to do the mason, carpenter, and plumber work upon Ho. 297 Bast Tenth street for the sum of $1,325; but immediately after the signing of the contract it was agreed between all the parties that Stroebel was to get $500 for the mason work, and pay his men, and Sohrieber was to get the balance, a-nd pay his men. The effect of this division of the work,, while it did not affect the joint liability of Stroebel and Schreiber for the due performance of their contract, was to constitute each of them subcontractors under the joint contract. Vogel v. Whitmore, 72 Hun, 417; 54 St. Rep. 882. Being subcontractors each had the right to file a separate lien for the amount due him, and this is what the plaintiff, Stroebel, did, and commenced this action to foreclose it. His action was dismissed on the ground that he should have filed a joint lien ■ with Schreiber, because the evidence showed a joint contract, and that no alteration of the contract with defendant’s consent had been made. It is not certain that the consent of the defendant to the division of the work or severance of the contract need be shown to give the plaintiff, under his agreement with Schreiber for a division, the rights of a subcontractor. But in this case 'the defendant’s assent was proved, and so that objection was out of the way. As a subcontractor, Stroebel was not bound to file a joint lien with Schreiber. It was necessary, of course, to prove the due completion of the work under the joint contract, and this he did. As Schreiber was made a party defendant to the action, the defendant was amply protected, and any defense against his joint contractors was available to him. A prima facie case for recovery was made out, and the complaint should not have been dismissed.

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

All concur.


author: Pryor, J.

text:
    Henrietta Hecht, App’lt, v. Edward C. Heerwagen, Resp’t.

      (New York Common Pleas, General Term,

      Filed December 2, 1895.)

    Landlord and tenant—Rent.
    Bent payable on the first day of each month is collectable only to the time of a fire occuring in the middle of the month, under a provision in the lease that when, on the occurence of a fire, the landlord elects to end the term, the accrued rent shall be paid up to the time of the fire.
    Appeal from a judgment entered on a verdict.

      Arthur Furber, for app’lt; Robert M Beyo, for resp’t.
   Pryor, J.

The authorities adduced by the learned counsel for the appellant, to which may be added Craig v. Buller, 83 Hun, 286; 64 St. Rep. 733, are conclusive of the proposition that the entire rent for the month of August was due on the 1st day of the month. Hence, aside from any provision in the lease qualifying the legal rights of the parties, the termination of the tenancy on the 12th of August would be no answer to an action for all the rent of the month. But the parties have expressly stipulated that when, on the occurrence of a fire, the landlord elects to end the term, the “ accrued rent shall be -paid up to the time of the fire.” The landlord knew that the entire rent for August would accrue and be due on the 1st day of the month. What, then, did he mean by the provision that accrued rent should be paid up to the time of the fire? He could" intend but one thing, namely, that, although all the rent for August accrued on the 1st day of the month, yet .the tenant should pay rent' only to the 12th, the time of the fire. Upon any other construction, the words “up to the time of the fire” would be utterly without-operation and effect. Of course, it was competent for the parties by express covenant to apportion the rent, Zule v. Zule, 24 Wend. 76; Church v. Seeley, 110 N. Y. 457 ; 18 St. Rep. 280; and this they have done .by terms of which the meaning is unmistakable.

We are content, without further argument, to affirm the judgment on the opinion of Conlan, J., in the court below.

Judgment affirmed, with costs.

All concur.


author: Giegerich, J.

text:
    Johanna Mahoney, App’lt, v. Emma Mahoney, Resp’t.

      (New York Common Pleas, General Term,

      Filed December 2, 1895.)

    Trial—Objection.
    An objection to any conversation in respect to professional opinion is not an objection to professional communications between attorney and client, but rather to the general incompetency of opinions as evidence.
    Appeal from a judgment in favor of defendant, rendered by the justice without a jury.

      Moses Weinman, for app’lt; Philip Britt, for resp’t.
   Giegerich, J.

A careful 'perusal of the voluminous record convinces me that the trial justice was right in his conclusion upon the facts, viz., that the defendant’s promise to pay the plaintiff was voluntary, and not founded upon any claim of legal right made by the latter against the former. The only alleged error urged by the appellant for the reversal of the judgment is that the testimony of Mr. Leopold Wallach disclosed professional communications between him and his client, the plaintiff, and was consequently erroneously admitted. The proper ground of objection was, however, not specified upon the trial. The objection made was to “any conversation in respect to professional opinion,” and in view of the facts and the context this cannot be understoood, and could not have been understood by the justice or adverse counsel, as referring to professional communications between attorney and client, but rather to the general incompetency of opinions as evidence; and hence, under well-established rules, it should be disregarded. Mead v. Shea, 92 N. Y. 122; Baylies, Trial Prac. p. 202, and cases cited. As we are satisfied, from a careful consideration of the evidence, that the decision of the justice was in all respects correct, the judgment should be affirmed, with costs.


author: Per Curiam.

text:
    Henry Constant, Resp’t, v. John F. Barrett, App’lt.

      (New York Common Pleas, General Term,

      Filed December 2, 1895.)

    Summary proceedings—Set-off.
    A tenant, who acquires an overdue mortgage upon the demised property, cannot set-off the debt against the rent in a summary proceedings.
    Appeal from a final order dismissing the petition.
    Motion by defendant for leave to appeal to the court of appeals.

      Charles Strauss, for app’lt; William IP. Sage, for resp’t.
   Per Curiam.

Although the opinion of the general term, incidentally deals with the question of the power of the justice of a district court to entertain an equitable defense to a proceeding to recover real estate, under section 2244 of the Code, as amended in 1893, yet that question is not directly brought up by" this appeal, because the decision of the court proceeded upon the ground that the facts set up constituted no defense. The case is a peculiar one, and not likely to be of frequent occurrence. It is that of a tenant who acquires an overdue mortgage upon the demised property and desires to set off the debt against the rent in a summary proceeding. This we held he could not do, and we pointed out the ample remedies at his disposal in an action to foreclose his mortgage. The .question is not one which would authorize us to grant the motion asked for.

Motion denied, with $10 costs.


author: Daly, C. J.—

text:
    Patrick Dunn et al., Resp’ts, v. Charles Wehle, App’lt.

      (New York Common Pleas, General Term,

      Filed December 2, 1895.)

    Jurisdiction—New York city court.
    A complaint, which alleges that defendant, by false representations, induced plaintiff to execute an assignment of a judgment, that defendant collected the amount thereof; and refused to pay it over,—and asks for the recovery of the amount of the judgment, and that the assignment be set aside, states a legal cause of action as to the recovery asked, and to that extent the city court has jurisdiction.
    Appeal from an order discontinuing the case without costs.

      Charles Wehle and Geo. H. Yeaman, for appl’t; John Whalen, for resp’ts.
   Daly, C. J.—

The city court denied costs to the defendant upon the plaintiffs’ application for leave to discontinue, upon the ground that the complaint ’ showed want of jurisdiction in that court, and it therefore had no power to award costs to either party. The complaint set forth a cause of action for money, of which the city court had jurisdiction, but it demanded, in addition to the judgment at law, equitable relief, which was necessary in aid of the legal recovery. In such a case I think that the plaintiffs might1 have waived, or the court might have -disregarded, the prayer for equitable relief, and ‘judgment might have been given at law; and so, when plaintiffs sough/t to discontinue after putting the defendant to the trouble of answering, the court might, have allowed costs, as a condition of granting the application. The plaintiffs’ cause of action was that through their attorney, this defendant, they had obtained judgment against third parties for $1,793.73, and that the-said attorney had collected the sum of $1,400 from said parties, and satisfied the judgment, and had retained the money so collected after demand upon him. The complaint averred, in addition, that at the time of obtaining the judgment he had induced one of the plaintiffs, Patrick, to execute an assignment of it to him (defendant) representing that instrument to be an authority to collect and receive the amount of the judgment; that the other plaintiff, Ann, had refused to sign or execute the instrument; that nevertheless it was filed in the office of the clerk of the court, purporting to be signed and executed by both plaintiffs, but that it was null, void, and of no effect. The equitable relief prayed for was that the alleged assignment be declared fraudulent and void and of no effect, and that the same be set aside. The cause of action set forth was purely legal in its nature. If the averments of the complaint were true, the alleged assignment was fraudulent in law as well as in equity; and, if it were interposed as a defense to the plaintiff’s claim for the proceeds of the judgment, it would have been ineffectual on proof of the fraud, or that it was delivered merely as evidence of authority to collect the judgment As between plaintiffs and their judgment debtor, it might have been necessary to invoke the equity powers of the court to cancel the assignment before attempting to collect the judgment; but, where- the judgment'has been paid to the alleged fraudulent assignee, no cancellation is necessary as a prerequisite to a recovery from him. The primary right of the plaintiffs was a legal one, — their remedy pecuniary and legal. 8 Am. & Eng. Enc. Law, 650, 651. The order will therefore be reversed, with costs and disbursements of this court to appellant, and the case remitted to the city court to exercise its discretion in the matter of the imposition of costs upon discontinuance.

All concur.


author: Bookstaver, J.

text:
    Lucy E. Blake et al., Resp’ts, v. Nathan J. Newwitter, App’lt.

      (New York Common Pleas, General Term,

      Filed December 2, 1895.)

    Appeal—Evidence.
    The finding of a trial judge, on conflicting evidence, will not not be disturbed on appeal.
    Appeal from an interlocutory judgment in favor of plaintiffs.

      Cantor & Van Schaiclc, for app’lt; Artemas B. Smith and Arthur L. Henthorn, for resp’ts.
   Bookstaver, J.

The appellant’s sole contention is that the judgment is unwarranted by the facts. The complaint alleges that the plaintiffs, pursuant to an agreement between them and the defendant, performed certain labor and furnished certain materials in putting in steam-heating appartus, and making repairs to the heating tank and boiler; that by the terms of the agreement the defendant was to pay the fair and reasonable value of the work done, labor and materials furnished, which was $1,114.98; that the defendant has paid on account thereof the sum of $413.78, and they demand judgment for the balance. The defendants answers that the materials and work were defective, in that the boiler furnished burst, which compelled him to put in a new boiler at an expense of $500, and that he was thereby further damaged in the sum of $1,000, both of which sums he counterclaims. By their reply, plaintiffs deny the defects, and allege that the boiler which they had furnished was sufficient, but, through the carelessness of the defendant or his servants, was improperly used, in that it was-overheated and at the same time not supplied with sufficient water. The reply also set up an accord and satisfaction. The defendant sought to prove upon the trial that the damage to the boiler resulted from the fact that the plaintiffs improperly placed in position and connected a certain automatic, self-acting water feeder to the boilers. He contended that the feeder was placed too low to fill the boiler at its proper level, thereby causing the boiler to burn out. The evidence shows that the work was performed at the request of the defendant, and that the bills rendered were received by him without objection. The question in the, case is whether the work was properly-performed.

In October, 1892, the plaintiffs furnished a set of grate bars for the defendant’s boiler. In December they were called in to repair the boiler. They took out the old boiler and put in a new one. This work was completed, and a bill therefor, rendered January 1, 1893. On January 27, 1893, at the request of the janitor of the defendant’s buildings, their superintendent called and examined the boiler. He found the tubes over the fire red, and badly twisted. On this same day they wrote the defendant: “ Agreeable to you request, and also to call of your 'janitor, we sent our superintendent to the Hamilton apartment house this morning, and we find that the water has b.een out of the boiler and the boiler burnt, through the carelessness of your janitor. When he called at your office this morning, he was under the influence of liquor, and when our superintendent and one of our best men saw him this afternoon, he was still under the influence of liquor. * * * Shall we go on and make good the damage, and charge to your account ? ”

They received the following letter in reply from the defendant:

“ Please proceed to make the repairs in the boiler of the Hamilton, in answer to yours of this date.” ■

On February 3d the plaintiffs wrote to the defendant:

“ You are-probably aware that the work done by our men on Saturday and Saturday night.last was of such a nature as to allow the boiler in your apartment house * * * to be run on Sunday morning, and continued, in a partially repaired condition, until we could complete the repairs. The boiler is now running with about twelve of the lower tubes removed. These are the tubes that were so badly burned. We also find that two of the headers were cracked and required renewal. * * * It will be necessary, in order to put the boiler in condition, to go through with the same amount of work as we did with the old boiler,” etc.

In a postscript they added :

“We presume you understand that we will allow you for such parts of the present burnt sections as may be suitable to be used again by us in other work, and charge you the cost of replacing the burnt tubes with new ones, in addition to the labor of putting in the new sections in the building.”

Defendant answered, February 6th :

“ Yours, dated 3d inst, received. In reply, I desire the repairs to the boiler made as you know best, so as to avoid a similar occurrence. ■ Please do the work as soon as possible.”

Plaintiffs proceeded with the repairs and rendered a bill for this work July 27, 1893. In September of that year the defendant called at their place of business and gave them two notes, aggregating $600, in payment. The plaintiffs made an allowance of $12.78 and had received previously $400, so that the two notes were given in settlement of the balance due on that date. After September 28, 1898, the plaintiffs did further work on the boiler at the defendant’s request, and rendered a further bill for $101.20. This work consisted in putting in new tubes and cementing the cracks in the headers. It appears that in the following March, the boiler leaked again, and a new one was put in by other parties.

The defendant’s case rests mainly upon the testimony of William Ryan, who was the engineer or janitor who had charge of the boiler in January, 1893, when it burst, and who was discharged for intoxication on the statement to that effect made by the plaintiffs. He testified that he had told the plaintiffs that the feeder was placed too low. This the plaintiffs deny. It appears that an automatic feeder is an apparatus which easily gets stopped up and out of order, and has to be carefully watched. Ellison, for the defendant, testified that he examined the boiler before it was taken out and found two of the headers cracked. The tubes were all right. This was in March, 1894. Examined as an expert, he expressed the opinion that the cracks were nearly new; that they might have been caused by the feeder being placed too low. He put in a new boiler, using the same feeder as had been used in the old one. The plaintiffs’ witnesses testified that the feeder was not placed too low, and that, even if it had been two inches too low, it would still have supplied sufficient water to the boiler. ' After the new boiler was put in, it was tested to fifteen or twenty pounds, and found to work all right, and it was tested after the repairs was made. The feeder each time kept the boiler supplied with sufficient water. From a careful examination of the evidence we are convinced that the preponderance of evidence is with the plaintiffs, that the boiler was originally injured by reason of the neglect of the defendant’s janitor, and that, if it had been properly attended to, it would not have burnt.

The justice at the trial had the witnesses before him, and was better able to judge of their credibility upon the disputed facts than we can be. His conclusion is abundantly supported by the evidence. No error seems to have been made in the admission or exclusion of evidence.

The judgment is therefore affirmed, with costs.

All concur.


text:
    Hubert W. Martin, Resp’t, v. Mary E. Coleman, App’lt.

      (New York Common Pleas, General Term,

      Filed December 2, 1895.)

    Appeal—Discretion of trial court—Striking out testimony.
    Whether to strike out illegal evidence admitted without objection, is a question of judicial discretion, and a refusal to strike it out presents no error on appeal. The party prejudiced by such evidence should request an instruction to the jury to disregard it.
    Appeal from a judgment of the city court, affirming a judgment entered on a verdict in favor of plaintiff.

      H. H. Snedeker, for app’lt; Myron H. Oppenhdm,, for resp’t.
   Pryor, J.

In an action for damages from an overflow of water on defendant’s premises, the questions are whether the evidence sufficed to authorize the jury to find that the injury was the effect of the defendant’s negligence, and whether, by due objection and exception, she shows error in the .proof of damages.

Beyond doubt the plaintiff presented a prima facie case of injury from defendant’s negligence. The escape of the water from premises of which she was in the exclusive occupancy and control, of itself, raised an inference of negligence against her. Moore v. Goedel, 34 N. Y. 527, 532; Breen v. N. Y. C. & H. R. Railroad Co., 109 id. 297; 14 St. Rep. 835. But, indeed, the defendant frankly owned, immediately on discovery of the injury, that it was imputable to the fault of her employes, and the only fact she controverted was the extent of her liability. She now insists that her admission is ineffectual, because opposed by a physical impossibility. But we discover no mechanical obstacle to the escape of the water from the washstand to the ceiling, whence it dripped upon the plaintiff’s goods. The affirmance of the judgment in the city court is conclusive, on this appeal, of all questions of fact upon conflicting evidence. Clark v. Smith, 9 Misc. Rep. 164; 60 St. Rep. 634.

In proof of his damages the plaintiff was asked : “ To what extent were those goods damaged? Was it a quarter or a half, as to value?” The question being objected to “on the ground that it was not the proper way of proving damages,” no answer was returned. Thereupon the court inquired, “What was your loss, in dollars and cents ? ” The witness responded, “ Five hundred dollars.” Then, the first time the defendant challenged the evidence, because giving merely the conclusion of the witness. The court replied, “ The question is answered, and I will allow it to stand.” The evidence was clearly incompetent. Morehouse v. Mathews, 2 N. Y. 514; Roberts v. N. Y. E. Railroad Co., 128 id. 455, 464; 40 St. Rep. 454. But to the question eliciting it no objection was interposed. What remedy then was open to defendant ? Obviously, a motion to strike out. In terms, this motion was not made, but assuming, as the court seems to have understood, that the objection was in effect such motion, still whether to grant it was a matter of judicial discretion; and, to present the point in the evidence, the defendant should have requested a direction to the jury to disregard it. Platner v. Platner, 78 N. Y. 90, 101; Pontius v. People, 82 id. 339, 347. No such instruction having been asked, the presence of the evidence is not available error If the appellant is precluded from recourse to the error by a technicality, it is also true that the amount of damages awarded against her is abundantly supported by other evidence, which she in no way challenged, and of which she now makes no complaint.

Judgment affirmed, with costs.

All concur.'


text:
    Frank N. Dodd, App’lt, v. Permelia M. D. Averill, Resp’t.

      (New York Common Pleas, General Term,

      Filed December 2, 1895.)

    Appeal—From city court to common pleas—Weight op evidence.
    If the evidence of the residence of the defendant suffices to uphold an order vacating an attachment, though the proof to the contrary preponderates such order by the city court is not re viewable by the common pleas.
    Appeal from an order of the city court, affirming an order vacating an attachment issued on the ground of the nonresidence of the defendant.

      Robert Van Iderstine, for app’lt; W. T. B. Milliken, for resp’t.
   Pryor, J.

While the evidence as to the nonresidence of the defendant is quite impressive, it cannot be denied that there is proof to the contrary sufficient to support the order vacating the attachment. Such being the case, whether the attachment should stand rested in the discretion of the court below, and its action in vacating it is not reviewable by an appellate tribunal. Sartwell v. Field, 68 N. Y. 341; Allen v. Meyer, 73 id. 1; Glenney v. Stedwell, 64 id. 120, 128; Jenkins v. Putnam, 106 id. 272, 276; 8 St. Rep. 710; Claflin v. Baere, 59 How. Prac. 20. We have uniformly held that on appeal from the city court we will not review its action upon matters of discretion. Keller v. Feldman, 2 Misc. Rep. 179, 181; 49 St. Rep. 718; Pots v. Herman, 7 Misc. Rep. 4; 57 St. Rep. 78 ; Capel v. Lyons, 3 Misc. Rep. 73 ; 51 St. Rep. 601; Tooker v. Booth, 8 Misc. Rep. 304; 59 St. Rep. 282. It not being apparent but that the attachment in question was vacated in the exercise-of discretion, we have no jurisdiction to review the order of the city court. Brooks v. Construction Co., 93 N. Y. 647.

Appeal dismissed with costs.

All concur.


text:
    Howard Y. Stillman, Resp’t, v. Associated Lace Makers’ Company, App’lt.

      (New York Common Pleas, General Term,

      Filed December 2, 1895.)

    Service—Corporation—Officer de facto.
    Service of summons on the president de facto of a defendant corporation gives the court jurisdiction of such defendant corporation ; and a subsequent adjudication, in a proceeding to which plaintiff was not a party, that the person served was not president de jure, is ineffectual to divest or defeat jurisdiction.

      Appeal from an order denying amotion to vacated judgment.

      Ronald K. Brown, for app’lt; Howard Y. Stillman, for resp’t.
   Pryor, J.

The appeal is from an order denying a motiom to-vacate a judgment on the ground that the person on whom process was served was not lawful president of the defendant corporation. But by stipulation of the parties that person was president de facto ; and in every jurisdiction, from the necessities of social order and distributive justice the acts of an officer de facto are conclusive as to the public and third persons. Demarest v. Mayor, etc., 147 N. Y. 203, 208; 69 St. Rep. 505 ; Lambert v. People, 76 N.Y. 220, 231; Carpenter v. People, 64 id. 483; Dolan v. People, id. 485; People v. Terry, 108 id. 1; 12 St. Rep. 773; Trustees v. Hills, 6 Cow. 23; Associaiion v. Baldwin, 1 Metc. (Mass.) 359 ; Hildreth's Heirs v. McIntire's Devisee, 19 Am. Dec. 66, note; Mallet v. Mining Co. , id. 484, note; Ward v. State, 91 id. 270, note; 5 Am.u& Eng. Ene. Law, p. 94. Hence, by, service on the president de facto, the court acquired jurisdiction of the defendant, Berrian v. Methodist Soc., 4 Abb. Prac. 424, 425; 6 Duer, 682 ; and upon the plainest principles that jurisdiction was not divested or defeated by the subsequent' order of the supreme court in a summary proceeding to which this plaintiff was an entire stranger, Taylor v. Ranney, 4 Hill, 619, 623. Indeed, the order does not determine that the president was not an officer defacto, but only that he was not such de jure. Were the motion under review an address to the favor of the court, we should not be justified in admitting appellant to a defense after its deliberate refusal to appear on the trial, and its long delay in applying for relief. It disclaims, however, the position of a suppliant, and stands defiantly upon its supposed right. In default of such right, we have no alternative but to affirm the order.

Order affirmed with costs and disbursements.

All concur. '


author: Bischoff, J.

text:
    Jacob Kantrowitz, Resp’t, v. Isaac Levin, Impleader, etc., App’lt.

      (New York Common Pleas, General Term,

      Filed December 2, 1885.)

    Texal—Direction oe verdict—Waiver.
    The right to have disputed facts submitted to the jury is not waived by a motion to dismiss or have the verdict directed, where the appellant Promptly, upon the court's direction of a verdict for the respondent, takes an exception, and requests that the disputed facts be submitted to the jury.
    Appeal from a judgment of the city court, affirming a judgment entered on a verdict in favor of plaintiff. - ■

      A. H. Berrick, for app’lt; M D. Steuer, for resp’t.
   Bischoff, J.

That the notes were genuine was not disputed upon the trial, and it is well settled that every member of a firm engaged in commerce or trade has implied or apparent authority to borrow money in the firm’s name, and to issue its promissory note, or other obligation, for the payment thereof, 17 Am. & Eng. Ene. Law, pp. 993, 1015, 1017, 1018; Bank v. De Puy, 17 Wend. 47; that the lender may rely upon such implied or apparent authority in the absence of knowledge on his part that the borrowing partner’s authority is restricted, or that the money is not borrowed for partnership purposes, or for the use of tne firm, Miller v. Manice, 6 Hill 114; Livingston v. Roosevelt, 4 Johns. 251; Bank v. Underhill, 102 N. Y. 336; 17 Am. & Eng. Enc. Law, p. 995; that all the partners are liable notwithstanding the money was appropriated by the borrowing partner to his own use, Church v. Sparrow, 5 Wend. 223; that a promissory note given by one of several partners in the name of the firm is of itself presumptive evidence of the existence of a partnership debt; and that, if the other partners seek to avoid its payment, the burden of proof lies upon them to show either that the note was given without any consideration whatever, or that it was given in a matter not relating to the partnership business, or in violation of tile borrowing partner’s actual authority, and that the payee knew the fact, as the case may be, or was put upon reasonable inquiry concerning it. Whitaker v. Brown, 16 Wend. 505; Bank v. Underhill, supra. The cause was tried with proper observance of the rules stated. Nevertheless we are required to reverse the judgment. Only the appellant defended the action, and when both sides had concluded the introduction of evidence upon the trial there was a conflict with regard to whether or not the firm was indebted to the plaintiff. The plaintiff’s testimony that he had advanced and paid to the borrowing partner the face value of each note, and that of the plaintiff’s witness, Kuclielewitz, that he was present on a particular occasion when then theappllent’s partner applied to the plaintiff for money, saying:

“ There are $600 due me already. I am taking the money to keep. I am taking it in business. You don’t need to be afraid of me. I will pay you altogether,”— and that he saw the plaintiff give such partner some money in exchange for a note; as well as the presumption of the firm’s indebtedness, which arose from the production of the notes in evidence, — were combated by the appellant’s affidavit, made upon a motion in the action, and allowed in evidence at the plaintiff’s instance (Helwig v. Mut. L. Insurance Co., 132 N. Y. 331; 44 St. Rep. 429), which was to the effect that the appellant's firm, never received any money from the plaintiff, and was not otherwise indebted to the latter; and by the appellant’s testimony as a witness in his own behalf, of like purport with his affidavit. Kutchelewitz’s testimony, quoted above, neither identified time, place, nor the note alluded to. -Its relevancy, therefore, was not apparent, and thus the fact that the plaintiff, at the time when the notes were severally issued to him advanced anything of value upon the faith thereof remained, substantially, to be ascertained from the plaintiff’s testimony, which being that of a party interested in the event of the action, was subject to discredit that account, although it was not otherwise .impeached.

Olsen v. Ensign, 7 Misc. Rep. 682; 58 St. Rep. 378 ; Brown v. Sullivan, 1 Misc. Rep. 161; 48 St. Rep. 685; Canajoharie Nat. Bank v. Diefendorf, 123 N. Y. 191; 33 St. Rep. 389. The defendant (appellant), therefore, was entitled to have the facts in. issue, and required in support of’ the plaintiff’s right of recovery. viz. that the loans were actaully made, that they were made to. the firm, or that the firm shared in the avails thereof, submitted to the jury for their determination, unless the right to such submission was waived.

True, the defendant' (appellant) asked to have the complaint dismissed, and that a verdict be directed in his favor. Such motians, in the absence of circumstances from which the contrary appears or may be inferred, authorize the trial court to determine the facts as well as thelaw. Kirtz v. Peck, 113 N. Y. 222; 22 St. Rep. 733; Gregory v. Mayor, etc., 113 N. Y. 416; 22 St. Rep. 703.

In the case at bar, however, the defendant (appellant) promptly upon the court’s direction of a verdict for the plaintiff, took exception, and requested that the disputed facts be submitted to the jury. The exception taken to the denial of the last-mentioned request presents error.' Koehler v. Adler, 78 N. Y. 297, 290.


author: Bischoff, J.—

text:
    Lyman G. Bloomingdale et al., Resp’ts, v. Henry Steubing, App’lt.

      (New York Common Pleas, General Term,

      Filed December 2, 1895.)

    1. Appeal—Appealable order.
    An order, reversing the clerk’s taxation of costs, affects a substantial right, and is, therefore, appealable.
    2. Costs—Claim to real estate,
    Where, in an action for forcibly and wrongfully entering and taking possession of certain premises, the answer expressly admits the plaintiff’s title and right of possession as lessees, the issue, being wholly with regard to the terms and extent of the license from the plaintiff to the defendant, presents no claim of title to real property within the meaning of subdivision 1, section 3228 of the Code, so as to entitle the plaintiff to the costs of the action, notwithstanding the recovery was less than fifty dollars for damages.
    Appeal from an order of the city court, reversing the clerk’s taxation of costs.

      Moses Weinman, for app'lt; Chas. J. Hardy, for resp’t.
   Bischoff, J.—

The order effects a substantial right, and- is, therefore, appealable to this.court. McNamara v. Nolan, 68 St. Rep. 347.

The action was for “forcibly and wrongfully entering and taking possession on February 1, 1892, of certain premises, 160, 162, East Fifty-Ninth street, in the city of New York, of which plaintiffs were the lessees, under a lease from the defendant, expiring May 1, 1892,” and resulted in a verdict in favor of the plaintiffs for six cents damages. It was conceded by the pleadings that, “by agreement between the parties, the defendant was allowed to enter and take possession, and to try aud find a tenant for the premises for the unexpired term of the plaintiffs’ lease,” and the only issue tried and submitted was “ whether, having permission from the plaintiffs to enter for one purpose,” the defendant “availed himself of such permission for a totally different purpose, to wit, to put the premises in repair for the term commencing after plaintiffs’ lease expired.”

Bloomingdale v. Steubing, 12 Misc. Rep. 429; 67 St. Rep. 405. Obviously, the allegation of the complaint that the plaintiffs, as lessees were “entitled to the full possession of ” the demised premwas a conclusion of law, immaterial and not traversable. Scofield v. Whitlegge, 49 N. Y. 259. Hence, its denial by the defendant created no issue. People v. Commissioners of Town of Marlborough, 54 N. Y. 276. The answer expressly admitted the plaintiffs’ title and right of possession as lesseés of the defendant. The issue, being wholly with regard to the terms and extent of the license from the plaintiffs to the defendant, therefore, presented no “claim of title to real property," within the meaning of subdivision 1 of section 3228 of the Code of Civil Procedure, so as to entitle the plaintiffs to the costs of the action notwithstanding the fact that, the recovery was less than fifty dollars "for dainges, Utter v. Gifford, 25 How. Prac. 289;-and, pursuant to.the provisions of section 3229, the defendant was entitled to such costs.

The orders of the general and special terms of the court below, by which the plaintiffs were awarded the costs of the action, are reversed, with costs and disbursements of the several appeals to the defendant. •

All concur.


text:
    William E. Wamsley, Resp’t, v. Thomas A. Darragh, App’lt.

      (New York Common Pleas, General Term,

      Filed December 2, 1895.)

    1. Trial—Offer of proof.
    Where an offer of evidence couples admissible with inadmissible evidence, the whole offer must be rejected.
    8. Same.
    Where the papers, to which the several offers allude, do not appear in the record, the appellate court has no means of determining their relevancy' or materiality and will not presume error.
    Appeal from a judgment of the city court, affirming a judgment in favor of plaintiff.

      Brooke & Brooke, for app’lt; Alex. S. Bacon, for resp’t.
   Bischoff, J.

To an action by the indorsee of a promissory note, payable to the order of one Robert L. Darragh, against the maker, the defendant, after denying the fact of indorsement, as well as the plaintiff’s title to and ownership thereof, answered that the note was indorsed in the name of the payee and transferred to the plaintiff by one Laura A. .Darragh, who assumed, in that behalf, to act under a power of attorney which was executed by the payee while insane, and procured of him by means of undue influence and duress. The cause was tried before the justice, without a jury, at trial term of the court below, and resulted in a. judgment for the plaintiff. Such judgment was affirmed at general term of the court below, and from the judgment of affirmance the defendant has appealed to this court.

Upon the trial the note was produced and conceded to be genuine. Furthermore, the, fact of the indorsement in the payee’s •name, by Laura A. Darragh, was admitted, and the power of attorney under which the latter assumed to act received in evidence. This power of attorney was directed to Laura A. Darragh and Edgar Whitlock, but in terms authorized the persons last named jointly and singly “ to indorse,' either for collection or otherwise, any check, draft, bill of exchange, or promissory note drawn to bearer or to 1 the order of the principal,’ or indorsed payable to ‘the principal or his order,’ and to execute and deliver'all proper and necessary instruments for the assignment or satisfaction- of any and all mortgages held by 1 the principal ’ on either real or personal estate, or of other evidence of indebtdness.” This was ample evidence of authority in Laura A. Darragh, without Whit-lock’s joinder, to indorse and transfer the note in suit, and the note and indorsement each imported a sufficient consideration. Abb. Tr. Ev. pp. 403, 413. The defendant’s attitude conceded his refusal to pay the note, and demanded of payment of a promissory note is not a condition precedent to a right of recovery against the maker. 5 Am. & Eng. Enc. Law, p. 528z46, and cases collected in note 4. The plaintiff’s right to the judgment rendered was, therefore, incontestable, in the absence of proof of a valid defense.

It seems that one non compos mentis is incapable, in law, of appointing an agent, and that such an appointment is void, and not voidable merely. Dexter v. Hall, 15 Wall. 9; Bunce v. Gallagher, 5 Blatch. 481; 7 Am. Law Reg. (N. S.) 32; Fed. Cas. 2,133; Zouch v. Parsons, 3 Burrows, 1794; Ewell, Lead. Cas. 3 ; Fonda v. Van Horne; 15 Wend. 631; Fetrow v. Wiseman, 40 Ind. 148; Ewell, Lead. Cas. 22. Assuming, therefore, that the payee’s insanity at the time of the execution and delivery of the power of attorney was available as a defense to this action, we must, notwithstanding, conclude that the judgment appealed from is unimpeached; since the record is destitute of evidence in support of the defense, and presents no vaild exception to the exclusion of evidence. It was not contended, in the defendant’s behalf, that the payee had ever been adjudged to be of unsound mind. Such an adjudication would have been conclusive of the fact with regard to all subsequent acts of the person declared to be incompetent, and prima facie evidence of the fact with regard to his acts done within the period during which he was adjudged to have been incompetent. 2 Black, Judgm. § 802; Hughes v. Jones, 116 N. Y. 67; 26 St. Rep. 511. The defendant, however, contented himself with offering in evidence (1) “a copy of the verified answer to petition for probate of an instrument purporting to be the last will and testament of said Robert L: Darragh, decedent, in proceedings now pending in the surrogate’s court of the county of New York; ” (2) “copies of record in court of common pleas in proceedings for commission in lunacy of person and estate of Robert L. Darragh, pending at the time of his decease; ” and (3) “ petition and affidavits in support of proceedings and application for commission in lunacy in court of common pleas, pending at time of death of Robert L. Darragh.” The paper to which the several offers alluded do not appear in the record. Hence, we have no means of determining their relevancy or materiality. Hughes v. Hughes, 10 Misc. Rep. 180, 183 ; 62 St. Rep. 438. And we may not presume error. Id. Again, the several offers comprehended matter which was so palpably hearsay that, even assuming its relevancy and materiality, its exclusion was imperative to avoid error. Lastly, the defendant offered “oral testimony * * * that Robert L. Darragh was unsound of mind, and mentally incompetent to make such power of attorney, and to prove the undue influence of the said Laura A. Darragh over and upon Robert L. Darragh at the time of making the same.” This testimony was likewise excluded, under objection and exception, as “ irrelevant, incompetent and immaterial.” ' The vice of the offer was that it coupled evidence admissible under the assumption that the insanity of the payee was a valid defense with evidence which was inadmissible since the procurement of the power of attorney by means of undue influence and duress was a defense available alone to the payee or his legal representatives.' 6 Am. & Eng. Ene. Law, p. 90. The evidence having been in part properly rejected, no error is apparent from the ruling. Baylies, Tr. Prac. p. 203, and cases there collated.

The judgment should be affirmed, with costs.

All concur.


author: Pryor, J. Bischoff, J.

text:
    Kate Lawlor, as Administratrix, etc., Resp’t, v. Thomas Henry French, App’lt.

      (New York Common Pleas, General Term,

      Filed December 2, 1895.)

    1. Animals—Liability for.
    In an action for injury by a vicious animal, the keeper of the animal is the responsible party.
    3. Same—Keeper—Manager of corporation.
    When such animal is used in the business of a corporation, the president and manager, who controls and conducts the business, and may hire or discharge the animal is the keeper, and is responsible for any injury it may do.
    8. Same—Notice of character.
    To fix liability for keeping a vicious animal, actual notice of its mischievous propensity is not necessary, but it suffices if, in the exercise of due care, the keeper would have known of the propensity.

      4. Evidence—Expert testimony.
    The court is not bound to charge the uncontroverted opinion of an expert as an absolute and imperative fact in the case, but it is for the jury to find the fact on the evidence.
    5. Exceptions heard at general term—Weight of evidence.
    It seems that upon exceptions ordered to he heard at general term, with no motion for a new trial at circuit or special term, the court may not consider whether the verdict is without evidence, or against the weight of eviden/e.

      Motion for a new trial on exceptions, ordered to be heard at general term in the first instance.
    In the exhibition of the “.Prodigal Daughter” Play, a number of horses took part. From one of them, plaintiff’s -intestate received a kick, which it is alleged, killed-him. The play was produced by the American Theatre Company, a corporation, but defendant was its presidént'and manager; as such, supervised the production of the play, and particularly,' had power to employ and order off any horse. The intestate, an employe of the company, was hurt by the horse while both were in the discharge of their duties. The horse was of vicious habit; but while, of the habit, defendant had no actual notice, it had been repeatedly exhibited in the theater, and was known to several persons, one at least in the employ of the company, and subject to the control of the defendant. Defendant was “ about there most every night."

      T. Darrington Semple, for pl’ff; Parsons, Shepard & Ogden, for def’t.
   Pryor, J.

In an action for damages from the death of plaintiff’s intestate by the kick of a horse, the defendant contends that the evidence'was insufficient to authorize the inference either that the kick was the cause of the death, or that the horse was vicious, or, if vicious, that the defendant was aware of the fact, or that the defendant was responsible for the act of the horse, or that the injury was not the effect of the intestate's contributory negligence. But by what authority may we pass upon these questions ? As appellant states in his points, the motion is for a new trial upon exceptions ordered to be heard in the first instance at general term. The issues were submitted to the jury, and no motion for a new trial has been made either at circuit or special term. Such being the record, we have no jurisdiction to determine whether the verdict was without evidence, or against the weight of evidence. Price v. Keyes, 1 Hun, 177, 182 (reversed on another point, 62 N. Y. 378); Hotchkins v. Hodge, 38 Barb. 117, 121 ; Martin v. Platt, 4 N. Y. Supp. 359, 361; Emmons v. Wheeler, 3 Hun, 545. Assuming that the exceptions to the denial of the motion to dismiss the complaint, or direct for the defendant, presents the point that a verdict without evidence is legal error, we cannot conclude that upon either issue the finding of the jury is destitute of proof adequate to its support.

1. That the intestate died of the kick is an inference in which the jury were satisfied by plaintiff’s proof. The testimony of the expert directly to the fact, and of other witnesses to intestate’s condition before and after the hurt, was a sufficient basis for the verdict. That the kick was the cause of the death is concluded by the verdict. Lyons v. Railroad Co., 89 Hun, 374; 69 St. Rep. 816.

2. That the horse was of a mischievous propensity appears by the preponderance of evidence.

3. That the defendant knew, or, in the exercise of due care, would have known, of the vicious habit, is also a legitimate inference from the circumstances in evidence. Turner v. Craighead, 63 St. Rep. 853.

4. It is an immaterial fact that the defendant was not owner of the theater or the business in the transaction of which the injury was sustained. He was president and manager of the company, and so in control of its business that he had power to hire and discharge the horse. In the legal sense, he kept or harbored the animal, and is responsible for its acts. Bundschuh v. Mayer, 30 N. Y. Supp. 622 ; Greenberg v. Lumber Co.. (Wis.) 63 N. W. 93 ; Bridge Co. v. Paige, 83 N. Y. 178, 190 ; Bates v. Van Pelt, 1 Tex. Civ. App. 185; Cahoone-Barnet Manuf'g Co. v. Rubber & Celluloid Harness Co., 45 Fed. 582.

5. Upon the circumstances of the injury, the intestate’s freedom from contributory negligence was a valid conclusion. But - it is urged he hazarded the risk of injury by the horse, which is true enough of an injury from the use of a horse with a normal nature and disposition; but surely danger from a horse of an abnormal, evil propensity is not a peril incident to the business. A servant takes the risk of injury from the use of his master’s machinery, if it be in a safe condition, but not if, by the master’s fault, it be in an unsafe condition,—unless, indeed, the servant know of such condition. Here is no evidence that the intestate was apprised of the mischievous propensity of the horse. It is the duty of the master, not of the servant, to be cognizant of the condition of appliances. The analogy between the cases is perfect; and, as a servant may work with an implement on the presumption that the master has performed his duty in regard to its security, so the intestate was not chargeable with notice of the horse’s vicious habit.

The defendant challenges the refusals to charge, but, upon a critical examination, we find them correct in every instance. The supposed error especially relied on is the refusal of the court to charge as an absolute and imperative fact what rested only on the opinion of an expert. The opinion of an expert is not conclusive with the jury, and the court was right in submitting the testimony to their judgment. “ The judgment of a witness is not, as matter of law, to be accepted by the jury Tir place of their own.” Head v. Hargrave, 105 U. S. 45. If the charge of the very careful and experienced judge who presided at the trial be open to any criticism, it is excessive indulgence to the defendant.

Exceptions overruled, and judgment on verdict.

Bischoff, J.

I concur. That we cannot inquire into the weight.of the evidence upon this motion, see Sheridan v. Mayor, etc., 66 St. Rep. 728 ; and that for the negligence of a servant, resulting in injury to another, both master and servant may be held answerable, see Mayer v. Building Co., (Ala.) 16 South. 620; Peck v. Cooper, 54 Am. Rep. 231; Wright v. Wilcox, 19 Wend. 343 ; Montfort v. Hughes, 3 E. D. Smith, 591; Phelps v. Wait, 30 N. Y. 78; Suydam v. Moore, 8 Barb. 358.


text:
    Christie Manufacturing Company, Resp’t, v. Travers Bros. Company, App’lt.

      (New York Common Pleas, General Term,

      Filed December 2, 1895.)

    Appeal—Reversal.
    A judgment in excess of the terms of a written contract in evidence will he reversed, in the absence of proof that the contract has been modified.
    Appeal from a judgment in favor of plaintiff, rendered by the justice without a jury.

      James P. Campbell, for app’lt; Manice, Abbot & Perry (John M. Perry, of counsel), for resp’t.
   Giegerich, J.

The plaintiff in this action seemed to have one theory of its rights (as shown by the amount demanded), the defendant another (as shown by the amount of its offer of judgment), and the justice still a third (as shown by the amount awarded), with none of which we can agree, upon the facts appearing in the record. The bill of particulars s'hows the action-to have been to recover $48.80, the unpaid balance on a bill of $88.80 (a payment of $40 being credited on account), ánd in addition $9.10 for extra Sunday work, making a total of $57.90, for which judgment was asked. A written contract, in form of an accepted proposal, was read in evidence, as follows:

“ We will take the old crank pin out of the crank of said Corliss engine; will rebore the eye of the crank, fit and shrink in one new pin ; fit stem to brasses, complete,—for the sum of seventy-five dollars. ”

The bill for $88.80, dated June 17, 1895, appears from its items, and from the plaintiff’s letter of March 25, 1895, to have been for precisely the work called for by this contract. Yet the contract was, without auy sufficient evidence of its modification .or abrogation, ignored, and the recovery allowed was based upon the sum of $88.80; seemingly a quantum meruit, but without proof of the value of the work done. The judgment was for $45.30, and costs, apparently obtained by allowing plaintiff $88.80, and crediting the defendant with $40 paid on account, and $3.50, the amount of an overpayment on a former transaction, hut not allowing its charge of $9.10 for Sunday work. The utmost that could properly have been awarded the plaintiff was less than this, namely $44.10, obtained as follows: Allow plaintiff the full contract price of $75 ; and to this $9.10, its entire charge for Sunday work, making a total of $84.10; and deduct from this $40 the amount conceded by the plaintiff to have been received upon account, leaving $44.19. As the judgment is not supported by the proofs, in any aspect, the same should be reversed. Fuld v. Kahn, 4 Misc. Rep. 600; 54 St. Rep. 184; Owens v. Flynn, 7 Misc. Rep. 171; 57 St. Rep. 531 ; Pionier v. Alexander, 7 Misc. Rep. 709; 58 St. Rep. 341; Robinson v. Ficken, 10 Misc. Rep. 758 ; 64 St. Rep. 214. A new trial will no doubt result in a more satisfactory presentation of the evidence, which is confused, and will elimimite, and so render unnecessary any present discussion of, certain other questions argued upon this appeal.

For these reasons the judgment is reversed, and a new trial ordered, with costs to appellant to abide the event.


author: Fitzsimons, J.

text:
    George W. Ferguson, by Guardian, etc., Resp’t, v. George Ehret, App’lt.

      (New York City Court, General Term,

      Filed November 26, 1895.)

    1. Negligence—Collision—Proof of ownership.
    Evidence that a wagon, by which plaintiff was injured, bore defendant’s name and business address, warrants the finding that defendant was the owner.
    2. Proof.
    The evidence, in this case, was held sufficient to sustain a finding that the injury to plainliff by the collision with defendant’s wagon was caused by defendant’s negligence.
    3. Damages—Excessive.
    A verdict of §1,500, for personal injuries, was held, in this case, not to be excessive.
    Appeal from a judgment in favor of plaintiff.

      Ashbel P. Fitch, for app’lt; Mason & Pagelovi, for resp’t.
   Fitzsimons, J.

If defendant’s wagon caused the injuries plaintiff complains of, it is immaterial what its number was. There was certainly evidence showing that a wagon bearing upon it the defendant’s name and business address did collide with Hoeffler’s wagon, which in turn, and because of such collision, was forced over against plaintiff’s wagon, breaking it, throwing him out and against the sidewalk, from which he suffered the injures related by him. Such testimony certainly authorized the jury in finding that said wagon was one owned by defendant. It also appears that plaintiff's wagon was being driven along Eighth avenue, a public highway, in a lawful manner, and that such was also the case with Hoeffler’s and defendant’s wagons ; that when they were all three abreast, and going up town, the defendant’s horses and wagon were by their driver suddenly swung out of their course, and he endeavored to cross in front of the wagons of plaintiff and Hoeffler; that .in doing so it (defendant’s wagon) struck violently against Hoeffler’s wagon, and because of such collision, as before stated, Hoeffler’s wagon was forced over against, and struck, plaintiff’s wagon, breaking it and casting plaintiff out and upon the walk. Such testimony undoubtedly justified the jury in deciding that the defendant’s driver.was careless in the management of his horses and wagon.

The question, was plaintiff guilty of contributory negligence? was certainly for the jury to decide, and was properly submitted to them bv the trial justice.

The defendant’s claim that the verdict is excessive, and for that reason should be set aside, is not justified by the evidence, I think, because it appears that for several months plaintiff was under medical treatment; that he suffered from headaches and stomach ánd liver troubles, and several other things, as related by the attending physicians; and that “probably he may feel the trouble in his liver and spine all his life,” to use the words of Dr. Ahlstrom. If the plaintiff was so severely injured — and evidently the jury believed the testimony to be true—I think that it would be improper for us to declare the verdict herein ($1,500) excessive. That question was one for the jury, and their finding should be sustained, unless it appears to be the result of passion, prejudice, a disregard of the evidence, or some such consideration —something which, in our judgment, did not occur herein.

The judgment must be affirmed, with costs.


author: Conlaít, J.

text:
    James Burbridge, Resp’t, v. William H. Kilgannon et al., App’lts.

      (Brooklyn City Court, General Term,

      Filed October 26, 1895.)

    Conspiracy—Nonsuit.
    In an action to recover damages for a conspiracy, it is error to refuse a nonsuit as to one of the defendants, where there is no evidence connecting him as a co-conspirator with the other defendant.
    Appeal from a judgment in favor of plaintiff.

      Louis J. Grant, for app’lt; McIntyre & Settel, for resp’t.
   Conlaít, J.

Appeal from a judgment entered upon the verdict of a jury, and from an order denying a motion for a new trial. The action was brought to recover damages for an alleged conspiracy by the defendants to defraud the plaintiff out of the sum of $1,000 and interest, being the amount of two promissory notes alleged to have been given by the defendant William H. Kilgannon to' the plaintiff as part of the consideration of $3,500 agreed to be paid for the liquor business carried on at 663 First avenue, in the city of New York; the balance of the,-purchase money, it being claimed, having been paid in cash. The complaint alleges, in substance, that William H. Kilgannon, Michael Kilgannon, and Thomas Kilgannon, three brothers, conspired together,, and defrauded this plaintiff out of the sum stated ; and that, as a part of the transaction, the defendant William H. Kilgannon bought the place of the plaintiff on the 15th day of October, 1893, and within two weeks thereafter transferred the same to the defendant before the maturity of the notes referred to. The defendants answer by a general denial.

An examination of the whole case fails to show on what ground the judgment appealed from can stand. The plaintiff alleges a conspiracy betweenlhe three defendants, and, so far as we have been able to discover, there is an entire want of evidence connecting the defendant Thomas Kilgannon with the alleged acts of the1 other two defendants, and the evidence of the plaintiff himself tends to negative any such declaration. The plaintiff swears that it may have been two weeks after he. sold the store to the brothers of Thomas that he first saw the defendant Thomas, and he thinks ■it Was after he (the plaintiff) was informed that Thomas had purchased the store of his brother William. He says in reference to this first meeting with Thoma,s: “ I saw him in the store, and I was introduced to him there by one of his brothers. I paid for the drinks, and I asked him to have one, and I think he treated back. This was after I was informed that he had purchased the store.” Further testifying on this subject, and in reply to the question, “ Did you say anything to him then about his brother owing the notes ? " he said: “No, sir; that is the only conversation I had with him, to my knowledge.” And, again, at folio 104, he says: “I don’t know whether or not it (the matter of notes) was known to Thomas.” At the time of the delivery of the bill of sale from the plaintiff to the defendant William H. there were present William and Michael Kilgannon, Keys and Newman, who represented the brewer who was to advance the $1,500 of the purchase money, and Perry, the broker, besides the plaintiff. There is no pretense that Thomas was present or knew anything about it, and not one word was said about any notes, or whether they were good or bad. When the sale was made to Thomas, there were present Thomas and William, two of the brothers, and a Mr. Bander, who, drew the bill of sale, and the transaction took place at Mr. Baader’s office. Thomas produced $2,000, which was paid to William, and Thomas also assumed a mortgage of $1,500 which had been given to the brewer by William when he purchased of the plaintiff, to secure the brewer for that amount of money received by William from him, and paid to the plaintiff as part of the consideration of the sale from the plaintiff to William. The good faith of this transaction was not assailed, and it does not appear that there was any talk of „fraud or conspiracy until after the first of the alleged notes became due. The defendant Thomas does not appear to have been in any way connected with the transaction between the plaintiff and the other defendants.- It is needless to say that Thomas unqualifiedly denies each and every and all of the allegations so far as they tend to connect with him the conspiracy and fraud charged against his two brothers. The plaintiff was bound to make out his case by a preponderance of all the evidence, and this he utterly failed to do so far as connecting Thomas with the alleged acts of his two brotners. There is no evidence against Thomas as a co-conspirator, and, if that is so, then the court; erred in denying a motion for a nonsuit as to him, in the first instance, when the plaintiff rested his case, and, again, at the close of all the testimony. The complaint should have been dismissed as to him.

Judgment reversed, with costs, as to defendant Thomas, and affirmed as to the other defendants, with costs.


author: McCarthy, J.

text:
    John Murray, Resp’t, v. Thomas E. Crimmins, App’lt.

      (New York City Court, General Term,

      Filed November 23, 1895.)

    1. Master and servant—Liability.
    Where the master provides a competent foréman and assistant foreman, and the proper and usual appliances, he performs all that the law requires of him.

      2. Same—Fellow servant.
    Where the manner of doing the work is intrusted to the foreman and assistant foreman, they are in that respect fellow servants with the workmen, and if they, or any of them, are negligent in conducting the progress of the work, and such negligence is the cause of the servant’s injury, it is the negligence of the fellow servant, for which the master, in the absence of personal participation, is not liable.
    3. Same—Rank of fellow servant.
    The superior rank of the fellow servant, who is guilty of negligence, is no answer to the master’s non-liability.
    Appeal from a judgment in favor of plaintiff.

      Charles G Nadal, for app’lt; William, M Morris, for resp’t.
   McCarthy, J.

An examination of the evidence, and an application of the law, as we understand it, to the same, seems to be against the plaintiff. We do not make the law, nor are we responsible for its effects, but must declare and observe it, no matter how much we disagree with' its wisdom or equity. We think that, within recent years, and not without great reasoning, the law in regard to master" and servant and fellow servant has been given a very broad interpretation ; the result being to practically deprive a poor workingman, who, in advance, has no knowledge of his position, of any real remedy at law. This can be altered only by legislation. The plaintiff was the only witness in his own behalf, and there were a number for defendant. The plaintiff, among things, said:

“Q. How did you pull the rail? A. When he gave the order to pull this rail, I had hold of it with my two hands, and I had one foot along here'(illustrating), and my left foot here (illustrating), and I tried to lift ^the rail up, and when the men pulled the rail, they knocked the yoke down, and it struck me upon the left leg. Q. The force of the men pulling the rail knocked the yoke down? A. The yoke was too high. They were not all even upon the concrete. That was the cause of it. It was the fault of the men pulling the rail that knocked the yoke down, but it would not have fallen if it were even upon the concrete, and. properly fastened. I could not say whether the other men tried to lift it at the same time. We all got orders to pull it. Q. What would have been the effect if you had all lifted that rail together? A. If we had all lifted it together and put it in nicely, then these yokes would not have fallen, because then we would put the bolts in. Q. Then, instead of lifting that rail, these men pulled it along ? A. Mr. Ryan was one of the men who was actually doing the work with us. I don’t know whether Mr. Ryan had hold of the rail at the time.”

The plaintiff had been working at cable construction for two years, although not actually engaged in laying rails upon yokes, had observed the way in which they were placed standing, and was there when they put these yokes in. The following other facts were proved by substantially uncontroverted testimony, viz.: One Thomas F. Deegan was the iron foreman over this special work, and William Ryan was an assistant foreman, in charge at the point, of the accident. Both possessed great experience in this kind of work. Deegan had given directions to Byan in regard to this particular work, but did not tell whether the rails could be pulled or lifted, but left it to the experience and judgment of Byan. Tills was one of the details of the work, the performance of which was a part of the servant’s duty. It was also testified that the way in which these yokes and rails were managed at the time was the usual and ordinary way, and that proper material and appliances were used, and the complaint here is that the yokes were not secured and fastened before the plaintiff or his colaborers placed the running rail on them.

The questions here to be determined are: Was the negligence of William Byan, the assistant foreman, the negligence of the defendant? and was the plaintiff guilty of contributory negligence ? Thus, when the defendant provided a competent foreman and assistant foreman, and the proper and usual appliances, he performed all that the law required of him; and, the manner of doing the work having been intrusted to the foreman and assistant foreman, they were in that respect fellow servants with the plaintiff, and if they were, or any of them were, negligent in conducting the progress of the work, and such negligence was the cause of the plaintiff’s injury, it was the negligence of a fellow servant, for which the defendant, in the absence of personal participation, is not liable.

The superior rank of a fellow servant, in such a case, who is guilty of negligence, is no answer. In support of our contention, we must refer to the able and conclusive opinion of Pryor, .J., in Connolly v. Maurer, 6 Misc. Rep. 98; 56 St. Rep. 838, and cases cited. See, also, opinion óf McAdam, J., in Walsh v. Laundry Co., 63 St. Rep. 461. See Conway v. Railroad Co., 13 Misc. 53 ; 66 St. Rep. 347.

There being no evidence of personal negligence imputable to the defendant, we think the learned justice erred in declining to dismiss the complaint at the close of the case, and, therefore, judgment must be reversed and a new trial granted, with costs to the appellant to abide the event. •


text:
    John Volk, Resp’t, v. Sigmund Bergman, App’lt.

      (New York City Court, General Term,

      Filed November 26, 1895.)

    Contracts—Construction.
    Where, in an action to recover royalties on arc lamps manufactured during a period of about two years, it appeared that the contract, giving defendant the exclusive right to make such lamps, provided that for the first five years the royalties payable to plaintiff’s assignor should not be less than $13,500 for the said five years, unless the actual number manufactured during such term, at the specified royalty per lamp, should exceed that sum, tlie plaintiff can, in the absence of evidence as to the quantity of lamps made by the defendant during the two years, claim only at the rate of $3,500 per annum.
    Appeal from a j udgment for plaintiff.

      John F. Br'odsku, for app’lt; Henry F. Harris, for resp’t.
   McCarthy, J.

The complaint is to recover $1,045 for royalties on arc lamps manufactured between November 10, 1892, and January 1, 1895, making a'period of about two years, one month, and nineteen days. The defendant admits all the allegations of plaintiff’s complaint, except that he denies the indebtedness •claimed, and asserts payment in full. So far as the appeal is concerned, the sixth clause of the agreement has no bearing. We think, however, that the third clause is controlling, and must determine. That clause is as follows:

“ From the date of this exclusive license, and for the first succeeding five years, the said royalties shall not be less than two thousand five hundred dollars per annum, any deficiency from this amount to be paid to the said Kirkegaard at the end of each year as an advance payment on the total amount of royalties for the said five years ;• that is, the said Bergman or his assigns shall not be called upon to pay more than the sum of twelve thousand five hundred dollars for the said five years, unless the actual amount of manufacture and sales for the said term at the specified royalty per lamp shall exceed that amount. That said Kirkegaard hereby acknowledges the receipts of the sum of five hundred dollars on account of royalties that may accrue hereafter under this agreement, which royalties have been paid to him by said Bergman without recourse.”

This means that, unless there were manufactured more than at the rate of 2,500 lamps per annum, the plaintiff’s assignor was not to receive more, nor was the defendant to pay less, than $2,500 per annum. There was no evidence in.the case as to how many were manufactured during the two years, one month, and nineteen days; and, in the absence of such proof, the presumption was that the plaintiff could only claim at the rate of $2,500 per annum; and that, for two years, one month, and nineteen days, would be about $5,400. The defendant, however, says he paid $5,700 during this period, and this would, without explanation, show that the defendant had paid to the plaintiff’s assignor a considerable sum in excess of what he was entitled to receive. The trial justice erred, under the' circumstances, in directing a verdict for the plaintiff. We think the evidence was more favorable to the defendant for such a direction. Judgment is therefore reversed, and a new trial granted, with costs to the appellant to abide the event;


author: Conlan, J.

text:
    Ida M. Newcombe, as Executrix, etc., Resp’t, v. Samuel P. Hyman, App’lt.

      (New York City Court, General Term,

      Filed November 26, 1895.)

    Appeal—Ebbob cubed.
    In an action for professional services, an error in the introduction of evidence of books of account, showing the services rendered and amount charged, is cured by defendants admission of the services as charged.
    Appeal from a judgment in favor of plaintiff, and an order denying a motion for a new trial.

      Epstien Bros., for app’It; Booream, Hamilton, Beckett & Hansom, for resp’t.
   Conlan, J.

Appeal from a judgment entered on the verdict of a jury, and from an order denying a motion for anew trial. The plaintiff brings this action as executrix of the will of her deceased husband, Richard S. Newcombe, who prior and down to the time of his death, which occurred on the 21st day of July, 1891, was a member of the law firm of Donohue, Newcombe & Cordoza, to recover for professional services rendered by her husband, while a member of said firm, and which claim was duly assigned to her .as such executrix. The answer practically admits the services, but denies that there is anything due and owing on account thereof, and alleges that the defendant paid plaintiff’s testator $300, which was in full of the account in suit.

The plaintiff introduced in evidence, under defendant’s objection, the books kept by the firm of which plaintiff’s testator was a member, showing the services rendered and the amount charged. Defendant urges error in the admission of the books on the ground that a proper foundation had not been laid for the evidence. The error, if any, was cured by defendant’s testimony, where, at folio 145, he admits the rendition of the services as charged. The amount or value of the services was never seriously disputed by the defendant, as the evidence of his partner, Mr. Maass, shows, at folios 181, 185. The question litigated was one of payment, and, as the court charged, became harmless in any aspect of the case. The court submitted the questions of value of the services and payment to the jury under a charge as favorable to the defendant as could be expected, and we do not feel warranted in disturbing that verdict.

Judgment affirmed, with costs.

All concur.


author: Coulaít, J.

text:
    Ellen F. Markin, App’lt, v. George B. Crumbie, Resp’t.

      (New York City Court, General Term,

      Filed November 26, 1895.)

    1. Negligence—Sidewalks.
    The fact that a city ordinance requires the owners to do certain things in regard to cleaning snow and ice, is not of itself sufficient to give a cause of action to a party injured by an act in violation of its terms.
    2. Landlord and tenant—Dangerous premises.
    The fact that a landlord rents apartments, reserving to himself and taking care of the passageway to the sidewalk, imposes upon him a duty to protect such passageway and see that no nuisance exists, and that the place is reasonably safe.
    3. Same—Proof.
    In such case, it is not necessary for a party injured, in order to recover, to show that the landlord had either actual or constructive notice of the existence of the nuisance complained of.
    Appeal from a judgment dismissing the complaint.

      P. J. O'Beirne, for app’It; F. B. Crumble, for resp’t.
   Coulaít, J.

If there was any omission bn the part of the city to have the accumulation of snow and ice on the sidewalks removed, by which omission or negligence an accident occurred, this defendant cannot be held responsible. Now, the fact of a city ordinance requiring the owner to do certain things in regard to cleaning snow and ice is not of itself sufficient to give a cause of action to a party injured by an act in violation of its terms. It is a police regulation, and does not add to or take from the liability of the party. Knupfle v. Ice Co., 84 N. Y. 488; Moore v. Gadsden, 93 id. 12, 17.

The plaintiff, however, contends that the passageway or walk from the sidewalk to the house is a part of the lot or premises known as “No. 334 West Sixty-Sixth street.” This appears to be correct according to the measurements testified to by Melvin (if. Pallister, one of the plaintiff’s witnesses. It is the means of entering and reaching the premises, and is under the control and management of the defendant. Mr. Crum hie was owner of this apartment house, renting only the apartments, and reserving to himself and taking care of the hallways and this passageway to the sidewalk, by a janitor, a Mr. Falconer. The tenants had no charge or control over hallways or passageways at all. The plaintiff was lawfully on the premises, in the act of visiting one of the tenants, as she had the right to do. It seems to us that the rule to be applied to the evidence in this case is that when the owner of land expressly or by implication invites a person to' come upon his land, he cannot permit anything of the nature of a snare to exist or be maintained thereon, which results in injury to the person who avails himself of'the invitation, and who at the time is exercising ordinary care, without being answerable for the consequences. We thing the circumstances imposed a duty on the defendant to protect this passageway, and see that no nuisance existed, and' 'the place was reasonably safe. Beck v. Carter, 68 N. Y., 291, 292; Murphy v. City of Brooklyn, 118 id. 579. 29 St. Rep. 858; O'Sullivan v. Norwood, 8 St. Rep. 388.

Davis, P. J., in Henkel v. Murr, 31 Hun, 28, 29, says:

“ One of these uses was the right of ingress and egress of persons lawfully calling upon the tenants for business purposes, or as friends, for social purposes. It is a correct rule of law to state that the samé measure of liability for injuries sustained by negligence of the landlord extends to one socially visiting or calling upon a tenant as protects the tenant himself, because the use of the hall and staircase for the purpose of enjoying such visits and calls is, by necessary implication (where not expressly provided for), within the reasonable intent of the demise of the rooms. Hence the plaintiff in this case, in calling upon the'tenant of-the appellant, was within the scope of the protection against the landlord’s negligence, and is entitled to the application of the same rules, if damnified' by his negligence, which the tenant could invoke in his or her own behalf.”

And this is approved in Alperin v. Earle, 55 Hun, 212 ; 27 St. Rep. 806; Rauth v. Davenport, 60 Hun, 70, 73; 37 St. Rep. 664.

It is also necessary for the plaintiff, in order to recover, to show that the defendant had either actual or constructive notice of the existence of the nuisance complained of. There is some testimony that this condition existed from the day previous, and this was sufficient, under the circumstances, to go to the jury on the question of constructive notice to defendant, since the defendant owned the premises, and controlled and managed the same through his janitor, who was living on the premises.

We think the trial justice erred in dismissing the complaint, as there was enough to place the defendant on the defense. Judgment is therefore reversed, and new trial granted, with costs to the appellant to abide the event.


text:
    James Farrell, Resp’t, v. Roger Harrison, App’lt.

      (New York City Court, General Term,

      Filed November 26, 1895.)

    Husband and wipe—Earnings op wife.
    Where husband and wife live together, and the wife keeps boarders in the house where they are living, the husband is entitled to ihe money paid for board, unless a special agreement is shown between them, allowing the wife to have that claim for her sole property.
    Appeal from a judgment for plaintiff, entered on a verdict of a jury, and from an order denying a motion for a new trial.

      Mulqueen & Mulqueen, for app’lt; August P Wagener, for resp’t.
   Conlan, J.

Appeal from a judgment entered on the verdict of a jury, and from an order denying a motion for a new trial. This action was brought to recover for moneys claimed to have been converted by the defendant. The answer denies the complaint, and sets up a counterclaim for board and lodging furnished toplaintiS between August, 1894, and March, 1895. The evidence shows that the defendant was a married man during the period aforesaid, and tended to show that he kept house, and that the plaintiff lived in the family, and that his board and lodging was worth three dollars per week. At the close of this case, defendant’s counsel asked the court to charge that where husband and wife lived together, and the wife kept boarders, and the boarders are kept in the house, the husband is entitled to the money paid for board, unless a special agreement is shown between the husband and wife, allowing the wife to have that claim for her sole property. The court refused to charge as requested, and defendant’s counsel duly excepted. We think this was error. The defendant was entitled to have the proposition charged as requested, and we cannot say that the refusal did not prejudice the defendant.

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


text:
    John Reilly, Resp’t, v. Third Avenue Company, App’lt.

      (New York City Court, General Term,

      Filed November 26, 1895.)

    Trial—Charge.
    The court has a right to refuse to charge a correct proposition of law when it has no bearing on the ease.

      Appeal from a judgment in favor of plaintiff.

      Hoadley, Lauterbach & Johnson, for app’lt; O. S. Garothers, for resp’t.
   McCarthy, J.

The questions of fact were properly submitted to the jury, and the charge of the trial justice on the law was clear, and, if anything, too favorable to the defendant. There is no rule requiring the trial justice to charge every request asked for by counsel on a given subject of the law. The court is bound only to charge such propositions as are applicable to the facts in the case before it, and therefore has a right to refuse to charge a correct proposition of law when it has no bearing on the case. We do not find any substantial error, and the judgment must be affirmed, with costs.