text:
    James Powers, Adm’r, App’lt, v. The New York Central & Hudson River R. R. Co., Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed May 8, 1891.)

    1. Negligence—Duty op master.
    A fireman was standing on the lap-board between the engine and tender when the pin coupling there broke; he fell and was killed. The locomotive and tender were made by a well known firm and had been inspected within eight days. This pin then appeared to be slightly worn. After the accident it was seen that there was a crack in the pin. This could not be detected by inspection. Held, that no negligence was shown upon the part of the defendant.
    2. Same—A scintilla op evidence not enough.
    It is not enough to require the submission of a case to the jury that there is a scintilla of evidence showing negligence in the defendant; the question is whether there is any evidence which ought reasonably to satisfy the jury that the fact sought to be proved is established, and this is usually a preliminary question for the judge.
    Appeal from a judgment entered in Onondaga county, March .17, 1890, dismissing the plaintiff’s complaint, with costs. The plaintiff was nonsuited at the circuit.

      Louis Marshall, for app’lt; M. M. Waters, for resp’t.
   Martin, J.

The plaintiff’s intestate was killed on the 6th day of December, 1886, about one mile east of defendant’s yard in East Syracuse. This action, to recover damages for his death, was based on the theory that it was caused by the defendant’s negligence.

The decedent, at the time of his death, was in the defendant’s employ as a fireman on one of its engines known as number 172. At the time of the accident the engine was moving a freight train which consisted of about thirty loaded cars. It was a very large engine, used only for moving heavy freight trains. When the accident occurred the engineer was at his post and the decedent was upon the tender, or upon the bridge or lap board between the engine and tender, shoveling coal into the fire box of the engine.

While the train was passing along the track, without any apparent cause or previous unusual movement of the engine or train, the engine separated from the tender and the decedent fell to the track, was struck by the tender and instantly killed. The night was very cold and the ground was covered with snow. The engine was coupled to the tender and held in place by a pin or king bolt about two and one-eighth inches in diameter, which was the usual size used for that purpose. The accident was caused by the breaking of the pin or king bolt. The pin was slightly worn, but not sufficiently to render its use unsafe or improper. After it was broken, flaws could be discovered at the point where the break occurred. They were, however, beneath the surface and could not have been seen before the accident. There were also stay or guard chains connecting the engine and tender. The hook of one and the link of the other were broken.

The locomotive and tender were manufactured by the Dixon locomotive Works, and purchased in July, 1884. They were then new. The Dixon Locomotive Works is a reputable manufacturer of that kind of machinery. Eight days before the accident the engine and tender were in the defendant’s shops, and the pin and chains were carefully inspected by a competent inspector in the defendant’s employ who discovered no flaw or defect in the pin except that it was slightly worn.

It is contended by the appellant: 1. That the pin was maae or an inferior quality of iron which might have been discovered be-lore the accident if it had been properly inspected by a competent inspector. 2. That the hook to which the stay chain was attached, was of inferior iron, the broken link defectively welded, and the chains too long, and that a person properly inspecting them would have discovered these defects.

The undisputed proof was that the hook was of the usual size,, and that there was nothing about it which would challenge any competent man’s attention as showing any flaw or weakness. The evidence was also to the effect that the chains were of the usual size, and the link which was broken was of tough iron, and that for aught that appeared before it was broken it was a good weld. It was also shown that these chains were of the usual length used upon that class of engines. While there was ’proof that shorter chains were used upon passenger engines, we find no evidence that upon this kind of engines, any shorter chains were used.. Indeed, the evidence tends to show that chains of the length used were required upon engines of that size and build.

That the purpose of these stay chains was to maintain the connection between the engine and tender, when a pin of at least five times their strength was broken, can hardly be supposed without impeaching the mechanical ability or integrity of every reputable manufacturer of such engines in this country or elsewhere. That-there may have been instances where under certain circumstances such pins have broken and the stay chains have prevented a separation of the engine from the tender, does not tend to show that, such was their purpose, nor that it was the defendant’s duty to-provide chains of sufficient strength to prevent a separation of the-engine from the tender in case the pin should break.

We can find nothing in the evidence which would have justified the court in submitting the question of the defendant’s negligence, by reason of the insufficiency of the hook and chains, or of the insufficient inspection thereof to the jury, or that would have justified the jury in finding any negligence in that respect which was the proximate cause of the injury complained of.

This leaves for consideration the question whether the evidence was sufficient to require the submission to the jury of the question whether the defendant was negligent in not providing a proper pin or in not properly inspecting it. There was no evidence that the defendant was negligent in purchasing this engine- and tender, nor that it was not so far perfect when purchased that, no defect in the pin could have been discovered by the most careful inspection. Nor was there any evidence that the defendant had any knowledge of the alleged defect in the pin.

As we have already seen the evidence discloses that but eight days before the accident, an employe of the defendant, who was. a competent machinist, carefully examined this pin and discovered no flaw or defect in it: The only proof that tends in any way to-show that this inspection was not complete and proper, was the evidence of experts called by the plaintiff, who testified that the-iron of which the pin was constructed was not of the best quality. This was the condition as discovered by an examination of the? pin at the point where the break occurred after it was broken. But when asked whether an intelligent inspector from an inspection of the pin would have discovered the condition mentioned, the reply was : “ The only thing I could discover would be the. small spot below the crack and the laminated appearance of the pin above.” The same witness testified that he could not say the crack came to the surface of the pin so that it was observable before the pin was worn by use. Indeed, an examination of the evidence upon this subject discloses nothing which tends to show that any crack, or other indication of weakness or insufficiency of the pin, existed before the accident, that could have been discovered by the most minute and critical inspection that could have been made even by a scientific expert, except the speculations and theories of experts who expressed the opinion that some defect might have been discovered. The pin was produced upon the argument. An examination of it shows that if there was any defect in it which was discernible before it was broken, it must have been very minute, and would have required an extremely close and unusual examination to have discovered it. Here we have at most the opinion of experts, based on an examination of the pin after it was broken that some slight flaws or defects might have been discovered before the accident, against the evidence that the pin was thoroughly and carefully inspected by a competent machinist a short time before, and no defects discovered. That the defects complained of could not have been discovered by the usual and ordinary inspection given to an engine, is testified to by the plaintiff’s own witness.

While it must be admitted that negligence is generally a question for the jury, still it is only when the facts would authorize a jury to find it that it should be submitted to them. Sutton v. N. Y. C. & H. R. R. R. Co., 66 N. Y, 243, 249.

We think the evidence failed to establish the omission of any duty by the defendant which it owed to the plaintiff’s intestate, which caused the injury complained of. We do not think the evidence was such as would have justified the jury in finding that the defendant had omitted to exercise reasonable care and prudence in furnishing appliances for the intestate’s use or in keeping them in proper repair. That there was a mere theory from which a jury might have surmised that the defendant had omitted some duty it should have performed, was not enough. “ If the proof of a fact is so preponderating that a verdict against it would be set aside by the court as contrary to the evidence, then it is the duty of the court to direct a verdict. It was said in Baulec v. N. Y. & Harlem R. R. Co., 59 N. Y., 356, 366, by Judge Allen, that it is not enough to authorize the submission of a question as one of fact to the jury that there is some evidence. A scintilla of evidence, or a mere surmise, that there may have been negligence on the part of the defendants would not justify the judge in leaving the case to the jury; ’ quoting from Williams, J., in Toomey v. Railway Co., 3 C. B., N. S., 146. In Hyatt v. Johnston, 91 Pa. St., 200, Justice Sterrett says: ' Since the scintilla doctrine has been exploded, both in England and m this country, the preliminary of law for the court is, not whether there is no

evidence, or a mere scintilla, but whether there is any that ought reasonably to satisfy the jury that the fact sought to be proved is established,’ citing Ryder v. Wombwell, L. R, 4 Exch., 89. The rule held by the supreme court of the United States is expressed by Mr. Justice Clifford in Improvement Co. v. Munson, 14 Wall., 442, as follows: ‘Nor are judges any longer required to submit a question to a jury merely because some evidence has been introduced by the party having the burden of proof, unless the evidence be of such a character that it would warrant the jury in finding a verdict in favor of that party. Formerly it was held that if there was what was called a scintilla of evidence in support of a case, the judge was bound to leave it to the jury; but recent decisions, of high authority, have established a more reasonable rule, that in every case, before the evidence is left to the jury, there is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof rests.’ ” This is the language of Ruger, Ch. J., in Dwight v. Germania L. Ins. Co., 103 N. Y., 358; 3 N. Y. State Rep., 115.

The duty of a master to furnish safe, suitable and proper tools, machinery and implements for the use of his servant in the performance of his work, and to keep them in proper repair, is not an absolute one. It is satisfied by the exercise of reasonable care and prudence on the part of the master. Probst v. Delamater, 100 N. Y., 266; Burke v. Witherbee, 98 id., 562 ; Stringham v. Hilton, 111 id., 188 ; 19 N. Y. State Rep., 621.

Therefore, to entitle the plaintiff to recover in this action, he was bound to prove that the defendant had omitted to exercise reasonable care in furnishing the decedent with safe and proper tools and appliances to be used by him in the performance of his "work, or that it was negligent in not keeping them in a proper state of repair. If the defendant was negligent, the burden of establishing that fact was upon the plaintiff. Negligence must be proved. It is not to be presumed. Where a servant enters upon an employment from its nature necessarily hazardous, he assumes the usual risks and perils of the service, and also those that are known to him or which are apparent to ordinary observation. Williams v. D. L. & W. R. R. Go., 39 Hun, 432, and cases cited in opinion. An employe in the service of a railroad corporation assumes the risks and dangers incident to the business in which he is engaged, and while the company is bound to exercise reasonable care to furnish suitable and safe machinery and appliances for his use, having done so, it is not liable for any injury resulting from .their breaking or failure, unless it is shown that the corporation has been guilty of negligence in regard thereto. De Graff v. N. Y. C. & H. R. R. R. Co., 76 N. Y., 125. In the language of Allen, J., in Wright v. N. Y. C. R. R. Co., 25 N. Y, 562: “If the injury arises from a defect or insufficiency in the machinery or implements furnished to the servant by the master, knowledge of the defect or insufficiency must be brought home to the master or proof given that he was ignorant of the same through his own negligence or want of proper care.” The same doctrine is held in Chapman v. Erie B. B. Co., 55 M. Y., 579; Baulec v. N. Y. & Harlem B. B. Co., 59 id., 356; Edwards v. N. Y. & Harlem B. B. Co., 98 id., 245 ; Kelly v. N. Y. & Sea B. B. B. Co., 109 id., 44; 14 FT. Y. State Rep., 36.

A master’s liability to his servant for injuries received in the course of his employment is based upon the personal negligence of the employer, and the evidence must establish. personal fault on his part, or what is equivalent thereto, to justify a verdict, and he is entitled to the benefit of the presumption that he has performed his duty until the contrary appears. Cahill v. Hilton, 106 N. Y., 512, 517; 11 N. Y. State Rep., 26.

The submission of an action for negligence to a jury is not-authorized where a plaintiff’s evidence is equally consistent with the absence as with the existence of negligence, as in such a case the evidence fails to establish negligence. Baulec v. H. Y. & Harlem R. R. Co., supra; Hayes v. Forty-second Street, etc., R. R. Co., 97 N. Y., 259.

We think the principles of the authorities cited fully sustain our conclusion that the evidence in this case was insufficient to justify the submission to the jury of the question of the defendant’s negligence, and that the court properly nonsuited the plaintiff.

Judgment affirmed, with costs.

Hardin, P. J., and Merwin, J., concur.


source: Caselaw Access Project

author: Martin, J.

license: Public Domain

text:
    Emma F. Roberts, App’lt, v. The Johnstown Bank et al., Resp’ts.

      (Supreme Court, General Term, Fourth Department,

      Filed May 8, 1891)

    1. New trial—Newly-discovered evidence.
    In order to make out a case for a new trial upon the ground of newly-discovered evidence, it must appear that it has been discovered since the trial and could not, with reasonable diligence, have been obtained upon that trial; that it is material to an issue involving the merits, is not cumulative, and that there is a reasonable certainty that, if offered before, it. would have changed the result.
    S. Same—Affidavits of witnesses.
    There should also be affidavits of the newly-discovered witnesses that they are ready to swear to the facts newly discovered.
    Appeal from a judgment entered upon the decision of the Oneida special term, dismissing the plaintiff’s complaint with costs, and from an order denying the plaintiff’s motion for a new trial on the ground of newly discovered evidence.

      Dunmore & Sholes, for app’lt; Smith & Nellis, for resp’ts.
   Martin, J.

The purpose of this action was to set aside a bond and mortgage executed and delivered by the plaintiff to the defendant Blunck, and by him transferred to the Johnstown Bank. The ground upon which the action was sought to be maintained was that the bond and mortgage were obtained by the fraud of the defendant Blunck.

The plaintiff alleged in her complaint that the defendant Blunck, with the preconceived design to cheat and defraud the plaintiff and her husband, made certain representations which were set out and specified in the complaint; that relying upon such representations her husband entered into an agreement to, .and purchased of the defendant Blunck twenty-seven shares of the stock of the Chatham Publishing Company, and gave therefor his note for twenty-five hundred dollars; that the plaintiff, relying upon such representations, joined with her husband in making and delivering the bond and mortgage in question to the defendant Blunck as collateral security for the payment of her husband’s note, which he gave for the purchase price of such stock; that such representations were false and untrue, and known by the said defendant to be wholly false and untrue.

The defendants denied the allegations of fraud.

The principal question litigated on the trial was whether the defendant Blunck was guilty of the acts of fraud alleged, or any of them.

The learned trial judge found: “ That the statements and representations made by the defendant Blunck, to the defendant Roberts in relation to the property of the Chatham Publishing Company and as to its condition, and relative to the number of .subscribers on said subscription list to the said newspaper, were in all material particulars true, and that there was no fraud or concealment perpetrated or practiced by the defendant Blunck, -on the defendant Roberts by which he was influenced or induced to purchase said twenty-seven shares of stock, nor was any fraud perpetrated upon the plaintiff by said defendant Blunck, by which she was influenced or induced to execute and deliver said bond and mortgage as collateral security for the payment of said note for twenty-five hundred dollars given by her husband to Blunck for the price of said stock.”

An examination of the evidence contained in the appeal book, discloses that it was such as to fully justify the finding of the court "that the defendant Blunck was guilty of no fraud which induced the purchase of the stock in question or the execution and delivery of the mortgage sought to be set aside, and that it was sufficient to sustain the judgment awarded.

Our attention is called to numerous exceptions taken by the plaintiff to the rulings of the court upon the reception or rejection of evidence. These exceptions relate to the exclusion of evidence which might have borne to some extent upon the question of the value of the stock of the Chatham Publishing Company, .and to certain findings made by the court and refusals by the court to find as requested by the plaintiff. We have examined each of these exceptions, but have found none that would justify us in disturbing the judgment. If, as we have held, the court was justified in finding that there was no fraud in the transaction which induced the giving of the bond and mortgage sought to be set aside, it is quite obvious that the rulings complained of were harmless, as they could have in no way changed the result, and, therefore, furnish no ground for reversal. City Bank of Brooklyn v. Dearborn, 20 N. Y., 244, 246; Bronson v. Tuthill, 3 Keyes, 32; Matter of Appl'n of N. Y. C. & H. R. R. R. Co., 90 N. Y., 342.

This leaves for consideration the propriety of the order denying the plaintiff’s motion for a new trial on the ground of newly discovered evidence. To constitute a case for a new trial on that ground, it must appear that the evidence has been discovered since the trial, that it could not have been obtained upon the former trial by exercise of reasonable diligence, that the evidence is material to an issue involving the merits of the case, is not cumulative, and .is so decisive in its character that there is a reasonable certainty that on another trial it would change the result.

An examination of the affidavits read on this motion, shows that they fell far short of these requirements.

Moreover, affidavits of the newly-discovered witnesses, as to what they will testify, were not produced. On such a motion, there should be an affidavit of the witnesses who will give the new evidence that they are ready to swear to the facts claimed to be newly discovered. Adams v. Bush, 1 Abb. Ct. App. Dec., 7. An affidavit that the witnesses told the party that they would so swear, is not sufficient. Shumway v. Fowler, 4 Johns., 425.

Judgment and order affirmed, with costs.

Hardin, P. J., and Merwin, J., concur.


text:
    The People v. E. Remington & Sons. James A. Whitfield, Petitioner, App’lt, v. Albert N. Russell et al., Receivers, Resp’ts.

      (Supreme Court, General Term, Fourth Department,

      Filed May 8, 1891.)

    1. Receivers—Preferences.
    The receivers of an insolvent corporation were directed by the court to pay a demand of a claimant in full as preferred. After such payment the claimant and others similarly situated took a proceeding to have similar claims declared preferred, in which the court of appeals finally decided against the claimants. Thereafter, the order declaring a preference in favor of this claimant was reversed. Upon a subsequent dividend to general creditors ordered paid, the receivers deducted from the dividend due this claimant the sum paid him upon said preferred claim in excess of the per centage payable to general creditors. Held, proper.

      2. Same—Payment under an order subsequently reversed.
    The original payment to the claimant could not be said to have been voluntary. The court had mistakenly directed a payment which the court of appeals had, in a proceeding to which the claimant was a party, thereafter declared improper. This amount paid by mistake could, therefore, have been recovered by the receivers of the claimant.
    Appeal from an order denying motion for order directing the receiver to pay to petitioner the sum of $183.31, claimed to have been improperly deducted by the receivers from a payment made by them.

      Geo. O. Rasbach, for app’lt; Thomas Richardson, for resp’ts.
   Martin, J.

On April 21, 1886, this court duly appointed Albert H. Russell and Addison Brill as receivers in this action, which was to dissolve the defendant corporation. They subsequently qualified, entered upon their duties and are still such receivers.

The appellant had previously been engaged with men employed by him in working for the defendant in its shops doing job or contract work. It was indebted to him therefor in the sum of $292.78, when the receivers were appointed. There were other persons who had similar claims.

Soon after the receivers were appointed they applied to a special term of this court for instructions as to whether claims like the appellant’s were preferred under chapter 376 of the Laws of 1885, which was an act to provide for the payment of wages to employes, operatives and laborers of domestic corporations, other than insurance and moneyed corporations, of which a receiver should be appointed. The court held that such claims were preferred, "and directed them to be paid in full by the receivers. In pursuance of that direction, which was made in May, 1886, the receivers paid the appellant on his claim $256.50, but subsequently declined to pay the remainder, amounting to $36.28.

After the receivers’ refusal to make further payments on such claim, and in June, 1887, the appellant and others who had similar claims, instituted a proceeding in this court whereby they sought to have it adjudged that such claims were preferred under the statute and to procure an order requiring the receivers to pay them as such in full. In that proceeding the appellant and those who joined with him therein, were unsuccessful, as it was held by the special and general terms of this court and by_ the court of appeals, that their claims were not within the provisions of the statute of 1885, and not preferred claims under it.

During the pendency of that proceeding, and in March, 1889, the special term directed the receivers to pay to the general creditors of the defendant, who had proved their debts, a dividend of twenty-five per cent thereon, but also directed that the receivers should defer the payment of any dividend upon any claim of the appellant, or those who joined with him in such proceeding, until the final determination thereof.

The appellant also had an additional claim, as a general creditor, amounting to $2,930.62.

After that proceeding was finally determined by the court of appeals, the receivers paid the appellant on his claim of $2,930.02 the dividend of twenty-five per cent directed to be paid the general creditors by the order of March, 1889, less the sum of $183.31, being the excess above twenty-five per cent which had been paid by them upon the appellant’s claim of $292.78.

After the decision of the court of appeals, by which it was held that the appellant’s claim was not preferred, and before this proceeding was instituted, the order or instructions to the receivers made in May, 1886, directing such claims to be paid as claims preferred, by the statute of 1885, was, on the application of the receivers, vacated and set aside.

On the 9th day of December, 1890, the appellant made application to a special term of this court for an order directing ^ the receivers to pay him the sum of $183.31 so deducted, which was denied, and from that order this appeal was taken.

The appellant challenges the order of the special term upon the ground that as the payment made by the receivers upon his claim of §292.78 was in pursuance of an order of this court the subsequent decision in other cases did not open, annul or affect his right to the money thus paid, and that the payments by the receivers upon that claim were voluntary, and could not be recovered back or deducted from the amount of his dividend.

It will be observed that the order or direction to the receivers relied upon by the appellant has been vacated and set aside, and that the action of the court in thus setting it aside was based upon the determination in a proceeding instituted by the appellant upon his alleged preferred claim, in which proceeding it was in effect held that the order of May, 1886, was unwarranted and improper. That the court, under such circumstances, should award a restitution of the sum that was thus over-paid upon the appellant’s demand is quite obvious.

The question of voluntary payment is not, we think, involved in this proceeding. There was in this action a fund in the hands of the court for distribution by its receivers among the creditors of the defendant. The court mistakenly and erroneously instructed the receivers to pay one of the appellant’s claims in full. In a proceeding to which he was a party, it was decided by this court and by the court of appeals that he was entitled to receive upon his claim for $292.78 only the same proportionate amount as the other general creditors of the defendant Thus he had been paid $183.31 more than he was entitled to receive. The amount of such over-payment was then deducted from the sum which would otherwise have been his due. This excess having been paid by mistake, the receivers could have recovered of the appellant the amount thereof. Matter of Accounting of Morgan, 99 N. Y., 145 ; Matter of Underhill, 117 id., 471; 27 N. Y. State Rep., 720; Scholey v. Halsey, 72 N. Y., 578 ; Lott v. Swezey, 29 Barb., 87.

It is, therefore, manifest that the sum which the appellant sought to recover in this proceeding did not ex aequo et bono belong to him. It was a part of the fund in the hands of the court which belonged to the creditors of the defendant and which should be distributed among them.

Under these circumstances, we think the receivers were justified in withholding that amount and that the court properly refused to require them to pay it to the appellant.

It follows that the order appealed from should be affirmed.

Order affirmed, with ten dollars costs.

Merwin, J., concurs.


author: Macomber, J.

text:
    Harriet A. Rhinelander, App’lt, v. The City of Lockport, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 2, 1891.)

    Municipal corporations—Negligence—City not liable fob defects m PLANS OF WORK APPROVED BY ITS COMMON COUNCIL.
    It is not incumbent upon the city to adopt, before the construction of a sidewalk or crossing, the plan upon which it shall be constructed, in order to relieve it from liability for accidents resulting from imperfections in the plan of the work. Where the city officials have for some time put in • operation a certain plan' for work of that description and the common council directs such improvements generally, and afterwards provides means for its payment, this is a sufficient adoption of the plan employed to relieve the city from liability for such accidents.
    Appeal from an order of the special term made in Brie county April 19, 1890, upon case and exceptions, setting aside a verdict of the jury, rendered at the Niagara circuit in September, 1889,, and granting a new trial.

      Richard Crowley, for app’lt; John E. Pound, for resp’t.
   Macomber, J.

The plaintiff was injured at the corner of Transit and Caledonia streets in the city of Lockport on November 28, 1887, while passing to her home, which was on Prentice street, by stepping into a gutter on the south side of the road, occasioning a fall producing injuries to her hand, and arm, for which this action is brought The jury rendered a verdict in her favor in the sum of $150, but upon a case made, and a motion for a new trial before the same justice presiding at the circuit, the verdict was set aside and a new trial granted, and from the order entered thereon this appeal was taken.

The ground upon which the learned justice has granted a new trial is for the error which he thinks he fell into in submitting to the jury any question relating to the negligence of the defendant.

It is not claimed by the plaintiff’s counsel that there was any defect in the maintenance of the gutter, or that it was out of repair, but that it was structurally defective; that is to say, that it was not constructed upon a proper and safe plan for the construction of the walks in that city. It is shown by the evidence, however, and not denied, that for upwards of two years, under the advice of the city surveyor and with the authorization and approval of the mayor and superintendent of the streets, this method of constructing gutters at the end of cross-walks was adopted and put into general application throughout that town. The crossing at this place had been made by laying two lines of flagging approaching to about twelve inches of the curb-stone at the edge of the sidewalk, with an intervening space left open at the depth of about six inches, a stone being placed at the bottom as well as at the end of the crossing and left uncovered. The plaintiff, while crossing Caledonia street at this point at about six o’clock in the evening of the month of November, 1887, stepped into the gutter and fell forward. Sometime prior to this accident, the common council of the city of Lockport had directed that the street superintendent make repairs at this cross-walk. No plan was made in the resolution by which such sidewalk should be made, and no directions in that behalf were given, but the general plan theretofore put into practical operation by the executive officers of the city was adopted by the superintendent, and the cross-walks and gutters constructed accordingly. After the completion of the work the common council approved of the same, and provided for the payment of the expenses thereof.

The ground of the verdict must have been that the city, or its officers, had adopted a faulty plan for the construction of crosswalks, and that consequently it was liable for injuries received thereby. But, as is clearly pointed out by the learned justice in his opinion granting a new trial, a municipal corporation is not liable for the results of accidents produced by an imperfect plan adopted for local improvements. The city authorities must be left free to exercise their judgment in devising the proper mode in crossing the streets, and when so exercised in good faith the city is dot liable, even though there be an error of judgment Paine v. Village of Delhi, 116 N. Y., 224; 26 N. Y. State Rep., 620.

But the learned counsel for the appellant urges, that no general plan for the construction and repair of streets and sidewalks in the city of Lockport could be legally adopted except by the common council of that city, and the sevetid provisions in the charter thereof are cited to us in order to establish that proposition. While it is true that no general plan of making crosswalks and gutters had been adopted by the common council, yet it is shown that practically the officers of the corporation had for some time devised the plan described, and put the same into operation, and that the common council had directed such improvements generally and afterwards provided means for paying the expenses thereof, showing an adoption of the particular means employed by the executive officers. It is not incumbent upon the city to adopt, before the construction of a sidewalk, the plan upon which it shall be constructed in order to relieve it from liability.

In the case of Urquhart v. The City of Ogdensburg, 91 N. Y., 67, it was held, that the fact that the corporation did not, prior to the construction of the sidewalk, expressly adopt the plan upon which it Was constructed, did not impose liability; that the approval of the plan, when completed, was as much a judicial act as the design of it.

The order appealed from should be affirmed, with costs.

Dwight, P. J., concurs.


text:
    Joseph D. Schwartz, Resp’t, v. Theodore C. Green, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 2, 1891.)

    1. Bill of particulars.
    _ It is the duty of a party on demand to serve the best possible hill of particulars, and if the same is not satisfactory, a motion may he made to compel the exhibition of another or further bill. The provision of the Code cannot he defeated by a mere allegation on the motion to compel the rendering of some bill that none can be made out.
    2. Same—Slander.
    In an action for slander of plaintiff’s daughter where the defense is that the daughter was of had character, and had carnal intercourse on certain days named, and divers other times at places and with persons unknown to defendant, the plaintiff is entitled to a bill of particulars of such defense, and it is no answer to an application there, for that the information is within the knowledge and leach of plaintiff, as his daughter, who made an affidavit in the case, could disclose the same, especially where her affidavit states that she never had illicit connection with any person except the defendant.
    Appeal from an order of the Monroe special term, dated February 6,1891, entered in Steuben county February 9,1891, directing the defendant to serve a bill of particulars of the matters set up in the answer.

      G. N. Orcutt, for app’lt; J. H. & C. W. Stevens, for resp’t.
   Macomber, J.

This action was brought to recover damages for the seduction of the plaintiff’s daughter.

The answer is: (1) A general denial. (2) An allegation that at the time stated in the complaint, .and for a long time prior thereto, and since that time, the plaintiff’s daughter was a lewd, bawdy and licentious woman of a generally bad and immoral character, and so reputed to be; that on the two days named in the answer at some place or places in the city of Hornellsville, but at what particular place the defendant alleges he is unable to state, this woman had carnal intercourse with a man whose name was unknown to the defendant; that at divers other places in the city of Hornellsville, and at various other times, between the first day of January, 1889, and the first day of December, 1889, but at what particular times and places the defendant says he is unable to state, she had carnal intercourse with other persons unknown to the defendant

Section 531 of the Code of Civil Procedure provides that “ The court may, in any case, direct a bill of particulars of the claim of either party to be delivered to the adverse party.”

It is claimed, however, by counsel for the appellant, that he cannot furnish the bill of particulars for the reason that he is unable at present to give the times and places and names of the persons more definitely than he already has in the ahswer, but that he hopes to be able to do so before the trial of this case.

Such objections cannot prevail against the clear right that the plaintiff has to the bill of particulars demanded, particularly since the decision of the case of Tilton v. Beecher, 59 N. Y., 176. It is the duty of the defendant, as was held in the case of the City of Rochester v. McDowell, 12 N. Y. Supp., 414 ; 35 N. Y. State Rep., 538, on demand, to serve the best possible bill of particulars, and if the same was not satisfactory a motion might be made to compel the exhibition of another or further bill; that the provision of the Code cannot be defeated by mere allegation on the motion to compel the rendering of some bill that none can be made out. It is the duty of the defendant to prepare such particulars as he can, then if objection is made thereto the whole question may be presented to the court upon its merits in accordance with the ordinary rules of practice as contemplated by the provisions of the Code.

But it is further argued that the defendant’s daughter, who has made an affidavit in the case, in her father’s behalf, has all the knowledge which the plaintiff seeks, and she can disclose the same, and that consequently the information sought is within the knowledge and' reach of the plaintiff. This argument would be, in any case, somewhat fallacious, but under the facts disclosed in these appeal papers it is shown by the affidavit of the young woman that she never had illicit connection with any person except the defendant It is not reasonable, therefore, to argue from this that the plaintiff must be prepared to meet the allegations in the answer without further information, for, a party, in preparing for trial, particularly in cases of this character, where reputation and personal chastity are involved, must not only be ready to meet the facts as he understands them, but also to meet the many allegations, whether true or false, that are set up to defeat a recovery.

The order appealed from should be affirmed.

Dwight, P. J., concurs.


text:
    Valentine Fromm, App’lt, v. Daniel Ide, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 2, 1891.)

    Negligence—Flooding lands.
    The action was brought for flooding plaintiff’s lands by reason of negligence in constructing a ditch. The proof showed that defendant, who was the commissioner of highways, was sent by the board of health to drain off water which stood on lands of plaintiffs and others, and said he would charge them a certain sum for so doing; that he dug out the ditch, but thereafter the premises were more seriously flooded than before, and it was found that the slope of the ditch was in the wrong direction. The court thereupon nonsuited plaintiff on the ground that the proof showed that a recovery could be had only for breach of contract. Held, error; that the cause of action shown was not on contract, but of negligence.
    Appeal from a judgment of Monroe county court, entered May 6, 1890, dismissing the plaintiff’s complaint; and, also, from an order of the same court made the 3d day of May, 1890, denying the plaintiff’s motion for a new trial

      Ivan Powers, for app’lt; Costich & Cummings, for resp’t.
   Macomber, J.

This action was brought to recover damages for flooding the lands of the plaintiff, under allegations of negligence in the construction of a certain ditch, by reason of which the rental value of the plaintiff’s lands during the years 1888 and 1889, on Morton street in the town or Irondequoit, was materially lessened.

It appears that the defendant is the commissioner of highways of the town of Irondequoit. The plaintiff had notified the board of health of that town that water stood upon his premises, coming from the highway. Shortly thereafter the defendant came to the plaintiff and said he had been sent there by the board of health, and was about to drain off the water. There were two other persons in the vicinity similarly situated with the plaintiff, and the-drainage was to relieve them as well as the plaintiff of the water coming from the highway.

The plaintiff’s evidence tended to show that the defendant said he should charge each of these persons twenty-five dollars for making the necessary digging to carry off the water; that thereupon he dug out the ditch, but at about the time he was finishing it he was notified that it would be inadequate for the purpose. In the fall following this work, and also in the spring thereafter, the plaintiff’s premises were more seriously flooded than ever before with dirty and unwholesome water. There was evidence showing that the east end of the ditch was higher than the west end, though it was designed to carry the water from west to east. Under these facts the plaintiff offered to prove his damages, when his progress-in the trial was arrested and he was nonsuited, apparently upon the ground that the action was for a tort, and that the proof showed, that a recovery could be had only for a breach of contract

This, however, seems to us to have been a misconception of the scope of the action. In brief, it is, that the defendant, while engaged in the discharge of his duties as street superintendent, under direction of the board of health of the town of Iron dequoit, in carrying off waters in the highway, so negligently and carelessly dug thexditch therefor that the flooding of the premises was increased rather than diminished. This is not an action upon a contract It is an action for negligence in that a person, while engaged in a lawful business, was guilty of an omission of duty which he owed to the plaintiff to perform the work in a reasonably skillful manner. This principle is elementary. Whittaker’s Smith on Negligence, 480.

The judgment and order appealed from should be reversed and a new trial granted in the county court, with costs to abide the event

Dwight, P. J:, concurs.


author: Dwight, P. J.

text:
    Anna Grosser, App’lt, v. The City of Rochester et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed June 2, 1891.)

    Joint tenants—Husband and wife—Wife entitled to injunction AGAINST CONSTUCTION OF SEWEB WHEBE CONDEMNATION PBOCEEDINGS WEBB AGAINST HUSBAND ALONE.
    The city took proceedings to condemn a right of way for a sewer across lands which had been conveyed to the plaintiff and her husband jointly, but the husband alone was served and appeared. Held, that as against the plaintiff the city acquired no right in the premises; that plaintiff had rights by virtue of her joint tenancy which were liable to be seriously impaired by the construction of the sewer under the proceedings already had, and that she was entitled to an injunction to prevent the prosecution of the work until the city shall have acquired the right against her.
    Appeal by the plaintiff from a judgment entered on the report of a referee.

      T. D. Wilkin, for app’lt; H. J. Sullivan, for resp’ts.
   Dwight, P. J.

The action was brought to restrain the city and its contractor from constructing a sewer across a city lot be-longing to the plaintiff and her husband, George Grosser,, the latter of whom was made a party defendant after having declined to unite with the plaintiff in bringing the action. The lot fvas conveyed to the plaintiff and her husband jointly, and was occupied by them as a residence. The city of Rochester took proceedings to condemn a right of way for a sewer across the lot, and gave the required notice to the husband alone and not to the plaintiff. The proceeding was in all respects regular as against the husband; damages were assessed and the money was paid into court. The city then let a contract for building the sewer to the defendant Brayer, and he was joined with the city as defendant in the action.

We agree with the learned referee, and for the reasons well stated by him in his opinion, that service of the notice on the husband and his appearance in the proceeding did not make the wife a party thereto, nor bind her interest in the property, and, therefore, that as against her the city acquired no right in the premises; but we cannot agree with him that she had no rights in the premises which were liable to be injuriously affected by the building of the sewer under the proceedings actually had.

It is true that, under the doctrine of Bertles v. Nunan, during the joint lives of the husband and wife “ the husband has the right to the exclusive benefit, use, possession and control, of the land, and may take all the profits thereof; and may mortgage or convey an estate, to continue during the joint lives; but, he may not make any disposition of the land that would prejudice the' right of the wife in case she should survive him.” Bertles v. Nunan, 92 N. Y., 156 ; Coleman v. Bresnaham, 54 Hun, 619 ; 28 N. Y. State Rep., 208. The husband, therefore, might have granted the right of way during the joint lives, with provisions against a permanent injury to the freehold ; and whatever he might grant the city might acquire from him, by condemnation proceedings to which he alone was made a party. But this is not what has been done in this case. Here the city has proceeded against the husband as the sole owner of the title, to acquire a perpetual easement in the land, which includes the right, for all time, to maintain the sewer and to enter upon the property to repair and renew it. All these rights the city has already acquired on the face of the record, and its counsel is contending here that it has in fact acquired them against the plaintiff by the proceeding against her husband. The learned referee while holding the contrary suggests, in substance, that it will be time for her to contest the claim of the city when her title shall become absolute by survivor-ship. But suppose the sewer is built and put to ife proper use of draining a large and populous section of the city, and then her husband dies. How shall she proceed to assert and enforce her rights ? If the city decline to recognize them shall she tear up or cut off the sewer ? Or as the referee suggests, restrain the city from its use ? And in either case, with how much more of inconvenience and expense, than if she had taken, her remedy when those rights were only threatened with invasion. Or suppose the husband dies when the work is only fairly under way, with her lot divided by an excavation and the earth or rock which has been thrown out of it. Her title has now become sole and absolute and the city has no right to proceed a step further with the work. But they have paid for the damage so far done, in the award made to the husband, and if the plaintiff stop the work where it is, she may restore her lot to its proper condition at her own expense.

It seems very clear that the plaintiff has rights by virtue of her joint tenancy, which are liable to be seriously impaired by the action which the defendants are about to take.

We think the learned reféree erred in the latter of his conclusions above mentioned, and that the plaintiff, upon the facts appearing by the record, was entitled to the restraining process of the court to prevent the prosecution of the work on the plaintiff’s property until they have acquired the right as against her.

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

Macomber, J., concurs.


text:
    Frank Harley, App’lt, v. The Buffalo Car Manufacturing Co., Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed June 2, 1891.)

    Master and servant—Negligence—Defective appliances.
    Plaintiff, who was employed by defendant, on approaching a machine to do some work was struck by one end of a belt which parted, and severely injured. The belt was made of strips, the ends of which were butted together and hooked together by seven pieces of steel the thickness of a shingle nail. Defendant’s foreman testified that the belt had frequently parted by the giving out of these fasteners; that a rivet was a good deal better; and other experts testified that this style of fastening was too light for wide belts or great velocity. Held, that the question whether defendant used due and reasonable care to provide suitable machinery and appliances with a view to the safety of its employes should have been submitted to the jury, and that it was error to nonsuit.
    Appeal from au order of the Erie circuit denying the plaintiff’s motion for a new trial on the minutes of the court after a nonsuit

      George Wing, for app’lt; A. Moot, for resp’t.
   Dwight, P. J.

The action was for personal inj uries sustained by the plaintiff while engaged as a laborer in the defendant’s employment .at its works in Buffalo. The cause of action claimed by the plaintiff is based upon an allegation of negligence on the part of the defendant in failing to furnish safe machinery and appliances for use in its business. “ The particular appliance complained of was the belt in use on a wood-plainer near which the plaintiff was set at work.

The belt was composed of strips of leather four inches wide, joined at the ends by what was called the Buffalo fastener, which •consisted of a slender piece of steel of the thickness of a shingle nail and am inch and a half long, bent into a hook 'at each end. The ends of the strips were butted against each other, without lapping, and were simply hooked together by the fasteners mentioned, seven of which were employed at each joint

Thus it is seen that the entire strain of the belt came upon these thin hooks, its constant tendency being to straighten them out or break them at the bend; and that the security of the fastening depended upon the tenacity and rigidity of the hooks. The defendant’s foreman, still in its employ, and recommended by the defendant’s counsel as an expert, testified, among other things, that this belt had been in use for two or three years, with fastenings of the same character, and that he could not tell how many times it had parted; that he would swear that it was as many as three times, on all of which occasions these fasteners would give out; “they would sometimes break and sometimes straighten out;” that he examined the belt after the accident in question, to see whether the leather parted or whether the fasteners pulled out, and found that the fasteners pulled out; that the leather did not break, but remained all right. He testified that a rivet was a good deal better than these fastenings for splicing a belt, but could not be used on such a joint as this because there was no lap; that these joints might have been made with a lap, but that it would have taken more time and been more expensive ; that of these belts, parting every day, more parted by the staples giving way, than by the leather giving way. He testified that “ it was not practical to repair a belt when it parts by getting a longer piece of leather and lapping and riveting it, because it takes too long a time, and you cannot use the belt the same day, because the cement is not set; if we had an extra belt to put on when we were doing that, it would be all right; when I have to repair a belt in that way, by lapping, cement and rivets, it is a better way than by these staples; the other way by rivets and cement is more expensive and takes more time.”

The result- of the use of the cheaper and more expeditious mode of fastening in this particular case, was that the belt parted at a moment when the plaintiff went near the planer to do some work which he was directed to do; that one end of the loose belt struck him in the face, cutting his right cheek to the bone, and cutting the eye-ball in two, permanently destroying the eye, so that it had to be removed.

Other experts who had used the “ Buffalo staples ” in their own works testified to its insufficiency for fastening belts where rapid motion was employed. Mr. Williams, of the firm of Williams, Bach & Co., of Tonawanda, running a planing mill at that place, testified, “We have tried them ourselves and find they do not hold; it is too small and light; in the first place they make them too soft and they stretch right out; they do not hold; I have used them at Tonawanda; we use them now on belts that have light work and run slow; for a cylinder belt it runs too fast, the velocity is so fast it will not stand the strain * * * for a quick motion it is no good.”

Isaac P. Whitman, foreman of the planing mill of Walkan, Dohn & Fisher at Buffalo, who had used the Buffalo fastener for some purposes for six years, testified: “I do not consider the Buffalo fastener a strong, safe fastener; I consider it a fastener that is good for tacking down laps, or something of that kind, but for putting two ends of a belt together that is anything over three inches wide, I do not consider it a safe thing. * * * I had them once on a four inch belt, and the result was they came apart; I do not use them now for fastening four inch belts on planers; I do not use them for fastening any belts now; I should say in regard to that staple for fastening belts, in the way it draws out, that it was too light, too small.”

Upon testimony of this character, the plaintiff was clearly entitled to have the question submitted to the jury, whether the defendant used all due and reasonable care to provide suitable machinery and appliances with a view to the safety of the men in its employ.

There was no evidence or suggestion of contributory negligence on the part of the plaintiff. He had been but a few days employed in the mill, and knew nothing of what was necessary to the safety of the machinery. He went about the work to which he was assigned, and met the accident described while in the proper discharge of his duties.

The exceptions to the order for a nonsuit, and to the denial of the plaintiff’s request to go to the jury on the question of the defendant’s negligence, were well taken.

The nonsuit should be set aside and a new trial granted.

Order appealed from reversed, and a new trial granted, with ■costs to abide the event

Macomber, J., concurs.


text:
    George P. Brand, Pl’ff, v. James W. McMahon, Def't.

      (Supreme Court, General Term, Fifth Department,

      Filed June 2, 1891.)

    Fixtures—Machinery in mile.
    Defendant’s father, since deceased, sold to one B. certain machinery for his mill, it being agreed that the title should remain in the vendor until it was paid for, and that it should retain its character of personalty and not become a part of the realty. Afterwards, the vendor, becoming paralyzed, B. gave him notes for the price of the machiney and a chattel mortgage and bill of sale thereof. Plaintiff became the purchaser of the mill on a foreclosure sale, and defendant removed the machinery from the mill. In an action for conversion the court charged that if B. purchased and took title to the machinery, although cn credit, and the notes and chattel mortgage were given as evidence of and security for the indebtedness thus created, the machinery became a part of the realty and was covered by the mortgage thereon and passed to plaintiff on the sale; but that if B. took the property under the agreement that it should retain its character and the title remain in the seller until payment, and the chattel mortgages were executed in pursuance of that agreement, defendant was entitled to a verdict. Held, no error.
    Motion by the plaintiff for a new trial on a case and exceptions ordered to be heard at the general term in the first instance, after verdict for the defendant at the Cattaraugus circuit

      E. C.. Sprague, for the motion; W. G. Laidlaw, opposed.
   Dwight, P. J.

The action was trover for the wrongful taking and conversion of a quantity of the machinery of a steam sawmill, which was claimed by the plaintiff as the purchaser, on mortgage foreclosure, of the freehold which included the mill; and by the defendant, as the personal representative of the owner of the machinery, as personal property.

In February, 1887, one Bacon was the owner of a small tract of land .on which there was a saw-mill, run by water, and the property was subject to the lien of several mortgages, the latest of which was one of $1.000, under which the plaintiff, took his title. At that time Bacon negotiated with one John McMahon, the father of the defendant, since deceased, for the purchase of the machinery, including boiler and engine, of a steam saw-mill, owned by the latter, which resulted in the delivery of possession of the machinery to the former. Bacon thereupon proceeded to take out a portion of the machinery already in his mill and replaced it by the steam machinery thus procured from McMahon, which he attached to the freehold in a substantial manner.

In 1888, the mortgage of $1,000 was forelosed, and the plaintiff became the purchaser on the sale, shortly after which the defendant, representing the estate of his father, who had died in the meantime, went onto the premises and removed therefrom the machinery in question; this was the alleged conversion for which this action was brought.

The testimony of Bacon and the defendant in respect to the negotiations under which the former obtained possession of the machinery was to the effect that it was agreed between him and John McMahon that the title to the property should remain in the latter until it was paid for, and that it should retain the character of personal property and not become a part of the realty.

This testimony was not contradicted by any direct evidence, and was countervailed, if at all, only by evidence of what subsequently took place between the parties. The proof shows that in the latter part of July, after Bacon put the new machinery into his mill, John McMahon was attacked with paralysis, and his son, the defendant, not expecting him to live, sent for Bacon and procured him to execute to his father four notes of $275 each, for the price which had been put on the machinery, and a chattel mortgage on the engine and boilers to secure the notes. The notes were dated July 1, 1887, and were made payable in one, two, three and four years, respectively. Bacon also executed at the same time what was called a bill of sale of the same property, which was in effect another chattel mortgage; it purported to transfer the engine and boiler to McMahon, “to have and to hold until said McMahon is paid in full for said mill, which will be upon payment of note for $275, due July 1, 1891.” The defendant’s account of this transaction was as follows: “I showed him father’s condition; as he could see himself; and I told him there was nothing to show anything about the mill, if he (Bacon) would happen to die or claim the property, we had nothing to show that it was ours, and I sat down and drew a chattel mortgage and bill of sale, and drew up the notes, etc.” It also appeared without dispute that at the time of the foreclosure sale, the auctioneer made public announcement of the claim of McMahon to the machinery and of the ground of that claim. There were no facts in dispute in the case, unless the conclusion of fact, to be drawn from the evidence above referred to, as to what was the agreement between the parties under which Bacon took possession of the machinery and put it into his mill, and that question was submitted to the jury.

Upon that subject the court instructed the jury very clearly that if, under the agreement between the parties, Bacon purchased the machinery and took title to it, although on credit, before he put it into his mill, and the notes and chattel mortgages were given as evidence of, and security for, an indebtedness thus, created, then the machinery became a part of the real estate and. was covered by the mortgage, and passed to the purchaser under the foreclosure sale ; but that if, on the other hand, they came to the conclusion that the arrangement was made between McMahon and Bacon, as testified to by the defendant and Bacon, that. McMahon permitted Bacon to take the property upon an agreed valuation of $1,000 and put it into his mill, as he did, under the further agreement that the property should not become a part of. the realty, but that it should retain its character as personal property, and that title to it should remain in McMahon down to the time he was paid his $1,100, and that these chattel mortgages, were executed in pursuance of that agreement, then the defendant, was entitled to a verdict. The exceptions of the plaintiff to these instructions raised the only real question which is presented by this appeal.

We think the charge was in harmony with the doctrine of the well known cases of Mott v. Palmer, 1 Comst., 561; Tifft v. Horton, 53 N. Y., 377, and Tyson v. Post, 108 id., 217; 13 N. Y. State Rep., 503. The language of the court in Tifft v. Horton, is particularly applicable to this case, where it is said, at page 381, that neither a prior nor subsequent mortgagee could claim personal property affixed to the freehold, as subject to the lien of the-mortgage, “ where by the express agreement of the owner of the-fee and the owner of the chattel, its character as personal property was not to be changed, but was to continue, and be subject to the right of removal by the owner of the chattels on failure of performance of conditions.”

The question of fact, or of the inference to be drawn from the-facts, as to the real character of the agreement under which this, machinery was affixed to the freehold was, as we have seen submitted to the jury and the fact was found in favor of the defendant. Under the doctrine of the cases above cited we think that finding entitled the defendant to a dismissal of the complaint

The motion for a new trial must be denied and judgment ordered for the defendant on the verdict

Macomber; J., concurs.


author: Van Brunt, P. J. Daniels, J. Lawrence, J. (dissenting.)

text:
    George F. Hodgman, Pl'ff, v. Stephen T. Barker, Def't.

      (Supreme Court, General Term, First Department,

      Filed May 15, 1891.)

    1. Attachment—Motion to vacate.
    Where the papers of one applying under Code Civ. Pro., § 682, to vacate an attachment are as defective as those upon which the original attachment was granted, the motion must be denied.
    3. Same—Affidavit.
    An affidavit in support of an attachment alleged that a bank had been defrauded by forged notes. It showed no personal knowledge by the affiant that the notes were forged. Held, insufficient.
    3. Same—Levy.
    Upon an application by an, attaching creditor to vacate a prior attachment he failed to state the contents of the notice of attachment and there; was nothing to show that it complied with Code Civ. Pro., § 649, suhd. 1. Held, that there was no proof that the attachment of the moving creditor had ever been duly levied and that as the motion depended upon a matter of strict right it must be denied.
    (Lawrence, J., dissents.)
    Appeal from, order vacating a warrant of attachment in favor of the plaintiff upon the motion of an alleged subsequent lienor.

      E. K. Sackett, for app’lt; W. F. MacRae, for resp’t.
   Van Brunt, P. J.

I cannot concur in the conclusion arrived at by Mr. Justice Lawrence that the order appealed from should be affirmed.

It is undoubtedly true that the papers upon which the plaintiff obtained his warrant of attachment disclose no cause of action as stated in the opinion of Mr. Justice Lawrence, but it would appear that the papers upon which the moving party, the National Broadway Bank, obtained its attachment were equally defective.

It appears from the warrant that it was obtained upon an affidavit made by the cashier of the National Broadway Bank in which the allegation simply is that the plaintiff is a domestic corporation, and has a just cause of action against the defendant for injury to personal property by reason of the fraud of defendant in procuring moneys on six forged and fraudulent promissory-notes issued in form to the defendant, but fraudulently forged, made and used by the defendant and transferred by him for value to the plaintiff whereby the plaintiff parted with moneys and was defrauded in the sum of $21,300, in which sum the defendant is justly indebted to the plaintiff over and above all counterclaims known to the plaintiff.

These are allegations of simple conclusions of law and not allegations of fact showing that a cause of action existed.

It further does not appear that the affiant could have had any personal knowledge as to whether the notes in question were forged or not, and without any evidence to support the assertion, the conclusion that the notes were forged is sworn to.

This is wholly insufficient to support the attachment, as has been held in the case of the National Broadway Bank against the same defendant, decided herewith.

It is true that in the case cited there was an attempt to establish the fact that the complaint was before the court on the granting of this attachment; but there is nothing in the papers presented upon this appeal to show that such complaint was before the court, even though, with such complaint before the court, the defects in the affidavit in question would have been remedied.

Now it cannot be that where a party seeks as a subsequent lienor to vacate a prior attachment, and his papers are as defective in establishing the lien as are the papers of the party against whom he moves, that he can succeed in his motion.

There is another objection to the maintenance of the motion, and that is that, even if the attachment'of the bank was properly issued, there is nothing to show that it had ever been levied upon the property of the defendant therein. It is true that it is said that the deputy sheriff having charge of the warrant of attachment has stated certain 'things in respect to the levying of the attachment, but in the case cited above the same language was considered, and a mere allegation upon information and belief, where no sufficient excuse is given for not furnishing the affidavit of the party from whom the information is received, was held to he insufficient.

In respect to the real estate it is alleged that deponent has examined the records of the county clerk’s office, and has found that the 25th of October, 1890, the notice of attachment in this action was filed, and on the 27th of October, 1890, the notice of attachment was filed in the action of the National Broadway Bank, and that the real property levied upon is the same in both said notices of attachment. This is a mere statement of a conclusion.

What this notice was we do not know; we are not informed ; and whether it was such a notice as complied with the provisions of the Code so as to make the attachment a lien upon the real estate is nowhere set forth.

We think upon such loosely drawn papers as these no status for the vacating of a prior lien is established; and that the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion denied.

Daniels, J.

The affidavit of Mr. Kelly stating what he was informed by the deputy sheriff, had been done in the way of attaching the property of the defendant in the two stores, supplied no legal evidence that such was the fact. Information of that description is not proof.

Neither does the statement of the same person that a notice of the attachment had been filed in the action in the clerk’s office, prove that any real estate had been attached under either attachment. To make service of an attachment on real estate the law requires that there shall be filed with the. clerk a notice of the attachment stating the names of the parties to the action, the amount of the plaintiff’s claim as stated in the warrant, and a description of the particular property levied upon, which must be subscribed by the plaintiff’s attorney, adding his office address, and be recorded and indexed by the clerk in the same book, in like manner, as a notice of the pendency of an action. Code Civil Procedure, § 649, subd. 1. And the affidavit wholly fails to prove a compliance with this provision. This motion depended upon a matter of strict right between the moving and the preceding attaching creditor. In the absence of that right, established by proof, the earlier attachment cannot be avoided. It was not so maintained, for the affidavit failed to prove that the attachment of the bank had been levied upon either personal or real property. There was no legal foundation for the motion, and I agree that the order should be reversed and the motion denied.

Lawrence, J. (dissenting.)

In this case the plaintiff obtained an attachment against the defendant’s property on the 24th day of October, 1890, upon an affidavit in which he states:

1. That he is entitled to recover from the defendant the sum of $12,500, over and above all counterclaims known to the plaintiff, and upon one of the causes of action mentioned in § 635 of the Code of Civil Procedure, and particularly set forth in subdivision 2 of this affidavit.

2. That on or about the 20th of September, 1890, Peter "W. Gallaudet and others were engaged in business as note brokers in the city of New York under the firm name of P. W. Gallaudet & Co., and at the same date and ever since one John M. Cornell was engaged in business at said city as iron manufacturer under the name of J. B. & J. M. Cornell. That at the date last mentioned said defendant, Stephen T. Barker, delivered to said P. W. Gallaudet & Co. three certain promissory notes, all bearing date September 20, 1890, and purporting to be made by said J. B. & J. M. Cornell, payable to the order of Barker & Co., in manner following, viz.: one note for $4,600, due in four months; one for $4,400, due in five months, and one for $3,500, due in six months, said periods being reckoned from the date of said notes.

That all of said notes were endorsed by Barker & Co., which was the name under which said Stephen T. Barker was transacting business, and said name of Barker & Co. did not represent any other partner or person than said Stephen T. Barker, to the best of this deponent’s knowledge, information and belief. Deponent further says that upon the delivery of said notes as aforesaid, said Stephen T. Barker guaranteed to said P. W. Gallaudet & Co. that the signatures of the maker appearing thereon, respectively, were the genuine signatures of said J. B. & J. M. Cornell; and the said Stephen T. Barker then and there requested said P. W. Gallaudet & Co., as such brokers, to sell and dispose of said notes for him and to deliver to him the proceeds thereof, and thereupon said P. W. Gallaudet & Co. did sell and transfer all of said three notes to bona fide purchasers for valuable considerations and did guarantee to said purchasers that the signatures of the maker appearing thereon, respectively, were genuine signatures of said J. B. & J. M. Cornell, and did pay over the proceeds of said sales to said Stephen T. Barker.

That thereafter and before this action said Gallaudet & Co. discovered and the fact is that said signatures appearing upon said notes to be the signatures of J. B. & J. M. Cornell, were not the signatures of the said J. B. & J. M. Cornell, and that said notes never were made or signed by the said J. B. & J. M. Cornell, or by the authority of the said J. B. & J. M. Cornell. That said Stephen T. Barker is insolvent and has absconded, and his present whereabouts are unknown to plaintiff; that said P. W. Gallaudet & Co. have assigned to this plaintiff all their claims against the said Stephen T. Barker arising out of the facts hereinbefore stated.

That said Stephen T. Barker is not a resident of the state of New York, but resides at Glen Jtidge in the state of New Jersey.

The- National Broadway Bank subsequently moved to set aside the attachment in favor of the plaintiff upon an affidavit made by its attorney, wherein it is stated that on the 27th of October, 1890, an attachment against the property of the defendant was duly granted in an action, wherein it was plaintiff and Barker defendant, and that a warrant was duly issued to the sheriff of the city and county of New York, who has by virtue thereof attached the property of the defendant as hereinafter set forth, and that James Young, as deputy sheriff, has charge of the warrants issued in both actions, and has informed said attorney that on the 24th of October, 1890, he attached the property of the defendant in the stores No. 27 Maiden Lane and No. 8 College Place, in New York city, and that on the 27th of October, 1890, he attached the same property under the warrant of attachment in the aforesaid suit of the National Broadway Bank.

That the defendant also owned an undivided one-fifth interest in certain real estate situated in the city and county of New York, and deponent has this day examined the records in the clerk’s office of the said city and county of New York, and finds therein that on the 25th day of October, 1890, a notice of attachment was filed in tnis action, and that on the 27th day of October, 1890, a notice of attachment' was filed in the action of the National Broadway Bank, and that the real property so levied upon is the same in both said notices of attachment.

The motion by the bank to set aside the attachment in favor of the plaintiff on the ground of the insufficiency of the plaintiff’s affidavit was granted.

We are of the opinion that the order below should be affirmed.

There is nothing in the affidavit on which the plaintiff’s warrant was obtained, which shows that the plaintiff’s assignors, P. W. Gallaudet & Go., had been called upon by the holders of the forged paper, to pay over to them, the amounts for which they had' purchased the notes, or had incurred any liability thereon.

Until such fact appears, it seems to us, no cause of action arose ' in favor of the firm of P. W. Gallaudet & Co., and that therefore the action of the plaintiff was prematurely brought

The plaintiff, however, attacks the affidavit on which the bank obtained its attachment, and claims that it does not state a case in which an attachment should issue.

We are of the opinion that the statement in the affidavit of Mr. Kelly as to the information derived from the deputy sheriff, respecting the attachment of the personal property in Maiden Lane and College Place would not be sufficient evidence to sustain a lien in favor of the bank upon that property; but enough is stated in that affidavit to show that the interest of the defendant in the real estate had been duly attached under the bank’s attachment.

The other criticisms upon the affidavit of the moving party we do not regard as sound.

The order appealed from, should be affirmed, with ten dollars costs and disbursements to the respondent

Order reversed, with ten dollars costs, and disbursements and motion denied.


author: Van Brunt, P. J.

text:
    Caroline J. Cammerer, Resp’t, v. Clemens Muller, App’lt.

      (Supreme Court, General Term, First Department,

      Filed May 15, 1891.)

    1. Contract—Breach of promise to marry.
    Where a married man induces a woman, ignorant of his being already married, to enter into a promise of marriage, she may recover damages for the breach.
    2. Same—Defenses.
    It was not a bar to such an action by the woman that, after she found out that the man was married, she refused to carry out the agreement, and that she postponed the proposed marriage until the man should produce a decree showing a divorce which he claimed to have procured in another state.
    Appeal from judgment entered on verdict of a jury after trial •at circuit, and from an order denying motion for new trial.

      R. G. Ingersoll, for app’lt; D. Dougherty and E. H. Lewis, for resp’t.
   Van Brunt, P. J.

This action was brought to recover damages for breach of a contract of marriage. The record of the proceedings of the trial and the points of counsel submitted upon the argument of this appeal are exceedingly voluminous, but the only points presented upon this appeal are few in number and embraced within a very small compass. It will not, therefore, be necessary to rehearse in detail either the facts which the jury must have found to have been established by the evidence, or the evidence which it is claimed by the appellant, showed that some •of those facts at least did not exist.

But we shall briefly call attention to the points of law which are involved upon this appeal.

That some sort of a contract of marriage was entered into between the plaintiff and the defendant is not seriously questioned. But the nature of that contract, the circumstances under which it was entered into and the knowledge of the plaintiff in respect to the condition of the defendant are subjects in respect to which there has been a great conflict of testimony. But in our judgment the whole question turns upon what the plaintiff knew of the condition of defendant in respect to his ability to marry on the 17th of December, 1885, the day upon which this alleged contract was entered into.

It is claimed by defendant that at that time the plaintiff was aware that the defendant had a wife living, and that no marriage could take place between them until this difficulty had been removed either by the death of the wife or by the defendant procuring a divorce from her.

Now it is clear that if this was the fact then no contract which could be enforced in a court of law could possibly be entered into between the parties. If the plaintiff knew the fact that the defendant’s wife was living then she knew that he was incapable of fulfilling any contract of marriage which might be entered into.

It is claimed in addition that an action on contract will not lie ■for a breach by a married man of promise of marriage, and that the court erred in overruling the plaintiff’s objection that the respondent failed to establish the fact, that the defendant could have complied at any time with the alleged contract of the 17th December, 1885.

It seems to us that this claim is entirely without foundation. Such a rule would be offering a premium upon villainy. It cannot be that where a man induces a woman to enter into a promise of marriage, she knowing of no disability, that she cannot'"recover damages for the breach of such contract if it turns out that he is incapable of fulfilling it.

We are cited to the case of Haviland v. Halstead, 34 N. Y., 643, but it expressly appeared in that case that the plaintiff knew of the condition of the defendant, and consequently a recovery could not be had. And our attention has been called to no case holding that because one party enters innocently into a contract,, and the other is incapacitated from fulfilling it, and has entered into the contract with fraudulent intent, the innocent party has no remedy. No such rule could, for a moment, find a lodgment in any court of law or of equity. As already said it would be giving a premium to a villain to enter into a contract of this kind and, if you please, apparently, consummate it, and then when called to respond, claim that he cannot be held because he never could have completed the contract.

It is alleged, however, that the evidence in this case shows by a preponderance of evidence that the plaintiff knew the fact that, defendant was a married man when she entered into this agreement, whatever it was, with him.

It is true that a number of witnesses have been examined who-have testified to facts, circumstances and conversations tending to establish this proposition. But the testimony of the plaintiff was explicit that she knew nothing of defendant’s disability until after the contract had been entered into, and supposed him to be a widower, and did not learn to the contrary until the succeeding January, when she wrote to the defendant under date of January 6,. 1886, as follows:

“My dear Clement: Mrs. Bichter called upon me this morning and gave me startling revelations which to my sensitive-nature were more than painful It is her intention to go to New York and find out several points relative to you and explain to-your sons that she is in no way instrumental in the step you contemplate taking, marriage. Do come to Philadelphia at your earliest convenience, for I must have an understanding. Let me know when I can expect you.”

In reply to this fetter on the 8th of January, 1886, the defendant writes:

“My beloved Linchen: Your lines of the 6th I received, and am much surprised that Mrs. Bichter takes so much interest in me. She can tell my sons nothing new. They are fully instructed with everything. I cannot go to Philadelphia before Thursday, but will find out in the interim what time I will arrive. Till then take good care of yourself, and remain in good spirits.”

It seems to us, as it undoubtedly seemed to the jury, that this. correspondence is conclusive proof that the defendant did not then even pretend, much less believe, that the plaintiff knew of the fact that he was a married man until she was so informed by Mrs. Bichter some time in January, 1886.

The plaintiff further testified, which is in entire harmony with this correspondence, that the defendant came to see her on the 15th January, and that he told her: “ Believe me. I am everything I represented myself to be; I am free to marry; to marry you before the whole world; that I have been married is true; it needs not Mrs. Bichter to come and tell you that; but I am divorced; divorced long before I ever knew you, and am free to marry.”

All the evidence upon this subject was submitted to the jury. This issue was presented by the learned court fairly and squarely to the jury for their determination, and to the satisfaction of the counsel for the defendant, for no exception is taken thereto, and the jury have found in favor of the plaintiff, that she did not know, at the time that this contract of marriage was entered into, that the defendant was a married man; and we think, as already stated, the preponderance of the evidence supports that view, notwithstanding the number of witnesses who were examined for the purpose of showing declarations in reference to the existence of a wife of the defendant in the hearing of the plaintiff, and also declarations by her showing such knowledge.

But it is claimed that the court erred in not dismissing the complaint upon the close of the plaintiff’s proof, because the evidence shows that the contract of the 17th of Decmber, 1885, was abandoned, and a new contract entered into, which fixed the date of the marriage for October, 1886; the performance of said agreement in and by that contract having been conditioned at the instance of the plaintiff upon the production by the defendant of papers showing that the defendant was divorced from his wife. That the plaintiff refused to enter into any pretended contract of marriage with the defendant until he exhibited papers showing a divorce, after she learned that he had a wife living, is amply established by the testimony.

It is sworn to by the plaintiff that at this interview, on the 15th of January, 1886, the defendant represented himself to have been divorced. She asked to see the papers, and that is the way in which the thing stood until August, 1886, she being willing upon the production of the papers showing that he had been legally divorced to fulfill the contract He not producing the papers at this time, they came to the lawyer’s office and then she learnt in reference to proposed proceedings in the Hew Jersey courts to obtain a divorce. She was willing that that divorce should be obtained, and it was at this time that the time for the fulfillment of the contract of marriage was first fixed, namely, in October, 1886. In connection with this interview, the defendant represented that his lawyer had failed to get the copy the papers; that he already had a decree of divorce, obtained Indiana, but that her father thought it better to get a decree in New Jersey, in which place the defendant’s wife was confined in & lunatic asylum.

The learned court refused to dismiss the complaint, upon this ground, because the evidence did not show an abandonment of the original contract of marriage; that there was a postponement of the marriage only until the defendant could produce these papers showing that he had been legally divorced.

It is clear from a consideration of this testimony, that that was an inference which might fairly be drawn from the facts which were then before the jury. The plaintiff had testified to the fact that the defendant represented himself all the time to be in a condition to comply with his contract of marriage, and that it was owing to the negligence of his lawyer that he had not got the papers showing that he had been divorced in Indiana.

It is true, the plaintiff knew about the commencement of these proceedings in Mew Jersey, but according to her evidence, if the Indiana papers had been produced she would have fulfilled her contract, and the jury might very well find from the evidence of the plaintiff that there never was an abandonment of the original contract of marriage, only a postponement of its completion until the unexpected impediment which had arisen should be removed.

Mow it is undoubtedly true that if the jury had found that the original contract was abandoned and a new one entered into, the new contract would be void under the principles already enunciated. But it cannot be that where the plaintiff has entered into a contract in good faith, which is perfectly valid, and an impediment arises which would have rendered the contract void if she had known it, because she consents to wait until that impediment is removed, she loses all her rights. So long as the original contract exists and has not been waived, so long does her right to vecover exist The subsequent transactions might very well be considered by the jury in mitigation of damages as was charged by the learned court at the request of the defendant But nowhere has the defendant in any way requested the court to submit to the jury any question in relation to the abandonment of the original contract

It is further urged that the court should have dismissed the complaint because the plaintiff upon finding that the defendant was married refused upon her part to carry out the contract, and that she acquiesced in the postponement of the marriage until a decree or papers showing a divorce were produced. It is said that in this state an offer to fulfill the marriage contract must be made by the plaintiff before she can recover; and the plaintiff in this action having refused to allow the defendant to commit bigamy by entering into what she knew would be an.absolutely void marriage with him cannot recover upon the contract made with him by her in good faith. The very instant that this defendant made the contract with the plaintiff, that contract was broken by him. He knew that it was impossible for him to carry it out. She had a right to claim that he should be in a condition to enter into a legal marriage with her; and as far as she was concerned it made no difference what his status might be, and unless she knew of the fact when she entered into the contract with him it became a contract by which he was bound to her either by its legal fulfilment or paying damages for its breach. If he induced the plaintiff by suppression of facts to enter into a contract with him which it would be impossible for him to fulfil, certainly he is not entitled to much sympathy when he is called upon to respond in damages for its breach.

The whole defense of the defendant in this case has been entirely disposed of by the verdict of the jury. On every question which could affect the right of the plaintiff to recover the jury found against him, and it is idle to discuss the testimony in respect to those proceedings which occurred subsequent to the entering into the promise in question in view of the fact that the defendant claimed from the court no special instructions in respect thereto except so far as they might be considered in mitigation of damages.

The main questions involved in this case were submitted by the court fairly to the jury entirely to the satisfaction of- the defendant, because no exceptions were taken to the charge, neither could there have been any.

The jury have considered the evidence, they have come to the ■concision that the plaintiff entered into this contract in good faith, in ignorance of the fact that the defendant had a wife living, and that whatever subsequently took place was simply a postponement of the completion of this contract until the impediment might be removed. She certainly was not compiled to wait forever, and it is not claimed on the part of the defendant that to this day he was ever in a condition to fulfil this contract.

Under these circumstances we see no reason to interfere with the finding of the jury, and the judgment and order should be affirmed, with costs.

Daniels and Lawrence, JJ., concur.


author: Daniels, J.

text:
    Irving Grinnell et al., Ex’rs, Resp’ts, v. Roger M. Sherman, App’lt.

      (Supreme Court, General Term, First Department,

      Filed May 15, 1891.)

    1. Attorneys—Moneys received—Complaint.
    A complaint alleged that the plaintiffs appointed the defendant their attorney-at-law and in fact; that as such he collected moneys due their testator; that they requested defendant to pay the same hut that he wrongfully refused. Held, that the complaint was sufficient.
    2. Same—Demand necessary—When made.
    A demand was necessary and this having heen made as soon as the person “ having the right to make the demand had actual knowledge of the facts ” was made in time.
    3. Same—Interest
    The attorney was properly charged with interest from the time the money came into his hands.
    Appeal from judgment recoveredon trial before the court

      Joseph A. Thompson, for app’lt; Henry W. Harden and Treadwell Cleveland, for resp’ts.
   Daniels, J.

The judgment has been entered upon the decision of the justice presiding at the trial, for the recovery of the sum of $245, and interest thereon from the 10th of April, 1883, and the costs of the action. The defendant challenges the correctness of this recovery on various grounds, which will be examined so far as that appears to be necessary for the determination of the appeal.

The complaint charges that the plaintiffs by an instrument in writing appointed the defendant as their attorney in law and fact, to recover moneys from the United States belonging and accruing to Moses H. Grinnell, and his estate, of which they were the executors, and that he accepted such appointment, and after-wards collected this sum of money, which, upon being requested by them to pay, he wrongfully refused to pay and has not paid, nor any part thereof. There was no charge that the money had been fraudulently embezzled, or misapplied, or converted by the defendant And the omission to make proof to that effect, -did not avoid the right of the plaintiffs to maintain the action, under anything contained in § 549 of the Code of Civil Procedure. As the cause of action was illegal, all that was required to sustain it, was that the defendant had been employed in the manner averred, and had collected the money, and refused on demand to pay it over, and the proof tended to maintain each of these facts. It was within the scope of -the complaint, and free from all substantial variance with it.

The answer denied that the defendant received the money, or was employed by the plaintiffs to receive it, as their attorney-at-law. That he was employed, as their attorney in fact, and received the money in that capacity, were not denied, and consequently stood admitted upon the pleadings.

The evidence also tended directly to" prove that he did act as the attorney for the plaintiffs, and received this money from the collector of customs at the city of New York. This evidence consisted of a copy of a receipt, certified under the seal of the treasury department of .the United States, acknowledging the receipt of this sum of money in April, 1883. And it was subscribed with the name of the defendant as attorney for the plaintiffs as executors of this estate This copy was not objected to for want of proof that the defendant had subscribed the original, nor for want of any authority of the treasury department to certify it, and in that manner entitle it to be received in evidence. But the objections were:

That the paper purports to be only part of a transaction by the secretary of the treasury, for which he has a special, limited statutory power, without any proof of his jurisdictional power and without any proof of what he did or what the nature was of the award made; also, that it appears on the face of the paper that the award is in conflict with the act of June 22,1874. Also that the complaint is drawn under § 549 of the Code of Civil Procedure against defendant as an attorney at law ; that it is a failure of proof not to prove it, and the paper purports to show that the defendant acted as an attorney in fact in the premises, and not as an .attorney at law.

These objections were overruled, and the copy was allowed to be read, to which the defendant excepted. But there is clearly no merit in this exception, for the receipt was complete in and of itself, and not dependent upon or a part of any other instrument, and directly tended to prove that the defendant had in fact collected the money. For that object, and which was its principal purpose, it tended to make out the case, and also from the manner in which it was subscribed that in recovering the money he did so as the attorney or agent of the plaintiffs.

A demand of the money was a necessary fact as part of the plaintiffs’ case. Rathbun v. Ingals, 7 Wend., 320; Southwick v. First Nat. Bank, etc., 84 N. Y., 420, 433-4. And the evidence fiven by the witness Anthony, was proof of the making of that emand, from which the fact very well could be, as it was, found by the court And its effect was not changed by combining with it the further sum included in another action. Zimmerman v. Erhard, 83 N. Y., 74, 78. At that time the right of action accrued, and there was no evidence that it accrued before then, and as the action was brought within six years after that demand, it was within the time prescribed by the statute. There was no evidence that the plaintiffs knew that the defendant had received the money before that time, and the statute of limitations did not, previous thereto, begin to r:m. Code Civ. Pro., § 410, sub. 1.

The defendant proved that an action had been prosecuted and maintained by the plaintiffs against him in the city court of the city of New York for the sum of $1,778.05, and upon which he relied as a bar to this action. But that appears to have been a separate and distinct collection, from that forming the cause of action in this suit. It was money collected from the treasurer of the United States in May, 1885, Upwards of two years after the collection of the money now in controversy. And for the recovery of each sum a separate right of action vested in the plaintiffs. McIntosh v. Lown, 49 Barb., 550, 557; Zimmerman v. Erhard, 83 N. Y., 74, 78. The recovery in that action was, therefore, no defense to this suit.

It did not appear by proof that any law of the United States had been violated in employing the defendant to receive this money, or in its collection by him. There was some reason for believing that the testator, as United States collector, had been deprived of his right to it, as a part of the forfeiture from which it proceeded. But the treasury department, from . the fact of its payment, appears to have become satisfied that this was not its condition, and therefore paid the money to the defendant And it is to be presumed, in the condition in which the proof was left at the trial, that it was lawfully so paid. But if the fact had been as it was alleged by the defendant, it would be unavailable to him.

For, after he collected the money in the course of his employment by the plaintiffs, he could not legally resist their right to recover it from him by alleging that they had no lawful right to it. Ross v. Curtiss, 31 N. Y., 606; Hancock v. Gomez, 58 Barb., 490. If he had been called upon to return the money for the reason that it had been unlawfully received, the case would have been different. But as long as the treasury department in no manner questioned the legality of the payment, the defendant could not resist the action by asserting it to have been without authority, and, therefore, he should be permitted to appropriate to himself the amount he had received.

The charge of interest sustained by the judgment from the time when the money .was received has also been brought in question by the appeal. But the defendant received the money for the plaintiffs, and, when it came into his hands, he became charged with the duty to pay it over. He failed to perform that duty, and for that failure subjected himself to this liability. It was the further fact which, in Miller v. Clark, 5 Lansing, 388, 890, it was intimated would be attended with that effect. And it was so held in the later case of Bonn v. Steiger, 2 N. Y. State Rep., 90. And to the like effect in Story on Agency, 4th ed., § 221. And neither of the cases of Cockcroft v. Muller, 71 N.Y., 367; Gustine v. Stoddard, 23 Hun, 99; Mygatt v. Wilcox, 45 N. Y., 306; or Bathgate v. Haskin, 59 id., 533, contains any observation which would relieve the defendant from the payment of this interest.

Exceptions were taken to the refusal of the court to find as proved certain requests presented by the defendant. But as they were not of such a character as to change the result even if they had been found, the defendant was not injured by these refusals. The facts which were found, and were sufficiently proved, fully and completely disclosed the defendants’ liability, and nothing transpired relieving him from that result.

The judgment should therefore be affirmed, with costs.

Yan Brunt, P. J., concurs.