author: Van Brunt, P. J. Follett, J.

text:
    The People ex rel. John W. Goodwin, App’lt, v. James J. Martin et al., as Commissioners, etc., Resp’ts.

      {Supreme Court, General Term-, First Department,

      Filed November 16, 1894.)

    Municipal corporation—Police.
    The time, within which certiorm-i must be brought to review the refusal of the police commissioners of the city of New York to reconsider their action in accepting the resignation of a policeman, begins to run from the date of the refusal to reconsider, and not from the date of accepting the resignation.
    Certiorari to review the action of the board of police commissioners in accepting relator’s resignation from the police force.
    On the 29th of June, 1882, the relator was appointed to the position of roundsman on the police force of the city of New York, and served in that capacity until August 13,1889, when he signed a resignation, of which the following is a copy :
    “No. 151.
    “ Police Department of the City of New York, 4th Precinct.
    New York, Aug. 13, 1889.
    “ To the Board of Police—Gentlemen : I do hereby resign my office of roundsman in the police department of the city of New York. This act is voluntary upon my part, and is of my own free will and accord. It has not been caused by any threat of punishment or act of coercion from my superior officer, or any other person connected with the police department.
    “Very respectfully, John W. Goodwin,
    Roundsman 4th Precinct.
    “ Witness : Edward Carpenter, Captain.”
    On the 14th of August, 1889, the resignation was accepted by the commissioners. In December, 1889, the relator obtained a writ of certiorari (the first) to review the proceedings of the board accepting his resignation, but the writ was dismissed on the ground that his resignation appeared to be regular on its face, and was voluntary. 32 St. Rep. 543. In August, 1890, the relator obtained an alternative writ of mandamus alleging that his resignation was obtained by duress. On this allegation issue was joined, which was tried at the May, 1891, circuit, before a jury, resulting in the following finding, which was submitted by the court to the jury :
    “ (6) Was the said relator’s resignation obtained from him by coercion, force, fear, and duress used and brought to bear upon him by his superior officer, Richard F. Hagan, sergeant of-police, or by any other person or persons connected with the said police department ? ” “ Answer Yes.”
    On this verdict, the special term, July 1, 1891, granted a peremptory writ of mandamus requiring the commissioners forthwith to reinstate the relator to his position as roundsman, which order was reversed and the writ dismissed in November, 1891, the court holding that the action of the board could not be reviewed by mandamus. People ex rel. Goodwin v. Mac Lean,, 62 Hun, 42 ; 41 St. Rep. 162. On the 1st of December, 1891, the relator requested the board to reconsider and rescind its action of August 14, 1889, whereby it accepted his resignation, which request the board refused on the 29th of January, 1892. Its action was reviewed on a writ of certiorari (the second) and reversed in November, 1892 (People ex rel. Goodwin v. Voorhis, 66 Hun, 88 ; 49 St. Rep. 736), ■ and an order was entered from which'the following is an extract: “ It is ordered that the proceedings of the respondents and their decision denying relator’s said application be and the same hereby are in all things reversed, and the matter sent back to respondents for further action, with instructions to respondents, and said respondents are hereby ordered and directed to notify the relator, within ten days after service upon them of a copy of this order, of the time and place at which his application will be heard, and to give relator, upon five days’ notice of such hearing to him or his said attorney, Louis J. Grant, an opportunity to present to the said respondents his testimony upon the matters and questions involved in said application.”
    Upon notice to the relator, and after taking the evidence offered by him and by the corporation counsel, the board adopted, on the 7th of February, 1893, the following resolution :
    “ Resolved, that the board of police, after hearing all of the evidence offered upon the application of John W. Goodwin, and after hearing counsel, and after full deliberation, do hereby refuse to reconsider its action of August 14, 1889, in accepting the resignation of Roundsman John W. Goodwin.”
    On the 16th of February, 1893, the relator obtained this (third) writ of certiorari to review the refusal of the board to reconsider its action of August 14, 1889.

      Louis G. Grant, for relator; 0. Blandy, for resp’ts.
   Van Brunt, P. J.

I cannot concur with Mr. Justice Follett in the conclusion arrived at by him that the statute of limitations has run against the right of the relator to review the action of the police board in refusing to reconsider their action removing him upon his alleged resignation. It was held upon a previous certiorari taken in time, according to the calculation of time by Mr. Justice Follett, that the question as to whether the resignation had been obtained by duress, and had been altered without the consent of the relator, could not be considered upon a certiorari taken to review the act of the police commissioners in removing the relator upon such resignation, for the reason that only the proceedings before the police commissioners could be brought up by such writ, and the question as to the validity of the resignation could not be tried, and evidence upon the question could not be considered. From that time on the relator has been endeavoring to have the wrong which was done him by his removal righted; and, in every tribunal before which the question as to the validity of this resignation has been brought, it has been found that such resignation was obtained by duress, and fraudulently altered, and was of no effect,-—-except by the board of police commissioners; and they have sought to justify the wrong which they did in acting upon this resignation, obtained by duress and fraudulently altered, upon the ground that, even if they had not acted upon this so-called resignation, they would have removed the relator because of dereliction of duty. Upon this latter charge the relator has never been tried ; and it is no defense, when it is established beyond question that the resignation of the relator was obtained by duress, and fraudulently altered, after be had been prevented from stating upon the resignation the facts in reference thereto, for the respondents to say that if he had not resigned they would have removed him anyhow.

The evidence in this case shows that this resignation was obtained from the relator by threats, and, as already stated, before he finished its signature it was taken away from him and completed with his consent; and this is the paper by force of which he has lost his position on the force. It does not seem to require argument to show that action upon the part of the police department based upon so fragile a foundation as this can hardly withstand scrutiny. And it is a rather peculiar feature that in the form of resignations which are to be signed by members of the police department when they desire to retire from the force there is printed an acknowledgment that the act is voluntary, and has not been caused by any threat of punishment or act of coercion from a superior officer or any other person connected with the police department. It would seem from this that there is a liability that such coercion will be used, and resignations procured by threats of punishment, and that in order to anticipate cases of this description the provision was printed in the form of resignation. What influence such a declaration in a printed form could possibly have it is difficult to imagine, for if a person was coerced into signing his resignation he would sign a resignation, necessarily, in the form prescribed by the department. We might, therefore, consider that we approach a case of this kind with the admission that such a resignation is liable to be the result of coercion upon the part of superior officers. But it is urged that, if the relator is reinstated, he gets 3-J- years’ pay, and has not been doing any work. Is that any consideration which can influence this court? If such a result follows, is it not because of the persistent determination on the part of these commissioners not to do justice to this man, but to deprive him of his office by means of a false paper, and refusing to try him upon any charges over which they had jurisdiction, and upon which they so glibly claimed that he would have been removed anyhow ? If it was so certain that he could have been removed upon those charges, and that they could have been established, why did they not do so, instead of insisting upon this fraudulent resignation, obtained by coercion and threats ?

It has not been thought necessary to discuss the evidence establishing the facts in connection with this resignation, because that has been done repeatedly already ; and we have only considered briefly the moral considerations which have been urged in support of the immoral act of removing this man upon this false resignation, and the question of law that the statute has run against him, and prohibits him from reviewing the act of the commissioners. As already stated, there was no way in which he could review the acceptance of the resignation except by reviewing their refusal to reconsider their action when he presented to them the proof which ought to have satisfied any reasonable man that such resignation was not the free act of the relator, had never been completed and delivered by him, and was altered after it had came into the possession of his superior officer. I think the relator should be reinstated, and that he should have costs of this proceeding.

O’Brien, J., concurs.

Follett, J.

(dissenting).'—The determination of an officer or board while exercising judicial or quasi judicial functions cannot be reviewed as a writ of certiorari unless it is granted and served within four months after the determination is made. Code Civ. Proc. § 2125. This section is applicable to a review of the action of the board of police in removing an officer from the force, and the writ should be dismissed when it appears on its face that it was not granted within the time limited by the section. People ex rel. McNeary v. MacLean, 64 Hun, 205; 46 St. Rep. 99. However the purpose of this writ may be attempted to be concealed, the ultimate object which the relator seeks to attain by it is the review and reversal (1) of his own act,—his resignation,—and (2) the acceptance of it by the board of commissioners. The relator executed his resignation August 13, 1889, and it was accepted by the board the next day. We find no evidence in the record affirmatively showing the date when the relator first complained to the board that his resignation was obtained by duress, but we find none showing that he made any complaint prior to December, 1889, when the first writ of certiorari was issued; and the commissioners state in their opinion that he first “ questioned his resignation ” in December, 1889. There is no evidence that the board did not act in good faith in accepting the resignation, and without notice of any of the matters by which the relator now seeks to invalidate his act, and the unexplained delay of more than four months before the relator sought to repudiate his resignation, which, at most, was only voidable (People ex rel. Goodwin v. MacLean, 62 Hun, 42; 41 St. Rep. 162), is inexcusable loches. On the 16th of February, 1893, the writ now before the court was granted; more than three years and a half after the action was taken or determination (if it can be called such) was made which lie seeks to reverse. His present application, by reason of the provision of the section of the Code before cited, is too late. It may be said that the relator does not seek by this writ a review and a reversal of the acceptance of'his resignation, but a review and a reversal of the resolution of February 7,1893. Suppose the board should reconsider its action of August 14, 1889, and refuse to reverse it, it is plain we think, that the lapse of time would prevent this court from reviewing their determination on a writ of certiorari. To review their action of August 14, 1889, under the form of reviewing their action of February 7, 1893, would be doing indirectly that which the court has no power to do directly. Such a practice would enable persons feeling aggrieved by the determination of boards or officers exercising judicial powers to remain silent until after the time to review their action had expired, and then present a request to the board or officer that their original determination be reconsidered and revoked, and, if the request were refused, to review both determination under one writ. This procedure would be in violation of the language and the spirit of the Code and the rules of the common law governing the procedure on such writs. Entertaining this view of the case, it becomes unnecessary to determine whether the adjudication under the first writ of certiorari is a bar to these proceedings instituted by the third one. Singularly enough, the judgment entered on the first writ is not pleaded nor proved, and we know nothing of its provisions except as gathered from the opinion reported in 10 N. Y. Supp. 511; 32 St. Rep. 543. It being apparent that by the relator’s delay the ultimate relief which he seeks cannot be granted, this writ should be quashed, but without costs to either party.


source: Caselaw Access Project

author: Parker, J.

license: Public Domain

text:
    Bank of Clarke County, Pl’ff, v. Theodore Gilman et al., Def’ts.

      (Supreme Court, General Term, First Department,

      Filed November 16, 1894.)

    1. Bills and notes—Special indorsement.
    An indorsement of a check, “for collection and credit,” is notice that it is the property of the indorser.'
    2. Banks—Collections.
    A hank, to which a check, payable at a remote place, is indorsed for collection, has no implied authority to employ a sub-agent to collect it.
    3. Same.
    The insolvency of the bank, in such case, revokes its agency.
    4. Same.
    Under such circumstances, the agent employed by the bank to make the collection, if he has made advances on account of the check, cannot hold such check or its proceeds as against the owner unless he makes with the bank an express contract to purchase the paper, and, in pursuance thereof, has actually paid its face value.
    Submission of controversy on an agreed statement of facts.
    Plaintiff and the defendants are engaged in the business of banking,—the former at Berryville, Va. ; the latter in the city of New York. On the 12th of January, 1892, the plaintiff sent to J. J. Nicholson & Sons, bankers at Baltimore, without any special instructions or previous special agreement varying the legal effect of its indorsement, a check of which it was the holder. The check was drawn on the National Bank of tbe Republic, New York City, and was indorsed : “For collection and credit of Bank of Clarke County, J. R. Nunn, Cashier.” J. J. Nicholson & Sons received it, and indorsed it, “Collect for J. J. Nicholson & Sons,” and sent it by mail to tbe defendants. The defendants received the check on the morning of January 14th, but instead of presenting it to the National Bank of the Republic for collection, deposited it to their credit in the Manhattan Company, indorsed, “For deposit in the Manhattan Company to credit of Gilman, Son & Company.” On the next day (January 15th) the Manhattan Company presented the check to the National Bank of the Republic for payment. It was paid, and charged to the account of the maker; but on January 14th J. J. Nicholson & Sons failed, and notice of it come to the defendants some time during tbe day. This proceeding was instituted because the plaintiff insists that the check belonged to it at the moment it was presented to the Bank of the Republic for payment, and the proceeds of it likewise belonged to it, and that, its agents having failed, and such failure having come to the knowledge of the defendants, it was their duty to have transmitted the proceeds of the check to the plaintiff. Were there no other facts than those we have referred to, it would at once be recognized that plaintiff’s position was so well grounded as not to admit of debate, even ; but, between the time when the check was received by the defendants and the hour when knowledge of the failure of J. J. Nicholson & Sons came to them, such things were done by the defendants, and such transactions took place between them and J. J. Nicholson & Sons, as persuades the defendants that they have the right to insist, and to be sustained in insisting, that plaintiff’s check was by them paid to plaintiff’s agents prior to the knowledge of the failure of such agents being brought home to them. In the same inclosure by which J. J. Nicholson & Sons transmitted to them (defendants) for collection plaintiff’s check, they sent other checks and sight drafts, with plaintiff’s check, aggregated $12,700.98 In accordance with the course of business between them, this $12,700.98, when received by defendants ou the morning of January 14th, was at once credited to Nicholson & Sons as cash, thus cancelling an existing overdraft of $2,413.74, and giving them an apparent cash balance of $9,787.24, increased later in the day by two collections, of $90 and $88.83, to $9,691.07. While the defendants always credited J. J. Nicholson & Sons upon their books with all checks and drafts received, whether for collection or otherwise, as so much cash, still it was the custom of the defendants to return to Nicholson & Sons checks thus credited to them when not paid no presentment, and to charge the same to their account. It was the agreement and course of business between Nicholson & Sons and the defendants that defendants’ collections on account of Nicholson & Sons should be remitted by payment of the drafts which Nicholson & Sons drew upon them on every day when sending a remittance. They usually drew one draft, which would cover nearly the entire amount of the remittance and any smaller checks which Nicholson & Sons might have occasion to draw to make up the balance. Not only was this their custom, but it was their agreement that remittance should not be made in any other way. When sending the remittance of $12,700.98 by which Nicholson & Sons obtained, as we have observed, an apparent balance with defendants of $9,961.07, they drew a check against it for $10,330.73, which was presented to defendants for payment by its holder on the morning of January 14, 1892. This left Nicholson & Sons’ account with the defendants again overdrawn by $369,66. The defendants insist that this transaction was in effect a payment of the $500 check in question to plaintiff’s agent; that the remittance was as effectively made out as if the defendants had, upon receiving the check, shipped $500 in gold to Nicholson & Sons; and that by this act their responsibility in the matter, either to Nicholson & Sons or to the plaintiff, came to an end. There were still other transactions during the day, and before defendants learned of the failure of Nicholson & Sons. After the payment of the $10,330.73 check, other small checks of Nicholson & Sons, aggregating $216.74, were presented and paid, thus increasing Nicholson & Sons’ overdraft to $581.40. Later in the day, a note for $591.54, which defendants had previously received from Nicholson & Sons for collection, but which, not being at sight, they had not credited to them, was paid and credited, and thus the overdraft was canceled, and a credit balance of $10.44 created.

      Baldwin & Boston, for pl’ff; Parsons, Shepard & Ogden, for def’ts.
   Parker, J.

The general proposition which lies at the foundation of a discussion of the merits of this controversy found expression by the court of appeals in Dickerson v. Wason, 47 N. Y. 439, in the following language: “ Where persons in the business of banking and collecting send to their correspondents or agents, in the regular course of business of receiving and sending notes between them for collection for mutual account, business paper received from customers for collection, the agent or correspondent acquires no better title to it or its proceeds than was. owned by the one transmitting it, unless there is a bona fide purchase of it for value, or advances made upon it in good faith, without notice of any defect in the title.”

The essential elements of this rule are presented by the proposition put by way of illustration in Corn Exch. Bank v. Farmers' Nat. Bank, 118 N. Y. 443; 29 St. Rep. 965, as follows: “ When the owner of commercial paper delivered it for collection to Bank A. , which forwards it for collection to Bank B., which in turn forwards it for collection to Bank 0., to which it is paid, it has been held that if Bank 0., instead of paying the money to Bank B. , retains and applies it on a debt due from Bank B., the owner (Bank A. being insolvent) may recover of Bank 0.”

And it is said that this is so because the paper, until paid, remains the property of the owner who indorses it for collection. Nat. Butchers' & D. Bank v. Hubbell, 117 N. Y. 384; 27 St. Rep. 396; Railway Co. v. Johnston, 133 U. S. 566; Manufacturers' Nat. Bank v. Continental Bank, 148 Mass. 553; First Nat. Bank of Crown Point v. First Nat. Bank of Richmond, 76 Ind. 561. When paid, the proceeds, by way of substitution, at once vest in the owner, and the person collecting it, or into whose hands the money conies, is liable to the holder for the veritable proceeds of the paper, or for the amount of such proceeds if they become mingled with the collector's own money. Bank v. Armstrong, 148 U. S. 50, and cases cited supra. In some other jurisdictious it has been held to be within the implied authority of the collecting agent, when paper is to be collected at some place remote from that or the business of such agent, to employ a subagent in that locality to make collection on account of the owner; but in this state the rule is otherwise, and in the absence of any understanding of agreement to the contrary, is to the effect that the collecting agent is deemed to employ such other collector on his own account Thus, the collecting agent becomes chargeable to his principal for the conduct of the bank or individual to whom he transmits the paper for collection. Whenever the owner chooses to revoke the agency conferred, he may seek the paper or its proceeds in the hands of the correspondent of his chosen agent, or follow it into whosesoever hand it may have gone, unless it shall have passed into the possession of a bona fide holder for value, who received it from a party clothed with apparent title. People v. City Bank of Rochester, 96 N. Y. 32; Naser v. First Nat. Bank, 116 N. Y. 492; 27 St. Rep. 670. This right was, in the first instance, treated as an equitable one rather than one resting in contract, and the occasions for the assertion and enforcement of it doubtless arose from the insolvency of collecting agents, or from some other cause making it equally necessary to invoke the remedy. While the rights of the owner of commercial paper intrusted to an agent for coJlecttion, merely, are of the character already asserted, yet in order to secure all of its advantages, beyond question he must indorse the paper for collection. Such an indorsement is restrictive, and notice to every subsequent custodian of the check that it remains the property of him who thus indorses it. Nat. B. & D. Bank v. Hubbell, supra; Bank v. Armstrong, 148 U. S. 50. In this case the check was indorsed by the plaintiff: “ For collection and credit of Bank of Clarke County. J. R. Nunn, Cashier.” It is said that the use of the word “ credit ” in the indorsement changes the rule which would otherwise obtain. But this suggestion is disposed of by Bank v. Hubbell, supra. According to it, the general rule of law applicable to paper transmitted “ for collection ” applies as well when the owner’s agent is given authority to collect and credit, down to the point where the moneys shall have actually come into the hands of such agent. Then the agent is authorized to credit the owner with the proceeds. Thus, it appears that, when the check came into the hands of the defendants, they were informed by the indorsement which the owner had placed upon the back of it that Nicholson & Sons were simply the agents of the plaintiff, having authority to present the paper, demand payment of it, and, if paid, to credit the proceeds to the owner; and they are presumed to have known that the title to the check was still in the owner, and would continue in it down to the moment when it should be paid, and then the proceeds would be substituted in its place, the title thereto becoming at once vested in the original owner and holder of the check. Further, they must be presumed to have known that the owner could pass by the agent whom he had selected, and demand either the paper or the proceeds of the paper from the defendants, so long as either should continue to be in their possession, and that the effect of insolvency on the part of Nicholson & Sons would be to revoke their authority to act for the owner of the check. The logical result of the authorities upon this general subject, to some of which we have referred, seems to be that the only duty which devolved upon Nicholson’s correspondent was to present and demand payment of the check, and, if paid, remit the proceeds; that such action not only constituted the full measure of the correspondent’s duty, but, further, that they had no right to do anything else. If the assertion of the right of a correspondent to deal differently with the paper of the owner thus coming to it for collection should be sustained, the result would certainly be in hostility to the established doctrine that the title to such paper continues to be in the owner until paid, whereupon the title to the proceeds becomes vested in him, and so continues until he is able to reach it; and until the happening of such event he is clothed with authority to revoke the agency, and recover the check or the avails in the hands of any correspondent. One of the incidents of this legal relation is the reasonable expectation that, if the collecting agent becomes insolvent while the paper or its proceeds is in the hands of the subagent, the owner may interrupt the paper or its proceeds. Bank v. Armstrong, supra. This reasonable expectation, and the protection which it insures, might be defeated if the subagent could provisionally advance the amount to the insolvent agent. In Warner v. Lee, 6 N. Y. 144, the court, referring to a case where the correspondent had received from the agent of the owners a note for collection, said : “ Under these circumstances, if he had made advances upon account of it, he could not have held the note, nor its proceeds, against the plaintiff.”

It has frequently been held that the correspondent does not become vested with the title of such paper, even when he has remitted on general account, in anticipation of collection. Dickerson v. Wason, supra; National Park Bank of New York v. Seaboard Bank, 114 N. Y. 28; 22 St. Rep. 160; Arnot v. Bingham, 55 Hun, 553; 29 St. Rep. 878. These decisions seem to be the logical and necessary result of the established doctrine that the title to such paper continues in the owner until payment, when the proceeds become vested in him as a substitute for the paper paid. If there be any exception to the general rule which we think the authorities completely establish, it would seem to be confined to a case where the correspondent makes with the agent of the owner an express contract to purchase the paper, and, in pursuance thereof, actually pays to the agent the face value of it. If the effect of the transaction between Nicholson & Sons and these defendants is not to bring it within this possible exception, defendants would seem, to be without defense in this controversy.

The defendants insist, among other things, that the facts stipulated in this submission establish that they had actually paid to the agents the amount of the check, and had become the owners of it. That portion of the agreed facts upon which this contention is founded reads as follows : “ By the agreement and course of business between Nicholson and the defendants, the sole method by which the collections made by the defendants on account of Nicholson and Nicholson’s customers were remitted, or to be remitted to Nicholson, was the honoring of drafts drawn upon them by Nicholson against the amount of Nicholson’s remittances, * * * without waiting for the collection of the paper against which they were drawn. Said draft of $10,330.73, and said four drafts aggregating $216.74 [all paid by defendants before knowledge of Nicholson’s insolvency], in connection with said existing overdraft of $2,913.74, were intended by Nicholson and by the defendants to be the means by which the payment of said amount of $12,700.98, including therein the amount of plaintiff’s said check for $500, should be paid to Nicholson ; and, so far as the agreement between Nicholson and the defendants provided, the defendants’ responsibilities for the remittance to Nicholson of the proceeds of plaintiff’s said check ended when they had thus honored drafts of Nicholson upon them equal to or in excess of that amount, and of the amount of all other remittances theretofore made to them by Nicholson.’’

It will be observed that there was no express agreement with reference to the check in question. The stipulation refers to the general agreement and course of business between Nicholson & Sons and the defendants. There should be read, iu connection with it, another stipulation contained in the facts agreed upon. It reads : “ It was the custom of the defendants to return to Nicholson & Sens checks credited to them, and not paid on presentment, and charge the same to the account of Nicholson.”

According to their agreement and course of business, then, the defendants credited Nicholson & Sons with all paper received, whether for collection or deposit; and if, on presentment, any of such paper was not paid, then it was charged against Nicholson & Sons. Clearly, then, it was not the understanding or agreement of the parties that the defendants should become the owner of, and absolutely bound to pay for, all the paper with which they gave Nicholson & Sons credit upon their books. Both the credit and advancement were merely provisional. If the paper should be paid, the credit would stand; otherwise, defendants would charge Nicholson & Sons with the amount of it, and return the dishonored paper.

It may be further said in this connection that the course of business between Nicholson & Sons and the defendants shows that the latter relied ns largely upon the responsibility of the 'former as upon the paper transmitted by them. When the-inclosure containing this and other checks was received, Nicholson & Sons already had an overdraft of nearly $3,000, and, about the time of their receipt, Nicholson & Sons’ cheek was presented for payment, and paid in an amount exceeding, by §364.66, their total credit, based upon checks and drafts which might or might not turn out to be collectible. To this situation the remarks of the court in Nat. B. & D. Bank v. Hubbell, supra, are entirely applicable : “ The finding shows that the credit was a provisional ■one only. It was a mere matter of bookkeeping.' It would seem to have been more in the form of a memorandum of the different pieces of paper received, because, if any were not paid, such as went to protest were at once charged back upon the books of the firm against the plaintiff, and returned to it with the expenses of protest charged to it. The firm never became absolutely responsible to the plaintiff for the amount of these collections until the collections were actually made and the proceeds received by them.”

So, here, the defendants intended the credit to stand, provided the check was paid, but not otherwise. It was a conditional credit, —a matter of convenient bookkeeping. A mere statement of the facts, such as has been made, makes it sufficiently clear that there is no foundation for the claim that the defendants purchased the paper. The transaction was in effect an advancement oil general account, which, both on principle and authority, did not operate to divest the plaintiff of, and invest the defendants with, title to the check. The title to it, then, was in the plaintiff on the morning of the 15th, when the check was paid by the Bank of the Republic, at which time the defendants had full knowledge of the insolvency of Nicholson & Sons, which operated to revoke their authority as agents of the owner. That being so, the right of plaintiff to recover of the defendants the proceeds is established by the universal consent of the authorities.

Plaintiff should have judgment, with costs.

All concur.


author: McCarthy, J.

text:
    Henry Ketaltas, as Trustee, etc., Resp’t, v. Robert M. Gilmour, App’lt.

      (New York City Court, General Term,

      Filed November 20, 1894.)

    Bill of particulars—Counterclaim,
    It is within the sound discretion of the court to direct the defendant to serve a bill of particulars of his counterclaim.
    Appeal from an order directing a bill of particulars of a counterclaim.

      P. Q. & F. L. Fckerson, for app’lt; Fdward P. Schell, for resp’t.
   McCarthy, J.

This is an appeal from an order directing the defendant to serve a bill of particulars of the counterclaim set forth in. his answer. • I think the same was within the sound discretion of the court, and was properly allowed.

Order is' therefore affirmed, with costs.


author: Yaw Wyck, J.

text:
    Michael Kirchner, Resp’t, v. Peter Otto, App’lt.

      {New York Oily Court, General Term,

      Filed November 20, 1894.)
    Evidence—Receipt.
    A receipt by defendant for goods sold and delivered is proof of a sale to liim individually, and not to a firm of which lie claims to be a member.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Menken Bros., for app’lt; Wagnet & Ackner, for resp’t.
   Yaw Wyck, J.

The record shows that plaintiff produced, - on the trial, receipts signed by Peter Otto, the defendant, for $218.50 worth of materials delivered by him -to defendant, and plaintiff admitted a payment of $50; while defendant contended that the entire amount had been paid, and, moreover, claimed that he had informed plaintiff that he had taken a partner, and that, therefore, he was not individually liable for a part of the materials, but jointly with this partner, who was not made a party defendant. These receipts, signed “Peter Otto,” are proof that the materials were sold and delivered to him ; and that it was not error for the court to instruct the jury to find for the plaintiff for the balance of $168.50, unless they should determine that the defendant had paid the same, as he claimed by his evidence. • The verdict for plaintiff for such balance and interest is not against the weight of evidence, and the judgment and order are affirmed, with costs.


text:
    Al. E. Lazzaro, App’lt, v. John H. Maugham, Resp’t.

      {New York City Court, General Term,

      Filed November 20, 1894.)

    Deposition—Commission—Interrogatories.
    An interrogatory as to a witness’ recollection of the contents of a letter written by him will not be allowed, without first showing that he has retained no copy.
    Appeal from an order striking out certain proposed interrogatories from a commission to take evidence.

      H. M. Hilchings, for app’lt; Root & Clark, for resp’t.
   Yaw Wyck, J.

The pleadings show a contract whereby plaintiff’s assignor agreed to sell and deliver, and defendant to receive and pay for, certain bonds, at two certain banks in New York City. The plaintiff sues to recover damages for defendant’s failure to so receive and pay for the bonds, while defendant counterclaims for plaintiff’s assignor’s failure to so sell and deliver the same bonds. There seems no dispute between the parties as to any of the terms of the contract; hence plaintiff will only be called upon to prove defendant’s failure to receive and pajYor the "bonds at the designated "banks in New York, and liis alleged damages by reason of such failure. After issue thus joined, plaintiff moved for a commission for the examination of his assignor at Kansas City, and for the settlement of certain interrogatories to be propounded by him ; and defendant’s objections to interrogatories 8, 9, 11, and 16 were sustained by the order from which this appeal is taken. Under the eleventh and sixteenth, the witness was permitted to state orally the terms of his own contract with the New York banks in reference to the bonds, and the order allowed him to do so provided that such contract was verbal, but not so if the contract was in writing. By the eighth and ninth interrogatories, plaintiff sought to have the witness give his recollection of the contents of a telegram and letter written by him to defendant, and which fixed the terms of the original, contract. Were these papers pertinent to the issues to be tried under the pleadings, which left no dispute as to the terms of the original contract? Plaintiff concedes that this secondary evidence of the contents of these papers could not be given at trial until the proper foundation for its introduction had first been laid, but contends that, unless these interrogatories are now allowed, he will be left at trial without this secondary evidence of their contents should defendant refuse to respond to a subpoena duces tecum, or notice to pi'oduce the originals. This is true, but he must frame his interrogatories here as he would be compelled to do at trial; and at trial, before he would be allowed to give his recollection of the contents of the telegram and letter; he would be forced to state whether or not he had made letterpress or other copies of the same at the time they were indited, and, if so, then to produce such copies, the best secondary evidence of their contents, or satisfactorily explain his inability to do so. The duplicate original of the telegram is certainly, in the telegraph office at Kansas City, and it is fair to assume that the witness, a dealer in bonds and other negotiable securities, made and has in his possession letterpress copies of both ; and it was not error to disallow interrogatories which permitted him to give his own recollection of the consents of letters written to, but possibly never received by, the defendant, although the witness might have true and exact copies of them in his possession. The safest practice for a party compelled to prove by a nonresident witness the contents of letters mailed to his adversary is to seek an inspection and copy of the originals from his adversary, under § 803 of the Code, or, if by commission, to frame his interrogatories in accordance with rule as above suggested. Are not both of these remedies still left to the plaintiff ? Order affirmed, with $10 costs.


author: Yah Wyok, J.

text:
    Sam G. Stern et al., App’lts, v. Robert Frommer, Resp’t.

      (New York City Court, General Term,

      Filed November 20, 1894.)

    1. Tbial—Directing verdict.
    A verdict for the defendant cannot he directed at the close of plaintiff's case.

      2. Evidence—Sale.
    Delivery of goods sold may be proved by testimony of the vendor’s salesman that he subsequently saw them in the purchaser’s possession.
    Appeal from a judgment entered on a verdict directed by the court in favor of the defendant.

      Epstein Bros., for app’lts; Qhas. F. Holm, for resp’t.
   Yah Wyok, J.

At the close of plaintiffs’ case the court directed a verdict for defendant, and on such verdict the judgment was entered from which this appeal is taken. This was error, for at most a. plaintiff can only be nonsuited at the close of his case, and may thereafter being a new action for the same cause, first paying the costs of the action in which he was nonsuited; but not so if the judgment is upon a verdict of the jury, for such judgment is a bar to a subsequent action for the same cause. The plaintiffs’ proof shows that their salesman called at defendant’s saloon at a time when defendant was in charge of his saloon, and took an order for a barrel of whisky for defendant from one Helmuth, then dealing with such salesman as buyer for defendant, and that Helmuth was also defendant’s bookkeeper, at a salary of $10 per week., The plaintiffs made proper effort to prove delivery of this barrel of whisky to defendant, by showing by their salesman that he had subsequently seen the same in defendant’s sa'loon, but, on defendant’s objection, were not allowed to do so, and to all of which plaintiffs excepted. The judgment is re■versed, and a new trial ordered, with costs to appellants to abide the event. All concur.


author: Yan Wyok, J.

text:
    Pompeo Maresi, App’lt, v. American Yacht Company, Resp’t.

      {New York City Court, General Term,

      Filed November 20, 1894.)

    Trial—Nonsuit.
    Where the proof makes out a prima facie case against the defendant, it is error to nonsuit the plaintiff.
    Appeal from a judgment of nonsuit.

      L. J. Morrison, for app’lt; L. 0. Wachner, for resp’t.
   Yan Wyok, J.

Plaintiff’s entire proof was made without any objection from defendant, and shows that one Yoyer was the steward of the American Yacht Club ; that such steward ordered from plaintiff certain glass, china, and other tableware, for the club, to be used by it at the opening banquet given by it at its clubhouse at Rye on the Sound; that such tableware was by plaintiff shipped and delivered to the club, at its house at Rye; that the same was there used by it upon the banquet table on the occasion of the opening of its clubhouse; and that the value of the use of such tableware on such occasion was $169, which had not been paid, although payment thereof had been demanded. This proof made out & prima facie cause of action against defendant; hence, it was error to nonsuit plaintiff. Judgment reversed and new trial ordered, with costs to appellant to abide the event.


author: Van Wyck, J.

text:
    James G. Wilson, Resp’t, v. Tom A. Ritson, App’lt.

      (New York Oity Gourt, General Term,

      Filed November 20, 1894.)

    Appeal—What reviewed.
    Questions of law only can be reviewed upon an appeal from a judgment.
    Appeal from a judgment entered on a verdict in favor of plaintiff.

      Jas. J. Fitz Gerald, for app’lt; Wm. H. Sage, for resp’t.
   Van Wyck, J.

Defendant appeals from the judgment only; hence only questions of law can be reviewed (Matthews v. Meyberg, 63 N. Y. 656); and the only question of law reviewable on this record is raised by appellant’s exception to the denial of his motion to nonsuit plaintiff. At trial, defendant conceded that he owed and had agreed to pay plaintiff $241.50, but contended that he was not indebted to him in the additional sum of $50, as claimed by plaintiff; and the jury found with defendant’s contention-by disallowing the $50 item, and returning a verdict for only $241.50. Judgment affirmed, with costs.

All concur.


author: Ehrlich, C. J.

text:
    William M. Corbitt, as Administrator, etc., Resp’t, v. Metropolitan Life Insurance Company, App’lt.

      (New York; Oity Gourt, General Term,

      Filed, November 20, 1894.)

    Insurance—Life—Warranty.
    Where correct answers are given to an insurance agent to questions contained in the application, but, either through fraud or mistake, the agent inserts incorrect and untrue answers, the defense of breach of warranty is not sustainable.
    Appeal from a.judgment entered on a verdict in favor of plaintiff.

      Arnoux, Bitch & Woodford, for app’lt; M. P. O'Connor, for resp’t.
   Ehrlich, C. J.

The jury found, upon evidence justifying the conclusion, that the decedent was the person insured; that the insurance was for the benefit of the estate ; that the answers which she made to the agent of the defendant were true; and that the answers which appear in the written application, and on which the defendant founds its defense of breach of warranty, were inaccurately put down by the defendant’s agent, so that, in point of fact, that was no fraud or misrepresentation by the insured. Treating these facts as found adversely to the defendant, the law applicable is that where correct answers are given to an insurance agent to questions contained in the application, but, either through fraud or mistake, the agent inserts incorrect and untrue answers, the insurer, and not the insured, is responsible for their falsity; and, in an action on the policy, the defense of breach of warranty is not sustainable. O'Brien v. Home Ben. Society, 117 N. Y. 310; 27 St. Rep. 326; Bennett v. Agri. Ins. Co., 106 N. Y. 243; 8 St. Rep. 693; Miller v. Phænix Mut. L. Ins. Co., 107 N. Y. 292; 12 St. Rep. 1; Grattan v. Met. L. Ins. Co., 80 N. Y. 281; 92 N. Y. 274; Benninghoff v. Agri. Ins. Co., 93 N. Y. 495. It is upon this theory alone that the judgment can be upheld. True, the evidence is not as cogent as might be desired; yet it was credited by the jury, and was deemed by them sufficiently reliable to warrant the result arrived at The trial judge was seemingly of the same opinion, for he promptly denied the motion to set the verdict aside. It follows that the judgment and order appealed from must be affirmed, with costs.


author: Osborne, J.

text:
    John Kerr, Resp’t, v. Atlantic Avenue Railroad Company of Brooklyn, App’lt.

      {Brooklyn City Court, General Term,

      Filed November 26, 1894.)

    Negligence—What not.
    It is not negligence, as matter of law, to attempt in broad daylight, to drive across a track in front of an approaching electric car about 100 feet distant.
    Appeal from a judgment entered on a verdict in favor of plaintiff.

      Morris & Whitehouse, for app’lt; Jay S. Jones, for resp’t.
   Osborne, J.

Plaintiff obtained a verdict against the defendant for damages for injuries sustained through the negligence of the defendant. Defendant appeals, and urges as the principal ground for seeking a reversal that the evidence failed to show freedom from contributory negligence on the part of the plaintiff, or that the plaintiff’s injuries were due to any negligence on the part of defendant’s servants, and that the learned trial judge erred in refusing to grant the motions to dismiss the complaint on those grounds, made at the close of the plaintiff’s case, and renewed after all the evidence was in. Plaintiff’s story is to the effect: That on the 16th of October, 1893, he was driving a two-horse wagon, loaded with furniture, along Seventh avenue, in a southerly direction, on the right hand, or westerly, track of defendant’s road. When he was within about 15 feet of the corner of Sixteenth street and Seventh avenue, he started to turn up Sixteenth street towards Eighth avenu-e, which would necessitate his crossing the easterly track of defendant’s road. That the plaintiff first turned his horses slightly to the right, sufficiently to pull his wheels out of the railroad track, and then turned his horses’ heads again to the left, to go up Sixteenth street At about that time he looked south along Seventh avenue, and saw a car of defendant’s approaching on the easterly track, and which was then some 90 or 100 feet distant from plaintiff’s wagon. Plaintiff thereupon drove across Seventh avenue on an angle, with a view to go up Sixteenth street. His horses had crossed the east track, and his front wheels were about up to the easternmost rail of the east track, when his cart was struck by the car, and he was precipitated to the ground, and suffered the injuries to recover damages for which this action is brought.

On such a statement as this, standing alone, we cannot say, as matter of law, that the plaintiff was guilty of contributory negligence in attempting to cross Seventh avenue and go up Sixteenth street. It was broad daylight, the car was some ninety to one hundred feet away, and it was the duty of the motorman to avoid coming into collision with vehicles traversing the streets crossing his track. He could have readily slowed down his car and avoided any collision with plaintiff’s wagon. Whether he was negligent in failing to do this, and whether plaintiff was negligent in attempting to cross the track at a time when the approaching car was some ninety or one hundred feet away, were questions which, we think, ought properly to have been left to the jury to determine. While it is quite true that the defendant made out a case which, standing alone, might have been sufficient to acquit it of negligence, yet it varied so widely in many of its essential details from plaintiff’s statement as to how he received his injuries that it was plainly the duty of the court, under a proper charge, to submit the questions involved to the jury to determine. The jury have found in favor of the plaintiff, and we can see no reason for disturbing their verdict.

We fail to see any force in the exception taken to the overruling of defendant’s objection to the question put at folio 223. There was nothing in the question objected to that was calculated to humiliate or disgrace the witness, but it was a subject for fair cross-examination with a view of determining the degree of credibility that the jury should attach to the witness’ testimony.

We are, therefore, of opinion that the judgment and order denying motion for a new trial should be affirmed, with costs.


author: Tan Wyck, J.

text:
    Anthony Timony, as Administrator, etc., Resp’t, v. Brooklyn City and Newtown Railroad Company, App’lt.

      (Brooklyn City Court, General Term,

      Mled November 26, 1894.)

    Negligence—Question of fact.
    In an action against a street railroad company for running over a boy five years old, the evidence was held sufficient to carry the questions of defendant’s negligence and of the boy’s freedom from contributory negligence to the jury.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Morris & Whitehouse, for app’lt; Chas. J. Patterson, for resp’t
   Tan Wyck, J.

This action was to recover damages for the death of plaintiff’s son, who was run over by one of defendant’s trolley cars at the junction of Wythe avenue and Rush street, in this city. The trial resulted in a verdict for the plaintiff for $3,000. This appeal is from the judgment entered on that verdict, and from the order denying motion for a new trial.

The first contention of appellant is that the refusal of the trial court to nonsuit was error; that the evidence was insufficient to carry the question of defendant’s negligence, or that of this boy’s freedom from contributory negligence, to tlio jury. There is testimony in this case which, if true, establishes : That on the morning of October 6, 1893, the deceased, a boy of five years of age, went out into the street, in charge of his brother, thirteen years of age, and while he, with other children, was playing about a pile of dirt at the southeast corner of Wythe avenue and Rush street, he started to run across Wythe avenue, at which instant one of defendant’s trolley cars, on the west track, was about half a block away, coming very fast; and when the boy reached the west track it was about fifty feet away, and just as he was about to clear the westerly rail of this track the car knocked him down, running over him, and going a distance of fifty feet after the collision. That though • the motorman could have seen him approaching the track from the time he started from the corner, when he (the motorman) was half a block from the point of collision, and though he could have seen him on the track when lie (the motorman) was fifty feet from the point of collision, he continued to run his car at- the same rapid speed; paying no attention to the outcries of warning, and making no effort to stop until he had knocked the boy down and killed him, and going then a distance of fifty feet beyond the point of collision, though he could have stopped his car in a distance of eight to thirty feet. We think that both questions were properly submitted to the jury. The general term of this court has too recently expressed itself to that effect to again repeat its reasons for such conclusion, and we shall content ourselves by referring to our opinions in Keenan v. Brooklyn City R. R. Co., 8 Misc. Rep. 601; 60 St. Rep. 831, and Dowd v. Brooklyn Heights R. R. Con 9 Misc. Rep. 279; 61 St. Rep. 321.

The only other exceptions urged by appellant are found at folios 94, 95. These questions to the motorman were properly admitted on cross-examination after he had sworn on the direct that he was alert, and had done all a man could do in the management of his car, to save the boy. He was first asked on cross-examination if he had not, just after the accident, told Officer Duffy that he was sick, and did not have proper control of his car, to which he answered he could not be sick when he was working. It seems to us that the cross-examiner had a right to pursue him, after such evasion, with the direct question as to whether he was sick or not on that occasion. He answered this question that he was not sick, so, if the question was improper, the answer in no way harmed the defendant.

The judgment and order must be affirmed, with costs.


author: Clement, C. J.

text:
    Lizzie Butcher, Resp’t, v. Richard Hyde et al., App’lts.

      (Brooklyn Oily Oourt, General Term,

      Filed November 26, 1894.)

    Negligence—Dangerous condition—Notice.
    Where the stairs of a theater become dangerous, notice to the proprietors can be implied by the jury from the lapse of a very short space of time.

      Appeal from a judgment entered on a verdict in favor of plaintiff.

      Wm. M. Benedict, for app’lts; Bailey, Bell & Crane, for resp’t
   Clement, C. J.

was the duty of the defendants to exercise reasonable care over the stairs which were in use at their theater. They were bound to exercise more care than the owner of a tenement house in the control of stairs in common use by tenants, and more care even than the officers of an elevated railroad over the stairs in use at their stations. It was the duty of defendants to be vigilant to see.that the stairs of the theater, which were crowded every weekday, should be in such a condition that a theater-goer, though a lady 72 years of age, could with safety descend the stairs, provided the care of a reasonably prudent person was exercised. If the stairs of a theater become dangerous, notice to the owners can be implied by a jury by the lapse of a very short space. of time. We think that the jury could infer that 24 hours, and perhaps less, was ample notice to the proprietors of any patent defect in the means of egress. It would not be a great hardship, to hold that the managers of a theater or of a public hall in daily use should,, at the close of each performance, inspect the halls, pas: sageways, and stairs. We have read with care the record in this case, and conclude that there were sufficient evidence on the part of the plaintiff to justify the verdict of the jury. There was testimony tending to show that the rubber on the sixth step was out of order, and liable to trip a person descending the stairs. The other question—whether the plaintiff fell by reason of the defect in the step, or for some other , reason—is close. There does not seem to be any direct testimony showing that the plaintiff stepped on the spot where the defective rubber was. There is testimony tending to show that her foot caught in the fifth or or sixth step, and that there was no other defect in the stairs except at the sixth step. In this case it was difficult for the plaintiff to describe accurately the exact spot where the injury occurred, and yet, from all the surrounding circumstances, the jury could infer that she fell on account of the defective covering of the sixth step. The plaintiff testified that she was descending the stairs, and that, at about the fifth or sixth step, her foot became caught in some way, and that she fell' and was injured. Proof is given that at the sixth step the rubber covering was raised up, and liable to produce the result testified to by plaintiff. It would be a refinement to hold, as matter of law, that it was not for the jury to determine whether the defect in the sixth step was the cause of her fall.

Judgment and order denying new trial affirmed, with costs.


text:
    Charles S. Higgins Company, Resp’t, v. Amalga Soap Company et al., App’lts.

      {Brooklyn City Court, General Term,

      Filed November 26, 1894)

    Injunction—Trade-names.
    Equity will enjoin the use of a name which has become, in connection with other indicia, the chief means in commerce of distinguishing the proprietary article of merchandise from others of the same class, even where that name has been acquired through the instrumentalities of the laws for the incorporation of business companies, if it was done with the fraudulent intent and purpose of stealing the trade of another.
    Appeal from an order continuing an injunction.

      Grout, De Fere & Mayer, for app’lts; Johnson & Lamb, for resp’t.
   Yan Wyok, J.

From the evidence herein, which fully sustains the findings, it appears that from 1880, and in fact from a period long prior thereto, Charles S. Higgins and bis associates had been engaged in the business of manufacturing and selling laundry soap. It was put up in cakes, each being a parallelepiped 4£x2£xlf inches, weighing three-quarters of a pound, the two larger surfaces of the same being surrounded by a raised rim, and having impressed on one of the panels so formed the words “Charles S. Higgins’ Herman Laundry Soap,” and on the other the corresponding words in Herman, each cake being perfumed with citronella oil, and inclosed in a blue wrapper, upon which was printed “Chas. S. Higgins’ Herman Laundry Soap,” with a picture of a colored woman washing in a tub, between the words “Olías. S. Higgins” and the words “Herman Laundry Soap,” and the directions for the use thereof both in Herman and English. This brand of soap was extensively advertised at great expense, becoming one of the best-known laundry soaps in the metropolitan market. It was very generally used and known to the washing public as “ Chas. S. Higgins’ Herman Laundry Soap,” or “Higgins’ Herman Laundry Soap,” or “Higgins’ Laundry Soap,” and was easily identified, in the minds of the common users thereof, by the shape, size, and perfume of the cake, and by the wrapper, on both of which the name of “Higgins” was indelibly impressed, save as the name on the cake itself was effaced in the lather of the washtub, and then it would be too late to substitute another kind of soap without the actual consent of the laundress. The plaintiff, by assignment, became duly possessed, in 1890, of all the rights of Charles S. Higgins and his associates in this brand of soap, with the good will, trade-marks,- and rights appurtenant thereto, and has ever since been engaged in the business of making and selling the same, put up in the same manner, in every respect, as it was by its assignors. In 1886 envious greed seems to have impelled "the defendant John Donovan, Jr., to make an effort, by “an unfair competition in trade,” to share with Charles S. Higgins and associates the value which they have given to this brand of soap by their energy, skill, expenditures, and honesty to customers. He conspired with others to accomplish such result by deceiving imitations of the brand. • The first and most necessary step was to acquire, in some manner, the use of the name “Higgins,” so he and his associate, Bronson, brought from Walter De Witt Clinton Higgins bis consent to name a corporation which they were about to form “The Walter Higgins Manufacturing Company,” and paid therefor $1,000 of the stock. This accomplished, then they commenced the business of making and selling “Higgins’ Laundry Soap,” by degrees imitating more closely the indicia by which “Chas. S. Higgins’ Laundry Soap” was known and identified, till their cakes were of the same size; shape, character, and perfume, and inclosed in a wrapper of the same color, and upon both cake and wrapped were impressed or imprinted the same devices, pictures, and words, differing only in the substitution- of the words “Walter Higgins Mau’f’g Co. Turkish Laundry Soap” for those of “Chas. S. Higgins’ German Laundry Soap,” and of the picture of a turk and his pipe for that of a colored woman at the washtub. The defendant the Amalga Soap Company is now making and selling this laundry soap, put up in the manner indicated, and Donovan is paid a commission for selling the same. It is clear that such imitations were calculated and intended to deceive, and did deceive, the public into purchasing the spurious goods in the belief that they were buying the goods of plaintiff. The defendants are engaged in an unfair competition in trade, appropriating to themselves the valuable good will in trade which has been created by the labor, skill, expenditures, and good faith of others. This, a court of equity will not countenance. The injunction herein should be upheld, including that part of it which prohibits the use of the name of “Higgins” in designating soap, which was fraudulently given to this corporation for the purpose of carrying out the illegal and inequitable design of invading the rights of the owners of the brand of soap known as “Olías. S. Higgins’ Laundry Soap.” It has been asserted by some ol the most eminent jurists that the just demand for relief from the hardships resulting from the strict application of the inflexible rules of the common law to the affairs of life was the real origin of the English chancery court. Whether this is correct or not, our. courts of equity, judging from the reported decisions, have conservatively avoided the announcement of inflexible rules with the idea that they will fit all cases, resting content with the consideration of the special equities in the given case. Their tendency has been to develop and broaden the jurisprudence in the class -of cases of which this is one, so as to respond to the demands of natural justice in its application to new methods of business and new forms of schemes for the invasion of the rights incident to the good will in trade honestly acquired. Equity should not hesitate to enjoin the use of a name which has become, in connection with other indicia, the chief means in commerce of distinguishing the proprietary article of merchandise from others of the same class, even where that name has been acquired through the instrumentalities of the laws for the incorporation of business companies, if it was done with the fraudulent intent and propose of stealing the trade of another, for it is “an unfair competition in trade,” which should not be encouraged or permitted. While a person can change his name under the law, he should hardly be permitted to use it as the means of sharing the advantages with another in his valuable proprietary article, if the name was so changed with the fraudulent intent and design of accomplishing that purpose. It is well to bear in mind that Walter De Witt Clinton Higgins is not restrained from using his name, for he was not made a party to this action, having abandoned and disassociated himself from the artful project to rob Charles S. Higgins and associates of their trade in the very infancy of the disreputable undertaking. Defendant Donovan alone, of the pioneers in this movement, has persistently pursued the scheme, taking in and dropping out, from time to time, new associates, until he made his present combination with the defendant the Amalga Soap Company, which is now engaged in pirating the trade of plaintiff .by manufacturing and clothing soap in the objectionable dress hereinbefore described, and paying Donovan, for selling the same, a commission for which he has never accounted to the “Walter Higgins Man’f’g Co.” We refer' to the following authorities in support of our views: CaHN v. gottschalk, 16 St. Rep. 818; 2 N. Y. Supp. 13; Fischer v. Blank, 138 N. Y. 244; 52 St. Rep. 339; Morgan's Sons Co. v. Troxell, 23 Hun, 632, at page 640; Newman v. Alvord, 51 N. Y. 189; Celluloid Manuf'g Co. v. Cellonite Manuf'g Co., 32 Fed. 94; Holmes, Booth & Haydens v. Holmes, Booth & Atwood Manuf'g Co., 37 Conn. 278; Hendriks v. Montagu, 50 Law J. Ch. 456; Merchants' Detective Ass'n v. Detective Mercantile Agency, 25 Ill. App. 259; Le Page Co. v. Russian Cement Co., 2 C. C. A. 555; Taylor v. Carpenter, 2 Sandf. Ch. 613; McLean v. Fleming, 96 U. S. 245.

Judgment affirmed, with costs.


author: Yan Wyck, J.—

text:
    Alexander H. Small, Resp’t, v. Brooklyn City and New-town Railroad Company, App’lt.

      (Brooklyn City Court, General Term,,

      Filed November 26, 1894.)

    Definition—Preponderance of evidence.
    A fair preponderance of evidence does hot mean the largest number of witnesses, but evidence of such character and weight as carries conviction to the mind of the juror of the existence of the facts sought to be proved.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Morris & Whitehouse, for app’lt; Thos. F.-Pearsall, for resp’t.
   Yan Wyck, J.—

This is an appeal from a judgment entered upon a verdict in plaintiff’s favor for injuries alleged to have been caused by the negligence of defendant, and also from the order denying a motion for a new trial. This appeal was submitted, without oral argument, on printed points, in which appellant raises only one point, viz., that me negligence of defendant and the freedom of plaintiff from contributory negligence were not established by a fair preponderance of evidence; and this question only will be considered by us.

Plaintiff’s contention is that, the motorman having brought his car to almost a standstill in response to plaintiff’s signal, he was in the act of getting aboard, with both hands holding the railings, and one foot on the step and the other foot being raised from the ground, when the car suddenly started forward with great force, breaking plaintiff’s hold of the railing, and throwing him under the following car. The defendant’s contention is that plaintiff, without giving any signal to stop, ran out into the street, and attempted to get on the car moving at the usual speed, slipped, and fell. We have critically read and considered the testimony in this case, and think it fairly sustains the plaintiff’s contention. It is true that plaintiff called seven witnesses, three of whom testified that they were present at the accident, and defendant called nineteen witnesses, fifteen of whom testified that they were present; but it should be borne in mind that seven of them were or had been in the employ of the defendant, that some of the witnesses were impeached by contradictory statements, and some testified that they paid no particular attention to the matter till the accident had actually occurred; and all of these circumstances the jury had the right to consider in determining which contention was true. It is hardly necessary for this court to affirm that a fair preponderance of evidence does not mean the largest number of witnesses, but rather evidence of such character and weight as carries conviction to the mind of the juror of the existence of the facts sought to be proved.

Believing the evidence justifies the verdict, the judgment and order must be affirmed, with costs.


text:
    Anna Whalen, Resp’t, v. Citizens’ Gas Light Company, App’lt.

      {Brooklyn City Court, General Term,

      Filed November 26, 1894.)

    1. Negligence—Duty oe one disturbing sidewalk.
    The employes of a corporation, which has a right to make an excavation in a sidewalk, are hound to he careful and prudent in the performance of the work.
    3. Same—Question for jury.
    The questions as to the contributory negligence of the plaintiff and as to the negligence of the defendant were held, under the evidence of this case, to have been properly submitted to the jury.
    Appeal from a judgment in favor of plaintiff.

      Frank Sullivan Smith, for app’lt; Thos. M Pearsall, for resp’t.
   Clement, C. J.

The question whether or not the plaintiff was guilty of contributory negligence was properly submitted to the •jury. The plaintiff was, at the time of her injury, 70 years of age, and while walking on the sidewalk on Court street, in this city, tripped on a flagstone, and was thrown down. The employes of the defendant had removed the flagstone, and placed it over another, which formed a part of the sidewalk. The law on this question is well settled by a long line of authorities. Jennings v. Van Schaick, 108 N. Y. 530; 13 St. Rep. 686; Smith v. Ryan, 29 St. Rep. 672; 8 N. Y. Supp. 853; affirmed, 130 N. Y. 653; 41 St. Rep. 950; Bullock v. City of New York, 99 N. Y. 654; Dale v. City of Syracuse, 71 Hun, 449; 54 St. Rep. 381; Brown v. City of Syracuse, 77 Hun, 411; 60 St. Rep. 16. The appellan.t had the right to excavate where it did, but when the sidewalk was disturbed its employes were bound to be careful and prudent in the performance of the work. The testimony does not show to our satisfaction that there was a necessity for placing the flag over the broken one. The latter was not moved for the reason that it would be difficult to replace, as it was broken in several pieces. The company did the work in a way which would saved expense, even if it did interfere with the use of the street by the aged and infirm. The question of the negligence of the defendant was also, under the authorities, properly submitted to the jury.

We do not think that error can be predicated on 'the exception at folios 140 and 141. Horen had given no testimony as to where the flag was, and, if he had, his testimony that he had been told by his foreman to put it in a particular place would be no evidence that he did put' it in that place. The exception at folio 175 was not well taken, within the authority cited. Wiwirowski v. L. S. & M. S. Ry. Co., 124 N. Y. 420; 36 St. Rep. 405. The first part of the proposition is faulty,1—“ that there is no presumption that the plaintiff exercised care and prudence in regard to her life and limb.” The request should have been that, while there is a presumption that a person will exercise care in regard to life and limb, yet the inference could not be drawn from such presumption that the plaintiff was not guilty of contributory negligence. In the words of Judge Earl: “The presumption that every one will take care of himself from regard to his own life and safety cannot take the place of proof.” Cordell v. N. Y. C. & H. R. R. R. Co., 75 N. Y. 330-332. The sixth request, if. charged, would have misled the.jury. It leaves out of the case the 1 question whether or not a prudent person would have placed the stone, even if it was necessary to put it over the broken flag, without any protection or warning to travelers.

Judgment and order denying new trial affirmed, with costs.


text:
    John I. Goodrich, Resp’t, v. John Gillies et al., App’lts.

      (Supreme Court, General Term, First Bepan'tment,

      Filed November 16, 1894.)

    Mechanic's men—Notice,
    Under the Consolidation Act, an error in stating the amount of the demand in the notice will not invalidate the lien for the amount actually due, if made without fraudulent intent and through mistake.
    Appeal from a judgment in favor of plaintiff.

      Thomas F. Maguer, for app’lts; George S. Hastings, for resp’t.
   Parker, J.

This suit, which has for its purpose the foreclosure of a lien upon moneys in the hands of the comptroller of the city of New Yoi’k, due from the city to the defendant Gillies upon a contract to build a pier and bulkhead at the foot of Rivington street, East river, has been subjected to some reverses bn its way to a final determination. A j udgment rendered in favor of the plaintiff by the special term was reversed in this court, because of the absence of a finding that the materials for which plaintiff had recovery were furnished towards the performance or completion of the contract with the city, or that any portion of them was used in the execution and completion of such contract. Goodrich v. Gillies, 62 Hun, 479; 42 St. Rep. 319. The retrial also resulted favorably to the plaintiff, but, an appeal being taken to this court, it was reversed on the ground that the plaintiff, with full knowledge of the facts, filed a notice of lien for a larger sum than the agreed price of the materials used by the defendant in the performance of his contract with the city. Id., 66 Hun, 422; 50 St. Rep. 142. The special term, upon a third trial, again rendered a judgment in favor of the plaintiff, and it is now the subject of review. The record agrees with the former one in so far as it was made to appear that the lien was filed for a larger amount than was due to the plaintiff for materials which -were actually used in the work which was the subject of contract between the defendant and the city. The findings of fact, however, upon which this judgment is founded are materially different in an important respect, and so is the evidence tending to support them. One finding is to the effect that the “ plaintiff had reason to believe that all of the materials described in said notice of lien had been actually used by the defendant John Gillies in the completion of the contract of said defendant John Gillies with the defendants the mayor, aldermen, and commonalty of the city of New York.” The next finding asserts that plaintiff had been so informed by his agent, and the third that the plaintiff believed at the time of making and filing the notice that it was in all respects true. These findings bring the case within the authority of Gaskell v. Beard, 58 Hun, 101; 33 St. Rep. 852, where it was held that, while the statute (Laws 1882, ob. 410, § 1825), provides that the notice shall give “ the amount of the demand after deducting all just credits, offsets,” etc., still if, without fraudulent intent, and through mistake, an error be made in stating the amount of the demand, the lien may be enforced.notwithstanding the error. It follows that the judgment must stand, unless it is the duty of the court to reverse the findings of fact to which we have referred. With that thought in mind, we have attentively examined the evidence, and as a result have reached the conclusion that the rules which should guide this court in reviewing questions of fact protect the findings from reversal. The judgment should be affirmed, with costs.

All concur.


author: Herrick, J.

text:
    Annie I. Dawson, as Trustee, etc., Pl’ff, v. John D. Parsons et al., Def’ts.

      (Supreme Court, Albany Special Term,

      Filed November 15, 1894.)

    1. Partnership—Real estate.
    Real property, paid for with partnership funds and used for parnership purposes, is firm property, though the title thereto is in the names of the partners individually.
    2. Dower—Firm land.
    The wife of a partner has no right of dower in land owned by the firm.
    Motion .that a purchaser of the real estate be compelled to complete his purchase.

      J. Newton Fiero, for receiver; John A. Delehanty, for purchaser.
   Herrick, J.

This is a motion to compel the purchaser of certain real estate sold at receiver’s sale to complete his purchase. His' objection to so doing is the fact that the wife of the defend' ant. John D. Parsons refuses to sign the deed of such real estate. The purchaser’s contention is that the share of John D. Parsons in such real estate is subject to the inchoate right of dower of his wife, and that, until she releases her right, the title offered to him is not perfect. Heretofore there existed in the city of Albany a copartnership doing business under the firm name of Weed, Parsons & Go. Said copartnership consisted of John D. Parsons, Thurlow Weed, George Dawson, and Philip Ten Eyck. After several transfers, the interest of Thurlow Weed finally became vested in the remaining members of the firm. By the death of Philip Ten Eyck and George Dawson, John D. Parsons became the surviving member of such firm, and for a number of years remained in possession of the firm assets and property, carrying on the business as it had been formerly carried .on by said copartnership. This action was instituted against the defendants by the owners of the Dawson interest for a receiver of said copartnership business and property, and for an accounting and settlement, and distribution of the assets to the parties entitled thereto. Upon the proceedings had before me it appeared that the indebtedness of the business conducted by the defendant John D. Parsons amounted to many thousands of dollars. The business of the copartnership was carried on in and upon real estate, the record title of which appears to have been in the names of George Dawson, John D. Parsons and Philip Ten Eyck. The receiver, after conducting the business for some months, finally, by order of the court, made by the consent and at the suggestion of all parties to the litigation, sold at public auction, to the highest bidder, both the personal and real property that had been used in transacting said copartnership business. The real estate was struck.off to James H. Manning, he being the highest bidder therefor. In the moving papers used before me upon this motion, and which are uncontradicted, it appears that the real estate in question was used and occupied, and had been for many years, by the said firm of Weed, Parsons & Go., and that its business was there conducted. An examination of the books of the copartnership accounts show that there is charged to the copartnership account, under the head of “ Columbia Street Property ” (said property in question being located upon Columbia street), the sum of $197,000 ; that, when purchases were made by them of parcels of real estate which formed a part of the Columbia street property, the moneys paid for such real estate were charged against said property on the books of the firm as disbursements, constituting a part of the said $197,000, and entered as copartnership disbursements; that in accounts under the head of “ Bents and Taxes ” the amount of taxes paid upon said property for a long period of years appear charged upon such property ; and "that the rents received from such portions of such real estate as were not occupied by said firm were credited to the firm, and deducted from the whole amount charged against said property, leaving the balance charged thereto the sum of $197,000. It also appeared before me that such real estate was heavily mortgaged, and the papers used upon this motion show that the interest upon such mortgages was paid by said copartnership ; that the insurance upon said property was in the name of Weed, Parsons & Co.; that the buildings thereon were at one time destroyed, or partially destroyed, by fire, and the amount of insurance thereon was paid to and entered upon the books of Weed, Parsons & Co.; that, among the papers of said firm coming into possession of the receiver, were some called “ Statements,” showing the condition of the Weed-Parsons printing establishment, and in such statements the “ Columbia Street Property,” so called, is mentioned under the head of “ Assets.” From this statement it will be seen that the real estate in question, while recorded in the individual names of three members of the firm, was purchased by moneys of the copartnership, and was charged to the copartnership upon its books; that it was occupied by said copartnership for the purpose of carrying on its business; that the copartnership paid the expenses of maintaining it, kept it insured, and paid'all expenses thereon, entered it as part of the copartnership assets, and, in short, in every way treated it and considered it as copartnership property. I think, therefore, that the real estate in question was copartnership property ; that the wife of the defendant has no interest except in the proceeds thereof after all debts are paid, and the interests of the several copartners are adjusted and settled. Such, it seems to me, is the law of this state.

In so far as the case of Smith v. Jackson, 2 Edw. Ch. 34, holds that “ lands can only become partnership property by some express agreement between the partners, and not merely by purchasing with joint funds and taking title in their joint names,” I think it has long ceased to be authority in this state. The fact that it is purchased with partnership funds and used for partnership purposes, and treated by the members of the copartnership as copartnership property, together with “ the manner in which the accounts are kept, whether the purchase money was severally charged to the members of the firm, or whether the accounts treat it the same as other firm property, as to purchase money, income, expenses, etc., are controlling circumstances in determining such intention, and from these circumstances an agreement may be inferred.’’ Fairchild v. Fairchild, 64 N. Y. 471-477; Collumb v. Read, 24 N. Y. 505. And, in so far as the case of Smith v. Jackson holds that dower attaches to such real estate, it is only correct in a modified sense. So long as the partnership exists, the real estate owned by it is in equity considered personal property, subject to firm debts, and to the interests of each partner in the firm; and it is only after the partnership ceases to exist, the copartnership debts have been paid, and the individual interests of the co-partners adjusted and settled,-as between themselves, that the real estate or the proceeds thereof are treated or considered as real estate to which dower can attach. This doctrine, I think, is too well established by authority in this state to require any discussion of the several cases. See Buchan v. Sumner, 2 Barb. Ch. 167; Williams v. Walker, 2 Sandf. Ch. 325; Buckley v. Buckley, 11 Barb. 43, 49; Smith v. Danvers, 5 Sandf. 669; Chester v. Dickerson, 52 Barb. 349; Everett v. Schepmoes, 6 Hun, 479; Garrett v. Scheffer, 47 N. Y. 656; Hiscock v. Phelps, 49 N. Y. 103. “ The estate of inheritance of the husband, in which alone she [the widow] could claim dower, would be what remained after satisfying the partnership debts. I speak in reference to lands acquired with partnership funds." Sage v. Sherman, 2 N. Y. 432, approved in Greenwood v. Marvin, 111 N. Y. 423-436; 19 St. Rep. 612, where it wa, expressly held “ that real estate purchased by the partnership firms for partnership purposes, with partnership funds, is regarded in equity, so far as the firm and its creditors are concerned, as personal property. Widows are not dowable therein.” And, again: “ After the dissolution of a firm, and the claims of its creditors are discharged, and the equities of the respective partners in its assets are determined and satisfied, such property loses its character of personal property; but so long as the partnership affairs remain unsettled, like all other assets of the firm, its real estate is equitably pledged to creditors, and liable to be absorbed and disposed of in the process of liquidating the firm debts and satisfying the claims of the respective partners as against each other.” Again (page 438, 111 N. Y., and 19 St. Rep.): “Such property, until discharged from the trust under which it is held as partnership property, cannot be regarded as real estate for any purpose.”

In settling copartnership affairs it frequently happens that the business and personal property are both so connected with the real estate that each lends value to the other, and to sell one and keep the other would largely impair the commercial value of both, and for that reason it becomes necessary to sell both. Such was the case in this proceeding. In this case, for the purpose of closing up the copartnership, paying its debts, and settling the several interests of the partners, it became necessary to appoint a receiver. Such receivership necessarily extended to all the' copartnership ■property, both real and personal. For the purpose of making the most of the assets of such copartnership for the benefit of the creditors, and representatives of the several partnership interests, it became a business necessity to sell and dispose of all the partnership assets. Such sales cannot be made in any case, unless a clear title can be conveyed. And it will not do to wait for an adjustment of all the claims of the creditors, and a settlement of the several interests of the copartners, and then attempt to sell the property. Such a proceeding would be destructive to the interests of all. The sale must ordinarily be made first, and the claims and interests paid out of the proceeds. The authorities" heretofore cited hold that it is not real estate in equity, so long as it is co-partnership property; and it remains copartnership property so long as the debts of the copartnership are unpaid, and so long as the remainder is not apportioned among the partners according to their respective interests. At the time of the sale, therefore, of this real estate by the receiver, it was not, in equity, real estate to which the right of dower would attach. Mrs. Parsons had no inchoate interest in it as such. She had nothing to release. Any rights that she may have as the wife of John D. Parsons cannot attach until a settlement of all the partnership affairs; and if, for the purpose of such settlement, it has become necessary to sell the realty, her right attaches, not to the property so sold, but to the proceeds thereof after the payment of all claims, both of the creditors and of the several copartners. For these reasons I think the objections of the purchaser must be overruled, and an order entered directing him to complete his purchase according to the terms thereof.


text:
    Harry Kemmerer, as Administrator, etc., App’lt, v. Manhattan Railway Company, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed November 16, 1894.)

    1. Master and servant—Appliances.
    The long use of a system of fog signals, without accident, justifies its continuance without imputation of negligence.
    2. Same.
    The evidence was held to be insufficient to warrant the submission to the jury of the question as to the inadequacy of the appliances.
    Appeal from a judgment dismissing the complaint

      Henry G. Atwater, for app’lt; Joseph H. Adams, for resp’t.
   Parker, J.

Plaintiff’s intestate, while engaged in the performance of his duties as a fireman on the Sixth Avenue Line of defendant’s railway, on the morning of January 2, 1891, was so severely injured that he died within a few hours thereafter. His injuries were occasioned through a collision between the locomotive upon which he was riding and the rear car of the train going in the same direction. At the time of the accident there was a very heavy fog, which prevented the engineer, as he testified, from seeing the car in front of him until he was within about 25 feet of it. When the engineer passed 144th street with his train, the fogman stationed beside the track signaled him that a train was a minute or two ahead. From that time until he discovered the car in front of him, which was near • 150th street, he ran the train, according to his testimony, a little faster than a man would walk, or at the rate of between four and five miles an hour, keeping all the time a sharp lookout for .a train ahead. Owing to the density of the fog, however, he says he was unable to discover it. until so close to it that prompt action taken on his part did not and could not avert the collision. The learned judge at the circuit, decided that this unfortunate accident was not occasioned because of the omission of the defendant to discharge any duty which it owed to plaintiff’s intestate. Our examination of the record leads us to the same conclusion. The complaint alleges that defendant failed in the performance of the obligations which it was under to plaintiff’s intestate and others similarly situated, in two respects, viz.: (1) In not providing a proper signal system or a proper set of signals to warn those in charge of moving trains of dangers and obstacles ahead. (2) In not providing a proper and sufficient number of persons to use and operate the signals and signal system in use. As to the last ground, there is no- evidence whatever tending to show that there was a less number of men employed for signal purposes on the day of the accident than usual, or that those employed were incompetent. So we may confine discussion to the first ground of negligence assigned.

The court of appeals, in Harley v. Buff. Car Manufacturing Co., 142 N. Y. 31-34; 58 St. Rep. 437, in defining the measure of duty which a master owes to his servant, in providing appliances for his safety, used the following language: “ The master does not guaranty the safety of his servants. He is not bound to fur'nish them an absolutely safe place to work in, but is bound simply to use reasonable care and prudence in providing such a place. He is not bound to furnish the best known appliances, but only such as are reasonably fit and safe. He satisfies the requirements of the law if, in the selection of machinery and appliances, he uses that degree of skill which a man of ordinary prudence would use, having regard to his own safety, if he were supplying them for his own personal use. It is culpable negligence which makes the master liable, not a mere error of judgment.”

While this is but a new statement of an old proposition, it helps to keep in mind the principle of law which should guide the court in the consideration of the facts of this case. While the accident would not have occurred but for the presence of a dense fog, such fogs were not unusual; and the question, therefore, is, whether defendant exercised that reasonable care and caution which a man of ordinary prudence would provide for his own safety, were he supplying signals for his protection. 'In the first place, it should be said that the evidence shows that the system employed had been in use for over fourteen years, and the evidence does not suggest a collision at this point during that time.

This long use of the system without accident would seem to have justified its continuance without imputation of negligence. Lafflin v. Buff. & S. W. R. R Co., 106 N. Y. 136; 8 St. Rep. 596; Brady v. Man. Railway Co., 127 N. Y. 46; 37 St. Rep. 340; Harley v. Buff. Car Manufacturing Co., 142 N. Y. 37; 58 St. Rep. 437. The log system used by defendant was described by1 defendant’s witness Grermain, the engineer of Kemmerer’s train, as follows : “This system on this railway at that time was this: That where a train stopped the rear brakeman should immediately go back; give notice to the next train. When the train behind stopped, the flagman on that train should go back to the next train, and so that the men on each train were bound to guard their own train. Then, in addition to that, we had signal stations with the red ball,—such a ball as we had at One Hundred and Fifty-third street,—which, unless the weather was very foggy, we could see at a distance. In addition to that, we had the fogman, who stood there to indicate how far the trains were ahead of us with their fingers. Then we had the fogman at One Hundred and Fifty-third street, whose duty it was, as soon as a train was stalled at One Hundred and Fifty-third street, to move right back, and see that the man got out and gave the warning. That was our system, and that system had been in force on that road as long as I can remember. We were perfectly well acquainted with it. It was the duty, also, in foggy weather to have lights out on the rear of the cars, and that has always been the practice on the road.”

The defendant, of course, had every incentive to provide for the safety of its trains. The large number of passengers carried every day of the year would necessarily stimulate endeavor to provide for their safety, and at the same time assure the defendant against loss and damage. The result of its efforts was the system testified to by Grermain, which for a long period of years had proved adequate at this point. 'The working out of the system on this occasion failed to obtain the results for which it was designed, but it cannot be said, from the testimony in this record, that it was the fault of the system. Its apparent failure was probably not due to the system, but rather to the omission of some of the employes charged with its execution to perform their duty. It is difficult to fix the responsibility of the failure. Whether it was owing to the negligence of the engineer of Kemmerer’s train, to the negligence of one of the two rear brakemen of the train stopping at One Hundred and Fiftieth street, to the negligence of the fogman at One Hundred and Fifty-third street, or to the failure of the employe charged with that duty to put lights on the end of the last car of the preceding train, rendered necessary because of the density of the fog, we cannot say. Nor is it important that we should be able to determine which one of these several persons proved unfaithful in the moment of peril, for each of them was the fellow servant of the plaintiff, and for the neglectful acts of any or all of them, resulting in the accident, the defendant is not responsible.

The plaintiff proved that there was in use on elevated roads, including a portion of defendant’s lines, an automatic fog signal. As to this evidence, it should be observed, in the first place, that, if it could be said to establish that system to be somewhat better than the one adopted by the defendant, still defendant’s liability would not be made out, because the evidence also established that the system-employed by it was reasonably safe. But the evidence as to the use of an automatic system by the Kings County Elevated Road, testified to by plaintiff’s witness Graham, hardly warrants the conclusion even that said system could be wisely and safely substituted for the one in use by the defendant. He testified: “Ho one sets that signal. The engine sets it when it strikes the lever. It is „ automatic and works itself. Besides, when there is a fog, we have men distributed all along the line of the road, at the danger points, to hold up their fingers to the locomotive engineer to tell him how long the train has been gone ahead of him; but they ain’t there to govern this signal, because it works itself.”

Thus it appears that, in its practical workings, the automatic signal was not regarded by that company as furnishing adequate protection. In addition, men were distributed along the line to tell the engineer how many minutes ahead of him the other train was. This requirement was a part of defendant’s system, but only a small part, as already sufficiently appears. We think the plaintiff failed to furnish such evidence of defendant’s negligence as would have justified the court in submitting the case to the jury

The exception does not call for a reversal, which was taken to the refusal of the court- to permit one of plaintiff’s witnesses to answer the following question: “ Suppose such a system as you have there on the Kings County Road were put in between One Hundred and Fifty-third street and One Hundred and Forty-fifth street, on the Manhattan; describe how it would work? ” Whether there was legal objection to the inquiry we need not consider, because the refusal to receive the evidence was harmless in its effect. The witness not only testified to the use of the system on the Kings County Road, but, before leaving the witness stand, described how the system worked on that road.

The judgment should be affirmed, with costs.

All concur.