text:
    Edward Gilligan, App’lt, v. Town of Waterford, Resp’t.

      (Supreme Court, General Term, Third, Department,

      Filed December 3, 1895.)

    1. Office and officer—Compensation,
    A statute, which provides that a bridge erected by the state to be operated at the expense of a town in which it is situated, does not authorize the town to fix the compensation of the bridge tender.
    2. Same.
    In such case, the bridge tender is entitled to recover from the town the difference between the statutory amount and the compensation fixed by the town board, though he received from month to month the amount fixed by the said board.
    Appeal from a judgment entered on a verdict in favor of defendant, and from an order denying a motion for a new trial, made on the minutes.
    Francis A. Martin (I. H. Maynard, of counsel), for app’lt;
    J. W. Atkinson, for resp’t.
   MAYHAM, P. J.

On the 11th of July, 1889, the plaintiff was employed or appointed by the superintendent of public works of the state as bridge tender, to operate a hoist or lift bridge across the Champlain Canal, where it intersects and crosses Broad street, in the town of Waterford. He served in that capacity from the 20th of July, 1889, to the 1st of December of that year,—a period of 1,596 hours. This hoist or lift bridge was constructed by the state under the direction of the superintendent of public works, pursuant to chapter 320 of the Laws of 1888.

Section one of that act provides as follows:

“The superintendent of public works is hereby authorized to construct or cause to be constructed and maintained, at the expense of the state, a lift bridge over the Champlain Canal, at Broad street in the village and town of Waterford, Saratoga county. Said bridge shall, when constructed, be operated at the expense of the town of Waterford, under the direction of the superintendent of public works.”

The balance of the section limits the amount of expenditure, and describes the method of letting the contract, for the construction of the bridge.

In pursuance of that act, the state constructed a bridge at the point indicated, which was completed before the 20th of July, 1889.

Chapter 380 of the Laws of 18$9 took effect on the 6th day of July of that year.

By section 1 of that act it is provided as follows:

“From and after the passing of this act, the wages of day laborers employed by the state, or any officer thereof shall not be less than $2,00 per day, and for all such employed otherwise than day laborers, at the rate of not less than twenty-five cents per hour.”

On the 11th of July, 1889, the superintendent of public works addessed a communication in writing to the supervisor of the town of Waterford as follows:

“John E. Gage,. Esq., Supervisor of Waterford, FT. Y.—Dear Sir: This is to certify that under the provisions of law, that I select the tender of Waterford lift bridge, while the town of Waterford fixes the compensation for such services.
“Very truly yours, James Shanahan,
“Superintendent of Public Works.”

On the 12th of July, 1889, the supervisor called a meeting of the town board of the town of Waterford, at which the following resolution was adopted:

“Besolved, that the sum of $50.00 per month be paid for each man employed for operating the lift bridge for the season of 1889, and that the number of men be'limited to two.”

The ease does not disclose that the plaintiff had any notice or knowledge of the correspondence between Shanahan and the supervisor, to which we have’ referred, or of the adoption of resolution by the town board. The persons designated or selected by the superintendent of public works as bridge tender for this bridge were the plaintiff, Edward Gilligan, and one Mr. Clark. On the 23d day of August, the plaintiff was paid by the town $50 on account of his services as bridge tender, and, at the time of receiving the same, made no claim for additional compensation for his services. On the 26th of September, he was also paid $50, and made no additional claim. And, on the 3d of December, he was paid $66.66, being pay for 11-3 month, at the rate of $50 per month. The testimony of the plaintiff shows that he was appointed by Shanahan, superintendent of public works, to the position of bridge tender, and that he never had any understanding or agreement with the town board as to his compensation. The case shows that the plaintiff never made any claim for more than $50 per month compensation at the time of the performance of the service; that he had received in all $218.38; and that his compensation, if fixed at the rate of $2 per day for a day of eight hours, or 25 cents per hour for the whole number of hours, would aggregate $398, leaving due him upon that basis $180.66, which amount he claimed to recover in this action.

The jury, upon the evidence, under the charge of the judge, rendered a verdict for the defendant; and the plaintiff appeals from the judgment entered upon that verdict. After the rendition of the verdict, the plaintiff moved to set it aside, and for a new trial, xxpon the minutes of the judge, on the ground that the verdict was against the xveight of evidence, and contrary to law, and also upon the exceptions taken at the trial. The motion was entertained and denied, to which the plaintiff excepted.

If, under the circumstances of this case, the town board had authority to fix the compensation of the plaintiff at a rate other than that regulated by statute, we think the jury might, under the evidence in this case, have reached a conclusion that there was an implied contract on the part of the plaintiff to accept the sum of $50 per month; and upon his acceptance of the same, in the manner indicated by the evidence in this case, they might properly have reached a conclusion that the town had paid the plaintiff the amount regulated by such implied contract. But, xxnder the circumstances of this case, and the statute governing the same, we are of the opinion that neither the superintendent of public works nor the authorities of the town had any power to fii upon a different rate of compensation than that regulated by chapter 320 of the Laws of 1888. It is true that the act was repealed by chapter 218 of the Laws of 1890, but that repeal in no way affects the rights of laborers employed by the state, or any officer thereof, during the period for which chapter 380 of the Laws of 1889 i*emained in force. The appointment or employment in this case by the sxxperintendent of pxxblic works was in the proper exercise of the poxver conferred" upon him of operating this lift bridge, which, by the express provisions of chapter 320 of the Laws of 1888, was to be operated xxnder the direction of the sxxperintendent of pxxblic works. The appointment or employment of the plaintiff came cleaidy within the duties imposed upon the sxxperintendent of public works under this act, and the town or the town board had no power, authority, or volition in the selection of such appointee. Nor does it appear from that act that the town board had any power or authority to fix the compensation of such appointee or employee.- The only power or authority conferred upon the town, or duty imposed upon it, was to pay the expense of operating such bridge. This contract went into effect after the enactment of chapter 380 of the Laws of 1889, and was subject to the provisions of that act. All the labor for which this action is brought was performed before its repeal, and must, we think, be compensated for under its provisions. If the plaintiff rendered the services for which this action is brought by the day, his compensation would be $2 for every eight hours’ service performed by him, under section 1 of chapter 385 of the Laws of 1870, making eight hours a day’s work; or, if rendered by the hour, he would be entitled to 25 cents for each hour actually employed. And there seeme to be no controversy in the evidence as to the length of time the plaintiff served under his employment. We think that, upon authority, the questions presented on this case have been fully settled.

In the case of People v. Board of Police, 12 Hun, 653, the question was whether the board of police commissioners could fix the salary of a police surgeon by resolution at a less rate than that fixed for such salary by statute. Even where the. police surgeon had accepted the position, and had drawn his salary at the rate fixed by the resolution for two years, at the end of which period he claimed the salary fixed by law, and demanded compensation at that rate, he was held to be entitled thereto. In that case the court held that the salary fixed by law was his rate of compensation, and Miller, J., in delivering the opinion of the court of appeals, uses this language:

“As the statute gave the salary, I think fixing the amount at a less rate by resolution could not make it less than the statute declared. There is no principle upon which an individual appointed or elected to an official position can be compelled to take less than the salary fixed by law. The acceptance and discharge of the duties of the office after appointment is not a waiver of the statutory provisions fixing the salary therefor, and does not establish a binding contract to perform the duties of the offiec for the sum named. The law does not recognize the principle that a board of officers can reduce the amount fixed by law for salaried officers, and procure officials to act, at a less sum than the statute provides, or that such officials can make a binding contract to that effect. The doctrine of waiver has no application to such a case, and cannot be invoked in aid of the respondent.” 75 N. Y. 42.

The correctness of the rule laid down in the case cited does not seem to have been questioned, and is manifestly sound upon principle.

We have been referred by the learned counsel for the respondent to Larkin v. Village of Brockport, 81 Hun, 364; 63 St. Rep. 140, and the same case as reported in 87 Hun, 573; 68 St. Rep. 664. ¡From an examination of that case, we are clearly of the opinion that it has no direct application to the case at bar. That case, in some of its aspects, was similar to this, in that it was for services of a bridge tender of a bridge across the Erie Canal, which had been constructed by the state, the compensation for tending which was charged upon the village of Brockport by the act under which it was constructed. The amount of compensation was fixed by a resolution of the village trustees on the 5th of June, 1888, and the services were rendered, most of them, under the express contract between the plaintiff and the village trustees to perform the services gt the rate fixed by the resolution. "That contract was in force at the time of the passage of chapter 380 of the Laws of 1889, and it was held, in effect, that the passage of that act did not affect existing contracts. ¡No such question arises in this case.

In Clark v. State, 142 N. Y. 101; 58 St. Rep. 444, it was held that the legislature has power to pass general laws regulating the compensation of laborers employed by the state, or by any officer under its authority, where tíie act disturbs no vested right; and that chapter 380 of the Laws of 1889, which took effect in June of that year, regulating the wages of day laborers employed by the state, or any officer thereof, was constitutional; and that the compensation of a laborer, if so fixed by statute, cannot be reduced by a state officer under whom the laborers are employed, and the fact that the laborer takes for a time a reduced compensation does not estop him from subsequently claiming the residue.

It will be admitted that the compensation in this case was not fixed by the state officer; but it can hardly be successfully maintained that the limitation fixed by that act did not apply to all officers or individuals appointed by a state officer. And, as we have seen that the operation of this bridge was a part of the duty of the superintendedt of public works, the appointment of the la-borers to operate the same was necessarily a duty imposed upon him, and was, in this instance, performed by him, and the employes were therefore employes of a state officer, within the wording of the provision of chapter 380 of the Laws of 1889. That being so, the town board had no power or authority to fix the compensation of such employes at a price less than that specified in that chapter, and it must, we think, be held that the compensation of these bridge tenders comes clearly within the provisions of that law. It is no part of the duty of the court to determine whether that provision of law was wise or unwise. It is enough to know that it was an act of tbe legislature, and that, in enacting it, the legislatm'e acted strictly within its constitutional power.

We think, therefore, that the learned trial judge erred in refusing to bold, as requested, that the plaintiff, as matter of law, was entitled to the statutory compensation.

The payment of the wages of this plaintiff at the rate fixed by statute was charged as a duty upon the town of Waterford, and that duty, when the town fails in its performance, may, we think, he enforced by action.

In People v. Mayor, etc., of City of New York, 25 Wend. 080, it was held that the legislature had power to impose upon the town, in its corporate character, the obligation to pay for the services rendered within its territory, and directly for the benefit of its inhabitants, and the court used in that case this language:

“Here is a legal duty enjoined by competent authority, which the corporation are hound to discharge. It is as binding upon them as if entered into under their corporate seal. Full consideration has been rendered in the services of the officer for the liability thus imposed. An action on the case, or assumpsit, will lie for a neglect of corporate duty.”

The same effect is Canniff v. Mayor, etc., 4 E. D. Smith, 437; Federgreen v. Town of Fallshurgh, 25 Hun, 153.

On the whole case, we think the plaintiff was entitled to recover, and that the judgment must be reversed, and a new trial ordered in the county court; costs to abide the event.

All concur.


source: Caselaw Access Project

author: BISCHOFF, J.

license: Public Domain

text:
    Frederick A. Boyden, Resp’t, v. Austin P. Baldwin et al., App’lts.

      (New York Common Pleas, General Term,

      Filed December 23, 1895.)

    1. Contract—Validity—Restraint of trade.
    Contract for the payment of commissions on all sales made hy defendants to customers introduced by plaintiff, though not limited as to time, is not void as being in restraint of trade.
    2. Appeal—Harmless error.
    The exclusion of testimony that a person who had knowledge of the facts is unfriendly to defendants and will be biased if called as a witness in their behalf, is not prejudicial to them from the fact that an unfavorable inference might be drawn from their failure to produce the witness, where the plaintiff could have subpoenaed him as well as the defendants.
    Appeal from a judgment of the city court, affirming a judgment in favor of plaintiff.
    Charles Steele, for app’lts;
    Samuel G. Adams, for resp’t.
   BISCHOFF, J.

The plaintiff sued for and recovered certain commissions under a contract providing for compensation at a stated percentage upon all sales made by the defendants to customers originally introduced by such plaintiff, a broker. That this contract was made, and that the Commissions thereunder were earned, is matter which the record supports; but it is contended that there was a failure of proof, in that the continuing influence of the broker upon these customers had not been shown. At the outset it is to be noted that any such requirement was omitted from the contract; but it is urged that an agreement without an implied condition of this nature should be condemned, and held void as in restraint of trade. We fail to find force in the argument. The general business of the defendants was in no wise restrained by this agreement. Were the payment of the broker’s commissions upon the sales in question to result in an unprofitable ' transaction, the trade might well, indeed, have been diverted to other customers of that firm, but it was certainly not to be restricted to those introduced by the plaintiff. The defendants had their remedy if it was not found expedient to make sales upon which this plaintiff might claim commissions. The contract was actually made in the furtherance of trade, and if thereby, the defendants’ profits in certain instances suffered a decrease, there was in no aspect a general restriction such as is alone now frowned upon, in the interests of public policy. 2 Pars. Oont. (7th Ed.) p. 887 et seq. Certain authorities are relied upon by the appellants in support of a contrary view, but they are in no case found to be controlling upon this court, nor are they persuasive. Further, a recovery under a similar contract was lately upheld, by this general term, in Everitt v. Publishing Co., 35 N. Y. Supp. 1097.

It is next claimed that the court below erred in denying the defendants’ motion for a submission to the jury of the question whether or not this contract was actually made; but both sides had so moved that the questions at issue were left for the determination of the court, and while defendants’ counsel, after denial of his motion for the direction of a verdict, moved for the submission of this question, the request was coupled with the further proposition that the jury determine as to the plaintiff’s continuing influence over the particular customers to whom sales were made, and onp exception was taken to the denial of the motion. As we-have said, the last question was not in the case, and the general request, as framed, was properly denied. .

The remaining point in the case deals with the ruling of the trial court excluding evidence whereby the defendants sought to show that one Seymour, an ex-member of their firm, was unfriendly to them, and would therefore be biased if called as a witness in their behalf. It appeared that Seymour had knowledge as to the facts touching the making of the contract in suit, but it was equally clear that the plaintiff could have subpoenaed him as well as the defendants, and hence any inference which might have been drawn from the parties’ failure to produce the witness was necessarily as unfavorable to one side as to the other. While the defendants’ evidence, at best, would have supported the probability that the testimony of such witness would have been favorable to the plaintiff, the latter’s failure to call for that testimony in his own behalf was quite as strong in refutation of the fact. It is impossible to see how this ruling worked any prejudice to the appellants, and we would not be justified in disturbing the result reached below upon this ground.

The judgment should be affirmed, with costs.

All concur.


author: DALY, C. J.

text:
    Matthew Smith, Resp’t, v. Andrew O’Donnell et al., App’lts.

      (New York Common Pleas, General Term,

      Filed December 23, 1895.)

    1. Pleading—Variance.
    Where the parties accept'and try an action on issues.not made by the pleadings, without objection, such failure to object will be deemed an acceptance of the new issue.
    <2. Contract—Breach.
    A builder is justified in suspending work on a building where the owner, in violation of the agreement, refuses to have the contract under which the. work has been commenced reduced to writing.
    3. Tenants in common—Married woman—Contract.
    A wife, who is a tenant in common with her husband in lands,- is not personally bound by his contract for the erection of a building .thereon, though her knowledge and consent to the doing of the work subjects her interest in the premises to the builder’s lien.
    Appeal from a judgment rendered in favor of plaintiff.
    Frederick E. Anderson, for app’lts;
    Jos. A. Burr, for resp’t.
   DALY, C. J.

The complaint alleged an oral contract between the plaintiff and defendant Andrew O’Donnell, by which the plaintiff was to erect a building for him, and furnish the necessary material and labor therefor, for the sum of $33,000, to be paid as the work progressed; that plaintiff furnished labor and materials thereunder of the value of $2>882.87, and that said defendant neglected and refused to perform the agreement on his part, in that he prevented and stopped the plaintiff from continuing and completing, and refused to allow him to complete, and that plaintiff has duly performed said agreement on his part, and is ready and willing to perform; and that the aforesaid sum of $2,882.87 remains unpaid, and is due and owing,-—together with the customary allegations as to filing, etc., of a mechanic’s lien. The answer admitted the agreement to erect the buildings, but alleged that the payment was to be $32,000, for which the defendant was to give his notes; denied the allegations of work done, and the value thereof; and alleged an abandonment by plaintiff of the contract before any payment or note was due. The referee found that a verbal contract had been entered into between the parties for the erection of the building at an agreed price, payable in installments, the times and amounts of which were to be settled between the parties, and when this was'done that the entire contract was to be reduced to writing and’ signed; that before such payments were agreed upon the plaintiff, at defendant’s request began the performance of the work of erecting the building; that thereafter the parties agreed verbally as to the amounts and times of payment of the installments, but defendant, though repeatedly requested by plaintiff, refused to reduce the contract to writing; that plaintiff suspended work upon the building, but ' offered to proceed upon the execution of the writing; that defendant refused and requested plaintiff to stop the erection of the building, and render his bill for the value of the labor and materials furnished; that plaintiff had then performed labor and furnished materials of the value of $2,339.54; and that he presented a bill therefor to defendant, as directed, but payment was refused. Judgment of foreclosure and sale, and for a personal judgment against both defendants, was rendered.

The evidence fully sustains the finding of the referee, and the allegation of the complaint that the defendant stopped further work upon the building, and so prevented the plaintiff from continuing and completing his contract; for, after the express order of the defendant to stop work upon his premises, the plaintiff could not lawfully go thereon to prosecute jt. The finding, therefore, is according to the allegations of the complaint. But there is a further finding that plaintiff suspended work before he was directed to do so, and defendant insists that this supports his defense of abandonment, and that a new cause of action was introduced by the evidence of a justification for such suspension, in the failure of the defendant to execute a written contract, no such agreement and breach being alleged in the complaint. It is clear, however, from the case, that the parties to the action practically disregarded the pleadings, and litigated the new issue raised by the evidence, as to the stipulation for a written contract, and the breach of such stipulation. Ho objection was offered to the evidence introduced by plaintiff on these points at the outset of the case, and the litigation upon the issue was continued until the defendant unreservedly admitted the facts both as to the agreement for a writing, and his refusal to make it. The findings of the referee were therefore upon issues accepted by the parties, and tried before him. There was not only no objection to the evidence, but no motion based upon a variance between the complaint and the proofs, so that plaintiff had no opportunity to ask for an amendment of the complaint. It is to be observed that evidence of an agreement for a written contract was not necessarily receivable, under the pleadings, and therefore defendant’s failure to object to it must be deemed an acceptance of the new issue.

As to the sufficiency of the justification for plaintiff’s suspending the work, it was the undoubted right of the parties to stipulate for the preparation and execution of written evidence of-their agreement as to the times and amounts of the payments to be made as the work progressed; and a refusal to carry out that stipulation was a breach of a material part of the contract, evidenced bad faith on defendant’s part, and afforded reasonable ground for apprehension that payments might not be made as earned, and justified plaintiff’s suspending work until the contract was observed by defendant. Ordinarily, where there is a stipulation for a writing to be prepared after the terms of the agreement are fixed and settled, there is no contract until the writing is made; but in the present case the contract was complete, except as to the times and amounts of payments, and performance was commenced on plaintiff’s part, by direction of defendant, upon the faith of the stipulation to settle the amounts and times of payment by a writing which should put them beyond question. The agreement for the writing became, therefore, one of the terms of the oral agreement, breach of which justified the plaintiff in stopping. Pratt v. Railroad Co., 21 N. Y. 305; 3 Am. & Eng. Enc. Law, 854. Plaintiff was not bound to go on and earn the first payment under the oral agreement, which defendant had, by his own'default, left himself at liberty to dispute. It is contended that the plaintiff was bound to tender a written contract to the defendant for his signature, in order to put him in default. But the defendant’s refusal to make a writing rendered tender unnecessary, and there was evidence that defendant was to prepare the contract.

The claim of the plaintiff is for the value of the work 'done at the time of the suspension, and of the stoppage of the work by defendant, not for any loss of profits. To this he was entitled, and the referee has found such value, upon conflicting evidence. Objections are made to many items of the plaintiff’s original claim, which, however, were disallowed by the referee, and the finding of the sum is supported by satisfactory evidence.

The exceptions to which attention is called by appellants’ brief do not show error. Particular stress is laid upon the ruling sustaining the objection to the question put-to the plaintiff, on cross-examination, as to whether any of the work and materials for which he claims was furnished to him upon credit other than his own. It was clearly immaterial on what other credit he used to get his labor and material. The inquiry was not whether they were obtained exclusively on other credit.

At- the close of the plaintiff’s case the parties entered into a stipulation as to the exact amount of excavation, stonework, and concrete which were done upon the premises. Subsequently defendant asked to be relieved from the stipulation of “his former attorney,” as “unwarranted, indiscreet, and improper,” and upon the ground of obvious mistake. The motion was denied, and an exception taken. The decision cannot be questioned, for no evidence was offered showing that the stipulation was entered into unadvisedly.

The only valid objection to the decision of the referee is the award of a personal judgment against the defendant Mrs. O’Donnell. The complaint alleged a contract with her husband only, and such is the finding of the referee. Her knowledge and consent to the doing of the work subjected her interest in the prem-. ises, she being a tenant in common with her husband, to the plaintiff’s lien, but did not authorize a personal judgment, as' she was in no event personally liable upon the contract made by her' husband. The judgment must therefore be modified, as to her, by providing in the fourth paragraph that the defendant Andrew O’Donnell only became, and now is, indebted to the plaintiff, and, in the fifth paragraph, that'the plaintiff is entitled to recover from the defendant Andrew O’Donnell only, and, in the seventh paragraph, that the defendant Andrew O’Donnell only pay any deficiency that may be found due, and as so modified will be affirmed, with costs against the defendant Andrew O’Donnell, but without costs against the defendant Eliza O’Donnell.

All concur.


author: BOOKSTAVER, J.

text:
    Joshua W. Jones, Resp’t, v. Archibald Henry, App’lt.

      (New York Common Pleas, General Term,

      Filed December 23, 1895)

    1. Brokers—Commissions."
    A broker, employed to purchase certain property at a fixed price, does not forfeit the commissions which the purchaser agrees to pay him because he secures another commission from the vendor after the latter has accepted the terms offered, in case the interests of the vendee are not affected by the broker’s accepting a commission from the vendor.
    2. Same.
    If, through the instrumentality of the broker, the parties meet and negotiations are thus opened between them which, continuing without withdrawal of either party therefrom, culminates in a sale, though for a sum less than that originally demanded, and upon terms deviating from those first fixed by the principal, the broker is entitled to his commissions.
    Appeal from a judgment rendered in favor of plaintiff.
    Edwin G. Davis, for app’lt;
    George A. C. Barnett, for resp’t.
   BOOKSTAVER, J.

The facts are undisputed. The plaintiff, a real-estate broker, called upon the defendant to Ascertain whether he would buy a house in Fifteenth street. After some negotiation as to the commission to be paid, the defendant agreed, to pay him $100, “to buy 150 West Fifteenth street for $20,000 free and clear.” Plaintiff submitted this offer to the vendor, and it was accepted. He told the vendor that he was to receive $100 commission from the vendee, and that, inasmuch as the regular commission was one per cent., he felt that he ought to receive more than that. The vendor thereupon agreed to pay Trim $100, and subsequently did so. A contract was drawn up and signed in the terms agreed upon, but before the title passed a new contract was entered into, without the knowledge of the plaintiff, whereby the vendee agreed to take the property subject to a $12,000 mortgage.

It thus appears that the plaintiff procured a contract from the owner of the house to sell it to the defendant upon the terms that the plaintiff fixed, and was willing to. pay for it. This entitled him to his commissions. The fact that the seller afterwards found himself unable to complete the sale according to the terms, because a mortgage then upon the premises was not yet due, cannot deprive the plaintiff of his right to-the agreed commissions; and the fact that the defendant subsequently agreed to a modification of the contract without the intervention of the broker in no way affects his right of action. Besides, it is not essential, to entitle a broker to his commissions, that he should have procured a purchaser upon the precise terms named by the principal at the time of the employment. If, through the instrumentality of the broker, the parties meet, and the negotiations are thus opened between them which, continuing without withdrawal, by either party therefrom, culminate in a sale, though for a sum less than that originally demanded, and upon terms deviating from those first fixed by the principal, the broker is entitled to his commissions. The principal possesses an undoubted right to adhere to the price and terms originally fixed, but if he deviates therefrom, and consents to a modification thereof, and thereupon concludes the sale with the person procured by the broker, he ratifies the latter’s departure from his instructions, and is liable for the commission. Levy v. Coogan, 30 St. Rep. 553; Gold v. Serrell, 55 St. Rep. 696.

It is further claimed that the broker cannot recover a commission from both sides. This is ordinarily true, except where the broker acts as a mere middleman, or such double employment is known to both parties, or where he is not vested with discretion respecting the price and terms. Haviland v. Price, 56 St. Rep. 402; Bonwell v..Auld, 9 Misc. Rep. 65; 59 St. Rep. 679. In this case the broker did not ask a commission from the vendor until after the offer he submitted had been accepted. He had no discretion as to the price. The terms were fixed by the vendee. We think, therefore, that the interests of the vendee were not affected by plaintiff’s accepting a commission from the vendor, and that under the circumstances he is entitled to a recovery.

Judgment affirmed, with costs.


text:
    Peter Finn et al., Resp’ts, v. Jane Duffy, Impleaded, etc., App’lt.

      (New York Common Pleas, General Term,

      Filed December 27, 1895.)

    Evidence—Sufficiency.
    The evidence, in an action to recover a certain amount alleged to have been paid to defendant by plaintiff in 1883 and deposited in' defendant’s name for plaintiffs benefit, was held insufficient, in view of the lapse of time, to support a judgment in favor of plaintiff.
    Appeal from a judgment entered in favor of plaintiff.
    Thomas F. Murtha, for app’lt;
    James Nixon, for resp’t.
   BISCHOFF, J.

The plaintiffs instituted this suit to obtain a judgment declaring a certain fund of $1,000, deposited in the year 1883 by the defendant with the Greenwich Savings Bank, to be their property, alleging that this fund had been paid, at the time of the deposit, to the defendant by the plaintiff Margaret Finn, with the request that it be deposited in the defendant’s name for such plaintiff’s benefit, and withdrawn from the bank and paid over to her when required. Judgment was rendered in favor of the plaintiffs, and the facts are now brought before us for review.

In view of the lapse of time between the deposit and the plaintiffs’ demand, the fact that the defendant was the actual depositor, and so presumptively the owner, and having in mind the gravity of the situation as bearing upon the security of property, we must expect to be confronted with very persuasive evidence of the plaintiff’s right to a recovery in an action of this nature in order that such recovery may be upheld. We have, in this case, the testimony of the plaintiff Margaret Finn alone in support of the fact that the deposit had been made by the defendant under the circumstances as claimed; but can we be satisfied with this, in view of the character of the evidence? The witness testified that she had lived during the past eleven years, in the same street, but did not know its name. She could only state that it was somewhere uptown. Asked as to the date of the transaction in suit, she could not give it, but stated that the fund of $1,000 was deposited by 'the defendant upon the day when a deposit of $480 was made by her (plaintiff) in the same bank, but to an individual account. That no deposit was made by Jane Duffy upon that day appears from the record of the bank, but it does appear that such defendant deposited $1,000 nine months before the witness made her deposit of $480. The fact that Margaret Finn had the sum of $1,000 available for deposit, at the date of the deposit by the defendant, was also in some doubt. Her husband and co-plaintiff testified that she had a sum of money at that time, but did not specify or approximate the amount. He saw her put it in her trunk, and told her to save it. Ho explanation was made as to the derivation of the $480 which she actually deposited, and there is some significence to be attached to this. On the other hand, the testimony of the defendant, in direct contradiction of the plaintiff Margaret, is intelligent, explicit and unshaken, and the source of-the money deposited by her is explained by her employer, Mrs. O’Brien, for whom she worked as a domestic servant for over eleven years. Furthermore, - the defendant is corroborated by disinterested testimony as to circumstances occurring' during the interval since the deposit was made. The evidence of the witness Spellman, adduced to show an admission by the defendant that this fund belonged to the plaintiffs, failed of its object, since the witness , if believed in the face of direct contradiction, testified merely to statements of her own, and an answer by the defendant which could well be viewed as consistent with some contemplated tender of charity to her sister the plaintiff.

Importance has been attached to the fact that the bank book in the defendant’s name was actually produced by Margaret Finn at the bank in 1892, this being relied upon in support of the plaintiff’s story, as denied by the defendant, that at the time of the deposit the defendant had handed the book to her. In explanation the defendant testified 'that the book was missed by her some months after a robbery of her apartments, in 18.90, had taken place, and that she had notified the bank of the fact. As to whether or not this robbery had any bearing upon the plaintiff’s possession nothing was shown, and we assume that it had not; but this mere fact of the plaintiff’s possession of the book in 1892, while it may not be expressly accounted for otherwise than by her • statement, does not control the case, in view of the uncontradicted testimony of Terence Duffy, the brother of Margaret and Jane, a witness apparently uninterested in the result, that in 1888 Margaret had shown him two bank books, each in her own name, showing an aggregate balance of $1,500, and had stated that those were all the books which sjie had at that time. We think that the justice of the case at least calls for another trial.

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

All concur


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    Henry Hahnenfeld, App’lt, v. Bernard W. Wolff, Resp’t.

      (New York Common Pleas, General Term,

      Filed December 23, 1895.)

    1. Principal and agent—Authority.
    An agent to solicit orders merely or to sell goods, who is in possession of the goods, has no implied or apparent authority to receive payment.
    2. Same.
    In such case, proof of the agent’s authority to collect, either by-principal’s express direction or by inference from a course of dealing, is essential to third party’s defense of payment.
    Appeal from a judgment in favor of defendant, rendered by the justice without a jury.
    James R. Angel, for app’lt;
    Wm. C. Coxe, for resp’t.
   BISCHOFF, J.

It was conceded by the defendant that the sale was made to him through the instrumentality of one Grimshaw, and it conclusively appeared from the invoice in defendant’s possession, and produced by him, upon which the alleged payments to Grimshaw were receipted for by the latter, that the defendant, before such payments, knew the plaintiff, and not Grimshaw, to be his vendor. Grimshaw was employed by the plaintiff to solicit orders from customers, and did not appear to have been intrusted with the possession of the whole or any part of the merchandise sold. Under these circumstances the payments to Grimshaw were made by the defendant at his peril of the former’s want of authority. It is well settled that an agent to solicit orders merely, or to sell goods, who has not the possession of the goods, has no implied or apparent authority to receive payment. Higgins v. Moore, 34 N. Y. 417; McKindly v. Dunham (Wis.), 13 N. W. 485; Butler v. Dorman, 30 Am. Rep. 795; Meyer v. Stone, 55 Am. Rep. 577; Kane v. Barstow (Kan. Sup.), 22 Pac. 588; Kohn v. Washer, 53 Am. Rep. 745. Proof of Grrimshaw’s authority to collect, either by plaintiff’s express direction, or by inference from a sourse of dealing, was, therefore, essential to the defendant’s success upon the trial (Higgins v. Moore, supra; Lamb v. Hirschberg, 1 Misc. Rep. 108; 48 St. Rep. 658)’ and the absence of such proof renders the judgment appealed from erroneous.

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


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    Jane McKenzie et al., App’lts, v. Loftus D. Hatton, Resp’t.

      (New York Common, Pleas, General Term,

      Filed December 23, 1895.)

    Appeal—Conflicting evidence.
    Where the evidence is conflicting and no material errors appear, the verdict will not be disturbed on appeal.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.
    D. J. Newland and Edward W. S. Johnston, for appl’ts;
    Foley & Powell, for resp’t.
   BISCHOFF, J.

Plaintiffs, the personal representatives and trustees under the last will and testament of one Alexander McKenzie, the owner and lessor of certain premises in the city of Hew York, sued his tenant for damages to such premises, sustained, as alleged, by reason of the latter’s interference with the necessary operations of certain parties when engaged in shoring up the wall of the building for its lateral support, the abutting lot being in process of' excavation. Laws 1882, c. 410, § 474, amended Laws 1885, c. 456. And see Mackenzie v. Hatton, 6 Misc. Rep. 153; id., 9 id. 16, 19; 58 St. Rep. 695. That the plaintiffs had a cause of action, assuming the defendant’s failure to give the necessary permission to the excavating parties to enter upon the premises for the purposes noted, or his obstruction of their work, was held throughout the trial, and the question forms no part of our inquiry upon this appeal. The learned trial judge left it to the jury to determine whether or not the defendant had failed in his duty as thus outlined, and their finding was that this -duty had been performed. The question of fact practically came to the inquiry whether the defendant’s refusal to allow the removal of a staircase on the premises, which refusal was admitted, interfered with the necessary work of shoring up, and this resulted in injury to the wall. There is no material dispute that‘the shorers were granted access to the premises, and, while there was some evidence that the defendant had at one time expressed a refusal to allow further progress of the work, there was ample testimony that such was not the fact, and this testimony was credited by the jury._

With'regard to the defendant’s position that the staircase should not be removed, we must hold that the jury were justified in finding that this formed no obstruction to the work of the shorers, resulting in the damages to the premises. From the testimony of the defendant and of his engineer, it appears that there was sufficient space under the staircase for the insertion of “needles,” as the horizontal supporting beams were termed, and that an aperture sufficient for such insertion had been actually made in that space by the shorers, but was not used. The plaintiff’s witness Larkin testified that a “needle” had been inserted at this point, but was not “wedged up,” although without this' process the “needle” would be worthless, and such wedging up was not obstructed by the defendant. It is to be noted that the evidence adduced by the plaintiffs as to the effect of the presence of 'the staircase upon the work was in nature merely hearsay, while that of the defendant was direct and positive. Certainly, we cannot say that the plaintiffs have sustained their'burden of proof by a preponderance of the evidence and reverse this judgment upon the facts.

A point is made that the charge to the jury was inconsistent, but we confess surprise that the argument should be advanced. The learned judge charged that it was for the jury to say whether the defendant’s refusal to permit removal of the staircase interfered with the proper protection of the wall, and this submission was not questioned by the appellants. But our attention is called to the fact that, before proceeding to charge the jury in his own words, the judge charged, at the request of the appellants, according to the printed case, as follows:

“That it was necessary for those shorers to remove the staircase in defendant’s cellar to properly shore up, protect, and preserve the wall of plaintiff’s building, the refusal of the defendant to permit such removal, which refusal he admits having made, renders defendant liable to the plaintiffs for whatever damage the jury shall find accrued to the plaintiff’s building therefrom.”

It may be that the stenographer at the trial did not fully note the wording of this request, or that there was an error in transcription; but from the probability of the matter, the rulings upon the trial, and the obviously incomplete construction of the sentence as now relied upon by the party framing it, we must hold it to be inconceivable that the court, counsel, and jury understood the request in any way other than as a conditional statement. If the .appellants’ counsel had believed at the trial that the court had intentionally directed a verdict in his clients’ favor npon the main issue, his natural course would have been to object to the submission of the facts upon that issue to the jury, but no trace of an objection as to this is found. Whatever inconsistency may be discovered in this instance, it was not that of the trial judge, and we must determine this appeal with regard to the appellants’ attitude at the trial.

Certain exceptions were taken to rulings upon evidence, but upon examination they are not found to present, error. That first relied upon deals merely with the court’s proper exercise of discretion as to the order of proof. The second objection calls attention to the admissibility of the pleadings in another action, to the admission of which.no exception was taken. ¡Next, it is claimed that expert testimony touching the cause of the damage to the walls was erroneously admitted, but this evidence had direct bearing upon the issues raised by the pleadings.

Ho other points are presented, and we fail to find reason for disturbing the judgment and order appealed from. They are, therefore, affirmed with costs. ¡

All concur.


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    Catharine M. Stott, Resp’t, v. Addison J. Churchill et al., App’lts.

      (New York Common Pleas, General Term,

      Filed December 23, 1895.)

    1. Inn keepers—Duty.
    An inn keeper owes it to his guest to exercise at least ordinary care and prudence in the care and management of an elevator and inspection thereof, and cannot delegate such duty to another so as to relieve himself from liability for its nonperformance.
    2. Same—Negligence.
    Where a person, while a guest in a hotel, is injured by the breaking of the machinery of a passenger elevator at a place where it has become weakened by corrosion, the inn keeper is not relieved from liability by showing a compliance with the ordinary mode of inspection, but the question of negligence is one of fact, under all the evidence.
    3. Same—Similar accident.
    The fact that a similar accident has never before occurred, cannot avail in disproof of negligence in a case where the occurrence can be reasonably anticipated, and is anticipated and guarded against by some persons.
    Appeal from a judgment entered on a verdict in favor of plaintiff.
    Thomas S. Moore and Herbert C. Smyth, for app’lts;
    John A. Dutton, for resp’t.
   BOOKSTAVER, J.

The plaintiff secured a judgment for $6,475.65, damages and costs, for injuries received by her, while a paying guest in the defendants’ hotel, by reason of the fall of a passenger elevator in which she was riding, at the Hotel St. George, New York City, on April 6, 1893. The defendants were the lessees of the hotel, and had been for about a year prior to the accident. The elevator was made and was put in the building by Otis Bros, about 1879, fourteen years before the accident. It was operated by hydraulic power. A perpendicular cylinder was filled with water, which moved a piston, to which were attached two rods, called “piston rods,” which, as they descended, drew upward the cables, which ran over pulleys, and were attached to the elevator car. These rods were an inch and a sixteenth in diameter. The lower ends, for a distance of about seven feet, were always immersed in water, as the pistons did not rise quite to the top of the cylinder. These portions were wasted by corrosion, as was discovered after the accident, until a core of only about one-fourth of an inch in diameter' of sound metal remained, at the points where the breaks occurred which caused the accident.

The main contention for reversal is that no negligence on the part of the appellants was shown, and that the case was therefore improperly allowed to go to the jury. It was proven that, before ■the defendants opened the hotel, they engaged men experienced in the business to examine the elevators, and make necessary repairs, imposing no limitations as to what they were to do in making the repairs. The men so employed proceeded to make such repairs as they deemed sufficient, but did not remove the cylinder heads to examine the concealed portion of the rods, thinking that, if any corrosion was taldng place within, some evidence of it would be seen upon the exposed portions, which were alternately within and without the water in the cylinder. It was also testified by various witnesses, who had formerly been engaged as inspectors of elevators, that it was not their custom to remove cylinder heads where no signs of rusting were discernable in the exposed portions of the piston rods. On the other hand, one McNamara, who had for thirteen years had charge of the six hydraulic elevators in one of the large office buildings of New York city, testified that he each year examined the piston rods inside the cylinder in his elevators, and that from time to time rods had to be removed because they were corroded. And one Berg, an inspector for Otis Bros'., testified that where the elevator was old, and he was directed to make a thorough examination, he generally took off the cylinder head, or recommended that it be taken off.

Without going at greater length into the vidence, we deem it sufficient to say that a proper case was presented for the determination by the jury whether the defendants had exercised reasonable care in the inspection of the elevator.

The respondent claims that there was negligence, not only in the failure to properly inspect the elevator, but also in the failure to equip it with the most approved safety devices to check its fall in case of accident to any of the machinery. Upon this point, without attempting to pass upon the merits of rival patents, it is only necessary to say that the device employed upon this elevator was only designed, so its inventor testified, to operate when the cables or chains gave way, not when the piston rods broke. This, of course, made it all the more necessary that those rods should be thoroughly inspected..

There was no error in refusing to charge:

“If the jury find that the elevator and its machinery were built by reputable manufacturers, and that the defendants had it regularly inspected by experts in that business, and promptly executed the repairs and changes suggested by them, they performed their duty, and are not liable for any injury caused 'by the breaking of the machinery.”

However correct an exposition of the law this might have been had the plaintiff been a servant seeking to recover from the master for the negligence of a competent fellow servant, it was inapplicable to the case on trial. Appellants owed it to respondent to exercise at least ordinary care and prudence in the care and management of the elevator and the inspection thereof. A personal duty cannot be delegated to another, so as to relieve the person bound to perform the duty from liability for its nonperformance. Shear. § E. ÜSTeg. p. 11, § 15. Besides, in this case the defect— i. e., the corrosion—was palpable to any one of common observation and intelligence had the rods been examined at the place where it existed, and it was properly left to the jury, under the circumstances, to determine the question of prudence and care.

The court was also requested to charge that “the defendants were not bound to have the machinery of the elevator inspected by an unusual or extraordinary mode of inspection,” to which the court added, “unless the necessity for such inspection was obvious to a person of ordinary prudence, in view of the circumstances existing before the accident, while the defendants were in possession of the elevator.” It is claimed that this qualification constituted error, because there was no evidence showing any obvious necessity for an unusual or extraordinary mode of inspection. In one sense of the words “unusual” and “extraordinary,” there was such evidence, we think, in the fact that this elevator had been unused for nearly a year, and was built fourteen years before the accident. The usual and ordinary mode of inspecting new elevators that had never been in disuse might well have been regarded by the jury as obviously inadequate.

The exception just considered, however, and several others, are due to the mistake the appellants’ counsel seems to have made, as shown in his thirteenth request, in confusing the expressions “ordinary care” and “ordinary mode of inspection.” To conduct a matter in the ordinary manner would not, under all circumstances, be the full measure of duty the law requires. Such a standard would in many cases be an altogether unsafe test. A defendant might exonerate himself of the charge of negligence by showing that he conducted his business in the same manner as others in the same line of business, however negligent, in fact, that manner might appear to be to a man of ordinary prudence. A little group of men in a limited class of business might, under such a theory of law, determine for themselves, absolutely, what measures of precaution they owed to the general public. Interested persons cannot be thus allowed to usurp the functions of a jury. The fact that a similar accident had never before occurred,, upon which the appellants so strongly rely, cannot avail in disproof of negligence in a case where the occurrence could be reasonably anticipated, and was anticipated and guarded against by some. In such cases the same kind of an accident may not have happened previously, to be sure, but such nonoccurrence may have been due to the superior precautions of others, and in spite of the neglect of such precautions by the one subsequently seeking to avail himself of the benefit of them.

The judgment should therefore be affirmed, with costs.

All concur.


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    Henry C. Hopkins, Resp’t, v. James F. A. Clark et al., App’lts.

      (New York Common Pleas, General Term,

      Filed December 16, 1895.)

    1. Principal and agent—Disavowal.
    Where a customer does or does not authorize his broker, in his discretion, to purchase stocks for his account, he is bound,' on receiving advice of the purchase of bonds, to give notice promptly to the broker "that he disavows his act.
    2. Witness—Credibility.
    Where the plaintiff and ’defendant, who are both men of fair character and stand alike unimpeaclied and are of equal credibility, are examined as witnesses and contradict each other directly upon a question of fact and their testimony is totally irreconcilable, the case will, in the absence of other testimony, stand evenly balanced and the complaint be dismissed.
    8. Appeal—New trial.
    On appeal from an order denying a motion for a new trial, made upon the ground that the verdict is contrary to the evidence, the order may be reversed if the verdict is against the weight of evidence.
    4. Same.
    Where such appeal is from an order óf the same court, the appellant need not show an exception to the denial of a motion for a nonsuit at the close of a case or for a direction of a verdict.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes. ■
    Cravath & Houston (Paul D. Cravath, of counsel), for app’lts;
    Cardozo & Nathan, for resp’t.
   DALY, C. J.

Whether the plaintiff did or did not authorize the defendant Campbell, in his discretion, to purchase stocks for his account, he was bound, on receiving advice of the purchase of the Heading bonds, to promptly give notice to the defendants, his brokers, that he disavowed their act. Unless he did so, he would be held to ratify it. Gold Min. Co. v. National Bank, 96 U. S. 640. Hesitation, to await the result of the market, would be enough to constitute ratification. Johnson v. Jones, 4 Barb. 369. He was bound to disavow in a reasonable time. Law v. Cross, 1 Black, 533-539; Hoyt v. Thompson, 19 N. Y. 218. It is undisputed that on February 18th, in Philadelphia, plaintiff received by mail from defendants, in Boston, the regular slip notifying him of the purchase. It was too late that day to communicate, but on Monday morning he had a conversation with Campbell, one of the defendants, by telephone. What that conversation was rests in the conflict of testimony of those, two witnesses, who were equally interested in the action.

Plaintiff’s testimony is:

“I asked Mr. Campbell what he had been doing—if he had been buying some Heading. He said, ‘Why?’ I said he had no authority. We had never talked Heading, or anything else, except Lamson Cash Carrier, which he told me would be guarded. I said: ‘I don’t want anything to do with this. I want nothing to do with Heading. I want no speculation. You have no authority to do that. What are you going to do?’ He said, ‘Buy some more for you, and hold it.’ I said: ‘I want nothing whatever to do with Heading. I -will have nothing to do with Heading, or any other speculation.’ That was the absolute sum of our conversation,-—-‘I will have nothing to do with it.’ ”

The defendants’ testimony as to the conversation over the telephone is:

“He discussed the situation or condition of the Heading Company, and the prospect, or the current rumors in Philadelphia, and his disturbance over the situation,-—his fear that the security might go still lower; and, finally, he said he should want to rely upon me to look after the thing for him. He did not repudiate the transaction in any way. Q. Did he say anything about repudiating the transaction? A. He did not.”

In this state of the testimony, it was merely oath against oath of two interested witnesses; and as the affirmative of proving disaffirmance rested on plaintiff, he failed to establish it. Griffiths v. Hardenberg, 41 N. Y. 471; Stevens v. Trask, 44 St. Rep. 649. Where the plaintiff and defendant, who were both men of fair character, and stand alike unimpeached, and are of equal credibility, are examined as witnesses, and contradict each other directly upon a question of fact, and their testimony is totally irreconcilable, in the absence of other testimony the case will stand. evenly balanced, and the complaint will be dismissed. Losee v. Morey, 57 Barb. 561. Where the plaintiff swears unqualifiedly to a warranty, and the defendant as unqualifiedly and explicitly swears there was none, and there is no evidence in the case corroborating the plaintiff, he fails to make out a case, and the defendant is entitled to judgment. Raines v. Totman, 64 How. Pr. 493. Where the burden of proof rests upon the plaintiff, he testifying to a state of facts constituting a cause of action against the defendant, and the defendant giving testimony which, if true, proves that an entirely different state of facts existed, showing the plaintiff has no cause of action, neither party being corroborated by circumstances, or by other witnesses, the plaintiff fails to establish his demand, and cannot recover. Syms v. Vyse, 2 St. Rep. 106. What corroboration of plaintiff’s testimony is to be found in the case to sustain this verdict? On the evening of the day of the telephone communication, he wrote to the defendant, as follows:

“Friend Campbell: You can, perhaps, imagine my state of mind this p. m. I arrived home (in Phila.) Friday night. Saturday morning, when I went in town, I found the air literally alive with rumors of the Reading 'fiasco.’ It was absolutely known here that they were in trouble, and probably more serious than they could pull out of. I did not rec. your letter until after banking hours Saturday, and you can imagine my surprise when I found you had bought Reading 3ds, when, as I say, it was known that the Drexels had thrown them over, and there seemed no probable way that they could escape bankruptcy. Rothing to borrow' on. Ro money, .debts that were known to be falling due, and they in the position of having antagonized their best friends. I got the telephone as soon as I could to you this morning, and although I told you of the receivership it was then too late for you to save anything. It seems to be the opinion here that the Le-high Valley pulled McLeod down, with debts falling due and no money to'pay, and that he has placed the Reading voluntarily in the hands of a receiver to protect the property, and that he will get help and pull out. Philadelphians have bagged lots of money, for they have all sold everything in Reading right and left, and in fact anything in Reading securities here have been considered the wildest kind of a speculation for the last six months. Could you expect me to buy into a lawsuit? You know my position,— absolutely no income, and my futurd income-dependent on the small sum I may have to put into some business. Please let me hear from you by return mail. I’ve got a fair amount of nerve, but I’ll allow I have sensations to-night which I hope you may never experience. I am, “Very truly yours, H. C. Hopkins.”

In this letter there is no word of repudiation. In referring to the telephonic communication of the morning, he. does not state that it was a disapproval of the purchase. The whole letter, on the contrary, is merely an argument against the prudence of buying Reading, and confirms the defendants’ version of the telephone conversation, in which, as they say, plaintiff discussed the situation and condition of the company, .the prospects, and the current rumors, and his disturbances over the situation, his fear that the security might go still lower. What need was there to ask defendants to let him hear from them by return mail, if the transaction had been already repudiated? On the 23d, three days afterwards, the plaintiff telegraphed and wrote to defendant that he positively declined to accept the purchases. If this had been already done on the 20th, it was needless to do so again on the 23d. If it had been done on the 20th, why was not that fact referred to in the letter of the 23d? On the other hand, that letter begins:

“I wired you this morning that I positively declined to accept purchase of Reading bonds.”

That letter is consistent only with defendants’ testimony that there was no previous repudiation. As the stock had declined steadily by the 23d, and the Reading road had passed into the hands of a receiver, this repudiation came too late. In the state of the market, disclosed in plaintiff’s own letter of the 20th, it was his duty at that time to disaffirm the purchase; and it will be seen that the correspondence between the parties does not corroborate the testimony of the plaintiff that it was then repudiated, but rather confirms that of the defendants that there was no repudiation until the 23d. There being no preponderance of evidence on plaintiff’s part, and the weight of evidence being rather that he did not disapprove the purchase, of which he received timely notice, he was not entitled to recover. Upon this state of facts, it is our duty to reverse the judgment and order a new trial.

On appeal from the order denying the motion for a new trial, made upon the ground that the verdict is contrary to the evidence, the order may be reversed if the verdict be against the weight of evidence. Code, § 999; Bever v. Clark, 8 Misc. Rep. 416; 59 St. Rep. 568. See, also, Clark v. Bank, 8 Daly, 481; Cheney v. Railroad Co., 16 Hun, 415; Wright v. Lecour, 9 Wkly. Dig. 6. On appeal from an order of our own court denying a motion for a new trial, the appellant need not show an exception to the denial of a motion for a nonsuit at the close of the case, or for a direction of a verdict. McCarthy v. Railroad Co., 10 Daly, 540. Though the evidence might have been sufficient to require submission to the jury, it is nevertheless the duty of the general term to grant a new trial if the verdict be against the apparent weight of evidence. Colt v. Railroad Co., 49 N. Y. 671. And under more recent decisions, it is the duty of the trial judge to nonsuit, or direct the verdict as the case may require, not only where there is no evidence upon an issue before the jury, but also where the weight of evidence is so decidedly preponderating in favor of one side, that a verdict contrary to it would be set aside. Linkauf v. Lombard, 137 N. Y. 417; 51 St. Rep. 63; Hemmens v. Nelson, 138 N. Y. 517, 529; 53 St. Rep. 94.

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

All concur.


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    James M. Sinclair et al., Resp’ts, v. Robert A. Hollister, Impleaded, etc., App’lt.

      (New York Common pleas, General Term,

      Filed December 16, 1895.)

    1. Partnership—Dissolution—Liability.
    A retiring partner is liable for subsequent engagements made by his former partner in the firm, name with those who had previous dealings with the firm, and who entered into the new transaction without notice of the change in the partnership. So held in case of a person who was a member of a firm when it ordered certain work and materials, but who retired before the order was complied with.
    2. Same—Notice to third persons.
    Evidence of dissolution of partnership is not admissible where a party, who seeks to benefit thereby, does not show a notice of dissolution to the adverse party.
    Appeal from a judgment- of the city court, affirming a judgment entered on a verdict by direction of the court in favor of plaintiffs.
    Reginald H. Arnold, for app’lt;
    Smith & Bowman, for resp’ts.
   DALY, C. J.

By the admission in his answer it was established that the appellant, Hollister, was a partner in the firm of William J. Merritt & Co., in the year 1877, when they gave, according to the plaintiffs’ evidence, the order for the work which formed the consideration of the notes sued upon. Payment of the notes is resisted on the ground that, although in the firm name, they were made by Merritt, one of the partners, after dissolution of the firm, and without authority of the appellant. It was not shown that the plaintiffs had notice of the dissolution at the time they received the notes. As dealers with the copartnership, they were entitled to notice, and, in the absence of it, the extension of a new credit to the firm by accepting notes for the firm debt entitled them to recover. While the general rule is that one partner cannot bind theother after dissolution, even by the renewal of the partnership note, an exception is made in favor of one having dealings with the firm, and taking the new note without actual notice of the dissolution. The holder of the renewed paper is a dealer with the firm. Bank v. Horton, 1 Hill, 572. “In case of the dissolution of a copartnership, actual notice of the disolution must be brought home to all persons with whom the firm has had dealings, to protect, as to such persons, one partner from the acts of another in the uses of the copartnership name after the dissolution. Where a note was made by the firm in the copartnership name, which was discounted by a bank for the accommodation of the payee, and was repeatedly renewed, it was held that the firm must be considered as having had dealings with the bank, within the meaning of the rule reqniring actual notice of the dissolution.” Vernon v. Manhattan Co., 22 Wend. 188. It was held in Morrison v. Perry, 11 Hun, 33, that a note given after the dissolution of th% firm by one partner, without the authority of the others, for a previous copartnership debt due to the holder, could not be enforced against such other persons, though the holder had no actual notice of the dissolution. The reasoning in that case is that no new debt is contracted by talcing a note for the old partnership obligation, as the existing indebtedness still remains good. The opinion takes no notice of Vernon v. Manhattan Co., supra, holding the contrary doctrine; and cites Bank v. Horton, supra, as authority for the principal proposition “that, after the dissolution of a partnership, neither of the partners can give notice or accept bills so as to bind the other partners, even when it is done for the purpose of providing for a debt due from the former firm;” while that case, as we have seen, excepts from the general rule cases where the new note is given to one having had dealings with the firm-without actual notice of dissolution. The reasoning in Morrison v. Perry is that the new note is not a new debt. But the taking of a new note is the giving of a new credit, and a new contract is made therefor. The other eases cited in Morrison v. Perry are cases where the creditor took the new security with knowledge of the dissolution of the firm, where the question of notice was not raised, or cases of new acknowledgment of former partnership debts. In the present case the plaintiffs, who were dealers with the appellant’s firm, had no notice of the dissolution at the time they received the notes in suit, and under the authority of Bank v. Horton and Vernon v. Manhattan Co., supra, are entitled to recover under the protection of the rule which makes a retiring partner liable for subsequent engagements made by his former partner in the firm name with those who had previous dealings with the firm, and who entered into the new transaction without notice of the change in the partnership. Austin v. Holland, 69 N. Y. 571.

The exceptions to rulings upon evidence remain to be considered. The defendant offered in evidence the agreement of dissolution, but, as it was ineffectual to discharge him unless actual notice of it to the plaintiffs .was shown, and as defendant did nqt offer to show notice the agreement was properly rejected. The defendant attempted to show that some of the work by plaintiffs was ordered after the dissolution of the firm, but, as the copartners would have been liable therefor unless plaintiffs had notice of dissolution, this evidence was properly rejected. It is now urged that the evidence should have been admitted, as it was intended to elicit proof that the materials which plaintiffs had testified were ordered before dissolution, were not, in fact, ordered or furnished until afterwards. The form of the question put to the witness gave no indication of the intention to bring out such evidence. Its plain scope was to show that some of the goods, not all, were ordered after the dissolution. It was as follows: “Q. How, turn to plaintiffs’ Exhibit D, which has been- offered in evidence in this case, being a bill dated May 29, 1888, to William J. Merritt & Co., from Sinclair & Son, and state if you can tell what materials in that bill were ordered in those houses after the dissolution of that firm of Merritt & Co.” The question assumed in fact that some of the materials were ordered before the dissolution. If so, and plaintiffs had no notice of the dissolution, defendants were liable for the materials ordered in the firm name afterwards. Rone of the questions objected to and ruled out indicated another purpose now claimed for them; i. e., to show that the notes were accepted by the plaintiffs from the defendants Merritt and Tilton in satisfaction of the claim against the old firm.

Exception was taken to the exclusion of a certain judgment-roll in this action in favor of the plaintiffs against two of the defendants, Merritt and Tilton only, for the amount sued on. It is claimed that this judgment was a bar to the action. The record was objected to on the ground that the judgment had not been pleaded as a defense; that application for leave to plead it had been denied, and the order therein affirmed, by the general .term of the city court and by this court on appeal; and, further, that the judgment had been vacated. The judgment in question was entered after the first trial of the case, upon the direction of the trial court of a verdict in favor of plaintiffs against the defendant Merritt, who signed the firm name to the notes, and the defendant Tilton, who did not defend the action, while the cause was dismissed as to the appellant, Hollister. The judgment of dismissal in favor of Hollister was reversed by the city court, and the judgment against the other two defendants was vacated. The appellant’s contention is that the entry of that judgment against two of the partners was fatal to a recovery against the other. The effect of the judgment in question, and of the order vacating it, and of the order denying the motion of appellant, Hollister, to set up as a defense to this action, was fully considered by this court on the appeal from the latter order. Sinclair v. Hollister, 41 St. Rep. 349. We held that the entry of judgment against two only of the joint contractors was a mere irregularity, the correction of which, by the court below, was not the subject of review by us; and we held that defendant’s motion for leave to set it up as a defense by supplemental answer was denied in the exercise of a discretion in the city court, which also was not the subject of review. The judgment was not permitted to be pleaded as a defense, and, not being pleaded, was not admissible as a bar or estoppel (Krekeler v. Ritter, 62 N. Y. 372), and was properly rejected. The evidence in the case was ample to sustain the plaintiffs’ claim that the work was all ordered at one time, and while appellant was a member of the firm, according to his own admission. The copartnership thus' admitted continued, as to all persons dealing with the firm on the faith of the copartnership, until notice of dissolution was shown; and so the complaint in its full scope was proved when the case was closed. The defendant expressly waived the right to go to the jury upon any question of fact, and the court was authorized to dispose of any such question in the case by directing a verdict. Ho other exception called for a reversal

Judgment and order affirmed, with costs.

All concur.


text:
    Henry Lhowe, by Guardian, etc., Resp’t, v. Third Avenue Railroad Company, App’lt.

      (New York Common Pleas, General Term,

      Filed December 17, 1895.)

    1. NbgIíIQEnce—Infant—Sui juris.
    In an action by an infant for injury from a street car, the fact that the plaintiff is a boy about six or seven years of age and that he went to school in the city of New York, is sufficient to authorize the submission to the jury of the question whether he is of sufficient age to he allowed alone in the street.
    8. Same—Contributory.
    Where the plaintiff’s testimony shows that, when he went on the railway track, the car was such a distance away that he could have safely crossed, had he not fallen, a charge that, had the accident happened as plaintiff’s witnesses testified, plaintiff was not negligent, is proper.
    8. Same—Evidence.
    ■The position of a person injured by a street car, when found after the accident, may be shown, as tending to show his position when struck.

      4. Same—Contributory.
    It is not negligence in law to attempt to cross in front of a street car fifty feet away.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial
    Hoadly, Lauterbach & Johnson, for app’lt;
    C. Sheldon Car others, for resp’t.
   DALY, C. J.

The evidence shows that the infant plaintiff was a boy about six or seven years of age, and that he went to school in the city of New York. While there was no other evidence of his ability to take care of himself while on the public street, those facts were sufficient to authorize the submission to the jury of the question whether he was of sufficient age to be allowed in the street. It cannot be assumed that a child six years of age is incapable of protecting himself from danger in streets or roads. Cosgrove v. Ogden, 49 N. Y. 255; Stone v. Dry Dock Railroad Co., 115 id. 104; 23 St. Rep. 551. Where the only evidence in the case was that the child was seven years old, the question whether it was sui juris was held to be for the jury. Stone v. Railroad Co., above. The criticism upon the evidence as to the boy’s age because the physician testified only that the hoy was “six or seven,” without specifying whether he meant years, months, weeks, or days, is hardly justifiable, as the evidence showed that the boy attended school. As to the identity of the boy in court with the plaintiff, that fact seemed to be assumed on the trial, and the question about it is raised for the first time on appeal. The evidence that the boy went to school in this city, coupled with what the jury could judge from his appearance as to his capacity, and the testimony as to his apparent age given by the physician, are sufficient to uphold a verdict that the boy was sui juris. The jury must have so found, for they were instructed that, if he was not of sufficient age and discretion to go upon the streets unattended, then the parents were guilty of negligence in that respect, and there could be no recovery.

The main question in the case is whether the infant plaintiff exercised the care and prudence to be expected from his age. The witness Salzman testified that the boy attempted to cross the track when the car was half a block distant; that he fell,- and was struck by the car when he got up. The witness Greene corroborates this to some extent by saying that when he first saw the plaintiff he iwas in a stooping position on the track. The witness Smith says that the boy started to cross the street, reached the track, and fell down, and that when he fell “the car was right on top of him;” but the .witness modifies this by stating that the way the accident happened was that the boy did not get up quick enough;' that wit-, ness thought “he was going to get run over because he fell down, and he wouldn’t get up quick enough when he fell down.” This shows that" the car could not have been directly on top of him when he fell, but that sufficient time elapsed after the fall, and before the car reached him, for him to have got up and got out of the way, had he done so more quickly. . Differences in the testimony of the witnesses as to the exact spot at which the plaintiff fell, whether on the east or west rail of the track, and of the position of his body, do not warrant the jury or the court in disregarding their testimony, as they were, of ’course, speaking from momentary impressions. Differences in the testimony of a witness with regard to his own position in the street when he saw the accident might be disregarded where there was evidently a simple mistake which was immediately corrected. The testimony of the plaintiff’s witnesses, if credited, showed that the plaintiff had ample time to cross the track when he attempted to do so, that the approaching car was not near enough to mal^e danger apparent, that he would have crossed in safety if he had not fallen, and that it was not until he was attempting to rise that he was struck by the car. In this state of the evidence the trial judge was warranted in charging the jury that, if the accident happened as the plaintiff’s witnesses testified, then he was not guilty of any negligence. This instruction did not take from the jury the question whether plaintiff was sui juris, for they were instructed that if he were not he could not recover in any event. It referred only to the question of his personal negligence in case the jury found he had possessed sufficient discretion to be permitted upon the street.

It is contended that the court erred in permitting one of plaintiff’s witnesses to testify as to the position in which the boy was found immediately after the accident.This was competent and material, as tending to show his position when struck by the car. There was no attempt to show declarations or acts of plaintiff after the accident.

The court was asked to charge “that the car of the defendant had a superior right of way in the street to the plaintiff, and it was the duty of the plaintiff to get from in front of the car, if he could do so, and, if the jury found he did not, their verdict must be for the defendant.” This was refused, and the appellant attempts to sustain the correctness of his question upon the authority of Thompson v. Buffalo Railway Co., 145 N. Y. 196-199; 64 St. Rep. 591, in which it is said:

“While persons have the right to cross streets at any place they may select, and are not confined to street crossings, street-railway cars between such crossings have a preference; and, while they must be managed with care, so as not to injure persons in the streets, pedestrians must nevertheless use reasonable care to keep out of their way.”

The difference between this language and the request is manifest, for the whole question of defendant’s care was omitted, and the plaintiff’s duty to use reasonable care only was not included.

The question of defendant’s negligence was properly left to the jury. The testimony of the seven witnesses of the accident called by defendant, among whom were two passengers, two persons in the street, the gripman and conductor and one other employe of the company, was that the plaintiff ran onto the downtown track from behind a car on the up-town track, when the car that struck him on the down-town track was only two or three feet from him. If this were true, then the defendant was not negligent, and the plaintiff was. But the testimony was in direct contradiction to the plaintiff’s witnessess, and it was the province of the jury to decide the conflict. According to the plaintiff’s witnesses, the car was between fifty feet and half a block distant from the plaintiff when he fell on the track, and it was manifest that had a lookout been kept by the gripman, he could have avoided the accident. It is urged that there is no evidence that, the plaintiff looked in all directions before crossing the track; but the distance of the car from the spot at which he attempted to cross made it quite safe for him to proceed, and the omission of that precaution contributed in no way to the accident. It would not be negligence in law to attempt to pass in front of a street ear fifty feet away. Wells v. B. C. Railroad Co., 58 Hun, 389; 34 St. Rep. 636.

The judgment and order appealed from must be affirmed.

All concur.


text:
    Sang Shing, Resp’t, v. Benjamin Sire, App’lt.

      (New York Common Pleas, General Term,

      Filed December 27, 1895.)

    Evidence—Burden of proof.
    The burden- of proof is on the tenant, who sues to recover money deposited with his landlord as security for his performance of the condition of the lease, to show compliance with the terms of such lease.
    Appeal from a judgment in favor of plaintiff.
    Warren S. Burt, for app’lt;
    George W. Glaze, for resp’t.
   BISCHOFF, J.

The plaintiff, as tenant, entered into a contract of lease providing for rent payable in installments of $40 at the commencement of each month, and which also required the observance of certain covenants by the tenant during the full term of seven months. At the time when the contract was made the plaintiff paid to the defendant the sum of $40, stated, - according to the agreement, to be “deposited * * '* as security for the rent and fulfillment of conditions of this lease. If complied with, the said $40 are to be returned to the party of the second part (this plaintiff) at the end of said lease, and if not complied with this $40 is forfeited as liquidated damages.” The plaintiff refused to pay his rent for the last month of the term, and was forthwith dispossessed; his stand, as taken and sustained in this action, being that the security deposited with the defendant should have sufficed for payment of the rent for such month, and that, failing his enjoyment of such part of the term the sum in suit, the amount of such deposit should have accrued to him. Unfortunately for his position, this was not his contract, and there was a complete failure of proof that the several conditions of the agreement had been fulfilled. The rent was to be paid upon the first day of each month, the deposit to accrue as a debt to the tenant at the end of the term, should he have then complied with this, together with the other conditions. This was his contract, and while his position may well he deplored in the result, the conclusion of the court below must be viewed as unauthorized, since the burden of showing compliance with its terms was upon him, and this he had failed to show. Consequently, he was not entitled to the return of the deposit, and the judgment is well assailed. The plaintiff’s second cause of action was dismissed upon the trial, and the questions raised thereby are not now before us.

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


text:
    Charles N. Nicoll, Resp’t, v. New York Boat-Oar Company, App’lt.

      (New York Common Pleas, General Term,

      Filed December 27, 1895.)

    Contract—Performance.
    A contract to publish an advertisement in a trade catalogue for 1893-94 is not performed by the publication in a catalogue bearing a different name from that represented, and not inserted until January, 1895.
    Appeal from a judgment rendered in favor of plaintiff.
    Elmer A. Allen and John E. Eustis, for app’lt;
    William C. Trimm, for resp’t.
   BOOKSTAVER, J.

This action was brought by the plaintiff, as assignee of Power & Co., to recover on the following contract:

“0. Amsinck & Co.’s Catalogue.
“An Illustrated Catalogue of the Best Products of American Manufactories, for the Use of All Merchants and Traders in the Spanish Countries of the World, Most of Whom are Customers of the Above Eirm, the Largest Commission House in , Existence. °
“ ‘New York, Sept. 18, 1893.
“ ‘Power & Company, corporation, is hereby authorized to insert our advertisement in G. Amsinck & Co.’s Catalogue for 1893-1894, to occupy the space of one page, for which we agree to pay one hundred and twenty-five dollars, payable on publication, not prior to Feby. 1, 1894, to the order of Power & Company.
“ ‘F. D. Wilsey, Pres. New York Boat-Oar Co.’
“The publishers will not be responsible for any 'conditions not expressed in this contract.”

No catalogue of any kind was published until the month of January, 1895, when a book entitled “Catalogo Hlustrado de las Mejores Producciones de Fabricas Americanas” was issued,, bearing the imprint of Power & Co., and the cover also bore the same title . One thousand copies of this catalogue were delivered to the firm of G. Amsinck., containing an advertisement of the defendant’s business; and it is claimed by the plaintiff that this was a compliance with the terms of the contract, and entitled him to recover the contract price of the advertisement in question. This the defendant denied. The phrase, “G. Amsinck & Co.’s Catalogue,” means either a catalogue owned by G. Amsinck & Co., or one gotten up under their direction and supervision, or a book published by them. But the book in question does not satisfy any of these meanings. The name of that firm does not appear, in the title page or elsewhere, as the owner, publisher, or supervisor of the work. Neither did the facts developed on the trial show that it was owned, gotten up, or supervised, by them. On the contrary, it was clearly shown that it was Power & Co.’s catalogue, and was gotten up and published by that company. The mere fact that G. Amsinck & Co. received from Power & Co. 1,000 copies of the book, which they distributed among their customers, did not make it their catalogue. No one would think of calling Trow’s Directory “John Smith’s Directory,” although. Smith had subscribed for 1,000 copies thereof. .

But there is still another reason why there should have been no recovery in this action. By the terms of the contract, it was to have been a catalogue for 1893-1894, i. e., for the season of 1893-1894; but it was not issued until January, 1895, and hence was entirely too late for the season contemplated. Plaintiff’s contention that the delay was caused by failure of advertisers to send in their advertisements in due season cannot avail him, for this was one of the risks the company assumed when it undertook to get out the catalogue for the season fixed, and the defendant cannot he held responsible for the failure of others. It would he responsible only for its own failure,, and in this respect it was nowise in fault. It was not asked for copy until October 4, 1894, when it replied that it had no copy to send, and canceled the order theretofore given, saying, among other things:

“We did give a contract on September 18, 1893, hut as it has not been carried out, and fully eighteen months have elapsed since then,,it is too late to he of any use; and we have been frequently advised that this is not Messrs. Gr. Amsinck’s catalogue, at all, and have been shown letters in reference to this from Mr. Amsinck’s Own people,—that they have nothing to do with it. *• * * »

And we think the defendant was fully justified in taking the position it did, under the facts in the case, and considering the time which had elapsed from the giving of the order. We there • fore think the judgment should he reversed, with costs to the appellant. .


author: PER CURIAM.

text:
    John Cullen, Resp’t, v. Patrick Gallager, App’lt.

      (New York Common Pleas, General Term,

      Filed December 27, 1895.)

    Appeal—Harmless error.
    Where, in an action hy an employer to recover the value of work, an employe testifies that he received stonecutters’ wages, and the union wages for stonecutters was in evidence, the exclusion of the-question hy defendant’s counsel, “How much was it worth? ” is not prejudicial to defendant.
    Appeal from a judgment in favor of plaintiff.
    Hastings & Gleason, for app’lt;
    Daniel Daly, for resp’t.
   PER CURIAM.

This action was brought to recover the value of work done for the defendant at his request. There is no stipulation in the agreement as to the rate of compensation. It therefore became necessary for the plaintiff to show the value of the work, and he gave evidence tending to show the number of days his workmen were employed and the fair value of the work. On the cross-examination of one of his witnesses the defendant asked: “Q. What wages were you paid? A. Stonecutter’s wages. Q. How much was it?” This was objected to by the plaintiff, on the ground that it was immaterial, and the court sustained the objection, remarking, “I don’t think it is proper,” to which defendant excepted. As a general rule, the cost of an article or thing is not the criterion of its value. In most cases the question is its market value. Although it has been said, “whether the price paid for a chattel or the price at which it is sold be admissible in evidence depend upon the special circumstances of each case” (Beach v. Railway Co., 37 N. Y. 469), and accordingly many cases may be quoted where such cost was admitted in evidence, and it may be conceded in this case that the question should have been allowed, yet we think the defendant was not injured by the ruling of the court. The witness had, just before, testified that he received stonecutter’s wages, and it was in evidence, without contradiction, that the union wages for stonecutters were $4.50 per day; so that the question was substantially answered. The real question for the court to determine was the fair value of the plaintiff’s services. That was testified, by the plaintiff and a witness called on his behalf, to be worth from $5 to $6 a day, and no evidence was given by the defendant to contradict this; the principal question raised upon the trial being as to the number of days the men worked. On this there was some conflict, but we think there was quite enough to justify the court in finding as it did as to the number of days, for which compensation was allowed at the lowest rate testified to.

The judgment should therefore be affirmed, with costs.


text:
    George A. Nerjes, Resp’t, v. Addie V. Roe, App’lt.

      (New York Common Pleas, General Term,

      Filed December 27, 1895.)

    Assignment—Subject-matter.
    A claim, which is not to accrue until the happening of a future event, is not assignable before the happening of such event.
    Appeal from a judgment in favor of plaintiff.
    David Levy, for app’lt;
    P. C. Talman, for resp’t.
   PER CURIAM.

It is obvious, from an examination of the lease under which the plaintiff claims, that the tenant’s damages were to be measured by the number of days during which his occupancy was deferred, and the -amount deducted, at an agreed rate, from the accruing rent. Here there was no occupancy whatsoever, and the tenant could look to the advance payment of the three, months’ rent only at the end of that period. The assignment of his “claim” against the lessor by the tenant to this plaintiff at the beginning of the second month was valueless as a transfer of a right of action, for there was no existing claim at that time. At the end of -the three months, the tenant would have had a cause of action for the advance rent paid, but the lease was annulled by the parties some few days after the assignment of the purported claim, the tenant then received back his full advance payment claim, the tenant then received back his full advance payment as made. Had the plaintiff delayed bringing his action until the expiration of the three months, which he did not, he still would have had no cause of action, since the contract was no longer in existence at that time.

Judgment reversed, with costs, and complaint dismissed.


author: BOOKSTAYER, J.

text:
    Isaac Walker et al., Resp’ts, v. William C. Beecher, App’lt. Same, Resp’t, v. Same, App’lt.
    (No. 1.)
    (No. 2.)

      (New York Common Pleas, General Term,

      Filed November 27, 1895.)

    1. Contracts—Public policy.
    A provision in an insurance policy that an action thereon shall only be brought against certain persons, is void as against public policy.
    2. Insurance—Agents.
    Where a clause in an insurance policy requires notice of any loss to be given immediately to the “attorneys” of the underwriters, the word “attorneys” does not mean “legal counselors,” but “agents.”
    3. Same—Notice op loss.
    In such case, proof of loss to one who succeeds the attorneys in fact named in the policy, complies with the requirement.
    4. Same—Withdrawal op insurer.
    A party who was a member of an underwriter’s association at the time a policy is issued, but who, with his associates, withdraws from the company, without giving notice to the policy holder, is liable on the policy, though no proof of loss is served on him.
    Appeal from a judgment in favor of plaintiffs in each case, rendered by a justice without a jury.
    W. C. Beecher, in pro. per.;
    Blumensteil & Hirsch, for resp’ts.
   BOOKSTAYER, J.

These are appeals from judgments against the defendant as an underwriter upon two fire insurance policies issued, respectively, as appears in the caption of the policies and from the testimony, at Metropolitan Lloyds and at Union Lloyds of New York City. The. causes of action are similar in all respects, and by stipulation the testimony, exhibits,, and all. evidence in action No. 1 are to be considred as taken in action No. 2, subject to all exceptions, save that .the policies and proofs of loss differ in dates and amounts. The questions raised are the same, and both appeals are argued upon the same brief. The particular facts of the Metropolitan Lloyds are made .the basis of the opinion, which is, however, equally applicable to the essential facts of both cases.

The appellant’s position that the action was not properly brought against him as defendant, in the first instance, is untenable, as decided by this court in Knorr v. Bates (Dec., 1895), 35 N. Y. Supp. 1060.

This substantially leaves but one question to be decided, viz., whether the notice and proofs of loss were properly served. The policy provides that “if fire occur the insured shall give immediate notice of any loss thereby, in writing, to the attorneys of the underwriters,” and also provides that various written statements in proof of the loss shall be rendered to the attorneys of the underwriters. It further provides that “wherever the phrase “attorneys of the underwriters’ occurs, it shall be held to mean their attorneys in fact, to wit, Beecher & Co. The notice and proofs of loss were sent to Edwards & Co.” The notice and proofs of loss were sent to Edwards & Co., who at the time of the fire, and subsequently, were the attorneys in fact of the Metropolitan Lloyds, having offices at the same address. There was evidence that this change of attorneys was well known among insurance men, from notices in the newspapers, and from the circulars that had been sent out by Edwards & Co., anouncing their succession to Beecher & Co. as attorneys and managers of that insurance company. The appellant claims, however, that he is not liable, because of the plaintiffs’ failure to send the notice and proofs to Beecher & Co., in strict compliance with the provisions of the insurance contract. I think this construction of the clause above quoted is, in view of the facts, unwarranted. The meaning is that “attorneys” should be understood, not as legal counselors, but as the attorneys in fact, or the agents, of the underwriters; and the addition, “to wit, Beecher & Co.,” was used to make the intent more unmistakable, by designating the then holders of the office, and not to require that service should be made upon that particular firm in all events, and even although they might renounce their agency, or their principals might revoke the same. The fact that the group of underwriters, of which the defendant was one, withdrew from the Metropolitan Lloyds at the time Edwards & Co. succeeded Beecher & Co. as managers, and the consequent fact that the latter company never actually represented the defendant, is therefore immaterial, or, rather, the defendant is es-topped from showing it for the purpose of escaping liability. Having withdrawn from the Metropolitan Lloyds without notice to the plaintiffs, who had dealt with him while the connection existed, and who, in reliance upon the continuance of that connection, had sent proofs of loss to the attorneys in fact of the Metropolitan Lloyds, the defendant cannot now be heard to say that neither he, nor any one having authority to represent him, ever received those proofs. The principles applicable to the retirement of a partner without notice to those having dealt with the firm are not without analogy to this case.

The above view of the sufficiency of the service of the notice and the proofs of loss renders it unnecessary to discuss the alleged errors in the admission of evidence.

Judgments affirmed, with costs.