author: Bischoff, J.

text:
    The People ex rel. Joseph B. Eakins, Pl’ff, v. Theodore Roosevelt et al., as Police Commissioners, etc., Def’ts.

      (New York Common Pleas, Special Term,

      Filed June, 1895.)

    Municipal corporations — Police—Retirement.
    A police officer is not entitled to be retired as a matter of right, where a complaint is filed against him by a citizen with the police hoard, though no formal charges have been preferred.
    Motion for a peremptory writ of mandamus-

      Charles A. Hess, for relator; Theodore Connoly, for resp’ts.
   Bischoff, J.

— Under the enactment commonly known as the “Bi-Partisan Police Act” (Laws 1895, chap. 569), the retirement of a police officer, upon his application, is mandatory upon the board of police if "such officer shall have served upon the force for a term of twenty-five years, and there shall be “ no charges against him pending.” That the relator made application for discharge and retirement with pension, that he had served on the police for a period of twenty-nine years, and that his application was refused, is not matter of dispute; but the board’s action is defended upon the ground that charges were pending against the relator at the time when his application was made. The facts relied upon by the respondents are that on May 13, 1895, complaint in writing was made in behalf of the Society for the Prevention of Crime,vto them and to the relator, of the later’s delinquency with regard to the suppression of places of evil resort within his particular precinct; that on the same day the complaint was referred by the respondents to one of their number, to the end that the same might be put in form for action against the relator; that on the 20th day of May, 1895, the relator presented his application for retirement; that on the 27th day of May, 1895, formal charges in writing against the relator were presented in behalf of the Society for the Prevention of Crime to the respondents, and on the same day the relator’s application was denied.

The question presented, then, is, did this complaint, made by the Society for the Prevention of Cid me, constitute a pending charge within the meaning of the act ? That which is within the manifest intention of the lawmaker is to be deemed within the law as much so as that which is within its letter. Riggs v. Palmer, 115 N. Y. 506, 509; 26 St. Rep. 198; People v. Utica Ins. Co., 15 Johns. 380; Jackson v. Collins, 3 Cow. 89; and “if the words of a statute are of themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves do, in such case, best declare the intention of the legislature.” Suth. St. Const., § 247. Section 272 of the consolidation act (Laws 1882, chap. 410), in view of the provisions of which the legislature must be presumed to have acted when amending the section's connected in subject with it, provides that “ no member * * * of the police force * * * shall be * * * dismissed from the police force until written charges shall have been made or preferred against Mm.” The word “ written ” may well be taken, and properly should, to exclude a verbal charge as a ground for trial "and dismissal, and by no means looks necessary to a formal presentment in order that a charge should exist. This is the only provision found with regard to the form of the “.charges” in contemplation. A “charge” under the act may as well be an existing accusation made by a citizen against the officer and entertained by the board as a formal presentment by the board itself, with notice from it to the officer. The courts, in their construction of statutes, are to observe the rule that words in a statute intended for the people should be understood in a popular sense (Suth. St. Const. § 251); that words are not to receive the narrowest interpretation, even in a penal statute (Id. § 357); that, where words have two significations, the popular one should have preference (Id. §§ 248, 250)that common or popular words are to be interpreted in a popular sense (Id. §§ 247, 248, 254, 255, 258); that a strict and literal interpretation is not always to be adhered to, and where a case is brought within the intention of the makers of the statute it is within the statute, though by a technical interpretation it is not within the letter. Weiler v. Newbach, 47 Hun, 166 ; 13 St. Rep. 451. Also, that the words of a statute, if of common use, are to be taken in their natural, plain, obvious and ordinary signification. People ex rel. Bockes v. Wemple, 115 N. Y. 302; 26 St. Rep. 330; Polhemus v. Fitchburg Railroad Co., 123 N. Y. 502; 34 St. Rep. 420.

In realization of the fact that the legislature’s obvious intent was to make the retirement of a worthy officer, and such officer alone, mandatory upon the board of police, where, before, discretion existed (People ex rel. Brady v. Martin, 145 N. Y. 254; 64 St. Rep. 689), I proceed to apply the rules noted. The words “charge” and “pending” are, indeed, susceptible of two interpretations,— the legal and technical, or the popular and liberal. To the lawyer’s mind a “ charge ” would intend an accusation as to which formal notice was brought to the accused; and so, too, “pending” would suggest the state of an undetermined proceeding after such notice had been given to the party proceeded against: .But, in the popular sense, “charge” and “accusation” are practically synonymous, and the word “ pending,” if we have recourse either to the vernacular or to the derivation of the term, means “ hanging.” Certainly, accusations made to and entertained by the body having jurisdiction to act upon and investigate them are “ charges ” hanging, hanging over, or “ pending ” in the popular sense. In another part of the act wc find the expression (section 4), “pending the trial of charges.” This may well be taken to denote the legislative appreciation of the distinction between “pending” the condition of a charge without formal notice to the accused, and “ pending the trial,” which the more properly denotes a condition presented by the observance of greater strictness of procedure. “ Fxpressio unis exclusio alterius.” It results that the relator has failed to establish his right to retirement ex débita justitiae, and the writ sought is not to be allowed.

Motion denied. ■


source: Caselaw Access Project

license: Public Domain

text:
    Annie Reddin, App’lt, v. James Lawlor, Resp’t.

      (New York Common Pleas, General Term,

      Filed June 27, 1895.)

    Witness — Party—Credibility.
    The uncorroborated testimony of a party, though uncontradicted, is not controlling.
    Appeal from a judgment for defendant.

      Boothby & Warren, for app’lt; L. A. Gould, for resp’t.
   Bischoff, J.

— Plaintiff instituted an action for the conversion of a dog, and appeals from a judgment rendered in favor of the defendant. Upon the record we must uphold the decision. The evidence in support of the judgment establishes the fact that the dog was in the possession of the plaintiff’s husband after she had temporarily left their common home, and that in her absence he had presented the animal to the defendant, who in turn had made a gift of it to another person, prior to the date of plaintiff’s demand. As between husband and wife the possession of this dog, which was not shown to be a chattel in the nature of bona paraphernalia, imported title in the husband, the enabling acts in favor of married women notwithstanding. 9 Am. & Eng. Enc. Law, p. 801, and cases cited; Whiton v. Snyder, 88 N. Y. 299. Unrebutted, then, the facts surrounding the transfer of possession to defendant, supported a finding of title in the transferee. Appellant’s uncorroborated testimony that the dog had originally been presented to her as a Christmas gift, being the testimony of a party in interest, was not controlling upon the justice, Frankel v. Wolf. 7 Misc. Rep. 190 ; 57 St. Rep. 536; Davey v. Lohrman, 48 St. Rep. 716, and in support of the judgment we must assume that it was not found to be sufficient to rebut the presumption raised in favor of the defendant’s title. We cannot say that the judgment is against the evidence, and no questions of law are presented upon this appeal.

Judgment affirmed, with costs.

Ail concur.


text:
    Laura Howe, Resp’t, v. Eugene Robinson et al., App’lts.

      (New York Common Pleas, General Term,

      Filed June 3, 1895.)

    1. Appeal — Harmless error.
    Harmless error in the admission of incompetent evidence affords no ground fur reversal.
    2. Same — Evidence.
    In the absence of a preponderance of the evidence against the party prevailing on the trial, the common pleas will not disturb the findings of the trial court on the facts, upon an appeal from the district court.
    3. Contract — Construction.
    A contract, which provides for services for any period less than ten months, at the option of either party, and for its cancellation upon giving two weeks’ writ'en notice, means that it shall not continue longer than ten months and may be terminated on two weeks’ notice, within that time.

      4. Accord and satisfaction — What is not.
    A receipt, acknowledging payment of a certain sum in full of all demands to date, is not an accord and satisfaction as to pre-existing claims, where such sum is concededly due, therefore furnishing no consideration to support such agreement.
    Appeal from a judgment in favor of plaintiff, rendered by the justice, without a jury.

      John, W. Boothby, for app’lts; Benno Loewy, for resp’t.
   Bischoff, J.

— True it is, as the appellants’ counsel contends, that the court below erroneously admitted paroi evidence to vary the terms of the written contract which was executed by and between the parties to this action, but equally true it is that no prejudice resulted to the defendants from such admission. The paroi evidence was to the effect that plaintiff’s employment was to be for the season, or for not less than twenty weeks : but disregarding the objectionable evidence, and upon the written contract, as we construe it, and the facts transpiring after its execution, as they were determined by the court below upon sufficient evidence, the judgment appealed from is legally proof against successful assault. Harmless error in the admission of incompetent evidence affords no ground for reversal. Foote v. Beecher, 78 N. Y. 155; Woodruff v. McGrath, 32 id. 255; Ward v. Kilpatrick, 85 id. 413, 417; Tenney v. Berger, 93 id. 524, 531.

The written contract of employment bound the plaintiff to the performance of her services as an actress at the defendants’ theatres “for any period less than ten months, at the option of either party, commencing on or about August 27, 1894, at Philadelphia, Pa.” A subsequent clause provided for cancellation of the contract “at any time by either party giving two weeks’ notice to the other in writing.” Construing the several provisions together, as we must (Flanagan v. Fox, 6 Misc. Rep. 132 ; 58 St. Rep. 4; Id., affirmed, on opinion below, 144 N. Y. 706), the only rational meaning which is to be gathered from the language quoted is that, it was thereby intended that the employment should endure, not in any event to exceed ten months, until either party to the contract elected to end it by giving to, the other two weeks’ previous-notice in writing of such an intention. Such is the natural and apparent sense of the contract, — the sense in which the defendants, as promisors, must be deemed to have intended the plaintiff, aspromisee, to understand it, and the sense, therefore, which should prevail. Hilleary v. Skookum R. ll. Grower Co., 4 Misc. Rep. 127; 53 St. Rep. 206.

The initiatory pleadings were in writing. The complaint proceeded upon a cause of action for damages arising from the defendants’ alleged refusal to continue the employment; and the answer, besides the denial of any breach of contract, alleged as affirmative defenses that, pursuant to the provisions of the contract, the employment was terminativo at any time, at the option of either party, upon two weeks previous notice in writing to the other, of which option the defendants had availed themselves; and that, by an agreement of accord and satisfaction, the plaintiff had released the defendants from the payment of all demands in her favor. Obviously, however, we are not to test the accuracy of the judgment appealed from with reference to the issues made by the written pleadings; for by the consent of the parties, which is apparent from the evidence adduced for the plaintiff, without objection, the character of the objections made, and the amendment of the complaint, without objection, to conform it with the proof made when the introduction of the plaintiff’s direct evidence was closed, other issues were substituted and litigated on the trial, and determined in the court below. Frear v. Sweet, 118 N. Y. 454; 29 St. Rep. 972.

Called as a witness in her own behalf, the plaintiff testified that she neither gave nor received notice of any intention to terminate-the employment; and that her agreed weekly salary of $40 remained due and unpaid for five weeks at the time of the commencement of the action. Construing the written contract as we do, and observing that at the time of the trial the employment was not determined either by expiration of time or notice, as provided, the action clearly proceeded as one upon a subsisting contract to recover accrued salary, and not for damages arising from the refusal of the defendants to continue the employment. The plaintiff, furthermore, testified that, although she held herself in readiness to comply with the terms of the contract on her phrt for the-period during which the salary sued for had accrued, she was not. required to perform any services by the defendants. In the absence of proof of a withdrawal therefrom by either party, the employment was to be taken as subsisting. Berg v. Carroll, 30 St.. Rep. 675. Hence, upon the facts above alluded to, a judgment for the plaintiff in the sum of $200, as rendered, was the inevitable conclusion.

For the defendants it was conceded on the trial that written notice of an election on their part to terminate the employment was not given, and the defense resolved itself into an effort to defeat the plaintiff’s recovery upon the grounds: Firstly, that, before the commencement of the last two weeks for which the plaintiff claimed salary, the defendants had withdrawn from the employment, and given oral notice to the plaintiff to that effect, and hence that, though the defendants may have subjected themselves to liability in damages for breach of contract, no salary accrued to the plaintiff subsequent to the breach; secondly, that the contract provided that “should any non-playing nights occur through accident, sickness, delay on the railroad, riot, fire, lay-offs, railroad accident, public calamity, or other unforeseen causes, where time is lost, then the said party of the second part (the plaintiff) is not to receive any salary, for said time lost,” and that no sal ary f had accrued to the plaintiff under this provision for the first three weeks for which it was claimed in this action, because the defendants were prevented from continuing their performances for that period by “ lay-offs ” ; and, thirdly, that the plaintiff had relinquished her claim against the defendants by an agreement of accord and satisfaction.

With regard to the fiist of the grounds of defense last above alluded to, it is sufficient to say that the testimony for the defendants to establish the fact of an oral notice of their discontinuance of the employment was met by the plaintiff’s denial, in rebuttal, of the receipt of any such notice; and in the absence of a preponderance of the evidence against the party prevailing on the trial, this court will not disturb the findings of the trial court on the facts. Weiss v. Strauss, 39 St. Rep. 78; Baird v. Mayor, etc., 96 N. Y. 567. Appellant’s counsel contends that the receipt of such oral notice was admitted by the plaintiff; but, as we read the plaintiff’s testimony, alluded to in this regard, it was to the effect that the defendants’ representative informed her that no objection would be made on their part if she accepted employment elsewhere. Obviously, this reserved to the defendants the right to assign the plaintiff to the performance of services before her acceptance of other employment, and was not equivalent to notice that her services would be no longer required or accepted.

With regard to the second ground, the trial court admitted considerable testimony offered by the defendant to show that the term “lay-off” had acquired a well defined meaning in the theatrical profession, and comprehended a variety of causes which operated, without fault of the manager, to prevent the contemplated performance" from taking place. This testimony was properly ad mitted (Browne, Parol Ev. p. 202, § 57); but even so, and conceding the fact to be in accord with the testimony alluded to, it remains that the defendants wholly omitted the effort to show that the plaintiff’s services were not required in consequence of the happening of one or more of the events from which a lay-off resulted. Clearly, without proof to the last-mentioned effect, the clause which the defendants sought to invoke was unavailable to them.

With regard to the third and only remaining ground of defense, the facts were that subsequent to the accrument of the salary for the first three weeks, and before the accrument of the salary for the last two weeks, sued for in this action, the plaintiff performed at defendants’ theater for one week, the salary for which was not disputed, and was concededly due and owing. When the last-mentioned week’s salary was paid, the plaintiff gave a receipt acknowledging the payment of $40 “in full for all demands, all claims, and all salary from said manager and company up to and including November 11, 1894,” the date of payment. Up to this time no dispute had arisen between the parties respecting any arrears of salary, and nothing was said by either party about any arrears of salary at the time of the receipt. Waiving now the objection that an essential element of an agreement of accord and satisfaction— the mutual assent or aggregaiio mentium of the parties — was entirely wanting, Fuller v. Kemp, 138 N. Y. 231; 52 St. Rep. 342, and regarding the receipt in the light of an agreement in writing, to vary the terms of which paroi evidence was not admissible, Coon v. Knap, 8 N. Y. 402; People v. Board of Managers, etc., 96 id. 640, and which therefore was conclusive upon the parties as to its effect, it remains that the alleged agreement was nudum pactum, being without any consideration to sustain it. The sum paid was for a liquidated demand, and concededly due and owing. By its payment, therefore, the defendants parted with nothing to avail them in support of an agreement to cancel other and pre-existing demands in favor of the plaintiff. Conceding the justice of the plaintiff’s demand for salary for the week during which she rendered actual service, her right to the whole of the sum paid was not open to dispute in good faith on the part of the defendants. They, therefore, yielded nothing, not even the forbearance of dis pute with regard to any part of the sum paid, in consideration of the plaintiff’s alleged promise to abandon her claim for arrears of salary. Parol evidence was admissible to show a want of consideration. Browne, Parol Ev. p. 43, § 29. By its very terms, the receipt did not extend to demands which did not exist in the plaintiff’s favor on the 11th day of November, 1894. Hence the alleged agreement of accord and satisfaction had no effect upon salary which accrued subsequently to that date; namely the salary for the last two of the five weeks for which recovery was had in the court below.

The judgment should be affirmed, with costs.


author: Pryor, J.

text:
    William G. Austin, App’lt, v. James H. Southworth, Resp't.

      (New York Common Pleas, General Term,

      Filed June 3, 1895.)

    1. Trial — Waiver.
    It is allowable to litigants to waive objection to incompetent evidence ; and, the proof being in the case, the court must give it legal effect.
    2. Evidence — Parol.
    Statements of the parties at the time and in the act of executing a written contract, if they do not alter its terms or legal effect, are receivable in evidence to elucidate an ambiguity as to the subject-matter of the agreement.
    Appeal from a judgment entered in favor of defendan

      Robert C. Taylor, for app’lt; A. G. Beyer, for resp’t.
   Pryor, J.

— The National Cyclopedia of American Biography was in process of publication by James T. White & Co., plaintiff’s assignors, when the defendant agreed in writing to take six volumes of the complete series of twelve, “ which is to contain the biographical sketch and marginal vignette portrait of -, at the price of ten dollars per volume, the subscription price per volume payable on delivery, upon the terms stated above.” These terms were erased on the execution of the contract, and are not now apparent in the actual agreement. Whether the six volumes to be taken by defendant were to be paid for on the delivery of each or of all is not quite clear upon the face of the paper in its altered and imperfect condition; and, as but four volumes were delivered, it is a question If the action be not premature, because brought before complete performance by the plaintiff’s assignors. Waiving this objection, however, and addressing ourselves to the point in litigation, we observe that the agreement is at once incomplete and ambiguous. It is incomplete in not specifying the portrait and biography to be contained in the volumes bespoken by the defendant, and is ambiguous in not designating which six volumes of the. twelve constituting the entire set the defendant stipulated to take. The first defect is supplied bv the testimony of the publishers, who admitted that the portrait and biography intended were the portrait and biography of the defendant.

The actual and the only question in controversy is, what particular volumes did the defendant agree to take? The plaintiff says the first six; the defendant says the six commencing with that which contained his portrait and biography. The volumes delivered were the first four issued ; and in neither were the portrait and biography of the defendant inserted; nor is it apparent-that they would be present in an)' of the first six volumes. Evidently, the moving consideration with the defendant in subscribing for the work was the publication in it of his portrait and biography; and it is equally manifest that the volume containing them was the one he particularly desired. But, if he got that, it would seem a matter of indifference to him whether the volume preceded or followed the others. It is impossible, ‘therefore, to ascertain from the face of the contract and the surrounding circumstances, the specific subject-matter of the agreement between the parties. If this be so, — if there can be an inexplicable ambiguity as to the subject of the contract, — then there is no contract, and the action is defeated, because the justice was authorized to find that the defendant tendered a return of the delivered volumes. Sutter v. Vanderveer, 122 N. Y. 652, 654; 34 St. Rep. 211.

But a contract was certainly intended by the parties, and, if practicable, we are to identify its subject-matter, ut res valeat. The undisputed fact is that the agent of the publishers agreed orally with the defendant that the six volumes sold to him were to commence with the one containing his biography. Ho objection in advance to the proof of this fact was made, and no exception was taken to the denial of a subsequent "motion to strike it out. It is allowable to litigants to waive objection to incompetent evidence; and, the proof being in the case, we are bound to give it legal effect. The parties having agreed, therefore, to-reciprocally sell and buy the six volumes of the book commencing with the one containing the biography, the defendant is under no obligation to take or pay for other and different- volumes. Even had the objection been seasonably interposed to the evidence and due exception taken to the refusal to strike it out, the ruling of the justice would not have been error. The evidence nowise contradicted the written contract, because the written contract was silent as to the specific volumes agreed to be furnished and taken. “ A latent ambiguity is where you show that words apply equally tp two different things or subject-matters; and then evidence is admissible to show which one of them was the thing or subject-matter intended.” Alderson, B., in Smith v. Jeffryes, 15 Mees & W. 561. Statements of the parties at the time and in the executing a written contract, if they do not alter its terms or legal effect, are receivable in evidence to elucidate an ambiguity as to the subject-matter of the agreement. “If the written words raise an ambiguity or create a doubt, that is dispelled by the paroi proof which shows the construction put upon the instrument by the parties at the time. Such proof is admissible if the writing be ambiguous.” Dodge v. Zimmer, 101 N. Y. 43, 48; 16 St. Rep. 657. “ If the terms of a written contract be so obscure or ambiguous as not to be understood without adventitious light, then evidence, not only of the surrounding circumstances, but of the acts and conversations of the parties (in making the contract), is competent to illustrate their intention.” Campbell v. Jimenes, 3 Misc. Rep. 516, 518 ; 52 St. Rep. 495. The contract under priticism may also be deemed incomplete, in omitting to designate which of the twelve volumes were to be taken by the defendant; and thus the proof be competent under another exception to the general rule against paroi evidence to alter a writing. Weeks v. Binns, 85 Hun, 70 ; 66 St. Rep. 26; Vickers v. Battershall, 84 Hun, 496, 500; 65 St. Rep. 470. The order regarded by appellant as constituting the contract between the parties is signed only by respondent; and the “ notice ” subscribed by James T. White & Co. only interdicts agreements “ affecting the terms” of the contract. Those terms are not affected by proof aliunde which merely identifies the subject-matter of the contract.

Judgment affirmed, with costs.

All concur.


text:
    Harry C. Jacobs, Resp’t, v. William O’Gorman et al., App’lts.

      (New York Common Pleas, General Term,

      Filed June 3, 1895.)

    .Negligence — Character of action.
    A person who, without a license, obstructs the public streets, is liable as a trespasser to any one injured by reason of the obstruction, but, where the act giving rise to the obstruction is performed under a license, the rule of liability rests upon the ordinary principles governing actions of negligence.
    Appeal from a judgment, entered on a verdict in favor of plaintiff, and from two orders denying motions for a new trial.

      John Brooks Leavitt, for app’lts; Hatch & Wickes, for resp’t.
   Bischoff, J.

— This action was brought to recover for personal injuries sustained by plaintiff when walking upon the sidewalk of 141st street, opposite the defendants’ premises, by reason of the overlapping of one flagstone upon another, which irregularity in-the surface of the path caused him to fall. The condition of the sidewalk was due to the fact that workmen, engaged at the instance of the defendants in repairing it, had, at the close of their day’s work, upon the evening of the accident, left the flagstones in the position noted. A question as to the nature of the action having been raised at the trial, plaintiff elected to proceed as in an action for the maintenance of a nuisance, but adopting this theory, an inconsistency in the charge delivered by the trial judge is presented, and exceptions taken to the refusal of certain of defendant’s requests to charge present error for which we think a reversal of the judgment should result.

The court charged the jury that “the defendants had aright to take up and relay the flagstones in front of their premises here mentioned,” and that “ it was the duty of the defendants to keep the sidewalk in front of the premises in repair for the tree passage of their tenants and the public along said sidewalk, and, if it became necessary, it was their duty to take up and relay the flagstones to make such repairs." Defendants requested the court to charge that “the only obligation resting upon the defendants during the cessation of the work in making repairs was to leave the same in such a manner and condition as to permit the use of the sidewalks for its ordinary purposes, and in such a condition that persons in the exercise of ordinary care could pass and repass without injury,” and excepted to the charge as modified by the omission of the words “in the exercise of ordinary care.” Throughout the charge the question of plaintiff’s contributory negligence was expressly withheld from the jury, and this would have been proper but for the fact that the law of the case, as laid down in the words first above quoted, and without objection upon the plaintiff’s part, defined the action, not as one for a nuisance, but as proceeding upon a state of fact which called for the application of the rules obtaining in an action simply for negligence. Rightly or wrongly, it. was charged that the right and duty to repair the sidewalk rested upon these defendants. Thus, in so making repairs, which it is not contradicted were necessary, they did not act wrongfully and without license. Doubtless, it was negligent for the defendant’s workmen to leave the sidewalk in the condition noted without lights or surrounding signs of warning other than the evidences of repairs existing in the locality; but was the act unlawful? Clearly not, under the principles governing actions of this character, and in view of the theory adopted at the trial. One who without license obstructs the public streets is liable as a trespasser to any person injured by reason of the obstruction, since by the farmer’s fault a nuisance is created; but where the act giving rise to the obstruction is performed under a license, express or implied, “the rule of liability relaxes its severity, and rests upon the ordinary principles governing actions of negligence. Babbage v. Powers, 130 N. Y. 281; 41 St. Rep. 521. Necessarily, if, as charged, it was the defendants’ duty to repair the sidewalk in front of their premises, in undertaking that duty they were not guilty of a wrongful act. The duty admitted and the “right” to perform it, the performance was an authorized act, and therefore the defendants, though concededly negligent in the performance, were not trespassers, and liable as such for injuries sustained by the plaintiff, and occasioned by the presence of an obstruction raised by them upon the highway in the course of this, at that time, uncompleted performance of the duty imposed.

A new trial must result, for the reasons set forth.

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


text:
    George L. Baber, by Guardian, etc., Resp’t, v. Broadway and Seventh Avenue Railroad Company, App’lt.

      (New York Common Pleas, General Term,

      Filed June 3, 1895.)

    Appeal — Exceptions.
    Exceptions are unavailing, where no grounds for the objections, which were overruled, were presented upon the trial.
    ' Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Henry A. Robinson, for app’lt; Gilbert D. Lamb, for resp’t.
   Bischoff, J.

— The points raised upon this appeal are found in the main to have been already determined adversely to the appellant in the opinion heretofore handed down upon the motion for a new trial upon exceptions after a nonsuit, the result of the former trial of the action. Baber v. B. & S. A. R. Co., 10 Misc. Rep. 109; 62 St. Rep. 466. We there held .that, impliedly, the driver of defendant’s car, having apparent charge of defendant’s property, was acting within the scope of his employment when directing plaintiff, a trespasser, to leave the car, and that, defendant was liable for the injury occurring under the particular circumstances of the case. Further, it was determined that plaintiff was not chargeable with contributory negligence.

It is urged, however, that the driver, when called as a witness upon this trial, stated that it was the conductor’s duty to eject trespassers found upon the car. True, this testimony may be said to conflict with the inference of his duty as noted above, but that inference is not thereby conclusively rebutted, and it was for the jury to draw this inference from the facts in evidence.

It is also contended that from the plaintiff’s own testimony it appears that he was not impelled suddenly to jump off the car through fear, since he testified that his last request of the driver to stop was made at the northern side of Twenty-third street, whereas the evidence in the case bears out the fact that his fall took place when the car had reached the southern side of that street. Ho sufficient inconsistency is presented by this fact to call for our disapproval of the result reached at the trial. Plaintiff testified that he did actually jump from the car to escape the immediate injury threatened by the driver’s motion; but, we are advised by counsel, the car must have proceeded for a distance of sixty-five or eighty-five feet during the period which elapsed between the time of plaintiff’s request and the moment of his injury; hence this injury was not the result of an impulsive act, and his manner of leaving the car was negligent. The difficulty with this contention is that we cannot well presume the driver’s answer to the request and his hostile gesture to have followed instanter the plaintiff’s words. Of this the record does not apprise us; but we have the fact that the car was proceeding at a rapid pace, and are unable to say that the interval of space in question could not have been covered with such dispatch that, assuming some reasonable deliberation upon the driver’s part, the state of facts presented would be quite consistent with the plaintiff’s statement that his fall was due solely to his having been suddenly frightened off the car.

The remaining ground urged for a reversal is that error is presented by the appellant's exception to the admission of plaintiff’s testimony that he jumped from the car in obedience to the belief that he would have been struck had he failed so to do. The argument appears to be that the question asked usurped the province of the jury. This does not seem to be the fact. The driver’s' threatening act might have had a different effect upon another individual, and evidence of the actual effect upon the plaintiff was apparently admissible upon the issue of contributory negligence. But, apart from this, the exceptions are unavailing, since no grounds for the objection which was overruled were presented upon the trial. Myers v. Cohen, 4 Misc. Rep. 185; 53 St. Rep. 223; Malcolm v. Lyon, 46 St. Rep. 921.

The judgment and order must be affirmed, with costs.

All concur.


author: Bookstaver, J.

text:
    Luman A. Soule, Resp’t, v. Victor L. Veyrac, App’lt.

      (New York Common Pleas, General Term,

      Filed June 3, 1895.)

    Appeal — Evidence.
    A judgment of affirmance by the general term of the city court is conclusive upon the common pleas, both as to weight of evidence and propriety of its submission to the jury, and also as to whether or not there was any evidence to support the recovery.
    Appeal from a judgment of the city court, affirming a judgment entered on a verdict in favor of plaintiff.

      Charles E. Le Barbier, for app’lt; William T. Mathies, for resp’t.
   Bookstaver, J.

— This action was brought to recover the sum of $450, claimed by respondent to be owing him under an alleged contract as altered and changed by consent of the parties thereto. Although there is a statement in the case, there is no certificate to the effect that all of the evidence given upon the trial is included in the case. Ho motion was made for the dismissal of the complaint or the direction of a verdict by the defendant at any time during the progress of the trial. Therefore, the judgment of affirmance by the general term of the city court is conclusive upon us, both as to the weight of evidence and propriety of its submission to the jury, and also as to whether or not there was any evidence to support the recovery. Brooker v. Filkins, 9 Misc. Rep. 146; 59 St. Rep. 735; Paige v. Chedsey, 4 Misc. Rep. 183; 53 St. Rep. 190; Rowe v. Comley, 11 Daly, 318; Smith v. Pryor, 30 St. Rep. 552; Arnstein v. Haulenbeck, 34 id. 297; Barrett v. Railroad Co., 45 N. Y. 628; Van Doren v. Jelliffe, 48 St. Rep. 784; Schwinger v. Raymond, 105 N. Y. 648; 7 St. Rep. 544.

The order of the general term of the city court denying plaintiff’s motion for a new trial is not reviewable by us, nor is any other matter which rested in the discrection of the court of original jurisdiction. Code Civ. Proc., § 3191; Pharo v. Beadle- son, 2 Misc. Rep. 424; 50 St. Rep, 609; Smith v. Pryor, supra ; Wilmore v. Flack, 96 N. Y. 512; Schwinger v. Raymond, supra. We can, therefore, only review questions of law appearing upon the record, and the only one argued by appellant’s counsel, either upon his brief or orally, was as to the admission in evidence of the alleged substitute contract for the alleged original contract ; but to the admission of this paper in evidence no exception was taken upon the trial. None of the exceptions to the admission or exclusion of evidence were argued by appellant’s counsel, from which it may be inferred that he placed no reliance upon them; and an examination of those exceptions show that he was entirely justified in not arguing them, for all of them were general in their character, and stated no ground on which objections were based. Railroad Co., v. Holland (Ill. Sup.) 18 N. E. 146 ; Atkins v. Elwell, 45 N. Y. 753; People v. Beach, 87 id. 512; Holmes v. Moffat, 9 St. Rep. 411.

No reviewable error appearing upon the record, the judgment should be affirmed, with costs.

All concur.


author: Bookstaver. J.

text:
    Michael F. Conway, Resp’t, v. New York Central and Hudson River Railroad Company, App’lt.

      (New York Common Pleas, General Term,

      Filed June 3, 1895.)

    1. Master and servant — Appliances.
    It is not the master’s duty to repair defects arising in the daily use of an appliance, for which proper and suitable materials are supplied, and which may easily be remedied by the workmen, and are not of a permanent character, or requiring the help of skilled mechanics.
    S. Same — Fellow.
    If, in such case, the act is one within the duty of a servant, its negligent performance is the negligence of a fellow servant, for which the master is exempt from liability.
    Appeal from a judgment of the city court, affirming a judgment entered on a verdict in favor of plaintiff.

      Ashbel Green and Herbert E. Kinney, for app’lt; William E. Morris, for resp’t.
   Bookstaver. J.

— The plaintiff was in the employ of the defendant as a freight handler. On the day of the accident, as he was going to his work after the luncheon hour, the defendant’s foreman called him to assist some other workmen in transferring a cask of freight from the pier to a freight car which was in process of loading on a float alongside the pier. The plaintiff had not been working with this particular gang, but the foreman had entire charge of the men, with power to transfer them from one gang to another, and direct the work they should do. A plank ten or twelve feet long and four or five feet wide extended from the pier to the car, and was fastened at each end by ropes — four in all— fastened in holes bored a few inches from each corner of the plank, and to the car and pier. The cask was very heavy, and the end of the plank was not flush with the floor, so that it was not until the third effort that they were able to shove the truck bearing the cask upon the plank. Each time it hit against the end of the plank the ropes were strained, and this, with the; weight of the cask, caused one of them to give way. The plaintiff was upon the plank, and it turned, one corner falling down. He fell upon the plank, clinging to it, and the cask rolled against his leg and foot, causing the injury complained of. The defendant’s foreman testified that it was his duty to see that the planks were properly secured. The defendant kept a supply of rope on hand for the use of "the foreman and men for this purpose. The rope which broke was “a jagged old rope,” according to plaintiff, and, while looking old and black, might have been strong and solid. There is testimony that if a board had been laid across the end of the plank, for the truck to run up upon, the rope would probably have not given a ¡vay. This supposition need not, however, enter into the decision of the issues in this case. According to the testimony, as we have shown, it was the duty of defendant’s foreman to see that the planks were properly secured. The general rule of law is that if the act be one, the performance of which is incumbent on the master, the delegation of it to a servant does not discharge the master from liability for its negligent performance ; but, if the act be one within the duty of a servant, its negligent performance is the negligence of a fellow servant, and the master is exempt from liability. Cullen v. Norton, 126 N. Y. 1; 36 St. Rep. 359; McCosker v. Railroad Co., 84 N. Y. 77; Crispin v. Babbitt, 81 id. 516; Geoghegan v. Atlas Steamship Co., 3 Misc. Rep. 224; 51 St. Rep. 868. It is the master’s duty to keep an appliance in order, and he cannot delegate that duty so as to escape responsibility ; but this general rule is qualified by the rule that it is not the master’s duty to repair defects arising in the daily use of the appliance, for which proper and suitable materials are supplied, and which may easily be remedied by the workmen, and are not of a-permanent character, or requiring the help of skilled mechanics. Cregan v. Marston, 126 N. Y. 568; 38 St. Rep. 428; McGee v. Cordage Co. 139 Mass. 445; Johnson v. Tow-Boat Co., 135 id. 209 ; Webber v. Piper, 109 N. Y. 496; 16 St. Rep. 423. There is no evidence before us as to how long the ropes attached to the planks had been in use, and we cannot presume that the defendant had notice oí any defect in them.

Applying the rules above laid down to the case at bar, we find that the defendant furnished suitable and sufficient rope to be attached to the planks, and also boards suitable to be used at the ends of such planks, if thought advisable. Having these appliances, it was the servants duty to keep them in order for daily use.. If they became out of order in the course of such use, the servant was as capable as the master of seeing and correcting the defects. The relation of master and servant is not determined by gradation of rank, or superiority in authority or position. Wright v. Railroad Co., 25 N. Y. 562 ; Goeghegan v. Steamship Co., supra. The master having, therefore, furnished proper appliances, and the necessary means of keeping them in order, the neglect to do so was the neglect of a fellow servant, and not of the defendant. Cregan v. Marston, supra; Quinn v. Fish, 6 Misc. Rep. 105; 55 St. Rep. 401; Loughlin v. State, 105 N. Y. 159; 16 St. Rep. 826; Connolly v. Maurer, 6 Misc. Rep. 98; 56 St. Rep. 838.

We also think that the learned judge erred in excluing evidence on the trial as to whether or not the defects might easily have been remedied by the employes, by obtaining other rope, or by protecting the plank at both ends, to prevent it slipping. The case of Cregan v. Marston, supra, is very nearly in point, and we base our decision upon the rules there laid down. The case of Rettig v. Fifth A. Transportation Co., 6 Misc. Rep. 328; 56 St. Rep. 235, cannot avail the respondent, for the defects there were not discoverable, except by a close inspection, and it was shown that the master had notice of these defects, and the servant had not. The judgment must therefore be reversed, and a new trial ordered, with costs to appellant to abide the event.

All concur.


text:
    Elwood S. Hand, App’lt, v. William A. Shaw et al., Resp’ts.

      (New York Common Pleas, General Term,

      Filed June 3, 1895.)

    Costs — Security—New York City Court.
    An order, requiring security for costs in the New York city court will not be reversed on the ground that the moving affidavits fail to state that plaintiff had an office in the city, where the affidavits submitted on the hearing of the motion raise a contested issue upon the fact of his residence.
    Appeal from an order of the city court, affirming an order requiring the plaintiff to file security for costs on the ground that he was a non-resident. .

      Charles De Hart Brower, for app’lt; David J. Newland, for resp’ts.
   Bookstaver, J.

— The right of a defendant in an action to security for costs where the plaintiff is a non-resident is an absolute one, and does not rest in the discretion of the court. Buckley v. Manufacturing Co., 3 Civ. Proc. R. 429 ; affirmed, 93 N. Y. 637; McDonald v. Peet, 7 Civ. Proc. R. 200. Whether or not a party against whom such a motion is made is a non-resident is to be determined from the evidence submitted, and in this case such evidence was by affidavit. The ordinary rules of evidence governing the testimony of witnesses upon the trial of disputed questions-of fact are the same whether the trial be had upon oral testimony qr the depositions of witnesses. Dietlin v. Egan, 46 St. Rep. 762. In this case there was abundant evidence to ¡sustain the decision made at the special term of the city court. It is true that this was contradicted by opposing affidavits, from which a contrary conclusion .might have been arrived at; but it is not the province of this court to review a decision made upon disputed questions of fact.

Appellant, however, contends that the affidavits nowhere stated that the plaintiff did not have an office in the city of Hew York, and therefore did not bring himself within the .provisions of the Code requiring security for costs. As there was a hearing of the motion for security on an order to show cause, at which the plaintiff submitted affidavits tending to show residence, and the defendants affidavits on their part to show facts and particulars of non-residence, the question was fully and completely before the court below, and, if it had been the fact that the plaintiff did at that time have an office in the city of New York, he could have shown it by affidavit, when, although an actual non-resident of the state, he would have been deemed a resident for the purposes of giving security for costs. Mitchell v. Dick, 8 Misc. Rep. 100 ; 60 St. Rep. 161. The case of Stephenson v. Hansen, 4 Civ. Proc. R. 104, is clearly distinguishable from this. In the case before us the plaintiff was called into court by an order to show cause, and undertook to show that he was a resident, and it rested on him to show everything possible to support his contention. Mitchell v. Dick, supra.

The order should therefore be affirmed, with costs.

All concur.


author: Bookstaver, J. Giegerich, J.

text:
    Marie Fogassi, Resp’t, v. New York Central and Hudson River Railroad Company, App’lt.

      (New York Common Pleas, General Term,

      Filed June 3, 1895.)

    Negligence — Contbibutoky.
    The evidence, in this case, was held not to establish plaintiff’s freedom from contributory negligence.
    Appeal from a judgment of the city court, affirming a judgment entered on a verdict in favor of plaintiff.
    Two actions by Marie Fogassi against the New York Central & Hudson River Railroad Company. The actions were consolidated, and tried together. One action was brought to recover damages for personal injuries to the plaintiff, alleged to have been received by falling from the Ferryboat Kingston into the Hudson river at the Franklin street landing of the West Shore Railroad, in New York city, on the evening of the 21st day of July, 1893. The other was brought to recover damages for the loss of property consisting of personal effects, such as jewels, books, and documents carried by the plaintiff in a hand bag, including the hand bag, and an umbrella, at the time of the said fall.

      Herbert E. Kinney, for app’lt; Campora & Reville (Peter Mitchell, of counsel), for resp’t.
   Bookstaver, J.

— Plaintiff, a passenger upon defendant’s ferryboat, sustained injuries to her person, and to property contained in a hand bag, when in the act of passing from such boat to its landing place, by reason of the presence of an interval of space by the side of the gang plank connecting the boat with the landing, through which hole she fell. The recovery by the plaintiff in the court below is assailed upon this appeal, and, in our view, justly. The evidence given in support of the cause of action shows that plaintiff’s husband preceded her, in leaving the boat and proceeding over the gang plank, they forming a part of a crowd so proceeding. According to the testimony of plaintiff’s husband, he saw the hole in question, avoided it, and turned to call plaintiff’s attention to it, but was unable to reach her before the accident occurred. Plaintiff testified that she followed the crowd, with her eyes upon her husband; that she did not look down at the flooring of the boat; and that it was too dark for her to see, had she so looked. Upon this state of facts, we think that the plaintiff not only failed to establish the absence of contributory negligence on her part, but, by the testimony adduced in her behalf, substantially proved its presence. Thus error is presented by the exception taken to the denial of defendant’s motion for a dismissal of the complaint, made at the close of the case upon that ground. Had she actually followed her husband and the crowd, she would not have suffered the injury which they escaped. Had she taken the reasonable precaution of observing the flooring upon which she was proceeding, as did her husband, she, as well as he, must have seen the hole, which the light of the locality sufficed to disclose to his view. We may concede the defendant’s negligence, but, as shown, the plaintiff’s case presented nothing which could call for a favorable finding by a jury.

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

Bischoff, J., concurs.

Giegerich, J.

(dissenting). — Plaintiff’s claim of negligence, as it appears from the complaint, is that the defendant’s ferryboat did not have a proper passageway leading therefrom to the bridge at the New York side, where it landed when the accident occurred ; that there was not sufficient light on said bridge; that the said boat was not properly fastened and secured to said bridge; and that there was a large gap between said ferryboat and said bridge. And it is alleged that in consequence thereof the plaintiff fell into the gap aforesaid, striking the said bridge and falling into the water of the Hudson river, thereby sustaining the injuries of which she complains. It appears from the evidence that there was a gap or open space between the boat and bridge of two one one-half to three feet. The record is silent as to the cause thereof. All of plaintiff’s witnesses testified that it was a very dark night, while the witnesses called by the defendant testified that the lights were sufficient for them to plainly see the gang plank and the deck of the boat. In leaving the boat, plaintiff’s husband was about eight feet in advance of the plaintiff, behind whom was their daughter. Plaintiff carried an umbrella and satchel containing jewelry, books and papers, which were lost when she fell into the water, as hereinafter detailed. Her husband testified:

“ When the boat got landed, I came over and got on the plank, and, when I got on the middle of the plank, I saw a hole; and I wanted to turn around, and I had people behind me— The plank was standing there, resting on the boat and the platform, —the bridge. And I came here on the plank, and I saw a big hole, and I wanted to turn, because there was people behind me. I let those people pass before I could turn around to tell my wife to look out, and, before I had time to speak, my wife was going down. That plank was on the right hand side of the boat coming over. * * * I saw plank, and I saw an opening alongside of the plank when I was in the middle of the plank. There were some people who went off the boat ahead of me. There were some people beside my wife and daughter behind me. I couldn’t tell how many in all were on the boat. I guess it was fifty. I don’t think it was so many as a hundred. I think there were about fifty. When my wife fell in, the people that were corning off the boat stood some on the boat yet, and some on the plank behind. The people didn’t push me. I didn’t see any pushing.”

Plaintiff testified :

“ I was following the crowd, and all at once I went in the water. I fell in a hole. I thought I was on the plank, and I was not. Q. How wide was the passageway from the boat down to the bridge ? A. I didn’t see it. Q. Do you know how wide it was between the posts where you were going out ? A. I could [evidently meaning “ could not”] see h"ow wide it was because there was too much of a crowd for me to see. I do not know how wide it was between the boat and the bridge, where I fell through. If I saw it, I would not have gone through. * * * I had in my hand a satchel and my umbrella. I carried a satchel in my right hand, and the umbrella on this side. Q. Where were you looking towards before you fell ? A. I was watching my husband,— which side he was going. Q. You were looking towards him? A. Yes,sir. Q. You were looking towards him all the way out from the boat until you fell? A. Yes, sir. Q. Not looking down? A. No, sir. Q. Could you see the floor of the boat when you were going out ? A. No, sir; I didn’t look at the floor. I walked right on with the crowd that were close up to me. I could have looked down, if there had not been a crowd; but the crowd was too great to look, and I went right on with it. They were in front of me and back of me. I couldn’t tell if there was a great many back of me. As I came off from the boat, the crowd were half gone off the boat. There were a good many out, because I don’t like to come out when it is so crowded. I always do wait. I wait until a crowd is off. Q. And you waited until the crowd was off this time? A. Well, I waited until they were nearly off. There were some. * * * When I was going off they were on the side of me. They were not in front of me. Q. Both sides of you ? A. No; on one side. I cannot rememember how many there were right there. For me, it was not light there. I don’t know what it was for the others. It was very dark, for me. There was not light enough for me to see the floor of the boat. The people who were going off ahead of me were at the right-hand side of me. They were not directly in front of me.”

The daughter of plaintiff, testifying, said:

“I was behind my mother. 1 couldn’t tell how much behind my mother I was at that time. I saw my mother. There was a, crowd going off the boat at that time. It was dark there. I saw my mother fall into the river. I didn’t see the opening before I went off the boat. I saw it after my mother fell in. When I did see it, it was not where the plank was. It was between the boat and the bridge.”

The appellant insists that the evidence was not sufficient to authorize inference of its negligence, and plaintiff’s freedom from negligence, and hence that there was error in the refusal of the trial justice to dismiss the complaint upon defendant’s motion, made when the plaintiff rested, and renewed at the close of the entire •case; and its counsel contends that while the plaintiff was on her way from the ferryboat the defendant was not under the strict obligations towards her of a common carrier. Conceding, without holding, such to be the case, it must nevertheless be held that the duty a ferry company owes' to passengers going on and off its boats is to conduct its business with' such care and skill as will make the entrance to and exit therefrom safe for persons of ordinary prudence. Race v. Union Ferry Co., 138 N. Y. 644; 53, St. Rep. 9. This it manifestly failed to do, by leaving unguarded and unlighted a gap or space between the boat and bridge of the dimensions indicated. Boice v. Man. Railway Co., 118 N. Y. 314; 28 St. Rep. 692. Appellant's counsel argues that the authority of the case of Boyce v. Railway Co., supra, has been destroyed by the decision in the subsequent case of Ryan v. Man. Railway Co., 121 N. Y. 126; 30 St. Rep. 624; but a reading thereof shows, on the contrary, that the doctrine of the Boyce Case is expressly approved, and the distinguishing features of the two cases are clearly pointed out, to wit, that in the Boyce Case the negligence imputed to the company was not from the existence of the opening, but for leaving it unguarded and unlighted, while in the Ryan Case no such omission was charged, and the negligence averred rested upon the question of the opening itself being wider than prudence permitted or necessity required. It is also contended by appellant’s counsel that the rule established in the Boyce Case has been practically reversed by the decision in Hanrahan v. Man. Railway Co., 53 Hun, 420 ; 24 St. Rep. 790; affirmed, 130 N. Y. 658. But the opinion does not bear such an interpretation. In that case the plaintiff had frequently been a passenger upon the defendant’s cars, and had always used the station upon which the accident happened ; and although she knew that the space existed between the car and the station, and that she must step over this space to reach the platform of the car, she did not look, or take any precaution whatever, when she stepped between the car and the station. But in the present case the plaintiff had no knowledge of the existence of the space between the boat and the bridge, nor does it appear that she had ever before been a passenger upon the boat. It does appear, however, from the evidence, that the plaintiff did look, and took precautions, when she was leaving the boat. The case of Race v. Ferry Co., supra, is also distinguishable from the present one. There-the plaintiff testified that she did not know whether the light was so dim, or not, that she could not see, while in the case before us the plaintiff testified that there was not light enough for her to seethe floor of the boat.

Contention is also made by appellant’s counsel that “ no vessel or vehicle of any sort is known to mankind which fits so exactly to its landing place that passengers may heedlessly pass from the conveyance to terra firma." Yet in the Boyce Case the court said: “Even if the open space was necessary, owing to the peculiarities of the location, it w7as not necessary to leave it unguarded and unlighted; ” and in the Ryan Case the court held that “the locality should be well lighted, so that the passengers can see what the opening is, and it was that omission which was the determining element in the Boyce Case."

Appellant’s counsel further argues that the company furnished a gang plank, but the evidence shows, and the jury by their verdict found, that the plaintiff could not see the same, owing to the darkness which enveloped her. Hence, proofs of the defendant's negligence were such as to require their submission to the jury. Boyce v. Railway Co., supra.

6 It is most strenuously urged by appellant’s counsel that plaintiff was guilty of contributory negligence, this claim being based largely on the fact that plaintiff did not look down; but failure to do so is accounted for by her testimony that there was not light enough to see the floor of the boat. The fact that plaintiff’s eyes followed in the direction of her husband indicates, instead of negligence, that she used due precaution against danger. The remarks of Vann, J., page 318, 118 N. Y., who spoke for the court in the Boyce Case, are singularly pertinent to the question of contributory negligence in the present case :

a# * * Xn this case the plaintiff was ignorant of any circumstance requiring the use of special care, and hence was relieved of the necessity of showing that she used special care. The-apparent situation was free from danger. With her limited knowledge of the facts, what should she have done that she did not do? Ordinarily, what everybody does is all that anybody need do. Unconscious of danger, she did what the other passengers did. If she had known of the hole, or if it had been light enough for her to see it by the exercise of ordinary care, a different question would have been presented. Under the circumstances which she had a right to assume existed, she was under no obligation, as matter of law, to look before she put her foot down ; but it was a question of fact for the jury to decide, not only whether she should have been more vigilant, but also whether, if she had looked, she could have seen the hole in the surrounding darkness. * * * The circumstances did not require that freedom from contributory negligence should be shown by direct testimony, but they permitted the inference to be drawn, from the general testimony of all the evidence, in favor of the plaintiff.”

It follows from these views that the trial justice properly refused, to nonsuit the plaintiff.

The defendant asked the court to charge:

“Fourth. The defendant is not bound to construct the deck of the boat, the gang plank, or bridge, or any of them, so as to make accidents to passengers impossible. ”

The court answered:

“With reference to that, gentlemen, they were bound to use all reasonable modern improvements to lessen the possibility of accident or danger to passengers. They were not bound to make it impossible to have an accident, but they were bound to use all reasonable care and reasonable appliances to lessen the possibility of accident to passengers crossing. I decline to charge as requested, and charge as modified.”

This instruction is santioned by decisions in the cases of Cleveland v. Steamboat. Co., 68 N. Y. 306, 310, and Loftus v. Ferry Co., 84 N. Y. 455, and is warranted by the rules laid down in Race v. Ferry Co., supra. Hence, in effect, the judge did charge the request, but with an explanation which presented the rule of law with due qualification.

The defendant further asked the court to charge:

“ Sixth. If it was dark when the accident happened, and the deck, gang plank, or bridge, or any of them, were not plainly visible, these facts made it incumbent upon the plaintiff to exercise greater care.”

The court replied:

“ I decline to charge literally as requested. I have charged you, gentlemen, that the plaintiff was bound, in view of the hour, — in view of the surrounding situation, — to exercise ordinary care, and no more than that. She had a reasonable right to assume that she could pass in safety from the deck of this boat to the dock or bridge, and in exercising that assumption she should be cautious to exercise it in view of the hour, and of the darkness existing on. the occasion. I decline to charge literally as requested, and charge as modified.”

This instruction finds ample support in the rules laid dawn by the Boyce Case, which the present case, in principle, greatly resembles ; and it is also consistent with the rule laid down in Lafflin v. Buffalo & S. W. Railroad Co., 106 N. Y. 136-142 ; 8 St. Rep. 596, cited by appellant’s counsel, as will be seen by referring to that portion of the charge wherein he instructed the jury that it was incumbent upon the plaintiff to be cautious, “and exercise it in view of the darkness existing on the occasion.” The exception to the refusal to charge as requested, and to the modification as charged, was therefore not well taken.

The defendant further requested the court to charge:

“ Eighth. While the plaintiff was on her way from the ferryboat, the defendaut was not under the strict obligations towards her of a common carrier. ”

To which the court answered :

“ I have charged you, gentlemen, what degree of care they were called upon to exercise. I decline to charge as requested, and state that I have already charged upon that subject.”

The trial judge, therefore, at the request of the defendant, had ■charged:

“ Fifth. The defendant is bound simply to exercise ordinary care in view of the dangers attending their use, and make them reasonably adequate to the purpose for which they are devoted.”

This instruction is in accord with the position contended for by the appellant, namely, that the defendant was bound only to the exercise of ordinary care. As to the liability of a ferryman for the safety of a passenger, a more stringent rule, I think, can be invoked from the authorities. Cleveland v. Steamboat Co., supra; Loftus v. Ferry Co., supra; Race v. Same, supra; Osborn v. Same, 53 Barb. 639, 642; May v. Hanson, 5 Cal. 360; note to Chevallier v. Straham, 47 Am. Dec. 653: Beach, Contrib. Neg. (2d ed.) section 284, and citations. Yet, as to the property carried by the passenger, and kept by him under his control while upon the ferryboat, the rule is that the ferryman is not under the •obligation of a common carrier, but is bound only to due care and diligence. Wyckoff v. Ferry Co., 52 N. Y. 32, 35 ; Mayor v. Starin, 106 id. 11; 8 St. Rep. 655; White v. Winnisimmet Co., 7 Cush. 155. It follows from these views that the exception taken to such refusal to charge as requested was without merit. For these reasons, to my mind, the judgment appealed from should be affirmed, with costs.


text:
    John W. Dibblee, App’lt, v. Horace Metcalf et al., Resp’ts.

      (New York Common Pleas, General Term,

      Filed June 3, 1895.)

    Pleading — Corporation—Officers—Liability.
    A complaint in an action to charge the officers of a corporation with diverting its assets, which does not show that the act complained of did not occur after defendants ceased to he officers of the corporation, is insufficient.
    Appeal from a judgment, entered on an order dismissing the complaint.

      Isaac N. Miller, for app’lt; Edward B. Thomas, for resp’ts.
   Bischoff, J.

— In this action, recovery was sought against the defendants for loss sustained by plaintiff on account of the alleged fraudulent diversion of assets of a certain corporation by the former, when acting in the capacity of its officers. At the, trial the complaint was dismissed without any proof having been adduced, the learned trial judge basing the ruling upon the allegations of the first paragraph of the pleading, which reads as follows :

“(1) That the defendants, and each of them, were the trustees who had the management and control of the corporation known as the Metropolitan Board of Retail Trade from the time of its organization until the appointment of a receiver thereof, about the month of March, 1881.”

The trial court held that, inasmuch as the appointment of a receiver appeared from the complaint, such receiver should be the party plaintiff, the right to redress the alleged wrong passing to him by virtue of his appointment.

It is not alleged that the receiver mentioned was appointed as a permanent receiver of the corporation, and hence his right to bring this action for the purpose of redressing the wrong in question was not made to appear from the pleadings. Forker v. Brown, 10 Misc. Rep. 165; 64 St. Rep. 480; Buckley v. Harrison, 10 Misc. Rep. 683 ; 65 St. Rep. 93. And, moreover, they may well be a question as to whether this objection did not relate to the plaintiff’s capacity to sue, rather than to the sufficiency of the complaint, and thus was waived by the failure of defendants to raise it by demurrer or answer. Bank v. Donnell, 40 N. Y. 413 ; Hathaway v. Orient Insurance Co., 33 St. Rep, 678 ; Code Civ. Proa §§ 487, 498, 499. But, as stated by the learned trial judge, the pleading is clearly insufficient upon other grounds.

Tire complaint does not appear to have been verified, hence we are unable to say that it spoke from a date earlier than the date of the summons, July 11, 1881. As above stated, these defendants are alleged to have been the trustees who had the management and control of the corporation until “ about the month of March, 1881,” and there is no allegation that the occurrences set forth took place prior to that time. For all that appears, the acts complained of, to wit, the confession of judgment “in favor of one of the officers thereof,” in furtherance of a “fraudulent scheme gotten up by the officers and agents of said corporation,” might well have occurred after the date when the defendants ceased to have any connection with the corporation as “officers and agents”; and, but for the statement that at one time they did have the “ management and control,” there is nothing to connect them with the acts in question. The other allegations in the complaint as to the occurrences which are the subject of the action do not justify any inference that the confession of judgment referred to took place prior to the month of March, 1881, since the interval noted afforded ample time for the levy and sale under execution, the allegation of which fact alone has bearing upon the probable date of the transaction. While, under the Code, pleadings are to be liberally construed as to form (Code, § 519), the common-law rule of strict construction as to matters of substance still obtains, Moores v. Lehman, 52 N. Y. Supr. Ct. 283; Clark v. Dillon, 97 N. Y. 370, and it must be held that the facts here set forth fail to disclose a cause of action against these defendants. Nor is the defect in the complaint supplied by the allegations in the answer. The only allegation in regard to a judgment against the corporation is that:

“ This defendant is informed that Herbert A. Lee, one of the officers of the said Metropolitan Board of Retail Trade, did enter judgment against the said corporation, and that the same was entered upon an acceptance given at the meeting of the trustees of the board at which this defendant attended. But, upon information and belief, this defendant alleges that said judgment was for an honest debt; that this defendant has no knowledge or information sufficient to form a belief as to whether it was entered at the time and in the manner set forth in the complaint.”

Certainly, this does not constitute an admission that the particular judgment which forms the basis of plaintiff’s action was entered during the period of defendants’ administration as officers. There follows a denial that Lee’s judgment “ was a fraudulent scheme gotten up by the officers and agents of the corporation,” but a denial of a fact admitted from the complaint does not supply the omission. Forker v. Brown, supra.

Upon some further grounds, it would appear that this complaint must be held insufficient, but the foregoing reasons, as stated, render a longer discussion unnecessary.

Judgment affirmed, with costs.

All concur.


text:
    Worthington D. Romaine, Resp’t, v. Beacon Lithographic Company, App’lt.

      (New York Common Pleas, General Term,

      Filed June 3, 1895.)

    Contracts — Modification .
    A party who agrees to modify the consideration of an executory contract and carries it out as modified, cannot afterwards rescind the modified, and rest upon the original, agreement.
    Appeal from a judgment, entered in favor of plaintiff.
    Campbell, Ford & Hance (Henry K Davis, of counsel), for app’lt; Alfred C. Coursen, for resp’t.
   Bookstaver, J.

— The parties entered into an agreement, the material parts of which are as follows :

“ That for and in consideration of the sum of $40 to be paid weekly by said Beacon Lithographic Company unto said W. D. Romaine, said payment being made as part payment, and on account of commissson figured on within contract, W. D. Romaine agrees to act as New York City agent for said Beacon Lithographie Company, etc.; * * * also, that the profit on all business procured shall be equally divided, and the amount over and above the weekly payment of $40 to said W. D. Romaine shall be paid on the 1st day of March and the 1st day of September of each-year.”

The proportion of profits to be paid Romaine for the different classes of work was fixed by the agreement, and provision was made for traveling, office, and other expenses. This agreement was-made July 10, 1893, to bear date September 22, 1893, and to run for one year from that date, and from year to year thereafter, terminable by either party at the end of any year on one month’s notice. The plaintiff received $40 per week from defendant down to April 20, 1894. It appears that the business brought by plaintiff did not come up to the defendant’s expectations, and about March 5th defendant wrote him that it would have to reduce his weekly payments. On April 16th he wrote defendant: “ I want to see Beacon succeed if possible; and I will say this, that you can send me any amount that you can on account of contract over $34 per week that you feel disposed to make.” And thereafter, from April 20, 1894, to September 21st, when the contract was terminated, defendant paid him $34 per week, for which he gave his receipt. He now sues for the balance, $6 per week for twenty-two weeks, and for the sum of $11.91, payable under the contract for expenses. We can conceive of no rule of law by which plaintiff can uphold this contention. It is claimed that the agreement to accept the lesser sum was void for want of consideration. While we do not think this is so, he being directly interested in the success of the defendant, and desirous of continuing in its employ from year to year, still that does not affect the question. While the agreement remained executory, assuming the interpretation of the original agreement contended for by plaintiff to be correct, he had a right to demand the full amount of the weekly payments. He, however, had a right to waive consideration, and carry out the modified .agreement; and if be did this, executing it, he cannot revoke it, and sue for the larger sum. This is true even of a paroi modification of a sealed contract. McKenzie v. Harrison, 120 N. Y. 260; 30 St. Rep. 934; McCreery v. Day, 119 N. Y. 1; 28 St. Rep. 597; Tallman v. Earle, 37 St. Rep. 271. The justice erred in excluding evidence of the modification of the agreement. He admitted plaintiff’s letter to defendant, assenting to the reduction of the weekly payments, but excluded all testimony relative to the transaction. We think this evidence -was admissible under a general denial. Marsh v. Dodge, 66 N. Y. 533.

The judgment must therefore be reversed, and a new trial ordered, with costs to appellant to abide the event.

All concur.


author: Giegerich, J.

text:
    Maltby K. Pelletreau, as Receiver, etc., Resp’t. v. United States Electrical Light and Power Company, App’lt.

      (New York Common Pleas, General Term,

      Filed June 3, 1895,)

    Statute of frauds — Sale.
    A contract to make an article, which calls for the skill and labor of the artist and, .when produced, is wholly unfit for sale as a general article of merchandise, being adapted only for use by the person who ordered it, is a contract for work and labor, not of sale, and is not within the statute of frauds, and hence is not required to be in writing.
    Appeal from a judgment, rendered in favor of plaintiff.

      Charles Snow Kellogg, for app’lt; Howard A. Sperry, for resp’t.
   Giegerich, J.

— The plaintiff, at the time of the transactions hereafter referred to, was a lithographer. After having made two or three sketches or engravings for a letter head containing the name and address of the defendant, and after furnishing it with a proof and an estimate, the latter, through it authorized agent, orally gave an order to the plaintiff to lithograph 15,000 letter heads on United States linen paper for’ $57; he to furnish the paper and to do the lithographing on it. There was a direct conflict upon the trial as to the exact terms of the contract. On the one hand, the testimony adduced on plaintiff’s part tended to show that plaintiff did not guaranty satisfaction, but merely stated that he would do the work in a satisfactory manner, and the letter heads were not to be of the exact quality and size of the paper as the sample furnished by the defendant; while, on the other, the testimony for the defendant tended to show that the letter beads were to be the exact quality and size of paper as the sample furnished by the defendant, and that the plaintiff would do the job in a manner satisfactory to the defendant’s assistant secretary and treasurer. The conflict of testimony, we assume from the judgment rendered, was resolved in plaintiff’s favor; and hence we conclude that it was not the object of the contract to gratify taste, serve personal convenience, or satisfy individual preference. Consequently, the cases-cited by appellant’s counsel are not in point upon the question of performance of the terms of the contract as they were found to be by the trial justice.

After the’ delivery of the letter headings to the defendant, the latter rejected the same, and informed the plaintiff thereof by letter, wherein it was stated:

“ The 15,000 letter headings which you delivered as per your estimate of March 20, 1894, we consider as totally unfit for any use excepting for communications between our stations, and for such purpose they would be worth to us about one-half of your price for same, or $29.50 for the entire lot. Let us hear from you at once as to whether this is acceptable, as otherwise the goods are awaiting your order.”

The plaintiff did not accept the said offer, and the question whether there was a performance of the contract was litigated upon this point, which, we assume from the judgment, was also determined by the trial justice in favor of the plaintiff; and we see no reason for disturbing the conclusion upon the facts, in the absence of the elements which are requisite to review the same. Lynes v. Hickey, 4 Misc. Rep. 522; 54 St. Rep. 120.

Counsel for appellant insists that, though the contract was performed by plaintiff, still it was void under the statute of frauds. The evidence, as disclosed by the justice’s return, clearly shows.' that the letter headings lithographed by the plaintiff were designed exclusively for use in the defendant’s business, and, upon defendant’s own showing, were manifestly not adaptable to any other purpose. The contract was therefore one for work and labor, not of sale, and was not within the statute of frauds: and hence was not required to be in writing. Hinds v. Kellogg, 37 St. Rep. 356; affirmed, 133 N. Y. 536; Manufacturing Co. v. Hoffman, 3 Daly, 505.

The case of Shrimpton v. Dworsky, 2 Misc. Rep. 123; 49 St. Rep. 129, cited by appellant’s counsel, is clearly distinguishable from the one before us. There the complaint alleged that the-plaintiff “ sold to the defendant goods, viz. fifty gross needle book,” and the evidence clearly established the fact that the needles were the thing contracted to be sold, and, although they were delivered in envelopes, these were in stock, and nothing remained but to-print on them, “Empire Stationery and Novelty House, New York; ” while in the present case the thing contracted for was the-skill and labor of the lithographer to lithograph letter headings which were not in stock, but had to be fabricated by him, and which, when produced, were, as shown by defendant’s proofs,. wholly unfit for sale as a general article of merchandise, being adapted only for use by the company which ordered them.

As we are satisfied from a careful consideration of the evidence that the decision of the justice was in all respects correct, the judgment should be affirmed, with costs.


text:
    Richard H. Casey, App’lt, v. Walter H. Stewart et al., Impleaded, etc., Resp’ts.

      (New York Common Pleas, General Term,

      Filed June 3, 1895)

    1. Bills and notes — Presumption.
    The payee of a note is presumptively the first indorser thereon, and, to rebut this presumption, it must appear that the indorsement by the other parties was made to give the maker credit with the payee.
    2. Same.
    The evidence was held sufficient to require the submission of the question as to whether the indorsements were made for the purpose of giving the maker credit with the plaintiff.
    Appeal from a judgment, dismissing the complaint as against some of the defendants.

      Frederic R. Coudert, for app’lt; James Flynn, for resp’ts.
   Giegerich, J.

— This action was brought against the Cosmopolitan Club, Walter H. Stewart, Frederick G. Payne, and others, upon the following promissory note :

“ 500.00. New York, May 1st, 1893.

“ Eight months from date we promise to pay to the order of R. H. Casey, five hundred dollars, at No. 16 Wt. 30th St Value received. With interest.

“ The Cosmopolitan Club,

“ C. T. Lunt, Pt.”

Indorsements:

“ C. T. Lunt, . Pierce Noel,

“ Auguste Noele, Jr., I. T. Turrison,

“ Russell H. Henderson, C. H. Bussenschutt,

“ W. H. Stewart, S. B. Battey,

“E. B. Alvord, Frederick Gillies Payne,

Trustees of the Cosmopolitan Club.

“R. H. Casey.”

The complaint was dismissed when the plaintiff rested upon the trial, and exception was duly taken. The theory of the dismissal was that the note upon its face imported that the plaintiff, as payee, was presumptively to become the first indorser, and that the defendants were to be subsequent indorsers, Bornstein v. Kauffman, 4 Misc. Rep. 83 ; 53 St. Rep. 69, and citations; and that such presumption must be rebutted by proof that the indorsement was made to give the maker credit with the payee, Bornstein v. Kauffman, supra, and that such proof was wanting. We cannot concur in this view of the significance of the evidence. The facts material'to the point in hand are as follows: The plaintiff, Casey, made a contract with a certain club called the “ Renwick,” to make certain alterations and improvements in a building which that club was to occupy. The last clause of the contract is as follows:

It is agreed that the terms on the within contract shall be five hundred dollars cash during progress of work, and the balance in three notes of five hundred dollars each, of four, eight and twelve months, respectively, bearing interest at the rate of six per cent, per annum, and bearing the indorsements of the governing board of the club.”

This first contract was sent to “ Charles T. Lunt, Esq., president, and others, composing the board of governors, of the Renwick Club, 40 W. 22d Street, City,” in the form of a bid for the proposed work, and the last clause of the contract, quoted above, presumably intended notes made by the Renwick Club, and indorsed by its governing board. Instead of such notes, however, the plaintiff accepted notes, one of which is sued upon, made by the Cosmopolitan Club, and indorsed by its trustees. The reason for the substitution appears to be the fact that the Cosmopolitan Club subsequently occupied the same premises as a clubhouse, and was evidently more or less closely related to its predecessor in possession, as several of the governing board or trustees, including the defendant’s Stewart and Payne, were the same in both, and the defendant Lunt was president of both. Lunt testified that:

“ The explanation in regard to the terms of this contract was made at a time previous to the meeting at which the note was indorsed. * * "*" The matter was discussed in the governing board over and over again, and the two people were present (meaning the defendant’s Stewart and Payne), and the whole board was present.”

We are convinced that there was enough evidence to require a submission to the jury of the questions whether the indorsements were made for the purpose of giving the Cosmopolitan Olub credit with the plaintiff Casey. The evidence in this case is similar in many respects to that in Gates v. Williams, 9 Misc. Rep. 176; 60 St. Rep. 636, in which we held that the inindorsement was, in legal effect, a promise to pay the amount of the note if the makers failed to pay the same at maturity. The dismissal of the complaint was error. For these reasons the judgment should be reversed, and a new trial ordered, with costs to abide the event.

All concur.


text:
    Augustus S. Kidder, App’lt, v. Morris Jones, Resp’t.

      (New York Common Pleas, General Term,

      Filed June 3, 1895.)

    Appeal — Inconsistent judgment.
    Where, in an action for injuries caused by a collision between the plaintiff’s and defendant’s wagons, the latter interposes a counterclaim for damages from the same collision, and the court finds that the accident was caused by plaintiff’s negligence, he cannot complain that-defendant’s counterclaim was also disallowed.

      Appeal from a judgment for defendant.

      Frederick L. Gilbert, for app’lt; Herman Joseph, for resp’t.
   Bischoff, J.

— By reason of a collision between their vehicles, both parties to this action claim damages; the plaintiff for sums expended in repairs to his property, the defendant for the value of a diamond lost from a finger ring. The justice below gave judgment for defendant upon plaintiff’s cause of action, disallowing the counterclaim, and the plaintiff appeals. Ample evidence of the plaintiff’s negligence is afforded by the testimony of defendant’s witnesses, in fact it thereby appears that the farmer’s carelessness alone rendered the accident unaviodable, and upon the simple conflict presented by the contradiction of this testimony the finding of the justice concludes. But the plaintiff contends that the judgment is inconsistent, in that no damages were awarded upon his counterclaim. True, the collision was due solely to plaintiff’s negligence, if defendant’s witnesses are to be believed, and the j udgment establishes the fact that credit was given to their testimony; but, while the justice might with propriety have rendered judgment for substantial damages in defendant’s favor, there was no inconsistency, as the term is used, in his not doing so. It was, at most, an omission of which the defendant might have complained, but the plaintiff’s negligence being established, he was not to assail the judgment because insufficiently unfavorable. Moreover, the evidence as to the defendant’s loss, although uncontradicted, might well have been discredited as the uncorroborated testimony of a party in interest, Frankel v. Wolf, 7 Misc. Rep. 190; 57 St. Rep. 536; Wilson v. Wyandance S. Improvement Co., 4 Misc. Rep. 605; 54 St. Rep. 242; Davey v. Lohrmann, 48 St. Rep. 716, notwithstanding that the weight of evidence as to the circumstances surrounding the accident was against the plaintiff’s contention. Defendant offered only his own testimony as to the ■ loss of the diamond, and it appeared that its absence was not discovered until half an hour after the collision; therefore, the justice might not have been satisfied that the accident in question was the proximate cause of the loss.

Judgment affirmed, with costs.

All concur.


text:
    Max J. Roth, Resp’t, v. Metropolitan Street Railway Company, App’lt.

      (New York Common Pleas, General Term,

      Filed June 27, 1895.)

    Negligence — Contmbutoby.
    Where, in an action to recover damages sustained through a collision with a cable car, the performance of the legal duty to observe the condition of the tracks was made impossible by the plaintiff's own act, he is guilty of contributory negligence.
    Appeal from a judgment for plaintiff.

      Henry A. Robinson, for app’lt; J. B. Sabine, for resp’t.
   Bischoff, J.

— This action was brought to recover for injuries-, to plaintiff’s wagon, sustained when in collision with one of the defendant’s cable cars. The inevitable inference to be drawn from the plaintiff’s evidence is that his servant, in charge of the wagon, was chargeable with contributory negligence; hence the recovery below is not tobe sustained. From the testimony of the plaintiff’s driver it appears that after crossing the defendant’s track, at the outer edge of a curve, he drew up his wagon by the side of the-track in order that two cars, coming from opposite directions, might pass him, it being his intention to recross the tracks. His wagon was loaded with trunks, piled in such a manner that his view on either side was cut off, and he was able only to observe-what passed in front. This being his situation, he listened for the sound of a gong, the signal of warning given from the defendant’s cars when deemed requisite, and, hearing no sound, he-suddenly turned his horse upon the track, and the wagon was collided with by a car approaching from the rear. There was no-evidence that the defendant’s servants were required by law to continuously sound the gong when the track was unobstructed, and it was the duty of the plaintiff’s driver to look for approaching danger before attempting to cross the tracks. ' In this case negligence was predicable of the manner in which the wagon was loaded, since thereby performance of the legal duty to observe the condition of the tracks was made impossible by the act of the party upon whom the duty was imposed.

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

All concur.


text:
    James Lamb, Resp’t, v. John O’Reilly, App’lt.

      (New York Common Pleas, General Term,

      Filed June 27, 1895.)

      1. Conversion — Pledged property.
    A pledgee, who exercises dominion over pledged property inconsistent with his special right of possession, converts it.
    2. Same — Damages.
    In such case, if the date of the conversion, or the condition of the chattels at that time, is undisclosed, the damage is properly to be proven by showing the value at the date when possession was given to the pledgee.
    Appeal from a judgment for plaintiff.

      James A. Donegan, for app’lt; Jacob Levy, for resp’t.
   Bischoff, J.

— Plaintiff brought this action for the conversion- * of a wagon, wagon robe, and harness, and recovered a judgment for $40. Defendant claimed to hold the chattels as security for the repayment of a loan of $30 made to defendant’s son; the latter being in charge of the plaintiff’s livery stable business, and having delivered the property in question to the defendant. This delivery was made in June, 1894, return demanded by plaintiff m September, 1894, and the action brought in February, 1895, the chattels being still in the possession of the defendant. It was-shown on behalf of the plaintiff that the wagon, when seen within-a week of the trial, was worth no more than $5, by reason of its condition; and the evidence supports a finding that defendant, by the use to which he put the wagon, exercised dominion over it inconsistent with the special right of possession existing by virtue of the lien. Thus there was a conversion at the date when such dominion was exercised, irrespective of the date of demand. 26 Am. & Eng. Enc. Law, pp. 741, 742, and cases cited. And it being undisclosed as to the date of such conversion, or the condition of the chattels at that time, the damage was properly to be proven by the showing the value at the date when possession was given to the defendant. Id. pp. 827, 828. From the proof a fair inference is to be drawn that this value was between $70 and $75, and we may support the judgment upon the assumption that defendant’s counterclaim for $30 was allowed. The • weight of the evidence is not found to be against the respondent.

Judgment affirmed, with costs.

All concur.


author: Per Curiam.

text:
    The People, App’lt, v. Bankers’ Loan and Investment Company, Resp’t.

      (New York Common Pleas, General Term,

      Filed June 27, 1895.)

    Corporation — Directors—Valué oe stock.
    The board of directors of a corporation may charge corporate loss against the stock of the company’s shareholders, in establishing the book value of shares.
    Appeal from an order, adjudging that the board of directors had power to fix the book value of its stock, and discharging a temporary receiver.

      Theodore E. Hancock, Atty. Gen., and Strayley, Hasbrouck & Schloeder, for the People; Wheeler & Cortis, and John C. Ten Eyck, for resp’t.
   Per Curiam.

— The defendant company having suffered a loss of $150,000, the board of directors charged this loss, pro rata, against the stock of the company’s shareholders, in establishing the book value of shares, and the single question submitted for decision is whether the board had authority for the act. Unquestionably, a board of directors has no power to reduce the capital stock of a corporation, as fixed by its constitution. Railroad Co., v. Schuyler, 34 N. Y. 30; Sutherland v. Olcott, 95 id. 93 ; Railway Co., v. Allerton, 18 Wall. 233, 234. If the defendant may be said to have a capital stock, its amount is not ascertained, nor is it reduced otherwise than to meet losses sustained by the company in the prosecution of its business. The board of directors has the management of the common concerns of the company (article 4 of the constitution). Tayl. Oorp. §§ 180, 683. And we are of the opinion that to charge the losses of the cotiy pony against its stock was an ordinary incident of its administration. People v. Lowe, 117 N. Y. 175 ; 27 St. Rep. 138. By article 8 of defendant’s constitution, the book value of a share of stock is ascertained by charging losses against shares. This is precisely what was done, and we conclude it to be clearly within the competency of the board. Tayl. Corp., supra.

The order is affirmed, with costs.


text:
    Clifford L. Miller et al., Resp’ts, v. Pietro Altieri et al., App’lts.

      (New York Common Pleas, General Term,

      Filed June 27, 1895.)

    Appeal — Finding .
    A finding by a referee that a counterclaim, is not sustained by the proof cannot be reviewed on an exception to his conclusion of law, or on a general exception to the group of findings embracing it, where some of these findings are sufficiently supported by the evidence.
    Appeal from a judgment for plaintiff.

      Herman Frank, for app’lt; Miller & Miller, for resp’t.
   Per Curiam.

— Upon an appeal from a judgment on the report of a referee, we are solicited to review both the findings of fact and the conclusions of law. Had the referee filed a decision pursuant to chapter 688, Laws 1894,. an exception to the decision would have brought before us all questions of fact and of law ; but, since he has chosen to state separately the facts found and the conclusions of law, in the revision of the judgment we are controlled by the rules of practice applicable to the actual disposition of the case. "

Upon the record np error of law in the conclusions of the referee is presented for review, because those conclusions are justiified by the findings of fact, Daniels v. Smith, 29 N. E. 1098, and because no findings js utterly without evidence, Halpin v. Phenix Insurance Co., 118 N. Y. 165; 28 St. Rep. 788; Code, § 993, as amended in 1894; opinion in Raabe v. Squier, 5 Misc. Rep. 220; 54 St. Rep. 824. Assuming that the amendment of section 993 of the Code by the act of 1894 opens the facts to review without specific requests (Raabe v. Squier, supra), still we are of opinion, upon the evidence, that the proof amply upholds the findings.

Appellants’ real ground of complaint is the rejection of their counterclaim. But how are we to review the ruling of the referee? The finding is that the counterclaim was not sustained by proof. The exception to the conclusions of law does not touch the counterclaim, because the conclusions have no reference to the counterclaim. Neither does the general exception to the group of findings of fact challenge the rejection of the counterclaim, since others of those findings are sufficiently supported by the evidence. Ward v. Craig, 87 N. Y. 550, 557; Daniels v. Smith, 29 N. E. 1098. Supposing, however, the validity of the finding as to the counterclaim be a question for review, we are content with the conclusion of the referee. The counterclaim proceeds on the contention that the contract bound the plaintiffs to supply all the material, but it does not so read. In any event, we see no reason for reversing the finding against the counterclaim. Davis v. Allen, 3 N. Y. 168. Upon a critical examination of the exceptions as to evidence, we do not perceive any error of prejudice to the appellants.

Judgment affirmed, with costs.