author: Daniels, J.

text:
    The People, Resp’ts, v. Charles F. Meyers, App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 3, 1887.)

    1. Criminal trial—Evidence—Confessions made in the presence of accused—When admissible.
    Confessions made by the injured person connecting the accused with the crime, are admissible as against the accused when made in his presence and when he is subjected to no restraint, but is free to deny the assertion, if he choose.

      2. Same—Conflicting evidence—Weight of evidence.
    Where the evidence is conflicting, the case is one for the jury to determine the weight and effect of the evidence, and their determination is to be regarded as final. Though the jury might have found differently, yet this is not such an absence of testimony as would warrant the court in holding that the verdict was against the weight of evidence.
    3. Same—When exception is of no avail—When unnecessary—Code Grim. Pro., § 527—Technical errors disregarded—§ 542.
    Though immaterial, irrelevant and incompetent evidence be received, the exception taken will be unavailable if the same evidence has previously been substantially received during the trial without exception. Under section 527 of the Code of Criminal Procedure, an exception is not indispensably necessary, if the evidence can be seen to be of any material detriment. Mere technical errors, not affecting the substantial right, are required to be disregarded by sec. 542, Code Criminal Procedure.
    4. Same—Abortion—Penal Code §294—Question of fact—Evidence of an accomplice—Code Crim. Pro., § 399—Penal Code, § 295.
    It is for the jury to determine whether the abortion is or is not performed to preserve the life of the woman, or whether or not the instrument is introduced either for the preservation of the woman’s life or that of the child. The testimony of the woman on the trial of the one who performs the abortion, is not that of an accomplice, which under section 899 of Code Criminal Procedure needs corroboration. The woman is guilty under Penal Code, section 294, of a different crime from that of which the one who performs the abortion is guilty, under section 295.
    Appeal from a judgment of the court of general sessions of the county of New York, convicting the defendant of the crime of procuring an abortion, and from an order denying a motion for a new trial.

      A. B. Dyett, for app’lt; McKenzie Semple, assistant district attorney, for resp’t.
   Daniels, J.

The indictment charged the defendant with an offense under section 294 of the Penal Code, and evideuce was given tending to prove the truth of this charge. That of the complaining witness was direct and positive, and that the offense was committed at his instance. He denied the charge and his evidence as a witness upon the trial directly supported this denial. The evidence of the complaining witness was contradicted in material respects by a statement made by her before the coroner at a period in her illness when it was supposed it would prove fatal. But the testimony she gave upon the trial was supported by that which was obtained from Dr. Gray, who was procured by the defendant to attend to the case, after he had himself become alarmed by its symptoms. A conversation is stated to have taken place between the defendant and this witness, in which the latter informed him of the dangerous condition of the complaining witness, to which the defendant replied, that if the case got out it would cause a great deal of scandal; that-he himself had done nothing wrong, and if the physician conversing with him would keep it quiet he would make it all right with him, and said something about taking to flight, but which he was not at liberty to do on account of some business connected with the buying or selling of a house. It appeared further, that after the defendant was arrested he was taken into the presence of the complaining witness, and that she then said: “This is the man who performed the operation on me which caused the abortion.”, I think she said “miscarriage.” He said: “I have been a friend of yours.” She said: “Don’t come near me; put this man out; I don’t want to see him.” I had him removed from the room in consequence; that is all that took place. Upon the cross-examination of the coroner, he added that after the defendant remarked, “I have been a friend of yours,” she would not allow him to speak or say anything, and insisted upon his being taken away. This evidence was received against the defendant for the reason that he made no denial of the charge brought against him by the woman, and although she objected to his speaking, he could as well have denied it, if he had been disposed to do so, as to have made the remark which he did. The opportunity to deny was afforded him, notwithstanding the summary manner in which the conversation was brought to a close; and that such evidence maybe received upon the trial, of an indictment, although the defendant at the time of the conversation may be under arrest, has been held in Com. v. Brown (121 Mass., 69), and in People v. Kelley (55 N. Y., 565); and the cases of Com v. Cuffee (108 Mass., 285), and Com v. Crocker (id., 464), proceeded upon the same principle. And it is not affected by anything said in People v. Willett (92 N. Y., 29). For the charge there made was in the course of a judicial proceeding, which the defendant was not at liberty to interpose and correct, while here he was subjected to no restraint whatever preventing him from denying the truth of the statement made by the woman, if he had been disposed so to do. The evidence, it is true, was not of a forcible character, but it was such as the jury were at liberty to consider. It further appeared, after the complaining witness had obtained rooms where she could remain during the prospective period of her disability, succeeding the performance of the operation, that the defendant on the same evening called to see her and attend her as her physician. These were facts tending to corroborate the testimony of the woman herself, and to connect the defendant with the commission of the offense, as well as to prove that it had in fact been committed. As to this latter portion of the case, however, the testimony of Dr. Gray in his description of the condition of the woman also had a direct tendency to show that she had been operated upon as stated by her. The case being presented for the people in this way entitled the jury to consider it, although the statements of the complaining witness were contradicted by the witness, Anna Adams, the defendant himself, and the witness O’Malley. Other testimony was also given on behalf of the defendant, tending to develop the probability at least, in favor of the truth of his denial of the accusation. But with all this evidence, including the inconsistencies of the statements of the complaining witness, the case was still one proper to be submitted to the jury, and it was for them to determine its weight and effect, having the witness, before them from whom the evidence was obtained; and their determination must now be regarded as final, even though from the case as it appears they might have found in favor of the defendant. There was not such an absence of testimony as would warrant the court in holding that the verdict was against the weight of evidence.

During the trial the complaining witness was allowed to repeat what Annie Soper said to her when she was in search of the rooms to which she stated the defendant had directed her. The evidence was received under the objection of the defendant, that it was immaterial, irrelevant and incompetent, and an exception was taken to the ruling of the court allowing the statement to be given. The evidence was received for the reason that the'complaining witness testified that the defendant directed her to go to the building occupied by Annie Soper to obtain rooms, but this direction did not necessarily subject him to any responsibility for what Anna Soper said when she was found by the complaining witness. But the exception which was taken in the case will still be of no service to the defendant, for the same evidence has previously been substantially received during the trial without any objection whatever on the part of the defendant. The complaining witness there stated that the defendant had given her a card to ask for Miss Soper, and that she was shown to her room. She then stated, ‘ ‘ I said Dr. Meyers sent me here,” and she said “ Yes, I expected you, and he said I should have a room for you.” After that the doctor came about nine o’clock that night.

The complaining witness further stated that the defendant said to her, “ask for Miss Soper, she has been through the second operation, and she will help you all through, she knows all about it.” The evidence admitted under the objection and constituting a repetition of this statement was this, “I went up-stairs and she cometo the door and I said you don’t know me, but I am Mrs. Martin, Dr. Myers has spoken of you,” and she said, “Dr. Myers has told me that he has a very nice room for you here, and has told you everything,” and I said, yes. “Have you had an examination?” and I said, “yes, but I feel very badly and cannot get back to-night,” and she said, “I will show you the room.” While the last statement was more elaborated than the first, it was still substantially contained in the evidence given by the witness upon the same subject without objection. But under section 527 of the Code of CrimPro. an exception was not indispensably necessary, if the evidence can be seen to be of any material detriment to the defendant. But it cannot be, for it added nothing whatever to the weight of the evidence of the complaining witness. She had before stated that the operation had been performed upon her by the defendant, and her testimony stating that she was directed by him where she could find Miss Soper, and the relation of the conversation which took place between them, added nothing whatever, as it was wholly dependent upon the testimony of the complaining witness, and her evidence concerning what transpired between herself and defendant. In fact, her testimony was weakened rather than strengthened by this evidence, for the interview was directly and positively denied by the witness, Anna Soper, in her examination upon the trial. There is no reason accordingly from which it can be supposed that the defendant was injured in the least by this testimony, even if it should not have been received by the court, and mere technical errors not affecting the substantial rights of the defendant are required to be disregarded by section 542 of the Code of Grim. Pro.

It was also urged on the trial that there was no evidence that the abortion was not necessary to preserve the life of the woman, but while there was no positive statement that this was not the fact, the import and tendency of her evidence was that she was in no danger, and that the instrument was not introduced either for the preservation of her life or that of the child.

As the evidence was given, it was for the jury to say whether this might or might not have been the fact. The defendant himself testified that the child of which the woman was pregnant was previously in a deceased condition.

This point was submitted to the jury under the charge of the court, as it was alleged in the indictment, and they were informed that it was incumbent upon the prosecution to prove that the abortion was not procured to save the life of the woman or of the child. The court also held that the defendant could not be convicted without corroborative evidence beyond that of the complaining witness, to connect him with the connection of the crime according to the requirement of section 399 of the Code of Criminal Procedure. And that there was corroborative evidence in the case of this discription has already been stated. But in this class of cases, inasmuch as it has been made one offense to use any instrument, or other means to procure an abortion, and another offense on the part of the pregnant woman to submit to such use, this corroborative evidence does not appear to have been required, for she was not an accomplice in the commission of the offense charged against the defendant, as that offense has been decided in section 294 of the Penal Code, but was herself guilty of another crime described in section 295 of that Code. And for that reason it was considered in People v. Vedder (98 N. Y., 630), that no corroboration of the complaining witness was required by this section of the Code of Criminal Procedure. The authorities were there considered bearing upon the point, and it is now unnecessary to attempt any elaboration of their consideration.

The court was also requested to charge the jury that if they believe Mrs. Martin wilfully swore falsely, either in her statement before the coroner, or at this trial, the jury have the right to disregard her testimony, and should do so unless she is corroborated in her testimony as to the commission of the offense, and the judge presiding at the trial, responded: “I think that request is substantially correct, except that it is assumed that there was an oath before the coroner, when such is not the case. And the fact was that the statement taken down by the coroner was not made under oath. So far as it disagreed with her evidence upon the trial, she explained that her condition at the time when the statement was made, was such that she was not able clearly to understand, or remember, what had then transpired. And this may very well have been the truth inasmuch as the attendant physician considered her then to be in such a dangerous condition as would probably soon terminate in her own decease. There was no concession on the part of the prosecuting witness, that she had wilfully sworn falsely on the trial, but she endeavored to reconcile the evidence given by her on the trial, and explain the discrepancies between it and the statements made to the coroner, by' a reference to her condition and feelings at the time when the latter were obtained. It is true that she was contradicted in her evidence by the defendant himself as well- as the witness Soper and O’Malloy, and, if they were correct in what they stated the defendant was entitle*:! to and certainly would have obtained an acquittal. He could be convicted only by the jury discrediting his own testimony, and as his conviction did take place, that must be considered to have been unreliable by the jury. But without reference to the condition of the testimony, the charge was as favorable to the defendant in answer to this request, as he had the right to expect it to be under the law. The response of the court was that the request was substantially correct, and that was as far under any of the authorities as the judge was justified in declaring this rule of evidence. People v. Evans, 40 N. Y., 2; People v. Petmecky, 2 N. Y. Crim. Rep, 450; Deering v. Metcalf, 74 N. Y., 501.

In this last case, the authorities were all examined and considered by the court, and the rule was not carried further than it was given to the jury in the charge which was made.

The case upon the evidence was one for the jury. ' It is quite probable notwithstanding the positive denials by the defendant, that he did make use of the instrument, and in that manner bring about this premature birth. This probability was decidedly maintained by the testimony given by Dr. Gray, and so it was in a slighter degree by that obtained from the coroner. And while the jury might have relieved the defendant from the charge upon his own testimony and the evidence of the witnesses sworn in his behalf, they were still at liberty to reject his statement, and correct him as they did upon the testimony in the case. There is no legal ground on which the court can interfere and reverse this conviction.

Both the judgment and the order denying the new trial should be affirmed.

Van Brunt, P. J., concurs.

I concur in this but reluctantly inasmuch as the complainant witness was not only seriously contradicted, but inconsistent and contradicted herself on important subjects.

Brady, J.


source: Caselaw Access Project

author: Brady, J.

license: Public Domain

text:
    Leonard Lewisohn et al., Resp’ts, v. Alfred Apple et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed March 3, 1887.)

    1. Replevin— Code Civ. Pro., §§ 1736-1730 — Form of verdict and JUDGMENT.
    A verdict which substantially conforms to the requirements of the Code, sections 1736-1730, will be sufficient in form, and the same rule applies to the judgment.
    3. Same—On ground of fraud—Return of money received.
    The rule as to the restoration of property received when the contract is rescinded, does not apply to an action of this character.
    3. Fraudulent representations—Continuing force of the same.
    A statement once made as of a fact, which cannot vary or he varied, is continued from time to time, as long as the relations of the parties to which it refers are continued.
    Appeal from judgment on verdict.

      Joseph E. Newberger, for app’lt; Ira Leo Bamberger, for resp’t
   Brady, J.

The plaintiffs sought by this action of claim and delivery to repossess themselves of merchandise which they were induced to sell the defendant Apple by representations which he made to them falsely and with a fraudulent intent. Some of it was seized by the sheriff and some of it was eloigned and could not be found. The plaintiffs, upon the trial, abandoned a part of their alleged claim and confined their right of recovery to articles then specified. The defendants struggled against any recovery, and by counsel interposed many objections and took many exceptions. This is not, it is true, an unusual characteristic of weak defenses, but it nevertheless indicates infirmity, and generally with juries leads to injurious results. Here some, if not all, of those taken upon the trial are presented as fatal to the validity of thé judgment; but none of them are vigorous enough to accomplish that result. It is not designed in this opinion to take them up seriatim, but to consider those only demanding formal recognition.

The first on the appellant’s brief, is that the verdict should have been in the alternative under sections 1726, 1730 of the Code and the interpreting decisions in regard to them. The point is not well taken, however, for the reason that the verdict substantially conforms to these provisions and the judgment completely. The jury rendered a verdict in favor of the “plaintiffs for the full value of the goods not returned and assessing their value at the sum of $1,164.27.” This is a verdict in favor of the plaintiffs assessing the value of the merchandise at the sum named. The judgment is that the plaintiffs recover possession of the property seized and that not found, as already suggested, and that if possession cannot be delivered of the property not found, the plaintiffs recover the value of it as declared by the jury. The form might have been more felicitous, but the Substance has all the strength necessary, as will be seen on examination of the sections mentioned. See also Phillips v. Melville, 10 Hun, 211.

The second point is that the defendant Apple made no representations in July prior to purchases made in that month; but it appears that he did make representations in the June preceding and made no qualifications of them in July. It is sometimes difficult to characterize such niceties as this, although they are designated as ingenious, technical, hair-splitting, etc.; but it is quite clear that on principle the point can have no force in the effort to disturb a judgment relating to representations made in June.

There is no reason why the rule should be departed from that a statement once made as of a fact which cannot vary or be varied is continued from time to time as long as the relations of the parties to which it refers are continued. Here the_ statement was as to a sum of money put in as capital, which was untrue and known to be so when it was made, although it is true there were other and accompanying representations. The presumption is not in favor of innocence as to July, when, as to June, the guilt is established by which the fraud was perfected, and when fair dealing demanded that if any material change had occurred since the representations in June, it should be revealed. The purchaser is not bound to make any statement, He may decline and seek other vendors; but if he speaks, he must speak truly and honestly or take the consequences. There can be no other rule for transactions, and there never will be unless fraud be converted into an honest factor in the dealings between men.

The next point is that the plaintiffs could not avail themselves of the fraud and seek their goods without restoring what they received in money applicable to the account, but this is of no value, for the reason that no payment was made after the defendant Apple’s failure, and which conveyed to the plaintiffs the intelligence that the representations which had been made were false. They had not been paid for all the goods delivered, and the price of those which were not replevied, and more was still due to the plaintiffs. Is it possible that in order to get back their goods or their value they should restore any sum received on account of transactions, in which property had been delivered by them and used by the defendant Apple ? Of course not. No such rule prevails, springing from any relations of parties. There is a class of cases in which it is declared that where property in any form has been received upon a contract which it is sought to rescind, the plaintiff must yield up what he has taken. That is not this case. The plaintiffs received nothing but money, and that was in payment for the goods they delivered to the defendant Apple.

The other exceptions do not require particular examination.

Several of them relate to matters legitimately connected with the chain of evidence by which fraud is developed link by link until completed, although it sometimes seems as if the links were not in union, and therefore, the evidence forming them is not admissible. It is quite apparent that the trial was fairly conducted and the defendants were given all the rights and privileges to which they were entitled. Indeed, nearly ah the requests to charge, made by the defendants were granted, and the law of the case announced as liberally for them as it could be. Aside from all these considerations, it must be said that the verdict seems to be just beyond doubt.

The judgment should be affirmed, with costs.

Daniels, J., concurs.


text:
    James G. Johnson et al., App’lts, v. Joseph L. Haberstro, impl’d, etc., Resp’t.

      (Supreme Court, General Term, First Department,

      Filed March 3, 1887.)

    1. Guaranty—Agreement to pay the debt of another—Strict construction OP THE SAME.
    Where the guaranty is for the benefit of an individual who afterwards becomes a member of a partnership, the partnership cannot maintain an action against the guarantor on the agreement. The contract is one said to be in strictissimi juris.

    2. Pleading—Answer—Form of denial.
    A denial of .any knowledge or information sufficient to form a belief of any fact contained in the complaint which is not admitted in the answer, is sufficient. Following McGuinness v. The Mayor, 13 Weekly Dig., 522.
    Appeal from a judgment on the dismissal of the complaint.

      Arthur Farber, for app’lts; B. S. Farrington, for resp’t.
   Brady, J.

This action was brought to recover for goods sold to Victoria M. Young and upon a guaranty signed by the defendant Haberstro.

The guaranty is as follows:

“Buffalo, October 9, 1882.
“For and in consideration of the sum of one ($1) dollar to me in hand paid, the receipt whereof I hereby acknowledge, I hereby guaranty unto James G-. Johnson, of 600 Broadway, New York, the prompt payment of all bills of goods they may sell and deliver unto Mrs. Victoria M. Young, of 38 East Genessee street, Buffalo,. N. Y., said amount not to exceed the sum of four hundred ($400) dollars. These goods are sold on a credit of thirty days, and in case gf default on her part to meet the bills when due, I promise to pay same as soon as I receive notice to that effect.
“jos. l. haberstro:
“Witness: Ph. L. Habebstbo.”

The sales were made in the fall of 1883, and by the plaintiffs as a firm. The guaranty, it will be perceived at once, was for goods to be sold by the plaintiff Johnson, who at the time of its date was not in partnership, and having been thus given, the firm cannot maintain an action upon it for .goods sold by them. The defendant Haberstro had a right to prescribe the terms of his engagement, and now has the right to insist upon a strict compliance with them. His contract is one said to be in strictissimi juris. Even a guaranty to a member of a firm is not one upon which the firm can maintain an action for goods sold and delivered under it, if there be no evidence that the guarantor was advised that the goods were to be supplied by the firm. The question seems to be at rest in this state. Barns et al. v. Barrow, 61 N. Y., 39; Evansville Nat. Bank v. Kaufmann, 93 id., 273. Under these authorities it is clear that the plaintiffs could not succeed in charging the defendant. The issues at the trial involved and invoked this rule. The plaintiff’s counsel, it is true, insisted that the answer was defective and presented no material issue, containing neither a general nor a specific denial; but this was an erroneous view of .it. The answer is peculiar in form, perhaps inartistic, but when analyzed it is a denial of any knowledge or information sufficient to form a belief of any fact contained in the complaint which is not admitted in the answer, and is sufficient therefore under the decision of this court in McGuinness v. The Mayor (13 Weekly Dig., 522). This denial was followed by defenses stated which were utterly inconsistent with any intention or design to admit the validity of the claim—defenses which it is not necessary now to consider.

The plaintiffs’ case, as revealed, showed that they had no cause of action against the defendant Haberstro, and there was no other course to pursue than to dismiss the complaint. In such a case as this, if it were necessary to invoke the power, the court could conform the pleadings to the facts proved, in the proper administration of justice, the plaintiffs’ asserted rights resting upon an instrument which is controlled by well established rules.

The judgment should therefore be affirmed, with costs.

Daniels and Bartlett, JJ., concur.


text:
    John C. Halloran, App’lt, v. Frederick W. Bampton, et al., Respt’s.

      (Supreme Court, General Term, First Department,

      Filed March 3, 1887.)

    Master and servant—Duty of master—Negligence a question of fact.
    A master is bound to use all reasonable care, diligence and caution in providing for the safety of those in his employ, and furnishing for their use in his work safe, sound and suitable tools, implements, appliances and machinery in the prosecution thereof, and keeping the same in repair. Eollowing Banning v. Steinway, 101 N. Y., 547. Whether or not this rule of law has been regarded is a question of fact for the jury.
    Appeal from judgment dismissing complaint at circuit.

      Benjamin F. Dos Passos, for app’lt; T. L. Wellman for resp’ts.
   Brady, J.

The plaintiff, whilst engaged in the service of the defendants in slinging and hoisting boxes of tea to an upper floor of the defendants’ building through an open hatchway, was struck on the head by the falling of a heavy iron check weight, resulting from the breaking of the rope to which it was attached. The plaintiff proved by witnesses who were employees of the defendant, and who examined the rope immediately after the accident, that it was rotten, and it appeared that the rope had been in use for a year. The latter fact was conceded by the defendants’ witness whose duty it was to make an examination of the machine to which the rope was attached every Monday according to his own statement. The plaintiff also proved by one Robinson, and engineer and master mechanic, and who had had considerable experience with elevators, pulleys, ropes, etc., extending over a period of twelve years, that the pulley and stop-block attached thereto were improperly constructed and not safe to use, and that their relations to each other were such as to cause friction upon the rope and wear it away. He also said in answer to a question put for the purpose of developing his opinion, “In my judgment, as a man familiar with these machines, and with their construction and use, I consider that the stop-block, or the main thing which prevents the lever from getting back too far, is in a wrong position; I should remove it farther on the line so that the pulley would not bear against it.

Q. Do you consider it safe machinery ? A. I don’t. Q. As it was % A. I don’t know as it was; I am taking it the way I saw it. Q. It wore into the wood ? A. Yes, sir. Q. And the result would be to wear away the rope % A. Yes, sir.

It is true that on behalf of the defendants it was shown that the machinery used by them had been employed in their and in other houses for many years, and that a person designated by them was required to make an examination of it each Monday, and by the person so designated that he had made the examination. Indeed the witness testified that he had made the examination on the Monday preceding the accident, and that the rope was good and sound substantially. The examination, however, must have been very superficial for the reason that the rope was not good and not sound; it was rotten, and the ends where it had broken crumbled into powder when touched.

There are a great many cases bearing upon the question of the employer’s liability, and to several of them we have been referred by the respective counsel engaged in this controversy. In some of the cases cited by the respondent’s counsel it did not appear what was the cause of the particular accident by which the injury was done, and, therefore, there was an absence of the proof which was given in this case that it arose from rotten rope which was totally inadequate for the purpose for which it was designed.

It is not deemed necessary to consider these cases in detail or to distinguish them inasmuch as the recent case of Benzing v. Steinway (101 N. Y., 547,) states the rule as follows: “It has been repeatedly held that the risks of the service which a servant assumes in entering the employment of a master are those only which occur after the due-performance by the employer of those duties which the law enjoins upon him and that the negligence of the master, co-operating with that of a servant in producing injury to a co-servant, renders the master liable.” And again: ‘ ‘ The rule is unqualified that a master is bound to use all reasonable care, diligence and caution in providing for the safety of those in his employ, and furnishing for their use in his work safe, sound and suitable tools, implements, appliances and machinery in the prosecution thereof and keeping the same in repair. This is the master’s duty and he cannot exempt himself from liability for its omission by delegating its performance to another or having required work to be done by omitting precautions and inquiries as to the time and manner of its performance.” And again: “Ignorance by the master of defects in the instrumentalities used by his servants in performing his work is no defense to an action by the employee who has been injured ' by them when, by the exercise of proper care and inspection the master could have discovered and remedied the defects or avoided the danger incident therefrom.”

Whether the defendants had obeyed these mandates of the law in regard to their duties to the plaintiff as one of their employees, was a question of fact which should have been submitted to the jury. It would seem to' be impossible that the person selected for the purpose of making an examination of the machinery and the rope attached to it, the use of which resulted in the plaintiff’s injury, could have properly discharged his duty, or indeed that he could have inspected it at all as it should have been examined, considering the serious consequences which might and did ensue from the breaking of the rope. A general observation of it, perhaps a glance, might not disclose its infirmities, but such an examination as ought to have been made would undoubtedly have done so, and as there was a doubt created as to the discharge by the defendants of their obligation to their employees the question of their negligence should, as already suggested, have been submitted to the jury.

This case is distinguishable from those to which reference has been made by the fact that the accident is accounted for and is shown to have resulted from the use of a rope which was in its then condition totally unfit for the purpose.

The judgment should be reversed and new trial ordered, with costs to appellant to abide event.

Daniels and Bartlett, JJ., concur.


text:
    James A. Keene, Resp’t, v. Elmore A. Kent and ano., App’lts.

      (Supreme Court, General Term, First Department,

      Filed March 3, 1887.)

    Accounting—Action for—Unlawful contract.
    The proper criterion whether an action may he maintained, is whether the plaintiff has a cause of action independently of the unlawful contract, whether lie can maintain his action without depending upon it as invoking its enforcement. If this cannot he done, the action cannot be maintained. But the action can he maintained when the attempt is to enforce certain rights, etc., only remotely connected with the unlawful contract, and when dependence is in no measure placed upon the contract itself. See S. C. on former argument, 4 N. Y. State Rep., 431.
    Motion for the reargument of an appeal from an order directing the service of a bill of particulars.

      Henry S. Bennett, for resp’t; L. A. Gould, for app’lts.
   Daniels, J.

The application for a reargument has been made upon the ground that facts and authorities applicable to the disposition of the appeal were not accurately considered in the opinion which has been rendered. It is asserted that the defendants were no more than agents appointed to act under the agreement which was entered into, for the other parties, and that they having received the proceeds of the enterprise, although it was unlawfully entered into, cannot now legally withhold those proceeds in whole or in part from the plaintiff in this action, who was one of the ¡Dersons it was agreed should participate in their division. But the contract which the parties entered into and which was subscribed by these defendants under their firm name of E. A. Kent & Co., does not support this position, for these defendants, together with the plaintiff, and the other two firms making and executing the agreement, were all principals in the unlawful confederation and enterprise. They subscribed the agreement as such, and it was expressly provided in it that “any profit or loss arising from said purchases and sales to be divided pro rata among the subscribers hereto.” And this was not otherwise after-wards changed than by the firm of D. & U. G. Miller and Washington Butcher’s Sons, guaranteeing the firm of E. A. Kent & Co. against all loss on 10,000 tierces each arising from their transactions, and themselves assuming such loss. As to the profits, the original agreement remained unchanged, entitling the defendants to their pro rata share or amount of the same. While, therefore, they were the persons through whose action the sales and purchases were to be made, they were still to be for the benefit and advantage of themselves, as well as the other persons, including the plaintiff, who subscribed the original contract. And whatever advantáge should be derived from the performance of that part of the agreement which obligated the other parties to withhold from the market the lard owned or controlled by themselves, these defendants were entitled to share in such advantages. By the complaint it has also been alleged that the purchase and sale of the lard was for the joint account of the parties, and that the business was to be transacted and carried on under an agreement made between these parties, and no other agreement appears to have been entered into than this unlawful agreement to withhold from the market the lard owned by three of the parties for the obvious purpose of advancing the ¡Drice expected to be received from that in which the dealings were to be carried on. This agreement modified onlj so far as to relieve Kent & Company from liability for dosses, appears to have been the basis of the dealings of these parties. If it had not been, the least that could be expected would be that a denial of that fact would have been made, but it was not, by the plaintiff in his affidavit, even though he was not bound to reply to the part of the defendant’s answer presenting so much of the defense as depended upon the illegality of this contract. As the relations of these parties were in this manner presented, their object was to engage in the unlawful enterprise as principals for their joint profit, benefit and advantage. Arid that it was so understood, and intended to be a combination to withhold from the market the lard already owned by three- of the subscribers, including the plaintiff, and thereby to obtain an enhanced price for that which was to be dealt in by the parties through the manipulation of Kent & Company, is fully supported by the affidavits used upon the hearing of the motion. In that of Poole, one of the defendants, the agreement is stated to have created a pool to form a corner in lard. And it is further added that defendants “ used our best endeavors to corner the lard market which was the avowed object of said pool.” Henry C. Butcher, who was one of the subscribing firm of Butcher & Sons, stated that he “was a member of the lard pool with the plaintiff, and D. & ¡N". G. Miller, out of which arose the transactions in controversy herein.” And that “ said pool was entered into because each of the parties thereto had bought and had on hand large quantities of lard, and each desired to have the market cornered, or the price forced up, so that the same could be sold at a profit.” The statements of the defendant Kent were quite similar in their character, and so were those of Selah Young, Jr., who was connected with the business of Kent & Co., for he swore that he knew “that an agreement was formed among the plaintiff, Washington Butcher’s Sons and D. & TJ. G. Miller, to withdraw from the market about one hundred and six thousand tierces of lard which they had on hand, and to purchase about one hundred thousand tierces, in order to force up the price, or create a corner in the market. Said original agreement was in writing.” To the same effect, without being quite as precise, is the affidavit of James S. Wells; and it was upon these affidavits and the manner in which they were answered by the plaintiff, that it has been already stated that he substantially conceded the existence of this unlawful combination. He did not deny having entered into such a confederacy, but contented himself with denying other allegations contained in the opposing affidavits. His statements in this respect are that, “It is untrue that I went into the market and operated heavily against the pool, as alleged in said affidavit. * * * I am informed by Mr. Miller, and verily believe that Kent & Poole did pay him $62,500 in settlement of his share of the profits of the pool. I had a very much larger interest than Mr. Miller,” etc. * * * * “ It is also untrue that I did trade against the pool.” And if these denials do not practically concede that such a pool or confederation had been entered into, as is stated to have been the fact by the other affidavits, it is difficult to perceive how that could more effectually have been done without a broad and unqualified concession expressly of the fact. The fair construction and reasonable understanding of this affidavit is that the plaintiff designed to admit by the references made, and not denying the assertions establishing the unlawful confederacy, that such a combination had in fact been entered into between these parties. And it may, with propriety, be assumed that these other statements were not only true, but intended by him to have been passed over as the truth, from the manner in which his own affidavit was made.

In support of the application for the reargument, authorities have been copiously cited, which are relied upon as supporting the plaintiff’s right to maintain this action for an accounting concerning the transactions which took place under this agreement and the recovery by him of his share of their profits. But to maintain the action, as it now appears, it will be indispensable for the plaintiff not only to prove, but to rely upon the agreement as the foundation of his claim. Neither the transactions under the agreement, nor the accounts including them, have been in any manner settled or adjusted, but it is the object of the action to obtain such a settlement and adjustment. And before the plaintiff can advance a step in securing that object, he will be obliged to prove and establish the agreement under which the business was commenced and carried on and the moneys realized from which he démands his proportion.

In this respect this case differs entirely from those which have been brought to the attention of the court as supporting this application for neither of them, with perhaps one solitary exception, and that is the case of Wann v. Kelly (5 Fed. Rep., 584), supports the plaintiff’s position. The others relate to the adjustment and determination of transactions which had proceeded beyond the performance of the unlawful agreement itself, and which could well be maintained without reference to its stipulations, or requiring their enforcement by the interference and action of the courts. And where that may be done the defendant cannot defeat the right to relief by going back to the unlawful agreement itself. Such was the case of Berkshire v. Evans (4 Leigh., 233), where the action was for money received and misappropriated by the cashier of a bank unlawfully created. It was there held, and properly so too, that he could not justify his own wrong by availing himself of this antecedent circumstance. In Kiewert v. Rindskopf (46 Wis., 481), the defendant, who was connected with no unlawful transaction or contract, had received money to be paid over to, another person and had not paid it. And very much like that is the case of Merritt v. Millard (4 Keyes, 208). These, as well as all other similar cases, depend upon an entirely different principle from that which is applicable to this case, for the obligations the actions were brought to enforce were in no manner dependent upon the unlawful agreement or transactions, which were considered by the courts, but they arose upon subsequent dealings capable of being maintained without reference to the unlawful contracts or misconduct relied upon and drawn into controversy only by way of defense. The cases of Anderson v. Moncrieff (3 Desaussure Eq., 124), and Sharp v. Taylor (2 Phillip’s Chy., 801), are equally distinguishable from the present case. The object in each case was an accounting not required to be supported by proof of, or reference to, the unlawful agreement or transactions brought into the actions by the defendant. Where that may be done, there the rights of the parties have been considered as having passed beyond the taint of illegality. But such is not the nature of this controversy, for the right of the plaintiff to an accounting and recovery must depend upon the assertion, proof and maintenance of this unlawful contract. And where that is the character of the action, the case of Cook v. Sherman (20 Fed. Rep., 167), is a direct authority against the plaintiff, for it was there held that an illegal contract will not be enforced by the courts, but the parties will be left where they have voluntarily placed themselves. The criterion suggested'by the court as the proper one to follow, is the inquiry whether the plaintiff has a cause of action independently of the unlawful contract whether he can maintain his action without depending upon it or invoking its enforcement by the court. Id., 169, 110. Where that cannot be done, it is plain that the action cannot be maintained, for the courts will not aid or assist either party to an unlawful agreement by carrying it into effect against the other. This was considered also in Sykes v. Beadon (11 Ch. Div. L. R., 170), where the same principle was declared to be the law in this class of cases. And while this case was not approved in Smith v. Anderson (15 Ch. Div. L. R., 248), its soundness was not questioned so far'as it was devoted to the consideration of this subject. Neither is there anything in Heckman v. Schwartz (50 Wis., 267) in any form tending to discredit the soundness of this rule. It was likewise unquestioned in Brooks v. Martin (2 Wall., 70) and McBlair v. Gibbes (17 How. U. S., 232). In the case of Planters’ Bank v. Union Bank (16 Wall., 483) the subject of the controversy had passed beyond the unlawful dealings of the parties and their rights were capable of being adjusted and carried into effect without reference to such dealings. On this subject it was said that “when the illegal transaction has been consummated, when no court has been called upon to give aid to it, when the proceeds of the sale have been mutually received, and received in that which the law recognizes as having had value, and when they have been carried to the credit of the plaintiff, the case is different. The court is there not asked to enforce an illegal contract. The plaintiffs do not require the aid of any illegal transaction to establish their case.” Id., 499-500.

These cases, as well as the others, with the possible exception already noticed, uniformly maintain the law to be that an action for property, money or proceeds remotely connected with an unlawful contract or transaction can be maintained when they are in no measure dependent upon the precedent violation of the law. But where the action is dependent upon the unlawful agreement and the transactions carried on under it, and is brought for the adjustment of the rights or obligations of the parties growing immediately out of such transactions, there it cannot be maintained, for the reason that the courts will not interpose their authority to carry into effect a violation of the law. That was directly held in Arnot v. Pittston, etc., Coal Co. (68 N. Y., 558), and as this case has been presented, it is governed by this principle, for the plaintiff will be unable to present any ground for the accounting and recovery without first proving the agreement made between the parties and the dealings which have taken place under it. Both this agreement and these dealings, as has already been held, were unlawful. The former banded these parties together in a confederation known as a conspiracy to advance the price of one of the necessary commodities of life. That the law does not permit, but it has provided punishment for such misconduct. And where that may appear to be presented as the foundation of an action, the judicial authorities are required to withhold their sanction from the proceeding. It is regarded, as it in fact is,-an innovation of authority to render a violation of the law successful as well as profitable, and that no judicial tribunal will lend itself to accomplish. But as the authorities have declared, the courts must leave the parties where it finds them without attempting to listen to their disputes or to settle their misunderstandings.

The decision which has been announced cannot be otherwise considered than as being well sustained, not only under this rule, but for the further reason that the disappearance of the books and papers of the defendants have ■ substantially disabled them from making and serving such a bill of particulars as has been required from them.

The motion should be denied, with costs.

Van Brunt, P. J., and Brady, J., concur.


text:
    James Bigler, Resp’t, v. Edward Atkins, App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 3, 1887.)

    1. Fraudulent representations—Sale of ship—Question of fact— ELEMENTS OF FRAUD.
    Where the question of fact is as to whether or not certain representations were made by the vendor on the sale, and the evidence is conflicting, it becomes necessarily a question of fact to be determined by the jury. They are also to determine, having found that the representations were made, whether the evidence is sufficient to support them in the conclusion that these representations relied upon were untruthful. But further than this the law requires it to be proved that the vendor knew that these representations were untruthful, or that he did not know that they were truthful, that they were made with the intent to deceive the vendee and induce him to purchase, and that he did suffer injury.
    2. Same-Evidence of fraud—Sufficient to sustain verdict.
    The law permits proof of circumstances which may logically support the inference that a fraudulent intent was an element in the transaction in controversy, when the evidence tends to show that the property sold was inferior in quality to that which it was represented to be, and that the vendor knew these facts, and the jury determined from the evidence that these representations were made to deceive the vendee, the court will be justified in refusing to dismiss the complaint, or to set aside the verdict as contrary to the evidence.
    3. Same—Representations after the contract has been made— Evidence.
    Evidence of the representations made after the execution of the contract will be admissible, not to prove other fraudulent acts, but to show what information the vendee has received, whose duty it was to inspect the property for himself.
    4. Same—Rule of caveat emptor applied.
    The rule of caveat emptor is applied as to such defects as are discernible by ordinary observation, but the vendor will be responsible if the defects are not open to ordinary observation, or if he conceal defects, or throws the vendee off his guard. The vendor is liable, even though the representations made by him were not known to be false, if the exercise of common sense and ordinary prudence were sufficient to put him on inquiry and would have led him to a knowledge of the condition of the property sold.
    Appeal from a judgment recovered on the verdict of a jury, and from an order denying a motion for a new trial made upon the minutes, and also from an order denying a motion for a new trial on the ground of newly discovered evidence.

      jBenedict, Taft & Benedict, for app’lt; S. W. Fullerton, for resp’t.
   Daniels, J.

The action was to recover damages for fraudulent representations charged to have been made by the defendant to the plaintiff and thereby inducing him to become the purchaser of the ship called the Elizabeth Hamilton. It was before this court on a previous occasion when the complaint had been dismissed at the trial, and upon an examination of the case as it then appeared it was considered to be one for the disposition of the jury, and a new trial was accordingly ordered for that as well as another reason. Very much the same evidence was given on behalf of the plaintiff as had then been introduced into the case, but this evidence was controverted on the part of the defendant, and both at the close of the plaintiff’s case and at the close of all the evidence, an application was made to dismiss the complaint on the ground that the case had not been proved in such a manner as to entitle the plaintiff to have it submitted to the jury. And for the like reason, as well as upon certain exceptions taken during the trial, the motion was made to set aside the verdict which was denied by the court.

The evidence upon this trial proved the fact to be that the ship was built in the year 1841, and that she was purchased and owned by the plaintiff and his partner in or about the year 1855, when she was about eight years old, and she was afterwards owned by them until the decease of the other owner shortly before the sale was made to the plaintiff, and that the defendant had owned his interest in her for the period of eighteen years. Before the time of the sale, she had been in her lower hold whitewashed and painted freshly between decks and her rigging had been tarred with coal tar, and her iron work painted red, and the residue white, giving her the appearance of a ship in good condition, and to a great extent in that manner avoiding the exposure of defects in her which might have indicated to the purchaser what was then her actual condition. But by the use of these materials that, to all outward appearance, was obscured and concealed and for that reason it was insisted upon the trial that the plaintiff had purchased the ship relying solely and wholly upon the representations made of her condition by the defendant.

At the close of their negotiations,' a letter was written by the defendant to the plaintiff offering her for sale for the sum of $19,000, which the plaintiff by a letter to the defendant, at the same time accepted. The defendant’s letter was not presented as part of proof at the trial, the plaintiff stating that he had been unable to find and produce it, and he was allowed therefore to state its contents from his recollection, and as a part of such contents his testimony was that it stated that he would take the ship at that price if she was as the defendant represented her to be. This was denied by the defendant, whose statement was that by his letter he proposed to sell the ship as she then was at Congress street in Brooklyn. It is not necessary to determine, nor was it for the jury, which of these parties may have been the most reliable in his recollection of the contents of the letter, for if it was written in the form mentioned by the defendant, still if he fraudulently misrepresented the condition of the ship to the plaintiff and in that manner induced him to purchase her, when he otherwise would not have done so, a right of action for damages would be made out. And whether he had or not, so misrepresented her condition, was a vital inquiry presented and contested before the jury during the trial.

The first of the interviews relative to the sale of the ship took place between the defendant and the witness Henry A. Curtiss, who was acting for and in behalf of plaintiff, and was so understood by the defendant. He testified that the defendant stated to him that the ship “had a large, heavy frame of white oak, and was staunch and strong and tight, and a good old ship. * * * And that she was all ready to take in a cargo, and he could send her to sea without any expense, and that she might need some running rigging to the amount of five or six hundred dollars. * * He said her sails were all good and piled up between decks.” He testified further: “I stated to him that he, the plaintiff, wanted a ship to load for San Francisco to take a cargo of white oak timber to the navy yard right away. * * * He said he had just the ship for that voyage * * * And the ship was all ready to load, tight, staunch and good, and would require but very little for such a voyage.” And this the witness stated was in substance repeated by him to the plaintiff. After that an interview on the same subject is stated to have taken place between the plaintiff and the defendant, in which the plaintiff stated that the defendant “said she was tight and staunch and a good carrier, and there was not a better ship sailed out of the port of New York; that she was built in Portsmouth; built of white oak, and her frame was very heavy, and she was in splendid condition. He had put her in condition, and he said from four to six hundred dollars at the outside would send her to any port, and he said she is the very vessel you want to go to California with; she is a large carrier * * * I have told you she is in first-class order, well found in everything, and with the exception of two or three spare sails and some running rigging is all you require to send her to sea, and four to six hundred dollars would be the outside, and she is all ready to load at once.” And it was in reliance upon these representations that the plaintiff testified he purchased the ship. The defendant denied the making of such representations, and in his denial he was to a certain extent, though not wholly, sustained by two witnesses who were in his office at the time when the negotiations for the purchase of the ship took place between these parties. But their corroboration was not entirely complete, for the reason that they did not appear to have heard all the conversation which took place between the plaintiff and the defendant, their attention being employed in part by other subjects, and one of them being for a portion of .the time out of the office.

As the case was presented by this evidence, the point was very clearly one for the jury to decide whether the representations affirmed on behalf of the plaintiff had been made by the defendant, and it cannot justly be said that there was not a preponderance of proof against the defendant when the probability is considered and added to the positive evidence that a person would not ordinarily be inclined or willing to purchase a ship without understanding from the vendor something in reference to her capacity and condition. As the evidence was made to appear and obtained from the witnesses who were before and observed by the jury, it was for them to decide who was right in that given concerning these alleged representations, and they must have found that they were made, as that was alleged to be the fact, to induce the plaintiff to become the purchaser of the ship.

It was not, as it could not have been, very seriously contended that these representations were truthfully made, for the ship was immediately taken to Newburg, where she was to be laden with timber, for the purpose of receiving her cargo. This was in August, 1813. She was then overhauled and her condition was disclosed, and the witnesses who did the work, as well as. the plaintiff himself, who observed the condition of the ship and her rigging, testified that her timbers were in an unsound and decayed condition; that her planking had been worm-eaten; that all the hemp rigging was poor, and not in a condition to be used, that her chain plates were rusted nearly off, and bolts which had been used in her construction were so far rusted as to require to be removed, and supplied with new ones, and that the upper part of her main-mast was rotten about two-thirds of the way through, and was entirely worthless, and the timbers about the stern and above the transom were incapable of holding nails, and that her sails were mainly unfit for use. It was also stated by a witness who-worked upon her at Boston, in 1811, that she was then leaking, when loaded and her sides between light and loaded water lines had wormholes in them, and that the seams between her planks had been so far increased in width that it became necessary to put a sheathing of seven-eighths inch boards of the width of about six feet around the ship, to prevent the oakum from washing out of the seams, but which the plaintiff testified the defendant informed him had been put on to save the copper plates on the sides of the vessel in Havre. But this, however, was denied by the defendant. It also appeared from the evidence of witnesses who had beem employed upon the ship before the time of the sale, that when she was. loaded, she was in such a leaky condition as to require the pumps to be used for a considerable part of every four hours, and sometimes oftener. • And one of the witnesses stated that by going into the hold and listening for the water he could hear it running or trickling into the ship. This evidence exhibited the condition of the ship to be such, as she also proved, to be unable to prosecute her voyage with the cargo taken on board, and very plainly to require the question to be submitted to the jury whether the representations, if they had been made at all, were truthfully made, and it was quite sufficient to support them in the conclusion that the representations relied upon were untruthful.

But this evidence did not complete the plaintiff’s case, for before he could recover against the defendant for selling this inferior ship as a sound one, the law required the further fact to be established that the defendant knew the representations to be untruthful, or at least that he did not know them to be truthful, and that they were made with intent to deceive the plaintiff, and in that manner induced him to purchase the ship when he would not have done so if the truth had been known to, or discovered by him. But positive proof has not been required to establish such knowledge and intent to deceive, if it were, then a charge of this nature could rarely be supported in a court of justice. Where fraud is contemplated, the existence of that fact is made as much the subject of concealment as is practicable or possible, and the law necessarily, therefore, permits proof of circumstances, which may logically support the inference that a fraudulent intent was an element in the transaction in controversy Beardsley v. Duntley, 69 N. Y., 577, 581.

And in this case circumstances were introduced from which it was claimed that the jury might very well deduce the conclusion that the defendant did intend to deceive the plaintiff in making the representations which had been made the foundation of the action. The circumstances consisted in the probable fact that the defendant as a principal owner in the ship familiarized himself with her history and her condition. He was present on one occasion while the repairs were being made in Boston in 1871, and upon other occasions when she was being repaired at Brooklyn in 1865, and where it is stated he was passing back and forth looking at the vessel, while the men were working upon her, and that she then had worm-holes in her sides. It was also apparent that he understood that the sheathing had been put around the vessel to keep the oakum in her seams, and that she had been painted, whitewashed and tarred in such a manner as to give her the appearance of a ship in good condition. And from these principal facts, as they were disclosed by the evidence, it was for the jury to determine, notwithstanding his own denial, whether he did not know, or have good reason to believe, that the ship was not in the condition in which the alleged representations stated her to be, and if this was the condition of his mind, whether he did not make the representations which by .the verdict must have been found to have beén made, to deceive the plaintiff as to the condition of the ship which was offered to him for sale. These were important facts, and with the knowledge which the defendant might be assumed to have, of the condition of the ship, from his long ownership of a large interest in her, legally supplied the jury with the means of inferring that he did know the ship not to be in the condition represented, and that he made thb representations concerning her condition to deceive the plaintiff. And if these were the facts, as the evidence tended to prove the ship to be of but little value, they were sufficient under the law to entitle the plaintiff to a verdict in the action. Duffany v. Ferguson, 66 N. Y., 482, 484; Overlander v. Spiess, 45 id., 175.

There was consequently sufficient in the case to require its submission to the jury and to sustain the refusal to dismiss it for want of evidence, or to set aside the verdict as contrary to the evidence.

Proof was given upon the trial of what the captain of the ship said at the time when the plaintiff inspected her at Brooklyn. This was objected to, on the ground that it was after the contract for the sale had been made, and was, therefore, immaterial; but it was previously stated that the plaintiff was referred by the defendant to Captain Stone for information concerning the condition of the vessel, and it was stated to have been under that reference that the conversation was had with the captain, and mostly it related to the appearance and condition of the ship, and it had a bearing certainly upon that part of the case which depended upon the duty of the plaintiff to inspect and examine her. It was not proposed to be proved by what had been said that other fraudulent representations had been made concerning the condition of the ship, for it was not charged that the captain himself was implicated in any fraud connected with her sale or disposition, but what was designed to be proved was no more than the information which the plaintiff had obtained through the reference made to Captain Stone by the defendant. And that for the reasons assigned when - the case was previously before this court, it was competent for the court at the trial to receive as part of the proof.

A very large number of exceptions were taken to the admission and exclusion of evidence during the trial. They have all been examined, but in neither of the rulings affecting such evidence, has it been considered that the court became involved in any error. They are too numerous to be separately examined and discussed at the present time, and upon neither has any particular stress been placed in the argument, or the points, requiring any special examination. As to all of them it is sufficient to say that the court was as liberal to the defendant in these decisions as it could reasonably have been expected to be.

The same observation may be made concerning most of the points raised at the time when the case was submitted to the jury. In the charge of the court its controlling attributes were very clearly explained, and the legal rules to be observed were brought to the attention of the jury.

Upon this subject they were directed that “the defendant is not liable unless he made representations which were untrue at the time, nor would he be liable even if the representations were untrue, unless the defendant knew their falsity at the time he made them, nor would he be liable conceding that he made the representations, unless they were made for the purpose of defrauding the plaintiff through a purchase of the vessel, the plaintiff relying upon their truthfulness. * * * In order to recover he must show that the representations were made by the defendant, that they were false, that they were known by the defendant to be false at the time, that they were made with the intent to deceive the plaintiff, and that the plaintiff relied upon them in making the purchase.” This was a brief but yet a comprehensive presentation of the law of the case to the jury, strictly supported by the authorities which have been referred to, as well as all others bearing upon the trial and disposition of such an action, And many of them were collated and cited in the case of Hammatt v. Emerson (27 Maine, 308). After this charge was given to the jury the defendant’s counsel submitted twenty-six different requests, which, to a very great extent, were mere repetitions of these legal principles, and of others presented by the court to the jury, and in answer to them they were mainly submitted to the jury as favorably as that could legally be done for the defendant.

There were some which were denied or qualified by the court that have been made the special subject of consideration and reference in the argument of the appeal. The first of these which seems to be deserving of consideration is that relating to the sheathing which was put upon the vessel, the plaintiff testifying that the defendant stated that it had been put on in her last voyage at Havre, while as a matter of fact it was put upon the ship as a part of her repairs in Boston in 1871. The court was requested to say to the jury that this would give no right of action to the plaintiff even, although, the defendant added, that the sheathing would not need to be taken off, and that the vessel was all right under it. That the court could not justly have said to the jury, for it was made to appear that the vessel was not all right under the sheathing, and if the defendant deceitfully misrepresented her condition under the sheathing, that of itself might entitle the plaintiff to recover in the action.

The court, however, did not go as far as that in the response to this request, but what was' said was that while it might not give a cause of action to the plaintiff, it might be taken into consideration by the jury in determining whether or not the defendant made any false representations in regard to the condition of the vessel. And that was strictly correct, for if he made the representations it was averred he had made, the vessel appeared not to be all right under the sheathing, and that fact could well be considered by the jury as one of some importance, at least in the case. By the eleventh request, the court was asked to direct the jury that there was no evidence in the case tending to show that the defendant knew of the rottenness discovered in the stern of the ship, and that there could be no recovery for that defect; and the court charged that, with the modification, it was for the jury to determine under the evidence whether the defendant knew of the rottenness in the stern. If he did not know it, he is not chargeable with any deceit in respect to the condition of the stern, and that was saying as much to the jury as the defendant had reason to claim should be said under the evidence, for in the condition in which the ship was found to be, the jury, upon the facts already alluded to, might very well have inferred, as they probably did, that the defendant knew of the decayed condition of the ship, which it was reasonably probable had extended to her stern, as-well as the timbers, knees and other parts of the vessel.

By the twentieth request the court was asked to instruct the jury that if the jury believe upon the evidence that the plaintiff had a fair opportunity to examine the ship, her tackle, apparel and furniture, and did, in fact, go and examine the same before making the agreement of sale, then he was bound to the exercise of due diligence in making that examination, and he cannot be heard to complain of anything in the condition of the ship that he ought to have known from such examination. In answer to this, certain general observations were made which were quite pertinent to this character of cases, and then it was added that the rule suggested by this request applies to such defects and omissions, if any, as were open and discernible by ordinary observation. It would not touch any defects or omissions not open to ordinary observation. If the representations complained of were made, and the jury shall believe that they were relied upon, the plaintiff was not obliged to examine and search for defects, although he did see the vessel. Nor would the rule apply if anything had been done by the defendant to conceal defects or throw the plaintiff off his guard, and that was as much as any of the authorities required should be said upon this subject, and it is fully supported by Long v. Warren (68 N.Y., 426), and Slawter’s Administrators v. Genson (13 Wall, 379). For owing to the appearance which had been given by the whitewash, paint and tar that had been placed upon her, and upon her rigging, bolts and chain-plates, the plaintiff could not very well from an inspection of the ship have discovered the defects which were afterwards found when she was overhauled to fit her for the voyage.

After the disposition of the requests presented on behalf of the defendant, the plaintiff asked the court to charge that if the defendant was informed and knew of facts, which, in the exercise of common sense and ordinary prudence, were sufficient to put him on inquiry and would have led him to a knowledge of the truth, then he may be held liable for the same as if he had actual knowledge, and the court so charged the jury, and this has been relied upon as an erroneous instruction, but it was no more than what was approved of by the court of appeals in Craig v. Ward (3 Keyes, 387). There the jury were instructed that, “If the representations made to the plaintiff were untrue, although the defendant Ward did not know that they were so, yet if he was informed, and knew of facts which, in the exercise of common sense and ordinary prudence, were sufficient to put him on inquiry, and would have led him to a knowledge of the condition of the title, he would be liable the same as if he had actual knowledge.” Id. 392. And in Atkins v. Elwell (45 N. Y., 753,) such a proposition was generally referred to as not being legally out of the way. Id. 760. And it has not been gainsaid by anything contained in the decision of Hammatt v. Emerson, (supra). But without now deciding whether on principle it should be, or not, it may be added that what the court charged in this instance, having been sustained in Craig v. Ward, the question of its legal correctness is not now in this court open for discussion. For all present purposes the proposition charged is to be accepted, as it probably is, as lawfully correct. It was not imperatively applied to the control of this controversy, but the jury were at most informed that the defendant might be held liable for the omission to obtain the knowledge which he had reason to believe was accessible to him, the same as if he had actual knowledge. The instruction did not withdraw from the jury what had previously been said to them with so much care and minuteness in the charge, that it was necessary that the defendant should have made the representations which were relied upon as false, for the purpose of deceiving the plaintiff, and if he did make such representations for that object and they were false, then under the authorities the plaintiff was entitled to maintain the action. Upon no ground should the judgment or the order denying the motion for a new trial upon the minutes be interfered with, but both the judgment and the order should be affirmed.

After the close of the evidence upon the trial, and the case had been summed up on behalf of the defendant, his counsel proposed to prove and read certain receipts showing that the plaintiff had been paid for the cargo laden upon the vessel previous to the time mentioned by him in the course of his examination as a witness. This proof was rejected by the court and the trial was then required to proceed, as it did, to its conclusion. To secure an opportunity to make proof of these receipts was the object of the application for a, new trial, on the ground of newly-discovered evidence. But that, under the authorities, could not be ordered, for the proposed proof had no bearing upon any material controversy in the case. It has been urged that it would have upon the lading of the vessel, and the expedition that was necessary for sending her to sea, but those were merely collateral, or incidental circumstances which could not strictly be made the subject of affirmative evidence on behalf of the defendant. The ship, as she is stated to have been represented, was capable of carrying a cargo of 1,000 tons, and the cargo laden upon her exceeded this number only by fourteen additional tons, not enough for a vessel which it was stated had the capacity of 1,200 tons, to charge the defendant with overloading her. Besides, if it had been important to make proof of the receipts, reasonable diligence on behalf of the defendant would probably have obtained them before the close of the case, or the argument of the counsel had commenced.

It had also been urged that the jurors and the judge presiding at the trial, expressed impatience with the time consumed in introducing evidence, but there is not enough of that to allow it to be characterized as improper conduct tending to the prejudice of the defendant’s rights. The evidence was given with very great detail and minuteness, more, as the case itself has presented it, than was requisite for the development of the controversy and the defense, and the jurors as well as the judge may not inappropriately have considered that too much time was being devoted to what appeared to be immaterial facts. And if they did, it could not very well be made a ground for setting aside the verdict of the jury, as long as it does not appear to have been prejudicial to the defendant, or unwarranted by anything transpiring upon the trial. This motion, as well as the other, therefore, was properly denied by the court, and the order from which this appeal has been taken, should be affirmed.

Van Brunt, P. J., and Brady, J., concur.


author: Brady, P. J.

text:
    Louis H. Meyer, App’lt, v. The Staten Island Railway Company et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed March 3, 1887)

    1. Pleading—Complaint—Sufficiency of on demurber.
    The complaint, on demurrer, is deemed to allege what can be implied from the allegations by reasonable and fair intendment, and if there can be gathered from the allegations of the complaint made positively, inferentially, impliedly, argumentatively and by reasonable intendment, sufficient facts, the demurrer will be overruled.
    3. Corporations — Riqht of the minority stockholders — Duty of THE MAJORITY.
    A majority of stockholders will not be permitted to sanction a transaction which is the outcome of a scheme dishonest or fraudulent in its inception and development. The minority stockholders have rights which, under such circumstances, must be recognized. The majority may legally control the company’s business, but in thus assuming control, they take upon themselves the correlative duty of diligence and good faith. They cannot manipulate the company’s business in their own interests to the injury of the corporation.
    Appeal from interlocutory judgment sustaining a demurrer to the complaint.

      James McNamee, for app’lt; W. W. McFarland, for resp’t.
   Brady, P. J.

In Marie et al. v. Garrison (97 N. Y.), it was expressly held that a demurrer to a complaint for insufficiency can only be sustained when it appears that admitting all the facts alleged, it presents no cause of action whatever. It is not sufficient to assail it successfully that the facts are imperfectly or informally averred, or that the pleadings lack definiteness and precision, or that the material facts are only argumentatively averred. The complaint is deemed to allege what can be implied from the allegations therein by reasonable and fair intendment and facts impliedly averred are traversable in the same manner as though directly averred. And further, it was said that the remedy for indefiniteness is not by demurrer, but by motion. Under the Code, as said by Denio, J., in Zabriskie v. Smith (13 N. Y., 330), it is sufficient that the requisite allegations can be fairly gathered from all the averments in the complaint, though the statement of them may be argumentative, and the complaint deficient in technical language. In considering the propriety of the demurrer herein, therefore, the duty is imposed of marshaling all the facts to be gathered, whether definitely or indefinitely, or argumentatively stated or impliedly averred, or apparent from reasonable and fair intendment. The rule springs from a broad spirit of justice, which must not permit a meritorious cause to be affected by reason of the pleaders obscure or infelicitous methods or inability to spread out the facts clearly. Obscurity of statement is no longer permitted to.defeat a remedy, if one exist, however, it may enlarge the labors of the tribunal.

The complaint herein must be considered by these standards. It may justly be said that it is distinguished by too much generalization. The criticism that there is a constant reference to schemes which are not clearly defined, is deserved. It is enough to authorize the action if one scheme, illegal for any reason, is so developed as to be appreciable.

Here one seems to be. The plaintiff complains of a scheme in the nature of a_ conspiracy to take from the Staten Island Railway Co. its ferry franchise, and, therefore, its chief, if not only asset, and transfer it to the Rapid Transit Co., which was accomplished by the execution of a lease given to the latter company, and was obtained by improper artifice as alleged and without adequate compensation. This act, it is true, was ratified by the stockholders of the company, but that event is also assailed as unfairly brought about, and in the manner which will appear hereafter’. The charge generalized is that Mr. Wiman, an officer and stockholder of the Rapid Transit Co., a company without resources and without development, essayed to secure a union of the two companies by various efforts, but unsuccessfully; the directors of the Staten Island Railway Co. refusing to co-operate, condemning and rejecting the scheme as dangerous to the interests of the railway, company and its stockholders, emanating as it did from an irresponsible organization. He then, it is charged, being connected with both companies, an officer or director in each, by personal purchase of the stock of the railway company and by inducing his friends to purchase it and to unite with him in the scheme, and by changes , in the direction of the railway company, consummated by such purchases, succeeded in obtaining the lease, aiid as well its ratification by the same or kindred methods, the stockholders and directors being his allies and confederates in both companies, and expressly for the purpose he had in view. He is thus charged with playing a double role, one in each company, as well as his associates, and to the greater advantage to the Rapid Transit Company, in the prospei’ity of which he was specially interested, and for which he labored to the disadvantage of the other company. And it is alleged that this was done at a time when the Rapid Transit Company had no property of any kind, more than of nominal value, and no business or business income, and wTas an organization speculative in its origin and purpose and financially irresponsible, facts which were within the knowledge of the directors and stockholders of the Staten Island Railway Company generally, and also within the knowledge of the directors and stockholders who voted for and ratified the execution of the lease, and presumably within the knowledge of the Rapid Transit Company; and further, that in order to procure the stock necessary to accomplish the desired results, namely, to effect a change of management of the railway company, and in that way secure the lease given, large sums of money were paid or secured therefor, and Wiman, or his friends or associates, procured for him the proxies to vote upon, .which were used, and a willing board elected. The facts thus arranged are either directly asserted or stated in one of the modes permitted or reasonably intended. The gravamen of the complaint is, that Wiman, by subsérvient persons who were placed in power through his instrumentality, and operating in both companies, and for the purpose of accomplishing it, finally succeeded in obtaining, in effect, the franchise of the railway company by a lease, a project which involved in its success the deposition of some of the original directors. and stockholders of the railway company, and therefore of directors who had refused to unite with the Rapid Transit Company, it having no business or financial responsibility, and thus as the result of a combination to accomplish by devious and objectionable practices the quasi absorption of one company for the success and greater advantage of the other.

These allegations may present charges that are not susceptible of proof—that may be purely imaginative, speculative and unjust, but with that we have nothing to do. If they are substantiated by acceptable evidence the lease cannot be maintained. The authorities are abundant and cogent. Even a majority of stockholders;will not be permitted to sanction a transaction which is tbféputeóme of a scheme dishonest or fraudulent in its inception ¡and development. The minority stockholder has rights ^hich under such circumstances must be recognized. '

“Fraud or covin doth destroy all things.” Here the charges embrace directors and stockholders in both companies as conversant with and aiders and abettors of the scheme of securing the improvident disposition by lease of the franchise of the railway company. The ownership, it is true, of a majority of the capital stock of a corporation invests the holders with many and valuable incidental rights. They may legally control the company’s business, but in thus assuming the .control, they take upon themselves the correlative duty of diligence and good faith. They cannot manipulate the company’s business in their own interests to the injury of other corporators. Meeker v. Winthrop Iron Co., 17 Fed. Rep., 50; Currier v. N. Y. and W. S. R. R. Co., 35 Hun, 355; Menier v. Hooper Tel. Works., 9 Eng. L. R. Ch. App., 350; Barr et al. v. N. Y., Lake Erie and W. R. R. et al., 96 N. Y., 444; Ervin et al. v. Oregon Ry. and Nav. Co. et. al., 20 Fed. Rep., 577; Met. El. R. R. Co. v. Man. R. R. Co., 14 Abb. N. C., 103, et passim.

See also the recent case of Central Trust Co. v. The N. Y. City and Northern R. R. Co., in which Justice Andrews observed what may be said here, mutatis mutandis. “Upon principle it would seem that whatever practical difficulties might arise in ascertaining the facts in any given case, if it were proven that a board of directors had literally no wills of their own, but merely carried out the orders of a third party in making a contract, the corporation should if it desired, be relieved from the contract without being compelled to prove that it was fraudulent or disadvantageous to the company. It seems to be rather a dangerous doctrine to hold that, as a matter of law, a board of directors who are mere dummies can irrevocably bind a corporation by a contract with the person who has placed them in office for the express purpose of having them make the contract.

The cases bearing upon the subjects discussed _ are sufficient to demonstrate that the plaintiff is not remediless on the facts detailed as presented by the complaint.

The learned justice in the court below conceded that the cases cited by _the counsel for the plaintiff illustrating the principles governing the action by a majority of directors or stockholders, oppressive, fraudulent and in disregard of minority rights, upheld sound doctrine, but thought that the plaintiff had not set up facts, which if true called them, into view. In this it is thought he erred.

The favorable features of the lease to the lessor as asserted by the defendants assuming them to be so, does not affect the question, for it is alleged notwithstanding they seem tobe as suggested, that they are not so, and that the greater benefits of that instrument are secured to the Rapid Transit Co. There are other considerations which press for place in estimating the value of the complaint herein but they will not be presented, enough having been arrayed to require the defendants to answer. What has thus been gathered from the allegations of the complaint made positively, inferentially, impliedly, argumentatively and by reasonable intendment, has led to the result proclaimed, and the judgment appealed from must therefore be reversed with liberty to the defendant to answer on payment of costs.

Daniels, J., concurs.


author: Van Brunt, P. J.

text:
    The Porous Plaster Company, of Sing Sing, App’lt, v. George J. Seabury and ano., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed March 3, 1887.)

    1. Trade-marks—Recovery of. a judgment for an Infringement-Subsequent damages.
    A judgment having been recovered establishing the plaintiff’s trademark. and an infringement of the same by the defendant, and granting an injunction for a violation of such trade-mark, precludes the plaintiff from bringing another action against the same defendant to obtain similar equitable relief based upon the same trade-mark and proprietary right. But the plaintiff may bring an action for the violation of its rights in and to the trade-mark subsequent to the first action, and recover the damages sustained by reason of these subsequent trespasses.

      2 Same—Violation of the injunction—Election as to action for damages or contempt proceedings—Code Crv. Pro., § 2284.
    After the establishment of the trade-mark, the violation of the injuction may subject the party to contempt proceedings, and the fine and damages might be collected in that wa). But there is nothing in the Code which restricts the injured party to this form of procedure.
    3. Pleadings—Complaint—Legal and equitable relief.
    In an action at law the plaintiff will be entitled to no equitable relief. But where the complaint demands equitable and legal relief by way of damages, the failure to show a right to equitable relief does not defeat the right to the legal remedy.
    Appeal from interlocutory judgment entered upon the sustaining of a demurrer by the defendants to the plaintiff’s complaint.

      Philo Chase, for pl’ff and app’lt: John L. Logan, for def’t and resp’t.
   Van Brunt, P. J.

The difficulty which the plaintiff in this action has encountered is that it has alleged too much, and those allegations have undoubtedly led the court astray in the disposition of the demurrer. The plaintiff having in 1874, in an action wherein the present plaintiff was plaintiff, and the present defendants were defendants, established the fact of the existencd of the trade mark mentioned in the complaint herein, and having established their title thereto, and having obtained an injunction in that from a violation of such trade mark, could not maintain another action to obtain similar equitable relief based upon the same trade mark and the same proprietary right therein; and the complaint in this action, so far as it seeks to obtain equitable relief, would therefore have been the subject of demurrer, had it not also contained suitable allegations and a demand for legal relief. The plaintiff in this action, in case of a violation of its rights in and to the trade mark mentioned in the complaint, subsequent to the action first mentioned, had the right to recover by action the damages which it should sustain by reason of these subsequent trespasses upon its rights. It may be true that it also had a remedy by contempt proceedings for the violation of the injunction contained in the previous decree, but there is nothing in the Code which restricts a party from maintaining an action for every violation of a right which occurs subsequent to the previous recovery, which violation is separate and distinct in itself. As far as the subsequent violations by the defendants of the plaintiff’s trade mark were concerned, the previous judgment between the parties established only two things, namely: that the device was a trade mark, and that the plaintiffs were the owners thereof. The plaintiff in that action was compelled to prove all the damages which had been sustained by violation of its rights thus established prior to the trial thereof. But such judgment was no bar in case of subsequent and independent violations thereof to the commencement of an action to enforce its rights, and all that was necessary for the plaintiff to allege in order to entitle it to this relief was the fact of the trade mark, its title thereto, that its rights in the trade mark had been infringed and that it had sustained damage thereby. Upon the trial of such an action, the previous judgment between the parties would conclusively establish the trade mark and the plaintiff’s title, and the only thing which could be litigated would be the violation of the trade mark and the damages. Such an action would be simply an action at law, and in such an action the plaintiff would be entitled to no equitable relief.

In the case at bar the plaintiff seems to have assumed that he would be entitled to some additional equitable relief, and has prated for such relief as well as for relief for the damages which it has sustained by a subsequent violation of its rights in the trade mark by the defendants. As has been seen, no equitable relief can be obtained in this action, the plaintiff having exhausted its rights to equitable relief in the previous action, which has gone to judgment, and if the complaint contained no allegations but those which pertained to the obtaining of equitable relief the demurrer should be sustained. But the facts alleged in the complaint, if true, entitle the plaintiff to legal relief, namely, to a recovery for any damages which it has sustained by reason of the violation alleged of its rights in the trade mark in question by the defendants subsequent to the previous judgment.

It may be true that such a violation was a violation of the injunction contained in the previous judgment and subjected the party to contempt proceedings and the party might be proceeded against for contempt and fined and the damages collected in that way. But there is nothing in the Code which restricts the plaintiff to this form of procedure; and in fact the language of section 2284 seems to recognize the fact that actions may be maintained even in those cases where contempt proceedings are authorized by the statute, as it provides that the payment and acceptance of such a fine (referring to a fine in contempt proceedings) constitute a bar to an action by the aggrieved party to recover damages for loss or injury. Unless there had been a right of action to recover damages for loss or injury which might also be the subject of proceedings for contempt, this provision would have been entirely nugatory and is therefore an express recognition of the fact that the provision for proceedings for contempt was not intended to be in any way a substitute for the right to proceed by action, but was intended to be a concurrent remedy. Although the pleader, in drawing his complaint, undoubtedly framed the same for the purpose of obtaining equitable relief and that that was intended to be the gravamen of the action, and although the court may be of the opinion that the plaintiff is not entitled to equitable relief, yet, the complaint containing allegations which entitle the plaintiff to legal relief a demurrer will not lie to such complaint.

In the case Sternberger v. McGovern (56 N. Y., 12), it was expressly held that where a complaint contained allegations showing that the plaintiff claimed to be entitled to both equitable and legal relief, even though he should fail in obtaining his equitable relief, such failure did not defeat his right to the legal remedy. So, in the case at bar, the plaintiff’s complaint, claiming that it was entitled to equitable relief and also to legal relief by way of damages, the fact that it fails to show a right to equitable relief does not defeat its right to its legal remedy.

We think, therefore, that the demurrer was not well taken and that the interlocutory judgment should be reversed and the defendants allowed to withdraw their demurrer and answer upon payment of costs.

Potter and Lawrence, JJ., concur.


text:
    Martha J. Quin, App’lt, v. The Manhattan Railway Company, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed March 3, 1887.)

    Negligence—Alighting from train while in motion—Invitation.
    It is negligence, under ordinary circumstances, to attempt to alight from- a train of cars while they are in motion Where there are gates to prevent passengers from getting off the cars, and the man in charge opens them, this is an assurance of safety, and will be construed to be an invitation.
    Appeal from judgment entered upon dismissal of a complaint.

      William Talcott, for app’lt; EdwardS. Bapallo, for resp’t.
   Van Brunt, P. J.

It may be assumed that it is the rule of law that under ordinary circumstance it is negligence to attempt to alight from a train of cars before the same has fully stopped.

It is claimed by the respondents that the evidence in this case shows that the plaintiff did attempt to alight while the train was in motion and, therefore, was guilty of negligence.

In considering this proposition in the case at bar, the construction of the evidence tending most to the advantage of the plaintiff must be adopted.

She swears that she was sure that the train had stopped.

It it true that she had previously said that the car was moving, and that she subsequently said that she did not notice it (meaning the car) was moving until she felt the platform unsteady, and that she had not taken sufficient notice to know whether it was moving or not.

These statements may be inconsistent, but it was for the jury to determine which was true.

The evidence also showed that there were gates upon the car to prevent passengers getting off while the cars aré in motion, and that the man in charge of the gates, after calling the station and after the train had ieached the station, and was certainly moving very slowly if at all, opened the gates to allow the passengers to alight, which was a substantial assurance to the plaintiff of safety, and was just as significant as if the gateman had invited the plaintiff to alight, and that any prudent person would not be influenced by it is against all human experience. Glushing v. Sharp, 96 N. Y., 676.

Prom these circumstances it was the province of the jury to determine whether it was negligence upon the part of the plaintiff not to notice that the train was moving slowly, if such indeed was the fact. This was not done, and it seems to have been error.

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

Bartlett and Lawrence, JJ., concur.