author: McADAN, J.

text:
    Lincoln National Bank of City of New York, App'lt, v. Butler et al., Resp'ts.

      (Supreme Court, Appellate Term, First Department,

      Filed April 27, 1896.)

    Note—Accommodation—Ikdobser.
    The holder of a note, received before maturity for value, can maintain an action against an endorser for the accommodation of the maker, though he knew that the endorsement was made for accommodation only.
    Appeal from a judgment in favor of plaintiff, reversing the judgment of the special term of the city court.
    Stern & Ruihmore, for app’lt; J. C. Shaw, for resp’t.
   McADAN, J.

The action was upon a promissory note for $1,-000, made October 24, 1890, by Alfred J. Taylor, to the order of James Casey, payable, three mouths alter date, at the Harlem Bank and indorsed by James Casey and the defendant Butler, and thereafter discounted by the plaintiff. The complaint alleges, and the answer, by not denying, admits, the making of the note; that Casey, the payee, indorsed it; and that Butler, “for the purpose of lending his credit thereto, for the accommodation of said James Casey, indorsed said note, before its delivery, to this plaintiff; and thereafter, and before its maturity, the said James Casey delivered said note to this plaintiff for discount.” The note was put in evidence, with notice of protest and certificate of the notary showing the the note had been duly protested for nonpayment, and the indorsers thereby properly charged. The defendant offered no evidence. Both sides moved for the direction of a verdict The court directed a verdict in plaintiff’s favor for §1,256.63, the amount claimed, and interest.

Upon appeal, the general term reversed the judgment, and ordered a new trial, holding' that, in the absence of proof that Butler’s indorsement was made for the purpose of enabling the maker to obtain credit with the payee, the plaintiff could not recover. The authorities sustaining this position are cases in. which the payee, who was, presumably, the first indorser, undertook to recover from one whose indorsement appeared upon the back of the note subsequent to his and who was, therefore, presumably, second indorser. Of course, it is necessary, in such cases, to allege and prove facts overcoming the presumption, by showing that the person sought to be charged indorsed for the benefit of the maker, to induce the payee to accept the security as'a valid obligation against the person indorsing. Moore v. Cross, 29 N. Y. 227; Phelps v. Vischer, 50 N. Y 69; Coulter v. Richmond, 59 N. Y. 478; Wyckoff v. Wilson, 30 St. Rep. 384; and 36 St. Rep. 35; Reed v. Photo-Gravure Co. (City Court N. Y.) 38 St. Rep. 467; Montgomery v. Schenck, 82 Hun, 24; 63 St. Rep. 336; Bornstein v. Kauffman, 4 Misc. Rep. 83; 53 St. Rep. 69. The principles invoked are correct in their place, and the error into which the general term fell was in attempting to make them applicable to essentially different facts. There is nothing in the form of the instrument sued upon which required that the plaintiff should overcome any legal presumption before it could recover, and in this respect the case differs from those relied on by the 'general term.

It appears, here, that Casey, the payee, held a valid obligation against Taylor, the maker. C-asey, and not the maker, wanted the accommodation. Whereupon he induced Butler to assist him by a loan of his credit in the form of an indorsement, on the strength of which the note might be discounted. Upon the faith of all the names upon the instrument, the plaintiff did discount the note, and on the trial established its title as a bona fide holder for value by the production of the paper. Harger v. Worrall, 69 N. Y. 370; Bank v. Crow, 60 id. 85; Mechanics and Traders’ Bank v. Livingston, 6 Misc. Rep. 81; 55 St. Rep. 394. There is nothing in Moore v. Cross, or any of the other cases before cited, which prevents a recovery by the plaintiff from any or all of the parties to the note, under such circumstances. The defendant urges that the fact that Casey procured the discount was notice to the plaintiff that Butler’s indorsement was for Casey’s accommodation. National Park Bank v. German-American Mut. Warehouse and Security Co., 116 N. Y., at page 293 ; 26 St. Rep. 675; Smith v. Weston, 88 Hun, 25; 68 St. Rep. 513. But parties who have loaned their credit in like manner, by making notes or accepting bills for the accommodation of others, without any restriction on their use. have always been held liable, at the suit o£ a bona fide holder, even with knowledge that it was accommodation paper. Pettigrew v. Chave, 2 Hilt. 546; Grant v. Ellicott, 7 Wend. 227.

It lias been long established that, “when a man writes his name, without anything more, on the back of a negotiable promissory note, he agress that he will pay the note to the holder on receiving due notice that the maker, on demand, made at the proper time, has neglected to pay it. * * * Proof that he put his name on the note for the purpose of giving credit to the maker, or enabling him to raise money on the paper, only shows that there is a special relation between him and the maker, not between him and thé holder. It does not change the nature of the contract of indorsement from what it would be had the note actually passed through his hands in the usual course of business and been indorsed for value.” Seabury v. Hungerford, 2 Hill, at page 82, approved in Hall v. Newcomb, 3 id., at page 234, and 7 Hill, at page 419; Richards v. Warring, 4 Abb. Dec. 53. As far back as Smith v. Knox, 3 Esp. 46, Lord Eldon held that, where a bill is given for the accommodation of a drawer or payee, and is sent into the world, it is no answer to an action upon it, against the acceptor, that he accepted it for the accommodation of the drawer, and that the fact was known to the holder. In such a case the holder, if he gave a bona fide consideration for it, is entitled to recover, though he had full knowledge of the transaction. It is sufficient, for the plaintiff, that the note was indorsed by Casey, and was also indorsed by Butler, who wrote his-name on the back, for the purpose of lending his credit thereto, for the accommodation of Casey, and that the note, so indorsed, came into the possession of the plaintiff, in the course of its business, for value, and before maturity. Benj. Chalm. Bills (2d Am. Ed.) 107.

In Pierson v. Boyd, 2 Duer, 33, it appeared that one Davis made his promissory not for $1,259, payable to the order of John Crum, who first procured Boyd, the defendant, to indorse it, whereupon Crum indorsed and delivered the note to the plaintiff for value. It was claimed by Boyd that the plaintiff, having received the note from Crum, the payee, he could not recover from Boyd, a subsequent indorser. The court, in deciding against this contention, said:

“ As between Davis and Crum, the note was made on a good consideration;,, and Boyd, in the most favorable aspect of the case for him, was an indorser for the general accommodation of Davis, the maker. His indorsement has not been misapplied. The note was negotiated to the plaintiffs, before maturity, for full value. They are, therefore, entitled to recover against Boyd, as indorser. -» * * Whether Boyd, as between Crura and himself, is to be regarded as first or second indorser, is of no consequence in this suit. One who indorses for the general accommodation of the maker or payee of a note is liable to a holder for value, taking it before maturity, though the holder knew, when the note was transferred to him, that the indorsement was an accommodation one.”

Applying the principle decided in the case last cited to the present controversy, it is apparent that Butler’s indorsement has not been misapplied. It was used, as he intended it should be, to raise money for Casey’s use, and Butler has, in consequence, become liable thereon to a bona fide holder for value. Whether, as between Casey and himself, he is to be regarded as first or second indorser, is of no consequence in this suit. That inquiry will become pertinent only after Casey or Butler pays the note, and seeks to enforce some claim upon it against the other. Then the doctrine of Moore v. Cross and kindred cases, relied on by the general term, will be more germane to the questions likely to come up for consideration.

In Bacon v. Burnham, 37 N. Y. 614, it was held that, where a prior indorser cannot recover against a subsequent indorser, no person deriving title under such prior indorser, with knowledge of the facts, can do so. The plaintiff there became the holder of the after maturity—a circumstance which distinguishes that case from this—and the equities between the original parties were, therefore, open to investigation. There the holder took the place of the payee, succeeding to his rights and remedies—nothing more. But the equities could not be gone into here; for, the plaintiff being a bona fide holder, all the so-called equities were cut off,

It follows that the order of the general term must be reversed, and the judgment of the trial term affirmed, with costs.

All concur.


source: Caselaw Access Project

author: BARRETT, J.

license: Public Domain

text:
    Otto Niendorff, Resp't, v. Manhattan Railway Company, App'lt.

      (Supreme Court, Appellate Divison, First Department,

      Filed April 17, 1896.)

    1. Evidence—Opinion.
    Where the expert’s opinion is strictly limited to deductions from physical condition which he had personally observed and which, as a witness, he had fully described, it is not necessary to group the facts thus narrated in the form of a hypothesis.
    2. Trial—Motion to strike out.
    Though a witness has so modided his testimony on cross-examination as to render it of little value, a motion to strike such testimony out will not be granted.
    3. Same.
    In such ease, the utmost that the party is entitled to, even though the cross-examination entirely destroys the direct testimony, is an instruction! to disregard the latter. „

      4. Same.
    It is discretionary with the court to permit a witness for plaintiff to be re-examined after defendant has rested, especially where the court expressly limits the examination to rebutting the direct testimony.
    6. Damages—Loss or time.
    Where the plaintiff has proved the loss of time, even though he has not actually shown the loss in money while he was laid up, he is at least entitled to nominal damages.
    Appeal from a judgment for plaintiff, and from an order denying a motion for a new trial.
    Julien T. Davies and Joseph H. Adams, for app’lt; Clarence Lexow and George M. Mackellar, for resp’t.
   BARRETT, J.

The plaintiff was a waiter in a Franklin street restaurant. On the 12th of September, 1891, after an unusually protracted service, he started to go home., This was about half past two o’clock in the morning. He thereupon took one of the defendant’s trains at the Canal street and Bowery station, intend-' ing to get off at Thirty-Fourth street. But he fell asleep while the train was proceeding uptown, and only awoke when it reached the Ninety-Ninth street station, where he got off. Thereupon he purchased his ticket for a fresh passage downtown, and dropped his ticket into the proper box. A point is made that the plaintiff, upon cross-examination, stated that he threw this ticket at the box, and that it may have fallen upon the floor of the platform. This point, however, is of but little moment, as it is clear that tne defendant’s agents were aware of the purchase, and actually received the ticket for cancellation. There is, in fact, but little doubt that the ticket was placed in the box in the usual way. A. misunderstanding upon the subject arose between the plaintiff and the defendant’s gateman. The gateman required the plaintiff repurchase another ticket, and the plaintiff insisted that he had already purchased one, and that the gateman would find it in the box, if he looked there. Upon the arrival of a downtown train an altercation ensued between them. The plaintiff started to get on the train, and the gateman sought to prevent his doing so. At this point the gateman resorted to violence; seizing the plaintiff by the collar and throwing him backward. The plaintiff again and again protested that he had paid his fare, and told the gate-man that, if he still doubted him, it would be better to get a police officer. The gateman replied that he was the officer, and’ followed this remark up with a violent attack. He struck the plaintiff in the face, and kicked him. He tried to throw him from the platform, down upon the railroad tracks. The plaintiff defended himself as best he could, but without much success, for he was severely injured before the gateman was finally dragged away by another of the defendant’s employes. It is not necessary to detail the plaintiff’s injuries. The severest injury undoubtedly resulted from kicks in the" abdomen and groin. The groin at once commenced to swell. This swelling increased day by day, notwithstanding local treatment. A few days later the plaintiff went to a hospital, where he was put to bed and treated. Bui the treatment was inadequate to relieve the increasing symptoms, and finally he was compelled to undergo a painful surgical operation. lie remained under treatment at the hospital for six weeks suffering more or less pain all the time. The jury awarded the plaintiff $5,000. We have examined the case carefully,'and, upon the whole, we can see no reason for disturbing the verdict. There was a conflict of testimony with regard to the altercation, but we cannot say that the-verdict was against the weight of evidence. The plaintiff’s story seems more natural and credible than that of the defendant’s witnesses. It is fairly corroborated, too. The story told by the gateman is overdrawn. He was, on his own showing, altogether too civil, too gentle, too entirely on the defensive. And the plaintiff is pictured as too coarse, too brutal, too-wantonly aggressive. His story was improbable, too. He says there was, in the end, no question about the plaintiff’s fare, that he knew it had been paid, and that the real trouble was with two other passengers. Thus, he would have us believe that there was no attempt to prevent the plaintiff from getting on the train, and that the altercation was initiated by the plaintiff’s carelessness, and wholly wanton attacks upon him. We think that the weight of credible testimony was with the plaintiff, as to the occurrence. As to the damages, while they were certainly liberal, we cannot say that they were excessive. The injury was severe, the operation painful, and the suffering great. Whatever the doctors may think about it, the fact remains that the plaintiff’s suffering has, in a degree, continued, and is likely to continue; that there is a «car upon his groin ; and that he is not the same man, physically, that he was before the injury. We need not detail the testimony on this head. Suffice it to say that it fairly supports the verdict. The amount is not so large as to warrant the conclusion that the ]ury were influenced by partiality or prejudice, or by any other improper motive. Considering the plaintiff’s condition in life, and the nature of the injury, we might have been better-satisfied with a somewhat smaller award; but onr discretion does not supplant that of the jury, and we cannot say that the verdict was excessive, within the settled rule upon that head. We will now consider the various exceptions taken by the appellant;

1. The testimony of the plaintiff’s expert was objected to because it was not given in response to a hypothetical question. This expert, however, was the very physician who performed the operation in the hospital. He distinctly stated that his expert testimony was based upon the'facts which, as a physician, he had previously narrated to the jury. “ I am speaking now,” he said, H of the condition which I have already described to the jury Question. And that exactly? Answer. “Yes, sir.” It was unnecessary to repeat the physician’s testimony in the form of an hypothesis. One of the purposes of a hypothetical question is to ¡prevent the expert from giving his opinion upon facts known to himself, or mentally assumed by him, but not communicated to the jury. Here the expert’s opinion was given upon the exact physical condition which lie had observed and described. He emphasized this observation and description throughout. Thus,, the jury heard every fact upon which the opinion was based.. The opinion was not based upon other testimony in the case, nor: upon hearsay, nor upon any foreign assumption. It was strictly] limited to deductions ‘from the physical condition which the expert had personally observed, and which, as a witness, he had fully described. Under these circumstances it was not necessary to group the facts thus narrated into the form o£ a synopsis. That; would have been an idle ceremony. It was clearly competent for the same person, as an expert, to give his opinion upon the facts which, as a physician, he had observed and narrated.

2. There was no error in refusing to strike out that part of the physician’s direct testimony where he stated that there may be future pain following the plaintiff’s condition. The contention is that the witness entirely receded from this position upon his cross-examination. Such, however, is not the fact. He, undoubtedly modified his views on that head, and it may be that, this modification rendered the direct testimony of but little value with respect to future pain. But that is no reason for striking it out. It was properly in the case, and it was for the jury to say, after hearing the cross-examination, what consideration, if any, it merited. The utmost that the defendant was entitled to, even if the cross-examination entirely destroyed the direct testimony, was an instruction to disregard the latter. Gawtry v. Doane, 51 N. Y. 84; Platner v. Platner, 78 id. 90; Pontius v. People, 82 id. 339. The defendant made no such request, and that which it did make was properly denied.

3. The defendant also objected to the court’s permitting the plaintiff to recall this physician as an expert after it had rested._ ‘This was a matter of discretion, and the discretion was not abused.] Indeed, the court expressly limited the plaintiff, in this examination, to rebutting the testimony of defendant’s expert. The plaintiff was not bound to forestall the defense. He proved the injury, and the grave symptoms which immediately and naturally, followed. The defendant then attempted to prove that these, symptoms resulted, not from the assault, but from an old malady. It then became entirely proper to permit the plaintiff to meet this) new aspect of the case, and to show that the old malady hadl nothing to do with the injury. We may add, upon full consideration of the careful analysis which the defendant presents of this expert’s testimony, that in our judgment the malady had nothing-whatever to do with the condition of the plaintiff’s groin, and that the operation already referred to was necessitated solely by the kick which he received in that part of his body from the defendant’s employe.

The remaining questions presented by the appellant are trivial,, and without merit. The learned judge stated the' general rulei upon the iubject of damages when he charged that they might take] into consideration the plaintiff’s loss of time, as well as his paini .and suffering. It is true that what the plaintiff actually lost in, money while he was laid up was not proved. But having proved the loss of time, he was at least entitled to nominal damages. Leeds v. Gaslight Co., 90 N. Y. 26; Feeney v. Railroad Co., 116 id. 375 ; 26 St. Rep. 729; Baker v. Railroad Co., 118 N. Y. 533; 29 St. Rep. 936. The defendant did not request the court to charge that the award on this head should be limited to nominal -damages. They confined themselves to a general exception to his fair statement of the ordinary rule, and we have no reason to believe, from aught appearing on the record, that the damages for loss of time exceeded the nominal sum which the jury were authorized to award. The criticisms upon the statement of the trial judge that the jury could not give the plaintiff more than $10,000, because that was the limit of his claim, is hypercritical. There was not the slightest intimation that they should give the plaintiff $10,000, or any other sum. There was no suggestion, even, of an opinion upon the subject. In fact, the observation' was in the defendant’s interest, and was called for by a request “ not to deal with the case as if it were their own, nor to give the plaintiff such sum as they would like to have themselves under the same circumstances.” To this the court replied: “ That is the fact. You to give him what he ought to have.” The plaintiff’s counsel then asked the court to charge that, if they found for the plaintiff, they were entitled to find for any sum up to $10,000, the amount claimed. And the court said, “You cannot give more than $10,000, because that is the limit of the plaintiff’s claim.” The present criticism upon this statement is evidently an afterthought. It did not, at the trial, affect the defendant’s counsel as being specially momentous; for the only observation which then followed the statement was that, as the pleadings were not in evidence, the counsel excepted to its being stated. The idea that twelve ordinary citizens were influenced by such a remark is farfetched. The jury are not such hothouse plants as unsuccessful appellants would have us believe.

There are no other questions calling for special consideration, and the judgment and order denying a motion for a new trial should be affirmed, with costs»

All concur.


author: RUMSEY, J.

text:
    James M. Constable et al., Resp'ts, v. Matthew Hardenburgh, App'lt.

      (Supreme Court, Appellate Division, First Department,

      Filed April 24, 1896.)

    1. Assignment fob cbeditobs—Fbaud.
    The mere fact' that an assignor, at the time of making his assignment, retains a portion of the assets in his possersion, is not as a matter of law, conclusive upon the question of fraud.

      2. Same.
    While such retaining of assets is not necessarily fraudulent, it is sufficient, if unexplained or connected with suspicious circumstances, to warrant a finding that the assignment in connection with which it was made, was made with intent to defraud, and to set it aside.

      3. Same.
    A finding that the assignor retained money in'contemplation of the assignment, and that it was fraudulently concealed and omitted from the schedule, and done intentionally and operated to defraud creditors, warrants the conclusion that the money was retained with intent to defraud.
    Appeal from a judgment in favor of plaintiffs.
    Selden E. Bacon, for app’lt; Jesse E. Epstein, for resp’t.
   RUMSEY, J.

This is a judgment creditors’ action, brought to-set aside a general assignment, upon "the ground that it was made with the intent to hinder, delay and defraud creditors. Several distinct frauds were alleged by the plaintiff in the complaint, but only one of them was found by the court.

The facts were that Hardenbergh & Co., on the 18th of July, 1893, made a general assignment to one Hirseh, preferring certain creditors. Their liabilities were about $70,500, and their assets were $42,437. At the time of the assignment the firm had, in cash in the store, about $834. They used something over $300 of that to pay some bills and there remained in the neighborhood of $500, which was taken possession of by the assignors upon the advice and" with the consent of the assignee. It was not delivered to the assignee. No mention of it was made in the schedules, and none of the creditors were notified of the fact that it had been taken. There was no dispute about the way in which it came to be taken. It was testified to by the assignee, who said that he told them that they might take any reasonable sum that they needed for their necessities, and that upon that advice they acted, and did take it. The court found that, on the morning of the execution of the assignment, and in contemplation thereof, the assignors, with the approval of the assignee, intentionally drew out from the assets of said firm, and appropriated to their own use, over $500, upon the pretense that they needed that amount of money to purchase necessaries for their families; that the assignors intentionally and: fraudulently concealed and omitted the said sum of money from the schedule, which purported to contain a .full and true statement of all the assets of the firm; that these intentional acts on the part of the assignors were a fraud upon, their creditors, and operated to hinder, delay and defraud them in the collection of their debts. As a conclusion of law, the court found that the| assignment was fraudulent and void, and that it should be set' aside.

The appellant does not object that the evidence is not sufficient to .warrant this finding. The complaint that he makes is that the fraudulent intent of the assignors in retaining the money was not found as a fact, but was deduced as a conclusion of .law from the retaining of the assets., It is quite true that the mere fact that an assignor, at the time of making his assignment, retains a portion of the assets in his possession, is riot, as a matter of law, conclusive upon the question of fraud. It may be explained, and, if the explanation is such as to satisfy the tribunal which passes upon j,he facts that there was no fraudulent intent on the part of the assignor, the assignment would not be set aside on account of it„ Such was the case of Fay v. Grant, 53 Hun, 44; 23 St. Rep. 571, where the plaintiff proved that the assignors retained certain inconsiderable sums of money out of the firm property; but the assignors gave evidence to show that it was done under a mistaken notion of their rights, and without any intent to defraud, and as soon as their attention was called to their mistake they paid back the money, and thereupon the case was submitted to the jury, who found that there'was no fraudulent intent in doing the act. But while such retaining of assets is not necessarily fraudulent, if it is unexplained or connected with suspicious circumstances, it is sufficient to warrant a finding that the assignment in connection with which it was made was made with intern, to defraud, and to set it aside. Coursey v. Morton, 132 N. Y. 556; 43 St. Rep. 673. In that case it was held that the intentional withholding and secreting by the assignor of assets of a substantial value from the possession of the assignee is a fraud upon the rights of creditors of the assignor, and renders a general assignment for the benefit of creditors void. That is precisely the condition of affairs here, ss found by the court. This' money was a substantial portion of the assets. In addition to finding that it was retained in contemplation of the assignment, the court found that it was fraudulently -concealed and omitted from the schedule, and that it was done intentionally, and that it operated to defraud creditors, which was undoubtedly the case. The rule that a man is necessarily presumed to intend the natural consequences of his acts, which was laid down in Coursey v. Morton, supra, warranted the court in this case in finding that these acts of the assignors which were fraudulently done, and operated to defraud, were done with the intent to defraud, and. to deduce that intent as a necessary conclusion from the findings of fact.

There is no error in the judgment, and it must be affirmed, with costs.

All concur.


text:
    People, Resp't, v. Tripicersky, App'lt.

      (Supreme Court, Appellate Division, First Department,

      Filed April 24, 1896.)

    Bastardy—Proof.
    Evidence, in bastardy proceedings, that from the time when complainant had connection with the defendant until the birth of her child she had no connection with any other person, fend that defendant, while admitting the intercourse, seeks to escape by placing it at a period somewhat earlier than that of probable conception, and that others had intercourse with her, is sufficient to support a judgment against the defendant.
    Appeal from a judgment adjudging defendant to be the father -of 'the bastard child of the plaintiff.
    Leonard J. Langbein, for app’lt; George W. Lyon, for resp’ts.
   BARRETT, J.

The defendant was adjudged by the court of special sessions to be the father of the complainant’s bastard child. He appeals upon two grounds: First, that the judgment was not supported by competent evidence; and, second, that it is against the weight of evidence. Neither ground is tenable. The complainant testified that from the time when she had connection with the defendant until the birth of her child she had no connection with any other person. She was somewhat confused as to the date of the intercourse, but upon her entire testimony it sufficiently appeared that such intercourse was within the usual period of gestation. No doubt or suspicion is attached to the charge generally, as the defendant admits the intercourse, but seeks to escape by placing it at a period somewhat earlier than that of probable conception. Upon the case made by the prosecution, the court below was fully justified in finding that conception resulted from the intercourse with the defendant to which the complainant testified. Upon the other hand, the testimony adduced by the defendant was unworthy of credit. He and his brother-in-law pretend to have made entries in a book when they had intercourse with the complainant. This was enough to discredit them. No reason was given for such preposterous acts. In place of thereby fixing with precision the dates of intercourse so as to let the defendant out, these entries simply indicate a prepared defense. The magistrates vei’y sensibly disbelieved the testimony of these people. The other witness—Zneak —was equally unworthy of credit. His testimony is contradictory, confused, and improbable. It was as unreliable as that of the brother-in-law, who declared that he kept the girl in his employ, and in association with his wife and children, for months after lie had the duly-recorded intercourse with her. All these stories were plainly made of the whole cloth. To save the defendant, the witnesses were willing, not only to disgrace themselves, but to-make themselves ridiculous. The defendant was properly held, and the judgment and order of the court of special sessions should be affirmed.

All concur.


text:
    James F. Guilfoyle, App'lt, v. Catherine C. Pierce, Resp't.

      (Supreme Court, Appellate Division, First Department,

      Filed April 24, 1896.)

    1. Sale—Fbaud—Rescission.
    A contract of a sale of a livery stable cannot be rescinded on the ground of misrepresentation as to the profits of the business and condition of the-property where the testimony shows that the plaintiff had all the opportunity to investigate the extent of the business done, and the way in which it was done, and the condition of the property; that he inspected the books and received all the information that he asked for, and that the information given was true.
    3. Evidence—Books.
    A paper, which is simply a resume made by the plaintiff of the content» of certain books which were already in evidence, is properly excluded on, Jhat ground.

      Appeal from a judgment in favor of defendant,
    Franklin Bien, for app’lt; Leopold Turk and W. Lynn, for resp’t.
   RUMSEY, J.

The action was brought for the cancellation of a contract, made between the plaintiff and the defendant, by which the plaintiff bought, and the defendant sold to him, a livery stable, and for the return by the defendant to the plaintiff of what-had been paid on the bargain, and for other relief. The ground of the action was that the defendant had induced the plaintiff to enter into the contract of the sale by means of false and fraudulent representations, made to him, with regard to the profits^ which the stable had been earning for her, and with regard to the condition of the property. Upon the trial, both parties having told their stories, and introduced such evidence as they saw- fit, the court, dismissed the complaint, holding that the defendant did not commit a fraud upon the plaintiff in selling the property mentioned in the complaint. From the judgment entered upon this decision,, the plaintiff takes this appeal.

We have examined the case carefully and are satisfied that the judgment was a proper one, upon the evidence presented to the court. It appeared, from the testimony, that the plaintiff had all the opportunity he desired to investigate the extent of the business done, and the way in which it was done, and the condition of the property; that he inspected the books, and received all the information that he asked for; and that the information given to him was true. There was no reason for saying that he was defrauded in any way.

Indeed, the appellant does not very strenuously insist that the-decision upon the trial was not justified by the evidence; but he puts his right to a reversal largely upon the supposed error of the court in refusing to permit him to have marked for identification a paper which he had offered in evidence, and which had been excluded. It is hardly necessary to take much time to examine this alleged error. It is perfectly evident, from the testimony, that the paper was simply a resume made by the plaintiff of the contents of certain books which were already in evidence, and it was properly excluded upon that ground, and upon the further ground that it was an attempt by the plaintiff, upon a rebuttal, to give the substance of testimony which had been already given by him when he had the case in chief. This evidence was not admissible, and therefore no damage could have resulted to the plaintiff upon the refusal to permit the paper to be marked.

The judgment must be affirmed, with costs.

All concur,


text:
    Ann A. O'Reilly, Resp't, v. Long Island Railroad Company, App'lt.

      (Supreme Court, Appellate Division, First Department,

      Filed April 24, 1896.)

    Negligence—Sidewalk obstedction.
    The owner of premises abbuting upon a street may, to a reasonable extent, so far as necessary, put materials upon the street, while doing necessary repairs, and it is not a nuisance, nor is it negligence, for the existence of which he is liable to one who is injured because they are there, unless they have been there so long that it can be said he permitted them to remain there for an unreasonable length of time.
    Appeal from a judgment in favor of plaintiff,
    A. A. Gardner, for app’lt; E. J. Nathan, for resp’t.
   RUMSEY, J.

— The plaintiff was injured by slipping on the sidewalk running along the side of the defendant’s ferry house in Long Island City, and she brings this action to recover damages for those injuries. At the close of the plaintiff’s case the defendant moved to dismiss the complaint on the ground that there was no negligence shown on the part of the defendant railroad company. This motion was denied, and the defendant excepted. The defendant then proceeded to give evidence, and the case was submitted to the jury upon a charge which was not excepted to, and the result was a verdict for the plaintiff. The defendant thereupon moved for a new trial upon the judge’s minutes, upon all the grounds stated in section 999 of the Code of Civil Procedure, except that the damages were excessive. This motion was denied, and from the order denying the motion, and the judgment entered upon the verdict, the defendant brings this appeal.

It appeared from the testimony that the defendant operated a ferry from the foot of Thirty-fourth street to Long Island City. At the last-named place the defendant’s ferry house abutted upon the sidewalk; the roof of the house extending to, or slightly over, the sidewalk. The plaintiff debarked from a ferry boat at about half-past two o’clock in the afternoon, walked through the ferry house, and started to go along the sidewalk, when her foot slipped and she fell, receiving the injuries of which she complains. She alleges that she tripped, or her foot slipped, when she stepped upon gravel or bits of board which lay upon the sidewalk. Her cla’im is that the defendant’s employees were negligent in permitting the sidewalk to be incumbered by this gravel and boards. The plaintiff’s story is that she turned up towards the ferry house, and upon the corner she fell. She said that when she was lifted up she saw gravel upon the sidewalk, which was wet and had cement upon it, and cuttings of ends of hoards. ‘"The gravel was about the size of the small marbles that you see upon the street, and pieces or bits and ends of boards what were cut off. Some of the gravel was as large as small marbles, and some was fine. Pieces of board I saw, as near as I recollect, were about three or four inches long, and, may be, two or three inches wide: ends of boards. These stones and pieces of board were just at the point where I fell. There was quite a good deal scattered over the sidewalk. Not any one stone, not a half a pile, but scattered along,” The plaintiff said that she stepped on the gravel and pieces of board, and that made her slip. The only other witness sworn on behalf of the plaintiff on this subject was one Daniel Green, who said: He saw the plaintiff slip on the sidewalk. “That there was, upon the sidewalk, gravel which you use for roofing; pebbles, small and large, as you get them. They were working upon the edge of the roof. There were little chips of Georgia pine shavings about, the same as though you take an adze and dove it off the edge of a plank, or perhaps you take an adze and dove it off. Small pieces, running from one-eighth to a quarter to one-half an inch thick, about an inch or an inch and a-half long; perhaps only little chips. There were not very many of them. They were right at that point on the sidewalk where they were working. Fell down right alongside of the place." This was substantially all the evidence given on behalf of the plaintiff tending to show any obstruction or incumbrance on the sidewalk. Upon this evidence, with the testimony as to the extent of her injuries, the case was submitted to the jury.

It appears from fhe evidence that the defendant’s men were at work upon the roof, above the sidewalk, and that the obstructions complained of were caused by the falling of gravel and pieces of board which had been dislodged by the workmen in the course of their employment upon the roof. - The workmen had been there during the day, as appears from the testimony. Just how long the obstructions complained of had been allowed to be there, does not appear. There is nothing to show that they had been allowed to accumulate, or that they had existed there for more than a few minutes; and it appears that the workmen were at work at the time, and the pebbles were dropping down as they worked. While the streets and sidewalks are used primarily for purposes of passage to and fro, yet that is not the only use to which they may properly be put. . The owner of premises abutting upon the street may, to a reasonable extent, so far as necessary, put materials upon the street, while doing necessary repairs; and it is not a nuisance, nor is it negligence for the existence of which he is liable to one who is injured because they are there, unless they have been there so long as that it can be said that he permitted them to remain there for an unreasonable length of time. In Com. v. Passmore, 1 Serg. & R. 217, the defendant was indicted for a nuisance, in placing goods in the highway and permitting them to stay there until he sold them, and upon the trial he was convicted. Hpon the writ of error the supreme court of Pennsylvania held that before one could be convicted of nuisance, for placing goods upon the highway, it must he made to appear that he allowed them to remain there for an unreasonable length of time. The court, by way of illustration, say:

“Inasmuch as fuel is necessary, a man .may throw wood into the street for the purpose of having it carried in his house, and it may lie there a reasonable length of time. So, because building is necessary, stone, brick, lime, sand, and other material may be placed in the street, provided it be done in the most convenient manner.”

This case has been followed in this state. In Welsh v. Wilson, 101 N. Y. 254, the defendant had obstructed the sidewalk by putting across it a pair of skids, over which he was unloading merchandise. The plaintiff, passing by and trying to avoid the skids, slipped, fell, and was hurt. In an action to recover damages for the injury from the defendant, she was nonsuited; and upon appeal the court of appeals, affirming the judgment, say:

“The defendant had the right to place skids across the sidewalk, temporarily, for the purpose of removing cases of merchandise. Every one doing business along the street in a populous city must have such a right, to be exercised in a reasonable manner.”

Mr. Wood, in his work on Nuisances, has laid down the rule that any temporary use of the highway or street, rendered necessary from necessities of trade or the erection of buildings, which does not necessarily or unreasonably obstruct it, is lawful. So, too, a temporary obstruction, which arises from accidental causes, does not render a person liable for a nuisance, provided that in all these instances no unreasonable or unnecessary delay is permitted. Wood, Nuis. p. 268. The abutting owner is permitted to unload coal on the sidewalk, for the purpose of having it carried into the house; and if, when the coal is unloaded, small bits are scattered beyond the pile, so that one must pick his way carefully past them, it would be a hard rule to say that the owner should be liable for any injury he received, if he was proceeding with reasonable diligence to have the sidewalk cleared up. So, if one .repairing his fence drops a nail upon the sidewalk, and a passer-by steps upon it and is injured, the owner surely would not be liable, unless it was made to appear that he had permitted the dangerous article to remain after he should have cleared it off. In this case there was a total failure of any proof tiiat the defendant did not use reasonable diligence to keep this sidewalk clean. There was no attempt made on the part of the plaintiff to show that the obstructions had been there for any particular length of time, or, indeed, that they had not dropped there shortly before she passed over the sidewalk. Negligence of the defendant surely cannot be predicated of any act of this kind, unless it is accompanied by some unreasonable delay to have the obstructions removed, and the sidewalk restored to its proper condition.

Because of this defect in the proof, the plaintiff had not, at the close of her evidence, made out a case to charge the defendant with the negligence of which she accused it, and it was error in the court to deny the motion to dismiss the complaint on the ground that the negligence of the defendant company had not been shown. For tnis reason the judgment and order appealed from must be reversed, and new trial granted, with costs to the appellant to abide the event

All concur.


author: DALY, P. J.

text:
    Henry E. Walton, Resp't, v. Margaret Mather, App'lt.

      (Supreme Court, Appellate Term, First Department,

      Filed April 27, 1896.)

    1. Contract—What is.
    Where conditions are left indefinite, to be fixed by a further agreement^ there is no contract binding the parties.
    8. Same—Adoption.
    The parties may, by a verbal agreement, adopt a prior memorandum as a final contract.
    3. Same—Unilateral.
    Where a memorandum is signed by both parties, but recites that “ I have engaged” plaintiff’s services, the signature of plaintiff to the memorandum is'an assent to the engagement therein specified.
    Appeal from a judgment of the general term of the city court, affirming a judgment entered on a verdict for plaintiff and affirming an order denying a motion for a new trial.
    Dittenhoefer, Gerber & James, for app’lt; Nathan Lewis and Samuel G. Adams, for resp’t.
   DALY, P. J.

In the month of June, 1890, the plaintiff was engaged by the defendant’s agent as actor and stage manager, and they signed the following memorandum:

“This memorandum certifies that I have engaged, this 12th day of June, 1890, Mr. Henry E. Walton for the Margaret Mather Dramatic Company season of 1890-1, and at a salary of seventy-five (75) dollars per week, subject to the conditions and regulations of a contract which is to be substituted for this memorandum.

“[Signed] D. C. Willoughby.

H. E. Walton.”

This writing afforded no ground of action by either party against the other, as neither was under any obligation to subsequently agree to conditions and stipulations, and a refusal to do so would be a sufficient answer to a demand for a substituted contract. Mayer v. McCreery, 119 N. Y. 434; 29 St. Rep. 690. Where conditions are left indefinite, to be fixed by a farther agreement, there is no contract binding upon the parties. Law v. Pemberton, 10 Misc. Rep. 362 ; 63 St. Rep. 435; Chinnock v. Marchioness of Ely, 4 De Gex, J. & S. 638; Bertel v. Neveux, 39 Law T. (N. S.) 257. But it appears from the evidence that, after the signing of the memorandum, and before the commencement of the season mentioned in it, the plaintiff was introduced by the agent, Willoughby, to the defendant, Miss Mather,; and a conversation ensued between them on the subject of the employment, which originally contemplated the production of one play, “Joan d’Arc.” According to the plaintiff’s testimony, they discussed, among other things, his receiving, -if she played her repertoire, — that is to say, other plays,—another contract guarantying him an additional fifty dollars a week, thus bringing him $125 a week; but she said the times were hard, and she could not afford to pay him, as she was not going to produce “ Joan d’Aro,” but she would fail back upon her repertoire, and he bad to play these five or six plays, and had to do it at the salary she signed for; and that he “ would have to stay on the original contract of seventy-five dollars a week.” The plaintiff’s version of this interview was disputed by the defendant and by Willoughby, but it clearly appeared that there was a conversation between them on business; and the testimony not only of plaintiff, but of the defendant and of Willoughby, was such that the jury might reasonably find that the defendant and the plaintiff adopted the written memorandum of July 12th, and the arrangement which it evidenced, as the final agreement between them. It was entirely competent for the plaintiff and defendant, within the terms of the memorandum, to make a verbal agreement as the substitute contemplated by it, or, by verbal agreement, to adopt such memorandum, or the engagement entered into by the agent, as a final contract; for the memorandum did not specify that the engagement was to be subject to the execution of a writing, and uo writing was necessary, as the,agreement was not within the statute of frauds. Tne parties might, by verbal agreement, waive the provisions for a substitute contract and for further conditions and stipulations. And this they did, in effect, by the defendant requiring the plaintiff to stay on the original contract, and his assent thereto by rendering the service for which he was engaged. The fair inference from the language used was that he was to go on and serve as actor and stage manager in the Margaret Mather Dramatic Company for the season of 1890-91 at the specified salary. Before the season was terminated, the plaintiff was discharged. He claimed damages amounting to his salary for the balance of the season, but the jury awarded him only two weeks’ salary. This was upon the defendant’s evidence of a usage that theatrical engagements were understood to include a proviso for a discharge upon two weeks’ notice. Ho question-arises upon this evidence, since the plaintiff does not appeal.

The last contention of the appellant is that the memorandum, if an agreement, was unilateral, and that plaintiff agreed to nothing on his part; but the signature of the plaintiff to the memorandum was an assent to the engagement therein specified, and the evidence, apart from the memorandum, shows that the plaintiff was engaged as actor and stage manager, and' his signature was an as-sen c to that engagement.

The judgment and order should be affirmed, with costs.

All concur.


author: McADAMS, J.

text:
    Publishers' Printing Company, Resp't, v. Gillin Printing Company, App'lt.

      (Supreme Court, Appellate Term, First Department,

      Filed April 27, 1896.)

    Attokney and client—Lien.
    In the absence of proof that there was a fraud or collusion between the parties or the attorney’s lien was necessary for ills protection, a judgment, entered by plaintiff's attorney after'a settlement between the paities, though ho had no notice thereof, will he set aside.

      Appeal from an order denying a motion to set aside a judgment in favor of plaintiff.
    Smith & Cochrane, for app’lt; D. Salomon and C. Wehle, for resp't.
   McADAMS, J.

The action was commenced, November 9,1895, by the service of a summons and complaint on the defendant to recover $291.07 due on contract. On November 15th, the last day of the six within which the defendant might appear and answer, the defendant paid the plaintiff the amount claimed, and took a receipt, entitled in the action, specifying that the same was in full settlement, and that it was agreed that the action be discontinued, without costs to either party as against the other. On the following day the plaintiff’s attorney, in ignorance of the settlement, entered judgment for the full amount of the claim and costs, and issued an execution thereon to the sheriff, who levied upon and took possession of the defendant’s place of business. The defendant then moved to set aside the judgment, execution, and levy, and the motion was denied, unless the defendant, within five days, paid to the plaintiff’s attorney the sum of $20.96, costs and disbursements of the action, and $27.64, sheriff’s fees incurred by reason of the levy; and the order provided that, on such payments being made, the defendant should receive an order of discontinuance in satisfaction of the judgment. Upon appeal the order was affirmed by the general term, and from such affirmance this appeal is taken.

The plaintiff claims that, under section 66 of the Code, its attorney had a lien upon his client’s cause of action, which could not be affected by any settlement had between the parties before or after judgment, and that he had the right to proceed as he did. A sufficient answer to this is found in the language of the court of appeals in Lee v. Oil Co., 126 N. Y., at page 587, 38 St. Rep. 662 :

“ We are of the opinion that the existence of such a lien in favor of the attorneys does not confer a right on them to stand in the way of a settlement of an action which is desired by the parties, and which does not prejudice any right of the attorneys. We do not think that such an agreement deprives a party of the right to control the management of his own cause, and to determine when the litigation shall cease, and how far it will be extended. The client still remains the lawful owner of the cause of action, and is not bound to continue the litigation for the benefit of his attorneys, when he judges it prudent to stop,- provided he is willing and able to satisfy his attorneys’ just claims. In fact, the lien under the agreement was intended for, and operates only as, a security for the attorneys’ legal claims, and unless those are prejudiced by the client’s contract, she has unrestricted control of the subject of the action, and of the terms upon which a settlement shall be effected. If it were permitted to the plaintiff’s attorneys to continue the action for any purpose, it could be done ¡anly at their expense, and for the sole purpose of collecting their claims against the plaintiff. The right of recovery in such a case would be limited by the extent of their lien, and we are unable to see how they would be benefited by being permitted to prosecute such an action.”

In a subsequent case (Poole v. Belcha, 131 N. Y. 200 ; 42 St. Rep. 856), the same court said :

li In order to warrant the court in diáregarding a settlement and release made in an action, it must be shown that to give full effect to them will operate as a fraud upon the attorney, or. at least, to his prejudice, by depriving him of his costs, or turning him over to an irresponsible client. * * * The lien secured to an attorney by section 66 of the Code does not prevent the party who owns the judgment from receiving payment thereof and executing a discharge. When it is shown that such payment or discharge will operate to deprive the attorney of his costs, the court has power to protect him; but it cannot be assumed that a settlement is in fraud of his rights. Until the lien of the attorney is asserted in some way, the judgment remains the property of the client.”

See, also, Drago v. Smith, 92 Hun, 536; 72 St. Rep. 418.

The attorney is a mere agent oE the client, and is supposed to follow the instructions and oarry'out the agreements of his principal. The act of entering judgment and issuing execution though performed by the attorney, was, in contemplation of law, the act of his principal, who was responsible therefor. If the plaintiff failed to notify its attorney of the settlement and agreement it liad made, tliat was its misfortune, and the consequence cannot be visited upon the defendant, which had a right to assume that the plaintiff would carry out its agreement by controlling its attorney to the extent of seeing that the agreement made to discontinue' was faithfully observed. The only claim the attorney liad was upon his employer, and the right conferred by section 66 of the Code was a mere security, by way of lien, which might or might not, according to circumstances, be necessary for the attorney’s protection. If his client was irresponsible, or refused to pay'him, he might have applied to the court, on notice, for leave to continue the action, in aid of his lien, on his own account, and at his own risk. Murray v. Jibson, 22 Hun, 386; Goddard v. Trenbath, 24 id. 182; Dimick v. Cooley. 3 Civ. Proc. R. 141; Oliwill v. Verdenhalven, 26 St. Rep. 115; Pitcher v. Robertson, 21 Supp. 66. And the defendant might have secured the determination of the question whether such lien was nepessary to the attorney’s protection before being harrassed by a judgment and a levy upon its property. The course taken gave the defendant no such opportunity. The first notice it had of the plaintiff's breach of contract was the levy on its property by the sheriff.

A proceeding to enforce the attorney’s lien in a case settled by the client before judgment is in some respects analogous to one where a settlement is made after judgment, and where the client has discharged the judgment of record. The remedy in such a case is to move to vacate the satisfaction to the extent of the attorney’s lien; and where it appears, that the client is irresponsible, and the satisfaction is made with knowledge of the attorney’s lien, and collusiveljr, with intent to defraud him of his compensation, the court will furnish him the necessary protection Commercial Telegram Co. v. Smith, 57 Hun, 176; 32 St. Rep. 445; Bailey v. Murphy, 136 N. Y. 50; 49 St. Rep. 82 ; Guliano v. Whitenack, 9 Misc. Rep. 562; 62 St. Rep. 84; Howitt v. Merrill, 113 N. Y. 630; 22 St. Rep. 619. But it will not do for an attorney, in either of the cases put, to determine for himself that the lien is necessary for his protection, and to attempt to enforce it, without some application to the court, founded on notice to the adverse party. Here the attorney entered a judgment for the amount of the client's claim, and issued an execution to collect it, with his taxable costs: and the court below made an order that the defendant should pay the attorney, not only his taxable costs, but also the sheriff’s fees for making a levy on its property. There is nothing in the case showing that the plaintiff is irresponsible, or unwilling to pay its attorney, or that he made any demand upon his client for compensation, or any effort whatever to collect his claim from it. Even assuming that the question of enforcing the lien could then be considered, there was nothing before the court showing that the settlement was collusive, or in fraud of the attorney’s rights, or that it could by any possibility operate to his prejudice. There was, therefore, no justification for permitting the attorney to collect from the defendant taxable costs which his own client had agreed to pay, much less mulct it with sheriff’s fees incurred by reason of the neglect of the plaintiff to observe its agreement to discontinue the action.

It follows that the order appealed from must be reversed, and she motion granted, with costs.

All concur.


author: WILLIAMS, J.

text:
    Henry Rosenhain, Resp't, v. Thomas P. Galligan et al., App'lts.

      (Supreme Court, Appellate Division, First Department,

      Filed May 1, 1896.)

    1. Negligence—Duty.
    Where persons are carrying on business, and, in so doing, occupy the street to a certain extent, with the consent of the city that they might so use it, they are under a legal obligation and duty to the public traveling along the street to exercise care, proportionate to the danger to he apprehended, to protect the public from the injury resulting from the use of their apl pliances in carrying on such business.

      %. Same.
    Where such persons are engaged in removing rock from land adjoining a street by means of a derrick, they are under obligation, and it is their duty, to exercise care as to the use made of the d< trick and to refrain from attempting to lift and remove at one time too large a weight of stone
    3. Same.
    The question whether the failure to have a shed or cover over the sidewalk and under the guys extending over it was negligence, is one for the jury.

      Appeal from a judgment, entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes.
    Hamilton Wallis, for app’lts; John M. Bowers and Robert L. Luce, for resp't.
   WILLIAMS, J.

No question seems tobe made by appellants as to the question of contributory negligence. There was sufficient evidence for the. jury, and the case was properly submitted, as to the absence of contributory negligence.

The real questions in controversy relate to the alleged negligence of the defendants. It is claimed there was not sufficient evidence in the case to authorize the jury to find the defendants guilty of negligence which caused the injuries to the plaintiff, and that there were errors committed by the court in submitting this question to the jury. It seems to us that there was evidence upon which the jury might find the defendants guilty of negligence upon all or any of the questions suggested by the court. It will be remembered that the plaintiff, when he was injured, was walking along a public street, in a place where he had a legal right to be, and where the defendants had no right to subject him to any unnecessary danger. Assuming that they were carrying on their business, and in doing so were occupying the street to a certain extent, with the consent of the city that they might so use the street, still they were under a legal obligation and duty to the public traveling along the street to exercise care, proportionate to the danger to be apprehended, to protect the public from injury resulting from the use of their appliances in carrying on such business. They stretched some of the heavy wire cables or guys over the sidewalk, and fastened others in the rocks about the lots. These supported and held in place the heavy derrick used in raising and removing from the excavation tons of rock at a time. These appliances were certainly danderous to travelers along the sidewalk where this accident occurred. Many people traveled over that street. The giving way of the cables or guys fastened in the street, or of those fastened in the lots, was liable and likely to injure people who chanced at the time to be passing along this sidewalk. 'Under such circumstances the defendants were under obligations, and it was their duty towards the traveling public, to exercise care in securing the various cables or guys, so that, in the use of the derrick, they would not give way ; and the court submitted the question to the jury whether sufficient care had been exercised in this respect to relieve the defendants from the charge of negligence. One of the cables or guys was fastened in the rock, or ledge of rock, at the northerly side of the eveavation, and this cable or guy palled out at the time of the accident, bringing with it a portion of the rock. Whether sufficient care was exercised originally in selecting the place to fasten this cable, or whether it had been sufficiently examined prior to the time of the accident, so as to discover any defects which may have exhibited themselves prior to the time of the accident, the derrick having been constantly in use for two and one half months, we think, was a proper question for the jury, and was properly submitted to ■them. It was not necessary that direct evidence should be given of such defects. They did exist at the time of the accident, or the cable or guy would not have pulled out, bringing portions of the rock with it, as it did do. The jury had the right to make legitimate inference from this fact, and other facts and circumstances disclosed by the evidence; and we cannot say their verdict, if based upon this ground of negligence, was not supported by the evidence in the case.

Then, again, the defendants were under obligation, and it was their duty, to exercise care as to the use made of the derrick, to refrain from attempting to lift and remove at one time too large a weight of stone; and it was a proper subject of inquiry whether, on the occasion of the accident, there was not negligence in this respect on the part of the defendants. They attempted to raise a weight of seventy-five tons, but could not do it. They could only have raised about ten tons. They did not intend to raise so large a weight. The chain got caught in a pile of rock unintentionally. The force applied was so great as to bend the derrick, and, when the force was withdrawn finally, the northern cable or guy pulled out, and, as a result, the derr-lc fell, and one of the cables or guys stretched over the sidewalk came down upon the plaintiff and caused his injuries. Whether there was negligence in applying and continuing to apply the power to the derrick, when it was, or should have been, discovered that the chain was attached to so large a weight; whether the defendants were not wanting in proper care in the use of the derrick, and the power applied thereto, at the time of the accident,—was a proper subject of inquiry, and was properly submitted to the jury as a ground of negligence, in view of the evidence in the case ; and, if the verdict of the jury was based upon negligence in this respect, we cannot say it was unsupported by the evidence.

The third ground of negligence submitted to the jury was the failure to have a cover or shed, over the northerly sidewalk, and below the cables or guys which were fastened in the street. The jury was permitted to determine whether the defendants did not, in this respect, neglect to perform a duty which they owed to the public, and to the plaintiff, traveling along this sidewalk. We think this was a proper question for the jury, and was properly submitted. The evidence shows the street in question was traveled by a large number of persons, and that there were many persons in the street at the time of the accident. While the court would not have been justified in charging the jury, as a matter of law, that it was the duty of the defendants to have a cover or died over the walk, it certainly could not be said, as a matter of law, that it was not their duty to have a cover there. It was fairly a question of fact, for the jury to determine, whether, under the circumstances disclosed in this case, that duty existed. It is within our observation that such covers or sheds are frequently built in the city of Hew York for the protection of the public passing along the sidewalks, where buildings are being constructed or improvements are being made. They certainly are necessary in some cases, and a failure to have them would clearly be negligence. In other cases, they would not be necessary, and a failure to have them would not be negligence. In this case, we think it was a question for the jury, and was properly left to them to be determined. We conclude that the question of the defendants’ alleged negligence was properly submitted to the jury, and their determination should not be disturbed by the court.

We have examined the exceptions taken to the charge and requests, and find none of sufficient merit to call for special mention here, or for a reversal of the judgment. The trial court carefully protected the rights of the defendants. The verdict of the jury was not large, and we think the judgment and order appealed from should be affirmed, with costs.

All concur.


text:
    Amos E. Woodruff, Resp't, v. William Austin, App'lt.

      (Supreme Court, Appellate Term, First Department,

      Filed April 7, 1896.)

    Appeal—Rendered unavailing by act oe appellant—Dismissal.
    An appeal will be dismissed where the appellant by his own act has deprived himself of any advantage to be gained by a reversal except relief from the costs imposed by the order appealed from. Where a nr n-resident defendant gave a general nolice of appearance in 1he action, after the denial of his motion to set aside the personal service of the summons on the ground that he was attending as a witness in this state when service was made, held, that the court acquired jurisdiction by the appearance, and an appeal from the order denying his motion would not be entertained, as a decision in his favor would be of no practical effect.
    Appeal from an order affirming an order made by the trial justice.
    Root & Marsh, for app’lt; A. Edward Woodruff, in pro. per.
   DALY, P. J.

— The defendant is a resident of Massachusetts, -and was served with a summons in this state on November 14, 1895. He moved to set aside such service, which motion was denied by an order dated November 29, 1895. Subsequently, and on December 12, 1895. he served notice of appearance in writing, containing a demand of a copy of the complaint. “ A voluntary general appearance of the defendant is equivalent to a personal service of the summons upon him” (Code, § 424), and, since the court has acquired jurisdiction by voluntary appearance, it is unnecessary to consider the questions raised by the appeal from the order denying the defendant’s motion to set aside the service of the summons. A reversal of the order would not affect the jurisdiction acquired by the voluntary appearance. The appellant claims, however, that his appearance was not voluntary, since he was compelled to take this step in order to prevent a judgment. against him. This objection was considered in Reed v. Chilson, 142 N. Y. 152; 58 St. Rep. 623, and it was said :

“ It is urged that the defendants were obliged to appear and present the facts to the court, or suffer default, and therefore the appearance was not voluntary. This does not change the effect of tiie appearance. When a party does not intend to subject himself to tiie jurisdiction of the court, he must appear specially for the purpose of raising tiie question of jurisdiction by motion ; or he may allow the plaintiff to go on and take judgment by default, without affecting Iris rights, since no judgment entered without service of process in some form could bind the defendant, and the question of jurisdiction would protect him at any stage of the proceedings for its enforcement, provided it has not been waived by his own act. But if the defendant elects to come before the «court, and there try the question, he cannot afterwards deny the jurisdiction, or be heard to claim that it was not a voluntary appearance.”

The defendant did not attempt to qualify his appearance, nor reserve any right to object that the court had not acquired jurisdiction of his person. But even a reservation of such right would have been unavailing. In Mahaney v. Penman, 4 Duer, 603, the court said, quoting from Granger v. Schwartz, 11 Leg. Obs. 346 :

“ The voluntary appearance of defendants under this section [referring to section 139 of the Code of Procedure, which was Identical with the present section 424, above quoted] has the same effect as a service of a summons on them on the day of appearance would have had. The clause referred to takes away, then, tiie right to appear with reservation of an objection to the jurisdiction, when such objection is purely personal.”

The appearance in this action was of the most formal and general character; but, had it been less so, it would have been sufficient to give the court jurisdiction, for it was held where a defendant moved to set aside service by publication, that an indorsement by his attorneys of their names on the motion papers as attorneys for the defendant was an appearance sufficient to give tiie court jurisdiction. Phelps v. Phelps, 6 Civ. Proc. R. 117, affirmed 32 Hun, 642. To avoid the effect of a waiver of jurisdiction of the person the appearance must be qualified for the sole and special purpose of raising the issue as to jurisdiction. Hankinson v. Page, 31 Fed. 184; Reed v. Chilson, supra. As the general appearance of the defendant in the action cured any defects that might have existed in the service of the summons, tiie appellant’s own act in voluntary coming into the action as a party has so altered the situation that a decision of Iris appeal will have no practical effect, and so we are not required to ..pass upon the questions raised bv it, under well-established rules. People v. Common Council, 82 N. Y. 575; Grow v. Garlock, 29 Hun, 598; In re Woodworth, 64 id. 522; 46 St. Rep. 432; Hansen v. Trustees, 9 id. 726 ; People v. Grace. 16 id. 1011. The question of costs involved in the decision below is no ground for entertaining the appeal. Commercial Union Assurance Co. v. Smith, 40 St. Rep. 758.

The motion to dismiss the appeal should be granted, with $10 costs and disbursements.

All concur.


author: CULLEN, J.

text:
    Joseph Kessler, Jr., by Guardian, etc., Resp't, v. Brooklyn Heights Railroad Company, App'lt.

      (Supreme Court, Appellate Division, Second Department,

      Filed April 28, 1896.)

    1. REei-iaENCE—-Imputed.
    The contributory negligence of a driver cannot be attributed to one riding in a vehicle, where the person so riding has no control of the vehicle nor of the driver in its management.
    3. Same.
    To he engaged in a joint enterprise, so as to make one of the parties thereto responsible for the act of the other, the former must have some voice in the control, management or direction of the enterprise.
    3. Same.
    Negligence on the part of the driver of a vehicle cannot he attributed to-a mere passenger.
    Appeal from a judgment 'entered on a verdict in favor of plaintiE, and from an order denying a motion for a new trial.
    S. D. Morris, for app’lt; Thomas Magner, for resp’t.
   CULLEN, J.

This is an action to recover damages for personal injuries. The plaintiff, with a number of others, was riding-in a truck, along Myrtle avenue, in the suburbs of the city of Brooklyn. On that highway the defendant operates a double-track railway, with dummy or steam engines, drawing short trains of cars. According to the story told by the plaintiff’s witnesses, the wagon was proceeding towards the city, in the right-hand track, when, from behind them, was heard a whistle of a train moving in the same direction. To enable this train to pass, the wagon was driven over to the left-hand track. As soon as' the train passed, the driver turned out of the left-hand track towards the track on which he had been originally going. Before he succeeded in entirely clearing his truck from the left-hand track, a train coming from the city struck the end of his wagon, the occupants of the wagon were thrown out on the ground, and the plaintiff was severely injured. The witnesses for the plaintiff testified that the condition of the highway was such that the wagon could not turn out to the right on the approach of the train from the rear, but was compelled to turn into the other track. The defendant denied the truth of this story, and asserted that the wagon was on the left-hand side of the highway, outside of the tracks, when suddenly it was turned across the track, in front of the approaching train. We think it clear that these facts presented a proper case for the jury. The ease was not that of an ordinary steam railroad, operating its trains over its own right of way The rights of the defendant were no greater than those of any other street railroad, whether operated by horses or electricity. It had only a paramount, not an exclusive, right of way. Fleckenstein v. Railroad Co., 105 N. Y. 655; 8 St. Rep. 82. Therefore, if the condition of the highway was such as to make it necessary for vehicles to drive in the defendant’s tracks, it was right that they should do so.

The serious question that arises on this appeal is whether the negligence of the driver, if any, was to be imputed to the plaintiff. The trial court charged that it was not. Though, as already stated, we think that negligence on the part of the driver was not established as a matter of law, this will not save the verdict, if the charge in the respect quoted was erroneous, for the jury might have found, as a matter of fact, that the driver was negligent. The principles applicable to the determination of this question are, we think, clear and well settled. In Robinson v. Railroad Co., 66 N. Y. 11, it was held that the contributory negligence of the driver could not be attributed to one riding in a vehicle, where the person so riding had no control of the vehicle nor of the driver in its management; that the person riding was only liable for the negligence of the driver where there existed the relation of principal and agent, or of master and servant, or they were engaged in a joint enterprise, in the sense of mutual responsibility for each other’s acts. This decision has been repeatedly followed. Dyer v. Railroad Co., 71 N. Y. 228; Hoag v. Railroad Co., 111 id. 199; 19 St. Rep. 80; Crawford v. Railroad Co., 121 N. Y. 652; 30 St. Rep. 866. As to Callahan v. Sharp, 27 Hun, 85; 95 N. Y. 652, seemingly against the rule above stated, a curious error has crept into the reports and digests. The case was first decided in accordance with the opinion reported, but, a reargument having been had, the case was decided exactly contrary to the first decision. This last decision is not reported, but it is this decision, and not the reported decision, that was affirmed by the court of appeals in 95 N. Y. 652.

The ground on which it is sought to charge the plaintiff in this case with the negligence of the driver is that he, with the driver and the other occupants of the wagon, were engaged in a joint enterprise. It appears, by the evidence, that the parties had gone out on a picnic, having borrowed the horses and vehicle; that the driver was one of their own number, who was selected to drive. As to how this picnic was arranged, and as to what part the several persons took in its management, the evidence is very meager, and is still more meager as to the part the plaintiff took in in it. I think enough appears in the evidence, however, to justify the statement of facts already given, and also to warrant the conclusion that all the parties, other than the plaintiff, were engaged In a common enterprise. As to the connection of the plaintiff with the control and management of this excursion, the following is the only evidence. The plaintiff testifies :

“ That day I went out on a picnic. Was invited to a picnic and went with them. It was called the ‘Albert Schneible Association.’ I was invited to go by Christian Seigrist. He is here."

Seigrist testifies:

“ I recollect Joseph Kessler going. Q. How did he come to goon that? A. I invited him. I asked Mr. Smith if he could not come, and he says, ‘All right.’ I asked Joseph to come. I asked Mr. Kessler,—‘ Mr. Smith, could he come ? ’ And he says, ‘All right; he could come and have a day's fun with me.’ ”

Neither party saw fit to inquire further into the relation of the plaintiff .to this excursion. It does not appear that he anywise took part in its organization, that he paid or contributed anything for its expense, that he had anything to do with its management or control, or that he was a member of the association. The testimony is that he “was invited to go." I think the fair interpretation of this statement is that he was to go merely as a guest. This certainly appears to have been the understanding at the trial.

A motion was made to dismiss the complaint at the end of the plaintiff's evidence. The defendant urged that the plaintiff, with the others, were all engaged in the one enterprise. To this the court remarked: “This boy appears to have been a guest, according to the testimony.” The counsel answered that it made no-difference whether he was a guest or not, that the rule was the same; but there was no denial that he was a guest, or any claim that the testimony was susceptible of a different inference. If we assume, as we "think we must, that this plaintiff was merely a guest, when we are of the opinion that any negligence on the part of the driver of the vehicle could not be attributed to him. It is doubtless true that, in one sense, he was engaged in a common enterprise with the others; that is, to go on the-excursion and enjoy the picnic. This alone, however, did not make him responsible for the acts of the driver. To be engaged in a joint enterprise, so as to make one of the parties thereto responsible for the act of the other, the party must have some voice in the control, management, or direction of the enterprise. In such case, even if any part of the work is delegated to one, the others are liable for his acts, because, as between the parties, the relation of principal and agent exists, as it does among partners. Between one who has no voice or control in the management of an enterprise, and no right to share in any, and those who are actually conducting the enterprise, it is plain that no relation of principal and agent exists orean exist. The sole ground of imputed liability, whether of contributory negligence or of injuries done others by negligence, is that the party has some right, voice, or control in the conduct of the enterprise. We can see no distinction in principle between one riding in a vehicle upon the invitation and as the guest of one person or of a dozen. If he is a guest, the question of liability is the same in either case. The plaintiff was, therefore, responsible only for his own negligence.

The judgment and order denying a new trial should be affirmed,, with costs.

All concur.


author: McADAM, J.

text:
    Joseph Jones et al., App'lts, v. William W. Mayer et al. Resp'ts.

      (Supreme Court, Appellate Term, First Department,

      Filed April 27, 1896.)

    1. Sale—Warranty.
    The manager and general agent of the business is authorized to sell goods with warranty.
    2. Same.
    Any affirmation of the quality or condition of the thing sold, not uttered as matter of opinion or belief, made by the vendor at the time of the sale, for the purpose of assuring the purchaser of the truth of the fact affirmc 1, and inducing him to make the purchase, if so received and relied on by the purchaser, is an express warranty.
    3. Damages—Warranty.
    Where material is sold to be.manufactured into articles of mercnandise, with warranty of its quality for that purpose, upon a breach the difference in value between the article made of the defective material and similar articles made of material equal to the warranty is a proper measure of damages.
    Appeal from a judgment m lavor of defendants on a counterclaim.
    Campbell, Ford & Hance, for app’lts; H. Joseph, for resp's.
   McADAM, J.

— The defendants are umbrella manufacturers, and the plaintiffs manufacturers of umbrella supplies. The defendants had an order for 150 umbrellas for the Chicago Fair, and informed the plaintiffs’ agent of that fact. The agent thereupon showed the defendants a sample, which he said was a good cover, and stated how much cheaper it was than what Mr. Ro«s, another dealer, was selling, and that the trade was using it largely. An agreement was thereupon made by which the plaintiffs were to make the covers similar to the sample for the 150 umbrellas referred to, and the defendants sent one to the umbrellas to the plaintiffs, that they might fit the covers. The parties then talked about the color of the covers, which it was agreed should be red, and the agent assured the defendants that the color would not come off. While some of the cases hold that authority without restriction to an agent to sell carries with it power to warrant Ewell’s Evans’ Ag. marg. p. 117, note 1; and see Moore v. King, 57 Hun, at page 226; 32 St. Rep. 808, the prevailing rule casts upon the vendee proof of the agent’s authority or the existence of a usage to warrant on such sales Bierman v. City Mills Co., 62 St. Rep. 468. In this instance all question as to authority is put at rest by the fact that the transaction was had with the manager and general agent of the business. Story, Ag. § 350; Whart. Air. § 124. The plaintiffs manufactured the covers, and delivered them to the defendants, who p.ut them upon the umbrellas, and sent, them to the Chicago Fair. About ten davs afterwards the defendants received a letter from the Fair, staling that the umbrellas, which were black, had turned red, the color of the covers. The defendants had made an agreement to sell the umbrellas and covers at the Fair for $375, and they would have been worth that sum if the covers had been as warranted; but, in consequence oi the damage done to the umbrellas by the covers, the defendants were forced to sell them as “seconds,” at a loss of 25-per cent., which on the $375 amounted to $93.75. The plaintiffs’ bill was $51.75. Upon receiving the goods back from Chicago, the defendants went with one of the umbrellas to the plaintiffs and showed them that after taking the cover off the entire umbrella was dyed red, and that in attempting to wash it streaks would run down the umbrella; and stated that in consequence they would have to return all the covers to the plaintiffs, and demand the amount of their loss. The plaintiffs said they did not care what loss the loss defendants had sustained, but they might return the covers, and this was done. The plaintiffs then sent word that they would not take covers that were torn. The price of these was $19.50, and for this sum the defendants sent the plaintiffs a check. Thereafter the plaintiffs returned to the defendants the untorn covers, which the defendants laid aside, notifying the jffaintiffs that they would hold them subject to their order. The action is to recover $32.25, being the contract price of the covers, less $19.50 paid by check. The defense, after proofs of the facts narrated was a counterclaim for breach of warranty, in which the damages were laid at $93, and for this sum the justice awarded the defendants judgment, from which the plaintiffs have appealed..

It is elementary that, in order to constitute a warranty, it is not' necessary that the vendor should use the word “warrant” or “warranty.” If the language actually used at the time of the sale upon' a fair construction amounts or is equivalent to an undertaking on the part of the owner that the property is what it is represented to be, this is sufficient to create a warranty. Story, Sales (4th Ed.) § 357; Fairbank Canning Co. v. Metzger, 118 N. Y. 260, 28 St. Rep. 775. “Any affirmation of the quality or condition of the tiling-sold, (not uttered as matter of opinion on belief), made by the sel-,ler at the time of the sale, for the purpose of assuring the buyer of the truth of the fact affirmed, and inducing him to make the purchase, if so received and relied on by the purchaser, is an express warranty. And in cases of oral contracts, on the existence of these necessary ingredients to such a warranty, it is the province of the jury to decide, upon considering all the circumstances attending the transaction. Shippen v. Bowen, 122 U. S., at page 581. In determining whether a warranty is intended, a decisive test is whether the vendor assumes to assert a fact of which the buyer is ignorant, or merely states an opinion or judgment upon which the vendor has no special knowledge, and on which the buyer may be expected also to have an opinion and exercise his judgment. In the former case there is a warranty; in the latter not. Titus v. Poole, 145 N. Y., at page 426, 63 St. Rep, 344. Here the representation was made during the course of the dealing which led to the bargain, and entered into and formed part of it. It was, therefore a warranty. Benj. Sales (1st Am. Ed.) § 610. The representation was certaintly a material one, and, having been made by the manufacturers, supposed to have special fenowcdge on the subject, it undoubtedly influenced the defendants in making the contract; for it cannot be inferred that they would have purchased covers which, when put on their goods, would make them an entirely different color, and materially injure them. The defect was not open and visible, and the defendants, upon being assured that the color would not come off, were relieved from the necessity of testing the covers for the purpose of ascertaining .whether they had been imposed upon or not. Dounce v. Dow, 57 N. Y. 16. They had a right to rely upon what the manufacturers said, and, according to the finding of the justice, did rely upon it, and did not know that any injury would result. It follows that the defendants were entititled to recover the damages caused to their property-by the breach.

The rule that damages are the difference between the actual value of the article sold with its defects and what it would have been worth if it had conformed to the warranty, does not limit the damages to the difference in cases where the manufacturer knows that the article is to he used by the vendee in a specified manner, and that such use in connection with other articles may, if the warranty fail, damage the vendee. In such a case subsequential damages are recoverable, for they flow directly and naturally from the breach, and may fairly be supposed to have been within 1 he contemplation of the parties. Thus, one buying coal dust to be used in making brick stated that, if mixed with soft coal dust, it would destroy the brick, and the celler warranted that it was free from soft dust. Held, that the measure of damages for the breach of warranty was not the difference in value between the article contracted for and the article received, but was the injury resulting to the brick from the presence of such soft coal dust. Millburn v. Belloni, 39 N. Y. 53. The plaintiffs must have known that if the color came off the covers it would inevitably injure the umbrellas, and there was, therefore, no necessity for telling them that result would follow.

Where material is sold to be manufactured into articles of merchandise, with warranty of its quality for that purpose, upon a breach the difference in value between the article made of the defective material and similar articles made of material equal to the warranty is a proper measure of damages. Parks v. Tool Co., 54 N. Y. 586. And see Moore v. King, 57 Hun, 224, 32 St. Rep. 808; Bagley v. Mill Co., 22 Blatchf. 342; Swain v. Schieffelin, 34 St. Rep. 888. Where defendant contracted to construct a refrigerator for plaintiff, who was engaged in the business of preparing poultry for market, and with knowledge that plaintiff intended to at once make use of the refrigerator for freezing and preserving chickens for the May market following, expressly warranted that the freezer would keep them in perfect condition. This it failed to do, and in consequence a large quantity of chickens were lost. In an action upon the warranty the cotirt charged in substance, that the plaintiff was entitled to recover as damages the difference between the value of the refrigerator as constructed and its value as it would have been if made according to contract, and also to recover the market value of the chickens lost, less cost of getting them to market, and fees of commission men charged on sale; and. the charge was held to be correct. Beeman v. Banta, 118 N. Y. 538; 29 St. Rep. 939. Gains prevented as well as losses sustained, are proper elements of damage. Wakeman v. Manufacturing Co., 101 N. Y. 205. The policy of the law is to allow recovery of the actual loss in all such cases. 2 Sedg. Dam. (8th Ed.) p. 481. See, also, Laufer v. Furnace Co., 84 Hun, 311; 65 St. Rep. 560. The damages allowed by the justice on the counterclaim fall within the principles governing breaches of warranty of the character referred to, and were properly assessed on the facts found. Having been compensated for the torn covers, and accepted the untorn ones under an agreement justifying their return, the plaintiffs’ alleged cause of action was properly disallowed.

For these reasons the judgment must be affirmed, with costs.

All concur.


author: PER CURIAM.

text:
    A. L. Martin, App'lt, v. Helen Moore et al., Resp'ts.

      (Supreme Court, Appellate Division, Second Department,

      Filed April 28,1896.)
    1. Appeal—Case—Certificate.
    Where the record fails to state that it contains all the evidence, the appellate court will assume that there was evidence sufficient to warrant the judgment rendered.
    2. Parties—Mo rtg age—Foreclosure.
    A mere agent and attorney who is employed to conduct negotiations for the assignment of a mortgage from a debtor to bis creditor has no interest, either legal or equitable, individually or as trustee, in the mortgage that-will entitle him to foreclose it.
    Appeal from a judgment entered on the decision of the court on a trial before it without a jury.
    A. L. Martin, in pro. per.; Milton A. Fow’er, for resp’ts.
   PER CURIAM.

The record in this case fails to state that ifc contains all-the evidence, in consequence of which we must assume that there was evidence sufficient to warrant the judgment rendered. We have, however, examined the evidence contained in the record, and are of opinion that it is sufficient to support the finding of the trial court. It appears by the testimony of plaintiff that he was employed by certain creditors to collect debts which were owing to them by one Statts; that, when plaintiff negotiated with Statts for payment, he delivered to the former the mortgage now sought to be foreclosed, under an arrangement that plaintiff was to sell the same for a specified sum, apply the proceeds to the payment of the debts, and deliver the remainder after payment toStatts. And it was then suggested that Teator, one of the creditors represented by plaintiff, might be induced to purchase the same at a specified sum, and, if so, that Teator could pay himself and the other creditor for whom plaintiff acted, and that Statts would trad'; out the remainder at Teator’s store. Plaintiff took rhe mortgage, negotiated a sale of it to Teator on the specified terms, and thereafter an assignment of the mortgage was made by Statts to Teator, and an agreement drawn and executed, stating the terms upon which Teator took title to the mortgage. It thus appears that plaintiff’s connection with the transaction was the ordinary one of an attorney collecting a debt for his client. And it is evident that when he received the mortgage he took no title to the same, either as trustee or otherwise. It was not intended that he should take title as trustee, or acquire any beneficial interest therein, either for himself or another. He was a mere agent and attorney, was employed as such, and as such conducted the negotiations which resulted in the assignment of the mortgage to Teator. He therefore is without interest, either legal or equitable, individually or as trustee, in the mortgage, and the conclusion of the court in. this regard is sound in fact and law. This result renders unnecessary of consideration whether error was committed by the court in the reception of evidence upon the trial. We may assume that the court erred in this regard. But plaintiff was not thereby prejudiced, for, upon his own showing, he could not recover, as he was without interest in the subject-matter.

It follows that the judgment appealed from should be affirmed, with costs.


text:
    Andrew J. Nutting, App'lt, v. Kings County Elevated Railroad Company, Resp't.

      (Supreme Court, Appellate Division, Second Department,

      Filed April 28, 1896.)

    1. Appeal—Honafpealable order.
    An order denying a motion, made immediately after the empanelling of the jury, that the trial proceed upon the amended complaint and answer, is not appealable.
    2. Same.
    In such case, it is the duty of the party aggrieved to put bis evidence or case in such position as will properly present the question involved, submit to an adverse result, and review the ruling either on appeal from the judgment, or by a motion for a new trial.
    Appeal from an order denying a motion that the trial proceed on the previously amended complaint and answer.
    Edward M. Grout, for app’lt; Delos McCurdy, for resp’t.
   CULLEN, J.

This action has been twice tried. On each trial, plaintiff has recovered a verdict, and had judgment entered in his favor. Both judgments have been reversed by the general term, and a new trial ordered. On the second trial the court permitted certain amendments to the plaintiff’s complaint. When the cause was brought on at circuit for a third trial, and after the impaneling of a jury therein, the order appealed from recites that the plaintiff moved “that this trial proceed upon such amended complaint and answer of the defendant, and not upon the original complaint and answer of the defendant, and requesting the court to pass upon the question at this stage of the proceedings.” It was ordered that the said motion be denied. The plaintiff was allowed to withdraw a jurer, and the case went off for the term. We sec no authority for this appeal. The juror having been withdrawn, there was simply a mistrial. The order appealed from neither granted any amendment to the pleadings, nor denied any application for amendment. The law directs how trials shall proceed, and no order of the court thereon was either requisite or appropriate. The action complained of was in fact a mere ruling on the trial, or rather an expression of opinion of how the court would rule when the question actually arose, which could only occur during the progress of the trial. Intimations are sometimes given by the court as to its view on a question of law, which will determine the result of the trial, in advance of the occasion which calls for the ruling, for the purpose of saving time, both of the court and counsel. In such case it is the duty of the party aggrieved to put his evidence or case in such position as will properly present the question involved, submit to an adverse result, and review the ruling either on appeal from the judgment. or by a motion for a new trial There is no authority, however, for reviewing any ruling of the court upon the trial, save by exception and subsequent appeal. There was no more authority for entering an order on the ruling of the court made at the opening of the case than there would have been on a ruling made either in the exclusion of evidence, or in the charge to the jury on the same subject. The so-called ruling or order of the court was a mere expression of opinion, which in no wise can control any subsequent trial. As to the future, it is a mere nullity, but the plaintiff cannot raise this objection, as the order seems to have been entered at his request. The cases cited by the plaintiff are not in point. In People ex rel. Lardner v. Carson, 78 Hun, 544; 61 St. Rep. 161, there was no ruling on the trial, but the court refused to allow the cause to proceed to trial, and struck it from the calendar. This action of the court violated'a substantial right of the plaintiff, for he must go to trial before there could be any judgment rendered in the action from which he could appeal. It was therefore justly the subject of review, either by appeal or by mandamus, and no question as to the propriety of the remedy appears to have been raised. In Schoonmaker v. Blass, 88 Hun, 179; 68 St. Rep. 382, the order appealed from granted an amendment to the pleadings, and such amendment was not made as upon trial, for the cause was put over the term. Such an order was unquestionably the subject of direct review.

The appeal should be dismissed, but, as we regard the order appealed from as a nullity, there shquld be no costs of this appeal.

All concur.