text:
    John O’Donnell, Resp’t, v. East River Gas Company, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 2, 1895.)

    1. Master and servant—Appliances.
    The master is bound to provide the servant with a proper appliance or instrument to perform the work he is directed to do.
    2. Same—Delegation.
    In such case, the master is liable for the result of negligence on the part of any person who undertakes to represent him.
    Appeal from a judgment entered on a verdict in favor of' plaintiff, and from an order denying a motion for a new trial.

      William J. Kelly, for app’lt;

      H. A. Montfort, for resp’t.
   Brown, P. J.

This action was brought to recover damages for personal injuries sustained from the explosion of a boiler. The plaintiff was employed by the defendant as a day laborer, and upon the day of the accident- was directed by a foreman of the defendant to assist fn cleaning out one of two boilers standing side by side within a few inches of each other. The other boiler, at the time of the accident, was in use, working under a pressure of about fifty pounds of steam. Plaintiff stood upon a platform, about five feet from the ground, holding the nozzle of a hose, from which water was forced into the tubes of the-boiler. Within a few minutes after commencing the .work an explosion occurred, plaintiff was thrown to the floor of the boiler room, and received the injuries complained of. ’A similar explosion had occurred immediately previous, while the engineer was engaged in cleaning the boiler with the same hose, but the plaintiff had no knowledge of that fact at the time he was directed to perform the work. It appeared from the testimony that the hose used was attached to a tire hydrant, which was connected by a pipe with a steam pump. From this pump a four-inch pipe ran to the East river. This pipe and pump were used every two or three weeks to pump naphtha, from which the defendant manufactured gas, from boats on the river to a tank in the defendant’s yard. They were also used to pump water from the river, and it was customary, after pumping naphtha, to wash out the pipe by pumping water through it. As originally laid, the pipe drained to the river, but there was testimony that about half way between the pump and the river it had become sagged so that naphtha could stand in the pipe; and it also appeared that, after pumping, small quantities of naphtha would remain in the pump unless it was washed out. The engineer testified that naphtha had been pumped about a week before the accident, and that he had neglected to wash out the pipe before attempting to clean the boiler. The testimony permitted the conclusion that naphtha which had been permitted to remain in the pipe and pump was carried through the hose into the tubes of the boiler, a<nd, there coming in contact with the heat from the other boiler, caused the explosion. The appellant’s contention is that this was due to the negligence of the engineer, who was a fellow servant of the plaintiff, and therefore the defendant is not liable for the result of the accident. A discussion of decided cases upon this branch of the law is never profitable. There is little room for disagreement as to the general principle of law applicable to the relation of master and servant. The difficulty always arises in their application to the particular case before the court. In our opinion, the evidence presented a case where the employer failed to provide the servant with a proper appliance or instrument to perform the work he was directed to do. The plaintiff was directed to clean the boiler. The pump, suction pipe, and hose were the appliances with which that work was to be done. The defendant’s duty was to see that they were in a reasonably safe condition when they were delivered to the plaintiff. That duty could not be delegated. Whoever undertook it represented the defendant, and if it was negligently performed the defendant was liable for the result of that negligence. The rule applicable to the case is stated clearly in Fuller v. Jewett, 80 N. Y. 46-52, as follows:

“We understand the principle of these cases to be that acts which the master, as such, is bound to perform for the safety and protection of his employes, cannot be delegated so as to exonerate the former from liability to a servant who is injured by the omission to perform the act or duty, or by its negligent performance, whether the nonfeasance or misfeasance is that of a superior officer, agent, or servant of a subordinate or inferior agent or servant to whom the doing of the act or the performance of the duty has been committed. In either case, in respect to such act or duty, the servants who undertakes or omits to perform it is the representative of the master, and not a mere coservant with the one who-sustains the injury. The act or omission is the act or omission of the master, irrespective of the grade of the servant whose negligence caused the injury, or of the fact whether it was or was not practicable for the master to act personally, or whether he did or did not do all that he personally could do by selecting competent servants, or otherwise to secure the safety of his employees. • ' We are of the opinion that the case was in all its aspects one for the jury, and that the damages were not excessive.

The judgment must be affirmed, with costs.

All concur.


source: Caselaw Access Project

author: Pratt, J.

license: Public Domain

text:
    Margaret E. Purcell, Resp’t, v. Long Island City, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 2, 1895.)

    Schools—Janitor—Liability op city.
    Where the city charter entrusts the care of the schools to the hoard of education and the trustees, the city is liable for the discharge of a school janitor in violation of a contract of employment made by them.
    Appeal from a judgment entered on a verdict directed by the court.

      William E. Stewart, for app’lt;

      I. Newton Williams, for resp’t.
   Pratt, J.

This is an appeal from a judgmeht entered on a verdict directed by the court in an action for breach of contract in discharging plaintiff without cause, before the expiration of her contract. The plaintiff was employed as j an i tress for one year, commencing September 1, 1892, and ending August 31, 1893. ft was the duty of the defendant, under its charter, to establish and maintain schools. The charter makes the board of education and the trustees the lawful instrumentalities of the defendant for caring for the schools, and the appointment of janitor is a reasonable and necessary part of their duties, and, in so acting, it is within the scope of their authority, and for the benefit of the defendant.. This principle has been decided by this general term, in effect. See Leonard v. Long, Island City, 47 St. Rep. 761. This case must stand as an authority until it is overruled, and renders any discussion unnecessary. There is no error in the rulings of the court, upon the trial.

Judgment affirmed, with costs.

All concur.


author: Brown, P. J.

text:
    John Kennedy et al., App’lts, v. Ball and Wood Company, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed, December 2, 1895.)

    1. Trial—Inconsistent verdicts.
    Where the general verdict cannot stand with the special findings, the special findings control the general verdict, and the court must render judgment accordingly.

      2. Same.
    In such case, the verdict as rendered should not have been received, but the attention of the jurors should have been called to its inconsistencies, and they should have been sent back to their room to reconsider the case.
    3. New tbial—Affidavit of jurors.
    The rule that affidavits of jurors will not be considered to impeach their verdict, does not apply when the inconsistency of the jury’s findings appear on the face of the verdict.
    Appeal from a judgment entered on a verdict; directed by the court in favor of defendant, and from an order denying a motion for a new trial, made on the minutes, and from an order denying a motion to modify the verdict.

      A. B. Smith, for app’lts; James M. Hunt, for respt.
   Brown, P. J.

This action was brought to recover about $600, claimed to be due to the plaintiffs by the defendant for work performed by the plaintiffs at Lancaster, Pa., during the year of 1892. The answer admitted the performance of the work and its value as alleged in the complaint, and as a defense pleaded (1) payment ; (2) a counterclaim of about $400, arising out of an alleged defective performance of a contract by plaintiffs to do certain work at Ilion, in the state of New York. The jury was instructed by the court to render a general verdict, and to answer specifically the three following questions: “ First. Have the plaintiffs been paid in full for the services at Lancaster mentioned in the complaint? Second. Was the work done by the plaintiffs at Ilion defective, insecure, and unworkmanlike? Third. If so, what damage did the defendant suffer by reason of the defective character of such work?” The jury found a general verdict for the plaintiffs for the full amount of their claim and interest, and returned an affirmative answer to the first two questions, and $200 as the answer to the third question. The court thereupon directed a verdict for the defendanfifor $200 upon the ground that the special finding, being inconsistent with the general verdict, was controlling. The plaintiffs moved upon the court’s minutes to set aside the verdict, which was denied. Subsequently, upon an affidavit made by all the jurors, the plaintiffs moved to correct the verdict by changing the answer to the first question from “Yes” to “-No,” and that judgment should be entered for the plaintiffs for the difference between the amount of the general verdict and the damages awarded on the counterclaim, which was also denied. Appeals from the judgment and from the orders denying the said motions are now before us.

It would, I think, be a reproach upon the administration of the law and the procedure of the courts if the judment rendered in this action must be allowed to stand. What is-beyond dispute is that it is impossible for the defendant to affirm positively that the jury intended to award it a verdict. A judgment in favor of a party to an action should rest upon a positive and clear decision in his favor. The decision may be illegal or erroneous, but our procedure contemplates that it shall not be doubtful or ambigu.ous, but positive and clear in favor of the successful party. In this case the findings of the jury are inconsistent. The general verdict cannot stand with the special findings. In such a case the law is that the special findings controls the general verdict, and the court must render judgment accordingly. Code Civ. Proc. §1188. But, like all other proceedings in the trial of an action, the conduct of" the jury, and its action in rendering the verdict, was subject to the control of and review by the court. The verdict' as rendered should not have been received, but the attention of ,the jurors should have been called to the inconsistencies, and they should have been sent back to their room to reconsider the case. It must be assumed that the jurors were honest, and intended to discharge their duties fairly and intelligently. They doubtless intended to decide the case in favor of one party or the other, and not to nullify their verdict, and cause the parties to lose the benefit of the trial. And it was apparent when the'verdict was rendered that there was a misunderstanding of the case in the minds of the jury, and a mistake in their conclusions. I know of no rule bf law which would have prevented the court then and there to have inquired of the jury the reason for their inconsistencies, to have explained to them the result of the verdict, and to have directed them to have returned to their room, and reconsidered the case.

The respondent, however, to sustain the judgment rendered, invoked the rule that affidavits of jurors will not be considered to impeach their verdict All the cases cited by the respondent, and others which I examined, in which this rule was applied, were ones in which the application was to set aside a general verdict, or a special finding where there was no general verdict. I have not found a case where the rule was applied when the inconsistency of the jury’s findings appeared on the face of the verdict. In such a case I do not think the rule is applicable. Affidavits of jurors have been received in exculpalioji of their action and in support of their verdict. In Sargent v. -, 5 Cow. J.06, the verdict was set aside on affidavits of jurors showing they had adopted a rule in estimating damages not allowed by law. This was approved in Ex parte Caykendoll, 5 Cow. 53, and in Dalrymple v. Williams, 63 N. Y. 361. That was going further, I think, than we would be called on to go in this case, as here the inconsistency of the jury appears on the face of the verdict, but in the cases cited it did not. But it is not necessary that we should consider that rule further, or explain its application. . The affidavit of the jurors was used upon the motion made by plaintiffs to change or set aside the special findings. .That motion, we think, was properly denied. To have granted it would have required the court practically to have decided the case. That it had no power to do. But if could have set the verdict aside, and granted a new trial; and that we think, it should have done: The case was not one which required any special findings from the jury. It was purely an action at law, and called for a money judgment only. The questions were not submitted to the jury for the court’s information, or with reference to any proceeding in the action by the court subsequent to the verdict,.but solely to inform the jury of the questions involved, and aid them in considering the evidence, and to arrive at a proper result. After a clear and intelligible charge, in which the several issues involved in the case had been presented to the jury, the court said:

‘‘In order that you may more readily determine these questions* I instruct you not only to render a general verdict one way or the other, * * * but also to pass upon these three special questions of fact which I have stated in writing. * * * These are all questions that you will necessarily have to consider in arriving at a general verdict. Perhaps, if you have them before you in writing, you will be aided considerably in arriving at a just and proper conclusion.”

It is evident from the result that the purpose of the learned judge to aid the deliberations of the jury, and to illuminate the questions at issue miscarried; and instead of a certain positive result, we have uncertainty and confusion, and probably a judgment not intended to have been given. Without speculating as to what the jurors did really intend, and disregarding their own explanation made in their affidavit, it is very plain that they did not decide the case in favor of either party, and that to direct a verdict for the defendant upon the findings is to give it the benefit of a technical rule of practice, to which it is not in justice entitled, and which was never intended to apply to such a case as this. We are of the opinion that the motion to set aside the verdict should have been granted.

The judgment and order denying the motion for a new trial must be reversed, and a new trial granted, with costs to abide the event.

The order denying the motion to amend the verdict is affirmed.

All concur.


text:
    Sue West Newall, Resp’t, v. Edward G. Woolfolk et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed December 2, 1895.)

    1. Negligence—Blasting. '
    A party cannot conduct the operation of blasting on his own premises, from which injury may be apprehended to the property of his neighbor, without the most cautious regard for his neighbor’s rights,
    2. Appeal—First instance.
    In an action for damages to real property, the objection, that the finding that the plaintiff is the owner of the property is not sustained by the evidence, cannot be raised in the first instance on appeal.
    Appeal from a judgment in favor of plaintiff.

      Thomas D. Huested, for app’lts;

      Milo J. White, for resp’t.
   Brown, P. J.

This action was brought to recover for injuries to the plaintiff’s property caused by the blasting of rocks by the defendants. The defendants were engaged from September, 1892, until January, 1894, in excavating in a rock cut nearMt. Vernon, upon the property of the New York, New Haven & Hartford Railroad Company. The plaintiff’s house was situated about 200 feet from where the blasting was carried on. The referee found upon sufficient evidence, and after a personal examination of the premises, made with the consent of the parties, that the walls and ceilings of the plaintiff’s house were cracked and broken and injured as the result of concussions and vibrations from such blasting.

The rule of law applicable to a case of this character was stated by the court of appeals in Booth v. R. W. & O. Railroad Co., 140 N. Y. 267; 55 St. Rep. 656. Mere proof of injuries sustained from the blasting would not sustain the action. It must appear that defendants failed to exercise due aud proper care. The maxim,Sic utere tuo ut alienum non laedas,” does not -prevent an owner of property from making proper use thereof, athough such use may inflict an injury upon his neighbor, The real meaning of the rule is as stated in the case cited, — that one may not use his property to the injury of any legal right of another. The defendant’s liability, therefore, depends upon the degree of care exercised; and this was to be determined by the danger to the adjoining property that was reasonably to be anticipated from the character of the work carried on.

It appeared that, in conducting the work of blasting, “ breasts" or rows of holes from fourteen to twenty feet deep, were charged with dynamite, and simultaneously exploded, making blasts so-powerful that the surrounding earth for a considerable distance was shaken, and logs placed upon the rocks, to deaden the blast, were thrown a distance of over 200 feet, and over the tops of houses. It was not disputed but that the rock could have been removed with much smaller blasts but it would not have been removed so expeditiously, and there would, jn using smaller blasts, have been much less profit to the defendants. The method adopted by the defendants was the. usual one for excavating rock, and the one most profitable to themselves. It is very evident that the defendants, in conducting this work, had regard only to-their own interests. Reasonable care, however, required from them a due regard for the interests of the adjoining property owners.

In the case cited it was said:

“ The law exacts from a person who undertakes to do even a lawful act on his own premises, which may produce injury to his-neighbor the exercise of a degree of care measured by the danger, to prevent or mitigate the injury. The defendant could not conduct the operation of blasting on its own premises, from which injury might be apprehended to the property of his neighbor, without the most cautious regard for his neighbor’s rights. This would be reasonable care only under the circumstances. If it was practicable in a business sense for the defendant to have removed the rock without blasting, -although at a somewhat increased cost, the defendant would, we think, in view of the situation, and especially after having been informed of the injury that.was being done, have been bound to resort to some other method."

The judgment has ample support in the testimony, and must ' be affirmed.

An objection is made by the appellants that the finding that the plaintiff is the owner of the property is not sustained by the evidence. This point does not appear to -have been raised specifically upon the trial. There was a motion to dismiss the complaint at the close of the case, upon the ground that no cause of action had been proven, but it was not suggested that there was a failure to prove ownership of the property. We think the defendants must be deemed to have waived the objection. If attention had been called to it, it would probably have been obviated by the production of the deed.

The judgment must be affirmed, with costs.

All concur.


author: Per Curiam.

text:
    Michael Hickey, App’lt, v. Hartford Fire Insurance Company, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed December 26, 1895.)

    Insurance—Policy—Cancellation.
    Where a fire insurance policy is left with the company’s agent with the express understanding and for the sole purpose of having another policy-issued in its place, such policy is not canceled until the new one is issued.
    Appeal from a judgment dismissing the complaint, and from an order denying a motion for a new trial, made on the minutes.

      Martin S. Lynch, for app’lt;

      Hubbell & McGuire, for resp’t
   Per Curiam.

The complaint in this action in effect alleged that the defendant, through its agent, who was duly authorized to effect and enter into contracts of insurance for it, in consideration of the sum of $6.50 paid by the plaintiff, made and entered into a contract of insurance by the terms of which it contracted and agreed to insure the plaintiff against loss or damage by fire upon a certain frame barn and contents owned by the plaintiff for the sum of $550. It then alleged that the barn and contents were destroyed by fire, and that the property so destroyed was of a value equal to the insurance; that proofs of loss were furnished the defendant, and that it refused to pay the same on the ground that before the fire the contract of insurance was canceled. The defendant, after admitting its incorporation, the authority of its agent, the destruction of the barn and contents by fire, the service upon it of proofs of loss, and that it refused to adjust the same, denied the remaining allegations in the complaint, and, in effect, alleged that the policy it had issued was canceled. Orí the trial the plaintiff was nonsuited. The court held (1) that the action was upon a policy which had been canceled, and (2) that the plaintiff could not recover upon the contract of insurance made with the defendant because of the insufficiency of the complaint.

In holding that the policy issued was canceled the court relied upon the cases of Von Wien v. Scottish Union & Nat. Ins. Co., 118 N. Y. 94; 27 St. Rep. 934, and Crown Point Iron Co. v. Ӕtna Ins. Co., 127 N. Y. 608; 40 St. Rep. 426. We think those cases are not decisive of this, but that they are clearly distinguishable. In this case there was no absolute surrender of the policy. It was-left for or sent to the defendant’s agent with the express understanding and for the sole purpose of having another policy issued in its place which should cover only the property destroyed. The first policy had insured it with property located upon another farm. Upon discovering this, and bringing that fact to the knowledge of the defendant, it agreed, upon the return of the policy issued, to issue a new and separate policy upon the property destroyed. There is nothing in the appeal book which discloses any intent upon the part of the plaintiff, or any understanding by the defendant, that the policy issued was to be surrendered or canceled until a new policy was issued in accordance with the agreement between the parties. We think it is quite manifest that both parties intended that the plaintiff’s property should remain insured under the policy already issued until a new one was written to take its place, and that the surrender of the old and the writing of the new policy were to be simultaneous. Under such circumstances, it could not properly be held that the policy already issued was canceled. By the provisions of the policy it could be canceled by the defendant only by giving five days’ notice, and returning the premium actually paid That it was canceled by any such action of the company is not claimed or pretended. On the other hand, we think the court was not justified in holding that the plaintiff intended to have this policy canceled, and thus leave his property uninsured, until another was issued in its stead. Moreover, we are inclined to the opinion that the complaint in this action was sufficient to justify proof of a contract to insure the building.in question upon the terms agreed upon between the parties, and to sustain a recovery for a breach of such agreement to the extent of the loss sustained by the plaintiff, under the principle of the cases of Ellis v. Insurance Co., 50 N. Y. 402; Angell v. Insurance Co., 59 id. 171; DeGrove v. Insurance Co., 61 id. 594; Train v. Insurance Co., 62 id. 598; Hubbell v. Insurance Co., 100 id. 41; Ruggles v. Am. Cent. Insurance Co., 114 id. 415; 23 St. Rep. 847; More v. N. Y. Bowery F. Insurance Co., 130 N.Y. 537; 42 St. Rep. 543; Forward v. Continental Insurance Co., 142 N.Y. 382, 389; 59 St Rep. 777.

A somewhat critical examination of the evidence and the authorities bearing upon the questions involved has led us to the conclusion that the court erred in holding that the policy issued by the defendant was canceled, and that the .plaintiff’s complaint was insufficient to justify a recovery upon the contract of insurance made between the plaintiff and the defendant; that the court erred in nonsuiting the plaintiff,' and that for that error the judgment should be reversed.

Judgment and order reversed, and a new trial granted, with costs to abide the event


text:
    People ex rel. Michael E. Finnigan, App’lt, v. Granville W. Harmon, Resp’ts.

      (Supreme Court, General Term, Second Department,

      Filed December 2, 1895.)

    1. Mandamus—Public officer—When lies.
    It is only when there is a clear legal right and no adequate legal means for its enforcement, that a writ of mandamus is granted.
    2. Same.
    Where it is very doubtful whether the register and county clerk who employed the relator had a right, under chapter 365 of 1894, to enter into a contract for the employment of a superintendent for the purpose of carrying out the provisions of the law aforesaid, which would extend beyond the expiration of their terms of office, the relator is not entitled to a writ of mandamus.

    3. Same.
    Where such officers employ a person to carry out the provisions of such act for a specified sum for each year, and at that rate for each fraction of a year, “ until all the work under the said contract is completed,” and the successors of such officers refuse to let such person complete the contract, the right of such person to enforce his contract against such successors is not sufficiently clear to entitle him to mandamus, even though that was the appropriate remedy.
    Appeal from an order denying a motion for a writ of mandamus.

      Almet F. Jenks, for app’lt;

      William G. Cooke, for resp’t.
   Brown, P. J.

On October 9, 1894, pursuant to section 80 of chapter 365 of the Laws of 1894, Thomas J. Kenna and John Cottier, then respectively register and cleric of Kings county, entered into a contract with Michael E. Finnigan, whereby said Finnigan was employed for the purpose of carrying out all the provisions of said act. For such services he was to receive $4,000 for each year, and at that rate for each fración of a year, “ until all the work under the said act is completed.” The respondents were respectively elected to the office of register and clerk of said county at the general election in November, 1894, and entered upon the discharge of the duties of said offices on January 1, 1895. On January 2d, said respondents employed one Mosscup to act as superintendent in connection with the work to be performed under said statute, and said Finnigan was discharged. This proceeding was thereupon commenced to compel the present register and clerk to recognize Finnigan as the superintendent authorized to be employed by the act aforesaid, and to afford him access to the books and papers in said register’s and clerk’s offices.

The appellant contends that his employment was under a valid contract, which continues until all the work under said act is completed. We agree with the special term that, if that claim is sound, the appellant has an adequate remedy at law, and is not entitled to a writ of mandamus. It is only when there is a clear legal right, and no adequate legal means for its enforcement, that a writ of mandamus is granted. We think that it is very doubtful whether the register and county clerk who employed the appellant had a right to enter into a contract for the employment of a superintendent for the purpose of carrying out the provisions of the law aforsaid, which would extend beyond the expiration of their terms of office. We incline to the opinion that they had not such power. The act provides for the doing of many things by those officers the performance of which would extend beyond the terms of the register and clerk in office at the time the act was passed. Section 30 authorizes such officers to employ a superintendent, but it does not command it. It is left optional with them whether they should do so or not. Those in office when the act was passed could determine that question for themselves, but we are of the opinion that they could not control the discretion vested in their successors. The officers charged with the duties of carrying out the law have a right, we think, to exercise their own discretion and judgment as to whether they would employ a superintendent or not, and, if they did employ one, who he should be. It is sufficient for the purpose of this proceeding for us to say that the right of the relator to enforce his contract against the present register and clerk is not clear, and for that reason the motion was properly denied. The case of People ex rel. Stanley v. Van Siclen, 43 Hun, 537; 6 St. Rep. 614, is not analogous to the case before us. In that case the relator held her office pursuant to a statute of the state, and had been illegally removed, and the court held that she could not, in the illegal manner there stated, be deprived of her position.

The order appealed from must be affirmed, with $10 costs and disbursements.

Dtkman, J., concurs; Pratt, J., dissents.


text:
    John New, Resp’t, v. Village of New Rochelle, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 2, 1895.)

    1. VOLTJNTABY PAYMENT—ASSESSMENT.
    When an assessment is paid which, upon its face, carries notice of its illegality and consequent invalidity, and no duress is resorted to for its collection, such payment is voluntary in the eyes of the law and its restoration is denied.
    3. Same.
    The fact that the person paying the assessment is actually ignorant of the invalidity of the assessment does not make his payment an involuntary one.
    Appeal from a judgment in favor of plaintiff, entered on the decision of the county judge on a trial without a jury.

      Michael J. Tierney, for app’lt;

      C. H. & J. A. Young & Terry, for resp’t.
   Brown, P. J.

This action was brought to recover the amount of an assessment levied upon the plaintiff’s property by the defendant for resetting curbs on the streets in front of said property, and which was paid by the plaintiff to the collector of the'village. An assessment for similar work was declared void by this court in the case of People ex rel. Spencer v. Village of New Rochelle, 83 Hun, 185 ; 64 St. Rep. 146. The assessment reviewed in that case depended upon the same provision of the village charter as that levied against the plaintiff, but the effect of the decision of the court in Spencer's Case was not to set aside all the assessments for recurbing levied under the resolution of the trustees of the village, but only that against the relator in that proceeding. The case was not one where a single sum of money, to be raised by assessment, was divided and distributed over a given district. Each assessment was separate and distinct from all others, and was supported by facts applicable alone to the property and individual assessed. This action may, however, be maintained, although the assessment has not been declared invalid, if (1) the assessment is void upon the face of the proceedings, and (2) if the payment made by the plaintiff was involuntary, and the result of coercion in fact or in law. That the assessment was void upon the face of the proceedings is not disputed by the appellant, and it was so decided by this court in Spencer's Case, supra. It is, however, claimed that the payment made by the plaintiff was voluntary, and that question is the only one to be considered on this appeal. • It appears that after the assessment was levied the trustees of the village caused a warrant to be issued for the collection thereof to the'collector, whereby said collector was directed, after the expiration of sixty days from the date of the warrant, if said assessment was not paid, to collect the same by distress, in the same manner as collectors of town taxes are .authorized by law to do. While said warrant was in the hands of the collector, the plaintiff, not knowing that said assessment was invalid, but supposing it was enforceable, paid the same. By the charter of the village, assessments of the character of the one under discussion were made liens upon the lots in front of which the work was performed, and the trustees were empowered, in case of nonpayment, to sell the property. The decision of the learned county judge was made upon the authority of Vaughn v. Village of Port Chester, 135 N. Y. 460; 49 St. Rep. 436. I think that case has been misapprehended and misapplied. The decision there did not rest upon the fact that a warrant had been issued for the collection of the tax, but upon the resolution of the village trustees to sell the land. That such was the decision of the court is apparent from the authorities cited, and from the concluding remarks of Judge G1 ray’s opinion where he says: “When proceedings to collect the assessment had taken such legal shape as that payment by the plaintiff could not be termed a voluntary one, within the doctrine laid down in the cases of Pesyer v. Mayor, etc., 70 N. Y. 497; Horn v. Town of New Lots, 83 id. 100; Bruecher v. Village of Port Chester, 101 id. 240 ; Tripler v. Mayor, etc., 125 id. 617; 36 St. Rep. 141; and Redmond v. Mayor, etc., 125 N. Y. 632: 35 St. Rep. 917.” What constitutes coércion in law is very clearly stated by Judge Folger in Peyser v. Mayor, etc. It exists, he says “ when the court having jurisdiction of the person and subject matter has rendered a judgment which is collectible in due course.” Also in “ those quasi adjudications of inferior tribunals such as assessors of taxes or assessments, where their proceedings are regular on their face, and on presentation make out a right to have and demand the amount levied, and to collect it in due course of law.” And it was further said that “to warrant an action to recover back money paid by coercion of law upon a judgment or assessment laid, it must appear that the judgment or proceedings were prima facie regular, so as not themselves to furnish evidence of their own validity.” In Bruecher v. Village of Port Chester, an involuntary payment was defined to be one made to an officer who has a valid process which he can enforce. And in Redmond v. Mayor, etc., it was said that coercion in law would exist only in cases where payment of an assessment, having been demanded by the authorities, appears to be legally and rightfully due them. There cannot be coercion in law, therefore, by the mere issuing of process for the collection of a void assessment; and when an assessment is paid which, upon its face, carries notice of its illegality and consequent invalidity, and no duress is resorted to for its collection, such payment is voluntary in the eyes of the law, and its restoration is denied. Fleetwood v. City of New York, 2 Sandf. 475; Redmond v. Mayor, etc., 125 N. Y. 832; 35 St. Rep. 917. The fact that the plaintiff was actually ignorant of the invalidity of the assessment does not make his payment an involuntary one. The rule is well established that a person cannot recover back money paid on the ground that he supposed he was legally bound to. pay it. Ignorance of the [aw is not a justification of the payment. Phelps v. Mayor, etc., 112 N. Y. 216; 20 St. Rep. 238. There was in this case no threat or taking of the plaintiff’s goods, and therefore no coercion in fact, and, as we are of the opinion that there was no coercion in the law, the payment of the assessment must be deemed to have been voluntary, and cannot be recovered.

„ The j udgment must be reversed, with costs of appéal, and the complaint dismissed, with costs.

All concur.


author: Brown, P. J.—

text:
    George H. Heath, Resp’t, v. New York Building Loan Banking Company, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 2, 1895.)

    1. Judgment—When final.
    In an action to set aside a mortgage, a judgment for defendant, allowing plaintiff to pay the amount stated within six months and obtain, a reconveyance of the property, but providing that, on failure to make such payment, the property is to be sold, etc., leaving nothing undecided except the directions as to the manner of the sale, is a final judgment.
    3. New trial—Motion for.
    A motion for a new trial, founded upon an allegation of error in a finding of fact or rule of law made by the judge upon the trial, must be made before the expiration of the time in which an appeal can be taken from the judgment.
    Appeal from an order, denying a motion for a supplemental order or judgment, and from an order denying a motion for an extra allowance, for the appointment of a receiver of the rents of said premises until a sale could be had, and granting plaintiff’s motion for a new trial.

      William H. Hamilton, for app’lt:

      Hector M. Hitchings, for resp’t.
   Brown, P. J.—

This action was before this court at the February term of the present year, upon an appeal from an order which resettled the findings of the court, and modified the judgment which had been entered. The facts are sufficiently stated in the opinion then delivered, and in the opinion delivered upon the appeal from our order to the court of appeals. Heath v N.Y. B. L. & Banking Co., 84 Hun, 302; 65 St. Rep. 629; Id., 146 N.Y. 260; 66 St. Rep. 632. After the decision of the court of appeals, the defendant moved at special term for an order directing (1) a sale of the premises, pursuant to the provisions of the judgment; (2) for an extra allowance; (3) for the appointment of a receiver of the rents of the property pending the advertisement of the sale. At the same time the plaintiff moved for a new trial. The order appealed from denied the defendant’s motion, and granted a new-trial.

We are of the opinion that the order cannot be sustained. The judgment in the action was dated June 5, 1894, and was duly entered in the clerk’s office on June 8, 1894, and a copy thereof and notice of entry were served on June 11, 1894. A motion for a new trial, founded upon an allegation of error in a finding of fact or ruling upon the law made by the judge upon the trial, must be made before the expiration of the time within which an appeal can be taken from the judgment. Code Civ. Proc. § 1002. An appeal from a final or interlocutory judgment must be taken within thirty days after service upon the attorney for the appellant of a copy of the judgment appealed from. Section 1351. A party may be relieved from a judgment taken against him through his mistake, inadvertence, surprise, or excusable neglect within one year after notice thereof. Section 724. The order to show cause upon which the plaintiff’s motion was made was dated June 15, 1895, and the motion was made upon the errors and exceptions taken upon the trial, and upon the evidence and weight of evidence; and the fact that there was no evidence to sustain the findings in favor of the defendant, and upon the fact that the decision in favor of the defendant was contrary to equity, to good conscience, and to law. Section 724 of the Code was not applicable to the case, but if it could be deemed so, the motion having been made after the expiration of a year from the receipt of notice of the judgment, the court was without power to entertain it. The time to appeal from the judgment had expired long before the notice of motion was served, and the court was also without power to entertain the application on the grounds stated in the moving papers.

It was claimed upon the argument that the judgment which had been entered in the action was interlocutory, and that, as defendant’s application was for a final judgment, the plaintiff would have had the right to appeal thereform had its motion been granted., aud therefore section 1002 of the Code did not apply. We think the judgment was final. It settled and adjudicated every question at issue between the parties. It allowed plaintiff to pay the amounts stated within six months, and obtain a reconveyance of the property; but upon failure to make such payments, the premises were to be sold, and the plaintiff foreclosed of his rights therein,tand the proceeds of the sale brought into court, aud applied in the usual manner. It contained every provision essential to an ■execution of the decision of the court, except to direct the manner of sale. There was no question between the parties left to be decided. It was essential that the court should direct how and by what officer the sale of the property should be made, and the defendant’s application therefor should have been granted.

The order must be reversed, with $10 costs and disbursements, with leave to the defendant to renew its motion.

All concur.


author: Herrick, J.

text:
    People ex rel. Park, Davis and Company, App’lt, v. James A. Roberts, as Comptroller, etc., Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed December 28, 1895.)

    1. Taxes—Corporation—Foreign.
    A tax upon the privilege granted to a foreign corporation for doing business in this state, measured by the amount of its capital stock employed in such business within this state, is within the power of the legislature.
    :2. Same.
    Establishing a place for the sale of its goods within this state, paying rent therefor, hiring and employing agents and employees to conduct such business and selling its products from such place, constitute transacting business within this state by a foreign corporation.
    Certiorari to review the action of comptroller, in assessing a corporation tax on relator.

      James McKeen, for relator;

      T. E. Hancock, Atty. Gen. (G. D. B. Hasbrouck, Dep. Atty. Gen., of counsel), for resp’t.
   Herrick, J.

This is a proceeding to review by certiorari the decision of the comptroller of the state in assessing and levying a corporation tax upon the relator. The relator is incorporated for manufacturing purposes under the laws of the state of Michigan, and is engaged in the business of manufacturing preparations for pharmacists and chemists. Such manufacture consists in the preparation of chemical compounds and pharmacists’ preparations, by taking the-crude materials, and, by various processes, producing them in a concentrated form, convenient for using for medicines, such as fruit extracts and solid extracts. The factory is situated in the city of Detroit, Mich. Prior to the years for which the relator has been taxed by the comptroller, the relator shipped its products in unbroken packages, to a wholesale drug concern in the city of New York, which sold the same upon commission. The house to which it consigned its goods did not give its exclusive attention to the sale of the relator's merchandise, but was a general dealer. For the purpose of having exclusive attention given to its line o£ goods, the relator changed its m,ethod of doing business, and selected a person named Clay, to whom it consigned its products. There is a debit and credit account between them of the goods received by him and of the amount sold-. He remits the amount of sales made, and receives from it a stated salary. He is not paid by commission. A stock of its products is always kept on hand by him. Stores are leased and clerks employed at its expense. Such expense ranged from $102,000 in the year 1890 to $172,000 in the year 1894, which includes salaries of employees, rentals, insurances and repairs. The orders received in New York city and its immediate vicinity are supplied from this store or headquarters in New York city. Orders received in what are known as “ the country districts ” (that is, in places at considerable distance from New York city) are filled by transmitting such orders to the home establishment, at Detroit, Mich., and the goods are shipped direct from the factory, there, to the persons ordering them. The stock carried in" the store in New York city is of the average amount of $50,000. Mr. Olay, also purchases crude drugs in Europe, which he imports to this country through the port of New York. A portion of such importations are sent to the home establishment at Detroit, and another portion is sold from the New York store. Purchases of crude drugs are also made by him in New York. Some are shipped to Detroit, and some sold in New York city. These goods are purchased upon the credit of the relator. It invests no cash in their purchase.

It is contended by the relator that Mr. Clay is not its agent; that he is carrying on an independent business in its drugs, and stands in the same relation to it as any merchant in such city purchasing its drugs, or of a commission merchant to whom it should consign goods to be sold upon commission; and that, therefore, it should not be taxed as a corporation doing business in this state. Without entering into any discussion as to what constitutes the relation of principal and agent, it seems to me very clear that Mr. Clay is in fact the agent of the relator. The rent of the establishment from which its drugs are sold in New York city is paid by it. It pays the insurance, taxes, and repairs. It pays the salaries of the various employees engaged in conducting the business there. It keeps a stock of goods, to a large amount, at the store in New York city. Charging the goods to him, and keeping a debit and credit account between .itself and Clay, is simply a convenient way of keeping an account of its transactions with its New York city branch. That is its distributing agency in the state of New York. The goods that are purchased by Mr. Clay in Europe are purchased upon its credit. The entire proceeds of the sales in New York city are transmitted by Clay to the relator.. He is paid a stated compensation, which is not dependent upon or measured by the amount of sales or of the profits. He appears to be simply its representative, managing and conducting its business in the city of New York for and on its behalf. But relator- further contends, assuming that Olay is its agent, that it is carrying on a manufacturing business, that the sale of its products is a necessary incident to the manufacturing business, and that if it was incorporated under the laws of the state of Hew York, and doing business- here, it would, at least to the extent of the products of its own manufacture, be exempt from taxation within the case of People ex rel. Tiffany & Co. v. Campbell, 144 N. Y. 166; 63 St. Rep. 44; and at most only be taxable upon the business that it.transacts in goods other than those manufactured by itself; and it claims that under article 4, § 2, of the constitution of the United States, providing that “the citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states,” it should be permitted to do business upon the same footing as domestic corporations wholly engaged in manufacturing; and, if taxed at all, -should only be taxed upon that business which is carried on by it outside of its corporate powers, as was done in Tiffany Case. We do not -think that this last contention can prevail. The right of citizens to associate themselves together and do business as a corporation is not-a natural or inherent right, but is a special privilege granted by the sovereign power; and a privilege so granted cannot be exercised in a sovereignty other than that granting it, except by comity. To hold otherwise would extend the power of such sovereignty beyond its territory, and give to it laws extraterritorial force and effect. Again, coiporations are not citizens, within the meaning of that clause of the Constitution relied upon. The privileges and immunities secured to citizens of each state in the several states by the provision in question are those privileges and immunities which are common to the citizens in the latter states, under their Constitution and laws, by virtue of their being citizens. Special privileges enjoyed by citizens in their own states are not secured in other states by this provision. It was not intended by the provision to give the laws of one state any operation in other states. They can have no such operation, except by the permission, expressed or implied,' of those states. The special privileges which they confer must therefore be enjoyed at home unless the assent of other states to their enjoyment therein be given.” Paul v. Virginia, 8 Wall. 168; People v. Imlay, 20 Barb. 68-80. The right of the state to exclude foreign corporations has been repeatedly adjudicated upon, and is well settled. People v. Fire Ass'n of Philadelphia, 92 N. Y. 311. The right of a corporation incorporated in a foreign state to do business in this state being dependent upon the assent of this state, it may impose such reasonable terms and conditions upon such assent as it deems proper. It is unnecessary to cite authorities to show that a tax upon that privilege of doing business here, measured by the amount of it capital stock employed in such business within this state, is one entirely within its power. That establishing a place for the sale of goods within this state, paying rent therefor, hiring and employing agents and employees to conduct such business, and selling its products from such place, is transacting business within this state, it seems to me, can admit of no question. That a business so conducted and Carried on is not interstate commerce, which will prevent the corporation carrying it on from being taxed, has been held in the case of People ex rel. Southern C. O. Co. v. Wemple, 131 N. Y. 63; 42 St. Rep. 632.

The writ of certiorari should therefore be quashed, and the decision of the comptroller affirmed, with $50 costs and disbursements. All concur.


text:
    People ex rel. John Hoy, Resp’t, v. Charles H. Mills et al., as Commissioners of Excise, App’lts.

      (Supreme Court, General Term, Third Department,

      Filed December 28, 1895.)

    1. Excise—Licenses—Power oe excise commissioners.
    The board of excise has a right to limit the number of places to which it will grant licenses.
    2. Same.
    A refusal to grant a license upon the ground that there are a sufficient number of places or licenses within a specified territory, will be sustained, unless the court is .satisfied that such ground is a subterfuge and does not constitute the real reason for the action of the board.

      3. Same.
    The immoral character of the applicant, and the uses to which he permits his place to be put during his occupancy of it, afford good and valid reasons for the refusal of the commissioners to grant him a license.
    Appeal from an order directing the granting of a license.

      Richard O. Bassett, for app’lts;

      George H. Stevens, for resp’t.
   Per Curiam.

The relator in this case made an application for a saloon license. After the hearing of such application, upon which much testimony was taken, the defendants adopted the following resolution :

Resolved, That the application of John Hoy for an hotel license at the premises 334 Broadway is hereby rejected, and a license refused, for the reason that considering the rights and interests of the property owners and residents of the neighborhood, and the number of existing licensed places in the vicinity of the place for which a license is sraght, the commissioners of excise are satisfied that there is no immediate necessity or convenience to be served in granting such an application at this time, and on the further ground that said Hoy is not a man of good moral character, approved by the board ; that this board is convinced that the premises for which a license is asked has been kept by said Hoy for a long period of time as a place for persons to visit for unlawful sexual intercourse, and as such is a nuisance to the neighborhood and the city.”

We think that the board of excise has the right to limit the number of places that they will grant a license to in a specified territory, and that a refusal to grant a license upon the ground that there are a sufficient number of places already licensed within such specified territory, should be sustained, unless the court is satisfied that such ground is a subterfuge, and does not constitute the real reason for their action. The other ground for the refusal to grant the license,—the immoral character of the applicant, and the uses to which he permitted his place to be put during his occupancy of it,—we think, were sustained by the evidence taken by and before said commissioners, and afford good and valid reasons for the refusal of the defendants to grant the license asked for.

For these reasons the order of the county court should be reversed, and the decision of the commissioners affirmed, with $50 costs and disbursements.


author: Hardin, P. J.

text:
    Clark S. Bennett, App’lt, v. Nelson Gray, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed December 26, 1895.)

      1. Evidence—Ejectment—Judgment in trespass.
    The pendency of a trespass suit does not prevent a purchase of the land upon which the trespass was committed, pendente Ute, or give to a judgment for damages subsequently recovered therein .the effect of an adjudication binding the title of such intermediate purchaser, even though he may have known that the action was a trespass upon lands purchased.
    3. Ejectment—Equitable remedy.
    A purchaser under a contract providing that, if he failed to perform any • part of it, the vendor should immediately have the right to declare it void and take possession, in order to maintain ejectment against a specific grantee of the vendor who has taken possession under his deed, must establish by satisfactory evidence that he has complied with the terms of the con- ■ tract of purchase, and that in virtue of its stipulations having made payment of the' contract price, he is rightfully entitled to have possession of the premises. Otherwise, he should seek relief in an equitable action against all the parties obligated to grant him his equitable rights.
    Appeal from a judgment of nonsuit, and an order denying a motion for a new trial.
    The action was to recover possession of certain premises described in the complaint, situated in the town of Delhi, Delaware county. The complaint contained the usual allegation found in actions of ejectment, to wit: “that the defendant is wrongfully in the possession- thereof, and wrongfully withholds the same from this plaintiff.” The answer contained a general denial, and an averment that the defendant is in possession and owner of the land and premises described in the complaint. The evidence indicated that the defendant was in possession under a warranty deed of the premises, which he received on the 25th day of November, 1889, executed by Calvin H. Bell to the defendant. When the defendant took the deed from Bell, Bell “ said there was nothing against it” (the property). After the defendant received the deed, he went into possession of the premises. At the close of the evidence the trial judge held that there was no proof that the purchase price in the contract under which the plaintiff claimed the premises had been paid, and that, if the plaintiff has any remedy, it is by way of an action in equity to get title. Plaintiff asked to go to the jury upon all the questions in the case. That motion was denied, and an exception was taken. An exception was also taken to the nonsuit granted.

      W. & G. W. Youman, for app’lt;

      Wagner & Fisher, for resp’t.
   Hardin, P. J.

Inasmuch as both parties found their respective positions upon the several transactions they have had with Calvin EL Bell, it was assumed at the trial that on the 31st day of May, 1888, Bell had legal title to the premises described in the complaint Prior thereto the plaintiff had entered into a contract on the 21st dav of April, 1888, for the purchase of certain premises described in "that contract, and in that contract was found the following stipulation:

“ It is mutually agreed between said parties that said parties of the second part shall have possession of said premises on this date, and he shall keep the same in as good condition as they are in at the date hereof, until the said sum shall be paid as aforesaid; and if said party of the .second part shall fail to perform this contract,, or any part of the .same, said party of the first part shall, immediately after such failure, have the right to declare the same void, and retain whatever may have been paid on said contract, and all improvements that may have been made on said premisas, and may consider and treat the party of the second part as his tenant holding over without permission, and may take immediate possession of the premises, and remove the party of the second part therefrom.”

Subsequent to the execution of that contract, a second contract was entered into, which is in the following language:

“ I, Clark S. Bennett, do hereby consent to and request C. EL Bell to exchange the within-mentioned property with William Smith, Jane M. Zeller, and Elizabeth G. Flowers, for a wood lot of about twelve acres, and a dwelling house and lot of about three acres, as described in a deed from Alfred L. Mason to William Smith, dated October 25, 1883, and a deed from Edward Bell and wife to Mary Ann Smith, now deceased; and I do hereby agree to pay said 0. H. Bell the sum of three hundred dollars, with interest from April 21, 1888, for the above-mentioned piece; said Bell to hold the judgment which he now has as a security for the within contract, with the like force and effect until the above-mentioned pieces are paid for; and said Bell is not to assume or be held to any responsibility on account of the title to the above-mentioned pieces.
“ Witness my hand and seal this 31st day of May, 1888.
“ Clark S. Bennett, [l. a] ”

In November, 1889, Bell took the position that Bennett was in arrears in his payments upon the contract, and instituted summary proceedings to remove Bennett from the premises; and a trial was had before R A. Frasher, a justice of the pcaee, who awarded possession to Bell of the premises described, by a judgment rendered on the 20th of November, 1889, and an order was issued removing Bennett from the premises. The proceedings had before the justice were removed to the county court of Delaware county, and that court, by a decision pronounced on the 4th day of November, 1890, reversed the order and judgment made by the justice, and the judgment of reversal was entered on January 21, 1891. On the 26th of November, 1889, Bennett brought an action in the supreme court against Calvin Bell, in trespass, alleging that on or about November 20, 1889, Bell, with his agents and servants, wrongfully, unlawfully, and maliciously entered into and upon the lands and' premises, .and removed the plaintiff’s household property to the highway, greatly injuring and destroying the same, to the damage of the plaintiff. Bell caused an an-, swer to be served, and issue was joined,, and the action brought to trial at a circuit, and the plaintiff recovered therein, as damages, $52.58. The judgment was appealed to the general term, and on the 7th of February, 1893, an order was granted in the general term affirming that judgment. An objection was taken to the reception in evidence of the judgment roll in the action of trespass. It appeared that the action was commenced subsequent to the day when the defendant received his deed from Bell, and subsequent to the time when the defendant went into possession of the premises, and the court rejected the judgment roll as evidence. The defendant here was not a party to that action, and it does not appear that any lis pendens was filed in that action; that it was simply an action in trespass for damages alleged to have been done by Bell to the personal property of Bennett: and we are of the opinion that the trial judge properly excluded it. Hailey v. Ano, 136 N. Y. 569; 50 St. Rep. 25. Near the close of the opinion in that case, Andrews, O. J., said:

“ The theorythat parties are presumed to be cognizant of what is passing in the sovereign courts of justice assumes that by con- ■ suiting the records of the courts the fact may be ascertained. But we think the pendency of a trespass suit does not prevent a purchase of the land upon which the trespass was committed, pendente lite, or give to a judgment for damages subsequently recovered therein the effect of an adjudication binding the title of such intermediate purchaser, even though he may have known that the action was for a trespass upon the lands purchased.”

We are of the opinion that no error was committed in refusing • to receive in evidence the charge of the circuit judge delivered when the action of trespass was tried. When the defendant entered into possession of the premises under his deed, he did so having acquired the legal title of Bell, the former owner of the property, and that legal title drew after it the right of possession. After a careful inspection of the appeal book, we are satisfied there was no evidence given upon the trial now brought in review to establish that the contract price had been paid by Bennett to Bell prior to Bell’s conveyance to the defendant. In the first contract that was made between Bell and the plaintiff, Bennett, it was expressly provided that if Bennett failed to perform the contract, or any part of the same, Bell was entitled to immediately “ have the right to declare the same void.'” If Bell had resumed possession of the premises on the day when he executed the deed to the defendant, peaceably, the plaintiff would, in order to be entitled to recover possession from Bell, be obliged to establish that the terms of the contract in respect to the purchase of the premises had been kept and cárried out. We see no reason why the same burden does not rest upon the plaintiff, when seeking to oust the grantee of Bell, who went into possession after having derived the legal title from him. .It was therefore incumbent upon the plaintiff to establish by satisfactory evidence that he had complied with the terms of the contract of purchase, and that in virtue of its stipulations, having made payment of the contract price, he was rightfully entitled to have possession of the premises. In the absence of such proof, we are of the opinion that he was not entitled to maintain an action on the law side of the court for the recovery of the possession of the premises, and that no error was committed by the trial judge in granting a nonsuit, or in denying the motion for a new trial. In Pech v. Newton, 46 Barb. 173, it was held that “ where the plaintiff has, at most, a mere equitable title to the piece of land, the possession of which he seeks to recover, no action will lie.” Near the close of the opinion in that case, Parker, J., said, “Plaintiff had not proved a cause of action entitling him to a recovery against the defendant, and should have sought relief in an equitable action against all the parties obligated to grant him his equitable rights.” The same doctrine is stated in Mooze v. Spellman, 5 Denio, 225, and is again alluded to and stated in Townshend v. Frommer, 25 St. Rep. 358. In Wriyht v. Douglass, 3 Barb. 556, it was held “Ejectment cannot be maintained unless the plaintiff has the legal estate in the premises.” We are of the •opinion that the nonsuit was properly granted.

Judgment and order affirmed, with costs.

All concur.


text:
    Mary C. Hargin, as Administratrix, etc., App’lt, v. Josephine Raynor et al., Resp’ts.

      (Supreme Court, General Term, Fourth Department,

      Filed December 26, 1895.)

    1. Execution—Sale in bulk
    Section 1437 of the Code is merely-directory.
    .3. Same—Validity of sale.
    The sale of several parcels of land as a whole is not ground for avoiding the sale, after the land has been redeemed by a judgment creditor and conveyed to a third person.
    •3. Appeal—Evidence.
    Where there is a conflict of evidence, or where different inferences or deductions are to be made, the findings of a referee are to be accepted, unless against the clear preponderance of evidence.
    Appeal from a judgment dismissing the complaint.
    Plaintiff’s complaint asks that the defendant Raynor be directed to execute a quitclaim deed to the plaintiff, conveying to her all the right, title, and interest which the said Raynor acquired under a sheriff’s sale mentioned in the complaint, and that the defendant Wicks may be adjudged and decreed to have held said premises in trust for the plaintiff, and that the defendant Raynor may be adjudged and decreed to hold the same upon a like trust, and that Mary. 0. Hargin, individually, may be adjudged and decreed to have no interest therein. The action was originally commenced in the name of Lititia 0. Baker, and after death the court substituted Mary 0. Hargin, administratrix of her estate, as plaintiff,, and added Mary 0. Hargin as a defendant, and allowed a supplemental complaint to be filed, and allowed the answers theretofore served to stand as answers to the supplemental complaint. In her lifetime, Lititia 0. Baker claimed to be an owner of one undivided sixth part of farm lots 186 and 187 of the Onondaga Salt Springs reservation,—a tract of land which contained about 130 acres, and has already been the subject of considerable litigation. See Baker v. Oakwood, 49 Hun, 416; id. 123 N Y. 16; 33 St. Rep. 223. Prior to 1892 there had been recovered against her five judgments,—one of $109.40 in favor of Mrs. Granger, and one of a like amount in favor of Miss Raynor, and one of $134.40 in favor of Miss Raynor and others, and one of $125 85 in favor of Oakwood, and another of $92.99 in favor of Oakwood. All of these judgments were recovered by Frederick S. Wicks, as attorney, except the last two, which were obtained by Green & Com-stock. Executions were issued on the four judgments first mentioned, and put in the hands of the sheriff of Onondaga county, against Mrs. Baker, who had no personal property; and an advertisement was caused by the sheriff, to the effect that he would sell all the estate, right, title, and interest which the said Lititia 0. Baker had on the 10th day of October, 1887, or at any time after,, to the farm lots 186 and 187 of the Onondaga Salt Springs reservation, in the city of Syracuse. At the sale, which took place on the 16th day of June, 1891, Mr. Tracy bid the amount of the four-judgments mentioned, and the sheriffs costs, and took a certificate-from the sheriff. No redemption was made- by Mrs. Baker, and in August, 1892, she executed a mortgage for $20,000, covering the premises, to Mr. Andrews, who, in virtue thereof, redeemed from Mr. Tracy, by paying what was due at the time of the-redemption. Subsequently Mr. Wicks redeemed under the Oak-wood judgment of $92.99, docketed in Onondaga county on the-18th of October, 1888, he having become the owner of that judgment. On the 16th day of September, 1892, he paid to the sheriff the sum of $620.88, and delivered to him a copy of the docket of the-judgment under which he redeemed, together with the assignment thereof, and the affidavit required by the Code. The sheriff executed to him the usual certificate, and after the expiration of twenty-four hours, no other redemption having been made by any other party, the sheriff executed to Wicks, as such redeeming creditor, the usual deed of the premises. It appeared by the evidence that, although Mr. Andrews had been the attorney for Mrs. Baker in the various actions in which the judgments had been obtained against her, “yet at this time he had no recollection of the number of such judgments. By examining his own registers or the records of the county clerk’s office, this fact would undoubtedly have been called to his mind. Instead of making such an examination, however, he had an interview with Mr. Wicks.” As to what took place at that interview, there is conflict in the evidence.

      Knapp, Nottingham & Andrews, for app’lt;

      W. C. Tracy, for resp’t.
   Per Curiam.

Plaintiff is not in a situation to have the sale made by the sheriff set aside because the premises were not sold in parcels. Mrs. Baker and her attorney knew of the advertisement o£ the property, and of the sale by the sheriff, and made no objection at the time of the sale, or claim that it should be sold in parcels. Subsequently there was a redemption from the sale, and, when such redemption was made, Mrs. Baker and her attorney knew the premises had not been sold in parcels; and apparently the mortgage under which the redemption was made described the property in the same manner as the sheriff’s notice of sale. Section 1437 of the Code is substantially like the provisions found in the Revised Statutes, and is directory. Plaintiff ' in this action is not entitled to have the sale set aside, after a conveyance thereof has been made to the defendant Raynor, because the sale did not take place in parcels. Bank v. Atwater, 2 Paige, 54; Cunningham v. Cassidy, 17 N. Y, 276; Wood v. Morehouse, 1 Lans. 405; affirmed, 45 N. Y. 368. Nothing appears in this case to indicate that the judgment debtor was injured or prejudiced in any manner by the failure of the sheriff to sell the premises in question in parcels.

2. The referee before whom the cause was tried held and decided, upon the evidence, “that the defendant Wicks was not es-topped by anything said or done, or which he omitted to say or do, from making the redemption which he made.” According to the evidence, the redemption was made by him in accordance with the usual rules and practices relating to redemptions, and the sheriff was therefore warranted in executing to him a deed of the premises; and he thus acquired title to the same, which he conveyed to the defendant Raynor. The referee has also found “that the said Andrews was not misled by any false or fraudulent statements of said Tracy or Wicks, or either of them.” Upon looking into the evidence we find that it is somewhat contradictory in respect to what transpired at the time of the interview between Wicks and Andrews; and applying to the evidence the rule that where there is a conflict or where different inferences or deductions are to be made, the findings of the referee are to be accepted, unless against the clear preponderance of the evidence, we are constrained to accept the findings of fact as stated in the decision made by the learned referee. The onus was very clearly upon the plaintiff to establish the essential facts upon which she predicated her right to relief. The referee has evidently failed to construe the evidence favorably to the plaintiff. After a patient study of the evidence, we are not .inclined to overturn the deductions made by the referee from all the testimony offered before him.

The foregoing views lead to an affirmance.

Judgment affirmed, with one bill of costs against the appellant.


text:
    Henry H. Sias et al., as Administrators, etc., App’lts, v. Rochester Railway Company, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed December 26, 1895.)

    Negligence-— Contbibutoby.
    Whether a passenger on an open electric street car rvho, by leaving his seat and going upon the platform and putting his head beyond the standard or side of the car, receives injuries, is guilty of contributory negligence, is a question for the jury.
    Appeal from a judgment of nonsuit and order denying motion for a new trial.
    The complaint alleges that the defendant maintains and operates an electric street railway on Lake avenue in the city of Rochester to Ontario Beach, a distance of some" seven miles, and for conveyance of passengers for hire; and that on the 4th of September, 1892, the plaintiffs' intestate boarded one of the defend-. ant’s cars near Ontario Beach about 10 o’clock p. M., and paid to the conductor of said car the fifteen cents fare for carrying the plaintiffs’ intestate from Ontario Beach over defendant’s railway to the Whitcomb House, in the city of Rochester. And the plaintiffs’ complaint alleges that while the intestate was being so carried as a passenger, and while standing on the platform of said car, “with the knowledge and consent of the defendant and of the conductor of said car, he was struck' on the head by a tree standing adjacent to the railway track of the defendant, and thrown upon the ground, stunned and rendered senseless until the following day, and suffered severe injuries from such blow and fall, chiefly 'to his head ; ” and that the injuries thus incurred were so' severe as to cause intestate’s insanity and his death, which ensued, on 'the 14th day of December, 1894. It was claimed in behalf of the plaintiffs that it was for the jury to determine whether the injuries occurred from the wrongful act of the defendant, although death ensued more than one year and a day after the injuries were inflicted. See Sclichting v. Wintgen, 25 Hun, 626.

      Mullin, Griffin & Walker, for app’lts;

      Bacon, Briggs, Beckley & Bissell, for resp’t.
   Hardin, P. J.

After the intestate had purchased a ticket and entered the car of the defendant, it was in duty bound to observe care in his transportation from Ontario Beach to the Pity of Rochester. In Clark v. Railroad Co., 36 N. Y. 137, Grover, J., said:

“ The law requires from those so engaged the exercise of such care on their part, and of their servants, as will insure the safe ■carriage of their ■ passengers, so far as their safety depends upon the diligence and care of those engaged in such carriage, and makes them responsible for any injury sustained from the omission of such care and diligence.”

The witness Bamber testifies that be took a seat about the middle of the car on the right hand side, and he adds: '

“Four fellows together on the other side, laughing, talking, having a good time. Pretty soon a couple of them got up, walked up front of the car. As soon as they had passed out of the door, I did’nt see any more of them ; and just about a second,—a minute or two,—I heard thud, and knew some one had been hit then by the' side of the car up against a tree was there. I jumped up, dropped off the rear end of the car, went back, saw him lying down, went and rung Dr. Sibley’s door bell. * * * This accident occurred on Lake avenue in front — not quite in front — of the doctor’s house. * * * The car was an open trailer, what they call an ‘open side.’ "" * * When I saw these two men stand up and go out upon the platform, of the trailer, I observed the conductor standing on the platform. I could see him through the open door. These men went out on the front platform of the rear car of the train. The conductor was on that platform when they went out. The car was not jammed full. There were five or six single seats. These two men passed out through — out the door onto the platform. The conductor stood there. I was sitting on the fifth seat back from the front of the car.”

This witness testified that he had seen the big tree before, and he added that:

“ About eight feet from the ground there is a kind of place notched out, so the eaves of the car could slip by. I should judge it was cut out so as to let the car pass — so as to let the edge of the roof slip by. The roof extended out over the lower part about three inches. * * * I should judge the tree came somewhere between four and six inches from the car. * * * This tree which was notched was about a foot and a-half through. It was an elm tree.”

The witness Plant, who was riding on the car in question at the time the deceased was hurt, testified, viz.:

“ Noticed there was a party of three or four on the same car, seeming to be together, opposite me, and noticed they were having a good time. One of them got up, and walked to the front end of the platform, and I didn’t pay any more attention to him. The next thing I heard was a rap on the side of the car, and the bell rang, and the car stopped, and I got off, and some of the men there picked him up, and brought him into the doctor’s office. From the time I saw the man go forward onto the platform until I heard the rap on the car was not very long. It was a minute and a-half or two minutes. *" * * When I saw the man go forward onto the platform, I observed the conductor at the time was standing on the platform, onto which McKee went. I didn’t see the conductor speak to him, or make any sign to him, nor hear anything said by anybody on the front platform. * * * The noise I heard, which made me think the man got hit, was like anybody bumping their head on a table. That noise was something striking against the side of the car. When I saw the conductor, he was standing on the front platform.”

The witness Leach testified that he was one of the four who was riding with McKee, and he added :

“ All I observed of the accident was the noise just before the accident. It seems there was a fire on the right, and McKee said that he was going out to see where it was. He got up, and started but alone, and was struck, as I supposed, by a tree, as lie passed onto the platform. He turned to the right, and I saw the conductor standing there on the platform onto which McKee went. * * * When I last saw him, his body was in a stooped position just bending out off the platform. That is all I could see. I heard a noise—heard him strike against the side of the car. Then the car stopped. * * * I think there was a little space of time between the time he passed around the door and went out and when the accident happened — a little space before the accident. I could not tell accurately whether it" was'a minute or half a minute or two minutes.”

The witness Revel i testified that he was returning on the same car with the deceased, and he adds:

“I sat in the seat opposite McKee, with Mr. Leach. I think I sat next to the outside of the car. Am not very positive about that. McKee and Ash, when they first went aboard "sat facing Rochester. Before we reached the place of the accident, they reversed the back'of the seat, and sat down, and McKee was then facing me. That was a short time before the accident, and I sat there but a little while. Just before McKee got up, I heard somebody say there was a fire over there. * * ' * As soon as the remark was made about the fire, McKee got up. He said he was going out to see what it was. I don’t think anybody went out on the platform with him.”

This witness .adds :

“ The car was not full this night.' There was plenty of room inside. In other words, the deceased did not go out" on the platform to ride. It is my idea he went out there to look at the fire." • ,

The witness Ash described what he observed in the course of the trip, and says:

“ When the accident occurred I was seated in the car, having gone in before McKee went out. * * * I saw- McKee when he got up and went out on the platform. I didn’t notice the conductor when he went out. The conductor was standing there when I came in, and McKee went out directly when I came in and sat down. I felt the jar of the car when McKee was caught between the tree and car; he had just about time to get up and go out on the platform, and step down there; just about time to walk out and be struck; step down on the platform of the car, perhaps half a minute or so. I don’t know exactly how long he was on the platform. It occurred directly after he went out. I don’t know how long a period intervened between his going out onto the platform and his getting hit. I just sat down as he went out onto the platform. He went out directly after I sat down. * * * Hext morning I observed there was a notch cut in the tree. Suppose for the eaves of the car to run through.” .

The witness Burns testified that he—

“Took a measurement from the outside of the rail to the nearest margin of the base of the tree in question. Found it was a foot and seven inches. The body of the tree then receded a little, the base being about one inch and a-half nearer the rail. From a point about four and a-half feet from the ground to about eight feet above the ground the side of the tree toward the track was hewed out. At about seven feet and a-half from the ground it was hewed out more than at any other point. I noticed the tree inclined toward the track. I made measurements from the side of the car above the screens to the side of the track, and I found it was between four and five inches at all points from the point four and a-half feet to the point eight feet above the ground. That was the distance from the tree to the side of the car above the screens, of the car, which I would say were about an inch and a-half from the side or standards of, the car. I afterwards visited the premises, and the tree at that time was cut down.”

From the foregoing facts it is manifest that the intestate, by leaving his seat, and going upon the platform, and putting his head beyond the standard or side of the car, received the injuries which are complained of in this action. It is contended in behalf of the defendant that the deceased’s negligence in leaving his seat and going upon the platform, when there was plenty of room in the car, and no necessitous occasion to leave his seat, contributed to the injuries, and therefore a recovery cannot be had. On the contrary, the plaintiffs contend that the deceased is not chargeable with contributory negligence, as a matter of law, in standing on the platform and protruding his head outside the line of the car.

The appellants call our attention to Nolan v. Railroad Co., 87 N. Y. 63. In that case it appeared that the party receiving the injuries was expressly permitted to ride on the front platform, as the conductor received his fare there; and there was proof that it was customary for the company to require passengers who were smoking to ride on the platform. The facts of that case differ from the one before us.

Our attention is also called by the appellants to Goodrich v. Railroad Co., 29 Hun, 50. In that case the passenger left his seat, and went upon the platform of the car, and stood there until the accident in question occurred. There is no evidence in that case that he put his head beyond the line of the car; and Judge Haight, in his opinion, reviews the authorities relating to the question, and upon the precise state of facts there disclosed reached the conclusion “ that it was a question for the jury whether or not it was negligence for him to stand upon the platform under such circumstances.” We think the circumstances in this case are different from that case, and, therefore, that it is not a controlling authority in favor of the plaintiffs.

Our attention is called to Werle v. Railroad Co., 98 N. Y. 650. In that case the passenger failed to find a seat, and none was pointed out to him by an employee of the company, and he took a position on the platform of the car, where other passengers were riding, and without any objection from the employes, and was thrown from the car by a sudden lurch giyen by the great and increased speed in which the train was run on turning a curve; and on that state of facts it was held that a question óf fact was presented for the consideration of the jury. We think the case -essentially differs from the one before us.

Our attention is called to Ginna v. Railroad Co., 67 N. Y. 596. In that case the car was crowded, and the.conductor consented to the passenger standing upon the platform by accepting from him the usual fare, without insisting on his finding a place within the car; and while he was thus riding upon the platform he was thrown off and injured by the negligence of the company, and under those circumstances the court determined that the fact he was standing upon the platform does not of' itself constitute contributory negligence,'but that it is a question for the jury. The facts of that case differ from the one before us.

Appellants call our attention to Willis v. Railroad Co., 34 N. Y. 670. ■ In that cáse the passenger was standing upon the platform of the cars in motion, when there were vacants seats within the cars. In that case the plaintiff was obliged to put his baggage on the car, and the train started immediately, and he paid the conductor for a seat, but found on examination that all the seats were occupied, and he was compelled to stand, and the speed .of the train was such as to render it hazardous to pass from cat to car. We think the facts of that case differ essentially from those disclosed by the evidence in the case in hand.

Our attention is invited to Francis v. N. Y. Steam Co., 114 N. Y. 380; 22 St. Rep. 543. In that case the plaintiff was a passenger upon a railroad. He was sitting by an open window of a car, and had his arm broken as the car passed a bridge. It was claimed by the defendant that the injury was caused by the plaintiff’s arm extending so far out of the window that it came in contact with the upright. However, the testimony was conflicting upon that subject, and the question of whether the plaintiff was guilty of contributory negligence under all the circumstances disclosed in that case was held to be one properly submitted to the jury. We think the case differs in its factsfrorn the one before us.

Appellants cite Webster v. Railroad Co., 40 Hun, 161, where a passenger received injuries who was in a baggage car, smoldng, sitting on a trunk, with the knowledge and consent of the conductor; and it was held, under all the circumstances of that case, “ that the question of contributory negligence was one for the jury.” The facts of the case differ so essentially from the facts in the case in hand that we think it is not an authority controlling in favor of .the appellants.

Our attention is invited to Vail v. Broadway Railway Co., 6 Misc. Rep. 20; 58 St. Rep. 124; id., 147 N. Y. 377. The passenger was smoking a cigar at the time he got on the front platform of the car, and there he paid his fare to the conductor. The facts of the case are so essentially different from those of the case before us that we think it does not sustain the contention of the appellants. In the case in hand it may be said that the deceased “did not incur the peril at the request of the defendant or its officers or agents, or in pursuanee of any general or special orders of the company.” ' Gibson v. Railway Co., 63 N. Y. 454, opinion of Allen, J.

In the course of the opinion delivered in Clark v. Railway Co., 36 N. Y. 137, at page 138, Grover, J., said:

It is the duty of the passenger, on getting on board of a car, to place himself in a safe position therein, if he is able to obtain such position ; and it is no excuse for him to place himself in .an unsafe one that the persons in charge know that he is unsafe, and do not drive him therefrom, when the unsafety is know to the passenger. That riding upon the steps of a street car is less safe than a seat inside, requires no proof. It is obviously so.”

In Holbrook v. Railroad Co., 12 N. Y. 244, Ruggles, J., in delivering the opinion of the court approved of a charge which was to the effect that the jury “ must be satisfied from the proofs, not from speculation, that the defendant’s negligence alone caused the injury; that, if the negligence or want of care of the plaintiff contributed at all to the result, she could not recover; that the company only contracted to carry her safely when she kept within the cars; that it was for the jury to say whether her elbow was out of the cars at the time of the injury; and, if it was, it was a circumstance or fact from which they might infer negligence or want of ordinary care on her part.” In the case in hand it clearly appears that the intestate was out of the car, away from his seat while the car was in motion ; and that he not only stepped out on the platform, but that he projected his head beyond the standard or side of the car, and that, if he had not thus projected his head, the injuries which he received would not have occurred.

Appellants call our attention to the case of Wheeler v. Watertown S. Railway Co., 77 Hun, 611; 59 St. Rep. 888; affirmed 145 N. Y. 689; 67 St. Rep. 868. The facts of that case differ very essentially from-those disclosed by the evidence here. There the intestate was rightfully in the highway, and the question submitted to the jury was whether the defendant, after discovering the peril in which he was, exerted itself to its full capacity to guard against the dangers. There is no evidence in the case before us to indicate that after the intestate had pushed his head beyond the line of the car any employe of the defendant had an opportunity to withdraw his person from the attitude he had assumed by thrusting a portion of his body beyond the line of the car. Upon all the facts disclosed by the appeal book I am of the opinion that the intestate was guilty of contributory negligence. The foregoing views lead to the conclusion that the trial judge committed no error when he granted a nonsuit. Morrison v. Railway Co., 56 N. Y. 302; Solomon v. Man. Railroad Co., 103 id. 437; 3 St. Rep. 636; Hunter v. Cooperstown, etc., Railroad Co., 112 N. Y. 371; 21 St. Rep. 1; same case on second appeal, 126 N. Y. 18: 36 St. Rep. 367; Krauss v. Wallkill V. Railroad Co.; 69 Hun, 492; 52 St. Rep. 838; Wiwirowski v. L. S. & M. S. Railroad Co., 124 N. Y. 420; 36 St. Rep. 405. I am therefore inclined to vote for an affirmance of the nonsuit. However, my associates are of the opinion that the questions as to the negligence and contributory negligence should have been submitted to the jury. Therefore a reversal must be ordered.

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


text:
    Sabina Carpenter, Resp't, v. Andrew B. Miles.

      (Supreme Court, General Term, Fourth Department,

      Filed December 26, 1895.)

    Appeal—Discretion.
    , A new trial, as to the extent of the damages, is addressed to the discretion of the trial court and the exercise of its discretion will not be disturbed on appeal.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial made on the minutes.

      John Conboy, for app’lt;

      I. R. Breen, for resp’t.
   Hardin, P. J.

We have looked carefully through the evidence given at the trial, and are bf the opinion that it sustains the verdict. It was for the jury to resolve the sharp and stubborn conflict furnished by the different witnesses. The charge of the learned county judge fairly presented the questions of fact to the jury, and he instructed the jury that, if they found malice on the part of the defendant, they might give punitive damages. We are not willing to disturb the verdict by reason of the amount thereof to wit, $500: Besides, the motion for a new trial, as to the extent of th% damages, was addressed to the discretion of the court. We ought” not to disturb the conclusion reached by that court in the exercise of its discretion. Code, § 1340, as amended in 1895 (1 Laws 1895, p. 840); Thomas v. Keeler, 52 Hun, 318; 23 St. Rep. 436; Tucker v. Pfau, 70 Hun, 59; 53 St. Rep. 553; Kincaid v. Richardson, 25 Hun, 237, 239 ; Wright v. Chase, 77 id., 90; 59 St. Rep. 865; Reilley v. President, etc., Delaware & H. Canal Co., 102 N. Y. 383; 2 St. Rep. 419; Clark v. Eldred, 54 Hun, 5; 26 St. Rep. 61. No exceptions were taken during the trial which justify us in interfering with the verdict of the jury.

Judgment and order affirmed, with costs.

Martin, J,,.concurs; Merwin, J., concurs in the result.