source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    John O’Brien et al., App’lts, v. Mayor, Aldermen and Commonalty of the City of New York, Resp’t.

      (Court of Appeals,

      Filed June 5, 1894.)

    Appeal — Rearuument.
    A claim that the court has plainly erred in its construction of a contract, is insufficient ground for a motion for a reargument.

      See 55 St. Rep. 596.

   Per Curiam.

The appellants upon this motion for a reargument have availed themselves of the opportunity to in fact reargue their whole ease. In their grounds for their application they have stated several reasons why such motion should be granted, but in truth they have failed to show that any reasons exist for a reargument other than the claim that the court has plainly erred in its construction of the contract in question. We might, therefore, deny the motion on the ground that no reason recognized by the court has been shown for granting the same. Fosdick v. Town of Hempstead, 126 N. Y. 651; 37 St. Rep. 170. Appreciating, however, as we do, the extraordinary importance of the case to the parties, and understanding the strength of the plaintiffs’ desire for one more hearing before this court, and also being sensibly alive to the far-reaching results of our decision in its application to other possible suits, we have felt inclined to overlook the failure of the plaintiffs to bring their case within any one of the acknowledged grounds which the court recognizes as sufficient to grant an application of this kind, and we have, therefore, again examined the whole case with the care and deliberation which its importance demands. The appellants have submitted very voluminous briefs upon this application, which we have read with attention and care. The arguments contained in them, however, are nothing more than a reiteration and amplification of those which were addressed to us upon the original argument. It is impossible for us, notwithstanding this re-statement of the plaintiffs’ case, to come to any different conclusion from that already announced by us.

The whole question depends upon what is the true construction of the contract between the city and the plaintiffs, and what is the true meaning of the legislative act under which the contract was entered into and the work performed. After full reflection, we are still of the opinion that the line AAA, mentioned in the case, is a line of limitation beyond and outside of which the measurement for excavation could not under the contract extend. The same reasoning which caused us to arrive at the conclusion that the defendant could not be held liable for the alleged faults in giving, from time to time, mistaken and incorrect lines and levels for excavation, still control us, and we remain of the opinion we have already expressed upon this branch of the case. Retaining the view that our decision as heretofore announced, is correct, we are compelled to deny the motion for a reargument, with $10 costs. All concur, except O’Brien, J., not voting.

Motion denied.


author: Andrews, C. J.

text:
    John W. Boughton et al., Resp'ts, v. Millard F. Smith, App’lt.

      (Court of Appeals,

      Filed June 5, 1894.)

    Contract—Non-ferformance.
    Where the evidence, in an action on contract for putting in parquet floorings of first-class character, shows that the work shrunk and necessitated constant repairs, it is insufficient to establish performance of such contract.

      Appeal from a judgment of the general term of the supreme court, first department, affirming a judgment in favor of plaintiffs.

      H. D. Birdsall, for app’lt; W. P. Knapp, for resp’ts.

      Reversing, 51 St. Rep. 316.

   Andrews, C. J.

There was no dispute on the trial of the evidence given by the defendant as to the contract. The plaintiffs contracted to put parquet flooring throughout the house of the defendant, and the work was to be “ first-class.” Nor was there any substantial difference in the testimony as to what constituted a first-class flooring of this description. The beauty of the flooring depends upon the blocks being so laid as to leave no space between them, and with material so seasoned and prepared that, after the blocks are laid, spaces will not open by shrinkage. This is what the floor maker, as one of the plaintiiffs testified, undertakes to do,—“ that the blocks shall be so seasoned, and so well and carefully laid, that there shall be no space whatever between the blocks.” It appears, however, that it is unavoidable that there may here and there, be a block which will shrink somewhat,—a defect which, on going over the floor again, may be easily remedied without destroying the body of the work. The contract for the laying of the floors was made in 1887, and the. work was to be completed that season. The floors were laid in the fall of that year, and when first (Completed they were smooth and even, without breaks; but, soon afterwards, spaces began to open between the blocks. The defendant made complaint, and the plaintiffs took up part of the floors the next year,1 and relaid them. But the blocks soon sparated again. In 1889, the plaintiffs took up and relaid the part of the floors not taken up the year before, and filled in the spaces in the work of the previous year, so that the job, when completed, seemed perfect, and- the defendant expressed himself satisfied with their appearance at that time. This was in August. The plaintiffs then applied for the payment of the contract price. The defendant paid $700 on the contract, but declined to pay the balance of $650 until he could see “ how the floors stand,.” To this the plaintiffs consented. Soon after the shrinkage commenced again, and the blocks in nearly every room in the house commenced to separate. In December, 1889, the plaintiffs, as their evidence tends to show, sent a workman to the house to repair the floors and fill the spaces, who was there, engaged in this work, for three days. The workman testified that' when he got through the floors were smooth and solid, and that the defendant expressed his satisfaction. The defendant testified that no work was done on the place after August. But the evidence given by experts and others is uncontradicted that after December, 1889, the floors throughout the house were in very bad condition, with the exception of floors in one or two rooms. The blocks did not join, and the floors were generally very imperfect, and have so remained. The plaintiffs testified that shrinkage of the blocks may have been caused by excessive heat in the house, or by dampness. But the affirmative evidence shows that these conditions did not exist, and that the shrinkage could not be attribated to either of these causes. It was also shown that the material for the floors was brought from Philadelphia, and taken to the house in open wagons, and on one or more occasions was exposed to the rain on the way. We fail to find in the record any evidence that the plaintiffs substantially performed their contract, and we think the motion for nonsuit on that ground should have been granted. The plaintiffs gave evidence that the floors were of the best materials and workmanship. This does not meet the specific and uncontradicted evidence as to shrinkage, and the acts of the plaintiffs in relaying and repairing them show that the general statements were not intended to cover this defect.

The judgment should be reversed, and new trial granted.

All concur. Judgment reversed.


author: Herrick, J.

text:
    In the Matter of the Application by L. J. Prescott et al., for the Removal of Richard Donovan, a Justice of the Peace.

      (Supreme Court, General Term, Third Department,

      Filed May 8, 1894.)

    Justice of the peace—Removal—Supreme court.
    The removal of a justice of the peace from office can be made only by the general term of the supreme court.
    Appeal from order of removal.

      Cantwell & Cantwell ( Wm. P. Cantwell, of counsel), for app’lt; Jacob W. Webb, for resp’ts.
   Herrick, J.

This is an appeal from an order of the county judge of Franklin county removing Richard Donovan from the office of justice of the peace. The proceeding before the county judge for the removal of said Donovan from office was founded upon § 35, pt. 1, c. 5, tit. 4, art. 4, Rev. St. (Birdseye’s St. 1770, §§ 283, 284). These provisions of the Revised Statutes were repealed by chapter 569 of the Laws of 1890. See § 243, Schedule of Laws Repealed. Section 18 of article 6 of the Constitution provides that justices of the peace may be removed from office by such courts as may be prescribed by law, and the legislature by law prescribed the general term of the supreme court as the court to be vested with such power, see § 132 of the Code of Criminal Procedure, and it is the only court that the legislature has vested with such power. The county judge had, therefore, no jurisdiction over the proceedings to remove said Donovan from the office of justice of the peace, and the order appealed from should therefore be reversed, with the costs, printing and other disbursements of this appeal, and of the proceedings before the county judge.

All concur.


text:
    Annie Rutherford, as Administratrix, etc., App’lt, v. Town of Madrid, Resp’t.

      (Supreme Court, General Term, Third Department,

      Filed May 8, 1894.)

    <0osts—Security for—Section 3371.
    Where the court is satisfied that the action is brought in good faith, that it is not malicious or vexatious, and that the plaintiff has a prima facie case upon the merits, he should not be required to file security for costs, in a case under § 3371 of the Code.

      Appeal from an order requiring plaintiff to give security for costs.-

      Louis Hasbroucic, for app’lt; F. J. Merriman (0.A. Kellogg, of counsel, for resp’t.
   Herrick, J.

This is an appeal from an order of the special term requiring the plaintiff to give security for costs. The action is one brought by the plaintiff, as, administratrix of her deceased husband, against the town, for negligence causing the death of the intestate. The order is made under § 3271 of the Code of Civil Procedure. It is a discretionary order, and excepting where-it has been irregularly obtained, or there has been an abuse of discretion, or where the discretion has been exercised in pursuance of erroneous principles "or theories of law, that discretion will not be reviewed upon appeal. With great respect for the very able and learned court which made the order, it seems to me that it was granted in pursuance of an erroneous theory and construction of the section of the Code referred to. In arriving at its determination, it expressly refused to take into consideration, in any degree, the merits of the plaintiff’s cause of action, and to base the order upon the sole and only ground that the plaintiff was-personally irresponsible, and the estate was insolvent. If this be-the correct principle to apply in determining applications of this-kind, it is obvious that in actions like this, brought for the death of the intestate by the negligence or wrongdoing of the defendant, it would, in a very considerable number of cases, put an end to-litigation without a hearing upon the merits., A family whose only means, of support has been the earnings of its head, and whose only asset is the cause of action which the law gives for the negligent and wrongful taking of the life of the head of the family, would be deprived of the means of prosecuting the right, which the law gives. Provision is made, under our laws, whereby a poor person having a cause of action in his own right may, upon application to the courts, be permitted to prosecute such-action without liability or giving security for costs. But there is no such affirmative provision in our statutes as permits the court to grant the like immunity to persons, like the plaintiff, suing in a representative capacity, and it seems to me that a humane and rational principle upon which to exercise the discretion vested in the court, under § 3271, in cases like this, is to adopt practically the same principles upon which courts permit persons to bring suits in their o*n right as poor persons; that is, if the court is-satisfied that the action is brought in good faith, that it is not malicious or vexatious, and that the plaintiff has a prima facie case upon the merits, then the plaintiff should not be required to. file security for costs. It seems to me that in this ease the special term did not, in fact, exercise its discretion. The theory upon-which it proceeded, if correct, entitles the defendant, as a matter of right, to have a plaintiff suing in a representative capacity file-security for costs in all cases where he is personally irresponsible,, and the estate has no appreciable assets except the cause of action which he seeks to prosecute, no matter how good that cause of action may be. A construction which, without any consideration of the merits of his case, excludes a suitor from the courts of justice because he is poor and without friends to become his security, cannot be sustained. The order appealed from should be reversed, and the proceedings remitted, to be heard at special term, that its discretion may be exercised upon the merits in consonance with the views herein expressed, with $10 costs, and printing and other disbursements of this appeal, to the appellant.

All concur.


text:
    Thomas Slavin et al., App’lts, v. William K. Mansfield, Resp’t.

      (Supreme Court, General Term, Third, Department,

      Filed May 8, 1894.)

    Justice of the peace—Jurisdiction—Non-residence.
    An action may be brought against a non-resident defendant in a town, adjoining the city in which plaintiff resides, though the former was not in such town when the action was commenced.
    Appeal from a judgment of the county court reversing a judgment in favor of plaintiffs.

      Henry J. McCormick, for app’lts ; P„ ZX <£• Smith Niver (P D„ Niver, of counsel), for resp’t.
   Herrick, J.

The plaintiffs reside in the city of Cohoes, the defendant resides in the county of Saratoga. This action was brought in the justice’s court in the town of Watervliet, which adjoins the city of Cohoes. The defendant was served with a summons in the city of Cohoes. The judgment was rendered in favor of the plaintiffs, and against the defendant, for the sum of $38.29 damages and $3.85 costs. The defendant appealed to the county court of Albany county. The county court reversed the judgment of the justice’s court on the ground that such court had no jurisdiction over the defendant. This I think was error. Section 2869 of the Code of Civil Procedure provides that “ an action must be brought before a justice of a town or city wherein one of the parties resides, or a justice of an adjoining town or city in the same county, except in one of the following cases: * * Subd. 3. Where the defendant is a non-resident of the county, it may be brought before a justice of the town or city in which he is at the time of the commencement of the action.” Subdivision 3 of § 2869 is not a restriction or a limitation of the jurisdiction of the justice, but is an addition to the jurisdiction given by the first part of the section. Bennett v. Weaver, 50 Hun, 111; 19 St. Rep. 41. The plaintiffs brought their action in the town adjoining the one in which they resided. They had the right to bring into such court any person over whom the court had jurisdiction. It had jurisdiction over the defendant, he being found in the county, unless there is something in the statute depriving it of jurisdiction. Subdivision 3 of the section referred to is not a provision that a non-resident must be sued in the court in the town wherein he is at the time the process is served upon him. The provision is permissive, not compulsory. He may be sued in such town, although the plaintiff does not live there nor in the adjoining town. The justice’s court, therefore, had jurisdiction over the defendant, and the judgment of the county court should be reversed, and that of the justice’s court affirmed, with cost of this appeal and of the appeal to the county court.

All concur.


text:
    Katherine Van Rensselaer et al., as Executors, etc., Resp’ts, v. Horatio D. Mould, App’lt.

      (Supreme Court, General Term, Third Department,

      Filed May 8, 1894.)

    Damages—Rules adopted at instance oe party.
    The correctness of the rule of damages, adopted at the instance of a party, cannot be questioned by such party.
    Appeal from a judgment in favor of plaintiffs.

      Hale, Gowen & Bulkley (Eselc Goioen, of counsel), for app’lt; Richard W. Brass ( William F. Beutler, of counsel), for resp’ts.
   Herrick, J.

— There seems to be no question in this case but that the defendant, for a series of years, trespassed upon the property of the plaintiffs’ testatrix, and took and carried away ice therefrom, without permission, and against her repeated warnings and protests. It is not seriously contested but what the plaintiffs-are entitled to recover damages for such trespass. The only serious question in the case is as to the measure of damage adopted by the referee. I do not see that appellant can justly complain of the ruling of the referee, for in response to his request the referee found “that under the circumstances the true measure of damages is the value to the plaintiffs’ testatrix of the right to sell to others the privilege of cutting and removing the ice in question,” and that was the rule adopted by the referee. The rule for measuring the damage, thus adopted, whether correct or incorrect, was adopted by the referee at the defendant’s special request, and he cannot now challenge its correctness. What the value of that right was, was a question of fact for the referee to determine -from all the evidence before him; and all the evidence bearing upon that question that from the nature of the case could be given seems to have been given, and from it the good sense of the referee had to be exercised to arrive at a proper conclusion. Drucker v. Man. Railway Co., 106 N. Y. 157-164; 8 St. Rep. 599. From the conclusion that he arrived at upon such question of fact I can find nothing in the evidence that justifies me in concluding that he erred, and found a value for the right in question not justified by the evidence.

Judgment, therefore, should be affirmed, with costs.

All concur.


text:
    Vilas National Bank of Plattsburgh, Resp’t, v. Henry E. Barnard et al., App’lts

      (Supreme Court, General Term, Third Department,

      Filed May 8, 1894.)

    Pleadings —Answer—Insufficiency.
    An answer, which alleges • that the note in suit was accommodation paper, made and delivered on the condition that the defendants should not be held liable thereon, provided that there was delivered to the plaintiff good business paper of the maker, is insufficient.
    Appeal from a judgment in favor of plaintiff, and from an order overruling defendants’ answer as frivolous, and ordering that plaintiff have judgment in the action for damages and costs.

      Foote & Stokes {Wallace T. Foote, Jr., of counsel), for app’lts; Shedden & Booth {L. L. Shedden, of counsel), for resp’t.
   Herrick, J.

The defendants allege that the note in question was for money loaned and advanced by the plaintiff to and for the benefit of a third person, and that said money was not loaned to the defendants, or either of them, and that they did not have the same; which facts the answer alleges the plaintiff well knew when said note was made, indorsed, and delivered to it. The answer then proceeds to allege as a defense that the note was made and delivered upon the express condition that the defendants were not to be called upon to pay the same at maturity, provided there was delivered to the plaintiff good business paper of such third party to the amount of the note, which good business paper was the paper received by such party for merchandise sold. There is nothing in the answer to show with whom such agreement was made. While the answer carefully set forth that the plaintiff knew that the defendants were accommodation indorsers, and received no benefit from said note, it does not state that the agreement to replace such note at its maturity with good business paper belonging to the maker of the note, and received for merchandise, was made with the plaintiff; and, if it was not made with the plaintiff, of course it would be no defense to this action. The answer should plainly and clearly set forth all the facts which constitute the defense relied upon. None should be left for guess or inference. Here the very important fact whether this agreement or condition was made by or known to the plaintiff is not made known to the court. The agreement itself is uncertain. The character of the paper is perhaps sufficiently described, but its terms, conditions, and length of time for which it was to run are uncertain, and the agreement could not be enforced for that reason. Van Schaick v. Van Buren, 53 St. Rep. 827; 24 N. Y. Supp. 306; Milliman v. Huntington, 52 St. Rep. 273; 22 N. Y. Supp. 997.

Judgment should be affirmed, with costs.

All concur.


text:
    Village of Sandy Hill, App’lt, v. Benjamin Akin et al., as Administrators, etc., Resp’ts.

      (Supreme Court, General Term, Third Department,

      Filed May 8, 1894.)

    Taxes—Assessment.
    An assessment of personal property against the heirs of a decedent, without naming them, is void.
    Appeal from a judgment of nonsuit.

      D. J. Sullivan, for app’it; G. M. Ingalsbe (A. D. Wait, of counsel), for resp’ts.
   Herrick, J.

The judgment in this ■ case should be affirmed. The assessment for personal property against the heirs of a person deceased, without naming them, is void. It does not follow the statute. Cruger v. Dougherty, 43 N.Y. 107; Trowbridge v. Horan, 78 N. Y. 439; Cromwell v. MacLean, 123 N. Y. 474 ; 34 St. Rep. 85.

All concur.


author: Martin. J.

text:
    George G. French, Resp’t, v. Susan Row et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed May 18, 1894.)

    1. Mortgage—Interest clause.
    Where a mortgage contains a provision that, in case of default in pay ment of part of the amount secured, the whole shall become due at the option of the mortgagee, the court will grant no relief to the mortgagor from the effect of his default, in the absence of fraud or improper conduct on the part of the mortgagee, or anything to render it unconscionable to avail himself of such provision.

      2. Same—Waiver.
    But this right to enforce a forfeiture may be waived by express language, by acts importing such intention, or by acts amounting to an estoppel.
    3. Pleadings—Amendment.
    An amended answer, stating that one of the defendants had no interest in the mortgaged premises and that he was induced to sign the bond and mortgage by the false representations of the mortgagee, may be filed in an action to foreclose a mortgage.
    4. Appeal—Dismissal—Effect of.
    An order of dismissal of an appeal for want of prosecution does not preclude a second appeal.
    5. Same—Notice of appeal.
    A notice of appeal, which apprises the respondent that an appeal is taken from an order, is sufficient.
    Appeal from a judgment in favor of plaintiff and from two orders—one striking out the amended answer and the other denying a motion to have the issues settled and tried before a jury.

      J. W Shea, for app’lts ; IF. H. Kenyon, for resp’t.
   Martin. J.

This action was brought in the Oswego county court to foreclose a mortgage made by the defendants, April 1, 1890, given to secure the payment of $5,000, with interest at the rate of 5 per cent, per annum, payable semiannually, the principal to be paid at the expiration of 10 years. The mortgage contained a provision that if default should be made in the' payment of any sum on the day it became due, and it should remain unpaid for the space of 10 days, the whole debt should thereupon, at the option of the mortgagee, become due and payable immediately thereafter. The plaintiff claimed, and the proof introduced by him tended to show, that the interest which became due April 1, 1893, remained unpaid for the period of at least 10 days before the commencement of this action, while the evidence of the defendants was to the effect .that the whole of the interest that became due before the commencement of the action had been paid. Whether the interest had been paid was the question chiefly litigated on the trial. The evidence disclosed that the plaintiff not only held the mortgage in suit against the defendants, but that he also had a chattel mortgage upon the property of the defendant Gould P. Row to secure the payment of the sum of $200, together with some portion of the interest upon this mortgage. If all the payments made by the defendants were to apply on the mortgage in suit, then no portion of the interest remained unpaid. The court found that the interest upon this mortgage had been paid up to, but not including, the whole of the installment due on October 1, 1892, and that by reason of the omission of the defendants to pay the installment which became due April 1, 1893, and a part of the installment which became due October 1, 1892, which remained in arrears for the space of more than 10 days before the commencement of this action, the whole principal sum of $5,000 and all arrears of interest thereon became due and payable on April 12, 1893.

As we have seen, there was a conflict in the evidence upon the question whether the interest was paid upon the mortgage in suit to April 1, 1893. If the defendant’s version of the transaction is correct, all the interest was paid, and the plaintiff was not entitled to maintain this action. On the other hand, the plaintiff’s evidence was perhaps sufficient, if believed, to justify the court in finding that the payments made were not to apply upon the interest on this mortgage, but upon the other claim held by the plaintiff against one of the defendants. A careful reading of the evidence tends strongly to substantiate the claim of the defendants, and the credibility of the plaintiff was seriously impaired by his own written declaration indorsed upon the chattel mortgage held by him against one of the defendants; so that upon the whole evidence we are led almost irresistibly to the conclusion that the interest upon this mortgage had been fully paid when the action was commenced. The general rule relating to mortgages containing a provision that, in case of default in payment of part of the amount secured, the whole shall become due at the option of the mortgagee, is that the provision is a valid one, and courts will grant no relief to a mortgagor from the effect of his default in the absence of fraud or improper conduct on the part of the mortgagee, or anything to render it unconscionable to avail himself of the provision in it. Bennett v. Stevenson, 53 N. Y. 508; Malcolm v. Allen, 49 N. Y. 448 ; Hale v. Gouverneur, 4 Edw. Ch. 207; Ferris v. Ferris, 28 Barb. 29 ; Noyes v. An derson, 124 N. Y. 180; 35 St. Rep. 94; Valentine v. Van Wagner, 37 Barb. 60. Thus the question is presented whether, under the circumstances shown to exist in this case, the conduct of the plaintiff, and the course, of dealing between the parties, had been such as to render it unconscionable for the plaintiff to avail himself of this provision in the mortgage. As we have seen, the evidence is very persuasive that the interest had in fact been paid, so that the defendants might well have supposed that it was paid. We also find that from the time the first installment of interest became due, in 1890, until the payment of April 1,1893 became due, the defendants had paid, and the plaintiff had received, the interest at periods varying from one to six months after it became due, without in any way mentioning or claiming the right to avail himself of that provision, and without intimating to the defendants, prior to April 10, 1893, that prompt payment of the interest would be required. Again, the proof indihates quite plainly that the plaintiff’s .purpose in declaring and claiming the whole amount to be due under this provision in the mortgage was not to secure the payment of his interest promptly when it became. due, but to employ that provision as a means to compel the defendants either to deed him the whole mortgaged property or reduce the amount of the principal debt secured by the mortgage. That the defendants supposed the interest paid, and, if it was not, they were mistaken in that respect, and that the course of action adopted by the plaintiff was improper, inequitable, and unconscionable, seems quite clear; and that he should not be permitted to avail himself of that provision in his mortgage for the purpose of acquiring the defendant’s property, or depriving them of the benefit of their contract for the loan made, for the time and at the rate of interest mentioned, without apprising them that the course of dealing which had, existed between the parties from the beginning was to be changed, is equally clear. It has been said that such a condition is not in the nature of a forfeiture. If by this is meant that it is not in the nature of a penalty for a wrong, it is doubtless correct; still, a breach of such a condition involves a loss of a right or benefit as a penalty for omitting to perform a required act, and to that extent, at least, is in the nature of a forfeiture. And when, as in this case, the mortgagors follow the course of dealing which has existed between them and the mortgagee from the beginning, and when, as here, the mortgagors might well have supposed that they had wholly discharged their obligations under this contract, and the mortgagee’s purpose is an ulterior one, we think the mortgagors are entitled to be relieved from the effect of such an omission. It has been held quite, uniformly in this state, in regard to insurance policies, that any agreement, declaration, or course of action on the part of the company, which leads a party insured honestly to believe that by conforming thereto a forfeiture of his policy will not be incurred, followed by due conformity on his part, will estop the company from insisting upon the forfeiture, though it might be claimed under the express letter of the contract. Kenyon v. Knights', etc., Association, 122 N. Y. 247; 33 St. Rep. 467. In De Frece v. Nat. L. Ins. Co., 136 N. Y. 144; 48 St. Rep. 909, the defendant insured the life of the plaintiff’s intestate upon what is known as the installment bond plan,” the premium to be paid in twenty annual installments, and the bond to be forfeited in case of non-payment at the date specified. An action was brought upon the bond, and the defendant alleged in its answer a subsequent agreement that the installments should be paid quarterly instead of annually, and that the1 bond was forfeited by reason of the failure of the deceased to pay a quarterly payment which fell due twenty-three days before his death. The only proof as to the new agreement was evidence showing that from October, 1883, to October, 1888, the insured, paid the premiums quarterly; that they had been received and accepted by the defendant, and re-receipts given reciting that they were for premiums falling due quarterly. The evidence showed that all these 'payments, except three, were made by note, and at intervals from.20 days to 5 months after they became due. The court, in delivering the opinion in that case, said: “It was entirely competent for the parties to modify the terms of the original contract with respect to the time of payment and the effect of a failure to make punctual payment, and the evidence is sufficient to support a finding that the defendant agreed, subsequently to the execution of the contract, to accept payment of the premiums quarterly, or within a reasonable time thereafter, and that the policy should continue in force until such payments were made, providing they were not unreasonably deferred. It has been repeatedly held, both in the state and federal courts, that such an agreement may be inferred from the course of dealing between the parties. Leslie v. K. L. Ins. Co., 63 N. Y. 34; Meyer v. K. L. Ins. Co., 73 N. Y.516; Wyman v. Phœnix M. L. Ins. Co., 119 N. Y. 274; 29 St. Rep. 567; Kenyon v. Knights, etc., Association, 122 N. Y. 247; 33 St. Rep. 467; Attorney- General v. Continental Life Ins. Co., 33 Hun, 141; Insurance Co. v. Wolff, 95 U. S. 326 ; Insurance Co. v. Eggleston, 96 U. S. 577; Insurance Co. v. Doster, 106 U. S. 37: Helme v. Insurance Co., 61 Pa. St. 107.”

Again, where, by the terms of a contract for the sale of land, the purchase money is to be paid in installments with annual interest, and the vendor reserves to himself the right to forfeit the, contract if the vendee makes default in any of the payments, and after default the vendor continues to receive parts of the purchase money, it has been uniformly held in this state that1 such a vendor, by receiving payments after default, had so far waived the forfeiture that he could not insist upon it without giving the purchaser notice to pay the arrears, or he would exercise the right of forfeiture, and that a vendor who has waived a forfeiture for nonpayment by receiving partial payments from the vendee, after the time of payment prescribed in the contract, cannot suddenly stop short, and insist on a forfeiture for the nonpayment of the the arrears, without previous notice of his intention to do so if the arrears are not paid. Harris v. Troup, 8 Paige, 423; Richmond v. Foote, 3 Lans. 244; Cythe v. La Fountain, 51 Barb. 186, 191 ; McCarty v. Myers, 5 Hun, 83, 85. So, too, where, upon the conditional sale of a chattel, it is agreed that the vendee is to have possession, and pay the price within the time fixed, if, after the purchase money has become due and remains unpaid, the vendee is still permitted to retain possession, and the vendor receives part, payment, this is gm assent by the latter to delay, and a waiver of any forfeiture, and a recognition of the right of the vendee to acquire title by payment of the residue of the purchase money, which right would continue until a request by the vendor for such payment, and a refusal by the vendee. Hutchings v. Munger, 41 N. Y. 155; O'Rourke v. Hadcock, 114 N. Y. 541, 550; 24 St. Rep. 511; Cushman v. Jewell, 7 Hun, 525. In Bell v. Romaine, 30 N. J. Eq. 25, where a bond secured by a mortgage provided that, on default in the payment of the interest thereon for 30 days after the same had become due, the principal should, at the optio'n of the obligee, become payable, it was held that after, the obligee had ratified several parol extensions of time for paying the interest, made by her agent, a subsequent similar extension would be deemed a waiver of the forfeiture, and a suit at law to enforce the bond on the ground of such forfeiture would • be enjoined. The right to enforce a forfeiture may be waived by express language, by acts importing an intention to waive the right, or by acts amounting to an estoppel. 2 Beach, Mod. Eq. Jur., § 1021. While, perhaps, thére is no case in which the precise question here involved has been decided, yet we think the principle of the authorities cited fully sustains our conclusion that, under the circumstances disclosed in this case, it was improper and unconscionable for the plaintiff to avail himself of the provision in the mortgage by which he might declare the whole amount due for the nonpayment of the interest, and that he could not avail himself of that provision without notice to the defendants that the -course of dealing which had existed between them from the beginning was to be changed, and prompt payment required. • These ■considerations lead .us to the conclusion that the judgment was wrong, and should be reversed.

This brings us to the consideration of the appeal from the order striking out the defendants’ amended answer. The original answer in the case specifically denied certain allegations of the complaint, and alleged that the whole of the interest mentioned therein had been fully paid when it became due. The amended answer contained a general denial of the allegations of the complaint, except certain allegations which were expressly admitted, set up payment, and also alleged- facts showing that the defendant Gould P. Eow had no interest whatever in the mortgaged premises; that he was induced by the representations of the plaintiff to sign the bond and mortgage to cut off his right as tenant by the curtesy, although he had no such right; that he signed the same upon the statement of the plaintiff that it was necessary for him to do so, as he was the husband of the other defendant; and that there was no consideration for his signing such bond and mortgage. Thus we find that in the amended' answer it was, in effect, alleged that the execution of the mortgage by Gould P. Eow was procured by the false representations of the plaintiff, and that it was without consideration as to him. We think the •defendants had the right to have the benefit of this answer, and, as it was served in time, it should have been permitted to stand, especially as the plaintiff had sufficient time after its service to re-notice the case for the term at which it was tried. If this answer had been permitted to stand, and the defendants had established the additional facts alleged, it is quite probable that no judgment for deficiency would have been awarded against the defendant Gould P. Row. We think the court erred in striking out the •defendants’ amended answer, and that this order should be reversed.

The respondent’s claim that this- order cannot be reviewed on this appeal because a former appeal was taken and dismissed by this court, cannot, we think, be sustained. In Elliott’s Appellate Procedure, "§ 535, it is said: The effect of- the dismissal of an appeal is, as a general rule, to leave the case as if there had been no appeal. An order of dismissal does not preclude a second appeal.”

The dismissal of an appeal for want of prosecution is not, in judgment of law, an affirmance of the judgment appealed from. Watson v. Husson, 1 Duer, 242. In that case it was, in substance, held that the only effect of such a dismissal was to replace the judgment in its former condition, leaving its merits still open for •examination upon a second or further appeal. The case was affirmed in 14 N. Y. 60, where the court said: “ A dismissal of the appeal for want of prosecution is clearly not an affirmance of the judgment. This court has decided nothing whatever in respect to the validity of the judgment.”

The principle of this case was reaffirmed in Palmer v. Foley, 71 N. Y. 106, 109. See, also, Kelsey v. Campbell, 38 Barb. 238; Blake v. Lyon & F. Mfg. Co., 75 N. Y. 611; Culliford v. Gadd, 135 id. 632; 48 St. Rep. 485. These authorities are adverse to the. claim of the plaintiff, and we find nothing in the case of Wiener v. Morange, 7 Daly, 446, which aids him, as in that case the intermediate order which was sought to be reviewed on an appeal from a final judgment had already been reviewed on the merits by the court to which the appeal was taken, and hence that case was clearly within the provisions of § 1316 of the Code of Civil Procedure.

Nor do we think the claim of the plaintiff that this order cannot be reviewed because the notice of appeal does not distinctly specify it can be upheld. The purpose of this provision was to apprise the respondent of the fact that an appeal was taken from the order, and, when the notice of appeal accomplishes that purpose, it must, we think, be regarded as sufficient. The notice of appeal in this case was to the effect that the defendants appealed from the judgment, and that they also intended to bring- up for review the order herein, dated the 18th day of July, 1893, and the order, dated the 18th of July, 1893, denying the defendants’ motion to settle the issues. That the appellants intended to appeal from two orders that were made on the 18th of July, 1893, is manifest. One of the orders is described, and hence the respondent must have clearly understood that the other order intended to be brought up for review was the order striking out the defendants’s amended answer. We think the notice of appeal was-sufficient. It follows that this order should be reversed.

The order denying the defendants’ motion to settle the issues in this action, and directing a trial thereof by a jury, rested, we think, in the discretion of the court below; and while it would doubtless have been more satisfactory to try the issues by a jury, yet we think we should not disturb that order, and that it should be affirmed. Judgment reversed, and a new trial ordered, with costs to abide the event. The order striking out the defendants' amended answer reversed, without costs. The order denying the the defendants’ motion to settle the issues in the action affirmed,, without costs.

Hardin, P. J., concurs; Merwin, J., concurs in the result.


author: Martin, J.

text:
    George B. Hankins, Resp’t, v. Edmund H. Watkins, an Infant, by Guardian ad Litem, etc., App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed May 18, 1894.)

    1. Negligence—Shooting another while hunting.
    A person who negligently shoots another while hunting, though he did' not know of the latter’s presence, is liable for the injury caused thereby.
    2. Evidence—Intention.
    Evidence of the defendant’s intent is not admissible in an action for negligence.
    3. Same—Negligence.
    In an action for negligence in shooting, evidence that defendant handled his gun with care, or that he hgd had considerable experience in handling a gun, or that he was a capable and careful hand to handle a gun, is incompetent.
    Appeal from a judgment entered on a verdict of plaintiff, and from an order denying a motion for a new trial on a case and exceptions.

      M. N. Tomplcins, for app’lt; Thomas W. Burns, for resp’t.
   Martin, J.

This action was for negligence. The plaintiff claimed, and the evidence'given in his behalf disclosed, that on the 14th day of October, 1889, he and his brother went to the head of Cayuga lake, duck hunting; that they took with them two tame ducks to be used as decoys; that, while they were preparing to anchor them as such decoys, one of them escaped from the boat in which They were, and the plaintiff and his brother pursued it; that, while doing so, the defendant shot at them, and seriously injured the plaintiff; that the accident occured a few minutes before 6 o’clock in the morning; that it was clear and broad daylight, being about 15 or 20 minutes before sunrise; that between the place where the defendant stood when he fired, and the boat in which the plaintiff and his brother were, there was nothing to obstruct the defendant’s vision, so that, if he looked before firing, he would have seen the plaintiff, his brother, and the boat in which they were at the time. The evidence of the defendant was somewhat in conflict with that of the plaintiff, and tended to show that it was not sufficiently light at the time to enable him to see the plaintiff, and that his vision was obstructed by the limbs of the trees and shrubs that stood between him and the plaintiff. The question whether the transaction was as claimed by the plaintiff or as claimed by the defendant was submitted to the jury, and it found in favor of the plaintiff. Therefore, in examining the questions of the defendant’s negligence and the plaintiff’s freedom from contributory negligence, we must regard the facts proved by the plaintiff as the established facts in this case. Assuming the transaction to have occurred in the manner testified to by the plaintiff and his witnesses, it is quite obvious that both the question of the defendant’s negligence and the question of the plaintiff’s freedom from contributory negligence were questions of fact that were properly submitted to the jury, and that its findings thereon should be regarded as final. The appellant, however, insists that the rule of law applicable to this case is that “ one who is hunting in a ‘ wilderness ’ is not bound to anticipate the presence, within range of his shot, of another man, and is not liable for an injury caused unintentionally by him to a person of whose presence he was not aware,” and cites 4 Wait, Act & Def. 702, and Bizzell v. Booker, 16 Ark. 308, to uphold his insistence. When we examine the Bizzell Case we not only find that the facts in that case were wholly unlike those in the ease at bar, but that all that was held in that case was that where a person was doing a lawful act, oran act not mischievous, rash, reckless, or foolish, and naturally liable to result in injury to others, he was not responsible for damages resulting therefrom, by accident or casualty, while he was in the exercise of such care aud caution as a prudent man would observe, under the circumstances surrounding him, to avoid injury to others. We also find that in that case it was expressly held that such a person would be answerable for damages which resulted from his negligence or want of such care and caution on his part. Eeferring to Wait’s Actions and Defenses, we find the statement above quoted, and that the Bizzell Case is the only authority cited to sustain it. We fail to see how the doctrine of the Bizzell Case in any way aids the defendant, hut, on the contrary, it seems to be an authority in favor of the plaintiff, as the court in that case expressly indorsed the doctrine laid down by Bronson, C. J., in Vandenburgh v. Truax, 4 Denio, 464, as follows: “ It may be laid down as a general rule that when one does an illegal or mischievous act which is likely to prove injurious to others, and when he does a legal act in such a careless and improper manner that injury to third persons may probably ensue, he is answerable, in some form of action, for all the consequences which may directly and naturally result from his conduct * * * It is not necessary that he should intend to do the particular injury which follows, nor, indeed, any injury at

In Shear. & R. Neg. § 686, it is said: “A very high degree of care is required from, all persons using firearms in the immediate vicinity of other people, no matter how lawful, or even necessary, such use may be.”

And the cases of Weaver v. Ward, Hob. 134; Castle v. Duryee, 1 Abb. Dec. 327; Moody v. Ward, 13 Mass. 299; McClenaghan v. Brock, 5 Rich. Law, 17; Haack v. Fearing, 5. Rob. 528; and Moebus v. Becker, 46 N. J. Law, 41,— are cited to sustain that proposition.

Cooley, on his work on Torts, says: “When one makes use of loaded weapons, he is responsible only as he might be for any negligent handling of dangerous machinery ; that is to say, for a care proportioned to the danger of injury from it.” ,

Under the circumstances disclosed by the evidence in this case, and upon the authorities bearing upon the question of the defendant’s liability, we think there is no doubt of the plaintiff’s right to recover in this action.

On the trial the defendant was asked : “ Did you intend to shoot this plaintiff? ” This question was objected to by the plaintiff, the objection was sustained, and the defendant duly excepted. While it has been held that, when tlie question of the party’s intent is one of the issues in an action, he may testify that he had, or did not have, the intent charged, still, where the issue is not one of intent, such evidence is inadmissible, as his intent is immaterial. In this case, while the complaint charges the defendant with having wrongfully and negligently caused the plaintiff’s injury, there was no claim on the trial that his act was intentional, but, on the contrary, the plaintiff sought to recov er only upon the the ground of defendant’s negligence. This is shown very plainly by that portion of the charge of the learned trial judge in which he said to the jury : “ It is not claimed that the [defendant] willfully shot the plaintiff. The plaintiff’s counsel repudiates the idea that he deliberately and w'llfully, intending to hit these men, shot at them, for they claim that the act was a lawless act, and that the act was careless and negligent, and not deliberate and willful.”

Again, the judge says: “ But this is not a charge of willful shooting.”

Thus the question at issue between the parties on the trial was whether the plaintiff’s injury was caused by the defendant’s negligence, and no question of his intent was involved in the case. We find no error in this ruling.

The defendant was also asked: “ Did you handle your gun that morning in a careful, prudent and cautious manner ? ” This was objected to, the opinion sustained, and the defendant excepted. We think this exception was not well taken. If by this question the defendant sought to show that in his opinion he was not negligent in shooting the plaintiff, it was inadmissible, as that was a question, not for the witness, but for the jury to decide. Carpenter v. Eastern Transportation Co., 71 N. Y. 574; 16 Am. & Eng. Enc. Law. 463, and cases cited. If the defendant’s purpose was to show that he handled his gun with care, it was immaterial, as the negligence charged did no. relate to the manner in which he used his gun, but consisted in his shooting towards the plaintiff without previously looking to see what was within the range of his gun when he fired. The defendant was also asked: “Have you had considerable experience in handling a gun, and were you careful in handling your gun upon the morning in question ? ” which was objected to and excluded. This was, in substance, the same as the previous question, and the evidence was properly rejected. We are also of the opinion that the court properly refused to admit the evidence called for by the questions put to the witness Brown,—-whether the defendant was a capable and careful hand to handle a gun.

It appears that photographs had been taken of the place where this injury occurred. The plaintiff was interrogated as to the relative condition at the time when they were taken, and when the injury occurred, of the trees, water, and other things, as to what was done, and as to whether there was anything to obstruct the defendant’s view. This evidence was objected to by the defendant, , and admitted under his exception. As the photographs were not admitted in evidence or shown to the jury, we are unable to see how the defendant could possibly have been injured by the admission of this evidence. It is quite manifest that, even if the evidence was inadmissible, its admission was harmless, and hence we find in the ruling no reason to disturb the judgment.

Having considered all the questions presented by the defendant in his brief, and having found no exception that would justify us in interfering with the judgment, it follows that the judgment and order should be affirmed. .

Judgment and order affirmed, with costs.

All concur.


text:
    John Church Company, App’lt, v. George H. Clarke, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed May 18, 1894.)

    1. Pleadings—Counterclaim.
    A claim against plaintiff, acquired by the defendant after the action was commenced, is not available as a counterclaim under § 501 of the Code.
    2. Same—General denial—Proof.
    Under a general denial in a reply, the plaintiff is entitled to prove that no such claim, as is set up in the answer as a counterclaim, existed in defendant’s favor when the action was begun.
    Appeal from a judgment entered on a verdict in favor of defendant and from an order denying a motion for a new trial.

      Youmans, Moss & Knipp, for app’lt; Reynolds, Slanchfield <& Collin, for resp't.
   Per Curiam.

On the trial, the plaintiff offered to prove that the defendant was not, at the commencement of the action, the owner of the demand set up in his answer as a counterclaim. This evidence was excluded upon the ground that it was not admissible under the pleadings. The reply consisted of a general denial of the matters set up as a counterclaim. The correctness of the ruling is challenged by the appellant, and presents the only question involved on this appeal. The Code, so far as applicable to the question, provides that, in an action on contract, affy other cause of action on contract existing at the commencement of the action may be set up as a counterclaim against the plaintiff. § 501. Thus the right to set up and prove such a claim depends upon its existence at tlie time the action was commenced. It has been held that an answer setting up a counterclaim which fails to show that it existed at the commencement of the action is demurrable. Moody v. Steele, 11 Civ. Proc. R. 205 ; 3 St. Rep. 269 ; Mayo v. Davidge, 44 Hun, 342 ; 8 St. Rep. 844; Rice v. O'Connor, 10 Abb. Pr. 362 ; Van Valen v. Lapham, 5 Duer, 689 ; Abb. Tr. Brief, p. 400, § 481. Thus it would seem that the defendant must not only prove, but must also allege, that the counterclaim in the hands of the defendant existed in his favor when the action was commenced. Such being the case, it must follow, we think, that the plaintiff under the general denial contained in the reply herein, was entitled to prove that no such claim existed in the defendant’s favor when the suit- was begun. Under a general denial in an action on contract, a party may controvert by evidence anything which the other party is bound to allege and prove in the first instance, to make out his cause of action, and anything he" is permitted to prove for that purpose. Milbank v. Jones, 141 N. Y. 340; 57 St. Rep. 429. These considerations lead to the conclusion that the court erred in excluding the evidence offered by the plaintiff, and that for such error the judgment should be reversed. Judgment and order reversed, -and a new trial granted, with costs to abide the event.


text:
    Christina Kuhn, as Administratrix, etc., App’lt, v. The Delaware, Lackawanna & Western Railroad Company, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed May 18, 1894.)

    1. Master and servant—Safe place.
    A master owes to his servant the duty of furnishing a safe and proper place in which to prosecute his work.
    2. Same—Delegation.
    Such duty cannot be delegated to another servant so as to relieve the master from liability.
    3. Same—Assumption of servant.
    When the master orders a servant to perform his work in a place prepared for him, the latter has the right to assume that the place has been made reasonably safe by the master through other and competent servants!
    Appeal from a judgment dismissing the complaint.

      Charles R. Searle, for app’lt; William Kernan, for resp’t.
   Martin, J.

On the trial of this action the plaintiff was non-suited. The action was to recover damages sustained by the plaintiff by reason of the death of her intestate, which was alleged to have been caused, by the defendant’s negligence. The intestate, at the time of his injury, was at work upon a scaffold which had been erected by the defendant for the purpose of reslating the roof upon its engine house in the city of Utica. The work of reslating was commenced about the 1st of September, 1891. Two of the defendants employees, Cole and Warner, who had had some experience as slaters, were directed to do the work. The defendant’s superintendent of repairs directed the foreman of the defendant’s carpenter shop to construct “some horses that would be sufficient for men to work on and slate the roof,” without giving any directions or information whatever as to the material to be used, the number of men that were to work upon the scaffold, or whether the old slate was to be used. The carpenter had had no experience in making horses or scaffolds for the purpose for which it was to be used. The scaffold, as constructed, was sixteen feet above the ground, about twenty-five feet- in length, and was supported by three horses— one at each end and one at the center. The horses upon which the floor of the scaffold was placed were constructed by taking four hemlock boards one inch in thickness, six inches in width, and sixteen feet in length, and nailing them to a headpiece or ledger, which was about four feet long. Then strips of the same material, four inches in width and one inch in thickness, were used for stays running crosswise inside of the legs, and five-inch boards of the same kind were nailed on laterally, as braces or cleats. There were six rows of cleats on the horses first constructed, and upon the others there were but four. The material of which they were constructed was not tested to ascertain whether it was defective or otherwise. They were set up next to the building, and planks about twelve inches in width placed on top of them, two being placed side by side from the center horse each way to the other. At first, braces ran up from near the front of the horses to the middle of the plank which formed the floor, but the passing of engines required these to be taken off from time to time, and after a few days they were not put on again. One of the horses was broken by an engine before the time of the accident, and the carpenter then erected a staging on one side of a box car to take its place. The plaintiff’s intestate was a common laborer in the emplby of the defendant, doing such work around its shops and elsewhere as he was directed. The defendant’s superintendent of repairs directed the intestate to go to work upon this platform or scaffold, assisting the men who were reslating this roof. On September 15, 1891, which was the day of the accident, the scaffold had been moved, the old slate removed from a portion of the roof, a part of which was left upon the roof, and the remainder placed upon the scaffold. At the time of the accident the decedent was engaged in laying felt on the roof where the slate were to be placed. While thus engaged the scaffold gave away, precipitating the decedent to the ground, where he struck his back on one of the rails in the defendant's road, and received injuries from which he died December 3, 1892. None of the persons engaged in constructing this scaffold had had any experience in building scaffolds of that kind, and none of them had seen scaffolds, for any purpose, of the height of this, built in the manner this was constructed. It was found after the accident that the horses were-badly broken, were tom apart, were in pieces, and the lumber of which they were constructed was" season-cracked, shaky, and cross-grained.

It was proved that hemlock boards were not a proper or substantial material of which to construct the uprights or legs for such horses or scaffold; that hemlock lumber is usually of loose fiber, brittle, and cross-grained; that such boards do not hold nails well; that they split and are weakened by nailing on braces; and that, when hemlock is used as supports for scaffolds, two by fours or three by fours are ordinarily used. The evidence was sufficient to have justified the jury in finding that the scaffold was-used in the manner contemplated when it was constructed; that the use was reasonable, if the scaffold had been properly constructed; and that the defendant’s superintendent knew of the manner in which it was used, and how it was constructed, before he sent the plaintiff’s intestate to work upon it. The evidence also tended to show that the accident was occasioned by the giving away of one or more of the horse's upon which the planks "for the platform were placed, and that after-the accident the condition of 'these horses was such as to indicate quite plainly that such was-the cause of the accident. We think it is quite manifest from the evidence that the jury would have been warranted in finding that the fall of the scaffold, and consequent injury of the plaintiff’s intestate, were due to the structural weakness of the scaffold, which originated from the use of insufficient and improper materials, and from being constructed in an unsubstantial and improper manner. A master owes to his servant the duty of furnishing adequate and suitable topis and implements for his use, a safe and proper place in which to prosecute his work, and, when they are needed-, the employment of skillful and competent workmen to direct his labor, and assist in the performance of his work. No one of these duties can be delegated by the master to a servant, of any grade, so as to exonerate the master from responsibility to another servant who has been injured by its nonperformance. The rule that the servant takes the risk of the service presupposes that the master has performed the duties of caré and vigilance which the law casts upon him. It only excuses where injury results to the servant from a hazard incident to the natu're of the employment, and not from a cause which the exercise of proper care and prudence on the part of the master would have foreseen and guarded against. Pantzar v. Tilly Foster Mining Co., 99 N. Y. 368; Davidson v. Cornell, 132 N. Y. 228, 234; 43 St. Rep. 887. The rule as to the duty of the master is not quite correctly stated in the Pantzar Case, in that the duty to furnish suitable tools, and a safe place in which to work, is not an absolute one, but is satisfied by the exercise of reasonable care and prudence on the part of the master to supply such tools and furnish such place; that is, such care and caution as a prudent man would take for the safety and protection of his own person. Probst v. Delamater, 100 N. Y. 266; Stringham v. Hilton, 111 N. Y.. 188 ; 19 St. Rep. 621. The doctrine of the Panizar Gase was reasserted in Mc Govern v. C. Vt. Railroad Co., 123 N. Y. 280, 288; 83 St. Rep. 416, and the court then added: “When directing the performance of work by the servant in a place which may become dangerous, and such danger may be foreseen and guarded against by the exercise of reasonable care and prudence on the part of the master, it is liis duty to exercise such care and adopt such precautions as will protect the servant from avoidable danger. This is the master’s duty, and however he may choose to exercise it, whether through the supervision of a superintendent, or some lower grade of employment, it still continues his duty; and not until he shows that it has been properly performed can he claim exemption from liability for injuries occasioned by its non-performance. Laning v. N. Y. C. Railroad Co., 49 N. Y. 521, 532 ; Corcoran v. Holbrook, 59 N. Y. 517.”

When the master orders a servant to perform his work in a place prepared for him, the servant has a right to assume that the place has been made reasonably safe by the master through other and competent servants. Kranz v. L. I. Railway Co., 123 N. Y. 1, 4; 33 St. Rep. 46. In Benzing v. Steinway, 101 N. Y. 547, 551, it was said : “It has been repeatedly held that the risks of the service which a servant assumes in entering the employment of a master are those only which occur after the due performance by the employer of those duties which the law enjoins upon him, and that the negligence of the master co-operating with that of a servant in producing injury to a co-servant renders the master liable. Stringham v. Stewart, 100 N. Y. 516, and cases cited, -x- * * The master is chargeable, ordinarily, with knowledge of the means necessary to be employed in performing his work; and, when their procurement and selection is delegated to a servant, he stands in the place of the master, in discharging those duties, and the servant’s neglect in that office is chargeable to the employer, as an omission of duty enjoined upon him. Ellis v. N. Y., L. E. & W. Railroad Co., 95 N. Y. 546; Slater v. Jewett, 85 N. Y. 62.”

The trial court, in effect, held that the question of the contributory negligence of the plaintiff’s intestate was, under the evidence, a question of fact for the jury. In this conclusion we concur. But it held that the evidence was insufficient to justify it in submitting to the jury the .question of the defendant’s negligence. Thus, the question to be determined is whether there was sufficient evidence of the defendant’s negligence to require the court to submit that question to the jury. The question before us being the propriety of a-nonsuit, the plaintiff is entitled to the benefit of all the conclusions that the jury would have been warranted in drawing from the facts and circumstances proved. That the defendant owed the plaintiff’s intestate the duty to exercise reasonable care and prudence to furnish him a safe and proper place in which to prosecute his work, and if it became dangerous, and ¿he danger could be foreseen and guarded against by the exercise of reasonable care, to exercise such care and adopt such precautions as would protect the intestate, is abundantly established by the authorities cited. That this duty could not be delegated by the defendant to any of its servants, so as to exonerate it from responsibility to the plaintiff or her intestate, is equally well settled. Such being the duty of the defendant, a careful examination of the evidence renders it quite obvious that the question whether this duty had been performed, and, if not, whether its omission occasioned the injury to the plaintiff’s intestate which resulted in his death, were questions of law to be determined by the court. We are of the opinion that the evidence was sufficient to require the submission to the jury of the questions of the defendant’s negligence, and whether the injury complained of was occasioned thereby, and that the court erred in holding, asm matter of law, that the evidence was insufficient to justify it in submitting those questions to the jury, and for this error the judgment should be reversed.

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

All concur.


text:
    The People ex rel. Perrin A. Strough, Resp’t, v. The Board of County Canvassers of Jefferson County, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed May 18, 1894.)

      1. Statutes—Local - Repeal.
    Section 16, chap. 179 of 1856, is a local law, and is not impliedly repealed by chap. 555 of 1864.
    3. Same.
    A general act does not repeal a local act by implication unless the two acts are inconsistent.
    8. Same—Revival op statute.
    An act, which amends a former statute “so as to read as follows:’’ is not invalidated by the fact that the amended statute had been repealed by implication, but it is a re enactment of such statute as amended.
    Appeal from ,an order directing that a peremptory writ of mandamus issue.

      Waison M. Rogers and Charles W. Thompson, for app’lt; John bf. Carlisle, James A. Ward, and Levi H. Brown, for resp’t.
   Martin, J.

Prior to 1892 the third commissioners’ district of Jefferson county comprised the towns of Alexandria, Cape Yin-cent, Clayton, Lyme, Orleans, Pamelia, and Theresa. At its annual meeting in 1892 the board of supervisors of that county, in pursuance of the provisions of chapter 414 of the Laws of 1888, divided the county, exclusive of the city of Watertown, into three school commissioners’ districts. By such division the third .district was made to consist of the towns of Brownville, Cape Yin-cent, Clayton, Henderson, Hounsfield, Lyme, and Orleans. The only question involved in this case, as to'the rights of the relator to the office of school commissioner, is whether the board of supervisors had power to make the division of 1892. This question is dependent for its solution upon the validity of the statute of 1883, as it is practically admitted by the respondent that if that statute is valid the order appealed from cannot be upheld.

Chapter 179 of the Laws of 1856, which was an act to provide for a more thorough supervision and inspection of common schools, and, further, to amend the statutes relating to public instruction in this state, by its first two sections, provided that the boards of supervisors of the several counties in the state, composing each one assembly district, the boards of supervisors of each of the counties of Fulton and Hamilton, and the boards of supervisors of the several counties in the state having more than one assembly district, except the counties of Hew York and Kings, should meet on the third day of June, and elect by ballot an officer, to be called “ school commissioner,” for each county where there was but one assembly district, and one for each of the counties of Fulton and Hamilton, and one for each assembly district, where there were more than one in a county; such commissioners to hold their office until the first day of January, 1858. It then provided for the election of a school commissioner in the several assembly districts at the annual election in 1857, and every three years thereafter. It also contained the following section: “Sec. 16. The several cities in this state which under special acts already elect superintendents of common schools, or whose boards of education choose clerks doing the duty of supervision under the direction of the board of education, shall not be included in any commissioner’s district created by this act or authorized to be formed by the boards of supervisors in counties in which such cities are joined to towns in the formation of an assembly district, may divide the county, exclusive of such cities, into school commissioners’ districts as they may deem advisable, but no town shall be divided in forming such districts.”

In 1864 the legislature passed an act entitled “ An act to revise and consolidate the general acts relating to public instruction ” (Laws 1864, c. 555). Title 2 of that act is entitled “Of the School Commissioners, Their Election, Powers and Duties; ” and section two of that title is as follows: “ The districts as organized under existing laws, and as recognized in the election of school commissioners at the annual election in eighteen hundred and sixty-three, shall continue to be held and regarded as the school commissioner districts in this state, except as the same shall be altered or modified by the legislature.”

Section 14 of title 13 of that act provides: “All provisions of law repugnant to or inconsistent with the provisions of this act, are hereby repealed, saving always all rights of action vested under such prior provisions, and proceedings commenced .for the assertion thereof; but nothing herein contained, unless it be so expressed, shall be construed, unless by inevitable implication, to revive any act or portion of any act heretofore repealed; nor to impair or in any manner affect or change any special law touching the schools or school system of any city or incorporated village of the state."

Chapter 414, Laws 1883, which was an act entitled “An act to amend section sixteen of chapter one hundred and seventy-nine of the Laws of Eighteen Hundred and Fifty-Six, entitled ! An act to provide for a more thorough supervision and inspection of common schools, and further to amend the statutes relating to public instruction in the state,’ ” was as follows: “ Section 1., Section sixteen of chapter one hundred and seventy-nine of the Laws of Eighteen Hundred and Fifty-Six is hereby amended so as to read as follows : § 16. The several cities which already or which shall hereafter, under special acts, elect superintendents of common schools, or whose board of education choose clerks doing the duty of supervision under direction of the board of education, shall not be included in any commissioner’s district created by this act or authorized to be formed by the board of supervisórs; and the several boards of supervisors in counties in which such cities are joined to towns in the formation of an assembly district may divide the county, exclusive of such cities, into school commissioner’s districts as they may deem advisable, but no town shall be divided in forming such districts.”

The theory upon which the respondent seeks to uphold the order appealed from is that _§ 16 of the Laws of 1856, providing for the division of counties into school commissioner’s districts by the board of supervisors; where cities therein are joined to towns in the formation of an assembly district, was repealed by chapter 555 of the Laws of 1864, both by implication and by the provisions of § 14 of title 13 of that act, and that, as § 16 was thus repealed, the statute of 1883, which purported to amend that section, was a nullity. Thus, at the outset, we are presented with the question whether § 16 was repealed by implication. Repeals by implication are not favored in the law ; and the inconsistency or repugnancy of two statutes must be such as to be impossible of reconciliation, or the former will not be held to be thus repealed. People v. Smith, 69 N. Y. 175; In re Curser, 89 N. Y. 401; People ex rel. Woods v. Crissey, 91 N. Y. 616; Mark v. State, 97 N. Y. 572. Yet, when such repugnancy exists, or the latter statute, not purporting to amend a former one upon the same subject, covers the whole subject, and was plainly intended to furnish the whole law thereon, the former statute will be held to be repealed by necessary implication. People v. Gold & Stock Tel. Co., 98 N. Y. 67 ; Heckman v. Pinkney, 81 N. Y. 211. There is another rule, however, that modifies this, which is that a general statute does not repeal a former one upon the same subject, which is limited in its application to particular localities, unless the two statutes are so inconsistent that they cannot both stand, or unless the intent to repeal is clearly manifested in the general act. In re Commissioners of Central Park, 50 N. Y. 493 ; McKenna v. Edmundstone, 91 N. Y. 231; People v. Quigg, 59 N. Y. 83, 88. By reference to the statute of 1856, it is seen that there were in that act two distinct and separate provisions in relation to school commissioners’ districts, —one general, applying to all the state, except the counties of New York and Kings, making each assembly district a school commissioners’ district; the other special, and applicable only to such assembly districts as included a city which had a superintendent of common schools, or chose a clerk doing the duty of supervision under the direction of its board of education, which was joined to other towns. While the language of the statute of 1864 was perhaps sufficiently broad to include both, still we are inclined to think that, under the rule applicable to a general statute where there is another upon the same subject which is limited in its application to particular localities, it did not affect a repeal by implication ol § 16 of the, Laws of 1856. If that section was not repealed by implication, it is quite manifest, we think, that it was not repealed by § 14 of title 13, Laws 1864, as it was only such provisions of law as were repugnant tó or inconsistent with the provisions of that act that were repealed; and, besides, that section expressly provided that nothing in that act contained should be construed to impair or change any special law touching the schools or school system of any city or incorporated village0of the state. Moreover, we think the fact that the legislature, in 1883, amended § 16 of the'Laws of 1856, was a clear indication that it regarded that section as still in force, applicable to the special cases mentioned therein. People v. Morrison, 78 N. Y. 84, 89 ; Smith v. People, 47 N. Y. 330, 339 ; Whipple v. Christian, 80 N. Y. 523, 526; Van Vranken v. City of Schenectady, 31 Hun, 516, 518. We are inclined to the opinion that § 16 was not repealed by the act of 1864.

If, however, this conclusion is incorrect, it does not follow that the statute of 1883 was invalid. It is claimed by .the respondent, and the court at special term held, that as the statute of 1883 purported to amend § 16 of the act of 1856, which was repealed by implication, the act of 1883 was invalid; and the case of People v. Wilmerding, 136 N. Y. 863; 49 St. Rep. 651, was cited as sustaining that doctrine. We have carefully examined the Wilmerding Case, but are unable to find anything in it which sustain that claim. We think that case is clearly distinguishable from the one before us, and that, instead of being an authority to sustain the respondent’s, contention, it is, to some extent, an authority against it. That case merely decided what had been previously held (People ex rel. Canaj. Nat. Bank v. Supervisors, 67 N. Y. 109),—that, where a statute was amended so as to read as prescribed in the■ amendatory act, it did not repeal the original statute, but that, from the time of the passage of the amendatory act, it was the only enactment on the subject as to future transactions ; that, as to them, the former statute was wholly annuled, and lost all separate existence; and that a repeal of the amendatory act •did not revive the original one. It was also held in that case that a legislative act upon a separate subject, based upon an assumed existence of an original act, would not revive it, in the absence of language equivalent to a re-enactment. In other words, it was held that mere legislative intent would not revive an act, without something in the nature of an enactment to that effect; that intent, without action, was sufficient. In White v. Inebriates' Home, 141 N. Y. 123, 127; 56 St. Rep. 665, the Wilmerding Case was considered; mid was there said that all that was held in th eWilmerding Case was that the repeal of a statute which had incorporated by amendment an earlier enactment did not operate to revive the earlier or original act, and the court adds: “ There is good reason for holding; as we did in the Wilmerding Case, against an indirect revival of a statute once repealed, by a repeal of the repealing act, and however incorporated in the amendments, may not be further amended by reference to the statute in which it originally appeared.” " -

And in that case, where a statute that was passed in 1872 was amended and re-enacted in 1875 so as to read as prescribed in the latter statute, and the legislature in 1877 amended the statute of 1872 without any reference whatever to the act of 1875, it was held that the statute of 1877 was valid, and an amendment of the statute of 1872. In Re Rochester Water Com’rs, 66 N. Y. 418, 421, it is said: “ Ordinarily, and in the absence of any evidence of a legislative intent to the contrary, a substitution of one section for another, by an amendment in the form in which this amendment was accomplished, would work a repeal of the original section from the time of the amendment, and as affecting all cases thereafter arising. But when, from the language of the statute and of the amendment, a different intent is apparent, such effect .will not be given to it; and where other acts of the legislature, passed at or about the same time, corroborate the evidence of intent, as gathered from the statutes under review, the duty of the courts is to give effect to the intent, rather than to the literal terms, of the act. The intent must not be conjectured, but must be apparent from all the statutes taken together, and consistent with the whole purpose and object as well of the original statute as of the amendment. This rule of interpretation is of frequent application, and is one of the most important and familiar canons of construction. It is not unfrequently necessary to resort to this rule of interpretation to prevent a miscarriage of the legislative intent, and detriment to public interest. People ex rel. Furman v. Clute, 50 N. Y. 451; Smith v. People, 47 id. 330, and the authorities cited.”

See, also, In re Kavanagh’s Will, 125 N. Y. 418; 35 St. Rep. 406.

While, perhaps, there may be some difference between a statute which has been expressly repealed and one that has been so amended as to read as prescribed in the amendatory act, yet we are unaware of any principle of law which would prevent the legislature from amending by positive enactment a statute repealed by implication-, and still permit it to amend one that was annulled, and had lost all separate existence, by previous amendment. We are of the opinion that where, as in this case, there is a positive re-enactment of a former statute, with such changes as the legislature sees fit to make, and it is manifest from the act itself that it was the intent of the legislature that the act, as thus passed, should become the law of the state, such an act would be valid, although the act which it purported to amend might otherwise have been .regarded as repealed by implication. It seems to us quite clear that the intent of the legislature to amend, and re-enact as amended, section 16, Laws 1856, is so apparent from the statute itself that the act of 1883 must be regarded as an enactment or re-enactment of a law containing the provisions included therein, and that, even if the statute which it purported to amend would otherwise be regarded as repealed by implication, yet the intent to re-enact such a law was manifest, and should be given effect. The statute of 1883, as it now stands, contains every provision which the legislature sought to establish, and the only claimed defect is that it referred to a statute that may have been repealed by implication. Whether such statute was thus repealed, or whether it was not, in no way affects or changes the clear intent of the legislature, as manifested by the act itself. In Van Clief v. Van Vechlen, 55 Hun, 467; 29 St. Rep. 378, it was held that the legislature, by amendment, might revive a repealed statute. The case was subsequently taken to the court of appeals, hut the question whether an act which purported to amend an act that had already been repealed has the effect of an original enactment was not decided. 130 N. Y. 371; 42 St. Rep. 736.

These considerations have led ns to the conclusion that the statute of 1883 was valid, and that, as the city of Watertown, whose board of education chooses clerks to perform the duty of supervision of the common schools of the city under the direction of its board of education, was joined with other towns of the county in the assembly district which is composed of the county of Jefferson, the board of supervisors of that county had power, by virtue of that statute, to divide the county, exclusive of the city of Watertown, into such school commissioners’ districts as they deemed advisable, so long as they divided no town in forming such districts, and hence that the board of canvassers of the county was justified in canvassing the votes of the third school commissioners’ district, as it was established by the action of the board of supervisors in 1892, and the special term erred in granting the order appealed from. This conclusion renders it unnecessary to examine the other questions presented by the appellant on the argument, as the order must be reversed on the ground already stated.

Order reversed, with costs, and motion for peremptory writ of mandamus denied, without costs.

All concur.


text:
    William H. Thomas, Resp’t, v. DeForest Snyder, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed May 18, 1894.)

    1. Pleadings—Complaint—Fraud.
    A complaint in an action for deceit, which fails to allege that the defendant knew that the representations made by him. were false, is insufficient.

      2. Same.
    Where it alleges that the defendant, by deceit, induced the plaintiff to sell the goods, that he was insolvent at the time, and did not intend to pay for the goods, it states an action for fraud.
    Appeal from a judgment in favor of plaintiff.

      Charles A. Fuller, for app’lt; Eugene E. Sheldon, for resp’t.
   Martin, J.

This action was upon a judgment in an action brought in this court by the plaintiff against the defendant, and entered in Herkimer county, February 21, 1876, for $245.55 damages and costs. The complaint herein alleged the recovery of such, judgment, and set out the pleadings and judgment in the former action. It was then alleged that the action was tried at a circuit held in Herkimer county by a jury which rendered a verdict “for damages sustained by the plaintiff by reason of the fraud and deceit of the defendant, alleged in the complaint, in the sum of one hundred sixty-one dollars and sixty-two cents.” It was also alleged that judgment was entered upon such verdict for the amount named; that no part thereof had been paid ; that it had not been in any manner discharged, but was a valid and subsisting judgment against the defendant. The defendant alleged in his answer that there was no order of arrest served or granted in the former action; then set up a discharge in bankruptcy, and alleged that the cause of action upon which the former action was brought was upon a contract for the purchase of goods, and that there was no fraud in the transaction on the part of the defendant, nor on the part of any one to his knowledge; that the judgment and cause of action upon which it was founded were provable against the bankrupt’s estate, and barred and discharged by such discharge in bankruptcy; and that he had never done any act to restore the same to a valid indebtedness. The defendant also set up the statute of limitations, and demanded judgment that the complaint be dismissed.

The question involved on this appeal is whether the judgment upon which this action was based was discharged by the defendant’s discharge in bankruptcy. It seems to be admitted that it was so discharged, unless the debt was one which fell within the provisions of § 5117, Rev. St. U. S., which provides: “No debt created by the fraud * * * of the bankrupt * * * shall be discharged by proceedings in bankruptcy.” The plaintiff contends that the action was for fraud, and hence within the provisions of § 5117; while the defendant claims that the action was upon contract, and not within its provisions. The plaintiff insists that the fact that his judgment was for the fraud of the defendant in creating the debt for which it was rendered is conclusively established by the pleadings in this action, and that the j udgment roll in the former action also establishes that fact. The first proposition is based upon the allegation in the plaintiff’s complaint that the former judgment was entered upon a verdict “ for damages sustained by plaintiff by reeson of the fraud and deceit of defendant alleged in the complaint,” which it is claimed is not denied by the defendant’s answer, and hence must be regarded as admitted. We find in the defendant’s answer no denial of this allegation. It does, however, contain an allegation “ that the cause of action sued on in 1875 was a contract for the purchase of goods, and there was no fraud in the transaction on the part of this defendant.” Thus, at the outset, we are presented with the questions: First, whether the allegation of the complaint in this action, if admitted, was sufficient to justify the court in rendering the judgment appealed from; and, second, if sufficient, did the answer so far controvert that allegation as not to require it to be taken as true ?

As to the first question, it will be seen by an examination of the complaint herein that the allegation was not an absolute one that the verdict upon which the judgment was entered was for damages sustained by reason of the fraud- and deceit of the ■defendant, but it was qualified and limited to the fraud and deceit alleged in the complaint in the first action. So that, if no fraud or deceit was alleged in that complaint, then" there is no allegation of fraud or deceit in the complaint in this action; and hence, if it were conceded that this allegation was not controverted by the answer, it would not operate as an admission by the defendant that the former judgment was based upon fraud, unless such in fact was the gravamen of that action, and it becomes unnecessary to determine whether this allegation of the complaint was controverted by ^be defendant’s answer. As the character of that action is to be determined by the complaint therein, especially as there was no other proof on the subject, Welsh v. Darragh, 52 N. Y., 590; Untermyer v. Beinhauer, 105 N. Y., 521, 524; 8 St. Rep. 1; Cassidy v. McFarland, 139 N. Y., 201, 205 ; 54 St. Rep. 605, the real question is whether that complaint was upon contract or whether it was for fraud. It was alleged therein that on May 17, 1872, the defendants were copartners; that the}r, with intent to defraud the-plaintiff, and deprive him of his property, falsely represented that they were in need of a quantity of tallow for immediate use in their soap factory, and requested the plaintiff to send a quantity, arid promised to pay therefor 8f cents per pound on delivery; that, in pursuance of such request, the plaintiff sent 1,483 pounds of tallow; that the defendants were insolvent, and fraudulently concealed their insolvency from the plaintiff, had about ceased manufacturing soap, did not require such tallow in their business, and falsely made such statement to induce the plaintiff to think they were in good circumstances, solvent, and carrying on a good business; that the defendants deceived the plaiptiff, and did not intend to pay for said tallow when •they ordered it; that they converted it to their owti use, and sold it as soon as they acquired possession thereof ; that they concealed the sale from the plaintiff, to deprive him' of his property; that the plaintiff believed the defendants’ representation that they needed the tallow for immediate use and would not have otherwise sold the defendants such property, or intrusted them with "the possession of it; that the plaintiff believed the defendants’ representation that they were carrying on their business, and continuing the manufacture of soap, and would not have sold it to them, or intrusted them with the possession of it, if he had not been deceived by such false representation; that the tallow was of the value of $129.77 ; that the defendants have not paid for it, or any part thereof; that the plaintiff, by reason of such' fraud, deceit, and conversion, has suffered damage to the amount of $129.77, with interest from May 17, 1872, and demanded judgment for that amount, besides costs. The only false representation alleged to have been made by the defendants was that they were in need of a quantity of tallow for immediate use in their soap factory. The plaintiff then alleged that the defendants did not require such tallow in their business ; that he was deceived by such representation, and delivered the property relying thereon. These allegations were not, we think, sufficient to constitute a cause of action for fraud, based upon the ground of such representation. It will be observed that, while the plaintiff has alleged that the defendants represented that they were in need of a quantity of tallow for immediate use in their soap factory, and that they did not require it for that purpose, there is nothing whatever in the complaint to show that the defendants, at thetime they made such representation, either knew or believed it to be false. Notwithstanding all that appears in the complaint, the defendants may have supposed, and in good faith believed, that they needed such tallow for immediate use, and may have intended at that time to use it in their soap factory. If such was the case, then clearly the defendants were not liable for., fraud in making the representation alleged. The rule applicable to this class of cases is clearly and distinctly stated by Andrews, J., in Brackett v. Griswold, 112 N. Y. 454, 467; 21 St. Rep. 791, where he says: “There is no doubt or question as to w.hat elements are requisite to sustain an action for false pretenses. The essential constituents of such an action have been understood from the time such actions were first maintained. They were tersely'stated by Church, Ch. J., in Arthur v. Griswold, 55 N. Y. 400, viz.: ‘ Representation, falsity, scienter, deception, and injury.’ There must have been a false representation, known to be such, made by the defendant, calculated and intended to influence the plaintiff, and which came to his knowledge, and in reliance upon which he', in good faith, parted with property, or incurred the obligation which occasioned the injury of which hq complains. All these circumstances must be found to exist, and the absence of any one of them is fatal to a recovery.”

See, also, Coffin v. Hollister, 124 N. Y. 644; 36 St. Rep. 271.

We think in this case there was an absence of scienter, and that the complaint failed to state a cause of action for fraud in making such representation.

The only remaining theory upon which it can be claimed that, a cause of action for fraud was alleged in the complaint in the first action is that it set up a cause of action for,purchasing property with a fraudulent intent not to pay for the same. In addition to the allegations as to the representation made by the defendants, and its falsity, it was alleged “ that deféndants deceived plaintiff, and did not intend to pay for said tallow when they ordered the-same;” that when the property was purchased the defendants were insolvent, and fraudulently concealed their insolvency from the plaintiff; and that they subsequently sold the tallow, and concealed such sale from the plaintiff, to deprive him of his property. If a purchaser who is insolvent, concealingi his insolvency from the vendor, obtains goods from him without intending to pay for them, it is a fraud upon the vendor, and the property in the goods will not be changed. Durell v. Haley, 1 Paige, 492 ; Cary v. Hotailing, 1 Hill, 311; Ash v. Putnam, Id. 302; Devoe v. Brandt, 53 N. Y. 462; Wright v. Brown. 67 N. Y. 1; Morris v. Talcott, 96 N. Y. 107. In Hotchkins v. Third National Bank, 127 N. Y. 329; 38 St. Rep. 754, it was held that if a puchaser, who was insolvent, conceals that fact from, the vendor for the purpose of defrauding him, and thus obtains goods on credit without intending to pay for them, the title of the property is not changed, and it may be reclaimed by the vendor. While the question whether the former action was for a debt created by the fraud of the defendant may not, perhaps, be wholly free from doubt, still, we are of the opinion that such was the nature of the action, that the debt for which such judgment was rendered was not discharged by the defendant’s proceedings in bankruptcy, and that the judgment upon which this action was brought was not discharged thereby. In re Patterson, 2 Ben. 155, Fed. Cas. No. 10,817.

The appellant claims that the judgment roll in the first action shows that no witnesses were sworn upon the trial, and that the court ordered judgment upon the admission of indebtedness contained in the defendants’ answrer. This claim is not sustained by the facts before us. The judgment roll does not show that no witnesses were sworn and examined. It contains nothing to show whether they were or were not. The only pretense for this claim rests in the fact that the clerk's minutes, as printed in the appeal book, do not contain the names of witnesses sworn upon the trial. This falls far short of showing that no witnesses were sworn, especially when we consider the fact that the names of the jurors before whom the action was tried were also omitted. Section 264 of the Code of Procedure made it the duty of the clerk to enter in his minutes the names of the jurors as well as witnesses, and the fact that both were omitted renders the omission of the names of the witnesses slight, if any, evidence that no witnesses were called and testified to the facts necessary to uphold the plaintiff’s judgment This was certainly insufficient to overcome the presumption that a court of superior jurisdiction has acted in accordance with the forms of law and rules of practice governing it, and not until every prerequisite prescribed by law had been complied with, unless the contrary appears on the face of the record. Aldridge v. Walker, 73 Hun, 281; 57 St. Rep. 273, and cases cited in opinion. These considerations lead to an affirmance of the judgment Judgment affirmed, with costs. All concur..