text:
    William E. Pratt, as Receiver, etc., App’lt, v. Charles H. Baker et al., Resp’ts.

      (Supreme Court, General Term, Fourth Department,

      Filed July 5, 1895.)

    Appeal — Rbtubx—Amendment.
    The supreme court, at special term, has no power, pending an appeal to the general term, to direct an amendment of the return of the justice of the peace on which the appeal was heard in the county court.
    Appeal from an order, requiring the plaintiff, pending an appeal from the county court, to correct the justice’s return.

      M. E. Miller, for app’lt; W. S. MacGregor, for resp’ts.
   Martin, J.

— This action was originally commenced in a justice’s court. In that court the plaintiff had judgment. From that judgment the defendants appealed to the Onondaga county-court, where the judgment of the justice was reversed. The plaintiff then appealed from the judgment of the county court reversing the judgment of the justice to the general term of the supreme court. After such appeal, and while it was pending in the general term of the supreme court, the defendants obtained from one of the justices of the supreme court an order to show cause at a special term of that court why the return of the justice of the peace made to the county court, and the printed papers on appeal, should not be corrected and amended so as to include the defendants’ Exhibits 1, 2, 3, and 4, which were received and read in evidence before the justice on the'original trial of the case. On the return of this order to show cause, the special term of the supreme ■court made an order ordering and requiring the appellant to correct the printed papers on appeal bv annexing thereto printed copies of such exhibits, and to serve copies of such amended and Corrected printed papers on appeal, upon the respondents’ attorney within thirty days after the service of a copy of the order. From the order thus granted the plaintiff appealed The propriety and validity of that order is the question presented upon this appeal.

It is manifest from the papers before us that the justice’s return to the county court did not contain the exhibits or copies of the exhibits referred to, and that the printed papers served by the appellant contained a correct transcript of the justice’s return. The first, and we think the only, question that need be considered upon this appeal is whether the special term was authorized to grant the order appealed from. It will be observed that the appeal was from a judgment of the county court, and not from a judgment of the supreme court. Under these circumstances, can it be held that the special term of the supreme court possessed authority or had jurisdiction to make an order requiring an amendment of a return of a justice of the peace to the county court, or to amend the record of the county court upon which the appeal was heard, or to add to the record other papers not contained in it? We think not. “ Where the defect is in the trial court record, or where the rulings of that court have not been duly entered, the application to correct or amend the record must be made to that court. An application made elsewhere will be fruitless. Appellate tribunals have jurisdiction to review a ruling sustaining or denying an application to amend or correct the record remaining in the inferior court, but the jurisdiction is appellate, and cannot be made original save by a statute enacted under constitutional authority. As the jurisdiction is appellate, it must be invoked in accordance with the rules of procedure, and hence the foundation must be laid in the trial court. There the original proceedings must be taken, and, if a review is sought, the record must be made up, and exceptions so entered and preserved that the questions shall be open to investigation, and require judgment. The appellate tribunal proceeds upon a transcript of the proceedings of the court of original jurisdiction, and not upon original pleadings, papers, rulings, or entries.” Elliott, App. Proc. § 206. It is obvious, we think, that -the special term of the supreme court had no jurisdiction to make the order appealed from. The application should have been to the,court whose record was sought to be reviewed. Such has been the uniform practice; and, where the record has been defective, the appellate court has stayed the argument of the appeal until the party should apply to the court below to have it corrected. Livingston v. Miller, 7 How. Prac. 219 ; Witbeck v. Waine, 8 id. 433. In Kenyon v. Railroad Co., 76 N. Y. 607, it was held that the court of appeals had no power to amend a record of the supreme court, but that any amendment sought must be obtained from the latter. The court below has power to correct any mistake in the record, and to make it conform to the facts. Baker v. Insurance Co., 63 N. Y. 630; Peterson v. Swan, 119 id. 662; 30 St. Rep. 208.

Order reversed, with $10 costs and disbursements. All concur.


source: Caselaw Access Project

author: Pratt, J.

license: Public Domain

text:
    Henry A. Powell, as Assignee, etc., Resp’t, v. John P. Schenck, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed June 14, 1895.)

    Bill of particulars — When not ordered.
    Where, in an action upon several promissory notes, the answer alleges that they were given to accommodate the payee, who was at the time selling goods to the maker, that the balance of the indebtedness was to be adjusted by an accounting and that the maker had paid more than the amount of goods delivered, it was held that the plaintiff did not require a bill of particulars and that one would not be ordered.
    Appeal from an order directing defendant to furnish a bill of particulars.
   Pratt, J.

— The complaint is on six promissory notes. The answer is that the notes were given to accommodate the payee, who was at the time selling goods to the maker; that the balance of indebtedness was to be adjusted by an accounting; and that the maker had paid more than the amount of goods delivered. Thereupon the plaintiff moves that defendant serve a bill of particulars of the goods delivered, etc. We are not able to see that the plaintiff requires any bill of particulars. If defendant is not able to prove the notes to be accommodation, the plaintiff will get judgment for their face. If defendant proves them to be accommodation, the plaintiff will reply by showing the amount of goods delivered. In that case a bill of items from plaintiff might be convenient, but that is not asked. Moreover,'it is shown that plaintiff has full books of account, and that defendant did not keep accounts of the transactions, but relied upon those of the other party.

Order appealed from reversed, and motion for bill of particulars denied, with $10 costs and disbursements of appeal.

Dykman, J., concurs. Brown, P. J., dissents.


author: Merwin, J.

text:
    Lydia Pritchard, Individually and as Executrix, etc., Resp’t, v. George S. Palmer et al., App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed July 5, 1895.)

    1. Fraud — Proof .
    In an action to set aside a deed as fraudulent, the fact that, at the time of the transaction, nothing was said or done about any acknowledgment of the execution of the deed, is quite significant in favor of the theory that the execution was procured by fraud.
    3. Deed — Subscribing witness.
    A person, unless requested by the grantor, cannot become a subscribing witness to a deed.
    3. Parties — Fraud.
    A person, who took part in a fraudulent transaction whereby the plaintiff was induced to convey property, is a proper party to an action to set aside the conveyance, though he derived no benefit therefrom.
    Appeal from a judgment entered in favor of plaintiff.

      Evans & Kneeland, for app’lts; Sayles, Searle & Sayles, for resp’t.
   Merwin, J.

This action was brought in February, 1893, to set aside a deed dated March 1, 1892, from the plaintiff, then Lydia Dickerson, to the defendant George S. Palmer, and a contract or lease of same date from plaintiff to defendaht George S. Palmer and Nettie Palmer, his wife. Another action was brought at the same time by the plaintiff against the same defendants and others, the heirs of Nettie Palmer, deceased, to set aside a deed dated. March 1, 1892, from the plaintiff to Nettie Palmer, and also the same contract or lease. These actions were tried together, and in each case it was decided and adjudged that the deed and contract described in the complaint were fraudulent and void, and that the same should be delivered up to the plaintiff, and canceled of record; that the defendants never obtained any rights by or under the deed or contract, and that the plaintiff is entitled to the possession of the real estate described in the deed and contract, and the avails and proceeds from March 1, 1893. Both judgments are appealed from, and the appeals are argued on the same papers, the same questions being in substance involved in each case.

William Dickerson, of Rome, N. Y., died on May 2, 1891, then being the owner of a farm of 250 acres and upward in the town of Ava. He left a will, afterwards duly proved, by which his widow, now the plaintiff, either became the owner of the farm, or had the right, individually or as executrix, to convey the same. The farm was then occupied by a tenant by the name of Castle, under a written lease with William Dickerson, commencing March 1,1891, .for the term of one year, with the privilege of five years if both parties agree. The plaintiff, just prior to March 1,1892, had made an arrangement with Castle to leave at the end of the year. The three instruments in controversy were drawn by the defendant Selden Palmer, the father of George, and were signed by the plaintiff, then Lydia Dickerson, at a house near the farm. By the terms of the contract, the party of the first part, Mrs. Dickerson, agreed to give, to George Palmer and wife warranty deeds of that portion of the farm north of a certain road, included in lots Nos. 3 and 4, and to lease the remainder of the farm during her natural life, or exceeding twelve years, at the annual rent of $300 a year; she reserving the right to go and live with the parties of the second part upon the farm whenever she chose, by paying a reasonable compensation for her board. The deeds were absolute conveyances with warranty, and each covered about one hundred acres, of the value of about $2,500. None of the instruments were read over at the time. The deeds were not acknowledged, and nothing was said about it at the time, nor did any one then sign as an attesting witness. All the papers were taken away by the defendants, or one of them. The defendant Selden Palmer, after his return to Rome, and on the 3d March, signed them as a subscribing witness; and he, on the 7th May, 1892, as a subscribing witness, acknowledged the deeds, and they were recorded on May 9, 1892. Previous to this, and on the 14th or 15th of March, as the defendant Selden Palmer testifies, the plaintiff refused to acknowledge them. Nettie Palmer died .on March 27,1892. The ■defendant George has been in possession since March 1st, and he has paid one year’s rent. The plaintiff was then nearly seventy-eight years old.

It is found by the special term that the plaintiff, at the time she signed these papers, did not know their contents, and that neither of them was read or described to her; that the deeds and contract were executed and came to defendant without any consideration ; that the defendant Seldén Palmer was then, and for a long time prior thereto had been, the agent and confidential adviser of the plaintiff, and the execution of the papers was procured by him and the defendant George, without knowledge on the part of plaintiff as to their contents or purport; that, by the acts and conversation of the defendants, the plai.ntiff was led to believe and did believe, when she .executed the instruments, that she was only executing a lease such as had been entered into between her former husband and Castle, and did not intend to execute, and did not know that she was executing, papers of the character of those in controversy, but relied solely on thedefendant Selden Palmer to properly transact the business of making a lease of the farm similar to the Castle lease ; that the defendant Selden Palmer was never requested to witness the papers or sign as a subscribing witness, and his signing as such was without plaintiff’s knowledge or consent, and he had no right or authority to acknowledge as subscribing witness ; that the defendants were guilty of fraud, misrepresentation, and deceit in procuring from the plaintiff the deeds and contract. The appellants claim that these findings of fact are not in their main features sustained by the evidence; that the deeds were executed in pursuance of a promise made in 1885, in consideration of the marriage of the said George and Nettie; and that the plaintiff knew of the character of the papers, and intentionally executed them. The existence of a promise in 1885 is based on a letter claimed to have been then written by William Dickerson, or by his authority, to the defendant George. The .court, however, declined to find that any such letter was written, and there is evidence which tends to support that conclusion. Besides, there is evidence tending to show that, if there was any promise or agreement of that character, it was afterwards abandoned. The trial court, in effect, found that, prior to the execution of the papers in controversy, there was no obligation or duty on the plaintiff that furnished any valuable consideration. This conclusion is fully justifieql by the evidence. ■

Assuming, then, as I .think we must, that there was here, if these deeds are good, an absolute gift to George Palmer and liis wife of property to the value of $5,000, the question arises whether plaintiff intended to make it, or, in other words, whether she understood the character of the papers she signed. The trial court, after seeing all the parties, and hearing them testify, has found that she did not. The fact that at the time of the transaction nothing was said or done about any acknowledgment of the execution of the deeds is quite significant in favor of plaintiff’s theory. No satisfactory explanation is furnished by the defendants of the entire silence on the subject. The fact that one of the defendants afterwards, without the request or .knowledge of plaintiff, signed as witness, and as such, after plaintiff refused to acknowledge, proceeded to acknowledge and have the deeds recorded, does not help the defendant’s situation. He bad no right to make himself a subscribing witness. Hollenbach v. Fleming, 6 Hill, 303 ; Henry v. Bishop, 2 Wend. 575.

Concededly, the papers were not read over at the time, but the defendants claim that they were previously read to the plaintiff. Whether they were so read that the plaintiff understood their character was a question of fact for the trial court to determine; and in view of the surrounding circumstances, and such light as might be furnished by the situation and appearance of witnesses, we are not prepared to say that the conclusion of the trial judge is against the weight of the evidence. We are of the opinion that the findings of fact by the trial court should nqt be disturbed.

It is claimed by the defendant Selden Palmer that he was not a. proper party, and that, as to him, the complaint should have been dismissed. He was an actor in the transaction, and in similar cases it had been held that a person in his situation was a proper party, and chargeable with the costs. Brady v. McCosker, 1 N. Y. 214; Huggins v. King, 3 Barb. 619; Hammond v. Machine Co., 20 id., 378, 384; Story, Eq. Pl. § 232.

Our attention is called to a number of rulings on evidence. These we have examined, but we find no sufficient ground for reversal. It follows- that the j udgment should be affirmed.

All concur.

Judgment affirmed, with costs.


author: Martin, J.

text:
    Julia L. Meagley, as Executrix, etc., Resp’t, v. Joel S. Hoyt, as Surviving Partner, etc., App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed July 5, 1895.)

    1. Sale — Warranty.
    Upon an executory sale of goods by sample, with warranty that the goods shall correspond with the sample, the purchaser is not precluded from claiming and recovering damages for a breach of warranty, though he has accepted the goods after an opportunity for inspection.
    2. Same — Offer to repurchase.
    His right to sue for breach of warranty is not lost by refusing the vendor’s offer to take the goods back at the price paid.
    3. Same — Adulteration—Proof.
    The evidence was held sufficient to enable the jury to find that a portion of the goods was adulterated, and to estimate the amount of adulteration in the entire quantity.
    Appeal from a judgment, entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on a case and exceptions.
    The action was for a breach of warranty on the sale of a large quantity of tallow to the plaintiff’s testator by the firm of Joel S. Hoyt & Go., of which the defendant is the survivor. The defendant’s firm were manufacturers of tallow. The contract was made by correspondence between the parties. The questions whether there was an express warranty of the tallow sold, if so, whether there was a breach of such warranty, and the amount of damages ■sustained by the plaintiff, were submitted to the jury, which found for the plaintiff. The verdict was $172.21, after deducting the defendant’s counterclaim of $404.18. Thus, the amount of damages awarded to the plaintiff $576.39, including the interest upon the balance after deducting the amount due the defendant.

      Homer Weston, for app’lt; Clark & Brown, for resp’t.
   Martin, J.

— A careful examination of the evidence in this case, -and of the opinions by this court and the court of appeals upon a former appeal, renders it manifest, we think, that the judgment Should be affirmed, unless there was a failure to prove a breach of the defendant’s contract of warranty, or to establish damages to the amount recovered by the plaintiff. We are of the opinion that, as to the eighty-five barrels of tallow for which the plaintiff was permitted to recover damages, there was sufficient proof of a breach of the defendant’s warranty and of the plaintiff’s damages to uphold the judgment. Two barrels of this tallow were melted, and found to contain about thirty per cent, of marble dust. The plaintiff’s evidence was to the effect that her testator had eighty-three barrels of this tallow on hand March 16, 1884; that every barrel of it that was used after that time was examined; and it was found that in all of them, after taking the skimmings off the top, which looked all right, and getting into the barrels, there was grit, and, after going into the barrels, white specks could be seen, and grit could be felt between the fingers. The evidence was also to the effect that, on the bottom of all the kettles in which this tallow was melted, there was a sediment similar to that found after melting the two barrels ; that sixteen or eighteen barrels of this sediment, weighing about 500 pounds to the barrel, were taken out of two of the kettles; and that there was some in the tank below which opened into the drain. It was also proved that the defendant had marble dust, like that found in the tallow melted, in the factory where this tallow was manufactured, and no use for it was shown unless for adulteration.

On the former trial the court charged that the jury was authorized upon the evidence to find that all the tallow sold to the plaintiff’s testator by the defendant except the first five barrels was adulterated, and to award damages therefor. This the court of appeals held was error; and in discussing that question, Rug-er. C. J., said:

“So far as the 122 barrels which had been used before adulteration was discovered are concerned, there was no evidence whatever that they were adulterated; but, on the contrary, there was affirmative evidence that a large proportion thereof was fr^e from the admixture of any foreign substance. With reference to the balance of the tallow, there was no positive evidence th^t, any of it was adulterated, except about three barrels.”

On the last trial the court held that as to the 122 barrels the plaintiff could not recover, but as to the eighty-five barrels the court submitted to the jury the question whether it was adulterated, the extent of such adulteration, and the amount of damages sustained by the plaintiff. If it were admitted that there was no direct and positive proof that all of these eighty-five barrels of tallow were adulterated, still, we think, the case was properly submitted to the jury, as there were circumstances shown which rendered it at least quite probable that they were adultered, and that the plaintiff sustained damages thereby to the amount for which the jury rendered a verdict. This conclusion is not, we think, in conflict with the decision of the court of appeals. It was not held by that court that the evidence was insufficient as to this portion of the tallow, the only statement in regard, to it being that there was no positive evidence that any of it was adulterated except about three barrels. It would seem that, if it was then contained in the appeal'book, the learned judge who wrote the opinion must have overlooked the evidence of the plaintiff’s witnesses to the effect that every barrel of this tallow used was examined, and this foreign substance found, which could be seen and felt after getting through the skimming upon the top. As the evidence now stands, we are of the opinion that it was sufficient to justify the submission to the jury of the questions submitted, and to uphold the verdict.

Wo further consideration of the questions in this case seems necessary, as they are fully discussed in the opinion of Pabkeb, J., delivered at special term, in which we concur.

Judgment and order affirmed, with costs.

All concur.

The opinion of Mr. Justice Pabkeb on denying the motion for a new trial is as follows :

The action is for a breach of warranty in the sale of the large quantity of tallow. The defendant earnestly contends, that there was no warranty that survived the acceptance and use of the tallow by plaintiff, and urged a nonsuit upon that ground. The court denied the motion, and left that question to the jury. Exception was also taken to such ruling on the ground that it was a question of law for the court. When this case was in the court of appeals no opinion was expressed upon this question. The only point decided there was that there was no evidence to show that any of the tallow was adulterated other than the eighty-five barrels on March 12th, and that it was error to include any of the other barrels in estimating plaintiff’s loss That decision was followed upon the last trial, and none but the eighty-five barrels were considered. The existence of a warranty, and the plaintiff’s right to recover for its breach without having offered to return the property, was recognized and sustained by the general term in 12 St. Eep. 857. The decision upon that question has never been reversed, and is still controlling upon this case. Moreover, I am entirely satisfied that the contract between the parties was a sale of goods, with a warranty that they should correspond to a sample furnished. The first five barrels were sold as a “sample” of defendant’s tallow, and it seems very plain to me that both parties understood that all tallow subsequently ordered and delivered should correspond to such sample. The letters and plaintiff’s evidence clearly indicate that. In this view of the case, the refusal to nonsuit was- no error; and, even if the question was one for the court alone, its submission to the jury was harmless. In Zabriskie v. Central Vt. Railroad Co., 131 N. Y. 72; 42 St. Rep. 629, it is said': “The principle is well settled that upon an executory sale

of goods by sample, with warranty that the goods shall correspond with the sample, the vendee is not precluded from claiming and .recovering damages for a breach of warranty, although he has-accepted the goods after- an opportunity for- inspection.” These 'considerations dispose of defendant’s objections that no warranty survived plaintiff’s acceptance of the tallow.

On the trial, plaintiff’s right to recover was limited to the loss sustained by an adulteration of eighty-five barrels. But defendant-claims that the evidence to show an adulteration of those barrels, and the extent of it, is too uncertain and speculative to sustain a recovery. It appeared that twro barrels of this eighty-five were melted by themselves,-and a deposit of marble dust or other extraneous matter was discovered in the bottom of the kettle. Out of 487 pounds melted, 132 pounds of this worthless substance was deposited. Nearly thirty per cent, of those two barrels proved to be an adulteration, and not tallow. Upon this discovery, the remaining eighty-three barrels were inspected, and, after taking a thin skimming off the top, the rest of each barrel was found to exhibit a gritty feeling to the touch, and white flakes were visible throughout the whole. Upon being used in the soap kettles, with tallow from other sources, it was found that in a few weeks the steam coils in such kettles were so covered with a similar deposit that they would not heat the material. And, upon being cleaned out, many barrels of such deposit were found in them, each barrel weighing about 500 pounds. The average weight of the eighty-three barrels was 284 pounds each, and plaintiff testified that the two barrels, tested as above, were worth thirty per cent, less than if as warranted. It was also shown that at about this time defendant had in the works at Syracuse some barrels of marble dust, si milar to that deposited. Here seems to be direct evidence of some injurious gritty substance in all of the barrels, and that in two-of them, taken indiscriminately from the lot, such gritty substance equaled about thirty per cent, of the whole. Also the number of barrels and weight of a similar deposit found after using the eighty-three barrels in the soap kettles gave some indication of its proportion to the whole. It is not a forced presumption that the deposit in these kettles was the gritty substance perceived in the eighty-three barrels ; and, while a jury may not have been able to reach with mathematical certainty the precise weight and extent of this adulteration, yet here was ample evidence from which they could estimate it. Here was actual adulteration in each barrel shown, and data from which the amount of the whole could be ascertained with reasonable certainty.

The defendant’s claim that it did not appear that" the tallow tested and that contained in the eighty-three barrels was tallow purchased from defendant is not sustained by the evidence. Although Hogan could not tell what particular shipment it was from, or even "that any tallow at all came from Hoyt’s, except from hearsay, yet he knew that the tallow came from the lot set apart as Hoyt’s and the plaintiff himself identified the lot as defendant’s tallow.

After the action had been commenced, and before the eighty-three barrels had been used, defendant offered to take them back, and repay to the plaintiff the purchase price of the same. This offer the plaintiff rejected, and defendant now claims that for such reason he can recover only nominal damages. To sustain this proposition, defendant invokes the well-established rule that it is the duty of a person claiming for the breach of a contract to use such reasonable exertions as will render his injury or loss as small as possible. His argument is that had plaintiff accepted the offer he would have been fully compensated, and that by rejecting it he has enhanced the damages, and that, therefore, he should not now recover any damages at all. Manifestly, that rule does not go to that extent nor apply to this case. Under the rule, it is only the enhanced damages which plaintiff has willfully created that he is prevented from recovering. Here defendant seeks to deprive plaintiff of all his damages. Moreover, by plaintiff’s refusal, defendant is not now called upon to pay more than he then offered. He was to restore the purchase price, and himself take the adulterated tallow, which the evidence shows was worth thirty per cent, less than that price. In either way the thirty per cent, loss, and no more, is borne by the defendant. Nor was plaintiff’s refusal to accept the offer unjust, for by doing it he would have received no compensation for his loss on the two barrels that had been melted, and lie would have had to pay his own costs already incurred in this action. But this position of defendant is untenable for the reason that in no case can a defendant, after action brought, bar the same, or reduce the damages by a mere offer to restore property, or to pay as damages a specified sum. He may make a tender as provided by law, or an offer for judgment, as provided by the practice; but an offer of settlement in any other form neither abates the action nor mitigates the damages.

It may be that the use of the tallow for the making of soap after the discovery of its adulteration was not warranted, and that plaintiff would not be entitled to recover any damages sustained solely because of such use. It may be that the depreciation of the eighty-five barrels as a marketable commodity were the only damages he was entitled to recover, and that so far as the charge presents to the jury any other rule of damages it was error.' But no exception is taken to any instruction on that subject, save the refusal to charge that only nominal damages could be recovered. The attention of the court was not called to any expression that might bear an improper meaning in that respect, nor does defendant now suggest any, and .hence a criticism of the charge on that subject is not properly before me. As to'the admissions of the evidence of the plaintiff, who was deceased since the trial at which it was given no •objection was made except to that part referring to samples had upon the former trial, but lost, and hence not produced, at this. The ground of the objection was “that a lost exhibit cannot be put in evidence.” The exhibit was not put in evidence. The testimony of the witness was allowed to.be read so that the evidence of the expert Griffis, who referred to samples that he had tested by numbers, would be intelligible. Clearly, no evidence was given under that ruling that has at all prejudiced the defendant; and I now understand that defendant’s counsel makes no point about it.

I do not find any error in the record that requires a new trial, and the motion is therefore denied, with costs.


author:
Martin, J.
      Hardin, P. J.

text:
    Grover C. Robinson, by Guardian, etc., Resp’t, v. Ernest R. Hunt, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed July 5, 1895.)

    1. Evidence — Special contract.
    Where, in an action to recover the contract price of work done, the case is tried upon the theory that the written contract alone is to control, it is
    . error to receive evidence of the value of the services.
    2. Appeal — Incompetent evidence.
    An error in receiving incompetent evidence can be disregarded only when it can be clearly seen that it did no harm.
    Appeal from a judgmént in favor of plaintiff, and from an order denying a motion for a new trial, on the minutes.

      O. F. Matterson and Charles H. Searle, for app’lt; Nathan Bridges and Albert C. Tennant, for resp’t.
   Martin, J.

— The purpose of this action was to recover wages earned by the infant plaintiff while working for the defendant in one of his cheese factories. The plaintiff alleged in the complaint that he worked for the defendant at the agreed price of $28 á month for eight months and four days, and that there was due him therefor the sum of. $65, with interest. The complaint also contained a count or cause of action on quantum meruit for the value of the plaintiff’s services, which were alleged to have been reasonably worth the sum of $28 per month, and that there was due the plaintiff therefor the sum of $65. In another count it, was alleged that there was a settlement of their accounts between the parties, and that the sum of $65 was found to be due the plaintiff, and had not been paid by the defendant. The answer admitted that the defendant employed the plaintiff to work for him in running his factory at the agreed price of $28 per month, and then alleged that, by reason of .his carelessness and negligence in doing his work, his services were of no value, but that he (the defendant) thereby sustained damages to the amount of $100, which he set up as a counterclaim, and for the purpose of showing that the plaintiff’s services were of no value.. ' . .

Upon the trial, the plaintiff produced a written paper," which was as follows :,

“Lena, January 18th, 1892.
“I, Grover Bobinson, have agreed to work for E. B. Hunt, in the -Morris Creamery, under the following conditions: To commence work when called upon, expecting that time to be May 1st, 1892, or sooner. I am to have the entire charge of the factory work, under the advice and supervision of E. B. Hunt. To do the work witli one man to help, unless more milk than can be worked in two cheese vats is received. To do the work when it ought to be done, and not to be out nights, or attend dances or ball piays, or be away any that will in any way interfere with the factory work, or that might be deemed so by E. B. Hunt To avoid as much as possible boys gathering at the factory nights or Sundays. To have due diligence and proper care of the work. To receive twenty-eight dollars per month for each full month’s work; the whole number of days in each month to be worked for a month’s work. It is, however, understood that, if the firemen of Morris have a dance, I am to have the privilege of attending.
“ Grover Bobinson.”

We find no evidence that the defendant agreed to the terms of this written contract, although upon the trial it seems to have been assumed that that was the contract between the parties, and binding upon both. The plaintiff might have avoided his contract upon the ground of infancy, and have recovered the value of his services on quantum meruit. Whitmarsh v. Hall, 3 Denio, 375 ; Winters v. McMahon, 23 Wk’ly Dig. 119. But such was not the theory upon which the case was tried. The plaintiff introduced the written contract in evidence, and when proof was offered as to the value of the services of cheese makers, and it was objected to upon the ground that the contract was in writing, and could not be varied, the plaintiff’s counsel expressly stated that it was not for that purpose, and that the question was not asked with a view of at all affecting the amount the plaintiff was entitled to recover. An examination of the evidence and proceedings upon the trial discloses that the case was tried upon the sole theory that the contract signed by the infant plaintiff was binding upon both parties, and was the contract which existed between them. Such having been the theory upon which the action was tried, we should not now attempt to sustain the judgment upon the ground that the plaintiff might have recovered upon quantum meruit, and hence that certain evidence which was admitted was properly received, provided it was improper under the theory upon which the case w7as tried.

The only question that seems necessary to determine upon this appeal is whether it was error for the court to permit the plaintiff on the cross-examination of the defendant to prove the value of the services of experienced cheese makers in that locality. It may be that this evidence would have been admissible if the action had been tried upon the theory of the plaintiff’s right to recover on quantum meruit. But, be that as it may, as the case was tried upon the theory that the written contract alone was to control, and, when the evidence was objected to, the counsel for the plaintiff expressly asserted that it was not for the purpose of affecting the amount of the plaintiff’s recovery, or to vary the written contract, or show a different one, we think the .court erred in admitting such evidence. The specific question asked was: “Now, in 1892, in and about the vicinity of Morris, what was the regular price of cheese makers who took entire charge of the cheese factory, and assumed the entire responsibilty of running a cheese factory and in manufacturing the cheese ?” This was objected to, as “ incompetent and improper; that the contract agreed upon is $28, in writing, and they can’t vary it” The counsel for the plaintiff then stated, “It is not for that purpose at all,” to which the counsel for the defendant remarked, “ it is incompetent and improper for any other purpose ; ” the plaintiff’s counsel replying, “ It is not with a view of at all affecting the amount this plaintiff is entitled to recover.” The objection was thereupon overruled, and the defendant excepted ; the court remarking during the-controversy between counsel that the ruling was made upon the theory that it1 was not for the purpose of establishing the value of the plaintiff’s services. The defendant finally answered that the value of such services was $50 a month, the cheese maker boarding himself.

Assuming, as we think we must, that the parties had the right to try the case upon the theory adopted by them, it is quite obvious that the evidence was improperly admitted, and that the defendant’s exception was well taken. In Marsh v. Holbrook, 3 Abb. Dec. 176, it was held that in an action to recover compensation for services, if the complaint alleged, and the plaintiff at the trial solely relied on, an express promise to pay a specified sum, the defendant’s were not entitled to prove that the value of the services was less, although the complaint contained allegations appropriate to an action on quantum meruit. The doctrine of that case was fully recognized in Barney v. Fuller, 133 N. Y. 608; 44 St. Rep. 902. It is a well-established rule of law relating to appeals, that an error in receiving incompetent evidence can be disregarded only when it can be clearly seen that it did no harm. Foote v. Beecher, 78 N. Y. 155 ; Green v. Disbrow, 56 id. 334, 337 ; Carroll v. Deimel, 95 id. 255, 256 ; Holcomb v. Holcomb, 95 id. 316. As was said in Hutchins v. Hutchins, 98 N. Y. 56, 65, following the decision in Anderson v. Railroad Co., 54 N. Y. 334: Illegal evidence that would have a tendency to excite the passions, arouse the- prejudices, awaken the sympathies, or warp or influence the judgment of the jurors in any degree, cannot be considered harmless. ” The only effect that the evidence in question could have had was to prejudice the jury by leading it to believe that the plaintiff’s services were of greater value than the price the defendant agreed to pay. We cannot say that this evidence was harmless. It follows that the judgment should be reversed.

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

Merwin", J., concurs.

Hardin, P. J.

— This contract contained language indicating ithat plaintiff was to have entire charge of factory work. The words in the contract are, viz.: “I am to have the entire charge •of the factory work, under the advice and supervision of E. B. Hunt. * * * ” Defendant’s evidence to the same effect did not need explanation; hence the irrelevant evidence was not ■needed to counteract or impair the force of defendant’s evidence as a witness, and the respondent’s excuse for the ruling fails to justify it. I, therefore, join in the opinion of Martin, J., for reversal.


author: Herrick, J.

text:
    In the Matter of the Application by Alson B. Ostrander for a Writ of Mandamus, etc.

      (Supreme Court, Albany Special Term,

      Filed May, 1895.)

    1. Mandamus — Civil service law.
    Where the superintendent of public buildings of Albany, who is authorized, by chap. 327 of 1893, to appoint all persons necessary to the maintenance of the department of public buildings, refuses to appoint to such place a person entitled to appointment under the civil service laws, the remedy of such person is by mandamus.

    :2. Same.
    An application to compel an appointment cannot be granted, where it states that the position to which the applicant seeks to be appointed “has been entered upon the schedule of confidential positions in the civil service.”
    Application for a writ of mandamus to compel the superintendent of public buildings to appoint relator to the position of ■deputy superintendent.

      Robert H. McCormic, Jr., for relator; Henry C. Nevitt, for resp’t.
   Herrick, J.

— The applicant rests his claim to the appointment to the position in question upon the laws in relation to honorably discharged soldiers and sailors of the late war. I deem it unnecessary at this time to review the various acts of the legislature in relation to veterans. His claim seems to me to rest upon the provisions of chapters 716 and 717 of the Laws of 1894. These acts became laws upon the same day. They contain no provisions necessarily inconsistent with each other, and therefore are to be construed as one law. They entitle him, in certain cases, to a preference over all others not veter'ans. The position he seeks is one under the superintendent of public buildings. Under chapter 227, Laws 1893, the superintendent of public buildings has power subject to the approval of the trustees, to appoint all persons ■necessary to the maintenance of the, department of public buildings and the grounds under his charge.” The persons so authorized to be appointed by him are not public officers, but employes. Ho authority is vested in him, or in the trustees of the public buildings, to create an office. The remedy by mandamus, I therefore think, is the proper one.

Chapter 716 of the Laws of 1894 — the law which gives honorably discharged soldiers and sailors a preference — has the following proviso : “ But the provisions of this act shall not be construed to apply to the position of private secretary or deputy of any official or department, or to any other person holding a strictly confidential position. ” The application must affirmatively show that the position he seeks is not one of those excepted from the-preference to be given to veterans. The particular position sought by the applicant, for which he filed his application with the superintendent of public buildings, is designated as that of “ deputy superintendent,” a position or employment that appears to have been created and named by the superinteudent of public buildings Now, while I am inclined to think that the provision of the statute, so far as it refers to deputies, refers to officers, as such, created by statute, who are by law clothed with the power and authority of the principal officer in his absence or inability to act, and that it does not refer to an employe who may have been for convenience, but improperly, named deputy, — who is not clothed with any official power or authority, and has no-right, under the statute, to act for or in the place of the principal officer, — and while, therefore, the naming of the position in controversy here as that of deputy does not necessarily bring it within-the positions excluded from the operation of the laws in relation to soldiers, still this reasoning does not affect that portion of the statute relating to confidential positions. And the applicant, instead of showing that the position he seeks is not a confidential one, alleges in his moving affidavit herein “that said employment has been entered upon the schedule of confidential positions in the civil service of the state, as exempt from examination,” The civil service commission of the state, together with -the governor, have power, under the civil service laws, to classify the employes of the-state. And such position having, as the applicant states, been classified osa confidential one, I do not think that the applicant, has a preference for the-appointment thereto over any other applicant. I do not think the provisions of the new constitution change-the position of the applicant. Since it was adopted the governor and civil service commission have declared the employment in question a confidential one, and not subject to examination, which is in effect saying, in language of the constitution, that it is not “practicable ” to ascertain the applicant’s fitness for it by examination, and therefore it is not within the provisions of the constitution as to civil service. The application for a mandamus must therefore be denied, — denied, not as a matter of discretion, but as matter of law; but, under the circumstances of this case, I think proper that such denial should be without costs.

Application denied, without costs.


author: Bradley, J.

text:
    John O’Loughlin, Resp’t, v. New York Central and Hudson River Railroad Company, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed June 21, 1895.)

    1. Negligence — Incompetency.
    Where the duties of one of two switchmen in a railroad yard are imposed on the conductor of a switch engine, and he is found incompetent for this service and an injury to the regular switchmen occurs in consequence of such incompetency, the company fails to supply adequate force to do the work in the yard as its duty to the switchman requires, and is, therefore, chargeable with negligence.
    2. Same — Contributory.
    The question of the plaintifE’s contributory negligence was held, under the circumstances of the case, to have been properly submitted to the jury.
    Appeal from a judgment for plaintiff, and from an order denying motion for a new trial made on the minutes.

      Albert H. Harris, for app’lt; Horace G. Pierce and John Van Voorhis, for resp’t.
   Bradley, J.

— The plaintiff, having for fifteen years been in the service of the defendant as flagman and switchman at and in the vicinity of Platt street, in its freight yard in the city of Rochester, was on February 8, 1894, struck by the switch engine, and severely injured. He attributes his injury to the negligence of the-defendant, In this yard were twenty switches, and nearly as many tracks. The business of switching and shifting cars there was large and continuous, night and day. For some time prior to the day of the accident there were four switchmen in the yard. Two were engaged there during the day, and two during the night. On that day, with a view of reducing expenses the plaintiff’s mate was dismissed, the plaintiff was charged with the duty of taking care of the switches at and near Platt street, and the operation of the other switches was devolved upon the conductor and brakeman of the switch engine, called the “trainmen.” The course of Platt street is east and west. The railroad tracks cross it nearly at right angles. The number of tracks, being seven at the crossing, was increased north to sixteen or more. For convenience, the tracks at the crossing may be numbered from east and west. The circumstances were that about nine o’clock in the evening of that day, when the engine was near the crossing, and about to proceed north, the condnctor said to the plaintiff that it was going to a track known as the “Horn” to get some cars; that it would come back, south, on what was known as the “Inside Track,” which, on the crossing, was the fourth track from the west —and directed the plaintiff, on the return of the engine, to turn a certain switch. The engine proceeded north on the most westerly track, known as the “New House and Kent House Track,” taking the switches to “the right until it reached the main track (the fifth track from the west), at a distance of upwards of 200 feet north of the crossing, and then, on the signal of the conductor, the engine came south on the main track, and struck the plaintiff, who stood on that track at the crossing.

The return of the engine south upon the main track was without any object or purpose on the part of the conductor. It was his mistake in giving the signal which brought the engine south upon that track resulting in the injury to the plaintiff. His intention was that it should, by use of another switch north of the crossing, pass onto the track next east of the main track, and thence south on the inside track. If this mistake was attributable to the negligence of the conductor, who was the co-employe of thé plaintiff, the defendant is not liable. But if the conductor was incompetent — by reason of want of familiarity with the switches, in their relation to the various tracks — to perform the duties of switch-man, a different question arises. In the first of his service he had, for a time, been engaged in coupling cars, but for the last three years and a half he had been engaged there as yard conductor. His business as such did not require him to turn the switches, and he did it only occasionally, when convenient for him to do so, in the course of'his business as conductor. There is an apparent complication of the tracks as they proceed north from the crossing, and of the switches in their relation to the tracks. It seems quite evident that without the knowledge of the tracks, in their connection with and relation to each other, and experience in the operation of the numerous switches, a person would be liable to make some mistakes. The defendant was chargeable with knowledge of the skill requisite to perform that duty in the yard and was advised of the nature of the service the conductor had, up to that time, performed. It may also be observed that, as bis service as conductor continued, his duties and responsibilities were increased by adding those of switchman. Although he testified that he was familiar with .the switches and their operation, it was, in view of his relation to the defendant, fairly a question of fact for the jury, whether he had such familiarity with the switches, in their relation to the several tracks, as to render him a competent person to perform that service. And if they found that he was then incompetent for it, and that the plaintiff’s injury was the consequence of such incompetency, the conclusion was permitted that the defendant failed to supply adequate force to do the work in the yard as its duty to the plaintiff required, and therefore was chargeable with negligence. Filke v. Railroad Co., 53 N. Y. 550; Booth v. Railroad Co., 73 id. 38. The conclusion was justified upon the evidence, that the other members of the crew with the engine knew less about the switches than did the conductor. The switch engine "usually employed in the yard, having a headlight on each end, had ■some time Before Been taken to the shop for repairs. The engine in use at the time of the accident was one without any headlight in the rear, and had been temporarily in use there for a week. The evidence on the part of the plaintiff is that on the night in question there was no light whatever on the rear end of the engine and tender, and such is here assumed to be the fact, although there was evidence on the part of the defense tending to prove that there was a red light of a lamp at one corner of the rear end, pn the tender. The front of the engine was north, and it was running backwaads when the accident occurred. The question whether the engine was suitably equipped with lights for the night service was also ■submitted to the jury, upon the question of the defendant’s negligence, in view of its duty to use reasonable care in supplying'adequate appliances for the safety of its employes.

The question whether the plaintiff was, by the evidence, relieved from the imputation of contributory negligence, is somewhat close. He testifies that he .supposed that the engine was coming south on the inside track as he had been advised by the conductor it would; that in the darkness, he could see that the engine was coming south, but could not see that it was on the main track, — and the inference is permitted that he was in a situation on that track to turn the switch, as he had been directed to have it done on the arrival of the engine at the proper place. The inside track and the main track, at the crossing, opposite where the plaintiff stood, were separated bv only four feet and nine inches. It is evident that the plaintiff, not seeing that the engine was approaching on the main track, relied upon the statement of the conductor that it would be on the inside track, and therefore felt that he was safe where he stood. While the plaintiff may have avoided the possibility of danger by being upon no track, he had reasonable apprehension of no danger on the main track. He was not, under the circumstances, required to use the utmost caution, by seeing to it that the train, by the mistake of the conductor', was not switched onto the track intended. The failure to exercise the best judgment is not necessarily contributory negligence. In the determination of that question, allowance may properly be made for influences which may ordinarily govern the action of persons. The plaintiff’s action had support of his confidence in the purpose of the conductor, and in the faith that he could, and without mistake would execute it. He was, in effect, advised by him that he would be safe anywhere except on the inside track, and he was permitted to so understand it, and act accordingly, if he, by the exercise of reasonable care, failed to observe anything to the contrary. It may be, if there had been a light on the rear end of the tender, as it approached him, the plaintiff might have seen and avoided the danger to which he was exposed. We think, under the circumstances, the question of his contributory negligence was properly submitted to the jury; that there was no error in the denial of the motion for a nonsuit, or in the refusal to direct a verdict for the defendant; and that the verdict is supported by the evidence.

The learned counsel for the defendant excepted to several refusals to charge as requested, and to some of the propositions submitted to the jury. In view of the charge as made by the court to the jury, we think neither of those exceptions was well taken.

The judgment and order should be affirmed.

All concur.


text:
    The People ex rel. William McClelland, Pl’ff, v. James A. Roberts, as Comptroller, etc., Def’t.

      (Supreme Court, Albany Special Term,

      Filed, July 9, 1895.)

    1. Orvm service — Constitution—Construction.
    Sections 3 and 9 of art. 5 of the state constitution of 1895, render the appointments by the superintendent of public works subject to the civil service laws.
    2. Same — Legislation.
    The provision of section 9, art. 6 of the amended constitution does not render new legislation necessary, where it can be enforced by existing statutes.

      Application for a writ of mandamus to compel the comptroller-to draw his warrant for the payment of relator as clerk to the collector of canal statistics.

      Myer Nussbaum, for relator; Matthew Hale, for comptroller.
   Herrick, J.

— This is an application for a writ of peremptory mandamus to be diz-ected to the comptroller of the state of New York, commanding him to draw his warrant for the payment of :jthe salary of the relator as clerk to the collector of canal statistics, 'for the month of May, 1895. It appears that on the 26tb of April, 1895, the superintendent of public works issued a commission to the relator, under his hand and seal, in the words following:

“Albany, April 26th, 1895.
“By virtue of the power vested in me by section 3, article 5, of the constitution of the state of New York, I do hereby appoint J. W. McClelland of Albany, N. Y., clerk to collector of canal statistics, at Albany, N. Y. Salary $65 per month.”

The relator had passed no civil service examination for the position in question, and his name was not certified to the comptroller by the civil service commission of the state. The comptroller bases his refusal to draw his warrant upon chapter 854 of the Laws of 1883, as amended by chapter 681 of the Laws of 1894, which provides for arranging in classes clerks and employes in the public service of the state, and provides for the certification to the comptroller by the civil service commission' of the names of all officers, clerks, or other persons appointed to the public service of the state from either of said classes, and prohibits the comptroller from drawing his warrazrt for the payment of any salary or compensation to any officer, clerk, or other person in the public service who has not been so certified to him. The relator contends that the law in question is not applicable to his case, and that there is no necessity for his name being certified to the comptroller by the civil service commission of the state, because,as he alleges, under the laws and the constitution of the state the appointees of the superintendent of public works are not subject to the civil service laws, but that the power of appointment is lodged exclusively in such superintendent, untrammeled by any laws, rules, or regulations whatever.

The position taken by the parties to this pi'oceeding makes it necessary to examine not only the civil service laws of the state, but the constitution, not only as it is, but as it was prior to January 1, 1895. The questions presented are of grave importance, seriously affecting the civil service of the state, and the administration of some of the greatest and most important departments, as well as the title to office of many subordinate officers of the state, and therefore merit a careful considez-ation. In 1876 the then existing constitution was amended by creating an entirely new official, known as “a superintendent of public works,” to whom was confided the execution of all laws “relating to the repair, navigation, construction, and improvement of the canals, except .so far as such construction and improvement should be confided to the state engineer and surveyor.” Being thus made responsible for the care and maintenance of the canals, he was given a corresponding power in the selection of his subordinates. After providing for the appointment by him of three assistant superintendents, such amendment further provided that “allpersons employed in the care and management of the canals, except collectors of tolls, and those in the department of the state engineer and surveyor, shall be appointed by the superintendent of public works, subject to suspension or removal by him.” Const, art. 5, § 3. It may be well to observe in passing that the same year an amendment to the constitution was adopted, providing for a superintendent of state prisons, who should have the superintendence, management, and control of all state prisons, and to whom was given the appointment of all the agents, wardens, and chaplains of the prisons, and giving to the agents and wardens of each prison the appointment of all officers of such prison except the clerk ; and further providing for the appointment of clerks of prisons by the ■comptroller. Const art. 5, § 4. In 1883, the legislature by •chapter 354 of the Laws of that year, authorized the governor, by and with the consent of the senate, to appoint three persons who should constitute a civil service commission; and it was made the duty of said commission “to aid the governor, as he may request, in preparing suitable rules for carrying this act into effect.” It was further enacted that such rules should provide, among other things, “for open competitive examinations, for testing the fitness of applicants for the public service, now classified or to be classified hereunder.” Section 6 of such law provided that:

“Within four months after the present session of the legislature, it shall be the duty of the governor to cause to be arranged in classes all the. several clerks or persons employed or being in the public service, for the purpose of the examination herein provided for, and he shall include in one or more of such classes, so far as practicable, all subordinate places, clerks and officers in the public •service of the state.”

Section 7 provided that:

“After the termination of eight months from the expiration of the present sesssion of the legislature, no officer or clerk shall be appointed, and no persons shall be admitted" to, or be promoted in, either of the said classes now existing, or that may be arranged hereunder pursuant to said rules, until he has passed an examina- ■ tian or is shown to be specially exempted from such examination in conformity herewith."

That section was amended by chapter 681 of the Laws of 1894, which amendment provided, among other things, as follows :

“It shall be the duty of the said commission to certify to the comptroller the name of every officer, clerk or other person in the public service of the state, in either of said classes, appointed or employed therein in pursuance of law and of the rules and regulations made in pursuance of law, stating in each case the title or character of the office or employment, and the date of the commencement of service by virtue thereof; and, in like manner to certify to the comptroller, the name of each officer, clerk or other person, in the public service of -the state, in either of the said classses, appointed or employed therein in violation of law or of the rules and regulations made in pursuance-of law ; and to certify • to the comptroller, in like manner, every change occurring in any such office or employment forthwith, on the occurrence of the change. It shall be unlawful for the comptroller to draw his warrant for the payment of any salary or compensation to any officer, clerk or other person in the public service of the state, in either of said classes, who is not so certified as having been appointed or employed in pursuance of law and of the rules and regulations made in pursuance of law.”

It will be observed that the duty of classifying the various officers and employes of the state, and of making rules and regulations providing for the examination of candidates, and other details, is devolved upon the governor of the state, and that he is to determine how far it is pi’acticable to include in any classification the subordinate places, clerks or officers in the public service of the state; that the civil service commission, so called, is merely to aid him as he may request, in the discharge of his duties. He is, in law and in fact, the responsible head of the civil service of the state. He is not only to see that the laws are executed, but he is, in addition, within the limitations of the constitution and the acts of the legislature, to make the laws — that is, the rules and regulations — by which the civil service of the state is to be governed. Pursuant to said act of 1883, the governor of the state promulgated rules and regulations.for the government of theciv.il service, and a classification of subordinate places, clerks and officers, included in the class subject to competitive examination, were the subordinates of the superintendent of public works and of the superintendent of state prisons, and among others, clerkships of the kind to which the relator claims to have been appointed. The power of the legislature to make laws, and of the governor and civil service-commission to make' rules and regulations, which should subject appointees of the superintendent of public works to examinations, and to'limit his appointments to those who should pass such examinations and be placed upon the eligible list of the civil service of the state, was challenged in the case of People ex rel. Killeen v. Angle, 109 N. Y. 464 ; 16 St. Rep. 647. It was there held that it was the intention of the constitution to confer upon the superintendent of public works the power to select and appoint his subordinates, “subject only to his sense of duty and the obligations of his oath of office,” and that it plainly intended “to leave to the superintendent exclusively the determination of the propriety of such appointments, and the sufficiency of the qualifications possessed by proposed appointees; and that the provisions of chapter 354 of the Laws of 1883, and of the rules and regulations adopted by the governor and civil service com mis-' sion, were limitations and restrictions upon such power of appointment by the superintendent, which the legislature had no power to impose; and that, therefore, his subordinates “did not. come under the operation of the act creating the civil service commission.” The principle pi that decision applied as well to subordinotes of the superintendent of state prisons, and of the agents and wardens of each prison, and to the clerks of such prisons, to be appointed by the comptroller. It will be observed, however, that-the civil service law was not declared unconstitutional as a whole, and it can hardly be said to have been declared unconstitutional at all, but simply that it did not and could not include within its limits certain classes of officers. As to all others, it remained upon the statute book a living and effective law, and so remained, with these exemptions from its provisions, down to the 1st of January, 1895.

The new constitution, adopted in 1894, contains the same provision as to the appointment of subordinates by the superintendent of public works as did the old constitution. See article 5, § 3. It also contains, however, an entirely new section, being section 9 of article 5, reading as follows:

“Appointments and promotions in the civil service of the state, and of all the civil divisions thereof, including cities and villages, shall be made according to merit and fitness, to be ascertained, so far as practicable, by examinations, which so far as practicable, shall be competitive; provided, however, that honorably discharged soldiers and sailors from the army and navy of the United States in the Civil War, who are citizens and residents of this state, shall be entitled to preference in appointment and promotion, without regard to their standing on any list from which such appointment or promotion may be made. Laws shall be made to provide for the enforcement of this section.”

It is contended by the relator that, the same language being used in the present constitution as in the old, the same interpretation should be given; while on behalf of the comptroller it is contended that the power of appointment given by section 3 to the superintendent of public works is limited by the provisions of section 9 of the same article. This conflict makes necessary both an interpretation and a construction of the constitution as it now is. Some discussion has been indulged in as to whether the present constitution is a new constitution or an amended one. To me it seems to be a matter of little consequence whether we consider the present constitution as an entirely new instrument, coming into existence January 1, 1895, or whether we consider it as an amended constitution. In either event, the same rules of construction will govern ; for it has been held “ that an amended constitution must be read as a whole, and as if every part had been adopted at the same time as one law ; and effect must be given to every part of it, each clause explained and qualified by every other part.” People ex rel. Killeen v. Angle, 109 N. Y. 564-575 ; 16 St. Rep. 647. The first rule in interpreting and construing a constitution is to give to it the effect and meaning intended by its framers, and by the people who adopted it; and the first rule for ascertaining what that intent and meaning was is that it is to be gathered, if possible, from the plain and ordinary meaning of the words used. “In the construction of constitutional provisions, the language used, if plain and precise, should be given its full effect, and we are not concerned with the wisdom of their insertion. As adopted by the people, the intent is to be ascertained, not from speculating upon the subject, but from the words in which the will of the people has been expressed. To hold otherwise would be dangerous to our political institutions. The constitution is the basis upon which rests that complicated social organization called the state. It must be presumed that its framers understood the force of the language used, and, as well, the people who adopted it. * * * The latitude allowed in the construction of legislative acts is out of place, and would be unwise, when interpreting the fundamental law. Legislation aims at arranging the mechanism of the state for the benefit of its members, and the question of intention necessarily is often of great importance, and must be open to ju: dicial inquiry ; but the constitution, which underlies and sustains the social structure of the state, must be beyond being shaken or affected by unnecessary construction, or by the refinements of legal reasoning. We may be compelled to have resort to such in the presence of contradictions or of meaningless clauses, but not otherwise.” . People v. Rathbone, 145 N. Y. 434-438; 65 St. Rep. 404.

Let us, then, turn to the language of the constitution : “ Appointments and promotions in the civil service of the state, and of all of the civil divisions thereof, including cities and villages, shall be made," etc. This language is general, and in itself contains no limitations or restrictions, and is apt language to cover all appointments under the state government, without any exception, and “ we are not at liberty to presume that the framers of the constitution and the people who adopted it, did not understand the force of language.” People v. Purdy, 2 Hill, 31. Standing alone, there would be no question but that, under the language of section-9, art. 5, just quoted, were included appointments of the kind in question. But we must not lose sight of the rule of construction that all parts of a constitution must be construed together. Section 3 of article 5 confers upon the superintendent of public works the power of appointing his subordinates, and, as we have seen, the court of last resort, in construing the same language in the old constitution, held that that was an untrammeled and unrestricted power. The relator has invoked the rule that “ where a clause of a constitution, which has received a settled judicial construction, is adopted in the same words by the framers of another constitution, it will be presumed that the construction thereof was likewise adopted.” Black, Const. Law, 68. Thus these two sections are brought into apparent conflict, and one of the conditions arises mentioned in the case of People v. Bathbone, where "we are compelled to resort to construction ; and, when we are, the same rules apply as in construing a statute. “ The intent of the lawmakers is to be sought for. And when it is discovered it is to prevail over the literal meaning of the words of any part of the law. And its intent is to be discovered, not alone by considering the words of any part, but by ascertaining the general purposes of the whole, and. by consideringtheevil which existed calling for a new enactment, and the remedy which was sought to be applied.” People v. Potter, 47 N. Y. 375. While it is true, as a general proposition, as stated above, that, where a clause from a former constitution is adopted in a new •constitution, it is to be given the same construction as was formerly given to it, still I think that rule is subject to limitations and restrictions. All parts of the constitution are to be read together, and a construction given that will harmonize the several parts with each other, and in construing a clause of it taken from a pre-existing constitution we must see whether there are any provisions in the new constitution different from that from which the clause in question was taken, and which must be read in connection with it, and whether they in any way enlarge, modify, limit, or restrict its meaning. Where the new consti tutioqi contains some provisions of the old and. some that are new, I apprehend that in construing such provisions the same rules of construction must govern as apply to amendments to a constitution.' In “giving construction to the provisions of the constitution, its history, and the conditions and circumstances attending its adoption must be kept in view, and the effect of subsequent amendments are to be determined by the same rules applicable to the interpretion of statutes.” Sweet v. Oity of Syracuse, 129 N. Y. 316-330 ; 38 St. Rep. 933. We must examine the history of the constitution and the laws as they previously existed, and the evils, if any, that were intended to be cured by such new provisions.

We have examined somewhat the history of the law as it existed prior to January 1, 1895, when the new constitution went into effect. It is to be presumed that in framing the constitution the convention had in view the then existing laws.” People v. Rathbone, 145 N. Y. 435-438; 65 St. Rep. 404. Under the old constitution, subordinate clerks, officers, and employes in the civil service of the state were appointed to and held their positions under radically different laws some under a law providing for appointments based upon fitness and merit, to be ascertained by examination, while the subordinates in the great department of public works and in the state prisons of the state, embracing a large portion of all the appointees in the civil service of the state, where wholly exempt from such test. This anomalous condition of the public service under the law of course was known to the framers of the constitution. We must also assume that they knew that the legislature had passed a law with the intention of making all subordinate clerks, officers, and employes in the civil service subject to civil service regulations; that it was the apparent intent of such law to include, and its language was sufficient to include, subordinates of the superintendent of public works and to state prisons; that the governor of the state so understood the intent of that law, and c’assified the subordinates and appointees in such departments; and that the court of last resort held that under the constitution the legislature had no power to subject such subordinates and appointees to any such classification, because the same was a limitation upon and a restriction of the power of appointment conferred by the constitution upon the superintendents of such departments. Bear-in.g these things in mind, it would seem, from a reading of these sections of the constitution, that the. framers thereof intended by section 9 to limit 01; modify the pow.er of appointment conferred by s.ectiqn S, and that the power of appointment conferred by section 3 is fo be exercised subject to, the principles declared in section 9. If however, these considerations are not sufficient, to render the meaning and intent of the constitution entirely clear, there are other methods of arriving at the meaning of its framers and of the people who adopted it, to which we may resort ; and those are reading and considering the proceedings and debates of the convention which framed th.e instrument under consideration. The proceedings of a convention are not always to be relied upon to determine the intent with which any portion thereof was adopted. Different members of such convention may have diverse reasons for voting for its adoption; and it is sometimes impossible to find from such proceedings that the members united upon any single reason, or had a common in-' tent concerning such clause in the constitution. Legal Tender Cases, 110 U. S. 421-443. Still the proceedings of constitutional conventions have always been resorted to by the courts, not as conclusive and binding upon them, but as persuasive aids to assist them in determining the true intent and meaning of the instruments framed by such convention. “One mode of construing the constitution is to take th,e constitution as we find it, without reference to the manner in which its different parts were prepared and adopted; another is to look at the proceedings of the convention, and endeavor thereby to discover the probable intention of the framers of the constitution as we now find it. In either case we must also look at the actual state of things which existed when the constitution was framed and adopted." Clark v. People, 26 Wend. 599; People v. Purdy, 2 Hill, 31. And, “where the proceedings point out the purposes of the provisions, the aid will be valuable and satisfactory.” Cooley, Const. Lim. (3d ed.) 66. Turning, then, to th.e, proceedings of the convention, we' find that section 9, when, first reported from the committee having it under consideration, read as follows :

“Appointments and promotions in the civil service of the state and of cities shall be made according to merit and fitness to be ascertained by examination, which so far as practicable, shall be competitive. Laws shall be made to provide, for the enforcement of this section-”

The gentleman having it more particularly in charge for the committee, Mr. Gilbert, in opening the debate upon the question of its adoption, after discussing the principle of appointments to and promotions in the civil service upon merit to be ascertained by examination, said:

“This principle, as the constitution now stands, cannot, be applied to public works and to state prisons. The court of appeals has so held in respect to one of those departments, and the principle which applies to one will apply with equal force to the other. S.o that the committee, and a, very large number of petitioners of high character, * * * all concur in this: that we want the principle incorporated into the constitution, and we want to provide for its application in state prisons and in the public works, as well as in other departments of the state.” Pages 2437, 2438, 2439, Proceedings of Constitutional Convention.

And when the subject was again under discussion, the same gentleman stated:

“The court of appeals has held that appointment cannot be made in the prison service and in the public works service under the rules of the civil service. The case came up as to one of them, but the same reason that applied to that one obtains as to the others. So that I may say that under the law as it now stands, and under the constitution as it now exists, the civil service rules cannot be applied to the prison service or to the public works service. I think that is reason enough for the passage of the main proposition.” Pages 2552, 2553.

Mr. Root said:

“As the matter stands to day, the court of last resort has ruled that the principle of civil service cannot be applied to the important positions in the state prisons and public works department, and the effect of this amendment will be to extend this reform to state prisons and canals.” Page 2559.

Mr. Lauterbach said:

“In behalf of regularity and order in the appointment of state prison official and others as to whom our attention was called during the process of the investigation by the charities committee, I think it would be a serious error on the part of this convention if, owing to any flippant spirit in which 'the matter has been considered, or an account of some local interest that might be prejudiced, we go to the people from this convention, while our party has announced itself in favor of civil service reform, that in this convention, upon a trivial excuse that was presented, we voted it down.” Page 2561.

Much discussion was had in the convention over the proposition to amend the section as presented to the convention so as to extend its provisions to all the civil divisions of the state, “ including cities and villages,” and over that portion thereof which was finally adopted, referring to honorably discharged soldiers and sailors ; but nowhere do I find that any opposition was made to extending the operations of the civil service law to the canals or public works department and the state prisons of the state, or any answer made to the arguments of Mr. Gilbert or Mr. Root in favor of adopting the proposed section in order that such department might be subjected to the operations of the civil service laws. After the convention had adopted the constitution as a whole, it adopted and issued an address to the people, explaining its work, and the different new provisions of the proposed constitution. Among other things, that address contained the following :

“(10) We have declared in the constitution the principle of civil service reform that appointments and promotions are to be based upon merit, and ascertained, so far as practicable by competitive examinations. We have sought bv this to secure not merely the advantage derived from declaring the principles, but the practical benefit of its extension to the state prisons, canals, and other public works of the state, to which, under the existing constitution, the court of last resort has decided that civil service rules cannot be applied.” Proceedings of Constitutional Convention, p. 2683.

I therefore take it that the convention had, as to such departments, “a common intent,” and intended, by adopting the section in question, to bring the subordinates of the superintendent of public works and of the superintendent of state prisons within the operation of the civil service law, and by the language used intended to, and supposed they had, modified the effect of the language used in sections 3 and 4 of article 5, in reference to appointments to be made by the supertintendent of public works and of state prisons, and had nullified the effect of the decision in the case of People ex rel. Killeen v. Angle. It seems to me, therefore, that in reading section 3 in connection with section 9, and considering the language used, the history and condition of the law as it was under the old constitution, taken in connection with the proceedings in constitutional convention, that it was the plain intent of the framers of the constitution, and of the people who adopted it, that all appointments in civil service of the state should be made according to merit, to be ascertained, so far as practicable, by examination ; and that they intended to extend that principle so as to include the subordinates and appointees of the superintendents of public works and of state prisons; and that the power of appointment conferred upon the superintendent of public works by section 3 was intended to be subject to the principles and limitations contained in section 9.

The relator contends, however, that section 9 is not self-executing, and that there has been no legislation to enforce it; that the section itself in terms recognizes the fact that legislation is needed to put it in force, by the clause, “laws shall be made to provide for the enforcement of this section; ” and that, until new laws are made to enforce its provisions, the section in question is of no force and effect, and that the appointments are to be made as before its adoption. The same contention was in Re Sweeley, 12 Misc. Rep. 174; 67 St. Rep. 257 (affirmed in the court of appeals not yet reported), and it was there held that the pre-existing civil service laws were continued, and that then relator was subject to them. This case perhaps presents the question in a little different aspect. There it was held that the law under which the then relator sought appointment had been abrogated by the new constitution, and that there being other laws upon the statute book not in conflict with the new constitution, which were applicable to the relator’s case, no new legislation was necessary. It is said that such a construction renders unnecessary and meaningless the clause, “laws shall be made to provide for the enforcement of this section.” I think that is a mistaken view, for full force and effect can be given to that clause without holding that it is necessary to re-enact all the civil service laws of the state. When we consider, as before stated that the framers of the constitution are presumed to have known the laws of the state, and if they did they must have known that they did not extend to “ all the civil divisions thereof, in-eluding cities and villages,” and that to give full force and effect to that section of the constitution additional laws would have to be passed extending and enlarging the existing civil service laws of the state. But enough law is already in existence to enforce the provisions of the constitution as to the department of public works. As before stated, all parts of the constitution are to be read together, and the sections under consideration must be read in connection with section 16 of article 1, which provides, among other things, as follows:

“Such acts of the legislature of this state as are now in force shall be continued the law of this state, subject to such alterations as the legislature shall make concerning the same, but all parts of the common law and such of the said acts or parts thereof, as are repugnant to this constitution, are hereby abrogated.”

And in construing the constitution in connection with pre-existing laws “we must keep in mind that the constitution was not framed for a people entering into a political society for the first time, but for a community already organized, furnished with legal and political institutions, adapted to all, or nearly all the purposes of civil government; ” and it was not intended to abolish these institutions, except so far as they were repugnant to the constitution then framed. People v. Draper, 15 N. Y. 532. The members of the constitutional convention being'assumed to know the nature and effect of then existing laws, and having provided for their continuance where in harmony with the new constitution, we must also assume that they depended upon them to carry into effect the details of the constitution, being supplemented by such.new legislation as should be necessary. The civil service laws of the state are in harmony with the present constitution. They are, therefore, of the same force and effect as if they had been passed after the present constitution took effect; and can be used, as far as they go, to enforce its provisions.

It is also claimed in behalf of the relator that assuming that it was intended by section 9 to bring the appointees of the superintendent of public works within the provisions of the civil service laws, and admitting that the civil service laws are continued in force, there is still necessity for legislation to bring him within their provisions. To support this contention he relies upon that portion of section 9 in question which says that the merit and fitness of appointees “shall be ascertained, so far as practicable, by examination; ” and his contention is that it is necessary for the legislature to determine whether it is practicable to ascertain the merit and fitness of appointees under the superintendent of public works by examination, and that, until such determination is made there is no means of enforcing as to that department the pinciples of section 9. Ido not think this contention can prevail. While probably the legislature has the power, under this section, to determine what officers and appointees it is practicable to classify under the civil service, and in what cases it is practicable to ascertain the fitness and merits of candidates for positions, by examination, still I do not think that it is necessary for the legislature' to act in that respect in order to enforce the application of section 9 to the department of public works, because there was when the constitution was framed and adopted, a statute in existence which authorized and directed the governor of the state to determine what subordinate places in the service of the' state it was practicable to clássify, and subject candidates fdr to examination. It has been said that a constitution is to be held to be prepared and adopted in reference to existing statutory laws, upon the provisions of which in detail it must depend to be set in practical operation.” People v. Potter, 47 N. Y. 375-380. The statutes in existence at the time when the present constitution was adopted authorized the governor to determine how far it was practicable to test the merit and fitnéss of candidates for subordinate places in the public service by examination, .and the rule that holds that constitutions'are “prepared and adopted in reference to existing statutory laws,” and in relianc'e upon their details to set them into practical operation, is much strengthened in this case by the similarity in meaning of the language used in the section of the constitution under consideration to that used in the civil service law. Let us compare the •language used in each. The constitution provides that appointments and promotions in the civil service of the state, etc., “shall be made according to merit and fitness, to be ascertained, so far as practicable, by examinations, which so far as practicable shall be competitive.” The civil service law (chapter 254 of the Laws of 1883) makes it the duty of the governor with the aid of the civil service commission, to prepare rules and regulations, which shall provide, among other things, “as nearly as the conditions of good administration will warrant, * * * for open, competitive examinations for testing the fitness of applicants for the public service, now classified, or to be classified hereunder.” And again, in section 6 of said act, it is made the duty of the governor to “cause to be arranged in classes of the several clerks and persons employed or being in the public service, for the purposes of the examination herein provided for, and he shall include in one or more of such classes, so far as practicable, all subordinate places, clerks and officers, in the public service of the state.” Where the language used in the •constitution and in a previously existing statute is so nearly similar in meaning, it seems to me that we can well say that the framers of the constitution had such statute in view, and relied upon it to enforce the provisions of that portion of the constitution under consideration. The' governor has acted under the power conferred upon him by the statute, and has determined that it is practicable to test the merit and fitness of candidates for positions in the department of public works by examination ; for it appears in the papers before me on this application that after the adoption of the constitution, and on the 15th of April, 1895, the governor, with the aid of the civil service commission, made a classification of the positions in the departments of public works and state prisons of the state, and that under such classification the position of clerk to the collector of canal statistics was included in what is known as “Schedule B; ” and that all appointments required to be made in the positions classified in Schedule B are to be made by selection from those persons graded

highest as the result of open competitive examinations. And it also appears that at the time Of the appointment of the relator to the position in question théré were eighty-eight persons upon what is known as the “ eligible list ” in Schedule B, who were eligible for appointment as clerks to the collectors of canal statistics. It follows from what I have said that the superintendent of public works should have made his appointments of clerks to the collectors of canal statistics from the eligible list just referred to; that the appointment of the relator was in violation of the constitution .and of the civil service laws of the state, and that his application .for a mandamus must be denied.

Motion for a mandamus denied, not as a matter of discretion, •but as a matter of lhw, without costs.


author: Hardin, P. J.

text:
    Anton J. Lorenz, Resp’t, v. Homer T. Jackson, Impleaded, etc., App’lt.

      (Supreme Court, General Term, First Department,

      Filed July 5, 1895.)

    Appeal — Conflicting evidence.
    The general term will accept a verdict rendered upon conflicting evidence, Unless it is against the clear weight of evidence.
    Appeal from a judgment entered in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes.
    Plaintiff, while at work upon the railroad on the 17th of April, 1893, was engaged in removing ties, ánd a nail was found projecting from one of them, and a hárnmer was placed upon it, and another hammer delivered a blow to that one, and caused a piece of steel to enter the plaintiff’s left leg above the knee; the steel passing through two pairs of pants. Blood began to flow, and his father in company with others helped him to a hand car and he was removed about a mile, to his home, and then walked some 442 feet from the hand car to his house. The injury was bathed by his mother, with water, and shortly thereafter Dr. Jackson, the appellant, who had been to some extent the family physician, was sen t for, and he on arriving examined the wound and was unable to discover the piece of steel that is supposed to have entered the limb of the plaintiff, and he immediately announced that the wound was of a serious nature and character, and that he did not regard himself as sufficiently experienced in surgery to properly treat the case, and advised the father and family of the plaintiff (the plaintiff then being some seventeen years of age) to call in the services of a more experienced and skilled surgeon. The conference resulted in sending for Dr. Bailey, who arrived at the house of the plaintiff about five o’clock in the afternoon, and began to take measures to examine the injuries received by the plaintiff, and he was joined by the appellant, Dr. Jackson, and they remained together in the treatment that was administered to the plaintiff. He was removed from his bed onto a table, and ether was administered to him by the appellant, Dr. Jackson, while Dr. Bailey probed for the piece of steel, widening the wound in the limb, and thereafter applied bandages, and the appellant remained with the plaintiff during the night, administering to him hypodermic injections of morphine and atropia. The treatment continued for several days, until, about the eighth day after the injuries were received, it was found that dry gangrene ensued, and Dr. Glass was called to at- ' tend the patient, and finally it was determined that the limb must be amputated, which was done on the 25th day of April, 1893. Voluminous evidence was taken at the circuit in respect to all the questions of fact that arose in respect to the treatment received by the plaintiff at the hands of Dr. Bailey and Dr. Jaekso.n.

      Tuttle & Ransom, for app’lt; Sayles, Searle & Sayles, for resp’t.
   Hardin, P. J.

— A careful examination has been made of the-several exceptions taken upon the trial without discovering any prejudicial error presented by them. At the close of the evidence-no motion for a nonsuit was made. The case was submitted to the jury on the general principles of law applicable to actions of malpractice. in an elaborate charge, to which no exception was taken. In Shear. & R. Neg. 435, it is said: “If the practitioner, however, frankly informs a patiejit of his want of skill, or the patient is in some other way fully aware of it, the latter cannot complain of the-lack of that which he knew did not exist. ” The substance of the doctrine stated in the quotation just made was apparently approved in Small v. Howard, 128 Mass. 131. See Link v. Sheldon, 64 Hun, 632 ; 45 St. Rep. 165; affirmed, 136 N. Y. 1; 48 St. Rep. 820. During the charge, the trial judge recognized the rule stated in the citations just made, and carefully instructed the jury in respect thereto, and afforded the jury an opportunity to relieve the appellant from liability by the application of the rule, if, in the judgment of the jury, the facts and circumstances disclosed by the-evidence warranted its application. It must be assumed that the-verdict of the jury in regard to the branch of the case referred torn the rule of law just mentioned was found adversely to the appellant. After weighing the evidence found in the appeal book, although very conflicting, we are constrained to adopt the rule in respect to the verdict that was stated in Graves v. Santway, 25 St. Rep. 1022, affirmed, 127 N. Y. 677. It was there said, in effect, that it is the duty of this court to accept a verdict rendered upon-conflicting evidence “unless it is against the clear weight of the-evidence.” Having found no legal errors committed during the-progress of the trial, we are constrained to sustain the verdict of the jury.

Judgment and order affirmed, with costs.

. All concur.