author: Bockes, J.:

text:
    DANIEL SMITH, as Administrator, etc., of MARIA SMITH, Deceased, Respondent, v. ANDREW MEAGHAN and Others, Appellants.

      Evidence — when a party cannot testify as to the a/ppea/rance and acts of a deceased person — 0!ode of Civil Procedure, sec. 829.
    This action was brought by one Maria Smith, one of the heirs-at-law of one Thomas Meaghan, to set aside a deed made by him to one Andrew Meaghan, upon the ground that its execution was procured through the fraud and improper conduct of the defendant Robert and his mother Elizabeth, who had caused the said Thomas to become intoxicated to such an extent as to render him incapable of understanding and comprehending the nature of his act.
    Upon the trial the plaintiff's intestate, who was then living, was allowed, against the objection and exception of the defendants, to testify as to what the persons said, on coming into the room, just after the execution of the deed, and as td the acts and appearance of the deceased grantor, her evidence tending to show that he was then intoxicated to an extent indicating stupidity.

      Held, that the evidence was inadmissible, as in violation of the provisions of section 829 of the Code of Civil Procedure.

      Holcomb v. Holcomb (95 N. Y.., 316, 324) followed.
    Appeal by the defendants Robert Meaghan and Emeline, his wife, the former in his own behalf and also as administrator of the estate of Elizabeth Meaghan, deceased, from a judgment in favor of the plaintiff’s intestate, Maria Smith, setting aside a deed made by Thomas Meaghan, deceased, and also three other instruments connected with such deed and dependent thereon, and also from an order denying a motion for a new trial made upon the minutes of the judge.
    Since the action was commenced the original plaintiff, Maria Smith, and one of the defendants, Elizabeth Meaghan, have died, and the action has been revived and continued as to them in the names of their personal representatives.
    The question litigated on the trial was whether the deed made by Thomas Meaghan to the defendant Andrew Meaghan was procured to be executed by the former through the fraud and improper conduct of the appellant Robert Meaghan, aided by his mother Elizabeth Meaghan. The defendants Andrew Meaghan and wife allowed the case to go against them by default. On the trial the question above stated was submitted to the jury, who found thereon in the affirmative. The jury found that the deed was obtained by fraud on the part of Robert Meaghan, aided by his mother Elizabeth Meaghan, by causing the intoxication of Thomas to an extent that rendered him incapable of understanding and comprehending the nature and effect of his act. This conclusion was accepted and adopted by the learned judge who conducted the trial, and judgment was awarded in favor of the plaintiff accordingly.

      J. PL. Chite, for the appellants.

      R. A. Parmenter, for the respondent.
   Bockes, J.:

The case stands, as regards every question raised on this appeal, the same as if there had been no change of parties since the commencement of tbe suit by Maria Smith, one of the heirs-at-law(a daughter) of Thomas Meaghan, who died intestate.

The difficulty which presents itself on this appeal grows out of the ruling of the learned judge before whom the case was tried on a question of evidence. The leading, and indeed controlling, subject litigated was whether the grantor, Thomas Meaghan, was intoxicated at the time he executed the deed to such an extent as to render him incapable of understanding the nature and effect of his act. Evidence was given tending to show that such was his condition; and to corroborate, emphasize and intensify the proof in that regard, the plaintiff Maria Smith, who claimed through and under him, as heir-at-law, and in hostility to the deed, was allowed to give her own testimony descriptive of his then condition, and tending to show him to have been intoxicated as charged in her complaint. The objection was taken to this evidence as in violation of section 829 of the Code of Civil Procedure. Her testimony, so allowed against objection, was to the effect that she came into the room at the time her father executed the deed, or immediately thereafter, and while yet Mr. Stickles, who drew the instrument and as notary public took the acknowledgment of its execution, was present; that her father was sitting in a rocking chair with his head down on his hands, and his hands resting on his cane; that when Mr. Stickles, on leaving the house, bade him good-bye he neither raised his head or made answer; that his stupidity was a subject of remark; that when he raised his head she smelled a strong smell of liquor from his breath; that when spoken to by her husband he raised his head but she heard no answer; that he did not come to the table at dinner but remained in the same position, his head on his hands and his hands on his cane; also further described his appearance later in the afternoon. As above stated this evidence was given to prove, and to strengthen other proof given to show, that he was intoxicated to an extent indicating stupidity. This evidence was, as we think, incompetent according to the decision in Holcomb v. Holcomb (95 N. Y., 316, 324, and following pages), and also in Campbell v. Hubbard (23 W. D., 3). As was said in the last case cited, the evidence was material, and tended, with other and similar evidence from other sources, to establish the plaintiff’s claim. In Holcomb v. Holcomb, Judge Danforth says that “ the words of exclusion” (in § 829 cited) “are as comprehensive as language can express. Transactions and communications embrace every variety of affairs which can form the subject of negotiation, interviews or actions between two persons, and include every method by which one person can derive impressions or informationfrom the con-d/uet, condition or language of another; ” and the learned judge adds: “ The statute is a beneficial one and ought not to be limited or narrowed by construction.” An examination of the evidence, held to be inadmissible in Holcomb v. Holcomb, will show its similitude to that objected to, but allowed, in this case; and it may be added that the case cited was like this in hand, in its principal attributes, it being a suit in equity to set aside an instrument because of incompetency and undue influence.

It is suggested that the evidence above considered, or much of it, was admitted only in a qualified sense, and with limited application; that, as the court remarked, it was admitted “ merely as descriptive of the persons in the room at the time and for no other reason, admitted as merely descriptive of the persons who were there on that occasion.” But this does not meet the point of- its inadmissibility. It was inadmissible because descriptive of the condition of the deceased grantor, the real matter in issue, and how it was “ descriptive ” of any person present, except the deceased grantor is not apparent. As to him, according to the decisions cited, such description was inadmissible as evidence coming from the plaintiff. The qualification and limitation as declared was without any real ground of support, and left the proof influential almost as a matter of necessity, and that too quite possibly to an extent absolutely controlling in the result. And, again, the evidence was recognized and given significance as bearing directly on the main issue,.the condition of the deceased, in and by the charge to the jury. The learned judge said: When you have traveled and waded through the evidence, it all comes back to that simple transaction, when Mr. Stickles drew this deed and when * * * this deed was executed, * * * and when you come there cho simple inquiry * * is this: Was Thomas Meaghan at the time * * * so intoxicated, so bereft of his judgment and his reason, through the influence of liquor, procured by Robert and administered by the mother, as to be unable to comprehend the act which he did in executing that deed ? Upon that question yon had the witnesses, Mr. Smith and Ms wife * * * to satisfy you that the old gentleman was thus intoxicated — thus bereft of his reason — thus deprived of his understanding.” Thus it seems to have been considered, and so the jury were instructed that the evidence of the plaintiff Mrs. Smith was to be accepted and regarded as significant in its bearing upon the main issue, and that, too, without qualification or limitation in its use; and, indeed, we can readily see that with the jury it could hardly have been otherwise than so influential, and possibly may have been controlling of the verdict. True, there was other very influential evidence in support of the plaintiff’s casé’, possibly sufficient to support it, but in view of the conflict of proof which the case presents, and of the fact that the verdict and finding of the court were given under the possible and probable influence of inadmissible evidence, and that without it the merits may well be held reasonably in dispute, its admission cannot be overlooked, notwithstanding the case is in equity where errors in the admission of evidence may in some instances be held innoxious. Some other errors in rulings upon questions of evidence are urged, but the conclusion above reached renders their examination unnecessary. We are of the opinion that there must be a new trial.

Judgment reversed, new trial granted, costs to abide the event.

LeaRned, P. J., and LaNdoN, J., concurred.

Judgment reversed, new trial granted, costs to abide event.


source: Caselaw Access Project

author: Bockes, J.: Landon, J.:

license: Public Domain

text:
    HUGH REILLY, as Executor, etc., of B. REILLY, Deceased, Appellant, v. THE CITY OF ALBANY, Respondent.

      Sight of a contractor to sue a city for its neglect to take proceedings to collect money by assessment — effect of a decision vacating the assessment in a proceeding by cer-tiorari brought by properly owners.

    June 27,1881, the plaintiff’s assignor, Thomas Reilly, entered into a contract with the defendant for the grading, flagging and paving of a portion of Knox street, in the city of Albany, which provided that payment for the work should not he due until the said work had been accepted by the street commissioner and the apportionment of the expense confirmed by the common council and collected by the chamberlain, unless otherwise provided for. On August 2, 1882, the certificate of the street commissioner accepting the work was filed with the hoard of contract, which, against the objections of certain of the property owners, made an apportionment of the expense, which was, on November 14, 1882, confirmed by the common council as required by the charter.
    In proceedings instituted by the objecting property owners to review by certiorari the proceedings of the board of contract and of the common council, to which the contractor Reilly was made a party, an order was made at General Term vacating the assessment, and holding that the certificate did not conclude the boai’d of contract as to the performance of the work, or prevent it from inquiring as to whether it had in fact been actually completed as required by the contract. Thereafter, on the application of the contractor, the board of contract, after notice to the contractor to be present, met, and after hearing the parties objecting and the contractor, and receiving evidence offered by them, decided that the work had not been completed as required by the contract, and that until it was so completed the board could make no apportionment.
    Thereafter, in January, 1885, the contractor, having demanded of the city payment of the amount alleged to be due to him under the contract, brought this action to recover the same, alleging that the board of contract unreasonably delayed and refused to make any proper assessment or to take any steps to enforce the collection of the money due.
    Upon the trial the plaintiff offered to prove that he had fully complied with all the terms of his contract in all its parts. The - court refused to receive the evidence and directed a nonsuit upon the ground that as the first assessment had been vacated, and the board of contract, after hearing all the parties in interest, had refused to make a second assessment upon the ground that the contract had not been performed, the remedy of the contractor was to review this decision of the board by certiorari, and that no laches on the part of the city authorities was shown.

      Held., that the decision in the certiorari proceedings did not affect the certificate of the street commissioner as to the completion of the work, except, as it held, that such certificate was not conclusive, as to that fact, as against the city authorities.
    That the refusal of the board of contract and apportionment to make a new assessment, upon the ground that the work had not been completed, was not conclusive, as to that fact, upon the contractor, although he was present and produced evidence on his own behalf at the hearing.
    That he was not required to review the action of the board of contract by mandamus or oertiorari before bringing this action, and that, upon the trial of this action, he was entitled to give evidence to show that he had in fact fully complied with the terms of the contract and to have that question submitted to a jury.
    That the judgment should be set aside and a new trial granted. (Learned, P. J., dissenting.)
    Appeal by plaintiff from a judgment, entered upon an order dismissing the complaint made at the Albany Circuit.

      The action was brought against the city of Albany for neglecting and refusing to make an assessment and apportionment of the expense of certain work done by Thomas Reilly, a contractor, plaintiff’s assignor.
    The facts proved on the trial showed, that Thomas Reilly entered into a contract with the defendant on June 27,1881, to grade, flag and pave Knox street, between Madison avenue and Morris street, in the city of Albany. Claiming the work to have been completed, he received the certificate of the street commissioner of said city, dated August 2, 1882, certifying that the contract had been fully completed and performed.
    The board of contract and apportionment of said city of Albany, to whom said certificate was presented, took steps toward the apportionment and assessment of the cost of the work, and on the 5th day of August, 1882, a notice was published in the official newspapers in reference to the same; and at a meeting of said board, held on the 22d day of August, 1882, a remonstrance was presented, signed by a number of owners of property fronting upon the street to be improved. Said remonstrance asserted that the contract had not been completed in accordance with the requirements thereof and of the specifications; and in detail pointed out the particulars in which ■the contractor had failed thus to perform his work, and furnish the proper and required material. Notwithstanding this remonstrance no hearing was had, but the board of contract proceeded to apportion the same. The amount was $7,975.37. Thereafter said apportionment having been transmitted to the common council of the city of Albany, at a meeting held on November 14,1882, the same was ratified and approved. Soon thereafter proceedings, by certiorari, were instituted, by and on behalf of the remonstrating property owners, to restrain the board of contract and apportionment and the common council of the city of Albany, from enforcing the assessment and apportionment above referred to, and to review their action in the premises.
    Returns to such certiorari were made by said boards respectively to the General Term, and thereafter Thomas Reilly, the contractor, was, upon motion, and against his objection, brought into and made a party to said proceedings. The General Term vacated and set aside the assessment. In that case, in which 'all tbe parties to this action were parties, it was determined by tbe General Term that the board of contract and apportionment of the said city of Albany was not bound by the certificate of the street commissioner of said city that the contract had been fully completed according to its terms and the specifications. After this determination the contractor, Thomas Reilly, requested in writing that the board of contract and apportionment should assess and apportion the expense of doing the work. On the same day that the communication was received by the board, August 4, 1884, the board adopted a resolution providing for a hearing of the subject-matter before it. At a meeting of said board, held on the 7th day of August, 1884, this matter was discussed, the property owners and the contractor both being represented by counsel.
    On August, 8, 1884, a majority of the members of the board visited and inspected the work. On the 18th day of August, 1884, at a meeting of the board, the following was adopted:

      “ Resolved, That the board desires to hear tbe owners of property on Knox street, in opposition to the pavement, and to examine them under oath as to the sufficiency and quality of the work done by Mr. Reilly on that street, and that for the purpose of such hearing and examination a meeting of this board, to which the clerk is directed to invite Mi*. Reilly to be present, is hereby called for Thursday evening next, at eight o’clock, in the mayor’s office, in the city hall.”
    On the 1st of September, 1884, at a meeting of the said board, the matter of the Knox street pavement, assessment and apportionment was taken up. The persons assessed for the work by the previous assessment were represented by counsel, as were also the contractor. Witnesses were called by each of the parties and an examination of the matter took place, occupying a week . On the 6th of October, 1884, at a meeting of the board it adopted a preamble and resolutions, of which the latter were as follows
    “ Resolved, That it is the opinion and judgment of the board that said work has not been performed, nor materials furnished in accordance with the contract and specification.

      “Resolved, That the acceptance of the work by the street commissioner be and the same is hereby revoked and rescinded, and all acts by or on behalf of this board, or any officer or member of the same, touching the acceptance of said work or towards the apportionment or assessment of the same, be and the same is hereby revoked and rescinded, and the matter of the performance of said contract and work thereunder be as if the same had never been accepted by the street commissioner, or by the board or any officer thereof.”
    No attempt was made by the contractor, or any other person, to review or in any wise to interfere with this determination of the board of contract and apportionment. The said Thomas Reilly, the contractor, assigned his claim to the plaintiff and this action was commenced.
    The plaintiff alleges, that it became the duty of the defendant, its officers and agents, to forthwith cause a new apportionment and assessment to be made and levied for the expense of said work, but that although requested so to do by said Thomas Reilly and the plaintiff, the said defendant and its board of contract and apportionment have neglected and refused to do so, and the said defendant and its said board of contract and apportionment have unreasonably delayed, neglected and refused to make any proper assessment and apportionment of the expense of said work, or to take any steps to enforce the collection of the expense thereof from persons benefited thereby, in gross violation of their duty in the premises and to the great damage of plaintiff, and .claims damages against the defendant for $7,926.51, with interest from January 1, 1883.

      A. Hamilton, for the appellant.

      S. W. Rosendale, for the respondent.
   Bockes, J.:

By the decision in the certiorari proceedings the action of the city authorities in making provision for payment to the contractor for the work was rescinded and annulled. This decision did not touch the certificate made by the street commissioner and filed with the chamberlain and furnished to the board of contract and apportionment, certifying to the completion of the work, except as it was held that such certificate was not conclusive of what it declared against the city authorities, nor bar the relators from their review •of the proceedings brought up by the suit. The decision left the case open following the furnishing and filing of the certificate of the street commissioner, the same as if no apportionment and assessment by the board of contract, or confirmation thereof by the common council, had previously been made. Now it was the duty •of the city authorities again to take action looking to the payment to the contractor for the work certified by the street commissioner to have been duly performed, and such action was taken by the board of contract and apportionment entering upon an investigation as to the truth of the street commissioner’s certificate; that is, whether the contractor had in fact fully performed his contract according to its terms. A conclusion was reached that the work had not been performed nor materials furnished in accordance with its terms and provisions. This conclusion was entered by resolution in the records ■of the proceedings of the board; and on this conclusion the city ■authorities rested and refused to take any further action looking to the payment and satisfaction of the contractor’s claim. At the trial •of this action, brought to recover for the work on an allegation that the contract had in fact been fully performed, such conclusion, and the refusal of the city authorities further to proceed in the matter, were held to bar the right of recovery, and the complaint was dismissed on such ground. We are of the opinion that in this ruling there was error. Admitting that it was proper for the members of the board of contract and apportionment, in the exercise of their right as public officers, to examine into the subject of the due performance of the contract by the contractor before making provision for payment to him (notwithstanding the certificate of due performance by the street, commissioner), we are cited to .no provision of law making such inquiry judicial in character, and, therefore, conclusive in its result. In this respect such voluntary examination is unlike those cases where public officers or bodies are given jurisdiction and vested by law with power and discretion to determine matters confided to them, as in the auditing of accounts, and apportioning of expenses and making assessments, and the like. Such duties, when imposed upon public officers or bodies, are judicial in character, or quasi so, and their action, in the absence of fraud or collusion, concludes all parties concerned; nor can such action be overruled, annulled or reversed, save by certiorari or on appeal.

But it is urged that the contractor is estopped from disputing the conclusion reached and declared by the board of contract, because he participated in the examination instituted by it. He was not, however, a party t& the proceeding in any legal sense. There was no provision of law by which he could be brought in and compelled there to litigate his rights; nor did he give his consent in any way to make the examination and conclusion binding upon him as an arbitration. The board understood this otherwise. He came in on mere invitation. The resolution of the board in that respect was a direction to the clerk “ to invite Mr. Reilly to be present.” This was a courtesy extended to the contractor, inasmuch as the board were about to consider a matter in which he was interested. But it is said he appeared and put in proof before the board in his own behalf. This would not bind him to the conclusion of the board in the absence of any provision of law to that effect, and his action in that regard may well have been induced, and probably was induced by the hope that he could there end the matter by showing the truth of the case to the satisfaction of the board. Manifestly he cannot be concluded by the action of the board sitting in judgment in its own case, in effect, unless there be some express provision of law binding him to that result. We are not cited to such provision. In this connection see Duplex Safety Boiler Company v. Garden (101 N. Y., 387; S. C., 4 Eastern R., 180).

An examination by the board of contract to find out whether contracts with the city have been performed is certainly commendable, and this even if the street commissioner has given his certificate of complete performance. It affords an additional check against improvident • action. Action without knowledge as to expenses claimed to have been incurred and may well be pursued, as a matter of precaution against fraud, before making payment or providing therefor. The city is, nevertheless, bound to a correct conclusion on the part of its officers on the question of fact, whether the contract has or has not been performed. If found that the work is satisfactory, payment will be provided for. If otherwise, the city authorities will rest upon their conclusion, and are bound to make it good against the claim and proof to the contrary, when challenged by the contractor, by a suit involving the question of fact. So here the city refuses to pay the contractor bis claim and refuses to take any step, sucb as is authorized by law in cases of just claims, towards raising the money to satisfy it, resting upon the alleged fact that the claim is groundless by reason of the non-performance of the contract. Thus this Ss made a question of fact on which the right of the contractor is made to depend, and is open to proof, in the action brought by him to substantiate his claim, and the complaint was dismissed, notwithstanding the offer of proof that the contract had been performed in all its parts, and the concession that the city authorities refused to take any steps towards payment of the contract-price, as in the contract stipulated.

It is also urged that this subject — the performance or nonperformance of the contract — was determined by adjudication in favor of the city in the certiorari proceedings, hence that the contractor is concluded on that question having been a party thereto. But this is a mistaken position. The decision in those proceedings went no further than to vacate and amend the apportionment and assessment of the board of contract, and the confirmation thereof by the common council, judicial or quasi judicial, acts brought under review thereby. As stated in the opinion of the court, it was the regularity and sufficiency of the apportionment and assessment that was then brought under examination. And it was then further remarked, as follows: “ The relator contends that the judgment to be given by this court should be final and conclusive upon Reilly, and absolutely determine his rights. This cannot be done. We review only the assessment made. If illegal, it must be set aside.” And, further, this will not “ prevent, under .proper circumstances, the bringing of an action by Reilly against the city for his pay, upon his claim that he has fully and in all things performed his contract. We cannot, in this collateral way, deprive Reilly of his constitutional right to try the question of his performance, and his right to payment therefor. All we can here decide is that he shall not demand or receive payment under the invalid and illegal proceedings of the board of contract, and confirmation thereof by the common council. Those proceedings shall be wiped from the recoi’ds and he, being a party, shall be bound by our action in that respect.” These remarks present the law on the subject here under examination, and show that this action is not barred by the adjudication in these proceedings, as regards the question of fact whether the contract has or has not been performed.

It seems that the dismissal of the complaint was directed partly, if not entirely, upon the ground that the contract was entered into in view of the provisions of the city charter, as to the mode in which payment to contractors was to be made; that here, according to a provision in the contract, payment could not be required, nor was the contract-price to be deemed due, until the lapse of thirty days after the apportionment and assessment of the expense of the work had been duly approved by the common council. True, but the contract was also made with reference to the payment of the contract-price, in. case of its due performance by the contractor (Duplex S. B. Co. v. Garden, above cited); and the action is based upon the alleged neglect and refusal of the city authorities to perform the statutory obligations devolving upon them, which would have produced the means of payment, had they been observed. It is charged that the city had failed and neglected to do its duty by the contractor. This, as is claimed, gave the right of action. (Hunt v. The City of Utica, 18 N. Y., 442; Baker v. The City of Utica, 19 id., 326; Beard v. The City of Brooklyn, 31 Barb., 142.) If, then, it be true, as a matter of -fact, that the contract was fully and completely performed in all respects, as stated in the certificate of the street commissioner, and as was offered to be proved, the city authorities were in default in not making pi-ovision for the payment of the money due under' it, and can only justify their neglect and refusal to proceed to raise the money, by the conclusion of the board of contract and apportionment, that the contract had not been performed. And this brings us back to the question whether the contractor was concluded and estopped from showing the truth by such determination.

Our conclusion, above stated, is that he was not so bound and estopped. Without discussing the question whether relief might not have been obtained by certiorari or mandamus, we are of the opinion that a suit at law, on the facts here presented, was the proper and appropriate remedy to pursue (see cases above cited), and it may be well questioned whether either of those proceedings, if admissible, could have been entirely efficacious in affording the relief sought for.

We are of the opinion that dismissal of the complaint was erroneous and that there should be a new trial.

Landon, J.:

The plaintiff was nonsuited. He had made a prima, facie case to the effect, first, that he had performed the work according to the contract; second, that he had obtained as the contract required the proper certificate from the street commissioner; third, that the defendant through its officers, charged with the function of performance, deliberately refused to perform the acts precedent and requisite to enable him to get his pay. The answer is that these officials have decided that he did not do his work according to his-contract, and they thereupon refused to do the precedent and requisite acts. If the plaintiff is bound by the judgment of these officials the nonsuit was right; if not it was wrong. I think he was not bound. The plaintiff was one party to the contract, the city the other. They dealt at arms length with each other, and each side is so far interested as to be disqualified to pronounce final judgment upon the claim of the other. They have reached that stage in this business where an impartial tribunal is necessary. The plaintiff appealed to a jury of his country, and he was dismissed because it was thought that he was bound by the judgment of his adversary. When a party claims to be the creditor of a city he must, in the first instance, permit the city to examine and satisfy the demand according to the methods prescribed by its charter. This is for the-protection of the city. JBut when that opportunity has been fully accorded, and the claim deliberately repudiated or neglected, the claimant is not bound by the adverse action. He may then appeal to the courts and have his case there decided in a constitutional way. The cases cited by my brother BocKES sustain this view; others may be added. (Buck v. City of Lockport, 6 Lans., 251; Ganson v. City of Buffalo, 1 Keyes, 457; Cumming v. Mayor, 11 Paige, 596; Bowery Bank v. Mayor, 63 N. Y., 336; Sage v. City of Brooklyn, 89 id., 189; Moore v. Mayor of New York, 73 id., 238.) The contrary doctrine may obtain in cases against boards of supervisors when these officers do not act for their county as a corporation, but as officers of the State for the political division of their county; the State cannot be sued, nor a mere political division of it. But a city is a corporatiotí, and is sued as a corporation, and it shocks tbe sense of justice that it should in cases of dispute be the final judge of its liability.

"When the court set aside the apportionment and assessment made-by the board of contract and confirmed by the common council, it left the city free to consider this matter further. If it should decide to reject the claim of the plaintiff and stand upon the ground that he had not performed his contract, the court gave to the city the privilege to insist that the plaintiff should satisfy a jury that he had performed it before it should respond.

I fully concur with my brother Bocees.

Leaened, P. J., dissented.

Judgment reversed, new trial granted, costs to abide the event*


author: Landon, J.:

text:
    WILLIAM N. JOHNSTON, Respondent, v. SPENCER TRASK and Others, Appellants.

      Sale of bonds under an agreement of the vendor to repurchase — when the latter agreement is not within the statute of frauds — what mil excuse delag in tendering the-bonds — authority of one gartnertobindthefvt'mbysuch a contract for repurchase.

    On January 18, 1882, the plaintiff entered into a contract with one Graves, the-then managing partner of the defendants’ firm, by which it was agreed that, the firm should buy for the plaintiff certain railroad bonds at the lowest attainable price at a commission of one-third of one per cent upon the purchase-price, and if at any time he did not want to hold them any longer the defendants-would take them off his hands at what they cost him. The purchase was made and the plaintiff paid to the defendants their commission, and thereafter, by installments, the whole amount of the purchase-money. The bonds having fallen in price, and the defendants having refused to accept them when tendered, the plaintiff brought this action to recover the amount they had cost him.

      Held, that he was entitled to recover; that the defendants could not claim that their agreement to repurchase was within the statute of frauds, as the plaintiff' bought the bonds and the option as one entire purchase, and upon payment of the amount due the contract became fully executed, leaving nothing more to-be done to complete his title to both.
    After the purchase of the bonds their market-price declined to the knowledge of the plaintiff, who spoke to Graves about them, who advised him to hold themas tkey would go up again; pursuant to wliicli advice the plaintiff lield them until April 30, 1884, when he tendered them to the defendants.

      Held, that the defendants could not, under the circumstances, accuse him of laches.

      Held, further, that in the absence of proof that the act of Graves was in excess of his authority, the court could not hold that it was unauthorized.
    Appeal from a judgment in favor of the plaintiff for $5,452.94, upon a verdict directed by the court at the Montgomery Circuit.
    The defendants were partners, doing business as bankers and brokers. On the 18th of January, 1882, the plaintiff was in defendants’ place of business when the defendant Graves, who was their managing" partner, proposed to the plaintiff that he buy some income bonds of the Ohio Central Railroad Company, assuring him that they could be bought- at a low figure and would soon rise in value; the plaintiff stated that he had no knowledge of the bonds. Graves then made explanation to him concerning them, and proposed that they should buy such bonds for him at the lowest attainable price, at a commission of one-third of one per cent upon the purchase-price, and if at any time he did not want to hold them any longer, the defendants would take them off his hands at what they cost him. The plaintiff accepted this proposition and directed the defendants to purchase ten of the income bonds, upon the terms proposed. The defendants did so at the cost of $4,800 — their commission being twelve dollars and fifty cents. The plaintiff paid the commission and from time to time, in installments, the whole purchase-money. After the purchase of the bonds their market-price declined, fluctuating somewhat, falling however, until the 30th of April, 1884, when they had fallen to ten cents on the dollar. On that day the plaintiff tendered the bonds to the defendants and demanded that they repay him what they cost him, namely, $4,800. The defendants refused. While the plaintiff held the bonds and until he tendered them to defendants, he was advised of their market-price and frequently spoke to Graves about it. Graves advised him to hold them, that they would go up again.
    Upon the close of the plaintiff’s case, no evidence was offered by the defendants, and no request was made by them to submit any questions of fact to the jury.
    The defendants requested a direction that the jury render a verdict in their favor. This was refused, and an exception taken

      Horace M Smith, for the appellants.

      John M. Carroll, for the respondent.
   Landon, J.:

The defendants having made no request to submit any question of fact to the jury, and having moved for the direction of a verdict in their favor, they consented that the court should pass upon whatever disputable inference of fact might be deduced from the testimony. (Dillon v. Cockcroft, 90 N. Y., 649; Ormes v. Dauchy, 82 id., 443.)

They, therefore, cannot be heard to complain if the court, as will be presumed on appeal, resolved such inferences so as most strongly to support the verdict directed. (Cases, supra.) It may be assumed then, that the plaintiff when he accepted the defendants’ proposition accepted as an entirety both their proposal to purchase the bonds for him, and their proposal to take them off his hands at their cost at any time when he did not wish to hold them longer. He bought the bonds and the option as one purchase, and owned the option by the same right from purchase as he owned the bonds. (Fitzpatrick v. Woodruff, 96 N. Y., 561; Wooster v. Sage, 67 id., 67; Allen v. Eiqhmie, 14 Hun, 559; S. C., 79 N. Y., 632.)

The objection of the defendants that their agreement to purchase the bonds from the plaintiff was within the statute of frauds because not in writing, rests upon an assumption contrary to the presumed finding of fact; that this was an independent contract separately made. But when the plaintiff bought and paid for his option, -it was his by an executed, not an executory purchase, and nothing remained to be done to complete luís title to it. (Cases, supra.)

The plaintiff, therefore, had the right to use his option to the extent of the privilege given by it. That privilege was to use it within a reasonable time. (Same cases.)

The defendants urge that he did not so use it. He waited from January, 1882, until April, 1884, with full knowledge of the depreciation in the price of the bonds. This. delay, upon a constantly falling market, would no doubt be held unreasonable, and a waiver of the option, if the defendants themselves had not been instrumental in causing it. But to plaintiff’s repeated references to the depreciation in price, the defendants, through Graves, advised him to bold on to tbe bonds and encouraged him to do so bj predicting better prices. Tiie defendants ought not to be heard to complain of a delay which they promoted; they were parties to it, and the trial court might well find that under such circumstances it was not unreasonable as to them. (Fitzpatrick v. Woodruff¡ Wooster v. Sage, supra.)

The defendants further urge that Graves, then managing partner in their business as brokers, had no authority to bind them by his contract giving the plaintiff this option. What kind of concurrent or optional contracts the defendants might think it expedient to make to stimulate their business, as brokers, was a question for them to determine. This contract does not seem to be so obviously apart from their ostensible business as to put a customer upon inquiry as to the managing partner’s authority to make it; and in the absence of proof of the fact that it was in excess of his authority, we cannot, from the mere fact that the event showed it to be unwise, hold that it was also unauthorized.

The judgment should be affirmed, with costs.

Learned, P. J., and Booees, J., concurred.

Judgment affirmed, with costs.


author:
Landon, J.:
      Learned, P. J.:

text:
    HANNAH M. BROWN, Appellant, v. ADELBERT BROWN, Respondent.

      Sight of a person to hold one, assuming to act as his agent, Halle for moneys received from, a debtor of such person.

    On August 27, 1877, while the plaintiff and defendant were living together as husband and wife, the defendant deposited in a savings bank $1,000 to the credit of the plaintiff, but with the understanding with the officer of the hank that the sum so deposited should be payable to his order. Thereafter the defendant gave to the plaintiff the pass-book with intent to transfer and assign to her the indebtedness of said bank on account of such deposit, and all control over it. After the book had remained in the plaintiff’s possession for a long time the defendant took it from her by force and against her will. Subsequently the parties separated and did not live together. After the bank had been notified by the plaintiff that she was the owner of the book and money, and had refused to pay it to the plaintiff when demanded, and after it had been forbidden to pay it to the defendant, it paid the amount to the defendant on his demand, and on the production and surrender of the pass-hoolr.
    Tn this action, brought by the plaintiff against the defendant to recover the amount of the said deposit:

      Held, that as the defendant could not, in the absence of any title from the plaintiff, lawfully obtain the money, except as her agent, he could not, with the proceeds in his possession, deny that he had obtained them in the only manner in which he could have lawfully obtained them, that is, as her agent, and that the plaintiff was entitled, if she so elected, to hold him liable therefor as her trustee ex maleficio. (Landon and Bocees, JJ.)
    That the defendant, in taking away the plaintiff’s property by force, committed a tort for which he became and still remains liable, and that as the amount collected by him was the amount of the indebtedness expressed in the book, it was the measure of damage which the plaintiff was entitled to recover. (Learned, P. J.)
    Appeal from a judgment in favor of tbe defendant, entered in Columbia county upon tbe report of a referee.
    Tbis case came before tbe General Term upon tbe judgment-roll and without tbe evidence. Tbe referee reported as follows:

      First. That prior to and on and for some time after August 27, 1877, tbe plaintiff and defendant lived together as husband and wife at South Pownal, Vermont.

      Second. That while so living together tbe plaintiff was called by tbe defendant Annie Brown.

      Third. That on tbe 27th day of August, 1877, tbe defendant deposited in tbe Hoosac Savings Bank of North Adams, in tbe State of Massachusetts, $ 1,000 to tbe credit of Annie Brown, but with tbe understanding with the officers of tbe bank, that tbe sum so deposited should be payable to tbe order of himself.

      Fourth. That shortly thereafter the defendant gave to tbe plaintiff tbe bank-book issued by said bank and representing such deposit, with intent to transfer and assign to her tbe indebtedness of said bank on account of such deposit and all control over tbe same.

      Fifth. That said book remained in tbe possession of tbe plaintiff, and was held by her as her own until a long time thereafter, when tbe defendant took tbe same from tbe plaintiff by force and against her will.

      Sixth. That tbe plaintiff and defendant thereupon separated and did not afterwards live together as husband and wife.

      Seventh. That tbe plaintiff notified tbe officers of said bank that she was tbe owner of said book and the moneys represented thereby, and demanded payment of the same to herself, which was refused, whereupon she forbade payment of the same to the defendant.

      Eighth. That afterwards said defendant took said book to said bank and surrendered the said book and drew all the moneys and interest due upon the account represented by said book, amounting in the aggregate to $1,077, and took and kept the same to his own use.
    As a conclusion of law I find that the defendant is entitled to judgment for his costs therein, which I accordingly direct. The referee also found, in response to requests of the plaintiff: That the defendant made a valid gift to plaintiff of the book and of the title to the money represented by it. That the bank, upon payment to defendant, retained the book. The referee stated in his opinion, and the fact is implied in the referee’s findings upon other requests of the plaintiff, that the rules of the bank required the production of the book as a condition of payment.

      W. 11. Silvernail, for the appellant.

      H. A. Johnson, for the respondent. .
   Landon, J.:

This case was decided in favor of the defendant by the application of the well settled rule, that where two rival claimants demand payment, each in his own right, of the debt which the debtor owes to one of them only, if the debtor pays the wrong claimant, the debt due to the rightful creditor is not thereby affected, and he acquires no title to recover the money of the party who wrongfully claimed and received it. (Patrick v. Metcalf, 37 N. Y., 332; Butterworth v. Gould, 41 id., 450.) But this rule rests upon the basis that the wrongful claimant obtains the money upon his own independent claim; that in using his own he does not prejudice his competitors; that he does not exercise any right or title of which he has wrongfully divested his competitor; that he is not assuming any agency for him; that he is not in privity with him. (Carver v. Creque, 48 N. Y., 385; Peckham v. Van Wagenen, 83 id., 40; Hathaway v. Town of Cincinnatus, 62 id., 434; Bradley v. Root, 5 Paige, 632.)

Here the defendant bad made an absolute gift of tbe bank-book, and of the title to demand aDd receive the money represented by it, to the plaintiff. When the defendant, by force and against the will of the plaintiff, took the bank-book from her, he knew that he had no title to it or the money represented by it. Whatever claim he might assert to the money he well knew rested upon his fraud, if not upon his crime. But he thus obtained the physical power and apparent authority to represent the plaintiff in the presentation of the book to the bank, and by the act of presenting the book he did represent that whatever title or authority she had in the matter was exercisable by him, and he thus obtained the money.

He can take no advantage from his own wrong, and since he could not, in the absence of any title from the plaintiff, lawfully, as against her, obtain the money except as her agent, he may not, with the proceeds in his pocket, deny that he obtained them in the only manner in which he could lawfully obtain them.

It is probable the plaintiff could have maintained an action against the bank, since the bank had notice of her rights. But it was open to the plaintiff to elect to adopt the acts of the defendant or repudiate them. He shall not be heard to plead his own turpitude, and is therefore estopped to deny that he did not assume to act as the agent of the plaintiff. She may waive the tort, adopt his acts, and compel him to restore their fruits.

It comes to the same result if we regard the defendant as trustee ex maleficio. He knew that by his gift the book and the money it represented, and the rights it conferred, were the plaintiff’s. He took the book by force, exercised her rights, and obtained the money. It was his duty to do nothing with her property and her rights for his own advantage, and he is, at her election, her trustee ex maleficio of the proceeds of his acts of usurpation. He held the proceeds of the book by same title that he held the book, and as he had no title to the book he had none to its proceeds, and must account to the true owner. (Comstock v. Hier, 73 N. Y., 269.)

The judgment should'be reversed, new trial granted, referee discharged, costs to abide event.

Bockes, J., concurred.

Learned, P. J.:

I concur in tbis result on tbe ground that the defendant, by taking away plaintiff’s property by force, committed a tort (trespass or trover) for which he became liable. He remains liable still; and the amount collected by him being the amount of the indebtedness expressed in the book, is the measure of the damages to which she is entitled.

Judgment reversed, new trial granted, cost? to abide event. Referee discharged.


text:
    JAY O. BUTTON, Appellant, v. SCHUYLER’S STEAM TOW-BOAT LINE, Respondent.

      Amendment to pleadings — a complaint cannot he amended so as to substantially alter the claim— nor where there is a total failure to prove the case cha/nged — Code of OMl Procedure, secs. 641, 723.
    The complaint alleged that the defendant was a common carrier; that for hire it undertook to tow the plaintiff's canal boat from Albany to New York, and that in assuming to perform the agreement it negligently injured the boat to the amount of $150. Upon the trial the referee found that the defendant was not a common carrier, and that the canal boat had been injured by the perils of navigation but not by the negligence of the defendant. He also found that by the agreement the towing was to be done at the plaintiff’s risk, but that the defendant agreed that the plaintiff's boat should occupy a certain position in the fleet of boats towed; that it was placed by the defendant in-a different position, and that if it had been placed in the agreed position it would have escaped injury.
    The referee held that no recovery could be had upon the complaint in this action, and that he had no power to allow it to be amended so as to conform to the proofs.

      Held, that his rulings should be affirmed.
    Appeal from a judgment dismissing the complaint, with costs, entered in Albany county upon the report of a referee.

      J. H. Southworth, for the appellant.

      W. Frothingham, for the respondent.
   Landon, J.:

The complaint charged that the defendant was a common carrier, and for hire undertook to tow the plaintiff’s canal boat from Albany to New York. Tbe complaint charges no breach of this contract, but does charge that the defendant, in the assumed performance of it, negligently injured the canal boat to plaintiff’s damage $150.

The answer denied that defendant was a common carrier; denied negligence, and alleged that the canal boat was taken in tow by defendant under a contract, which provided that the towing should be done at the risk of the plaintiff. The referee correctly found that the defendant was not a common carrier. ( Wells v. Steam Navigation Co., 2 N. Y., 204) He found that the plaintiff’s canal boat had been injured by the perils of navigation to the amount of $150, but not by the negligence of the defendant, and he directed judgment for the defendant. The referee also found that there was a contract between the plaintiff and defendant whereby, in addition to the agreement that the towing should be done at the plaintiff’s risk, it was further agreed that the plaintiff’s canal boat should occupy a certain position in the fleet of boats towed; that the defendant caused it to be placed in a different position, and that if the boat had occupied the agreed position it would have escaped injury; but the referee held that upon the complaint the plaintiff could not recover in this action. The plaintiff, after the testimony was closed, moved to be permitted to amend his complaint so as to conform to the proofs upon which these findings were subsequently made, but the referee denied the motion for want of power.

The plaintiff now urges that he was entitled to amend, and also to judgment upon the facts found. The referee had the power to grant the amendment if it was a proper case. (Code, § 1018.) An amendment may be permitted where it does not change, substantially, the claim or defense” (Code, § 723), and is encouraged where the difference between the allegations of the pleadings and the proofs is an immaterial variance. (Secs. 539, 540.) But section 341 provides that where the allegation to which the proof is directed is unproved, not in some particular or particulars only, but in its entire scope and meaning, it is not a case of variance, * * * but a failure of proof.”

Here the plaintiff’s allegation as to which his proof should have been directed, was the negligence charged upon the defendant. The referee found the defendant was ■ not guilty of negligence. The allegation was unproved, and the case fell exactly under the condemnation of the section quoted. To have amended the complaint by adding the contract would not have touched the allegation of negligence, or aided the plaintiff in establishing it. There was a failure of proof which his contract could not reach. Having failed in the case charged, it was"the duty of the referee so to declare and not permit the plaintiff to “ change substantially the claim,” and allow him to recover upon a cause of action for which he had entered no suit. (Barnes v. Quigley, 59 N. Y., 265; Ross v. Mather, 51 id.,, 108; Degraw v. Elmore, 50 id., 1.)

• There are many cases cited by the plaintiff, but we do not think any of them hold a different doctrine. It may be difficult sometimes clearly to perceive that the amendment proposed does change substantially tlxe claim; and that the difference between the allegations of the complaint and the proofs results in a failure of proof, and hence the application of the rules may seem to be different in different cases. But the rules remain unchanged, and in this case were properly applied.

Judgment affirmed, with costs.

Learned, P. J., and Bockes, J., concurred.

Judgment affirmed, with costs.


author: Landon, J.: Learned, P. J.:

text:
    MARY C. JENKINS, as Administratrix, etc., of SAMUEL JENKINS, Deceased, Respondent, v. THE CITY OF HUDSON, Appellant.
    ' Jfividen.ee — the testimony of a witness cannot he corroborated by proof of Ms own previous unsworn statements — an exception to this rule.

    While the plaintiff's ’intestate was riding upon a load of hay, through one of the-streets in the city of Hudson, the wagon was overturned and the plaintiff’s intestate was killed. In this action the plaintiff sought to recover the damages occasioned by the death of her intestate, upon the ground that the load was overturned in consequence of a hole in the street, which the defendant negligently suffered to exist there. The defendant claimed that the hay was improperly loaded and that this caused the accident. Upon the trial one Fleming, a son-in-law of the deceased, who had assisted in loading the hay and was riding with the deceased at the time of the accident, was called by ■the plaintiff and testified that the hay was properly loaded, and was in, an upright position when the hole was reached. On his cross-examination he was asked if he had not stated to certain persons, in the presence of others who were named, on the evening of the accident, that the load wa3 one sided and out of a perpendicular when they started and along the road, and that they had keen warned by several persons that it would go over. He having denied that he made these statements, several of the persons named were called and testified that he did make them. To sustain Fleming’s denial the plaintiff was allowed to call several witnesses, who testified that at about the same time they heard him make statements in accord with his testimony as given on the direct-examination.

      Meld, that it was error to admit such evidence.

      It seems, that if the defendant had sought to impeach the witness, or to impair his credibility by showing that, since the accident, his relations to the subject-matter of the action or to the plaintiff had so changed as to make it for his interest to testify falsely, it would have been competent for the plaintiff to prove that before this change occurred the witness gave the same account as he gave upon the trial. (Per Landon, J.; Learned, P. J., not concurring.)
    The plaintiff sought to bring the testimony admitted within this exception, by showing that the witness was the son-in-law of Jenkins; that Jenkins lived three days after the accident, and that during the lifetime of Jenkins the witness had no pecuniary interest in the matter, and that by Jenkins’ death his daughter, the witness’ wife, as one of his next of kin, became interested in the cause of action.

      Held, that as these facts were proved by the plaintiff in the first instance, the proof of the statements made by the witness prior to, and to the same effect as his testimony given on, the trial responded to no issue presented by any proof on the part of the defendant, but presented the naked case of an attempt by the plaintiff to corroborate the testimony of his own witness by proof of the previous unsworn declarations of such witness.
    Appeal from a judgment in favor of the plaintiff, entered upon tbe verdict of a jury at the Columbia Circuit, and from an order denying a motion for a new trial made upon tlie minutes of the justice before whom the action was tried.

      C. A. Baurhyte and C. P. Collier, for the appellant.

      Andrews & Edwards, for the respondent.
   Landon, J.:

The plaintiff’s intestate, Samuel Jenldns, was riding upon a load of hay in Green street, in the city of Hudson, when the wagon and load overturned and Jenkins was thrown upon the pavement, receiving injiiries from which he died three days later The plaintiff charges that the load was overturned in consequence of a lióle in the street, which the defendant negligently suffered to exist there. One Fleming, the son-in-law of Jenkins, had helped load the hay, and he rode with Jenkins upon the load from the latter’s farm to the place of the accident, a distance of two or three miles. The defendant alleged that the hay was improperly loaded, and was not in an upright position when Green street was reached, and that this fact caused, or contributed to cause, the accident. Fleming was a witness for the plaintiff. He testified, in substance, that the hay had been properly loaded and was in an upright position when the hole was reached, and' was by it so thrown out of perpendicular as to upset shortly after the hole was passed. On his cross-examination he was asked if he had not stated to certain persons, and in the presence of others named, on the evening of the accident, that the load was one-sided and out of a perpendicular when they started, and along the road, and that they had been warned by several persons that it would go over. He denied that he had made these statements. Several of these persons were called and testified that he did, at the times and places given, make them. To sustain him the plaintiff was permitted to call several witnesses, who testified that about the same time they heard him make statements in accord with his testimony on the direct-examination. The defendant ■duly objected and excepted. Our conclusion is that the testimony "was inadmissible. The defendant had the right, for the purpose of impeaching the witness, to prove that he made statements out of court inconsistent with his testimony. The issue thereby tendered by the defendant was, whether in fact the defendant had made out of court such inconsistent statements. He had or he had not. The issue was not met by ignoring the facts proved by defendant, and by tendering proof that he had made statements corresponding with his testimony. This was an issue not raised by defendant. It might well be that he had made, out of court, both kinds of statements. (Robb v. Hackley, 23 Wend., 50 ; Dudley v. Bolles, 24 id., 465; Smith v. Stickney, 17 Barb., 489; Commonwealth v. Jenkins, 10 Gray, 485.)

There is a rule with which the rule above stated seems to have been confounded upon this trial. If the defendant had sought to impeach the witness or to impair his credibility by showing that, since the accident, his relations to the subject-matter or to the plaintiff bad so changed as to make it for bis interest to falsify his testimony, it would have been competent for the plaintiff to prove that before this change occurred, the witness gave the same account as now. In such case the defendant, by his evidence, starts the question or tenders the issue, namely: Has the change in the witness’ relations to the plaintiff or to the subject-matter induced him to change his statement in his testimony from the truth? Clearly this is answered by proving that there is no change of statement, and this is done by showing what his statements were before the change in his relations. If his statements have always been consistent the question started by defendant is met and answered. (Herrick v. Smith, 13 Hun, 446; Gilbert v. Sage, 57 N. Y., 639; cases, supra.)

In the instance last presented it will be observed that the defendant does not prove what the witness’ inconsistent declarations out of court were. He rests his impeachment upon showing the pressure of an interest arising after the cause of action arose. But it is conceivable that he may tender the double issue, namely, the wit-, ness has made statements out of court inconsistent with his testimony, and also has, since the event occurred upon which the action, rests, acquired such an interest or been so influenced as to induce him to testify as he now does. The plaintiff may be unable to answer the first issue and yet be able in some measure to answer the second, by proving that the witness, before he acquired the alleged interest, made the same statements as he has testified to.

The plaintiff in effect claims that this double issue was tendered, and therefore the testimony under consideration admissible. It does appear that the witness Fleming was the son-in-law of Jenkins, the deceased ; that J enkins lived three days after the accident; that during the lifetime of Jenkins, Fleming had no pecuniary interest in the matter; that by Jenkins’ death his daughter, Fleming’s wife, as one of his next of kin, became interested in this cause of action. But all these facts were proved by the plaintiff in the first instance, and as a part of his direct-examination of this witness. Whatever advantage, therefore, might be derived by the defendant from these facts, was the free gift of the plaintiff. The defendant did not take issue upon any of them. The defendant might fairly claim that upon the plaintiff’s own showing the witness testified under the influence of bis interest. The plaintiff, therefore, by proving that the witness made the same statements after the accident and before Jenkins died, as he now testified to, responded to no issue presented by any proof on the part of the defendant, but presented the naked case of corroborating the testimony of the witness by his unsworn declarations. The People v. Vane (12 Wend., 78), which held that where an accomplice was a witness for the people, it was competent for the people to repel the imputation which that fact implied against his veracity, by showing that immediately after the crime be had made the same statements as he had testified to, is distinctly repudiated by the subsequent cases.

Some dicta in Adams v. Greenwich Insurance Company (70 N. Y., 170); Hotchkiss v. Germania Insurance Company (5 Hun, 95); People v. Finnegan (1 Park C. R., 151), are cited by the plaintiff, but in none of these cases were the questions here presented involved. ”

The judgment must be reversed, a new trial granted, costs to abide the event.

Bockes, J., concurred.

Learned, P. J.:

I concur in holding the evidence to be inadmissible, but I am not willing to say that the rule admitting such so-called corroborating evidence in certain cases is well settled or sound. I think it would be dangerous.

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


text:
    ALEXANDER C. MORRISON, Appellant, v. ANNA HORROCKS and Others, Respondents.

      Compulsory reference — cannot he ordered when an issue of fraud is raised.

    The plaintiff, having acquired the individual interest of one Thompson in the firm property of Thompson & I-Iorrocks, brought this action to set aside as fraudulent a sale of the firm property, made by the sheriff to the defendant Warhurst, .under executions issued upon judgments recovered against the firm, for a sum less than sufficient to pay the firm debts.

      The complaint alleged that the price obtained upon the sale of the firm property to Warhurst was much less than its value, and was brought about by the fraudulent practices and representations of Warhurst, and that but for these the property would have realized enough to have resulted in a substantial advantage to the plaintiff, and prayed that the sale be declared void and an accounting be had.

      Held, that the substantial issue in the action was fraud, and that a compulsory reference ought not to be ordered.

      Camp v. Ingersoll (86 N. Y., 438) followed.-
    Appeal from an order entered in Albany county, referring this action to a referee, for trial and determination.

      E. F. Bullard, for the appellant.

      Doyle & Fitts and N. C. Moak, for the respondents.
   Landon, J.:

Plaintiffs assignor bought upon a sale had under an execution against George E. Thompson his individual interest in the firm property of Thompson & Horrocks, of which firm he was a member. Thereafter, upon a sale upon executions upon judgments against the firm, the firm property was sold to Warhurst for a sum less than sufficient to pay the firm debts. As a consequence, plaintiff’s assignor could take nothing under her previous purchase of George E. Thompson’s individual interest. The complaint charges that the price obtained upon the sale of the firm property to Warhurst was much less than the value of the property, and was brought about by the fraudulent practices and representations of Warhurst, and that bnt for these, the property would have realized enough to have' resulted in a substantial advantage to plaintiff’s assignor. The plaintiff asks to have the sale declared void, and that an accounting be made of the value of the property, adapted to the changes in its ownership since such purchase by Warhurst, which shall accomplish the same result as if the fraud had not been practiced.

Clearly the substantial issue is the fraud; the accounting is dependent upon the result of that issue, and will be wholly unnecessary unless the fraud be established. The accounting will be the means of measuring the sum total of the relief, if the right to it fib all be found to exist, but the difficult and substantial question is upon that right. Within the case of Camp v. Ingersoll (86 N. Y., 433) we think a compulsory reference ought not to have been directed.

The order should be reversed, with ten dollars costs and printing disbursements.

Bocees, P. J., and Parker, J., concurred.

Order reversed, with ten dollars costs and disbursements' for -printing.


author: Bockes, J.: Landon, J.: Learned, P. J.

text:
    LYDIA E. VANDEKAR, Respondent, v. JOHN C. REEVES, Appellant.

      Agreement for the surrender of a leasehold, term exceeding one year — not affected by the statute of frauds when it is surrendered by act or operation of law — 2 i?. 8. (m. p.), 134, sec. 6.
    On January 21,1880, tlie parties to this action executed a lease under seal by which the plaintiff leased to the defendant, for three years, from May 1, 1880, certain premises known as the Morgan House, the rent being payable monthly. The defendant entered into possession of the premises and there remained until April, 1882. In the latter part of March, 1883, the defendant entered into an oral agreement with one Powell, by which the latter purchased certain hotel furniture and the defendant’s interest in the lease, Powell agreeing to take the defendant’s place as plaintiff’s tenant, the plaintiff’s agent agreeing to look to Powell for the rent to become due from April 1, 1883, and to release the defendant from liability therefor. Powell entered into possession and there remained till some time in August when he moved out. He paid the rent for April, May and June. On September first the premises were rented to one Reed, who paid the rent thereafter falling due.
    In this action brought by the plaintiff to recover the rent due for July and August:

      Reid, that although the arrangement for the change of tenants was oral and related to a term exceeding one year in length, yet it operated, with the acts of the parties under it, to discharge the defendant from a claim for futura rent, as it constituted, in effect, a surrender of the remaining term “by act or operation of law.” (Per Bocees, J.; Learned, P. J., dissenting.)
    Where a surrender “ by act or operation of law ” is proved according to the rules of the common law, it is as effectual as a discharge of the lessee, as if no statute of frauds existed. (Per Bocees, J.)
    That the objection of the statute of frauds, even if good as an excuse for not entering upon the performance of the agreement, was not a valid objection after a part performance of it. (Per Landos, J.)

      Appeal from a judgment in favor of the plaintiff, -entered in Saratoga county upon the report of a referee.
    The plaintiff, on the 21st of January, 1880, by writing leased t<v defendant tbe hotel known as the Morgan House, in the village of Waterford, for three years, to commence May 1, 1880, rent to be paid monthly. Plaintiff went into possession under the lease. Afterward, and in the month of March, 1882, the defendant made-a verbal agreement for the sale to one Powell of some of the hotel furniture on the demised premises, and of defendant’s interest in and under the lease in question, which bargain was completed on the 1st of April, 1882, at which time defendant moved out and Powell moved into the premises and paid the price agreed upon for said purchase. The plaintiff consented to said sale and transfer and agreed to receive Powell as tenant under the lease in the place of defendant, and to look to Powell for the rent to become due under the lease from April 1, 1882, for the remainder of the term created by the lease to defendant, and to release the defendant from further liability under the lease. The defendant, under the agreements between himself and Powell, and between defendant and plaintiff, surrendered the possession of the demised premises to Powell on the 1st day of April, 1882, and since that time defendant has had nothing to do with the premises, and has not paid any rent therefor. Plaintiff collected from Powell the rent of the premises-in question from April 1 to July 1, 1882, except the fifty dollars which was expended in repairs as agreed. The rent for the months of July and August are not paid. On the 1st of September, 1882, Powell sold out his interest in the hotel and lease to Leonard B. Reed, who on that day went into possession, and thereafter paid the rent to plaintiff to the end of the term mentioned in the lease, May 1, 1883. This action was brought to recover the rent for July and August, 1882, for which plaintiff recovered judgment. The referee held that as the agreement to substitute Powell in place of defendant as tenant in the lease, and to release defendant from all liability under .the lease, rested in parol, the agreement was void.

      FAmoreawx c& Dalee, for the appellant.

      J. F. Crawford, for the respondent.
   Bockes, J.:

I am of tbe opinion that this case should be controlled in its disposition by Smith v. Niver (2 Barb., 180). The plaintiff consented to the change of tenancy from the defendant to Powell, and received rent from the substituted tenant; indeed the facts, as proved and found by the referee, put the case in a stronger light even, for it is proved and expressly found that the plaintiff agreed to receive Powell as tenant in the place of the defendant, and to look to the former for the rent to accrue after his entry, and to release the defendant from further liability under the lease, and it was under such arrangement that Powell went into possession and became plaintiff’s tenant, and under and pursuant to which rent was collected or received by the latter.

Although this arrangement was oral and related to a term exceeding one yeai’, to wit, for one year and one month, it operated, with the acts of the parties under it, to discharge the defendant from a claim for future rent, as was, in fact, expressly agreed. It was, in effect and in fact, a surrender of the remaining term “ by act or operation of law.” Such surrender was admissible under the statute of frauds (3 R. S. [7th ed.], 2326, § 6), inasmuch as a surrender “ by act or operation of law ” is expressly excepted from it. This exception left such surrender to remain as at common law. It is important, of course, that it be established, that the lessor gave assent to the termination of the lease as to the original lessee, and accepted the new party as tenant in his place. But such was just this case. In Smith v. Niver, Harris, J., says: “It is undoubtedly conclusively settled by authority that a second lease, to operate as an effectual surrender of the first, must itself be effectual to vest in the lessee the term it professes to convey, and must bind him to a'performance of its conditions on his part.” The learned judge was here speaking of the precise case stated by him, a case unaccompanied by acts of the parties, which, with the agreement, would carry with them an element of estoppel, for in the next sentence he adds: “ But it has never, I apprehend, been decided that a lessor who has consented to a change of tenancy, and permitted a change of occupation, and received rent from the new tenant as an original and not as a sub-tenant, can afterwards charge the original tenant for rent accruing during the occupation of the new tenant.” And, further, “ if the lessor, in fact, ■consent that the lessee shall cease to be liable and accepts a substituted tenant, the first tenant must be held to be discharged. The lessor has his remedy against the new tenant, and is estopped from, denying a legal surrender of the first lease f and he repudiates the •doctrine to the contrary of this, sought to be maintained on the strength of Schieffelin v. Carpenter (15 Wend., 400), as to which he says, if this case is to be regarded as an authority, therefor, “ I think it is in that respect wholly unsupported, either by principle or adjudged cases.” The remarks of the learned judge above quoted .are not, as was supposed by the learned referee, to be limited in their application to a case where the substituted tenancy was for a period not exceeding one year, for they were made with reference to a surrender “by act or operation of law,” which, as .above suggested, is excepted from the statute, and is left to have effect as at common law, hence would, when proved, apply to a longer as to a shorter term alike. In Beall v. White (94 U. S. R., 389), it is said by IVEr. Justice Oliffoed that “text writers agree that a surrender is the yielding up the estate to the landlord, so that the leasehold interest becomes extinct by mutual agreement between the parties. It is either in express words, by which the lessee manifests his intention of yielding up his interest in the premises, or hy operation of law, when the parties without express surrender do some act which implies that they have both agreed to ■consider the surrender as made,” citing both Woodfall and Taylor •on Landlord and Tenant in support of his remarks. This subject is considered quite elaborately, and with clearness and precision, in Bingham on Real Estate (p. 260), where the distinction between a surrender by express words and a surrender by implication, that is, by operation of law, is marked and- commented upon'. It is'there said that “the material point of such an issue is one of ■evidence, whether the intention of both the lessor and the lessee, is proved by words only, and not by written evidence) as prescribed in the statute of frauds, or by their • conduct and actions. If it is proved by words only, the agreement is within the statute of frauds, 'and cannot operate as a surrender. If their intention to surrender is made plain by their conduct and actions, in a way which permits of no mistakes or misrepresentations, by means of the perjury or the misunderstanding of witnesses, the agreement to’ surrender is so proved as not to be within the statute of frauds, but amounts to an ‘ act or operation of law,’ as that phrase is used in the statute, and effectuates a surrender,” and in support of this doctrine many cases are there cited. (See, also, Blumenthal v. Bloomingdale, 100 N. Y., 558.) In Matthews v. Sawell (8 Taunt., 270) it was held that a mere parol surrender of a written lease having more-than three years to run was void under the statute of frauds, and consequently the lessee was not discharged therefrom. In this case importance was given to the fact that the plaintiff had not assented to any change of tenancy. Dallas, J., said: If the plaintiff had in fact consented that the defendant should cease to be Hable, and had gone beyond that and had accepted a substituted tenant, I should have-thought the defendant discharged.” (See, also, remarks of the other judges to the same effect.) The case supposed by the learned judge, as above given, is quite like the present. It is laid down in 4 Wait’s Actions and Defenses, 212, after speaking of express surrenders-touched by the statute of frauds, that “ a sun-ender by operation of' law is effected by some- less formal act of the parties, from which a mutual agreement by them to consider the surrender as made may be implied; some aot of notoriety which estops them from denying that it has taken place; ” and it is added: “ Thus any agreement between the parties that the term shall be put an end to, wMch is un equivocally acted upon by both, is such surrender; ” and, further, “ an actual and continued change of possession by the mutual consent of parties is a surrender by operation of law, whether the-possession is delivered to the landlord himself or to another for him; ” and, still further, acceptance of possession by the landlord and his leasing the premises to another, or accepting an, under tenant or an assignee as his tenant, followed by an actual possession by the latter, also operates as such a surrender.”

Many cases are cited in the text-books, above referred to, both in England and in this country where the above propositions have been adjudicated, to which attention is called without here giving them in detail. (See, also, McAdam on Landlord and Tenant [2d ed.], §§ 207, 208, and cases there cited.) It must be held in mind that we are considering the question as to what would be effectual as a surrender “ by act or operation of law,” according to the rules of the common law, inasmuch as a surrender “ by act or operation of law ” is not witbin the statute of frauds, but is expressly excepted from it. So, when a surrender by act or operation of law ” is proved according to the common law, it is as effectual as a discharge of the lessee, as if no statute of frauds existed.

I am of the opinion that an agreement entered into- and acted upon by all the parties, by the plaintiff, the defendant and Powell, under and pursuant to which the defendant surrendered the possession, and Powell entered as substituted tenant, with the consent -of the plaintiff, indeed, under an express agreement with the latter to that effect, coupled with the fact of an acceptance of rent by the latter from the substituted tenant, operated to discharge the defendant from further liability under the lease. If a consideration for the agreement be of any importance in view of the fact that it was acted upon and fully carried out, save as to the payment of the rent for the two months here claimed, that seems well established. As to the plaintiff, he accepted a restoration of the premises, or its equivalent, a substituted tenant, with the liability of the latter for the future use and occupation ; as to the defendant, he surrendered possession with such consequences as resulted therefrom; and as to Powell, he became the substituted tenant with possession.

If the conclusion above reached be sound, the judgment for the plaintiff is wrong and should be reversed.

Landon, J.:

I concur. The defendant’s term was three years under a sealed lease. He, in effect, agreed with his landlord to shorten the term one year and one month in consideration of his procuring Powell to become tenant for that time, and Powell’s agreement to become such tenant on same terms as in the sealed lease. This agreement was performed, except Powell defaulted on two months rent. The parties could make this bargain, but the objection is they did not do it the right way; they made no writing. This objection might excuse entering upon performance, but it is too late after part performance.

Learned, P. J.

(dissenting):

On the 21st of January, 1880, the parties executed a lease under seal in duplicate, by which plaintiff leased to defendant for three years, beginning May 1, 1880, and ending April 30, 1883, certain premises known as the Morgan House, the rent payable,monthly. The defendant went into possession May 1, 1880, and continued as tenant till April 1, 1882. In the latter part of March, 1882, defendant bargained with one Powell for the sale of some hotel furniture and of defendant’s interest m the lease and premises. And, the bargain was completed April 1, 1882. By the terms of the bargain Powell was to take defendant’s place as plaintiffs tenant, and was to pay plaintiff the rent covenanted by the lease. Before making the bargain defendant informed plaintiff’s agent of Powell’s application to purchase. The referee finds upon a conflict of evidence that plaintiff’s agent verbally agreed with defendant to look to Powell for the rent to become payable on the lease from April 1, 1882, for the remainder of the term, and to release defendant therefrom. Defendant surrendered possession to Powell April 1, 1882, accordingly, and has had nothing further to do with the lease or the premises. Powell occupied the premises till some time in August, 1882, and then moved out. While in possession he paid to plaintiff the rent for the months of April, May and June, 1882. After Powell moved out the premises were occupied from September, 1882, by one Reed, as tenant of plaintiff, and Reed paid the rent during such tenancy. All the rent has been paid-, plaintiff except for the months of July and August, 1882. This is in arrears and for that plaintiff sues. The referee reported in plaintiff’s favor and defendant appeals.

At the time of the agreement between defendant and Powell and plaintiff there was more than one year of the term outstanding. The term, therefore, could not be assigned or surrendered, except by deed or conveyance in writing, or by act or operation of law. (2 R. S., m. p. 134, § 6; Smith v. Devlin, 23 N. Y., 363.) A sur-rendér by operation of law is effected when another estate is created by the reversioner, with the assent of the termor, inconsistent with the existing estate or term. (Coe v. Hobby, 72 N. Y., 141.) But to have that effect the lease, which is claimed to create an estate inconsistent with the existing estate, must be a valid and binding lease. (Schieffelin v. Carpenter, 15 Wend., 400.)

In.;the present ease there was no written surrender. There was no written surrender by operation of law, because there was no valid estatq, created inconsistent with the existing estate. The alleged agreement between plaintiff and Powell was by parol and was for more than a year. ( Wilson v. Lester, 64 Barb., 431.) In Smith v. Niver (2 Barb., 180) it was not for more tlian a year.

Further, the referee finds, and the evidence sustains the findings, that defendant agreed to assign his interest in the lease and premises to Powell, and that plaintiff consented. This is not the creation of a new estate, but solely the assignment of the existing estate created by the original lease to defendant. The assignment to Powell, even with plaintiff’s consent, did not release defendant. (House v. Burr, 24 Barb., 525; Damb v. Hoffman; 3 E. D. Smith, 361.) The cases on this subject do not speak of a substituted tenant, they speak of a surrender of the old lease in law by the creation of a new estate inconsistent with the old.

It does not appear how Reed came into possession, nor is his possession or his payment of rent to plaintiff material, except as it may affect rent thereafter accrued. The rent in dispute accrued prior to liis possession. The defendant urges that as there was a parol ■agreement to release defendant, on the faith of which defendant gave possession and assigned the lease to Powell, the agreement is valid notwithstanding the statute. The doctrine which defendant relies upon is recognized in 2 Revised Statutes (m. p. 135, § 10), which preserves the power of courts of equity to enforce specific performance in case of part performance. The cases cited by defendant are cases under that familiar doctrine. But the present is not such a case. The plaintiff has received nothing on the verbal contract to release which would make it unjust to refuse performance. The defendant has parted with nothing. On the contrary he has been benefited, because so far as Powell has paid defendant has been discharged. Indeed, it seems doubtful whether there'was any consideration for the plaintiff’s promise to release.

The judgment should be affirmed, with costs.

Judgment reversed, new trial granted, costs to abide the event. Referee discharged. ■ .


author: Landon, J. : Learned, P. J.

text:
    JENNIE HOPE, Respondent, v. THE TROY AND LANSING-BURGH RAILROAD COMPANY, Appellant.

      Negligence — >duty of a person injured, not to aggrmate the injury by carelessness — how fan' the question as to the act being prudent depends upon the feeling of the person — the fact that the plaintiff calls one of three physicians dees not authm'ize the defendant to call the other two — Code of Givil Procedure, secs. 834-836.
    Through the negligence of the defendant’s servants the plaintiff, as she was about www to enter one of the defendant’s cars, was so injured as to cause her to miscarry the same night, in consequence of which she subsequently suffered from cellu-litis, which resulted in a permanent retroversion of the womb and impairment of her health. Upon the trial the defendant, after giving evidence tending to show that the plaintiff within a few days after her miscarriage went out upon the street on a cold stormy day, and that such exposure was calculated to aggravate her disorder, asked the court to charge the jury, that if they found that she did by such exposure “ produce a subsequent development or condition of her disease which would not have existed but for that, then for that condition the defendant is not liable in any event.”

      Held, that the request was properly refused because it did not permit the jury to determine whether her exposure was negligent under the circumstances, or whether, independently of her injury, it caused her subsequent ill-health.
    The court charged that the plaintiff was bound to take ordinary care of herself; that whether she was guilty of negligence in going out so soon after her miscarriage, would depend upon whether she felt she was not well enough, but went out recklessly and carelessly, or whether she felt that she was fairly urged to go out in pursuit of her business, and/eli that in doing so she was not guilty of any want of fair care and caution.

      Held, that the charge was proper; that the test submitted by the court was whether she fairly acted in obedience to her own judgment as to what was prudent. (Learned, P. J., dissenting on the ground that the defendant was entitled to require that the plaintiff should act prudently, and was not liable if she acted ifnprudenily, although she felt her act to be prudent.)
    The plaintiff had had three physicians, each one at a different time from the others. Upon the trial she called one of them and he gave testimony as to the extent and character of her injuries. The defendant having called the other two their testimony was rejected, under the objections of the plaintiff that it was inadmissible under sections 834-836 of the Code of Civil Procedure.

      Held, that it was proper to sustain the objection; that the plaintiff by waiving her right in respect to one physician did not authorize the defendant to call the others.
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury for $3,500 at the Albany Circuit; also, from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.

      Tlie action was brought to recover for injuries alleged to have been caused by the defendant’s negligence. The plaintiff, on the evening of November 23,1883, was about to enter one of the defendant’s street cars, which was then standing at the usual place of starting. She had one hand upon the rail of the rear platform, one foot upon the step, and she was in the act of ascending the step, the weight of her body resting upon the foot upon the step, when, without warning, the car suddenly started and threw her against the iron rail, thereby slightly injuring her foot and so seriously injuring her body, as. to result in her miscarriage the same night. The jury gave her a verdict for $3,500.

      E. L. Fursman, for the appellant.

      J. F. Crawford, for the respondent
   Landon, J. :

It was an important question upon the trial whether all the injuries of which the plaintiff complained were properly chargeable to the negligence of the defendant. The evidence given by the plaintiff tended to show that in addition to the miscarriage which she underwent, immediately following the injury, she had in consequence suffered from cellulitis, which had resulted in a permanent retroversion of the womb and permanent impairment of her health. Evidence was given, on the part of the defendant, tending to show that the plaintiff, within a few days after her miscarriage, wen! out upon the street on a cold stormy day, and that such exposure was calculated' to aggravate her disorder. The defendant asked the court to instruct the jury that if they found that she did, by such exposure, u produce a subsequent development or condition of her disease, which would not have existed but for that, then for that condition the defendant is not liable in any event.”

The court declined to charge as requested, but did charge that the plaintiff was bound to take ordinary care of herself; that whether she was guilty of negligence in going out so soon after her miscarriage would depend upon whether she felt she was not well enough, but went out recklessly and carelessly, or, whether she felt that she was fairly urged to go out in pursuit of her business, and felt that in doing so she was not guilty of any want of fair care and caution. To this charge and to the refusal to charge as requested* the defendant excepted.

The request to charge was properly refused because it did not permit the jury to determine whether her exposure was negligent under the circumstances, or whether independently of her injury it caused her subsequent ill health. We think there was no error in the instruction given. The test submitted by the court was whether she fairly acted in obedience to her own judgment as to what was prudent. There was no suggestion by defendant that she went out in disobedience to medical or other competent advice. The counsel for defendant cites authority to the effect that the negligence of a party is to be determined upon the facts and circumstances of the case, and not upon the opinion of the acting party. We do not contest this proposition; it refers to the opinion given by-the party as a witness upon the trial. Here the opinion of the party was the one upon which she acted, and this was a most important circumstance. Presumably her experience and observation had qualified her to decide such a question in its ordinary phases. But if not, then it was the defendant’s misfortune that it had injured a person not well qualified to act so as to secure complete restoration to health. If she acted in good faith, but misjudged, she did the best that could naturally and reasonably be expected from her. She could not endow herself with any more wisdom and prudence than she had, and if from the lack of them she enhanced her injury, that injury, in her case, was, as was said in Sauter v. New York Central and Hudson River Railroad Company (66 N. Y., 52), a natural consequence of defendant’s acts.

If she was ignorant of the further ills which the defendant’s wrongful act would bring upon her, if she continued to act as her own best judgment dictated, it would seem to be a harsh rule that would cast the sole consequences of those further ills upon herself, as the penalty of her lack of better advice. She was not a volun teer in the care of her ailment. The defendant thrust that burden upon her. Her honest misjudgment, under such circumstances, is not negligence. The true question is, who was the proximate cause of those further ills, she or the railroad company? A wrongful act begins a sequence of harmful effects; an intervening innocently misjudged act of the victim aggravates the harmful effects; but the latter act would have been harmless if the original wrong were not still operative. It now operates more harshly. But it is from its-harsher operation that the plaintiff suffers. The original wrongful cause continues to the end and accomplishes the whole result, and is, therefore, the proximate cause. (Vandenburgh v. Truax, 4 Deuio, 464; Pollett v. Long, 56 N. Y., 200.)

The plaintiff had had three physicians, each one at a different time from the other. She called one of them and he gave testimony as to the extent and character of her injuries. The defendant called the other two, and plaintiff objected under sections 834-836 of the Code, to their disclosure of any information they had obtained in their professional visits. The objection was sustained. The Code and the authorities justify the ruling. (Westover v. Ætna Life Ins. Co., 99 N. Y., 56.)

The defendant urges that when the plaintiff waived her right with respect to one physician, she opened the ease to the others, but the statute does not seem to permit such construction. No other points are urged bv the defendant.

The judgment and order must be affirmed, with costs.

Bockes, J., concurred.

Learned, P. J.

(dissenting):

Admitting that the request of the defendant to the court to-charge that it was not liable for subsequent development of disease, caused by plaintiff’s exposure, was too broad, inasmuch as it did not submit to the jury the question of her negligence in such exposure, still it seems to me that there was error in the subsequent charge of the court.

The court said that the question of plaintiff’s negligence, in going out so soon, would depend upon “ whether she felt that she was fairly urged to go out in pursuit of her business, and felt that in so-doing she was not guilty of any want of fair care and caution.”' Now, where a person is negligent he does what an ordinarily prudent person would not do. The question is not whether he does what he thinks or feels to be careful, but whether he does what is careful. The test does not consist in the thought of the person who acts, but in the quality of the act, as compared with the act of an ordinarily prudent person. To illustrate this, let us suppose that tbe plaintiff’s act was, in fact, perfectly careful and prudent, as shown by unquestioned evidence, but that she ignorantly thought that it was imprudent and careless, and it proved to be injurious in result. Now, according to the language of the court, her act would have been negligent because she felt it to be negligent, .although in fact there was no negligence whatever in it. And the question whether the defendant should be liable for the development of disease subsequent to her act, would depend not on the prudence or imprudence of the act, but upon her opinion of its ■character.

I think this cannot be correct. The defendant was entitled to require that plaintiff should act prudently. Of course she could not foresee all consequences. And if prudent action on her part ■should result unfortunately in increasing the bad effect of the injury, the defendant; might be liable even for that increase. But if by imprudent acts she increased the effect of the injury, it cannot be liable for such increase on the ground that she felt that she was prudent. It appears to me that there was error in submitting to •the jury, as the test whether the defendant was or was not liable for the alleged increased injury, the question of the plaintiff’s thoughts and feelings, and not the question of the character of her ;act. I do not mean that she should be required to have the knowledge of an experienced physician, as to the prudence or imprudence of her act. On the other hand I think she was bound to exercise ordinary prudence, and that an imprudent act could not be justified by her feelmg that it was prudent. The increased injury which arose from her exposure would not naturally have followed as a result of the accident. The liability of the defendant, therefore, if it is to be liable, must rest on the ground that such increased injury came in the usual course of action of any ordinarily prudent person. If it came from a foolish, unwise and careless ■course of action of the plaintiff they should not be responsible for it.

Therefore, I think, there should be a new trial.

Judgment and order affirmed, with costs.