author: ■ Bischoff, J.

text:
    John Boyle et al., Resp’ts, v. Joseph M. Williams, App’lt.

      (New York Common Pleas, Central Term,

      Filed November 7, 1892.)

    Conversion — Evidence — Sufficiency of, to authorize direction of verdict.
    In an action to recover the value of certain chattels alleged to have been converted by defendant, it appeared that plaintiffs had obtained title to the goods in question by a bill of sale, that they were worth the amount sued for, that subsequently to the bill of sale defendant took possession of the goods and refused to deliver them after demand; that he sold them and retained the proceeds, whereupon the court directed a verdict for plaintiff for the amount demanded. Held, that the verdict was authorized by the facts.

      Appeal from a judgment in favor of the plaintiff entered upon a verdict directed by the court Action to recover the value of personal pr^erty alleged to have been converted by the defendant

      De Witt C. Morrell, for resp’ts; Arthur H. Ely, for app’lt.
   ■ Bischoff, J.

The appeal is from the judgment and not from an order entered on defendant’s motion for a new trial, and we are therefore to consider only the exceptions taken on behalf of the appellant to the rulings on the trial. Peil v. Reinhart, 127 N. Y., 381; 38 St. Rep., 913.

The plaintiffs sought to recover the value of certain chattels alleged to have been converted by the defendant, and the complaint contained all appropriate allegations essential to such an action. The answer, besides the defense that defendant had possession of the chattels by virtue of certain liens, of which no evidence was sought to be given and which was abandoned on the' trial, was a general denial.

On the trial plaintiffs introduced in evidence a bill of sale to “them, made by one John Sanderson, which contained an absolute transfer of “ all goods on storage ” at the time belonging to him, and from a stipulation made for the purposes of the' trial, and the testimony of plaintiffs’ witnesses, it appeared, without contradiction, that the goods alleged to have been converted by the defendant were part of the “ goods on storage,” and worth the amount for which judgment was directed; that subsequent to the bill of sale defendant took possession of the goods; that he refused to deliver them after" due demand before the commencement of the action ; that he sol'd them and received and retained the proceeds of such sale. Surely these facts authorized the verdict directed, and the motions for dismissal of the complaint made when plaintiff rested, and again upon the close of the evidence for both sides, were properly denied.

The efforts of defendant’s counsel on the trial were exclusively directed to an attempt to show that the bill of sale was made to the plaintiffs in consideration of their promise to pay certain debts of John Sanderson, in which respect they had failed, and that the bill of sale was an unlawful preference under chapter 503, Laws of 1887, relating to general assignments for the benefit of creditors. But as neither of these defenses attempted on the trial was within the issues created by the pleadings, the learned trial judge’s exclusion of evidence relating to them, and his refusal to dismiss the complaint upon the ground that these defenses appeared in evidence, cannot constitute error.

One other exception remains to be noticed. Defendant, examined as a witness for the plaintiff, was asked on cross-examination, “Did you take possession of these goods as assignee? ” To which plaintiff’s counsel objected, on the ground that the question called for a conclusion. The objection was sustained, and we think that no argument is -required to establish its validity. Whether defendant took possession of the goods alleged to have been converted by him in his individual or representative capacity was •clearly a fact deducible only from the circumstances attending his taking of possession, and so a conclusion.

Judgment affirmed, with costs.'

Bookstaver and Pryor, JJ., concur.


source: Caselaw Access Project

author: Bischoff, J.

license: Public Domain

text:
    The American Artistic Gold Stamping Company, Pl'ff, v. The Glens Falls Insurance Company, Def't.

      (New York Common Pleas, General Term,

      Filed November 7, 1892.)

      1. Insurance (Fire)—Provision in policy as to title oe insured.
    In an action to recover on a fire insurance policy, it appeared that the risk had been distributed by limiting it to $500 on the stock and a like amount on the fixtures, in plaintiff’s factory; the policy provided that .“this entire policy shall be void if the interest of the insured be other than an unconditional and sole ownership, or if the subject of the insurance be personal property and be or become incumbered by a chattel mortgage.” At the time of issuing the policy the fixtures were encumbered by a chattel mortgage, which fact was unknown to defendant. Held, that the provision of the policy, to the effect that its validity should be dependent upon plaintiff’s "unconditional and sole ” ownership of the property insured, had reference only to the quality of his title, and the policy was, therefore, not rendered void because of the chattel mortgage.
    2. Same—Provision op policy as to incumbrances on property insured.
    In such case the policy was, however, invalidated, as to the fixtures by reason of the mortgage clause, but remained effective with reference to the stock, as by distributing the insurer’s risk among the several subjects of insurance, and limiting its risk to each, the parties to the contract are deeded to have intended as many distinct insurances as subjects.
    3. Same — Assured not bound to disclose his interest in the property without request.
    In the absence of any intimation by a fire insurance company that it desired applicants for insurance to state their interest in the property to be insured, the latter are under no duty to disclose the same.
    Motion for judgment upon a verdict for the plaintiff, subject to the opinion of the general term, rendered by direction of the trial court Action to recover upon a policy of insurance against loss by fire, the defense being that, pursuant to its terms, the policy was avoided by a chattel mortgage upon a part of the property insured.

      Thomas Brennan, for pl’ff; August Kohn, for deft.
   Bischoff, J.

This action was brought to recover upon a policy of insurance against loss by fire, in a sum not exceeding $1,000, issued by defendant to the plaintiff, and affected certain stock and fixtures at 47 Yesey street, in the city of New York, of which it is admitted plaintiff was the owner. The policy was issued for one entire premium, and the risk was distributed by limiting it to $500 on the stock, and a like amount on the fixtures. It was therein provided that this entire policy shall be void if the insured has concealed, or misrepresented, in writing, or otherwise, any material fact or circumstance concerning this insurance, or the subject thereof, or if the interest of the insured in the property be not truly stated therein; or in case of any fraud or false swearing by the insured touching any matter relating to this insurance, or the subject thereof, whether before or after a loss; ” also, that “ this entire policy, unless otherwise provided by agreement endorsed hereon or added hereto, shall be void * * * if the interest of the insured be other than an unconditional and sole ownership ; or if the subject of insurance be personal property, and be or become incumbered by a chattel mortgage; ” and that the policy was to be regarded as made and accepted subject to those conditions. At the time of issuing the policy, the fixtures were incumbered by a chattel mortgage, of which fact defendant had not been previously informed, nor did defendant make inquiry to ascertain if there was any. Thereafter the stock and fixtures were damaged by fire, proofs of loss were submitted to defendant, and it is mutually conceded by the parties that the proportion of the loss which the policy under review bears to the total amount of insurance is three hundred and twelve dollars and fifty-eight cents on the stock, and one hundred and' fifty-two dollars and seventy-eight cents on the fixtures. Defendant refused payment of both sums on the ground that the policy was avoided by the chattel mortgage, and in answer to the complaint interposed as affirmative defenses that plaintiff was not at the time of issuing the policy the “ unconditional and sole ” owner of the property insured because of the outstanding chattel mortgage on the fixtures, and that pursuant to the terms of the policy it was to be totally void if the “ subject of insurance ” was thus incumbered. The learned trial judge dismissed the complaint as to the loss on fixtures and directed a verdict for the plaintiff for the amount of the loss on stock, subject to the opinion of the general term, to which direction, as well as the refusal of the judge to dismiss the complaint as to both items, due exception was taken by defendant’s counsel. Plaintiff now moves for judgment bn the verdict. .

The motion should be granted. The provision of the policy to the effect that its validity shall be dependent upon plaintiff’s “ unconditional and sole ” ownership of the property insured, had reference only to the quality of plaintiff’s title, not to liens and incumbrances on the property, and the policy was therefore not rendered void because of the chattel mortgage. Conover v. Ins. Co., 1 N. Y., 290 ; Savage v. Howard Ins. Co., 52 id., 502 ; Noyes v. Hartford Ins. Co., 54 id,, 668; Pelton v. The Westchester Fire Ins. Co., 77 id., 605 ; Carson v. Jersey City Fire Ins. Co., 39 Am., 584; Hartford Fire Ins. Co. v. Walsh, 5 id., 115; Commercial Ins. Co. v. Spankneble, 4 id., 582; Washington Fire Ins. Co. et al. v. Kelly, 3 id., 149 ; Hubbard v. Hartford Fire Ins. Co., 33 Iowa, 325 ; Kronk v. Birmingham Ins. Co., 91 Penn. St., 300; Strong v. North Am. Fire Ins. Co., 1 Albany Law J., 162 ; Green v. Homestead Fire Ins. Co., 17 Hun, 467.

..The policy, however, was invalidated as to the fixtures by the mortgage under the provision that it should be vtiid.il: the subject of insurance be incumbered by a chattel mortgage, but remained, effective with reference to the stock. Having made the property distinct subjects of insurance by separately valuing it, by distributing the insurer’s risk among the several subjects of insurance,, .and limiting its risks as to each, the parties to the contract will be deemed to have intended as many distinct insurances as there may be subjects of insurance; and the avoidance of the policy by breach of its condition as to one of the subjects of insurance will not have the effect of avoiding it as to the others, in the absence of language clearly indicating that such was the intention of the parties. Trench v. Chenango Co. Mut. Ins. Co., 7 Hill, 122; Burrill v. Chenango Mutual Ins. Co., 1 Edmond’s Select Cases, 233 ; Noyes v. Hartford Fire Ins. Co., 54 N. Y., 668; Merrill v. Agricultural Ins. Co., 73 id., 453; Schuster v. Dutchess Co. Ins. Co., 102 id., 260; 1 St. Rep., 415; Pratt v. D. H. M. Fire Ins. Co., 130 N. Y., 207; 41 St. Rep., 303; Smith v. Home Ins. Co., 14 St. Rep., 106; Woodward v. Republic Fire Ins. Co., 32 Hun, 365; McGowan v. People’s Mut. Fire Ins. Co., 41 Am., 843; Hartford Fire Ins. Co. v. Walsh, 5 id., 115.

It is true, as counsel for defendant observes, that the cases hitherto decided by the courts of this state, so far as they have been reported, were those wherein the policy applied to both real and personal property, and so differ from tbe one under review in which the policy affected personal property only, but we fail to see because of this difference any ground for departure from the reported decisions. These were not put upon the ground that all of the property insured was not of the same species, -and the principles underlying the decisions and elaborately stated in Merrill v. Agricultural Ins. Co., supra, are no less applicable to a policy insuring distinct subjects of insurance, all being personal property, than to one insuring real and personal property; and the distinction here sought to be made was not recognized in Hartford Fire Ins. Co. v. Walsh, 5 Am., 115, where the subjects of insurance consisted of distinct parcels of real property, and the policy was held valid as to one and avoided as to the other.

We are requested also to observe that the policy before us reads that “this entire policy shall be void, etc.,” while in the reported cases the word “entire” was absent, but we fail to appreciate any additional force from the language here employed. Under the ruling of Merrill v. Agricultural Ins. Co., it can have no other effect than to invalidate the policy only as to the subject of insurance in respect to which the condition of insurance was broken or remained unperformed.

As a last objection to the granting of plaintiff’s motion for judgment defendant’s counsel urges that the policy is invalidated because plaintiff concealed or misrepresented the existence of the chattel mortgage when it applied for and received the policy. This was not among the defenses interposed by the answer, but assuming that it was, there was no evidence to support it on the trial.

The case fails to disclose that there was ever at any time before the policy was issued even the remotest discussion or correspondence concerning liens, or incumbrances, on the property insured, or part thereof, and where there • is no representation there can be no misrepresentation.” It remains to inquire what evidence there is of “ concealment.”

Concealment is the wilful withholding of some fact material to the risk which the insurer had a right to know and which the insured was under a duty to disclose,” Lawson's Rights, Remedies & Practice, vol. 5, § 2060, p. 3520, but plaintiff and its officers and agents cannot be said to have wilfully withheld any material fact from defendant’s knowledge unless they knew, or had reason to know, that the information was required by it. There is nothing before us from which we may ascertain that the application for insurance required that the liens or incumbrances be stated, or that inquiry was at any time before the policy was issued made of plaintiff, its officers; or agents; respecting these matters, and in the absence of every intimation that such was desired plaintiff was under no duty to disclose the particulars of its interest in the property insured. Cross v. National Fire Ins. Co., 132 N. Y., 133; 43 St. Rep., 482; Tyler v. Ætna Ins. Co., 12 Wend., 507; Turner v. Burrows, 5 id., 541; Burnett v. Ins. Co., 5 Hill, 188.

It cannot, therefore, be successfully said that there was “ concealment.”

Defendant’s exceptions should be overruled and plaintiff's motion for judgment on the verdict granted, with costs.

Daly, Ch. J., concurs.


text:
    Michael Kolzem, Resp’t, v. The Broadway & Seventh Avenue Railroad Company, App’lt.

      (New York Common Pleas, General Term,

      Filed November 7, 1892.)

    1. False imprisonment—Evidence to sustain action for damages.
    Plaintiff, acting under a permit from the pr< per official, was excavating the street for the purpose of repairing the sewer, when he was apprehended by a police officer on a charge of wilfully obstructing the passage of defendant's street cars, the same being a misdemeanor, and adjudged guilty by a police justice, and sentenced to pay a fine or, in default, to imprisonment. He paid the fine" and brought suit against the railway company to recover damages for false arrest and imprisonment."- The police justice was without jurisdiction of the alleged offense. Upon the trial it appeared that the arrest was made without a warrant at the instigation of defendant’s servants; that the excavation was necessary to make the repairs and the interference with the passage of defendant’s car unavoidable. Held, that the jury was justified in concluding that there was no wilful obstruction of defendant's railway, and that the arrest and imprisonment was caused by defendant, and a verdict for plaintiff should be sustained.
    2. Same — Exemplary damages not dependent upon existence of MALICE.
    In such a case, the recovery of punitive or exemplary damages does not depend upon the existence of malice in its ordinary sense; it is sufficient, evidence of malice that the arrest was wanton, oppressive or in open disregard of the plaintiff’s right to personal liberty.
    Appeal from a judgment for plaintiff, entered upon the verdict of a jury, and from an order denying defendant’s motion for a new trial.
    Action to recover damages for causing plaintiff’s false arrest and imprisonment.

      Robert E. Deyo, for resp’t; Root & Clarke, for app’lt.
   Bischoff, J.

Plaintiff, a plumber, acting under the authority of a permit issued to him by the commissioner of public works, proceeded to excavate the street and roadbed in front of the premises 393 Seventh avenue, in the city of New York, for the purpose of repairing the sewer connections, when he was apprehended by a police officer on a charge of having wilfully obstructed, hindered and delayed the passage of defendant’s cars lawfully running upon its street railway, which, by § 426, chap. 676, Laws-of 1881, Penal Code (chap. 474, Laws of 1879), is made a misdemeanor. He was taken before a police justice, who first cautioned and then discharged him. On the next succeeding day, while-prosecuting his work, plaintiff was again apprehended upon a like charge and taken before the same magistrate, who this time adjudged ■ plaintiff guilty, and fined him ten dollars, in default of the payment of which fine he was to be imprisoned for ten days. Plaintiff paid the fine and was discharged from further custody. Thereupon he brought this action to recover damages for his alleged false arrest and imprisonment, and the jury awarded him $750. From the judgment entered on the verdict, and an order denying its motion for a new trial on the minutes, defendant has-appealed.

It was conceded on the trial that the arrest was in each instance without a warrant, and defendant contended that it was made by the officer in whose immediate presence the alleged misdemeanor was committed, and not at the request or instigation of its agents or servants, also that the conviction of plaintiff in the police court was evidence of his guilt.

The learned trial judge ruled that the police justice was without jurisdiction and the pretended conviction of no effect. Qf the propriety of this ruling there can be no question, since police-justices possess only such powers as are specially conferred by statute, Code of Criminal Procedure, chap. 442, Laws 1881, § 74,- and misdemeanors committed in the city and county of New York must be tried and determined in the court of special sessions unless the case is directed to be tried in the court of general sessions. (§ 74.)

It remained, therefore, on the trial, to ascertain whether the-offense was in fact committed, and whether the arrest was instigated by defendant’s agents or servants, or was made by the police officer acting upon his supposed authority.

Plaintiff testified that he was first arrested upon the direct request of defendant’s time keeper, Seymour, to officer Buchanan, that he be taken into custody upon the charge then and there made. The officer, called as a witness for the defendant, corroborated this. The second arrest, plaintiff said, was made upon the complaint, and at the request of defendant’s roadmaster, Dow, and this was wholly uncontroverted. There was also ample evidence to show that the sewer connections could not have been repaired without making the excavation, and that -temporary interference with the passage of defendant’s cars was unavoidable with the-exercise of due care on the part of plaintiff and his workmen. The jury were therefore justified, in concluding that there was no wilful obstruction of defendant’s railway, and that the arrest .and imprisonment were caused and instigated by its agents or .servants.

No offense having been committed in the officer’s presence, or .at any other time, he had no authority to arrest without a warrant, People v. Pratt, 22 Hun, 300, and was amenable to an action for false arrest and imprisonment. Boyleston v. Kerr, 2 Daly, 220. The acts of defendant’s servants in causing the arrest, though tortious, having been committed within the scope of their -employment, were imputable to defendant, Fishkill Sav. Institution v. National Bank of Fishkill, 80 N. Y., 162, and it was therefore liable to plaintiff as tort feasor for the damage caused by his wrongful arrest, jointly with the officer making it, or severally, at .plaintiff’s election.

Evidence that the arrest was made from malicious motives, or without probable cause, was not required to sustain the action, though malice could be shown to aggravate the damage. Marks v. Townsend et al., 97 N. Y., 590, 597. In an action for false arrest and imprisonment, however, the recovery of punitive or exemplary damages does not depend upon the existence of malice in its ordinary sense. It is sufficient evidence of malice that the arrest was wanton, oppressive, or in open disregard of the plaintiff’s right to personal liberty. Newell on Malicious Prosecution, False Imprisonment & Abuse of Legal Process, § 34, chap. 14, 524 ; Voltz v. Blackmar, 64 N. Y., 440.

Plaintiff testified that before the excavation had progressed sufficiently to interfere with defendant’s railway, he was threatened with arrest unless he desisted from such interference, as defend•ant intended to make a “ test ” case to secure the judicial interpretation of the statute. His subsequent arrest and imprisonment were, therefore, not due to 'inadvertence, or the result of an innocent error, though the manner in which it was caused was a mistake. The facts testified to also indicated an intentional and a wanton invasion of plaintiff’s civil rights, and the trial judge, therefore, properly refused to charge that there was no evidence of malice, and properly charged that the jury could award punitive or exemplary damages if they believed that the arrest was accompanied by malice. Wood’s Law of Master & Servant-, § 323, p. 659.

The judgment and order appealed from should be affirmed, with costs.

Daly, Ch. J., and Pryor, J., concur.


text:
    Hugh Lamb, Resp’t, v. Augusta Hirschberg et al., App’lts.

      (New York Common Pleas, General Term,

      Filed November 7, 1892.)

      1. Pleading—Answer—Denial of indebtedness—When insufficient to RAISE AN ISSUE.
    In an action to recover the purchase price of goods sold and delivered, the answer denied that defendants “are indebted in any sum whatever upon the alleged cause of action,” and did not otherwise deny the allegations of sa!e and delivery at an agreed price. Held, that the denial was of a legal conclusion merely and. insufficient to raise an issue, and the sale and delivery and promise to pay were admitted thereby.

      2. Payment—Evidence of agent’s authority to receive—Withdrawal FROM JURY.
    In such action, the defense being payment, and it being conceded that defendants had paid the amount claimed to one B., the broker who had negotiated the sale, and who at the time claimed to have authority to collect, which plaintiff denied, B. was called as a witness and testified that defendants had paid him, that he had not accounted to plaintiff for the same otherwise than by charging himself with the amount, that he had ■ never received specific authority to collect the sum from defendants, but had received express paroi direction from plaintiff, to collect generally, and had been in the habit of so doing, -and except in- the instance of defendants’ indebtedness, plaintiff had always ratified the collections. The court directed a verdict for plaintiff. Held, error to withdraw the question of B.'s authority to receive payme.it, as plaintiff’s agent, from the jury.
    Appeal from a judgment for plaintiff, entered upon a verdict rendered by direction of the trial court.
    Action to recover the purchase money for goods sold and delivered, the defense being payment.

      Smith & White, for resp’t; Sampter & Fleischman, for app’lts.
   Bischoff, J.

The answer denied that defendants “ are indebted in any sum whatever upon the alleged cause of action set forth in the complaint,” and did not otherwise deny the allegations of sale and delivery of the merchandise at an agreed price stated. The denial was, therefore, of a legal conclusion merely, insufficient to raise an issue, Drake v. Cockroft, 4 E. D. Smith, 84; Emery v. Baltz et al., 94 N. Y., 409, 411, and the sale and delivery to defendants, as well as their promise to pay, were admitted. Code Civ. Pro., § 522.

The defense remaining was payment, and it was conceded on the trial that defendants had paid the amount of their indebtedness to one Beaumont, the broker who had negotiated the sale, and who at the time of payment claimed to have authority to collect. This authority plaintiff disputed, and his testimony taken under a commission was to .the effect that he had never authorized Beaumont to collect the money. Beaumont, called as a witness for defendants, admitted that defendants had paid him, that he had not accounted to plaintiff for such payment otherwise than by charging himself with the amount, and that he had never received specific directions or authority to collect the sum due-plaintiff from defendants.

He testified further that he had received express paroi directions from plaintiff to collect generally, that he had been in the habit of collecting the sums owing for merchandise sold by him on plaintiff’s behalf, and that, except in the instance of defendants’ indebtedness, plaintiff had always ratified and approved the collections. On motion of plaintiff’s counsel, the court directed a verdict for plaintiff under objection and exception for defendants.

It was error to withdraw the question of Beaumont’s authority to receive payment, as ‘plaintiff’s agent, from the jury. Plaintiff’s denial of having given such authority was not conclusive, because that of a party in interest, Elwood v. Western U. Tel. Co., 45 N. Y., 549; Gildersleeve v. Landon, 78 id., 609 ; Honegger v. Wettstein, 94 id., 252, and evidence of express authority was not indispensable to sustain the defense. It was sufficient if Beaumont’s authority to collect appeared inferentially from a course of dealing between him and his alleged principal. Bank of Auburn v. Putnam, 1 Abb. Ct. App. Dec., 80 ; Wood v. A. & R. R. R. Co., 8 N. Y., 160 ; Hammond v. Varian, 54 id., 398 : Olcott v. Tioga R. R. Co., 27 id., 546; Marine Bank v. Clements, 31 id., 33.

The judgment appealed from must be reversed and a new trial ordered, with costs to appellants, abide the event.

Bookstaver and Pryor, JJ., concur.


text:
    The Garfield National Bank, App’lt, v. Nathan Peck et al., Resp’ts.

      (New York Common Pleas, General Term,

      Filed November 7, 1892.)

    1. Bill of particulars—Assignment for creditors.
    The complaint in an action to set aside an assignment for creditors alleged that it was made to hinder, delay and defraud creditors, and also alleged the secretion of assets by the assignors for their own use, omission of assets from the schedules and application of firm assets to purposes other than payment of firm debts. Meld, that the first allegation was all sufficient; that the others were mere evidence to establish the fraudulent intent; but that plaintiff by making them a part of the complaint asserted their materiality and could not allege their redundancy in answer to an application for a bill of particulars thereof.
    <3. Same—Affidavit.
    An allegation in the moving affidavit that the defendant is “ entirely ignorant" of the facts or to. what the complaint refers is sufficiently comprehensive to include a denial of each element tending to constitute knowledge or belief on the subject.
    Appeal from an order directing plaintiff to serve upon George S. Hamlin, assignee, defendant, a bill of the particulars respecting •certain allegations of the complaint.
    Action to annul, as fraudulent, a general assignment for the benefit of creditors, made by the defendants, Peck, Martin & Co., to the defendant George S. Hamlin.

      John J. Adams, for app’lt; George S. Hamlin, for resp’ts.
   Bischoff, J.

This action was brought to have declared and annulled, as fraudulent and void, a general assignment for the benefit of creditors, made pursuant to the statute for such ■cases made and provided. The complaint charged “ that the said instrument purporting to be a general assignment was made by the said persons composing the firm of Peck, Martin Co. with intent to hinder, delay and defraud their creditors. including the plaintiff,” and then specifically alleged that the defendants, the oassignors, had, in contemplation of their assignment, paid over°to persons, not named, various sums of money of large amounts intended for their own future use and benefit; that they had omitted from their schedules of. assets valuable items of property not' described, except that it is alleged that among such property was an equity in certain real estate in East Seventy-sixth street in the city of New York; that they had conveyel to Harriet A. Martin, the wife of one of the assignors, certain premises on Edgecomb avenue for an inadequate consideration ; that they had withdrawn of the firm assets large sums of money which were used for purposes other than the liquidation of the firm’s liabilities, but the purposes to which said moneys are claimed to have been applied are not stated except in one instance; and that the assignment was not accompanied by an immediate and followed by an actual and continued change of possession of the property purporting to have been assigned thereby. Thereupon the assignee, George S. Hamlin, asserting his ignorance" of the secretion of any moneys or property by the assignors, the omission of any item of property from the schedules, and the application of firm assets for any purpose other than the payment of firm debts, and that he is unable, without being particularly informed as to the payments of money and items of property intended to be referred to by the plaintiff, to answer the allegations of the complaint or prepare for trial, moved that plaintiff be required to furnish him with a bill of the particulars of these matters.

The motion was opposed and an order was made requiririg plaintiff to serve upon defendants’ attorney a bill specifying the several sums of money alleged to have been paid over for the future use and benefit of the assignors and the persons to whom such several sums of money are claimed to have been paid; the several items of assets claimed to have been omitted from the schedules other than the real estate situated in East Seventy-sixth street, and the several sums of money claimed to have been withdrawn from the firm assets and applied to purposes other than the payment of firm debts, with the purposes to which such several sums of money are claimed to have been applied.

From this order the present appeal is taken.

It is urged as an objection to the order that compliance with it requires plaintiff to render a statement of the evidence by means of which the truth of the complaint is expected to be shown on the trial.

The office of a bill of particulars is, as counsel for the appellant justly contends, to amplify a pleading, not to require the disclosure of the evidence of a cause of action, defense or counterclaim, and that the order under review transcends its office respecting the necessary and material allegations of the complaint is due to the fact that the complaint contains unnecessary and redundant matter at which the bill of particulars is aimed. The ground upon which relief is asked is not “fraud,” but a “fraudulent intent ” in making the assignment, and the allegation that it was made “ with intent to hinder, delay and defraud creditors ” was all sufficient. Nat. Union Bank of Dover v. Reed, N. Y. Com. Pl., Gen. Term, January, 1891, 27 Abb. N. C., 5; 35 St. Rep., 572. The secretion of moneys for the future use and benefit of the assignors, the omission of valuable assets from the schedules and the application of firm assets for purposes other than the payment of firm debts, are but evidence tending to establish a “fraudulent intent,” and the allegation of it was not wholly unnecessary, National Union Bank of Dover v. Reed, supra, but as a. re-asseveration of the “ fraudulent intent” also redundant. Redundancy, however, may be complained of .by the “ person aggrieved,” Code Civ. Pro., § 545, not by the author of it, and if defendant had interposed an answer containing matter responsive to similar matter in the complaint plaintiff could not have objected to it because of its redundancy. McIntyre v. Ogden, 17 Hun, 604; Royal Baking Powder Co. v. Jenkins, 2 Monthly Law Bull, 53. Having made the redundant matter a part of his complaint, plaintiff asserts its materiality, Cunard v. Francklyn, 111 N. Y., 513 ; 19 St. Rep., 641, and invites the defendant to answer it and to prepare for trial upon it, and if because of the vagueness of the redundant matter defendant asks to be better informed so that his answer may be more comprehensive respecting it and he be the better prepared for trial upon it, plaintiff should not be heard to allege its redundancy, and thus preclude its refutation. It was entirely proper, therefore, for the judge who granted the order to treat the redundant matter as though it was a material- allegation of the' complaint, and viewed in that light the objection that it requires evidential, not issuable facts, will be dispelled.

So, also, if the redundant matter be regarded as necessary and material another objection to the order, that defendant Hamlin has equal means of obtaining the information sought, because of his relation with the assignors and because he has possession of their books and is also represented by their attorney, will disappear. Defendant assignors, in their business and private affiairs, may have made a great many payments and disposed of many items of property which do not appear in their schedules. Some of the payments may and others may not appear from their firm books. To which particular items of property, and to which payments does -the complaint refer ? And if it refers to payments appearing from the books, which of them ? These are the matters of which defendant Hamlin asks to be informed by the bill of particulars, because they are not to be ascertained from the complaint, and unless the plaintiff is confined to specific payments, and specific items of property, defendant’s answer to the complaint, and his preparation for trial must devolve upon him the wholly unnecessary presentation of a history of the assignors’ business and private affairs so minute in its details that it may include the payments and items of property to which the complaint means to refer.

A last objection to the order is made on the ground that the moving affidavit does not state that the defendant “has no knowledge or information sufficient to form a belief ” or “suspicion” as to the particulars asked for, but we regard the allegation that the defendant is “entirely ignorant” of the facts, or to what the complaint refers, as sufficiently comprehensive to include a 'denial of each element tending to constitute knowledge or belief upon the subject. The order should be affirmed, with costs.

Order affirmed, with costs.

Daly, Ch. J., concurs.


text:
    Herman Schuler, Resp’t, v. The Third Avenue Railroad Co., App’lt.

      (New York Common Pleas, General Term,

      Filed November 7, 1892.)

    1. Negligence—Street railways.
    While plaintiff was stooping to lift a bundle which he had placed on the front platform of the car the driver suddenly released the brake, which in its recoil violently struck plaintiff’s head, injuring him seriously. Held, that the circumstances were such as to render the submission of the question of negligence to the jury proper.
    3. Same—Evidence.
    Involuntary expressions of pain by the party injured, when made to or in the presence of a physician who is in professional attendance or called in to ascertain the probable extent of the injuries, are admissible in evidence to corroborate the person injured.
    3. Same.
    The complaint alleged that for three weeks after the accident plaintiff suffered and was still suffering pain. Held, that this did not preclude evidence of plaintiff’s present condition or that the pain and suffering continued.
    Appeal from a judgment of the general term of the city court of New York, affirming a judgment for plaintiff entered upon the verdict of a jury and an order denying defendant’s motion for a new trial.
    Action to recover damages for injuries sustained by plaintiff, a passenger, while alighting from one of defendant’s street railway cars, through the negligence of the driver in the management of the brake.

      Rudolph Dulon, for resp’t; Wm. N. Cohen, for app’lt.

       Affirming 44 St. Rep., 774.

   Bischoff, J.

Plaintiff, a passenger, and towards whom, therefore, defendant owed the duty of the “ utmost care and diligence of very cautious persons” under like circumstances to avoid the risk of injury, Maverick v. Eighth Ave. R. R. Co., 86 N. Y., 378, had deposited his bundle of wall paper on the front platform, close to the dashboard, and was about to alight from the car after it had come to a full stop. He stooped to pick up the bundle, and as he did so the driver suddenly released the brake. The brakehandle was left unguarded, and its tensile recoil caused it to come into violent contact with plaintiff’s head, thus inflicting injuries to his left eye and the superorbital nerve.

The driver knew of the bundle and that plaintiff was about to alight; the sudden relaxation of the brake could not have been reasonably foreseen and thus avoided by the plaintiff; and the act of stooping was inevitable to his attempt to regain possession of the bundle. The circumstances attending the accident were therefore adequate for the predication of carelessness of the driver, within the rule above stated, and they also affirmatively established plaintiff’s exemption from any imputation of contributory negligence, though he knew, or ought to have known, of his close proximity to the brake. The facts were thus properly submitted to the jury.

With the weight of the evidence, or the degree of credibility to be attributed to the testimony of witnesses, we have no concern for two reasons, first, because this appeal is from the city court, and its judgment of affirmance is conclusive upon us respecting the matter mentioned, and, second, because the case does not purport to present to us all the evidence which was adduced upon the trial in the court below. Arnstein v. Haulenbeek, 16 Daly, 382 : 34 St. Rep., 297.

Dr. Bailey, called as a witness for plaintiff to prove the extent of the latter’s injuries, was permitted to testify, under objection and exception by defendant’s counsel, to the fact that plaintiff had expressed his physical anguish to him long after the accident and in fact during the progress of the 'trial. It is apparent, however, that these expressions related exclusively to plaintiff’s condition at the time and not to past mental or physical anguish, and were involuntary and instinctive. Under the circumstances the testimony was properly admitted. Davidson v. Cornell, 132 N. Y., 228, 235 ; 43 St. Rep., 887. Such expressions on the part of the person injured, whether vocal or emotional only, are admissible in evidence if made at, or immediately after, the time the injuries were sustained as constituting part of the res gestae, Smith v. Dittman, 34 St. Rep., 403 ; Kennedy v. R. C.& B. R. R. Co., 130 N. Y., 654, 656; 41 St. Rep., 329, and they are of necessity equally admissible when made to, or in the presence of, the physician who is at the time in professional attendance upon the person injured or called in to ascertain the probable extent of the injuries. Werely v. Persons, 28 N. Y., 344; Brown v. N. Y. Cent. R. R. Co., 32 id., 600; Matteson v. N. Y. Cent. R. R. Co., 35 id.; 487, and see cases collated in Rice on Evidence, vol. 1, pp. 377-380.

Roche v. Brooklyn City & Newtown R. R. Co., 105 N. Y., 294; 7 St. Rep., 361, cited by appellant’s counsel, is to the effect only that expressions of .physical suffering, when not a part of the res gestee, are not admissible to corroborate the person injured if made to persons other than the attending physician or the medical examiner or surgeon called as an expert to prove the extent of the injuries sustained. The distinction is not only reasonable, but necessary. The extent of the injuries, and the consequences which with reasonable certainty will attend them, are matters peculiarly within the knowledge of the medical expert. Physical, as well as mental, anguish of the person injured must necessarily enter largely into the measure of those consequences, and" its presence is more or less dependent upon his physical and mental strength and endurance. It may therefore not always be externally perceptible. If it is, its perceptibilite is circumscribed by the degree of endurance.

The injuries may be wholly organic, and therefore incapable of visible or tactile discernment. If, then, expressions of existing mental or physical anguish which instinctively or involuntarily escape the person injured in the presence of his physician, or the medical expert who is called to qualify himself as a witness to the probable extent of the injuries, are to be excluded from his consideration, because anguish may be feigned, or expression mere pretense, instances of injuries which are incapable of ocular or tactile demonstration would be precluded from adequate redress.

One other objection is urged on this appeal against the validity ■of the judgment. Counsel for appellant contends that it was error to admit the testimony of Dr. Daily as to the condition of plaintiff's eye at the time of the trial, and that of plaintiff to the effect that the pain and suffering attending his injuries had continued. The complaint alleged that for a period of three weeks subsequent to the time of the accident plaintiff had suffered, and was still suffering pain, and because of this allegation defendant’s counsel objected to the introduction of the testimony on the ground “ that the pleadings are confined .to the injuries within the period of three weeks following the accident; also on the ground that the evidence is a surprise to the defendant.” It is apparent that counsel has confounded the result with the fact of the injuries. The injuries alleged in the complaint are those sustained on August 22, 1888, and these only could constitute ground for recovery in this action; but the general allegation of damage therefrom entitled plaintiff to recover, not only for the pain and suffering endured up to the time of trial, but for such as yet remained to be endured. Ransom v. N. Y.& E. R. R. Co., 15 N. Y., 415; Curtis v. R. & S. R. R. Co., 18 id., 534; Filer v. N. Y. C. R. R. Co., 49 id., 42 ; Sheehan v. Edgar, 58 id., 631; Feeney v. L. I. R. R. Co., 116 id., 375, 382 ; 26 St. Rep., 729.

The judgment of the general term of the court below is affirmed, with costs.

Daly, Ch. J., and Pryor, J., concur.


text:
    Josiah A. Hyland, Resp’t, v. George W. Anderson, App’lt.

      (New York Gammon Pleas, General Term,

      Filed November 7, 1892.)

    Duress—Accord and satisfaction.
    In an action on a note the defense was that it was given under duress to obtain possession of defendant’s vessel detained under a claim for salvage. Held, that the claim-for salvage being of an unliquidated amount was the subject of accord and satisfaction, requiring no further consideration than the promise of one to accept and the other to give the amount agreed on; that the material inquiry was whether the note was voluntarily given, and if it was, the acceptance thereof completed the accord and satisfaction of the claim, and defendant was thereafter precluded from asserting that the amount agreed on was more than a fair and reasonable charge for the service rendered.
    Appeal from a judgment of the general term of the city court of ¡New"York, affirming a judgment of that court in favor of the plaintiff, entered upon the verdict of a jury, and affirming also an order denying defendant’s motion for a new trial. Action to recover upon a promissory note made by defendant, payable to the order of Harriet E. Day, and endorsed and delivered by the payee before maturity to plaintiff, the defense being that the note had been procured by duress of the defendant to plaintiff’s knowledge.

      Hyland & Zabriskie, for resp’t; J. Stewart Ross, for app'lt.
   Bischoff, J.

The case fails to show either a motion for non-suit, or for the' direction of a verdict for the defendant, and the sufficiency of the evidence to sustain a verdict for plaintiff was thus conceded. Barrett v. Third Ave. R. R. Co., 45 N. Y., 628, 632; Rowe v. Stevens, 44 How. Pr. 10; St. John v. Skinner, id., 198; Caspar v. O'Brien, 47 id., 80. In the absence of an exception to the refusal to grant either motion, we are without power to reverse a judgment of the city court on the ground that the verdict is against the evidence, Schwinger v. Raymond, 105 N. Y., 648; 7 St. Rep., 544; Walsh v. Schulz, 67 How. Pr., 186; McEteere v. Little, 8 Daly, 167; Rowe v. Comley, 11 Daly, 318; Smith v. Pryor, 16 Daly, 169 ; 30 St. Rep., 553; and inquiry on our part as to the sufficiency of the evidence to support the judgment appealed from is still further prevented by the omission from the case of the statement that the case contains all the evidence material to the questions in controversy. Aldridge v. Aldridge, 120 N. Y., 614; 31 St. Rep., 948; Arnstein v. Haulenbeek, 16 Daly, 382 ; 34 St. Rep., 297.

On the trial defendant sought to show that he was induced to make and deliver the note in suit to secure the release of his-barge, which he claimed had been seized and was being detained; by the payee’s agents under a false and fraudulent claim for salvage, and in this behalf offered testimony to the effect that the-amount for which the note was given was an unfair and unreasonable charge for the services alleged to have been performed. This testimony was excluded under objection by plaintiff’s counsel, and defendant’s exceptions to these rulings are urged as error calling for reversal.

We are of the opinion that the testimony was immaterial and, therefore, rightfully excluded. The claim for salvage was of an unliquidated amount, and a subject of accord and satisfaction, requiring no further consideration than the promise of one to accept, and the other to give, the amount agreed upon. Under the defense of duress, the material inquiry was whether, or not, the note was voluntarily given. If it was, the acceptance of the note by the payee completed the accord and satisfaction of her claim for salvage, and defendant was thereafter precluded from asserting that the amount agreed upon was more than a fair and reasonable charge for the services rendered. Fuller v. Kemp, 40 St. Rep., 672, and authorities there cited.

Other exceptions to the admission and exclusion of evidence appear in the case but were not urged on this appeal, and upon examination they prove to be without merit.

The judgment of the general term of the court below should be affirmed, with costs.

Bookstaver and Pryor, JJ., concur.


text:
    William Meyer, Resp’t, v. Hugh Campbell, Impl’d, App’lt.

      (New York Common Pleas, General Term,

      Filed November 7, 1892.)

    1. Evidence—Contradictory statements.
    The rule which makes it incumbent on cross-examining counsel first to direct the witness’ attention with reasonable precision to and to interro gate him respecting an alleged contradictory statement before, the latter may be given in evidence, does not apply to parties to the action, and as to them the alleged contradictory statement is admissible as a declaration against interest, although it be part of a pleading which has been superseded by the service of an amended one.
    3. Same.
    So, also, a deposition de bene esse of the plaintiff at variance with his testimony on the trial is competent evidence in favor of defendant.
    Appeal from a judgment of the general term of the city court of Hew York, affirming a judgment for plaintiff, entered, upon the verdict of a jury. Action to recover upon a promissory note against the endorser, his defense being that he was discharged by neglect to present the note for payment at maturity, and that the maker was discharged by plaintiff by virtue of a composition with ■creditors.

      Henry L. Landon, for resp’t; Edward C. Perkins, for app’lt.
   Bischoff, J.

This appeal being from the judgment, and there having been no motion for non-suit„ for the direction of a verdict •or for a new trial, it is beyond our province to inquire into the weight or the sufficiency of the evidence. Schwinger v. Raymond, 105 N. Y., 648; 7 St. Rep., 544; Smith v. Pryor, 16 Daly, 169; 30 St. Rep., 553.

Two exceptions to the exclusion of evidence on the trial, however, present error for which the judgment must be reversed. The original complaint alleged that the note in suit was duly protested for nonpayment at maturity, while the amended complaint alleged that protest was excused, because defendant requested that it be omitted. On the trial plaintiff testified in substantiation of the last mentioned allegation, and on cross-examination defendant’s counsel asked him: “ Why did you say nothing in this original complaint about the note not having been protested because you were asked not to protest it ? ” To which plaintiff replied that he didn’t know, that at the time of swearing to the original complaint he had forgotten the request that it should not be protested and was under the impression that it had been. Thereupon counsel for defendant offered the original complaint in ■evidence, apparently for the purpose of discrediting the witness’ testimony that the note was not protested because defendant so requested. This was objected to by plaintiff’s counsel on the ground that the fact of the contradictory statement was admitted, and the court excluded the paper as immaterial and incompetent. Reference to the question and answer will show that plaintiff's counsel was in error in assuming that plaintiff had admitted the fact of having previously sworn that the note was protested at maturity. He was not interrogated concerning a statement made, but concerning one he omitted to make, and his answer did not, therefore, involve the admission claimed for it. The rule which makes it incumbent upon the cross-examining counsel first to ■direct the witness’ attention with reasonable precision to, and to interrogate him respecting an alleged contradictory statement, before the latter may be given in evidence, Crane v. Hardman, 4 E. D. Smith, 448; Everson v. Carpenter, 17 Wend., 419; Root v. Brown, 4 Hun, 797; 1 Rice on Evidence, 622, does not apply to parties to the action, Kennedy v. Wood, 52 Hun, 46; 22 St. Rep., 132; Boehm v. Miller, 45 id., 281; and as to them the alleged contradictory statement is' admissible as a declaration against interest, Cook v. Barr, 44 N. Y., 156; Williams v. Sargeant, 46 id., 481, and that though the statement be part of a pleading which has been superseded by service of an amended one. Kennedy v. Wood, 52 Hun, 46; 22 St. Rep., 132; Frearson v, Loe v. 25 Eng. Rep., Moak’s notes, p. 747, 763; Strong v. Dwight, 11 Abb., N. S., 319; Fogg v. Edwards, 20 Hun, 90.

_ Defendant’s counsel also offered in evidence plaintiff’s deposition taken de bene esse which was at variance with the allegations of the amended complaint that protest was omitted at the. request of defendant Campbell, and from which it appeared that the omission of protest was induced by the request of Stott, the maker of the. note. This also .was excluded under objection and exception. by defendant’s counsel.

The deposition was, as a matter of course, not competent in plaintiff’s favor, since he was present on the trial; but the same principle which rendered the allegations of the original complaint competent evidence for defendant as declarations made by plaintiff at variance with his claim on the trial applied to the deposition, and its exclusion was therefore error.

The judgment "must be reversed and a new trial ordered, with costs to abide the event.

Daly, Ch. J., and Pryor, J., concur.


author: Pryor, J.

text:
    Selig Steinhardt, Resp’t, v. Oliver P. Buel, App’lt.

      (New York, Common Pleas, General Term,

      Filed November 7, 1892.)

    1. Lease—Renewal.
    Plaintiff being a tenant of defendant’s flat under a yearly hiring, the-parties entered into negotiations for a renewal which terminated in an agreement by which plaintiff was to make certain repairs and supply an additional room, and defendant, “such being the case,” agreed to take the-flat for another year. Nothing was said as to the amount of rent. Defendant afterwards refused to sign a lease and moved out. Held, that in the absence of an agreement as to the rent, no inference was authorized that it was to be the same as before, because the premises let were not the-same, and that the agreement was incomplete and inoperative.

      2. Same—Evidence.
    In such action evidence on the part of the landlord that it was intended to give the extra room gratis is inadmissible, because such fact was not communicated to the tenant; the secret, undisclosed intention of one party not being admissible to affect the other with liability.
    Appeal from judgment of the general term of the city court of New York, affirming, a judgment on a verdict in favor of plaintiff.
    Action to recover rent of premises under an alleged oral renewal of lease, defendant having moved out before the commencement thereof.

      Jacob Steinhardt, for resp’t; G. M. Harwood, for app’lt.
   Pryor, J.

As to every question submitted to the jury upon conflicting evidence we are concluded by the verdict in the court below; and unless the record discloses some error of law in the disposition of the case, we have no alternative but to affirm the judgment.

At the close of the evidence the learned counsel for the appellant moved the court to direct a verdict in his favor upon the grounds: First, that the proof was insufficient to establish an agreement of any kind between the parties; and, secondly, because if any contract was shown, it was not a present demise, but an executory agreement for a future lease. To the denial of the motion due exception was taken. After verdict appellant moved for a new trial, because the verdict was against the law, and upon all the grounds in § 999 of the Code. To the denial of this motion also due exception was taken.

To the constitution of a contract it is an indispensable condition that the minds of the parties concur upon every material term of the proposed agreement. Justice v. Lang, 42 N. Y., 494; The Trustees v. Insurance Co., 28 N. Y., 153. Hence, there is no-contract “ unless the minds of the parties meet and fix a price.” Booth v. Pierce, 38 N. Y., 463, 466; McCotter v. The Mayor, 37 N. Y., 325.

In August, 1890, appellant being tenant of respondent’s flat until 1st October, the parties negotiated for a renewal of the lease for another year. The treaty terminated in an agreement, on the part of the respondent that he would make certain repairs and supply an additional room, and on the part of the appellant “ that, such being the case, he would take the flat for another year.” Respondent made the repairs and tendered the additional room; nevertheless, appellant refused to execute the lease. But, for the flat so repaired and enlarged, no price was stipulated or suggested even by the parties p nor was it intimated to appellant that he was to have the repairs and additional room as a gratuity. Respondent’s witness testified explicitly, that nothing was said on the subject of price or compensation for the succeeding year. In the absence of an agreement as to the rent, no inference is authorized-that it was to be the same as before ; because, the premises let were not the same, but were altered by repairs and enlarged by additions.

“ If there has been no absolute agreement made as to all the particulars of the lease, if the minds of the parties have not met as to all these particulars, there is no agreement on which an- : action will lie.” Sourwine v. Truscott, 17 Hun, 432, 434.

It results that the alleged agreement was incomplete and inoperative.

Respondent’s proposition, that his repairs and additions to the premises, made on the strength of appellant’s promise to take the lease, operate an estoppel to contest the efficacy of the promise as a legal obligation, is without shadow of support either in principle or authority. White v. Ashton, 51 N. Y., 280. The case-cited, Mayor v. Huntington, 114 N. Y., 631; 23 St. Rep., 912, is but an application of the familiar rule that a tenant in possession is estopped to dispute the validity oí the contract under which he acquired possession.

As there was no evidence to warrant the verdict, it follows that the court erred in denying the motions for a direction and for a new trial.

_ Another error still vitiates the judgment. ■ Plaintiff inquired of •his witness “ Why wasn-’t this extra room mentioned in the lease-? ” Defendant objected to the question, but it was allowed, and defendant excepted. The answer being, “ Because it was intended to give it gratis,” defendant moved to strike it out, and to a denial of the motion duly excepted. As seeming to show an agreement about price, and so validating the contract, the 'answer might have been of momentous materiality in the minds of the jury. But it was not legal evidence; because whether- the additional room was tp be gratuitous had not been communicated to the defendant; and indisputably the secret; undisclosed intention of one party is not admissible to affect the other with liability. . The evidence being essentially and irremediably incompetent, no specific objection is necessary to subject it to our revision. Quinby v. Strauss, 90 N. Y., 604; Tooley v. Bacon, 70 id., 34; Merritt v. Seaman, 6 id., 168.

The learned counsel for appellant maintains that, in any aspect ■of the case, the contract in controversy is but an executory agreement for a lease, and so is incapable of sustaining the present action. We incline to the opinion that the position is tenable ; but we need not adjudicate the point, since, in any even,t, the o judgment must be reversed.

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

Bookstaver and Bischoff, JJ., concur.


author: Per Curiam.

text:
    Peter Flynn, Resp’t, v. The Manhattan Railway Co., App’lt.

      (New York Common Pleas, General Term,

      Filed November 7, 1892.)

    2. Evidence. .
    On the trial of an action against an elevated railway company to recover damages for the burning of plaintiff’s awning by sparks from defendant’s engine, defendant called a member of the board of -examiners to show the qualifications of the man in charge of the engine which probably inflicted the injury, but the evidence was excluded as “ immaterial and irrelevant.” Neld, error.
    8. Same—Memorandum to refresh memory.
    In such case defendant proposed to prove that the engines which passed plaintiff’s premises just before the injury had been duly examined and found in good order, but the witness could not recollect what engines he had inspected, whereupon defendant inquired if he had a memorandum by which he could tell what engines he examined, but- the question wasexcluded. Held, error.
    Appeal from judgment of a district court. Action to recover damages for the burning of plaintiff’s awning by a spark from defendant’s engine.

      Lamb, Osborne & Petty, for resp’t; Julien T. Davies and Byron Travis, for app’lt.

   Per Curiam.

Undoubtedly the testimony of the so-called expert should not have been received; but his competency was not challenged by a sufficient objection, and it was discretionary with the court whether to strike out his evidence.

Other errors, however, require a reversal of the judgment It is not to be denied that the letter of plaintiff’s attorney was treated on the trial as a bill of particulars, and yet he was allowed, against defendant’s protest, to depart from it in the proof of the-cause of action. And the variance was material; for presumably defendant had come prepared to show the sufficiency of its engines that passed plaintiff’s place between lg and 1 o’clock, but was altogether unprovided with proof as to the condition of those that passed between 1.30 and 1.45.

The court should have confined the evidence to the specification in the bill of particulars, or else have accorded defendant an. opportunity to confront the changed position of the plaintiff.

Again, .defendant called a member of the board of examiners to show the qualification of the man in charge of the engine which probably inflicted the injury complained of; but the court, excluded the evidence as “ immaterial and irrelevant.’’ Immaterial and irrelevant it certainly was not, upon the question of defendant’s negligence, to show that its train was run by skilful and careful engineers, any more than to prove that its spark arresters were effective for the purpose.

Still, again, defendant proposed to prove that the engines which passed plaintiff’s premises just before the injury had been duly examined and found in good order, but the witness could not recollect what engines he had inspected. Thereupon, defendant-inquired if he had a memorandum by which he could tell what, engines he examined, but the question was excluded. We are to assume that the witness had such memorandum, and that he could have used it to refresh his memory, if not, indeed, have introduced it in evidence as a paper correctly recording a fact since-escaped the recollection of the witness.

Upon examination of the evidence we are convinced that it will be in the interest of justice to direct a retrial of the cause.

Judgment reversed and new trial ordered, costs to abide event. Pryor and Bischoff, JJ., concur.


text:
    Philip Thorman, Resp’t, v. Julius Polya, App’lt.

      (New York Common Pleas, General Term,

      Filed November 7, 1892.)

    ACCOBD AND SATISFACTION—NOVATION.
    The acceptance by A. of a promissory note made and delivered by B. in exchange for receipted bills due from one 0. to A. is only presumptively a discharge of O.’s debt, and the presumption is open to rebuttal by paroi evidence of a contrary intention.
    Appeal from a judgment for plaintiff recovered in the district, court in the city of New York for the eleventh judicial district. Action to recover for work, labor and services rendered and materials furnished at defendant’s request, the. defense being that defendant was discharged from his indebtedness to plaintiff by an agreement of “accord and satisfaction” by “novation” of parties.

      W. M Watson, for resp’t; Wager & Acker, for app’lt.
   Bischoff, J.

On a former appeal herein we were constrained to reverse a judgment for plaintiff because of the erroneous exclusion on the trial of evidence offered in support of the defense. Thorman v. Polya, 37 St. Rep., 257.

On the retrial the facts remaining uncontroverted were that defendant owed plaintiff $107 for services rendered and materials furnished at his request; that one Weyman owed defendant a larger amount; that Weyman made and delivered his promissory note to plaintiff for the amount of the latter’s demand against defendant, and that in. exchange plaintiff delivered his receipted bills for defendant’s debt to Weyman. Plaintiff testified that at the time of the delivery of the receipted bills it was agreed between him and Weyman that he should procure Weyman’s note to be discounted and apply the proceeds of the discount in payment of his demand against defendant; that-induced by Weyman’s representations tó believe that it could be readily procured, he anticipated the discount of the note by delivery of the receipted bills; but that having ascertained that the discount could, not be readily obtained he tendered Weyman return of his note. If his version of the transaction be true, plaintiff did not accept Weyman’s note in payment; there was no agreement of “ accord and satisfaction ” by “ npvation ” of parties, and defendant’s indebtedness to plaintiff was not discharged. Thorman v. Polya, supra.

Plaintiff’s acceptance of Weyman’s note in exchange for the receipted bills was only presumptively a discharge of defendant’s debt, Noel v. Murray, 13 N. Y., 167; Shaw v. The Republic Life Ins. Co., 69 id., 286, and the presumption was open to rebuttal by evidence of a contrary intention. Tobey v. Barber, 5 Johns., 68 Johnson v. Weed et al., 9 Johns., 310. Nor was plaintiff precluded from disproving the presumption by parpl evidence because of his written acknowledgment of payment of defendant’s indebtedness to him.

The rule which precludes the introduction of paroi evidence to alter, add to or contradict a written instrument applies to contracts. A mere receipt, however, is always open to’ explanation by parol. Southwick v. Hayden, 7 Cow., 334; McCrea v. Purmort, 16 Wend., 460; Murray v. Gouverneur, 2 Johns. Cases, 438; House v. Low, 2 Johns., 378; Ensign v. Webster, 1 Johns. Cases, 145; Putnam v. Lewis, 8 Johns., 389; Davis v. Allen, 3 N. Y., 168.

To substantiate his defense that the note was accepted in payment, defendant called Weyman, who testified 'in substance that «plaintiff agreed to accept his note in discharge of defendant’s debt, and refuted plaintiff’s version of the . purport of its delivery to him. Weyman’s credibility, however, was directly impeached by proof of his ill-repute for truth and veracity, and it was competent, therefore, for the trial justice to reject his testimony. Defendant himself sought to contradict plaintiff by asserting that in an interview with him plaintiff agreed to accept Wey man’s note in payment Defendant's testimony, however, was that of a party in interest, and so subject to discredit without direct impeachment. Elwood v. Western U. Tel. Co., 45 N. Y., 549; Gildersleeve v. Landon, 73 id., 609; Kavanagh v. Wilson, 70 id., 177. At most the testimony presented a mere conflict of evidence, upon which the trial j ustice was required to determine the facts. We are unable to say that he erred in believing plaintiff as against the testimony for the defense, and as the trial justice had the advantage of personally observing the witnesses while under examination, we should submit to his determination of the credibility of their testimony. Baird v. Mayor, etc., 96 N. Y., 567.

There is still another ground upon which the judgment appealed from should be affirmed. It sufficiently appeared in evidence that, at the time of the delivery of his note, Wey man knew himself to be insolvent, and unable to meet it at maturity, but of which plaintiff was ignorant. The attempt, therefore, to foist his worthless note upon plaintiff was in furtherance of an evident design to perpetrate a fraud, upon the discovery of which plaintiff was justified in repudiating any agreement to receive the note in satisfaction of his demand against defendant, and was thereby restored to his original rights as defendant’s creditor, and assuming defendant to have been ignorant at the time of Weyman’s insolvency, it will not be presumed that plaintiff intended to accept an insolvent person in the place of his original debtor in the absence of convincing evidence to that effect Roberts v. Fisher, 43 N. Y., 159.

Judgment appealed from is affirmed, with costs.

Pryor, J., concurs.


text:
    Max Edelsohn, Resp’t, v. The Singer Manufacturing Co., App’lt.

      (New York Common Pleas, General Term,

      Filed November 7, 1892.)

    Contract—Construction.
    Plaintiff entered defendant’s service as “ collecting salesman,” at which time he deposited one hundred dollars “ to secure the honest and faithful performance of his duties as collecting salesman, or otherwise,” which sum was to he returned to him sixty days after the “termination of his employment.” He continued as collecting salesman some time; was then appointed canvassing agent, and remained in the latter capacity over two months, when he quit defendant’s service, and in less than sixty days brought suit to recover the hundred dollars deposit. Held, that the complaint should^ be dismissed, the action being prematurely brought, as the security was intended to extend to the performance of plaintiff’s duties in any capacity while in defendant’s employ.
    Appeal from a judgment for plaintiff recovered in the district court in the city of New York for the fourth judicial district. Action for money had and received; .the defense being that it was prematurely brought.

      Samuel I. Frankenstein, for resp’t: Booraem, Hamilton & Beckett, for app’lt.
   Bischoff, J.

The evidence adduced for plaintiff on the trial did not authorize his recovery, and the judgment should be reversed.

It appears that on January 14, 1892, plaintiff entered defendant’s service as “ collecting salesman,” at which time, as a condition of his employment, he deposited with defendant one hundred dollars to secure the faithful performance of his duties; which sum was to be returned to him, pursuant to the terms of the certificate of deposit issued to him by defendant, sixty days after the “termination of his employment.” He continued as such collecting salesman until the succeeding April 12th, when he was appointed its canvassing agent, and remained in the latter capacity until June 25th, when he .quit defendant’s further service. This action was commenced within less than sixty days thereafter.

That the security deposited was intended by both parties to extend to the performance of plaintiff’s duties other than those of a “collecting salesman” is apparent from the language “to secure the honest and faithful performance of his duties as collecting salesman, or otherwise,'' which occurs in the certificate of deposit introduced in evidence for plaintiff; and though the duties at first assigned were changed on April 12th, the employment, from plaintiff’s admission, was continuous and without interruption until June 25th. True, plaintiff testified that he quit the service on April 12th and at once re-entered it as canvassing agent, but this involves no more than his own interpretation of the effect of the change in the character of his employment, with which we do not agree.

Upon the facts, therefore, plaintiff can in no event succeed ip this action and a new trial would be a useless formality. The judgment is reversed and judgment absolute for dismissal of the complaint rendered, with costs below and of this appeal to defendant

Pryor, J., concurs.


text:
    Samuel Corn et al., App’lts, v. Joseph Rosenthal, Resp’t.

      (New York Common Pleas, General Term,

      Filed November 7, 1892.)

    Evidence—Competency—Withdrawal oe case from jury.
    In an action to recover rent under an alleged lease, the defense was that the lease was executed and delivered upon the express oral condition that it was not to take effect unless possession of the premises was delivered two weeks before the commencement of the term, which was not done. This defense was sought to be established by the testimony of defendant, which was admitted under objection, and when the parties rested it remained substantially unchallenged; thereupon, on motion and under objection, the court directed the jury to find for defendant. Held, that the testimony was competent for the purpose for which it was offered, but that it was error to withdraw the case from the jury’s consideration.
    Appeal from a judgment for defendant recovered in the district court in the city of Hew York for the Eleventh judicial district and entered upon a verdict rendered by direction of the court
    Action to recover rent which had accrued under an alleged lease, the defense being that the lease was executed and delivered upon the express oral condition that it was not to take effect unless possession of the premises thereby demised was delivered to defendant two weeks before the commencement of the term, and that such delivery of possession was omitted.

      Carlisle Norwood, for app’lts; F. R. Minrath, for resp’t.
   Bischoff, J.

This action was brought to recover the first instalment of rent which had accrued under an alleged lease in writing as follows:

“New York, December 18, 1891.
“It is hereby agreed between Samuel & Henry Corn and Joseph Rosenthal that the said Samuel & Henry Corn do lease unto the said Joseph Rosenthal the part of store and basement of 127 Greene street, from February 1, 1892, to February 1, 1893, at the annual rent of $1,000, payable monthly in advance, except such portion of the store which is now occupied by Hockmeyer Bros., which has nothing to do with said lease.
“ (Signed.) Samuel & Henry Corn, Joseph Rosenthal.”

On the trial the defense that the instrument purporting to be a lease was executed and delivered upon the express oral condition that it was not to take effect unless possession of the premises, thereby intended to be demised, was delivered to the lessee two weeks before the commencement of the term, which was not done, was sought to be established by the testimony of the defendant lessee. This testimony was admitted, under objection- and exception respecting its competency by plaintiff’s counsel, and when the introduction of evidence was concluded it remained substantially unchallenged. Thereupon, on motion of defendant’s counsel, and again under objection and exception by plaintiff’s counsel, the court directed the jury to find for defendant

We are of the opinion that the testimony objected to and admitted was competent for the purpose for which it was offered, under the ruling of the court of appeals in Reynolds v. Robinson, 110 N. Y., 654; 18 St Rep., 235, but that the trial justice erred in withdrawing the case from the jury’s consideration. Defendant’s testimony was that of a party in interest, whose credibility should be determined by the jury, though it remained otherwise unimpeached. Neal’s testimony, by which defendant was sought to be corroborated, falls short of having that effect. He heard confessedly only part of what defendant said immediately after the execution and delivery of the paper, so that it does not appear from his testimony that defendant’s proposition was assented to by plaintiffs. Elwood v. Western U. Tel. Co., 45 N. Y., 549 ; Gildersleeve v. London, 73 id., 609; Honegger v. Wettstein, 94 id., 252; Kavanagh v. Wilson, 70 id., 177; The Canajoharie Nat'l Bank v. Diefendorf 123 id., 191, 200; 33 St. Rep., 389.

The judgment appealed from must be reversed and a new trial ordered, with costs to abide the event

Bookstayer, J., concurs.


author: Pryor, J. BlSCHOFF, J.

text:
    Elizabeth E. Lundy, App’lt, v. The Second Avenue Railroad Co., Resp't.

      (New York Common Pleas, General Term,

      Filed November 7, 1892.)

    Negligence—Railroads. .
    Plaintiff endeavored to cross the avenue about a foot behind one of defendant’s cars which had stopped on an incline to allow a passenger to alight. As she did so, the driver released the brake in order to start, when the car hacked and struck the plaintiff twice, knocking her down and injuring her. Neld, "that upon these facts the jury would have been warranted in finding that the driver might have so started the car as to arrest the retrograde movement, or, if that was impossible, ordinary care required him to give notice to persons in the way of probable injury, and that a nonsuit was error.
    (Bischoff, J., dissents.)
    Appeal from judgment and order denying new trial. Action for negligent injury, upon this state of facts: Defendant’s car having stopped three or four feet below the crossing, plaintiff undertook-to pass about a foot in its rear, when it suddenly moved backward, causing the injury in controversy.
    The complaint was dismissed.

      Payson Merrill, for resp’t; George W. Wilson, for app’lt.
   Pryor, J.

If upon any construction of the evidence it be sufficient to authorize a verdict for the plaintiff, the dismissal of the complaint was error. Stackus v. R. R. Co., 79 N. Y., 464; Clemence v. City, 66 id., 834, 338. Hence, if the inferences from the evidence be not certain and incontrovertible, the question of negligence is for determination by the jury. Hart v. Bridge Co., 80 N. Y., 622.

Upon the evidence before us the jury would have been warranted in the conclusion that the driver might have so started the car as to arrest its retrograde movement; or, if this were impossible, that ordinary care required him to give notice to persons in the way of probable injury.

“ To justify a non-suit on the ground of contributory negligence, the undisputed facts must show the omission or commission of some act which the law adjudges negligence.” Stackus v. R. R. Co., supra. Clearly no act of the plaintiff can be held to be negligence as matter of law. Conlin v. Rodgers, 39 St. Rep., 51, is authority only for the proposition that in the absence of any evidence as to the occasion of the injury, in other words, in the absence of evidence on the issue of negligence, a non-suit is inevitable. Dobbins v. Brown, 119 N. Y., 188; 28 St. Rep., 957. Here, the cause of the injury was demonstrated, and we are unable to affirm that it is equally consistent with inferences fatal and unfavorable to the plaintiff’s case.

The conclusion is, that the judgment be reversed and a new trial ordered, costs to abide the event.

Daly, Oh. J., concurs.

BlSCHOFF, J.

(dissenting.)—The facts appearing on the trial, so far as they relate to the occurrence of the accident which resulted in the injuries to the plaintiff of which she complained, were that about half-past eight o’clock on the morning of December 5, 1883, plaintiff was proceeding in a westerly direction, intending to cross Second avenue at or near the cross-walk w here the avenue is intersected by Eighteenth street. At this point the avenue presents a “ down grade,” an inclined or sloping plane, rising in a northerly direction. The view of the street and avenue was unobstructed and defendant’s car, propelled by horse power, had proceeded northwardly along the avenue until it reached Eighteenth street, at the cross walk, where it came to a standstill to permit a passenger to alight. Plaintiff attempted to cross the avenue in the rear of the car and within a distance of less than two feet from the rear platform. At this moment the driver, intending to start the car in its onward course, relaxed the brakes, the car gravitated southwardly and struck the plaintiff. As she was falling from the effect of the first collision she was struck a second time. Throughout this time the conductor in charge of the car was not on or near the rear platform of the car, and no caution was'given plaintiff by any person against the risk of injury which would attend passage of the avenue in close proximity to the rear of the car. The trial judge dismissed the complaint deeming the facts insufficient for the predication of negligence on the part of defendant or its servants.

The complaint was properly dismissed. Negligence, like every other fact of which courts cannot take judicial notice, must, unless admitted, be established by evidence, and a mere scintilla of evidence, a surmise, that the person charged therewith may have been guilty of negligence, is not enough to justify the submission of the question of his negligence to the jury. Conlin v. Rodgers, N.Y. Com. Pleas, June, 1891, 39 St. Rep., 51, and cases there cited.

That the sudden relaxation of the brakes, by means of which the car had been kept stationary, caused it to gravitate and descend on the inclined plane until the application of forward propulsion had the effect of checking its descent was, for aught that appears from the evidence, due to the course of nature, as inexorably potent with respect to the- defendant and its servants as it was to the plaintiff, and no negligence can be imputed to the former from the effect of that course, unless, indeed, man’s ingenuity in this respect also has succeeded by an applicance efficient for the purposes of its control in subjecting nature to the influence of his will, the known use of which appliance was omitted by defendant. But of this there is not a particle of evidence.

We do not fail to observe the suggestion of counsel for the appellant that the accident might have been avoided if plaintiff had been cautioned against the risk of injury by an employee of the defendant stationed in the vicinity of the car to caution wayfarers. ^ The measure suggested, however, would not have avoided the car’s descent. No more could have been thereby accomplished than to apprise plaintiff of that which was already known to her, or she is presumed to have known. She was aware that the'ear was being operated in the defendant’s regular business of carrying passengers, and it was within her reasonable expectation that the car would proceed onward after a passenger was allowed to get on or alight, and the car had been stopped for that purpose. That the relaxation of the brakes, without which the car could not have proceeded, would cause it to gravitate toward her on the inclined plane upon which it had been standing was, so far as we are informed by the evidence, a matter beyond human control, and due to the course of nature, of which we are bound to take judicial notice, Rice on Evidence, vol. 1, p. 20, § 21 b, and with the knowledge of which plaintiff is as much chargeable as are the defendant and its servants. How, then, could the omission to give further caution have contributed to the accident, unless, indeed, it is meant to be implied that defendant was under the duty to have resisted plaintiff’s attempted crossing of the avenue by actual, physical force ?

Sympathy with the injured does not assuage injustice to the innocent, and before we proceed to say that defendant, or its servants, were negligent, we should pause to inquire what, if anything, have they done which should have been omitted, or what have they omitted which they should have done, and" next, what effect, if any, did this action of commission, or of omission, have upon the accident ?

What acts did defendant, and its servants, commit? They were operating one of defendant’s cars in its regular business of carrying passengers, caused the car to stop to enable a passenger to alight, and started onward. There was no negligence in this. In starting the car on its onward course it gravitated a few feet upon the inclined plane, on which it had stopped, when the brakes were released. This was inevitable, hence not the result of carelessness or neglect.

What did defendant and its servants omit to do ? They did not prevent the car’s gravitation for a few feet on the inclined plane. But the gravitation was the result of natural forces over which there was no control, at least so far as we are informed by the evidence. Hence defendant, or its servants, cannot be said to have been negligent in that respect. They failed to caution plaintiff against the gravitation of the car. But that it would do so was obvious, and defendant and its servants had a right to assume that plaintiff knew of the intended progress of the car and of the natural results attending its onward start. Hence there was no duty to give caution. Craighead v. B. C. R. R. Co., 123 N. Y., 391; 33 St. Rep., 620. Assuming, however, that the failure to caution plaintiff was negligence, it still remains to show that the accident was the result of that negligence, for negligence which was not productive of or contributive to the injuries sustained by the plaintiff does not render defendant liable. Chrystal v. T. & B. R. R. Co., 124 N. Y., 519; 36 St. Rep., 699. Caution to the plaintiff would not have prevented the car’s gravitation, and of the natural results flowing from the attempt to start the car onward up the inclined plane plaintiff must be presumed to have had as much knowledge as did defendant and its servants. It does not follow, therefore, that if the caution had been given plaintiff would not have attempted to cross the avenue as she did and so not have sustained her injuries.

In principle this case does not appear to be distinguishable from those of Hayes v. Forty-second Street R. R. Co., 97 N. Y., 259, and De Soucey v. The Manhattan Railway Co., 39 St. Rep., 79. In both cases the injuries complained of were sustained by passengers toward whom the defendants owed the exercise of greater vigilance to avoid injury than was due from the defendant to the plaintiff in the case at bar, yet it was held that the defendants were not liable for inj uries sustained by a fall occasioned by the sudden and violent movement of a train of cars inevitably incident to its being started, without accompanying evidence to the effect that the movement was more than ordinarily violent because of the negligence of the defendant, or its servants, and a nonsuit was adjudged proper.

The judgment appealed from should be affirmed; with costs.

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


text:
    John P. Huggins et al., Resp’ts, v. The Manhattan Railway Co., App’lt.

      (New York Common Pleas, General Term,

      Filed November 7, 1892.)

    Railroad—Elevated—Damages—Chabge.
    In an action against an elevated' road to recover damages sustained by reason of its maintenance, the court charged that plaintiffs were entitled to recover the damages caused thereby, “ regardless of any benefits which defendants may claim resulted to said premises generally in company with other premises not abutting on the street,” but only peculiar benefits; and that the damages to be offset must be limited to such as are shown to be special to property abutting on the street on which the road is erected, and not such as are general and shared in by all other property in the neighborhood not abutting on said street. Held, error.
    Appeal from judgment and from order denying new trial. Action at law for damages from the maintenance and operation of defendant’s elevated railroad on the street in front of plaintiffs’ premises. Verdict of $9,000 for such damages between 7th April, 1881, and 7th April, 1887.

      Guernsey Sacked, for resp’ts; Brainard Tolles, for app’lt.
   Pryor, J.

The appellant impeaches the judgment for error in the charge and in the admission of evidence ; but as we are of the opinion that the first ground of reversal is sufficient, the second may be dismissed from consideration.

The quantum of damage sustained by plaintiffs from the invasion and appropriation of their easements in the street by defendant’s railroad was the subject of strenuous controversy between the parties, and was submitted to the judgment of the jury upon evidence of an extremely uncertain and indeterminate character. Obviously, therefore, it was of capital importance to a correct solution of the question that the presiding judge should propound to the jury the true criterion by which to ascertain the amount of that damage.

Nevertheless, the learned judge instructed the jury that “the plaintiffs are entitled to all damages caused by the alleged interference of the defendant with their easements .by the maintenance and operation of the railroad in the street, regardless of any benefits which the defendant may claim resulted to them, or to said premises generally, in company with other premises not abutting on the street through which said road is maintained, bdt to be offset by peculiar benefits.” And again, that “ the benefits to the plaintiffs’ premises which the defendant is entitled to offset against the damages which the plaintiffs sustained, if any, by the defendant’s illegal acts, must be limited to such as are shown by the evidence to be ■special to the property abutting on the street on which the road is erected, and not such as are general and shared in by all other premises in this neighborhood not abutting on the streets through which the Q'oad runs.”-

Thus, in the most precise and peremptory terms, the learned trial judge repeatedly admonished the jury not to abate anything of their award to the plaintiffs on account of an enhancement in the value of their premises from the presence of the railroad, if such enhancement of value was likewise imparted to other property not situated on the street.

That the instruction submitted to the jury an erroneous rule of damages, is adjudicated by the court of appeals in Bohm v. M. E. R. R. Co., 129 N. Y., 576; 42 St. Rep., 247, and in Becker v. M. E. R. Co., 131 N. Y., 509; 43 St. Rep., 726.

Upon the record we are unable to affirm of the instruction that it was of no effect on the verdict or detriment to the defendant. Moore v. N. Y. E. R. R. Co., 130 N. Y., 523,529 ; 42 St. Rep., 588. By twice procuring the court to exclude from consideration by the jury and from credit to the defendant the value of general benefits to their property, the plaintiffs emphasized their appreciation of the influence of the instruction upon the magnitude of the verdict. And as the case contains evidence to justify an inference -that the presence of the railroad operated a general enhancement of value in property in the vicinity but not upon the street, the conclusion is that the jury, obeying the instruction of the court, declined to reduce the amount of damages by an allowance for such common enhancement of value in plaintiffs’ premises. Newman v. R. R. Co., 118 N. Y., 623; 30 St. Rep., 36; Purdy v. R. Co., 36 St. Rep., 45; Welsh v. R. R. Co., 16 Daly, 515 ; 35 St. Rep., 35.

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

Daly, Ch. J., and Bischoff, J., concur.


text:
    Morris Blum, Resp’t, v. The Manhattan Railway Co. et al., App’lts.

      (New York Common Pleas, General Term,

      Filed November 7, 1892.)

    1. Railroad—Elevated—Evidence.
    In an action to restrain the operation of an elevated railroad evidence of an expert to the effect that the physical.effects of the road tended to lessen the rental value of the plaintiff’s premises is inadmissible, as substituting the opinion of the witness for the adjudication of the court on the very issue in litigation.
    2. Evidence—Objection.
    Although a party opposing the introduction of evidence should object before its reception; yet -where it is not raised until afterward, and the court unequivocally recognizes it as seasonably interposed and gives the party an exception, the latter may rely on the security thus tendered by the court.
    3. Same.
    Where the court assumes to apprehend the point of an objection and the evidence is in its nature illegal and its incompetency incapable of. remedy, a general objection avails to raise the question of error for the appellate tribunal.
    Appeal from judgment in equity, awarding an injunction and damages against defendants.

      L. C. Dessar, for resp't; John S. Wood, for app’lts.
   Pryor, J.

The fact of injury to plaintiff’s property from defendants’ railroad was, on the evidence, extremely problematical; but although we do not feel authorized to reverse the finding of the learned trial court, still in so close a controversy the admission of incompetent evidence cannot be disregarded as innocuous.

After detailing the physical effects of the railroad on plaintiff's property, an expert witness added, apparently without a question calling for the testimony, that “ these physical effects have an effect upon the rental value of the property.” He was then asked, “ What is that effect ? ” and he answered, “ To lessen the rental value.” Thereupon counsel for defendants objected, “ to that as nob within the cognizance of a real estate expert.” The court replied, “I will allow it, and give you an exception; ” and, counsel for defendants said, “We note an exception to it.”

That the evidence was incompetent is too clear for argument,' Roberts v. R. R. Co., 128 N. Y., 471; 40 St. Rep., 454, and it was incompetent because substituting the opinion of the witness for the adj udication of the court upon the very issue in litigation, and because allowing opinion upon a fact not the subject of expert testimony. Ferguson v. Hubbell, 97 N. Y., 507. Whether the rental value of plaintiff’s property was lessened by the railroad was the precise question for decision; and whether a specific effect upon the physical condition of property impairs its value is surely not a problem beyond the comprehension of a layman. Indeed, that the evidence was inadmissible is not controverted by the learned -counsel for respondent; but his contention is that no sufficient objection presents the error for review.

Undoubtedly, a party opposing the introduction of evidence must object before its reception ; and, unless the evidence be incurably incompetent, must indicate to the court some valid ground of objection. Here it appears that the objection came after the admission of the evidence; but the court by ruling upon the objection and expressly allowing an exception unequivocally recognized the objection as seasonably interposed. But for this concession by the court we cannot say that appellants would not have made a motion to strike out the evidence, and surely default is not to be imputed to a party who relies upon an assurance of security tendered him by the court.

The question then is, did defendants distinguish a valid ground of objection to the evidence? That they- challenged the evidence for incompetency as expert testimony is clear from their objection that the fact deposed to “ was not within the cognizance of the witness as a real, estate expert.” It is impossible to attribute another meaning to the terms of the objection.

The requirement of a specific objection to an offer of evidence is partly for the information of the adverse party in obviating, if possible, the particular ground of objection. But when, as here, the court assumes to apprehend the point of the objection, and the evidence is in its nature illegal and its incompetency incapable of remedy, a general objection avails to raise the question of error for the appellate tribunal. Quinby v. Strauss, 90 N. Y., 664; Tozer v. R. R. Co., 105 id., 659; 8 St. Rep., 56. In support of his contention that the grounds of the objection to the evidence are insufficiently stated, the learned counsel for the respondent cites to us adjudications in the court of appeals. For answer it is enough to say, that the objection apparent on the record relieves this case from the effect of those decisions. Jefferson v. N. Y. E. R. R. Co., 132 N. Y., 483, 487; 44 St. Rep., 629.

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

Daly, Ch. J., and Giegerich, J., concur.


text:
    James McLaughlin, Resp’t, v. James O'Toole, App’lt.

      (New York Common Pleas, General Term,

      Filed November 7, 1892.)

    1. Appeal—Evidence.
    Where no objection is made to the reception of evidence upon the trial, its competency cannot be complained of on appeal.
    2. Evidence—Credibility oe party.
    The testimony of a defendant, though not otherwise impeached, is subject to discredit as that of a party in interest.
    Appeal from a judgment for plaintiff recovered in the district court in the city of New York for the eleventh judicial district. Action to recover for building material, etc., sold and delivered, the defense being a denial and a-counterclaim for work, labor and services, and materials furnished.

      James A. O' Gorman, for resp’t; Lawrence P. Mingey, for app’lt.
   Bischoff, J.

The action having been tried before the justice below without a jury, his determination of the facts, except in the case of palpable injustice, is conclusive upon appeal. Weiss v. Strauss, 39 St. Rep., 78.

An examination of the testimony adduced, on the trial discloses ample evidence to support plaintiff’s recovery, and we are unable to say that the justice erred in accepting the facts sworn to by plaintiff and his witnesses as against the denial of them for the defense. Some of the evidence introduced for plaintiff ought unquestionably to have been excluded under proper objection, but as none was made defendant should not now be heard to complain of its incompetency. Cohn v. Goldman, 76 N. Y., 284 ; Mead v. Shea, 92 id., 122; Coates v. First Nat'l Bk. of Emporia, 91 id., 20, 31.

Assuming with the defense that the chimney breasts which constitute the subject matter of the counterclaim were not part of the party wall referred to in the agreement in evidence, plaintiff’s liability to pay one-half the expense incurred therefor rested entirely upon his alleged promise to pay. Such a promise was testified to by the defendant, and, though it may not have been directly denied by the plaintiff, a sufficient conflict of evidence arose in respect to it by plaintiff’s version of the interview at which defendant alleged it was made, and which version differed essentially from the one appearing from defendant’s testimony, to make the determination below conclusive as a controverted question of fact

Again, defendants testimony wes subject to discredit, though not otherwise impeached, as that of a party in interest, Elwood v. Western U. Tel. Co., 45 N. Y., 549 ; Gildersleeve v. London, 73 id., 609 ; Honegger v. Wettstein, 94 id., 252; Kavanagh v. Wilson, 70 id., 177; The Canajoharie Nat. Bk. v. Diefendorf 123 id., 191, 200; 33 St. Rep., 389, and as the trial justice had the advantage of personal observation of the witness while under examination, by which he may have been properly influenced in measuring the degree of credibility which should be attributed to the testimony, Baird v. Mayor, etc., 96 N. Y., 567, 576, defendant cannot be said to have sustained the burden of showing that the rejection of the counterclaim was error. Tracey v. Altmyer, 46 N. Y., 598, 604; Appleby v. Erie Co. Savgs. Bk., 62 id., 12,18; Carman v. Pultz, 21 id., 547; Briant v. Trimmer, 47 id., 96.

The judgment should be affirmed.

Judgment affirmed, with costs.

Daly, Ch. J., and Pryor, J., concur.