text:
    The Veterans of the Seventh Regiment, App’lt, v. The Field Officers of the Seventh Regiment et al., Resp’ts.

      (Supreme Court, General Term, First Department,

      Filed May 15, 1891.)

    National guard—Abmobies—Cannot be sublet to social obganizations.
    The city leased certain, land to the field officers of the Seventh regiment for the erection of an armory and drill room as long as said regiment should use it for that purpose. Held, that such armory was a public building to be used only for public purposes; that the field officers hold the lease as trustees for the public for public purposes'and on the express condition that the site shall be exclusively used as an armory and drill room for said reg'ment, and the agreement entered into by them to sublet a portion of the building to plaintiff, a social organization, was not one which was within their power to make and was therefore void.
    Appeal by the plaintiff Bom an interlocutory judgment entered at the special term upon the decision of the presiding justice, sustaining demurrers to the complaint

      Glover, Sweezy & Glover, for app’lt; Redfield & Lydecker and Coudert Bros., for resp’ts.
   Lawrence, J.

The complaint alleges that the plaintiff herein is an organization which was formed in the city of Hew York on April 25, 1859, by the name of “Veterans of the Hational Guard, Seventh Begiment, First Division, Hew York State Militia,” exclusively from those persons of full age who had faithfully served in said regiment, by whatsoever designation known, the full period required by law in order to entitle them to exemption from ordinary military duty.

That such organization was thus formed and is constituted for laudable objects and for and in furtherance of the public purposes of said regiment, and has continued and is now composed exclusively of persons of full age who have served in said regiment and who have become or are entitled to exemption from ordinary military duty under the laws of the state of Hew York, by reason either of a full period of faithful service in said regiment or service therein and in the military service of the United States during the war of the rebellion.

It is further averred that by chap. 41 of the Laws of 1861 the plaintiff was incorporated under the title of “ Veterans of the National Guard, Seventh Regiment, First Division, New York State Militia; ” and that by chap. 814 of the Laws of 1878 the corporate name of the plaintiff was changed, for reasons stated in the complaint, to “Veterans of the Seventh Regiment "

It is further alleged that the board of officers of the Seventh Regiment, National Guard of the State of New York, is an association of said regiment for the management of their internal affairs, composed exclusively prior to and since the year 1872 and now of the field, staff and company officers of said regiment,; and that said association, on or about January 1,1879, was constituted such an association under § 89 of chap. 275 of the Laws of 1878.

It is further averred that the field officers of said Seventh Regiment, N. G. S. N. Y. aforesaid, were constituted a body corporate by special act of the legislature of the state of New York passed April 22, 1874, chapter 234, for the purpose of becoming lessees of the plot of ground in the city of New York, bounded by and situated between Sixty-sixth and Sixty-seventh streets and Fourth and Lexington avenues, and that on September 23, 1874, the mayor, aldermen and commonalty of the city of New York, executed and delivered to the field officers a lease of said plot of ground for the period of twenty-one years, the said lessees covenanting and agreeing to and with said lessors, to erect, or cause to be erected upon the said demised premises, within a reasonable time, suitable buildings for the purpose of an armory and drill rooms for the Seventh Regiment, and to keep, maintain and use the same for said purnoses, or for the public purposes of said regiment.

There is a further allegation that in February, 1872, one of the field officers of the Seventh Regiment presented to the plaintiff the subject of a site for a new armory for said regiment, and requested the co-operation of the plaintiff in the furtherance of that object, which request was duly acceded to by the plaintiff, and that in the year 1874, the plaintiff was specially requested, in writing, by the said lessees, and by the said board of officers,"and by the defendant, Emmons Clark, to co-operate in erecting a new armory on the above described premises; that the plaintiff, without delay, acceded to the request, and did and performed whatever was desired in that behalf on the part of the plaintiff, but that in consequence of the financial depression existing at that time in the community active measures were deferred until January, 1876, when said lessees, and said board of officers, together with said Emmons Clark, who was then the colonel of the regiment, requested, in writing, the approval of the plaintiff to the plans therewith submitted for erecting said armory and drill rooms, and for securing the necessary funds wherewith to erect and furnish the same, and also requested the assistance and active co-operation of the plaintiff in the business of erecting said armory and drill rooms on said site, and in securing the funds necessary for such purpose; and, as an express consideration for said active assistance and mutual and necessary co-operation of this plaintiff in said joint adventure, and in furtherance of the public purposes of the said Seventh Regiment, the said lessees and said board of officers of said regiment, with the consent and approval of said Emmons Clark, thereupon covenanted, contracted and agreed to and with this plaintiff to sub-let, assign and grant to this plaintiff the large room (then and now known and described as the “ Veterans’ Room”) on the northwest corner of the first floor of the Administration Building, on Lexington avenue, of the new armory, on the land hereinbefore mentioned, and possession thereof as soon as the same should be erected by said joint adventure, with the exclusive use and control thereof by this plaintiff for and during the full term of the said lease by the mayor, aldermen and commonalty of the city of New York to the said field officers of the Seventh Regiment.

It is further averred that the plaintiff, for and in consideration of said agreement, assignment and grant of sub-lease, entered vigorously and successfully, in conjunction with the said lessees and others, upon the prosecution to completion of the said joint adventure, and contributed large sums of money, to wit, upwards of $27,000 for this public purpose, and in furtherance thereof, besides otherwise assisting and aiding in raising upwards of $250,000 in furtherance thereof. Plaintiff then goes on to aver that by a special act, being chapter 57 of the Laws of 1879, the legislature authorized an extension of said lease for and during the period that said Seventh Regiment should exist and act as a military organization, and desired to occupy said armory for its lawful purposes ; that, in accordance with said act, the mayor, aldermen and commonalty of the city of New York, by a supplemental indenture dated April 23,'1879, extended said first above mentioned lease for the period in said last act mentioned at an annual rental of one dollar.

The provisions of the act of March 1, 1879, in reference to the issuing of bonds by the trustees named in said act and the proceedings of said board of trustees and the field officers thereunder, are also set forth in the complaint, including the assignment of the lease from the city by the field officers to the board of trustees by said act created. It is then alleged that subsequently, and in, 1879, after the new armory and buildings had been erected, that the said assignment, grant and sublease of said “Veteran room ” by the field officers was again confirmed in writing, guaranteed to this plaintiff by said lessees and board of officers, and appropriations were specifically made towards furnishing said room from funds raised by and which were then belonging to the aforesaid joint adventure and to this plaintiff as participant, which appropriations were duly approved by said officers and others. The plaintiff also avers that it was put into possession of said “Veteran room’’and has expended large sums of money, to wit., upwards of $25,000, in repairing, furnishing and maintaining the same, and has paid considerable further sums to the treasurer as its justare rata share of expenses for attending •.to the care of said armory and for heating and lighting the same, and as compensation in full for the cleaning and care of said “Veteran room.” There is an allegation, also, that the plaintiff has complied with, and is ready to comply with, all reasonable rules and regulations governing access to said room, and generally with the laws of the state relating to armories, so far as the same may be applicable to the said Seventh Regiment buildings. It is further averred that the above named defendants, after upwards of seven years acquiescence in and ratification of said agreement, assignment and grant of sublease of said “ Veteran room ” to the plaintiff and continuous and exclusive occupancy thereof by the plaintiff, illegally and unjustly claim an estate in the same for the full period of said leases from the mayor, aider-men and commonalty of the city of Hew York, adverse to this plaintiff, and have molested and attempted to interfere with the exclusive, peaceable enjoyment and possession of said room by the plaintiff, to its great injury, which injury cannot be measured or compensated for in damages.

This policy of molestation and interference with the plaintiff is alleged to be connived at and agreed to by certain of the defendants in the complaint named, and it is averred that unless prevented by this court, the defendants intend to deprive, and will, if possible, deprive the plaintiff of its “ Veteran room.”

That one of the purposes for which the legislature of this state incorporated the plaintiff organization was to enable it to preserve and continue recollections of service in said regiment; and that in consequence one of the valuable privileges of membership is also and has been, since the project to construct the said armory building, to participate in the enjoyment of a place of meeting and resort of quarters contiguous to the drill, company and officers rooms of said Seventh Regiment, and that entrance fees and dues of membership were fixed with this view, and that upon the faith of said agreement, assignment and sublease, several hundred of plaintiff’s members have qualified as life members by the payment of the amount necessary for that purpose.

Wherefore judgment is demanded that the defendants be forever debarred from all claim to any estate in said leases adverse to this plaintiff in the said “ Veteran room,” and be forever restrained and enjoined from molesting or in any way interfering with the quiet possession, enjoyment and exclusive use and occupation thereof by the plaintiff.

We have stated the allegations of the complaint so much in detail, in order that the precise demand which the plaintiff makes and the exact right which it claims may be distinctly understood. Briefly stated, the claim of the plaintiff is that, by reason of the alleged agreement between it and the field officers and the board of officers of the Seventh Regiment, and of the action which it is alleged has been taken thereunder, the plaintiff has become entitled to the exclusive use and occupancy of the “Veteran room.” In order to ascertain whether such claim is well founded, it is necessary to keep in view the objects and purposes sought to be obtained by the several enactments in regard to the erection of a new armory of the Seventh Regiment and also the objects and purposes for which the plaintiff was incorporated.

The objects and purposes for which the plaintiff was incorporated are stated in the second section of chapter 41 of the Laws of 1861 to be to afford pecuniary relief to indigent or reduced members and their widows and children, to promote social union and fellowship, to preserve and continue recollections of service in the National Guard.

These are objects that are extremely laudable in themselves. But it is to be observed in passing that it is not necessary for the enjoyment of any of them that the Veterans of the Seventh Regiment should occupy a room or quarters in the armory of the Seventh Regiment Pecuniary relief to indigent or reduced members and their widows and children, the promotion of social union and fellowship, and the preservation ana continuance of recollections of service in the National Guard could be as well promoted in other quarters as in the armory; and, inasmuch as nothing is stated in that act about the Veterans occupying the quarters in the Seventh Begiment armory, that act in and of itself does not • sustain the contention of the plaintiff in this action.

On the other hand, when we turn to chapter 234 of the Laws of 1874, page 285, to ascertain the object of the legislature in providing a site for the armory of the Seventh Regiment, we find that section 1 of that act, after authorizing the execution by the commissioners of the sinking fund of a lease to the field officers of said regiment of the plot of ground bounded or situated between Sixty-sixth and Sixty-seventh streets and Fourth and Lexington avenues in the city of New York, the same being a part of the land or premises belonging to the city of New York, provides that the field officers “ are hereby authorized and empowered to accept said lease and take such site with the same effect as if a body corporate, to be thereafter exclusively held and used for an armory and drill rooms by said regiment.” The Veterans of the Seventh Regiment are not at present members of said regiment, and the delegation of the power to the field officers of said regiment to “ exclusively hold and use the property leased for an armory and drill rooms ” by said regiment would ordinarily and naturally exclude the idea of a joint adventure with other parties.

The act of 1879, chapter 57, entitled “An act to secure the completion of the Seventh Regiment new armory in the city of New York,” which provides for the issuing of bonds for the raising of money to complete and furnish said armory and for the conveyance and assignment of the lease to trustees to secure said bond, does not allude directly, or indirectly, to the Veterans of the Seventh Regiment, but the eighth section of that act provides “ that the Seventh Regiment new armory when completed and occupied shall be subject to the provisions of the Military Code relating to armories, and to the rules and regulations prescribed by the proper military authorities for other regiment armories in the city of Hew York.”

Section 37 of chapter 223 of the Laws of 1875 places the control of armories, under the general state law, in the commanding officer of the regiment or batallion, etc., for which it has been provided. Certainly assigning a room to the Veterans of the Seventh Regiment, who are not members of the regiment, cannot be said to be using or occupying the armory for the regiment for which it has been provided.

We find nothing, therefore, in the acts to which we have referred, nor in any of the acts cited by the counsel for the appellant in their brief, which justifies the idea that the new armory of the Seventh Regiment was to be used for any other purpose than those of the regiment itself.

The question then arises whether, assuming that the field officers and board of officers made and entered into the agreement stated in the complaint, it was within the power of those officers to do so. Upon a very careful examination of the case, we have concluded that it was not within the power of the board of field officers or the board of officers of the Seventh Regiment, or of any one connected with the said regiment, to authorize the use of the armory for any purposes other than those pertaining to the regiment itself. Notwithstanding the observations which are made in the brief of the learned counsel for the appellant, we are of the opinion that the Seventh Regiment Armory is a public armory, differing in no way in the purposes for which it was designed from the other armories in the state. We are of the opinion that it is a public building and is to be used only for public purposes, and that, however laudable the uses and purposes are for which the plaintiff was created, they are not public purposes, nor is the plaintiff in any legal sense a member of or adjunct to the Seventh Eegiment It is claimed by the plaintiff that the defendants cannot invoke the doctrine of ultra vires in this case, and that they are estopped from pleading a want of power to make the alleged sub-lease to the plaintiff of the room known as the “Veteran room.” Various cases are cited in the elaborate brief of the appellants’ counsel to support this view; but they will principally be found to relate to the cases of private corporations, and we agree with the presiding justice in the opinion expressed by him, that the alleged action of the board of field officers and the board of officers and others connected with the Seventh Eegiment, referred to in the complaint, is entirely different from that of a private corporation dealing with its own property. The armory in question, as already stated, is a public building, devoted to a public use, and the board of field officers to whom the same was leased under the provisions of the act of 1874, before referred to, bold the same really as trustees for the public, for public purposes, and upon the express condition that the site is to be thereafter exclusively held and used for an armory and drill rooms by said regiment. Green’s Brice’s Ultra Vires, 120.

As such trustees, the board of field officers were not authorized to divert the use of the building in any way from the public use to which it was devoted by the various acts of the legislature under which it was erected, yet if the contention of the plaintiff is sound it was within their power to enter into partnership with another and an entirely different and distinct corporation, by which the latter should have the exclusive use of a large and valuable room for purposes entirely separate and distinct from an armory or drill rooms for the regiment as long as the latter continued in possession of the armory. To enforce such an agreement would be to lend the sanction of a court of equity to a breach of trust.

Stress is laid in the complaint and in the brief of the appellant’s counsel upon the fact that by acquiescing in the occupation of the “Veterans’ room” by the appellants, the respondents are estopped from disputing the validity of their alleged contract with the appellant. This is not so. If the agreement is absolutely void, as not within the power of the defendants, no acquiescence can estop them as public officers and trustees of a public trust from alleging when affirmative action is demanded from the court by the appellant that the agreement, if made, was beyond their powers and a violation of their duty as trustees. Nor is there any force in the appellant’s contention that the facts necessarily admitted by the demurrer preclude the respondents from claiming that no cause of action is stated in the complaint.

The complaint refers to the acts of the legislature from which the parties to the alleged agreement derive their powers, and those acts show the public character of the armory and the attitude which the officers alleged to have entered into the agreement occupied towards the public, and define and limit those powers so clearly that the legal rights of the parties cannot be misunderstood. .

A perusal of those acts in connection with the facts- contained in the complaint renders it impossible for the court to say that the complaint alleges any agreement which it was within the power of the respondents to make.

We might elaborate the views which we entertain in regard to this case at still greater length, but conceiving it to be perfectly clear that the plaintiff has acquired no legal rights under the alleged action of the field officers of the Seventh regiment and others, and that if such rights were attempted to be bestowed by those officers they acted in violation of their duty, we deem it unnecessary to pursue the subject further.

The judgment rendered at the special term was, in our opinion, in all respects correct, and it must, therefore, be affirmed, with costs and disbursements to the respondents.

Daniels, J., concurs._


source: Caselaw Access Project

author: Van Brunt, P. J.

license: Public Domain

text:
    Jacob A. Zimmer et al., Resp’ts, v. Christian Jourgensen, App’lt.

      (Supreme Court, General Term, First Department,

      Filed May 15, 1891.)

    -Contract—Completion of building by owner.
    A building contract did not specify any time for completion of the work, but provided that if the contractors did not provide a sufficiency of materials and workmen the owner should have power to do so after three days notice, and the expense should be deducted from the amount of the contract. The owner having completed the building under this provision, Held, that it was necessary for- the contractors, before they could collect the balance of the contract price, to show what it cost the owner to complete the contract, and that it was error to base a judgment on the opinion, of experts as to what the cost of completion should have been.
    Appeal from judgment entered upon referee’s report.

      C. G. Coe, for app’lt; J. G. Flammer, for resp’ts.
   Van Brunt, P. J.

This action was brought to recover an alleged balance due to the plaintiffs upon a contract for altering defendant’s building, 96 and 98 Maiden lane, under a written contract entered into between the parties.

The referee found that on the 21st of March, 1890, the defendant entered into a contract with the plaintiffs whereby the plaintiffs agreed to make certain alterations in the defendant’s building according to drawings and specifications made by one George A. Schellinger, an architect, and also to provide the materials for the completion of said work, for which the defendant promised and agreed to pay the plaintiffs the sum of $14,199, as follows: $4,000 when the third tier of beams were placed in position; $4,000 when the roof was on, and the balance, $6,199, after the entire work was completed. There was no time fixed in the contract for the completion of the work thereunder.

It was provided in said contract that if, at any time during the progress of the work, the plaintiff failed to provide a sufficiency of materials and workmen, the defendant should have power to provide the materials and workmen after three days notice given to the plaintiffs to finish the work, and that the expenses should be deducted from the amount of the contract.

Immediately after the execution of the agreement the plaintiffs commenced said alterations and additions in conformity with the provisions of the contract, and continued said work until the 20th of August, 1890, when the defendants refused to permit the plaintiffs to complete the contract, and prohibited them from entering the said buildings. Prior to the 15th of August, 1890, the plaintiffs refused and neglected to supply a sufficiency of workmen and materials, on which day the defendant, having just and reasonable cause, served on the plaintiffs a notice in writing according to the fourth section of the contract, and thereupon proceeded to finish the work left undone under the contract Prior to the 20 th of August the defendant had made the first and second payments specified in the contract, but made no further payments thereunder. The amount necessary to complete the work on the contract remaining unfinished on the 20th of August, being the fair, reasonable value and cost of said work, was $3,954, which sum on being deducted from the sum of $6,199, the final payment provided for in said contract and remaining unpaid, left a balance of $2,605 due and owing from the defendant to the plaintiff on said work, and for this amount, with a small balance for extra work, the referee gave judgment

The referee has utterly failed to inform us upon what theory or basis he arrives at the sum mentioned by himand we have been unable to ascertain how any such result was reached. The respondents’ counsel also confesses his inability to determine this question, because 'he claims that a much larger sum should have been awarded to his clients.

But there is one error that pervades the whole case, and it distinctly appears that the whole trial was conducted upon an erroneous theory. It seems to have been considered that the plaintiffs upon proving by opinions of experts what was a reasonable amount to finish the work left undone were entitled to recover the balance. This is not the contract Although no date was fixed in the contract for its completion, the plaintiffs were bound to proceed with reasonable diligence, and if they unreasonably delayed the performance of. the contract the ‘defendant had the right to stop them in the completion of the ‘work, and take the matter into his own hands; and were it ’not for the provisions in the contract in reference to the happening of that contingency, the plaintiffs could not have recovered anything upon the contract if there was any substantial part of ¡it left unfulfilled.

To relieve the plaintiffs from such a contingency the fourth clause of the contract was inserted, which authorized the defendant in case of the plaintiffs’ neglect to complete the contract within a reasonable time to complete the same and deduct the cost of completion from the amount of the contract. It was necessary before the plaintiffs could succeed that they should show what it cost the defendant to complete the contract They having broken their contract by their delay, had no cause of action except that conferred by the contract, and they could only make out a cause of action by showing what it had cost the defendant to complete the contract; and unless they were able to establish that there had been negligence in the manner in which the defendant had proceeded to complete the contract that which it cost him was the amount which he was entitled to deduct from the money due on the contract, no matter how many theorists might say that it could have been done for much less. Whereas this whole case seems to have been tried upon the theory that the plaintiffs were entitled to recover what experts might say was the value of the work left undone, no matter what it cost actually to complete it.

It is true that throughout the progress of this case it was claimed in various ways that other and additional work was done than that called for by the specifications. We are unable to state from the referee’s report, or from anything that he has said in respect of his method of coming to a conclusion, as to what he has allowed in- this respect and what he has disallowed. It is evident that he has not taken the evidence of any of the parties entirely" in reference to this matter. He has discredited the witnesses in some particulars and believed them in others ; but in what respects he has discredited them, and in what respects he has believed them, it is impossible for us to determine.

Great stress is laid by the respondents’ counsel upon the testimony of the architect; but it seems to us that an examination of his testimony shows that he is entirely unreliable, and that no Judgment can be based upon anything said by him because his testimony is absolutely incredible.

It cannot be that in the completion of a building broken castings can be considered as good workmanship as those which .are cast originally in the form desired, and yet that is the opinion of this learned architect

Upon the whole case, therefore, we are of the opinion that the referee took an erroneous view of the position of the parties which pervaded his consideration of the testimony throughout

The judgment must necessarily be reversed and a new trial •ordered before another referee, with costs to appellant to abide the event

Daniels and Lawrence, JJ., concur.


author: Daniels, J.

text:
    Frederick M. Hill, Resp’t, v. The Knickerbocker Electric Light & Power Co., App’lt.

      (Supreme Court, General Term, First Department,

      Filed May 15, 1891.)

    1. Attachment—Affidavit.
    An affidavit for an attachment based in part on an assigned claim stated positively the facts in relation to said claim. It also appeared that plaintiff was in the employ of defendant during almost the whole time the assigned claim accrued, and left it a few days before his assignor. Meld, that as it could be assumed that he obtained knowledge of the facts in that manner, his positive statements were sufficient to support an attachment.
    3. Same.
    Where the attachment is not a part of the papers on appeal it may be assumed, to sustain it, that the complaint was before the justice when he issued the attachment; in such case an omission to state in the affidavit to whom the assignment was made is cured by the statement of the fact in the complaint
    Appeal from an order denying a motion to vacate an attach.ment

      Abraham Gruber, for app’lt; John A. Amundson, for resp’t.
   Daniels, J.

The attachment has been issued for two different demands, one owing to the plaintiff directly, and the other acquired by assignment They have been supported by the plaintiff’s affidavit, and sufficiently so, too, as to the demand owing to him personally. But that part of the affidavit devoted to the assigned demand is objected to as insufficient, for the reason that it has not been stated that the facts mentioned in it were, or could have been known to him. They are generally stated as facts within the plaintiff’s knowledge, and in no sense depending on his information.

But in support of the conclusion that they were within his knowledge is the circumstance that the plaintiff was in the employment of the defendant during the time when the assigned demand mainly accrued, he having left the employment on the twenty-ninth day of November, 1890, and the assignor on the sixth, of the following month of December. The services in each instance are stated to have commenced on the same day. And while they were rendered in different pursuits, still there is reason for concluding that the plaintiff had in this manner obtained that, knowledge concerning the rendition of the services of the assignor as enabled him to make the statements concerning it which are contained in his affidavit And when that may be assumed to be-, the state of the facts, the positive affidavit of the assignee may be reasonably accepted and acted upon as the foundation for an attachment Am. Exchange Bk. v. Voisin, 44 Hun, 85; 7 N. Y. State Rep., 381, and Crowns v. Vail, 51 Hun, 204; 21 N. Y. State Rep., 209, support this ruling.

The affidavit is defective in omitting to state to whom the assignment was made. But the attachment forms no part of the papers on the appeal, and it cannot, therefore, be said that it was issued alone upon the affidavit The complaint was sworn to on the same day and may be assumed to have been also before the justice at the time when he subscribed the warrant of attachment. And that avers the assignment to have been to the plaintiff, which supplies this omission in the affidavit itself. The attachment has in this manner been sufficiently supported and the order should be affirmed, with ten dollars costs and the disbursements on the appeal.

Van Brunt, P. J., concurs.


text:
    The People ex rel. Thomas Cecil, App’lt, v. The Bellevue Hospital Medical College, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed May 15, 1891.)

    Colleges—Medical—Have no bight to abbitbabilt withhold degrees..
    A medical college which by its circular specifies the fees and qualifications necessary to entitle a student to a degree, cannot after the student has complied with such terms arbitratarily refuse him his examination and degree.
    Appeal from order of the special term denying motion for a writ of mandamus.

      Seaman Miller, for app’lt; Allan McCulloh, for resp’t.
   Van Brunt, P. J.

The respondent is a medical college, duly incorporated under the laws of the state of Hew York for the purpose of giving instruction in medicine, and by its circulars issued it specifies the fees which are to be paid by students, their course of study and the qualifications which they must possess in order to entitle them to the degree of doctor of medicine. '

The relator entered said college for the purpose of taking the-regular course of study in that institution and procuring the degree of doctor of medicine. At the end of such course, and having fulfilled all the conditions entitling him to present himself for final examination, he was informed by the secretary of the faculty that he would not be allowed to present himself for final examination, nor would said corporation grant him a degree of doctor of medicina

In answer to this application the respondent presents no ground whatever for its action, but insists that it has the right arbitrarily without any cause to refuse the relator his examination and degree.

It seems to us clear that such a position cannot for a moment he entertained. The circulars of the respondent indicate the terms upon which students will be received, and the rights which they were to acquire by reason of their compliance with the rules and regulations of the college in respect to qualifications, conduct, etc. When a student matriculates under such circumstances, it is a contract between the college and himself that if he complies with the terms therein prescribed he shall have the degree, which is the end to be obtained. This corporation cannot take the money of a student, allow him to remain and waste his time (because it would be a waste of time if he cannot get a degree) and then arbitrarily refuse when he has completed his term of study to confer upon him that which they have promised, namely, the degree of doctor of medicine, which authorizes him to practice that so-called science.

It may be true that this court will not review the discretion of the corporation in the refusal for any reason or cause to permit a student to be examined and receive a degree ; but where there is an absolute and arbitrary refusal there is no exercise of discretion.

It is nothing but a willful violation of the duties which they have assumed.

Such a position could never receive the sanction of a court in which even the semblance of justice was attempted to be administered.

" The order appealed from should be reversed, and the motion granted, with ten dollars costs and disbursements.

Daniels, J., concurs.


text:
    Caroline W. Sommer, Resp’t, v. The New York Elevated R. R. Co. et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed May 15, 1891.)

      '1. Railboad—Elevated—Damages—Trial by jury.
    Real estate in front of which defendants’ railroad was built was conveyed by the owners to plaintiff’s grantor, and subsequently they assigned to plaintiff their right to past damages by reason of the maintenance and operation of defendants’ road. In an action for an injunction in case of nonpayment of damages to the fee, and for damages sustained by plaintiff and those assigned to her, Meld, that the cause of action for the past damages which was assigned was strictly one at law as to which defendants were entitled to a trial by jury, and that they could not be deprived of that right by joining it with an equitable cause of action.
    3. Same.
    Where the allegations of the complaint in such an action are just as consistent with an action for trespass as with one for a nuisance, a claim that defendants are entitled to a jury trial as to the whole cause of action, because the complaint alleges a nuisance, is not well taken.
    Appeal from judgment of special term enjoining defendants from maintaining their elevated railway, with a provision for .alternative relief and for past damages.

      S. B. Rogers, for app’lts; C. G. Bennett, for resp’t.
   Van Brunt, P. J.

This action was brought to recover damages, past and future, arising from the erection of the railroad in. front of the premises 358 Ninth avenue. The plaintiff purchased this property on the 2d of July, 1888. She is the wife of Louis Sommer, one of the four heirs at law of Philip Sommer, deceased, who died in 1874 intestate, seized in fee of the premises and. leaving him surviving four children and a widow since deceased. The children continued to hold the title to, and remained in possession of, the premises until the 2d of July, 1888, when the-property was conveyed to one Charles A. Flammer, who on the-same day conveyed the premises to the plaintiff.

This action was begun on the 12th of February, 1889. On the bth of February, 1889, by an assignment in writing, the children of Philip Sommer, the tenants in common, sold and transferred to the plaintiff all their right, title and interest in and to any damage arising by reason of the maintenance and operation by the defendants of the elevated railroad and structure in front of said premises.

The plaintiff asks for an injunction in case of non-payment of the damages to the fee, and incidental thereto, for the past damages accruing as soon as she acquired the title to the property, and also for the damages which had accrued to her predecessors-in title and which had been assigned to her. The answer alleged, amongst other things, that for the injuries or cause of action alleged in the complaint the plaintiff had a complete and adequate remedy at law. When the case came on for trial the counsel moved, amongst other things, that the issue of past damages under the assignment be sent “to the circuit of this court ” (the counsel evidently not being aware that the circuit court is not a part of the supreme court, but an independent tribunal) for trial by j ury, upon the ground that the defendant was entitled to such form of trial as a matter of right.

This motion was denied, and in such denial we think error was committed.

The action for past damages was strictly an action at law. Such right to claim damages had been severed from the realty and the plaintiff had procured title to the same by assignment It was in no way connected with or incidental to her right to obtain an injunction in case future damages to the fee were not paid. The cause of action for those damages which have been assigned was separate and distinct The right to their recovery by the conveyance of the premises had been severed and disconnected from the right to seek equitable relief against the continuance of the trespass;

Under these circumstances the defendants had a right to a trial by jury in respect to that cause of action. This principle seems to have been distinctly enunciated in Wheelock v. Lee, 74 N. Y., 495, where it is held that the joinder of an equitable cause of action with others purely legal does not deprive the defendant of a right to a trial by jury, and that when such an action is brought to a trial at special term, and the defendant demands a jury trial, the judge must determine whether any of the grounds upon which a recovery are sought are such as at the adoption of the constitution were redressed by an action at law, and if so, should direct the case to be tried by a jury at circuit, or at all events should refuse to try the cause without a jury. By joining the legal cause of action with the equitable one, the plaintiff has no power to deprive the defendant of the constitutional right to a trial by jury. Although the plaintiff may himself, by joining such causes of action, be deprived of the right to a trial by jury, such joinder in no way affects the rights of the defendant This case, so far as the assigned damages were concerned, was an action for damages for a past trespass, in respect to which no equitable relief could be granted, and the defendant was entitled to a jury trial in respect thereto.

The point that defendant was entitled to a jury trial as to the whole cause of action because the complaint alleged a nuisance is not well taken. The allegations in the complaint are just as consistent with the action of trespass as with the action for a nuisance. There is nothing which stamps the complaint with the character of an action for a nuisance such as there was in the case of Libmann v. Manhattan R. R. Co., 36. N. Y. State Rep., 639, and if there was any doubt upon that proposition the defendant should have called upon the plaintiff to declare, before proceeding with the trial, whether he claimed equitable relief because of a continuing trespass or because of a nuisance.

Under such circumstances if the plaintiff had claimed damages upon the ground of a nuisance then, clearly, the defendant would have been entitled to a jury trial; but such did not appear.

We think that the judgment must be reversed and a new trial ordered, with costs to appellant to abide event

Daniels, J., concurs.


text:
    Magdalena Bach, Resp’t, v. The New York Elevated R. R. Co. et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed May 15, 1891.)

    Railroad—Elevated—Parties—Life tenant.
    Where the plaintiff in an action against an elevated railroad is a tenant for life or so long as she remains unmarried, the persons interested in the fee should be brought in so that there may be a complete determination of the matter at issue, and the proper award made as a condition of refusing an injunction.
    Appeal from judgment of special term granting injunction and damages.

      S. B. Rogers, for app’lts; C. G. Bennett, for resp’t.
   Van Brunt, P. J.

This action was brought for an injunction and damages arising from a trespass committed by the erection of the defendants’ railroad in front of premises 360 Ninth avenue.

Upon the opening of the trial of the case and the proof of the title of the plaintiff it appeared that the only interest in the premises which the plaintiff had was that of a life tenant provided she so long unmarried. Objection was then taken to proceeding with the case because the proper parties were not before the court, which, objection was overruled and exception taken; and the court having ascertained the probable length of life of the plaintiff gave permanent damages upon that theory, not apparently regarding the contingency that the plaintiff might marry and thus terminate the estate.

We think in-cases of this description all the parties should be before the court so that there may be a complete determination of the matter at issue, and that the defendants in the first place should not be required to run all the risk of the death of the plaintiff prior to the anticipated time, and secondly in a case such as the one at bar should not be required to take the hazard of the plaintiff’s remarrying, because it is a well-established historical fact that women are never too old to re-marry; and, therefore, if any claim is made because of the age of the plaintiff that such contingency is not to be feared, common experience shows such claim to be ill-founded.

[• The only way in which there can be a complete determination of the rights of the parties to this action is to bring in those persons who represent the fee and then to apportion the damages in such way as may be equitable and satisfactory to the parties. Thus the defendants would acquire that which they-had paid for without the hazards to which attention has already been called.

We think, therefore, that the learned judge should have compelled the other parties interested in the fee to have been brought in so that the proper award, as a condition of refusing an injunction, might have been made.

The same question as to the trial by jury because the action was in the nature of an action for a nuisance as was raised in the case of Sommer v. N. Y. Elevated, decided herewith, is raised in this case, and the disposition of it there made disposes of that exception so far as this case is concerned.

The judgment should be reversed and a new trial ordered, with costs to appellant to abide event.

Daniels, J., concurs.


author: Peckham, J.

text:
    The First National Bank of Champlain, Resp’t, v. Orville K. Wood et al., App’lts.

      (Court of Appeals,

      Filed June 2, 1891.)

    1. Partnership.
    One partner may give a note upon firm matters to another partner in the same firm, and the holder may maintain an action at law upon it without an accounting.
    2. Same—Assignment for benefit of creditors—Preferences.
    O. K. Wood & Co., a solvent firm, having had dealings with V. A. Wood & Co., a firm composed of two members of O. K. Wood & Co., made a settlement, and being largely indebted to Y. A. Wood & Co., at the request of the two members gave notes’ for the amount due, one-half to each of their wives. Eight years after, O, K. Wood & Co. made an assignment, preferring the said wives for the amount due on notes. Feld, that the preference was valid, as the transaction was the same as if the notes had been made to the two members of the firm and endorsed by them to their wives as voluntary gifts; that the donees received a perfect title and absolute ownership in the notes, as there were then no equities existing between the original parties, and such title was not diminished by any subsequent dealings between them.
    3. Same.
    A member of a firm who has had an accounting with the firm, and upon that accounting has been found to be its creditor, and who takes from the firm a note for the debt due him, receives an express promise which excludes any implication whatever and may be enforced according to its terms.
    Appeal from judgment of the supreme court, general term, third department, affirming judgment for plaintiff entered upon report of referee.

      Geo H. Beckwith, for app’lts; R. Corbin, for resp’t.

       Reversing 10 N. Y. State Rep., 87.

   Peckham, J.

The report of the referee shows that at the time the notes in question were executed by the firm of O. K. Wood & Co. it was solvent, and that it had at such time net assets of the amount of over $65,000, which increased annually up to 1882, when the sum was over $152,000. It further appeared that in 1876 the firm was composed of three members, viz.: Orville K., Victor A. and Albert O. H. Wood, and it had had mutual dealings with a firm called V. A. Wood h Co., which was composed of but two of the three members of O. K. Wood & Co., viz.: Orville K. and Victor A. Wood, and there had been a settlement of such mutual dealings, and after the settlement it appeared that the firm of O. K. Wood & Co. was indebted to the firm of V. A. Wood & Co. in a certain amount then stated, and for one-half this sum it was arranged the firm should give its note to V. A. Wood, and for the other half to O. K. Wood.

> In carrying out this agreement the firm, at the request of V. A. Wood, made its note for his one-half of the debt, payable to his wife, and delivered it to V. A. Wood, who accepted it and immediately delivered it to his wife as a gift, who received it and still retains it. Practically the same thing was done with the other half of the indebtedness to O. K. Wood. The firm paid interest on the notes each year up to 1881 by giving its notes therefor. Eight years subsequent to the giving of the notes, and in May, 1884, the firm of O. K. Wood & Co. became insolvent and made an assignment for the benefit of its creditors, in which it preferred as creditors the wives who held the notes above mentioned, to the amount thereof and interest.

In December, 1884, the plaintiff recovered judgment for nearly $8,000 against the firm of O. K. Wood & Co., upon an indebtededness of which the sum of $1,500 accrued December 3, 1879, and the residue subsequent to that date. The plaintiff having issued execution upon its judgment, which was returned unsatisfied, commenced this action to set aside the assignment and for the appointment of a receiver and the payment of its judgment out of the property coming to him. The evidence is not returned, and it is clear from the facts found that the referee based his finding that the assignment was fraudulent and void as against the plaintiff upon the sole fact that this preference was given as above stated. An accounting had been had between these'firms, and a settlement reached, and it then appeared that the O. K. Wood. & Co. firm owed the other firm the amount named. This is admitted. The notes were given in acknowledgment of such indebtedness. If they had been given directly to the members of the Y. A. Wood & Co. firm, that firm could ^have maintained an action upon them at their maturity against the makers if the notes had not been paid. One partner may give a note upon firm matters to another partner in the same firm, and the holder may maintain an action at law upon it without an accounting. Townsend v. Goewey, 19 Wend., 424; Crater v. Bininger, 45 N. Y., 545. See, also Cole v. Reynolds, 18 id., 74.

Here there was an accounting, and the notes having been given in acknowledgment of the debt then existing, and being in the hands of third persons, no question can arise in the law of partnership relating to the so-called anomaly of one person suing himself. But the case of Cole v. Reynolds, supra, shows there is no difficulty even there where the case is that of two firms with one or more common members. The result of the action of the parties was simply a transfer of the firm debt to the respective wives. At this time the firm was solvent. The transaction was in substance the same as if the makers had made the notes payable to the two members of the other firm, and had thus delivered them to such members, and those members had then endorsed and delivered them to their wives as free and voluntary gifts. If the makers of the notes had thus delivered them to the other partners as payees, the title to the debt of which the notes were evidence would, have then gone to the payees,.and if the payees had transferred the notes by gift and delivery to their wives, the title to that debt would have been also transferred with and followed the notes and would have remained one-half with each of such wives. This result. is not in the least affected because the transaction took the form of a division of the debt into two parts, evidenced by notes for each half, and payable one half to the wife of V. A. Wood, and one-half to the wife and children of O. K. Wood. This was a matter wholly immaterial to the makers of the notes, and when, pui’suant to the arrangement, they delivered the notes thus made to the two members of the V. A. Wood & Co. firm, they did precisely the same thing as if they had made the notes payable to the order of that firm instead of to the order of their wives. And when V. A. Wood and O. K. Wood transferred the notes thus made to their wives, it was precisely the same as if the notes had been made payable to the firm or to bearer, and they had then transferred them. It is true that at the time of the transfer all the equities then existing between the makers of the. notes and the two members of the Y. A. Wood & Co. firm accompanied the notes in their transfer by the members of such firm to their wives. In fact there were no equities. The debt was an honest one, it was due and the firm that owed it was largely solvent and recognized its obligation and gave the notes. It is admitted that the donees might at that time have maintained an action against them'akers on the notes and recovered thereon. If so,^ it could only be upon the ground that they had become the owners of the notes. They became such owners only by virtue of a voluntary gift accompanied by an immediate and unconditional delivery. This, indeed, did give to the donees a perfect title and absolute ownership to and in the notes, as there were then no equities existing between the original parties. Byles on Bills, 7th Am. Ed., 126; Milnes v. Dawson, 5 Ex., 948. The notes represented the original debt. How is it then that such ownership, although absolute at the time of the transfer and giving the holders of the notes a right of action, shall, nevertheless, if not acted on by collecting the money, be liable at any future time to be changed, and, indeed, extinguished by matters subsequently arising between those original parties ? I know of no principle which would authorize it.

Upon these facts the respondents had become the absolute owners of the notes to the same extent they would have been if they had paid value therefor, and I am of the opinion that such title and right of recovery are in no way diminished by the subsequent dealings or complications of those original parties between themselves, any more than their title would have been affected thereby had they paid a consideration of dollar for dollar equal to the face of the notes. Byles, supra,; Milnes v. Dawson, supra.

People who receive gifts of negotiable securities take them subject to all equities then existing between the original parties, but not subject to all which may thereafter and while they are absolute owners of such securities exist between those parties. Chamberlain v. Gorham, 20 Johns., 144; Hedges v. Sealy, 9 Barb., 214, Furniss v. Gilchrist, 1 Sandf. Superior Ct., 53 ; Elwell v. Dodge, 33 Barb., 336, 343; 2 Rand, on Com. Paper, § 675; Baxter v. Little, 6 Met., 7.

If the parties to whom these notes were delivered by the Y. A. Wood & Co. firm had been in no way connected with that firm, and had paid value for the notes, I think they would not have acquired any more of a legal title to them than did the wives of the two parties.

The only difference in their rights upon the notes would lie in the fact that certain defenses, if they existed at the time of the transfer of the notes, might be sufficient for the makers in the case of the wives of the partners, while they would be unavailing in the other case. As no such defenses in fact existed, the title acquired by the wives by reason of the gift was perfect. The 0. K. Wood & Co. firm owed this debt, and it was a firm debt, and it had never been paid. There was therefore no reason why it should not be preferred in this assignment The case of Phipps v. Sedgwick, 95 U. S., 3, is not in point. It appears in that ease that the member of the firm (Mr. Place) had given his obligations to pay what amounted to $90,000 on a house building, and those were his personal obligations, and at their date the debt they represented was not a debt of the firm. If he afterwards took the money of the firm to pay those individual obligations at a time when the business of the firm could not stand it, the court held the transaction must be treated as of the date when the money was so withdrawn and its honesty tested by the condition of the business at that time.

In this case, the debt was in its origin a firm debt, and the firm gave a written obligation to pay it. By a legal transfer the debt has become the property of the wives of the then creditor members of the firm, and they became such owners at a time when there was no defense to the notes of any name or nature as between the original parties to them. The plaintiff, in answer to these views, claims that the notes should be treated in the same way as if they represented advances made by the partners to the firm, and he insisted that they can be paid only upon an adjustment of the partnership accounts at the time of the dissolution of the partnership, and until then they constitute no indebtedness. The truth is, the parties made no advances to the firm, and the notes cannot represent a substance which never existed. The makers of the notes owed the two members the sum represented by the notes, and that sum was a proper partnership debt. A partner who simply makes an advance to the firm, relying upon an implied promise of the firm to repay, occupies a totally different attitude from one member of a firm who has had an accounting with the firm and upon that accounting has been found to be its creditor, and who has then taken from the firm a written promise to pay the debt thus found due him.

In the first case, the promise which is implied in favor of the partner who makes the advances is that the firm will repay such sum as may be found due the member upon an accounting, while in the other case, the express promise excludes any implication whatever, and may be enforced according to its terms. The result is that in some cases the assignee of the debt can subsequently maintain an action thereon where the assignor at the time of the commencement of the action could not. This is not at all inconsistent with the cases which hold the principle that no one deriving under the partner ^assignor) can be in a better position than such partner, that is, a better position than the partner was w'hen he assigned.

The case of Fox v. Hanbury, Cowp., 445, as stated by Mansfield, C. J., involved the question whether the assignees under a joint commission against two partners, taken out after the bankruptcy of both, could maintain an action of trover against a person in possession of goods under a sale or consignment bona fide for a valuable consideration, and without any mixture of fraud, from one of the partners who had not then committed any act of bankruptcy himself, but after an act of bankruptcy committed by the other partners. The court held the consignment was good and that the assignees stood exactly in the position of the bankrupts, and they could not come against a bona fide consignee of the solvent partner, and therefore the firm assignees could not. There is the element in that case of a bona fide consignee for value. The only effect of the consideration would, however, be to uphold the transaction, where if there had been only a gift it would not- have been upheld because of an assignment of property of the firm after an act of bankruptcy by one of its members.

In this case if the members of the V. A. Wood & Co. firm had kept the notes in their own possession without assignment until the O. K. Wood & Co. firm became insolvent, and had then by gift transferred the notes to their wives, the latter would have taken simply the right which their husbands had, and as they could not at the time of the transfer have maintained an action' upon the notes without an accounting and the preference of other firm debts, it would follow that their voluntary transferees could not. So the question is really reduced to the point as to what was the right of the transferee at the very moment of transfer. If at that time the notes could have been sued upon by the transferor, that right went to the transferee, and could not, therefore, be altered by subsequent matters between the original parties.

The principle of the case of Menagh v. Whitwell, 52 N. Y., 146, is in no wise antagonistic. The questions there arose upon certain mortgages made by two out of three members of a firm of their interests in the firm to secure individual debts and upon a transfer by a third member of his interest therein to a stranger. It was held that a transfer made or a lien given by one member of a firm, transferring ór incumbering the corpus of the partnership property to pay or secure an individual debt, although made with the consent of the other partners, is void as to the creditors of the firm, unless the firm were then solvent and sufficient property remained to pay the partnership debts.

The case of Tarbell v. West, 86 N. Y., 280, is in principle the same as that just cited from 52 N. Y., supra. Both cases arose under an attempt to transfer or mortgage the individual interest of a member of the firm, and the doctrine was reasserted in the latter case that a purchaser from one member of a firm of his interest therein acquires only the assignor’s share of the surplus after an accounting and adjustment of the partnership affairs, with an exception in regard to real estate under certain circumstances not important to be considered here.

I have found no case which, under the circumstances of the case at bar, prohibits the making of a like promise, or its transfer, or the right of the makers to provide for the payment of the firm debt by a preferential assignment.

The preferences in the individual assignments of 0. K. and Y. A. Wood of their individual property to pay these notes, may have been invalid. There are scarcely facts enough to enable us to say, and they may be presented in an entirely different manner upon a new trial.

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

All concur.


author: Finch, J.

text:
    Margaret E. Cregan, Resp’t, v. William H. Marston et al., App’lts.

      (Court of Appeals,

      Filed June 2, 1891.)

    1. Master and servant—Duty of master to supply proper tools.
    Plaintiff's intestate was killed while loading coal into buckets to be raised by a derrick, t?y the breaking of a rope which allowed the bucket to fall upon him. The -lengths of rope used’were called “ falls,” and would last from fourteen to twenty days. Defendants kept a large number on hand. Usually the engineer or his assistant made the application but anyone could give the notice and get the new “ fall.” The engineer had examined it a day or two before and deemed it safe. The court charged that it was the duty of the master to the servants to watch the use of the rope by them and its changes and condition; that the engineer was his agent and deputy for such purpose, and his negligence, if it existed, that of the master. Held, error.
    2. Same.
    While it is the master’s duty to keep a machine or appliance in order, and he cannot delegate the duty to another, it is not the master’s duty to repair defects arising in the daily use of the appliance, for which proper and suitable materials are supplied, and which may easily be remedied by the workmen, and are not of a permanent character or requiring the help of skilled mechanics.
    Appeal from judgment of the supreme court, general term, second department, affirming judgment in favor of plaintiff entered upon verdict

      E. Louis Lowe, for app’lts; Chas. J. Patterson, for resp’t.

       Reversing 32 N. Y. State Rep., 913.

   Finch, J.

The plaintiff’s intestate was killed while loading coal into buckets which were raised from the hold of a vessel by the aid of a derrick. The rope used for that purpose, and which lifted the loads to the control of the gaff, suddenly parted and the falling mass crushed the deceased, who died almost immediately from his injuries. There is no question of contributory negligence in the case, and not the least doubt that the defendants did their full duty so far as it consisted in the selection and sup-. ply of the rope used.

The controversy is thus narrowed by the facts to the single inquiry whose duty it was to observe and examine the condition of the rope and change it when so worn that it became unsafe. The lengths of rope used in the derrick were called “ falls.” The ordinary limit of safety in their use was proved to have been from fourteen to twenty days; rarely less than that and sometimes considerably more. Everybody connected with the business knew the consequences of excessive use and the necessity of frequent changes of the falls, but at varying and uncertain periods of time. The fall which was sound and safe in the beginning of a morning’s work might become frayed and dangerous, before night, and if it did would become so before the eyes of all the workmen dependent upon it for its use. And that is true, because the proof given by the plaintiff shows clearly that the rope which is sound originally becomes pulpy internally only when use has first affected it externally.

Now, it is conceded that the defendants kept on hand and ready for use at any moment an adequate supply of these falls and of the best and most approved character. After purchasing .a coil of rope measuring about one thousand feet in length it was at once cut up into falls, the ends were tied to keep them from unravelling, each fall was marked with a tag stating its length, and they were then hung up in a dry store room under lock and key and so kept ready for immediate use and meantime protected from the weather or from injury. If one was wanted word was sent to the office and the new fall at once supplied for use at the dock. Usually the engineer or his assistant made the application, but anybody engaged in the work could give the notice and get the new fall

It does not appear that any such application coming from any of the workmen was ever unheeded or refused. The workmen, therefore, were left in a position of perfect safety as to the sufficiency of the falls against everything save their own negligence or error of judgment The rope was swinging before their eyes, and would disclose its approaching weakness on the surface before it became rotten or pulpy within, and they were able to know how long it had been used, and so whether prudence required it to be changed. They were at liberty, and knew they were at liberty, to supplant one which exhibited marks of weakness with another both new and sufficient from the supply kept on hand. They were in the daily habit of observing its condition, and it was specially the custom of the engineer to do so. He had examined it a day or two before the accident, and deemed it safe.

On this state of facts the court charged that it was the duty of the master to the servants to watch the use of the rope by them and its changes of condition; that the engineer was his agent and deputy for such purpose, and that the negligence of the engineer, if it existed, was that of the master. The doctrine at once renders unexplainable all the line of cases in which some defect in a machine has occurred from its use ,and the master has been held freed from responsibility if the machine furnished was originally safe, and he neither knew, nor ought to have known, of the exist•ence of the defect, for it puts the duty of daily.watch and discov- • ery on him, and so requires no notice or complaint or lapse of time to put him in default.

I think the doctrine asserted, was an extension of the master’s duty beyond its natural and proper limits. Probably the existing rule was founded upon the truth that certain things essential to the safety of the servants must necessarily, in the management of the business, emanate from the master and remain in his absolute control, and so the servants should not be responsible to one .another for defects which they could not repair for lack both of authority and means. The servant cannot furnish the machines. That is the master’s right and duty. But the servant who uses them can and should keep them in order for their proper and safe daily use when furnished with the necessary means of so doing,, .and when perfect! v capable of correcting the defect

It is undoubtedly true, as we have often said, that it is the duty', of the master to keep a machine or appliance in order, and that he cannot delegate the duty so as to escape responsibility. But that is a general rule and has its qualifications and limitations. One of those is that it is not the master’s duty to repair defects arising in the daily use of the appliance, for which proper and suitable materials are supplied, and which may easily be remedied by the workmen, and are not of a permanent character, or requiring the help of skilled mechanics. An apt illustration will be found in the case of McGee v. Boston Cordage Co., 139 Mass., 445. The machine was used for the passage of hemp over heckle pins.. These sometimes became bent so that the fibre clogged, and then the machine was stopped and the workman drove out the bent pin and inserted a new one from a supply furnished by the master for that purpose. The change was held to' be, not the duty of the master, but that of the servants, and an ordinary detail of their daily duty. It would have been almost absurd to have held otherwise. So in Webber v. Piper, ,109 N. Y., 496; 16 N. Y. State Rep., 423, the master had supplied the means of sharpening saws which had become dull, and duplicate saws to take their place when removed, and had assigned the duty of removal to-one of his servants whose neglect, which resulted in an injury, was held to be that of a fellow servant The same doctrine was-declared in Johnson v. Towboat Co., 135 Mass., 209, a case almost: exactly like the one before us, and in which the injury resulted from the use by the servants of an unsound rope instead of substituting a new one which the master had supplied. In that case it was said that the master “having provided sufficient appliances, a part of which required occasional renewal from the wear and tear of the use for which it was intended and provided sufficient means for such renewal, and employed Moore to have the-superintendence of the workmen and the apparatus and appliances, the use of the means provided for keeping the tackle in-suitable condition was as truly a part of Moore’s duty as servant, as was the use of the apparatus for the direct purpose of the business, and in performing that duty he was a fellow servant with the plaintiff”

The doctrine thus declared was not at all repudiated or even modified by the later case of Daley v. The Boston & Albany R. Co., 147 Mass., 101, upon which the general term rely. In that, case, the operatives who managed the machine had no duty or responsibility as to a change of the ropes, but were dependent upon the judgment and consent of two other employees, who were not claimed to be fellow servants of the workmen. And that-case draws clearly the distinctions between an original defect in the rope provided and one occurring from its use, and between the duty of ordinary repairs devolving upon the servants and those of a permanent or special character which attach to the-master. What was said as to the custody of the ropes had some force in that case, but has no application to the one before us. Here there does not appear to have been at the dock any suitable place for keeping the spare falls, and it was neither negligence nor imprudence to put them under cover or protect them. by a lock, so long as they were at all times subject to the needs or requirements of the workmen.

The cases cited and their doctrine appear to be founded upon what is determined to be the implied contract relation between the master and servant. Their mutual duties grow out of that relation, and change and vary as it is changed or varied by the facts which indicate and measure it Where those facts show that in the understanding of both parties a class of ordinary repairs are to be made by the servants with materials furnished by the master for that express purpose; that they and he regard it as a detail of their own work; that it is something entirely within their capacity and not dependent upon the skill of a special expert, and that the necessity springs from their daily use of the appliance, occurs at different and unknown periods in their service, and is open to their observation in the absence of the master, the inference is inevitable that the contract relation between the parties makes it a duty of the servants and a detail of their work to correct the defect when it arises with the materials furnished.

The cases cited by the respondent do not touch the question. In one the defect was in an engine, which only an' expert could, repair and for which the servant was furnished with no materials., Fuller v. Jewett, 80 N. Y., 50. In one the chain of an elevator: had grown thin and no new one was supplied. Corcoran v. Holbrook, 59 N. Y., 518. In two the cars or the platform were defective when supplied by the master. Gottlieb v. N. Y., L. E. & W. R. R., 100 N. Y., 462; Benzing v. Steinway, 101 id,, 547. And in one the master permitted the use of a rope which was rotten from a year’s exposure to the weather and without supplying a new one. Baker v. Allegheny V. R. R. Co., 95 Pa., 211. In Cone v. D., L. & W. R. R., 81 N. Y., 206, the defect was in the engine, which the servants using it could not be required or expected to repair, and in Murray v. Usher, 117 N. Y., 543; 27 N. Y. State Rep., 928, the platform fell from an original defect in construction.

In the present case the master exercised all the reasonable care required. The rope had not been in use so long as to charge the master with knowledge that it had become unsafe, and he had a right tuo assume that the servants would take no needless risks. 43o far even as the engineer is concerned there seems to have been on his part an error of judgmen^, but not necessarily any negli.gence in the performance of his duty.

The judgment should be reversed and a new trial granted, with costs to abide the event.

All concur.


author: Ruger, Ch. J.

text:
    Robert R. Rhodes et al., App’lts, v. Daniel E. Newhall, Resp’t.

      (Court of Appeals,

      Filed June 2, 1891.)

    ‘Carriers—Bill or lading.
    Plaintiffs, common carriers, gave the consignee bills of lading acknowledging the receipt on board of their vessel at Duluth of 54,000 bushels of wheat to he delivered to defendant at Buffalo, at 3| cents freight per bushel, ‘ ‘ all the deficiency in cargo to be paid by the carrier, and deducted from the freight, and any excess in the cargo to be paid for to the carrier by the consignee.” Plaintiffs only delivered 53,173 bushels, being a shortage of 837 bushels, worth §713.41. Held, that defendant was entitled to have the value of the deficiency deducted from the stipulated freight on the 54,000 bushels.
    Appeal from judgment of the supreme court, general term, fifth department, affirming judgment entered in Erie county on report of referee.

      Benjamin H. Williams, for app’lts; George J. Sicard, for resp’t.

       Affirming 35 N. Y. State Rep., 415.

   Ruger, Ch. J.

This action was brought by a carrier to recover from the consignee the freight on a cargo of wheat transported from Duluth to Buffalo and deliverable to the defendant on payment of the freight and charges.

It is not disputed but that the plaintiffs executed and delivered to the consignee bills of lading, acknowledging the receipt on board their vessel of 54,000 bushels of wheat at Duluth, to be. transported to Buffalo and there delivered to the defendant, subject to.a charge of three and three-fourths of a cent per bushel for freight; and containing the further provision that “all the deficiency in cargo to be paid by the carrier and deducted from the freight, and any excess in the cargo to be paid for to the carrier by the consignee.”

It is conceded by the answer that the carrier delivered at Buffalo to the consignee but 53,173 bushels of wheat, being 827 bushels less than the quantity specified in the bill of lading and $712.41 less in value; and the question in controversy is, whether the consignee was entitled to deduct this sum from the gross-amount of freight earned by the vessel.

The plaintiff gave evidence tending to show that they delivered all of the wheat at Buffalo which they received on board at Duluth. The trial court deducted the value of the deficiency from the stipulated freight on the 54,000 bushels and rendered-judgment for the balance; and the general term has affirmed its judgment

We think that the. cause was correctly disposed of. in the courts below. The plaintiffs seek to avoid the effect of the stipulation in the contract, fixing the quantity of wheat received by them at Duluth, by reference to the cases holding that an acknowledgment in a bill of lading specifying the quantity of merchandise received by them operates as a receipt only and is subject to correction by proof that such merchandise was not, in fact,, received. Citing Ellis v. Willard, 9 N. Y., 529 ; Abbe v. Eaton, 51 id., 410; Meyer v. Peck, 28 id., 590, and other similar cases.

The rule acted upon in those cases, as cited in the head note of Meyer v. Peck, is that “ an ordinary bill of lading is not conclusive, as between the original parties, either as to- the shipment of goods, or the quantity; as to those matters it operates merely as a' receipt and is open to explanation on the trial by parol evidence.” We feel no disposition to question the authority of these cases, or ¿o disregard the principle there laid down, but think that this case. is clearly distinguishable, in its facts, from those considered in the cases referred to. Here the parties have provided by express language for the particular contingency arising under the contract, and we can evade its operation only by disregarding one of the most imperative rules in the interpretation of contracts. A primary rule of construction requires a contract to be so construed as to give some meaning and effect to all of the language, and if the words used can have an operation which leads to no absurd results, and is not contrary to some provision of law, that meaning must be adopted rather than one which would render the language meaningless and inoperative. The provisions fixing the quantity of grain received and providing a mode by which any deficiency or excess in quantity shall be dealt with do not seem susceptible of any other effect than to prescribe a rule by which the consignee can determine the amount of freight and. charges payable by him to the carrier. Tor this purpose the provision has a legitimate and natural office to perform, which also accords with the plain signification of the language used.

It seems reasonable -that parties should agree upon the quantity of grain shipped for transportation to distant markets with a. view of avoiding controversies between the carrier and consignee upon the subject The cargo was here weighed into the vessel under the supervision and control of the carriers, and they had every opportunity to learn the quantity of grain actually received by them. They thereupon entered into a contract with the consignor whereby it was agreed that any deficiency in the cargo should be paid for by them, and deducted from the freight, and. any excess in quantity should be paid to them by the consignee.

The deficiency and excess referred to could have related to a variation from the quantity specified in the bills of ing, as there was no other standard furnished by which a variation could be estimated. This was a contract which the parties were competent to make and a consideration for the promise pay for any deficiency was secured by the right to collect value of any excess. These were mutual obligations and obviously incurred for the purpose of avoiding disputes over quantity actually received by the carrier, and to estop him from disputing the correctness of his acknowledgment The parties plainly contemplated the contingency of a variance in the course of transportation between the quantity of grain admitted to have been received by them and that subsequently delivered; and provided'in express terms the mode by which their respective rights should be adjusted in that event The language of the contract is plain and unambiguous, and the right of the parties to make is indisputable. Judge Denio said in Meyer v. Peck, supra: “ doubt it might be made a matter of express contract that the rier should account for the precise quantity acknowledged in instrument and that no other evidence on that point should be ceived.” See Lishman v. Christie, L. R., 19 Q. B. Div., 333. This, we think, they have done by the contract in question. The signee in this case is but the agent of the consignor and is authorized to pay only such freight as is provided for by the bill of lading. He can hold the property only for such advances as the bill of lading directs him to make, and there is no principle upon which he can be made liable for any greater amount than that called for by the letter of his authority to pay.

We have not considered the cases treating of the doctrine of estoppel as it is unnecessary, in the view we take of the case, to invoke that principle.

The judgment should be affirmed.

Judgment affirmed, with costs.

All concur.


author: Andrews, J.

text:
    John L. Otis et al, Trustees, Resp’ts, v. Moses B. Shantz, App’lt.

      (Court of Appeals,

      Filed June 2, 1891.)

    1. Pleading—Answer.
    In an action upon notes given for property purchased by defendant of trustees appointed to liquidate the debts of a corporation, the answer alleged that defendant was induced to become a party to the liquidation by fraud of the corporation and asked that it be canceled. Held, that this answer was no defense, as the proper parties were not represented in this litigation to entitle the defendant to judgment upon this issue.
    2. Same.
    The fact that defendant was induced to execute the agreement by fraud is no answer to his obligation arising on a purchase from the trustees, nor does it enable him to set off against the debt a claim against the corporation.
    3. Same—Demurrer—Code Civ. Pro., § 495.
    Section 495, Code Civ. Pro., only applies where defendant demands affirmative judgment on his counterclaim, and has no application where the defendant seeks to use his counterclaim for the purpose simply of extinguishing the claim of the plaintiff.
    Appeal from judgment of the supreme court, general term, fifth department, reversing interlocutory judgment entered on the decision of the court at special term, overruling the plaintiff’s demurrer to defendant’s answer.

      Myron T. Bly, for app’lt; Henry M. Hill, for resp’ts.

       Affirming 28 N. Y. State Rep., 69,

   Andrews, J.

The plaintiffs do not sue to enforce any obligation under the “agreement in liquidation.” The action is upon notes given for property purchased by the defendant of the trustees after they had assumed the trust The first count in the answer alleges that the defendant was induced to become a party to the liquidation agreement by fraudulent representations made by the Mill River Button Company, its agent, officers and directors, and asks for judgment setting aside and cancelling as to him the agreement This answer was not a defense. The agreement was between the corporation, the creditors and the trustees. The proper parties are not represented in this litigation to entitle the defendant to judgment upon this issue. Neither the corporation nor the other creditors are before the court, and both have an interest and are entitled to be heard on the adjudication of this question. Moreover, fraud in procuring the execution of the agreement by the defendant would constitute no ground for exempting him from the performance of an independent contract entered into between him and the trustees subsequent to the execution of the agreement in liquidation and founded upon a new consideration.

The first answer was clearly insufficient, because, admitting its averments, the defendant would be entitled to no relief.

The second, third, fourth and fifth answers are founded upon alleged counterclaims. They all set up transactions between The Mill River Button Company, its officers and agents, and the defendant, which took place prior to the execution of the liquidation agreement

The second answer seeks to counterclaim damages alleged to-have been sustained by the defendant, arising from the fraud and deceit of the corporation connected with an advance of money made by the defendant to the corporation. The third answer counterclaims damages alleged to have been sustained by the defendant by the fraudulent refusal of the corporation to perform its contract to deliver a portion of its capital stock to the defendant in consideration of money advanced by the defendant. The fourth-answer alleges an indebtedness of the corporation to the defendant in the sum of $2,800 for money loaned. The fifth answer alleges a violation by the company of a contract of employment, whereby the defendant sustained damages in the sum of $3,000.

The defendant, in his answer, does not ask any affirmative judgment on his counterclaims, but as to each he asks simply that he be permitted to set off sufficient thereof to satisfy the claim of the plaintiff.

It is very clear that neither of the answers alleging counterclaims set up any claim that can be set off against the causes of action in the complaint The alleged counterclaims are not against the plaintiff. They are founded upon transactions with the corporation prior to the appointment of the plaintiffs as trustees. The plaintiffs’ claims have no connection therewith, and were subsequent to the execution of the liquidation agreement, upon contracts not tainted with the alleged fraud in the concoction of the agreement The fact that the defendant was induced to execute the agreement by fraud is no answer to his obligation arising on a purchase from the trustees, nor does it enable him to setoff against the debt a claim against the corporation. This would be giving him an inequitable preference.

The plaintiff demurred to the several answers setting up counterclaims, on the ground “ that they were insufficient in law upon the face thereof.” Section 494 of the Code of Civil Procedure-makes this a ground of demurrer to a counterclaim. But it is claimed that where the defect in an answer alleging a counterclaim is that the cause of action sought to be counterclaimed did not arise out of the contract or transaction set forth in the complaint, or was not connected with the subject of the action, or that it does not state facts sufficient to constitute a cause of action, these objections must be specifically taken under § 495, and that they are not raised by a demurrer for insufficiency. That the answers were insufficient as answers of counterclaims we cannot doubt. They set up no cause of action against the plaintiffs. The claims alleged, if they existed, were wholly irrelevant to the claims sued upon. Assuming that they were statements of good causes of action, they did not exist against the plaintiffs.

It is a decisive answer to the defendant’s contention that the demurrer should have been drawn under § 495 that that section only applies where the defendant demands affirmative judgment on his counterclaim, and has no application where the defendant seeks to use his counterclaim for the purpose simply of extinguishing the claim of the plaintiff.

We think the judgment of the general term was right, and should therefore be affirmed.

Judgment affirmed, with costs.

All concur.