author: Earl, J.

text:
    William Wallace et al., Resp’ts, v. Frederick D. Blake et al., App’lts.

      (Court of Appeals,

      Filed October 27, 1891.)

    1. Sale—Evidence.
    In an action for goods sold, evidence that such sale was changed after delivery of the goods to a consignment to defendants is not admissible under a general denial.
    3. Same—Pleading.
    Nor can defendants, under their general denial, prove that, after they had purchased certain yarn and it had come into their possession and control as the purchasers, they rejected it because of its inferior quality.
    Appeal from judgment of the New York superior court, general term, affirming a judgment in favor of plaintiffs entered on verdict ordered by the court.

      W. C. Beecher, for app’lts; Carlisle Norwood, Jr., for resp’ts.

       Affirming 30 N. Y. State Rep., 248.

   Earl, J.

The complaint alleges that in the month . of March, 1886, the plaintiffs sold and delivered to the defendants several large quantities, of worsted yarn at the prices stated, and judgment is demanded for the balance of the purchase price unpaid. The only answer to these allegations are denials. The defendants also set up in their answer a counterclaim growing out of transactions with the plaintiffs prior to those mentioned in the complaint. Upon the trial no attempt was made by the defendants to prove their counterclaim, and. under their answer the only defense left to them was the right to dispute the sale and delivery to them of the yarn. The sale and delivery were proved beyond question. The evidence was undisputed that they purchased the yarn, and that they received it and disposed of it They attempted to show that after the sale and delivery of the yarn to them they complained to the plaintiffs of the quality thereof, and that then it was arranged that they should be considered as having received the yarn as consignees and that they were to sell it for and on account of the plaintiffs. This defense the trial judge excluded on the ground that it was not pleaded. It was an affirmative defense which according to elementary rules of pleading could not be shown under the denials in the answer.

The defendants claim that they had the right to prove under their denials that they had not accepted the yarn. But the uncontradicted evidence shows that the yarn was purchased by them of the plaintiffs’ manufacturers in England; that it was shipped to them as purchasers from England, and was taken, received and disposed of by them, and all this shows a legal acceptance of it by them. Their claim, however, is that after the yarn was delivered to them it was arranged that they should hold and sell it as consignees, and that thus they rejected it as purchasers. But they had no right to assert this claim under their answer.

To the defendants’ claim, that after they had purchased the yarn, and it had come into their possession and control as the purchasers, they rejected it because of its inferior quality, the answer again is that no such defense is alleged and that there is no allegation in the answer that this yarn was in any respect inferior or defective.

The reply to the answers contains no allegations or admissions which can cure the defective answer or enlarge its scope.

The judgment should be affirmed, with costs.

All concur.


source: Caselaw Access Project

license: Public Domain

text:
    John H. Cheever, Resp’t, v. Avery T. Brown, Assignee, App’lt.

      (Court of Appeals,

      Filed October 27, 1891.)

    Assignment for creditors—Proof of claim op firm against individual assignor.
    In the case of an individual assignment of a member of a firm, proof of a claim against him by the firm should not be disallowed by the referee, merely because it is not shown how much should be deducted therefrom by way of credits, where the amount of the debt is undisputed.
    Appeal from a judgment of the supreme court, general term, first department, affirming the order of the special term confirming report of referee.

      Clark Bell, for app’lt; W. M. Jenks, Albert W. Seaman and William Allen Butler, for resp’t.

       Reversing 36 N. Y. State Rep., 131.

   Earl, J.

For some years prior to January 18, 1884, William H. Guión was a member of the firm of Williams & Guión. That firm originally consisted of John S. Williams, Stephen B. Guión and William H. Guión. Williams died in 1876, and the firm business was continued under the same firm name by the surviving partners until January 18, 1884, when William H., having become insolvent, made a general assignment for the benefit of his creditors to the defendant Brown and the firm became thereby dissolved and went into liquidation. Subsequently in a creditor’s suit William H. Guión was appointed receiver of the assets of the firm and acted as such. This action was brought by the plaintiff, a creditor of William H. Guión, on behalf of himself and other creditors against the defendant as assignee for an accounting. A referee was appointed in the action to take proof of the claims against the assigned estate, and William H. Guión, as receiver of the firm, presented a claim of $106,937.82 for a balance of indebtedness due the firm from him individually. The referee disallowed the claim, and his report thereon has been confirmed.

There was no conflict in the evidence before the referee, and no one, so far as the record discloses, made any contention then that the claim was not sufficiently proved. The referee, however, disallowed the claim on the ground that the balance due from William H. Guión to the firm was not rendered sufficiently certain. There was no dispute or doubt upon the evi dence that Guión owed the firm,,at the time of his assignment for money loaned to him $205,186.05 besides interest, and upon general account, the general nature of which was explained in the evidence, the further sum of $338,270.21. Guión admitted that from the amount of these two sums and the interest there should be deducted on account of his profits in the firm the estimated sum of $464,000, and the balance claimed" was fhus reached. The referee rejected the claim, not because of .airy uncertainty in the amount of the two debit items, but on account of the uncertainty in the amount to be deducted for a credit.

The firm books were put in evidence; the surviving bookkeepers were sworn; Guión gave his evidence and there was proof of an adjustment of the firm accounts between the two surviving members of the firm as they existed at the date of the assignment Here was apparently all the proof that could be given by living witnesses and the books of the firm, and if the evidence as to the amount to be deducted from the undisputed indebtedness of Guión to the firm was still uncertain, that furnished no adequate reason for rejecting the whole claim. A creditor presenting a claim against his debtor should not be turned out of court because, the amount of the debt being undisputed, he does not show how much should be deducted therefrom by way of credits. Guión, in presenting this claim, represented the creditors of the firm, and the evidence showed prima facie that he owed a large amount to the firm at the time of his assignment. Those creditors are entitled to share with other creditors in the proceeds of the assigned estate, and who shall suffer if such other creditors are unable to show how much for credits shall be deducted from the undisputed sums for which Guión became indebted to the firm ? Guión and the book-keepers of the firm arrived at the amount of credits as well as they could, using all the information within their reach. ' Ho suspicion attached to their methods, and, in the absence of better proof, we know of no reason why their evidence should not have been taken as the best attainable, and therefore satisfactory. With the books of the firm, the bookkeepers and Guión as witnesses, it cannot be impossible to reach with sufficient accuracy the true amount of the firm claim, and a further hearing and a more careful and searching examination of the evidence are due to the case.

We are, therefore, of opinion that the orders of the general and special terms should be reversed and the exceptions by William

H. Guión, receiver, to the report of the referee be sustained, the report as to him be set aside and that his claim be heard before a new referee to be appointed by the supreme court, and that the costs of this appellant in all the courts be paid out of the assigned estate.

All concur, Andrews, J., in result, except Gray, J., not voting.


author: Dwight, P. J.

text:
    Catherine Toomey, Resp’t, v. Arnold Lyman, App’lt.

      (Supreme Court, General Term. Fifth Department,

      Filed October 23, 1891.)

    I. Fraudulent conveyance—Evidence.
    Plaintiffs husband conveyed Ms farm to her subject to mortgages which

      she did not assume to pay. It was not shown that the farm was worth more than the mortgages. In an action for conversion of corn raised on the farm the summer following the conveyance, which defendant seized under execution against the husband, Retd, that the question of the husband’s lutent in making the conveyance and of notice to plaintiff of such intent were material, and that it was error to refuse a request to charge that the neglect of plaintiff to call her husband as a witness was an omission which the jury could construe as a presumption against her.
    2. Conversion—Estoppel.
    The giving of a receipt to a constable for goods levied on by Mm does not estop the receiptor from subsequently suing for their conversion, where the receiptor was at the time claiming the property as her own, and was assured by the constable that the receipt would, in no way affect her rights.
    Appeal by the defendant from a judgment of the county court of Ontario county, entered on the verdict of a jury, in an action first tried in a justice’s court and appealed to the county court for a new trial; also, from an order of the county court denying the defendant’s motion for a new trial on the minutes of the court.

      E. Hicks, for app’lt; J. Colmey, for resp’t.
   Dwight, P. J.

The main features of this case are familiar. A wife brings trover for property taken on execution against her husband, claiming title thereto by transfer from her husband, and the transfer is assailed on the ground that it was made in fraud of creditors and, especially, to defeat the collection of the debt for which the judgment was recovered on which the execution was issued under which the defendant justifies.

The principal portion of the property in question was a quantity of corn in the ear, which was grown in the summer of 1888, on a farm of fifty acres which had been owned and occupied for many years by John Toomey, the husband of the plaintiff, and which was still occupied by him and his family when the corn was grown, but which he had conveyed to bis wife, the plaintiff, in January of that year. At the time of the conveyance the husband was indebted to the execution creditor for the balance of a note given for the lumber of which the house on the farm was built.

The conveyance was for the nominal consideration of $3,600, and was subject to the lien of three mortgages executed by Toomey and wife, amounting, exclusive of interest, to the sum of $3,200, which by express covenant of the deed the plaintiff did not assume or agree to pay, and at the same time the plaintiff gave to her husband a receipt “in full of all indebtedness to date.” No - indebtedness was specified in the receipt, but the plaintiff testified that it amounted to about $300, of which she had let her husband have $100 twenty years before, and other sums amounting to eighty or ninety dollars later.

There was no evidence given of the value of the farm nor of the amount of interest accrued on the mortgages, but, on their face, the incumbrances amounted to sixty-four dollars an acre. There is no evidence that there was any value in the farm over and above the encumbrances; and the careful provision in the deed that the plaintiff should incur no personal liability by reason of the purchase indicates that in the judgment of the parties it was at least doubtful whether there was any such value, and it is difficult to see what reason there was, personal to the plaintiff, why she should wish to have the title in her, -rather than in her husband as it had always been. There was no ostensible change in the possession nor any change in the occupation, use or management of the farm. Indeed the change seems to have been in name merely, so far as the plaintiff was concerned, and what motive she could have had, on her own account, in parting with any consideration of value for such nominal transfer, is not clear.

It is plain from the statement made that no charge of fraud in this transfer can stand upon the ground of inadequacy of consideration, nor upon the ground of intent to defeat the collection of the husband’s debts out of the real estate transferred. The question in respect to consideration is whether any bona fide consideration was paid or parted with by the plaintiff. If not, then she is chargeable with the fraudulent intent, whatever it was, entertained by her husband, even though she did not share it or have notice of it. And in respect to the intent of the husband the question would seem to be whether the transaction was a device to shield the crops, thereafter to be raised, from liability for the debts of the husband. It may well be argued that no other purpose could be served by the deed to the plaintiff, that the real estate was proof against the lien of a judgment, and that if the crops could be equally protected against execution the debtor and his family might continue to enjoy their possession of the farm and its products, quite independent of creditors, so long as they could manage to pay the interest on the mortgages.

The questions suggested we regard as the real questions in the case. As bearing upon them the intent of the husband was primarily material. The question of notice to the plaintiff of his intent was material or not according as the fact should appear whether or not she did in good faith pay any consideration for the deed. These questions, it is true, were for the most part questions of fact for the jury, but they were questions upon which the defendant was entitled to the benefit of all the presumptions legitimately to be drawn from the evidence or the absence of evidence in the case. It was a case to be determined mainly upon circumstantial or presumptive evidence, and there was one presumption the just benefit of which, we think, was denied the defendant by the refusal of the court to charge as requested. We refer to the presumption to be drawn from the failure of the plaintiff to call her husband as a witness in the case. It is plain that his testimony would have been of the utmost importance. It was his act which was the subject of inquiry; his intent, in that act, was, as we have said, primarily material. His testimony would also have been important upon the other questions of notice to the plaintiff and of the bona fides of the consideration paid or rendered by the plaintiff for the transfer to her. But his testimony upon all these questions was withheld by the plaintiff. We think that under the peculiar circumstances of this case, it was a strong one for the application of the rule that an inference unfavorable to the plaintiff’s case may be drawn from the suppression of testimony of vital importance to the issues. Wharton on Evidence, § 1266; Stephens’ Dig. of the Laws of Evidence. (Chase’s Edition), p. 220, note ; People v. Hovey, 92 N. Y, 554.

We think that upon this question the defendant was entitled to the instruction substantially as requested by his counsel, viz.: “ that the neglect of the plaintiff in this case to call John Toomey as a witness is an omission which the jury may construe as a presumption against her; ” and that the response of the court that “ the jury may construe it as a presumption against her, provided there is any presumption occurs to their minds,” did not meet the requirements of the case; and, especially, that the subsequent statement of the court, “ I decline to charge that there is any presumption against the plaintiff for not calling the witness Toomey,” was error to the prejudice of the defendant.

The question of the estoppel of the plaintiff by giving a receipt for the property to- the constable was an important one and the fact would no doubt have been fatal to the plaintiff’s case, Dezell v. Odell, 3 Hill, 215, but for the testimony of the plaintiff tbatshe was at the time claiming the property in question as her own and that the defendant assured her that the receipt would in no way affect her rights. That testimony, which, though directly contradicted, seems to have been credited by the jury, no doubt saves her case from the effect of an estoppel.

But, for the error first considered, we think the judgment must be reversed.

Judgment and order appealed from reversed, and a new trial granted in Ontario county court, with costs to abide the event.

Macomber and Lewis, JJ., concur.


text:
    Francis B. Brewer, Resp’t, v. Frank C. Longnecker et al., App’lts.

      (Supreme Court, General Term, Fifth Department,

      Filed October 23, 1891.)

    POKECLOSUEE—DEFICIENCY.
    In an action to foreclose a mortgage, only a portion of which was due, the judgment provided for a sale and the application of the proceeds to the satisfaction of the whole sum secured ; that in case of a deficiency in the proceeds to pay the amount reported as actually due the defendants liable therefor should pay such deficiency, and that in case of a deficiency in the proceeds to pay the amount reported as secured and unpaid, that plaintifE might apply for execution at any time when such deficiency should become due according to the conditions of the bond. Held, that the judgment was correct and that no amendment thereof was necessary.
    Appeal by the defendants from an order of the Erie special term, made on the application of the plaintiff, amending the judgment in an action for the foreclosure of a mortgage, after sale of the premises.

      P. A. Matteson, for app’lts; Wm. C. Fitch, for resp’t.
   Dwight, P. J.

The case was one specified in § 1634 of the Code of Civil Procedure; $2,000 was due and $18,000 was to become due ten years later, but no payment into court was made under the provisions of that section, and the court found that the mortgaged property could not be sold in parcels. Final judgment was accordingly entered for a sale of the property as a whole and the application of the proceeds, after deduction for costs, expenses, etc., in accordance with the first of the alternative provisions of § 1637 of the Code, viz.: to the satisfaction of the whole sum secured by the mortgage; and so far the judgment was entirely correct, and was not affected by the amendment

Then followed a clause providing for the case of a deficiency in the proceeds of sale to pay “ the amount so reported as actually due to the plaintiff with interest, etc.” It provided that in that case “ the sheriff specify the amount of such deficiency in his report of sale, and that on the filing of such report the defendants Frank C. Longnecker and Christian W. Koester, who are personally liable for the paymentjaf the debt secured by the said bond and mortgage, pay to the plaintiff the amount of such deficiency, with interest thereon from the date of said last mentioned report, and that the plaintiff have execution therefor.” This provision was entirely correct since it was possible that the contingency therein .specified might arise, viz.: that the proceeds of sale might prove to be insufficient to pay the amount actually due at that time, in which case the obligors in the bond would become presently liable for such deficiency. The plaintiff moved to amend this provision and an amendment was granted, by substituting for the words “ the amount so reported as actually due to the plaintiff,” the words “the entire mortgage debt;” and the court further amended the clause by adding thereto, after provision for execution, the words “ in accordance with the provisions of this judgment as hereinafter provided.”

The amendment was entirely unnecessary. The provision for the case of a possible insufficiency of the proceeds of sale to pay the amount then actually due was, as we have seen, a perfectly proper one, and the judgment already contained, further on, a proper provision for the case, which actually arose, of a deficiency in the amount necessary to pay the entire mortgage debt So that even if, as it stood, the provision amended was in any respect incorrect, the result of the sale had shown it to be entirely nugatory, because the contingency upon which its operation depended did not arise ; the premises sold for more than $20,000, leaving only a deficiency of about $1,500 in the amount necessary to pay the entire mortgage debt

The last remark applies equally to the next and last amendment allowed. That was an amendment to the clause which was intended to provide for the case of payment into court, under § 1635, of the amount actually due after judgment and before sale. This contingency did not arise and the entire clause, whether before or after amendment, was inoperative and nugatory.

The last provision of the judgment is the one before referred to as completely providing for the contingency which actually arose, of a deficiency in the proceeds of sale to pay the whole amount due and to become due on the mortgage. This provision was subjected to no amendment and none was required. It is in the following terms:

“And in case said premises shall be sold under this judgment, and shall not produce sufficient to satisfy the amount so reported as secured and unpaid, with interest and the costs of this action and of such sale, and the taxes, it is further ordered and adjudged that the said plaintiff be at liberty at any time thereafter, when any such deficiency of principal or interest shall have become due, according to the conditions of said bond, to apply to the court for an execution against said defendants, Frank 0. Longnecker and Christian W. Koester, who are personally liable for the payment of the debt secured by said mortgage, to collect the amount which shall then be due thereon, with interest and costs of such application.”

It seems, therefore, that the judgment was quite correct, unless in one or two provisions which became inoperative in the actual event of the proceedings under the judgment and of the sale. The motion for amendment was, therefore, unnecessary, and should have been denied. The branch of the motion for an amendment of the sheriff’s report of sale was not opposed by the defendants, and was properly granted. But the appeal was from the whole order.

The order should be modified by striking out all that part which amends the judgment, and as so modified affirmed, without costs of this appeal to either party.

Macomber and Lewis, JJ., concur.


text:
    Ida G. Richardson, by Guardian, Resp’t, v. The New York Central & Hudson River Railroad Co., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed October 23, 1891.)

    1. Negligence—Railboad cbossing.
    Plaintiff was injured while driving across defendant’s track after dark. There was evidence that the train was run at a dangerous rate of speed for that locality, and, although it could be seen for some distance, plaintiff testified that she looked and listened for its approach, but did not see or hear it; that the flagman made a motion with his lantern, which she took as a signal to come on, and that another person crossed from the opposite direction at the same time in safety. Held, that the questions of negligence were properly submitted to the jury.
    2. Same—Chabqe.
    In such case it is not improper for the court to decline to charge that the rate of speed at which plaintiff approached and drove upon the track, a slow trot, of itself constituted negligence on her part.
    Appeal by the defendant from a judgment entered on the verdict of a jury at the Ontario circuit, and from an order denying the defendant’s motion for a new trial on the minutes' of the court

      J. W. Dunwell, for app’lt; John Gillette, for resp’t.
   Dwight, P. J.

Soon after dark on an evening in October, 1889, the plaintiff, a young woman of twenty years of age, was driving one horse in a top buggy over the track of the defendant’s road at the crossing of Exchange street, near the station, in the village of Geneva, when a train of the defendant coming down the grade and around a curve, from the west, collided with her vehicle and she was thrown out upon her head, sustaining an iniury for which the jury in this action awarded her a verdict of $5,000.

Evidence for the plaintiff tended to show negligence on the part of the defendant in respect to the rate of speed at which the train was run-; there being evidence which tended to show that it was an undue, improper and dangerous rate of speed at which to run a train across a much frequented street in a large and populous village, and the case in this respect was properly submitted to the jury. Thompson v. The N. Y. C. & H. R. R. R. Co., 110 N. Y., 636: 16 N. Y. State Rep., 869.

One peculiar circumstance is disclosed by the narrative of this case, which necessarily bears upon both the main questions involved in actions of this character. The flagman was on the crossing and had his lantern, or, as he testifies, two lanterns in his hands. The plaintiff testifies that he made a signal with his lantern for her to come on, and she describes the motions of the lantern as being in line with the highway and across the tracks. This she says she took for a signal to her to cross, which she relied upon and attempted the crossing with the result which has been mentioned. A witness called by her testified that be came to the crossing from the opposite direction almost at the same moment as the plaintiff, and was beckoned by the flagman to cross, which be did in safety, though barely escaping collision with the engine. The plaintiff further testifies that after her 'horse had crossed the track on which the train was coming and when her carriage was on the track, the flagman seized her horse by the head and stopped him. Of course there was contradiction on all these points, but the question of fact in respect to each of them was submitted to the jury with proper instructions as to the bearing of the facts, if found, upon the verdict to be rendered.

The plaintiff was familiar with the crossing and knew that the train was due at about the time at which it did in fact arrive; and the evidence is undisputed that after passing a point fifty-one feet distant from the track, in the middle of the street, the train was in her view coming down the grade toward the crossing, if she had looked at it She testified that she was attentive to the situation, looking and listening for the train, so that it would seem that there must have been something to distract her attention from the true situation and to reassure her of safety in the attempt to cross the track. Whether this was the supposed signal of the flagman to come on, or the sight of the other passenger crossing from the other side, in safety as it proved, between herself and the approaching train, or both these circumstances combined, and how far she was justified in relying upon these indications, in view of all the circumstances of the case, was probably a question for the jury, and, as such, it was properly submitted by the charge of the court. The case is by no means freq from doubt, and may even be regarded as an extreme case for submission to the jury upon the question of the plaintiff’s contributory negligence; but admonished as we are of the danger of invading the province of the jury upon this particular question, we do not feel justified in holding, as matter of law, that the plaintiff did not exercise that ordinary degree of care for her own safety which was reasonably to have been expected of her under all the circumstances of this case. Greany v. R. R. Co., 101 N. Y, 423; Parsons v. R. R. Co., 113 id., 364; 22 N. Y. State Rep., 697; Swift v. R. R. Co., 123 N. Y, 649 ; 33 N. Y. State Rep., 604.

The case being one which the court was required to submit to the jury, there was, so far as we observe, no error committed on the trial or in the submission of the case which vitiates the verdict. It was not error for the court to decline to charge that the rate of speed at which the plaintiff approached and drove upon the track, which she describes as a slow trot “ and slowed up toward the railroad track,” of itself constituted negligence on her part. Totten v. The R. R. Co., 32 N. Y. State Rep., 765.

All the instructions to the jury, both in the general charge and in response to requests, seem to us to have been extremely well guarded and free from objection ; and we find no ruling on evidence which seems to us to give ground for exception. The damages awarded, though liberal, are not so clearly incommeasurate with the injuries which the jury might find to have been sustained as to warrant this court in setting aside the verdict on that ground.

We think the judgment and order must be affirmed.

Macomber and Lewis, JJ., concur.


text:
    Josiah Shults, App’lt, v. Nellis Shults et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed October 23, 1891.)

    Befebence—Appeal.
    The findings of a referee to whom it is impossible to attribute partiality, corruption or incompetency, based upon a clear preponderance of evidence, and opposed in only one branch of the case by circumstances which are, however, not irreconcilable with the conclusion reached, will not be disturbed by the appellate court.
    Appeal by plaintiff from a judgment entered on the report of a referee dismissing the complaint on the merits, with costs.

      J. F. Parkhurst, for app’lt; O. S. Searl, for resp’ts.
   Dwight, P. J.

The case presents only questions of fact which have been passed upon by a very competent, careful and faithful referee. His findings are all of them supported by a clear preponderance of the direct evidence in the case, and in respect to one branch of the case only are opposed by circumstances which might possibly have lead to a different conclusion but are not irreconcilable with the conclusion reached. The court is not at liberty to disturb findings based upon such a presentation of the evidence, when made by a referee to whom it is impossible to attribute either partiality, corruption or incompetency. Howell v. Biddlecom, 62 Barb., 131.

All the rulings on questions of evidence were correct, and the findings of fact unquestionably support the conclusions of law.

There are strong suggestions of hardship in the case which might possibly, we think, have led to a refusal of costs to the defendant; but in that respect, even, we do not feel at liberty to interfere with the exercise of discretion on the part of the referee.

The judgment appealed from must therefore be affirmed, but we think it proper not to award to either party the costs of this appeal.

Judgment appealed from affirmed, but without costs of this appeal to either party.

Macomber and Lewis, JJ., concur.


text:
    Theodore McKuskie, Resp’t, v. John Hendrickson, App’lt.

      (Court of Appeals,

      Filed October 27, 1891.)

    1. Costs—Appeal prom justice’s court—Code Civ. Pro., § 3070.
    Plaintiff recovered judgment in a justice’s court for thirty dollars damages, besides costs, from which defendant appealed, and within fifteen days after service of notice of appeal made an offer of judgment in the county court for five dollars, which was not accepted. On a new trial plaintiff recovered a verdict for thirty-five dollars, and the clerk taxed plaintiff’s costs at $80.25. Held, error; that plaintiff was entitled to judgment for damages only.
    2. Same.
    The only way in which a plaintiff can secure his right to costs in such a case as this, is by making an offer to take judgment for a sum specified, and then if the defendant refuses to accept the offer he will be liable to costs, unless the recovery is more favorable to him than the offer.
    Appeal from judgment of supreme court, general term, second department, reversing order of county court setting aside taxation of costs.
    The plaintiff recovered a judgment in a justice’s court for thirty dollars damages, besides costs. From that judgment the defendant appealed to the county court, demanding a new trial, and within fifteen days after the service of the notice of appeal caused a written offer to be served upon the plaintiff allowing judgment to be entered against him in the county court for five dollars. The plaintiff did not accept the offer, and made no offer to the defendant. A new trial was had in the county court, and the plaintiff recovered a verdict for thirty-five dollars. The plaintiff’s attorney then made application to the county clerk for the taxation of his costs, and the clerk, against the objection of the defendant, adjusted his costs at $80.25, and judgment was entered and docketed in favor of the plaintiff for $115.25 damages and costs. Thereafter the defendant made a motion in the county court to set aside and vacate the adjustment of costs made by the clerk, and that motion was granted, the court holding that the plaintiff was not entitled to costs against the defendant, and that he was entitled to judgment for the damages only. From the order of the county court the plaintiff appealed to the general term, where it was held that the county court had erred, and its order was reversed, and thus the allowance of costs to the plaintiff was confirmed. By leave of the general term, the defendant has appealed from its order to this court.

      Harrison S. Moore, for app'lt; Henry A. Monfort, for resp’t.

       Reversing 34 N. Y. State Rep., 901.

   Earl, J.

Costs are regulated by statute, and unless the plaintiff can point to some statute giving him costs in a case like this he is not entitled to any. He is not entitled to costs by virtue of any general provision 'contained in § 3228 of the Code, because he did not recover as much as fifty dollars. The only section of the Code relating to costs in a case like this is 3070, and that provides as follows: “ Upon an appeal provided for in this article, from a judgment for a sum of money only, either party may within fifteen days after service of the notice of appeal serve upon the adverse party, or upon his attorney, a written offer to allow judgment to be rendered in the appellate court, in favor of either party, for a specified sum. If the offer is not accepted, it cannot be proved upon the trial. If the party, within ten days after service of the offer upon him, serves upon the party making the same, or upon , his attorney, written notice that he accepts the offer, he must file it, with an affidavit of service of the notice of acceptance, with the clerk of the appellate court, who thereupon must enter judgment accordingly. Where an offer is made as above provided, the party refusing to accept the same shall be liable for costs of the appeal, unless the recovery shall be more favorable to him than the sum offered. If neither party make an offer as provided herein, the party in whose favor the verdict, report or decision in the appellate court is given, shall be entitled to recover his costs upon the appeal.”

The plaintiff refused to accept defendant’s offer, and as the recovery was more favorable to him than the sum offered, he was not liable to pay costs to the defendant But there is no provision in the Code giving the plaintiff costs in such a case against the defendant where the recovery is for less than fifty dollars and no language is used indicating that such was the legislative intention.

The only way in which a plaintiff can secure his right to costs in such a case as this is by making an offer to take judgment for a sum specified, and then if the defendant refuses to accept the offer he will be liable to costs unless the recovery is more favorable to him than the offer. Here the plaintiff could have offered to take judgment in the county court for thirty dollars, or any other sum not exceeding thirty-five dollars, ana could thus have secured his right to costs. It may be the legislature intended that this practice should be pursued. Previous legislation upon the subject of costs in such a case as this has no tendency whatever to justify the plaintiff’s contention. There was a special provision in § 371 of the old Code, that upon an appeal to the county court, where a new trial was had, “ the respondent shall be entitled to recover costs where the appellant is not.” In 1885 § 3070 of the present Code was amended so as to read as it now is. Prior to that amendment it provided as follows: “If the offer is made and not accepted, and the verdict, report or decision of the appellate court is more favorable to the appellant than the amount of the offer, the appellant is entitled to recover costs upon the appeal; otherwise the respondent is entitled to recover costs.” Here again was a special provision giving the respondent costs. These special provisions found in the old and the present Code, giving costs to the respondent, are not contained in the Code as it now is. The provision was dropped out in 1885, and we cannot say that the legislature intended that it should be retained. As the Code now is, each party can secure his costs, or secure himself against costs, by making the offer provided for in the section.

In construing a statute the legislative intention must be sought in the language used therein, construed with such helps as the canons of interpretation allow. But new language or, as in this case, an entirely new provision cannot be imported into a statute giving it a meaning not otherwise found therein. While the courts may interpret doubtful or obscure phrases and imperfect language in a statute so as to give effect to the presumed intention of the legislature, and to carry out what appears to be the general policy of the law, they cannot, by construction, cure a casus omissus, however just and desirable it may .be to supply the omitted provision.

Our conclusion, therefore, is that the order of the general term should be reversed and the order of the county court affirmed, with costs to the defendant of the appeal to the general term and to this court.

All concur, except Andrews, J., not voting.


text:
    In the Matter of the Application of the Directors of The Christian Jensen Co., Limited, for a Voluntary Dissolution.

      (Court of Appeals,

      Filed October 27, 1891.)

    1. Corporations—Dissolution—Code Civ. Pro., § 2423.
    On the 10th of March, 1891, the petitioners prayed the superior court for a voluntary dissolution of their corporation, and the receiver appointed on that day filed his bond on the 11th and took possesion on the 12th, on which day the order of March 10 was served on W. but no copy of the petition served was therewith W. had commenced an action of replevin on the lit-h, and on that day attached certain property of the corporation, and on motion of the receiver W. was restrained from taking any further proceedings in the replevin action. Held, no error; as the title of the receiver related back to the date of his appointment and the property was in. the custody of the law when attached.
    2. Same.
    Where the title of the order showed that the proceeding was for a voluntary dissolution of the corporation, and the order recited that it was insolvent and required all persons to show cause why the prayer of the petition should not be granted, it is in substantial compliance with § 2423 of the Code, which provides that the order must be to show cause “ why the corporation should not be dissolved.”

      8. Same—Code, § 2424.
    Where such an order is defective for not complying with § 2424 of the Code, because it did not require the order to be published or specify the newspapers, it must be taken advantage of by motion, but is not a defect which renders the appointment of the receiver a nullity.
    Appeal from judgment of the New York superior court, general term, affirming order made at special term restraining appellants as creditors from prosecuting certain suits and proceedings.

      John Fennell, for app’lt; John C. Coleman, for resp’t.

       Affirming 39 N. Y. State Rep., 379.

   Earl, J.

On the 10th day of March, 1891, the directors of the Christian Jensen Company, Limited, presented a petition to the superior court of the city of New York praying for a voluntary dissolution of the corporation. As the petition is not contained in the record, we must assume that it was proper in form and substance. In fact no objection is made that it did not comply with the provisions of the Code relating to the voluntary dissolution of corporations. Sections 2419 et seg. Upon the presentation of the petition the court made an order appointing Isidor Grayhead temporary receiver o£ all the property and assets of the corporation, as authorized by § 2423 of the Code, which also provided “ that all person or persons whomsoever, whether creditors of the said Jensen Company, Limited, or otherwise, are hereby enjoined and restrained from bringing or continuing any action against the said corporation for the recovery of any moneys due said creditors, and until the further order of this court in the premises.” The next day the receiver filed his bond and became qualified to act; and he took actual possession of the property of the corporation on the 12th day of March. The order of March 10th was served on the appellants, who composed the firm of Charles F. Wahlig’s Sons, on March 12th, but no copy of the petition was served with the order. On the 12th of March the attorney for the petitioners, without notice to the appellants, made a motion that the order of March 10th be amended nunc pro tune in certain particulars, and that motion ivas granted. On the 11th of March the appellants commenced an action in one of the district courts in' tbe city of New York against the corporation, and in that action a writ of replevin was issued to one of the city marshals, who on the same day replevied from the corporation certain property in its possession, and on the same day they commenced an action in the court of common pleas to recover a money judgment, and in that action a warrant of attachment was issued to the sheriff of the city and county of New York, and on the same day he attached certain property of the corporation.

Thereafter the receiver made a motion at a special term of the superior court to restrain the prosecution of the suits thus commenced by the appellants, and after hearing counsel for the parties the court made an order granting the motion and permanently restraining the appellants from taking any further proceedings in the actions brought by them. From that order they appealed to the general term, and then to this court.

They now contend that the first order made by the superior court on the 10th of March did not require, as provided in § 2423 of the Code, all persons interested in the coporation to show cause “ why the corporation should not be dissolved,” and hence that the order was a nullity. It was the presentation of the petition that gave the court jurisdiction, and even if its order was in some respects irregular, imperfect and informal, it was not a nullity. It was effectual to appoint the receiver, and the moment he was appointed he became an officer of the court, and from that time the property of the corporation was in custodia legis, and the court had the power to preserve and protect it. While the receiver could not interfere with the property of the corporation until he filed his bond, yet after he filed his bond his title related back to the date of his appointment, and so it has frequently been held. Rutter v. Tallis, 5 Sand., 610; Storm v. Waddell, 2 Sand. Ch., 494; Wilson v. Allen, 6 Barb., 542; In the Matter of Berry, 26 id., 55; Deming v. The New York Marble Co., 12 Abb., 66.

It, therefore, follows that when this property was attached and replevied on the 11th day of March, the title was in the receiver, and the property was in the custody of the law, and the court had power to prevent any interference with it in any action, and its dissipation and removal by writ of replevin or attachment.

The court had express authority under § 2423 of the Code to restrain proceedings in the action in which the attachment was issued. As to the replevin action, if the corporation had been a naked wrongdoer in obtaining or retaining the possession of the appellants’ property, and they had been the absolute owners of the property, they could have replevied it from the wrongdoer before it came into the actual possession of the receiver, and thus into the custody of the court. Even then, after the property had passed with the other property into the actual possession of the receiver, it could not, without leave of the court first obtained, have been replevied from him in an action against him. The only remedy then of the appellants would have been by an action commenced with the leave of the court, or by petition to the court. Noe v. Gibson, 7 Paige, 513; Riggs v. Whitney, 15 Abb., 388 ; Chautauqua County Bank v. Risley, 19 N. Y., 369 ; Barton v. Barbour, 104 U. S., 126; Evelyn v. Lewis, 3 Hare, 472 ; Ex parte Cochrane, L. R, 20 Eq., 282 ; High on Eeceivers, § 143. But here there was no proof showing what the relations of the corporation and the appellants to the property replevied were. The appellants may have been mortgagees or pledgees, or the corporation may have purchased or obtained the property by fraud, which the appellants could disaffirm. In either of these cases the corporation had an interest in the property and in its final disposition, and it should remain in the custody of the court to be disposed of in this proceeding under the rules and practice applicable to such cases.

As to the alleged defects in the order of March 10th, it did, in substance, require all persons interested to show cause “ why the corporation should not be dissolved.” The title of the order, “In the matter of the application of the directors of the Christian Jensen Company, Limited, for a voluntary dissolution,” showed that the proceeding was for a voluntary dissolution of the corporation, and the order recited that the corporation was insolvent, and it required all persons to show cause why the prayer of the petition should not be granted. Under the provisions of the Code, the only prayer to be contained in the petition is for a dissolution of the corporation, and we think the order, in substance, required the persons interested to show cause why such a prayer should not be granted.

It is also objected that the order is defective for not complying with the provisions of § 2424 of the Code, because it did not require the order to be published, and did not specify the newspapers in which it was to be published. It is quite true that that is a defect which the parties could have taken advantage of by motion, or in some other way, but it was not a defect which rendered the appointment of the receiver a nullity. Furthermore the court, having jurisdiction of the proceeding, could make an order, as it did, nunc pro tune, correcting the formal defects in its order. Such an order was in furtherance of justice, did not interfere with any rights-which had accrued, did no harm to any one and the court was perfectly competent to make it It is quite true that if the order made on the 10th had been an absolute nullity the court would have been without power to interfere with the seizure of the property under the attachment and writ of replevin by thereafter making an order nunc pro tune, which then, for the first time became effectual.

Our conclusion, therefore, is that by the order made on the 10th of March, upon a petition properly presented, the court acquired jurisdiction of the proceeding; that its appointment of the receiver was valid; that the property thus came into its possession, and that it had a right to prohibit an interference therewith in any action thereafter instituted.

The order should be affirmed, with costs.

All concur.


author: Peckham, J.

text:
    Charles B. Linton, Resp’t, v. The Unexcelled Fireworks Co., App’lt.

      (Court of Appeals,

      Filed October 27, 1891.)

    Contract—Reformation-—Mistake.
    _ Plaintiff was employed by defendant at a specified salary, and in addition thereto the net “ earnings ” on thirty shares of stock which were to be delivered to him. when the earnings should aggregate the par value of the shares. Subsequently a written contract was prepared by Mr. Johnson, acting for defendant, but not present at the first interview between plaintiff and defendant’s president, with the intention of reducing the first agreement to writing. After asking the terms of the agreement of plaintiff, he dictated it to" a stenographer, using the word “ dividends” instead of “net earnings.” Held, that if Mr. Johnson, in fact, mistook the terms, and if plaintiff mistakenly supposed he had embodied in the writing the terms of the oral contract, when he had not, a mistake was made which a court of equity has power to relieve against, but that relief could not be had without a" reformation of the written contract.
    Appeal from a judgment of the supreme court, general term, second department, reversing the judgment dismissing the complaint, giving plaintiff judgment for four and a half shares of stock, ■and affirming judgment against defendant’s counterclaim.

      Leslie W Russell, for app’lt; Wm. J. Gaynor, for resp’t.

       Reversing 37 N. Y. State Rep., 173.

   Peckham, J.

The trial court found the original agreement between the parties was based upon the earnings of the thirty shares of stock instead of upon the dividends. It found the written contract was executed in January, 1886, and while the oral contract was in existence. That written contract used the word “ dividends,” instead of “earnings.” The plaintiff asked to have the written paper reformed so as to express the real agreement, and he alleged that the word “ dividends ” was used in the writing by mutual mistake. There was substantially no contradiction in the evidence as to the fact that the parties meant the written contract to embody the terms of the oral. The person who dictated the .agreement to the stenographer employed by defendants was not himself present when the oral agreement between the plaintiff and the then president of the defendant was made, and so he asked the plaintiff what the terms were under which he was employed by defendant While not positive as to the reply of the plaintiff whether he used the word “earnings” or “dividends,” as the importance of the distinction had not then appeared, he says he is of the impression that plaintiff used the word “dividends.” At any rate that word appears in the written contract signed by both parties.

The learned judge dismissed the plaintiff’s complaint, because he said there was no proof of a mutual mistake in the use of the word “ dividends ” in the written contract. The court also overruled the defendant’s counterclaim on the ground that the payment of the twenty-two shares of stock, although an overpayment under the written contract, was yet a voluntary one and so could not be recovered back. Both parties appealed and the general term, on the plaintiff’s appeal, reversed the judgment dismissing the complaint, and held the plaintiff entitled to recover the shares of stock claimed by him, and without reforming the written agreement-.gave judgment absolute in plaintiff’s favor, decreeing that defendant should issue the four and a half further shares claimed by the plaintiff. The -judgment against the counterclaim of the defendant was on defendant’s appeal affirmed, with •costs.

We think the general term erred in this disposition of the question. There was an original oral agreement between the parties and the court finds that it provided for the issuing of the stock based upon earnings instead of dividends.

The written agreement was intended to embody the terms of the oral one. It is said that Mr. Johnson, who acted for the defendant and dictated the substance of the agreement to be written out, no doubt intended to embody the terms of the oral agreement, but only as he understood them, and that as he understood them to be dividends he has made no mistake on the part of defendant, and that hence there was no mutual error within the meaning of the law, and so the written agreement should not be reformed.

Having found that the terms of the oral agreement included the earnings of the company as distinguished from the dividends,, and the parties really intending to put in writing the terms of such oral agreement, if Mr. Johnson placed the word “ dividends ”■ therein, supposing that such was one of the terms of the agreement, when in truth it was not, and if the plaintiff signed the same supposing that it actually embodied the terms of the oral contract, when in truth it did not, we think a case was made out for the reformation of the written contract. The mistake of Mr. Johnson was in regard to what were in reality the terms of the oral contract, and when he intended to embody those terms in the written contract, although he placed therein just what he intended to, if he in fact mistook those terms, and if the plaintiff mistakenly supposed he had embodied in the writing the terms of the oral contract when he had not, a mistake was made which, a court of equity has power to relieve against. We do not, however, think that relief could be had by reference only to the original oral contract, and in spite of the terms of the subsequent written one, without reforming such written one so as to conform to' the truth.

A written contract is always set out as the exponent of the oral understanding of the parties. While it exists as a full and legal agreement it must control as to all the terms expressed in it, and when such terms differ from those of prior oral ones, the writing must control. It is necessary therefore to reform it so as to express the true agreement. In this case the learned judge refused to find that neither party understood the words used in the written agreement to mean differently than the words of the oral agreement. There is some confusion in the findings in the case, caused, as I think, by the views of the learned judge as to the rights of the parties, assuming that Mr. Reynolds meant to use the word “ dividends ” in the written agreement In that event he thought plaintiff ought not to have the contract reformed. Differing somewhat with those views of the case, and regarding the order and judgment of the general term as in any event erroneous, we have thought it best for all parties that there should be a new trial, and the whole case more fully presented to the court.

We think the judgments of the general and special terms should be reversed and a new trial granted, with costs to abide event.

All concur.


author: Andrews, J.

text:
    Agnes E. Abel, Ex’rx, Resp’t, v. The President, Etc., of the Delaware & Hudson Canal Co., App’lt.

      (Court of Appeals,

      Mled October 27, 1891.)

    1. Negligence — Master and servant — Promulgation op rules by RAILROAD COMPANY.
    Defendant had not promulgated any rules for the special protection of C;ir r 'pairers while at work in the yard. There was a general rule that a red flag was a danger signal. The yardmaster told the men that they were to work under the protection of a red flag at the end of the outermost car, and directed certain men to put it up and protect it. There was no regulation as to who should remove the flag, or forbidding any one from doing so. Held, in an action to recover damages for the death of plaintiff’s intestate, that it was for the jury to determine whether the rule prevailing here provided both for the putting up of the danger signal and its removal so as to protect the repairmen as far as reasonably could be done against the hazard of the negligence of co-employes.
    3. Same—Charge as to rules of other companies.
    The judge charged the jury that he had admitted the rules of other companies '‘‘not because it was the duty of this company to adopt the rules of any other company, but to better enable you to juüge and determine in looking at the different rules that prevail, what is a reasonable and proper rule.” Also, “I think rules might have been suggested not adopted by any company. You have a right to consider whether some rule which occurs to you, even though no company had adopted it, would have been a better rule, and given better protection, and such a one as ought to have been adopted and maintained. Held, no error taken in connection with the rest of the charge.
    (Earl and Gray, JJ., dissent.)
    Appeal from a judgment of the supreme court, general term, third department, affirming judgment in favor of plaintiff entered •on verdict of a jury.

      Edwin Young, for app’lt; Jesse S. L’Amoreaux and Nathaniel C. Moak, for resp’t.

       Affirming 31 N. Y. State Rep., 356.

   Andrews, J.

The judgment of nonsuit rendered on the first trial of this action was reversed by this court on the ground that the question of negligence in respect of the duty of the defendant to make and promulgate proper rules for the protection of car repairers should have been submitted to the jury. 103 N. Y., 581; 4 N. Y. State Rep., 269. The second trial resulted in a verdict for the plaintiff. This appeal is from the judgment on the verdict.

The additional evidence given on the last trial on the subject of rules would not have justified the trial court in determining as a question of law that the defendant’s duty in this respect had been performed. . The company, neither by its board of directors nor by any general officer or superintendent, ever enacted or published any rule for the special protection of car repairers, nor was any instruction, verbal or otherwise, ever given by any sujjerior officer to their subordinates on the subject Rule 63 of the general rules of the company was enacted primarily, as its language shows, to regulate the movement of ordinary trains and to prevent collisions, and had no reference to the switching of cars on the repair tracks. • It stated, what doubtless was generally understood by employes, that a red flag by day or a red lantern by night was a danger signal. But it gave no instructions for the protection of car repairers, either as to the duty of maintaining the signal while the car repairers were at work, or as to the persons by whom it might be removed. At Mechanicsville, where the accident occurred, it seems to have been left to Cowen, the foreman of the repairers, and to Donnelly, the foreman of the switchmen, to regulate the matter in their discretion. Cowen testifies that he told his men that they were to work under the protection of a red flag, and that he designated Hickey and Patrick, who worked at the north end of the cars on the cripple track, and Dwyer and Wicks, who worked at the south end, to put a red flag in the draw-head of the outermost car at the respective ends, before going to work, and to protect the same, and also that he informed Donnelly and the brakemen that the repairmen worked under the protection of the red flag.

Donnelly on the first trial testified substantially that the only rule he heard of was rule 63 and what the repairmen told him,, viz.: that they worked under the protection of a red flag. It is evident that if this was the extent of the regulations on the subject, the repairmen had a very inadequate protection. If the red flag was put up and maintained wherever the repairmen were at work, and the meaning of the signal was known by the switchmen, as it probably was, the repairmen would be protected, except as against the reckless or heedless conduct of the switch-men. But it was essential to the efficiency of the rule that it. should designate the persons authorized to remove the flag. It was shown that this was done by the rules of the New York Central Eailroad, which provide that the repairmen alone should have power to remove the flag from cars on a repair track. The same rule was recommended in railroad manuals published before the occurrence of the accident in question. It is obvious that such or a similar regulation, which should place the duty and responsibility of removing the flag upon persons officially designated, was essential to the car repairers’ protection. The rule that they should put up a red flag when they commenced work, unaccompanied by a rule prohibiting the brakemen or other employes from taking it down when they desired to remove cars from the cripple track, unless by the consent or direction of the repairmen engaged in repairing the cars, would leave the repairmen exposed to the danger of the mistake or negligence of the brakemen. If it was left for the brakemen to determine for themselves whether there were men engaged in repairing the cars, and whether the flag might be safely removed or not, and to act upon their judgment in removing it, the chances of accident would be greatly increased.

It appears from the evidence that it was the common practice of both Donnelly and the brakemen to remove the flag when they supposed there was no one under the cars. On another occasion a repairman came near being caught and injured in consequence of this practice.

It is settled doctrine that a railroad company is bound to guard its employes against negligence of co-employes so far as it can, by the enactment and promulgation of reasonable rules in the management of its business.

The rule that-the servant takes the risks of the business is subject to the qualification that the master must exercise reasonable care to guard the servant while engaged in his duties from .unnecessary hazards, including hazards from negligence of co-employes. In the business of a railroad this duty is especially important, in view of the dangers of the employment and the serious consequences likely to ensue from the negligence oí co-employes.

There can, we think, be no doubt that upon the evidence given on the former trial it was for the jury to say whether the defendant had discharged its duty towards the decedent. It had made no distinct rule for'the protection of the repairmen while engaged in discharging their dangerous duties. It appears to have been left to subordinates in the yard to establish such rules as they thought reasonable. And, as the case stood on the first trial, there was no pretense that there was any regulation prohibiting the brakemen or any one else from removing the flag. On both trials it appeared that the flag was put up by the proper person (Hickey) before the repairmen commenced work, and that some one took it down and laid it on the ground while Abel (the deceased) was at work under one of the cars. The engine was backed down against the cars on the cripple track and Abel was caught between the cars in attempting to escape. It does not distinctly appear by whom the flag was taken down. The jury would have been justified in finding that it was done by one of the brakemen engaged in switching the cars, since it appears that this was a common practice. It undoubtedly was a negligent act, and unless the negligence of the company in omitting to enact and promulgate proper rules co-operated with that of the co-employe, the defendant is not responsible.

On the second trial the testimony of Donnelly, the yardmaster, was greatly enlarged upon the point upon which the case turned. He supplemented his former testimony in important particulars, although on both trials the question of rules was the main question litigated. On his last examination he testified that he told his men they were not to interfere with the red flag unless told to take it down by the repairmen. He also testified that about half an hour before the accident he had directed his men to take cars from the cripple track, and that after giving the order he went south along the cripple track. After he had given the order and observed the- flag lying on the ground, and knowing that the repairmen were at work, he directed one of two repairmen (Grant or Wicks) to put the flag in its "place again at the end of the north car. The man took up the flag and, instead of putting it in its place, went toward the south end of the train with it, and he (Donnelly) took no further notice of the matter. The credibility of this story was for the consideration of the jury. If true, it exhibits a recklessness on the part of Donnelly for which there is no excuse. He permitted his order to back the engine (from the north) on to the cripple track to remain unrevoked, although he knew the flag was down, and that the repairmen were at work under the cars, and also that the man he had directed to replace the flag had taken it in the opposite direction.

We think upon the present case the same question of fact is presented as before, viz.: Whether the defendant had, either directly or through its subordinate officers, so regulated the conduct of its business at this place as to afford reasonable protection to the repairmen against accidents like the one in question. The employment of the defendant was a dangerous one. The movement of cars against those under which the repairmen were at work was likely to result in serious injury. 'The-lock switch was left open' during the day, and no person was employed to notify the repairmen of the intended movement of the cars. It was especially important, therefore, that definite regulations should have been enacted by the company or those who represented it at this point. It was for the jury to determine whether the rule prevailing here provided both for the putting up of the danger-signal and its removal, so as to protect the repairmen as far as reasonably could be done against the hazard of the negligence of co-employes.

The defendant’s counsel rely upon an exception taken to the charge. On the trial the judge admitted in evidence, against the objection of the defendant, the rules of other railroad companies, and among other rules those enacted for the protection of repairmen. In his charge the judge proceeded at considerable length to instruct the jury upon the obligation of the defendant to make and promulgate proper rules for the conduct of its business. He then referred to the fact that he had admitted the rules of other companies to be proved, “not because it was the duty of this company to adopt the rules of any other company, but to better enable you to judge and determine, in looking at the different rules that prevail, what is a reasonable and proper rule.”

After some further remarks on this point the judge proceeded: I think rules might have been suggested, not adopted by any company. You have a right to consider whether some rule which occurs to you, even though no company had adopted it, would have been a better rule and given better protection, and such a one as ought to have been adopted and maintained.” The defendant’s counsel excepted to that part of the charge “in relation to the jury determining what were proper rules, and they might conclude what rules should be.” If the charge is to be construed as leaving it to the jury to determine irrespective of the evidence what rules ought to have been adopted for the safety of the repairmen, and to find the one way or the other on the question of the defendant’s negligence in conformity with a conclusion so reached, the charge was undoubtedly erroneous. But this is not the fair interpretation of the charge. The plain object of the court was to guard the jury against giving undue weight to the fact that more specific and, as the plaintiff’s counsel contended, better rules had been adopted by other companies than had been adopted by the defendant. This is very apparent from what follows the clause quoted : “ So that some other company has adopted a rule, you can’t hold as matter of right that this company should have adopted it. If on examining the rules of other companies and those that prevailed here, you should think that one set of them was not a reasonable protection, and the other was, it would help you very much in getting at what ought to be done. That is the reason why this evidence was admitted.”

The effect of the charge was that the jury were to weigh the evidence and in view of the rules adopted by different companies, determine whether the defendant had discharged its duty in the premises, and that they were not to find a rule proper or improper because some other company had adopted or rejected it The court was endeavoring to aid the jury in weighing the evidence which related to the rule under which the defendant’s busness was conducted, and that adopted on the same subject by other companies. We do not think the jury were misled, and moreover the exception is too broad to raise the question now presented, as it covered all that the court had said as to the right of the jury to pass upon the question of proper rules (much of which was plainly proper), as well as the part of the charge which related to the right to determine what rules should have been adopted.

We have examined the other exceptions, and there are none which call for the reversal of the judgment

Judgment affirmed.

Ruger, Ch J., Finch and O’Brien, JJ., concur; Earl and Gray, JJ., dissent on ground of error in charge; Peckham, J., not sitting. _


author: Per Curiam.

text:
    The People ex rel. Morris A. Young, Resp’t, v. Charles Straight, Clerk, App’lt.

      (Court of Appeals,

      Filed October 27, 1891.)

    1. Mandamus—Town clerk—To administer oath op office.
    Where the clerk of a village was authorized by an ordinance of the board of trustees to administer the oath of office to village officers, and such officers were required by the act incorporating such village to take and file their oath of office with him, he is obliged to administer the same if prima facie it appears that the individual desiring to be sworn had the greatest number of votes at the charter election.
    2. Same.
    Where the majority of the inspectors sign a return showing that a majority of the ballots were for a certain candidate, it presumptively shows his election and makes it the duty of the clerk to administer the oath. It is not material that the inspectors did not make a certificate as to his election to the office.
    Appeal from judgment of the supreme court, general term, fourth department, affirming order grantiug writ of mandamus.

      Frederick Collin, for app’lt; W. E. Knapp, for resp’t.

       Affirming 39 N. Y. State Rep., 986.

   Per Curiam.

The appellant has refused to administer the oath of office to the respondent and raises the question of the right to compel him to administer it. The theory of his case, apparently, is that in some way his administration of the oath of office would amount to a decision as to the respondent’s title to the office, and, as he denied that there was any legal election of the relator, he could not be compelled to take and file his oath. But that is not so. By the provisions of the act under which this village was incorporated every person elected or appointed to office is required to take and file with the clerk of the village an oath of office. By an ordinance of the board of trustees of the village authority was conferred upon the clerk to administer such oath of office. If applied to for that purpose, he was not called upon to decide as to the legality of the applicant’s election or appointment ; but, in his ministerial capacity, he was obliged to administer the oath of office if prima facie it appeared that the individual desiring to be sworn had the greatest number of votes at the charter election. Perhaps, too, the clerk might refuse if the person was known to be ineligible. At this election there were 136 ballots cast; of which sixty-six were for the opposing candidate, O’Brien; sixty-six were for “Morris A. Young,” one was for “Morris Young,” and one was for “M. A. Young, ” one was defective and one was blank If the sixty-eight ballots bearing the name of Young were legal ballots for the relator Morris A. Young, then he had received a majority of the votes for the office. Whether the votes given for “Morris Young” and for “ M. A. Young” should be counted for the relator was not a question for the clerk to pass upon, when Young applied to him to administer the oath of office. It was sufficient that the returns presumptively showed the relator’s election. Thereupon he was entitled to have the proper oath of office administered to him, in order that he might be in a condition to assert his legal rights.

Upon the question of the propriety of granting the writ of peremptory mandamus, it is sufficient to say that as by the paper in the clerk’s possession, signed by a.majority of the inspectors of' election, a return was made showing that a majority of the ballots were for the candidate named Young, it presumptively showed his election and it was the duty of the clerk to administer the oath which the statute requires every officer to take and file. It is not material that the inspectors did not make a certificate as to Young’s election to the office.

They aid sign a paper showing the whole number of votes given for each person voted for and that, as between the candidates O’Brien and Young, a majority were for Young. That paper the clerk had possession of. There was no denial of material facts alleged or established by the relator as to the results of the election appearing from the paper filed with the clerk, or concerning his identity, and, hence, the issuance of the writ of mandamus to compel the cleric to do his duty was perfectly proper.

The order appealed from should be affirmed, with costs.

All concur.


author: Follett, Ch. J.

text:
    Byam K. Stevens, Resp’t, v. The New York El. R. R. Co. et al., App’lts.

      (Court of Appeals, Second Division,

      Filed October 30, 1891.)

    1. Railroads—Elevated—Damages.
    An elevated railroad is liable for the damages done to property in the condition in which it was when injured by them, and there is no rule_ of law or equity which entitles them to have the lot and building running through, to the next street divided transversely by an arbitrary line, or by the line of a division which existed prior to 1S25, when the rear was owned by parties other than the plaintiff, and so limit their liability for damages to the half of the property abutting on the street upon which the railroad was built.
    2. Same.
    The fact that the building and lot were accessible to persons, property, light and air from two streets is important as bearing on the extent of the injuries occasioned by the occupation of one of the streets by the defendants.
    Appeal from a judgment of the general term of the superior court of the city of Flew York, which affirmed a judgment entered on the decision of a special term.

      G. Willett Van Nest, for resp’t; J. C. Thompson, for app’lts.

       Affirming 29 N. Y. State Rep., 361.

   Follett, Ch. J.

Since January 31, 1882, the jDlaintiff has been seized in fee of a lot of land in the city of FTew York, extending from Pearl to Water street, which lot is 37 8-12 feet wide on Pearl and 34 5-12 feet wide on Water street. The westerly line of the lot is 105 11-12 feet in length and its easterly line is 101 11-12 feet in length. ' At the time of the trial of this action and since 1865 this lot has been occupied by a single brick, four story building, extending from street to street, and is known as Flo. 134 Pearl street and Flo. 100 Water street. It is covered by a single roof, without a transverse partition wall, and with but a single flight of stairs between the first and second stories.

During seventy-six years before 1825 this property consisted of two lots owned by different proprietors, the one on Pearl street being about fifty feet in depth and the one on Water street about fifty-one feet in depth. In 1825 these lots became the property of one proprietor, since which they have been described, conveyed and used as a single lot abutting on both streets.

When the defendants were incorporated and when the road was built and leased, the lot in question was owned by three tenants -in common, who on the 31st day of January, 1882, conveyed it to the plaintiff, since which date he has been the owner in fee and in possession.

October 27, 1871, the FTew York Elevated Railroad Company was incorporated under chapter 140 of the Laws of 1850, and pursuant to that chapter and chapter 697 of the Laws of 1866, chapter 489 of the ’ Laws of 1867, chapters 595 and 606 of the Laws of 1875, and the consent of the city of FTew York, which owns the fee of the street, this corporation constructed in 1877 and 1878 its elevated road through Pearl street.

December 29, 1875, the Manhattan Railway Company was incorporated pursuant to chapter 606 of the Laws of 1875, and on the 20th of May, 1878, became the lessee of the road and since that date has been in the exclusive possession and engaged in operating it.

The defendants have not acquired the right to yse the plaintiff’s private rights to light, air and access which are incidents to his lot abutting on Pearl street

January 26, 1888, this action was begun to recover (1) the damages (alleged to be $3,000 annually), to the rental value of the property occasioned by the wrongful impairment by the defendants of these street rights, and (2) a judgment restraining the defendants from continuing to use those right except on the payment of $20,000 damages for the past injuries and $50,000, the alleged value of the rights of which the plaintiff had been in part deprived by the construction and operation of the road.

On the decision made at special term it was adjudged that the plaintiff was an abutting owner and as such entitled to recover $17,000, with the costs of the action, for the impairment of the rental value of the premises from January 31, 1882 (when he acquired title), to January 26, 1888 (when he began this action), and (2) that the defendants be restrained from operating the road after March 6, 1889, unless they should pay $20,000 adjudged to be the value of the rights impaired, upon the execution by the plaintiff of a proper conveyance of his street rights to the defendants. This judgment was affirmed at the general term and the defendants appealed to this court.

The only ground urged as error by the appellants is based upon the assumption that the premises consisted of two independent lots, one fronting on Pearl street and the other on Water street, and that the plaintiff recovered damages for injuries to both. This assumption is without foundation. The plaintiff did not, in his complaint, describe the property as two separate lots. He alleged:

“ I. That the plaintiff is now and has been since the 31st day of January, 1882, seized of an estate of inheritance in fee simple absolute in the premises known as No; 134 Pearl street and No. 100 Water street, in the city of New York.

“ II. That the plaintiff is and has been since the 31st day of January, 1882, seized of an estate of inheritance in fee simple absolute in the premises described as follows, viz.: All those two certain lots, pieces or parcels of land, situate, lying and being in the First ward of the city of New York, with a brick store thereon which, taken together, extend from Pearl street to Water street." *********

“ XVI. That said structure and railroad occupy and greatly obstruct Pearl street, adjoining the premises above described, and exclude the light and air from said premises and hinder access thereto.

“XVII.- On information and belief, that the trains darken the offices facing on Pearl street and render what light there is fitful and uncertain.

“XVIII. On information and belief, that the erection of said structure and the running of said trains thereon have created an additional burden on the premises above described and have interfered with the plaintiff’s rights and easements in Pearl street, and his rights to have the whole of Pearl street in front of said premises a free and open passageway, and to have light and air enter the building thereon, free from any obstruction in said street.”

On the trial the plaintiff showed that the entire lot was then, and for many years had been occupied by a single brick building extending from street to street, but gave no evidence that the premises were occupied as independent parcels, one fronting on each street, nor does the decision of the trial court, or the judgment following it, proceed upon the theory that the plaintiff was entitled to recover for injuries occasioned to two independent lots. The decision and the judgment are to the effect that the property consisted of a single lot, which had been injured by the defendants. This property having been occupied as an entirety anterior to the time when the road was built, or authorized to be built, the defendants were not entitled to have the damages limited to that part of the property owned and occupied before 1825 as a single lot abutting on Pearl street.

The fact that the building and lot were accessible to persons, property, light and air from two streets was important as bearing on the extent of the injuries occasioned by the occupation of one of the streets by the defendants, but it does not appear that this fact did not have due weight with the trial court.

In Mooney v. The N. Y. Elevated R. R. Co., 30 N. Y. State Rep., 561, there were two independent and wholly unconnected buildings on the plaintiff’s lot, one fronting on Greenwich street, in which the railroad is, and the other on Beach street, in which there is no railroad. The building on Beach street fronts on and is entered and receives its light and air from that street. The trial court received evidence of, and gave judgment for the diminished rental value of the Beach street building, which was held to be error. In that case the light, air and access to the building on Beach street was in nowise interfered with by the railroad.

In Greenwood v. Met. El. R. Co., 26 J. & S., 482; 35 N.Y. State Rep. 84, the plaintiff’s property fronted on Yesey street, and was sixty-four feet deep on Church street, in which the railroad was built This property was known as Nos. 31 and 33 Yesey street and was occupied by one building. Formerly, these lots were owned by different proprietors and occupied by distinct buildings. Whether these lots became the property of a single proprietor before or after the railroad was built, or whether the building which now covers them was built before or after the construction of the railroad, does not appear. In the case last cited lots 31 and 33 were, with other land, formerly owned by a single proprietor, who laid it out into lots and conveyed No. 31 to one purchaser, and after-wards conveyed No. 33 to another. It appears to have been conceded by the argument of the learned counsel for the railroad, as reported, that before the conveyance of No. 31 both it and No. 33 had appurtenant rights in Church street, but it was urged that when No. 31 was conveyed the right of No. 33 in that street was abandoned, cut off and destroyed. Undoubtedly these conveyances had that effect But it was urged that the reunion of these lots in the hands of a single proprietor did not restore to No. 33 the rights in Church street which it had before it was separated from No. 31 by the conveyance. This proposition was rested on the rule that when an easement, the right which the dominant estate has over the servient one, is abandoned or destroyed by the act of the owner of the dominant estate, that it cannot be restored or brought into existence without a new grant from the owner of the servient estate. It was also urged in support of the proposition that a reunion of the lots conferred no rights in Church street in favor of Ho. 33, because the owner of a dominant estate does not by the acquisition of adjacent land acquire the right to use the easement over the servient estate for the benefit of the newly acquired property. The illustration might have been carried' farther. A. owning a lot 25 by 100 feet covered with a building has a right of way to and from it over the land of B. Subsequently, A. buys an adjacent lot and covers both with a single building. He cannot use his right of way over the land of B. for his enlarged lot and new building because it would increase the burden of the servient estate. Would it be argued that the owner of Ho. 31 having rights in Church street, by adding Ho. 33 and covering it with a building lost all of his rights in that street? We think not.

The characterization of these street rights as easements and implying that they are governed by the rules and are subject to the limitations of common law easements tends to obscure the rights of abutting owners on the one hand and of the corporations on the other. They may be easements in the sense that the owner of land has an easement for lateral support in adjacent land, or that the owner of land bordering on navigable waters having certain private rights to the shore is sometimes said to have an easement, but in neither case are the rights common law easements. There is no dominant nor servient estate, and the rules applicable to easements have not generally been applied to such rights. Goddard on Basements, 1, et seq. The judgment in the Greenwood case was rested on the ground that the street rights once appurtenant to both lots having been destroyed as to 33 by the prior conveyances of 31, they could not be restored by the subsequent reunion of both lots. This conclusion as applied to such rights as are under consideration, we think, cannot be supported.

The defendants are liable for the damages done to the property in the condition in which it was when injured by them, and there is no rule of law or equity which entitles them to have the lot and building divided transversely by an arbitrary line or by the line of division which existed prior to 1825 so as to limit their liability for damages to the half of the property abutting on Pearl street.

The judgment should be affirmed, with costs.

All concur’.


author: Vann, J.

text:
    Albert A. Bliven, Resp't, v. Smith Lydecker et al., App’lts.

      {Court of Appeals, Second Division,

      Filed October 30, 1891.)

    "Usury—Principal and agent—Ratification.
    Where an agent authorized to lend, hut not to take usury, lends the money of his principal at a usurious rate and hath the sum lent and the usury exacted are secured by the same instrument, which the principal, knowing that it is for a larger amount than, the sum loaned, without explanation accepts and lias the benefit of, she adopts, ratifies and is bound by the act of her agent the same as if it had been done by herself.
    Appeal from an order of the general term of the supreme court, in the second judicial department, reversing a judgment •entered upon the decision of the court at special term.
    This action was brought to foreclose a mortgage dated February 1, 1879, made by Smith Lydecker and Jeanette, his wife, to Mar.garetha Schuler, to secure the payment of $4,000 on February 1, 1882, with annual interest at the rate of seven per cent. The mortgage was collateral to a bond in the usual form, and on the 10th of November, 1888, both bond and mortgage were assigned “to the plaintiff by said mortgagee.
    The defense of usury was interposed by the defendant, Smith Lydecker, and by the infant children of his deceased wife, Jeanette, who owned the premises covered by the mortgage at the time of her death in February, 1882.
    The trial court found that in December, 1878, said Smith Lydecker requested John W. Schuler, the husband of the mortgagee, to lend him $4,000, which Mr. Schuler agreed to do provided Lydecker would pay him $400 in excess of lawful interest and accept the loan in instalments, to all of which Lydecker assented. Pursuant to this arrangement Schuler advanced to Lydecker $1,000 on December 12,1878, $200 January 18, 1879, and $1,800 February 15, 1879, and took the promissory notes of said Lydecker •and wife for the two largest sums and the individual note of Mr. Lydecker for the smallest sum. Bach note bore the date of the advance it was 'given for, and was made payable to the order of Schuler, with interest. The sums so advanced with interest thereon to the date of the mortgage amounted to $3,036.62, which, with $563.38, paid by Mr. Schuler in cash at the time the bond and mortgage were given, formed the sole consideration therefor, except the bonus of $400 previously agreed upon.
    The trial court found, specifically, that “ the agreement to pay said ten per cent in excess of lawful interest, or $400 bonus, was a part of the contract for the loan, and said $400 was deducted from and reserved by the mortgagee out of the sum agreed to be loaned.” And also that “ the contract for the loan and the bond and mortgage given to secure it were usurious, and the mortgagee participated in the extortion. She advanced $3,600, and received a security for $4,000, as the result of an entire contract made by her husband, and there was no separate agreement to pay him as agent. The agreement for the ten per cent bonus was known to her, and she acquiesced in and authorized it.”
    Upon the request of the plaintiff it was also found “ that the said money was loaned to the defendant through John W. Schuler, the agent of the mortgagee,” but the trial court refused to find the further request that “ said mortgagee had no knowl-. edge that any usury was taken by her agent and never assented thereto. ”

      As conclusion of law the court found that the bond and mortgage were'usurious and void, and directed that the complaint be dismissed on the merits, with costs.

      Irving Brown, for app’lts; Garrett Z. Snider, for resp’t

       Reversing 28 N. Y. State Rep., 387.

   Vann, J.

The judgment rendered by the special term was not. reversed upon a question of fact, Code Civ. Pro., § 1338, but the order of reversal was based upon the assumption that there was-no evidence to support the finding that the mortgagee either authorized or acquiesced in the exaction of the bonus of $400.

She does not appear to have been present when the usurious-agreement was made by her husband and agent, nor during any of the negotiations that resulted in the execution of the mortgage. The business was all done by Mr. Schuler, who made the agreement for the loan, apparently in his own name, and advanced the several instalments and took notes therefor, payable to his own order, as if the money belonged to him. After $3,000 had been advanced, Mr. Schuler and Mr. Lydecker met to arrange for the mortgage and made a statement of the sums constituting the principal thereof, which was read in evidence and is as follows, viz.:

“ Memoranda of acc’t for mortgage of Mrs. S.

$1,800 int 1 mo. 10 days, $14.................... $1,814.00

$1,000 int 3 mo. 13 days, $20.03................. 1,020.03

$200, int. 2 mo. 7 days, $2.59.................... 202.59

Discount-for cashing mortgage................... 400.00

$3,436.72.

$4,000 mortgage................................ 4,000.00'

3,436 cash paid in ---

--- $563.38

$564 cash rec’d from Mr. Schuler.”

At the bottom of the memorandum were the computations by which the three sums of interest above mentioned were arrived at Up to this time Mr. Lydecker did not know that Mrs. Schulerhad any connection with the matter, but supposed that he was dealing exclusively with Mr. Schuler, who, moreover, then told him that “ he put .this mortgage in his wife’s name so that he would not have to pay any taxes on it"

After the mortgage was given Mr. Schuler collected the interest, until his death in September, 1887. When Mrs. Schuler assigned the mortgage to the plaintiff, in November, 1888, she covenanted that there was due thereon “ four thousand dollars and interest,” and is hence presumed to have had the benefit of the four hundred dollars of usury. There was no evidence tending to show that any other person had the benefit of it, or that Mi’. Schuler retained that sum, as his compensation, from money furnished by his wife. Except as stated, it did not appear to whom the money lent belonged. Thus we have a case where the exaction of usury was part of the contract by which the loan was made. Pursuant to that contract but $3,600 was advanced, while-a bond and mortgage for $4,000 was required and given. The mortgagee accepted the mortgage and through her agent collected the interest on the entire principal thereof for more than eight years. Although the business was done by her agent it was done for her benefit, and it was a permissible inference from the evidence that she knew when she received the mortgage that it was dor a larger sum than she had advanced, and hence, in the absence of explanation, that she thus had notice that usury had been taken. After accepting the usurious security under such circumstances, and receiving the benefits of it for year after year, she could not insist that it was valid because her agent had no authority to take usury for her. Acceptance of the mortgage, with knowledge of its unlawful origin, or with such notice as would cause a prudent person to make inquiry, was a ratification of the usurious contract and equivalent to prior authority to make it. Hyatt v. Clark, 118 N. Y., 563; 29 N. Y. State Rep., 851; Hoyt v. Thompson, 19 N. Y., 207; Ingalls v. Morgan, 10 id., 178; Story on Agency, § 140,; 1 Am. & Eng. Encyc. of Law, 429 ; Hovenden on Fraud, 144, 145 ; Dunlap’s Paley, 172.

The cases cited by the learned counsel for the respondent, of which Condit v. Baldwin, 21 N. Y, 219, is a type, are not analogous, because in that case the agent was held to have made two •contracts with the borrower, one in behalf of his principal by making the loan, the other in behalf of himself by providing for his own compensation in procuring the loan. The principal had no benefit from the sum thus exacted, and as the security taken was for the precise amount of the loan there was nothing on the face thereof importing usury. The court said that as “the agent •did not assume to act for another, but acted for himself and for his own benefit, a subsequent ratification did not bind the principal.”

But where, as in this case, an agent authorized to lend, but not to take usury, lends the money of his principal at a usurious rate and both the sum lent and the usury exacted are secured by the ■same instrument, which the principal,' knowing that it is for a larger amount than the sum loaned, without explanation, accepts and has the benefit of, she adopts, ratifies and is bound by the act ■of her agent the same as if it had been done by herself. Dempsey v. Chalmers, 44 Alb. L. J., 333, and cases there cited.

If the mortgage was void for usury in the hands of the mortgagee, it is void for the same reason in the hands of the plaintiff, her assignee.

It may be that if Mr. and Mrs. Schuler had been living so as to testify at the trial, a different state of facts would have -been disclosed, but we think the evidence as it stands is sufficient to •sustain the findings of the trial court, even undér the stringent rule applicable to proof of usury, and that the findings required a dismissal of the complaint.

The order of the general term should be reversed and the judgment of the special term affirmed, with costs.

All concur, except Haight, J., not voting.