author: CHESTER, J.

text:
    Anna I. Dawson, as Trustee, etc., Pl'ff, v. John D. Parsons et al., Def'ts.
    (Supreme Court, Albany Special Term,
    Filed February, 1896.)
    1. Former adjudication—Motion.
    Though an order made on a contested motion is not res judicata in the same sense as a judgment, the court will not disregard such order or decision when called upon to pass upon substantially the same question at another time in the same action.
    2. Appeal—Effect.
    While an appeal is pending from a judgment it is not proper to direct the receiver, in proceedings to distribute firm assets, to make any payments upon the judgment- appealed from.
    3. Same—Notice of.
    In such proceeding, creditors, who have been allowed to intervene and whose respective rights have been fixed by the judgment, have a-standing in court, and are entitled to notice of appeal, if it is intended thereby to affect their rights.
    4. Same—Time of taking.
    In such case, the time to appeal as to creditors has not begun to run until their attorneys serve the plaintiff’s attorneys with a copy of the judgment and notice of entry.

      -5. Same.
    If the creditors have not been allowed to intervene in the action, the notice of appeal, served upon the attorney for the receiver, will, it seems, be effective to bind the creditors.
    Frederick E. Wadhams and Eugene Burlingame, for moving creditors; Edward J. Meegan and Jacob H. Clute, opposed.
   CHESTER, J.

I think this motion presents practically the same question as was passed upon in this case by the special term upon a former motion, where the court denied an application to •direct the receiver to make certain payments under the judgment appealed from. It is true that the former motion was not made on behalf of creditors, but on behalf of one of the members of the firm of Weed, Parsons & Co.; but in Mr. Justice Herrick’s opinion, written on the denial of that motion, he says:

“ While an appeal is pending from a judgment, * * * it hardly seems to me the proper tiling to direct the receiver to make any payments upon the judgment appealed from.”

While an order made on a contested motion is not regarded by the courts as res adjudicata in the same sense as judgments, yet there is every reason why the court should not disregard such •orders or decisions when called upon to pass upon substantially the same question at another time in the same action.

It is urged here, however, that the receiver should be directed to pay the moving creditors the amounts directed to be paid them bv the judgment, notwithstanding the appeal, because the notice of appeal has not been served upon their attorneys; that the time to appeal as to them has expired; and that, for these reasons, their rights cannot be affected by the pending appeal. It is admitted that the interest of these creditors is adverse to that of the plaintiff, and that one purpose of the appeal is to secure a modification of the judgment, so that the plaintiff’s interest in the funds in the hands of the receiver will not be lessened by the payment therefrom of any part of these claims. The plaintiff’s theory is that the defendant Parsons is alone liable for the claims of these creditors, and that they should not be paid from the assets of the firm of Weed, Parsons & Co., in the hands of the receiver, as directed - by the judgment.- I think that these creditors are fairly to be regarded as parties to the record, although they do not formally stand as plaintiffs or defendants. They have been allowed by the order of reference to intervene and prove their claims before the referee ; and having done so, and the judgment having fixed their respective rights, and determined what payments should be made to them, respectively, they have a standing in court, and are entitled to notice of appeal, if it is intended thereby to affect their rights. Attorney General v. North American Life Ins. Co., 77 N. Y. 297; 6 Abb. N. C. 293, and note on “ Intervening,” page 304; Travis v. Myers, 67 N. Y. 542 ; Kerr v. Blodgett, 48 id. 62.

But I do not think that the time to appeal as to these creditors has expired. It was admitted upon the argument that the attorneys had never served the plaintiff’s attorneys with a copy of the judgment and notice of entry. This being so, the creditors are hardly in a position to claim that the plaintiff’s time to‘appeal has expired, for they have not yet set in motion the statute limiting the time to appeal as to them. Kilmer v. Hathorn, 78 N. Y. 228. If the creditors had not been allowed to intervene in the action as above stated, I think the notice of appeal served upon the attorney for the receiver would have been effective to bind the creditors, as the receiver stands in a sense as their represent itive. It may be that, until the question was raised on this motion, the plaintiff’s attorney thought the notice to the receiver's-attorney was sufficient as to the creditors; but, whether he did or not, there is nothing to indicate that the appeal has not been taken in good faith; and, it not being too late to perfect it as to the creditors, this motion should not be granted. The motion is denied, with costs to the plaintiff, to be paid by the receiver out o£ the fund in his hands.

Motion denied, with costs payable out of fund.


source: Caselaw Access Project

author: BROWN, P. J.

license: Public Domain

text:
    Henry Arthur, Jr., App'lt, v. Henry Arthur, Individually and as Executor, etc., et al., Resp'ts.
    (Supreme Court, Appellate Division, Second Dept.,
    Filed April 21, 1896.)
    1. Construction—Rule.
    If the language of a trust instrument is capable of direct construction, it is the duty of the court to adopt that which will render the trust legal and operative, other than one which will render it void.
    ' 2, Trusts—Construction.
    The word “accumulation,” in a will was construed to be limited in meaning to such sum as had legally accumulated in the hands of the trustee before the deceased child had attained his or her majority.
    Appeal from a judgment dismissing the complaint.
    L. Laflin Kellogg, for app’lt; Jesse Johnson, for resp’ts.
   BROWN, P. J.

The appellant alleges in his complaint that he is seised of an undivided one-quarter of a certain lot of land, with the buildings thereon, situated on Myrtle avenue, in the city of Brooklyn, the lot being 22 feet in front and in rear, and 75 feet deep ; and he seeks in this action a judgment directing a sale of said land, and a division of the proceeds among the several tenants in common. The appellant is the son of Sarah Arthur, who died seized of said land in March, 1882. Mrs. Arthur left, surviving her, her husband, the defendant Henry Arthur, and four children, all' of whom were minors at the time of their mother’s death. Mrs. Arthur left a last will and testament, which was duly admitted to probate as a will of real and personal property, whereby she devised to her husband, as her executor, all the property of which, she died seized, upon the following trust:

“ First. To convert the same, or such portions thereof as shall in ‘his judgment seem best, into cash, and to keep the same, and the proceeds and income of all my estate,-after paying the necessary expenses, safely invested.

“ Second. To pay such sum as may be necessary for the expense of supporting, maintaining and educating each and all of my children, in such manner as my husband shall deem suitable and proper, until my said children shall arrive at the age of twenty-five years.

“ Third. Upon the arrival of my said children, respectively, at the age of twenty-five years, to distribute and pay over to them, ■respectively, such portion of my estate as they would be entitled ■to in case of my dying intestate.

“ Fourth. In case of the decease of any of my said children before arriving at the age of twenty-five years, and leaving issue ■surviving him or 'her, such issue to take, upon the decease of their parent as aforesaid, that proportionate part of my said estate, with its accumulation, to which the said parent would be entitled had he or she attained the age of twenty-five years at the time of said ■decease.”

It is the appellant’s contention that the trust thus created by the will is one which permits an accumulation of the rents and profits of land for a period extending beyond the minority of the beneficiaries, and is therefore void as respects the time beyond such minority (1 Rev. St. p. 726, §§ 37, 38); and that the plaintiff became seised of an undivided fourth of said property, and entitled to the possession thereof, on attaining the age of twenty-one years. If the trust created by the will was one solely for the accumulation of the rents and profits of land, or any part thereof, this argument might prevail. But one of the cardinal rules for the construction of a will is to give effect to the manifest intents of the testator, as deduced from the lunguage of the instrument; and it is quite clear in this case that Mrs. Arthur did not intend, under any circumstances, that her children should have possession of their share in corpus of the estate until they, respectively, reached the age of twenty-five years. Until that period arrived, the trust was to continue, and the children’s right therein was to draw their support and maintenance from the trust fund. The direction that the sum to be applied to the support and maintenance of the children was such amount only as the trustee should deem necessary for that purpose was incident only to the main purpose of the testatrix, which was to provide for the education, support and maintenance of her children until they reached the age of twenty-five years. It is impossible, therefore, to avoid the conclusion that, if the appellant’s argument is sound, the result must be to render the whole trust void, in which case the property passed to the children under the statute of descent, subject to their father’s estate for life as tenant by courtesy; and as it is evident that there could not be actual partition of a city lot 22x75 feet, with buildings thereon, the appellant would not be entitled to have the property sold, unless his father consented thereto, in writing;' and we should be compelled for that reason to affirm the judgment dismissing the complaint. Code Civ. Proc. § 1533. But we are of the opinion that the trust estate created by the will is valid. An accumulation of the rents of real estate is not specifically directed, nor was-such the purpose of the testatrix.' The sum to be applied and expended for the support of the children was not limited to the-income, but might be drawn from the corpus of the estate. The testimony shows that the estate of the testatrix consisted of the property described in the complaint, and twenty or more' vacant and unproductive lots in the city of Brooklyn; and it is quite evident, I think, that the condition which the testatrix contemplated and provided for was not a surplus of rents and profits which might accumulate in the trustees’ hands, but an income insufficient, for the support of her children, which was provided against by granting to the trustee power to use the principal of the estate for that purpose. If the language of the instrument before us is capable of two constructions, it is our duty to adopt that which will render the trust legal and operative, rather than one which would render it void. It does no violence to the language of the will to-hold that, the main purpose of the testatrix being to create a trust for the suppost and. maintenance of her children, each child became entitled to the whole of his or her share of the rents or profits of the real estate upon attaining the age of twenty-one years. Accumulation of any possible surplus of the land was-valid until the period arrived, and there is nothing in the will which indicate any intention of the testatrix that, after that period arrived, an illegal accumulation was intended. Full effect is given to the use of the word “accumulation” in the last clause of the* will, by limiting its meaning to such sum as had legally accumulated in the hands of the trustee before the deceased child had attained his or her majority. The language of the instrument, permits this construction, and, under well-settled rules applicable to the interpretation of wills, it is our duty to adopt it.

The judgment should be affirmed, with costs. All concur.


author: GREEN, J.

text:
    The People ex rel. Sid. H. Gates, Resp't, v. Irwin W. Fargo, App'lt.
    (Supreme Court, Appellate Division, Fourth Dept.,
    Filed April, 1896.)
    Execution—Person.
    In an action of trespass upon lands, the nature of the action is-not chang-ed by demanding protection in the complaint during the-continuance of the wrongful acts of the defendant, and an execution against the person on a judgment will not lie.
    Appeal from an order, discharging the relator from imprisonment, and from the execution against his person.
    F. S. Wheeler, for app’lt; Hudson Ansley, for resp’t.
   GREEN, J.

Irwin W. Fargo brought an action against Sid. H. Gates to recover damages for trespass and injury to the freehold by the defendant in that action, Sid.' H. Gates, in cutting standing and growing timber upon lands of the plaintiff. The plaintiff alleged in his complaint that he wastheowner of the lands described therein, and that the defendant wrongfully and unlawfully entered upon the same, and cut down and carried away a quantity of valuable chestnut trees and timber of the plaintiff, then standing and growing upon the land, and converted and disposed of the same to his own use; that he also cut down, upon said lands, a quantity of valuable chestnut trees, and threatened to remove the same; that such acts of trespass were committed wrongfully, unlawfully, and maliciously, and without a special and lawful .written license so to do, and without any authority therefor in any manner whatsoever; that he threatened to continue to commit trespass upon the said lands aud premises, and to continue cutting down, carrying away, and disposing of all of the timber standing and growing upon the land, to his own use; that the trees and timber were of great value to the plaintiff, and that unless restrained from the continuance of the commission of such acts of trespass, and of cutting down and carrying away and disposing of trees and timber, the said defendant would continue to cut down, carry away, and dispose of a large quantity of valuable timber from the lands and premises, to the great injury and damage of plaintiff; that by reason of such acts of trespass the plaintiff was greatly injured in his estate; that he had suffered damages thereby in the sum of $50; and that by reason of said acts of trespass the defendant, by force of sections 1667 and 1668 of the Code of Civil Procedure, became liable to pay to the plaintiff treble the amount of such damages. The plaintiff demanded judgment that an injunction order, pendente lite, might issue to restrain the defendant from continuing to cut, draw away, or dispose of the timber on the lands; that a perpetual injunction be granted in the action, restraining and enjoining the defendant from the commission of any. act of trespass upon the lands and premises, by cutting down, carrying away, or disposing of, to their own use, or the use of any other person, any trees or timber upon said lands or premises; and that the plaintiff recover the sum of $150 against the defendant as damages for the several acts of trespass committed by him as stated in the complaint, together with the costs of the astion. The defendant, in his answer, admitted that plaintiff was the owner of the premises described in the complaint, but alleged that defendant was the owner of the timber mentioned therein; that he had purchased the same of plaintiff, and was the owner of all the chestnut timber or other kind of trees or timber that he cut or ■removed from the premises; and that the timber removed was so removed by the consent and license of the appellant,—and denied each and every other allegation of the complaint. The action was referred. The referee made his report in favor of the plaintiff upon all the questions at issue, and found that he was entitled to recover damages in the sum of. $5 and costs, and to a permanent injunction. Judgment was entered thereon for $5 damages and $188.92 costs. Execution against the property of the relator was duly issued and returned unsatisfied. Thereafter an execution against the person of the defendant was issued. He was arrested by the sheriff, and held in his custody until a writ of habeas corpus was issued, and upon the return of that writ an order was made discharging the relator from the custody of the sheriff.

The relator claims that the appellant was not entitled to an execution against his person, as the appellant had, in his complaint, joined with the action for trespass a demand for equitable relief. The learned county judge decided the question presented upon that ground alone. In his opinion he says:

“ It is clear that this form of execution might properly issue for the damages and costs alone, if the equitable relief had not been also demanded and received. And the only question to be disposed of is whether or not such joinder of a request for equitable relief prevents plaintiff from enforcing his judgment for damages and costs in the manner in which he now seeks to do."

Upon that ground alone counsel for relator seeks to" uphold this order.

The nature of the subject-matter of the action was the defendant’s wrongful act in the commission of a trespass upon the lands of plaintiff. The plaintiff alleges in his complaint that the acts so complained of were wrongfully, willfully, and unlawfully committed by the defendant. Be further alleges that the defendant threatened to continue the commission of those wrongful acts. And he asked in that complaint for protection from the continuance of the wrongful acts of defendant so complained of. By demanding such protection iu his complaint, the nature of the action was not changed. The wrong, and not the incidental question of protection from such wrong, still continued to be the subject-matter of the litigation. The wrong alleged was the controlling issuable fact. The continuance of that wrong, the plaintiff alleged, would work irreparable injury and damage to his property. He claimed in his complaint that it was necessary, to prevent a continuance of those' wrongful acts, that the court should interpose by injunction, and restrain the defendant from such continuance. An adjudication in favor of the plaintiff has been made upon all of the issuable facts. It was alleged in the complaint, and so found by the judgment, that the defendant therein had committed a wrong, and that it was his intention to continue in the perpetration thereof. There is but one count in this complaint, and but one cause of action alleged, and that is for the past wrongs committed by defendant, and protection from threatened continuance of the same. The case of Niver v. Niver, 19 Abb. Prac. 14, is conclusive against the contention of the relator. The learned county judge comments upon that case, and says that it did not appear that the protection there granted was to be in form of a permanent injunction, and says “the court states ‘that action was for injury to property,’ and it seems fair to infer from this statement that no equitable relief was granted.” He seems to have entirely misconceived the final result of that action. The complaint therein was for a willful and wrongful injury to plaintiff’s property, and for wrongfully and willfully depriving her of the use of certain parts of such property. It set forth the will of her father, the injuries com■plained of, and then asked that the rights and interests of the parties to the action under such will (the defendant, her brother, being devisee therein) should be adjudged and determined; that the defendant be required to remove certain obstructions he had interposed to the proper use of her property; that an injunction be issued against him from interfering therewith, and for judgment for an injunction and damages for the injuries. An answer was interposed, denying all the allegations in the complaint, except the will and the relations of, the parties. The cause was referred to a referee to hear and decide, who reported in favor of plaintiff for §50 damages and costs, and granting the relief restraining and enjoining the defendant as prayed for in the complaint. Peckham, J., writing the opinion, says:

“ The gravamen of the action is the wrongs done to the plaintiff’s property. There is but one count, and that asks redress for past wrongs, and protection for the future. * * * Here are two causes of action. The action is substantially for injuries— willful injuries—to plaintiff’s property. * * * This case comes within the plain provision of the Code section 179 (now section 549) for injuring property.”

I am of the opinion that the order herein should be reversed, and the relator, Sid. H. Gates, remanded to the custody of the-sheriff of Cattaraugus county.

Order reversed, and relator, Sid. H. Gates, remanded to the custody of the sheriff of Cattaraugus county.

All concur.


author: McADAM, J.

text:
    Clair J. Pitcher, as Administrator, etc., App'lt, v. William F. Lennon, Resp't.
    (Supreme Court, New York Trial Term,
    Filed April 27, 1896.)
    1. Negligence—Damages.
    Every person violating a statute is a wrongdoer, negligent in the eyes of the law, and any innocent person injured by such violation, if it is the proximate cause of the injury, may, in a proper case, recover damages from the employer and contractor, jointly or severally, and it is not in the power of the owner to escape liability by making a contract with another to commit the wrong for him.
    3. Same—Nuisance.
    No degree of care will excuse the creator of a nuisance, and, for this reason, negligence is generally not regarded as a factor in such a ease.
    3. Same—Notice.
    The creator of a nuisance is liable without notice, while a continuer is not liable without proof of scienter.
    4. Same—Building laws.
    An owner of a building, erected in violation of the building laws, is liable for injuries caused thereby, where he knew of the violation.
    5. Same.
    While the defendant is chargeable with knowledge of the law, he is riot so chargeable as to the facts, and if the jury find that he did all that a prudent man should reasonably be expected to do under the circumstances, he is not liable.
    Motion by defendant for new trial.
    J. M. Gardner, for pl’ffs; D. M. Neuberger, for def’t.
   McADAM, J.

The action was commenced against William F. Lennon, as owner, and Comes and Gleaves, as contractors, to recover damages caused by the collapse in March, 1895, of four large buildings in course of erection, known as “Nos. 151,153, 155 and 157 Orchard Street,’’—an event which has passed into our local history as the “Orchard Street Disaster.” At the trial the action was discontinued as to the contractors, and proceeded as to the owner, on the theory avowed by the plaintiff’s attorney,— that the structure was erected in a manner forbidden by statute, was a menace to life, and, in legal effect, a nuisance (Code, § 1660), and that such violation was the proximate cause of the fall and of the decedent’s death. Without regard to the form in which the question has come up, the courts have invariably held that every person violating a statute is a wrongdoer, negligent in the eyes of the law, and that any innocent person injured by such violation, if it be the proximate cause of the injury, may, in a proper case, recover damages from employer and contractor, jointly or severally, it not being in the power of an owner to escape liability by making a contract with another to commit the wrong for him. Jetter v. Railroad Co., *41 N. Y. 154; McRickard v. Flint, 114 id. 222; 23 St. Rep. 100; Creed v. Hartmann, 29 N. Y. 591; Shepard v. Railroad Co., 35 id. 641; Wilson v. Turnpike Co., 21 Barb. 68; Donnegan v. Erhardt, 119 N. Y., at page 474; 29 St. Rep. 589; Lambert v. Railroad Co., 70 N. Y., at page 109; Storrs v. City of Utica, 17 id. 104; Swords v. Edgar, 59 id. 28, 34; Masterson v. Railroad Co., 84 id. 247; King v. Railroad Co., 66 id. 185 ; Jones v. Chantry, 1 Hun, 613; Willy v. Mulledy, 78 N. Y. 310; Congreve v. Smith, 18 id., at page 82; Dorrity v. Rapp, 72 id. 307; Sexton v. Zett, 44 id. 430: Baxter v. Warner, 6 Hun, 586; Dygert v. Schenck, 23 Wend. 446. A public nuisance consists, among other things, in unlawfully doing an act, or omitting to perform a duty, which act or omission in any manner renders a considerable number of persons insecure in life. Pen. Code, § 385.. One who has sustained damage peculiar to himself, from a common nuisance, has a cause of action, though a like injury has been sustained by numerous others. Francis v. Schoellkopf, 53 N. Y. 152; Adams v. Popham, 76 id. 410. No degree of care will excuse the creator of a nuisance, and for that reason negligence is generallv not regarded as a factor in such a case, though, as these torts are frequently co existent, it is at times difficult to suppress the-appearance of negligence, or evidence given to explain away its presence. The gravamen of the charge against the owner is the violation of that part of section 483 of the building law (Laws 1892, c. 275) which provides that the utmost weight allowed on a superficial foot of Brickwork laid in lime and cement is tons. The violation consisted of the erection of an air-shaft wall, imposing a weight of 60 to 90 tons on a superficial foot of. brickwork foundation ; and this, it is claimed, was crushed in by the enormous weight, causing the collapse complained of. The court instructed the jury that, while the defendant was chargeable with knowledge of the law, he was not so chargeable as to the facts, and left it to the jury to determine how far the defendant knew, or ought to have discovered from his frequent visits to the buildings, the true condition of things, with the qualification that, if they found that he did all that a prudent man should reasonably be expected to do under like circumstances, he was not liable. The jury found all the facts in favor of the plaintiffs, and awarded them $1,500 damages,—a verdict which is moderate in amount. The cases of respondeat superior cited by the defendant have no application, considering the theory on which the trial proceeded. 4 Wait, Act. & Def. 772, and other authorities cited supra. .The creator of a nuisance is liable without notice, while a continuer is not liable without proof of scienter. 1 Chit. Prac. 384; Hubbard v. Russell, 24 Barb. 404; Brown v. Railroad Co., 12 N. Y. 486; 4 Wait, Act. & Def. 770; Wasmer v. Railroad Co., 80 N. Y. 212. The court charged that the owner was not liable unless the nuisance was visible to him, and that the fact that the building department approved of the plans was a circumstance to be considered in his favor. Apparently the rights of the defendant were properly guarded, and the record fails to disclose any error to his prejudice of which he can rightfully complain.

The motion for a new trial must be denied.


text:
    Katharine Waldele, as Administratrix, etc., App'lt, v. New York Central and Hudson River Railroad Company, Resp't.
    (Supreme Court, Appellate Division,
    Filed April, 1896.)
    1. Negligence—Railroads—Crossing.
    It is a question of fact for the jury, whether the rate of speed of railroad trains in crowded centers of business and population, and through villages and cities more or less densely populated is excessive or dangerous.
    2. Same—Flagmen.
    Where the flagman has been uniformly stationed by the railroad company at a street crossing-, the negligence of the flagman to give warning and to properly discharge his duty, or in absenting himself from his post, is imputable to the company. •'
    3. Same.
    A traveler has a right to rely upon the presence of the flagman to warn him of danger, and 'the swinging of the lantern and starting towards the shanty by the flagman is an assurance of safety upon which the traveler has the right to rely.
    4. Same—Contributory.
    Where the company, by its negligent act, causes circumstances of peril and creates the emergency, it is not relieved from responsibility because the traveler does not exercise the soundest discretion in his efforts to obviate the circumstances of its fault.
    5. Same.
    Where the regular flagman has deserted his post for a time and either procures another man to take his place during his temporary absence, or, by leaving the crossing, makes it possible for another to act in his place and give false assurance of safety, the traveler has a right to assume, from the former practice and custom of the company, that such flagman was there by employment and authority from the company.
    6. Same—Ordinance.
    An ordinance, limiting the speed of trains east of a certain street, was held, in -this case, to limit the speed also on such street.
    7. Evidence—Opinion.
    Persons of ordinary experience with trains are competent to testify as to the speed of a train, and the question is not one for experts only.
    Appeal from an order, denying a motion for the new trial on the minutes under nonsuit.
    Philip J. Waldele was an educated deaf mute, 47 years of age, residing on Madison street, in the city of Rochester. Just at daybreak, and between 6:35 and 6:40 a. m., of January 30, 1895, at the Brown street crossing in that city, he was struck by an engine of defendant, and instantly killed. At that point, defendant’s four main tracks cross the street at grade. The tracks of the Rochester and Pittsburg Railroad also cross Brown street immediately south of, and parallel with, the Central tracks. The trains of the Charlotte Branch, Falls Branch, direct road of the Central and of the West Shore, pass over this crossing, which is in a thickly-populated portion of the city, and is much used by pedestrians and others. Four other streets center at that point. The defendant employed one flágrnan at this crossing from six at night until seven in the morning, and one from seven in the morning until six at night. This it had done for some time .previous to, and they were so employed at the time of, the accident. Ait ten minutes to six on the morning of the accident, Thatcher, one of those flagmen, was .seen on duty at the crossing. There was a large electric light, twenty feet from the ground, south of the Central tracks, and at the westerly curb of Brown street; and this light was burning at the time of the accident. At that time also a number of box cars were standing on the Rochester & Pittsburg' tracks, just west of this crossing. Plaintiff’s intestate had for many yeares lived near this crossing, and was perfectly familiar with it. On the morning of the accident, he left home about six o’clock, and went over this crossing to a saloon 150 feet north of the tracks. He remained until 6:33 or 6:34 o’clock, when he came out, and went towards the track. At that time, a freight train of forty or fifty cars on track No. 3 was approaching the crossing, moving to the west. While this freight train was passing over the crossing, a man with a lantern was there, acting as flagman. He stood at the southerly side of defendant’s tracks; and, immediately after the freight passed, swung his lantern, indicating that the tracks were.clear, and then started towards the flagman’s shanty,' on the south side of the tracks. He gave no sign that another train was coming. Plaintiff’s intestate started across the tracks just after the freight train had passed, and, as he reached track No. 1° was struck by the engine of a fast express train from the west, running at the rate of forty miles an hour. Waldele was thrown into the air, and his body struck track No. 3 or 4, twenty feet east of the crossing. The wounds upon his body were on the right side. He was thrown to the east and north, indicating that, when struck, he had just reached the north rail of track No. 1. At the time of the accident, the regular flagman, who had been on duty at the crossing a short time before, had gone to a saloon, about 200 feet away. Just after the accident, he was seen on Brown street, coming from the direction of the saloon towards the tracks.
    John A. Barhite, for app’lt; Edward Harris, for resp’t.
   GREEN, J.

The first question presented is whether the evidence of defendant’s negligence was sufficient to require the submission of that question to the jury. It was proved, and not denied, that defendant’s train which struck plaintiff’s intestate was running at the rate of forty miles an hour over Brown street crossing, which is in a thickly.populated portion of the city of Rochester. Defendant’s employe, whose duty it was to protect from danger those who crossed at that point, had abandoned his post, either leaving a substitute, or making it possible, by his neglect, for an unauthorized person to assume his position and bis duties, and, by his signals and negligent and careless conduct, give false assurance of safety to those who were obliged to use this dangerous crossing. The courts in this and other states have repeatedly declared that it is a question of fact for the jury whether the rate of speed of railroad' trains in crowded centers of business and population, and through villages and cities more or less densely populated, is excessive or dangerous. It is unnecessary to call attention to the familiar cases upon that subject. They all reach a like result, and have firmly established the rule which must govern courts in the disposition of that question. The evidence of the absence of the regular flagman at that crossing, at the time of the accident, tended to show negligence of defendant, and should have been submitted to the jury upon that question. Where a flagman has been uniformly stationed by a railroad corporation at a street crossing, the negligence of the flagman to gi ve warning, and to properly discharge his duty, or in absenting himself from his post, is imputable to the corporation. Dolan v. President, etc., 71 N. Y. 285; Wilbur v. Railroad Co., 32 N. Y. Supp. 479. There was evidence tending to show negligence of defendant, and the learned trial justice erred in deciding, as matter of law, that defendant was not negligent. That question should have been submitted to the jury.

The question of the contributory negligence of plaintiff’s intestate should also have been submitted to the jury. Plaintiff’s intestate was familiar with the crossing, and had been for several years. He knew its dangers; knew that defendant considered it so dangerous that a flagman was stationed night and day upon that crossing, to give warning of approaching trains, and to assure safe passage to pedestrains. Waldele had walked over this crossing many times when the flagman was' at his post of duty, and, while he must have known and appreciated the dangers of the situation, he must also have known and appreciated the safeguards for himself and others which the defendant had provided. Familiar, as he was, with all this, crossing there in safety, as he had, for so many years, he must have known that this defendant, for its protection and that of the public, had stationed at this crossing a flagman, whose sole duty it was to stand upon those tracks, and discover approaching trains, and give warning of their proximity to that crossing. It appears that Waldele came to track 3 about the time the freight came upon the crossing on that track. The witness Roth testified that he crossed just before the freight, and that the flagman, with his lantern, was then on the crossing, flagging the freight train. Mrs. Wyrsing, another witness, testified that she was at the south of the tracks, and that she first saw the freight train when the flagman made the motion to stop. It ad-pears conclusively that when the freight was approaching, and while making the crossing, this person with the lantern was there acting as flagman. Waldele was then at the track on which the freight was passing. Immediately after the freight passed, the acting flagman swung his lantern, indicating that the track was clear, and started towards the flagman’s shanty, across the tracks, to the north. He gave no sign that another train was approaching. Waldele starts to cross; passes over track 3, and onto track 2: and at this point, it is claimed by defendant, he could have seen the fast express coming from the west on track 1. But if the man who swung the lantern, and who had an unobstructed view to the west, did not see the approaching train, as he apparently did not, why should Waldele see it? If the Wyrsings (who had been stopped by the flagman for the freight to pass, and who then, relying on the signal of the flagman, started to cross, and were only precluded from so doing by the express train coming upon the crossing before they could reach the track) did" not see the train, why should Waldele ? It does not follow as matter of law that, beeaúse he might have seen the coming train, he was guilty of contributory negligence. He had awaited the passage of one train. An assurance of safety and invitation to cross had been given by the acting flagman, who had started'for the flagman’s shanty, indicating there was no further danger to be apprehended. While Waldele, under these circumstances, was bound to use his eyes, he was not bound to use them in a particular manner, or at a particular instant of time. Oldenburg v. Railroad Co., 124 N. Y. 419; 36 St. Rep. 402. The evidence shows that even if Waldele had looked westward, immediately after crossing track 3, he would have had only three seconds if passing directly, and less than six if crossing diagonally, over the tracks, in which to determine his action in escaping the impending danger. He came thus far upon the crossing after invitation by the flagman. The elec" trie light on the south side of the track shone directly in his eyes-It was still dusk. He had reached track 2. If he then first saw the headlight of the passenger taain coming towards him at the rate of forty miles an hour, who shall say that, mnder the conditions existing at that second of time, he may not have judged that the express train was on track 2, and that, in passing to track 1, he was passing to safety, and not to death? The law does not hold a person to the same degree of prudence in times of danger as where deliberation is possible. When a defendant, by its negligent act, causes the circumstances of peril and creates the emergency, it is not releosed from responsibility because the plaintiff did not exercise the soundest discretion in his efforts to obviate the consequences of its fault. When danger is imminent, the law does not demand that accuracy of judgment required under other-circumstances. Roll v. Railway Co., 15 Hun, 496, afflamed 80 N. Y. 647. Waldele had a right to rely upon the presence of a flagman to warn him of danger, and the swinging of the lantern and starting towards the shanty were an assurance of safety upon which he had a right to rely. This case is analagous to that of McNamara v. Railroad Co., 136 N. Y. 650; 49 St. Rep. 395, where it was held that the raising of gates at a railroad crossing was a substantial assurance to one waiting to cross, just as significant as if the gateman had beckoned to him or invited him to come on, and that any prudent man would not be influenced by it is against human experience. The defendant’s counsel says that everybody who has anything to do with a railroad knows that the swinging of the lantern crosswise of the tracks is a signal for a train to stop. No one so construed that signal except the counsel, not even the railroad men. No train stopped in obedience to it. It was not so construed by the Wyrsing, who, construing it to be a sigual of safety, started to cross the tracks, and had approached so near to track 1 that their horse’s head was within a foot or two of the engine and cars of the express train as it dashed over the crossing.

Defendant insists that as the regular flagman was absent, and ■as it was not shown that the acting flagman was in defendant's employ, it is not liable for his negligence, and that plaintiff’s intestate is guilty of contributory negligence in relying upon the apparent flagman. The company had, for some time before the accident, employed and kept a flagman at that crossing, night and day. The deceased knew this. The regular flagman had deserted his post for a time. He either procured this man to take his place during his temporary absence, or, by leaving the crossing, made it possible for another to act in his place, and give false assurance of safety. So far as the question of Waldele’s contributory negligence is concerned, it is of no moment under what arrangement the flagman was there. The fact remains that he was there acting as flagman, and Waldele had a right to assume, from the former practice and custom of defendant, that" this flagman was there under employment or authority from the company. If he was not, he was there through the negligence of the regular flagman in absenting himself from his post, and that negligence is imputable to this defendant.

We are of the opinion, therefore, that the evidence did not conclusively establish negligence on the part of deceased. There was. evidence from which a jury might have found as matter of fact, or at least might fairly have drawn the inference, that the deceased, under all the circumstances of the case, exercised that degree of care and caution which prudent persons of ordinary intelligence usually exercise under like conditions and circumstances. We can she that the facts bearing upon the solution of this question were such that different minds might well disagree upon the construction to be given intestate’s acts. It is especially the-province of a jury to solve questions involved in such doubt or uncertainty. It was error, therefore, to refuse to submit this-question to the jury.

A further question raised by exception to the refusal of the-court to receive certain evidence should be considered.

The plaintiff offered in evidence an ordinance of the city off Rochester, providing that no railroad shall run its cars east of Brown street, at a greater speed than eight miles per hour. This was objected to by defendant’s counsel, upon the ground that it-does not cover the street in question. The objection was sustained, and the plaintiff excepted. We are of the opinion that-the learned justice erred in excluding this evidence. The ordinance must be given a reasonable construction, and to ascertain its meaning and the intention of its framers, as deduced from its-language, the.court may look at the circumstances under which it was passed. The evident intention of the city was to stop the rapid running of trains over crowded streets at grade. If the-city intended that it should apply only to the territory east of the easterly line of Brown street, then it was its intention to leave that crossing without protection from fast-running trains. Brown, street is in a populous portion of the eity, and in frequent use by the public. It is unreasonable to suppose the city intended to>relieve railroad corporations from restriction in the speed of their trains just at a point where it was most necessary. It would be both absurd and unreasonable to impute such an intent,' if the language used will bear a difieren construction. Obviously, the language of this ordinance is broad enough to cover the entire width 'of Brown street. It was clearly intended that Brown street, and not its eastern line, should form the limit. The train was running at the rate of forty miles an hour when it reached Brown street. By necessity, the ordinance was violated, for by no human agency could the speed of the train have been reduced to eight miles an hour while passing over this crossing. The ordinance was competent upon the question of defendant’s negligence, and should have been admitted.

The plaintiff also excepted to the rejection of the testimony tending to show the speed of the express train. This evidence should have been admitted. The witnesses were persons of ordinary experience, and, so far as appears, were capable of imparting to the jury a fair idea of the speed of the train. This is not a question for experts alone. A person of ordinary experience can judge the movement of bodies along the streets or along the tracks of a railroad; and the evidence of witnesses, with such experience, as to the speed of a train when it passes them, or when they saw it at a given place or time, is competent and material. Salter v. Railroad Co., 59 N. Y. 631; Northrup v. Railway Co., 37 Hun, 299; Scully v. Railroad Co., 80 id. 197; 61 St. Rep. 804.

We are of the opinion that there was evidence sufficient to require a submission of the case to the jury, and that error was committed in excluding evidence offered on behalf of plaintiff. It therefore follows that a new trial must be ordered, with costs to abide the event.

Older denying motion for new trial reversed, and motion for new trial granted, with costs to abide the event of action.

All concur.


text:
    Little v. Gallus et al.

    (Supreme Court, Appellate Division, Fourth Dept.,
    Filed April, 1896.)
    Dissenting opinion. For majority opinion, see 73 St. Rep. 643.
    Action to restrain defendants from using or disclosing secrets of trade or manufacture which plaintiff claimed belonged to him, and which defendants Callus and Bostwick became possessed of while employed in plaintiff’s factory. It is alleged in the complaint that defendant Callus was cautioned not to disclose any information of plaintiff’s formulas, processes, appliances, or machinery, and that he agreed not to do so, excepting: to such employes as were necessary to properly cany on the business; that, by reason of the position he occupied, it was necessary he should become familiar with the processes, appliances, and furmulas p and that it was impossible to conceal from him some information in regard to such formulas. An allegation to the same effect is-made in respect to Bostwick, and that they both acquired, by virtue of their employment, considerable information in regard to such formulas. Evidence was given tending to show that plaintiff commenced the manufacture of typewriter ribbons at Rochester in 1885, when he had no knowledge as to the processes used in the manufacture of ribbons or carbon paper; that the art was then in its infancy, and that there were in this country only two known manufacturers of typewriter ribbons; that plaintiff experimented and expended large sums of money and great deal of time in making experiments, devising and making machinery, and establishing the business; that, since he engaged in this enterprise, the business has grown to large proportions, and the number engaged in the manufacture of these ribbons has increased from two-to upwards of twelve; that every formula, process, and machine used by him were discovered, invented, or devised by him or by his superintendent, Mr. Bettys; that defendant Callus, beiim then fourteen or fifteen years of age, was, in 1886 or 1887, engaged by plaintiff to work in his factory. He was employed in “doing up ribbons” and at general work for a time, and was afterwards made superintendent of the ribbon department, where he continued for several years, and until his discharge. During the time of his employment, he assisted plaintiff in .making experiments, and thus ■acquired all the knowledge he had of that business. He says: “I considered myself competent, from the knowledge I had gained in Little’s factory, to make typewriter ribbons.” Defendant Bostwick, when eighteen years of age, was employed in the factory. He continued for two years, and claims to have learned, while engaged in such employment, all he knew of the manufacture of typewriter ribbons and carbon paper. Bostwick was discharged' in February, when he was still a minor, and Gallus in July following, at which time he was. in the twenty-second year of his age. 'Thereupon these defendants began the organization of a company for the purpose of manufacturing of typewriter ribbons and carbon paper. In December, 1894, the defendant coznpany was incorporated, Gallus and Bostwick constituting two of the incorporators, directors, and stockholders of the company, the principal place of business of which is at Rochester, where the plaintiff’s .manufactory is located. The corporation was formed for the purpose of manufacturing and selling typewriter ribbons and supplies, and was so engaged to the time of the trial. Gallus and Bostwick are the only ones connected with the defendant company who are acquainted with the process of manufacturing typewriter ribbons.
    Walter S. Hubbell, for app’lt; C. M. Allen, for resp’t Rochester Ribbon & Carbon Co.; Richard E. White, for resp’ts Gallus and Bostwick.
   GREEN, J.

(dissenting). There was no agreement in ‘writing between these parties, nor is there any evidence tending to show that, at the time these defendants or either of them entered the employment of plaintiff, he informed them of the necessity keeping secret the knowledge they might acquire in the performance of their duties, or that their relations were of a confidential oharacter, though the plaintiff testifies that shortly after Gallus entei’ed his employment, and on several occasions tlweafter, he was cautioned to keep secret from others what he might learn of the processes of znanufacture, and that he pz'omised to do so; also, that Bostwick was given to understand that his employment was to be considered as one of a secret and confidential character. It appears that Gallus received only the ordinary wages of a boy -engaged in ordinaiy laboi-, until he was made superintendent of the ribbon department, and then only such wages as one who had qualified himself for that position would receive. Nor does it appear that Bostwick received anything more than wages commensurate with the nature and character of the labor or duties he was called upon to perform, Consequently, there existed no special consideration to support the expz’ess or implied promise of these defendants to abstain from applying to practical uses, and for their own benefit or advantage, the knowledge they may have acquired in the course of their employment. Plaintiff bases his claim for an injunction upon the ground of an agreement, express or implied, to keep secret any knowledge Callus and Bostwick might, respectively, acquire as such employees in the course of manufacturing or in assisting the plaintiff in his experimental investigations. Plaintiff’s contention appears to be that, by experimental investigations, he discovered or invented a secret formula or process of manufacture of certain articles, and devised certain appliances and machinery ; that the defendants Callus and Bostwick, by reason of their employment and duties, and while engaged in assisting him in mixing the ingredients, and in other ways, acquired knowledge of such secret process, formula aud machinery; that the employment was of such a confidential character that the law will infer or imply an agreement, even though none may in fact exist, on the part of the employees, that they will not disclose or divulge the knowledge or information so" acquired, or put it to practical use in opposition to their employer; and that to do so constitutes such a violation of contract and breach of trust and confidence that a court of equity will enjoin. The doctrine upon which courts of equity proceed in cases of this ■character, and the scope and limits of that doctrine, require an examination of the adjudications pertaining to that subject.

In Newbery v. James, 2 Mer. 446, Lord Eldon refused an injunction against imparting, in violation of an agreement, a secret for the manufacture of a medicine, and the .sale of such medicine. “ The only way by which a specific performance could be effected would be by a perpetual injunction, but this would be of no avail, unless a disclosure were made to enable the court to ascertain whether it was or was not an infringement: for, if a party comes here to complain of a breach of injunction, it is incumbent on him first to show that injunction has been violated.”

In Williams v. Williams, 3 Mer. 157, the court said it did not think it ought to struggle to protect this sort of secrets in medicine ; that whether a contracting party is entitled to the protection of the court, in the exercise of its jurisdiction, to decree the specific performance of agreements by restraining a party to the contract from divulging the secret he has promised to keep, was a question requiring very great consideration.

In Deming v. Chapman, 11 How. Prac. 383, Roosevelt, J., refused an injunction to restrain defendant from divulging or teaching the'secret art or invention according to the method which the plaintiff had taught him, and which he had agreed not to divulge. “How can the courts, in effect, secure an invention without a patent, and for a period of indefinite duration, instead of the limited time of fourteen years ? Can the state tribunals assume the same functions after the general government has acted -upon the subject? But how is a decree, if made, to be enforced? A question of identity arises for the court to determine, and how is the identity of two things to be investigated if we are not permitted to inquire what the given things are? But, the moment the investigation takes place, the secret vanishes, its exclusiveness is gone; and, with the exclusiveness of the subject of the action, the action itself disappears,”—citing Newbery v. James, 2 Mer. 446, and Williams v. Williams, 3 Mer. 160.

In Yovatt v. Winyard, 1 Jac. & W. 394, it wus agreed that the employee should not be taught the mode of composing the medicines, but he surreptitiously copied the receipts, and was selling the medicines, with printed instructions for administering them which were almost literal copies of those composed by the plaintiff. An injunction was granted, on the ground that there was a breach of trust and confidence.

In Green v. Folgham, 1 Sim. & S. 398, upon a trust admitted, an account was decreed against the party to whom the secret had been devulged.

In Morison v. Moat, 9 Hare, 241 (relied upon by appellant), an injunction was granted to restrain the use of a secret in the compounding of a medicine, and to restrain the sale of such medicine oy a former co-partner, who acquired the secret in violation of the contract of the party by whom it was communicated, and in breach of trust and confidence. The defendant claimed that for two months he superintended the business in common with hie two co-partners, and during that time saw the mode and manner of compounding the medicines, and the ingredients thereof, and proportions in which such ingredients were used, and acquired a complete practical knowledge of the mode of compounding and mixing them, and he insisted that he had a right to use that knowledge. Said the court:

Undoubtedly, if the facts thus stated be proved, —if the defendant, with the knowledge and concurrence of the partners, was. permitted to acquire, and did acquire, a full knowledge of the mode of compounding these medicines, and of the secret process, in the manufacture of them,—it would be difficult for any of these-¡partners afterwards to restrain him from using any knowledge so-acquired or any secret so disclosed. They would, I think, in such ti state of circumstances, be considered to have waived any right to preserve the secret for their separate benefit. The defendant-admits that the secret was communicated to him by Thomas Moat. His allegation that he acquired a knowledge of it by' acting as partner in the concern is disproved; and it is shown that, if he did acquire such knowledge, he did so surreptitiously. It was clearly a breach of faith and of contract on the part of Thomas to communicate the secret.”

It was not disputed that James Morison was the inventor and the sole depositary of the secret in question. Lord Cramuth observed that:

“ There is no doubt whatever that where a party who has a .secret in a trade employs persqns under contract, express or implied, or under duty, express or implied, those persons cannot gain the knowledge of that secret, and then set it up against their employer."

This is a very comprehensive statement, indeed, and is cited by plaintiff’s counsel, and relied upon as sustaining his position; but it is mere dictum, and must necessarily be limited to the facts and. ■circumstances presented for decision.

In Fralich v. Despar, 165 Pa. St. 24, the employe, in consideration of an increase in wages, agreed not to reveal the secrets of his employer’s trade, which were revealed and thoroughly explained to him; but, in violation thereof, he manufactured and sold the "product, and represented it to be the same axle grease manufactured by the plaintiff.

In Peabody v. Norfolk, 98 Mass. 452, the case came up on demurrer, and all the allegations of the bill were admitted, viz.: That the invention and process was a secret, and was confidentially imparted to him; that the salary was a part consideration of the agreement not to disclose the secret; and that there was “ a violation of contract and breach of confidence.”

So, also, in Hammer v. Barnes, 26 How. Pr. 174, cited by appellant’s counsel, all the allegations of the complaint were admitted by the answer.

The general doctrine is well stated in Watkins v. Landon (Minn.) 54 N. W. 193, that any person lawfully acquiring a knowledge of the composition of any article not patented has the legal right to manufacture and sell the same if, by reason of the manner in which such knowledge is acquired, that would not constitute a breach of confidence or good faith.

In Chadwick v. Covell, 151 Mass. 190, the court observed that:

“Dr. Spencer had no exclusive right to the use of his formulas. His only right was to prevent any one from- obtaining or using them through a breach of trust or confidence. Any one who comes honestly to the knowledge of them could use them, without Dr. Spencer’s permission, and against his will.”

The court in Tabor v. Hoffman, 41 Hun, 5, says:

“The courts have uniformly restrained all persons in his employ who necessarily become possessed of the formula in the manufacture of the medicine or the article from subsequently engaging in its manufacture, or from imparting it to others,”

This is an extrajudicial utterance, not required by the facts of the case. The statement is not strictly accurate. It is too broad, and it is not warranted by any judicial decision that has come to my notice. The element of secrecy on the part of the employer, and the-existence of a confidential employment and a breach of trust •or confidence, are eliminated. Upon appeal (118 N. Y. 30; 27 St. Rep. 756), the court said that:

“ Because this discovery may be possible by fair means, it would not justify a discovery by unfair means, such as the bribery of a clerk, who, in the course of his employment, had aided in compounding the mixture, and had thus become familiar with the formula.”

There was no relation of master and servant in this case. Still, it cannot be true, as a general proposition, that the knowledge acquired by an employe in the course of manufacture, or in assisting the employer in experimental investigations, is acquired by unfair means.

In Baldwin v. Von Micheroux, 5 Misc. Rep. 387, the employe invented certain compounds for flavoring tobacco with materials furnished by the firm, with the understanding that the processes by which such substances were concocted should belong to the firm, and remain trade secrets, and it was held that the firm became owner and proprietor of such processes. It was remarked that, if the employe had not been engaged to make the inventions," the firm would not have acquired any ownership therein. To this effect, also, is Hapgood v. Hewitt, 119 U. S. 233; Id. 11 Biss. 184; 11 Fed. 422.

In Eastman Kodak Co. v. Reichenbach, 79 Hun, 192; 61 St. Rep. 97, the defendants were expert chemists, employed at large salaries; and it was agreed in writing that they should assign to plaintiff all inventions, discoveries, and improvements in photography which they might make, discover, or invent. There was also evidence to the effect that they should regard their relations as strictly confidential, and should not disclose or make improper use of any secrets of the business. The case is relied upon by plaintiff as establishing the doctrine applicable to the case at bar. The conditions existing in the case last cited are entirely wanting in the one under consideration. In the former there was an agreement in writing that the employes should receive large salaries, and, in consideration thereof, should assign to the employer the result of their labors. The employes were expert chemists, and capable of protecting their interests and appreciating fully the obligations and covenants made when they entered the employment. In the case-at bar there was no written contract. There is no evidence showing, or tending to show, that Gallus and Bostwich ever agreed, or that it was understood by this plaintiff, that they should not in the future use for their own benefit the information gained by them in the course of their employment while they were endeavoring to learn a business which should enable them in the future to earn their livelihood. - There was no extra, compensation for the extra obligation which platntiff claims rested upon them. There is nothing in the evidence showing that this obligation of refraining from themselves using the knowledge acquired in their employment was pressed upon them, or that plaintiff considered them so obligated.

In Bristol v. Equiteble L. As. Society, 132 N. Y. 267; 43 St. Rep. 786, the court uses this language:

_ “ Without denying that there may be property in an idea, a trade, secret, or system, it is obvious that its originator or projector must himself protect it from escape or disclosure. If it cannot be sold or negotiated, or used without a disclosure, it would seem proper that some contract should guard or regulate the disclosure; otherwise, it must follow the law of - ideas, and become the acquisition of whoever receives it,”—citing Peabody v. Norfolk, 98 Mass. 452.

It is evident from these decisions that it cannot be laid down as-a general rule or doctrine of law that every employe impliedly agrees, even without any special consideration, to keep secret the knowledge of the processes of manufacture that' he may acquire in tlie usual and ordinary course of his employment, and to abstain from putting this knowledge to such practical uses and purposes as he may see fit, for his own benefit or advantage, in opposition to his employer, and to his prejudice.

The remedy here sought is an injunction perpetually restraining these defendants from carrying on the business in which they are now engaged, and from employing the experience and knowledge gained-by years of labor. It is an important remedy, and the evidence that plaintiff is entitled to it should be clear and satisfáctory. The chief subject in respect to which an injunction is asked is the formulas of plaintiff. There is no definite evidence showing what those formulas are, nor what are the particular formulas in use by defendants; so that the court is unable to-ascertain and determine with any clearness or satisfaction to itself whether they are identical, or to what extent or in what particulars they may agree. If the process and formulas are not clearly and definitely disclosed, how can the court ascertain whether-there is any infringement? How could it enforce an injunction upon such evidence ?

An injunction is granted only where the rights sought to be protected are clear, or, at least, free from reasonable doubt Snowden v. Noah, Hopk. Ch. 347. It is not to be granted where the legal right is disputed, and is doubtful. Manufacturing Co. v. Spear, 2 Sandf. 599; Wolfe v. Goulard, 18 How. Prac. 64; Corwin v. Daly, 7 Bosw. 222. An injunction was refused because it appeared that the contract was not fair and equal, and the court could not ascertain whether it had been performed, because it related to the use of a secret process of manufacture. Barnes v. McAllister, 18 How. Prac. 534. Injunctions are not to be granted except with great caution, and in cases where the light and necessity are clear. Roberts v. Mathews, 18 Abb. Prac. 199. The court, in granting the injunction, must not do irreparable injury to the other party, nor create a greater wrong than it was intended to remedy. McSorley v. Gomprecht, 26 N. Y. Supp. 917.

The evidence, circumstances, and conditions here presented fail, under the established rules, to entitle this plaintiff to an injunction.

There is, however, another objection to granting the relief demanded by plaintiff. It appears that defendants Gallus and Bostwiclc were under the legal disability of infancy when they entered plaintiff's employ; that Bostwick’s disability continued to the time of his discharge, and Gallus was in his twenty-second year when his employment ceased, after having served the plaintiff for a period of eight years. Assuming that these defendants, or one of them, as plaintiff testifies, expressly agreed to keep secret what he might learn or be taught in the business of manufacturing or-in assisting in making experimental investigations, is such a contract enforceable either at law or in equity ? Upon what principle of law or -doctrine of equity may an infant be enjoined from using the knowledge he may have acquired in his master’s business? From using the fruits of his industry or the results of his intelligence and observation gained in a mechanical art? Such a contract would be highly prejudicial, oppressive and unjust to the infant. An infant is incapable o): depriving himself of using or applying the knowledge of the art or manufacture he may honestly and fairly acquire in the course of his employment, even though it may result in injury to his employer. He cannot contract not to compete with his employer in the same business. The knowledge He may have gained by the secret process or formnla was a necessary incident of his employment. The law would not imply or infer such a contract on the part of an infant, The fact that Gfallus continued in plaintiff’s factory about nine months after he became of age does not amount to a ratification of the contract alleged, that he shall not disclose the secrets of manufacture acquired during infancy. It is beyond all reason for the court to in for or imply a contract of such a character as here claimed on the part of these infants. The evidence is insufficient to warrant such a contract or agreement as claimed. All it amounts to is this: that a couple of boys working for a manufacturer, are enjoined not to tell anything they may learn of the secrets of manufacture, the knowledge of which they may acquire in the performance of their work, and they answer that they will not. From this the court is requested to infer or presume that these infants contracted that they would not, after leaving or being discharged from their employer’s service, disclose to any one the knowledge they gained by observation and experience in the business, or put it to practical uses for their own benefit or advantage. Such a promise, made by such youths, and upon such circumstances or conditions, may justly be restricted to the time of their service; and it would be unwarrantable to construe it as a contractual engagement not to enter into the business in opposition and to the prejudice of their employer. A promise of that character lacks one of the essential elements of a contract; there was no special consideration to support it. It would be going far, indeed, for the court to draw the contract inferentially or by presumption. Then, too, the defendants were discharged, and were they not therefore relieved from their promise ? Were they rightfully discharged? Was the plaintiff under no obligation by reason of this contract? Was it for his advantage alone? So, it seems, the plaintiff construes it. Under this construction, no rights thereunder were secured to the other parties to the contract, but it inured solely to the benefit of the plaintiff. We do not consider such testimony, if believed, would be sufficient to warrant the finding of a contract, for it is improbable that there was any intention by either party to enter into a contract of the nature and to the extent here claimed. Nor would the court be justified in so finding as matter of fact. The supposed contract or agreement is of greater import and of larger scope than the simple promise of the boys not to tell. It is a rule of law that a matter arising ex contractu, though infected with fraud, cannot be changed into a tort in order to charge the infant, by a change in the remedy. The principle is that, where the action rests on promises, the plaintiff cannot, by changing the form of the action, make a person liable who would not have been liable on the promise. Thus, an action on the case cannot be maintained against an infant for false and fraudulent warranty of the unsoundness of a horse sold by him, nor for loss of goods through negligence as bailee. Campbell v. Perkins, 8 N. Y. 440. So, where an infant hires a horse, and an injury happens by reason of his unskillfulness, want of knowledge, discretion, and judgment, he is not liable upon the implied promise to use due care and skill, nor can he be held liable in tort. Campell v. Stakes, 2 Wend. 137; Moore v. Eastman, 1 Hun, 578. “ The alleged contract is the substantive ground of, or the inducement to, the cause of action ; for, if there was no contract, then there could be no fraud in the making of it, and disproving the contract defeats the action. Therefore, as decided in all the cases above cited, infancy is a bar.” See Hewitt v. Warren, 10 Hun, 560; and see Heath v. Mahoney, 7 Hun, 100.

In all the cases upon this subject, it will be found that the courts profess to hold infants liable for positive, substantial* torts, but not for violations of contract merely, although, by construction, the party claiming redress may be allowed, by the general rules of pleading, to declare in tort or contract, at his elqption. An infant is liable in an action ex delicto for an actual and willful fraud only in cases in which the form of action did not suppose that a contract existed; but, where the gravamen of the fraud consisted in a transaction that really originated in contract, the plea of infancy is a good defense. See Nash v. Jewett, (Vt.) 18 Atl. 47.

I do not believe it will ever be established law in this enlightened age and country that, under all the circumstances existing in this case, an employee, whether infant or adult, would not have a perfect legal right to put in writing all the information he may honestly and fairly acquire in the course of his employment in the matters he is employed to perform, so as to fix it in his memory, even to copy formulas, processes, and the measures and dimensions of appliances, so long as he does not in a surreptitious and clandestine manner possess himself of this knowledge. Certainly, upon the record here, a case has not been made that will justify the court in interfering with the business of these defendants, and enjoining them from further prosecution of the same.

The judgment should be affirmed, with costs.

WARD, J., concurs in dissenting opinion.


text:
    William J. Ziegele et al., App'lts, v. Richelieu and Ontario Navigation Company et al., Resp'ts.
    (Supreme Court, Appellate Division, Fourth Dept.,
    Filed March, 1896.)
    1. Assignment—License.
    Neither an assignment of a license itself issued by the superintendent of public works, nor a sale or lease of the property constituting the dock, is prohibited by statute.

      2. Same.
    Such licensee is precluded from denying his right or power to make such assignment.
    Appeal from a judgment in favor of defendants.
    Adolph Rebadow, for app’lts; George L. Lewis, for resp’ts.
   GREEN, J.

The plaintiffs claim to be the owners of the dock, and entitled to the possession of the same, through divers conveyances to them of the interest of Louis Harbrecht and Louis Allgewahr, who, as is claimed by the plaintiffs, were the original owners-of the dock. The defendant company claims to be entitled to use the dock by virtue of a permit from Louis Harbrecht, that Louis Harbrecht alone was the original owner of the dock, and that the-plaintiffs have no title to the same. May 4,1888, the state of New York, through its superintendent of public works, issued a license to the International Yacht Club, the Atlantic Club, and the Audubon Fishing Club, of Buffalo, to construct a dock over a portion of Bird Island pier, near the foot of Ferry street, in the city of Buffalo, upon lands owned by the state, with the reservation of the right to annul the license at any time, and compel the removal of the dock by the Slubs. These clubs were unincorporated associations, formed, owned, controlled and managed by one Louis Harbrecht, and had no existence beyond Harbrecht himself. Subsequently to the issuing of this license a dock was built under this-permit. Harbrecht claims that he built, and became and still is-the sole owner of the dock thus constructed. Louis Allgewahr, the father-in-law of Harbrecht, was, at the time of the construction of the dock, a co-partner of, and engaged in business at the city of Buffalo with, Harbrecht. He testifies that the dock was built by the firm of Harbrecht & Go., which consisted of Louis Harbrecht- and Louis Allgewahr, and that each owned an equal, undivided one-half interest in the dock. It is admitted that such a firm was-in existence at the time of the erection of this structure. Harbrecht himself admits that such co-partnership was in existence at. that time, but testifies that such,co-partnership did not extend to-this dock, and that Allgewahr never obtained any interest in that-dock. The referee finds upon this question as follows: “ Said Louis Harbrecht built the dock on the lands in question.” The-referee does not find, in express terms, that Louis Allgewahr had no interest or title to such dock. The referee, however, finds that, subsequently to the building of the said dock, there was a transfer by Louis Allgewahr to the wife of Harbrecht of an undivided one-half interest in said dock, and that subsequently thereto the wife of Louis Harbrecht transferred and conveyed the same undivided one-half interest in the dock to the plaintiff Daniel E. Bailey; that this last instrument was given to secure the payment of the moneys agreed to be paid by a certain contract between -Louis Harbrecht and Daniel E. Bailey. In that instrument, so executed by LouiseHarbrecht, the interest conveyed in the dock is described as-follows:

“ One equal, undivided half of the dock on Bird Island pierj south of Ferry street, built by the firm of Harbrecht & Company; being all of the one-half right, title, interest, and ownership the said Louise Harbrecht now has, or ever had, in and to the said dock.”

It appears from these instruments that Louis Harbrecht must have known that Louis Allgewahr had an interest in that property, and that it was treated in those instruments as the dock built by Harbrecht & Co. There is further evidence tending to show that during the time of the ownership of one-half of this dock by Louise Harbrecht, Louis Harbrecht collected rents therefor, and acted as the agent for his wife in respect to her interest in that dock. There is no claim that she ever had any interest in the same, except as she derived it from Louis Allgewahr. The referee further finds that on the 21st day of March, 1892, Louis Allgewahr sold and conveyed all his interest in the dock to the Buffalo & Grand Island Excursion Company and Arthur W. Hickman. This company is a co-partnership consisting of all the plaintiff except Ziegele and Bailey. He further finds that the grantees in that instrument paid for the interest of Louis Allgewahr in the same the sum of $1,500. Hickman afterwards transferred his interest in the same to the plaintiff Ziegele. Notwithstanding Louis Harbrecht and his wife, Louise, both testify that the wife never had any interest in that dock, the referee finds that Louis Harbrecht executed and delivered an instaument in writing purporting to convey an undivided one-half interest in the dock to Louis Allgewahr, and that Louis Allgewahr executed and delivered an instrument in writing purporting to convey the same undivided one-half interest in said dock to Louise Harbrecht. The referee further finds that the interest thus conveyed to Louise Harbrecht was by her sold and transferred to the plaintiff Bailey to secure the payment of moneys agreed to be paid by Louis Harbrecht to the plaintiff Bailey. Evidence was given showing conclusively that, at the time of the execution of this last instrument, Louis Harbrecht and his wife were both present, and knew of the execution and delivery of the same. The evidence amply sustains the finding of the referee that such an instrument was executed. The instrument itself shows upon its face that the dock was thus transferred by Louise Harbrecht in the interest of, and for the benefit of, her husband, was the dock built by the firm of Harbrecht & Go. This instrument alone is sufficient evidence of the interest of Allgewahr in that dock at the time of its construction. The findings of the referee are sufficient to establish that fact. And his findings in that respect are fully supported by the evidence of the witnesses and the written instruments produced upon that trial. A careful examination of this evidence fully satisfies me that Louis Harbrecht and Louis Allgewahr constructed that dock, that it was a joint enterprise, and that they were equally interested in the same at the time of its completion. The evidence shows conclusively that thereafter Louis Harbrecht transferred his undivided one-half interest therein to his father-in-law, Louis All-gewahr, and that Allgewahr thereafter transferred the same interest to his daughter, Louise Harbrecht, the wife of Louis Harbrecht. If this be true, then the plaintiffs are the owners of that dock, subject to the right of the state to compel the removal thereof. The referee, however, has found that “The only title which the plaintiffs have, if any, in and to said dock, is through or from the said Louis Harbrecht.” And he finds, as conclusions of law, that “ the plaintiffs have acquired no interest in the said dock,” and that plaintiffs' complaint should be dismissed. These findings are inconsistent with the other findings upon the subject of the title and interest of the plaintiffs to the dock, and are against the weight of evidence. The referee, in arriving at his conclusions, must have labored under an erroneous impression that, as a license had been granted by the state of New York to Louis Harbrecht for the erection of a dock upon the lands of the state, Harbrecht therefore had no right or title to the dock which had been erected upon lands of the state which he could transfer and deliver to another. That the referee must have had that in mind appears from his twelfth finding of fact, wherein he finds “ that the state of New York has never revoked the said license, nor has it ever given the said Louis Harbrecht authority to sell, assign, or transfer the same, but said license still remains in full force and virtue.” The decision of the referee must have been based largely upon that finding, for on no other hypothesis could his decision be sustained. The evidence certainly falls far short of sustaining the proposition that the plaintiffs are not the owners of this property in question. The testimony of the witnesses, and all the written evidence, point conclusively to the fact that the plaintiffs have shown title in themselves to, and the right to the possession of, the dock. If the referee has based his decision upon the finding of fact that, because the state of New York has never revoked the license, or given Louis Harbrecht authority to sell, assign, or transfer the same, and because that license still remains in full force and virtue, therefore the title and the right of possession to that dock could not be transferred to these plaintiffs, then the decision must be reversed bechuse his conclusion of law therefrom is erroneous. Neither an assignment of the license itself, nor a sale or lease of the property constituting the dock, is prohibited by the statute. And since the right to compel the removal of the dock, upon revocation of the license, was reserved to the state, it would seem that the licensee would have the right to remove it as his personal property. However this may be, he had a beneficial interest in the materials constituting the dock, which was a proper subject of sale or assignment,' and would vest in the assignee all the property interests possessed by the assignor, subject to any claim the state might see fit to make. The transfer of the possessory interests of the-licensee was valid against every one except the state.

If Harbrecht had demised the dock for a term of years, the lessee would be estopped from questioning the power or right of the lessor to grant the lease. In Tilyou v. Reynolds, 108 N. Y. 558; 13 St. Rep. 853, the plaintiff held certain lands in the town" of Gravesend, under a lease from the commissioners, and-demised them, to the defendant; and it was held that the lessee was estopped from setting up in defense to a claim for rent that the lease to the plaintiff was executed in yiolation of a statutory provision, and had been adjudged void in Tilyou v. Town of Gravesend, 104 N. Y. 356; 5 St. Rep. 725. In Mattoon v. Munroe; 21 Hun, 74, the plaintiff held a license from the canal commissioners for the construction of dry docks on public lands, and executed a lease thereof to the defendants for a term of years; and the lessees were held liable for the rent, even after revocation of the plaintiff’s license and the issuing of a license to themselves. It is true that the right or power of the plaintiff to grant the lease was not questioned, but it is evident from the opinion that such an objection would not have been entertained if it had been raised, particularly in view of the fact mentioned, that the plaintiff had a beneficial interest in the erections, upon which he had expended a large sum of money. In Mayor, etc., v. Huntington, 114 N. Y. 631; 23 St. Rep. 912, the court said that the defendant, having taken possession of the property, and entered upon the enjoyment of the right to collect wharfage, solely by virtue of the contract made with him by the department of. docks, cannot now be permitted to question the agreement under which he has elected to take the benefits accruing to him as purchaser; that he must be held to be estopped from contesting the validity of the contract under which he has acquired possession of leased property. It is well settled by authority that a lessee is estopped from questioning the title of his lessor, or the validity of the instrument by which he has acquired possession, of the leased property. There is a manifest distinction between cases arising under contracts which are contrary to public policy, or mala in se or mala prohibita, and those which are claimed to be ultra vires. See Woodruff v. Railway Co., 93 N. Y. 618. All estoppels, however, must be reciprocal and mutual; for, as the whole estate is created by estoppel, both parties must be bound, or neither. Tayl. Landl. & Ten. § 90; Canal Co. v. Hathaway, 8 Wend. 484. And an agreement for quiet enjoyment is to be implied from the terms of the lease. Vernam v. Smith, 15 N. Y. 327; Mayor, etc. v. Mabie, 13 id. 153. If, therefore, the instrument executed were a lease, and not an assignment, the lessor, Harbrecht, would be estopped from questioning its validity or denying his right or power to make it. Here, however, the licensee has made all assignment of his rights and interests acquired by or under the license, and the question is whether he is not precluded from denying his right or power to make it. It is difficult to perceive any distinction, in principle, between the case of a lease for a term of years, and an absolute assignment of the license itself, .and the rights of property acquired under it. If we assume that the principles governing the relations of landlord and tenant are not applicable to this case, then, upon the general principles of equity relating to the respective rights and liabilities of parties arising out of contracts between them, which have been partially or wholly performed by either party, they are respectively precluded from raising, on behalf of the state, any questions as to the right'or power of the other to make such contract of assignment. See Woodruff v. Railway Co., 93 N. Y. 618, supra. As a general rule, a party will be concluded from denying his own acts or admissions which were expressly designed to influence the conduct of another, and did so influence it, and when such design will operate to the injury of the latter. Good conscience and honest dealing forbid that he should be permitted to gainsay them. Canal Co. v. Hathaway, 8 Wend. 483. The licensees, or those claiming under them, cannot appear here as the representatives of the state, and demand a judicial annulment of the assignment. Only the state, or its proper officers, can bring it in question, for they alone are interested. In Mattoon v. Munroe, supra, the instrument was in the form of a lease; but it is doubtful if that was its legal character, since the lessor possessed no interest in the lands, but simply a license to use them for the purposes specified. Really it was nothing -but an assignment of the license and docks for a term of years, subject to revocation by the state. The United States statutes provide that all assignments and transfers of the right of pre-emption prior to issue of a patent shall be void. A question of forfeiture under such a statute can only be raised by the United States. Larison v. Wilbur (N. D.) 47 N. W. 381. Nor is this requirement to be construed to prevent any pre-emptor from making a valid assignment of his possessory right; that is, while one cannot, before the completion of his title, assign his right of preemption so as to give another the right to demand a patent, yet he may enter into an agreement to abandon the land he occupies, so that another may enter upon it and initiate a right of pre-emption for himself. O’Hanlon v. Denvir, 81 Cal. 63; Pelham v. Service (Kan.) 26 Pac. 29; Olson v. Orton, 28 Minn. 36; Myers v. Croft, 13 Wall. 291. “ These possessory rights and improvements placed on the soil were, by the policy of the government, generally protected, so far, at least, as to give priority of the right to purchase when thze land was offered for sale. They [these rights] were the subjects of bargain and sale, and, as among the parties to such contracts, were valid.” Lamb v. Davenport, 18 Wall. 307. So, where a pre-emptor had mortgaged the property, and then transferred it to one who assumed the payment of the mortgage, it was held that, although the mortgage was void under the laws of congress, yet the grantee was estopped from showing that it was void. Green v. Houston, 22 Kan. 35. See, also, Brewster v. Madden, 15 Kan. 249; Drury v. Improvement Co., 13 Allen, 168. In Blakslee Manuf’g Co. v. Blakslee’s Sons Iron Works, 129 N. Y. 156; 41 St. Rep. 178, it was held that, although the statute declares the grant of lands under water to any person other than the owner of the upland to be void, its validity can be questioned only in a direct proceeding to review the action of the commissioners, or by action in equity to vacate the patent, where it affirmatively purports to have been executed to the owner of the upland. See, also, N. Y. C. & H. R. Railroad Co. v. Aldridge, 135 N. Y. 83; 48 St. Rep. 373. And' that a title acquired by a foreign corporation in violation of a statute is valid against every one but the state, see Lancaster v. Improvement Co. (N. Y. App.) 24 Lawy. Rep. Ann. 330, note, 35 N. E. 964.

For the foregoing reasons, and upon the principles stated, the court is of the opinion that the plaintiffs have acquired and possess,'' as against the defendants, all the rights and interests of Harbrecht in and to the dock in question, “ subject to the control of the superintendent of public works.” 1 Rev. St. (8th ed.) p. 772, § 177. But it does not follow that, because an individual owns a wharf, he also has a right to the exclusive enjoyment of it; for he may at the same time be obliged to allow others to use it, upon the payment to him of a reasonable compensation as wharfage. Dutton v. Strong, 1 Black, 23. And see 19 Am. & Eng. Enc. Law, tit. “ Wharfs.” No question has been raised as to the right of the defendants to use the dock in controversy upon payment of a reasonable compensation; and we do not deem it necessary for the decision of this case to determine the duty or obligation of the owner of the dock, or the rights of the defendants, or other owners of vessels navigating the public waters of the state. The defendants claim the right to use this dock by virtue of a license or permission from Harbrecht, and they should be enjoined only from claiming or asserting any such right, and from using said dock, or landing their boats at said dock, under such alleged right.

The judgment herein should be reversed, and a new trial ordered, with costs to abide the event of the action.

HARDIN, P. J., and FOLLETT and ADAMS, JJ., concur; WARD, J., not voting.


author: VAN BRUNT, P. J.

text:
    Niles Tool-Works Company, Resp't, v. William V. Reynolds, App'lt.
    (Supreme Court, Appellate Division, First Dept.,
    Filed April 17, 1896.)
    1. Evidence—Res gestae.
    In an action by a vendor of goods to recover on an alleged guaranty of payment of the purchase by defendant, evidence upon the part of the imrehaser as to what took place between him and the salesman who sold the goods to him, some time after the delivery of the same and the completion of the transaction, is inadmissible.
    2. Evidence—Objections.
    In order that objections to the exclusion of evidence may be made available, it is necessary that the court should have some reason to see the relevancy of the testimony.
    3. Appeal—Error cured.
    Permission to witness to state conversation which has been excluded necessarily cures any error in its exclusion.
    4. Guaranty—Notice.
    In the case of an absolute guaranty, notice of acceptance is not required.
    Appeal from a judgment, entered on the verdict in favor of plaintiff.
    A. G. N. Vermilyea, for app’llt; I. D. Fessenden, for resp’t.
   VAN BRUNT, P. J.

The notice of appeal containing the statement that an appeal is taken from the denial of the motion for a new trial made herein. There does not seem to have been any order entered upon such motion, and there is nothing- brought, up by the attempted appeal from the ruling upon the trial. This action was brought to recover upon an alleged guaranty given by the defendant. It was claimed upon the part of the plaintiff •¡hat. the defendant guarantied the purchase by one Wright -of a compressor, at the agreed price of $625. The complaint alleged, that the goods were delivered in reliance upon the guaranty, and that Wright had refused to pay; that notice of his failure to pay vas given to the defendant prior to the commencement of the action, and demand of payment made upon him, but that he had neglected to pay. The defendant denied the incorporation oS the plaintiff and the sale and delivery of the goods, and alleged that the plaintiff had failed to notify him of any acceptance of his, offer of guaranty, and that, therefore, no contract of guaranty ever took effect between the plaintiff and the defendant.

Upon the trial it appeared that, on Wright’s making application to purchase, he offered to obtain a guarantor; that an order was prepared and signed by Mr. Wright, which he took to the defendant, who added the words: “I hereby guaranty the above purchase,” and signed the guaranty. The paper was brought back, and delivered to one of the officers of the plaintiff, who said he-would accept it if Reynolds’ financial standing was all right. Some ten or fifteen days afterwards, the compressor was delivered to Wright, and he not having paid therefor, this action was-brought against the defendant upon the guaranty,

It is claimed that the court erred, during the progress of the trial, in excluding evidence upon the part of Wright, the purchaser of the compressor, as to what took place between him and the salesman who sold the goods to him, sometime after the delivery of the same, and the completion of the transaction, as far as-the sale and delivery was concerned. The evidence clearly showed the sale and delivery were concerned. The evidence clearly showed that the transaction was a sale and delivery, and no conversation that the salesman .might have had with Wright after-wards could in any way affect the relations of the parties.

But it is to be further observed that, when the question was asked, the court was not at all informed as to the object of the inquiry, and there was nothing which could indicate its purpose. In order that -objections may be made available, it is necessary that the court should have some reason to see the relevancy of the testimony. A further answer to the objection is that it appears that, almost immediately after, the witness was permitted to state the conversation which had apparently been excluded,, and this would necessarily cure any error, if .any had been committed.

It is further urged that the defendant could not he held, because no notice was given to him of the acceptance of the guaranty. ' The guaranty was absolute in form, and it required no-acceptance. Bank v. Phelps, 86 N. Y. 484. It is true that in the case cited the court held that there was sufficient to show a, notice, but attention is called to authorities holding that, in the case of an absolute guaranty, notice of acceptance is not required. Id. 493. The case of Sewing Mach. Co. v. Richards, 115 U. S. 524, is in no way in conflict with this rule. All that that case decides is that, where the guaranty is signed by the guarantor prior to negotiations for a guaranty by the party to whom the same is to be given, then notice of acceptance is necessary, because the-guarantor is entitled to know of the assent of the party receiving, the guaranty to the contract. In the case at bar, however, the guaranty is presumed to have been executed at the request of the plaintiff. It wanted security for the goods. The purchaser said he would get the guaranty, and he got it, and delivered it to the plaintiff. The guaranty was absolute, as already stated, and no notice of acceptance was required.

The judgment should be affirmed, with coste.

All concur.