author: Martin, J.

text:
    Cornelia P. Hotchkin, Resp’t, v. Augustus Martin and Thomas Adams, App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed December 6, 1890.)

    Replevin—Fraud.
    In April, 1886, one F., in making a purchase of property «from plaintiff, represented that he was solvent. In October and ¡November following plaintiff repeatedly solicited him to purchase goods, which he did with some reluctance, and thereafter gave a chattel mortgage to defendants, and died insolvent. Held, that the evidence was insufficient to sustain a finding that the sales in October and November were induced by the fraud of F., and that an action to set them aside on that ground could not be maintained.
    Appeal from a judgment entered in Onondaga county, November 20, 1889, on the report of a referee.

      William P. Cantwell, for app’lts; Hoyt, Beach & Hancock, for resp’t
   Martin, J.

This action was replevin to recover forty top buggies. The defendants claimed title to the wagons in question under a chattel mortgage given them by Lyman J. Folsom in his lifetime. These wagons with ethers were sold to Folsom by the plaintiff in October and November,' 1886. The plaintiff sought to avoid these sales and recover the property on the ground that they were induced by the fraud of Folsom, and the defendants were not purchasers in good faith and for a valuable consideration.

Thus the first and a most important question in this case is, whether the sales by theplaintiff were induced by fraud. If they were not, then the plaintiff was not entitled to the judgment awarded, and it must be reversed. In the months of October and November, 1886, the .plaintiff made two sales of fifty wagons each to Folsom. The one hundred wagons thus sold were delivered to Folsom, and he gave his notes or acceptances for them. He subsequently gave a bill of sale of a portion of them to the Third National Bank of Malone, as collateral security for overdrafts or past due paper that might be held by it, and a chattel mortgage upon another portion of them, which were the wagons in question in this case, was given to the defendants to secure them as endorsers upon his note for $2,000, which they afterwards paid.

After the death of Folsom the plaintiff brought two actions to recover the property sold by her, which was included in such bill of sale and chattel mortgage. One of these actions was brought against the Third National Bank of Malone for the wagons held by it under its bill of sale, and the other was against the defendants for the wagons taken by them under their chattel mortgage. The two actions were tried together before the same referee, and the same evidence was, by stipulation, used in both cases. The plaintiff had a report in her favor in both actions, and judgments were entered accordingly.

Appeals were taken from both judgments. From the judgment entered in the bank case an appeal was taken to the general term of the third department From the judgment entered in the ease at bar an appeal was taken to the general term of this department. The bank case was argued and decided before the argument of the appeal in this case. The decision of the general term in the bank case was in the defendants’ favor and the judgment-appealed from was reversed. The judgment in that case was- reversed oh the ground that the evidence was insufficient to sustain the finding of the referee that the sales of the wagons made in October and November, 1886, were induced by the fraud of Folsom. 33 N. Y. State Rep., 195.

As the evidence bearing upon that question was the same in both cases, it follows that the judgment in this case must be reversed or we must disregard the decision of the general term of the third department Due respect for the decision of that court requires us to accept its decision as correct Moreover, an examination of the appeal book in the case at bar has led us to the same conclusion that was reached by that court in the bank case. We think the judgment appealed from should be reversed.

Judgment reversed and a new trial ordered before another referee, with costs to abide the event

Hardin, P. J., concurs. Merwin, J., concurs on. the ground, that the decision of the general term in the other case should be-followed.


source: Caselaw Access Project

license: Public Domain

text:
    William J. Sloan, App’lt, v. John I. Birdsall, Estella B. Stoutenburgh, Ella A. Overstreet and William McDonald, as Trustee of the Estate of John I. Birdsall, Resp’ts.

      (Supreme Court, General Term, Fourth Department,

      Filed December 6, 1890.)

    1. Creditor’s action—Trust.
    Defendant Birdsall conveyed his property in trust for the payment of his just debts, for his.support and the division of the balance of net income between his wife and daughter during the lives of himself and wife; the daughter to have one-third absolutely on arriving at twenty-one years, and another third on the death of either the grantor or his wife. Held, that the trust deed was void so far as it provided for the support of the grantor, but valid as-to the trusts for his wife and daughter; that its invalidity to that extent was not affected by the fact that the wife also conveyed her property on similar trusts.
    2. Same—Income under invalid trust mAy be reached.
    Where the property in the hands of trustees under an invalid trust consists of personal property which originally belonged to the grantor, and by the terms of the conveyance he is entitled to his support therefrom, the income may be reached by his creditors.
    Appeal from a judgment, entered in Otsego county on the decision of a special term, dismissing the plaintiff’s complaint with costs.

      J. B. Holmes, for app’lt; F. B. Gilbert, for resp’ts.
   Martin, J.

This was a . creditor’s action to set aside a trust deed made by the defendant Birdsall to the defendant McDonald and another as trustees. It was made on the 14th day of November, 1867, and conveyed all of the grantor’s property, both real and personal, in trust: 1. To sell so much as should be-necessary to pay all the just debts of the grantor; 2. To manage or sell the residue of the lands; 3. During the natural lives of the grantor and his wife, or the survivor of them, to dispose of the interest or the net proceeds of the real and personal property by first paying the grantor an amount sufficient to clothe, support and maintain him, and such other allowance as the trustees should in their discretion deem proper, and by dividing the remainder equally between the grantor’s wife and his daughter. When the daughter attained the age of twenty-one years one-third of the trust estate was to become hers absolutely, the other two-thirds to remain in the hands of the trustees, the income to be distributed as before stated during the lives of the grantor and his wife. On the death of either, another third of the estate was to become the absolute property of the daughter, and upon the death of both the grantor and his wife, the daughter was to have the whole estate.

On November 16,1867, the defendant Estella B. Stoutenburgh, who was then the wife of the defendant Birdsall, gave a deed to the same ‘trustees of all her property, both i;eal and personal, in trust for the same purposes as were specified in the deed made by the defendant Birdsall.

The defendant McDonald and his co-trustee accepted the trust under both deeds and proceeded and continued to execute the same until 1868, when they were relieved therefrom and new trustees were appointed by the supreme court. Subsequently the trustees thus appointed were in turn relieved, and the defendant McDonald was again appointed by that court as sole trustee to carry out the trust created by said deeds, so far as the same then remained unexecuted.

Before the last appointment of the defendant McDonald, in an action in the supreme court, a decree was duly made and entered adjudging that one-third of the trust funds in the hands of the trustees belonged absolutely to the daughter of the grantors; and that the trust was ended as to that one-third. ' It was also further adjudged therein that the trust was ended as to the defendant Estella B. Stoutenburgh, then Estella B. Clark, and certain specified property in the hands of the then trustees was directed to be delivered to the daughter of the grantors, and certain other of the property in their hands was directed to be delivered to the defendant Estella B. Stoutenburgh. The trust as to the defendant Birdsall was, however, continued, and the defendant McDonald was appointed as trust.ee to execute such trust; and said decree also provided that the said trustee should “pay to the defendant Birdsall for his board and clothing such sum as in his discretion may be necessary for that purpose, and at such time or times as he may deem proper, not exceeding in any one year the net income of said estate.”

The trust fund now in the hands of the defendant McDonald as such trustee consists of personal property of the value of between eight and nine thousand dollars, which was originally the personal property of the defendant Birdsall. The real purpose of'this action was 'to procure the application of that fund or the income thereof to the payment of the plaintiff’s judgment.

The appellant claims that the deed given by the defendant Birdsall, at least as to the personal property thereby conveyed, was void as to subsequent as well as existing creditors, because it conveyed to the defendant McDonald and his co-trustee the grantor’s personal property in trust for his own use. It is declared by statute that, “ all deeds of gift or conveyances and all transfers or assignments, verbal or written, of goods, chattels or things in action, made in trust for the use of the person making the same, shall be void as against the creditors existing or subsequent of such person.” 2 E. S., 185, § 1.

The special term held that this statute did not render the transfer in- question void, even as to the personal property conveyed, for two reasons : First, because the trust fund was not created by the defendant Birdsall alone; second, because it was not for the use of the grantor alone. This conclusion was based upon the cases of Curtis v. Leavitt, 15 N. Y., 9, and Shoemaker v. Hastings, 61 How., 79.

In the former case a trust deed was given to secure certain bonds that were issued by the North American Trust & Banking Company. The deed provided that the trustees named therein should, after selling or collecting the property transferred, pay the bonds issued by that company, and after the payment of such bonds and all costs and charges, the trustees should hold the bonds and mortgages assigned in trust for said Trust & Banking Company and dispose of them as it should direct. In that case the court held that the trusts created by that deed were not void under the statute on the ground that it was a conveyance in trust for the use of the grantor, it being the opinion of the court that the statute applied only to conveyances, etc., primarily for the use of the grantor, and not to instruments for other and. active purposes, where the reservations to the grantor were incidental and partial (page 295). This was all tMt was decided in that case. While there are certain expressions in the opinions delivered therein which, when not read in connection with the remainder of the opinion, might seem to uphold a somewhat different doctrine, yet, when the whole of the opinions on that branch of the case are read together they show quite clearly that the decision of the court was a fair epitome of the opinions delivered.

In the Shoemaker case a father sold two of his sons his farm and personal property, for which they agreed to pay a specified sum by paying the liens thereon and certain debts of the father, and also agreed to give him a mortgage for $1,000 and pay his two minor children $150 each when they became of age. In that case the court held that the transfer was intended as an actual alienation of the property and did not fall within the condemnation of the statute.

The doctrine which may be fairly deduced from these cases is that a transfer does not come within the provisions of this statute where the use or interest reserved to the grantor is merely incidental and partial, and is to vest or result after the execution of some active and lawful purpose for which it was primarily made, as is illustrated in‘the case of a chattel mortgage, assignment or pledge, as security for the payment of a debt, and the like. Neither of those cases was like the case at bar, and in both the principle that a creditor could enforce his debts against any use or interest reserved by the grantor was expressly recognized.

In the case of McLean v. Button, 19 Barb., 450, it was held that a transfer of personal -property,‘the consideration of which was the future support of the grantor, his wife and children, was within the statute and void as to the subsequent creditors. In Young v. Heermans, 66 N. Y., 381, where a transfer was in trust for the use of the grantor during his life, and for the payment of his debts after his death, it was held to be void under the statute. In Wilson v. Robertson, 21 N. Y., 594, where an assignment appropriated the property of an insolvent firm to the payment of the individual debts of one of the parties, it was suggested by the court that it was void as a trust for the benefit of the assignors or one of them. See, also, Kingsland v. Tompkins, 5 W. Dig., 378.

An examination of this statute and of the authorities bearing upon it, leads us to the conclusion that where the primary object, or one of the primary objects, of a conveyance is to transfer the property of the grantor to trustees in trust for his own support and maintenance, it is within the statute and void as to creditors so far as that particular trust is concerned, although it contains other trusts which are valid. We are of the opinion that the trust deed given by the defendant Birdsall was valid as between the parties, and as to all of the world except his creditors, and that it was also valid as to his creditors, so far as the trusts for the benefit of his wife and daughter were concerned. The trusts that were valid did not fail because the instrument creating them also contained one that became invalid when the superior rights of creditors were involved. Curtis v. Leavitt, 15 N. Y., 124; Scott v. Gutherie, 25 How., 514; Rome Ex. Bk. v. Eames, 4 Abb. Ct. App. Dec., 95. But we are also of the opinion that so far as it provided for the support of the grantor, the trust deed was within the statute and void as to his subsequent creditors, as well as existing ones.

The fact that at or about the time of the execution of this trust deed by the defendant Birdsall his wife made a similar trust deed for the same purposes and trusts, or that the trust deed by the grantor contained other trusts which were valid, does not relieve the conveyance by the defendant Birdsall from the operation of this statute. The doctrine that this statute can be rendered nugatory or ineffectual, either by procuring another to join with the grantor in creating a trust which is within its condemnation, or by joining valid trusts with those that are declared to be void as to creditors, cannot, we think, be sustained.

As the appeal book shows that the property now in the hands of the trustee is personal property which originally belonged to the defendant Birdsall, and that, by the terms of the conveyance, he is entitled to his support from the income thereof, it foil uvs that the income can be reached by his creditors. Section 1873 of the Code of Civil Procedure provides that the final judgment in a judgment creditor's action must direct and provide for the satisfaction of the sum due the plaintiff out of any money, thing in action or other personal property belonging to or due the judgment debtor, or held in trust for him, which is discovered in the action.

The complaint was sufficient to justify the court in awarding the relief to which the plaintiff was entitled. “ Under our present system of practice, a plaintiff is not to be turned out of court, when an answer has been interposed, because he has ju’ayed for too much or too little, or for wrong relief.” Murtha v. Curley, 90 N. Y., 377. We think the court erred in dismissing the plaintiff’s complaint, and that the judgment should be reversed.

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

Hardin, P. J., and Merwin, J., concur.


text:
    Daniel B. Wood, Resp’t, v. The City of Watertown, Impl’d, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed December 6, 1890.)

    1. Master and servant—When relation does not exist.
    An alderman of the defendant city employed a firm to repair a defective bridge, but gave no directions as to the manner in which the work should be done. The firm employed other persons to do certain portions of the work, and through their negligence plaintiff in crossing the bridge was injured. Held, that the firm were independent contractors, and neither they nor the persons employed by them were servants of the city, and that it was error for the court to refuse to so charge.
    3. Negligence—Municipal corporations—Bridges.
    Where a city has no notice, actual or constructive, that a bridge has or is about to become unsafe, it has a right to assume that the work of repair will be done by the contractor in a careful manner, and is not negligent in not preventing the use of the bridge by foot passengers.
    3. Same—Damages.
    Where there is no evidence as to plaintiff’s business or that he was able to earn -any particular wages, it is error for the court to charge that he can recover the value, of the time lost by reason of the accident.
    Appeal from a judgment entered in Jefferson county November 15, 1888, on the verdict of a jury, and from an order denying a motion for a new trial made on the minutes of the trial judge.

      Henry Purcell, for app’lt; S. C. Huntington & Son, for resp’t.
   Martin, J.

This action was founded on the alleged negligence of the appellant. On October 3, 1887, a bridge which had been erected over a branch of the Black river, at a point within the corporate limits of the city of Watertown, fell into the river below. The plaintiff was crossing it at the time and wras injured by its fall. The plaintiff’s claim of negligence was two-fold: 1. That the defendant was negligent in not warning the plaintiff by notice, or otherwise, of the dangerous condition of the bridge; 2, that its agents and employes carelessly and negligently performed the work of repairing the bridge which they had in charge, and that by reason of such negligence the plaintiff was injured.

The evidence disclosed that this bridge was out of repair, and that the city had employed the firm of Cleveland Bros, to repair its abutments ; that by reason of such repairs the bridge was rendered impassable for teams while they were being made. The evidence, however, tended to show that it was used during the day-time by foot passengers; that the building of the abutments did not render it particularly unsafe for that purpose, and that the accident to the plaintiff was not in consequence of the repairing of the abutments.

A few days before the accident one bf the defendant’s aldermen, John W. Spratt, who was also a member of the street committee of the board of aldermen, was at the bridge with the foreman of the Bagley & Sewall Company of Watertown, H. Y., when it was discovered that one of the shoes of the bridge was broken, and it was thought best to have new and heavier shoes put on each of the corners of the bridge at the northerly end. Spratt told the foreman of the Bagley & Sewall Company to have such shoes cast and put on. The Bagley & Sewall Company did an extensive business in furnace and machine work, molding and casting, in iron mainly, and in doing all kinds of iron job work. In pursuance of such direction, the Bagley & Sewall Company cast shoes for this bridge, and then undertook to remove the old ones and replace them with the new. It employed for this purpose Henderson and Hill, who were competent and skilled mechanics and fully qualified to do the work. While the men thus employed were engaged in removing one of the old shoes the accident occurred. The evidence tended to show that it was caused by the negligence of the persons thus employed by the Bagley & Sewall Company.

On the trial the court charged: If the party who was engaged in repairing that truss was guilty of any omission of duty upon his part necessary to maintain the bridge in its place and to guard against accidents to those who might be upon it rightfully at the time, then, gentlemen of the jury, that omission would be an act of carelessness on the part of the defendant, represented by that party, for which it would be chargeable in this case. If, on the contrary, your own good judgments commend to you the conclusion that this skilled mechanic, in performing the work in the manner that he did, exercised that care and prudence which an ordinarily careful man, doing the same work, would have done, although this accident happened by reason of the breaking of the bolt, there was no carelessness on the part of the defendant or its representatives, and the defendant is entitled to your verdict”

At the conclusion of the charge the appellant’s counsel requested the court to further charge: That if the jury find the accident in question resulted from the taking off of the shoe at the northeast corner, and that the defendant was guilty of no negligence in employing the Bagley & Sewall Company in taking it off and putting a new one in its place, the negligence of the Bagley & Sewall Company, if any, cannot be imputed to the defendant.”

To this request the court replied: “ The negligence of the Bagley & Sewall Company, as an independent firm, can hardly be attributable to the defendant. The party employed in taking off the shoe, being in the employ of the defendant, if he was guilty of any act of negligence, the defendant is chargeable with that, irrespective of the Bagley & Sewall Company. ■ Defendant’s counsel : »I understand that your honor declines to charge the proposition as requested. The court: I don’t think I will say any more than I have said upon that proposition. Defendant’s counsel duly excepted to the refusal to charge as requested.”

“ Defendant’s counsel also asked the court to charge that it does " not appear that the Bagley & Sewall Company was the servant of the defendant in taking off the old and attempting to put on the new shoe, and asked the court to charge the jury that upon the undisputed evidence the relation of master and servant did not exist. The court: No, I cannot charge that. If the jury find the evidence of Spratt to be true that he engaged the Bagley k Sewall Company to put on the new shoe, and they confided the work to their subordinate, the party who was engaged in it, and the Bagley & Sewall Company as well as the subordinate would occupy the position of servant to the defendant. Defendant’s counsel: To your honor’s qualification I desire to except, and to the charge as made I also desire to except.”

“Defendant’s counsel also requested the court to charge the jury that upon the undisputed evidence the persons actually engaged in taking off the shoe in question, to wit, Henderson and Hill, at the time of the accident were the servants of the Bagley & Sewall Company, and not of the defendant, to which the court declined to charge and defendant’s counsel duly excepted, and also excepted to the charge as made.”

“ Defendant’s counsel. also requested the court to charge the jury that if they find that the Bagley & Sewall Company was employed to, do the job of taking off the old and putting on the new shoe with its own men and its own means, and employed others, to wit, Henderson and Hill, to help to do or to execute the work for and under its control, the Bagley & Sewall Company is the superior, and responsible for the conduct of the men, notwithstanding the Bagley & Sewall Company was doing the work for the defendant, and that there can be no recovery for any accident occurring because of taking off the shoe by the men in the employ of the Bagley k Sewall Company. The court refused to charge the proposition as stated, to which refusal the defendant duly excepted.”

The court by its charge instructed the jury that the city of Watertown was chargeable with any negligence of which the Bagley k Sewall Company or its employes, Henderson and Hill, were guilty, and refused to charge that if the Bagley k Sewall Company was employed to do the job of taking off the old and putting on the new shoes, with its own men and its own means, and employed Henderson and Hill to help execute the work under its control, that the Bagley k Sewall Company was the superior, and responsible for the conduct of the men, although the Bagley k Sewall Company was doing the work for the defendant, and that there could be no recovery for any accident by reason of taking off the shoe by the men in the employ of the Bagley & Sewall Company. It is claimed by the appellant that this was error.

In examining the validity of these exceptions, without deciding the question, we will assume that the alderman who employed the Bagley & Sewall Company to do this work had power to act for the defendant in thus employing it. Assuming that such power. existed, did the employment proved render the defendant liable for the negligence of the persons furnished by the Bagley & Sewall Company to do the work ? It cannot be pretended that the act which this company was employed to perform was in any way wrongful, nor that the plaintiff’s injury was the necessary consequence of the direction to have such act performed. The most that can be claimed in this case is, that Henderson and Hill, who were doing the work on the bridge for the Bagley & Sewall Company, were negligent, and plaintiff’s injury resulted from such negligence.

The appellant’s claim that the above exceptions to - the charge and refusals to charge were well taken must be sustained, unless the relation of master and servant existed between the defendant and the persons who were guilty of the negligence which caused the accident, if the accident was the result of negligence.

The defendant cannot be held liable for the negligence of Henderson and Hill on the sole ground that they were there acting in pursuance of an employment of the Bagley & Sewall Company by the defendant. “ It is not enough, in order to establish a liability of one person for the negligence of another, to show that the person whose negligence caused the injury was at the time acting under an employment by the person who is sought to be charged. It must be shown, in addition, that the employment created the relation of master and servant between them.” King v. N. Y. C. & H. R. R. R. Co., 66 N. Y., 181, 184.

Did the relation of master and servant exist- between the defendant and Henderson and Hill ? In examining this question it will be remembered that the only evidence of any action on the part of the defendant was, that one of its aldermen, who was a member of its street committee, directed the Bagley & Sewall Company to have new and heavier shoes cast and placed under the bridge. There were no directions as to the manner in which the work was to be done, as to the persons who should be employed to do it, as to the means to be used in removing the old shoes and replacing them with the new ones, nor as to the manner in which the bridge should be supported while this was done.

Henderson and Hill were not selected by the defendant to do this work, nor were they in any way under its control. The work was to be done and the materials furnished by the Bagley & Sew-all Company. The services were to be rendered and the materials furnished in the course of an independent occupation, which represented the will of the defendant only as to the result of the work, and not as to the means by which it was to be accomplished. The important question presented here is, whether, under these circumstances, it could be properly held that the relation of master and servant existed between the defendant and the persons employed by the Bagley & Sewall Company to do this work, or whether the Bagley & Sewall Company was an independent contractor.

“As a general rule, where a person is employed to perform a certain kind of work in the nature of repairs or improvements to a building by the owner thereof, which requires the exercise of skill and judgment as a mechanic, the execution of which is left entirely to his discretion, with no restriction as to its exercise and no limitation as to the authority conferred in respect to the same, and no provision is especially made as to the time in which the work is to be done or as to the payment for the services rendered, and the compensation is dependent upon the value thereof, such person does not occupy the relation of a servant under the control of the master, but he is an independent contractor, and the owner is not liable for his acts or the acts of his workmen who are negligent and the cause t>f injury to another. If the owner of a building employs a mechanic to make repairs upon the same without any specific arrangement as to the terms and conditions, such employment is in the nature of an independent contract which imposes upon the employe the responsibility incurred by acts of negligence caused by himself or those who are aiding him in the performance of the work.” Hexamer v. Webb, 101 N. Y., 377, 383; 1 N. Y. State Rep., 46. See, also, Blake v. Ferris, 5 N. Y., 48; Pack v. Mayor, 8 id., 222; Kelly v. Mayor, 11 id., 432; McCafferty v. S. D. & P. M. R. R. Co., 61 id., 178; Ham v. Mayor, 70 id., 462; Town of Pierrepont v. Loveless, 72 id., 211; Devlin v. Smith, 89 id., 470 ; Herrington v. Village of Lansingburgh, 110 id., 145; 17 N. Y. State Rep., 92.

We think the authorities cited decisive of the question under consideration, and that it must be held that the relation of master and servant did not exist between the defendant and the Bagley & Sewall Company, or between the defendant and the persons assigned by the Bagley & Sewall Company to repair this bridge; but that the Bagley & Sewall Company was an independent contractor to make the repairs directed. It therefore follows that the defendant’s exceptions to the charge and to the refusal of the court to charge as requested were well taken.

But it is said that the defendant was negligent in not preventing the use of this bridge or giving travelers notice of its dangerous condition. The learned counsel for the respondent in his brief concedes that “ when plaintiff and his son commenced crossing and until they had got about two-thirds of the way over, and until the last fatal blow was given upon the nut, the bridge was in fact safe.” If that was the case, it is difficult to discover how or in what manner the defendant was negligent. It had no notice, either actual or constructive, that the bridge had or was about to become unsafe. It had a right to assume that the work would be done by its contractor in a careful and proper manner. The learned counsel for the respondent in his brief again says : “ To all appearances the bridge was unsafe or unfit for teams, but safe for footmen to cross.” If this was so, it cannot be readily perceived how the" defendant was negligent in not preventing the use of the bridge by persons desiring to pass over it on foot.

If, however, we were to assume that it was a question of fact for the jury whether the defendant was negligent in not preventing the use of the bridge or in not giving notice to travelers that it was unsafe, that would not justify us in disregarding the error of the court in charging that the defendant was liable for the negli.gence of Henderson and Hill, as the jury may well have based its verdict solely upon the theory of such liability.

The court also charged: “ He (the plaintiff) is entitled by way of remuneration to recover the value of the time which he has lost by reason of this accident, if he can recover at all What it is worth is left entirely to speculation. There is no evidence that he was engaged in any particular pursuit or that he was enabled to earn any particular wages. Indeed, what his business was or what his capacity was for earning at the time of the accident seems to have been left entirely out of the case. But he was forty-six years of age. His own evidence shows he was enjoying good health, capable of laboring, and whatever in your good judgment his time is worth, founded upon the evidence in the case, which he lost by reason of the immediate results of the injury which ho sustained, he is entitled to recover as damages in this case.” To this portion of the charge the defendant’s counsel excepted as follows: “Defendant’s counsel: We also except to so much of your honor’s charge as submits to the jury the question of the value of the plaintiff’s time as an element of damages, for the reason that there is no evidence to show what the value of his time was. The court: I think I will leave the question as I have suggested it upon the evidence of the age of the party, that he was a mason by trade, and that up to the time of the injury was enjoying good health, and for aught that appears, was of good habits. Upon the evidence the jury must1 have some basis upon which they can ascertain the value of his services at that time. Defendant’s counsel: We also except to the supplemental charge.”

Where loss of time is claimed as an item of damages for personal injuries occasioned by negligence, if the plaintiff fails to prove the value of the time lost or facts on which an estimate of such value can be found, only nominal damages for that item can be given. Leeds v. Metropolitan Gaslight Co., 90 N. Y., 26. In the case cited it was proved that the plaintiff was engaged in business at the time of the injury, but had not been able to attend to it since. It was not shown what his business was or the value of his time, or any facts as to his occupation, from which the value could be estimated. The court charged that plaintiff, if entitled to a verdict, was entitled to recover compensation for the time lost. Held, error; as the jury was left to guess or speculate upon the value of the lost time, without any basis in that respect for the judgment to rest upon.

We think the case cited is decisive of this question, and that it was error to charge that the plaintiff was entitled to recover the value of the time which he had lost by reason of this accident. -As was well said by the judge in his charge, what that time was worth, was left entirely to speculation. There was no evidence that he was engaged in any particular pursuit or that he was enabled to earn any particular wages. Indeed, what his business was or what his capacity was for earning at the time of the accident seems to have been entirely left out of the case. The effect of the instruction was to leave it to the jury to speculate as to the value of the time which was lost by reason of this accident.

We think the charge was clearly within the principle of the decision of the case above cited, and that it was erroneous. The doctrine of the Leeds case, so far as applicable to the case at bar, is in no way affected by the doctrine of the People ex rel. Deverell v. M. M. P. Union, 118 N. Y., 101; 27 N. Y. State Rep., 963, as in the latter case there was evidence upon which to base an esti-" mate of the damages. As was said by the learned judge who delivered the opinion in that case, “the question in this respect differed from that in the Leeds case.”

An examination of the appeal book, upon which the case in 118 N. Y. was heard in the court of appeals, shows that the relator’s evidence was to the effect that while he was a member of the respondent union his income was from twenty-five to thirty dollars per week, and that after he was expelled it did not exceed five dollars a week. Therefore, in that case, there was evidence upon which a claim for damages could be based with some degree of certainty. In the case at bar there was no such evidence. The value of the plaintiff’s time was left to the mere guess or speculation of the jury.

For the errors pointed out, we think the judgment and order appealed from should be reversed.

Judgment and order reversed apd a new trial ordered, with costs to abide the event.

Hardin, P. J., and Merwin, J, concur.


text:
    Simeon Hill, App’lt, v. William McDonald, as Trustee, et al., Resp’ts.

      (Supreme Court, General Term, Fourth Department,

      Filed December 6, 1890.)

    I. Limitation—Trust to pay debts—Action by creditor.
    Where a conveyance of property by a debtor is in part in trust for the payment of his just debts, the statute of limitations commences to run against the' claim of a creditor from the time when payment is refused by the trustee, and an action against the trustee cannot be maintained by an assignee of the claim fifteen years after such rejection.
    2. Same—Waivbr—Estoppel.
    Such rejection cannot be said to be waived or the trustee estopped from insisting on the bar of the statute by reason of a subsequent request of the trustee that the claim be sent to counsel, to be presented on his accounting.
    3. Same.
    An action to recover such claim from the trustee is not an,action on a sealed instrument within the twenty years’ limitation.
    Appeal from a judgment dismissing the plaintiff’s complaint with costs, entered in Otsego county, October 31, 1889, on a> decision of the special term.

      John B. Holmes, for app’lt; F. B. Gilbert, for resp’ts.
   Martin, J.

This action cannot be regarded as a judgment creditor’s action, as the plaintiff was not a judgment creditor. The purpose of the action was to recover the plaintiff’s claim against the trust estate in the hands of the defendant McDonald. The trust was originally created by deeds from John I. Birdsall and his wife to the defendant McDonald and another as trustees. One of the purposes of the trust was to pay all the just debts of the defendant Birdsall. The defendant McDonald and liis co-trustee duly qualified and acted until relieved by the supreme court. In April, 1868, they were relieved from the trust and F. B. Gilbert and John Bell were appointed as trustees in their place. Gilbert and Bell acted until November 2,1874, when Bell was relieved and Gilbert was appointed sole trustee. In November, 1881, Gilbert was relieved from the trust and the defendant McDonald was again appointed as trustee in his place.

When the trust deeds were given, John I. Birdsall was justly indebted to the plaintiff’s assignor in the sum of twenty-five dollars, for which Birdsall gave his promissory note, which became due in Apiil, 1868. This note was transferred by the payee to E. L. Gustin before its maturity. On September 25,1873, Birdsall gave a new note for this debt, and another renewal note was given by him in November, 1879.

After the first note became due, and as early as the month of December, 1868, the then holder presented it to the trustees for payment, and payment was refused. It was again presented in 1875 and payment demanded, which was again refused. In October, 1880, the then trustee requested the holder of the note to ■send it to his counsel for allowance. This was done, but the note was disallowed by the trustee, and has never been paid. The note with all his equities and claim against the trust estate were assigned by the holder to the plaintiff on January 3, 1883. At the time of the trial the debt and interest amounted to $66.49. This action was commenced in May, 1883. The trial court held that the plaintiff’s claim against the trustees of this estate was barred by the statute of limitations. The correctness of that determination presents the only question involved in this case.

When this action was commenced more than fifteen years had elapsed since the plaintiff’s debt became due, and nearly that time had elapsed since it was presented and rejected by the trustees of this estate. It was, therefore, barred by the statute of limitations, if the statute is operative as to such a claim. The plaintiff contends that an express trust was created between the trustees and the creditors of the defendant Birdsall, and that the statute of limitations has no application to such a case.

If we assume that a direct, positive and technical trust, such as belongs exclusively to the jurisdiction of a' court of equity, existed in favor of the plaintiff’s assignor, the question is whether ■the rule invoked applies to this case. The rule which exempts such a trust from the bar of the statute is subject to two qualifications that seem to be as well established as the rule i tself. These qualifications are, first, that no circumstances exist to raise a presumption from lapse of time of an extinguishment of the trust; and, second, that no open denial or repudiation of the trust is brought home to the knowledge of the cestui que trust which requires him to act as upon an asserted adverse title.

As we have already seen, the plaintiff's claim was positively rejected and payment denied by the trustees. This action upon the part of the trustees must, we think, be regarded as an open and positive denial or repudiation of the trust as to the plaintiff’s assignor and the debt which the plaintiff now seeks to enforce. It was brought home to the knowledge of the assignor in a manner which called upon him to assert his rights. We think this case comes within the second qualification of the rule stated, that the-statute, commenced to run against the plaintiff’s debt from the time when payment was refused by the trustees, and that the court properly held that this claim was barred by the statute of limitations.

We find no merit in the claim that this action was on a sealed instrument. Loder v. Hatfield, 71 N. Y., 92. Nor can we find anything in the case to justify the conclusion that the refusal to pay the debt had been waived or that the defendant was estopped from insisting upon the statute as a bar by reason of the request of the trustee to the holder of this note to send it to the counsel to-be presented on an accounting had by such trustee. We are of the opinion that the case was properly disposed of by the special term, and that this appeal should not prevail.

Judgment affirmed, with costs.

Hardin, P. J., and Merwin, J., concur.


author: Hardin, P. J.

text:
    George W. Palmer, Resp’t, v. Eugene H. Conant and George F. Conant, App’lts.

      (Supreme Court, General Term, Fourth Department,

      Filed December 6, 1890.)

    1. Master and servant—Negligence.
    Plaintiff, who was in the employ of defendants, was instructed by their foreman to put flush boards on a dam, and while engaged in doing so was-injured by the giving way of the logs of which the dam was composed. It appeared that the round timbers were allowed to rest on smooth abutments, with no fastening except a piece of two inch plank nailed below them. Plaintiff was not present when they were put down, and knew nothing of the manner in which they were fastened. In an action for his injuries, Held, that it was for the jury to determine whether the dam was so constructed as to secure safety, whether the principle on which it was constiucted was reasonably safe, and whether reasonable guards to secure safety were provided; it was, also, for (hem to determine whether plaintiff assumed the risks incident to the situation.
    2. Same—Evidence—Damages.
    Evidence as to the amount of wages plaintiff had been receiving prior to the accident is admissible as an element of damages.
    3. Same.
    On1 the trial a physician was asked for his opinion as to the condition plaintiff’s leg would have been in at the day of the trial if he had “positively and speedily ” obeyed instructions given by the physician, but the question was excluded, but was subsequently, in -effect, answered by the witness. Held, No prejudicial error was committed by the exclusion of the question as first framed.
    4. Same—Release bv minor.
    At the time of the accident plaintiff was under twenty-one years of age. Defendants paid his father $100, and took from plaintiff a release of all claims for his injuries. Plaintiff was absent at the time of the payment, and received nothing when he signed the release. Held, that these facts did not preclude a recovery.
    Verdict at the Borne circuit for $500 in favor of the plaintiff for injuries sustained on the 19th of "December, 1888, while in the employ of the defendants in their operation of their saw mill on the south side of Mad Biver at Camden. James Gferow was defendants’ foreman in their chair shop and factory operated in connection with the mill, and on that day he instructed the plaintiff to go to the dam and “ help put on slash boards.” It appears by the plaintiff’s evidence that while he was engaged in putting on the flush boards “ the north end of the log slid off of the abutment and throwed him (Chapman) down stream and the board I had, with the pressure of the water, carried his end down and the end I had carried me up.. Just as I got on the pivotal part of the dam the south end of the log came off and struck my leg and carried me down the apron of the dam ten or twelve feet. The log lying on the north end of the dam first loosened and went down stream ; then it loosened from the south abutment, so they left both abutments. These flush boards were of hard wood, an inch and a half thick, twelve feet long, and averaged from eighteen to twenty-four inches in width. They raised the water. When the log struck me it dragged me off the apron of the dam and ten or twelve feet down stream. The water took me down under and the logs went to th,e north side of the creek and the water washed me on the south side, and I got out the best way I could, I don’t know how. Below the dam I should think the stream was seventy or eighty feet wide in high water. The logs were washed on the north side. When I got out, the bones in my left leg were sticking out through two pairs of pants into the water. It was from about an inch below the knee to the ankle.” It appeared that the round timbers, without being fastened on the bottom, were allowed to rest on the smooth abutments with no planking or fastening to hold them in place other than a piece of two-inch plank nailed below them, and when the pressure of the water came they gave way. ' Appeal from the judgment and from the order refusing a new trial.

      George F. Morss and O. D. Prescott, for app’lts; P. H. Fitzgerald, for resp’t
   Hardin, P. J.

We think the evidence presented a question of fact for the jury. It was for the jury to determine whether the defendants were guilty of negligence. It was for the jury to determine whether the dam was so constructed as to secure safety, and whether the principle upon which it was constructed was reasonably safe; and whether reasonable guards to secure safety were provided by the defendants. Newall v. Bartlett, 114 N. Y., 404; 23 N. Y. State Rep., 732; Pantzar v. Tilly Foster Iron Mining Co., 99 N. Y., 372.

It appears by the . evidence that the plaintiff" was not present

when the scantling were put down and knew nothing of the manner in which they were fastened. The jury may properly have found upon the evidence that the plaintiff had no knowledge or appreciation of the defects which led to the accident; and that he was not chargeable with having voluntarily taken the risks incident to the situation in which he was placed. Whatever question there was upon that subject, we are of the opinion that it was one for the jury to determine. Benzing v. Steinway & Sons, 101 N. Y., 547.

(2) Plaintiff was asked during his examination as a witness: “ Q. How much wages did you earn a week from Conant’s ? ” To this question the defendants objected that it was incompetent and immaterial; and in dealing with the objections the court observed : “ It is received only as an element of damáges sustained by the plaintiff.” * * * The defendant took an exception and the witness answered: “Five dollars a week.” It is to be observed that there was no objection to the form of the. question ; apparently it called for the wages he had been receiving prior to the inj ury; we think such evidence was competent. In Beisiegel v. New York Central R. R. Co., 40 N. Y., 9, it was held, viz., “In an action to recover for personal injuries, evidence of the amount the plaintiff is earning at his trade, at the time of and immediately preceding the accident, is admissible upon the question of damages.”

(3) In the course of -the cross-examination of the physician and surgeon who attended the plaintiff, he was asked for his opinion in respect to the condition the plaintiff’s leg would have been in at the day of trial if he had “ positively and speedily ” obeyed instructions given by the physician. The question was objected to as incompetent and immaterial, and the court sustained the objection and the defendant took an exception. Hpon looking into the evidence following, given by the witness, we find that he, in effect, answered the question; the witness says, viz. : “ The bones came together very nicely and stayed so until he got off the cot bed, and if they had been kept where I first set them there would have been no difficulty in the union of these pieces of bones.” The witness added at a later stage of his testimony that “ the plaintiff was a restless patient. The bones were broken in a good many pieces. 'It was crushed, and that would make any man restless. I told him that rest was imperative, and in the forepart of the treatment administered opiates to him to quiet his pain.” Considering the evidence that the witness gave, we are not inclined to say that any prejudicial error was committed preventing an answer to the question as it'was first framed upon the subject embraced therein.’ Some other rulings were made upon questions of evidence which do not require from us any special consideration, as we are of opinion that no prejudicial error was committed.

(4) When the injuries were received by the plaintiff he was under twenty-one years of age, and on January 7, 1889, the defendants paid to his father the sum of $100, and a paper was executed by the plaintiff on that occasion purporting to be a release of all claims against the defendants by reason of the injuries to the plaintiff’s leg. When that paper was executed the plaintiff was still a minor, being only twenty years, eight months and seventeen days of age. It is to be borne in mind that the father of the plaintiff was entitled to his services until he became of age, and, therefore, he was entitled to receive of the defendants such sum as he had lost by reason of the injuries sustained by the injury disabling the plaintiff from earning wages. Where a minor is injured, the parents have a right of action, and the child also has a right of action. Cuming v. Brooklyn City R. R. Co., 109 N. Y., 99 ; 14 N. Y. State Rep., 788; Traver v. Eighth Ave. R. R. Co., 4 Abb. Ct. App. Dec., 422.

It appears by the evidence that the check for the $100 was given to the father of the plaintiff at his house, and that the plaintiff was not there, and that when the plaintiff signed the paper he received nothing. We think the payment of the money, under the circumstances, to the father of the plaintiff does not stand in the way of the plaintiff’s right of recovery.

When Green v. Green was tried before me at special term, in Onondaga county, I found that the defendant, while an infant, had conveyed a certain piece of real estate to his father for the sum of $400; having spent and wasted the money, he had no means or property whatever, and subsequent to his becoming twenty-one years of age he- returned to the premises and took possession of them without any restoration to his father of the money that he had received, and in an action of trespass brought by the father I held that the plaintiff could not maintain the action.

In delivering the opinion in that case upon an appeal taken to this court, 7 Hun, 494, Gilbert, J., says: “The court below we think properly gave judgment for the defendant. An infant cannot properly bind himself to his prejudice, but whenever the act done may be for his benefit it will not be void, but he has an election when he comes of age to affirm or avoid it. 2 Kent’s Com., 233, et seq., and cases cited. Mere acquiescence, without acts, does not amount to an affirmance.” That case was removed to the court of appeals, and the judgment of the special and general terms affirmed. Green v. Green, 69 N. Y., 553. We think we ought to allow the verdict to stand.

Judgment and order affirmed, with costs.

Martih and Merwhst, JJ., concur.


text:
    The People, Resp’ts, v. Nicholas N. Betsinger, App’lt.

      (Supreme Court, General Term, Fourth Department,

      Filed December 6, 1890.)

    Rape—Evidence.
    In a prosecution for rape a physician was allowed to testify that about three months after the alleged crime he made an examination of the complainant, and found the hymen absent; that there were traces of one, but it was not intact or in a normal condition for a virgin. lleld,ths.t it was competent for defendant, in answer to such testimony, to show that complainant had been having intercourse with others which would account for such condition, and that it was proper to ask her on cross-examination whether she had acknowledged that she wrote to a man asking how he “would like to do it to her.”

      Appeal from a judgment of the court of sessions of the county of Onondaga, rendered upon a verdict of conviction of the defendant of the crime of rape (the defendant having been sentenced to an imprisonment in the state’s prison for the term of fourteen years and ten months); also an appeal from three several orders: (No. 1.) Denying a motion made in arrest of judgment; (No. 2.) Denying a motion for a new trial; and (No. 3.) Denying a motion to set aside and vacate the verdict.
    The indictment alleges that the rape was committed upon one Frieda Goessley, in the town of Mareellus, on the 10th day of February, 1890. It appears in the evidence that Frieda was born October 20, 1875, in Germany, and that near the last of January, 1890, she went to live with the defendant’s family, and before that time she had lived in an orphan asylum at Auburn. The defendant, as a witness upon the stand, denied absolutely the accusation, and called witnesses to testify that his general character was good.

      Lawrence T. Jones, for app’lt; B. J. Shove, for resp’ts.
   Hardin, P. J.

Apparently for the purpose of corroborating the complainant, the prosecution called Dr. Head, a physician and surgeon of twenty-five years’ practice, who testified that about the 5th of May he made a manual examination of the complainant. In the course 'of his testimony he said, viz.: “ I found the hymen absent; there were traces of a hymen there, but it was not intact ; I could hardly swear that it had been broken or ruptured; I found traces of the hymen there, but it was not intact; it was not in a normal condition for a virgin. * * * She was well developed. I am not able to state whether she had reached womanhood or not.” This testimony was received under objection and exception "by the defendant, and after it had been given the defendant moved to strike the evidence out “upon the ground that the examination was made too long after the alleged rape, and upon the ground that it is generally immaterial and incompetent evidence.” The court refused to strike it out, observing, viz.: “I think it goes to the value of the testimony rather than its competency.” The motion to strike out was denied, and the defendant took an exception.

When the complainant was upon the stand she was asked'sev1 eral questions as to her previous habits and practices, and to one of the questions she replied, viz.: “ I did not tell Edwards North, when I was sliding down hill with him, that a man did it to me once, nor anything to that effect.” Thereafter the defendant called as a witness Edwards North, who testified that he was acquainted with the complainant and had been in the habit of playing with her; and he was asked if he remembered having had. a talk with the complainant one day when they were sliding down hill together “ about something that some man had done to her once before; ” this question was objected to by the people and the objection was sustained. Apparently the evidence was avowed to be offered for two purposes; the first as bearing upon the credibility of the complainant, and secondly as tending to overcome the testimony of Dr. Head and the inferences to be drawn therefrom. The evidence was excluded by the court and the defendant took an exception; then the question was put to him by the defendant, viz.: “Did she say that this man was a drunken man?” and the witness answered “Yes, sir;” it was then objected to and the court struck out the answer, and to that ruling the defendant’s counsel took an exception, and thereupon the court made this remark: “I deem it non-essential entirely, whether this child has been raped or otherwise ill-treated a dozen times prior to this.” , Some further colloquy took place between the court and the counsel for the defendant, and at the close thereof, the court having failed to either strike out the testimony of Dr. Head or to allow the evidence which was proposed, an exception was taken by the defendant’s counsel.

We think the trial court fell into an error in the rulings and statements which we have quoted. After -the testimony of Dr. Head had been given it was entirely competent for the defendant to show, if he could, by evidence, that the complainant had been having intercourse with other parties which would account for the condition in which the doctor stated he found her sexual organ. Surely if she had “ been raped or otherwise ill-treated a dozen times prior to this,” the time when Dr. Head made the personal examination of her, the force of the facts stated by him in his narration of the condition in which he found her at the time he made the examination would have been broken, and it would have been for the jury to say whether or no the condition in which he found her was by reason of any act of the defendant or by reason of her practices with other parties. People v. Crapo, 76 N. Y., 288; affirming same case, 15 Hun, 269.

(2.) When the complainant was upon her cross-examination she was asked whether she acknowledged to Mrs. Walford that she “ wrote to Stacy Amidon and asked him how he would like to do it to her.” The witness seems to have answered in the first instance “Hot that I remember of,” arid when asked if she would swear that she did not do it an objection was taken and the objection was sustained, and the defendant took an exception. It appears- by the case that the question was repeated, and although objected to, that the witness said “Ho, sir;” and thereafter the question was repeated, viz: “ But you do not remember whether you acknowledged to Mrs. Walford that you wrote them?” and the court upon an objection observed “ That has been excluded once;” the defendant took an exception. Thereupon the defendant was about to make an offer and the court observed “ I do not think it is a proper exarninatiori. My judgment is about as I have ruled;” to that the defendant took an exception. We think the court might very well have properly allowed greater latitude in the cross-examination of the complainant. People v. Hulse, 3 Hill, 316.

(3.) Several very close questions arose in the case in respect to the rulings made when jurors were under examination. We do not deem it needful to examine all the rulings made in respect to the j urors, inasmuch as we are of the opinion that the views already expressed must lead to a new trial.

Conviction, orders and judgment reversed and a new trial ordered in the court of sessions of Onondaga county, to which court proceedings are remitted.

Martin, J. concurs; Merwin, J. concurs in result


text:
    Charles E. Whittaker, Adm’r, App’lt, v. The President, etc., oe The Delaware & Hudson Canal Co., Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed December 6, 1890.)

    Master and servant—Negligence.
    An engine whose headlight had heen broken and removed was left upon the main track while the engineer went into the station for orders,in violation of the rules of the company. While so standing a train from the opposite direction, on which plaintiff’s intestate was a fireman, and which was running at a greater speed than the rules allowed, collided with it and plaintiffs intestate was lulled. It appeared that he was engaged at the time in procuring coal from the further end of the storage and the speed of the train was solely under the control of the engineer. Held, that the court erred in dismissing the complaint; that the question whether the absence of the headlight of the engine was an efficient cause without which the accident would not have happened should have been submitted to the jury, and that the facts would warrant a jury in finding that intestate was free of contributory negligence.
    Appeal from a judgment entered in Otsegó county after a trial at the circuit in that county where a non-suit was granted and „ complaint dismissed; and from an order made at special term on a case and exceptions denying a motion for a new trial.

      Louis Marshall,.for app’lt; HdwinYoung, for resp’t.
   Hardin, P. J.

When this case was before us on the former appeal, 49 Hun, 400; 22 N. Y. State Rep., 405, a verdict had been taken for the plaintiff; and we then held it was error to instruct the jury, viz: “ That even if they found that the co-employes of the plaintiff’s intestate were guilty of negligence, yet if they found that the defendant was negligent in allowing its engine to run without a head-light, and that negligence contributed to the injury, the plaintiff could recover.” In the course of the opinion delivered on that occasion, it was said, viz: “ The engineer of locomotive Ho. 82 had not received special orders permitting him to run his locomotive onto the east bound traffic track and stop it near the depot. That it was a negligent act to do this and leave the locomotive standing there unguarded so near the time when two trains were due upon the same track is quite clear.” In that case it appeared that train Ho. 28, going east, “sometimes ran through Quaker Street four or five miles an hour; generally ran through about four miles an hour, and that there was a rule forbidding the running of trains past stations at more than four miles an hour.”

It also appeared that on the occasion of the collision train Ho. 28 was running faster than ■ usual through that station ; running when they collided, eight or ten miles an hour. Upon the facts appearing in the case as it was presented to us on that occasion, it was said in the opinion, viz.: “ When several proximate causes contribute to an accident, and each is an efficient cause, without the operation of which the accident would not have happened, it may be attributed to all or any of the causes; but it cannot be attributed. to a cause unless without its operation the accident would not have happened. Ring v. City of Cohoes, 77 N. Y., 90; Ehrgott v. Mayor, etc., of New York, 96 id., 264; Searles v. The Manhattan Railway Co., 101 id., 661; Taylor v. City of Yonkers, 105 id., 202.”

The opinion then proceeds to state, viz.: “ Bach of the three acts above enumerated may have been one of several causes, each contributing to the accident. The defendant is not liable to its employes for the damages resulting from two of the causes, and the jury should have been instructed that the defendant was not liable unless they found the accident would not have happened but for the absence of the head light.” We think the opinion contains nothing that justifies an inference that the defendant was not liable if the absence of the head light was an efficient cause, without the operation of which “ the accident would not have happened ; ” on the contrary, it seems that the opinion proceeded upon the assumption that the case presented questions of fact for the consideration of a jury. We are of the opinion that the case as now presented to us, and considered in the light of the opinion to which reference has been made, called for a submission to the jury.

When Cone v. D., L. & W. R. R. Co., 15 Hun, 177, was before this court, Judge Smith, speaking for this court, said: “We think the true rule is that for an injury to the servant resulting from the negligence of the master the latter is liable although by diligence on the part of a fellow servant the injurious effects of the master’s negligence might have been prevented or averted. If the injury would not have happened but for the negligence of the master, contributory negligence on the part of the fellow servant is no defense to the master. Within that rule the defendant is liable in this case. Not only would the injury not have happened if the engine had been in suitable condition, but in that case no negligence could have been imputed to the engineer.” That case was affirmed and the doctrine approved in 81 N. Y., 210. See also Coppins v. N. Y. C. & H. R. R.. R. Co., 48 Hun, 292 ; 17 N. Y. State Rep., 916; Senior v. Ward, 1 Ellis & Ellis, 385; Pennsylvania Co. v Conlan, 101 Ill., 93; Ellis v. N. Y., L. E. & W. R. R. Co., 95 N. Y., 546 ; Stringham v. Stewart, 100 id., 516.

(2) We are of the opinion that whether the plaintiff’s intestate was guilty of contributory negligence or not on the occasion of the loss of his life was a question of fact for the jury. We think it error to declare upon the evidence found in the appeal book as a matter of law that the intestate was guilty of contributory negligence. Hoag v. N. Y. C. & H. R. R. R. Co., 111 N. Y., 199; 19 N. Y. State Rep., 80. The intestate was performing his duties; he was engaged in getting coal from the far end of the storage and moving it with a shovel to the fire when the collision took place; and the train had begun to slow up and its speed appears to have been solely under the management of the engineer and not at all in the command or control of the deceased. The facts disclosed by the evidence would fully warrant the jury in finding that the intestate was free of contributory negligence. We are of the opinion that the case ought to have been submitted to the jury.

Judgment and [order reversed and a new trial ordered, with costs to abide the event.

Martin and Merwin, JJ., concur.


text:
    Maria Van Orman, App’lt, v. Jacob Van Orman, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed December 6, 1890.)

    1. Will—Pkobate—Appeal.
    Where the court on appeal reverse a decree refusing probate on the ground of error in the conclusions of fact as to testamentary capacity and undue influence, it should direct a trial of those questions by a jury at circuit.
    3. Same—Undue influence.
    The burden of establishing that a will was procured by undue influence is upon the contestant.
    3. Evidence—Pimvileged communications—Code Oiv. Peo., § 834.
    In a proceeding to probate a will, the opinion of a physician, based on facts and observations derived by him while attending the testator, as to whether the testator could correctly and intelligently comprehend the nature and condition and value of 'his property, is an. admissible under § 834 of the Code.
    On the 9th day of September, 1887, Jacob Yau Orman, late of Ithaca, Tompkins county, being of the age of eighty-seven years, died, leaving him surviving his widow Maria Yan Orman and four daughters and two sons. In October, 1887, Thomas Yan Orman, one of the sons, and a legatee named in the will, presented a petition to the surrogate of that county asking for citations to attend upon the probate of the deceased’s will. Upon the return day of the citations Jacob Yan Orman, the other son, appeared and filed allegations against the probate of the will. Upon the issue thus framed testimony was taken before the surrogate at great length, and on the 3d day of January, 1890, the surrogate granted a decree, which contained the following provision: “ It is adjudged' and determined that on the 18th day of June, 1881, at the time said paper writing purports to have been executed, said Joseph Yan Orman was enfeebled by disease; unable to comprehend the extent and value of his property, and his relations and obligations to the several members of his family; of unsound mind, and not. of sufficient capacity to make a valid will. That while so enfeebled in mind and body, the subscribing of said paper writing by said Joseph Yan Orman, and such execution thereof as, and for, his last will and testament, as appears from the evidence to have been made, were procured from said Joseph Yan Orman by fraudulent and undue influence practiced upon him. It is ordered, adjudged and decreed that said instrument in writing is null and void as, or for, the last will and testament of Joseph Yan Orman, deceased.”
    In January, 1890, Mariah Yan Orman, the widow and a legatee named in said will, filed exceptions to the provisions just quoted and she presented several requests to the surrogate to find as to matters of fact, which requests the surrogate refused; and she asked him to find as conclusion of law, viz.: “First: That the .said last will and testament of said deceased, Joseph Van Orman, was duly executed, and that it is genuine and valid.” The surrogate refused to so find. She also requested the surrogate to find : ‘•That said Joseph Van Orman, deceased, was in all respects competent to make a last will and testament, and to devise real estate, and was not under any restraint or undue influence.” The surrogate refused so to find. The widow was named as an axecutrix in the will, and she brings an appeal to this court from the decree of the surrogate refusing probate.

      P. G. Ellsworth, fór app’lt; J. T. Newman, for resp’t.
   Hardin, P. J.

In Children's Aid Society v. Loveridge, 70 N. Y., 387, it was said, viz.: “ Although by the will of an aged invalid radical changes are made from previous testamentary disposition, yet when the testimony shows that the act was free, voluntary and intelligent, the will will be sustained.”

In Horn v. Pullman, 72 N. Y., 269, it was said, viz.: “ There is no presumption against a will because made by a person of advanced age; nor can incapacity to make a will be inferred from an enfeebled condition of mind or body. If the testator has sufficient intelligence to comprehend the condition of his property, his relation to those who are or may be the objects of his bounty, and the scope and meaning of the provisions of his will, and if it is his free act, it will be sustained. The question in all such cases is simply, was the will the free act of a competent testator? The fact that its provisions were inequitable and unjust furnishes no ground for disturbing it.”

After a careful perusal of the evidence given before the surrogate we are not entirely satisfied with the conclusions of fact reached by the surrogate. We are, therefore, of the opinion that we ought to order a new trial of the leading issues of fact arising from the evidence presented upon the hearing had before the surrogate. We, therefore, pursuant to § 2588 of the Code of. Civil Procedure, should direct a trial “ by a jury of the material questions of fact arising upon the issues between the parties; * * * in a circuit court ” in Tompkins county. See Matter of Proving Will of Anna Martin, 98 N. Y., 193; Matter of Soule, 19 N. Y. State Rep., 533.

(2) Dr. David White was called as a witness for the contestant, and after testifying that he had prescribed for the deceased a great many times, including the months of June and July, 1881, he was allowed to give facts and observations derived by him while acting as his physician, and to express an opinion as to his mental condition. The contestant put to him the following question: “ Do you think he could correctly and intelligently comprehend the nature and condition and value of his property ? This was objected to by the proponent as incompetent and immaterial. The •objection was overruled and an exception was taken; the witness answered: “ I would not think so; that would be my opinion; I would not think he could with good judgment”

Section 834. of the Code provides as follows: “A person duly authorized to practice physic or surgery shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity.” That section was interpreted by the court of appeals in Renihan v. Dennin, 103 N. Y., 573; 4 N. Y. State Rep., 261; and we are of the opinion that the testimony of Dr. White was not kept within the rule laid down in the case just alluded to.

(3.) The burden of ■ establishing that the will was procured by undue influence was upon the contestant; as was said by the court in Anna Martin’s case, supra: “ The will could only be avoided by proof of influence amounting to force or coercion; ” and in that case it was further held that “ The facts that the proponent of the will was a son of the testatrix, that he communicated to the scrivener the provisions to be inserted in the will, and was himself a beneficiary, were insufficient ” to establish undue influence.

Inasmuch as we are of the opinion that the question of fact arising in this case as to whether or no there was any undue influence practiced by the wife upon the deceased must be determined by a jury, we forbear any extensive comment upon the evidence now appearing before us upon that question. All those facts and such other as éither side may offer bearing upon the question will be presented upon a trial to be had before a jury.

The decree of the surrogate of Tompkins county reversed and a new trial ordered before a jury in a circuit court in Tompkins county of the questions: (1) Whether or no the deceased at the time of the execution of his will, on June 18, 1881, possessed testamentary capacity; (2) Whether or no the will then executed by the deceased was procured by undue influence. With the costs of this appeal allowed to the appellant, “ payable out of the estate or fund.” Section 2589 of the Code oE Civ. Pro.

Martin, J., concurs; Merwin, J., concurs in the result.


author: Merwin, J.

text:
    The Capital City Bank, App’lt, v. Adolphus Parent, Impl’d, Resp’t.

      (Supreme Court, General Term, Fourth Department,

      Filed December 6, 1890.)

    1. Creditor’s action—Cannot be maintained where judgment was recovered ON SERVICE BY PUBLICATION AND ATTACHMENT.
    An execution against the property generally of the debtor such as is required by § 1871 as a condition precedent to the right to maintain a creditor’s action cannot he issued where the judgment was obtained in an action commenced by service by publication against a non-resident and attachment, in which the defendant did not appear.
    2. Attachment—Levy.
    The return to an attachment stated that the sheriff had levied on a deposit of money in a bank, made by one who represented himself as the defendant in the attachment, for which was given a draft for the amount thereof payable to the order of the depositor. Held, that no property of said defendant was in fact levied on; that the money deposited became the property of the bank, and it was liable only on the draft.

      Appeal from a judgment, entered in Onondaga county on 20th May, 1890, upon the decision of the court át Onondaga special term April 1890, dismissing the complaint.

      Groodelle & Nottingham, for app’lt; Hiscock, Boheny & Hiscock, for resp’t.
   Merwin, J.

This is an action in the nature of a creditor’s bill-It is alleged in the complaint that the plaintiff on the 22d October, 1888, recovered in the supreme court a judgment against the defendant Charles C. Nelson, alias W. G. Lee, for the sum of $6,135.60, which was on that day docketed and the roll filed in the clerk’s office of the county of New York; that on the 10th December, 1888, an execution against the property of Nelson was issued to the sheriff of the county of New York, Nelson not being a resident of the state, and returned wholly unsatisfied; that a transcript of the judgment was filed in Onondaga county and an execution duly issued to the sheriff of that county, that being the county to which an attachment in the action had been issued and returned wholly unsatisfied, all before the commencement of the present action; that on the 6th July, 1888, Nelson deposited with the defendant The First National Bank of Syracuse $5,000, and that bank issued to Nelson a draft for $5,000 on the defendant The First National Bank of New York, payable to the order of W. G. Lee; that thereafter Nelson, with intent to defraud his creditors and the plaintiff, transferred this draft to the defendant Parent without consideration and with knowledge on the part of Parent of the fraudulent intent. Judgment is demanded that the transfer be set aside and a receiver be appointed.

One of the grounds upon which the complaint was dismissed was that the plaintiff had no sufficient judgment and execution to enable it to maintain this action.

The judgment of the plaintiff against Nelson is based upon a service of the summons by publication upon the ground of non-residence. There was no appearance by Nelson, or personal service, and he was in fact a non-resident. An attachment was obtained and delivered to the sheriff of Onondaga county, who, according to his return, levied upon “ a deposit of five thousand dollars in the First National Bank of Syracuse, New York, by one representing himself to be W. G. Lee, for which was given in exchange by said bank a draft for the sum of five thousand dollars, payable to the order of W. G. Lee, drawn on the First National Bank of New York city.”

As to such a judgment, it is provided by § 707 of the Code of Civ. Pro., that it “ can be enforced only against the property which has been levied upon, by virtue of the warrant of attachment, at the time when the judgment is entered.” The execution is limited in the samé way. Code, § 1370. A similar doctrine was held under the former Code. McKinney v. Collins, 88 N. Y., 216. The judgment is substantially a judgment in rem. Bartlett v. Spicer, 75 N. Y., 534; Rocky Mountain Nat. Bank v. Bliss, 89 id., 338. It follows, therefore, that an execution • against the property, generally, of the debtor, such as is required by § 1871 of the Code, as a condition precedent to the right of a judgment creditor to maintain an action of this kind, could not be issued. The rule iu Chancery was the same. Thomas v. Merchants' Bank, 9 Paige, 216; Corey v. Cornelius, 1 Barb. Ch., 571.

This action cannot be maintained on the theory that it is in aid of the attachment The complaint is not on that basis. No levy is alleged. . Besides it appears that no property of the debtor was in fact levied on. The deposit, referred to in the return of the sheriff, was not to the credit of the debtor. He purchased of the bank a draft on New York, and paid for it with the money called a deposit. The draft was delivered to the debtor, and the money became the property of the bank. The bank then became liable, not for the money, but upon the draft in case, upon proper presentment, it was not paid and due notice given.

It was conceded at the trial that the draft was not levied on. It was taken by Nelson to Canada, and afterwards, with the assent of plaintiff, transferred to the defendant Parent, in order to enable Nelson to raise means to complete a compromise of the claim of plaintiff.

The plaintiff claims it can obtain relief in this action without reference to its judgment, and cites the case of McCartney v. Bostwick, 32 N. Y., 53. That was an action by a creditor to obtain payment of his debt from lands, the consideration of which was paid by the debtor, but the deed given to another. 4 R. S., 8th ed., 2437, §§ 51, 52. The creditor had, by judgment and execution in the state of Minnesota, where the debtor resided, exhausted there his legal remedy. This was held to be sufficient for the purposes of the action to enforce the statutory trust. It may be doubted whether that is now the law. The Ocean Nat. Bank v. Olcott, 46 N. Y., 12 ; Allyn v. Thurston, 53 id., 622 ; Estes v. Wilcox, 67 id., 264.. Be that as it may, the McCartney case does not apply here, as there has not been anywhere any judgment against Nelson except the one alleged in the complaint. If the plaintiff seeks to stand as a simple creditor, then it is met with the evidence, and the findings of the court' thereon, to the effect that in July, 1888, t]le plaintiff settled and compromised with Nelson and'released him absolutely from its debt. The plaintiff sought to repudiate this release by reason of delay in the payment of a portion of the money, but the evidence sustains the conclusion of the court that the plaintiff had no good ground to repudiate the settlement.

The plaintiff further suggests that it is entitled here to relief because the monies whicti Nelson obtained of it by false pretenses, and which make up the amount of its debt, were identical with the monies used by Nelson to purchase the draft. The facts to sustain that position are not alleged in the complaint or found by the court. The plaintiff elected to sue for the debt and brought this action on that basis. Its release, too, would be in the way.

The court below found, upon sufficient evidence, that there was no fraud in the transfer by Nelson to Parent of the draft in question ; that Parent in reliance upon the agreement of settlement between, the plaintiff and Nelson, and for the purpose of furnishing Nelson part of the money with which to carry out the same, and at the procurement and solicitation of the plaintiff, and upon its representation that it was proper and safe for him so to do, purchased the draft and paid therefor $8,825.85. There is evidence tending to show that, as between Parent and Nelson, the balance of the draft is still due Nelson less some expenses of Parent. And if the plaintiff’s judgment, subsequently recovered, had been obtained upon personal service, so that it would have been a good basis for a creditor’s bill, and its consideration could not have been here inquired into, it may be that then the balance due from Parent to Nelson might have been reached. That however need not be here considered.

As the case stands, we think that the complaint was properly dismissed.

Judgment affirmed, with costs.

Hardin, P.' J., and Martin, J, concur.