text:
    Peter Higgins, Resp’t, v. The Western Union Telegraph Company, App’lt.

      (New Torh Superior Court, General Term,

      Filed January 7, 1895.)

    1. Appeal—Former decision.
    . The appellate court will, on the second appeal, adhere to its former ruling, where the facts have not been substantially changed since the former trial.
    3. Master and servant—Liability for.
    The master, unless he abandons the control of his servants to the hirer, remains liable to third persons for their negligence.

      3. Same—Fellow,
    Where there is no common employment, the doctrine as to negligence of fellow-servant is not applicable.
    Appeal by defendant from judgment rendered on verdict in favor of plaintiff, and from order denying motion for a new trial.

      Jacob F Miller, for app’lt; Chauncey S. Truax, for resp’t.
   McAdam, J.

When the record of the former trial was before-us we decided, as matter of law, from the facts disclosed, that Algar was the servant of the defendant at the time of the injury complained of, and that the defendant was responsible for his negligence on the theory of respondeat superior. See report of case, 8 Misc. Rep. 433; 58 St. Rep. 852; 28 N. Y. Supp. 676. Following that ruling the trial judge at the second trial charged the jury, in the nature of a binding instruction, that the defendant was Algar’s master at the time of the accident, and, as such, responsible for any negligence on his part, and the exception thereto is the main point urged on this appeal.

Without re-examining the question we will assume that the case upon the preceding appeal was properly decided, and accept the result as the law applicable so far as this court is concerned. The question determined is a close one, near the border line, and about which judicial minds might differ. We fail to discover in the present record that the facts have been substantially changed since the former trial, and, therefore, deem it our duty to adhere to our ruling.

The facts being conceded, it became a question of law whether Algar, at the time of the accident, was acting as the employe of the defendant or of Smith, the independent contractor, and there was nothing to submit to the jury on that subject. We are aware of the exceptional rule, that if a servant step aside from his master’s business, for however short a time, to do an act not connected with such business, the relation of master and servant is for the time suspended, and an act performed during such interval is his own ; 14 Am. & Eng. Enc. of Law, 745; Sheridan v. Charlick, 4 Daly, 338; Courtney v. Baker, 37 Supr. Ct. 249; also, of the rule that, “ when one person lends his servant to another for a particular employment, the servant for anything done in that particular employment must be dealt with as the servant of1 the man to whom he is lent, although he remains the general servant of the person who lent him.” Add. on Torts (6th Am. Ed.), by Baylies, 127.

This law was applied in Rourke v. White Moss Colliery Co., L. R., 2 Com. Pleas Div. 205, and in Murray v. Currie, L. R., 6 Com. Pleas, 26, which cases are relied upon by the appellant and claimed by it to be applicable here. In the Rourke Case, the servant was lent to an independent contractor to do his work under his instructions, and the services were paid for by such contractor. In the Murray Case the servant was lent to an independent contractor, under whose immediate supervision and orders he was working at the time of the accident. In those cases the independent contractor was clearly liable for the acts of the servant, for the latter, being under his immediate control and direction, became his servant pro hac vice, and the acts of the servant were, therefore, regarded in law as those of the independent contractor.

In the controversy before us there was no such lending of Algar, the servant, and no substitution of authority. He was not paid or controlled by Smith, the independent contractor, and took no directions from him as to the manner of running the elevator. Indeed, the evidence fails to show that Smith even saw Algar or ever assumed to control or direct him. In short, Algar’s employment by the defendant was never suspended, and Smith never assumed any responsibility for his conduct, and did not become liable therefor.

There being no suspension of the relation which existed between the servant and the defendant as his master, it continued in force, and there was no severance for any time, however short, of such relation. If we are right in this, the trial judge was correct in charging that the case was unaffected by the doctrine applicable to negligence by a fellow workman, for there was no common employment. This proposition is a natural sequence of the other.

The defendant owned the elevator and it was run for its benefit. The servant in charge was chosen by it for that express purpose. Smith, the independent contractor, had no contract to run the elevator, was under no obligation to run it, and although the defendant permitted its use to aid the plaintiff in doing Smith’s work, it was to speed its completion. Defendant retained possession of the elevator, however, through its own chosen servant, whose duty it was to run it, and to run it safely.-

The recent case of White v. Norfolk & S. R. Co., 20 S. E. Rep. 191, holds that a corporation chartered as a common carrier, with power to use.steamboats as well as trains, is liable as a carrier to a passenger on one of its boats, though the boat is at the time let for an excursion, where it also lets the crew, luhich is still in its pay, and subject to be discharged or changed by it. There the court said, the test was whether the defendant abandoned the entire control of its servants to the hirer. In an elementary work of authority, the authors lay it down as a settled principle that “ unless the master abandons the entire control of his servants to the hirer, he remains liable to strangers for their negligence. The hirer cannot properly be said to have control of the servants, unless he has the right to discharge them and employ others in their places in case of their misconduct or incapacity, that being the only practical means by which free servants can be controlled. If, therefore, the hirer has no such power, he is not responsible to any one for the faults of the servants.” Shear. & Redf. on Neg. 4th Ed., § 162. These principles may apply to the facts in Murray v. Currie, and Rourke v. White Moss Colliery Col, supra, where the .hirer or independent contractor was held liable instead of the supreme master, whose position was for the time being obliterated; but they cannot be extended to this case because the proof is dissimilar. Algar continued in the pay of the defendant, could be discharged only by it, and its control over him was never abandoned.

Many of the propositions which the defendant’s counsel requested the trial judge to charge were accurately considered in the abstract, but, in view of the conclusion reached by the preceding general term, that Algar was, on the undisputed facts, the servant of the defendant, and that there was no common employment, they were inapplicable. The real questions for the jury, apart from the matter of damages, were whether Algar was negligent, whether the plaintiffs injuries resulted from such negligence, and whether the plaintiff was entirely free from fault, These features of the case were clearly sent to the jury, and were -decided adversely to the defendant upon evidence satisfactorily sustaining the findings. The damages awarded are moderate in amount, and, therefore, unobjectionable.

It follows, therefore, that the judgment and order appealed from must be affirmed, with costs.

Freedman, J.—The views expressed and enforced by me upon the first trial of this case concerning the relations existing at the time of the accident between the defendant and Algar and Smith having been overruled by the general term of this court, it is my ■duty to accept that decision as the law applicable to this case upon the present appeal. That being so, and being unable to discover in the present record any substantial change in the facts since the former trial, I feel bound to concur, and for that reason alone I do concur, in the affirmance of the judgment and order appealed from with costs.


source: Caselaw Access Project

author: McAdam, J.

license: Public Domain

text:
    Russel H. Hoadley et al., Resp’ts, v. Hipolito Dumois et al., App’lts.

      (New Fork Superior Court, General Term,

      Filed January 7, 1895.)

    1. Monet paid—When proper.
    Where the consignee of goods, either by complusion of law or to relieve himself from liability, or to save himself from damage, has paid money to the owner of the vessel, which the charterer ought to have paid, a count for money paid to and for the latter’s use will be supported.
    2. Same.
    No contractual relation is necessary as a foundation for such action.
    3. Same.
    The consignee became subrogated to the cause of action, which the owner originally had against the charterer.
    4. Same.
    The charterer’s liability was fixed and determined, in the action brought against the consignee, by notice of the pendency of such action and an opportunity afforded him to defend it.
    5. Same—Counterclaim.
    In the action by the owner of the vessel against the consignee, any person, interested in the subject-matter of the suit, who has a counterclaim against the libellant, could have filed a cross-bill.

      Appeal by defendants from judgment entered on verdict of jury in favor of plaintiffs.

      Goodrich, Deady & Goodrich, for app’lts; Wheeler, Coriis & GodJcin, for resp’ts.
   McAdam, J.

There was no dispute as to the facts, which are substantially as follows:

On August 5,1890, the owners of the steamship Albert Dumois chartered her for a period of three years to the defendants. On August 21, 1891, within the life of the first charter, the defendants chartered the steamship to the Honduras & Central American Steamship Company for two voyages from Belize, Central America, to New York. In October, 1891, the Honduras Steamship Company loaded the steamer and issued bills of lading for the cargo upon one of these voyages, the vessl arriving in New York November 10, 1891. A portion of the cargo, consisting of coffee, hides, etc., was consigned to the plaintiffs; the bills of lading were signed by the company in the usual form, and provided for the delivery of cargo to the plaintiffs on payment of the freight Both of the charters contained the following clause : „ “ The owner shall have a lien upon all cargoes and all sub-freights for any amounts due under this charter, and the charterer shall have a lien upon the ship for all moneys paid in advance and not ■earned.”

The master of the steamship refused" to deliver the merchandise to the plaintiffs until he should be paid $1,433.53, which he claimed was due to the owners from the charterers of the steamer, and threatened that if the sum was not paid he would file a libel against the cargo to enforce the lien of the vessel and owners thereon. The master, although appointed by the owners, was, by the terms of the sub-charter, to be under the orders and directions •of the sub-charterers.

On November 18, 1891, a libel was filed by the master against the said merchandise. The goods were bonded by the plaintiffs, and on April 5, 1893, a judgment was rendered by the United ■States district court in the suit for $1,652.95. The defendants had notice of the litigation, "and were afforded an opportunity to defend plaintiffs therein, but took no part in such defense. The reasonable value of the services rendered in the legal proceedings, together with disbursements incurred in the defense of the suit, amounted to $388.74, and this sum was paid by the plaintiffs.

The judgment-roll in the admiralty proceeding was put in evidence, from which it appeared that the master had filed the libel before referred to.; that the plaintiffs intervened, claimed the cargo and gave security for the samé and costs of the suit; that, they put in answer denying that the ship had any lien upon the merchandise for the unpaid balance of the charter money; that a decree was rendered in favor of the libellants for $1,652.95, which condemned the cargo and the claimants to pay the same, and that the plaintiffs paid the amount of the decree. Of all of which the defendants had notice.

It is clear that the plaintiffs owed nothing to the defendants and were under no contractual obligation to them. Yet by force of process of law and the circumstances related, they were compelled to pay a debt of the defendants in order to obtain their cargo. Undoubtedly, where the plaintiff shows that he, either by compulsion of law or to relieve himself from liability, or to save himself from damage, has paid money which the defendant ought to have paid, the count for money paid to and for the defendant’s use will be supported. 2 Greenl Ev. § 114.

This rule has been applied in a great variety of cases. In Wells v. Porter, 7 Wend. 119, plaintiff, to redeem his property from a distress for rent, paid rent for which defendants were liable. Held, that plaintiff could recover the money thus paid. In Legeman v. Kloppenburg, 2 E. D. Smith, 126, the court said that the same rule had been frequently applied to payments by an under-tenant of rent or other charges due to the superior landlord. Grissell v. Robinson, 3 Bing. N. C. 10, applied the same rule to the payment by plaintiff of an attorney’s bill for which defendant was liable. In Massachusetts the rule has been applied in mechanic’s lien cases, where the owner of property has been compelled to pay liens'upon it, for which a contractor was liable to parties furnish-, ing material and labor. Hale v. Huse, 10 Gray, 99; Nichols v. Bucknam, 117 Mass. 488. In the case last cited the court say (p. 491): “The plaintiff, in order to save his property from being sold on legal process; lias been compelled to pay a debt which was really due from the defendant. Under such circumstances the law implies request on the defendant’s part, and a promise to repay ; and the plaintiff has the same right of action as if he had paid the money at defendant’s express request.’’ See, also, Exall v. Partridge. 8 Tenn. Rep. 308. And the same principle has been applied in Dodge v. Zimmer, 110 N. Y. 43; 16 St. Rep. 657; R. R. Co. v. R. R. Co., 10 Law Rep. Ann. 562; Land Co. v. Witmer Co., 29 Pac. Rep. 500, and Bank v. Smiley, 27 Me. 225. A somewhat similar rule prevails where a party in order to obtain his goods is obliged to pay more than is due upon them, in which case recoveries are allowed on the theory of duress of goods. Briggs v. Boyd, 56 N. Y. 289; 4 Wait’s Act, & Del 488; Cow. Treat. § 307, subd. 6; id. § 313; 6 Am. & Eng. Encl. of L. 60, 74.

No contractual relation is necessary as a foundation for the action. It is because there is no express contract that the law raises an implied promise to pay the amount of the claim. Even in actions to recover money which a plaintiff has been obliged to pay to make good an injury caused by defendant’s negligence, the right of recovery is sustained, though there be no contractual relation between the parties. Oceanic S. Nav. Co. v. Compania, 134 N. Y. 461, 467; 47 St. Rep. 472; City of Rochester v. Montgomery, 72 N. Y. 65; Village of Port Jervis v. First Nat. Bank, 96 N. Y. 550; Trustees of Vil. of Canandaigua v. Foster, 62 St. Rep. 639; City of Rochester v. Campbell, 123 N. Y. 405; 34 St. Rep. 77. Upon the theory of these cases, the plaintiffs became subrogated to the cause of action which the owners of the vessel originally had against the defendants as charterters. City v. Campbell, supra. The judgment in the admiralty court proves that the steamship had a lien upon the cargo laden on board for the unpaid balance of charter hire due from the defendants. The defendants had notice of that suit, and an opportunity to defend, and if they had any defense they should have set it up in that case. Where one stands in the position of indemnitor to others who are also immediately liable to a third party, the indemnitor’s liability may be fixed and determined in the action brought against his indemnitee by notice of the pendency of such action and an opportunity af forded him to defend it. Village of Port Jervis v. First Nat. Bank 96 N. Y. 550, 557; City of Rochester v. Montgomery, 72 N. Y. 65; City v. Robbins, 2 Black, 418; Seneca Falls v. Zalinski, 8 Hun, 571.

The appellants urge that they could not have.set up a defense in the suit against the cargo, because in admiralty a counterclaim cannot be pleaded. But any person interested in the subject matter of the suit who has a counterclaim against the libellant can file a cross-bill. This is strictly analogous to the cross-bill under the old equity practice, and the court makes a final decree upon both.

The defendants also urge that there is no evidence in the case showing that the plaintiffs paid the freight due from them to the Honduras & Central American Steamship Oampany. But the law will presume, in the absence of proof to the contrary, that this freight was paid, and presumption is proof. The law presumes that every person is solvent, pays his just debts and obligations, and performs all his contracts; and the burden of negativing this presumption is on him who. alleges the contrary. Thus, if the Honduras & Central American Steamship Company had brought an action for the freight, they could have recovered only on an allegation of breach, i. e., non-payment, which would have to be affirmatively alleged. Lent v. N. Y. & Mass. R. R. Co., 130 N. Y. 504; 42 St. Rep. 592.

Assuming, therefore, as we must, that the plaintiffs have paid the entire freight moneys to the Honduras & Central American Steamship Company, as called for by the bills of lading, the plaintiffs either have a remedy against the defendants for the debt of theirs which plaintiffs were forced by operation- of law and the circumstances of the case.to pay or we have the inequitable result that the defendants, without any voluntary act of the plaintiffs and against their will, have obtained the benefit of $1,438.53 of their money. The plaintiffs have a legal right to recover from the defendants the amount paid, including the costs of defense to which the plaintiffs were put by the defendants’ default. Dubois v. Hermance, 56 N. Y. 673; Oceanic S. Nav. Co. v. Compania, 134 N. Y. 461; 47 St. Rep. 742.

The action is founded on equitable principles, somewhat upon the theory which holds that money in the hands of one person to which another is equitably entitled ex aliguo et bona may be recovered in a common law' action for money had and received, Roberts v. Ely, 113 N. Y. 128; 22 St. Rep. 185; Chapman v. Forbes, 123 N. Y. 532; 34 St. Rep. 351, and this principle seems to pervade all the cases.

The direction to find for the plaintiff was right, and the judgment appealed from must be affirmed, with costs.

Freedman, P. J., concurs.


text:
    Richard T. Lassiter, App’lt, v. William F. Hoes et al., Resp’ts.

      (New York Superior Court, General Term,

      Filed January 7, 1895.)

    1. Fradulent conveyances—Husband and wife.
    A transfer, made by an insolvent husband to his wife in good faith and in consideration of an honest debt due her) is valid as to other creditors.
    2. Same—Relatives.
    Transfers to relatives are not against the policy of the law.
    Appeal by plaintiff from judgment rendered in favor of defendants at' equity term.

      W. B. Wilder, for app’lt; C. D. Van Name, for resp’ts.
   McAdam, J.

The action was in equity to set aside transfers of certain stock made by the defendant William F. Hoes, a judgment debtor of the plaintiff, to Edith Hyde Hoes, his wife.

It appeared upon the trial that at the time of the transfers the judgment debtor was insolvent; that he was indebted to his wife in an amount exceeding the value of the stock transferred; and the trial judge found on evidence which justified the finding that the judgment debar in good faith made the transfers to his wife as payments on account of his indebtedness to her. In view of this finding the sole question of law presented is, whether a transfer by an insolvent husband to his wife, in consideration of an honest debt due her, is valid as to other creditors. Such a transfer was sustained in Doty v. Clint, 11 St Rep. 87; aff’d, 121 N. Y. 654; 30 St. Rep. 1012.

A debtor, pending an action to recover the debt, may convey property in payment of another indebtedness which he deems entitled to a preference. Goetting v. Biehler, 21 Week. Dig. 100; Williams v. Whedon, 109 N. Y. 333; 15 St. Rep. 265; aff’g, 39 Hun, 98; Stanley v. Nat. Union Bank, 115 N. Y. 122; 23 St. Rep. 966; Talcott v. Harder, 119 N. Y. 536; 30 St. Rep. 90. A transfer by an insolvent to a single creditor of all the property to be applied to the payment of a bona fide debt, is valid. Tompkins v. Hunter, 24 N. Y. Supp. 8; Manning v. Beck, 129 N. Y. 1; 41 St. Rep. 199. A bill'of sale given at a fair price for a just debt by a son to his father was held valid against an attaching creditor. Lindsley v. Van Cortlandt, 67 Hun, 145; 51 St. Rep. 741.

Transfers to relatives are not against the policy of the law. The supreme court of the United States, in Gottlieb v. Thatcher, 14 Nat Rep. System, at p. 322, said: “The relationship of the parties does not, of and in itself, cast suspicion on the transaction, or create such a prima facie presumption against its validity as would require the court to hold it to be invalid without proof that there was fraud on the part of the grantor, participated in by the grantee. This proposition is so well settled that authorities need not be cited in its support."

The plaintiff’s attorney criticises the finding of the transfers in good faith as not being sufficiently supported by evidence. But the intention with which the acts were done was one of fact for the trial judge sitting as a jury to determine (Bam on Facts, Townshend’s Notes, 275), and where an act is susceptible of an honest or dishonest interpretation, the rule is to prefer the former, and the drawing of inferences from facts is always the province of the trial court.

The judgment appealed from must, therefore, be affirmed, with costs. Gildersleeve, J., concurs.


text:
    Moses Lindheim, App’lt, v. Henry Duys, Jr., Resp’t

      (New York Superior Court, General Term,

      Filed January 7, 1895.)

    1. Appeal—Charge—Exceptions.
    An exception to a specific proposition or particular remark by the judge in his charge will not be availing to the appellant, unless it is so taken as to point out clearly and unmistakably the proposition or remark to which it is intended to apply, and leave no doubt as to the real character of the exception.
    2. Same.
    A party cannot make an exception to a charge or instruction available on appeal, on the ground that it was not sufficiently full or explicit, unless he requested the proper complementary instruction, and his request was refused.
    3. Evidence—Documentary—Letters.
    A letter written by a party in reply to one from his adversary, which is already in evidence, is admissible in his own favor.
    4. Trial—Reopening case.
    "Whether a party shall be permitted to reopen his case, is in the exercise of the discretion of the trial judge.
    Appeal from a judgment entered on a verdict in favor of the defendant, and from order denying plaintiff’s motion for a new trial.

      E. J. Myers, for app’lt; Foster, Hotaling & Klenke, for resp’t.
   McAdam, J.

The action was to recover $1,163.25 damages for breach of warranty upon the sale of tobacco, that it was of “perfect burn,” which is a trade term signifying that the tobacco would burn perfectly white or grayish-white—a result considered material to a purchase.

The answer denied the alleged warranty, and set up a counterclaim for $642.84, part of the unpaid purchase price of the tobacco.

The jury by their verdict found there was no warranty, and, as a necessary consequence, that the defendant was entitled to his, counterclaim, about which there was no dispute.

The plaintiff assigns as error :

First: That the trial judge at the request of the defendant charged the jury “ that if they believed that the plaintiff had sworn falsely in any one material fact, they might disregard his entire testimony.” The criticism is in omitting the word 11 wilfully ” preceding the word “sworn.” If the trial judge had declined the request for the omission of that word, it would not have been error, Pease v. Smith, 61 N. Y. 477, for the reason that the instruction was not shaped in such a form as required the judge to give it. Yet the omission from the charge as made was technical, and would, no doubt, have been supplied if the plaintiff had made his exception sufficiently definite to have directed attention to it. ° The instruction was substantially correct, though technically incomplete. If the plaintiff regarded the omission as of any moment he could have had it supplied at the time, and ought to have called attention to it then in some form, instead of springing the technicality now. Langley v. Wadsworth, 99 N. Y. 61.
The rule is, that an exception to a specific proposition, or to a particular remark made by a judge in his charge to a jury, will not be availing to the appellant unless it is so taken as to clearly and unmistakably point out the proposition or remark to which it is intended to apply, and leave no doubt as to the real character of the exception. McGinley v. U. S. Life Ins. Co., 77 N. Y. 495; Taylor v. Ketchum, 5 Robt. 507, 520; 35 How. Pr. 289; Jones v. Osgood, 6 N. Y. 233, 235. Another rule is, that a party cannot make an exception to a charge or instruction available on appeal, on the ground that it was not sufficiently full or explicit, unless he requested the proper complementary instruction, and his request was refused. 2 Thompson on Trials, § 2396.
Second: That the trial judge admitted in evidence a letter written by the defendant to the plaintiff. This objection might have had weight were it not for the fact that the letter objected to was in answer to one written by the plaintiff, and already in evidence. The two letters completed the correspondence between the parties as to the subject-matter of the litigation; the one was made competent by the other. Howe v. Woolsey, 7 Misc. 33; 57 St. Rep. 507; Lippus v. Columbus Watch Co., 36 St. Rep. 629; 13 N. Y. Supp. 319.
Third: That the plaintiff was not allowed to recall certain witnesses in rebuttal' of the contradictions made by the defendant This was an apparent effort to reopen the plaintiff’s case, and the trial judge in the exercise of his discretion had the right to exclude the evidence offered. Carradine v. Hotchkiss, 120 N. Y. 608; 31 St. Rep. 951; Marshall v. Davies, 78 N. Y. 414; Cow. Treat. § 1503; Baylies Tr. Pr. 180; Trimble v. Stilwell, 4 E. D. Smith R. 512; Caldwell v. N. J. Steamboat Co., 47 N. Y. at p. 294.

The other objections urged are entirely without merit, and in no manner affected the result. The plaintiffs case hinged solely upon the existence of a warranty which survived the sale. The jury found there was no such warranty. This disposed of the main issue in the case, and practically ended the controversey.

The evidence sufficiently sustains the verdict and the judgment entered thereon, and the order denying the motion for a new trial must be affirmed, with costs.

Freedman", P. J., and G-ildersleeve, J., concur.


text:
    John McClave, App’lt, v. John Gibb, Resp’t.

      (New York Superior Court, General Term,,

      Piled January 7, 1895.)

    1. Appeal—Findings.
    Where the answer does not put in issue the facts upon which the trial judge made his findings and conclusions, they are unauthorized and erroneous.
    2. Pleadings—Denial.
    A conjunctive denial to an allegation, stating several facts conjunctively, only denies the conjunction, and is not a denial of the separate existence of either fact.
    3. Same—Waiver.
    In such case, the plaintiff, by proceeding to trial, does not waive his right to a proper construction thereof according to legal principles.
    Appeal by the plaintiff from so much of a judgment entered, upon a decision of the court at equity term as dismissed the complaint.
    Parsons, Shepard & Ogden,' for app’lt; Wm. B. Ellison, for resp’t.
   McAdam, J.

The action was in equity upon two policies of insurance issued by the association known as the American Lloyds upon the plaintiff’s property at Nos. 602 to 610 West 22d street, in this city, insuring him in the sum of $6,000 against loss or damage by fire. The relief asked was that an award of $2,185, made by appraisers appointed after the fire to fix the sound value of the property and the amount of damage to it by the fire, be set aside as having been improperly procured by the insurer; and, this being out of the way, that the plaintiff recover the amount of his actual loss upon the policies, to wit, $6,000.

On April 12th, 1893, the building insured was substantially destroyed by fire. On April 29, 1893, a formal agreement to appraise was executed by the parties ; and on May 4th, 1893, the umpire and the appraiser nominated by the defendant made an award, fixing the sound value of the property at $5,500, and the damage by the fire at $2,185. The appraiser nominated by the plaintiff refused to join in the award, and the plaintiff refused to accept it. The complaint alleged, and the court found, that whereas the policy required that the appraiser should be competent and disinterested, the appraiser selected by the defendant was not disinterested, but was biased and prejudiced in favor of the defendant and his associates ; that it was in ignorance of this that the plaintiff executed the agreement appointing him; that the plaintiff had no notice of the time and place of the making of the appraisement or of the- meeting of the appraisers, and was not present at any appraisement; that no opportunity was afforded him to offer evidence or to make representations or explanations relative to the nature of the property destroyed, or the amount of the loss ; that the appraiser nominated by the defendant did not, on the appraisal, act as a disinterested appraiser and did not seek to obtain an award which represented the actual and honest loss sustained by the plaintiff by the fire, but acted in a way that was biased and intended to be for defendant’s interest; that this appraiser and the umpire refused to consider evidence, though competent, pertinent, material and duly offered in season, of the nature and value of certain of the property of the plaintiff covered by the insurance, which had been destroyed by the fire; and that they made their award in ignorance of the nature or value of such property, and without including in the award any allowance for it.

In contravention of the award of the appraisers fixing the damage at $2,185, the court found that in fact it was $5,000. As a conclusion of law, the court found “ that the award should be set aside and held for naught,” and the judgment does accordingly adj udge and decree “ that the award dated the 4th day of May, 1893, be and the same is hereby set aside and held for naught.”

The judgment is rather unique in that, although granting to the plaintiff all the relief to obtain which it was necessary for him to go into a court of equity, it adjudges and decrees “that the plaintiff’s complaint herein be dismissed.”

The decision was based upon findings of fact, as follows :

Twenty-second: That the notice of the loss by the fire in question given-by the plaintiff after the fire, was not immediate or due notice. '
Twenty-third: That the plaintiff did not, after said fire, make a complete inventory of the property referred to in said policies, stating the quantity and cost of each article, and the amount claimed thereon.
Twenty-fourth: That the plaintiff did not, within sixty days after the occurrence of said fire, render to the said attorney a statement signed and sworn to by the. plaintiff, stating the purp >ses for which the building in said policies described was occupied at the time of the said fire, and the time so to do was not extended in writing by the said attorney for the defendant and his said associates.” And upon the following conclusions of law:
Second: That the plaintiff was bound, on the occurrence of the fire in question, to give immediate notice cf any loss caused thereby as a condition precedent to the commencement of this action.
Third: That the plaintiff was bound, upon the occurrence of the fire in question, to make a complete inventory of the property, stating the quantity and cost of each article, and the amount claimed thereon, as a condition precedent to' the commencement' of this action.
Fourth : That the plaintiff was not entitled to maintain this action until the expiration of sixty days after the defendant and his associates had received satisfactory proofs of loss.
“Fifth: That the plaintiff was not entitled to maintain this action until the expiration of sixty days after he had rendered a statement signed and sworn to by him stating the purpose for which the building in said policies described was occupied at the time of said fire.”

To those findings and conclusions the plaintiff duly excepted.

The complaint, pursuant to § 533 of the Code, alleges that,

“The plaintiff duly performed all the conditions of said policies of insurance on his part,” and then specifically alleges, that plaintiff, “ more than sixty days before the commencement of this action.> to-wit, on the 10th day of June, 1893, at the City of New York, presented to the attorney of the defendant, pursuant to the terms of said policies, due notice and proofs of the fire and loss aforesaid.”

This was met by the answer only, as follows:

“ The defendant denies, upon information and belief, that the plaintiff duly performed all the conditions of-each of the said policies of insurance on his part. He denies, upon information and belief, that more than sixty days before the commencement of this action, or at any time, the plaintiff presented to the attorney of the defendant, pursuant to the terms of said policies, due notice and proofs of the fire and loss aforesaid." The first question presented is whether this portion of the answer put in issue the facts upon which the trial judge made his findings and conclusions before referred to, for if it did not, such findings and conclusions must be held to be unauthorized and erroneous.

A fact alleged and not denied is admitted (Code, § 522), and in order to amount to a denial, the traverse must be neither too large nor too narrow. A traverse may be too large, by being taken in the conjunctive instead of the disjunctive, or by involving in the issue, quantity, time, place or other circumstances which, though forming part of the .allegations' traversed, are immaterial to the merits of the case. Moak’s Van Santvoord’s Plead. 814; Bhs¡? Code Plead., § 332, note. To an allegation stating several facts conjunctively, a conjunctive denial only denies, the conjunction, and is not a denial of the separate existence of either fact. Abbott’s Trial Brief on Plead., §§ 590, 587, 586. In 2 Tillinghast and Shearman’s Pr. 153, it is said: “ A denial of a series of allegations must be in the disjunctive—that is, it must controvert them viewed separately, and not merely deny them collectively.” To substantially the same effect, sec Young v. Catlett, 6 Duer, 437; Hopkins v. Everett, 6 How. Pr. 159; Gould’s Plead. 293; Salinger v. Lush, 7 How. Pr. 430; Davison v. Powell, 16 id. 467; Shearman v. N. Y. Central Mills, 1 Abb. Pr. 187; Baker v. Bailey, 16 Barb. 55; Kay v. Whittaker, 44 N. Y. 565; Dimon v. Dunn, 15 N. Y. 498: Fleischmann v. Stern, 90 N. Y. 110; Reed v. Hayt, 51 N. Y. Supr. Ct. R. 121; aff’d, 109 N. Y. 659; 17 St. Rep. 137; 2 Wait’s Pr. 421; Stuber v. McEntee, 142 N. Y. 206; 58 St. Rep. 455. By these negatives pregnant, the only issue tendered was that one of the conditions of one of the policies was not performed, but which condition or under which policy does not appear, hence the tender is insufficient to create an issue. Such a denial does not meet the requirements of prescribed practice and is unauthorized by our system of pleading. A negative pregnant is one of those faults of pleading which fall within the rule that, pleadings must not be ambiguous or doubtful in meaning. Steph. on Plead., 4th ed., 408,. 409.

This being our view of the pleadings, and the plaintiff, by proceeding to trial, not having waived his right to a proper construction thereof according to the legal principles stated, it becomes immaterial whether there was or was not a waiver having the force of an estoppel, which precluded the defendant from questioning the timely service of the preliminary notices and proofs, and the discussion of this matter therefore becomes unnecessary.

It is sufficient that there was no issue which justified the findings and conclusions excepted to, and the judgment of dismissal founded thereon must therefore be reversed, and a new trial ordered, with costs-to the appellant to abide the event.

Freedman, P. J., and Gtldersleeve, J., concur.


author: Mo Adam, J.

text:
    John McClave, App’lt, v. John Gibb, Resp’t.

      (New York Superior' Court, General Term,

      Filed January 7, 1895.)

    Sew trial—Surprise.
    Where the matters, in respect to which the party claims to have been surprised, are not material, a new trial will not be granted.
    Appeal by plaintiff from order made at special term, denying a motion made for a new trial on the ground of surprise.

      Parsons, Shepard & Ogden, for app’lt; William B. Ellison, for resp’t.
   Mo Adam, J.

Under the pleadings” as construed by us, on the separate appeal taken from the judgment dismissing the complaint, the matters in respect to which the plaintiff claims to have been surprised, were not material, and there was, therefore, no legal reason why a new trial should have been granted, and for that reason, the order denying the motion, must be affirmed, with costs.

Freedman, P. J., and Gildersleeve, J., concur.


text:
    Bridget Nealon, Resp’t, v. Mortimer A. Frisbie, App’lt.

      (New York Superior Court, General Term,

      Filed January 7, 1895.)

    1. Slander—Actionable per se.
    ' The words “a God-damned Irish bitch,” applied to a female, though opprobious, do not necessarily impute want of chastity, and are not necessarily actionable per se.

    2. Same—Innuendo.
    Where words are not actionable per se, and do not on their face convey a slanderous imputation, there must be a collegium connecting it with the words spoken and an innuendo showing the injurious sense in which they were uttered.
    The action is for slander, and the complaint in these words: “ That on or about the 30th day of November, 1893, at the premises No. 228 West Fifty-ninth street, in the city of New York, the •defendant in the presence and hearing of a number of persons, maliciously spoke concerning the plaintiff the false and defamatory words following, to wit: That he called the plaintiff a Goddamned Irish bitch, whereby the plaintiff was injured in her reputation to her damage the sum of $5,000.”

      The defendant demurred, on the ground that the complaint did not state,, facts sufficient to constitute a cause of action. The court below overruled the demurrer, and from the interlocutory-judgment entered thereon the defendant appeals.

      J. M. Ferguson, for app’lt; P. A. McManus, for resp’t.
   McAdam, J.

The words charged, though opprobious, do not necessarily impute want of chastity, and are not necessarily actionable perse. Phillips v. Baldwin, 8 Week. Dig. 194; Schurick v. Kollman, 50 Ind. 336; K- v. H-, 20 Wis. 239; and see, Anonymous, 60 N. Y. 262; McMahon v. Hallock, 15 St. Rep. 828. Where words are not actionable per se, and do not on their face convey a slanderous imputation, there must be a preparatory statement of some extrinsic matter, a colloquim connecting it with the words spoken, and an innuendo showing the injurious sense in which they were uttered. 5 Wait’s Act. and Def. 744. It is the office of an innuendo to define the defamatory meaning which the plaintiff sets on the words; to show how they came to have that defamatory meaning; and also to show how they relate to the plaintiff, whenever that is not clear on the face of them. Odgers Slander, 100, 101.

If the defendant intended by the use of the words in question to impute want of chastity in the plaintiff, and the persons who heard the language understood it in that sense, the fact should have been alleged so as to exempt the complaint from uncertainty on demurrer. Vide, supra; Moak’s Van Santv. Pl. 428; Rundell v. Butler, 7 Barb. 260; Kennedy v. Gifford, 19 Wend. 296; Wallace v. Bennett, 1 Abb. N. C. 478. If the sense in which the words were used was disputed or in doubt, the intention conveyed and intended to be conveyed would have gone to the jnry for determination. Hayes v. Ball, 72 N. Y. 418; Clapp v. Devlin, 35 N. Y. Supr. 170; Schoonovan v. Beach, 23 Week. Dig. 348; Upton v. Upton, 51 Hun, 184; 21 St. Rep. 559; Vaus v. Middlebrook, 3 St. Rep. 277, and kindred cases.

The difficulty with the pleading here is, that standing alone, unaided by innuendo making the intention certain, the words charged must receive their ordinary import and meaning, and, so considered, they are not actionable per se, and. there is nothing to send to a j ury for determination.

For these reasons it was error to overrule the demurrer. It follows that the interlocutory judgment must be reversed and the demurrer sustained, with liberty, however, to the plaintiff to amend her complaint, on payment, within twenty days, of the costs of the demurrer and of this appeal.

Freedman, P. J., concurs,


text:
    John M. Schmidt, Resp’t, v. The Manhattan Railway Company, App'lt.

      (Sew York Superior Court, General Term,

      Filed January 7, 1895.)

    Damages—Elevated bailwat.
    In an action by an abutting owner to enjoin the operation of an elevated railway in front of his property, an advance in fee value of the plaintiff’s said premises, not occasioned by such road but by the general growth of the city in population, by the demand for real estate for business and dwelling purposes, and by causes other than said road, is hot to be regarded in arriving at the amount of damage.
    Appeal by defendant from judgment rendered in favor of plaint! ff at equity .term.

      Davies, Short & Townsend (K A. Tuttle, of counsel), for app’ít• W. W. Badger, for resp’t.
   McAdam, J.

The suit is by an abutting owner to enjoin the running of the defendant’s elevated railroad- in front of the property known as No. 544 Ninth avenue, on the northeast corner of said avenue and Fortieth street, in the city of New York, upon the theory of continuing trespass. Injunctive relief was granted unless the defendant, within a time specified, paid $2,000 for a release of the easement. The judgment also awarded the'plaintiff the sum of $1,068.66 for rental damages to the 'property from January 31, 1887, to March 14, 1894, the date of the trial.

The award so made of fee and rental damages is fully warranted by the evidence, and it sufficiently appears that such damages were actually sustained over and above all benefits resulting from the operation of the defendant’s road. They were purely consequential, and attributable exclusively to the defendant.

The trial judge found, at the defendant’s request, that the rent, of the business portion of the premises increased over the highest prices paid in 1873 (request 17); that the fee value is several thousand dollars more than in 1873 (request 19); and that the proximity of the station has increased the value of property in the locality (requests 27, 28). The defendant urges that in view of these findings the judgment cannot be sustained. But these findings are to be considered with reference to the other findings, from which it appears that these benefits were considered in mitigation, and in one of which„(thq 19th) it is determined: “ That after the year 1883 an increase in the fee value of the plaintiff’s premises took place, owing to the increase in population and general growth of the city. At the same time fee values of property in other streets and avenues in the vicinity of the plaintiff’s said premises, where there is no elevated railroad, increased very much more. That the advance in fee value of the plaintiff’s said premises and in property on other streets and avenues was not caused by the elevated railroad, but by the general growth of the city in population and by the demand for real estate for business and dwelling purposes, and by causes other than said elevated railroad.”

Other findings are of similar import. The latter portion of the’twentieth finding is that, “but for the construction, maintenance and operation of the elevated railroad in front of the plaintiff’s premises, the plaintiff’s said premises would have shared more fully in the general increase in the fee value of real estate, and would now be worth more than they are at the present time.”

The findings must, be construed in their entirety, one reflecting its light upon the other. There is no inconsistency between them, for they harmonize as a whole. In short, the record shows this to be one of the ordinary elevated railroad cases, in which there is the usual conflict of evidence, and that credited and acted upon by the trial judge in this instance fully sustains his findings and conclusions. The case seems to have been disposed of according to the settled rules of law governing the award of damages to abutting owners.

We find no error, and the judgment appealed from must be affirmed, with costs.

Freedman, P. J., concurs.


text:
    Mary Walsh, by Guardian, etc., Resp’t, v. The Commercial Steam Laundry Company (Limited), App’lt.

      (New York Superior Court, General Term,

      Filed January 7, 1895.)

    1. Master and servant—Appliances.
    It is not the master’s duty to repair defects arising in the daily use of the appliance for which proper and suitable materials are supplied, and which may be easily remedied by the workmen and are not of a permanent character or requiring the help of skilled mechanics.
    2. Same.
    He is bound to supply for the work only such appliances as are reasonably safe.
    3. Same—Risk.
    If the danger is as apparent to the employe as to the master, it becomes one of the ordinary risks of the employment, which the servant must be held to have assumed.
    4. Same.
    Where the defect is one liable to appear at any time, is obvious, easily remedied by the employe, he cannot shift the responsibility for its existence, or the failure to remove it, upon the master.
    Appeal by defendant from judgment entered on verdict of jury in favor of plaintiff, and from an order denying motion for a new trial.
    . 0. G. Nadal and Thomas S. Moore, for app’lt; F. B. Taylor and P. B. Towne, for resp’t.
   McAdam, J.

The action was to recover damages for personal injuries sustained by the plaintiff, an employe of the defendant, while working at an ironing machine or mangle operated by steam, the plaintiff’s right hand and arm being caught and crushed between the cylinder and the iron or steam chest above it. The machine consisted of a lower cylinder and an upper one, each about six feet long and eighteen inches in diameter, the lower being covered with thick felt and canvas, and the upper being of iron, which was heated by a steam connection. As those revolved, the goods passing between them were ironed by the pressure. On one side were two girls who feed the goods in, and on the other were two more girls who received the goods as they came out

The plaintiff, who was in her seventeenth year at the time, had "been employed some six months in the laundry, and had worked at least six weeks feeding the machine when she was hurt. The canvass which covered the lower cylinder was fastened at the sides by springs, but in the middle it stretched from the dampness and pressure, so that frequently it became wrinkled. These wrinkles made the surface of the canvass rough, and goods passed through were not ironed smoothly. The stretched end of the canvas where it was wrinkled was then cut off; this occurred once or twice a week; or, if the wrinkling was slight, the pressure was increased, so that the wrinkles were smoothed.out between the cylinders.

It does not appear that there was anything inherently dangerous about the machine itself, and the only complaint made is that the linen which surrounded the cylinder wrinkled, and the plaintiff’s hand was in consequence drawn into the machine whereby she suffered the injury for which she sued. It is true there was a tendency for the canvas to become wrinkled. Mr. Roe, the defendant’s superintendent, candidly states that he thought this machine wrinkled a little sooner than the other machines owned by the defendant, because, as he explains, the cylinder was more flexible; but it was no more dangerous than the others. The wrinkling on the machines was caused by the operation of ironing. The result was not a desirable one, because the mangle did not iron well when wrinkled. It was expected that the canvas on the cylinder would stretch and wrinkle, and this occurred from time to time in the course of the work, and the remedy was to tighten the pressure, or, when the linen was badly wrinkled, to cut it off. The gills themselves tightened the pressure when they desired, and usually the canvass was cut off once or twice a week.

It is evident, therefore, that the wrinkling was a detail in' the-performance of the work, to remedy which was part of the servant’s duty. Cullen v. Norton, 126 N. Y. 1; 36 St. Rep. 359; Cregan v. Marston, 126 N. Y. 568; 38 St. Rep. 428; Hogan v. Smith, 125 N.7. 774; 35 St. Rep. 870. The court, in Cregan v. Marston, supra, said : “It is undoubtedly true, as we have often said, that it is the duty of the master to keep a machine or appliance in order, and that he cannot delegate the duty so as to escape responsibih ity. But that is a general rule and has its qualifications and limitations. One of those is, that it is not the master’s duty to repair defects arising in the daily use of the appliance for which proper and suitable materials are supplied, and which may be easily remedied by the workman, and are not of a permanent character or requiring the help of skilled mechanics.”

Suppose the master had sent for an expert mechanic or machinist to repair this machine, what would have been the result? Not the exercise of the skill belonging to an expert, but a suggestion that the employe smooth down the wrinkle, or, if too large, to cut it off. The defect as well as the remedy for it was open and apparent; so that anyone accustomed to the machine could have seen the defect and known how to remedy it, without the aid of the master or of anyone possessing a knowledge of the technics of machinery.

Again, the master is not under an obligation under all circumstances to make use of the safest known appliances and instruments; nor is he responsible for failure to discard those which are not such and to supply their place with safer ones. 2 Thomp. on Neg. 983; Burke v. Witherbee, 98 N. Y. 562; Probst v. Delamater, 100 N. Y. 266; Marsh v. Chickering, 101 N. Y. 396; Hickey v. Taaffe, 105 N. Y. 26; 6 St. Rep. 426; Stringham v. Stewart, 111 N. Y. 188; 19 St. Rep. 621; Dobbins v. Brown, 119 N. Y. 188; 28 St. Rep. 957; Kern v. De Castro & D. S. Refining Co., 125 N. Y. 50; 34 St. Rep. 363; Carlson v. Phenix Bridge Co., 132 N. Y. 273; 43 St. Rep. 942; Harley v. Buffalo Car Mfg. Co., 142 N. Y. 31; 58 St. Rep. 437. Moreover, a master is not bound to furnish the best known appliances for the work, for he discharges his full duty when he furnishes those which are reasonably safe (Id.); and if the danger be as apparent to the employe as to the master it becomes one of the ordinary risks of the employment which the servant must be held to have assumed. Gibson v. Erie R. R. Co., 63 N. Y. 449; Shaw v. Sheldon, 103 N. Y. 667; 3 St. Rep. 679; Sweeney v. Berlin & Jones Env. Co., 101 N. Y. 520; Hickey v. Taaffe, supra; Appel v. Buff., N. Y. & P. R. R. Co., 111 N. Y. 550; 20 St. Rep. 90; McQuigan v. D., L. & W. R. R. Co., 122 N. Y. 618; 34 St. Rep. 618; Reiss v. N. Y. Steam Co., 128 N. Y. 103; 38 St. Rep. 842; Davidson v. Cornell. 132 N. Y. 228; 43 St. Rep. 887; Ogley v. Miles, 139 N. Y. 458; 54 St. Rep. 711; Crown v. Orr, 140 N. Y. 450; 55 St. Rep. 834; Kaye v. Rob Roy H. Co., 51 Hun, 519; 21 St. Rep. 668; Ballard v. Hitchcock Mfg. Co., 51 Hun, 188; 21 St. Rep. 548; Carlson v. Phenix Bridge Co., supra.

The most frequent ground on which damages have been given against masters is where the danger was latent, and not discoverable by the servant by the exercise of ordinary care and skill in his department of service, but either known to the master or such as by the exercise of reasonable care he ought to have known. 2 Thomp. on Reg. 979.

Some stress is laid on the fact that attention was drawn to the wrinkles the day before the accident, and it is said a complaint was made that the machine wrinkled. It appears that the forewoman found fault because the work was not properly ironed, and as an excuse it was said that the canvas was wrinkled. Mr. Roe was called to obviate this, and he tightened the pressure. It is said that the wrinkling continued afterwards. But the wrinkling was obvious, and if there was any danger from it, it was, as before remarked, an apparent one, and such apparent risks must, under the authorities, be held to have been assumed by the employe.

Éoe was a co-servant of the plaintiff. But assuming he was an alter ego, standing in place of the master, the legal result is not changed; for the master was not bound to remain by the employes while performing their labor for the purpose of keeping out the ever-recurring wrinkles, which they were as capable of remedying as anyone else.

If there had been any defect in the machinery itself, or if the danger had been latent, and the master had assumed to repair or obviate it, and the employe, supposing that the defect had been repaired and the danger removed, had continued in reliance on this belief to perform labor, a different question might have arisen. But where the defect was one liable to appear at any time, was obvious, easily remedied by the employe herself, she cannot shift the responsibilty for its existence or the failure to remove it upon the master. Employes must, in the nature of things, be considered to have assumed the risks common to their employment, particularly those arising in the dailjl use of their appliances, and-the accident which befell the plaintiff resulted from one of those risks. Sherman & Rcdf. on Neg. §§ 184, 208.

For all that appears to the contrary, the machine furnished by the defendant was scientifically constructed, was in good order, and performed every function for which it was intended, and the injury which resulted to the plaintiff occurred from a defect arising in its daily use, and of a temporary character which any employe was capable of remedying. The plaintiff had been in the defendant’s employ sufficiently long to have become familiar with the machine in all its details; she was familiar with the very defects of which' she now complains, and evidently assumed the risks resulting from them as incidents to her employment. Hickey v. Taaffe, supra; Buckley v. Gutta Percha & R. Mfg. Co., 113 N. Y. 540; 23 St. Rep. 618; Ogley v. Miles, supra; Crown v. Orr, supra.

Under these circumstances we think there was nothing to go to the jury, and that the defendants motion to dismiss the complaint should have been granted, and the exception to the refusal is error for which the judgment and order appealed from must be reversed, with costs to the appellant to abide the event.

Freedman, P. J., and Gtldersleeve, J., concur.


text:
    Charles Wehle, as Executor, etc., et al., App’lts, v. The United States Mutual Accident Association, Resp’t.

      (New York Superior Court, General Term,

      Filed January 7, 1895.)

    1. Insurance—Life—Condition.
    A condition in a life insurance policy, which provides that “ any medical adviser of the association shall be permitted to examine the person or body of the insured in respect to any alleged injury or cause of death, when and as often as he requires, on behalf of the association,” cannot be extended to mean that the defendant, after burial, had the right to ex-, hume and dissect the body, “ when and as often as its medical adviser requires.” 0
    2. Same—Construction.
    Where the condition upon which the defense is based was to operate upon the contract of insurance only subsequent to the fact of a loss, it must receive a liberal and reasonable construction in favor of the beneficiaries under the contract.
    3. Same—Autopsy.
    Where the policy gives no right to an autopsy, the law will not tolerate it for experimental purposes.
    4. Same.
    In a proper case, the courts, in the interest of justice, may, it seems, compel the exhumation and examination of a body which is under the control of a plaintiff, if facts are established showing that there is a strong reason to believe that, without such examination, a fraud is likely to be accomplished, and that the defendant has exhausted every other method, known to the law, of exposing it.
    The action was upon an accident insurance policy issued to plaintiffs’ testator, Henry Wehle, whereby the defendant insured him in the sum of $10,000 against bodily injury through violent and accidental means from which death should ensue.
    The plaintiffs proved, without contradiction, that the insured met his death by accidental drowning, near Far Bockaway, September 4, 1893, and that the coroner’s jury which held the inquest upon the body returned a verdict to that effect.
    The result of the trial was by the decision of the presiding judge made to depend upon the seventh defense, which alleges that the plaintiffs violated a certain provision of the policy by refusing to give the defendant “the opportunity to examine the body of said Henry Wehle, in respect to the alleged cause of death.’' On this ground the court held with the defendant, directed a verdict in its favor, ordered that the plaintiffs’ exceptions be heard in the first instance at general term, and that entry of judgment be suspended in the meantime.
    The plaintiffs now apply for a new trial on the exceptions taken, and the defendant moves for judgment on the verdict. Code, § 1234.

      Charles Wehle and N. Myers, for pl’ffs; Peet, Smith & Murray, for def’t.
   McAdam, J.

The condition of the policy on which the defendant relies for a defense provides, that “ any medical adviser of the association shall be permitted to examine the person or body of the insured in respect to any alleged injury or cause of death, when •and as often as he requires, on behalf of the association, and in case of any post mortem examination by or on the part of insured's representatives or beneficiaries, the association shall be given opportunity to attend and participate.”

Neither the representatives nor the beneficiaries of the insured directed an autopsy, and hence the medical adviser of the defendant was not by the language or intent of the condition authorized to attend, make one, or assist in making one.

Post mortem examination means an examination of a body after death, and does not necessarily imply an autopsy, which is the examination of a dead body by dissection to ascertain the cause *of death. To dissect means to cut apart or to pieces, and the scientific mode is pointed out in Wharton & Still’s Medical J urisprudence (3rd ed., vol. 2, § 1010, IV.) The condition does not expressly authorize autopsy or dissection ; nor can the power be implied, for the act would be unlawful without the assent of the deceased or his next of kin. Penal Code, §§ 305, 308, 309. The deceased in his lifetime gave no such consent, and the next of kin were under no obligation to give their assent.

The provision which gives the defendant’s medical adviser the right to examine the body means scrutiny, investigation and inspection, while the body is unburied. The defendant in its answer admits that it received immediate notice of the death (fol. 15), and if it failed to avail itself of the privilege of examination before burial the right was waived. The deceased met his death September 4, 1893, was embalmed, and buried September 9th; so that the defendant had five days within which to assert' and exercise its right to examine the body if it had chosen to avail itself of the opportunity.

The provision cannot be extended to mean that the defendant, after burial, had the right to exhume and dissect the body, “ when and as often as he” (the medical adviser) “requires.” Even if the language of the condition could by any logical reasoning furnish argument for the existence of the right stated, it would be strictly construed against the parties on making such an unusual and unnatural claim. Kratzenstein v. Western As. Co., 116 N. Y. 54; 26 St. Rep. 453; Foot v. Ætna L. Ins. Co., 61 N. Y. 571; Hoffman v. Ætna F. Ins. Co., 32 N. Y. 405. It is settled law, that a provision entailing a forfeiture or limiting liability must receive a strict construction ; it cannot be extended by interpretation so as to include a case not clearly within the words. Griffey v. N. Y. Central Ins. Co., 100 N. Y. 417; Rann v. Home Ins. Co., 59 N. Y. 387. Moreover, the condition upon which the defense is based was to operate upon the contract of insurance only subsequent to the fact of a loss. It must, therefore, receive a liberal and reasonable construction in favor of the beneficiaries under the contract. McNally v. Phænix Ins. Co., 137 N. Y. 389; 50 St. Rep. 680; Trippe v. Provident Fund Society, 140 N. Y. 26; 55 St. Rep. 380. The condition of the policy requiring immediate notice of death and the provision for examination of the body are to be construed together, the former being in aid of the latter and. to enable the defendant to exercise whatever liberties it confers.

The defendant’s counsel frankly admitted at the trial that the right to examine asserted under the policy was to disinter the body and to dissect it by an autopsy. The defendant had no such right, and when it put its refusal to pay upon that ground it was tantamount to an admission that if the deceased met .death by drowning it had no legal defense. The plaintiffs were clearly right in their contention “that they were not required by law either to grant or refuse the permission asked for ” by the defendant. Indeed, they would have forfeited nothing if they had unequivocally refused the permission as officious.

When a body has once been buried, the law, having a proper respect for the dead, a just regard for the sensibilities of the living and for the due preservation of the public health, has jealously guarded the grave against ruthless intrusion.. Exhumation has been tolerated only upon consent of the next of loin, for substantial reasons satisfactory to the family, and which appealed to the finest instincts of their nature, or upon permission of the proper municipal authority, in extreme cases, to answer the imperative requirements of justice or some urgent public necessity which overruled the apparent impropriety and made'the act legal. Dissection is justified only where other and less objectionable means of ascertaining the cause of death fails. Here the death was evidently by drowning; the circumstances clearly demonstrated the fact, and the coroner’s jury so found. An autopsy after burial would have looked like a handing over of the body, as under suspicion, for mercenary ends, for experimental, not scientific or legal, purposes; would have been considered indecent, shocking to the sensibilities of the relatives, and an act “at the bare idea of which nature revolted.” King v. Lynn, 2 T. R. 733. It was unnecessary, and nothing that appears in the case would justify it. It would, therefore, have been sacrilege to have disturbed the dead man’s grave or mutilated his remains, which by every notion of propriety should be allowed to rest in peace.

The reason assigned by the defendant for this extraordinary demand is that by one of the conditions of the policy it is provided that the insurance “shall not extend to injuries of which there is no visible mark, or cover accidental injuries, or death resulting from or caused, directly or indirectly, wholly or in part, by hernia, fits, vertigo, somnambulism, or disease in any form,” and that it was the right of the defendant to dissect the body in expectation of finding some trace of disease which under this provision might exempt it from the payment of the loss claimed. The answer to this demand is, that the policy gives no right to the autopsy claimed, and the law will not tolerate it for experimental purposes simply to aid such a defense. No case .has been called to our attention in which any such demand was sustained.

Claflin v. Ins. Co., 110 U. S. 81; Gross v. Ins. Co., 14 Ins. L. J. 158; Ins. Co. v. Maachens, 9 Vroom, 564; Wyette v. Ins. Co., 1 Dill. 441, cited by the defendant, relate to the right of an insurance company to examine the insured, pursuant to a condition of the policy, concerning the circumstances of the fire and the manner of arriving at the amount of loss, and contain nothing relative to the proposition involved here. In Whitehouse v. Ins. Co., 7 Ins. L. J. 26, the policy contained a provision somewhat similar to that under consideration; the company caused an autopsy to be held before burial, and it was assumed, rather than decided, that it had that right under the policy.

It will be implied that in a proper case the courts in the interests of justice may compel the exhumation and examination of a body which is under the control of a plaintiff, if facts are established showing that there is strong reason to believe that without such examination a fraud is likely to be accomplished, and that the defendant has exhausted every other method known to the law of exposing it. Such a right was claimed in Granger's Ins. Co. v. Brown, 57 Miss. 308, and proofs were presented in support of the demand, but the court in denying the application said: “It would be a proceeding repugnant to the best feelings of our nature, and likely to be in many cases so abhorrent to the sensibilities of the surviving relatives that they would prefer an abandonment of the suit to a compliance with the order.”

The body of the testator when taken from the water, exhibited visible, external signs of the cause of death. Water came from the mouth, and the body seemed to be" fillecl with water. So that every condition precedent to a right of recovery within the terms “ external, violent and accidental means,” as defined in Tucker v. Mut. Ben. L. Ins. Co., 50 Hun, 50; 23 St. Rep. 957, was established.

If immersion in water was the direct cause of death it must be deemed the responsible one. The possibility that at some future time the deceased might have died from some other cause cannot be a defense, for in the nature of things all persons must die sooner or later. It was, therefore, the immediate cause that was insured against, and hot a possible, hidden, secret cause which might or might not in the future develop itself. True, a person injured may die from some cause other than the injury. But it is difficult to say that a man who goes into water in apparent good health and is taken out'drowned, died from something other than drowning; if he did his life must have been shortened by accident, and this is the very thing he was insured against. No one can purposely accelerate the death of a human being without being guilty of murder or manslaughter, according to premeditation and intent, and it would be no defense to urge that death would in any event have resulted shortly after the time when the injury was sustained.

The plaintiffs, on the record before us, ought (if the jury had found that death resulted from accidental drowning and from no other cause) have had a verdict at the close of the case; the refusal to send the case to the jury for such a finding, and the direction to find for the defendant, constitute error, and the excéptions thereto are fatal to the verdict.

Many of these principles as to the sanctity of the grave find support in authoritative decisions. Meagher v. Driscoll, 99 Mass. Rep. 281; Weld v. Walker, 130 id. 422; Com. v. Cooley, 10 Pick. 37; Wynkoop v. Wynkoop, 42 Pa. St. Rep. 293; Pierce v. Cemetery, 10 R. I. 227; s. c. 14 Am. R. 667; State v. Wilson, 94 N. C. 1015; State v. McClure, 4 Blackf. 328; McNamee v. People, 31 Mich. 473; Kanavan's Case, 1 Me. 226; Reg. v. Sharpe, D. & B., 160; 7 Cox. Crim. C., 214; Ehlen v. Ehlen, 18 Chicago L. N. 208; Secor’s Case, 31 Leg. Int. 268; 18 Abb. N. C. 79; King v. Lynn, 2 T. R. 733.

It is an indictable offense in many of the states to disinter a corpse, unless the deceased in his lifetime had directed such a thing, or his relatives consent to it (see N. Y. statute in Penal Code, §§ 305, 308, 309); and the resurrecting it for the purpose of dissection does not improve matters. Tate v. State, 6 Blackf. 111; Com. v. Loring, 8 Pick. 370; Com. v. Marshall, 11 id. 350; Com. v. Cooley, 10 id. 37. In our own state, removing dead bodies “for the purpose of selling the same” or “from mere wantonness ” is punishable by fine and imprisonment 2 R. S. 688, §13; L. 1819, p. 279, §1; Penal Code, § 311; People v. Fitzgerald, 105 N. Y 146; 6 St. Rep. 828. Relatives may sometimes remove, and enjoin others from disturbing, the dead. Johnston v. Marinus, 18 Abb. N. C. 72, and note; 5 Am. & Eng. Enc. of L. 115; In re Beekman St. widening, 4 Bradf. 503; In re Brick Church, 3 Edw. Ch. 164; Fox v. Gordon, 16 Phila. R. 185. This is so, although the heir has no'propertv in the body or ashes of his ancestors, and though he cannot bring a civil action against such as indecently, at least, if not impiously, violate and disturb their remains when dead and buried (2 Bl. Com. 429); but “the person who has the freehold of the soil may bring an action of trespass against such as dig and disturb it." (Ib.) This has been clearly established in a case in Massachusetts, where a father sued because of the removal of the remains of his child, and recovered a verdict for $837 in an action of trespass guare clausum fregit. Mr. Justice Forster in giving judgment remarked that a dead body is not the subject of property, and after burial it becomes part of the ground to which it has been committed, earth to earth, dust to dust, ashes to ashes. Meagher v. Driscoll, 99 Mass. R. 281.

If the policy, the contract between the parties, had given the defendant, in express terms or by necessary implication, the right to demand of the representatives the exhumation of the body for the purpose of holding an autopsy upon it, as a condition precedent to recovery, the existing sentiment against the act would not have excused a refusal, and the citations as to the sanctity of the grave would be irrelevant to the question at hand, for no recovery could be had except upon proof of readiness to perform. As the contract does not in words confer such power, the reported cases present an array of authority showing the policy of the law and public sentiment to be so strongly set against the claim that the right asserted was intrinsic, grew out of the contract or was in any way contemplated by or incidental to it, that the representatives cannot be charged with captiously withholding a consent, when the giving of it would be repugnant to the extraordinary sensitiveness which has existed in all nations in regard to the disturbance of the human body after burial.

It follows that the plaintiffs’ exceptions must be sustained, the verdict set aside, and a new trial granted, with costs to the plaintiffs to abide the event.

Gtldersleeve, J., concurs.


text:
    Jacob A. Zimmerman, Resp’t, v. The German Evangelical Lutheran Immanuel’s Church, App’lt.

      (New York Superior Court, General Term,

      Viled January 7, 1895.)

    1. Contract—Building—Architect’s certificate.
    Where the contract provides that the payments, called for by the contract, are to be made in each instance on a certificate obtained and signed by the defendant’s architect, his certificate is conclusive upon the defendants as to the character of the work under the contract, unless fraud on his behalf is shown.
    2. Evidence—Conclusions.
    In order to show bad faith or fraud upon the part of the architect, questions, calling on the witness to determine whether the certificate was in his opinion erroneous or not, and whether, in view of the testimony of the architect, the issuing of such a certificate was not evidence of bad • faith, are inadmissable.

      Appeal by defendant from judgment entered on report of referee in favor of plaintiff.

      F. W. Rolls, for app’lt; J. G. Flammer, for resp’t.
   McAdam, J.

The appeal is from a judgment recovered by the plaintiff, a building contractor, against the defendant, a religious corporation, for the sum of $4,343.31, after a trial had before a referee. The recovery was for work and labor performed and materials furnished in and about the erection of a church edifice at Nos. 213 and 215 Bast 83rd street, in the city of New York. The referee found that the plaintiff was entitled to the final payment of $2,000 called for by the contract,' and $2,041 for extra work, an itemized account of which will be found in his opinion.'

The case appears to be the ordinary one between contractor and owner, and presents the qnestions which usually arise in action of that character. The contract contains two clauses material to this appeal, one of which provides that the payments called for by the contract are to be made in each instance on a certificate obtained from and signed by Henry Bhrhardt, the defendant’s architect. The other clause provides that any dispute respecting the true construction or meaning of the drawings or specifications shall be decided by said architect, whose decision shall be final and conclusive.

After the plaintiff had done all the work which he supposed he was required to do to complete the contract, according to the true construction and meaning of the drawings or specifications, he applied to and obtained from the architect a certificate that he was entitled to the final payment according to the terms of the contract. This provision with respect to the supervision of the work by the architect was intended for the protection of the owner at all points by the judgment, skill and opinion of the architect. Smith v. Alker, 102 N. Y. 90; Kennedy v. Poor, 25 Atl. Rep. 119; Crouch v. Gutman, 134 N. Y. 45; 45 St. Rep. 470; Smith v. Brady, 17 N. Y. 173. The architect, being the chosen arbitrator, must determine the character of the work under the contract, and his certificate is conclusive thereon unless fraud on his behalf is shown. Byron v. Low, 109 N. Y. 291; 14 St. Rep. 823; Stewart v. Kettellas, 9 Bows. 261; aff'd, 36 N. Y. 388; Gay v. Haskins, 8 Misc. Rep. 626; 61 St. Rep. 837; 30 N. Y. Supp. 191; Sharpe v. R. R. Co., 6 Moak’s Eng. Rep. 597; Worms v. Mellier, id. 868; Snaith v. Smith, 57 St. Rep. 867.

The defendant assigns as error, that he was prevented by the referee from impeaching the certificate of the architect, and our attention in this respect has been directed to folios 402, 404, and especially 405 of the case. The evidence there offered did not attempt to show any bad faith or fraud upon the part of the architect, or elicit any fact which would warrant the conclusion that he was guilty of apy misconduct. Gay v. Haskins, supra. The questions were addressed to the defendant’s witness Heck, and called on him to determine whether the certificate of the architect was, in his opinion, erroneous or not, and whether, in view of his testimony, the issuing of such certificate was not evidence of bad faith. The evidence was objected to on the ground that it was not the province of the witness to decide whether the certificate of the architect was erroneous or not. The referee held that so far as the work included in the contract was concerned the testimony should be excluded, but that as regards the extra work it would be admitted. The exception to this ruling is for the reasons stated, entirely without merit.

Another provision of the contract provides that “should the owner, at any time during the progress of the building, request any alteration, deviation, additions or omissions from the said cpntract, he shall be at liberty to do so, and the same shall in no way .affect or make void the contract, but will be added or deducted from the amount of the contract, as the case may be, by a fair and reasonable valuation." Under this provision, alterations, deviations and additions were made and were added to the cost of the work. The architect, in certifying to the plaintiff’s right to the final payment, stated that he was entitled to a payment of $4,041 by the terms of the contract, and as part of the certificate gave figures showing how this amount was made up. He first put down contract price, $12,965; extra work, $2,041; aggregating $15,006; then deducted $10,965 paid on account, leaving a balance of $4,041; which balance was in turn made up of $2,041 for extra work, and the $2,000 final payment on the contract. The plaintiff's claim for extra work was in excess ot the sum allowed by the architect, who reduced it to the amount stated.

The bill showing the deductions made by the architect and the certificate of the architect, were presented to the defendant. The president of the defendant’s board of trustees thereafter wrote to the plaintiff that a meeting which he had promised the plaintiff would take place had been held, at which were discussed ways and means of raising necessary funds, the communication concluding with the assurance that the defendant had" taken the necessary steps and hoped to get the funds soon, until which time all must be patient.

In view of those facts we are satisfied that there was a substantial performance by the plaintiff of his contract with the defend-. ant within the meaning of that term as defined by the authorities, and that extra work to the amount certified by the architect was done.

The defendant calls attention to the fact that there is a provision in some part of the specifications which provides that extra work shall be done only upon a written order. We find nothing in the record which requires us to pass upon the effect of this provision, and if there were it would upon the evidence be considered waived. Stout v. Jones, 9 St. Rep. 570; Porter v. Swan, 44 St. Rep. 375.

For these reasons and those stated by the referee, we think the judgment should be affirmed, with, costs.

Freedman, P. J., and Gildersleeve, J., concur.


author: MoAdam, J.

text:
    Tilly Lesser, as Executrix and Trustee, etc., Pl'ff, v. Caroline Lesser et al., by Guardian, etc., Def’ts.

      (New York Superior Court, Equity Term,

      Filed January, 1895.)

    1. Will—Construction.
    Precatory words impose a binding duty, where the testator has pointed out, with sufficient clearness and certainty, both the subject-matter and object of the trust.
    2. Same—Power of sale.
    Where the will is silent as to the person who is to sell the land, such power is implied in the executor.
    Bill filed by executrix for construction of will.

      John L. Brower, for pl'fii; K Jacobs, guardian, etc., for infant defendants.
   MoAdam, J.

There is sufficient in the will to authorize the court to give it a judicial construction.

The axiomatic rule is, that effect must be given to each and every part of a will and to the testator’s intention, which, when ascertained, must control. That the testator intended his executrix might sell the realty is evidenced by these words : “I hereby consent to the partition, upon the consent of my executrix Tillin' Siegel, and sale of any and all realty in which I may have any hereditary interest, said interest being acquired from Leopold Siegel.” Whatever realty the testator died possessed of was hereditary and acquired from Leopold Siegel, as in said will named. So that the will was intended to operate upon the property referred to in the complaint.

The testator had endeavored to sell the property just prior to-his death ; it was for sale at that time. Before and at the time of drawing his will he expressed it as his intention to have incorporated therein a power authorizing a sale of the property. The-language used in the will may be inartistic and inapt, but it is to-be construed equitably and liberally in furtherance of the intention. Dorland v. Dorland, 2 Barb. 80; Saloman v. Lawrence, 52 N. Y. Supr. Rep. 154; Stimson v. Vroman, 99 N. Y. 74; Weeks v. Weeks, 16 Abb. N. C. 143; Sugden on Powers, 3 Am. ed., marg. p. 476, and notes.

Precatory words impose a binding duty, where the testator has-pointed out with sufficient clearness and certainty both the subject-matter and object of the trust. 2 Red. on Wills, 2d. ed., 411. The desire of the testator has the force of a command when expressing his object. Riker v. Leo, 115 N. Y. 93; 23 St. Rep. 609.

Liberally construed with reference to furthering the testator’s intention, the law of energy of construction holds that the will contains a discretionary power of sale, which may be executed by the executrix at such time and in such manner as she may determine. True, the will is silent as to the person who is to sell the-lands; but in such case the power is implied in the executrix. Gerard on Titles, 3d ed., 443.

Under the sixth clause of the will, Caroline Lesser and Selma Lesser, the infant defendants, take an estate in fee in the premises, subject to the execution of said power of sale, and subject to a trust to continue during their minority; the trust, in the event of the execution of the power, being applicable to the proceeds of sale only, and ceasing as to each of said infants on her marrying or becoming of full age.

Decree in accordance with these views.


author: Clement, C. J.

text:
    Edward H. Litchfield et al., Pl’ffs, v. City of Brooklyn, Def’t.

      (Brooklyn City Court, Special Term,

      Filed September, 1894.)

    1. Injunction—Tax sale.
    A threatened tax sale may he enjoined on the ground that the tax is illegal.

      2. Same—Temporary.
    A temporary injunction will be granted, where a prima facie case ism de out by the plaintiff, and an absolute right to a final injunction need not be shown.
    3. Taxation—Act op 1880.
    The privilege as to payment by installments, under the act of 1880, is lost if the payments are not made as provided by such act.
    Motion for a preliminary injunction.

      Wm. 0. De Witt, for pl’ffs ; Albert G. McDonald, for def’t. .
   Clement, C. J.

It was decided by the learned judge of the United States circuit court, in the actions brought by these plaintiffs against the defendant, that the plaintiffs had no remedy in equity, for the reason that they could pay the taxes in question, and that such payment would be under duress, and, if the taxes were illegal, the money so paid could be recovered by action at law. Whatever may be the rule as laid down by the United States supreme court I am not called upon to consider, for the reason that the question is not federal, and I am bound- to follow the decisions of the courts of last resort of this state. The ru,le is well settled in this state that, where a tax sale is made presumptive evidence, a suit in equity may be maintained to remove-the cloud. Judge Earl said, in the case of Fonda v. Sage, 48 N. Y. 173, 179: “ There are cases of tax deeds which were an apparent cloud upon title, in which the courts refused to interfere-because it would be necessary for the claimants under the deeds to prove certain preliminaries which would show the deeds to be invalid; but, when the statute makes such a deed prima facieevidence that a valid assessment has been made, a court of equity will remove it, in a proper case, as a cloud upon title,”

By chapter 114 of the Laws of 1883, it is provided that the purchaser at the tax sale, after service of the proper notices, and after a certain time, shall have a deed by which he shall take, in fee simple absolute, a good title to the property sold,. of which the deed shall be presumptive evidence. No cloud upon the title of the lands of plaintiffs yet exists, and the authority before cited and kindred ones are not, therefore, in point, except by analogy. But the courts in this state have gone further, and held that an action in equity will lie, in a proper case, to prevent a threatened cloud. In 1835, Chancellor Walworth said, Petit v. Shepherd, 5 Paige, 493, 501: “ The jurisdiction of this court to set aside deeds and other legal instruments which are a cloud upon the title to real estate, and to order them to be delivered up and canceled, appears to be now fully established, * * * and if a court of chancery would have jurisdiction to set aside the sheriff’s deed which might be given on a sale, and to order the same to be delivered up and canceled, as forming an improper cloud upon the complainant’s title to his farm, it seems to follow, as a necessary consequence, that the court may interpose its aid to prevent such a shade from being cast upon the title when the defendant evinces a fixed determination to proceed with the sale.” See, also, Oakley v. Williamsburgh, 6 Paige, 262; Sanders v. Village of Yonkers, 63 N. Y. 489; King v. Townshend, 141 id. 358; 57 St. Rep. 437.

The plaintiffs are entitled toan injunction pending the suit, provided they malceoutaywima facie case, and provided they are willing to do what is right and equitable under the circumstances. It is not necessary that they should show an absolute right to a final injunction. If the court is of opinion that the case, even on a single question, requires a more careful consideration than can be given on the hearing of a motion, than the preliminary injunction ■should issue, and, on a full and fair hearing at the trial, the questions of law and fact may be determined.

On the question of tender made by Mr. Litchfield under the law of 1880, I coincide fully with the opinion of Judge Laoombe. The plaintiffs lost all rights under that act by failure to comply with its provisions. A great privilege was extended thereby to ■delinquent taxpayers,—a right to pay the amount of the assessed valuation where the arrears exceeded such valuation, and the right to pay arrears in other cases without interest or default, except interest from the date of the passage of the act. A further privilege was offered to the delinquent,—to pay the arrears in five annual installments, with interest on each installment to the date of payment. This privilege as to payment by installments was lost if the delinquent did not pay, within ninety days after the levy, all taxes, assessments and water rates which should become due on the land in arrears. While Mr. Litchfield made a good tender of the first installment in 1880, no taxes have been paid since, and he thereby, in my opinion, lost all rights under such tender.

It is claimed by the plaintiffs that the board of assessors, in levying a new tax under the act of 1883, determined one amount, and certified to the registrar of arrears, not the amount determined, but a sum in excess. The plaintiffs insist that the assessors, after fixing the amount, delayed their certificate for several months, and then certified a new amount, consisting of the sum ■fixed, with interest to the date of the certificate. I am not prepared to hold that such action on the part of the assessors would, be legal. If plaintiffs’ facts are correct, then they should have a trial of the question, and the same should not be disposed of summarily on a motion. When the law provides the method of levying taxes or assessments, it must be followed. Stebbins v. Kay, 123 N. Y. 31; 33 St. Rep. 72.

The question of law whether the pendency of another action in the United States circuit court between the same parties is a bar to this action is intricate, and should not be decided on a motion, and I do not, therefore, discuss the same.

While I hold that the plaintiffs, on a single question, seem to be entitled to a preliminary injunction, I am clear that the same should be granted ouly on one condition. The property in question has been advertised for sale for a period of eight years, and no action Inis been taken by plaintiffs during that period until recently. They have slumbered on their rights, if any they have. The excuse offered in the papers for not moving sooner is puerile. The city cannot sell for taxes which have accrued since 1883 until a sale is made under the act of that year. If the property is sold under such act, the plaintiffs will not be remediless, but can bring actions to set aside said sales. In view of the loches of plaintiffs, an injunction will be granted only on condition that they pay to registrar of arrears the sum of $250,000 in settlement of taxes, assessments, and defaults, and interest on same, levied since 1883. It is clear, from the papers submitted, that the plaintiffs owe more than that sum for taxes and interest which have accrued since that date, where no question is made as to their validity. The injunctions will issue in the six cases on the condition above stated ; otherwise, the motions are denied, with costs.


author: Martin, J.

text:
    Alexander Myers, Resp’t, v. New York Central & Hudson River Railroad Company, App’lt

      (Supreme Court, General Term, Fourth Department,

      Filed December 17, 1894.)

    1. Negligence—Contributoty.
    It is contributory negligence to attempt to board a moving train.
    2. Same—Question of law.
    If tbe negligence of the injured person causes or contributes to the injury, the court must nonsuit.
    3. Same.
    The question, in such case, is not made one of fact by proof that he was directed by the conductor of the" train to jump on.
    Appeal from a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, made on the minutes.

      D. G. Griffin, for app’lt; D. P. Morehouse, for resp’t.
   Martin, J.

The plaintiff was injured while attempting to "board a moving train on the defendant’s road. The train was in motion when he left the depot, which was about 30 feet from the track. He was then 73 years of age, and, as he testified, in full possession of his faculties, and could get on a car as well as he could 20 years before. The testimony introduced by the defendant tended to show that the plaintiff often rode upon its trains, and had been previously accustomed to board them while in motion, to an extent that induced its employes to admonish and remonstrate with him, and to charge him that he should not do so, as it was dangerous, and he would some time get hurt. This the plaintiff did not deny, but only said he did not remember it,—it might have been. On the morning of the accident, when he left the depot, he saw that the train was in motion. He immediately picked up a potato scoop that stood near, and started upon a run to overtake and board the train. He and one witness called by him testified that the conductor and brakeman, who saw him coming, called to him to hurry up, and that no effort was made to stop the train until he had reached it, and taken hold of the rail, when the accident occurred. On the other hand, both the conductor and the brakeman testified that they did not call to the plaintiff to hurry up, but, on the contrary, that the conductor, in effect, called to him not to attempt to get upon the train, as he was going to stop, and that the conductor had already given the signal to the engineer to stop the train. This testimony, so far as it tended to show that neither the conductor nor the brakeman called to the plaintiff to hurry up, but that the conductor called to him not to get upon the train, and that he would stop, was corroborated by the evidence of at least five disinterested and credible witnesses who were present at the time, and who testified to that effect. It may be that the question whether the conductor said, “ Hurry up,” or whether what he said was, “ Do not try to get upon the train,” was one of fact for the jury, yet its findings in favor of the plaintiff upon that question was against the weight of the evidence. The burden of showing that he was free from contributory negligence rested upon the plaintiff. While, when tliere is evidence, direct or inferential, of care or caution on the part of the person injured, the question of contributory negligence is for a jury, yet where there is no such evidence, and the evidence shows clearly that the injured person was negligent, and that such negligence caused or contributed to the injury of which he complained, it is the duty of the court to nonsuit, and it is error to refuse. Weston v. City of Troy, 139 N. Y. 281; 54 St. Rep. 493.

The question whether it is negligence, per se, to board or alight from a moving train propelled by steam, has been considerably discussed, and several times decided, by the courts of this state. In Solomon v. Man. Railroad Co., 103 N. Y. 437; 3 St. Rep. 636, it was held that the boarding or alighting from a moving train is presumably and generally a negligent act, per se, and that to rebut this presumption, and justify a recovery in case an injury results, it must appear that the passenger was, by the act of the railroad company, put to an election between alternate dangers, or some situation created which interfered to some extent with his free agency, and was calculated to divert his attention from the danger. Andrews, J., after stating the law as above, added: “Negligence, no doubt, is usually a question of fact, of which the jury must inquire, but the inference of negligence in a given case may be so clear and convincing that the judge may direct a verdict. The conclusion that it is prima, facie dangerous to alight from a moving train is founded on our general knowledge and common experience, and it is akin to the conclusion, now generally accepted, that it is in law a dangerous, and therefore a negligent, act, unless explained and justified by special circumstances, to attempt to cross a railroad track without looking for approaching trains. In boarding a moving train, there is generally less excuse than in alighting from one. The party attempting it is not often under the same stress of circumstances as frequently happens in the former case. He may be compelled to wait for another train, but this is an inconvenience merely, which does not justify exposing himself to hazard.”

In Hunter v. Cooperstown, etc., Railroad Co., 112 N. Y. 371; 21 St. Rep. 1,—which was a case very similar to the case at bar, —it was held that a man who was sui juris and in full possession of his faculties, with nothing to disturb his judgment, who attempted to board a train moving at the rate of from four to six miles an hour, was chargeable, as a matter of law, with negligence, and that the question in such a case is not made one of fact by proof that the riian was directed by the conductor of the train, if he was going on the train, to jump on. In that case the judgment was reversed, and a new trial ordered. The case was retried, and upon a subsequent appeal, where the evidence in the appeal book was substantially as upon the first appeal, except that the train was shown to have been going from one to two miles an hour, instead of from four to six, the court of appeals again held that the plaintiff’s intestate was guilty of negligence in getting upon the moving train ; that the submission to the jury of the question of contributory negligence was error,—and the judgment was again reversed. 126 N. Y. 18; 36 St. Rep. 367. The case of Distler . L. I. Railroad Co., 78 Hun, 252; 60 St. Rep. 216, was also similar to the one at bar, and the doctrine of the foregoing cases was there reasserted; and it was held that the fact that the conductor called to the plaintiff to get on the train when in rqotion was not sufficient to relieve him from the charge of contributory negligence, and that he was properly nonsuited. See, also, Lewis v. D. & H. Canal Co., 80 Hun, 192; 61 St. Rep. 773; Scully v. N. Y., L. E. & W. Railroad Co., 80 Hun, 197; 61 St. Rep. 804. Without examining the other cases—of which there are many—bearing upon this question, we are of the opinion that the plaintiff was guilty of contributory negligence, that the court erred in denying the defendant’s motion for a nonsuit, and that the judgment should be reversed.

Judgment and order reversed on the law and facts, and a new trial granted with costs to abide the event.

All concur.