text:
    John Sebastian Smith, Pl’ff, v. The New York Central & Hudson River Railroad Co., Def’t.

      (Supreme Court, General Term, Fifth Department,

      Filed January 22, 1892.)

    1. Negligence—Contributory.
    Plaintiff, who was employed by a railroad company whose tracks were in close proximity to those of defendant, rode upon an engine of his employer in returning home. Just before the engine stopped he looked both ways, but saw no approaching' train, and he then descended backwards on the side of the engine towards defendant’s tracks and took two steps, when he was struck by a train and injured. Held, that plaintiff failed to exercise the care which a prudent person would have exercised under the circumstances, it not appearing that he looked or listened after the engine stopped, and that a nonsuit was proper.
    2. Same—Nonsuit.
    The court is not bound by the bare assertion of a party that he used his natural faculties of seeing and hearing before attempting to cross the track to submit his case to the jury, when it is manifestly untrue or it is shown that the observation was not opportunely made.
    Motion by the plaintiff for a new trial on exceptions taken at the Monroe circuit in June, 1891, and ordered to be heard at the general term in the first instance, after a non-suit directed by the court.

      F. L. Adams, for pl’ff; Albert H. Harris, for def’t.
   Macomber, J.

This action-was brought to recover damages for personal injuries sustained by the plaintiff on March 21, 1889,. while attempting to cross the defendant's railroad at Colvin street, in the western part of the city of Rochester. At about eight, o’clock in the evening of that day the plaintiff was struck by a locomotive coming from the west operated by the defendant at the place named, and was seriously injured.

The plaintiff was by occupation a blacksmith and was, at the-time named, in the employ of the Buffalo, Rochester & Pitts-burg railroad, at their shops at Lincoln Park, which is just, west of the west boundaries of the city of Rochester. Ordinarily his labors for the day ceased at about six o’clock in the-afternoon, when he walked to his home on Syke street, about ten houses from Colvin street, and north of the tracks of this; defendant. On the evening in question, having worked overtime, he, with many other laborers, boarded a work-train of the-Buffalo, Rochester & Pittsburg Company, most of the men getting into the caboose, but the plaintiff, with two others, got onto the engine and rode there to Colvin street. This locomotive-was backing to the east, being faced, to the west on the main track of the railroad, which 'was parallel with and in close proximity to the defendant’s railroad, and was drawing the caboose by a rod attached to it from the pilot.

The plaintiff was familiar with the location of the tracks of both railroads, and knew of the .frequent, not to say almost constant, passing of trains on the defendant’s road at this place.

At Colvin street the tracks of the defendant’s .road are perfectly straight for a distance of 1,850 feet west. There are four' main tracks, numbered respectively one, two, three and four, beginning on the south side. To the east, the tracks are straight, for two thousand feet. Parallel to and south of the defendant’s tracks are two tracks of the Buffalo, Rochester & Pittsburg railroad. The northernmost of these tracks, which is the main track, is seven and one-half feet from the south rail of track No.. 1 on the defendant’s road. At a distance of 1,850 feet west of Colvin street the defendant’s tracks curved slightly to the south, but not so much as to prevent a clear observation of an approaching train for at least two miles.- z

The working train of the Buffalo, Rochester & Pittsburg Company, having started from Lincoln Park, stopped for the purpose of discharging the laborers, first at Ames street and then at Colvin street, when the plaintiff alighted from the locomotive on which he was riding (descending the steps backward toward the defendant’s tracks, having in his mouth a pipe and in one hand a dinner pail), swung himself round to the ground, took one or two steps to the north and was instantly struck by the engine of the St. Louis express, coming from the west, which was running at the rate of about forty miles an hour.

At the close of the plaintiff’s case in chief, a motion was made by the defendant’s counsel for a nonsuit on the ground that the plaintiff had failed to show that he -was free from negligence which contributed to the production of the injury. This motion was,, for a time, denied, but soon thereafter, and while evidence was being given in behalf of the defendant, the court, after further reflection, reconsidered its first decision and granted the motion. The plaintiff’s counsel asked leave to go to the jury on the question whether the plaintiff used proper care in looking, and on the question whether smoke was an obstruction to the view, which application was denied by the court, and the plaintiff duly excepted. This direction of a nonsuit and this exception bring up the sole question in the case.

The general question is, therefore, whether the plaintiff, by his evidence, has shown that he exercised proper care in leaving the locomotive of the Buffalo, Eochester & Pittsburg Eailroad and attempting to cross the defendant’s tracks. He testified as follows :

“ Q. As the engine approached Colvin street what were you doing ? A. I looked west and then looked east.
“ Q. What were you looking for ? A. I was looking for the train.
“ Q. How did you look ? A. I looked toward the west and then down.
“ Q. What do you mean by 1 down ?’ A. Towards the east.
“ Q. Did you have your eyes open ? A. Yes, sir.
“ Q. Did you have your ears open? A. Yes, sir.
“ Q. What did you have them open for ? A. I was looking and watching for the train.
“ Q. What did you see or hear ? A. I did not see anything and I didn’t hear anything; it was too dark. * * *
“ Q. After you looked out and saw nothing and heard nothing, what did you do ? A. I stepped off.
“ Q. Was the train at a stand still, the engine, then? A. Yes, sir; it stood still.
“ Q. Did you step on the ground. A. I stepped on the ground?
“ Q. How many steps did you take ? A. Two steps.”

Further than this the plaintiff had no recollection of the occurrence. In saying that he took two steps on the ground the plaintiff manifestly intended to be counted, such was the proximity of the tracks, his last descending step from the cab. On cross-examination he testified that the engine had stopped moving when he looked to the east and west, and then he got down at once.-

The plaintiff had in his hand a dinner pail, and he was smoking a pipe at the time. He was required to take two steps in descending from the locomotive to the ground, which was a distance of four feet and ten inches from the floor of the cab of the engine. The width of the gangway of the engine is seven feet and seven inches, and of the caboose car, which it was drawing, eight feet and six inches. The projection of the gangway over the track was one foot, five and a quarter inches. Assuming that the projection of the locomotive upon the defendant’s track was as great as that of the engine on the Buffalo, Eochester & Pittsburg Eailroad, there would be left a space of about four, or four and one-half feet between the projections of these two locomotives, and a somewhat narrower space between the caboose on the Buffalo, Rochester & Pittsburg Railroad and the carson the defendant’s track.

The particular inquiry, therefore, is (under the testimony of the plaintiff himself), did he, at the moment when his senses were required to be put in active operation, use them for the purpose of self-preservation ?, Taking his own version of his actions, namely, that he looked both to the east and to the west while approaching Colvin street at about the instant of stopping, in its most favorable aspect, he still, it seems to us, lacked the exercise of the essential duty of a person situated as he was. When he made these observations he was not contemplating the immediate crossing of the defendant's tracks; he was moving parallel with them, and, as he knew., in close proximity thereto. There is no significance in the observations which he then made, so far as they relate to the instant of collision. It was no more than naturally would be done by a person who, in his circumstances, was to determine on which side of the locomotive he was to alight. To a prudent man, it naturally would have occurred that to descend upon the side of the Central tracks was a dangerous, not to say a reckless, act. There was nothing to prevent his alighting on the south side of the locomotive, thus securing an ample view of the defendant’s tracks before attempting to cross them, being the same on which the men in the caboose were discharged under the direction of the person who was at the time acting as conductor.

The uncontradicted evidence is, that the plaintiff descended from the bob of the locomotive backward. This, it is true, was the usual way of descending from the engine. It was his duty, as it seems to us, under the circumstances, if he elected to take the hazards of getting off the locomotive on that side, to take an observation of the defendant’s tracks, and see whether he could safely pass across them. But this he did not do. There is no evidence whatever in the case showing any act of prudence or care for self preservation on the part of thé plaintiff after the locomotive on which he was riding had stopped, when he bade the engineer and fireman good-night. He was well aware that trains on the defendant’s tracks were accustomed to pass very frequently at that hour of the night. He knew the dangers of the situation, and it was his duty, under every rule governing the conduct of persons in crossing railroad tracks, if he was willing to take the hazards of descending upon the north side of the engine, to stop as he descended, and see if he was likely to be overtaken by a train upon the track which was so near to him.

We are of the opinion, therefore, that the plaintiff failed to' exercise the care which a prudent person, knowing the dangerous situation, should have exercised under the circumstances, and for this reason he cannot recover damages for his injuries. No attempt is made by his counsel to show, even by the slightest inference from the evidence, that the plaintiff did any act of looking or hearing after leaving the cab of the locomotive.

But the learned counsel for the plaintiff has labored in his; elaborate argument to excuse his client’s failure to see the appreaching train, when he in fact did look just before, or at the time of the stopping of the locomotive, first, by claiming that smoke from this locomotive may have obscured the headlight of the approaching train. The plaintiff gave some evidence, to the effect, that at about the time of his leaving the locomotive the fireman threw coal into the furnace of the engine, and from this it is argued, not proved, that dense smoke escaped from the locomotive and might have obscured the view taken by the plaintiff at that time. _

_ This hypothesis, for it is nothing more than an hypothesis, is attempted to be strengthened by the evidence of a government weather observer, who testified that on the evening in question the wind was from the northeast, having a velocity of about four miles an hour. The tracks of the defendant at Colvin street, it is shown, run, not due east and west, but rather slightly northeast to southwest. From this it is argued that .the smoke which might have escaped from the locomotive probably obscured the view taken by the plaintiff. But upon cross-examination the government weather observer testified that the wind might have been a little north of east or south of east. The evidence of the witness in this respect does not seem to go very far to support the theory of the learned counsel. This witness further testified that the density of the atmosphere at this time was eighty-six; that is, that it was surcharged with eighty-six per cent, of moisture at a standard of 100. He also gives his observation of the effect of the atmosphere on smoke, as to raising or settling. Having stated that the evening was cloudless and the stars and the heavens clearly visible and the barometer normal, he says that the smoke coming out of the smoke-stack would not tend to rise, but rather would tend to fall, if anything, and that the wind being light, it would drift slightly in the direction the wind was going. This opinion might be of more force, had it been shown in what direction the wind in fact was going.

But the plaintiff himself has, by his own testimony upon this subject, put at rest all speculation by experts. He says that he saw a switch-light between the Buffalo, Rochester & Pittsburg track and the adjacent track of the defendant’s road at a point which is shown to be 338£ feet west of Colvin street. At that distance, .at least, he testified he was clearly able to see and to distinguish and know a switch-light and its particular location. The theory of an obstruction to the vision by smoke, therefore, we think is hardly supported by the evidence in the case.

It is further argued by the counsel for the plaintiff, that his client may have taken the head-light of the locomotive for a switch-light. This, too, is a mere speculation, as it seems to us, for, as already observed, the plaintiff testified to seeing a switch-light, locating it accurately, and it is shown that other switch-lights, like the one which he saw, were raised from the ground about three and one-half feet only and without reflectors, while the head-light of a locomotive is upwards of ten feet from the ground, with reflectors that are unmistakeable, particularly to a person of the long observation of the plaintiff in such matters.

It is also argued that the glare of the headlight of the engine-on which the plaintiff was riding, or the flare of the open furnace door, might have blinded his eyes so that he was unable to see clearly. But we are .unable to find any evidence in the case to-support this theory.

In respect to the three grounds stated for extenuating, excusing or justifying the plaintiff’s failure to see the approaching train, it may be said that each of them rested on an hypothesis only, and not upon facts given in evidence upon which it would be safe to render a judgment.

But assuming, on the other hand, that when the plaintiff did in fact look to the east and west, as he said he did, it was a timely act and sufficient to enable him to cross under ordinary circumstances, in this particular case such observation was clearly insufficient and inadequate for his own protection. The courts, as it seems to us, are not bound, by the bare assertion of a party that-he used his natural faculties of seeing and hearing before attempting to cross the track, to submit his case to the jury, when it is-manifestly untrue, or it is shown that the observation was'not opportunely made.

In the case of Nash v. The N. Y. C. & H. R. R. R. Co., 34 St. Rep., 788 (less fully reported in 125 N. Y., 715), the plaintiff had given evidence, before entering upon the defendant’s tracks at a private crossing, to the effect that a gate which was seventy-nine feet, away from the track was opened by his son; whereupon he drove on down through the lane on a walk until he reached level ground thirty-five feet from the easterlytrack of the railroad, and then on a trot to and upon the track. He was crossing from the east to the west His view of the track was obstructed until he got within twenty-five feet of it. - By-reference to the bound volume-of the printed case in that action, to which our attention has been called by the learned counsel for the defendant, his evidence is-found to be much more specific in respect to his efforts to discover the approach of danger with a purpose to avoid receiving personal injury than is that of the plaintiff in this action, and yet the court of appeals in that instancé, reversing the judgment of the circuit and of the general term, held that the plaintiff was guilty of' contributory negligence which would defeat his claim for damages.

Under that authority, and under the peculiar facts appearing in this case, and in the absence of evidence to excuse the plaintiff" from actually seeing the approach of danger, we are of the opinion that the nonsuit was correctly ordered.

-Plaintiff’s motion for a new trial denied, with costs, and judgment ordered for the defendant on the nonsuit.

Dwight, P. J., and Lewis, J., concur.


source: Caselaw Access Project

author: Gray, J.

license: Public Domain

text:
    Max Gentilli, Resp’t, v. Achille Starace, App’lt.

      (Court of Appeals,

      Filed April 12, 1892.)

    1. Sale—Wabbaety—Bbeach.
    Plaintiff, through a broker, sold defendant 169 cases Prosperi’s Chianti wine, “ all to be in good merchantable order. Delivery on steamer’s dock. The said goods to be approved by buyer within three days after delivery. Terms: payment by notes, for one-half the amount each, at 60 and 90 days respectively.” The goods were delivered, and five days afterwards, the defendant gave the notes, the first of which was paid, and in an action on the second, the defense was breach of warranty, in that the wine was. some time after the sale found to be imperfect and unsound. Held, that there was no warranty in the contract of sale other than to allow the buyer-three days within which to-ascertain whether the wine was “in good merchantable order.”
    2. Same—Estoppel.
    Where the seller is not the manufacturer, and the article sold is in esse, and open to inspection and examination, and no fraud is' charged or exists, and the buyer claimed and was allowed his time to exercise his judgment, and to approve of the goods bought, the acceptance and retention of the goods concludes him, and there is no warranty or agreement by the seller which survives the transaction.
    Appeal from judgment of the New York superior court, general term, reversing judgment entered- in favor of defendants on report of referee, and ordering new trial.

      John JJ. Lewis, for app’lt; Wrn. J. Weldon, for resp’t.

       Affirming 39 St. Rep., 343.

   Gray, J.

The plaintiff, who was a commission merchant in New York city, sold to the defendant, who was engaged in the same business, certain wines, through a broker, whose note of the sale stated it to be of “ 169 cases Prosperi’s Chianti wine, just arrived per S. S. 1 Trinaeria,’ at the prices and terms hereinafter mentioned, to wit: (giving quantities and prices) * * * All to be in good merchantable order. Delivery on steamer’s dock. The said goods to be approved by buyer within three days after delivery. Terms: payment by notes, for one-half the amount, each, at 60 and 90 days respectively '* * *

The first note was paid, and the present action is to recover upon -the second note. This recovery is sought to be defeated by the defense of a failure of consideration; in that the wine, some time after the sale was completed, was discovered to be imperfect and unsound, and hence, as it is contended, an express warranty that the wine was intrinsically sound and free from latent defects was broken. This warranty, the appellant argues, was conveyed by these words in the broker’s note of sale: “ All to be in good merchantable order.”

We think his appeal must fail, for the reason that the contract of sale nowhere expresses nor imports any agreement on the seller’s part that the wine should be of any particular quality, or that any rights should survive to the buyer after his acceptance as against the seller which would authorize him to attack the sale for defects in the condition of the wine subsequently discovered. The wine was on the dock when sold, and the complaint as to its unsoundness was made some three months afterward. It was justified by a chemical analysis of the wine made by a chemist, who gave it as his opinion that the wine had been bottled while in a state of secondary fermentation. This condition, though possibly latent to the casual or ordinary taste at times, is, nevertheless, it was said, discoverable always by chemical tests.

For the court to hold that, upon this sale so effected, there was conveyed a warranty to the seller in the language used, that at any and all times subsequent to the acceptance of the wine it should, upon examination or test, be found a desirable article, free from latent defects or unsoundness, would, in my opinion, be an extreme and unwarranted application of the doctrine upon which the rights of purchasers are made to depend. It • is the general rule in such cases that the existence of a warranty is to be determined by the circumstances of the particular case. That is the rule where a warranty is sought to be implied. Where application is sought to be made of words of warranty in a contract like these, they should be "read in connection with the other language, and the warranty is to be intez-preted according to the particular circumstances of the transaction.

In the present case the plaintiff was not the manufacturer of the wine. It is not pretended that any fraud was' practiced by him. The wine was on the dock subject to inspection, and three ■days after delivery was specified in the memorandum of sale as the time the-buyer might take for approval. No knowledge was imputable to the seller, and tfye' buyer’s opportunities were quite as good as the seller’s to judge of the wine for quality and condition.

The buyer might have required any other form of express warranty as to the wine he was about to purchase than what he did ; but he was content with a stipulation from the seller that it should all be “ in good merchantable order ” and that he might have three days to approve of it. It might be said that a construction was placed úpon their contract by the acts of the paz-ties ; for within the three days after the receipt of the wine in defendant’s store he made some objections as to cases which examination showed to be wine stained, and a claim was thereupon allowed by the plaintiff. According to the evidence, and as in fact it was found by ,the referee, a chemical analysis could have discovered the alleged defects in the condition of the wine.

I think, under the circumstances of this case, where the seller was not the manufacturer, where the article sold was in esse and open to inspection and examination, and where no fraud is charged, nor existed, and the buyer claimed and was allowed his" time to •exercise his judgment and to approve of the subject of the transaction of sale, the acceptance and retention pf the goods-concluded him, and there was no warranty and no agreement by the seller which survived the transaction. The principle of this conclusion I think is deducible from the authorities; several of which I cite without further reference. Parkinson v. Lee, 2 East, 314; Sprague v. Blake, 20 Wend., 61; Reed v. Randall, 29 N. Y., 358; Dounce v. Dow, 64 id., 411.

The contract in this case called for a delivery of that description of wine known as “ Prosperi’s Chianti wine;” which should be “in good merchantable order,” and was to be “approved by buyer within three days.” That kind of wine was in fact delivered and the merchantable order of the goods was a fact which,though warranted, was to be ascertained by the buyer for himself within the delay allowed. It was open to the buyer, if he distrusted his judgment, or if for any reason he wished it, to require an express warranty to cover the quality or other points about the wine. He did not do so and, under the terms of the contract, of the parties, we should hold that as to the seller it was fully executed, and no warranty survived in favor of and available thereafter to the buyer.

For the reasons assigned, the order appealed .from should be affirmed and, under the stipulation in the notice of appeal, judgment absolute should be ordered in favor of the plaintiff and against the defendant, with costs.

All concur.


author: Andrews, J.

text:
    John H. Riker, Ex’r, Resp't, v. Sampson Simpson Leo, The North American Relief Society, Impl’d, App’lt.

      (Court of Appeals,

      Filed April 12, 1892.)

    1. Will—Charitable bequest—Construction.
    The will of S. gave $50,000 “to any responsible corporation in this city (New York) existing at the time of the death of my nephew, whose permanent fund is established by its charter for the purpose of ameliorating the condition of the Jews in Jerusalem, Palestine; and I desire such corporation annually to transmit the interest received on said $50,000 to-Jerusalem, Palestine, to ameliorate the condition of the Jews living there by promoting among them education, arts and sciences, and by learning them agricultural and mechanical vocations.” The N. A. Relief Society claimed to be entitled to the fund, as being a responsible corporation, having a permanent fund established by its charter, the interest of which, is to be “ annually applied to the relief of indigent Jews in .Jerusalem, Palestine.” Held, that the fact that the Jewish Church discouraged the giving of alms but assisted the poor by aiding them to support themselves did _ not cause the words in the certificate of incorporation of the N. A. Relief Society “relief of indigent Jews” to mean relief according to the Jewish method, but that the common and accepted meaning of the words-must be followed.
    2. Same.
    The evidence in this case shows that the incorporators of the North American Relief _ Society had no other view in organizing it except to furnish relief to indigence in the ordinary way and according to the commoy understanding of the phrase, and said society did not answer the description of the corporation mentioned in the testator’s will.
    (Earl, Ch. J., Peokham and Maynard, JJ., dissent.)
    Appeal from judgment of the supreme court, general term, first department, affirming judgment entered upon decision after trial at special term.

      Louis Marshall, for app’lt; John IS. Parsons, for resp’t;

       Affirming 39 St. Rep., 984; see 23 id., 609.

   Andrews, J.

This case is before the court for the second time. On the former appeal the court reversed the judgment of the general term on the ground that the North American Belief Society did not answer the description of the corporation mentioned in the fifth clause of the will of Sampson Simpson, 115 N. Y., 93; 23 St. Rep., 609, and was not, therefore, entitled to the fund of $50,000. The case went back for a new trial, and on the new trial judgment was rendered against the claim of The North American Belief Society. Upon the new trial evidence was given, not presented on the former trial, which it is claimed authorizes and requires that the words “relief of the indigent Jews in Jerusalem, Palestine,” contained in the certificate of incorporation of The North American Eelief Society, should have •a broader interpretation than that given to them on the former appeal, and it is insisted that in the light of the new evidence it should, be held that the society is entitled to the legacy in question.

The will of Sampson Simpson, which was executed in January, 1857, a few days prior to the testator’s death, in the fifth clause ■directs that on the death of his nephew, Moses A. Isaacs, the legacy of $50,000 (the income of which was given to the nephew for life) should be paid by his executors “ to any responsible corporation in this city (New York) existing at the time of the death ■of my nephew, whose permanent fund is established by its charter for the purpose of ameliorating the condition of the Jews in Jerusalem, Palestine ; and I desire such corporation annually to transmit the interest received on the said $50,000 to Jerusalem, Palestine, to ameliorate the condition of the Jews living there by promoting among them education, arts and sciences, and by learning them agricultural and mechanical vocations.”

It is claimed that the case as now presented shows that in the ■contemplation of the incorporators of the North American Eelief .Society, of whom the testator, Sampson Simpson, was one, the words in the certificate, “relief of the indigent Jews in Jerusalem, Palestine,” were synonymous with the words subsequently used by the testator in his will to express the purpose to which his legacy was to be devoted.

It is insisted that the words used in the certificate are to be ■construed in the sense in which they were understood by the incorporators, and that so construed the corporate powers of the society extend to the administration of a fund for the amelioration of the condition of the Jews in Jerusalem by means of education .and instruction in agricultural and mechanical vocations, although in the absence of explanation they might have a narrower interpretation.

It is further insisted that it was the intention of the testator that the North American Eelief Society should receive the legacy, provided the society should be in existence and a responsible corporation at the death of the nephew. The argument that the words “ relief of indigent Jews,” used in the certificate of incorporation, comprehend the apparently wider purpose of benevolence manifested in the scheme of the testator in his will, rests upon evidence given upon the last trial by learned divines of the Jewish Church explaining the conception of charity as taught in the Talmud and accepted by orthodox Jews. It is unnecessary to state in detail the very interesting testimony upon this subject. It is sufficient to say that it was shown that from early times it has been the doctrine of the Jewish teachers that the true way of administering charity is by furnishing opportunities to the poor and dependent to become self supporting, and ‘by aiding and encouraging them to fit themselves for some handicraft, or to engage in agricultural or other business, or to do any labor, however humble, to gain, their bread. The. giving - of alms is discouraged, except in cases of actual necessity, and is deemed the lowest form of charity.

It is probable that this same view of charity exists among Christian communities, but with the Jews it seems to a greater extent to have the explicit sanction of the law of the Jewish Church. It is, therefore, claimed that the words in the certificate of incorporation of the North American Belief Society, “ relief of indigent Jews,1' means relief according to the Jewish method, by means of education, provision for the instruction of the poor of their race in some self supporting trade or vocation, and that in a subordinate sense only do they refer to their temporary relief by the giving of alms.

The words in the will are, it is insisted, a paraphrase merely of the words of the certificate, and the identity of the corporation •claiming the legacy with the one described in the will is by the evidence referred to claimed to be established.

We have reached the conclusion that the case is not changed in its legal aspect by the new evidence given on the second trial.

It was held on the former appeal that the particular purposes designated by the testator in the fifth clause of his will, for which he desired the income of the fund of $50,000 to be applied, constituted an essential part of the testator’s scheme, and that no ■corporation could take the legacy except one authorized to effectuate his plan of amelioration in the way pointed out This construction has strong support in the language used by the testator in providing for a disposition of the fund in the contingency that there should be no corporation existing at the death of his nephew of the character previously described. In that case he empowered his executors to pay over the legacy to the Jews’ Hospital in Palestine, or any corporation or trust company which •should consent to receive the legacy and “ apply the interest in accordance with my instructions as above expressed,” provided his executors should be satisfied that in that way “my intention to ameliorate the condition of the Jews can be accomplished.” Whether words in a will attached to a gift explaining the desire of the testator in respect to its use or disposition constitute a limitation of the bequest, or are to be regarded as advisory or re-commendatory only, depends upon the intention of the testator, .and they are construed as mandatory or advisory according ■ to the intention as ascertained from a consideration of all the provisions of the will which bear upon the subject. See Colton v. Colton, 127 U. S., 300. We perceive no reason for changing our former view upon this point.

The court in the former appeal also held that the administration of the fund, according to the directions of the will, was not within the corporate powers possessed by the North America Belief Society. The words in the certificate of incorporation of the society to express the corporate object of the association, viz.: the “ relief of the indigent Jews in Jerusalem, Palestine,” in their ordinary interpretation, import the bestowal of charity upon the poor by ministering to their personal and temporary distresses-, and do not describe those benevolent schemes for the permanent elevation of' that class through education and instruction and employment in' vocations and thereby convert "them from a condition of dependence into self supporting men and women. It does not seem to be seriously contested that the words of the certificate of incorporation do not in their usual acceptation embrace those wider purposes of benevolence. The contention is that they are to be construed according to the special and peculiar meaning attached to them by the Jewish teachers, and in the light of the Jewish conception of charitable relief. We are aware of no authority justifying a construction of corporate powers by or in view of the tenets of any sect, or which authorizes a limited or broad construction depending upon the personal belief of the incorporators, or their understanding of the words used in the statute creating the corporation, or in a certificate of incorporation under a general law, where the words used in defining the powers of the corporation have a common and well understood significance, and are free from ambiguity and doubt

The common and accepted meaning of words is that which is to be followed. Any other rule of construction would be attended with great danger. Corporate powers would be asserted which were never intended to be granted, and if the special understanding of the incorporators of the meaning of the word§s should be admitted to qualify or enlarge their ordinary and natural meaning, it might often be found that powers which were never thought of by the legislature would be hidden, away under words which never suggested them.

But passing this consideration-, we are not satisfied that the incorporators of the ¡North American Belief Society intended te use the words, “relief of the indigent Jews,” in any other than their natural and ordinary sense. The record is filled with evidence that in 1853, when the society was incorporated, the Jews inhabiting Jerusalem were in a condititin of abject poverty, and hunger and nakedness was the condition of nearly the entire Jewish population of that ancient city, consisting of six or seven thousand souls. Many of them had gone there to die in the holy city. To the Jews it was the place of the holiest associations. Though the belief of the restoration of the' race to the land of their fathers has perhaps with many weakened “ into a hope,” the race throughout the world turned to Judea with longing for the re-establishment there of the kingdom of Israel. In 1853 there was pressing need and the Jews of the western world were constantly appealed to to relieve the distress and poverty of their brethren in the east Their civil rights were curtailed, they were cut off from the ordinary avenues of industry, and starvation was their inevitable doom unless they were assisted by the charity of the outside world. In the condition of this population at that time there was, therefore, abundant reason for a movement which resulted in the organization of the ¡North American Belief Society for the purpose of furnishing means for relieving indigence and want. The men who organized this corporation were educated, intelligent Jews, versed in the principles, traditions and literature of Judaism and prominent in all movements of benevolence and charity looking to the relief and elevation of their race. The claim that the incorporators of the North American Belief Society had something other in view in organizing it than the furnishing of temporary relief against poverty and destitution is based to a great extent upon the fact that in 1852, a movement was commenced by Sir Moses Montefiore and others to establish schools and industrial vocations and to promote agriculture m Palestine as a means of accomplishing permanent relief of the Jewish inhabitants. This movement was strongly supported by the “ Occident," the leading Jewish periodical in this country, to which Sampson Simpson was a subscriber. In was urged that this plan was much preferable to that which had prevailed for many years, of giving alms for the temporary relief of the destitute Jews in the east The inference we are asked to draw from the facts connected with this movement and shown in' the evidence, is, that Sampson Simpson and his 'associates in organizing the North American Belief Society intended thereby to aid this movement and that they could not have designed to organize a charity to administer relief according to the old method. But it is to be observed that the new movement had in 1853 hardly taken root

There is no direct evidence that Sampson Simpson, or his associates in the society, had taken any part in it. There was a wide and pressing demand for the relief of immediate want and destitution among the Jews in Jerusalem, and relief of this kind would always be required for the poor, sick, decrepit and aged people, however much might.be accomplished in the direction of permanent relief of the community at large by bettering their educational and industrial condition. We think on considering the whole evidence it would be too much to say that the incorporators in the North American Belief Society had any other-view in organizing it except to furnish relief to indigence in the ordinary way and according to the common understanding of the phrase.

When in 1857 Sampson Simpson came to make his will he had undoubtedly become interested in the new movement which ■ had been under discussion for five years and which had taken shape in the establishment, under the guidance of Sir Moses Montefiore and many other philanthropic men, of schools and industrial enterprises in Palestine for the benefit of the Jews. The will is drawn manifestly under its influence. The question has been asked, to which we have heard no satisfactory answer, why the testator did not designate this corporation as the beneficiary, if he supposed the powers of the society organized in 1853, of which he was president to his death, were adequate to carry out the purposes of his will, or if he intended the bequest to go to that society. The suggestion that he could not know that it would be in existence at the time of the death of his nephew, or if then in existence be a responsible corporation, and that, therefore, he omitted to name it as the beneficiary, seems improbable. He could have given the legacy to the society, subject to the condition that it should be a responsible corporation at the time the gift was to vest in possession. The more natural conclusion is," that the testator looked for the creation of a new corporation toi take the legacy, with the power to execute the broader purpose he had m view.

We feel compelled to affirm the present judgment

Judgment affirmed, with costs.

Finch, Gray and O’Brien, JJ., concur; Earl, Oh. J., Peck-ham and Maynard, JJ., dissent


author: Earl, Ch. J.

text:
    Frederick G. Moore, Resp’t, v. The Prentiss Tool & Supply Co., App’lt.

      (Court of Appeals,

      Filed April 12, 1892.)

    4. Chattel mortgage—Conversion—Parties.
    One who has taken a second chattel mortgage previous to the first chattel mortgage having become due, can maintain an action for conversion against a party to whom the mortgagor has subsequently executed a bill, of sale and to whom he has delivered the mortgaged chattels, if at the time of commencing his action the first mortgage is still not due.
    2. Same.
    In such an action the rights of the parties must be determined on the-facts as they existed at the time of the commencement of the action. The defendant cannot procure an assignment of the first mortgage and make an agreement with itself that it shall be considered due and foreclose it to obtain title.
    3. Same.
    The defendant could not defend the action on the ground that the mortgagor had given said second mortgage on the understanding that plaintiff would start the mortgagor in business. Such an arrangement is merely an, agreement, and could be enforced only by the mortgagor.
    Appeal from judgment of the New York superior court,, general term, affirming judgment for plaintiff, entered on verdict, of jury at trial term, and from order denying motion for a new trial.

      John M. Perry, for app’lt; Pdgar J. Phillips, for resp’t.

       Affirming 39 St. Rep., 361.

   Earl, Ch. J.

On the 21st day of September, 1889, the Yonkers’ Brass Works, owning certain personal property, executed a chattel mortgage thereon to Leonidas 0. Jewett, to secure the payment of the sum of $1,200, in twelve months from its date. On October 28th thereafter it executed another chattel mortgage on the same property to the plaintiff to secure the payment of $2,850 in thirty days from that date. Both mortgages contained a provision that the mortgagor should remain in possession of the chattels until default in payment. Both mortgages .are conceded to be valid and to have been properly filed. ' On the 12th day of November, 1889, the mortgagor executed a bill of sale of the chattels mortgaged transferring them to the defendant, and delivered to it a key of the premises containing the chattels. The plaintiff’s mortgage having become due, and the amount secured thereby not having been paid, early in December, 1889, he foreclosed his mortgage by a public sale of the property, and there became the purchaser thereof, and then demanded possession of the property of the defendant, and such demand being refused, on the 30th day of December he commenced this action for the conversion of the property. Upon the trial, it having been proved that the property was of greater value than the sum secured by both mortgages, the plaintiff recovered a verdict for the amount secured by his mortgage. From the judgment entered upon that verdict the defendant has appealed, and it assails the same upon several grounds, which we will consider.

(1) The learned counsel for the defendant" contends that the plaintiff, being a second mortgagee, did not have such title as enabled him to recover for a conversion of the property, and to sustain his contention he cites the case of Ring v. Neale, 114 Mass., 111. But in that case the first mortgage was probably past due when the second-was given, and it was certainly past due when the action of trover was commenced by the second mortgagee. As the title of the first mortgagee had become absolute at law, it was very properly held that the second mortgagee could not maintain his action. Here, at the time of the alleged conversion by the defendant, and of the commencement of the action, the first mortgage had not become due, and thus this case is distinguishable from the one cited. A more precise authority is that of Treat v. Gilmore, 49 Me., 34.

Strictly speaking, upon the execution of a chattel mortgage a conditional legal title to the property is vested in the mortgagee, which title is subject to defeasance by the performance of the conditions contained in the mortgage, and that title becomes absolute at law in the mortgagee upon default in the payment of the mortgage, and there is left in the mortgagor only an equity of redemption. While this is so technically and theoretically, yet practically the substantial title remains in the mortgagor with all the incidents of a legal title, and he retains the use, control and benefit of the property, subject to the mortgage. If the property is taken from his possession wrongfully during the, time when by the terms of the mortgage he is entitled to retain possession thereof, he may maintain an action for conversion against any wrong-doer, even against the mortgagee. He can sell it and convey a good title, subject to the mortgage, to any purchaser, and it can be seised and sold by virtue of an execution against him. Leadbetter v. Leadbetter, 125 N.Y., 290; 34 St. Rep., 929; Casserly v. Witherbee, 119 N. Y., 522; 30 St. Rep., 92. As the mortgagor can sell the property, so he can mortgage it; and a subsequent mortgage of personal property is not an uncommon form of security in this state. After default in the payment of the plaintiff’s mortgage whatever title the mortgagor had was vested absolutely, subject to the right of redemption in equity, in the plaintiff, and thereafter the plaintiff had the same right to sue for a conversion of the property, or an injury to it, as the mortgagor would have possessed if there had been no default in the payment. Looking at the substance, rather than the form of the matter, we think that a second mortgagee thus situated can maintain an action for conversion.

(2) It is claimed that there was not sufficient evidence of any wrongful conversion of the property by the defendant. Without going into the particulars of the evidence we think it sufficiently appears that the property was in the control and possession of the defendant; that it was sufficiently demanded by the plaintiff, and that there was sufficient evidence that it was wrongfully detained from him by the defendant. It comes with ill grace from the defendant, after it has withheld the property from the plaintiff and contested his right to the same down to the present time, now to claim that it did not withhold it from him. The technical defense that the plaintiff did not lay a sufficient foundation for his action by a previous demand should not now be allowed to prevail unless it rests upon a well established basis.

(3) On the 21st day of February, 1890, nearly two months after this action was commenced, the defendant- procured Jewett to sell and assign his mortgage to one Ray," and thereafter on the 24th day of February it agreed with Ray that the mortgage should then be considered due, and that he might then take all the steps requisite for the foreclosure thereof as if the same had then run regularly to maturity, and thereafter on the 25th day of February, 1890, the mortgaged property was advertised for sale, and on the 28th day of February was sold at public auction to the defendant, and it now claims that the title it thus acquired gives to it a complete defense to this action. It is a sufficient answer to this contention that the rights of these parties must be determined upon the facts as. they existed at the time of the commencement of the action. If the defendant had then wrongfully converted the property, and in consequence thereof the plaintiff then had a cause of action against it for a conversion thereof, it could not defeat that cause of action by fortifying its title in the manner attempted. It procured the assignment of the Jewett mortgage and practically made an agreement with itself that it should be considered due and proceeded to foreclose the same and thus to obtain title to the property under that foreclosure. The rights of the defendant were fully protected, when it was shown that the property was more than sufficient to satisfy both mortgages, by limiting the recovery of the plaintiff to the amount of his mortgage. By foreclosing the Jewett mortgage before as to the plaintiff it was really due, the defendant did not succeed in fortifying its title against the plaintiff.

(4) The defendant alleged in its answer, as a defense, that the mortgage to the plaintiff was given “ upon the express understanding and condition that the plaintiff should, within the time mentioned in said instrument, to wit, thirty days from its date, start and establish the persons composing the said Yonkers Brass Works, or furnish the means for said persons to start and establish the business formerly carried on by them at the said city of Yonkers.” And upon the trial it attempted to give some evidence to sustain this defense, which was excluded by the court after the attorney for the defendant had stated to the court that lie relied upon “ the bald statement that he, plaintiff, was to start this Yonkers Brass Works up in business again if they gave him a chattel mortgage.” The Yonkers Brass Works, the mortgagor,, had apparently gone utterly out of business, and had transferred. all its machinery and property to the defendant. There was no offer to show that it ever requested the plaintiff to comply with the terms and conditions of the agreement alleged in the answer, and it was altogether • too indefinite to be carried out. Whatever it was it was not a condition precedent, and it cannot be treated as a condition subsequent Conditions subsequent are not favored, and the arrangement, whatever it was, should be treated as an agreement. Avery v. N. Y. C. & H. R. R. R. Co., 106 N. Y., 142; 8 St. Rep., 612; Post v. Weil, 115 N. Y., 361; 26 St. Rep., 131. If the agreement was sufficiently definite to be enforced it could only be enforced by the Yonkers Brass Works, and no rights under that agreement and no damages for a breach thereof were transferred to this defendant, or are in any way available to it. Therefore, even if the paroi arrangement alleged could have been proved, it would have been wholly immaterial.

We have reached the conclusion that the defendant has been unable to point out any error' affecting this judgment, and it should be affirmed, with costs.

All concur.


text:
    Philip Goldberg, Resp’t, v. The New York Central & Hudson River R. R. Co., App’lt.

      (Court of Appeals,

      Filed April 12, 1892.)

    1. Negligence—Railroad—Injury to passenger.
    Plaintiff, a passenger on one of defendant’s trains, alighted from the north hound train on the side opposite the station and was struck by the south hound train, which was under full control, with its hell ringing, and running at a speed not exceeding three miles an hour. The engines of the two trains passed each other 100 feet north of the point of the accident. Held, that defendant was not guilty of negligence.

      % Same.
    The rule prohibiting trains approaching stations when other trains are-discharging passengers has no application when both trains are moving.
    Appeal from judgment of the supreme court, general term, second department, affirming judgment in favor of plaintiff, entered on verdict of jury.

      Hamilton Harris, for app’lt; William Riley, for resp’t.

       Reversing 39 St. Rep., 785.

   Andrews, J.

We are unable to find any evidence in the case justifying a finding of negligence on the part of the défendant. The south bound train which struck the plaintiff approached the station under full control, with the bell ringing, and moving according to the undisputed evidence at a speed not exceeding two or three miles an hour. The north bound train, from which the plaintiff had alighted, had started from the station before the trains met, after discharging and receiving its passengers, and the engines of the two trains passed each other at least 100 feet north of the point of the accident. Rule 110 prohibits trains from approaching stations when other trains are discharging their passengers. This rule was not violated by the engineer of the south bound train. This rule has no application when both trains are moving.

Neither the engineer nor the fireman of the south bound train saw the plaintiff. If as the plaintiff claims he could not see the south bound train by reason of the steam from the engine of the north bound train obstructing his vision, there can be no inference that the engineer and fireman of the south bound train saw or could have seen the plaintiff. The train on which the plaintiff had taken passage 'ran on the east of the three tracks, the one nearest the station. Instead of alightest on the east side where the station and platform were, he, for his own convenience, to reach the dock on the river, alighting on the west side, and to reach the dock was obliged to pass over two tracks between that point and the river, and was struck by the engine of a train on the west track. The trainmen were instructed to require passengers arriving at the station to leave the train on the east side. But passengers sometimes got off on the west side. It was shown that the employees of the company were accustomed to prevent their doing so when they observed passengers attempting to get off on that side.

The jury have found that the plaintiff was free from contributory negligence against what seems to be the great preponderance of evidence. But conceding that there was a question for the jury, we think the judgment should be reversed for want of any proof of the defendant’s negligence. The trainmen violated no rule. They were not in fault for not seeing the plaintiff, as must be assumed upon the plaintiff’s own theory of the situation. The great probability is that the plaintiff attempted to run across the tracks in advance of the train or blindly proceeded without looking. But on his own version of the circumstances, taken in connection with the uncontradicted facts as to the management of the south bound train, the plaintiff did not make out a cause of action.

The judgment should be reversed and a new trial granted.

Judgment reversed and new trial granted, costs to abide event.

All concur.


text:
    Peter Shields, Ex’r, Resp’t, v. The New York Central & Hudson River R. R. Co., App’lt.

      (Court of Appeals,

      Filed April 12, 1892.)

    Master and servant—Negligence.
    Plaintiff's testator had charge of the coal cars in and about defendant’s coal shute and yard. While standing on the top of a car loaded with coal the chain holding the trap up in the center of the car broke and let down the trap and he passing through with the coal was so injured that he died. He knew that the car was imperfect; that it was his duty not to use it, but to send it to the shop for repairs; it was his especial duty to examine the cars and if found out of.repair to send them to the shop. Held, that he was gdilty of contributory negligence and should have been nonsuited.

      Appeal from judgment of the supreme court, general term, second department, affirming judgment in favor of plaintiff entered upon verdict.

      Robert F Wilkinson, for app’lt; John Hackett, for resp’t.

       Reversing 39 St. Rep., 750.

   Earl, Ch. J.

James Murphy, the plaintiff’s testator, had been in the employment of the defendant for many years, in its depot yard at Poughkeepsie. His general duties were those of brakeman and switchman in the management of the coal cars on and about the coal shute and in the yard at that place. He and others were engaged in gathering up the coal under the shute which fell upon the ground while engines were taking coal. The coal thus falling upon the ground was loaded upon cars and taken upon the shute and dumped. There was a trap in the bottom of each car to which a chain was attached, which by means of a crank could be wound up and then hold the trap in its place; and when a car was to be emptied of coal this crank was turned and the trap let down and the coal thus discharged. In January, 1889, the deceased was engaged in the discharge of his duties in switching two coal cars, and while standing on the top of a car loaded with coal the chain broke and let down the trap and he passed through with the coal and was so injured that he died a few months thereafter, and this action was brought to recover damages on account of his death.

It appeared that about two weeks before the accident one of the links in the chain was broken and the chain was mended, by employees of the defendant engaged in and about the same business with the deceased, by means of wires wound around the two links where the chain broke and thus fastening them together; and in that condition the car was subsequently used. About two days before the accident it was discovered that the trap could not be drawn up flush with the bottom of the car, and thus the coal would drop out, and then the employees of the defendant in the presence of the deceased put boards over the trap to prevent the coal from running out, and thus the car was being used at the time of the accident. Ro one saw the deceased at the precise time of the accident, and it is only an inference that he went upon the top of the car in.the discharge of his duties at the time the chain gave way and he fell through.

It is claimed on the part of the plaintiff that the chain was imperfectly repaired by the wire wound around the links, and that because of its imperfect condition it gave way, causing the testator’s death; and the defendant was held liable for a breach of its duty to furnish the deceased with a safe car for his use.

We think that upon the undisputed evidence the plaintiff should have been non-suited. It is undisputed in the evidence that the deceased had the immediate charge of the movement of the cars with which he was engaged. There were cars in perfect condition always in the yard ready for use, and he had the selection of the cars to be used. He was not bound to use an imperfect car, but could at any time select one in proper condition for his use, and it was his business to determine what cars in the yard should be selected for his use. At the time the boards were put in the car to prevent the coal from running out his attention was called to the imperfect condition of the car by one of. the employees, and he was informed in very strong language of the propriety of taking tjie car out of the yard. It does not appear affirmatively that he knew that the chain had been broken, but he could have seen that it had been if he had looked and made any examination. He told one of the defendant’s witnesses after the injury, and while he was lying in bed in his house, that if he had thrown the car out he would not have been there. No witness testified to the breaking of this chain ; but it appeared that it was usual when the coal was frozen in the bottom of a car, and the chain could not be moved and the trap thus lowered, for the employees to break the chain so that the trap could be let down; and the inference is that this chain was broken in that way, as there is no evidence justifying the inference that it was broken in any other way. It was proved by - his superior, the train m'aster, under whose direction he worked, that lie reported to him in the winter of 1888 that employees were breaking these chains to let down the traps. He was requested to examine the traps to see that they were all fastened up so that the cars -would be safe to run, and to be specially careful and get all the cars where chains were broken together and send them to the shop for repairs, and to see that none of them were used in an imperfect condition.

He was cautioned not to use any cars’that were damaged in any way, and- it “was made his especial duty to examine the cars, and not to use any that were imperfect, if he found any such, but to send them to the shop for repairs. These instructions to the deceased were repeated from time, to time, and thus it was made his business to examine the cars, and see that imperfect cars were not used. Another witness called on the part of the defendant, who was its agent having charge of all its business at Poughkeepsie, testified that he received orders from the defendant’s superintendent early in January, 1889, to be sure and have the hopper bottoms of coal cars closed before they were sent' out of the yard, because there were so many of them being broken by the men wedging them out and breaking the chains, and he told the deceased he should hold him responsible to have those cars where they were broken sent to the shop, and have none of them kept in the yard. This evidence is uncontradicted, and the court and jury had no right to disregard it. Thus we have this state of facts: that the deceased knew that this car was imperfect;' that it was his' duty not to use it, but to send it to the shop for repairs ; that it was his especial duty to examine the cars and see that they were in good order, and if found out of repair, not to use them, but to send them' to the shop. In negligent disregard of his duty, he used this car, and was injured, and it is entirely clear, therefore, that the consequences of that injury cannot be visited upon the defendant.

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

All concur.


text:
    Baldwin’s Bank of Penn Yan, App’lt, v. John H. Butler, Impl’d, Resp’t.

      (Court of Appeals,

      Filed April 12, 1892.)

    Appeal—Hew trial.
    This court will not consider an appeal from an order of the general term, affirming an order of the trial judge setting aside a verdict and granting a new tr.al on the merits on the ground that the verdict was against evidence.
    Appeal from judgment of the supreme court, general term, fifth department, modifying and affirming an order granting a new ' trial to defendant after a general verdict against him at circuit.

      M. A. Leary, for app’lt; Jno. Gillette, for resp’t.

       See 38 St. Rep., 983.

   Andrews, J.

It was said in Young v. Davis, 30 N. Y., 134, that “ it is the invariable practice of this court not to review orders made by the supreme court granting, new trials on the ground that the verdict was either against evidence or against the weight of evidence.” It has since been repeatedly held that the jurisdiction conferred on this court to entertain appeals from orders granting or refusing new trials is inapplicable to jury cases where the order was made upon the facts. The general term may review an order in such a case, but there the right of review ends. This is an appeal from an order of the general term affirming an order of the trial judge setting aside a verdict and granting a new trial on the merits on the ground that the verdict was against evidence. The order was not a final order. No exception was or could be taken to the decision of the trial judge, and this court deals with exceptions only, unless otherwise expressly provided in the Code. The cases are decisive against the right of appeal to this court in a case like this. Folger v. Fitzhugh, 41 N. Y., 228; Wright v. Hunter, 46 id., 409; Campbell v. Page, 50 id., 658; Standard Oil Co. v. Ins. Co., 79 id., 507.

The appeal should be dismissed for want of jurisdiction.

All concur.


author: Maynard, J.

text:
    James H. McGean, Ex’r, Resp’t, v. The Metropolitan Elevated R. Co. et al., App’lts.

      (Court of Appeals,

      Filed April 12, 1892.)

    1. Railroad—Elevated—Injury to real estate—Conveyance pending action.
    Plaintiff conveyed the premises in question pending an action against defendants, an elevated railway company, for an injunction to restrain them in the operation of their road’ past the premises and for damages. The deed reserved to plaintiff “all damages caused, or to be caused, by the present, past or future maintenance and operation of the elevated railway, * * * and the fee and easement * * * occupied and invaded by the said railway structure.” Held, that the plaintiff, by the reservation in the grant, preserved his right to continue the action.
    2. Same.
    As to whether the owner of real property injuriously affected by the maintenance of an unlawful structure in the street upon which his property abuts can, either before or after suit brought, convey the entire premises and reserve to himself the right to maintain an action in equity to restrain the continuation of such structure, or for the recovery of the permanent damages to the property by reason of its maintenance, queme.

    Appeal from judgment of the supreme court, general term, first department, affirming judgment for plaintiff after trial of issues at special term.

      Brairiard Tolies, for app’lts ; Eager Foster, for resp’t

       Affirming 39 St. Rep., 341.

   Maynard, J.

This action was brought July 19, 1889. The judgment appealed from restrains the defendants from maintaining an elevated railway structure on or in front of plaintiff’s premises, known as No. 15-J- Division street in the city of New York. The injunction is nqt to be operative if the defendants shall within one month elect to pay plaintiff the sum of $1,500, as and for the permanent damages to the fee of the premises sustained by him in consequence of the appropriation by the defendants of the use of the street for such a purpose. Upon payment, or tender of such sum the plaintiff is required to execute a conveyance of the property found by the decision to have been taken by the defendants, and in case of failure to execute such conveyance it is, in substance, provided that the judgment of injunction shall have no force or effect. Damages to the amount of $500 are also awarded for the injury to the property during the time intervening between June 10, 1887, and-March 20, 1890.

The rightfulness of this judgment is not questioned exceptjupon a single ground. It was proven by the plaintiff upon the trial, and it has been found by the trial court, that after issue was joined and on March 20, 1890, the plaintiff conveyed the premises to one Rosenbaum, for the consideration of $8,800. It is, for this reason, contended that plaintiff was not, at the time of the trial, entitled to any preventive relief with respect to these premises, and, in the absence of the right to such relief, that the court could not retain jurisdiction of the action for the purpose of awarding damages for past injuries. It is undoubtedly true that the substantive cause of action in all such cases is the right to a prevention of the continuance of the trespass upon plaintiff’s property by the defendants, but when this right is established the equitable jurisdiction of the court is complete, and it can award the injured party full compensation for all the damages sustained by the wrongful act sought to be enjoined, subject to the statutory limitations of time.

It is equally true that if there is no such right to a preventive remedy, the matter of damages for past trespasses cannot be the subject of inquiry in a court of equity. Relief must be sought in another forum. In this connection, it is to be observed that the defendants do not claim that the right to this - kind of a remedy is extinguished by a transfer during the pendency of the action. Its existence is admitted, but it is asserted that it has been transferred by the plaintiff’s own act to his grantee, and that the latter alone can prosecute the action. It would seem that in such a case § 756 of the Code of Civil Procedure would be a suffi■cient answer to such an objection. That section provides that in case of a transfer of interest, the action may be continued by the original party, unless the court directs the person to whom the interest is transferred to be substituted in the action or joined with, the original party, as the case requires. The action proceeds in the same manner as if the conveyance of the property, which is the .subject of the controversy, had not been made, unless the court directs the grantee to be made a party. The question cannot properly be presented for the first time upon the trial of the action, but must be brought to the attention of the court either by motion or by a supplemental pleading. If the defendant has not had .the means of knowing that the plaintiff has parted with his title to the subject matter of the action until the fact is disclosed upon the trial, and he desires to have the new party in interest substituted for or joined with the original plaintiff, he can move to have .the trial arrested until the necessary steps can be taken for that purpose, and the trial court can suspend the proceedings, if, in the exercise of a sound discretion, it is satisfied that the adoption •of such a course is necessary for the protection of the defendant. It is not seen how, ordinarily, the defendant is prejudiced by a transfer of the plaintiff’s interest pendente lite, unless there is some •question of the solvency of the parties involved. A judgment recovered against the original party would as effectually conclude his assignee after suit brought upon all the issues litigated as if the latter had been substituted in place of his assignor. The .statute makes no distinction in this respect between actions at law and in equity, provided the cause of action is assignable. •Story’s Equity Pleadings, § 156.

This view does not militate against the rule which authorizes ■courts of equity, where they have once obtained jurisdiction of .a cause, to administer all the relief which the nature of the case and the facts require, and to bring such relief down to the •close of the litigation between the parties. The subject of the ■controversy remains unchanged; which is the unlawful appropriation of certain rights, or easements, which are appurtenant ■or incident to the premises designated in the complaint, and if the decree rendered concludes the owner of the property, wherever he may be, it matters not that the title has shifted during the progress of the action.

But in the present case the plaintiff has not parted with his title to the cause of action, or to the entire property to which it relates. His deed to Rosenbaum contains the following important reservations: “Reserving to the vendor all damages to said property caused or to be caused by the present, past or future maintenance and- operation of. the elevated railway on Division, ■street as now constructed, and all the fee and easement in Division street now or heretofore or hereafter occupied and invaded by the said elevated railway structure, when maintained ■and operated as aforesaid, and the conveyance is made subject to the said reservation to the said party of the first part, his heirs, •executors and administrators.”

He has thus retained all the title which he ever had to the rights and easements appropriated by the defendants and to the fee of one-half of the street in width in front of No. 15£ Division street. This street was laid out in 1765, under articles of agreement between Henry Rutgers and James DeLancey, who owned the lands which it traverses, by the terms of which it was mutually covenanted that it should be laid out on the division line between their respective farms, and each granted to the other a fee interest in that half of the street immediately abutting upon the grantee’s property, subject to the right of t.he public to use the same as a highway; and each conveyed to the other an easement of light, air ana access in the remainder of the street. The decision of this court in Henderson v. N. Y. Central R. R. Co., 78 N. Y., 423, thus becomes directly applicable.

In that case the plaintiff, when he brought-the action, was the owner of some of the abutting lots and also of the fee of the street, subject to the public easement therein for the purposes of a highway. Before the action was brought the plaintiff had sold some of the lots and before the. last trial of the action had sold and conveyed the remaining lots, reserving, however, the fee of the street and the damages to the adjacent property, both past and prospective; and it was held that his right to the equitable interierence of the court for his protection against the encroachments of the defendants was not thereby affected, and the court decreed a perpetual'injunction, unless the defendants paid the amount found by the referee to be a fair compensation for the additional burden imposed upon his property. It is true, there is not a separate finding in this case, as there was there, as to the value of the fee of the street or its depreciation in consequence of its occupation by the defendants. But it is not seen how the application of the principle is in any wise affected by this omission. It has been found that the existence and use of the defendants’ structure and its threatened. continued use has permanently damaged the fee value of the entire premises to the amount of at least fifteen hundred dollars. There was no request to find, separately, the amount of permanent damage to the fee of the street and to the property conveyed by the plaintiff.

• They are so connected-that a separate finding as to each might be difficult, if not impracticable. - As the right to the damages to-both pieces of property was still in the plaintiff, such a finding was unnecessary. So long as the ownership of the fee of the street and of the damages to the adjacent property remained in the same person, equity would -not permit the defendants, to acquire a right to maintain its structure in the street without paying the damages to the adjacent property which the erection and maintenance of such structure have inflicted upon it.

This view is in harmony with the well settled rules of equitable jurisprudénce. No principle has been more frequently asserted, or is so well established, as that when a court of equity has jurisdiction over a cause for any purpose, it may retain the cause for all purposes and proceed to a final determination of all.the matters at issue. To such an extent has the doctrine been carried that it has been declared that if the controversy contains any equitable feature, or requires any purely equitable relief belonging to the exclusive jurisdiction of equity, or pertaining to the concurrent jurisdiction of equity and law, and a court of equity thus acquires a partial cognizance of the action, it may go on to a complete adjudication and establish purely legal rights and grant legal remedies which would otherwise be beyond the scope of its authority. Pomeroy’s Eq. Juris., §§ Í81, 231, 242. So long as one of the grounds of equitable interference in this class of cases is the avoidance of a multiplicity of suits, this rule must prevail. The plaintiff being entitled to a decree restraining the defendants from the unlawful use of .the street in which he still has an interest, it was the duty of the court to award him all the damages sustained in consequence of such unlawful use. As to the permanent damages for the injury to the fee, the defendants are not compelled by this judgment to pay them. They have been ascertained and payment of them provided for as a favor to the defendants, and as a condition upon which they may be relieved from the disastrous consequences to their business which must result from the maintenance of the perpetual injunction, to which in strict equity the plaintiff .is entitled. The defendants are not harmed, but favored by such a disposition of the cause. Further litigation is avoided and a perfect right acquired to maintain in the street in front of these premises what has hitherto been an illegal and unauthorized structure. The grantee of the plaintiff has no interest in the subject of this controversy.. He has taken his conveyance with a reservation to the plaintiff of the fee of the street and the permanent damages to the adjoining property. Presumably, to the extent of the value of the rights thus reserved, the cost of the property to him has been proportionately diminished. He is estopped by the reservation in his deed, which is to be given the same effect as a direct grant, from asserting any title to any part of this cause of action, or to the rights which the defendants will acquire under the judgment, which puts them in privity of title with the plaintiff.

We have not considered, and, in view of the peculiar features of this case, we deem it unnecessary to consider or determine the abstract question, whether the owner of real property injuriously affected by the maintenance of an unlawful structure in the street upon which his property abuts can, either before or after suit brought, convey the entire premises and reserve to himself the right to maintain an action in equity to restrain the continuance of such structure, or for the recovery of the permanent damages to the property by reason of its maintenance. Such question must be reserved until it arises in concrete form. In the present case the grantor has retained title to a part of the fee of the premises, and unquestionably sufficient to preserve intact the jurisdiction of a court of equity.

The judgment must be affirmed, with costs.

All concur.


author: Finch, J.

text:
    John Glenn, Trustee, App’lt, v. David J. Garth et al., Impl’d, Resp’ts.

      (Court of Appeals,

      Filed April 12, 1892.)

    Stocks—Tran beer without authority to broker’s same.
    One F., desiring to obtain stock in a Virginia company, applied to defendants, New York brokers, accustomed to buy on margin, to buy and carry it for him. At F.’s suggestion the stock was picked up in Baltimore by McK., who, by mistake, caused the stock purchased to be transferred on the books to defendants. When the certificate reached defendants they wrote McK., after paying therefor, repudiating the transfer and directing him to sell and retransfer the stock, and in order to enable him to do so defendants signed an assignment in blank, and he sold it, but it was not retransferred on the books. The corporation having failed, theassignee seeks to compel defendants to pay eighty per cent, the amount remaining unpaid upon their stock. Held, that defendants never became stockholders and were not liable for such unpaid assessment upon the stock.
    Appeal from judgment of the supreme court, general term,, first department, granting new trial upon exceptions ordered to be heard in the first instance at general term, a verdict having been directed for the plaintiff.

      Burton V Harrison and John Howard, for app’lt; W. W. MacFarland and Wm. C. Clopton, for resp’ts.

       Affirming 39 St. Rep., 473.

   Finch, J.

This action rests upon contract. Its foundation is-an express agreement between the corporation on the one side and the defendants on the other. It depends upon a created and existing contract relation from which, and from which alone, can "spring the liability alleged. Mahon v. Macy, 51 N. Y., 155; Matter of Reciprocity Bank, 22 id., 9; Keyser v. Hitz, 133 U. S., 138. To establish that relation, it must appear that the minds of the-parties met, that the defendants agreed to be and become stockholders in the corporation with the privileges and responsibilities-of that relation, and that the corporation accepted them as such. The former could not be put in that position against their will, without their consent, by the unauthorized and unratified act of a -third person, for in such case there would exist no contract relation, no mutuality of agreement, but simply a mistake, or a wrong, which the defendants might ratify and condone, or repudiate and reject. The judgment of the general term which reversed that rendered by the trial court in favor of the plaintiff rests upon this doctrine, and holds that the defendants never took upon themselves the contract relation of stockholders in the Virginia corporation, and we are to determine whether that fact appears without'either proof or admissible inference to the contrary, since the reversal was for error of law, and founded upon exceptions.

The facts established were the following: The corporation was created under the laws of the state of Virginia, with a capital stock fixed at $5,000,000, of which but twenty per cent, had been actually paid in. The remaining eighty per cent, was payable by the stockholders whenever called for by the company, and upon such call became a debt, and due in accordance with the terms of the lawful demand.

That corporation supplanted and superseded a prior organization of similar plan and purpose, but with a much smaller capital stock ; and among the corporators of the earlier company was one Ficklin,who maybe supposed to have known and understood the financial condition and prospects of each company. _ He desired to purchase some of the stock of the new corporation, but lacking the necessary funds, applied to the defendants to buy it and carry it for him. The latter were bankers and brokers, in the daily habit of carrying stocks upon a margin and conducting such business in one uniform and customary manner. Buying for others, and not for investment, they never caused the stock purchased to be transferred to themselves upon the corporate books, and never intended to be and never became stockholders in the companies whose securities or certificates they handled. What they bought, or held as collateral, was always the certificate of some stockholder, -assigned in blank, and which might pass through many hands before a transfer on the books of the companies. By this process they bought and held the right to become-stockholders; the potential authority and opportunity to assume that relation; but were equally at liberty not to do so; at least in all cases where the corporate law recognized no transfer except upon the corporate books. Before such transfer the defendants were in one sense holders of stock, but not, in their relation to the corporations, stockholders. To these brokers, doing business in this manner, Ficklin applied to buy for him the stock of the transportation company and carry it for him upon a margin; and they assented, knowing the stock to be assessable and not listed; and both parties contemplating an ownership by the customer and a lien or hypothecation as the interest of the broker. Whatever-purchase was made by the latter was meant to be as agent for the customer and not as owner. It was at Ficklin’s suggestion that the stock was picked up in Baltimore and most of it through the agency of McKim. Who directed him to buy is not entirely certain. The strong probabilities are that it was Ficklin, but, whoever it was, the order given was to buy the stock for the account of the defendants and send the certificates and bill to them. There is no pretense that any direction or authority was given by anybody to McKim to cause the stock to be transferred upon the books of the company ; whether the order was given by one of the defendants or by Ficklin it did not extend to such a transfer, and could not have done so without violating the actual contract made and the proved intention of the parties.

But at this point McKim made a mistake without which the present litigation would have been impossible, and upon which the whole claim of the plaintiff rests. He caused the stock purchased to be transferred to the defendants upon the books of the company. He did so honestly enough, but without authority or direction and solely by reason of his ignorance of the actual facts and his misinterpretation of the purpose of the parties. His act ■did not make the defendants stockholders. He was not empowered to make any such contract or establish any such relation; and could not impose it upon them by an act which was in no sense theirs. The defendants could only become responsible for it by estoppel or ratification. There never was any basis for an equitable estoppel. Neither the company nor any of its creditors did anything, or forbore anything upon the faith or because of the appearance of ownership in the defendants. The case is bare of any such proof. The question raised, however, is one of ratification, and grows out of the .subsequent action of the defendants. When the certificate reached them they discovered McKim’s mistake. Garth wrote to him repudiating the transfer and denying his authority to make it, and directing him as a ■means of undoing the mischief to sell and transfer the whole four hundred and ninety shares. To enable .him to do so, in accordance with established forms, the defendants signed and executed -an assignment in blank of the stock transferable by delivery, and McKim sold it, but it was not transferred' upon the corporate •books. Before that could have been done, or at all events before it was done, the corporation failed and made a general assignment to trustees for the benefit of creditors, and no transfer on the books having been accomplished, the defendants are sought to be charged as stockholders with the whole eighty per cent remaining unpaid upon the stock subscriptions. The question, therefore, culminates in the legal effect of the conduct of the defendants, and becomes an inquiry whether their act, intended as a repudiation, meant to undo what had been done and so de■clared and described at the time, must nevertheless because of its form be deemed evidence of an assent never in truth given. In considering that question we may proceed upon the actual "facts, and unhampered by any equities founded upon their false appearance, since none such existed.

It is first said that the defendants paid McKim for the stock after they had received the certificates and with full’ knowledge of their form. I think the evidence makes reasonably possible such an inference, and so accept it as a fact. But such payment it was the duty of the defendants to make and the right of McKim to require, notwithstanding the mistake made. His fault was not in buying the stock; he was authorized to do that; and the defendants were bound to reimburse him. The mistaken form of the certificates, justified a demand for correction, but not a refusal to pay as between defendants and McKim, and such a correction would be consistent with the purchase by the agent and the payment by the principal. That payment was a confirmation of the authorized purchase, but not a ratification of the unauthorized act which followed it. That was repudiated at the very time of the payment, and consistently with it both to McKim, the broker, and Eicklin, the general owner.

But greater reliance is placed upon the action which followed. •As has been explained, the defendants, instead of returning the •certificates to McKim with a demand that their form be changed, assigned them in blank and required him to sell them. Unexplained, the act recognized an ownership and the existing transfer to the defendants, and was imprudent exactly for that reason. "Why they did so we can easily see. They must have realized that McKim might be unable' to procure a cancellation of the transfer on the books, or meet with delay and possibly litigation in the effort; and that if the certificates were delivered to Ficklin to be registered in his name and then be assigned by him in blank to defendants, they would be left without security in the interim. Both methods of procedure, although acts of disaffirmance and repudiation, would require an assignment by the defendants of the formal record title in them. The company would naturally require it for their safety and to preserve the regularity of their books, if a cancellation was sought; and it would be equally necessary in order to put title in Ficklin. In carrying out those methods of correction and disaffirmance, the formal assignment of the formál title, instead of proving ownership, would be an element in the disclaimer of ownership.

The method of an immediate sale involved in the same way a transfer of the same formal legal title, and when done, not as a confirmation of ownership, but as a method of changing the-registry of the company with a view of correcting the false appearance of ownership, I can see no reason for deeming it a confirmation or ratification. For what is a ratification where no rights of third persons are involved ? It implies a conscious and intended approval of the act done. It rests upon the actual and existing purpose to make such approval. Hence, the courts say, that it must occur with full knowledge of all the facts. It rests in the intention, where the question is between the original parties, and depends upon the fact and not upon appearances. In this case we know that the intention was to disaffirm and repudiate the apparent contract relation seemingly established by the mistaken action of. McKim and that the assignment in blank for purposes of sale was not meant to affirm the apparent ownership, but to transfer the formal legal title put in the defendants against their will. The facts show without contradiction that the defendants never entered into the contract relation with the corporation of stockholders therein, but on the contrary refused to be put in that position and acted with a view to undo and alter the appearances in such direction which occurred without their consent. As between the original parties that could not be deemed a ratification which was accompanied by a refusal to ratify and a declared purpose to undo the unauthorized act. The form adopted, by itself and unexplained, would tend to an inference of ratification, but it is not left unexplained. The actual truth is established and that truth must prevail over the form adopted as between parties who have not been misled to their harm by the form of the transaction as distinguished from its substance.

But it is further claimed that under the statutes of Virginia, as expounded by their courts, the transfer upon the books of the company is conclusive upon the defendants and makes them stock-' holders at least as to creditors, irrespective of the circumstances of the registry. It is obvious that any enactment which enabled a wrongdoer to load upon a stranger the heavy responsibilities of & stockholder without his knowledge or assent would be an ■outrage upon the rights of the individual not to be expected. The statutes of Virginia accomplish no such wrong, but operate reasonably within certain well defined limits. We are referred to the Code of 1860, chap. 57 and § 27. That regulates the rights of the assignor of stock appearing as owner upon the corporate books relatively to his assignee who does not so appear and to the creditors of and subsequent purchasers from the former, and vests the title in the assignee, not, let it be observed, for all purposes, but, “ so far as may be necessary to effect the purpose of the sale, ■pledge, or other disposition,” and subject to the provisions ■of the twenty-fifth section. That is in these words: “ A person, in whose name shares of stock stand on the books of the company, shall be deemed the. owner thereof as regards the company.” 'The plain meaning is, that the corporation which has acknowl-edged the ownership and accepted its evidence and admitted it "upon its records shall not be at liberty to dispute it. Its meaning is not that it shall be conclusive against the alleged stockholder. ' Indeed in Vanderwerken v. Glenn, 85 Va., 9, the court ;state the rule to be that the record upon the corporate books is prima facie evidence of the ownership, and after examining all the cases referred to, I find none which venture any further. In Magruder v. Colston, 44 Maryland, 350, the pledgee of stock had himself caused it to be registered in his own name as owner, and became a stockholder by his conscious and voluntary act and .assent as respected the company and its creditors. And in McKim v. Glenn, 66 Maryland, 482, reliance was put upon the transfer •on the books largely upon the ground that there was no foundation for saying that the transfer was made without authority.

If in some of the cases there were expressions indicating an •■approach to the idea of an equitable estoppel upon the ground that creditors might be presumed to have trusted the company upon the faith of the apparent ownership, they did not in the end rest upon it, because in every instance the transfer on the books was shown-to be the defendant’s conscious, voluntary and intended .act and not the representation of a falsehood. Here the trustee who sues represents the corporation and the whole body of its ■creditors. I cannot find even that any creditor became such after the transfer by McKim, or with knowledge of the names of the .stockholders, or that anybody, up to the moment of the failure and of the trust deed which fixed all the creditors’ rights, did anything or forbore anything upon the faith of an ownership of .stock by the defendants. We may stand, therefore, as did the general term, upon the truth of the transaction as proved and established. The presumption which might have flowed from the form of the transaction disappears upon the explanation made, ■and in view of the substantial truth proved by the evidence.

The order should be affirmed, with costs, and with judgment absolute against the plaintiff upon the stipulation.

All concur.