author: Cullen, J. Dykman, J.

text:
    George Aldridge et al., App’lts, v. John P. Clausen, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    1. Navigation bulbs Nos. 32 and 17—Obossing and ovebtaking vessels.
    In the navigation of a narrow river or arm of the sea, in determining whether a vessel is overtaking or crossing within navigation rules Nos. 22 and 17, regard must be had for the general direction of the vessels, whether up or down the river, and not altogether to the courses on which they may be running at a particular moment. If the vessels are going up the river, the one down the river should be considered an overtaking vessel, regardless of their courses.
    2. Same—What constitutes a obossing vessel.
    A difference of three points between the courses of the vessels does not make it a case of crossing vessels. Dykman, J., dissenting.
    Appeal from a judgment dismissing the complaint rendered upon the trial of the case at the Dutchess county circuit, without a jury.
    The facts appear in the dissenting opinion of Dykman, J.

      H. H. Hustis and JR. D. Benedict, for appl’ts; Edwin G. Davis, for resp’t.
   Cullen, J.

This appeal is from a judgment dismissing the complaint on a trial before a justice of this court without a jury. It is doubtful whether the exceptions of the plaintiff are sufficient to raise any question on this appeal, because the trial justice was not requested to find any facts on which a recovery by the plaintiff could be predicated; and, hence, of course, no exceptions were taken to any refusals by the court to find such facts. However, we are disposed to pass over this question and examine the case on the merits to see if there was an error committed by the trial court.

This action was brought to recover damages sustained by the plaintiffs’ sloop by a collision with the defendant’s lighter in the East river. Both vessels were beating up the river, with the wind dead ahead; and, at the time of the collision, both were on the starboard tack, the lighter being to the windward. The sloop entered the East river after the lighter, and not only sailed faster than the lighter, but also closer to the wind. The main point involved in this controversy is whether, at the time of the collision, the sloop is to be considered, with reference to the lighter as an overtaking vessel or a crossing vessel. If an overtaking vessel, then, under the twenty-second navigation rule, it was the duty of the sloop to have kept out of the way of the lighter. If the vessels are to be considered as crossing, then, both having the wind on the same side, the windward vessel, that is, the lighter, was bound, under the seventeenth rule, to keep out of the way of the sloop.

The contention of the plaintiff as to the fact is that there were three or four points difference between the courses of the two vessels, and as to the law is, that such a difference makes the sloop a crossing vessel instead of an overtaking vessel. As to the question of fact, here also the plaintiff’s case is defective. There seems to be nothing in the evidence fixing, with even approximate accuracy, the difference in the courses of the vessels. The seventh finding of fact is, that the lighter could not lie within several points as near the wind as the sloop, but there is no finding determining the absolute courses of the vessels. But, if it be assumed that there was a difference of three points between the courses of the vessels, still we are of opinion that the sloop was an overtaking vessel and not a crossing vessel within the navigation rules.

Three cases are cited by the plaintiff to sustain the claim that such a divergence of course constitutes a crossing vessel. The first is the Case of “The Clement,” 1 Sprague, 257. In that case there was a difference of only two points between the courses of the vessels, and the vessel to windward was held in fault in not keeping out of the way of the leeward vessel. But this decision, which arose before the navigation rules, was based solely on the ground that the windward vessel had the wind free, and not with reference to the fact that the vessels were to be considered as crossing.

The second , is the Case of “ The Cayuga” (14 Wallace, 270). In this case, the difference between the courses of the vessels was over three points, and the case was held to be one of crossing vessels. The court held that the rule as to overtaking vessels did not apply, because, at the time precautions first became necessary, the distance between the vessels on a line at right angles to their courses was very great and the steamers nearly abreast.

The third is the Case of the ‘Peekforton Castle ” (2 Law Reports P. D. 222). Here, also, the question arose whether it was to be considered a case of a crossing or overtaking vessel. The admiralty court found the divergence or difference of the courses to be four points, but based its decision on the ground that the windward vessel had the wind free, and should therefore have avoided the collision. On appeal (3 Law Reports P. D., 11), the court held that the difference of course was at least five points, and that the “ Peckf orton Castle ” had never been seen from the colliding ship in any direction abaft her beam, and that, hence, it was strictly a case of crossing vessels in which it was the duty of the windward vessel to avoid the other.

It will thus be seen that the cases cited (the last two of which only are in point,) do not attempt to define what is a crossing vessel with regard solely to the difference of their courses. Nor can I find any case in which the difference of the courses is made the sole controlling element. In the Case of ‘ The Franconia ” (2 Law Reports P. D., 163) the question, also, arose whether the case was to be considered one of crossing ships or of an overtaking ship. The court there says, “ The rule as to crossing ships uses that as a term of navigation, not as a mathematical term. So when the rule speaks of one ship _ overtaking another it is a c sea ’ and not a mathematical term.” It then proceeds that “ a vessel will be considered an overtaking vessel, if the hinder vessel is so far astern that it cannot see the side light of the forward ship, even though their courses be not parallel.” But, in all those cases, the vessels were in comparatively broad waters and not going in the same general direction. In the case of ‘< The Cayuga, ” the steamers were crossing the river from opposite sides. In the case of “ The Peckf orton Castle,” the vessels were at sea at the end of the English channel, one bound up the channel and the other down. The rules held applicable in those cases can not fairly apply to the navigation of a narrow river or arm of the sea. In such a case, it seems to us, that in determining whether a vessel is.overtaking or crossing, regard must be had for the general direction of the vessels, whether up or down the river, and not altogether to the courses on which they may be running at a particular moment. The narrow and tortuous channels of rivers in this country oftentimes compel a vessel to change its course frequently and in the shortest distances. If such change of course is to determine the application of the rules of navigation, it would follow that the rules controlling the movements of vessels would be continuously changing as the vessel navigates the river, which would produce great confusion. This, we think, should not be the construction of the rule; but, if

the vessels are going up the river, the one down the river should be considered an overtaking vessel, regardless of their courses. The plaintiff himself seems to have regarded the lighter as ahead of him, for he says in his testimony, ‘1 when we came around the Battery, we saw the lighter Billow ahead * * * we stood close to the Brooklyn shore, and the lighter Billow was ahead of us a little way.” “ The Velocity ” (1 Law Reporter, 3 P. C. 44,) and “The Ranger” (Law Report 4 P. C., 519,) are both authorities to the effect that, in a winding and crowded river like the Thames, a particular direction taken for a few moments, to round a corner or avoid an obstacle, is not such an indication of the real course of a ship as to make her case, with reference to another ship, that of a crossing vessel.

We are, therefore, of the opinion that, as both vessels were beating up the river and on the same tack, the sloop is to be considered an overtaking vessel within the rules of navigation, regardless of the difference of their courses, and that, hence, it was her duty to have avoided the lighter; and that the collision was due to her (the sloop’s) fault.

Judgment should be affirmed, with costs.

Pratt, J., concurs.

Dykman, J.

(dissenting).—This is a common law action for the recovery of the damage resulting from an injury to the vessel of the plaintiffs.

They were the owners of the sloop Commodore Jones, and the defendant was the owner of the lighter Billow. On the 22nd day of October, 1884, about ten o’clock in the forenoon, these vessels were beating up the East river with a strong flood tide, and a strong wind dead ahead; the sloop was loaded with brick and carrying full sail; the lighter was sailing with jib and mainsail, with the peak clewed. She was slower than the sloop and could not lay so near the wind as that vessel within several points, and with her sails in that condition she would not readily luff nor quickly go-in-stays. Before the accident both vessels were sailing upon the starboard tack, the lighter having stood off from the Brooklyn side near Gold street, and the sloop having made her tack one block below. In the course of both vessels .there was a steam tug towing four schooners (two on each side), and bound up the river also. After the lighter had gone-about and was full, she starboarded her helm so as to pay-off and avoid the flotilla "by going to its stern. The sloop fore-reached both the lighter and the tug, and had. attained a point on the starboard quarter of the starboard schooner, and lapped up so far that she could not keep off and pass astern of the tug and schooners, and could not weather them on that tack. Thereupon, to avoid a collision with the schooner, the sloop put her helm hard-down and attempted to go-in-stays and come about on a short tack to the Brooklyn shore. At that time her captain called on the lighter, which was then just to the windward, to go-about. The jib of the lighter was lowered and her helm was put down, but she was not quick enough in the wind to enable the sloop to go-about and so she remained in-stays running along side the schooner until the bow of the lighter struck her slantly on her starboard side forward of her rigging and inflicted the damage complained of.

These substantial and prevalent facts stand uncontradicted and the trial judge rendered a judgment for the defendant on the theory that the sloop was the overtaken vessel, and therefore, bound to avoid the lighter, and contributed to the disaster because she failed so to do.

By the congressional rules of navigation still applicable to the East river, when sail vessels are crossing, so as to involve risk of collision, if they have the wind on the same side, the vessel to the windward shall keep out of the way of the leeward, (Rule 11).

That rule applies to these vessels when they were on the starboard tack and had the wind on the same side. The lighter was to the windward, and could not go as close to the wind as the sloop within several points, and after she was headed off from the Brooklyn shore and was full, she starboarded her helm and fell off several points more to port to run under the stern of the tug and schooners, while the sloop kept her course. So there were several points difference between the courses of the two vessels. They were pursuing converging and intersecting courses, and a collision was certain if they both continued and reached the point of intersection at the same time.

In this situation it was the duty of the lighter, as the windward vessel, in obedience to rule seventeen, to keep out of the way of the sloop, and by rule twenty-three of the code of navigation, where one of two vessels shall keep out of the way, the other shall keep her course subject to the qualification of rule twenty-four, which is this:

In construing and obeying these rules due regard must be had to all dangers of navigation, and to any special circumstances which may exist in any particular case rendering a departure from them necessary in order to avoid immediate danger.

Buie twenty-one of the same code is invoked by the defendant for his justification. It is this: “Every vessel overtaking any other vessel shall keep out of the way of the last mentioned vessel.”

But the sloop was not an overtaking vessel in any sense, except that of being the forereaching vessel. The lighter was to the windward pursuing a crossing course ’ and both had the wind from the same way, and she falls easily within the operation and requirements of rule seventeen. That she was a crossing vessel is also shown by the diagrams of the vessels printed in the case, and by the fact that she was obliged to port her helm to" avoid striking the sloop head on.

The sloop kept her course in obedience to rule twenty-three in the expectation that the lighter would obey rule seventeen and keep out of her way, and both these rules justify her movements.

There was no occasion for the application of rule twenty-four, for there existed no special circumstances rendering a departure from roles seventeen and twenty-three necessary. The two latter rules contain ample provision for all the emergencies which arose in this case. The sloop obeyed rule twenty-three and kept on her course, and if the lighter had been handled in obedience to the requirements of rule seventeen, the encounter would have been avoided. There was no complication of circumstances, and neither vessel was disabled or beyond control. If the lighter would not luff quickly, yet the fact that she answered her helm when it was ported and came up to the sloop obliquely, shows that she could have kept out of the way had she gone about in ■time; she had abundant room and time to do so.

The case of The Clement (1 Sprague 257), and of The Cayuga (14 Wall, 270), are authorities in favor of the plaintiff, and the case of The Peckforton Castle, (3 Asp. Mar. Cas. U. S., 511), seems to be similar to this. In that case there were four points between the courses of two sailing vessels, and they were held to be crossing, and the court said: “Although the vessel which had the wind free Was being overtaken by the faster ship, yet as the faster ship was close-hauled and as both had the wind on the same side, the rule which governs this case is that which is contained in the twelfth article.” That article was the same as our seventeenth rule.

We reach the conclusion, after a careful examination, that the lighter was in fault and the sloop was not, and that the plaintiffs are entitled to recover their damages.

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


source: Caselaw Access Project

author: Pratt, J.

license: Public Domain

text:
    Thomas J. Bannon, App’lt, v. Ellen Cleary, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    Slander—Action eor—Interpretation to be put on alleged slanderous LANGUAGE.
    In an action for damages to character by the use of slanderous language, imputing to the plaintiff the commission of a crime: Held, that the language employed should be given its ordinary import and meaning, unless accompanied by an explanation, or unless all the hearers understand that it refers to a transaction which' cannot constitute the crime which the words imply.

      William D. Dickey, for app’lt; Abram S. Cassedy, for resp’t.
   Pratt, J.

It is plain from the relation of the parties and the testimony adduced, that the defendant at no time intended to charge the plaintiff with the commission of a crime, and that those who were present when the words claimed to be slanderous, were uttered, understood the defendant as making no such charge.

The plaintiff had been engaged by the defendant for some time, and after his discharge he had sued defendant and received, by a settlement, about $1,000, and the parties in whose presence the words were spoken, understood the charge to relate to the money paid in the litigation. The findings of fact of the judge below clearly bring the case within the rule laid down in case of Hayes v. Ball, 72 N. Y., 418.

As to the charge of taking a silver plate, etc., the judge believed the witness Vemol to be mistaken, and the defendant did not make the charge.

There is sufficient evidence to sustain the findings of the judge, and the judgment must be affirmed with costs.

Barnard, P. J., and Dykman, J., concur.


author: Dykman, J.

text:
    John Schenck, Resp’t, v. George Ringler et al., App’lts.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    Negligence—What negligence op the servant imputable to the MASTER.
    Where an injury has been occasioned by the negligence of a servant, Ms negligence will be imputed to the master if the negligent act was committed while in the performance of Ms service.

      Matthew Marx, for resp’t; Isaac Kuglemann, for app’lts.
   Dykman, J.

The driver of the wagon of the defendants drove his wheel against the wheel of the plaintiff’s wagon and precipitated him to the ground, and thus caused the injuries complained of in this action.

If the driver of the defendants was careless and manifested a want of caution on that occasion, and thus caused the collision, his negligence will be imputed to the defendants and they must respond to the consequences.

Whether he was guilty of negligence, or whether the plaintiff contributed his carelessness to cause the injury, were the two questions involved in the case. There was but little dispute respecting the material facts, and the case was submitted to the jury by a charge to which there was no exception, and. which conveyed full instructions upon the questions of law that should control the jury, and left the questions of fact for the solution of that body.

Some complaint is lodged against the verdict resulting from its size, but it is not so large as to require disturbance from this appellate tribunal.

The judgment and order denying a motion for a new trial should, be affirmed, with costs.

Pratt, J., concurs.


author: Barnard, P. J.

text:
    Gheistein Mead, Resp’t, v. John Brunnemer, Def’t, and Harry J. Lea, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    1. Foreclosure—Sale under judgment of—Terms of sale—Assignee of BID.
    In an action for the foreclosure of a mortgage, the mortgaged premises were sold pursuant to a decree granted therein. At the sale, defer.dant, the mortgagor, bid them in, signing the terms of sale, and paying ten percent of the amount so bid. The terms of sale contained a provision that in case any purchaser should fail to comply with any of the conditions thereof, the premises should be resold without application to the court, unless the plaintiff’s attorney should elect to make such application, and that the purchaser should be liable for any deficiency there might be between the sum for which the premises were struck down on the first sale and that for which they were purchased on the second sale. The purchaser assigned his bid to the appellant, but at the time fixed for the completion of the purchase neither of them, nor any one on their behalf, appeared to complete the same. Accordingly, in pursuance wdtli the terms of sale, the premises were resold for a lesser price, the plaintiff purchasing, and judgment for the deficiency entered against the original purchaser. The assignee of the bid refused to complete the purchase, alleging objections against the title, and moved that the ten per cent paid by his assignor be refunded. Held, that an assignee of the bid took the responsibility of the broken condition, at least so far as to lose the deposit by a deficiency on the second sale. That he could not take an assignment free from the equitable claim which the plaintiff might establish against the fund; that as against the mortgagor the title must be deemed good.
    3. Same—Application of payment—Liability to refund.

      Held, that the application by plaintiff of the amount paid by the purchaser tothebiderwas not such an election not to apply on the judgment as to make lier liable to refund the same to the mortgagor or his assignee.
    Appeal by assignee of purchaser in a foreclosure suit from an order of the special term, denying his motion that the plaintiff refund a deposit made by purchaser.
    The premises described in the complaint were on June 28, 1884, sold by the sheriff of Rockland county, pursuant to a decree of foreclosure and sale, granted on May 6, 1884. The mortgagor, at the sale, bid $5,000, and the premises were struck down to him for that sum, he signing the terms of sale, and paying $500, being ten per cent, of his bid. The terms of sale provided among other things, this, as follows: c ‘ And in case any purchaser shall fail to comply with any of the above conditions of sale, the premises so struck down to him will be again put up for sale, under the direction of said sheriff, under the same terms of sale, unless the plaintiff’s attorney shall elect to make such application, and such purchaser will be held liable for any deficiency there may be between the sum for which said premises shall be struck down upon the sale, and that for which they may be purchased on the resale, and also for any costs and expenses occurring on such resale.” The purchaser assigned his bid to one Lea, but at the time appointed for the completion of the purchase, neither- purchaser nor assignee, nor any one on their behalf, appeared to complete the same, and the assignee served objection to the title. Thereupon, by the instruction of the plaintiff, the sheriff resold the premises on September 6, 1884, the plaintiff purchasing the same for $3,500. and a judgment for the deficiency was entered against the purchaser.

      John J. Mead, for resp’t; Elbert Crandall, for app’lt.
   Barnard, P. J.

The papers show that the plaintiff held a mortgage against the defendant, Brunnemer. The mortgage was foreclosed, and at the sale was purchased by the mortgagee for $5,000. The mortgagee assigned his bid to one Lea, and he failed to complete the purchase. The plaintiff resold the property, and bid it in himself for $3,500. There was a deficiency of $1,5.14.19. Lea made no application to the court to he relieved from his bid, nor did his assignor. By the terms of the first sale, upon failure to comply with the conditions of the sale, the premises were to be resold, and the purchaser was to be hable for the deficiency between the first sale and the subsequent one. An assignee of the bid took the responsibility of the broken condition, at least so far as to be a total loss of the deposit, by a deficiency in the second sale. He could not take an assignment free from the equitable claim, which the plaintiff might establish against the fund. Mickle v. Townsend (13 N. Y., 575); Gay v. Gay (10 Paige, 369).

As against the mortgagor, the title must be deemed good. He assented to its validity by the execution of his mortgage upon it, given by himself. The formal application of the $500 on the second bid was not such a decisive election as to make the plaintiff liable to refund the same to the mortgagors, or his assignee. Lea, by the purchase of the bid, became a quasi party to the action, and either he or his assignor could have compelled the application by motion. Cazet v. Hubbard (36 N. Y., 677).

The order should be affirmed with costs and disbursements.

Dykman and Pratt, Ju., concur.


text:
    Matter of Probate of the Will of James Morgan.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    Probate—Testamentary capacity.
    The testator died at the age of ninety years and upwards, leaving a will and codicil thereto. As to the will, there was no objection made. Specific bequests of land were left by the will to each of the testator’s children, and a legacy to the daughter, the grandchildren were remembered, and then the son made residuary legatee. There was proof tending to show that testator intended by the will to divide his property equally. By the codicil the legacy to the daughter was reduced, so that the apparent effect was to create an inequality between the value of the proi erty given to the son and daughter, as the reduction benefits the residuary clause. Proof, however, tended to show that the testator directed the codicil to remedy an inequality existing in the will, that the property given to the son had depreciated in value. The codicil was executed in due form and witnessed by two intelligent ar.d disinterested witnesses, who represent the testator as rational, self contained and deliberate in and about the transaction of the business, and wholly free from restraint. Further than this, proof was given as to certain physical infirmities and ailments of the testator, and as to his forgetfulness of names and faces. Upon all the evidence: J eld, that an order admitting the codicil to'probate should be affirmed as fully supported by the evidence.
    Appeal from decree of surrogate of Westchester county admitting to probate will and codicil of James Morgan, deceased.
    . Martin J. Keogh, for contestant and app’lt; H. C. Henderson, for proponent and resp’t; Calvin Fort, of counsel.
   Barnard, P. J.

The testator died on the 6th of November, 1884, at the age of ninety years and upwards. He left two testamentary papers, a will and a codicil to it. The will was executed in September, 1881. As to this paper there was no objection.

By the assent of the parties at the execution of the paper the testator had testamentary capacity, The codicil was executed on the 3d of July, 1883, and the only change made in the will is to reduce the amount of one legacy. The testator had two children. Specific bequests of land were made to each. A legacy of $20,000, was given to a daughter. The grandchildren by son and daughter, were equally remembered, and then the son was made residuary legatee. There is proof tending to show that the testator intended by the will to divide his property equally.

By the codicil the $20,000 legacy to the daughter was reduced to $10,000. So that the apparent effect of the will is to create an inequality between the value of the property given to the son and daughter as the $10,000 reduction benefits the residuary clause. There is proof tending to show that the testator directed the codicil to remedy an inequality which existed in the will. That the $20,000 was too much for the daughter in view of the value of property devised by the will. That the farm given to the son had depreciated, and that the securities had fallen. So far the codicil is reasonable in itself, and as a part of the will was, in the opinion of the testator, a just will in its entirety, as between his children.

The codicil was executed in due form and was witnessed by two intelligent witnesses, who manifestly had no connection with the will or codicil in any way. They represent the testator as rational, self-contained, and deliberate in and about the transaction of the business, and wholly free from all restraint. The case still shows a strong contradiction between many witnesses. Three witnesses testify as to manner of life and condition of health, and the mental condition exhibited both before and after the execution of the codicil. From all the evidence it is certain that the testator lived his life unvisited by any one; that he did his ordinary pecuniary business, receiving his income and depositing it in his own name, and paying his obligations therefrom up to a short time before his death. He was daily and generally alone in the streets of New Rochelle, where he resided. He was kindly noticed by Ms acquaintances; he had strong views on politics and economy in public expenditures, and he freely expressed them. This is Ms condition substantially from all the witnesses. There are witnesses who testify to facts tending to show incapacity, and very much of this evidence is based upon three facts: The testator was weak in his legs and fell down easily. Fie had a rose cancer on his face, which bled easily and annoyed him, and Ms memory of persons and faces was bad.

The weakness in his legs is so completely proven to have been a physical defect and weakness therein, that no basis of incapacity can be raised thereon.

So also the cancer is proven to have been so troublesome and annoying that his complaints in respect thereto were entirely natural and intelligent. There was no such proof of forgetfuMess as to justify a finding of unsoundness and incapacity. It is not an unusual thing in old men. It was not pertinent, for the proof is abundant that both before and after the date of the codicil the testators memory of faces, localities and events was unclouded to a remarkable degree in so old a man. He was easily affected in his feelings, and the death of his wife and the clergyman’s allusion to death was the means of his losing control of Ms feelings, but on other times and on other ocasions he had full self-control and a remarkable possession of his mental faculties including his self-control. The order admitting the codicil to probate is therefore, fully supported by the evidence, and should be affirmed, with costs to respondent.

Dykman, J.. concurs.


author: Pratt, J. Barnard, P. J.

text:
    Patrick Murphy, Jr., an Infant by Patrick Murphy, his Guardian, ad litem, Pl’ff, v. William Mairs, Def’t.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    Master and servant—Duty of master to instruct servant as to risks OF EMPLOYMENT.
    An employer is bound to instruct his servants as to all risks and dangers which are or ought to be known to him, and which he as a prudent man having due regard for the age and experience of each, would not be justified in assuming, were sufficiently obvious to them.
    Upon the plaintiff’s resting his case the complaint was dismissed upon defendant’s motion to which plaintiff excepted and the exceptions were ordered heard in the first instance at the general term.

      Charles J. Patterson, for pl’ff; W. Howard Wait, for def’t.
   Pratt, J.

The general rule of law applicable to this class of cases may be expressed as follows: “An employer is bound to instruct his servants as to all risks and dangers which are or ought to be known to him, and which he, as a prudent man, having due regard for the age and experience of each, would not be justified in assuming were sufficiently obvious to them.”

The whole claim in this case is based upon a failure to give proper instructions and caution. If, considering the age and experience of the plaintiff, the danger was obvious, then no negligence could be imputed to the defendant for a failure to give notice.

This is not such a case as a jury should be permitted to say that as a reasonable prudent man, under the circumstances, the defendant should have given further instructions.

It is also a pertinent inquiry whether any amount of instruction would have prevented the injury, for it was undoubtedly the result of pure accident. The cup slipped out of plaintiff’s hand and he instantly and thoughtlessly grabbed for it and his hand got caught between the rollers. What reason had the defendant to apprehend that such an accident could occur ? If no reasonable man could anticipate such an accident to happen, then negligence could not be imputed in failing to guard against it. 84 N. Y., 455.

The work at which the boy was employed was perfectly safe, and he had been properly instructed how to perform it, and had safely done so for thes pace of about three weeks prior to the accident.

The machinery was, so far as appears, perfect and was under the charge of a competent man. The duties required of the plaintiff did not place him in the proximity of any danger and, so far as appears, no injury could have happened to him except for the unforseen and fortuitous circumstances of the cup slipping from his hand and his hasty attempt to recover it. It is quite different from a case of employing a boy to tend a machine where his duties continually subject him to the liability to injury from machinery. Here his duties did not require him to go at ail in dangerous proximity to the machine and, so long as he performed his duties, there was no risk whatever of accident.

Could any reasonable man say that it was negligent for the defendant to assume, under all the circumstances of this case, that the danger of being caught between the drum and the pivot rollers was perfectly obvious to the plaintiff ? A proposition so plain as that, a jury should not be permitted to negative by their verdict.

It was not a case where honest men might differ as to the conclusion to be drawn upon this question.

The plaintiff had been at work for about two months in plain view of this machine, and became familiar with its operation, and must have known that if his hand got in between the rollers it would be hurt. But the question is not whether he knew it, but whether the defendant, as a reasonable prudent man, had not a right to assume he knew it.

There are constant dangers in all employments so obvious that no man would think of cautioning a boy of twelve years old to avoid them. No danger can be more obvious than that of thrusting the hand between heavy rollers when in motion, and no instruction could add emphasis to such danger. It may be said that the same care and circumspection cannot be expected of a boy, and that hence he should receive extra caution. This principle might apply if he had been set to feeding some material into the rollers with his hands in close proximity to them, but not here, where he was not expected to be near the machine.

It seems to me the proximate cause of the accident was in the plaintiff letting the cup slip from his hand and grabbing after it in a thoughtless and careless manner, and that there was an utter failure to establish any negligence on the part of the defendant. No instruction could make the danger more obvious, and no instruction could have provided against such an unforseen occurrence.

We think that judgment should be directed for the defendant upon the nonsuit.

Barnard and Dykman, JJ., concur.

Barnard, P. J.

The only negligence which the plaintiff attempted to prove on the trial, for which the defendant was responsible, consisted in a failure to instruct the plaintiff, a boy of twelve years of age, of the danger of the employment. The proof failed to make a case for a jury. The machine was one for printing wall paper. There was a large iron drum covered with felt or rubber. The plaintiff fed colors and washed the cloths. He was instructed how to throw water on the inside of the cloth and had seen other children throw it on in front. ‘ Tt was an easy thing to do,” the plaintiff testifies. The cup slipped from his hand and the plaintiff attempted to catch it, and his hand in so doing was caught in the machine and injured. The machines were safe of themselves and such as were proper of the kind and were in perfect repair. The plaintiff was perfectly informed in respect to his duties, and that duty was not a difficult one for a boy of his age.

The proof, therefore, tended to show nothing which would sustain this cause of action against the master for his neglect.

The exception should, therefore, be overruled and judgment ordered for the defendant upon the nonsuit.


text:
    George M. Mittnacht, App’lt, v. Joseph Wolf, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    Contract—Condition precedent—Verdict directed.
    Plaintiff presented to defendant and others a proposition in writing to furnish materials and. erect iron balconies to connect their houses according to the requirements of the Are and building department. The offer was accepted and the balconies constructed. In an action to recover the contract irrice the defendants pleaded that the contract had not been performed. It was proved that the balconies were condemned by the department. A verdict for the defendant was directed by the tr al judge. Held, that the plaintiff could not recover under his contract with the defendant until he had proved the erection of the balconies in accordance with the requirements of the building dep rtment, and that failing to do this he was nut entitled to a verdict even if rendered for him.
    Appeal from a judgment entered on a verdict rendered in favor of defendant by direction of the court and from an order denying a new trial on the judge’s minutes.

      Christopher Fine, for app’lt; Kurzman & Yeaman, for resp’t.
   Dykman, J.

The plaintiff tendered to the defendant and others a proposition in writing to furnish materials and erect iron balconies to connect their houses according to the requirements of the fire and_building department, with pattern to suit in fancy iron casting, and fancy iron bracket complete with two good coats of paint.

The offer was accepted and the balconies were constructed and this action is brought for the recovery of the contract price. The defense was a failure to perform the contract, and the trial judge directed a verdict for the defendant.

These balconies were intended for fire escapes, and as they were subject to the examination of the inspector of buildings it become important to secure their construction in accordance with the requirements of the building department, and the plaintiff undertook to meet and satisfy the rules and specifications of that branch of the city government relating to that subject.

At the close of the testimony it appeared plainly that the plaintiff had failed in the performance of his contract. The work was condemned by the department, and the defendant was obliged to take it down to avoid a public prosecution.

There could be no recovery by the plaintiff under lfis contract with the defendant until he had proved the performance of the condition precedent to erect the balconies in accordance with the requirements of the building department, and as he failed to make such proof, he was not entitled to a verdict even if the jury had made one for him. Under such circumstances it was proper to direct a verdict for the defendant.

The judgment should be affirmed with costs.

Barnard, P. J., and Pratt, J., concur.


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    Dyckman Odell, Resp’t, v. Isaac Buckart as Ex’r, etc., App’lt.

      Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    1. Evidence—Testimony of witness taken on a former trial, and SINCE DECEASED, IS ADMISSIBLE.
    On a former trial of the action one P. O. was examined as a witness, who lias since then died. Upon the present trial plaintiff offered such testimony in evidence, and it was received against defendant’s objection on appeal. Held, that evidence of a deceased witness taken on a former trial is admissible. That this rule existed prior to the enactment of Code Civ. Pro., §§ 839, 830.
    2. Money had and received.
    Plaintiff was a joint maker with P. O. on a note held by defendant’s testator. Plaintiff was merely a surety thereon. P. O. gave a mortgage on land owned by him to the R. S. B., and, a decree of foreclosure being obtained by the R. S. B., plaintiff paid the amount due thereon and had an assignment of this decree made to defendant’s testator under an agreement that he should collect the decree, and out of the proceeds pay the note, paying the balance to plaintiff. P. 0. paid defendant’s testator both the note and decree. Held, that upon these facts plaintiff would be entitled to a judgment for the full amount of the decree, with interest.
    3. Evidence—Making of note by party where accounts have been BALANCED BETWEEN HIMSELF AND OTHERS.
    After the assignment of the mortgage, which was in 1875, plaintiff, in 1881, gave defendant’s testator a note for rent. They settled all their dealings in 1884, expressly omitting the claim on the assigned mortgage, and applied the balance due the plaintiff upon this note given for rent. The remainder of the note was taken out of the moneys collected on the mortgage, held, that the note given to defendant’s testator by plaintiff is-not proof of the payment of the moneys received on the mortgage.
    Appeal from a judgment entered on the trial of an action by the court without a jury.

      Thomas Nelson, for resp’t; L. C. & W. P. Platt, for app’lt.
   Barnard, P. J.

The only error alleged upon the trial is an exception taken to the testimony of one, Pierre Odell, upon the former trial of this case.

' It is proven that the witness has died since his testimony was taken, and by the rule of evidence which existed before the Code was passed. ■ Section 830 of the Code preserves the deposition of parties taken upon a former trial, and of other persons who were rendered incompetent by sec. 829.

Evidence of a deceased witness taken upon a former trial is admissible. Wolf v. Oswego Insurance Co., 17 Week. Dig. 395.

The appeal brings up only the findings of the court, as there are no exceptions taken thereto. Upon these findings of fact there is no doubt as to the accuracy of the judgment.

' The plaintiff was a joint-maker with Pierre Odell upon a note held by defendant’s testator, Stymus, for $500.

The plaintiff was only a” surety upon the note. Pierre Odell was the owner of a piece of land in Wayne county and gave a mortgage upon it to the Rochester Savings Bank. The plaintiff paid the amount due upon a decree of foreclosure obtained by the bank upon the mortgage, and had an assignment of this decree made to the defendant’s testator, under an agreement with the plaintiff, that he would collect the degree, and out of the proceeds pay the $500 note and pay the balance to the plaintiff. The decree was $823.79.

Pierre Odell paid the defendant’s testator both the note * and decree. The plaintiff would be entitled upon these facts to a judgment for the full amount of the decree and interest.

It appears that there were other dealings between the plaintiff and. deceased. After the assignment of the mortgage plaintiff gave Stymus a note for $493.50 for rent. This was in 1881, and the assignment of mortgage was in 1875. '

In 1884 the plaintiff and Stymus settled all their dealings, excluding by direct mention and agreement the claim upon the assigned mortgage, and applied the balance due plaintiff of $189.79 upon this $493.50 note.

The remainder of the note was taken out of the moneys collected upon the mortgage. There is no weight in the suggestion that the note given to Stymus by plaintiff is proof of the payment of the moneys received on the mortgage.

It never was more than an inference, and the evidence and findings rebut it by proof that the debt, which would be presumed paid, was not so paid, but was left open.

The judgment should be affirmed with costs.


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    Catharine C. Murphy, Resp’t, v. The Brooklyn City Railroad, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1887.)

    Evidence—Irrelevant.
    Plaintiff owes a lot upon which is a building used by him for a dwelling rad store. Defendant has without right put steam motors upon the street in front and the evidence tends to show he so used them as to cast ashes and dust in the hou e, and has made the street so noisy as to be unfit for residence or business. In consequence plaintiff’s business, it is claimed has been diminished. Defendant called as a witness a person living opposite to plaintiff and keeping there a small store and asked her whether as far as she could judge the running of cars in the street affected her business, her answer that it had not injured her was stricken out on objection. Held, that it was properly stricken out, that the very circumstances tending to injure plaintiff’s business might increase that of the witness.
    Appeal from a judgment entered on a verdict rendered in favor of plaintiff at the Kings county circuit, and from an order denying defendant’s motion for a new trial on the minutes.

      Roswell H. Carpenter and J. C. Rinkel, for resp’t; Morris and Pearsall, for app’lt.
   Barnard, P. J.

The plaintiff owns a lot of land fronting upon Twenty-fourth street, Brooklyn. There is a building upon it, used for a residence and store by the plaintiff. The defendant Railroad Company, without any right, have put steam motors upon the street in front of his store and dwelling, and, the proof tends to show, have so used these motors as to cast ashes and dust in the house, and made the street so noisy day and night as to make it very uncomfortable, either for a residence or for business purposes. The business has fallen off in the plaintiff’s store from fifty to seventy dollars per week, as it was before the use of the steam motor ten to fifteen dollars per day.

The grievance complained of has continued since November, 1877. The verdict was for $1,000. There is but one point made upon the appeal, as to the admission of evidence. The defendant called as a witness Mrs. Julia Scott. She lived and kept a small store opposite to that of plaintiff, and she was asked this question by defendant:

Q. So far as you can judge, do you think the running of the cars in the street affects your business ?

A. It never injured me in the least.

Objection sustained; answer stricken out. Exception taken.

The witness stated that she knew nothing of the effect on the business of the plaintiff, and her opinion as to her own business was properly excluded. As a fact, it had no relevancy, unless under precisely similar circumstances.

The plaintiff was cut off from the witnesses’ side of the street, and Mrs. Scott’s business may have been increased by the very injury inflicted on the plaintiff. Whether the dust and smoke and ashes were placed so as to affect the two places alike does not appear. The case is not like Baird v. Daily (68 N. Y., 547). The, question was as to the seaworthiness of a scow.

Proof was given tending to show that the scow was good, and it was held -error to refuse the opinion of an expert that she was unseaworthy.

The only point made is that the injury to the business, and the discomfort of the residence, cannot be both reviewed in the action. The complaint is addressed to both subjects.

It avers an injury to the business and building, and such a use of the street by the defendant as to be a great nuisance and damage to the plaintiff.

The judgment should therefore be affirmed, with costs.

Dykman and Pratt, J. J., concur.


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    Julius Marcile, Resp’t, v. Auguste Salztman, as Ex’r, etc., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    Reference—Long account—What is—Code Civ. Pro., § 1013.
    Where the complaint alleged an account which comprised seven items, some of these items being composed of numerous articles and charges: Held, that the account was a long one within the meaning of Code of Civil Procedure, section 1013, which provides for the compulsory reference of the issues of fact in an action.
    Appeal from an order of the special term of Kings county referring the issues in a cause.

      T. C. Cronin, for resp’t; George B. & A. H. Ely, for . appl’t.
   Dykman, J.

The complaint sets up an indebtedness of the defendant’s testatrix for goods sold and delivered, and also for a nursery, which was sold by her and which belonged to the plaintiff.

If a recovery is realized under this complaint it will be on a contract implied by law in favor of the plaintiff. The action is founded on contract and not on a tort, and the account involved is of sufficient length to justify the order' of reference.

The order should be affirmed, with ten dollars costs and disbursements.

Barnard, P. J., and Pratt, J., concur.


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    John McClain, Resp’t v. The Brooklyn City Railroad Co., App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    1. Negligence—Street railways—Duty of drivers.
    The plaintiff, endeavoring to cross a street in which the defendants’ railway ran, waited until a car from a switch started toward one of the main tracks. With his boy in his arms he followed in the rear of this car until it stopped nearly on the main track. Looking on to this track he saw.a car some fifteen feet distant, and leaving his position behind the car on the switch endeavored to cross the main track; when nearly across he was struck by another car copying from a second switch leading on to the track. The car was going at a lvgh rate of speed at the lime; the place of the accident was crowded with defendants’ tracks. Ileld, that t e defendant owed plaintiff the duty to keep the team attached to the car well under control, especially when plaintiff was in full view of the driver and his back turned to the team.

      2. Same—Contributory negligence.

      Hell, that there was no lack of care on plaintiffs’ part, which, as a matter of law, destroyed liL action; and that the case was properly sent to the jury upon the issues of negligence on the part of the defendant and the contributory negligence of the plaintiff.
    3. Appeal—Verdict—Conflict of evidence.

      Held, that on a peal where there is a conflict of testimony as to the facts, they will be taken to be those which support the verdict, unless the evidence is so far against the verdict as to call for a new trial.

      4. Testimony as to results probably following injury — What CERTAINTY REQUIRED.
    The opinion of physicians that a certain result may follow an injury, or that it is likely to accrue, is not to be received. Títere must be such a degree of probability as amounts to a reasonable certainty as to the results which in their opinion are to follow the injury.
    5. Streets—Street railway—Duty of, in regard to.

      Held, no error to charge the jury that the defendant could not legally use the street by its cars so as to practically exclude the public from it.
    Appeal from a judgment entered on a verdict rendered in favor of plaintiff at the Kings county circuit, and from an order denying defendant’s motion for a new trial on the judge’s minutes.

      Morris & Pearsall, for app’lt; Charles J. Patterson, for resp’t.
   Barnard, P. J.

The plaintiff, in January, 1885, attempted to cross Fulton street with his four year old boy in his arms. It was at or near half-past five o’clock p. m. when he reached Fulton street. At the northeast corner of Fulton and Sands streets he found Fulton street very much obstructed by cars on the defendant’s track. They were so close as to be almost' continuous. The plaintiff waited his opportunity to cross for about five minutes. He then saw a car come out from the bridge station. This car was on the first up switch and would interrupt the fine of cars on the main track up. The plaintiff, with his boy in his arms, followed this car until it almost stopped on the main track. The plaintiff then looked and saw a car some fifteen feet below him, and as that gave him no apprehension, he left his place of security behind the car and started to go across the up track. He had nearly got across when he was, struck by the horse attached to a car which left the • station on the second up switch. This car started off on a trot and the defendant’s switchman struck one of the horses with an iron rod and goaded him into a gallop, and it was at this rate of speed when the team run over the plaintiff. The negligence of the defendant is credited by the jury as sufficient.

There is a network of tracks at the point and the cars at times run in quick succession. At times the place is filled with foot passengers crossing the street. The plaintiff had nearly arrived at a place of safety; and but for the act of starting the horse at a gallop would have escaped.

The defendant owed a duty to. the plaintiff to keep the team well under control and especially so when the plaintiff was in full view of the driver while his back was to the team thus coming upon him. Assuming the truth of the narrative as given by the plaintiff and his witness Ahern, there was no lack of care upon the plaintiff’s part which as matter of law destroyed the plaintiff’s action. The case was properly sent to the jury upon the defendant’s negligence and upon the contributory negligence of the plaintiff. There is a conflict of testimony upon the facts, but upon appeal the facts will be taken to be those which support the verdict unless the evidence is so overwhelmingly against the verdict as to call for a new trial.

This case shows no such preponderance. The verdict is fully sustained by the case of Stackur v. New York Central (79 N. Y., 464).

The several exceptions taken to the testimony of the physicians are not supported by the case of Strohm v. The New York Central Railroad (96 N. Y., 306). An opinion that a result may follow an injury or that it is likely to accrue is not to be received. There must be such a decree of probability as amounts to a reasonable certainty that the result will flow from the injury. Under this case the medical evidence was properly received. The witnesses testify that they can form an opinion with reasonable certainty as to the results which in their opinion are to follow the injury. There was no error in charging the jury that the defendant could not legally use the street by its cars so as to practically exclude the public from the street. As long as it was a street the plaintiff might lawfully pass over it and the defendant had no right to make it dangerous at all times for a person to pass over. If the plaintiff was injured to the extent the proof shows, the verdict is not unreasonable.

The judgment should, therefore, be affirmed with costs.

Pratt, J., concurs._


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    Sarah McGlynn, Resp’t, v. The Brooklyn Crosstown Railroad, App’lt.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    Negligence.
    Plaintiff, a passenger in a car managed by defendant, gave the signal to stop, and it did so. As she was about to alight her finger was in some way entirely cut off, as she claims, by the sudden closing of the door by the driver of the car before she could get off. The car had a rear door, which was operated by the driver from his place in front. This door slides in a groove and fits into what is termed “a rabbit” when closed. Plaintiff testified that she alighted from the left side of car, putting her right hand on left side of the door, and while getting off from the car her finger was cut off. Ileld, that, assuming the injury to have been occasioned in this way, it was neglect on the part of the manager of the car. Time should have been afforded the plaintiff in which to leave the car.
    Appeal from a judgment entered on a verdict rendered in plaintiff’s favor at the Kings county circuit and from an order denying defendant’s motion for a new trial on the judge’s minutes.

      Morris & Pearsall, for resp’t; Wm. O. DeWitt, for app’lt.
   Barnard, P. J.

The question in this case is one of fact entirely. The witnesses vary even more sharply than is usual in similar cases.

The plaintiff entered a car managed by the defendant and was carried to her home in Raymond street, Brooklyn. She gave the signal to stop and the car did stop. The plaintiff, and a companion with her, at once got up to alight.

The plaintiff was first, and before she got off the car, in some way her finger was entirely cut off, except that the end of the finger was held to the hand by a piece of skin. This was done before her companion left the car.

The plaintiff’s theory is that the finger was cut off by a sudden closing of the door by the driver of the car before the plaintiff could get off.

The car has a rear door, which is shut by the driver from his place in front. This door slides in a groove and fits into what is termed a rabbit in the side, when fully closed.

The plaintiff alighted from the left side of the car. The plaintiff testified that she put her right hand on the left side of the door, and her finger was cut off while she was in that position and in the act of getting from the car. It was late at night.

The defendants produce the driver and one Levy, who was with him, who both testify that the door did not shut while the plaintiff and her companion were getting off.

The jury have found for the plaintiff. Her narrative is not improbable.

The injury was instantly proclaimed and was of a kind which could not be simulated.

The door being shut while her finger was over the rabbit would be likely to do just this injury, and the evidence fails to show any other cause for an injury such as the surgeon describes the plaintiff’s injury to have been.

Assuming the injury to have been occasioned in this way, it was a decisive case of neglect upon the part of the manager of the car. Sufficient time should have been given to enable the plaintiff to get out of the car.

■ He should have anticipated the chance that the plaintiff would sustain and steady herself by holding on the car until she was firm on the ground.

The judgment should therefore be affirmed, with costs.

Dykman and Pratt, JJ., concur.


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    Augustus F. Ferris, App’lt, v. John F. Plummer, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    1. Contract—Specific performance—Enforcement of, discretionary.
    The enforcement of specific performance of a contract always rests in the sound discretion of the court.
    3. Same—Of contract for sale of real property—When will not be decreed.
    When any reasonable doubt exists as to the validity of the title to real estate, the court will not compel a purchaser to take the title, but will leave the vendor to his action for damages.
    B. Same—What is reasonable doubt.
    A decision by a court of co-ordinate jurisdiction adverse to the principle upon which the title rests, will raise such a doubt, although the court may consider the decision wrong.
    4. Same—Costs discretionary.
    Costs in an action to compel specific performance of a contract are within the discretion of the court.
    Appeal, from a judgment in favor of the defendant, entered in Kings county upon an order dismissing the complaint with costs.
    The action was brought for specific performance of a contract for an exchange of real property.
    The property agreed to be conveyed by the plaintiff consists of eight large tenement houses, with the lots, situate on Sullivan street, in the city of Brooklyn. The contract for the exchange was in writing, and is dated January 5th, 1886. By its terms the parties mutually agreed “to execute, acknowledge and deliver, each to the other, or to their assigns, * * * a proper deed or deeds for the conveying and assuring, each to the other, the fee simple of the property of each, above described, free from all incumbrances, of any name or nature, except as aforementioned.” The defendant refused to carry out the contract for two reasons; one being based on the ground that the plaintiff did not offer a good title, free from all incumbrances, etc.
    The plaintiff’s title to the property is derived through a foreclosure proceeding. The findings of fact, to whicfi no exceptions were taken, disclosed the following: In December, 1884, William I. Preston began proceedings in the supreme court to foreclose a mortgage held by him on the property in question. On Depember seventeenth he filed a lis pendens in the usual form. On February 11, 1885, he obtained an order from the court directing that service of the summons on William H. Algie, the mortgagor, the owner of the property and the only defendant, be made in the substituted method prescribed by section 435 of the Code of Civil Procedure. On February twelve service on Algie was made as directed in the order. On February sixteenth an affidavit was filed showing such service, which was the only service of the summons made on Algie. On December 19, 1884, however, two days after the lis pendens was so filed, Algie executed a mortgage on the property for §4,000, which was recorded on December 24, 1884. On January 8, 1885, a mechanic’s lien on the property for $1,262.80 was docketed against Algie, as owner, and on Februaray 14, 1885, in an action to foreclose said lien, the usual notice of pendency of action was duly filed with the complaint. On August twenty-eight, judgment of foreclosure and sale was duly entered in the last named action, by the terms of which the sheriff was directed to expose the property in question for sale, and out of the proceeds—first, to satisfy plaintiff’s claim therein of $1,347.20 damages and costs, ana apply any residue toward the payment of another mechanic’s lien claim for $300, docketed January 16, 1885. On March 12, 1885, a judgment for $138.93 was duly docketed against said Algie in Kings county. Said mortgage, judgments and hens remain wholly unsatisfied. No amendments were ever had in the Preston foreclosure action, through which the title is derived, and no Us pen-dens was filed, except as above stated. On April 8, 1885, judgment of foreclosure and sale was entered in the Preston foreclosure action. On May 2, the sheriff’s deed was executed to the purchaser Augustus F. Ferris, plaintiff in this action. The defendant claimed that the plaintiff’s title was subject to the mortgage of $4,000, to the judgments of August 28, which in the aggregate amounted to $1,647.20, and the judgment of March 12 for $138.93; that the filing of the lis pendens in the Preston action, which was not followed within sixty days by either personal service or the commencement of service by publication, or by service without the state, as required by section 1670 of the Code, did not operate as constructive notice to such incumbrancers, or bind them by any proceedings taken in the action.

      B. F. Tracy, for app’lt; Booraem & Harris, for resp’t.
   Pratt, J.

The enforcement of specific performance always rests in the sound discretion of the court.

And when it is made to appear that a reasonable doubt .exists as to the validity of a title, the court will not compel a purchaser to take a title, but will leave the vendor to his action for damages.

In the case at bar,' we think the decision in Rogart v. Swezey (26 Hun, 463), raises enough doubt as to the validity of the title, so that specific performance should not be required. "VYe cannot distinguish between the principle of that case and the case now presented. It has been said that a decision by a court of co-ordinate jurisdiction adverse to the principle on which the title rests, will raise sufficient doubt that specific performance will not be decreed though the court thinks the decision wrong. Fry on Specific Performance, 3 Am. Ed. 483.

It would, therefore, not be profitable for us to discuss whether the decision in Rogart v. Swezey correctly states the law. We are constrained to say that an abjection based on a decison of a general term of this court, cannot be considered captious nor unreasonable on the part of a purchaser.

So long as no adverse decision has been made by controlling authority, the holder of the title might find his market injured by the objection now raised.

The decision at special term not to compel performance was therefore right. Costs were, however, in the discretion of the court, and we think should not have been given.

The judgment below will be modified by striking out the costs. No costs of appeal.

Barnard, P. J., and Dykman, J., concur.


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    Aubin C. Locke, as Administrator, etc., of John D. Locke, deceased, App’lt, v. James W. Covert, as Receiver of The James D. Locke Company (limited), Resp’t. The People of the State of New York, v. The John D. Locke Company (limited).

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    Costs—When receiver of a corporation will be directed to pay.
    When the costs of the action were incurred for the benefit of the fund in the receiver’s ha ds, the receiver will be required to pay them.
    Appeal from an order denying a motion to compel payment by the receiver of a domestic corporation of so much of a judgment against him as awarded costs and allowance. The moving party is an administrator, who, after resistance by the receiver, finally obtained judgment against him in an action brought against the corporation before his appointment. After the dissolution of the corporation, the receiver served an answer denying nearly all the material allegations in the complaint, and defended the action. Upon the trial, at which the receiver was represented by counsel and opposed the plaintiff’s claim, the plaintiff’s six causes of action were proved by entries in the books of the corporation then produced by the receiver in obedience to a subpoena. The complaint contained copies of these entries in these books. The receiver has on deposit in a trust company more than ten times the amount of the costs and allowance.
    All other claims against him which are entitled to a preference have been paid.

      Roger Foster, for resp’t; Denis O'Brien, attorney-general, for the People, and Porter & Kelvert, for the receiver.
   Pratt, J.

The receiver is the custodian of a fund, subject to the direction of the court, to pay it out to parties establishing claims thereupon.

The costs of the action were incurred for the benefit of the fund. It is therefore equitable that the expenses of the effort should be borne by the fund in whose behalf they were incurred.

In the language of Justice Woodruff, this is not giving a preference to a debt as such; it is requiring the fund to pay an expense incurred for its own benefit.

The case of Shields v. Sullivan (3 Demarest, 296), is in point, and to the same effect. It follows that the motion to require the receiver to pay the costs should have been granted.

Order reversed, with ten dollars costs and disbursements.


author: Barnard, P. J. Pratt, J.

text:
    Herriet Gignoux and Elizabeth A. Gignoux, Pl’ffs, v. Mary E. Stafford, Def’t.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    U. S. Bankruptcy act of 1841, § 9—Sale by assignees under—Power OF COURT T'O ORDER A PRIVATE SALE WITHOUT SPECIFYING THE TIME THEREOF.
    Section 9 of the bankrupt act of 1841, which provides that all sales by the general assignee “ shall be made at such times and in such manner as shall be ordered and appointed by the court in bankruptcy,” means that when a time is appointed it must be so sold; but the court can direct the manner, and, if it directs a manner in which it is impossible to appoint the time (had by private sale), the sale is not void.
    Submission of the controversy upon a case containing an agreed statement of facts pursuant to Code Civ. Pro., § 1279.
    The plaintiffs entered into a written agreement with defendant April 21, 1886, to sell the defendant certain real estate on the southerly side of St. Mark’s avenue, Brooklyn.
    Defendant paid the usual ten per cent, amounting to $180, and sixty dollars auctioneer’s fees, and agreed to pay balance of purchase money, June 1, 1886, when it was agreed plaintiffs should deliver to defendant a deed with usual full covenants, and free and clear of all incumbrances. June 1, 1886, a deed was duly tendered and the balance of purchase money demanded, but defendant refused to accept the deed and pay balance, upon the ground that plaintiffs could not convey a good title to said premises as agreed between them, and demanded repayment of the ten per cent and auctioneer’s fees aforesaid, and her expenses in examination of title. The facts upon which defendant bases her objections to the title were as follows:
    In 1841 James E. Underhill, now deceased, was seized of the premises about which this controversy arises, and which consisted of a gore plot (hereinafter fully described by metes and bounds) of land taken from two streets shown on a certain map, but which streets were never opened or laid out. October 27, 1841, a creditor’s bill was filed against Underhill in chancery, a receiver was appointed in the action, and an order was made that Underhill assign all his property to said receiver, and on June 18, 1842, Underhill made and delivered an assignment in writing under seal to said receiver of his property pursuant to the order of chancery.
    July 7, 1842, said Underhill filed a petition with schedules as a bankrupt, in the district court of the United States, asking to be discharged from his debts under the bankrupt act of the United States of 1841. In the schedule annexed to his petition he mentioned the judgment creditors in the-aforesaid chancery suit, and states that under the order of the court of chancery he had made an assignment of his property to the receiver, and annexes a copy of the said assignment.
    Down to the time of making and recording the deed of the assignee in bankruptcy, hereafter set forth, the assignment to the receiver does not appear upon record in Kings county, nor do the records of said county down to that time show any conveyances by the receiver of any of Underhill’s estate.
    In the bankruptcy proceedings the bankrupt Underhill made, under order of the United States court, an assignment to William Coventry H. Waddel, general assignee, etc., of all his property, and the general assignee duly reported such assignment August 5, 1842. In March, 1858, the following proceedings were had:
    “Southern District of New York, ) “In Bankruptcy. j
    “In the matter of James E. Un- ) derhill, a bankrupt. j
    “Decree August 5, 1842.
    “The official or general assignee to whom the estate of the said bankrupt was confided by decree aforesaid, respectfully reports that an application has been made to him to procure all the interest which the said bankrupt had of, in and to certain streets set forth in a map entitled ‘ Map of lots adjoining Parmentier’s Garden, belonging to James E. Underhill and others, situate in the city of Brooklyn, surveyed and laid out by R. Graves, October, 1834, ’ and filed in the office of the register of Kings county, in the state of New York, March 30, 1835, wherever the same may not have been covered by the mortgages which have been foreclosed upon the lots set forth in said map, or where the same may have been fully set forth and covered thereby, for a nominal consideration, and the costs and charges of the assignee thereon, and the assignee aforesaid having carefully examined the subject matter thereof, now moves the court for an order, as follows, to wit:
    “Ordered, that the official or general assignee be authorized to sell and dispose of the property herein referred to in manner aforesaid, at private sale, pursuant to the rules of said court.
    “WM. COVENTRY H. WADDELL,
    “ Official or General Assignee.

    “Dated March, 1858.”
    (Indorsed.)
    “Southern District of New York, \

    “In Bankruptcy.

      “In the matter of “JAMBS E. UNDERHILL, “a bankrupt.
    “Report of Assignee and Order of Sale.
    “Order, S. R. Betts.
    “Riled March lu, 1858.”
    The said general assignee thereupon conveyed the premises to one Leah Van Winkle, under whom the plaintiffs claim. The defendant claimed that the order directing the sale by the assignee was void, because it did not fix the time of sale.

      Stephen Cohdit, with William C. De Witt, for pl’ffs; A. W. Gleason, for def’t.
   Barnard, P. J.

The case of Smith v. Long (12 Abb. [N.C.], 113 )has no application to the facts of this case. By the bankrupt act of 1841, sales of property under its provisions were to be “made at such times and in such manner as shall be ordered and appointed by the court in bankruptcy.” The court of appeals held in a case of public sale that the bankrupt court must fix the time of the sale. The bankrupt court could, however, authorize a private sale, and in respect to the land in question did authorize the assignee in bankruptcy to sell it at private sale, which was done. ,The court in such a case was not bound to name a time when the sale should be consummated. The object of the law was to prevent sales without due proof of publicity. This provision would not apply to a private sale when a court in the exercise of an undoubted powrer authorizes a private sale, and fixes the consideration in the order. It would be an entirely useless requirement to fix a day for this private sale, so authorized. The assignment to the receiver in chancery in some way became inoperative. The creditors who instituted the proceedings were made parties to the proceedings in bankruptcy.

The assignment to the receiver was annexed to the bankruptcy proceedings, and after this the bankruptcy court ordered the sale of the lands conveyed by it.

This must have been based either upon the assignment to the receiver being void under the bankrupt act, or by reason of the creditors preferring a distribution under that act. In either event the creditors were bound by the sale ordered by the United States district court.

The title is not a doubtful one, but is good, and the defendant should take the same under her agreement.

Pratt, J.

This is a submission of controversy, and the only question seriously raised is whether a sale by a general assignee in bankruptcy under an order that does not fix the time when such sale shall take place, is valid.

Section 9 of the act provided that all sales by assignees “ shall be made at such times and in such manner as shall be ordered and appointed by the court.” The order under which the sale took place was as follows: “ Ordered that the official assignee be authorized to sell and dispose of the property herein referred to, etc., at private sale pursuant to the rules of said court.” It is conceded the court had power under other provisions to order a private sale.

It will be at once seen that if the act in question is to be construed so that the court must appoint a time when the property should be sold at private sale the power to sell at private sale is nugatory. No court could appoint a time when property should be sold at private sale, and hence such a construction cannot be entertained. The whole law upon this subject must be read and all its parts construed in connection with each other. The section simply means that when a time is appointed it must be so sold, but the court can direct the manner, and if it directs a manner in which it is impossible to appoint the time, the sale is not void. The specific words of the statute can be given their full force and meaning by applying them to sales ordered to be made at auction and the time fixed for such sale to take place. The case of Smith v. Long (12 Abb. [N. C.], 113), is invoked as authority against this sale. That case has no application as the sale was a public one and the time could have been appointed.

The interpretation I have put upon this statute follows the general practice in the United States court for a long series of years, and if it is not the proper one, then a large number of land titles will be thrown into inextricable confusion and doubt. It cannot be that the state courts, at this late day, will so interpret a statute as to run counter to the established practice in the United States courts, and throw doubt over the title of an immense amount of property that is held by virtue of such sales, especially when full effect can be given to the words of the statute, by holding that the “appointed” does not refer to an order providing for a private sale.

The doctrine of the case of Smith v. Long does not cover this case, and it is not likely to be extended in view of the consequences it would entail.

We think the sale here by the assignee was valid, and carried the title.

A point is made that the title here is in a receiver in chancery, but it does not appear that any such conveyance was ever recorded, and it appears that the plaintiff is a bona fide purchaser, and has been in exclusive possession for twenty years.

We have no hesitation in holding that the title is good, and that defendant must take it.

Judgment for affirmance.

      See Palmer v. Morrison, 5 N. Y. State Rep.


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    Matter of the Will of Abijah S. Feeks, deceased.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    1. Wills—Construction of—Intention of testator must prevail— TO BE GATHERED FROM WHOLE WILL.
    A testator by his will gave the entire remainder of certain sales of real estate, stating no specific sum, to persons specifically named therein, providing that in event of the death of any of the legatees the bequest be paid to their heirs, share and share al lie. By a codicil the testator selected certain of these persons, and added to their portions in amounts stated. The codicil contained no clause to save the legacy in case of lapse, but stated in its first clause that the will was th reby ratified and confirmed in every respect, save so far as any part of it might be inconsistent with the codicil. Held, that in the construction of wills the intent of the testator is to prevail, and that such intent is to be found from tue whole will.
    2. Same—Construction.

      Held, that it was not inconsistent with the codicil to save an additional legacy created thereby, when the or.ginal legacy was saved by express words.
    3. Legacy—Petition for payment of—Refusal of permission to file verified answer, error.

      Held, that where upon petition made under Code of Civil Procedure, section 28()4, a surrogate issued a citation to executors of a will to show cause why certain legacies should not be paid, it was error to refuse leave to the executors to file a verified answer to the petition, that it was the right of the executor to be heard upon the merits of the question.
    Appeal from an order of the surrogate of Green county directing the executors of the will of Abijah S., Reeks to pay Maria Smith the sum of $1,750 as a legatee under said will.
    Abijah S. Reeks executed a will January 3, 1882, and a codicil thereto Rebruary 27, 1883; he died December 9, 1884, and the will and codicil were admitted to probate March 2, 1885. The opinion contains sufficient facts concerning the clauses of the will and codicil. Upon a verified petition being presented by the respondent a daughter of one of the residuary legatees and niece of another, a citation was issued by the surrogate to the executors that they show cause why a decree should not be made that they pay certain moneys to the respondent as legatee; permission was refused them to file a verified answer to the petition and decree rendered according thereto.

      George Wallace, for app’lts; Joseph Kohles, for Maria Smith, resp’t.
   Barnard, P. J.

The testator by his will, in the seventh clause thereof, gave the entire remainder of certain sales of New York real estate to persons specifically named therein. The case is silent as to the relationship which these parties bore to the testator, but I assume that none of them were lineal descendants. The clause named provides that in the event of the death of any of the legatees in the seventh bequest, that the bequest should be paid to their heirs share and share alike.

By a codicil the testator (third clause) selected certain persons who were named in the seventh clause of the will and added to their portions in amounts stated. The will stated no sum, but divided the residue equally among these persons who were named in the seventh clause.

The third clause also added the names of various persons who are not named in the will and gave them fixed pecuniary legacies. The codicil (third clause) contained no clause to save the legacy in case of lapse, but the codicil in the first clause states, ‘11 hereby ratify and confirm said will in every respect, save so far as any part of it is inconsistent with this codicil.” Under the familiar rules in respect to the construction of wills, that the intent of the testator is to prevail and that such intent is to be found from the whole will, there was no lapse as to the petitioner.

She is the sister of James M. Smith, and one of the heirs-at-law of Mary L. Deronda, both of whom are dead.

By the seventh clause of the will, James M. Smith and Mary, sister of James M. Smith, are named among the legatees of the residuary estate, and under the will there was no lapse for that was saved by express words. The codicil gave “in addition to the gifts, devises and bequests therein named,” to the following named persons, viz.: Among those names are James M. Smith, $1,500, and Mary, sister of James M. Smith, $500. The codicil as we have observed, ratifies the will, except when inconsistent with the codicil, and it would be inconsistent to save an additional legacy-created by a codicil when the original legacy was saved by express words. If this were all, the decree should be affirmed, but the executors made a motion to dismiss the petition upon its face. The surrogate reserved his decision, and finally decided the petition to be good. The executors asked leave to file a verified answer. This the surrogate denied. We think that it was the right of the executors to be heard upon the merits and to that end the application to file the answer, should have been granted.

Decree reversed and proceedings remitted to surrogate.

No costs allowed on tho appeal.

Dtkmait and Pratt, JJ., concur.


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    Sylvester S. Mangum et al., as Ex’rs, etc., Resp’ts, v. Ellen K. Peck and Richard W. Peck, her husband.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    Husband and wife—Husband’s liability for torts of wife.
    The defendant E. IC. P., a married woman, presented to the plaintiff a •bond and mortgage, purporting to have been executed by her husband, which were in fact forgeries, and under false representations that they were genuine instruments, induced the plaintiff to loan money thereon. The husband did not participate in the transaction in any manner. In an action against husband and wife, a judgment having been rendered in favor of the plaintiff against the defendants: Held, that the liability of the husband to be joined as a co-defendant with his wife in an action for her personal torts and trespasses resulted from the suspension of her legal existence during her coverture. A married woman could not be sued separately, and unless the husband we. e joined with her in the action a party sustaining an injury would have been without remedy. That though the reason for joining the husband with the wife had ceased in this state, yet the question being in doubt, tne judgment holding the husband liable would be affirmed.
    Appeal from a judgment entered on a verdict rendered in favor of plaintiff and against defendant at the Kings county circuit, and from an order denying defendant’s motion for a new trial on the judge’s minutes, and from an order denying a motion for judgment notwithstanding the verdict.

      Henry A. Meyenborg, for app’lts; Hearts, Choate & Beaman, for resp’ts.
   Dykman, J.

This is an action against husband and wife for the recovery of damages resulting to the plaintiff from the fraud of the wife alone. She presented to these plaintiffs a bond and mortgage for $4,000, purporting to have been executed by her husband, but which were in fact forgeries, and under false representations that they were genuine instruments, induced the plaintiffs to loan the money thereon.

There is no claim of any participation of the husband in the transaction in any manner. He did not instigate or authorize the fraud, had no knowledge of its execution until after its consummation, and received none of its proceeds.

The action is prosecuted upon the theory that the torts and wrongs of the wife committed during coverture are imputed to the husband, and that an unqualified liability is cast upon him by the law for the resulting consequences, and there is much in the elementary books and opinions of judges to justify the action and the recovery that has been obtained.

The liability of the husband to be joined as a co-defendant with his wife in action for her personal torts and trespasses, resulted from the suspension of her legal existence during her coverture. A married woman could not be sued separately, and a party sustaining an injury from her wrongs would have been without remedy if the husband could not be joined with her in an action, and for that reason the husband was joined.

It would seem 1 jw that no such reason exists in this state, and that there is no occasion for joining the husband with his wife in an action for her torts, because she may be sued alone, her common law disability in that respect having been released by modern • legislation tending to the emancipation of the wife from the husband’s control.

We are inclined to that view, and to hold that the simple entry into the marriage relation can entail upon a husband no consequence such as the plaintiffs endeavor to force upon the husband in this action.

But the question has been decided both ways by the supreme court, and will not be set at lest until it is finally determined by the court of appeals, and as it is well presented by this case, we think it better to facilitate a direct appeal to the court of appeals by an affirmance of this judgment.

The judgment should be affirmed, with costs.

Barnard, P. J., concurs; Pratt, J., not sitting.


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    People of the State of New York ex rel. James J. Hayes v. Thomas Carroll, as Commissioner of Police and Excise, Resp’t.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886)

    1. Police Department—Dismissal from force fob breach of rules of DEPARTMENT.
    Relator, a member of the police department of the city of Brooklyn, was charged with having committed an unprovoked assault upon a citizen while off duty. The commissioner of police and excise, by Laws of 1873, chapter 863, title 11, section 14, as amended by Laws Í881, chapter 457, section 2, has power in his discretion to dismiss a member of the force, among other things, for violation of the rules'of the department or conduct unbecoming an officer. By section 8, the board may make such rules as they deem proper. Rule 136 provides that no policeman shall abuse or ill treat a citizen. By rule 145, it is provided that a policeman is at all times subject to the rules. Held, that the commissioner had jurisdict on over the charge, and he obtained jurisdiction over the officer by his appearance without objection to answer a written charge.
    2. Same—What degree of strictness required in pleading.

      Held, that even at common law, the words of a statute or rule need not be used; that if the substance of the charge be expressed, it is good pleading; that these proceedings were not such as called for the strict common law rules either of pleading or trial.
    Appeal from an order made by the Kings county special term quashing a writ of certiorari to review the proceedings of the commissioners of police and excise of the city of Brooklyn dismissing the relator from his position on the force.
    The relator was a member of the police force of the city of Brooklyn. On January 30, 1886, a verified complaint in writing was made by one Robert Cullen, charging him with having committed an unprovoked assault upon him on the day previous. On that day the relator was not on duty. ' Due personal service of a copy of the complaint was made upon him and of the notice of the time and place of trial. Upon the return day, at the request of relator an adjournment was granted.' On the adjourned day the trial went on and he was adjudged guilty of the offense charged and dismissed from the force. The commissioner of police and excise is empowered by Laws 1873, chapter 863, as amended by Laws 1881, chapter 457, title 11, section 14, to dismiss a member from the force on his conviction of a violation of the rules or of conduct unbecoming an officer. Provision is made for the making of rules by the board in section 8 of the same act and title. By rule 145 it is provided that a policeman is at all times subject to the rules, and by rule 136 that no policeman shall abuse or ill treat a citizen.

      Edward F. O’Dwyer, for relator, app’lt; F. A. McCloskey, for resp’t.
   Barnard, P. J.

The relator was a member of the police department of the city of Brooklyn. The respondent is the police commissioner, and by chap. 863, Laws of 1873, as amended by chap. 457, Laws of 1881, title 11, sec. 14, has power to dismiss from the force a policeman who violates the rules of the department. He has also power to dismiss for conduct unbecoming an officer. The relator was charged with an unprovoked assault upon a citizen while he, the policeman, was off duty.

He was tried for this offense and dismissed.

It is one of the rules that no policeman shall wilfully abuse or ill treat a citizen. Rule 136. The policeman is at all times subject to the rules. Rules 145. Both rules are necessary and proper. The policeman is to protect the public. He must not be a brawler and fighter, either when on or off duty, for his efficiency depends upon a public respect for his office, and a confidence in the acts and deportment of the officer. The commissioner thus had jurisdiction over the charge, and he obtained jurisdiction over the officer by his appearance without objection to answer the written charge. McCormick v. Penn. R. R. Co., 49 N. Y., 303.

The charge is sufficiently explicit. Even at common law the very words of the statute or role need not be used. If the substance of the charge be expressed it is good pleading. These proceedings are not such as call for the strict common law rules, either of pleading or trial. People ex rel. McCarthy v. Com. of N. Y., 98 N. Y., 332; People ex rel. Flanagan v. Com. of N. Y., 93 id., 97.

The issue of fact, if the evidence be merely conflicting, does not call for a reversal for that reason. People v. Com., 82 N. Y., 358.

The evidence in this case supports the conclusion of the commissioner.

Judgment affirmed, with costs.

Dykman, J., concurs.


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    Matter of Proving the Last Will and Testament of Edwin B. Hunt, deceased.

      (Supreme Court, General Term, Second Department,

      Filed December 14, 1886.)

    Will—Probate of—Attestation clause.
    Where the attestation clause of a will was as follows: “We, the undersigned witnesses, have signed the within in the presence of each other and of the testator, who acknowledged it to be his last will and testament.” And from the pr of, it fairly appeared that the will was signed by the testator before the attestation by the witnesses. Held, that the will should be admitted to probate.
    Appeal from a decree of surrogate’s court of Rockland county, denying probate of a writing purporting to be the last will and testament of Edwin B. Hunt, deceased.

      Daniel W. Guernsey, for proponents, app’lts; James Armstrong, for resp’t.
   Barnard, P. J.

Everything surrounding the execution of the will proposed for probate shows good faith and freedom from any evil influence whatever.

The deceased was a clerk in Brooklyn, in the employment of Sleight & Petty.

The will was drawn by the testator himself, and was witnessed by his employers.

. The attestation clause is not full, but is as follows: ££ We, the undersigned witnesses, have signed the within, in the presence of each other, and of the testator, who acknowledged it to be his last will and testament.”

The memory of the witnesses is very imperfect as to the particulars of the transaction, but both unite in the declaration that the facts stated in the attestation clause were true, or that they would of have signed it.

The will was then pixxuiced before the witnesses, either signed or unsigned, and attested by the witnesses. If it was signed in the presence of the witnesses, the attestation clause is sufficient.

The learned surrogate puts his decision upon the fact that it was signed before the witnesses were asked to attest it, and then rejects the will on the authority of Lewis v. Lewis (11 N. Y., 220). It is true that the statute either requires that the signature be made in the presence of the witnesses, or that it be acknowledged. The acts are separate and distinct, and a failure in either will call for a rejection of the will.

In the case of Lewis v. Lewis the paper was so folded as that the witnesses could not see the signature, and the publication was, “I declare the within to be my will and deed.”

It seems very certain in this case that the signature of the testator was in full view of the witnesses, and the fair inference is that he signed it in presence of the witnesses. The attestation clause is entirely consistent with its execution in the presence of the witnesses. If the will was signed before its attestation by the witnesses, the will should be-admitted to probate. ‘ ‘ The exhibition of the will, and of the testator’s signature attached thereto, and his declaration to the witnesses that it was his last will and testament, and his request to the witnesses to attest the same, were, we think, a sufficient acknowledgement of the signature and publication of the will.” Matter of Phillips (98 N. Y., 267).

The same court, in Matter of Higgins (94 N. Y., 554), expresses the same opinion in respect to the testimony of one of the subscribing witnesses to the will.

The decree rejecting the will should be reversed, and the record remitted to the surrogate’s court, with directions to admit the will to probate.

Costs to appellants, out of the estate.

Pratt, J., concurs._