author: Bradley, J.

text:
    George W. Morrison, Resp’t, v. The Broadway & Seventh Avenue Railroad Co., App’lt.

      (Court of Appeals, Second Division,

      Filed December 1, 1891.)

    Negligence—Boarding moving street car—When not contributory NEGLIGENCE.
    Plaintiff signalled a horse car, which slowed up, and he attempted to. get aboard, and with both hands caught hold of the rail at the rear platform, and a? he put one or both feet onto the step the brake was relaxed, and the car starting with a sudden jerk, his feet were thrown from the step, and he was dragged 125 feet. Held, that under the circumstances plaintiff was not chargeable with contributory negligence, and the question as to defendant’s negligence was one for the jury.
    Appeal from judgment entered upon order of the general term of the supreme court, in the first judicial department, affirming judgment entered on a verdict in favor of the plaintiff.

      Samuel B. Clarke, for app’lt; Edwin R. Leavitt, for resp’t.

       Affirming 28 St. Rep., 498.

   Bradley, J.

The personal injury to the plaintiff resulted from his attempt to get onto the defendant’s car. And the. questions presented are whether the conclusion was warranted from the evidence that the injury was occasioned by the negligence of the defendant, and that it was not attributable to any negligence on the part of the plaintiff. It appears that he signalled his purpose to take the car, the brake was applied, and the motion of the car was slackened, although not entirely stopped ; that the plaintiff then proceeded to get aboard, and for that purpose he with both hands caught hold of the rail at the rear platform, and as he put one foot or both feet onto the step the brake was relaxed, and the car started with a sudden jerk, by which his foot or feet were thrown from the step, and he, with his hands holding onto the rail, was dragged about 125 feet.

The questions arise upon exception to the denial of the defendant’s motion for dismissal of the complaint on the grounds that the plaintiff was not free from contributory negligence, and that the plaintiff’s injury was not caused by negligence of the defendant. The fact that the car was in motion when the plaintiff proceeded to step onto it was one for consideration on the question whether he voluntarily assumed the hazard of safety in getting on board of it at the time he attempted to do so. The conclusion was warranted that the speed of the car was then reduced to that given by bringing the horses to a walking gait. The slowness of the motion was aided by the application of the brake. The plaintiff carried nothing to impede his movement in getting onto the car. He guarded his attempt by taking hold of the rail, to which he held until the car was stopped after dragging him the distance mentioned; and when he so grasped the rail he planted one or both of his feet on the step of the platform. Assuming, as here we must, that such were the facts, he was not necessarily chargeable with contributory negligence; and that question was properly submitted to the jury. Eppendorf v. B. C. & N. R. R. Co., 69 N. Y., 195. The negligence of the defendant was not in the fact that the car failed to come to a full stop. If the motion of it had not slackened sufficiently to enable the plaintiff to safely do so, the attempt to board the car was his fault. But as the evidence permitted the finding that it had eased up sufficiently for the purpose, the conclusion might properly follow that the fault was with the defendant in defeating the opportunity of the plaintiff to safely get aboard by suddenly jerking the car into more rapid motion while he had only partially accomplished it By the application of the brake and bringing the car to a slow movement upon the plaintiff’s signal he was induced to proceed as he did to get into it, and he was entitled to a fair opportunity to get firmly onto the platform of the car. This was denied him by too soon relaxing the brake, and suddenly with a jerk pulling the car into a more rapid motion, resulting in the consequences which followed. The question whether the defendant was chargeable with negligence was one of fact properly submitted to the jury. Eppendorf v. B. C. & N. R. R. Co., supra; Black v. Brooklyn City R. R. Co., 108 N. Y., 640; 13 St. Rep., 645; Nichols v. Sixth Av. R. R. Co., 38 N. Y., 131; Keating v. N. Y. C. & H. R. R. R. Co., 49 id., 673.

The fact that the plaintiff with accelerating speed was dragged as, and the distance, he was until the car was stopped to relieve him, was a circumstance tending to prove that the attention due to persons who are properly proceeding to get onto a street car may not have been given to the plaintiff in this instance. There is, however, some evidence tending to prove or which permitted the inference that the embarrassing position of the plaintiff was prolonged by the failure of the conductor to make the driver understand the signal he intended to give him to stop the car.

In view of the facts in Hayes v. Forty-second St., etc., R. R. Co., 97 N. Y., 259, and those which the jury were permitted to find in the present case, that case has not necessarily any essential application to this one. Nor does it in legal effect qualify the doctrine of the Eppendorf case, to which it makes no reference. No other question requires consideration.

The judgment should be affirmed.

Judgment affirmed, with costs.

All concur.


source: Caselaw Access Project

author: Brown, J.

license: Public Domain

text:
    Frederick Reck, App’lt, v. The Phenix Ins. Co., Resp't.

      (Court of Appeals, Second Division,

      Filed December 1, 1891.)

    1. Insurance (Marine)—Warranty—“ Commercial lasts.”
    The vessel in question was originally an American ship with a register of 916 tons. Subsequently she was placed under the flag of Hanover and registered 351.97 “ commercial lasts,” which the court held was equivalent to ¿792 tons, and that consequently she exceeded her tonnage and broke her warranty. Held, error; as the law of the German Umpire which provided the rule by which the equivalent of lasts could be ascertained in tons as estimated by the court was not enacted until 1872, after the loss of the ship, and so did not apply to the case, .and a commercial last being equivalent to 6,000 pounds, her tonnage was about 942 tons, and so her registered carrying capacity was in excess of her cargo and the warranty was not broken.
    2. Same—Registered tonnage.
    The term “ registered tonnage ” refers to the vessel’s carrying capacity as stated in the ship’s papers under which she was sailing at the date of the policy.
    3. Same—Waiver.
    As defendant insured the vessel while lying at Rotterdam, a port north of Antwerp, it waived the warranty not to use ports north of the latter city.
    Appeal from an order of the general term of the first judicial department, wbicb set aside a verdict in favor of the plaintiff, directed by the trial court, and ordered a new trial.
    Exceptions ordered to be heard in the first instance at the general term.

      Esek Cowen, for app’lt; George A. Black„ for resp’t.

       Reversing 27 St. Rep., 500.

   Brown, J.

This action was upon a policy of marine insurance issued by the defendant to Ruger Brothers, for account of whom it may concern, and which insured the ship “ Elise Ruger” against the perils of the sea for one year from December 29, 1865. The ship, at the date of the policy, was owned by Theodore Ruger, and the insurance was effected for the benefit of the plaintiff, a creditor of said Theodore and a mortgagee of the vessel.

The policy, among other things, contained the following warranties : “Warranted not to load more than her registered tonnage with lead, marble, coal or iron on any one passage.”

Also, “ not to use ports on the continent of Europe north of Antwerp, between 1st of November and 1st of March.”

The vessel sailed from New York for Yokohama, Japan, on May 26, 1866. She was loaded with about 901-J gross tons of coal. There was evidence that she was seen in October of that year at a place called Pitts Passage, but she was never seen or heard, from subsequent to that date, and plaintiff claimed that she was lost on the voyage with all on board.

The defenses urged at the trial were, first, that the warranties above quoted had been broken; second, that the proof did not establish a loss within the lifetime of the policy; third, that there was no evidence of a debt to the plaintiff, and hence no insurable interest in him; and, fourth, a counterclaim upon certain promissory notes made or endorsed by Ruger Brothers.

At the close of the trial the defendant moved to dismiss the complaint, which was denied. It then moved that a verdict be directed in its favor. It was conceded by the plaintiff that the question whether the vessel was lost before the policy expired was one of fact, but the defendant refused to go to the jury upon that question, and each party thereupon requested the court to direct a verdict in its favor.

The court was apparently of the opinion that the case presented questions of fact, but stated that as neither party desired to have them submitted to the jury, and drawing such inferences from the evidence as he was under the circumstances permitted to do, he directed a verdict for the plaintiff.

The question, therefore, presented to us is, whether the conclusions of fact which the court made in its decision have support in the evidence.

The general term sustained the defense resting upon the allegation of a breach of warranty against overloading, and held that the proof showed the registered tonnage of the vessel to be 792.

It appeared that the vessel was built in the United States, and when first launched had an American register which stated the tonnage to be 916. Subsequently,. however, she was sold to a citizen of Hanover, and received á Hanoverian register, and sailed under the Hanoverian flag. This register was lost with the ship, but what was substantially a copy was produced on the trial from the official records of the port where the register was recorded, from which it appeared that the ship’s capacity was 351.97 commercial lasts.”

This latter term was one indicating the vessel’s capacity or ability to carry a given weight, and a “ last” was taken as the equivalent of 6,000 pounds.

The general term was of the opinion, and in it we concur, that the term “ registered tonnage ” referred to the vessel’s carrying capacity as stated in the ship’s papers under which she was sailing at the date of the policy, but that learned court fell into the error of holding that 792 tons was the equivalent of 351.97 commercial lasts.

This conclusion was drawn from a law of the German Empire, which included Hanover, and which provided the rule by which the equivalent of lasts could be ascertained in tons, but that law was not enacted until 1872, long after the loss of the ship, and therefore was not applicable to the case.

It seems to us that the question arising upon the warranty was whether the cargo of coal taken on at Hew York was of greater weight than that specified in the ship’s register as her carrying capacity.

The evident purpose of the provision was to prevent • overloading with heavy merchandise, and, therefore, the policy limited her cargo to the official rating of the ship or the stated carrying capacity as appeared from the official register under which she sailed. And, it appearing that a commercial last was the equivalent of 6,000 pounds, the capacity of the ship to carry the specified merchandise was limited by the policy to 2,111,820 pounds, or about 942f- gross tons.

Thus her registered carrying capacity was in excess of her cargo and the warranty was not broken.

The learned counsel for the respondent refers to the law of measurement existing under the acts of congress, by which 100 cubic feet of space within the ship’s hold is taken to be a ton, and has argued that the intent of the policy was to limit the cargo to be carried to one ton in weight for each ton of measurement of the ship, and he proved upon the trial an official measurement of the ship as a foreign vessel made at New York in May, 1866, by which her tonnage capacity appeared to be 857. But we are of the opinion that our law had no application to the case, as the vessel, having been a foreign one, and under our law not qualified to obtain an American register, the use of the term “ registered tonnage ” may fairly be presumed to have had reference to the capacity of the ship as it should appear in the register under which she sailed and which, of course, could not have been ascertained under the law of measurement prevailing in this country.

The warranty not to use ports in Europe north of Antwerp, between November 1st and March 1st, we think was waived.

The written application for the policy bearing date January 23, 1866, stated that the ship was then at Rotterdam. That was a port north of Antwerp, but having insured the vessel while lying at that port the defendant cannot now be permitted to claim that that fact was in violation of any clause of the policy. The argument presented now to the court, however, is that the vessel was not permitted to leave that port during the prohibited months. But there is no evidence in the case which shows that she did leave Rotterdam prior to March 1st.

The charter party for the ship’s voyage, dated May 10, described the vessel as then lying at New York.

The complaint alleged that she arrived in New York about April 14th, and one witness stated that she was at that port for about a month before she sailed on her last voyage.

But there is no evidence of when she left Rotterdam, nor of the usual length of the voyage between that port and New York, and assuming that allegation of the complaint to be correct, the court could not determine as a fact that the voyage could not have been made between the dates named.

The question whether the vessel was lost within the lifetime of the policy was one of fact, .and in view of the refusal of the defendant to have it submitted to the jury, the court was permitted to draw the inference fairly arising on the evidence, and we think the conclusion reached has support in the testimony.

The evidence of the debt to the plaintiff was ample, and there was no legal basis for the counterclaim of the notes against Ruger Brothers.

We find no error in any of the rulings upon admission of testimony.

The order of the general term must be reversed and judgment, entered upon the verdict, with costs.

All concur.


text:
    Thomas Dollard, Resp’t, v. Edward Roberts, App’lt.

      (Court of Appeals, Second Division,

      Filed December 1, 1891.)

      1. Landlord and tenant—Liability of landlord for injury to tenant.
    The ceiling of the common hallway of a tenement owned by defendant, was in a dangerous condition, of which he had notice. Plaintiff occupied the fourth floor, and his daughter was injured by the fall of plaster from such ceiling. Held, that it was the duty of defendant to keep the hallway in suitable repair, and the question of his negligence was properly submitted to the jury.
    2. Same—Contributory negligence.
    The fact that plaintiff and his daughter had been advised of the condition, and may have apprehended that the plaster might fall, did not necessarily charge them with contributory negligence in passing under it.
    3. Same—Damage—Loss, of service.
    The question as to the amount of damages for the loss of services of a daughter about thirteen years of age accustomed to housework is for the jury, and they may award prospective damages where they conclude that the damages will continue.
    Appeal from judgment entered on order of" the general term of the supreme court, in the first judicial department, affirming judgment entered on a verdict in favor of the plaintiff.
    This action was brought to recover damages for the loss of service of the plaintiff’s minor daughter resulting from a personal injury to her by the falling upon her of plaster from the ceiling of the hallway of a tenement house fronting on East One Hundred and Fourth street in the city of Hew York, and for the expense of medical attendance on account of such injury. The defendant was the owner of the building, and the occupants were his tenants. The plaintiff with his family occupied apartments on the top floor, and below that were two floors also occupied by families, and the next below, the ground floor, was used as a drug store. The hallway on the ground floor was common to all the occupants of the three floors above it, and was their only means of access to their apartments from the street, and of passage into it from them. On August 26, 1884, when passing along in this hallway, the plaintiff’s daughter was struck on the head by plaster falling from the ceiling, eleven feet in height, and in that manner received the injury by which the alleged disability was produced.

      Jacob F. Miller, for app’lt; Clifford A. H. Bartlett, for resp’t

       Affirming 28 St. Rep., 569.

   Bradley, J.

The alleged cause of action for loss of service and medical expenses was in the consequences of the injury to the plaintiff’s daughter; and the liability of the defendant was dependent upon the fact that the injury was solely attributable to his negligent failure to perform a duty assumed by him in his relation of landlord to the plaintiff as his tenant If the hallway had been part of the premises demised to the plaintiff there would have been no liability of the defendant to him. But the argument of the defendant’s counsel founded upon the proposition that such was the relation of the parties to that portion of the building does «not seem to be applicable to the present case. It was a four floor tenement house. The apartments on the second, third and fourth floors were separately rented for use by families as dwelling places. The plaintiff had rented and with his family occupied the fourth or top floor, other families occupied the second and third, and on the ground floor was a drug store, and a hallway common to the occupants of the floors above. It was the means provided for their passage way for ingress and egress into and from the building in going to and from the apartments from and into the street. It was essentially provided for that purpose, and necessarily common to the use of such occupants. Their right of passage through it was necessary to the availability for occupancy of the apartments rented by them. It was provided for their use in passing to and from the apartments demised to them, of which it constituted no part. It was, therefore, subject to their right of passage in it, under the .control of the defendant, who was the owner and their landlord. And upon him was the duty of exercising reasonable care in keeping the hallway in suitable repair and condition for the use in safety by his tenants of apartments on the floors above it Donohue v. Kendall, 18 J. & S., 386: 98 N. Y., 635; Palmer v. Dearing, 93 id., 7 ; Looney v. McLean, 129 Mass., 33 ; Lindsey v. Leighton 150 id., 285 ; Peil v. Reinhart, 127 N. Y., 381; 38 St. Rep., 913.

The evidence permitted the conclusion of negligence of the defendant For some time prior to the injury water had been leaking through the plastered ceiling at the place from which the plaster fell and struck the girl. And the plaintiff, his wife and the daughter testified that they had called the attention to the condition of the ceiling at that place of Mr. Hoyt, who collected the rents for the defendant and to whom the plaintiff was referred by the defendant when he sought to rent apartments in the building, and who also gave attention to the repairs made on it, and that Hoyt’s attention was also called to the danger that the plastering would fall from the place so affected, and he said it would be repaired. Although there was some controversy about the relation of Hoyt to the plaintiff in respect to the business about the building, the conclusion was warranted that his knowledge of this condition of this ceiling, as between the plaintiff and defendant, was such as to charge the latter with notice of it and with negligence for omission to repair it prior to the time of the injury, and it was a fair question for the jury whether the yielding and falling of the plaster was reasonably to be apprehended from the fact that water was leaking through and dropping from it as it did. The question, of the defendant’s negligence was properly submitted to the jury.

The fact that the plaintiff and his daughter had been advised of the condition, and may have apprehended that the plaster might fall from that place in the ceiling, did not necessarily charge them or the daughter with contributory negligence in passing under it at the time in question. While the duty was imposed upon her of using due care to avoid danger, it cannot, as matter of law, be said that she failed in that respect by not constantly having in mind the condition of the ceiling when passing through the hallway. This was her only passageway into the street, and from it in going to the apartment in which she dwelt. She had been out and was returning when the accident occurred. The impaired condition of the ceiling was not in the line of her vision as she proceeded through the hall, but to see it she would be required to look upward rather than forward.

And as was said in Palmer v. Dearing, 93 N. Y., 11: “It would be an extremely harsh rule which should require ” her “ who was called so often to pass this place to have kept her mind invariably fixed upon its character and to make her responsible for an omission to exercise incessant vigilance in passing it. The girl was not necessarily chargeable with negligence for having for the time being forgotten the condition of the ceiling or for having her thoughts or attention diverted from it at the time of the occurrence. Weed v. Ballston Spa., 76 N. Y., 329; Bassett v. Fish, 75 id., 303, 307.

On this review all questions of fact arising upon a conflict of evidence must be deemed disposed of by the verdict, and in its support the plaintiff is entitled to the benefit of the inferences legitimately derivable from the evidence.

There was no error in the charge, or refusal of the court to charge, on the subject of damages for loss of service. It appeared that the daughter, who was then between thirteen and fourteen years of age, was accustomed to perform services in doing housework. This question was for the jury, and the recovery of damages for loss of service is not in such cases limited to those sustained prior to the trial, but when the evidence justifies the conclusion that they will continue thereafter, prospective damages may be awarded. Drew v. Sixth Ave. R. R. Co., 26 N. Y., 49 ; Cuming v. Brooklyn City R. R. Co., 109 id., 95; 14 St. Rep., 788.

The case was fairly submitted to the jury, and there was no error in any of the rulings to which exception was taken. The judgment should be affirmed.

Judgment affirmed, with costs.

All concur.


author: Follett, Ch. J.

text:
    Jay Wicks, as Treasurer of Local Assembly No. 4119 of the Knights of Labor, Resp’t, v. Edward H. Monihan et al., App’lts.

      (Court of Appeals, Second Division,

      Filed December 1, 1891.)

    Associations—Knights op Labor—Suspension.
    Defendants, for value, executed a note to the trustees and treasurer of Local Assembly No. 4119, K. of L., and delivered the same to its treasurer. Thereafter such assembly was suspended by the general executive board of the order. The general rules of the order provide that in such case the property of the assembly becomes forfeited and vested in the general secretary. Held, that such rules cannot be enforced in the courts, and the trustees and treasurer, as owners and holders of the note, were entitled to maintain an action thereon.
    Appeal from a judgment of the general term of the supreme court of the third judicial department, which affirmed a judgment entered in favor of the plaintiff on the report of a referee.

      Edward J. Meegan, for app’lts ; Charles S. Nisbet, for resp’t

       Affirming 28 St. Rep., 39.

   Follett, Ch. J.

This action was begun August 1, 1887, to recover the amount due on the following note:

“ $500. Amsterdam, N. Y., Nov. 28, 1886.

“ Six months after date we promise to pay to the order of William Perry, William Ryland, John Silber, Trustees, and Jay Wicks, Treasurer, five hundred dollars at the First National Bank of Amsterdam, value received, with three per cent use.

“E. H. Monihan.

“ John C. Stack.”

It is conceded that the note was given for money owned by the society and loaned to the defendants, and that no part of it has been paid.

The defenses interposed were: (1) That the note was given for money advanced and used to sustain a strike, upon the agreement that it was not to be paid if the strike failed, and that it did fail; (2) That the plaintiff, as treasurer, could not maintain the action ; (3) That Local Assembly No. 4119 has been dissolved by a decree of the General Assembly of the Knights of Labor of America, and all of the property of the former had become vested in the latter.

The defendants testified that the money was advanced to promote a strike, upon the agreement that it was not to be paid in case the strike failed, and that it did fail. This was denied by the plaintiff’s treasurer, who made the loan, and this issue of fact was determined by the referee in favor of the plaintiff.

The referee found that Local Assembly No. 4119 was, when the note was given, and when the action was brought and tried, an unincorporated association consisting of seven or more persons ; and if these facts were well found the action was properly brought in the name of the treasurer. Code Civ. Pro., § 1919.

It is conceded that when the note was given and when this action was tried an unincorporated, voluntary association with more than seven members existed at Amsterdam, under the name of Local Assembly No. 4119 of the Knights of Labor. While the ■existence of the association is not denied, it is urged as a defense that the associated persons had ceased to be a local assembly of the Knights of Labor by reason of a decree of the General Assembly of the order of Knights of Labor of America, which assumed to annul the charter of Local Assembly No. 4119, and directed that all of its property should be turned over to the secretary of the General Assembly.

There exists in America a voluntary, unincorporated association of persons known as knights of labor, having a written constitution, §§ 1 and 2 of art. 1 of which provide:

See. 1. This body shall be known as the General Assembly of the Knights of Labor of America, and shall be composed of representatives or alternates, selected according to Art 2 of this constitution.

Sec. 2. This General Assembly has full and final jurisdiction ;and is the highest tribunal of the order of the Knights of Labor. It alone possesses the power and authority to make, amend or repeal the fundamental and general laws and regulations of the order; to finally decide all controversies arising in the order ; to issue all charters to the state, district and local assemblies.” * * How the “ representatives or alternates ” composing the General Assembly are selected does not appear, as the second article of the constitution is not given. The constitution also provides : “ A District Assembly shall be composed of duly ■accredited delegates from at least five Local Assemblies,” but how they are selected is not disclosed. It does appear that the organizations known as Local Assemblies are the units of the society, and that they are connected in some manner, not shown by the record, with District Assemblies, and that both local and district assemblies are attached and owe allegiance to the General Assembly. It does not appear from the record that any contractual relations exist between the district and local associations; or between them, or either of them, and the General Assembly. The case was defended on the theory that the General Assembly possessed, and •could rightfully exercise, autocratic governmental powers over all subordinate branches of the society; and that it could, by its order, without a hearing, expel from the organization any Local ■or District Assembly, and by that act become entitled to all the property of the assembly whose charter should be revoked.

In August, 1886, more than seven residents of Amsterdam, after having effected a preliminary organization, were chartered under the name of Local Assembly No. 4119 of the Knights of Labor by the General Assembly of Knights of Labor of America and was attached to District Assembly No. 126. The District and Local Assembly continued attached to the General Assembly until May 26, 1887, when the charter of District Assembly No. 126 and the charters of all of the Local Assemblies attached thereto (including 4119) were revoked and annulled for disobedience of the orders of the General Assembly, and the Master Workmen of. the District and Local Assemblies were directed to deliver their property to the General Secretary of the General Assembly, pursuant to § 1 of art. 5 of the constitution of the general assembly, which provides:

“Article 5, § 1. It shall be the duty of the District Becording Secretary to collect and take charge of the charter, seals, books, money and other property of any locals attached to the District. Assembly that may lapse, and shall give receipt to the officer o£ the Local surrendering the same.”

Local Assembly Mo. 4119 declined to surrender its property, including the note in suit, to the General Secretary, but continued its local organization and retained possession of its property in defiance of the order of the General Assembly.

It is asserted that the order of the General Assembly ipsofacto divested the Local Assembly of its title to the note in suit as well as to all other property held by it. This contention cannot be sustained on principle or authority. The precise question was determined in Austin v. Searing, 16 N. Y., 112, which arose over the title of Cayuga Lodge, No. 80, of the Independent Order of Odd Fellows, to certain property in its possession. In that case, as in this, there was a supreme tribunal called the Grand Lodge of the Independent Order of Odd Fellows in the United States of America, and, like the Knights of Labor, it had district organizations. By the constitution of the Odd Fellows the Grand Lodge of the district had power to revoke the charters of all local lodges, and when revoked to take possession of their property.

The charter of Cayuga, lodge Mo. 80 was revoked for an alleged act of insubordination and a decree confiscating its property was promulgated. Mevertheless the members of the lodge refused to surrender their property, but retained possession of it. Afterwards a new lodge was chartered at Auburn by the grand lodge of the United States, and given the same name and number as the old lodge, but composed of different persons from those associated as members of the first lodge. By the charter granted to the new lodge all of the property which the grand lodge claimed to have acquired title to by confiscation was in form transferred to the new lodge. An action was brought by the persons associated and represented by the new lodge against the persons associated and represented by the old lodge for the recovery of the-property in the possession of the old lodge. It was held that the provision in the constitution of the order giving to the grand lodge power to confiscate the property of subordinate lodges could not be enforced by the courts, and that the decree of the grand lodge revoking the charter of the insubordinate local lodge did not divest it of its property, and that the plaintiff could not recover. This judgment has remained unquestioned for more than a third of a century, and is the law of this state to-day.

As before stated, this case was not tried upon the theory that the organizations which constitute the order of Knights of Labor are bound together by any contract, or that local assembly Mo.. 4119 had contracted with the general assembly that under certain circumstances its property should be transferred to and become that of the general assembly; but upon the theory that the general assembly was vested with governmental powers, and could by its edicts divest the title of any district or local assembly to its property and vest it in itself without a hearing. This position cannot be sustained. The property of Local Assembly ISTo. 4119 was not derived from the General Assembly, but was contributed and owned by the associated members of lío. 4119, and held by an absolute title as perfect and unconditional, so far as is shown by the- case, as is the title by which any person or corporation holds its individual property. To hold that the General Assembly can by a decree divest the title to property and vest it in itself is giving to it a power which is forbidden to be exercised by congress, or by the legislature of any state. Bills confiscating the property of citizens, or of associations, without judicial process, are forbidden by the constitution; and no person, corporation or association authorized to acquire and hold property can be divested of it by the fiat of any organization, nor in any way without its consent, or by due process of law.

This case is quite different from those arising over the expulsion of members from clubs and voluntary associations for violations of rules. In those cases the rights of the individual members are fixed by contract, and it is held that a member may be expelled by the association for violating the terms of the compact, provided however that due notice of the proposed action and an opportunity for defense be given.

The judgment should be affirmed, with costs.

All concur.


text:
    The Buffalo Stone & Cement Co., Resp’t, v. The Delaware, Lackawanna & Western R. R. Co., App’lt.

      (Court of Appeals, Second Division,

      Filed December 1, 1891.)

    1. Railroads—Farm crossings.
    It is not necessary, in order that an owner may compel a railroad to huild a crossing under the statute, that the road so divides the tract that the remaining land adjoins on both sides of the strip taken by the railroad. The corporations must conduct and maintain such crossings over their lines as are necessary to enable owners having land abutting on either or both sides of the road to reach and work their properties.
    2. Same—Duties op lessee op railroad.
    Where a lessee of a railroad covenants to perform all things in connection with the road which the lessor might be required by law to perform, it includes the duties imposed by statute as to farm crossings; and the fact that said lessee is a foreign corporation is immaterial.
    3. Same—Evidence.
    .The statute does not limit the rights of adjoining owners to crossings solely for agricultural purposes, but they may be ordered to enable owners to remove the natural products of the land, such as stone and minerals.
    Appeal from a judgment of the general term of the superior ■court of the city of Buffalo, which affirmed a judgment direct" ug the construction of an under farm, crossing, entered on a decision of the court without a jury.
    The plaintiff owns a farm, which, before any part of it was taken by railroads, contained about one hundred acres, and is situated on the east side of Main street in the city of Buffalo, In 1870 the Brie railway constructed a railroad through this farm, so dividing it that there are about fifteen acres between the land of the railroad and Main street, and about eighty-five acres east, of the railroad. The bed of this railroad is raised but slightly above the natural surface of the ground, and to enable the owners of the land to reach and use the eighty-five acres, a grade crossing was constructed where a farm road known as Hewitt street crosses the track. In 1881, the Hew York, Lackawanna & Western Bail-way Company, a corporation organized under the laws of the state of Hew York, laid out and mapped the right of way for a railroad across this farm, parallel to and about seventy feet east of the line of the land of the Brie, and began proceedings to acquire the property by condemnation. While these proceedings were pending, the owners of the farm conveyed to the Erie the-strip of land lying between its right of way and that which the-Hew York,' Lackawanna & Western Bailroad was seeking to-acquire; reserving, however, a way across it in continuation of the way then in use over the railroad. In March, 1882, tho Hew York, Lackawanna & Western Bailway Company acquired by condemnation a strip of land ninety-nine feet wide through this farm, which is bounded on the west by the land of the Brie Bailway and on the east by the land of the plaintiff. Shortly afterwards a railroad was constructed having its bed raised several feet above the natural surface of the ground, and where it crosses the farm road, used in connection with the Brie crossing, the roadway is about thirteen feet above the surface.
    On the second day of October, 1882, the Hew York, Lackawanna & Western Bail way Company leased its line to the Delaware, Lackawanna & Western Bailroad Company for 499 years, since which time the latter corporation has been in possession and engaged in operating the road. The plaintiff demanded that an under crossing be constructed in continuation of the Brie crossing so as to enable it to reach and occupy the land east of the defendant’s line. The defendant refused to construct a crossing at this place, but built an over crossing about 650 feet away from the original crossing and at a point where the grade of the railroad approaches near to the natural surface of the land.
    This action was begun by Mary Shultz, a former owner, to-compel the construction of an under crossing in continuation of the Brie crossing; but afterwards she conveyed the premises to-this plaintiff, and it was substituted in her stead. The special term, before which this action was tried, ordered the construction of an under crossing at the place designated by the plaintiff; which decision was affirmed by the general term, and thereupon, the defendant appealed to this court.

      John G. Milburn, for app’lt; Strong & Brendel, for resp’t.

       Affirming 27 St. Rep., 216.

   Follett, Ch. J.

The learned counsel for the appellant strenuously argued that this action in equity is not, but that a mandamus is the appropriate remedy to compel a railroad corporation to construct a crossing pursuant to the statute. This objection not having been taken by the answer, or on the trial, is not available in this court Town of Mentz v. Cook, 108 N. Y., 504; 13 St. Rep., 845.

For defenses on the merits the defendant insists : (1) That the plaintiff is not an adjoining proprietor; (2) that it being a foreign corporation and lessee of the railroad, it is under no obligation to build a farm crossing; (3) that the crossing ordered by the judgment is not a farm crossing within the statute.

The statute provides: “Every corporation formed under this act shall erect and maintain fences on the sides of their road, of the height and strength of a division fence required by law, with openings or gates or bars therein, and farm crossings of the road for the use of the proprietors of lands adjoining such railroad.” Sec. 44, chap. 140, Laws 1850. It is also provided : “ And when the railroad of any railroad corporation shall be leased to any other railroad company, or to any person or persons, such lessees shall maintain fences on the sides of the road so leased, of the height and strength of a division fence, as required by law, with openings, or gates or bars therein, at the farm crossings of such railroad, for the use of the proprietors of the lands adjoining such railroads.” Sec. 2, chap. 582, Laws 1864.

The land of this plaintiff adjoins on the east the land whereon the road is built, and without a crossing it is impossible to reach the plaintiff’s land from the street for any purpose. The defendant’s contention seems to be that an owner has no right to a crossing unless the road so divides the tract that the remaining land adjoins on both sides of the strip taken for the railroad. This was not the intention of the statute. Take the case of a farm abutting on a public highway, as this one did, and the corporation, instead of acquiring its right of way some little distance from the street, takes one alongside of the highway, so that one of the exterior lines of the land taken coincides with one of the boundary lines of the farm. In such a case the land is not divided, but the land not taken is as effectually cut off as though land remained on both sides of the road. Again, which is this case, two parallel and contiguous railroads are built at different times through a farm. The owner has a right to a crossing over the first road which is constructed, but when the second railroad is built it is argued that the owner has no right to compel that corporation to construct a crossing. The statute is not capable of any such narrow construction, its design being to compel such corporations to construct and maintain such crossings over their lines as are necessary to enable owners having land abutting on either, or both sides of the road, to reach and work their properties.

By chapter 244 of the Laws of 1855 this defendant is authorized, in the prosecution of its business, to make contracts with any corporation in this state, and to sue and be sued in its courts. Under that statute the defendant leased from the New York, Lackawanna & Western Railway Company, for 499 years, its entire property then owned, or thereafter to be acquired, with all the franchises, immunities, rights, powers and privileges, which had been then granted, or which should be thereafter granted to the lessor. The lease, among other provisions, contains the following : “ And the said party of the second part (defendant) shall, during the continuation of this indenture, use and operate the said railroad and do and perform all acts and things which the party of the first part, as owner of the property and franchises, hereby demised, would be bound by law to do and perform had this indenture not been made.”

It is true that the section above quoted from the act of 1864, which imposes certain duties upon lessees of railroads, does not, in express terms, require them to build and maintain farm crossings. But they are, however, expressly required to build and maintain division fences, with openings having gates or bars therein at farm crossings. In Jones v. Seligman, 81 N. Y., 190, a railroad corporation mortgaged its property to trustees to secure the payment of an issue of bonds, and thereafter defaulted in the payment of the interest. Under a power in the mortgage the trustees entered into possession, completed and operated the road for the benefit of the bondholders. An action was brought to compel the trustees to build fences and farm crossings, which was defended on the ground that no corporations or persons could be compelled to perform either of these statutory duties except those mentioned in the statutes. It was held that the trustees being in possession, with power to make reparations and additions, that they had the right, and it was their duty to construct fences and necessary farm crossings; that being in possession of the property and engaged in operating it, that they must carry out the provisions of the statutes as the representatives of the corporation. In this case, the defendant, by a covenant in the lease above quoted, expressly agrees to perform all things in connection with the road which the lessor might be required by law to perform. This provision plainly includes the duties imposed by statute on the lessor and brings the case within the principle of Jones v. Seligman. The position that the defendant is not liable because it is not a corporation of this state, or organized under chap. 140, Laws 1850, is not tenable. It having the right to operate its leased lines under the statutes of this state, it must be held to have assumed to discharge the same duties to the public and adjoining owners as are imposed upon such corporations organized and existing under our own statutes.

Before the defendant’s road was built quarries had been opened on the farm from which stone used in building and for cement were taken and sold, and when the road was constructed the land was used for agricultural purposes and portions of it for quarries. The defendant insists that it was error to receive evidence of the extent of the use or of the value of the property for quarries, or to order a crossing constructed for any uses except agricultural ones. The statute does not limit the right of adjoining owners to crossings solely for agricultural purposes, but they may be ordered to enable owners to remove the natural products of the land, like stone and minerals.

The evidence is sufficient to sustain the finding that a suitable crossing for the use of this property had not been built, and the questions where one should be constructed, its dimensions and whether over or under the tracks, were questions of fact for the trial court, and there being evidence to sustain the finding that the crossing should be located at Hewitt street and built in the manner described in the judgment, the discretion of the trial court, which seems from the evidence to have been fairly exercised, cannot be overruled by the court of appeals.

The judgment should be affirmed, with costs.

All concur, except Haight, J., absent.


text:
    William B. Hayden et al., App'lts, v. The National Bank of the State of New York, Resp’t.

      (Court of Appeals, Second Division,

      Filed December 1, 1891.)

    1. Attachment—Lett.
    The sheriff having an attachment in favor of the plaintiff against L. & L., delivered to defendant’s cashier a copy thereof, with notice that he attached all property of L and money belonging to the defendants which the bank had or was indebted for to L. The bank was not indebted to L. ,but to L.& Bro. Held, that the notice not showing that it was intended to attach the indebtedness to L. & Bro., the plaintiffs did not acquire a lien thereon by virtue of the attachment, and the fact that the bank officers by reading the warrant of attachment with the notice might have been informed as to plaintiffs’ claim was immaterial.
    2. Same.
    The holder of attached propertymust derive his knowledge of the object in serving him from the notice, and knowledge or information received from other sources is of no importance.
    (Potteb, J., dissents.)
    Appeal from a judgment of the general term of the first judicial department, affirming a judgment entered upon a dismissal of the complaint at the circuit.
    The plaintiffs, Hayden and Allen, were creditors of the firm of G\ H. Loker & Brothers, residents of and doing business at St. Louis, Mo., and on the 9th day of October, 1878, commenced an action against said firm and obtained therein an attachment against their property, which attachment was, on the following day, delivered to the plaintiff, Reilly, then the sheriff of the city of Hew York. The christian names of the members of said firm were unknown to the plaintiffs, and in the summons and writ of attachment they were described as Gr. H. Loker and-r Loker.
    The writ of attachment was in the usual form, and commanded the sheriff to attach so much of the property which the said Gr. H. Loker and-Laker had within his county as would satisfy the plaintiffs’ demand.
    The said firm had an account with defendant under the name of Gr. H. Loker & Bro., and on the 10th day of October the sheriff attempted to serve said attachment upon the defendant by delivering to its cashier a certified copy of the warrant upon which was endorsed a notice to the effect that by it the sheriff was commanded to attach all the property of the defendant, G. H. Loker, within his county, and that having been informed that the said bank had in its possession certain moneys belonging to said defendant, and was indebted to him, he particularly attached and required to be delivered and paid over to him the said money and any property of said defendant in possession or under control of said bank. Having read over the attachment and notice, the cashier informed the sheriff that they had no account against G. H. Loker and blank Loker, but that they had an account against G. H. Loker & Bro., and that they would send a certificate to the sheriff that afternoon. At that time the bank was indebted to G. H. Loker & Bro. in a sum upwards of $2,000, and this amount was subsequently applied by the bank to the payment of a note upon which said Loker & Bro. were liable, and which matured on October 12.
    This action was brought to recover the amount of the bank’s indebtedness to Loker & Bro.
    After proof of the foregoing facts the trial court dismissed the complaint, and the judgment entered upon such dismissal having been affirmed at the general term the plaintiffs appealed to this court.

      Geo. A. Strong, for app’lts ; Joseph Larocque, for resp’t

       Affirming 27 St. Rep., 82.

   Brown, J.

The right of the plaintiffs to recover in this action depended upon the question whether the proceedings taken by them against the firm of G. H. Loker & Bro. were effectual to attach the funds of that firm on deposit with the defendant When the defendants in an action are non-residents of the state, as in the present case, they may have no actual notice of an attachment proceeding, and their property is taken without an opportunity for them to be heard. Under such circumstances it would seem that there could be no question but that the attaching creditor should substantially comply with, the statute regulating such proceedings. It can be of no consequence what knowledge the holder of the attached property may have as to the particular property intended to be attached unless such knowledge is derived from the notice required by the statute to be served upon him, and unless there is a substantial compliance with the statute title to the property is not divested, and the holder thereof remains liable to the owner.

The Code provides in § 649, subd. 3, that property not capable of manual delivery may be attached by leaving with the person holding the same, or if it consists of a demand other than a bond, promissory note or other instrument for the payment of money, with the person against whom it exists, a. certified copy of the warrant of attachment and a notice showing the property attached.

The sheriff in this case left with the bank a certified copy of the warrant and a notice specifying that the property attached was money or other property in possession of the hank belonging to the defendant, GL H. Loker.

This notice was plainly insufficient to attach money due Gr. H. Loker & Brother and could not be made the foundation for a proceeding to divest the title of the firm to any funds on deposit with the bank. And had the bank paid over to the sheriff under that notice the amount of the firm’s deposit, it could not be held thereby to have discharged its indebtedness, but would still have remained liable therefor to the firm. The claim that the notice was effectual to attach the interest of Gr. H. Loker in the deposit cannot prevail, as it did not specify such an interest, and the complaint did not seek to recover upon such ground.

The plaintiffs ask a reversal on the ground that the warrant and notice were to be read together, and that so taken they informed the bank that the plaintiffs’ claim was against the firm and hence it must be held that they knew that it was the firm property that it was intended to attach. We may assume such to be the fact. But the statute requires the service of both the. warrant and the notice, and it is to the latter that the holder of the property must look to ascertain what property is attached, and upon that paper he must base his action. If the proceedings are regular and the court has jurisdiction to grant the warrant, he may discharge his indebtedness to his creditor by paying over or delivering the property specified in the notice to the officer executing the writ in the attachment suit, but if he pays or delivers property not specified in the notice, then the proceedings afford him no protection, and his indebtedness to his creditor is not discharged.

In view of the plain provision of the Code, the cases relating to the sufficiency of a notice to charge an endorser of a promissory note are not applicable here.

The holder of the attached property must derive his knowledge of the object in serving him from the notice, and knowledge or information received from other sources is of no importance.

This view has some support in the case of Greentree v. Rosenstock, 61 N. Y., 583. That case involved the question whether a notice served on the defendant to the effect that all credits of Strauss, Hartman & Hofflin, in defendant’s possession, were attached, and under which the defendant paid to the sheriff money in his hands belonging to Hofflin individually, was sufficient to discharge his indebtedness to Hofflin. The commission of appeals held that it was not.

The appellant criticizes that case on tfie ground that it conflicts with O'Brien v. Mech. & Traders' Ins. Co., 56 N. Y., 52. To the extent of holding that a notice to be good must specify the particular property intended to be attached and that a notice in general terms was insufficient the case is subject to the criticism made against it and the court apparently overlooked the case in 56 Hew York Reports, but not so in reference to the point now under discussion. In addition to what was said on the subject of notice couched in general terms, the court said: The sheriff referred to the subject of the attachment as though it were the property of the firm of which Hoffiin was a member, instead of the property of Hoffiin himself. * * * The notice was plainly insufficient and the defendant was under no obligation to give heed to it.”

Here the sheriff referred to the subject of the attachment as the individual property of Gr. H. Loker and not to the property of the firm. He might have made his notice in general terms so as to include the property of the firm and of either member thereof, but having limited it to the property of one member it was insufficient to reach the deposit due to the firm, and the defendant was justified in giving no attention to it.

The judgment must be affirmed, with costs.

All concur, except Potter, J., dissenting, and Haight, J., absent.


author: Potter, J.

text:
    James P. Kernochan, Individually and as Ex’r and Trustee, et al., Resp’ts, v. The New York Elevated R. R. Co. et al., App’lts.

      (Court of Appeals, Second Division,

      Filed December 1, 1891.)

    1. Railroad—Elevated—Evidence op rental value—Expert.
    In an action against an elevated railroad, a witness was asked to give the rental value, with and without the railroad, in the years 1883 to 1884, 1885 to 1886,1886 to 1887, and from that year to the year 1888. This was objected to as incompetent, irrelevant and immaterial, and not within the issues in the action and not a proper method of proof. The witness was allowed to answer. Held, error; as his answer could not be that of an expert, who must have some knowledge of the effects from similar causes, and must have been wholly speculative or without the knowledge essential to constitute an expert.
    2. Same.
    The witness said: “I form my opinion that the fee value of that property to-day is $47,000, if there were no railroad there, by taking the way that other property in other streets has advanced without the elevated railroad.” Held, that this showed this evidence to be improper and incompetent within the rule laid down in Roberts v. The New York El. R. R. Co., 40 St. Rep., 454.
    Appeal by the defendants from a judgment of the general term of the superior court of the city of New York, affirming a judgment for the plaintiff, entered upon a decision after a trial of the issues at special term.
    The action was commenced April 3, 1888, and was tried June 28, 1889.
    The premises in question is No. 160 Pearl street in the city of New York, consisting of a lot and brick building, in front of which defendants constructed and operated an elevated railroad.
    The complaint contains the usual allegations which characterize the numerous cases of this class of actions against defendants, and asks for judgment for the depreciation of the rental and fee values of the premises and for an injunction as incidental to the latter from the 7th day of November, 1886, since which time plaintiffs have owned and possessed said premises to the time of the trial of this action, in consequence of the maintenance and operation of the railroad by defendants.
    The plaintiffs were awarded judgments accordingly.
    G. Willett Van Nest, for resp’ts; Davies & Rapallo, with J. C. Thomson, for app’lts.

       Reversing 29 St. Rep., 523.

   Potter, J.

It will not be necessary to consider all the questions sought to be raised upon this appeal, for we think a new trial must be ordered for the errors to be found in the record in relation to the evidence of value received by the learned trial court.

The question was, what was the rental value with and without the railroad in the years 1883 to 1884, 1885 to 1886, 1886 to 1887, and from that year to the year 1888. This was objected to upon the ground that it was incompetent, irrelevant and immaterial, and not within the issues in this action, and not a proper method of proof.

The objections were overruled, and the witnesses answered the question in both respects. The defendant excepted.

After answering that question, the case discloses that the witness proceeded to testify in relation to the selling value of this property with and without the road. He testified that the selling value of this property in 1879 was $22,000. The selling value of the property to-day (upon the day of the trial I suppose) is $35,000, and that the selling value at the last mentioned time, if thei’e was no railroad there, would be $47,500.

It will be observed that the witness was not in terms asked what in his opinion was the rental value with and without the railroad, and it does not appear from the record whether the witness was asked any question in respect to the selling value of the property with or without the railroad, nor that there was any distinct renewal of the former objections made to this kind of evidence. All the testimony seems from the record to have been given by the witness in response to the question put to him as to the rental value, and that question was not in terms to obtain the opinion of the witness as to such value. But it is quite apparent that the Court, counsel and witness understood that the question called for the opinion of the witness. This is shown from the nature of one branch of the inquiry, which was as to what would the rental value of the premises have been several years after the railroad was built, if it had not been built. The answer to this question in the condition of the case on trial at which it was asked seems to me to involve far more objectionable evidence than that which may be given by an expert; for, in order to be an expert, the witness must have some knowledge or experience in relation to facts of the same or of a similar nature to those on which the opinion is to be based, and there is no pretence that this railroad has ever been removed, or has ceased to be operated for any length of time since it was constructed, and there is no suggestion that the witness had ever known or heard of a railroad of any kind that had been removed or its operation suspended at any time or at any place.

Hence his answer could not be that of an expert, who must have some knowledge of the effects from similar causes, and must be wholly speculative, or without, the knowledge essential to constitute an expert

The character of two of the objections that were made to the question, viz., that it was “incompetent and not a proper method of proof,” in order to ascertain the damages, plainly indicate that the answer must be to an essential degree the opinion or speculation of the witness.

Moreover, the answer of the witness to a material part of the inquiry conclusively shows that he was giving opinion evidence, "for he says: “Inmy opinion the rental value from May, 1882, to May, 1883, had there been no such elevated railroad in front of the property, would have been over $3,500.

The defendant’s counsel, in addition to the objection made at the outset of the introduction of this species of evidence, made a motion at the close of it to strike it out upon the same grounds that the objections had been made, and specifically that such evidence “ did not bear upon the proper measure of damages.” The court denied the motion, and defendants duly excepted.

Immediately after the denial of the motion to strike out the evidence, the witness distinctly stated: “I form my opinion that the fee value of that property to-day is $47,000, if there were no railroad there, by taking the way that other property in other streets has advanced without the elevated railroad.”

This is abundantly sufficient to bring the evidence of the witness within the rule of condemnation laid down in the recent decision of this court in Roberts v. The N. Y. El. R.R. Co., 40 St. Rep., 454, even if there was any serious doubts whether the evidence given by the witness in respect to the fee or selling value of the property without the railroad was objected to upon the same grounds.

In the Roberts case, supra, the court held these questions, viz.: “ What do you estimate the rental value of the property to be, the railroad not being there?” and “That is, you think that the four houses fronting on Third avenue are worth $30,000 now, and that they would be worth $110,000 if the structure and railroad were not there ” (that is, upon the street in front of the premises), to be improper and incompetent, and ordered the case to be sent back for a new trial by reason of such error. In support of such ruling Judge Peckham delivered a conclusive and exhaustive opinion, in which five of the seven members of the court concurred, and there is no occasion or room for any further discussion or elaboration úpon that point.

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

All concur.


text:
    Peter Lawyer, Resp’t, v. Peter G. Fritcher, App’lt.

      (Court of Appeals, Second Division,

      Filed December 1, 1891.)

    1. Seduction—Damages.
    In an action by a father for the seduction of his daughter the loss of service is the cause of action and when that is established a basis for damages to some extent exists, and whether that loss is caused or attended by or followed by sexual intercourse, defilement or pregnancy, loss of health or disability to serve, or for the purpose or with an intention of obtaining those results through a formal but criminal marriage, has relation more especially to the damages the plaintiff may recover than to his cause of action.
    2. Same.
    "Where the complaint in such an action charged debauchment and ill health as well as the taking of the servant from the master, whether the debauchment is proven or not if the taking away is proven this gives a cause of action and a right to damages, and the jury may impose both punitive and compensatory damages.
    Appeal from the judgment of the general term, third department, affirming a judgment entered upon the verdict of a jury at circuit.
    Tli is action was brought by plaintiff against defendant to recover damages, as alleged in the complaint, for the abduction of plaintiff’s infant daughter from the service of the plaintiff, her father, and also for seduction while she was absent from her father’s house. It appears that the defendant, who is a man sixty years of age and has a wife from whom he is not legally divorced, and who is living absent from him, on the 6th of May, 1886, came to the plaintiff’s house and had an interview with the plaintiff as well as his daughter. On the 16th day of May following he again came to the plaintiff’s house and had an interview with him and plaintiff’s wife upon the subject of marrying Edith, plaintiff’s daughter. During the interview with the plaintiff upon the latter day upon the subject of the marriage of defendant to plaintiff’s daughter there was a conversation between them in regard to his legal right to contract marriage and whether the conditions of separation from defendant and his wife were such as to allow of a valid marriage between defendant and plaintiff’s daughter. The defendant represented that he had a legal right to marry and the defendant drew a consent or contract to carry out such design and induced the plaintiff and his wife to sign it. The consent or contract was in these words:
    “ To Home it May Concern:

    “We the undersigned are the father and mother of the bearer, Edith Lawyer.
    “ Whereas, Edith and P. J. Fritcher, of Sharon, wish to be united, we give our consent to their contracts.
    “ Richmondville, May 16,1886.
    “Peter Lawyer,
    “ Catherine Lawyer.”
    Said Catherine Lawyer was not able to write her name and Edith was requested to sign her name for her and did so. After these representations were made and this instrument signed the defendant carried Edith to Portlandville, in Otsego county, a distance of about thirty miles from her home and residence of plaintiff ; stayed at a public house at that place and said to the lady who kept the house that he was married; occupied the same bed with Edith on the night of the 17th. The next day the defendant carried Edith to Sharon, Schoharie county, where the defendant resided, and stated to his housekeeper, who was a sister of Edith, that she was his wife. On the night of the 18th of May the defendant and Edith occupied the same room and the same bed. After Edith arrived there, and during the 18th and 19th days of May, there was a conversation between Edith and Julia, her sister, defendant’s housekeeper, in which Julia told Edith that the defendant could not marry; that he had a wife living and was not divorced from her.
    Edith, the plaintiff’s daughter, was about seventeen years of age, generally lived in her father’s family and performed service for him, though she did work out occasionally, but her father had received her wages.
    Among the declarations made at the interview of the 16th, between plaintiff and defendant, the plaintiff testifies that the defendant said: “I am just as clear from my wife as though I never had married her.” The plaintiff also testified that he believed such statement to be true. This statement and belief preceded signing the paper above set forth.
    On the 17th or 18th day of May, and after defendant had arrived at his home and made the statements above to Julia, she procured from a drug store in the vicinity of the defendant’s residence some poison. Edith partook of that poison and died of it on the 20th day of May.
    The principal question involved in this case is whether the plaintiff proved a loss of service and damage in consequence thereof sufficient to maintain the action. The trial judge charged the jury that the plaintiff was not entitled to recover damages for any loss of service by reason of the taking of the poison and the death of Edith in consequence. Nevertheless, the jury, under the charge of the court, found a verdict in favor of the plaintiff of $800, besides costs.
    The general term was not unanimous in affirming the judgment on the verdict of the jury. One of the learned judges of the general term, as shown by his dissenting opinion, uses the following language, which indicates the view taken by him, and the grounds, for his dissent from the affirmance of the judgment: “ The defendant, a married man, over sixty years of age, took plaintiff’s daughter Edith, about seventeen years old, from her father’s house, on Monday, May 17. He did this with the consent of the parents. But the verdict of the jury establishes that he obtained this consent by fraud. That night he stayed with her at a hotel, and occupied the same bed with her, -saying to the landlady that Edi.th was his wife. * * * The next day after dinner Edith became sick. She had taken poison. The day following, Thursday, the 20th, she died from the effects of the poison. Before death she told her sister that she took poison because she did not want to live and that she did not want to see anybody. There was evidence that Edith had recovered from her usual monthly courses a week before she went away with the defendant, and that before her death her underclothes were spotted with blood, which a physician supposed to be the menstrual flow. The important point in this case is, whether on these facts the court could properly submit to the jury the question whether the plaintiff sustained damage, other than that of death, for loss of service by reason of the seduction. It will be seen that there is no evidence of seduction before Monday night; no evidence of Edith’s condition from Monday night till "Wednesday noon, when she took the poison, and of course no evidence of pregnancy.”

      F. R. Gilbert, for app’lt; Wm. C. Lamont, for resp’tl

       Affirming 28 St. Rep., 221.

   Potter, J.

I should not feel justified in departing from my rule in this court, not to write an opinion upon the affirmance of a judgment in a common and ordinary case, except to reconcile differences of opinions by the judges of the court below and to remove any resort to strained or doubtful reasoning to sustain the judgment appealed from by a brief presentation of a feature of the case that was not distinctly brought out in that court.

This action was brought to recover damages which the plaintiff alleged he has sustained by the unwarranted interference of the defendant with plaintiff’s right to service. It is well settled that .he who unlawfully interferes with another's right to service, whether it be the service of a male or .female, a minor or an adult, is liable for actual or compensatory damages in the same manner and .upon the same grounds that he would be liable for an unlawful interference with any other property right of another.

The plaintiff alleges that he is the father of Edith Lawyer ; that at the time of the acts of the defendant complained of by the plaintiff she was seventeen years of age and was residing with the plaintiff, and that he was entitled to her services, and that without the consent of the plaintiff, the defendant on or about the 16th day of May, 1886, enticed and persuaded the said Edith Lawyer to leave the residence and service of the plaintiff and to accompany him (the defendant) to Portlandville in the county of Otsego,«etc.”

The plaintiff also alleges that on the 17th day of May, 1886, the defendant debauched the said Edith, etc.

The evidence in this case establishes beyond question that on and previous to the 16th day of May, 1886, Edith was the servant of plaintiff both in law and fact. It follows from that relation that plaintiff was-entitled to command and to have her services wholly and without interruption, save such time as was necessary for her rest, health and preservation, until the plaintiff should give a valid consent to dispense with the service or the law should terminate the relation.

The defendant came to plaintiff’s house, where she was, in fact, performing, and was in law bound to perform, services for the plaintiff, and took her from and deprived the plaintiff of such service.

If this was done; as plaintiff alleges, without his consent, the defendant is liable to make plaintiff compensation for the loss of service. IE the plaintiff’s consent was obtained by defendant through fraud, it was void, for fraud vitiates all contracts and al consents. Consent, or no consent, was one of the issues to be tried by the jury, and the jury has found, upon competent evidence for that purpose, that any consent given by plaintiff was given through fraud, and so was no consent. With this finding by the jury the court cannot interfere. Edith was taken away from the plaintiff by the defendant and remained with him at a hotel and on the way to defendant’s home, and at his home for the space of four days, and the plaintiff was, in the meantime, deprived of her services, and his right to them was unlawfully interfered with.

The gravamen of the action and of all actions of this nature is the loss of service, and both pleadings and the proofs in this case make out a cause of action in entire harmony with the fullest-requirements of such actions and entirely dispenses with any necessity or occasion to resort to fiction, as is said to be done in some instances to maintain the recovery of damages in these cases.

In the aspect we have been considering this case, it presents an actual and measurable pecuniary damage to the plaintiff. The loss of service constitutes the cause of action, and it can make no difference as to the right of action whether that has been accomplished by an unlawful persuasion of the servant to leave the master’s employment or through fraud- upon the master or force upon the servant, or by both such fraud and force.

The loss of service is the cause of action, and when that is-established a basis for damages, to some extent, exists, and whether that loss is caused or attended by or followed by sexual intercourse, defilement or pregnancy, loss of health or disability to serve, or for the purpose or with an intention of obtaining those results through a formal but criminal marriage, has relation more especially to the damages the plaintiff may recover than to his cause of action.

It is true the complaint charged debauchment and ill health as a consequence, as well as the taking of the servant from the master. Whether the debauchment was proven or not, the taking away by the defendant was proven without any contradiction, and this gave plaintiff a cause of action and a right to damages. In such cases the jury have the right to impose punitive damages in their discretion, in addition to compensatory damages.

I think these views are abundantly supported by numerous-decided cases, to a few of which I make reference and extracts. Judge Andrews, in People v. De Leon, 109 N. Y., 229 ; 14 St. Rep., 847, says: “ In Regina v. Hopkins, Car. & M., 254, the case of an indictment for the abduction of an unmarried girl under sixteen years of age ' against the will ’ of her father, it appearing that the consent of the parents was induced by fraud, the indictment was sustained, and Gurney, B., said (in that case), ‘ I mention these cases to show that the law has long considered fraud and violence to be the same.’ ”

In Lipe v. Eisenlord, 32 N. Y., 233, (which was an action by the father to recover damages for the seduction of his daughter, who was twenty-nine years of age, but living in her father’s family) this language is used: “ And any illegal act by which the right of the father, such as it was, to her services was interfered with to his detriment, was a legal wrong, for which the law affords redress.”' On page 236 of the same case the judge uses this language: “ Finally, it is urged by defendant’s counsel that only compensatory damages should have been allowed. The judge refused so to direct the jury, and I think he was right. The object of the action in theory is to recover compensation for the loss of the services of the person seduced. This is so far adhered to that there must be a loss of that kind or the action will fail; but when that point is established the rule of damages is a departure from the system upon which the action is allowed. The loss of service is often merely nominal, though the damages which are recovered are very large. It is too late to complain of this as a departure from principle, for it has been the law of this state and of the English courts for a great many years.”

The same judge, further on in the opinion, uses this language: The true rule (this being an action brought by plaintiff for the seduction of his daughter), I think, is that the plaintiff’s right to-the services may be made out in either way, and that when established so that the action is technically maintainable, the court and jury are to "consider whether the plaintiff, on the record, is so connected with the party seduced as to be capable pf receiving injury through her dishonor. A mere master having no capacity to be injured beyond the pecuniary worth of the services lost should undoubtedly be limited in his recovery to the value of these services. But the case of this plaintiff as has been mentioned is quite different”

In Hewitt v. Prime, 21 Wend., 79, 81, 82, Judge Nelson, in delivering the opinion of the court in an action like the one under consideration, uses this language: “ It is now fully settled, both in England and here (citing several authorities in both countries), that acts of service by the daughter are not necessary; it is enough if the parent has a right to command them to sustain the action. * * * The ground of the action has often been considered technical, and the loss of service spoken of as a fiction, even before-the courts ventured to place the action upon the mere right to claim the services ; they frequently admitted the most trifling and valueless acts as sufficient.”

Further on in the opinion the judge uses this language: “ The-action then being fully sustained, in my judgment, by proof of the act of seduction in the particular case, all the complicated circumstances that followed come in by way of aggravating the damages.”

In White v. Nellis, 31 N. Y., 405, 407, 409 (which was an action for debauching plaintiff's minor daughter and communicating to her a venereal disease by which she was made sick and unable to labor), the judge uses the following language: “ Whenever the wrongful act, by immediate and direct consequence, deprives the-master of the service of his servant, or injuriously affects Ins' legal right to such service, the law gives a remedy.” “ It is not sufficient to sustain the action to prove the seduction merely. That is the wrongful act from which it must appear that a direct injury to the relative rights of the master has followed.

“ The right of the master, as recognized by the law, is to have •the services of the servant undisturbed by the wrongful act of another. * * * In cases of debauchery, the ordinary consequences that affect the master are the pregnancy and lying in of the servant during which she is unable to render him service. Hence the' precedents of pleadings in this form of action have perhaps invariably alleged a loss of service through those consequences. But it by no means follows that there is no remedy where the loss of service is the direct effect of the wrongful act, although produced by some other consequence. All that the law can require is damnum et injuria; for these constitute, when directly connected, the proper and complete elements of an action on the case. And whenever they combine as an immediate cause and effect, the law cannot deny a remedy without a departure from principle.”

“ It is maintainable because a wrongful act has caused a direct injury to a lawful right. In such case the right of the master to a remedy for an injury to his enjoyment of the services of his servant is equally clear,, whether it be produced by beating and wounding the servant, or enticing him from employment, or forcibly abducting him, or wrongfully debauching and impregnating with child, or with disease. Nor in my judgment does the remedy depend upon the sex of the servant. * * * We have now to determine the abstract right to maintain any action at all; and that is something quite independent of the question what damages may be recovered if the action be allowed.”

In the case of Ingerson v. Miller, 47 Barb., 47-50, the general term use this language: “ It is no objection to the maintenance of the action that no expense or actual loss of-service is proved. It is sufficient that the father was at the time entitled to the services of the daughter, and might have required them had he chosen to do so.” “ The master has a property in the labor of his servant, -and any wrongful act creating or producing a disability in the •servant to perform what the master has a right to require operates as a disturbance or infringement of such right, to which the law will attach at least nominal damages as a result of the injury.” ■“ But proof of the slightest loss of service, or the most trifling injury, if the direct result of the wrongful act, is sufficient to uphold the action.”

In Badgley v. Decker, 44 Barb., 588, the opinion of the court at general term holds this language: “ There was evidence in this case sufficient to go to the jury upon the question of the relation of master and servant existing between the plaintiff and her ■daughter. The slightest degree of service has been holden sufficient to maintain the action, and to allow a recovery for the heaviest damages;' * * * but to accommodate the action to cases 'where the daughter rendered no service, a presumed or a fictitious service is resorted to as th gravamen”

The judgment should be affirmed, with costs.

All concur, except Parker, J., not sitting.