text:
    John Claflin et al., v. James A. Flack, Sheriff.

      (New York Common Pleas, General Term,

      Filed April 6, 1891.)

    Appeal—Leave to go to court of appeals.
    Where an appeal from the city court of New York to the common pleas involves no new question of law, and the decision of the latter court is only an application of well settled principles, leave to appeal to the court of appeals should not be granted..
    Motion for an allowance of an appeal to the court of appeals.

      David Tim, for the motion; David Leventritt, contra.
   Per Curiam.

Assuming that, although the remittitur has been filed in the court below and our judgment made a judgment of that court, we still have jurisdiction of the motion, we are of opinion, nevertheless, that it should not be granted.

The case involved no new question of law, and our decision was only an application of well settled principles.

The authority, Macullar v. McKinley, 99 N. Y., 353, so strenuously urged by the appellant, was critically examined by us, and was found essentially distinguishable from the case at bar. Our decision in no way impugns the principle enunciated by the court of appeals.

Although we adverted to the omission from the case of a statement that it contained all the evidence, and suggested the effect of such omission, the remark was obiter, and we proceeded to consider and determine the appeal upon the evidence as presented in the record before us. Ex industria we avoided to found our decision on the technical defect.

The other considerations pressed upon us are overborne by the equal hardships to the respondent, and by the public interest in. the end of the litigation.

Motion denied, with costs.

Daly, Oh. J., Bischoff and Pryor, JJ., concur.


source: Caselaw Access Project

author: Pryor, J.

license: Public Domain

text:
    Frederick S. Denton, Resp’t, v. J. Frederick Kernochan, App’lt.

      (New York Common Pleas, General Term,

      Filed April 6, 1891.)

    Negligence—Liability of tenant of building for overflow of water.
    Certain goods on the upper floors of a building were sold to defendant, who eng..ged a man to look after them and agreed to pay the rent, but it did not appear that he or his agent were ever on the premises. A faucet appurtenant thereto was left open, and thereby plaintiff’s apartments were flooded. Held, that as there were other occupants of the building, and it was not shown that they did not have access to the faucet, defendant could not be held responsible for the injury.
    Appeal from a judgment of the district court for the third judicial district; trial by the court. Action for damage to plaintiff’s goods by an overflow of water. The wrong imputed to defendant is that he “ negligently, carelessly and heedlessly opened and left open a certain faucet appurtenant to his premises, whereby the water flowed through the same into the apartments of the plaintiff,” and occasioned the injury complained of. One Donnell, tenant of the fourth and fifth stories of the building, sold defendant a lot of merchandise there deposited, and defendant agreed to pay the rent until he could dispose of the merchandise. He engaged a man to look after the merchandise, but it does not appear that either defendant or his agent was ever actually on the premises. Several other persons were occupants of the building, and, for anything shown to the contrary, any one of them might have opened the faucet

      Leonard Baker, for resp’t; Mitchell & Erlanger, for app’lt.
   Pryor, J.

Assuming what, however, is questionable upon the facts, that defendant was technically tenant and occupant of premises, we are, nevertheless, of the opinion that the evidence is insufficient to fix him with liability for plaintiff’s injury.

By the form of the complaint, and it could not be otherwise, negligence is the gist of the action ; and to recover it is incumbent on the plaintiff to show that the negligence of the defendant was the occasion of his injury. The judgments of courts are founded upon proofs, not upon surmise or conjecture; and to •overcome the legal presumption that every man fulfills his obligations, evidence must be produced of the fact of a breach of duty. True it is that one must so use his own as not to injure another; but still it remains to be shown that it was his act that caused the injury.

In the case before us no evidence whatever was given as to how the faucet came to be open, or by whom it was opened, or how long it had been opened; all that appears being that a policeman found the water running and the sink overflowed. If the defendant were the only occupant of the rooms, or if he alone had access to the faucet, then possibly a presumption might arise that it was by his act the water was set running. But as other ¡persons occupied the building, and as it is not apparent that they did not have access to the faucet, there is no warrant in the evidence to impute to defendant responsibility for the accident.

In Donnelly v. Jenkins, 9 Daly, 41, the several occupants of a house were sought to be held liable for an injury from a fall through an elevator hatchway; but a verdict for the plaintiff was set aside at general term, the court saying (p. 44) “ if either of these defendants used the elevator exclusively, then if the door was left open, one might legitimately infer that it was left open by such defendant; but in the absence of all proof upon the subject, how can we say that this or that defendant was guilty of the negligence ? There was, therefore, no evidence showing the defendants guilty of the negligence, and the judgment must be reversed.” Sufficiently in point is Moore v. Goedel, 34 N. Y., 527, an action for damages from an overflow of premises occasioned by leaving the faucet open, where it is said : “ The premises being occupied in common, no presumption arises that the overflow was occasioned by the neglect of the defendants.” See Robbins v. Mount, 4 Robt., 553 ; Clarke v. Anderson, 2 City Ct., 115; Ross v. Fedden, L. R., 7 Q. B., 661; Harris v. Perry, 23 Hun, 244; 89 N. Y., 308.

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

Bischoff, J., concurs.


author: Dwight, P. J.

text:
    Allen W. Sellick, Resp’t, v. J. Langdon & Co., App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 16, 1891.)

    1. Negligence.
    The defendants were coal merchants and had a high trestle upon which cars ran and from which wagons helow were loaded by a chute. At about the height of the track the defendants had constructed a walk in order to pass along from car to car. This walk was laid on stringers, which were met by braces running up from the sill to the stringer at an angle of about forty-five degrees. The walk was properly constructed and in good condition. A driver of a coal wagon coming to load, struck one of the braces with his wagon or wheel, knocked it loose and when plaintiff passed along the elevated walk some time later the walk tipped and plaintiff fell. Held, that he was entitled to recover.
    2. Same—Damages—When not excessive.
    Plaintiff fractured both bones of the lower leg, was confined to his bed six months and the injured leg was shorter than before by two inches; the ankle joint was permanently crippled. Held, that a recovery of $6,500 was not excessive.

      Appeal from a judgment in favor of the plaintiff entered on the verdict of the jury at the Erie circuit, and from an order denying the defendant’s motion for a new trial, made on the minutes of the court.

      Spencer Clinton, for app’lt; T. C. Becker, for resp’t.
   Dwight, P. J.

The action was for a personal injury sustained by the plaintiff in the course of his employment by the defendant, and chargeable, as alleged, to the negligence of the latter.

The defendant was a corporation dealing in coal, and having a coal yard with trestles at the city of Buffalo. One of its trestles was employed for loading wagons with coal for delivery to its customers in the city. The plaintiff was a laborer in the defendant’s employ, and was engaged, at the time of the accident, in shoveling coal from cars standing on the trestles into wagons beneath. The trestle was composed of bents of heavy square timbers, each bent comprising a sill, four posts, two upright and two inclined, and a cap, framed together.

The caps supported a superstructure of stringers, ties and rails composing the track on which the cars stood when being unloaded. In order to afford a means of reaching the cars and of passing from one to another, an elevated board foot way was constructed on one side of the trestle at the level of the top of the caps, which were suported by projecting brackets, each consisting of a horizontal arm and abrace, both of plank, attached to the timbers of the bent by nails, the brace extending from the sill, at an angle of forty-five degrees to the end of the horizontal arm. There were two such brackets attached, on opposite sides, to each bent of the trestle, separated by the thickness of the timbers, and the planks of the foot-way made joints between the two.

On the ground at the foot of the trestle was a plank roadway for the wagons which came to be loaded with coal, and a movable chute, resting partly on the footway, carried the coal over the latter structure and into the wagons. Shortly before the accident the driver of one of these wagons, in placing his wagon under the car which was to be unloaded, had struck the brace of one of the brackets with his wheel or a corner of his box, and forced it loose from the timbers of the bent; and the plaintiff, when he had occasion to descend from the car stepped upon planks which were thus deprived of their support at one end, and was precipitated to the ground and the injury resulted of which the plaintiff complains.

The duty of the defendant to use reasonable care to make and keep the foot-way safe for the use of the plaintiff in the discharge of the duties of his employment is conceded. It is also conceded, on the part of the plaintiff, and the court so instructed the jury, that the evidence failed to show any defect in the structure, either in respect to the strength of the materials or the mode of construction, which rendered it unsafe for the use of the plaintiff, so long as it 'remained exempt from external violence. And the contention of the plaintiff is narrowed to the proposition that the defendant was chargeable with negligence in so constructing the supports of the foot-way that they were liable to be destroyed by means which were to have been reasonably anticipated under the circumstances of the case. In other words, that reasonable care for the safety of the structure in question demanded a consideration not merely of the particular use to which it was to be put, but also of the particular dangers to which it was to be exposed. The principle is sound. It was substantially recognized by this court in its decision of the former appeal in this action, same title, 55 Hun, 19 ; 28 N. Y. State Rep., 326; and it formed the sole basis of the submission of the case to the jury on the trial now under review. The jury was instructed that “ if it was fairly and reasonably to be expected” that wagons driven upon the plank road-way for' the purpose of taking coal would come in contact with the supports of the foot-way as they were constructed, and so destroy its safety, then such mode of construction was negligence on the part of the defendant, which, so far, would entitle the plaintiff to recover. There cannot well be any question of the correctness of this instruction. The foot-way and its supports constituted a part of the structure designed for the particular purpose of loading wagons with coal. The system, contemplated the driving of wagons upon the plank-roadway, near enough to the foot of the trestle to receive coal from the chute; and reasonable care for the safety of the men on the foot-way required that its supports should be so constructed as to be reasonably secure from the danger of being struck and thrown down by wagons so employed. Such was the doctrine of the former decision in this case, and the evidence on the last trial was quite as favorable to the plaintiff’s contention in that respect as that given on the former trial.

Counsel for the defendant moved for a nonsuit, at the close of the plaintiff’s evidence, and at the close of the case moved for the direction of a verdict on the ground, among others, that the plaintiff could not recover for any defect of construction in the respect mentioned, “ such defective construction being open to his observation as well as to the defendants; ” and, in support of their exception to the denial of these motions, counsel refer to the case of Williams v. The D., L. & W. R. R. Co., 116 N. Y., 628; 27 N. Y. State Rep., 760, and the cases there cited. Those cases are Appel v. Buff., N. Y. & P. R. R. Co., 111 N. Y., 550; 20 N. Y. State Rep., 90; Gibson v. Erie R. R. Co., 63 N. Y., 449; De Forest v. Jewett, 88 id., 264. They are cited as sustaining the rule “ that a servant who enters upon an employment from its nature hazardous, assumes the usual risks and perils of the service, and of the open, visible structures known -to him or of which he must have known had he exercised ordinary care and observation.” The cases cited do unquestionably sustain the rule quoted, and none of them, we believe, go any farther. All of them, and other like cases, limit the assumption of risk by the servant, outside of the ordinary risks of his employment, to those known to him or of which he must have known had he exercised ordinary care and observation.” There is nothing in the evidence in this case to bring the plaintiff within the rule so defined. He testifies that this “ scaffolding ” in question had only been built, or finished, three or four days before his accident, and it does not appear that he had, during that time, any opportunity to observe its construction underneath the foot-way. There is no rule which imposes upon the servant the duty of an active inspection of the machinery and structures with or upon which he is set at work; he must go where he is sent, and do the work to which he is assigned; and he has a right to assume that reasonable care has been exercised by the master to provide for his safety in so doing, except as to defects and dangers of which he is or must be' presumed to be aware.

The contention that the defendant is not liable for defects of construction which was the work of fellow-servants of the plaintiff, is opposéd to the elementary principles upon which, in such cases, the liability of the master rests. The rule is that the duty of furnishing safe appliances and structures for the work of the servant is-one which is laid upon the master himself, and cannot be delegated by him so as to relieve himself from liability for its neglect.

We find no error in the rulings of the court in the admission and rejection of evidence.

The motion for a new trial presented the question of excessive damages. The plaintiff suffered a fracture of both bones of the lower leg near the ankle. He was confined to his bed six or seven months; did not walk about for nearly a year; the injured leg is two inches shorter than the other; he suffers much pain from rheumatism in that leg, and is permanently crippled in the ankle joint. The recovery of $6,500 was not so clearly excessive as to warrant setting aside the verdict.

The judgment and order appealed from should be affirmed.

Macomber and Corlett, JJ., concuk


author: Corlett, J.

text:
    Ephraim R. M. Rigdon, Resp’t, v . The Allegany Lumber Co., Limited, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 16, 1891.)

    1. Negligence—Master and servant.
    A corporation had arranged, in order to store lumber, a row of. stalls, which abutted upon a platform eight feet high. The bottom of the stalls, was six feet below the platform. The stalls were constructed with uprights two by six resting on the ground, and nailed at the tops, distant from each other three feet. The stalls were three feet wide, twelve feet high, and quite deep. Plaintiff, a workman, was ordered to go down into the bottom of one stall, which was nearly empty, and hand up some lumber. At this moment the stall was crushed in by the weight in the adjoining stalls, which w re full of lumber, and plaintiff was injured. The plaintiff claimed that the stalls when empty, and not ■ supported by the latent pressure of the stalls on either side, were insufficient, and were improperly constructed. Held, that the question was for the jury.
    2. Same—Contributory negligence oe servant.
    No active duty was imposed upon the plaintiff to inspect the piles of lumber or their proper construction in reference to safety; and he had a right to assume that they were properly built and safely secured.

      Appeal from a judgment and order denying a new trial in a cause in Cattaraugus county.

      Cary & Rumsey, for app’lt; J. R. & M. B. Jewell, for resp’t.
   Corlett, J.

The defendant was a corporation operating a saw-mill at Carrolton, Cattaraugus county, IS!". Y., and was doing an extensive business in manufacturing lumber. In October, 1885, the plaintiff commenced working for the defendant in its mill as an ordinary day laborer. When he commenced work the defendant had in use at its mill stalls or compartments erected for the purpose of holding lumber of different sizes. These stalls were placed in a row or range abutting upon a dock which was used for loading lumber and carting it away to be put upon cars. This dock was a high platform built up from the ground and running from the mill a distance of about twenty rods. Its height was six to eight feet. The stalls were side by side and extended about half the length of the dock. They were from two to three feet in width and from twelve to fourteen feet in height from the ground, the bottom of the stalls, being from four to six feet below the dock or platform. All of these stalls or compartments were constructed in this way. Two standards or uprights were placed from two to three feet apart, resting on the ground from four to six feet below the dock; the standards were two by six, and placed flatwise towards the lumber to be put in the stall, which would indicate that the pressure of the lumber, on the standards would be a lateral one. Two standards were also placed at the same distance apart of like dimensions in substantially the same manner.

On the 24th day of October the foreman of the defendant directed the plaintiff to go down from the dock to the bottom ■of one of these stalls, which was empty, except a few loose pieces at the bottom, and take out those pieces and hand them to the foreman on the dock. The plaintiff obeyed these instructions and was engaged as directed when the adjoining stall, which was filled with lumber immediately gave way and came down upon the plaintiff, crushing him beneath its weight, inflicting severe injuries.

It is insisted on the part of the respondent that the supports gave way of their own inherent weakness, and because of their insufficiency and improper construction. So far as the evidence discloses, there was nothing in the weather likely to cause the lumber to fall; there was no tempest or external violence, so far as ap- . pears. When all the stalls were full, each would support the other, and thus prevent the lumber from falling.

The plaintiff’s claim was that these stalls were improperly constructed, and were liable to fall of their own inherent weakness when the adjoining stall was empty.

The appellant claims, and the evidence on its part tended to show, that the stall was properly constructed in the usual manner and of larger timber than stated by the plaintiff’s witnesses.

This action was brought by the plaintiff to recover damages for the injuries so incurred. Issue was joined, and a trial was had in May, 1889, before a justice and jury. The jury found a verdict in the plaintiff’s favor of $4,500. A motion for a new trial on the minutc-s was denied, and the defendant appealed from the judgment and order to this court.

The trial justice charged the jury, among other things, that the plaintiff claimed that the timbers were not of sufficient size to withstand the pressure if one of the stalls was empty; that the plaintiff claimed that the timbers and supports were not of proper dimensions or properly arranged; that their sides were presented to the pressure instead of the edges. The justice called the attention of the jury to the evidence, and charged fully as to the testimony upon each side, and the respects in which the witnesses differed, bearing upon the size of the timbers and their safety; also, in reference to the manner of construction, and all the other questions involved in the case.

At the close of the charge the counsel for the defendant excepted to that portion which he claimed was to the effect that the question was whether the stalls were properly constructed. In reply, the court said that was one of the questions. An exception was also taken to that part of the charge that the plaintiff' had a right to expect that the defendant would furnish safe appliances. The court, in reply, stated that the counsel understood how he had charged on that subject, but said he had further stated that the plaintiff must also have used vigilance.

There were some requests to charge, though the above are all the exceptions to the charge as made.

The first request was to the effect that the mere fact that the lumber fell was not of itself sufficient evidence of negligence. The court so charged. In the second request, the defendant asked the court to charge that the jury must assume, as matter of fact, that Georgia, the foreman, was a competent man. The court refused to so charge, and the defendant excepted.

In the charge as made the trial justice had fully commented upon the'evidence of Georgia, calling the attention of the jury to his evidence, including what he lmd omitted to state, submitting the question of his competency and credibility to the jury. There was no exception to the charge as made in reference to this witness, and it was not error for the court to refuse to charge that the witness was a competent man, especially in view of the fact that, the question had been submitted to the jury in the charge to-which no exception was taken. In another request, the learned counsel for the defendant assumed that the court had charged that the sole question was whether the stalls were properly constructed. The court-replied by saying that that was one of the questions. The defendant’s counsel also asked the court to charge that if the lumber fell in consequence of nailing at the top that the defendant was not liable. The court inquired why. The counsel said that there was no evidence that it was improperly nailed. The justice said that he did not remember that the evidence disclosed how it was nailed. The counsel then assumed that if the falling was caused by the nails giving way at the top of the standards, that the plaintiff could not recover. The court replied that it could not so charge, because it might be that if it gave way at the top, although properly nailed, it might not have fallen if it had been otherwise properly constructed, and of sufficient dimensions. The same request was in substance repeated and disposed of by the court in the same way, to which exception was taken.

It will thus be seen that every material question was fully covered by the charge of the trial court; that no material exceptions were taken to any portion of the charge, and that the various requests to charge were properly refused because the matters involved in them had been previouly charged upon, and that the requests left out some important elements, and were too narrow.

The testimony of witnesses in the employ of the defendant, in the nature of things, including their credibility, presented questions of fact for the jury.

It is a familiar rule that employes have a right to assume that, so far as ordinary diligence can accomplish it, the master will furnish proper structures and appliances to insure the safety of the servant. Kranz v. The L. I. R. R. Co., 123 N. Y., 1; 33 N. Y. State Rep,, 46; McGovern v. C. V. R. R. Co., 123 N. Y., 280 ; 33 N. Y. State Rep., 416; Palmer v. D. & H. C. Co , 120 N. Y., 170 ; 30 N. Y. State Rep., 817 ; Goodrich v. N. Y. C. & H. R. R R. Co., 116 N. Y., 398 ; 26 N. Y. State Rep., 767.

All the cases are to the same effect. Fuller v. Jewett, 80 N. Y., 46; Slater v. Jewett, 85 id., 61-73 ; Manning v. Hogan, 78 id., 615 ; Devlin v. Smith et al., 89 id., 470; Durkin v. Sharp, 88 id., 225 ; Hough v. R. R. Co., 100 U. S., 213 ; Fuchs v. Sweeney Man’fg Co., 34 N. Y. State Rep., 925.

In Mullen, by Guardian v. St. John, 57 N. Y., 567, and Cahalin v. Cochran, 1 N. Y. State Rep., 583, it was held that when a building or tool falls without known cause or external violence, it is some evidence bearing on the question of negligence.

“ There was evidence given upon the trial sufficient to justify an inference of negligence of the defendant." Palmer v. D. & H. C. Co., supra.

The same is true on the question of contributory negligence. Yo active duty was imposed on the plaintiff to inspect the piles of lumber or their proper construction in reference to the question of safety. That duty devolved upon the master. The servant had a right to assume that the piles were properly built and safely secured. He was performing his duty under the directions of the master when the accident occurred.

All the cases show that the questions in the case at bar upon which a recovery depended were properly submitted to the jury. Curtis v. R. & S. R. R. Co., 18 N. Y., 534; Edgerton v. N. Y. & H. R. R. Co., 39 id., 227; Seybolt v. N. Y., L. E. & W. R. R. Co., 95 id., 562; Breen v. N. Y. C. & H R. R. R. Co., 109 id., 297; 14 N. Y. State Rep., 835.

The judgment and order must be affirmed.

Dwight, P. J., and Macomber, J., concur.


text:
    William Savage et al., Resp’ts, v. The City of Buffalo, App’lt.

      (Supreme Court, General Term, Fifth Department,

      Filed April 16, 1891.)

    Municipal corporation—Cannot delegate its powers.
    The charter of the city of Buffalo, chap. 519, Laws, of 1870, vests its legislative power in the common council; it constitutes the assessors a board, of valuation and assessment, and also provides that they shall assess the whole amount ordered to be assessed upon the parcels of lands benefited by an improvement, in pr -portion to the benefit The common council by resolution directed the assessors to make an assessment for a market-place and did not by such resolution determine the particular property which would be benefited nor in what proportion. Feld, that the power thus to determine was in the common council and it could not delegate it to the assessors.
    Appeal by the defendant from an interlocutory judgment based upon the .overruling of its demurrer to the plaintiff’s complaint.

      Philip A. Laing, for app’lt; Stephen Lockwood, for resp’ts.
   Corlett, J.

Section 1 of title III of the charter of. the city of Buffalo provides that, “ The city shall hold its corporate meetings for the exercise and performance of its corporate duties and the management of its property and affairs by means of a common council, composed of the aldermen of the several wards of the city, a majority of whom shall constitute a quorum.” The legislative power of the city is vested in the common council. •

Section 14 of title VIII, is as follows:

“ Upon the confirmation of the report of the commissioners the common council shall ascertain the amount of money required to pay the compensation awarded and the cost of the proceeding ; and shall, when it is not provided in this act that the expenses of the improvement for which such lands were taken shall be assessed upon a certain district, or upon the parcels of land benefited by the improvements, determine whether the whole of such amount, or any part of it, shall be raised by general tax or by local assessment. The amount which is to be raised by general tax shall be included in and raised in the .general tax next thereafter to be levied. The amount which is to be raised by local assessment it shall cause to be assessed upon the real estate benefited."

Section 11, title IX, confers power upon the city to construct, maintain and repair a city hall, markets, public buildings, etc.

Section 39, title II, provides that, “ The assessors shall constitute a board of valuation and assessment; and a majority of them shall constitute a quorum.”

Section 1 of title VIII, confers power upon the city to take lands for public or corporate' purposes.

On the 1st day of October, 1888, the common council passed a resolution of which the following is a copy :

“ That the common council of the city of Buffalo intends to take the land and property necessary for public market purposes, described as follows: All that certain piece or parcel, of land situate in the city of Buffalo, county of Erie and state of New York, bounded and described as follows : Beginning at a point in the easterly line of Michigan street at its intersection with the southerly line of Fulton street, running thence southerly along the easterly line of Michigan street 302 feet, more or less, to the north line of Elk street, thence easterly at right angles along the northerly line of Elk street 127 feet or less to the westerly line of West Market street, thence northerly a!nd at right angles along the westerly line of West Market street • 302 feet, more or less, to the southerly line of Fulton street, thence westerly and at right angles along the southerly line of Fulton street to the westerly line of Michigan street, the place of beginning; and that the city clerk be and - he is -hereby directed to cause this notice of such intention to be duly published.”

On the 20th day of May, 1889, the common council passed the following resolutions:

“ Resolved, That the common council has ascertained and hereby determines the amount of money required to pay the compensation awarded in and the costs and expenses of said proceedings to be the sum of $169,097.50 ; and
Resolved, That it be, and it is hereby determined that one-half of said sum, to wit: $84,548.75, be raised,by general tax; and that one-half of said sum, to wit: $84,548.75, be raised by local assessment; and
“ Resolved, That the board of assessors be and they are hereby directed to assess the said sum of $84,548.75, upon the real estate benefited by such improvement, to wit: The improvement of acquiring.the block of land bounded by Fulton street on the north, West Market street on the east, Elk street on the south, and Michigan street on the west, for public market purposes, to be known as the extension of the Elk street market, in proportion to such benefit”

The common council did not adjudge or determine what particular land would be benefited by the improvement The board of assessors assumed to exercise that power, and so made their assessment

The assessors in determining what property was benefited by the improvement, excluded the Eleventh and Twelfth wards of the city upon the sole ground that the lands included in those wards would be liable at some future time to be assessed for a public market to be located in one or the other of said wards. This action was brought to vacate and set aside that assessment. The complaint alleges the above facts. The defendant demurred to the complaint upon the ground that it failed to state facts constituting a cause of action.

The demurrer was heard at a special term of this court held in July, 1890. The demurrer was overruled, and the interlocutory judgment appealed from was entered.

The learned counsel for the appellant insists that the complaint is defective in not clearly stating the grounds upon which the assessment was void. It is well settled that on demurrer all reasonable intendments will be indulged in, in support of the pleading demurred to. Lorillard v. Clyde, 86 N. Y., 384 ; Marie et al. v. Garrison, 83 id., 14.

The allegations in the complaint were sufficient.

Property assessed for local improvements may be sold if the assessments are not paid, and the owner’s title divested. Strict compliance with the law is therefore required. Stebbins et al. v. Kay et al., 123 N. Y. 31; 33 N. Y. State Rep., 72 ; Merritt et al. v. Village of Portchester, 71 N. Y., 309; Angel v. Town of Hume, 17 Hun, 374.

Where the board or officers materially depart from the authority delegated, they act without jurisdiction. Cagwin v. Town of Hancock, 84 N. Y., 532.

And a right of action is vested in the persons injured. Hassen v. City of Rochester, 65 N. Y., 516.

A ratification of the assessor’s report by the common council did not render it valid. Danks v. Quackenbush, 3 Denio, 594.

The only express power conferred upon assessors is to value and assess property. There is nothing in the charter which confers authority upon them to determine what particular property will be benefited by the improvement. The existence of such power might involve serious consequences. The city of Buffalo, through its council, should determine and specify the property benefited. The board of assessors could then value that property and make the assessment. The mischief of such authority is illustrated in this case, for in addition to omitting wards and parts of wards proximate to the market, the board refused to assess any of the property of the 11th or 12th wards for the reason that those wards might be liable thereafter to be assessed for another public market. In taking property, the common council should not be allowed to relieve itself from responsibility by imposing its duties upon the assessors.

The learned counsel for the city argues with great' earnestness that the board of assessors had power, not only to value the property and make the assessment, but also to determine the lands which would be benefited by the improvement, including the proportions, and cites title VI, §§ 1 to 3, inclusive, in support of this contention.

Section 3 is: “ They shall assess the whole amount ordered to be assessed upon the parcels of land benefited by the work, act or improvement, in proportion to such benefit, except in those cases in which, by this act, the assessment is to be made upon a different principle, and in those cases they shall make the assessment upon the principle prescribed in each case, pursuant to this act.”

It will be observed that this section does not in express words confer power upon the board of assessors to determine the particular property that would be benefited. The section is entirely consistent with the assumption that this power is exclusively vested in the city through its council. The section directs that the assessment shall be made in proportion to the benefits conferred. But it does not state whether the council or board of assessors shall determine what those portions are. In terms it only requires that the assessment shall be made in the manner therein directed; but it fails to prescribe what body shall determine and designate the property. The other two sections have no application.

The resolution of the council was to the effect that the assessors should levy the sum of $84,548.75 upon the real estate benefited by the improvement. It then states the nature of that improvement, but omits to show what property is benefited or the proportions.

While the section last quoted requires the assessment to be made on the parcels of land benefited, it omits to specify those particular parts. It requires no argument to prove, for it is self-evident, that in nearly every case the proportion of benefit will be unequal. One block or part of a block may be benefited five per cent.; another ten; another twenty; and so until par is reached, the adjudication showing the proportion of benefit conferred upon particular parcels of the property. Section 3 does not enact or state what body or tribunal shall decide the proportion of benefit which will result from the improvement. If the body authorized to decide that question shall adjudge that different portions were benefited a certain percentage, in unequal degrees, then the propriety of section 3 would at once appear.

The meaning of the provision: “They shall assess the whole amount ordered to be assessed upon the parcels of land benefited by the work, act or improvement, in proportion to such benefit is not obscure. Abundant caution induced the legislature to compel the assessors to adjudge valuations and impose assessments upon such adjudications. That is, a certain percentage would be imposed upon one piece of property, and so through the list. The assessors, therefore, are commanded to make their assessment upon that basis. If the city is required to make the determination, then its attorney would represent it in protecting the municipality, including its property owners and the -citizens affected. Appropriate ordinances would be adopted defining the mode of procedure, and the persons affected would have full opportunity to be heard through counsel or otherwise.

Then when an adjudication was made showing the parcels to be benefited and the proportions, the result would be put upon record, and parties deeming themselves aggrieved could resort to legal methods of redress. If errors were committed to the prejudice of the city or of the citizens, relief might be obtained. If, on the other hand, the power rests in the assessors, they have practically arbitrary authority. The dignity of real estate and the caution which must be exercised in transferring title from the owner to another has its root, in the very nature of things, in the origin of the law and the rights of man, and extends back beyond “ the time whereof the memory of man runneth not to the contrary. ”

Assessors are not elected on account of their judicial ability or aptness in the construction of statutes. They are chosen on account of their supposed general knowledge of the value of property. When a tax is general, embracing all the property in the corporation, their duties are very simple. They determine the value and assess on that basis. If injustice is then inflicted, or errors are committed, provisions are made for redress. But if those officers can determine the proportions of benefit without any prescribed methods of procedure or relief, the power vested in them would be absolute and extreme to the last degree. They would have more authority than any tribunal in the state or union.

It was never the intent of the legislature to confer any such power. It has not been conferred in express terms and cannot be implied. If it has been exercised and acquiesced in, the safety of citizens requires that the question of power should be determined. A rule should be adopted which will alike protect the city and prevent confiscation. In case of omission to pay assessments, the property can be sold and title vested in a stranger.

Where lands are needed for railway or city purposes, the court appoints commissioners. The city is heard through its attorney, and the land owners have full opportunity to employ counsel ancl be heard, and after full consideration the court is applied to to confirm the report of the commissioners, and the various parties in interest have their day in court, including the right to appeal. But in the case of assessors, if the power claimed exists, all these safeguards are eliminated.

It is no answer to say that great labor would be imposed upon the city. When the rights of property are in question, no duty should be omitted on account of the labor involved. Aside from this, it is entirely clear that it would be quite as easy for the city to perform this duty as the assessors.

As matter of logical necessity, without regard to previous practices or acquiescence, it must be adjudged that the assessors had no power or authority to determine the relative benefits which will be conferred by the act or improvement. Ellwood v. City of Rochester, 122 N. Y., 229 ; 33 N. Y. State Rep., 260, (reported in supreme court, 43 Hun, 102 ; 6 N. Y. State Rep., 132) sustains the above reasoning.

Section 170 of Chapter 14 of the session laws of 1880, containing the revised charter of the city of Rochester, is as follows:

“ Whenever, by order of the common council, any new street or alley shall be laid out, opened or worked in said city, or any other public improvement is to be made, it shall be the duty of the common council to determine what portion, if any, of the expense thereof ought to be paid from the public treasury, and what portion, if any, ought to be paid by a local assessment, and to direct that the whole expense to be paid by a local assessment be assessed upon all the lots and parcels of lands to be benefited thereby in proportion to the benefit which each will derive therefrom. The common council may maintain, improve, embellish and protect any public park, square or area in said city, and 'grade,sewer and pave the streets and alleys, and make, grade and improve side-walks about the same, or any part thereof. And they may cause the whole expense thereof to be assessed upon all the lots and parcels of land where the parks, squares or areas are situated, in proportion to the benefit which each lot or parcel will derive therefrom.”

Section 172 provides: “Before the common council shall determine to make any such public improvement, they shall cause an estimate thereof to be made, and shall, by an entry in their minutes, describe the portion and part of the city which they deem proper to be assessed for the expense of such improvement.”

It was there held, among other things, that the commissioners of assessment were bound by the portions designated by the common council, and had no power to make new subdivisions for assessment purposes. It will be observed that the clause in § 170 is similar to § 3 of the charter of the city of Buffalo, above quoted. And the language of the ordinance of the common council in this case was a direction to the commissioners of assessment , to make it upon all the lands and parcels of land and houses therein determined by the ordinance to be benefited “ in proportion as nearly as may be to the advantage which each shall be deemed to acquire by the making of said improvement. ”

•The commissioners divided the designated territory into two districts, one of which they decided would receive more benefit than the other. The court held that the assessors had no such power, which proves that § 3 of the charter of Buffalo fails in terms to confer power upon the assessors to determine the portions benefited. It is true that the charter of the city of Rochester differs from that of the city of Buffalo in expressly conferring power upon the council to make the determination. But in the absence of an express provision whether the assessors or the city through its council shall determine, it is plain that the power is vested in the city.

The argument of the learned counsel for the appellant in the case at bar is that the language of § 3 confers power. The case cited proves the reverse. Even if the language of the charter of the city of Buffalo was equally consistent with the exercise of that power by the council or the assessors, still it is obvious that it must be vested in one or the other, and no construction should be adopted which would relieve the city from making the determination in the absence of a statute expressly conferring the power upon the assessors.

But if the assessors had the power they failed to exercise it, either according to the sections of the charter above referred to or the resolution of the common council. The Eleventh and Twelfth Wards were excluded, not because they would not be benefited, it was obvious they would be, and the assessors so assumed; but they were left out for the simple reason that they might be assessed for á future market. Neither the charter or resolution of the common council conferred any power except to assess the lands benefited in proportion to the benefit conferred. If, therefore, the power was properly delegated to the assessors, they failed to exercise it in the manner prescribed. The power as given excluded by necessary implication any authority to make it in any other manner. The Ellwood case, above discussed, is decisive upon this proposition.

The interlocutory judgment must be affirmed.

Interlocutory judgment affirmed, with costs, with leave to the defendant to withdraw the demurrer on payment of costs, and to answer within twenty days after service of copy of order entered on this decision.

Dwight, P. J., and Macomber, J., concur.


text:
    Delos I. Johnson, Adm’r, App’lt, v. George W. Johnson et al., Resp’ts.

      (Supreme Court, General Term, Fifth Department,

      Filed April 16, 1891.)

    Evidence—A report of commissioners in another state which had NOT BEEN CONFIRMED NOT EVIDENCE.
    A judge of a probate court of another state appointed by order certain persons commissioners with power to receive, examine and adjust all claims against one J'., deceased, and they were therein directed to make a report of their proceedings to the court. Nothing appeared to show that any decree or order was made or any action taken by the court upon their report subsequently filed. Feld, that a copy of such a paper, . duly attested, was not, within | 952, Code Civ. Pro., " a copy of a record or other judicial proceeding of a comt" of another state, and was no evidence of J.’s indebtedness in support of an action to set aside a conveyance by him as in fraud of creditors.
    Appeal by the plaintiff from a judgment entered upon the report of a referee for costs.

      George L. Kingston, for app’lt; Orra L. C. Hughes, for resp’ts.
   Corlett, J.

In November, 1888, the plaintiff brought an action to set aside a deed of twenty acres of land in the town of Alden, Brie county, N. Y.,. upon the ground that it was fraudulent as against creditors. Issue was joined, the action was referred, and the referee reported in favor of the defendants, dismissing the complaint. Judgment was entered upon the report, and the plaintiff appealed to this court.

Before 1884, John Johnson, a farmer, the deceased, lived in Alden, Erie county, N. Y. At the request of his children he moved to Bast Thetford, Genesee county, Michigan, where his four sons and one daughter lived. He died there intestate, on the 1st day of October, 1887, leaving him surviving the above children. At the time of his death he was not possessed of any estate except a small amount of personal property.

The evidence tended to show that the deceased in his lifetime was active, industrious and economical. Nothing appears indicating that he had knowledge of any outstanding debts during his lifetime. The evidence tends to show that he never owed debts which he was unable promptly to pay.

Letters of administration were issued to the plaintiff upon the estate of the deceased in Michigan on the 7th day of November, 1887, and in January, 1888, ancilliary letters were issued in Brie county.

On’the 29th day of September, 1887, the deceased in consideration of Jove and affection conveyed the following premises to the defendants: .

“ All of a certain piece or parcel of land, situate and being in the town of Alden, in the county of Brie and state of ¡New York, and described as follows, to wit:
“ Part of lot fifty-two, in township eleven (11), range five (5), bounded as follows: Beginning at a point four chains and ninety-eight links west from a stake in the northeast corner of lot number fifty-one (51), thence westerly on line of said lot number fifty-one, four chains and ninety-eight links; thence northerly at right angles with said last mentioned line, forty chains and nineteen links to a stake; thence east parallel with said southerly bounds, four chains and ninety-eight links; thence southerly on a line parallel with the westerly line of said lot, forty chains and nineteen links to the place of beginning, containing twenty acres of land, be the same more or less.”

On the 7th day of ¡November, 1887, the judge of the probate court of the county of Genesee, in Michigan, made the following warran t or order:

“You are hereby nominated and appointed commissioners with full power and authority to receive, examine and adjust all claims and demands of all persons against the estate of John Johnson, late of said county, deceased, and (being first duly sworn to the faithful discharge of your duties) within sixty days from the date hereof you are to appoint convenient times and places when and where you will meet for the purpose of examining and allowing such claims, and give notice thereof, and of the time hereby allowed for creditors to present their claims, by posting up the same in four public places in said county, to wit: Two in Mount Morris village, and two in city of Flint; and also by publishing such notice four weeks successively in the Flint Globe, a newspaper printed in the county of Genesee. And either of you are .authorized to administer oaths to parties and witnesses, when the same shall be required or proper, before the investigation or trial of questions before you. And six months from the date hereof are allowed by said court to the creditors of said estate to present their claim to you for examination and allowance; at the expiration of which time, or as soon thereafter as you shall be able to complete the hearings of the claims presented, you are to make a" report of your doings to said probate court, embracing lists of the claims presented or exhibited in set-off, and stating how much thereof were allowed and how much disallowed, together with a final balance (which shall include interest to the date of your report)^ whether in favor of such creditor or estate. You are to note in distinct classes the claims allowed by you in pursuance to this warrant, in the following order: 1st. The expense of the last sickness of said deceased. 2d. Debts having a preference by the laws of the United States. 3d. Debts due other creditors. You will particularly state the manner of giving notice to the said claimants, and exhibit a plain and true account of your care and labor in examining the claims aforesaid, that you may be entitled to meet recompense therefor out of said estate. Finally, you are to make due return of this commission, with your doings thereon, in all things required by law.
“ Witness, the said Henry E. Lovell, Judge of probate as aforesaid, under his hand and the seal of said court, at city of Flint, this 7th day of November, in the year of our Lord one thousand eight hundred and eighty-seven.
“ Henry E. Lovell,
“[Seal.] Judge of Probate for said Oounty."
Those commissioners accepted in the following form:
“ State of Michigan, )
Oounty of Genesee, j ss."'
“ On the eleventh day of November, A. D. 1887, there personally appeared George W. Walker, James Van Yleet and John Algoe, the above named commissioners, and made oath that they would faithfully and impartially discharge the trust reposed in them by the foregoing commission as required by law.
“ Before me,
“Jared Yan Yleet, Notary Public."

Afterwards the commissioners made their report without date, which is certified by the probate register on the 21st day of January, 1890. This is followed by another certificate to the effect that the surrogate’s court is one of record.

Nothing appears m the case showing whether any judgment, decree or order was entered upon this report in the surrogate’s court, or what steps were taken in reference to it. No appeal was taken from the report. There was no evidence that the deceased owed any debts except those stated in the commissioners’ report.

The learned counsel for the appellant does not claim that the deed would not have been valid unless executed to defraud creditors. The referee on the trial admitted this report in evidence, but in deciding the case rejected it upon the grounds stated in his twelfth finding of fact:

Twelfth. That there being no order confirming the commissioners’ report as to the alleged claims against the estate of John Johnson, deceased, it is not a final adjudication and binding upon this court as to the facts therein reported, no evidence having been adduced that the same was ever presented to the probate court of Genesee county, Michigan, for confirmation, or for any other purpose whatever.”

The central contention of the learned counsel for the appellant is that the report of the commissioners was competent and conclusive evidence of the facts stated in it. He does not argue that there was any proof that the deceased owed any debts unless it was established by the report.

Section 952 of the Code of Civil Procedure is as follows : “A copy of a record, or other judicial proceeding, of a court of a foreign country, is evidence, when authenticated as follows:” Then comes the attestation.

It will be observed that this section has reference to a record or an adjudication made by a court. It does not include a report made by commissioners appointed by the court, which report by its terms was to be made to the court. If the question of fraud was involved, the fact that a conveyance was voluntary would not, without further proof, establish it. Jackson v. Badger, 109 N. Y., 632; 15 N. Y. State Rep., 92.

Attention has not been called to any statute or decision making the report of commissioners appointed by a surrogate’s court in another state evidence in this state, in the absence of proof showing that a judgment or adj udication by a court of competent jurisdiction was entered upon it. The report of the commissioners on its face fails to show what proof, if any, was offered to establish the debts allowed by the commissioners. It contains no recitals on that subject Where the right of property is involved, it is not seen upon what principle such a report as appears in the case at bar, made in another state, can be treated as evidence upon a controlling question in an action in this state. It certainly is not evidence in the absence of statutory provision. The weight which shall be attached to the records of other states upon trials in a court in this state must depend upon the statutes of Hew York. Great mischief might result by treating the simple report of commissioners appointed by a foreign tribunal as evidence, much less as conclusive evidence, against the estate of a deceased.

The intestate, Johnson, prima facie, had a right to dispose of his property as he saw fit. He did so in a legal manner, except as against creditors, by his conveyance. But before his deed can be overthrown on this ground the existence of a debt must be established. The only ground in the case at bar that he owed any debt was the report of the commissioners. There is an entire failure of proof on the part of the plaintiff to establish this proposition. The action, therefore, cannot be maintained.

The argument of the learned counsel for the appellant that errors were committed in the admission of evidence on the part of the defendants becomes unimportant in the absence of proof showing a right to recover in event

.It follows that the judgment appealed from must be affirmed.

Judgment affirmed, with costs.

Dwight, P. J., and Macomber, J., concur.


text:
    Daniel Engel, Adm’r, App’lt, v. The Eureka Club, Resp’t.

      (Supreme Court, General Term, Fifth Department,

      Filed April 16, 1891.)

    Negligence—Owner of dilapidated building liable for its fall, ALTHOUGH HE HAD CONTRACTED WITH ANOTHER FOR ITS REMOVAL.
    In an action for negligence it appeared that the defendant, an incorporated social club, contracted with a third person to remove an old building and replace it with a npw one. The contractor removed the roof, beams and braces and thus left standing, unsupported, a wail, located wholly on defendant’s land, fourteen feet high and thirty-three feet long. This fell and killed plaintiff’s intestate, who was in the yard of the adjoining premises. The building was old and in a dilapidated condition, and particularly this wall. Held, that it amounted to a private nuisance, and that as the mischief arose not from the-manner of removal, but from the building itself, defendant was liable, and the fact that it had contracted for the removal with another person was no defense.

      Appeal from a judgment in favor of the defendant, entered on the verdict of a jury in a cause tried at the Monroe circuit, andan order denying a motion for a new trial on the minutes.

      Martin W. Cooke, for app’lt; Raines Bros., for resp’t.
   Corlett, J.

The plaintiff’s intestate, who lived in Rochester, was killed by the falling of a wall which belonged to the defendant, on the 16th day of June, 1882. The plaintiff's husband was ' appointed administrator, and brought this action in February, 1884. Issue was joined, the cause was tried at the Monroe October circuit, before a justice and jury. It resulted in a verdict for the defendant. Judgment was entered, and the plaintiff appealed to-this court.

The defendant is a corporation and a social club. At the time of the accident, and for some months before, it was the owner of the premises south of and adjoining those occupied by the intestate. The defendant purchased the property for the purpose of using the- same as a club house after it should be reconstructed. Just before the accident the defendant entered into an agreement with one Wagner, a contractor and builder, for the tearing down of the old building and the erection of a new one on the site. This contract included the removal of the old walls.

The plaintiff and the deceased occupied .the premises adjoining the defendant’s property. The defendant’s wall, on the side next the premises of the intestate, extended east and west along the line of the north side of the defendant’s premises. It was fourteen feet high and thirty feet long. The building occupied by the deceased and the plaintiff was about ten feet from the part of the defendant’s building which fronted the street.

On the day of the accident, the intestate, accompanied by the plaintiff, went out and hung up clothes in their yard, at a place about six feet from the wall. It fell and killed her, and also her child. The deceased was twenty-six years of age.

The contractor, Wagner, had entirely removed the roof which connected the top of the wall with the main building about four-o’clock the day before, and when it fell it stood without any connection with or support from the main building, which was several feet further south. No one was working on the wall at the time of the accident. It was an eight inch wall, made of brick, resting on a stone foundation, which did not come above the surface of the ground. It was necessary to remove the roof before taking-down the wall.

The evidence showed that this wall was very old, and unless kept in position by the roof, unsafe and liable to fall. The contractor had been at work several days on the premises in tearing down and removing the building. The evidence shows that Wagner made no examination of the condition of the wall before removing the roof, rafters and joists which held the same in place. It was not a party wall, but stood on the defendant’s premises. The above facts appeared on the trial.

At the close of the evidence, the trial justice charged, among other things, as follows:

“ There is evidence here, gentlemen, from which you would have a right to draw the conclusion that Mrs. Engel met her death on the day named, the 16th of June, 1882, without fault on her part, by reason of the carelessness of some other person or the omission of some other body of persons to extend towards her, as well as to other neighbors, that care and prudence which every owner of property owes to his neighbor.
“The question to be determined in this trial is: Who is the responsible party? The plaintiff made out a prima facie case when he showed that, without fault on the part of the deceased, this wall tumbled over upon her and crushed her, if he did show that as matter of proof. Showing that fact, there devolves immediately upon the defendant the duty of discharging itself from liability, if it can do so by any evidence. If the defendant, by its officers and agents, had been in possession and occupation of the old Barton premises and had full control of these buildings at that time, and the wall had thus fallen upon the neighboring premises and crushed this woman, that corporation would be liable provided the deceased committed no act of carelessness on her part which contributed to the injury.
“ The defendant, however, seeks to avoid liability here, seeks to discharge itself from the responsibility which the law puts upon it as the owner of the property, by alleging and attempting to prove that at the time of the injury it, as a corporation, had not the custody and control of that property, but that, by a contract had turned the property over to a contractor, Mr. Wagner, who had obligated himself to remove the old building and in its place erect a new one for the benefit and advantage of this corporation.
“If that be true, if the defendant had, prior to this injury, made a contract in good faith with Mr. Wagner by which the officers of the corporation surrendered to Mr. Wagner the exclusive control of that building for the purposes of demolishing it and putting another in its place, and after making the contract did no act and exercised no control over the progress of the work, the corporation is not liable for this injury, however serious in its effects the accident may have been to the plaintiff and to the next of kin of the deceased.”

At another place the learned trial justice charged:

“ If you shall find that Mr. Wagner agreed, either expressly or by necessary implication, to remove the old building, and he took exclusive possession for that purpose, and the officers of the corporation exercised no control over him and attempted none, there can be no recovery by the plaintiff in this action, unless you find another fact in the case which I shall shortly bring to your attention.
“ The defendant, as I have said to you, if you shall find that it made the contract that I have named, would not be liable for any negligence on the part of Mr. Wagner or of his employes in the removal of the structure, during the existence of any such agreement, if Mr. Wagner, by contract clearly defined, took possession of the premises under an obligation to remove the old building and put a new one in its place, and under circumstances that the club had not the right to interfere and control his actions, the club is not responsible for his acts of negligence or those of his employes : * * * I charge you further, gentlemen, that if you find that Wagner was not guilty of negligence in failing to secure this wall so that it would not fall, but that it in fact fell by reason of those defects, and shall say that Wagner did not know of them and could not, by the exercise of reasonable diligence, have found them out, the defendant is liable in this action. * * * I will say to you that in the absence of any contract, that is in the absence of any contract between the club and Wagner such as I have named to you, the owners of the building would be responsible for the falling of the wall without regard to their knowledge of the defects which existed.”

The learned counsel for the plaintiff excepted to that part of the charge which was to the effect that if the defendant had made a contract with Wagner by which defendant surrenders exclusive , control for the purpose of removing the building and erecting another, that the corporation is not liable in this action. Also, to the portion of the charge which was, “ If you find Wagner agreed, express or implied, to take down the building, that there can be no recovery in this case.”

The counsel also requested the court to charge, “If the jury find that the fall of this wall resulted from the performance of whatever Wagner agreed to do, the defendant is liable.” The court refused and an exception was taken.

The counsel also asked the court to charge that, “ If the jury find that the wall fell by reason of defects which existed when Wagner commenced work, the responsibility was on the owner therefor and not on Wagner even if he is found to have contracted as claimed, he having notice of such defects.” The court refused and an exception was taken.

A request was also made to charge that, “ There was no evidence from which the jury can find that Wagner was obligated to shore up the wall in question.” Eefused. Also, •“ If -the jury find that the wall fell from the neglect to shore up the wall in this case, they must find the defendant liable.” Also, “ That in this case, one of these parties, defendant or Wagner, is liable in any event, if it was both Wagner and defendant, jury may find under the evidence that it was the fault of both, and if so plaintiff may recover.” These were refused, and exceptions taken.

There were some other exceptions to the charge and requests to charge, involving substantially the same propositions.

In the case at bar, the defendant’s contract included the taking down of the wall by the contractor, and it must be assumed that it knew the steps which it would be necessary to take to accomplish that result; such as talcing off,the roof, etc., and that the job would be performed in the ordinary way.

The question presented is whether, where the owner of a structure which is so defective that it may fall by removal or tearing down, can relieve himself from liability by making a contract with another to do the work. This question is squarely presented by the charge, exceptions and requests to charge.

It is conceded that there was an existing duty resting upon the owner to prevent injury by the falling of the walls of this building. The learned trial justice so charged.

The question at bar is near the border. The charge of the learned trial justice was correct, in the absence of an existing duty or obligation. If the contract had been to build a wall or erect a building, there being no existing duty or obligation, ordinarily the owner would not be liable for damages resulting from the negligence of the contractor, or his employes. The cases cited on the part of the learned counsel for the defendant all proceed upon that theory. But upon the conceded facts and the charge of the trial justice, the. defendant would be liable except for' the contract. The question is sharply presented whether the owner' of property may make an agreement and thus relieve himself from liability when the execution of the contract involves danger to travelers or adjoining owners.

In Pettengill v. City of Yonkers, 116 N. Y., 558; 27 N. Y. State Rep., 531, it was decided that, “It is the duty of a municipal corporation to keep its streets in a safe condition for public travel, and it is bound to exercise reasonable diligence to accomplish that end.” This is so as well where an obstruction rendering travel unsafe is caused by a third person as where it is the act of the Corporation. Where, therefore, public or private improvements are being made in a city street, causing an obstruction, it is the duty of the city to guard them so as to protect travelers on the street from receiving injuries therefrom. The municipality is not absolved from liability by the fact that the obstruction was caused by a contractor with the city, who, by his contract, is bound to properly guard it or to place warning lights.

All the cases are to the same effect. Brusso v. City of Buffalo, 90 N. Y., 679 ; Storrs v. City of Utica, 17 id., 104; Turner v. City of Newburgh, 109 id., 301; 15 N. Y. State Rep., 93; Nelson v. Village of Canisteo, 100 N. Y., 89; Russell v. Village of Canastota, 98 id., 496; Nims v. Mayor, etc., of Troy, 59 id., 500; Bauer v. City of Rochester, 12 N. Y. Supp., 418; 35 N. Y. State Rep., 959.

In Heeg v. Licht, 80 N. Y., 579-582, it was held that, “The rule is of universal application .that while a man may prosecute such business as he chooses on his own premises, he has no right to erect and maintain a nuisance to the injury of an adjoining proprietor,' even in the pursuit of a lawful trade.”

In Jarvis v. Baxter, 52 Supr. Ct. Rep., 109, it was held that an unsafe building was a private nuisance.

In the case at bar, the wall without supports, in view of its age and mode of construction, would be confessedly unsafe and dangerous to adjoining occupants to such an extent as to amount to a private nuisance. In the condition it was when it fell, it was one. It was not contended on the trial that the contractor was guilty of any negligence in his mode of proceeding to remove the wall. In other words, it was not claimed or shown that any except ordinary methods were resorted to by the contractor in the removal. Under such circumstances, .the defendant would be liable.

The case of McCafferty v. S. D. & P. M. R. R. Co., 61 N. Y., 178-186, recognizes this rule. The judge writing the prevailing opinion quotes with approval the following extract from the opinion in Butler v. Hunter, 7 Hurl. & N., 826. “No doubt when the act is in itself a nuisance, the party who employed another to do it is responsible for all the consequences, for .then the maxim, qui facit per alium facitper se, applies. But when the mischief arises from the act itself, by the improper mode in which it is done, the person who ordered it is not responsible, unless the relation of master and servant exists.”

This question is fully discussed in the dissenting opinion of Commissioner Dwight, pages 185, 186, and there is no difference of opinion between the prevailing and dissenting opinions upon the soundness of the doctrine in the above quotation.

The defendant’s position was that it was the contractor’s duty to ascertain the danger, if possible, and shore up the wall. When, therefore, the owner made a contract which involved the putting of the wall in the shape it was when it fell, he expressly provided for the creation of a private nuisance, and it occupied the same position as if it built the wall and allowed it to stand in the way it was at the time of falling.

If the owner, or anybody else, removed all the braces and fastenings, leaving the wall as it was when it fell, and the owner allowed it to stand in that condition, and it fell and an accident occurred, it would hardly be claimed that the owner was not liable. When it made a contract that the wall might be put in the condition it was when it fell, it is difficult to see how he could protect himself from liability by the claim that the work was performed by a contractor instead of himself.

Applying the doctrine of the above cases to theoneatbar, the defendant would be liable for omitting reasonable diligence in keeping the wall safe after letting the contract. It could not relieve itself from liability by devolving the duty of taking down the wall upon the contractor, when it knew that its removal involved danger to others. It is not claimed in this case that the contractor was guilty of any affirmative act of negligence. The only ground upon which he is charged with negligence is in omitting to ascertain the defects in the wall and protect it while it was being removed. It is not alleged that it was negligence to remove the roof or take away the braces. The ground of the decisions in the street cases, above cited, is that a duty rested upon the city, and that it cannot relieve itself by making a contract. The application of that doctrine to the case at bar would require the exercise of reasonable care on the part of the owner in the talcing down of the wall. This being so, it was not relieved from its exercise, and the care incident to it, by making a contract. This is precisely the position of this defendant. There was resting upon it a duty; repairs and changes were needful; it contracted with another to make them; and when the plaintiff’s intestate was killed by reason of inherent weakness of the wall, it cannot relieve itself from obligation by throwing the whole responsibility upon the contractor, insisting that when it made the contract in good faith it was relieved from all further duty or obligation to travelers or adjoining owners.

In principle, there is no distinction between the case at bar and the city cases. The liability in both rests upon the existence of a duty which neither can relieve itself from by a contract. When one contemplates building a house or erecting some other structure, he ordinarily owes no duty to the public or individuals, except to employ a competent contractor. When, therefore, he lets the job to such contractor he is not ordinarily liable for his negligence, or that' of his employes. Where, on the other hand, like in the case of public streets, an existing building or wall, a duty already exists, the party cannot relieve himself from liability by making a contract. Great mischief would flow from the adoption of such a rule.

There is no contradiction or confusion in the cases when reference is had to proper distinctions. In the case at bar the defendant owned the building and the wall. The learned trial justice states that it owed a duty when the building was up to travelers and adjoining owners; it lets a contract to remove the building and wall for the purpose of erecting a new structure, and then, when the wall falls, seeks to absolve itself from liability by claiming that its contract was a perfect protection. No case has been cited going this length.

The question presented by the facts in the case at bar is novel. Attention has not been called to an exact adjudication upon the precise point, but the rule in analogous cases must control.

It follows that the judgment and order must be reversed, and a new trial granted.

Judgment and order reversed, and new trial granted, with costs to abide event

Dwight, P. J., concurs; Macomber, J., not sitting.


author: Van Brunt, P. J.

text:
    Charles T. Barney et al., Resp’ts, v. John M. King et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed March 13, 1891.)

    1. Pleading—Frivolous answer.
    A pleading cannot t>e declared frivolous where argument is necessary in order to demonstrate its weakness.
    2. Same—Sham.
    No part of a verified answer can be stricken out as sham.
    Appeal from order striking out certain portions of an answer as sham and granting judgment thereon upon the ground that the same is frivolous.

      Henry Wehle, for app’lts; Page & Taft, for resp’ts.
   Van Brunt, P. J.

It is plain from the argument made, in support of the appeal from the order granting motion for judgment upon the ground that the answer was frivolous, that it is not so deemed by the respondents’ counsel. He has presented the case to the general term as though the appeal was from an order sustaining a demurrer to the answer. Thq rule is too well settled to need elaboration here that a pleading cannot be declared frivolous where argument is necessary in order to demonstrate its weakness.

There is another branch of the case, however, which it is necessary to consider, and that is that part of the order appealed from which strikes out certain portions of the answer as sham. It was settled in the case of Wayland v. Tysen, 45 N. Y., 281, that no part of a verified pleading can be stricken out as sham. It was held in that case that under the common law system of pleading an answer pleading a general issue, even although unverified and shown by affidavits to be false, could not be stricken out as sham. And the reason of the rule is stated to be that this was hot upon the ground that a false plea was not sham, but upon the ground that a party making a demand against another through legal proceedings was required to show his right by common law evidence, and that ex parte affidavits were not such evidence. The court further held that under that system' the power of striking out unverified pleas setting up affirmative defenses as sham was exercised when shown by affidavit to. be false, but no verified plea was ever so stricken out. And the claim is considered in the case cited that the rule relating to common law pleading has been changed by the adoption of the Code. But it was there held that it was evident that the legislature in the passage of the section of the Code in question only intended to sanction the existing practice and not to confer any new power upon the court: and the rule is distinctly laid down that the true construction was that the power to strike out pleadings was not extended by the Code beyond that contained in the pre-existing laws. And this was held to extend only to such affirmative defenses as were not verified by the oath of the defendant or other equivalent evidence.

The reason of the rule is very apparent, viz., that it is trying the issues upon affidavits.

In the case of Thomas v. Erie R. Co., 45. N. Y., 468, the rule above stated was held to apply to an answer denying material allegations of the complaint. And that an issue raised by a verified pleading cannot be tried upon affidavits is also held in the case of Rogers v. Vosburgh, 87 N.Y., 228, where the answer alleged in defense toa complaint upon a promissory note an alteration of the date of the note. A motion was made to strike out the answer as sham, which was granted. This was held to be error, and that the alteration alleged was material and the court could not try that issue upon affidavits or by inspection of the note.

In the case at bar there is an attempt to strike out paragraphs of this answer upon the construction of an agreement, which is produced by the plaintiff upon this motion and forms a part of the moving papers. Although the defendant may be mistaken in the construction of this agreement, he is not deprived' of the orderly method of trial of the issues which are concededly raised by his answer. And in determining the question as to whether the answer is sham or not this court cannot go into the interpretation of evidence which may be produced upon a motion of that description. Indeed, many of the allegations which have been stricken out upon this motion raised questions which might be raised under a general issue, and, of course, could not be stricken out.

Upon the whole case it would seem that this was an attempt to try the issues involved upon affidavits which in some respects certainly entirely failed to meet the defendants’ case.

It has been suggested, and the papers upon another appeal which has been submitted would seem to establish the fact, that an amended answer has been served, and consequently there was a waiver of the present appeal. But no motion whatever has been made to dismiss the appeal upon that ground; and we find nothing in the record on the appeal before us tó establish that fact. We do not see how, except upon a motion to dismiss the appeal, any such objection could be taken.

The order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Daniels and O’Brien, JJ., concur.


text:
    Charles T. Barney et al., Resp’ts, v. John M. King et al., App’lts.
    Appeal from order striking out portions of an amended answer as sham, and overruling the balance of the answer as frivolous.

      Henry Wehle, for app’lts; Page & Taft, for resp’ts.
   Van Brunt, P. J.

The opinion which is handed down herewith disposing of the appeal from the order striking out portions of the answer as sham, and overruling the same as frivolous, disposes of this appeal; and the order appealed from should, therefore, be reversed, with ten dollars costs and disbursements of the appeal.

Daniels and O’Brien, JJ., concur.


author: Daniels, J.

text:
    John Hayes, Rec’r, App’lt, v. Mrs. William Beard, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed March 13, 1891.)

    Arrest—Order or, mat be vacated though cause or action and or ARREST ARE IDENTICAL.
    An order of arrest may be vacated where the facts on which it depends are disproved by affidavit, although the cause of action and the cause of arrest are identical.
    Appeal from an order vacating an order of arrest.

      A. B. Moore, for app’lt; J. Noble Hayes, for resp’t.
   Daniels, J.

The defendant has been sued as, and in the affidavits on her part she is statéd to be, a married woman. For that reason, under § 553 of the Code of Civil Procedure, she was liable to be arrested only for a willful injury to person, character or property. And the order recites that it was made on the ground of a malicious injury by the defendant to personal and real property. And that injury was charged in the complaint and the affidavits on which the order of arrest was made.

The defendant was the lessee from Mrs. 0. Vandenburg of Nos. 62 and 64 West Fifty-fifth street, for the term of three years from May 1, 1890. And after the commencement of her term, and while she was in possession under the lease, it is charged that she maliciously tore out and removed from the house No. 62 a valuable refrigerator, which was a fixture therein, and converted it to her own use. Also, that she tore out and removed three stone wash tubs and a furnace heater, and had taken down stone pillars and the chimney breast in the kitchen; that she had removed and carried away the kitchen dresser, cut and defaced the walls, and was about to remove a valuable cooking range.

The defendant, in her affidavit, has sworn that the premises were greatly in need of repairs, and that the articles removed by her were so removed for their improvement, and in no instance taken therefrom. That the chimney was changed, without removing any stone pillars, to put in a large range, in place of one nearly worn out and unfit for use, and that she was not about removing the cooking range. It was also alleged that the alterations were made with the authority of the lessor, and also with that of the plaintiff after he became receiver. These statements, except as to the authority of the lessor, are confirmed and maintained by the affidavit of the manager of the houses, Adeline S. Sanford, who resided there with the defendant. And as to the removal of the refrigerator, wash-tubs, kitchen dresser and furnace heater, by the affidavit of Maria Collin, another resident there, who agrees with the defendant and Sanford in the statement that neither article was taken from the premises. Neither the plaintiff, nor the lessor, has denied the authority stated to have been given to the defendant to make the changes. And that failure to deny, when there was an opportunity to do so, goes very far towards confirming the truth of the affidavits containing these statements, made by the defendant and her house manager, and to prove the fact to be that all the changes complained of were made with the assent of the lessor as to part and the plaintiff as to the residue. The fact is also maintained by the three affidavits, that neither article had been removed or taken away from the premises. And no reason appears for doubting the truth of these affidavits. They consequently disproved the case made by the plaintiff for the order of arrest, and entitled the defendants to the order discharging it.

The plaintiff’s counsel has appealed to old cases, long since abandoned, holding that where the order of arrest has been made upon the cause of action set forth in the complaint, and required to be maintained to support the action, that it would not be vacated on affidavits controverting and disproving the facts on which it depended, made on the part of the defendant. The injustice of subjecting the defendant to arrest and imprisonment for an unfounded cause of that nature has so long since led to the explosion of that idea as to warrant the belief that it must have become, too well known to the intelligent members of the legal profession to permit it to be invoked for the support of this order. The defendant is entitled to be relieved from unwarrantable imprisonment in all cases, and at the earliest opportunity, and the motion provided for that end to discharge an order of arrest has not been subjected to the qualification that it shall not be permitted to prove successful when the cause of action and the cause of arrest shall be identical But the same necessity as well as the same humanity applies to and includes these cases, as well as these where the cause of arrest shall be extraneous to the cause of action. Unlawful imprisonment is condemned alike in all cases, and the court has no arbitrary power to distinguish between them. But in all cases where it appears to be without foundation there the person imprisoned is entitled to relief. Liddell v. Paton, 7 Hun, 195; Sniffen v. Parker, 8 Civ. Pro., 393; Campbell v. Clarke, 16 W. Dig., 508. The defendant was clearly entitled to her discharge, and the order should be affirmed, with ten dollars costs and the disbursements.

Van Brunt, P. J., and Brady, J., concur.


text:
    Christian H. Schultheis, Resp’t, v. Thomas McInerny, App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 13, 1891.)

    Reference—Report must contain all the findings of fact.
    All the findings of fact made by the referee, whether at the request of one side or the other, must be incorporated in his report.
    Appeal from order denying motion to set aside referee’s report.

      Henry Wehle, for app’lt; T. Wandell, for resp’t.
   Van Brunt, P. J.

It is conceded upon the papers submitted upon this appeal that the referee did not include in his report all the facts found by him. This clearly made his report, irregular, because by § 1022 of the Code it is provided that the decision of the court or the report of the referee upon the trial of the whole issue of fact must set out the facts found and the conclusions of law.

This is an express direction that the facts found must be set out in the decision or report, and the reason for this is apparent, because an appeal may be taken and such appeal founded upon errors contained in the report itself, viz.: that the conclusions of law do not follow from the facts found by the referee; and in order that the appellant may bring up this question it is necessary that there should be contained in the report or decision all the facts found.

An inspection of § 1023 reinforces this view, as it is there provided that either party may request findings of fact and the referee is bound to mark on the margin of the papers submitted his rulings upon such requests, which papers may be returned to the parties, and never enter into the judgment roll, and only come before the court as part of the case, if a case is made and annexed to the judgment roll.

Therefore it is apparent from this section also that the facts found by the referee, no matter whether at the request of one side or the other, must be incorporated in his report.

This court has repeatedly refused to entertain appeals where it appeared that this provision of the Code had not been complied with.

We think, therefore, that the case should have been sent back to the referee in order that he might make a report complying with the provisions of the Code, including therein all the facts found by him.

It is true no such relief was asked specifically in the order to show cause; but the order asked for such further or other relief as might be just, and under this provision the court had authority to make the order suggested.

It appearing that the respondents have offered to the appellants to make such an order, the reversal of the order in the court below should be without costs, "and an order should be made sending the case back to the referee in order that he may make a report in which shall be included all the facts found by him.

Bradt and Daniels, JJ., concur.


text:
    In the Matter of the Petition of Courtlandt Palmer to Vacate Assessment.

      (Supreme Court, General Term, First Department,

      Filed March 13, 1891.)

    Abatement and revivor—Laches.
    . A delay of eleven years in making application'for revival of a proceeding is sufficient to render it the duty of the court to refuse to permit the revival as a mere matter of discretion.
    Motion for the reargument of an appeal.

      P. A. Hargous, for motion ; G. L. Sterling, opposed.
   Daniels, J.

The appeal for the rehearing of which this application has been made was decided by this court in March, 1887. Matter of Palmer, 43 Hun, 572; 7 N. Y. State Rep., 267.

An appeal from that decision was taken to the court of appeals, and the appeal dismissed. Matter of Palmer, 115 N. Y., 493; 26 N. Y. State Rep., 338.

And in the opinion leading to that result it has been intimated that this court might in its discretion revive the proceeding in .favor of the executors of this estate, which seems to be slightly in conflict, to say the least,-with what had previously been held upon this matter of practice.

The proceeding which it is the object of the executors to revive was commenced in December, 1873, and the testator paid the assessment in March, 1874, prior to the time when he sold and conveyed the property, probably thereby intending to abandon these proceedings. This probability is confirmed by the fact that no application was made to revive the proceeding until the latter part of December, 1885, the testator himself having died in May, 1874. A. period of more than eleven years, therefore, elapsed after he had paid the assessment before the application to revive in favor of his executors was made. And that delay would be clearly sufficient to render it the duty of the court to refuse to permit the revival as a mere matter of discretion. Lyon v. Park, 111 N. Y., 351; 19 N. Y. State Rep., 626.

It is not excused by reason of the indecision assigned. in support of the application, for it is the general practice of the courts in legal proceedings to require that they shall be expeditiously prosecuted and not permitted to remain dormant, as this proceeding was, for a long period of years.

A reargument of the appeal would, therefore, be of no service to the appellants, and the motion should be denied, with ten dollars costs. •

Van Brunt,- P. J., and Brady, J., concur.


author: Van Brunt, P. J

text:
    The People ex rel. Francis H. McGowan v. Charles F. MacLean et al., Com’rs.

      (Supreme Court, General Term, First Department,

      Filed March 13, 1891.)

    Municipal cobfobations—Police—Removal—Insanity.
    This court will not interfere with the decision of the commissioners removing a policeman on a charge of insubordination, where the defense was insanity, unless such a condition of mind as would render him irresponsible for his acts at the time specified is so conclusively shown that the court would reverse the verdict of a jury to the contrary.
    Certiorari to review the proceedings of the police commissioners dismissing the relator from the police force.

      A. S. Warner, for app’lt; C. F. Collins, for resp’ts.
   Van Brunt, P. J

There is no question but that the proofs establish the fact that the relator was guilty of insubordination and •conduct unbecoming an officer, and the only question presented upon this certiorari is the claim made on behalf of the relator that he was insane at the time of doing the acts.

We have examined the record and we find nothing in the evidence to justify such a conclusion except so far as every man may be insane who loses his temper or does a silly act which results in his injury.

There is nothing in the evidence which justifies the conclusion that the condition of this man’s mind was such as to make him irresponsible for his acts. If, instead of abusing his superior officer, he had assaulted him, and a criminal prosecution had resulted, there is nothing in this evidence which would have justified a jury in finding that he was not responsible for his crime. His nerves may have been unstrung, and he may have been rendered suspicious and petulant because of some supposed conspiracy against him, but these facts did not render him irresponsible for his acts, and unless such a condition of mind is shown, and, upon a proceeding ■such as this, so conclusively shown that the court would reverse the verdict of a jury, this court cannot interfere.

The evidence utterly fails to establish any such condition of mind. In fact, no justification whatever was offered for the conduct of the relator.

The writ should be dismissed, with costs.

Daniels and O’Brien, JJ., concur.


text:
    The People ex rel. Solomon Sayles, App’lt, v. Frank T. Fitzgerald, Register, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed March 13, 1891.)

    Mandamus.
    A mandamus will not be granted to compel the action of a public officer in case of the happening of some future event. So held, on application for mandamus to compel the register of deeds to receive satisfactions of mortgages and to discharge the same, where the mortgages had not yet been paid and the petitioner was not the holder of any satisfaction piece.
    Appeal from order denying motion for mandamus.

    Hess, Townsend & McClelland, for app’lt; J. M. Ward, for resp’t.
   Van Brunt, P. J.

A motion was made for a peremptory mandamus to compel the register to receive certain satisfactions of mortgages.

It appeared from the affidavit upon which the application was founded that the mortgages were held and owned by Amelia Einstein and Jacob Hess as guardians of the persons and estates of Claribel, Arthur and Viola Spiess, who were appointed such guardians by the surrogate of the county of Hew York'; that the relator is about to pay off and discharge such mortgages; and the applicant on behalf of the guardians is ready to deliver satisfactions of the mortgages executed in proper form and duly acknowledged by one of the guardians, to wit, said Jacob Hess.

The affiant further alleges that as appears by affidavit annexed the register will not receive said satisfaction pieces or discharge said mortgages thereon, for the reason that the same are not executed and acknowledged by both said guardians; and that the reasons why said satisfactions of mortgages are not executed by both is that said Amelia Einstein is now abroad temporarily residing in Geneva, Switzerland.

The court denied the motion for a mandamu$x and from the order thereupon entered this appeal is taken.,

It is entirely sufficient for the purpose of disposing of this appeal to call attention to the fact that no practical question is presented.

The mortgages have not been paid off; the relator has not paid the money, has not satisfied the mortgage and is not in condition to demand from the register the satisfaction of the mortgages in question, not being the holder of any satisfaction piece. It would certainly be straining the powers of this court to adjudicate in advance as to what the register should do in case of the happening of some future event. It is sufficient for the court to adjudicate upon actual transactions, and not to act as adviser of public officials as to what their conduct should be in case certain events happened.

The order should be affirmed, with costs.

Brady and Daniels, JJ., concur.


text:
    The Hub Publishing Company, Resp’t, v. Charles A. Richardson, Impl’d, App’lt.

      (Supreme Court, General Term, First Department,

      Filed March 13, 1891.)

    Corporations—Liability op promoters op.
    Promoters of a company are liable for work done or material furnished for such company on their order, in ease such company is never actually incorporated, either on the ground that as agents they were acting without an existing principal or that they had made themselves personally liable.
    Appeal from a judgment recovered upon a verdict, and from an order denying a motion for a new trial.

      Roland Tracy, for app’lt; James Byrne, for resp’t
   Daniels, J.

The action was brought upon an account for making and publishing prospectuses of the Victoria Hansom Cab Company, for envelopes and other things delivered by the plaintiff. It was averred in support of the liability of the defendant that the contract was made by himself and Robinson, who was not served with the summons, for the creation of the indebtedness. This was denied on his part, and the substantial issue presented for trial was the truth of this allegation.

On the part of the plaintiff evidence was given tending to establish the fact that the defendant Richardson, together with Robinson, ordered this work to be done and the other articles to be furnished. And if that was the fact, as the jury must have found it to have been proved, notwithstanding the contradiction by the defendant himself as hi's evidence was given, then the judgment seems to have been right For while the work and material was ordered for the Victoria Hansom Cab Co., that company had not been formed at the time, and never was brought into existence as a corporation. The defendant and Robinson, according to the testimony as the jui-y had the right to act upon it, were engaged as the promoters of this company. And as the company itself never existed as a corporation, they could very well be held liable under the evidence given on the part of the plaintiff for the amount of the bill incurred to it in this manner. Scott v. Ebury, L. R., 2 C. P., 255. And also on the ground that as agents they were acting without an existing principal. Kelner v. Baxter, L. R., 2 C. P., 174.

The jury if they believed the testimony given in support of the claim, as they appear to have done, could very well conclude that the defendant had made himself personally liable for the payment of the demand. For it would then follow that it was created at his instance and request, without the disclosure of any existing principal which he could make liable for the indebtedness. Wilcox Silver, etc., Co. v. Green, 72 N. Y., 17.

The evidence as it was produced presented no more than a question of fact for the jury. And the case was fairly submitted to them, and their verdict against the defendant cannot, under the well settled principles applicable to it, be disturbed by the court. The judgment and order should, therefore, be affirmed, with costs.

Van Brunt, P. J., concurs.