author: Vah Brunt, P. J.

text:
    The National Park Bank, App’lt, v. Warren R. Goddard et al., Def’ts. Henry Winthorp Gray, Rec’r, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed October 20, 1892.)
    Beceiver—Special—Intervention.
    A special receiver, appointed to care for and preserve property pending an action to settle conflicting claims thereto, is a mere stakeholder, and can have no interest in the settlement of the controversy, and should not, be permitted to intervene.
    Appeal from order referring certain questions as to the rights-of the parties to certain property held by the receiver, and allowing the receiver to intervene.

      Otto Horwitz and F. C. Barlow, for app’lt; G. Zabriskie, for resp’t.
   Vah Brunt, P. J.

In May, 1891, the plaintiff, having commenced an action against the firm of Levy Bros & Co., obtained’ an attachment, which was levied upon their property. Thereafter the several defendants herein commenced actions of replevin against the sheriff to recover various parcels of the property so-attached. Subsequently this action was commenced by the plaintiff for the purpose of obtaining an adjudication upon the claims of the various parties in respect to such property, and the respondent herein was appointed receiver of such property pending the determination of the action. In April, 1892, the receiver presented his petition to the court, alleging, among other things, that many persons had applied to him for the delivery to them of goods held by him, and in some instances orders had been mad© by the court referring it to a referee to take proof of the title of the goods, etc.; that three or four claimants of goods had, without notice to him, obtained orders directing him to deliver goods to-them upon payment of all liens and charges for the care and custody and preservation of the property; that some of these orders-directed him to deliver goods which were not and had never been in his possession or under his control, and other goods which had been sold by him pursuant to the order of the court; and the petitioner further alleged that doubts had arisen as to whether the parties who claimed goods in his custody were entitled to delivery of the same merely upon the consent of the parties, without proof of title; and, after making various other allegations, the receiver asked the court for instruction on these points, and also for instructions as to whether independent proceedings of the several defendants to obtain possession of the goods ought to be stayed.

An order to show cause was made, and on the return thereof some of the defendants in the action filed affidavits. Thereupon an order was made providing, in effect, that the several defendants who claimed to be the owners, and entitled to the possession, of the goods in the receiver’s hands should have leave to apply to-,the court for an order adjudging them to be the owners thereof, and that the possession of such goods be delivered to them; and, further, that the receiver and any party to the action might file answers to such petitions, etc.; and a referee was appointed intake proof, and report to the court. From this order the plaintiff' appealed, and objects to that part of the order which authorizes the receiver to intervene. Mo objection having been raised upon this appeal to the order of reference as such, it will not be at all necessary to discuss the same in disposing of this appeal, and wer■will confine ourselves to that part of the order specially objected to.

It seems to us perfectly clear that the receiver has no interest whatever in the settlement of the controversies between the parties to this action in respect to the title to the goods in his possession. He is a mere stakeholder, and can have no interest in .any such controversy. If it is urged as a reason for such intervention that parties have obtained improper orders from the ■courts for the delivery of goods, it is sufficient to say that if, in the making of the orders, the court observes the ordinary and regular course- of procedure, viz., a refusal to act except upon •notice to all the parties who have appeared in the action, no difficulties need arise. This plain rule of practice, however, seems to have been departed from in the order now in question; but as no -objection is raised upon this .point, it is not considered. The -court has no right to- impose upon the fund in question the expenses of the receiver attending upon and taking part in the trial of issues with which he has no concern, and the question as to whether a piece of property in his hands, of which lie.is simply "the stakeholder, belongs to either one of several defendants or to the plaintiff, is a matter in which he has no interest. It is undoubtedly true that the receiver may be interested in seeing that the various claimants of the goods in his possession shall bear their proportion of the expenses of the receivership, including the receiver’s compensation. But, as we read the order, no such -question has been refefired to the referee, nor is the referee authorized to pass upon any such question, and consequently the receiver has no interest before the referee to protect in that respect. We think, therefore, that the order should be modified by striking out that part of the order which authorized the receiver to intervene before the referee, upon the trial by him of the title of the property in the receiver’s hands, and as modified .affirmed, without costs.

O’Brien and Lawrence, JJ., concur.


source: Caselaw Access Project

author: O’Brien, J.

license: Public Domain

text:
    Charles E. Wells, Adm’r, Resp’t, v. Florence Disbrow, Individually and as Adm’rx, et al., App’lts.

      (Supreme Court, General Term, First Department,

      Filed October 20, 1892.)

    4. Executors and administrators—Costs.
    In an action for an accounting and payment of a legacy given to plaintiffs intestate, where the claim was never presented in a verified form with vouchers, and no steps taken to enforce it for six years after the legatee’s death, and the claim is reduced on the hearing from $3,500 to $900, the administrator is not chargeable with costs.
    •2. Same—Disbursements—Employment of agents.
    The employment and payment of agents to collect monthly the rents of an apartment house and see to the payment of taxes, etc., thereon is not wasteful or extravagant, and the amount paid them should be allowed the executor on his accounting
    5. Legacy—Interest.
    Where a legacy is made payable out of “ rents or income ” it does not draw interest until there is rent or income out of which it could be paid.

      Appeal from judgment in favor of plaintiff, entered on tho report of a referee.
    Action for an accounting and for payment of a balance of a legacy claimed to be due to the estate of plaintiff’s intestate.

      Martin J. Keogh, for app’lt, Disbrow; Townsend & Mahan, for app’Its, John A. McLaughlin et al., ex’rs; Arthur T. Hoffman, for resp't.
   O’Brien, J.

The defendants appeal; the appellant Disbrow from the entire judgment, and the appellants McLaughlin and others from so much of the judgment as refused to credit their testator, John Burke, deceased, with commissions paid to the real estate agents for collecting the rents. Mo serious question of fact is presented, and for the purpose of determining the questions raised we may avail ourselves of the statement of facts fully set out in the appellant Disbrow’s brief. The action is in equity for an accounting. Plaintiff seeks to recover certain arrears of a legacy bequeathed to William Florence by the will of Elizabeth Sands, deceased. The legacy is contained in the fourth paragraph of her will, which is as follows : “ Fourth. I direct my said executors to pay over to my brother William Florence, of Mamaroneck, Westchester county, Mew York, out of my rents or income, the sum of fifty dollars ($50) per month during his natural life, and in case his wife survives him and remains a widow, then I direct my said executors to pay over to her the sum of twenty dollars ($20) a month as long as she remains his widow.” The seventh clause of the will provides as follows. “ Seventh. I direct my said executors to pay the interest on bond and mortgage on my property, corner of Tenth street and Avenue C, and also the taxes and assessments, and to keep the said premises in good repair, and the balance of rent and income, from whatever source received, .shall be deposited in the Dry Dock Savings Bank by my said executors, and applied upon the payment of the said bond and mortgage, and after the said bond and mortgage shall have been fully paid and discharged, then all the balance remaining over and .above the expense on my property shall be paid over once in each year to -my niece, the said Florence Disbrow, wife of William H. Disbrow, for her sole use and benefit.” The eighth clause of the will provides as follows: “ Eighth. After the decease of my brother William Florence and his wife, Margaret, I give and bequeath all the rest, residue, and remainder of my estate of every kind soever to my niece Florence Disbrow, wife of William H. Disbrow, for her sole use and benefit forever.” Elizabeth Sands died on the 9th day of March, 1874. William Florence died on the 23d day of October, 1884. William Florence lived, after the death of Elizabeth Sands, ten years, seven months and fourteen days, aggregating 127 months. The only property belonging to Elizabeth Sands at the time of her death from which she derived rent or income was the property known as 162 Avenue C, corner of Tenth street, in the city of Mew York, being the same property referred to in the seventh, paragraph of her will. The net income derived from the real estate of Elizabeth Sands was not sufficient to pay the legacy of William Florence in full as it accrued during his life. The entire amount of net rents which accrued during the life of William Florence was applied by the executors in payment of the legacy of said William Florence. After the death of William Florence the execulor of Elizabeth Sands paid to Margaret Florence her legacy of $20 per month, and $1,192.66 on account of alleged arrears of legacy claimed to be due to William Florence from income which accrued after the death of the legatee. The referee finds that the arrears of legacy remaining unpaid are $910.96, and that the interest thereon is $1,276.40. The defendant, in her answer, denies there is anything due to William Florence, and sets up as a counterclaim and set-off certain arrears of rent due upon a lease executed by William Florence and Margaret Florence and Mary Ann Lawton, and assigned by her to the defendant Florence Dis-brow prior to the commencement of this action. The statute of limitations is also pleaded. The amount remaining unpaid on account of said lease aggregates the sum of $1,039.78 of principal, and interest thereon since October 23, 1883. William Florence left a will by which he directed his executors to pay all his debts. William Florence named his wife as executrix of his said will. She never qualified or took out letters testamentary under "the will, and no letters were issued under said will until the 19th day of February, 1890, when letters were issued to this plaintiff as administrator with the will annexed. This action was begun on the 15th of April, 1890, within two months after the granting of .said letters. Upon these facts several questions were presented to the referee for determination, and, as they are clearly and fully pointed out and covered by his report and opinion, it is unnecessary to again detail them, it being sufficient to state that' the learned referee has, in our opinion, correctly disposed of all questions presented, except three, which may be briefly noticed.

1. As .to allowing costs against appellants. Eespondent’s claim was never presented in a verified form with vouchers attached, and, although the personal representatives, within a reasonable time after October, 1884, when William Florence died, by securing the appointment of an administrator, or by the executrix named in his will qualifying, could have brought an action, they delayed until February, 1890, when the present plaintiff was appointed, and thereafter this suit began. The principal sum demanded in the complaint was $2,568.74, and interest from October 23, 1884. The referee, however, only awarded as principal the sum of $910. Apart from the consideration of appellant’s right to litigate her right to eonnterclaim, or offset the debt due under the lease upon these facts, it is impossible to conclude that the plaintiff’s claim was unreasonably resisted sc; as to entitle him to costs. Disbursements only should, therefore, have been allowed, without costs, and the judgment in this respect should be modified.

2. As to interest. The general rule as to interest upon a legacy is that it runs from the time when due. The legacy here was payable out of the “ rents or income,” and it could not be due and payable until there was income out of which it could be paid. In other words, the property of testator not being sufficient to produce a net income equal to the fifty dollars per month bequeathed, it necessarily resulted that the time when payable was postponed until the source from which it could be paid came into existence. To hold otherwise would be, in effect, to declare that the failure of all of testator’s property to produce a sum equal to the legacy each month created a debt each month against the testator, which the legatee would be entitled immediately to have satisfied out of the personal estate, or enforced against the real property. It would appear from the concession made by appellant that in October, 1884, sufficient income had accumulated in her hands, out of which the claim made by plaintiff, to the extent it was sustained, could be paid. The complaint demanded interest only from October, 1884, and we think, in the absence of any amendment or conformation of pleadings to proof, that plaintiff could get no greater relief than the evidence produced to support the complaint warranted. We do not, therefore, upon the pleadings and the proof, think that the plaintiff was entitled to recover more than the principal sum of §910, found by the referee, and interest thereon from October, 1884.

8. The referee refused to allow the defendants, Burke’s executors, the sum of $477.09, paid by Burke as executor to the real estate agents for collecting the rents of the property. The rate charged by the brokers of five per cent on the amount was not held to be improper; but the learned referee thought that Dr. Burke should have collected the rents personally. He acted as executor of Elizabeth Sands, deceased, from the date of her death,, in 1874, to his own death, in 1886, a period of about twelve years. The property, as shown, consisted of a drug store with apartments above. Out of the rents collected monthly from tenants, the taxes, insurance, repairs, and the incidentals connected with tenement property had to be paid. This is the work attended to mainly by the brokers, for which they were paid the five per cent The total amount of the executor’s commissions as allowed for the twelve years was $275.20. If the referee is correct in not allowing the sum paid the agents, the executor, in addition to services rendered, must lose the difference between the commissions allowed him as executor and the $477.09 paid the agents. We do not think that the employment or payment of the agents was shown to be either wasteful or extravagant, in view of the character of the property, and the amount should be allowed defendants, Burke’s executors. These modifications of the judgment will not necessitate a new trial, but, upon reforming the judgment in these particulars, it should, as so modified, be affirmed, without costs or disbursements to either party upon this appeal.

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


author: Patterson, J.

text:
    Adrian Bonnet, Pl’ff, v. Albert Lachman et al., Def’ts.

      (Supreme Court, General Term, First Department,

      Filed October 20, 1892.)

    'Conversion—Judgment—Want of Jurisdiction.
    In an action for conversion in taking property under an execution against the plaintiff, he introduced in evidence the judgment on which it was. issued, and proved without objection that no process was served on him. Held, that he had a right to show that the judgment was void for want of' jurisdiction, and that it was immaterial by whom the judgment record, was offered in evidence.
    Motion for new trial on exceptions ordered heard at general term in the first instance after dismissal of complaint.

      E. T. Bartlett, for pl’ff; Herman Frank, for def’ts.
   Patterson, J.

On the trial of this cause the complaint was dismissed, and the exceptions were ordered to he heard in the first instance at the general term. Thé action was for the conversion of certain personal property, the complaint containing the proper allegations, but also setting forth that the taking and conversion of the property by the defendants was under an execution issued on a pretended judgment in favor of the defendants and against the plaintiff, but which judgment was absolutely void; and under proceedings taken by a receiver in supplementary proceedings, appointed on the examination of a third party, who. had possession as bailee of part of the converted property, such receiver having been appointed at the instance of the defendants. It was also alleged in the complaint that the plaintiff never was served with a summons in the action in which the pretended judgment was recovered. The defendants’ answer sets up the-judgment, and the taking and disposal of the property under the execution issued thereon and by the receiver are justified as having been done by due and regular process of law. On the trial the plaintiff proved his ownership of the property, and offered in evidence a certain judgment roll filed in the office of the clerk of the city court of New York (being the judgment in question); and the record states that while offering it counsel expressly insisted that it is a void judgment and false affidavit of service, and put in evidence as part of the plaintiff’s case for the purpose of attacking said judgment, and proving it to be void, and attacking said affidavit of service, and proving it to be false. Thereupon, and without objection, it was read. Witnesses were then called and examined, and without objection they testified to facts' tending to show, and which uucontradicted did show, that no. legal service of a summons ever had been made on plaintiff in the action in the city court, the judgment in which was entered by default.

At the close of the plaintiff’s proofs the motion to dismiss was made on three grounds: (1) That no cause of action had been established; (2) that the plaintiff is precluded by the judgment roll which he introduced in evidence, and the same cannot be attacked in the manner in which the plaintiff seeks to attack it-here; and (3) that the proof attacking the service was insufficient, to overcome the evidence of service filed with the judgment roll. The nonsuit was granted on the first and second grounds, the-third being held untenable.

As the case stood, it was fully shown prima facie that the judgment was void. The city court had not obtained jurisdiction over' the person of the defendant in that action.. It was shown affirmatively that no service was made, that proof came into the case without objection, and the validity of the judgment was directly in issue. As this cause was tried, it was immaterial by whom the judgment record was introduced. The undisputed testimony showed it to be a void judgment. It is undoubtedly true-that, as a general principle of law, a j udgment regular in form, and purporting on its face to have been rendered in a court having' jurisdiction of the person of the defendant and of the subject-matter of the action, cannot be attacked collaterally; but it is also true that the want of jurisdiction may always be set up against a. domestic judgment sought to be enforced, or when any benefit is claimed under it, and the bare recital of jurisdictional facts in the record is not conclusive, but may be disproved by extrinsic evidence. Ferguson v. Crawford, 70 N.Y., 253. The question in this case is not one of pleading. Had the plaintiff simply alleged the ordinary facts, declaring in trover, and limited his proof to those facts, his prima facie case would have been made out. The complaint neither lost nor gained anything by setting forth the pretended facts upon which the defendants relied for justification. Their answer sets up the same facts, and they stood upon them,, and thereby claimed the advantage or benefit of that judgment, which in the proofs is shown to have been void. Had the judgment record not been introduced by the plaintiff, but by the defendants, there can be no doubt the former would have been entitled to attack it, and show the facts rendering it a void judgment. With all that testimony before the court, and in the record without objection, it is quite immaterial by whom the record was offered. It was enough that the very judgment relied on by the defendants, and the benefit of which they sought to obtain as a defense to an action for conversion of property, was shown by uncontradicted testimony to be void. We think, therefore, the exceptions should be sustained, and a new trial ordered, with costs to the plaintiff to abide the event.

Van Brunt, P. J., and O’Brien, J., concur.


author: O’Brien, J. Patterson, J.

text:
    Joseph A. Iasigi, App’lt, v. Clara Rosenstein, Resp’t.

      (Supreme Court, General Term, First Department,

      Filed October 20, 1892.)

    1. Contract—Construction—Evidence of custom.
    By a contract for the sale of seed it was to he sent by March steamer shipment from Turkey, and payment was to be made a certain time after delivery on dock in New York, goods to be removed on arrival of steamer, and the steamer’s name was given. In an action for refusal to receive the goods on their arrival upon another steamer, Held, that the contract was not ambiguous, but provided for a direct shipment from Turkey to New York, and that evidence of a custom of the trade to transship such goods in England, and that no vessels came direct from Turkey to New York, was inadmissible to vary the terms of the contract.
    3. Same.
    The fact of transshipment to another vessel than that named in the contract is not unimportant, and plaintiff is not entitled to recover for a rejection of the goods, although the answer does not allege that the change was of any consequence and it is conceded that in other respects the seed tendered complied fully with the description in the contract.

      Appeal from judgment dismissing the complaint.
    Action for breach of contract for the purchase of canary seed to be shipped from Turkey by the steamer Aleppo.

      Frederic R. Coudert and David Keane, for app’lt; H. Aplington, for resp’t.
   O’Brien, J.

No-order having been entered denying a, motion for a new trial, and no request having been made by the plaintiff to go to the jury, no question of fact is presented for review ; and the only exceptions before the court are those taken by plaintiff to the rulings refusing to admit evidence with respect to the custom prevailing in regard to the shipment of goods from Turkey to New York. The parties to this action entered into three contracts of substantially the .same tenor, but of different dates, for the purchase of 1,100 bags of Smyrna ■canary seed, to be shipped in March, 1887, on the steamer Aleppo from Turkey. The ground upon which the seed was rejected, and on which at the trial the complaint was dismissed, was the insistence of defendant that the contracts required a -direct shipment from Turkey to New York on the steamer Aleppo, while the evidence shows that, though the seed was shipped from Bodosto in Turkey on the steamer Aleppo, the latter conveyed the cargo no further than Liverpool, where the seed contracted for was reshipped, and arrived in New York on the steamer Aurania. The question, therefore, is whether a contract such as was here made between the parties, which provided that the seed was “ to arrive, March shipment, per steamer Aleppo from Bodosto,” has been fulfilled by a delivery in the city of New York by the steamer Aurania. It is insisted by appellant that the contracts do not expressly say that the shipment should be to New York on the Aleppo, but merely on the Aleppo from Turkey; that the intention of the parties was that the shipment should be made from Turkey •on the Aleppo, but not that the Aleppo should come to New York, the parties having known that such was not the custom or usage. To establish a custom and usage tending to show that there was no direct steamer coming from Turkey to New York, and that the invariable custom and usage was to transship at Liverpool, the plaintiff offered evidence which, upon objection, was excluded ; and the exception to the exclusion of such evidence presents the questions raised by this appeal.

It must be regarded as settled law that, where contracts are plain, unambiguous, and easily understood, no proof of custom or ■evidence extrinsic of the contracts themselves can be res irted to, it being the duty of the court to give to the language e nployed its ordinary and reasonable meaning Another well-r ^ognized rule of construction is that no evidence of custom o usage is competent to vary or contradict the express terms of a written contract; resort to custom and usage being permissible only where it is necessary to supply an. omission or annex an incident entirely consistent with the written terms of the contract. As ■stated by Starkie on Evidence, 710: “In many instances evidence of custom and usage is admissible for the purpose of annexing'incidents to the terms of a written instrument concerning which the instrument is silent, although if any condition or term in the contract is necessarily repugnant to or inconsistent with the custom, the latter is excluded.” It is true that merchants contract ordinarily with reference to "established customs and usages in their particular business; and where the contract is not in writing, or, if in writing, an ambiguity exists therein, or the contract is silent as to some incident connected therewith, it is competent to have resort to custom or usage for the purpose of showing what the contract made between the parties was. Notwithstanding, however, the existence of customs and usages in a trade or business, it is perfectly competent for the parties to enter into a written contract whose terms are inconsistent with such usages. And when the terms are clear and unambiguous, and, by giving to the language employed its ordinary and well-defined meaning, but one construction is open, it is clear that the terms of the agreement cannot be impaired or destroyed by evidence extrinsic of the contract relating to custom or usage.

We think that the contract here, fairly construed, regard being had to the language used, was one by which the plaintiff contracted to sell the seed to arrive by the steamer Aleppo from Turkey to New York; and that evidence tending to show a custom of the trade, or that vessels never came directly from Turkey to New York, would be permitting the plaintiff to interpolate into the contract terms which would change the construction that the language used would require us to give to it. It is insisted by appellant that 'whether the seed came from Turkey directly by the Aleppo, or was transshipped at Liverpool to another vessel, is unimportant, and should not have attached to it weight sufficient to justify a rejection by defendant of the contract Our attention is called to the fact that the answer does not allege that this circumstance of the change is of any consequence, and that it does not state any facts to show that it was of any importance, pecuniarily or otherwise, to the defendant; it being conceded, moreover, that in all other respects the seed tendered and rejected complied fully with the description contained in the express terms of the contract. We are not at liberty, however, to determine the relative importance of terms in a contract, nor have we the power to reject any provision of a contract which the parties themselves have inserted, and which they may have deemed important; nor in an action such as this was it necessary for the defendant to show in what respect he was injured by such change.

The plaintiff brought this action to recover-damages for a breach of the contract, and before a recovery could be had in such an action it was essential for him to show that he had fully complied with all the terms and conditions of the contract to be performed on his part. The question, however, as to whether the manner of shipment is important has been passed upon adversely to the position assumed by the appellant in m'any cases, and it has been held that the mode of shipment is not an immaterial or unimportant accessory, “affecting only the method of performance,. but is of the substance of the agreement, because identifying its subject-matter.” Bidwell v. Overton, 35 St. Rep., 574. See, also, Benj. Sales, §§ 588, 600; Hill v. Blake, 97 N. Y., 216; Welsh v. Gossler, 89 id., 540. Here the means of identifying the seed the defendant agreed to purchase was the arrival of the Aleppo with such seed on board; and seed, even of the same quantity and quality, brought to Hew York by any other steamer than the Aleppo, would certainly not be the seed the defendant contracted to purchase from the plaintiff, the words as to the mode of shipment being part of the description of the subject-matter. Benj. Sales, § 588, says: “ In sales of goods to arrive it’is quite a usual condition that the vendor shall give notice of the name of the ship on which the goods are expected, as soon as it becomes known to him, and a strict compliance with the promise is a condition precedent to his right to enforce the .contract.”' Certainly the failure to give the name of the vessel in a case where the goods in all other respects answer the description of á contract is no more important than a provision in the contract relating to the mode of shipment. If we were at liberty to determine their relative importance, we should say that more weight was to be attached to the mode of shipment than to the name of the vessel; because, while both were intended for the purpose of identifying the property, the mode of shipment might have, in case of loss, an important bearing upon the question of the insurance upon the cargo, and a change in the mode of shipment might result in a forfeiture of the policy. In this case the name of the vessel having been ascertained to be the Aleppo, and having in the last contract expressly agreed to a shipment from Turkey by - the Aleppo, had the defendant taken out a policy of insurance covering any interest which he might have in the seed to arrive, under the usual terms and conditions of such a policy, unless arrangements with the insurance company were made for transshipment at Liverpool, the policy could not have been enforced if a loss had occurred to the goods during their transit from Liverpool to Hew York. Apart, therefore, from the method of shipment being a necessary part of the description, we have suggested one way in which we think the defendant might have been injuriously affected, and in respect to which the method of shipment would be ' an important term or provision of the contract It is true that under the contract here, providing, “no arrival, no sale,” the defendant might have no insurable interest We are discussing, however, the bearing which the presence of such a condition, in the absence of express stipulations in the contract to the contrary, would have upon the rights of the parties. It is unnecessary, however, to further discuss the question, it being sufficient for this appeal to say that a fair and reasonable construction of the contracts having required a direct shipment from Turkey to Hew York on the Aleppo, it could only be fulfilled by the arrival of such vessel in Hew York. Such construction being clearly and plainly indicated by the language used in the contracts, it was not competent to resort to evidence of custom or usage to vary their terms. We think, therefore, that the learned trial judge properly excluded such evidence of custom, and that, in the absence of such evidence, the plaintiff having failed to show a compliance with the term in regard to the mode of shipment from Turkey to Mew York, the complaint was properly dismissed. The judgment should, therefore, be affirmed, with costs.

Van Brunt, P. J., concurs.

Patterson, J.

I concur, for the reason that the fair construction of the contracts is that the goods were to be sent from Turkey to Mew York by the steamer Aleppo. In the first and second contracts there is a fair implication that the parties contracted for a continuous transit by one vessel. The name of the steamer was to be subsequently reported, and the contracts provided for removal of the goods from the dock on arrival of that steamer. In the third contract the steamer is named, and the same provision for removal of the goods on arrival of the steamer is contained in it. If there were such a usage as the plaintiff claims existed, the terms of the contract seem to imply that the parties specially agreed without reference to it.


author: Pryor, J.

text:
    Gordon Cunard, Resp’t, v. The Manhattan Railway Company et al., Appl’ts.

      (New York Common Pleas, General Term,

      Filed, November 7, 1892.)

    Evidence—Memorandum.
    In an action against an elevated railroad company for an injunction restraining the operation of the road, and for damages to plaintiff's premises, a witness, without any pretense of defective memory, and of his own spontaneous recollection, gave the rentals of plaintiff’s property for certain years, and to corroborate this testimony he was allowed to introduce in evidence a subsequent memorandum of those rentals made by himself. Held, that the memorandum was not legal evidence, and its reception necessitates a reversal of judgment for plaintiff.
    Appeal from judgment in equity, awarding an injunction and damages against defendants.

      John A. Weeks, Jr., for resp’t; Brainard Tolles, for app’lts.
   Pryor, J.

Much evidence was adduced on both sides as to the effect of the railroad on the fee and rental value of plaintiff’s property ; and the ingenuity of counsel presents persuasive arguments in support of their respective contentions. Doubtless the learned trial judge accorded to that evidence and to those arguments the consideration and weight to which they were entitled; and as his conclusion does not impress us as clearly contrary to the preponderenee of proof, we have no alternative but to affirm his findings of fact

But, the learned counsel for appellants impeaches the judgment for errors of law; and whether there be such errors of law as invalidate the judgment is the real question in controversy.

I. Appellants contend that the trial court included in the award of fee damages, “ compensation for future incidental annoyanees from the structure and operation of trains, not -involving-the violation of any easement." But, it is not apparent in the record that the amount adjudged as an alternative of the injunction was affected by any such element of injury. True, the learned trial judge declined to rule that “ the sum fixed, which defendants may pay to obviate the injunction, should not be-greater than the value of so much of the easements of light, air and access appurtenant to plaintiff’s premises as are impaired by defendants’ railroad, exclusive of all other incidental injuries to the fee value of said premises.” But in Bohm v. R. R. Co., 129 N. Y., 576, 585; 42 St. Rep., 247, the court of appeals distinctly declares, that the depreciation of the remaining property caused by the use of the easements taken or impaired must be compensated as part of the consequential damage suffered from the taking. In its obvious sense the proposition submitted to the trial court excludes consideration of such use and allowance for such depreciation, and limits the amount to be awarded for fee damage-to the mere value of the easements taken or impaired; that is,, to a nominal sum. Newman v. R. R. Co., 118 N. Y., 618 ; 30 St. Rep., 36. The proposition as thus phrased by appellants, is not-authorized by the adjudications in American Bank Note Co v. R. R. Co., 129 N. Y., 252 ; 41 St. Rep., 531; and Messenger v. R. R. Co., 129 N. Y., 502; 42 St. Rep., 96.

The refusal, therefore, to affirm the proposition does not warrant the inference that the learned trial court failed to obesrve the-correct rule of compensation in its estimate of fee damage; and the contrary, rather, is apparent on the record. “As it does not appear with any certainty in the record that he took these matters into consideration in assessing the fee damage, we are unable to-perceive that he committed any error in these refusals.” Messenger v. R. R. Co., 129 N. Y., 502, 506; 42 St. Rep., 96.

II. Not so easily obviated is appellants’ allegation of error in the admission of evidence.

The record shows that, during the examination of a witness, a memorandum by him was, without then objection by defendants, “received in evidence and marked Plaintiff’s Exhibit 8.” The-examination of the witness proceeded, and at its close, this colloquy occurred : “ Counsel for defendants: I wish to make an objection to the statement marked Plaintiff’s Exhibit 8, on the-ground that it was not the best evidence. In answer to the court the witness testified : I "prepared this statement from my own recollection entirely, I used no books or papers or memoranda of any kind. I depended entirely upon my own recollection, and from that recollection, only, I prepared this statement. The court overruled the objection, and counsel for defendants duly excepted."

Obviously the court treated the admissibility of the evidence as still an open question, and ruled it as then depending for consideration and decision. The interrogatories addressed to the witness by the court were designed to ascertain the competency of the evidence; and the decision admitting it proceeded upon the answers to those interrogatories, that is to say, upon facts developed by the court after the formal reception of the evidence. By not suggesting the point that the objection came too late because the evidence was already in, plaintiff’s counsel himself treated its-admissibility as still an open question, and assented that the court, might determine it as yet for adjudication. Had the court or counsel intimated that the objection was belated, defendants-might still have availed themselves of a motion to strike out; an expedient of redress from recourse to which they were possibly beguiled by the conduct of both court and counsel in accepting and. deciding the objection as seasonably interposed.

We are clearly of opinion that the competency of the evidence is before us for review. Blum v. R. R. Co., ante, 680.

Without any pretense of defective memory the witness, of his own spontaneous recollection, gave the rentals of plaintiff’s property for the years 1873 and 1877; and to corroborate this testimony he was allowed to introduce in evidence a subsequent memorandum of those rentals made by himself. That this memorandum was not legal evidence is too plain a proposition for argument. Nat. Ulster Co. Bank v. Madden, 114 N. Y., 280; 23 St. Rep., 220.

But, urges respondent, the action is in equity ; and that error in the admission of evidence may be cause of reversal, it must, appear of prejudice to appellants. Such is not the law, Jefferson v. E. R. R. Co., 132 N. Y., 487; 44 St. Rep., 629; Foote v. Beecher, 78 N. Y., 155; but if it were, respondent’s own argument sufficiently evinces the effect of the error upon the judgment. He contends that “ the only and best evidence of fee damage is the course of rentals,” and in proof of rentals he adduces “Exhibit 8” as impressive evidence.

For the error indicated, the judgment is reversed and a new trial ordered, costs to abide the event.

Daly, Ch. J., and Giegerich, J., concur.


author: Bischoff, J.

text:
    Pasqual Antonio Riche, Resp’t, v. Lawrence Martin, App’lt.

      (New York Common Pleas, General Term,

      Filed November 7, 1892.)

    I. Appeal—New York common pleas.
    On appeals from the general term of the city court of New York the authority of the common pleas to review evidence is measured by that of the court of appeals under like circumstances.
    3. Evidence—Admissibility.
    In an action on a promissory note, where the defense was partial payment, defendant’s counsel on cross-examination of plaintiff elicited the fact that certain sums of money had been paid him subsequent to the delivery of the note, and on redirect examination plaintiff was permitted to testify, under objection, that these sums were paid him for wages. Neld, that the testimony was competent.
    3. Same—Motion to strike out, when, too late.
    It is too late to ask to have evidence stricken out after acquiescing in its reception and improving the opportunity afforded by it for cross-examination.

      Appeal from a judgment of the general term of the city court of New York, affirming a judgment for plaintiff which was entered upon a verdict, and an order denying defendant’s motion for a new trial. Action to recover upon a promissory note against the maker, the defense being a partial payment.

      A. C. Astarita, for resp’t; Abram J. Rose, for app’lt.

       Affirming 44 St. Rep., 773.

   Bischoff, J.

On the trial it was conceded that the note in suit was made and delivered in exchange for a loan of money of equal amount; the defense of usury was withdrawn, and there remained only that of partial payment The burden of sustaining it was upon the defendant; his own testimony was that of a party in interest, and, therefore, subject to discredit, though not directly impeached. EIwood v. Western U. Tel. Co., 45 N. Y., 549; Gildersleeve v. Landon, 73 id., 609; Honegger v. Wettstein, 94 id., 252.

In some respects defendant was corroborated by witnesses for the defense, but plaintiff’s denial, on cross-examination by defendant’s counsel, of ever having been paid anything on account of the amount of the note, presented a sufficient conflict of evidence to require a submission of the facts to the jury for determination. A verdict having been rendered for plaintiff for the full amount of the note and the court below having affirmed the judgment entered thereon, as well as an order denying defendant’s motion for a new trial, we cannot reverse though we should differ" in our views with those of the court below respecting the weight of the evidence. On appeals from the city court our authority to review the evidence is measured by that of the court of appeals under like circumstances, Arnstein v. Haulenbeek, 16 Daly, 382; 34 St. Rep., 297; Smith v. Pryor, 16 Daly, 169; 30 St. Rep., 553, and it is well settled that the court of appeals will inquire only to ascertain if there is any evidence to support the judgment appealed from. Hazman v. Hoboken Land & Imp. Co., 50 N. Y., 53, 55; Green v. Fortier, 80 id., 640.

A number of the exceptions taken to the trial justice’s rulings on the admission of evidence do not present 'the ground of the objection, and are for that reason unavailable. Cruikshank v. Gordon, 118 N. Y., 178, 186; 28 St. Rep., 784. We shall, therefore, consider those only under which the ground of the objection was stated.

On plaintiff’s cross-examination defendant’s counsel elicited the fact that certain sums of money had been paid plaintiff by defendant subsequent to the delivery of the note, and on re-direct examination plaintiff was permitted to testify, under objection and exception, that these sums were paid him for wages. The probability of the truth of the testimony was a matter to be determined by the jury, but we can conceive of no ground why the testimony was not material, relevant and competent, and being so the motion to strike it out was properly denied.

In rebuttal plaintiff testified, apparently without objection, to a conversation with defendant concerning an alleged payment of $100, and defendant’s counsel asked that the testimony be stricken out, and to the trial justice’s denial of the request exception was taken. The exception, however, is unavailable because the ground, for the request was not stated and because counsel could not insist upon compliance with his request- as matter of right. Pontius v. People, 82 N. Y., 339, 347.

In view of the facts that counsel for defendant himself during., the progress of the trial offered to allow judgment to be taken-against him for substantially the same amount, that the facts conceded entitled plaintiff thereto, and that the court so charged without objection, it is incomprehensible how defendant could have: been prejudiced by remarks of plaintiff’s counsel to the jury that defendant had offered judgment for three hundred and twenty-two dollars, conceding the remarks to have been improper and counsel’s rebuke deserved. But, be that as it may, if defendant desired to avail himself of such remarks as- an objection, counsel should have protested at once against submission of the case to the jury; the court should have been asked to declare a mistrial and to order a new trial, and to a denial of the request exception should have been taken. Defendant should not be permitted to take his chances of a favorable verdict, and then urge, if the result of the jury’s deliberations prove adverse to him, that he was prejudiced. Having consented to the submission of the case to the jury, any objection to improper remarks of counsel for plaintiff was waived, and the motion for a new trial on the ground that the jury was unduly influenced because of them was properly denied.

The judgment and order appealed from are affirmed, with costs,

Bookstaver and Pryor, JJ., concur.


text:
    William Riley et al., App’lts, v. Alexander G. Black, Resp’t.

      (New York Common Pleas, General Term,

      Filed November 7, 1892.)

    1. Contract—Reservation in—Construction.
    A written contract for the regulating and grading of land, which contains a provision that the owner “ reserves the right to decide after the rock has been uncovered, whether he will have the same removed or not," entitles him to decide that the same shall not be removed, and gives him the right to thereafter remove it himself or cause others to remove it.
    3. Same.
    ÁL TÜf «ase’the owner directed the contractors to proceed Lthie ™covered rock if he did not accept a pending níf 0Í íhe }an<h and the offer to purchase is not accepted, this a ^ete5nnnatron that the work is to proceed, and he is answerthework ma^6S *°r ^US subsequent refusal to allow them to proceed with
    Appeal from a judgment of the general term of the city court ? cw, ~,ark’ rpversing a judgment of that court at trial term in favor of the plaintiffs and entered upon a verdict
    Action to recover damages for defendant’s breach of an agree-were required to regulate and grade deenaant s land and to excavate and remove earth and rock therefrom.

      Samuel E. Duffy and John M. Tierney, for app’lts: Philip L. Wilson, for resp’t.

       Reversing 40 St. Rep., 973.

   Bischoff, J.

Plaintiffs entered, into an agreement with, defendant for the regulating and grading of the latter’s land, to excavate and remove earth and rock therefrom, and to erect a stone culvert thereon, for which they agreed to receive, and defendant promised to pay, twenty-five cents for each cubic yard of earth and $1.18 lor each cubic yard of rock excavated and removed, and $1.50 for each linear yard of the culvert erected. The agreement further provided as follows: “ The party of the first part {defendant) reserves the right to determine when and where the rock found on said property shall be excavated, if at all; ” and il The party of the first part reserves the right to decide after the rock has been uncovered whether he will °have same removed or not, beyond such amount of rock as may be necessary to blast to build the drain and culvert.” The question in controversy relates only to the rock remaining to be excavated and removed after the drain and culvert had been erected.

Plaintiffs complained that, after the rock had been uncovered and the agreement so far performed on their part that only the rock not required in the erection of the drain and culvert remained, defendant prevented the further performance and caused such rock to be excavated and removed by others, and they thereupon instituted this action to recover $1,000 damages alleged to have been sustained by them from defendant’s breach.

On the part of the defendant it was conceded that he remained the owner of the land; that he refused to allow plaintiffs to proceed with the excavation and removal of the rock, and that the quantity subsequently excavated and removed by others employed for that purpose was two thousand cubic yards; but defendant insisted that pursuant to the terms of the agreement, and under the particular provisions hereinbefore recited, it was optional with him whether plaintiffs should continue the work of excavating and removing the rock, and that for that reason no breach of the agreement on his part could be predicated upon such refusal and employment.

On the trial it appeared in evidence for plaintiffs from the testimony of Riley and O’Leary, that two or three days after the removal of the earth, and before the excavation and removal of the rock were proceeded with, they had an interview with defendant at which he stated that he had an offer for the sale of the land with the rock thereon, that he would require two or three days to consider it, but that if he concluded not to accept the offer, he desired that they should proceed with the excavation and removal of the rock. Both plaintiffs denied that they were ever notified not to proceed, but admitted that defendant had made efforts to indnce them to accept a reduced rate of compensation. It also appeared from Riley’s testimony that the actual cost to plaintiffs for the excavation and removal of the rock would have been sixty cents per cubic yard, and this remained wholly uncontroverted.

Defendant, and Shirley, a witness for him, denied that any interview such as the one related by plaintiffs had taken place, and they further testified that oral notice was given plaintiffs by the defendant to the effect that he did not desire them to proceed with the excavation and removal of the rock.

When plaintiffs rested defendant’s counsel moved the dismissal of the complaint upon substantially the same grounds as those upon which the motion was renewed and a verdict asked to be directed for defendant upon the close of the evidence, but as any defect in plaintiffs’ proof at the time of the first motion was curable by evidence introduced by either party after its denial, The S. & S. Plank Road Co. v. Thatcher, 11 N. Y., 102, 112 ; Tiffany v. St. John, 65 id., 314, 317; Painton v. Northern Central R. R. Co., 83 id., 7, it is unnecessary to discuss its merits.

Both sides having rested, defendant’s counsel renewed his motion for a non-suit, or, that being denied, asked that the court direct a verdict for the defendant, the only and specific ground for these motions being that by the agreement in evidence defendant was at liberty to terminate it in so far as it related to the excavation and removal of the rock remaining, that he was not precluded from contracting with others for the work, and that a breach of the agreement was not assignable from his refusal to allow plaintiffs to proceed therewith and the fact that he employed others for that purpose. These motions were severally'denied and due exceptions taken by counsel.

The court thereupon charged the jury that plaintiffs were-entitied to recover the damages sustained by them from defendant’s refusal to permit them to excavate and remove the.rock, and also directed the jury to assess the damages at the difference in amount between the actual cost of the work and the sum which defendant had agreed to pay, not exceeding, however, $1,000, the amount claimed in the complaint.

To the instruction that plaintiffs were entitled to recover defendant’s counsel excepted, but no request was made on defendant’s behalf that any question of fact- be submitted to the jury for determination. The jury found for plaintiffs in $1,000 and defendant’s counsel moved for a new trial upon the minutes, specifying as the grounds of the motion that the verdict was contrary to law and against the evidence.

This motion was denied, and the denial excepted to, and from the judgment entered upon the verdict defendant appealed to the general term, where it was reversed and judgment absolute directed for the defendant, for dismissal of the complaint.

As the general term of the court below was without power to determine any controverted question of fact, Purchase v. Matteson, 25 N. Y., 211; Whitehead v. Kennedy, 69 id., 462; Cuff v. Dorland, 57 id., 560, and could render judgment absolute against the plaintiffs only when the facts were undisputed and they were not entitled to recovery in any aspect of them, Stowell v. Hazlett, 57 N. Y., 637 ; Foot v. Ætna Life Ins. Co., 61 id., 571; Whitehead v. Kennedy, 69 id., 462 ; Ehrichs v. De Mill, 75 id. 370 ; Guernsey v. Miller, 80 id., 181; Goodwin v. Conklin, 85 id., 21, 26 ; Capron v. Thompson, 86 id., 418, 421; Gawthrop v. Leary, 89 id., 622, it is conclusive!v apparent from the judgment of reversal, and without reference to the opinion, that it proceeded from, the construction of the agreement that plaintiffs were not thereby absolutely entitled to excavate and remove the rock until defendant had decided or determined that it should be done by them, and that he was thus at liberty to cause the work to be performed by others without, rendering himself amenable to plaintiffs for a breach of his agreement. This view is confirmed by the opinion of the general term below.

We concur in the result reached as to the proper construction of the agreement, but are yet constrained to reverse the judgment of the general term below as erroneous.

It appeared in evidence by the testimony of both plaintiffs that the event upon the happening of which the agreement was to become effective as against the defendant m so. far as it related to the excavation and removal of rock, his decision or determination that plaintiffs should proceed therewith, had taken place. These witnesses had testified that they were directed by defendant to proceed if he did not accept a pending offer for the sale of the land. It was conceded that the land was not sold, and though defendant and his witness, Shirley, denied that any such directions were given, the conflict of evidence thus ensuing presented a question of fact which, if determined in plaintiffs’ favor, bound defendant to the further performance of the agreement on his part. The agreement did not prescribe the manner in which defendant should manifest his decision or determination, and it was therefore competent to establish it by his oral declarations. To some extent at least plaintiffs were corroborated by the conceded fact that the defendant caused the rock to be excavated and removed by other parties.

Upon this evidence it would have been proper for the defendant to have asked that the question of fact whether or not he did decide and determine to have the rock removed by plaintiffs be submitted to the jury. His right to have it so submitted, however, was waived by his motion for a nonsuit, and the direction of a verdict in his favor, Cooke v. State Nat. Bank of Boston, 52 N. Y., 96; Colligan v. Scott, 58 id., 670; McCall v. Sun Mut. Ins. Co., 66 id., 505; Ormes v. Dauchy, 82 id., 443, and the exception to the instruction to the jury that plaintiffs were entitled to recover without requesting the submission of any disputed question of fact is unavailable. Probst v. Delamater, 100 N. Y., 266; Provost v. McEncroe, 102 id., 650; Mayer v. Dean, 115 id., 556; 26 St. Rep., 375. Defendant’s several motions authorized- the trial judge to decide the facts, Kirtz v. Peck, 113 N. Y., 222; 22 St. Rep., 733, and for the purposes of a review of the judgment on appeal every fact of which there is sufficient evidence to support it must be assumed to have been found by the trial judge for the plaintiff. Sutter v. Vanderveer, 122 N. Y., 652; 34 St. Rep., 211 Thus we have the fact that subsequent to the making of the agreement defendant did decide and determine to have the rock removed, and directed plaintiffs to proceed therewith, and

No question is raised upon the brief of counsel for respondent concerning the measure of damages applied on the trial, but reference thereto was made on the argument of this appeal. Upon examination, however, we see no error in that respect. The trial judge instructed the jury that the damages must be assessed at the difference between the price which defendant had agreed to pay and what the cost would have been to the plaintiffs if they had been permitted to proceed with the work of excavating and removing the rock. Ño exception was taken thereto, and the instruction is in harmony with the rule approved in Nason Mfg. Co v. Stephens, 40 St. Rep., 190, and the cases there cited.

We observe that the respondent on this appeal seeks to invoke the aid of the following provision of the agreement in evidence in support of the judgment appealed from, viz.: “They, plaintiffs,

will not ask, demand, sue for or recover for the entire work any extra compensation beyond the amount payable for the several classes of work in this contract enumerated which shall be actually performed at the prices therefor herein agreed upon and fixed.” While we do not perceive the relevancy of this provision to the question in controversy, any point sought to be made thereby is sufficiently disposed of by the fact that the provision was not among the defenses interposed to the complaint, or raised on the trial, and cannot be raised for the first time on appeal, Codd v. Rathbone, 19 N. Y., 37; N. Y. C. R. R. Co. v. Rochester, 127 id., 591; 40 St. Rep., 193; Cohn v. Goldman, 76 N. Y., 284 : Mead v. Shea, 92 id., 122, nor was the effect of this provision urged as a ground of the several motions to the denial of which exception was taken. Cruikshank v. Gordon, 118 N. Y., 178,186; 28 St. Rep., 784; Langley v. Wadsworth, 99 N. Y., 61; Schile v. Brokhahus, 80 id., 614.

The conclusion reached by us is that the judgment of the general term of the court below should be reversed, with costs, and the judgment and order of the trial term affirmed.

Daly, Ch. J., and Pryor, J., concur.


text:
    Walter Van Houten, Resp’t, v. Charles Fleischmann, App’lt.

      (New York Common Pleas, General Term,

      Filed November 7, 1892.)

    1. Negligence—Management op horse.
    In an action to recover for injuries sustained in a collision with defendant’s team, caused by the negligence of his driver, it appeared that plaintiff was crossing the street, when the team became frightened by a passing elevated train, shied, and he was struck. Plaintiff’s witnesses testified that-the team was approaching at a seven mile gait, and beyond control, while-, the driver and his assistant de fled that the team was beyond control until it shied, and testified that it was being driven at a “ dog trot,” and that when they first saw plaintiff he was four feet from the curb, and they twenty feet away; that they uttered a warning, but before he reached the-curb the team became frightened at an elevated road train, shied and. struck him. Held, that the jury were justified by the evidence in finding for plaintiff.
    8. Same.
    The passing train which frightened the horse, and the driver’s neglrgence were concurrent causes equally efficient in producing the result, and it was for the jury to determine which of them was the proximate cause of the accident.
    Appeal from a judgment for the plaintiff, entered upon the verdict of a jury, and an order denying defendant’s motion for a new trial on the minutes. Action to recover for injuries sustained in a collision with defendant’s team, caused by the negligence of the driver, defendant’s servant.

      James McKeen, for resp’t; C. Bainbridge Smith, for app’lt.
   Bischoff, J.

As the exceptions taken to the ruling of the trial judge in the admission of evidence for the plaintiff, objected to on behalf of the defendant, and to his refusal to charge, are not specially urged ón this appeal, we refrain from discussing them at length. They have, however, been severally examined and found to be invalid for the assignment of error.

On the trial it was insisted for the defendant that the evidence was insufficient to establish his responsibility for the injuries resulting to the plaintiff from the accident, and two several motions for dismissal of the complaint on that ground were made and .denied, one when plaintiff rested, and the other upon the close of the evidence for both sides. Whatever defect, however, there may have been in plaintiff’s proof at the time of the first motion, was curable by evidence introduced after its denial, The S. & S. Plank Road Co. v. Thatcher, 11 N. Y., 102, 112; Tiffany v. St. John, 65 id., 315, 317, though as a part of the‘defendant’s case, Painton v. Northern Central R. Co., 83 N. Y., 7, and plaintiff’s right of recovery must be measured, therefore, by the evidence as it stood when the case was submitted to the jury. A motion for a new trial was also made on behalf of the defendant on the several grounds specified in § 999 of the Code of Civil Procedure, which was likewise- denied; and as the several motions were founded upon the alleged insufficiency of the evidence, they may be properly discussed as one.

The facts undisputed are that defendant is the surviving partner of Fleischmann & Co.; that the team with which plaintiff collided was the property of his firm, and the driver thereof at the time of the collision in its employ; that plaintiff was proceeding along the westerly side of Greenwich street in a southerly direction intending to cross Perry street, and that he had succeeded in crossing to within about four feet of the curb of the southerly sidewalk of Perry street when he was struck by defendant’s team which was approaching Greenwich street, along Perry street, in an easterly direction; and that the violence of his contact with defendant’s team had the effect of throwing plaintiff against an elevated railroad pillar situated near the curb with such force that he sustained the injuries complained of.

The unchallenged evidence for the defendant to that effect, also establishes the accuracy of his contention that when the team reached the crossing along which plaintiff was at the time proceeding, the horse, which theretofore had been of uniformly gentle and manageable disposition, was frightened by a passing elevated railroad train, reared and shied in the direction of the 'plaintiff, and thus caused the collision.

Holmes, a witness for the plaintiff, said that just before the collision he saw the team approaching along Perry street at full speed, estimated by him to be at the rate of seven miles an hour, jumping and galloping and in the act of running away, while the driver was holding on; and Burke, another witness of plaintiff, partly corroborates Holmes by saying that the horse did not appear to be wholly under the control of the driver.

As the shying of a horse, or the running away of a team, is not ■of the driver cannot be inferred therefrom, Quinlan v. Sixth Ave. necessarily the result of any careless or negligent act, negligence R. R. Co., 4 Daly, 487, 488; Gottwald v. Bernheimer, 6 id., 212; O'Brien v. Miller, 25 Am. St., 320; Button v. Frink, 50 Am., 24; Brown v. Collins, 16 id., 372; Turner v. Buchanan, 42 id., 485, and the facts, so far as they have been recited, may be conceded to be insufficient to entitle plaintiff to recover; but when defendant called as witnesses' Luhman, the driver, and Gerdes, his .assistant, they denied that the horse had at any time run away, become unmanageable, or lost to the control of the driver until it .shied, as already stated. Both Luhman and Gerdes also maintained that the team was being driven at an ordinary gait or “ dog trot,” thus contradicting Holmes to the effect that its speed was at the rate of seven miles an hour; and they further agree that when they first saw plaintiff on the crossing he was four feet from the curb of the southerly sidewalk and they about twenty feet west of him on Perry street; that at this time they uttered their first warning, and that before plaintiff had succeeded in reaching the curb the horse was so close upon him that when it shied at the crossing it threw him as stated.

The testimony of Luhman and Gerdes implies a confession of recklessness to a degree amounting almost.to a wanton and culpable disregard for the safety of human life and limb. Why did they undertake to warn the plaintiff while still twenty feet distant from him ? That they did so seems susceptible of but two explanations: Either the horse had then already become frightened by the passing train, or it is true, as Holmes said, that the team was being driven at an inordinate rate of speed. From which was danger apprehended? If from the frightened horse, might not the jury have found from the facts that it was of uniformly gentle and manageable disposition, and that it was being driven at an ordinary gait and was under the control of the driver, that its forward course could have been checked within the twenty feet remaining between it and the plaintiff, if proper effort in that behalf had been made ?

If the danger was apprehended from the team’s inordinate rate of speed, could not the jury have concluded that the driver was powerless for the time being to stop the team within the distance remaining to the crossing in time to avoid injury to the plaintiff though he had endeavored to do so? We think the evidence is ■capable of either inference, and the jury were not bound to believe the statements of either Luhman or Gerdes that efforts to avoid injury to the plaintiff were made. Both of these witnesses were directly chargeable with the consequences of their recklessness and interested in the result of the action. Elwood v. W. U. Tel. Co., 45 N. Y., 549; Honegger v. Weitsiein, 94 id., 252 ; Canajoharie Nat. Bank v. Diefendorf 123 id., 191; 33 St. Rep., 389. That the team was being driven at an inordinate and reckless rate of speed is rendered the more plausible from the admissions of Luhman and Gferdes that it had proceeded close to the plaintiff, a distance of twenty feet, before the latter had as yet succeeded in crossing the four remaining feet between him and the curb.

Either of the inferences mentioned would establish the driver’s negligence for which the defendant, his master, could be held answerable. Driving at an unusual rate of speed, even in a city street, has been held not to constitute negligence per se, Crocker v. The Knickerbocker Ice Co., 92 N. Y., 652, but it is a circumstance to be considered with others in determining whether, or not, the driver’s carelessness or negligence caused the injury, Sherman & Redfield on Negligence, § 305; and because the lawful presence of pedestrians on the street crossing of a populous city may be reasonably apprehended, the law imposes the duty upon the drivers of horses and vehicles to exercise a reasonable degree of care and precaution in approaching them to avoid injury ; and if the driver fails to look out for pedestrians, or seeing them, omits to exercise reasonable care to avoid injury to them, he is chargeable with negligence, Murphy v. Orr, 96 N. Y., 14; Birkett v. Knickerbocker Ice Co., 110 id., 504; 18 St. Rep., 130, and it is the element of concurrent negligence of the driver which distinguishes the present case from Gottwald v. Bernheimer, 6 Daly, 213 ; Quinlan v. Sixth Ave. R. R. Co., 4 id., 487 ; Hammack v. White, 11 C. B., N. S., 588 ; Herrick v. Sullivan, 120 Mass., 576; Brown v. Collins, 53 N. H., 442, and 16 Am., 372, and others cited in the brief of the learned counsel for the appellant, in each of which absence of all concurrent fault, or blameableness on the part of the driver, was either prov'ed or conceded.

It is urged that, even conceding the driver’s negligence, the accident was directly due to the shying of the horse which the driver could not reasonably have apprehended, and that this was .caused by the passing train; therefore the passing train was the proximate, and the driver’s negligence the remote caqse, and defendant cannot be made answerable. Whether, however, a cause which contributes to an accident is proximate, or not, is not determined with reference to the order in which the several contributing elements succeeded one another, but with reference to the efficiency of these elements, Am. & Eng. Ency. of Law, vol. 16, pp. 436, 444; Lawson’s Rights, Remedies & Practice, vol. 3, p. 1743, § 1029, and so it was held in McCahill v. Kipp, 2 E. D. Smith, 413, that a driver who left his horse standing unhitched and unattended in the street was liable for the injuries caused by the running away of the horse, although the runaway would not have occurred but for the act of a stranger in frightening the animal, and though the driver used all reasonable effort to stop the animal after it had started.

From the evidence, also, it was competent, as before stated, for the j ury to find that the driver was negligent in not checking the onward course of the team when the horse first became frightened twenty feet distant from the plaintiff, or that when it became so frightened, he was, because of its inordinate rate of speed, powerless to stop the team, or turn it aside within the distance remaining between it and the plaintiff when the driver first saw him on the crossing, so that both the passing train and the driver’s negligence were concurrent causes, equally efficient in producing the result, and such being the case, the accident is attributable to both, •or either, and it is for the jury to determine which of them is the proximate cause. Houghtaling V. Shelly, 22 St. Rep., 17; Whitaker v. D. & H. Canal Co., id., 405; Ring v. Cohoes, 77 N. Y., 90; Ehrgott v. Mayor, etc., 96 id., 264, 283; Searles v. Man. R’way Co., 101 id., 661; Taylor v. Yonkers, 105 id., 202, 208; 7 St. Rep., 332; Bunting v. Hogsett, 23 Am. St., 192, Phillips v. N. Y. C. & H. R. R. R. Co., 127 N. Y., 657; 38 St. Rep., 675.

So, also, we are of the opinion that it sufficiently appears from the evidence that plaintiff was free from all contributory negligence in causing the accident He was lawfully upon the crossing, and had a right to assume that the driver of a vehicle would approach it with that degree of care which the law imposes upon him as a duty, Murphy v. Orr, supra, and could not reasonably have anticipated the driver’s recklessness in not checking hihorse. It does not appear that he heard the warning, or, hearing it, that the time intervening between it and the collision was reasonably sufficient to have enabled him to appreciate the direction from which the danger was threatened and to have deliberated upon a means of escape, Quill v. N. Y. C. & H. R. R. R. Cor, 32 St. Rep., 612, affd., 126 N. Y. 629; 36 St. Rep., 1012; and absence of contributory negligence is sufficiently shown if it appears from •the circumstances attending the injury. Warner v. N. Y. C. R. R. Co., 44 N. Y., 465, 471; Johnson v. H. R. R. R. Co., 20 id., 65; Hart v. Hudson R. Bridge Co., 80 id., 622. The judgment and order should be affirmed.

Judgment and order affirmed, with costs.

Daly, Ch. J., concurs.


text:
    John Van Tassel, Resp’t, v. The New York, Lake Erie & Western Railroad Company, App’lt.

      (New York Common Pleas, General Term,

      Filed November 7, 1892.)

    1. Evidence—Weight of.
    In an action against a railroad company to recover for injuries sustained by plaintiff, a brakeman, while in defendant’s employ, plaintiff testified that he was ordered to “brake” the only stock car taken rn the train at Gf., and as he stepped upon the brake step it gave way and he fell; defendant introduced its rules to show that they required its conductor to report the arrival and departure of its trains at each station, with a description of theyars there taken on or left off. The report of the conductor of the train which arrived at G. fifteen minutes before the departure of the train on which plaintiff was injured, showed that a sheep car No. 8007 was left there, the accuracy of the report was testified to by the conductor and flagman in whose handwriting it was. The report of the conductor of the latter ■train was introduced, from which it appeared that the only stock car taken on at G-. was No. 8007, but the baggage-master, in whose handwriting it was, and the conductor, refused to swear to its accuracy, or to the fact that the description of the car was made from personal observation of its number. Car No. 8007 had not nor required any brakestep. Held, that the jury was not bound to credit such report, its accuracy having been impeached by the testimony of the conductor and baggage-master.
    2. Same.
    Proof that a certain freight car arrived at a station fifteen minutes before the departure of another freight train, is not evidence that such car became a part of the latter train.
    3. NEGDIGENCE—CONTRIBUTORY.
    In such case, plaintiff was not guilty of contributory negligence, though he might have discovered the defective condition of the brakestep had he examined before attempting to use it; he was justified, from the fact that the car was at the time in actual use, in assuming that it was in fit condition and that defendant had performed its duty of keeping the car, with all its appliances, in proper repair.
    4. Same—Evidence—Objection—Collateeab matter.
    In such case a physician was called by defendant to show that plaintiff had a prior injury which might have resulted in his present condition, and testified as to the date of his consultation with plaintiff, and .that he was enabled to fix such date with certainty because he had made a record on the day it occurred. On cross-examination he was questioned under objection in respect to the entries of his visits to other patients. Held, that defendant having brought out the fact of the alleged record, could not urge its irrelevancy and prevent cross-examination concerning it.
    Appeal from a judgment for the plaintiff entered upon the verdict of a jury, and from an order denying defendant’s motion for a new trial. Action to recover for injuries alleged to have been, sustained by the plaintiff, a brakeman in defendant’s employ, byj reason of the defective condition of a brakestep, the use of which he claimed was essential to the operation of the brake attached to defendant’s car.

      Artemas B. Smith, for resp’t; Charles Steele, for app’lt.
   Bischoff, J.

That plaintiff sustained injuries of the character claimed by him, and that in consequence of such injuries his health and physical condition were greatly and permanently impaired, are facts which, upon the testimony of the physicians who were examined as witnesses on the trial, were left in no manner of doubt; the facts, also, relating to the accident, assuming it to have occurred as testified to by plaintiff, fully justified a finding of defendant’s negligence by the jury.

It appeared from plaintiff's testimony that he was a brakeman in the employ of defendant and attached as such to a train which, on August 22d, 1888, proceeded to take a stock, or freight car, laden with sheep, from Greycourt to Newburgh; that the brake of this car was constructed with a brakestep, which was located about eighteen inches below the roof of the car, and which was attached to the end of the car by iron braces; that the brakestaff passed through the step, attached to which was a “ dog” or “ catch ” which worked in connection with a “ ratchet ” wheel on the brakestaff; that the “ dog ’’ was worked with the brakeman’s foot, and that he had for that purpose to stand with one foot on the step while operating the brake, so that he could push the “dog” against the Vratchet” wheel after the brake was wound up, and thus hold it in position. It further appeared that the board, which formed the foot rest of the brakestep, had, from exposure to the elements, become defective in that it had sprung lengthwise through the middle, the -two parts, however, still adhering at, and a little below, the surface, so that the defective condition of the board could have been detected upon inspection from below, but was not apparent on its surface. It was a part of plaintiff’s duty to obey the instructions of the conductor of his train, and having been directed by the latter, at Greycourt, to-couple the car to the train, he proceeded to do so. The car had to be hauled some distance to the train by a “ pusher ” engine employed for that purpose, and having coupled the car to this engine, plaintiff mounted the roof of the car intending to unfasten the brake which, he says, he believed to be set at the-time. From the roof of the car he glanced down on the brake-step, noticed nothing unusual in the appearance of it, stepped upon the footrest which separated at the point where it had been weakened as hereinbefore mentioned, and the weight of his body caused the separated part of the board upon which it directly bore to break, whereby he was precipitated astraddle of the bumper of the engine, and in this manner sustained the injuries complained of.

It was defendant’s duty to maintain the brake and its appliances in a condition fit and suitable for the purposes of their use, Wright v. N. Y. C. R. R. Co., 25 N. Y., 562; Lansing v. N. Y. C. & H. R. R. R. Co., 49 id., 521; Besel v. N. Y. C. & H. R. R. R. Co., 70 id., 171; Kirkpatrick v. N. Y. C. & H. R. R. R. Co., 79 id., 240; Burke v. Witherbee et al., 98 id., 562; Pantzar v. The Tilly Foster Mining Co., 99 id., 368; Fredenburg v. N. C. R. R. Co., 114 id., 582; 24 St. Rep., 550, by the exercise of a reasonable degree of care and diligence to discover 'such defects as arise from the want of proper repair, Probst v. Delamater, 100 N. Y., 266; Fuller v. Jewett, 80 id., 46; Painton v. N. C. R. Co., 83 id., 7; Ellis v. N. Y., L. E. & W. R. R. Co., 95 id., 546; nor could it escape responsibility for the non-performance, or the negligent performance, of this duty, by delegating it to others. Benzing v. Steinway, 101 N. Y., 547; Bushby v. N. Y., L. E. & W. R. R. Co., 107 id., 375; 12 St. Rep., 9; Coppins v. N. Y. C. & H. R. R. R. Co., 122 N. Y., 557; 34 St. Rep., 214.

A railroad company, however, may perform its duty as master in such respect by adopting and promulgating a system of rules- and regulations intended for the inspection and repairing of its cars, engines, switches, etc., to guard against accidents, Byrnes v. N. Y., L. E. & W. R. R. Co., 113 N. Y., 251; 22 St. Rep., 936; McGovern v. V. R. R. Co., 123 N. Y., 280; 33 St. Rep., 416; Ford v. The L. S. & M. S. R. R. Co., 124 N. Y., 493 ; 36 St. Rep., 494; Corcoran v. D., L. & W. R. R. Co., 126 N. Y., 673; 38 St. Rep., 251, the employment of competent servants to make these inspections and repairs, and the exercise of such. a supervision over its employees as may be reasonably necessary to enforce the-observance of its rules and regulations. Whittaker v. D. & H. C. Co., 126 N. Y., 544; 38 St. Rep., 523. Whether or not the rules promulgated are reasonably sufficient to insure the safety of its servants, if observed, and whether or not a reasonably sufficient supervision was exercised to enforce the observance of the rules, ■are questions of fact which must be determined by the jury from the evidence. Abel v. D. & H. C. Co., 128 N. Y., 662; 40 St. Rep., 626.

On the trial defendant’s efforts were aimed to show that the stock car which plaintiff coupled to the engine at'Greycourt was one known as and marked “N. Y., P. & 0., 8007,” and had, but about fifteen minutes before, been brought to Greycourt by a train from Jersey City; that car “N. Y., P. & O., 8007 ” was not provided with a brakes tep; that the brake thereof was of an essentially different construction, and that a brakes tep thereon was unnecessary. Incidentally it appeared from the evidence for the defense that the defendant maintained a station at Jersey City, and another at Newburgh, where such of its cars as came there were •inspected, and, when necessary, repaired, but as the jury have discredited defendant’s claim that the car which plaintiff coupled to ■the engine was the car known as “ N. Y. P. & O., 8007,” it is, in the absence of evidence tending to show that all of defendant’s cars, in the prosecution of its business, necessarily arrived at Jersey City or Newburgh at frequent intervals, thus affording opportunity for inspection and repair, absurd to speak of- these two stations as a “system.”

The particular car in the use of the brake of which, the jury say, plaintiff was injured, was at Greycourt. How long it had been there, and from whence it came, or that it ever had been, or if so, how recently, at either Jersey City or Newburgh, does not ■appear. It was not shown that there was a repair station at Grey-court, or that any person was there employed for repairing purposes, or that the car was ever inspected or examined there or-anywhere else by anybody before the accident, to ascertain if it ■needed repair. It is apparent that with the rejection of defendant’s claim, that the car coupled to the engine was car “ N. Y., P. ■'& O., 8007,” all evidence of efforts at Jersey City and Newburgh to avoid accidents arising from the want of repair became at once irrelevant, and would not fit to the case of a car which was not shown ever to have been at either of those places at any time before the accident. Hence the jury consistently, also, found that defendant had, with reference to the car coupled to the engine by -the plaintiff, omitted to use reasonable precaution to avoid accident from the want of repair.

Appellant urges that there is no evidence from which the jury were authorized to infer that defendant was negligent, -and counsel cites De Graff v. N. Y. C. & H. R. R. Co., 76 N. Y., 128, which is to the effect that the breaking of a piece of machinery may reasonably lead to the conclusion that, the "break was due to a defect therein, but that the fact merely that the machinery was defective does not warrant an assumption that the master was negligent in not discovering the defect Unquestionably the master may not be held responsible without proof of negligence on his part, and his negligence will never be presumed. Dobbins v. Brown, 119 N. Y., 188; 28 St. Rep., 957. But the fact of his negligence may appear from the circumstances of the accident, or the nature of the defect. Iri die ' De Graff case it appeared that plaintiff was a brakeman, and that while applying the brake the chain broke, whereby he was thrown from the car and injured, but the jury were not informed of the nature of the defect in the chain, or what it was that caused the chain to part asunder. In the-case at bar, however, plaintiff’s testimony shows that the cause of the break in the foot-rest of the brake-step was a crack or opening running lengthwise through the middle, and extending through the thickness of the board to very nearly the surface - that the crack must have been plainly visible from below; and that it was not of recent origin, because the upper portion of the broken edges, where the board parted in two, was fresh, and had the appearance of a recent break, while the remaining portion of the same edges was blackened and weather-beaten, indicating that it had been exposed to the elements for some time past. The failure to discover and repair this cause of the break is the negligence complained of, Gottlieb v. N. Y., L. E. & W. R. R. Co., 100 N. Y., 462, and the circumstances of the case under consideration are no less convincing in that respect than were those in Jones v. N. Y. C. & H. R. R. R. Co,, 28 Hun, 364 ; affirmed, 92 N. Y., 628, where it was held that the appearance of the iron rung of a ladder used in connection with a freight car, and from which plaintiff’s intestate had fallen, bent and dented, with the broken ends partly bright, as though recent, and partly rusty, as though old, justified the jury in assuming that the defect had existed for a sufficient length of time to have enabled defendant to discover and repair it, had the defendant exercised reasonable diligence to ascertain the condition of the ladder.

Appellant further contends that there was affirmative evidence that the brakestep was reasonably safe, from plaintiff’s admission that it might have been used by him, or others, a hundred times without causing it to break, and that to supply one not absolutely but reasonably safe, only, was the extent of defendant’s duty. Hickey v. Taaffe, 105 N. Y., 26; 6 St. Rep., 426; Stringham v. Hilton, 111 N. Y., 188; 19 St. Rep., 621. We understand this admission to mean no more than that it was the witness’ opinion that in the use of the step the weight of the body did not uniformly bear upon the weakest point of the foot rest, and that it was for that reason not impossible to use the step a great many times without causing a break at that point, and so evidently the-jury, who did not share this opinion, interpreted it Bearing in miud, therefore, that the reasonable safety of an appliance must be-determined with reference to its use, it was still a question for the jury whether, or not, in view of the fact that the defective condition of the brakestep might cause it to break at any time when in use, it was reasonably safe, and with the jury’s finding that it was not we cannot interfere.

Neither can it be successfully urged that, in entering upon his employment as brakeman for the defendant, the plaintiff accepted as incidental to the service the risk of injuries resulting from defendant’s neglect to exercise reasonable diligence to ascertain and repair defects in appliances used by plaintiff in the performance of his duties. The risks of injury which the servant assumes are those which are obvious and within his reasonable apprehension, Gibson v. Erie Railway Co., 68 N. Y., 449; Shaw v. Sheldon, 103 id., 667; 3 St. Rep., 679; Hickey v. Taaffe, 105 N. Y., 26 ; 6 St. Rep., 426; Appel v. B., N. Y. & P. R. R. Co., 111 N. Y., 550; 20 St. Rep., 90; McGovern v. Central Vermont R. R. Co., 123 N. Y., 280; 33 St. Rep., 416, not such as are the result of the nonperformance, or the negligent performance, of a duty owing from the master, Crispin v. Babbitt, 81 N. Y., 516; Pantzar v. The Tilly Foster Mining Co., 99 id., 368, and the master will not be permitted to avail himself of the servant's assent to assume all obvious and incidental risks of injury in the service until he has himself discharged the duty of using and maintaining all reasonable precaution to avoid injury to the servant Dana v. The N. Y. C. & H. R. R. R. Co., 92 N. Y., 639; Hudson v. The Ocean S. S. Co., 110 id., 625 ; 16 St. Rep., 416.

Plaintiff was not guilty of contributory negligence. Though he might have discovered the defective condition of the brakestep had he examined before attempting to use it, he was justified, from the fact that the car which he was directed to couple was at the time in actual use, in assuming that it was in fit condition and that the defendant had performed its duty of keeping the car, with all its appliances, in proper repair. Bushby v. N. Y., L. E. & W. R. R. Co., 107 N. Y, 375; 12 St. Rep.; 9. At any rate, the fact that plaintiff was directed by his superior to couple the car made the question of his contributory negligence, because of his omission to examine the brakestep before attempting its use, one to be determined by the jury upon all the surrounding circumstances. Kain v. Smith, 89 N. Y., 375.

Appellant’s counsel further urges as ground for reversal that the verdict is against the evidence, and the weight of the evidence, because it was conclusively shown that the car which plaintiff coupled to the train at Greycourt was the car marked and known as “N. Y, P. & O. 8007,” which was not provided with a brakestep, from which it follows that the accident narzated by the -plaintiff did not occur.

It appeared in evidence for the defense, without contradiction, that the defendant’s zules required its conductors to report the .arrival and departure of its trains at each station, with a description of the several cars there taken on or left, and that the conductor of the train by which car “ N. Y, P. & 0. 8007” arrived at Greycourt from Jersey City had made such a report. The accuracy of the report was" testified to by Wandle, the conductor, and Quackenbush, the flagman, in whose bandwriting it was made,-and the evidence'may be accepted as conclusive of the .arrival of car “N. Y. P., & 0. 8007” at Greycourt on the day of the accident and about fifteen minutes before the departurc of the train to which plaintiff was attached from Grey-court to Newburgh. It is equally conclusive that car “ N Y., P. & 0. 8007 ” was laden with sheep, and that the construction of its, brake was such as to make a brakestep superfluous and that it was not provided with any.

It does not follow from such facts, however, that car “ N. Y., P. & 0. 8007 ” was the car which plaintiff coupled to and which was taken by the train to which he was attached from Greycourt to Newburgh; and it is manifest that if plaintiff’s story that the last mentioned car was provided with a brakestep is correct, that it could not have been the car “ N. Y., P. & O. 8007.” Plaintiff’s story is not inherently improbable. We are not authorized to assume that the car load of sheep was not transferred at Grey-court from car “ N. Y., P. & O. 8007 ” to another, or that there were not two or more cars laden with sheep at Greycourt, or that the car which was dispatched by plaintiff’s train had not arrived at Greycourt by a train other than that of which Wandle was the conductor. To prove the identity of the car coupled to plaintiff’s train with car “ N. Y. P. & O. 8007 ” defendant offered in evidence the report of King, the conductor of the train running from Greycourt to Newburgh, which was in the handwriting of William H. Van Tassel, plaintiff’s brother, and the baggage-master on the train. From this last report it appears that the only stock car taken from Greycourt to Newburgh was car “N. Y., P. & O., 8007,” but both King and Wm. H. Van Tassel refused to swear to its accuracy, or to the fact that the description of the caiXwas made from their personal observation of its number or initials, and whatever benefit the defendant might otherwise have derived from the presumption of the performance of duty, Barlcer et al., admrs. v. N. Y. C. R. R. Co., 24 N. Y., 599; The Oregon S. Co. v. Otis, 100 id., 446; Turner v. Kouwenhoven, id., 115; Coppins v. N. Y. C. &. H. R. R. R. Co., 122 id., 557; 34 St. Rep., 214; Greenleaf on Evidence, vol. 1, § 40, was overcome by their admission that the report may have been made up from the way bill, or the trainbook, and that the entries in the trainbook and reports were frequently made by them upon information received from others and not upon their personal knowledge of their accuracy. Thus the success of the defense hinged entirely upon the degree of credit which the jury saw fit to attach to the last mentioned report, and with its accuracy impeached by the admissions of King and Wm. H. Van Tassel, we cannot say that the jury were bound to credit it..

To contradict plaintiff's statement that on August 22, 1888, he fell from a stock car which he had just coupled to the “pusher” ■engine, defendant called John E. Tibbitts, but a careful scrutiny of the latter’s testimony must demonstrate that it is not in conflict with that of the plaintiff concerning the happening of the accident. Tibbitts merely states, with reference to the accident, that on one occasion, which he would not say was on the 22nd of August, the day plaintiff says he was injured, he was at Grey-court and saw a person other than the plaintiff couple a stock- car to the “ pusher ” engine, that all this time witness and the plaintiff were standing near the train on which plaintiff was employed as brakeman, and that the stock car was coupled to the train by plaintiff, who on that occasion did not meet with any accident, and that he, the witness, did not see plaintiff meet with an accident on any other occasion. It is not at all unlikely that at some time Tibbitts may have been at Greycourt and witnessed the coupling of a stock car as he described, but unless it also appears that this was the coupling to which plaintiff referred, the two statements cannot be said to be in conflict with, or contradictory of each other.

Next, defendant called for the purpose of contradicting plaintiff one Charles W. Jones, its train dispatcher at Newburgh, who testified that in September, 1888, sometime after the accident, plaintiff applied to him tobe assigned to less arduous work, giving as a reason for his application that he had sustained an injury some time previous, while lifting a barrel at Central Valley; but it may well be that the jury, upon plaintiff’s denial of ever having attributed his injuries to the cause mentioned, refused to discredit him upon such hazardous testimony as the witness’ accurate recollection of the particulars of a casual conversation.

For the purposes of still further contradicting the plaintiff, defendant called James L. Lente, a physician, who testified that about sixteen months before the alleged accident plaintiff hadi called upon and consulted him professionally, that on that occasion he had inspected plaintiff’s person and noticed the presence of a rupture in the groin, as well as other symptoms of disease;! which, with reasonable certainly, would eventually lead to the* physical condition in which plaintiff was shown to be on the trial, and that he had recorded the fact of the consultation, with the result of his inspection, on the day it was made, in a book kept, by him and in which were recorded his consultations with patients, in chronological order. But Dr. Lente’s testimony was itself impeached by that of Daniel T. Ames, a witness for the plaintiff, who, upon the book being exhibited to him, testified to his opinion as an expert in handwriting that all of the entries in the book, consisting of about thirty-four pages, were made on one and the same occasion and not on the several dates on which the entries respectively purported to have been made; that the handwriting indicated that it was all made under the same conditions and surroundings, and that it was barely possible for any person to write thus on two or more distinct occasions.

For all of the reasons above mentioned, we are of the opinion that the several motions to dismiss the complaint and the motion for a new trial on the minutes were properly denied. The case to which counsel for defendant refers us, Hotis v. N. Y. C. & H. R. R. R. Co., 25 St. Rep., 525, differs from the present in that in the Hotis case the evidence of the identity of the car upon which Elaintiff claimed to have been injured with the one shown to ave been in good order was complete, and the preponderance of the evidence in favor of the identity of the cars. Hence, there the verdict for the plaintiff was properly set aside.

The exceptions urged by counsel for appellant to the admission of the testimony of Ames, an expert in handwriting, to the effect that the alleged record of Dr. Lente's consultation with plaintiff, and his inspection of plaintiff’s person, were not made when Dr. Lente said they were, and when the record itself purported to have been made, have been examined by us. These exceptions were not based upon any objection to Ames’ competency as an expert, or the competency of the opinions of experts in handwriting concerning the subject matter of the inquiry, but wholly upon the objection that as Dr. Lente, when examined as a witness for the defendant, had only been asked concerning the entry in the record of the fact of plaintiff’s visit, his testimony on cross-examination, with respect to the entries of the visits of other patients, was concerning collateral matter and conclusive upon the plaintiff under the rule laid down in Gandolfo v. Appleton, 40 N. Y., 533, that a party may not contradict a witness concerning collateral matter brought out by the party seeking to contradict. We do not, however, agree with appellant’s counsel that the testimony ■concerning the entries of consultations by Dr. Lente with persons other than plaintiff was of collateral matter. On his direct examination Dr. Lente had testified that his consultation with plaintiff occurred on April 24, 1887, and that he was enabled to fix the date with certainty because he had made a record of the consultation on the day it occurred. Having itself brought out the fact of this alleged record of Dr. Lente’s consultation with plaintiff, defendant could not thereafter urge its immateriality or irrelevancy, and prevent cross-examination concerning it On cross-examination it appeared that Dr. Lente claimed to have made the record of his consultation with plaintiff in a book regularly kept for such purposes, and in which he entered the fact of Ms consultations with patients in chronological order, each on the ■day of its occurrence. Ames’ testimony, therefore, that the entries ■concerning consultations purporting to have taken place before the one with plaintiff and those purporting to have been made on subsequent dates were in fact all made on one and the same occasion, had the effect of contradicting Dr. Lente’s statement, on Ms direct examination, that he made the entry concerning his consultation with plaintiff on April 24, 1887, and so tended to disprove the alleged consultation altogether, or at least the alleged substance of it, as to which Dr. Lente had testified that he relied for his recollection to some extent upon the record. Kouba v. Horacek, 24 St. Rep., 990, and mem. in 27 Abb. N. C., 375.

Hone of the other exceptions wMch appear in the case require us to reverse the judgment

Judgment affirmed, with costs.

Daly, Oh. J., concurs.