author: Titus, C. J.

text:
    Caroline Krummel, Resp’t, v. John V. Thomas, as Administrator, etc., et al., App’lts.

      (Buffalo Superior Court, General Term,

      Filed November 14, 1893.)

    Gift—Inter vivos.
    A deposit with a third person, with a declaration of intent to give in the event of the donee surviving tile donor, is not such a delivery of the thing as to constitute a valid gift inter vivos.
    Appeal from a judgment in favor of plaintiff.

      Arthur W. Hickman, for app’lt Thomas; Strong & Brendel, for resp’t.
   Titus, C. J.

The questions raised by this appeal arise on the case containing exceptions taken before the judge at trial term, without a jury. It appears that on the 3d day of September, 1886, the plaintiff deposited in the Buffalo Savings Bank the sum of $30. The money was deposited by her daughter Lucy Kruminel, who, under the direction and instruction of her mother, deposited it in the name of Clara L. Krummel, another daughter, and who signed Clara’s name to the signature book of the bank. Various deposits were made from September 3, 1886, to January 1, 1890, in the savings "bank, in the name of Clara, by the daughter Lucy, and credited in the bank book. The money deposited was the money of the plaintiff, which in part was received by her from her children, who were living with her, for their care and support, she keeping house, taking care of the family, and they working and contributing from their earnings, and in part from money which a deceased son left, and which also belonged to the plaintiff. Clara, the daughter, married the defendant, Thomas, on the 28th of November, 1888, and died April 17, 1890, leaving her husband and one child surviving. The action is brought by the plaintiff against the administrator and the savings bank, to compel the payment to the plaintiff by the savings bank of the money on deposit to the credit of Clara.

According to the testimony of Lucy Krummel, the person who made the deposits in the savings bank, Clara, the person in whose name the deposit was made, did not know of the deposit in her name until about two years after the first deposit was made. She was then told of it by the plaintiff, and at that time all of the money had been deposited. She further testifies that the plaintiff told Clara that, in case of her (the plaintiff’s) death, she (Clara) should have the money, because she was not as strong as the res-of the children. The bank book was always kept by the plaintiff in her own room, and was in her possession at the time of Clara’s death. It was not allowed to be taken out of her room, and she had no knowledge that Clara ever had seen the book before the time above mentioned. If the plaintiff’s evidence is to be believed, the situation was this: The plaintiff had caused moneys to be deposited in the savings bank in the name of Clara, without her knowledge; that she had always kept the bank book in her possession, and, after the money had been deposited, Clara saw the bank book, and the plaintiff then told her that, in case of her (plaintiff’s) death, she should have the money. These facts are substantially found by the trial judge, and- we think are fully warranted from the evidence. There was no intention, then, to give Clara the money unless she should survive the plaintiff, which contingency did not happen, by reason of the death of Clara before her mother. It seems to me that on this statement it cannot be claimed that there was any delivery of the money to Clara, or any intent on the part of the plaintiff to give it to her until after her (the plaintiff’s) death. A gift inter vivos, to be valid, must be accompanied by a delivery in jpraesenti. A deposit with a third party, with a declaration of intent to give in the event of the donee surviving the donor, is not such a delivery of the thing as to constitute a valid gift inter vivos. The gift must be absolute, accompanied by an immediate delivery, and cannot be made to take effect in future in possession. Young v. Young, 80 N. Y. 422. The case of Beaver v. Beaver, 117 N. Y. 421; 27 St. Rep. 405; seems to be decisive of the questions here raised. It was there held that an intention to give, unaccompanied by a delivery, did not constitute a valid gift, and that the deposit of money in a bank in the name of another is not of itself sufficient evidence of a gift inter vivos. It does not, in the absence of other facts, divest the owner of the title, and such owner may still exercise dominion over the money, and withdraw his deposit.

Some exceptions are taken to the findings of the court, and to its refusal to find upon certain questions of fact. We do not think they are of such a character as to affect the merits of the question involved. Some of. the exceptions to the findings are to mere conclusions of fact, instead of statements of the fact, and most of the requests to find were found by the trial judge in his findings, which accompany the judgment. We think, therefore, the judgment should be affirmed, with costs.


source: Caselaw Access Project

author: Hatch, J.

license: Public Domain

text:
    Charles J. Close, Pl’ff, v. Sidney G. Sherwood, Def’t.

      (Buffalo Superior Court, General Term,

      Filed November 14, 1893.)

    Corporations—Transfer of stock.
    Upon a sale of stock, where the vendor is personally liable to a creditor of the corporation, the purchaser becomes liable for the claim of such creditor.
    Judgment was entered on a verdict directed by the court in favor of the defendant, and plaintiff moved for a new trial on a case and exceptions ordered to be heard in the first instance at the general term.

      Simon Ileischman, for pl’ff; D. 0. Sticlmey, for def’t.
   Hatch, J.

This case differs from those which have preceded it.

The facts upon which plaintiff relies are not changed, bht the attitude of the defendant is. While admitting that he is a stockholder, he claims and establishes that he became such stockholder by transfer of stock from two prior stockholders after the debt which is now sought to be enforced against him had been incurred, in consequence of which he claims exemption from liability. At the close of the trial both parties moved for the direction of a verdict. Plaintiff’s motion was denied; defendant’s motion was granted; and, to both rulings, plaintiff excepted. The ground of the court’s holding is in harmony with defendant’s claim; Assuming that no new contract was entered into, or debt created, after defendant became a stockholder, I do not think such fact, in view of defendant’s source of title to the stock, is sufficient to exempt him from liability for the debt sued upon, to the extent of his holding. In Johnson v. Underhill, 52 N. Y. 212, Judge Folger, in speaking for the court, said:

“ The vendee does, in all cases of sale and transfer to him, take the shares with a right to all the benefits attached to or growing out of them ; and this from the mere fact of the sale and transfer. And so, from the same fact, he takes them subject to all the burdens and liabilities attached to or growing out of them; and so the law will imply a duty, obligation, or promise, from him to the vendor, that these burdens and liabilities shall not come upon the latter.”

In this case the stock had been transferred, but the transfer bad not been entered upon the books of the company; and the vendor, after paying judgments recovered against him by reason of his appearing to íe a stockholder upon the books of the company, was permitted to recover of his vendee.

It is not denied but that this action can be maintained against defendant, if he was, by the transfer, obligated to protect the vendor. While the Johnson case is not directly decisive of the question now presented, yet, in principle, the same result is reached. The liability is established by the ownership of stock, and the extent of the holding measures the limit of recovery. When the purchaser takes the stock, he derives from the purchase all the benefits which attach to it, in the form of dividends, property rights, and right of control. As it has, prior to the transfer, represented the extent of liability in the hands of the owner as stockholder, its character is not -changed by the transfer, and the liabilities attach to the purchaser. He takes it subject to them, and must be considered as assenting thereto. This view is announced, upon a state of facts in all respects similar to the present question, by the supreme court of Ohio, Brown v. Hitchcock, 36 Ohio St. 667, and the Johnson case is there cited to sustain the principal laid down. The supreme court of Illinois reaches a like conclusion. Root v. Sinnock, 120 Ill. 350. Tucker v. Gilman, 121 N. Y. 189; 30 St. Rep. 689, is not in conflict. There the defendant had, in good faith, parted with title to the stock before the debt was contracted ; and, because the trial court rejected testimony tended to prove such fact, its judgment was reversed. So far as the case bears upon tbe proposition here, it is in favor of plaintiff’s contention, for it asserts that the liability to respond to the demands of creditors of the corporation rests upon those who are its stockholders. The case of Tracy v. Yates, 18 Barb. 152, does not present the question now here. The stock, in that case, was issued directly by the corporation to the holder, subsequent to the incurring of the debt, and it was held that she was not a stockholder, within the meaning of the section, when the debt was incurred. Phillips v. Therasson, 11 Hun, 141, presented the same question as the Tracy case. This case is different. Here, the stock was issued. It represented a liability created after issuance, which, having once attached thereto, continued.

It is not necessary to consider the other questions in the case, as this must lead to a reversal of the ruling. Exceptions sustained, and motion for a new trial granted.


text:
    Robert Freeland, Resp’t., v. John E. Robie, Impleaded, etc., App’lt.

      (Buffalo Superior Court, General Term,

      Filed November 14, 1893.)

    Bond—Const able .
    An action may be maintained on an ordinary constable’s bond, though the constable has been appointed by a municipal court to served in it, and his duties have thereby been enlarged.
    Appeal from a judgment in favor of plaintiff.

      Thomas Gary Welch, for app’lt; Wallace Thayer, for appellee.
   Hatch, J.

For the most part the questions raised by this appeal have been disposed of adversely to the defendant in Levin v. Robie, 58 St. Rep. 109; (decided at this term.) The bond here sued upon is given under the Revised Statutes, (2 Rev. St. [8th Ed.] p. 890,) and is the ordinary constable's bond. Ho point is made but that Alters was constable, appointed for the Fourth ward of the city, and by the judges of the municipal court for service as constable in that court. It has already been noticed, in the Levin case, that the appointment by the judges to perform duties in the municipal court did not change his status as constable of the Fourth ward. Heither did the acts which he was called upon to do by the municipal court differ in kind from those ordinarily required of a constable. In People v. Vilas, 36 N. Y. 464, Judge Grover wrote: “ A legislative alteration of the duties of an officer do not discharge his sureties so long as the duties remain appropriate to the office.” Among the reasons assigned for this conclusion was that the legislature had power at any and all times to change the duties of officers. The existence of this power is presumed to be known to the officer and the sureties in the bond as though the power was incorporated therein. Later cases support the doctrine of this case. Board of Education v. Quick, 99 N. Y. 141. The duty imposed upon the constable in the present instance was precisely such in character as he would have been called upon to perform had the execution issued upon the judgment proceeded from a justice’s court. As the bond covers such act, it matters nothing that the other respects the constable’s duties were substantially changed and enlarged, for the surety is not sought to be charged for such acts, but only for an act contemplated and within the terms and scope of the bond. Board of Sup'rs v. Clark, 92 N. Y. 395. Ho other points are raised than such as were disposed of in the Levin case. The judgment appealed from affirmed, with costs. All concur.


author: White, J. Hatch, J.,

text:
    Frederick W. Humble, Resp’t v. Thomas H. McDonough, App’lt.

      (Buffalo Superior Court, General Term,

      Filed November 14, 1893.)

      I. Pleading—General denial.
    An answer that “ defendant says that, upon information and belief, he denies each and every allegation,” is, in substance, a general denial on information and belief.
    2. Same—Sham.
    A denial upon information and belief, which raises a material issue, cannot be stricken out as sham, though false.
    3. Same—Municipal court.
    Under the charter of Buffalo, the only way of objecting to the sufficiency of a pleading is by demurrer.
    4. Same—Judgment.
    Under such charter, judgment cannot be rendered without proof, except in case of a verified complaint and default of defendant.
    Appeal from a judgment in favor of plaintiff.

      J. W. Bussell, for app’lt; Robert F. Schelling, for resp’t.
   White, J.

This is an appeal by the defendant from a judgment of the municipal court of Buffalo, entered against him May 27, 1893, for $40.80 damages and $4:85 costs. The complaint was probably intended tp allege a cause of action arising out of the employment of the plaintiff as an architect by the defendant, and the rendition of services by the plaintiff for the defendant under such employment. The defendant interposed an answer, the language of which, so far as it is material to the question here, is: “ The defendant says that, upon information and belief, he denies each and every allegation in the said complaint contained.’’ If the words “says that" were omitted from the answer, it would, unquestionably, be a strict and literal denial upon information and belief, within the provisions of the Code; and, as it stands, I think it is, in substance, a general denial upon information and belief, and good, within the cases of Bennett v. Leeds Manufacturing Co., 110 N. Y, 150; 16 St. Rep., 841, and Jones v. Ludlum, 74 N. Y., 61, which overrules the case of Arthur v. Brooks, 14 Barb., 533, and others relied upon by the respondent as authorities in his favor.

As the charter of the city of Buffalo, however, regulates and prescribes the form of pleadings in the municipal court, and the practice to be pursued in case a pleading is there claimed to be defective or insufficient, its provisions must govern and determine the disposition to be made of this appeal. The charter provides that in an action in the municipal court the complainant shall state, in a plain and direct manner, the facts constituting the cause of action, and that the answer may contain a denial of the complaint, or of any part thereof, and also notice, in a plain and direct manner, of any facts constituting a defense or counterclaim. It further provides that either party may demur to any pleading of his adversary, or to any part thereof, when it is not sufficiently explicit to enable him to understand it, or if it contains no cause of action or defense although it be taken as true, and, if the court deem the objection well taken, it shall order the pleading to be amended, and, if the party who interposed it shall refuse to amend, the defective pleading shall be disregarded. Where the parties appear by attorney, as they did in this case, the pleadings are to be in writing. The charter further provides that, when no answer is interposed, the plaintiff cannot recover, without proving his case, except in cases where a verified complaint is filed with the clerk when the summons is issued, and served with it on the defendant, as was done in this case. It will be observed that the only mode of objecting to the sufficiency of a pleading, under the charter, is by demurrer, whereupon the court is charged with the duty, if the demurrer seems to be well taken, of ordering the defective pleading amended, and, if the party ordered to amend refuses to do so, the defective pleading is thereafter to be disregarded. The record which has come up to us in this case fails to show that any demurrer was interposed to the answer, or that any amendment of the answer, was ordered by the court. It is stated, simply, that the plaintiff objected to the answer, and that the court sustained the objection, whatever that may signify, and, of its own motion, struck out the answer. There does not appear to have been any attempt to comply with the statute in reference to the answer complained of, while, in order to deprive the defendant of his right to rely upon it as a defense, it was necessary to comply strictly with the law.

It is strenuously urged by the counsel for the respondent that the-defendant was bound to deny the allegations of the complaint absolutely, and that he was not at liberty to deny them upon information and belief, on the theory that the truth or falsity of the facts alleged in the complaint must necessarily be true or false to the personal knowledge of the pleader. The rule sought to be applied in this respect should not prevail, because (1) the complaint does not state who performed the work, labor, and professional services mentioned therein, nor does it state that the plaintiff is an architect; (2) the complaint does not state for whom the alleged work was done; (3) the complaint does not state, as a fact, that the plaintiff ever performed any work for anybody ; (4) the complaint does not state that the defendant ever promised to pay the plaintiff anything. The promise by the defendant, according to the complaint, was to pay for work done by an unnamed person as an architect, and in our opinion the complaint lacks those positive and direct allegations of fact which make it proper to require an absolute denial at the hands of the defendant, and deprive him of the privilege of denying them upon information and belief. The case at bar is not like that of Hentz v. Miner, 18 N. Y. Supp. 880; 46 St. Rep. 636; or Allen v. Patterson, 7 N. Y. 476, where, in one case, an account between the parties was annexed to, and made a part of, the complaint,- and in the other there was an allegation that the defendant was indebted to the plaintiff for goods sold and delivered by the plaintiff to the defendant at his request. If the answer had been permitted to stand, it may be that evidence would have been admissible, under the issue formed by it, to show a cause of action in favor of the plaintiff, but in our opinion the form of the complaint was not such as to deprive the defendant of the right to answer it on information and belief. Strictness in pleading may be upheld by many decisions of the courts, but none, I think, will justify the strictness contended for by the plaintiff, as against the defendant in the case before us. The judgment appealed from should be set aside, and a new trial of the cause ordered in the municipal court of Buffalo, with costs of this appeal to abide the event.

Hatch, J.,

(concurring.) The complaint in this action alleges that defendant is indebted to the plaintiff in the sum of $40 for' work, labor, and professional services performed by plaintiff at defendant’s special instance and request, for which he promised and agreed to pay, but has failed therein, although demand for pavment has been made. A copy of the complaint, duly verified, was served with the summons. On the return day of the summons, the defendant appeared and interposed a verified answer, in these words: “The defendant above named, by Fred Greiner, his attorney, for his answer to the cqmplaint herein, says that, upon information and belief, he denies each and every aliegation in the said complaint contained,”—and demands judgment dismissing the complaint, with costs. The plaintiff objected to the answer. Upon what ground does not appear,—presumably, however, that it is defective in form, and sham. The record recites that the objection was sustained, and an adjournment had for one day. Upon the adjourned day, the record states that the parties appeared. “Answer stricken out.” Judgment was thereupon entered in favor of the plaintiff against the defendant for the sum claimed in the complaint, with interest and costs. The only proof made by the plaintiff, aside from the verified complaint, was the amount of interest accrued upon the demand. From, these facts, several questions 'arise, upon which there is much lack of harmony in the cases.

It is now settled that a denial upon information and belief is authorized by section 500, Code Civil Proc. Bennett v. Leeds Manufacturing Co., 110 N. Y. 150; 16 St. Rep. 841; Wood v, Raydure, 39 Hun, 144. The requirement of the municipal court act is the same as the Code of Procedure, respecting denials in the answer. Charter, § 460. The form of the denial contained in the answer has been the subject of much discussion, and many opinions, in the supreme court, where, for the most part, the present form of denial was held bad. The case of Jones v. Ludlum, 74 N. Y. 61, overruled the construction of the supreme court, and holds such form good as a denial. A like view is also announced in Bliss, Code PI. § 325; Espinosa v. Gregory, 40 Cal. 58. It is doubtless true, as claimed, that the allegations of the complaint show a personal transaction with defendant, of which he must have personal knowledge. He must know whether or not he requested plaintiff to perform work for him, for which he promised to pay. The answer, therefore, which the Code requires in such cases, where the denial can be truthfully made, must be upon personal knowledge; and where the pleader adopts the other forms of denial, under such circumstances, he renders himself liable to a criminal prosecution. Wood v. Raydure, 39 Hun, 146; Wayland v. Tysen, 45 N. Y. 281. Prior to the Code of Procedure, the general issue, pleaded at common law, could not be stricken out as sham, although shown by affidavit to be false. The general denial authorized by the Code is the equivalent of, and substitute for, the general issue. It should therefore be subject to the same rules. The power to strike out an answer as sham, in a court of record, is provided for by Code Civil Proc. § 538. This was derived from section 152, Old Code ; the precise languge being used, except the words “ and irrevelant ” are omitted. These sections confer no new power upon the court. They simply declared' the pre-existing power. Wayland v. Tysen, supra. While neither of the Codes defined what constitutes a, sham answer, yet the decisions are uniform that a false answer is a sham answer. Under this power, the supreme court declared that, where the falsity of the answer was clearly apparent, it would be stricken out as sham, and this rule was applied to a specific denial, which was struck from a verified answer. People v. Mc Cumber, 27 Barb. 632, affirmed 18 N. Y. 315; McCarty v. O Donnell, 30 N. Y. Supr. Ct. 431. Several other cases may be found adopting this rule. The question again arose in Wayland v. Tysen, 45 N. Y. 281, where it was held that no power rested in the court to strike out a. general or specific denial in the answer, even though it be shown false in fact, but that the power was limited to affirmative defenses. This decision went, in part, upon tiie ground that the power, if exercised, would deprive defendant of his constitutional right to trial by jury. Followed in Thompson v. Erie Railroad Co., 45 N. Y. 468 ; Farmer's Nat. Bank v. Leland, 50 N. Y. 673. In the latter case the answer was a denial upon information and belief. Numerous other cases have followed these decisions. The reasoning of the Wayland Case seemed clear enough to settle the question decided, but many powerful and cogent arguments have been advanced to limit this decision to those cases where it did not clearly appear that the answer was false in fact, and to grant relief by striking out where it did so appear, otherwise, the law would sanction a palpable evasion. These arguments have had their effect, and have produced decisions in conformity therewith. In Webb v. Foster, 45 N. Y. Supr. Ct. 311, it is held that, where it clearly appears that there could not have been any information or belief, a specific denial in that form would be stricken out as sham. This decision held the Wayland Case applicable to affirmative'defenses, only. It makes no mention of Fellows v. Muller, 38 N. Y. Supr. Ct. 137, (previously decided,) although the latter is in direct antagonism, and one of the judges of the court participated in both decisions. In Sherman v. Boehm, 13 Daly, 42, Daly, J., held that where it appeared than an answer denying upon information and belief was in.fact false, either by affidavit, or from the record itself, it will be stricken out as sham, under the authority of Code Civil Proc. § 538. Wayland v. Tysen, was limited to cases where the falsity did not'clearly appear. Allen, J., concurred. Larremore, J., dissented, upon the authority of the Wayland case, Sherman v. Boehm, 7 Civil Proc. R. 39. In Reynolds v. Craus, 16 N. Y. Supp. 792; 42 St. Rep. 624; the general term, second department, recites numerous cases, stating that they have been overruled by the Wayland and Thompson cases, 45 N. Y. 281, 471, so far as they hold that a general denial can be stricken out as sham, and they say “the only variation from the rule, as laid down in these cases, has been where a party has been examined before trial, and has admitted the falsity' of the answer.” Yet in Schultze v. Rodewald, 1 Abb. N. C. 365, Judge Barrett denied an application to strike out a denial in an answer as sham, where the defendant, on examination before trial, admitted the allegations of the complaint. The Reynolds case is in error in stating that Kay v. Whittaker, 44 N. Y. 565, is overruled by the Wayland case. It is not in conflict, and was decided after the latter by the commission of appeals. The statement of the syllabus in the Kay case is also misleading, as the answer there struck, out was payment—an affirmative defense. In Henry Huber Co. v. Mc Allester, 21 N. Y. Supp. 767; 49 St. Rep. 880; the city court of New York, general term, held that the power existed to strike out, under Code, § 538, but it should be sparingly exercised. Bliss, Code PI. § 326, lays down the rule that when the fact is evidently within the knowledge of the pleader, or when he has the means of information, the specific denial appropriate to either condition cannot be made, and, if made, should be disregarded, as false or evasive. There are other cases, and much obiter dicta, which tend to support the doctrine above noted. This construction of the law does not go unchallenged. Wood v. Rayaure, 39 Hun, 146, seems to imply that the remedy for a false answer is a criminal prosecution. Neuberger v. Webb, 24 Hun, 348, in speaking of the denials authorized by the Code, says :

“ This mode seems to be allowed even in cases where the knowledge of the truth of the averment thus controverted is supposed to be possessed by the party making the denial.”

In Robert Gere Bank v. Inman, 5 N. Y. Supp. 457; 24 St. Rep. 160; it appeared that the answer was interposed for delay. In a well-considered opinion, reviewing many authorities, by Follett, J., in which Martin, J., concurred, this conclusion is reached:

“ The result of the case is that an affirmative answer or defense which raises a material issue may be stricken out as sham, but a general or specific^ denial which raises a material issue cannot be stricken out as sham, if pleaded in a form permitted by the Code.5’

In Zivi v. Einstein, 21 N. Y. Supp. 583; 49 St. Rep. 720; the court of common pleas reversed a judgment of the general term, city court, which struck out an answer as sham, approving the rule laid down in Bank v. Inman, supra. This case makes no mention of Sherman v. Boehm, supra, decided by the same court, but by different members. Martin v. Erie Preserving Co., 48 Hun, 82; 15 St. Rep. 614; holds that the power to strike out an answer upon information and belief, as sham, does not exist, even thought the facts constituting the plaintiff’s cause of action are necessarily within defendant’s personal knowledge; that the right to strike out as sham is limited to affirmative defenses. Fellows v. Muller, 38 N. Y. Supr. Ct. 137, reaches the same conclusion as the last case. In Grocers Bank v. O'Rorke, 6 Hun, 20, it was held that the court had no power to strike out a general denial as sham. In Wilson v. Eastman Co., 9 N. Y. Supp. 189; 30 St. Rep. 409; the authority of the last case was sustained by the same court, upon the same grounds. Harvey v. Walker, 13 N. Y. Supp. 170; 35 St. Rep. 765.

All of these cases rest for support upon the Way land Case, and, when that is carefully examined, it seems clearly to say that, “ under the common-law system, the general issue could not be struck out as sham, although shown by affidavits to be false.” If an answer is shown to be false, it can make no difference how the fact appears,—whether by affidavits undenied, or from the record itself. It is none the less the fact that it is false, and the effect is the same. If, when its falsity is established in one way, it cannot be stricken out, how can it when its falsity appears in any other way? The quoted language disposes of the power under the general issue, and the construction given the Codeis equally plain, i. e. “I think that, by the true construction of the section, the power of the court to strike out pleadings was not extended beyond what it was under the pre-existing law.” If the power did not-exist at common law, and the Code has not added any new power, where is it found ? It would seem that it does not exist. Much of the argument in opposition rests upon the apparent sanction of a fraud created by perjury, but the remedy is pointed out, and the-court lays stress upon the fact that vigorous criminal prosecution would effectually stop any abuse. The result of the authorities, and reasons therefor, lead me to the conclusion that where the denial interposed raises a material issue, tendered by the complaint, such denial cannot be stricken out as sham though it be false, and this without reference to how its falsity is made to appear. The power to strike out this pleading failing in a court of record, it must also fail in the municipal court, if it be assumed that power exists therein to strike out a pleading.

The only remedy of relief against a defective pleading provided by the municipal court act or that relating to justices’ courts is a demurrer. Either party may demur to any pleading of his adversary, or of any part thereof, “ when it is not sufficiently explicit to enable him to understand it, or if it contains no cause of action or defense, although it be taken as true.” Charter § 458. Section 2989, Code Civil Proc., confers like power upon justices’ courts. The language is somewhat different, but the substance is the same. It is quite apparent that the defect in the pleading claimed in this case could not be reached by demurrer; it is sufficiently explicit to be understood,—while, if taken as true, it is a perfect defense to the action. It could not, therefore, be disregarded.

The judgment entered is this case was without proof to sustain it. It will be noticed that judgment can only be entered in a case, where the pleading is verified and served, when the defendant fails to answers. Then, and then only, the allegations of the complaint are deemed admitted, authorizing the entry of judgment without proof. Charter, § 461. In all other cases, the party must prove his case. Id. § 458. And even though an answer be disregarded, yet the plaintiff must prove his case; and this is true whether section 458, supra, be held applicable, or the practice in justice courts be invoked. The language of section 3, c. 414, Laws 1881, is, in all substantial respects, like Charter, § 461, except that in the former a demurrer is included. In Oulman v. Schmidt, 35 Hun, 345, a demurrer was interposed to a verified complaint in justice’s court, It was overruled, and leave given to answer. On failure to answer, the court rendered judgment for the full amount of the demand in the complaint, without further proof. The court, on appeal, reversed the judgment, holding that section 3, supra, of the act, was to be construed with section 2891 of the Code, which provided that, if there was a failure to appear and answer, the plaintiff cannot recover without proving his case. This was extended to the demurrer provided for. The only provision for disregarding a pleading, in the municipal court act, is, where a demurrer is interposed and overruled, and the party directed to amend, if the party fail to" amend, the defective pleading shall be disregarded. Charter, § 458. Even then the plaintiff must prove his case. Id. The result is that the judgment appealed from must be reversed, with costs.

Titus, C„ J., concurs in result.


text:
    David Levin, Resp’t, v. John E. Robie et al., App’lts.

      (Buffalo Superior Court, General Term,

      Filed November 14, 1893.)

    1. Municipal court—Constable’s bond.
    Municipal court has jurisdiction of an action on a constable’s bond for failure to levy and return an execution.
    S. Same.
    Such bond is an ordinary constable’s bond.
    -3. Same.
    It may be sued upon by an individual in his own name and without leave.
    ■4. Same—Execution.
    A municipal court execution may be directed to any constable of the county.
    Appeal from a judgment in favor of plaintiff.

      Thomas Gary Welch, for app’lts; Swift, Weaver & Marcus for . -appellee.
   Hatch, J.

The first claim made by defendant why the judgment rendered against him should be reversed is that the court had no jurisdiction of the subject-matter of the action. The action -seeks to charge defendant Eobie, as surety, with liability for the failure of his principal, a constable, to levy an execution upon property of the judgment debtor, and make return thereon as required by law. The constable was duly appointed by the judges -of the municipal court of Buffalo from the body of constables elected for the several wards of the city as required by section •471 of the Eevised City Charter. Chap. 105, Laws 1891. Said ■constable executed and filed a bond, as required by § 472, charter, which, so far as important here, reads:

“ He shall before he enters upon the duties imposed by this act, execute and file with the city clerk a bond with sureties, for the faithful performance of his duties, and for the payment to the person entitled thereto of all sums of money which may come into his hands from any execution or any process delivered to him.”

This section abridges in phraseology, but in substance it is the same as the prior statute respecting bonds executed by constables in courts of a justice of the peace. 2 Rev. St. (8th Ed.), p. 890, § 21. In the latter bond two things are required: First, payment over of money collected on execution; second, liability in damages for his acts as constable. The first clause of the quoted section of the charter provides for the second contingency above noted, while the remainder of the section quite closely follows the language of the Eevised Statutes. It is not questioned but that justices of the peace had and have jursidiction of actions brought to recover damages for breaches of the bond, either for failure to perform duty, or neglect to pay over money collected. This jurisdiction was formerly derived from the Revised Statutes. Warner v. Racey, 20 Johns. 74; Dutton v. Kelsey, 2 Wend. 615; Skellinger v. Yendes, 12 Wend. 306. Now it is derived from the Code of Civil Procedure. Jones v. Newman, 36 Hun, 634; Sutherland v. McKinney, 10 N. Y. Supp. 876.

The municipal court of Buffalo was designed to supplant courts of justices of the peace for this city, and to supply a further need in the judicial machinery. The act creating said court, as amended, Laws 1891, chap. 105, provided that it should possess such jurisdiction in civil actions and proceedings, and exercise the same powers aud jurisdiction, as has been heretofore exercised by justices of the peace in the city, except as provided in the act. The act then pz-oceeds to gz’eatly enlarge the jurisdiction of the court both as to amount involved and subject matter; but nowhere that I can find in the act has jurisdiction been,limited or changed with respect to constables’ bonds. It is said that a new office was created by the appointznent of the constable to execute process and mandates of the court, and that an additional and new bond was required of the officer, of which the court is not given specific jurisdiction of a cause of action for a breach thez’eof. No new office is created. The person appointed must be a constable, and, when appointed, he does not cease to be a constable, but performs the duties of one. True, his obligation as to amounts and objects are somewhat enlaz-ged, but in all that he does he acts by virtue of his office as constable, and in no other capacity. The only change is that he is designated to serve upon a particular court. As this service increased the obligation ordinarily attaching to the office,'the legislature saw fit to impose the conditiozz of fui’ther security. But this security is still neither more or less than an ordinary constable’s bond, covering the proper performance of duty; and, while the channel of the bond is somewhat changed, yet the obligation thereby created is for the same acts, and has the same object in view. The language1 conferring jurisdiction upon the municipal court with respect to these bonds is the same in substance as that from which the jurisdiction of the justice’s coui't is derived. Tliez-e is nothing inconsistent in the municipal court act and the sections of the Code relating to courts of justices of the peace, so far as the present question is concerned. On the contrary, it seems to have been the intent of the legislature to make the sections of the Code creating liability a part of the law applicable to the municipal court. The language of section 456, Charter, is ample in scope to embrace it, and nothing following it creates a limitation. The language of the Code (section 3041) is, “may maintain an action in. his own name, upon the instrument of security given by the constable and his sureties.” This section creates a cause of action for failure to pay over moneys collected, and the language includes such an instruznent as was executed in the present case, by viz-tue of the municipal court act.—Section 1880, Code Civil Proc., and subsequent sections in ai'ticle 2, have no application to this case. The bonds there provided for are official bonds of the respective officers, running to the people of the state, as required by the provisions of the Revised Statutes, (2 Rev. St.) [8th Ed.] p. 1048, § 18 ; Id. p. 1061, § 67 ; Id. p. 1065, § 87 ; and are penal in their character. The general provision embraced in section 1888, Code, is limited to such bonds as are required to be given to the people, and such are its express.terms. The bond in the present instance is not required to be given to the people of the state; it is simply a bond with sureties for the faithful performance of duty. Section 472, Charter. It could run to the people, the judges of the court, the city clerk, or to any person entitled to maintain an action thereon. Dutton v. Kelsey, 2 Wend. 615. It does not partake of the characteristics of a penal bond, but is in the nature of an agreement between the constable and his sureties and the person aggrieved by the act of the constable. The essential thing is that the agreement contain the substance of the statute. Upon such bonds no leave to sue is necessary. People v. Holmes, 2 Wend. 281; Lawton v. Erwin, 9 Wend. 234; Jones v. Newman, 36 Hun, 634. The court, therefore, had jurisdiction of the subject-matter of the action, and the bond sued upon complies with the statute.

It is further claimed that the execution is void, for the reason that it is directed to any constable of the county of Erie. The constable who received the execution in this case answers this description. He is a constable of the county of Erie, and his appointment by the judges of the municipal court does not deprive him of this status. Besides, the municipal court act is silent as to whom the execution shall be directed. It provides (§ 458) for the issuance of an execution. We are therefore relegated to the practice of justices’ courts for the proper direction of it. § 3025, Code Civil Proc., is mandatory that the execution must be directed generally to any constable of the county. The direction observed this authority, and was proper.

The judgment was sufficiently proved. The docket was produced and read in evidence. This showed a judgment. The return contains a transcript of the judgment as entered in the docket This transcript is not signed by a judge of the court or its clerk, and is not therefore properly authenticated; but this is cured by defendant’s stipulation that a true copy of the docket might be certified by the stenographer of the court, which was done. Code Givi IProc. § 938, provides that the docket book of the justice shall be evidence before him of any matter required by law to be entered by him therein. § 939 applies the same rule to an authenticated transcript. The docket and transcript, or either, ave prima facie proof of the judgment. Stephens v. Santee, 49 N. Y. 38; Bradner v. Howard, 75 N. Y. 417; Belgard v. McLaughlin, 44 Hun, 557; 9 St. Rep. 38.

The complaint states a cause of action against the constable for failure to levy the execution and make the amount of the same, there being sufficient property for that purpose. By amendment upon the trial, an allegation was inserted that said constable did not make return of the execution within five days after the return day thereof. The proof upon the trial tended to establish, and was sufficient for that purpose, that execution was issued upon the judgment proved, and delivered to plaintiff’s attorney, Wade. While the attorney does not say in terms that he delivered the execution to the constable, yet he testifies to facts from which such inference clearly arises. He states in substance that he saw the •constable, explained the circumstances to him, informed him of defendant's place of business, the character of. the property, and that it, the execution, was collectible. He was thereafter informed by the constable that he had been induced not to make the levy by the payment of $10 on the execution. This happened during the life of the execution, and was consequently admissible as a part of the res gestae. Wade further testifies that he subsequently saw the constable, urged upon him the necessity of making the levy, and had several appointments to meet him for that purpose, which the constable failed to keep, and never made a levy. While the proof is not entirely clear upon the subject of the return of the execution, yet it was sufficient for the court to find that it had not been returned, and the time for that purpose had expired. Upon these facts, as there was no proof that the execution could not be made, plaintiff became entitled to recover of the constable the whole amount of the execution, with interest. Code Civil Proc. § 8039. It would seem to follow that, as the constable failed to properly perform his duty and make the execution, there was .a breach of the bond, creating a liability against the surety for the damages sustained. People ex rel. Comstock v. Lucas, 93 N. Y. 588. The evidence would have authorized the judge to find that the damages equaled the amount of the execution. It is not therefore essential to determine whether or not the declarations of the constable as to the amount he had received upon the execution was admissable against the surety or not. It is enough to say that defendant is not prejudiced thereby, and the merits of the action remain unaffected, as plaintiff might have recovered a much larger sum. Code Civil Proc. § 3063. Ho substantial error being found, the judgment is affirmed, with costs. All concur.


author: White, J.

text:
    Laura Wooden, Pl’ff, v. Western New York & Pennsylvania Railroad Company, Def’t.

      (Buffalo Superior Court, General Term,

      Filed November 14, 1893.)

    1. Master and servant—Risk.
    The servant, without knowledge as to what the determination of the master will he, does not assume the risk of the selection of unsafe methods and instrumentalities, made by the master as the exigencies of the business demand at the moment of entering upon the particular part of tho business then in hand.
    3. Same—Burden.
    In such case, the master must prove that the servant knew or was bound to know, in time- to enable him to decline to continue m service, that the master would select unsafe methods and instrumentalities.
    Plaintiff was nonsuited, and moves for a new trial on exceptions ordered to be heard in the first instance at general term.

      Harlow C. Curtiss, for the motion; John C. Milburn, opposed.
   White, J.

The plaintiff is the widow of George W. Wooden, who was killed at or near Parker’s station in the state of Pennsylvania, January 3, 1890, while working as a brakeman on one of the defendant’s trains of freight cars, in consequence of the train leaving the track while descending from what is known as “Keating Summit ” on the line of its railroad. The case has been twice tried, the first time before Judge Titus and a jury in May, 1891, when the plaintiff was nonsuited, and the case was sent to the general term in the first instance on exceptions taken by the plaintiff during the progress of that trial. That nonsuit was set aside, and a new trial ordered by the general term. Wooden v. W. N. Y. & P. R. R. Co., 16 N. Y. Supp. 840; 43 St. Rep. 218; Beckwith, who was then chief judge writing an opinion, in which it was held that in the business of taking the ill-fated train over the mountain when Wooden, the brakeman, lost his life, Goodwin, the conductor, was the alter ego of the defendant, and that the evidence in the case required its submission to the jury. After the retirement of Judge Beckwith from the bench, the defendant moved for a reargument of the case, and on that motion the author of this opinion wrote in favor of granting it, on the ground that, according to the record, the relation which existed between Goodwin and Wooden was that of coservants, and that the decision which had been made by the general term in that respect was erroneous. The motion for a reargument was denied. Wooden v. W. N. Y. & P. R. R. Co., 18 N. Y. Supp. 768; 46 St. Rep. 77; Judge Hatch writing an opinion in which the law as expounded by Judge Beckwith in ordering a new trial was adopted as the law of the case; so that it has been twice solemnly decided by this court that the relation which existed between Goodwin and Wooden was that of master and servant, and not that of fellow servants, and that the evidence given by the plaintiff on the first trial required the submission of the case to the jury. A second trial was had before Judge Hatch and a jury in December, 1892, and the plaintiff was again nonsuited. She now seeks another trial on exceptions taken during the progress of the first one, and sent here for hearing in the first instance.

That the action is well brought by the plaintiff, as widow of the deceased, and that the complaint states a good cause of action, has been adjudicated by the court of appeals. Unless, therefore, there is absent from the record on which the motion for a new trial is now made some evidence essential to make out a cause of .action in favor of the plaintiff, which the former record contained it is difficult to see why, under the two decisions of the general term of this court, already referred to, the case should not have been submitted to the jury on the last trial in conformity with the opinions of Judges Beckwith and Hatch in granting the motion to set aside the first nonsuit, and denying the motion for a reargument of that motion. The evidence adduced by the plaintiff upon the the second trial seems to me to have been fully as satisfactory to establish a cause of action against the defendant as that given upon the first trial. For the purposes of this motion it may be assumed that on the first trial the evidence would not have justified the jury in finding as a fact that the deceased brakeman knew, or ought to have known, of the rules and regulations adopted and promulgated by the defendant in reference to the management of trains in taking them over this mountain where Wooden lost his life, and that such fact appeared conclusively in the case on the last trial, although that would seem to have been a fair question for the jury on the first trial on the evidence of Goodwin, who testified, in substance, that at the time of the accident there was a standing order which had been posted for quite a length of time on bulletin boards at various points along the line, regulating the business in question, and leaving it to the judgment of the conductor as to whether he should take his train over as made up, or ask leave to detach a portion of it, or call for extra help. While something was said by the court on the last trial to the effect that on the first trial there was some evidence that the brake shoes were greased, or came in contact with oil which liad dripped from the tanks, and thereby reduced the friction between the shoe and the rail, yet the substantial ground on which the case was withheld from the jury seems to have been, in the language of the judge who presided at the trial, that— “ The employes had notice in regard to talcing the train over from the order, and having notice of that fact, Wooden knew that the authority was vested in the conductor to determine whether the train would [“ should ”] be taken over or not; and, having knowledge of these conditions equally with the conductor, and he chose to go over under theses circumstances attempted to take the train down the mountain, he must be held to have assumed these risks as an employe.”

I am of the opinion that the rule of law invoked by the learned trial court against the plaintiff is not applicable to this case. It is certainly well settled that, where a servant is informed of a risk involved in his work, and continues in it with that knowledge, ordinarily he must be held to have assumed the risk himself. In this case it is true that the deceased knew of the authority vested in the conductor of the train by the defendant; in other words, he knew that the conductor was made by the defendant the sole judge as to whether or not it was safe to take the train as made up at Olean over Keating summit, and he knew that if the conductor deemed it safe it would be done that way; but it does not appear that the deceased knew, or had any opportunity to learn, all the facts upon which the conductor would make his determination. It does not appear that he knew or could have known anything concerning the character, condition, or construction of the engine, tender, or any of the cars in the train except those particular ones on which he was called to labor; nor does it appear that he knew or could have known anything whatever as to the character or amount of freight in the train, except as to the part of the train on which he worked; nor does it appear that he could have exercised the privilege of declining to go over the mountain on the train if he had been so disposed ; nor was he charged with the duty of inspecting or ascertaining the condition of the track. As to all these things it was the duty of the defendant to see that the track, the train, and the machinery, and the appliances and help for handling it were all suitable, safe, and sufficient for the purposes of the undertaking, and its failure so to do would constitute actionable negligence in favor of one injured in consequence of such failure. In my judgment it was not the duty of the deceased to have informed himseíf as to these facts on which the determination of the defendant was to be or was based in deciding to take the whole train over the mountain as it attempted to. do, and then to leave the train while it was going either up or down the mountain, and thus avoid the accident which caused his death, or voluntarily go in the performance of his duty as a brakeman, and assume that risk. If, in determining to do and in doing what was done in attempting to take the train over the mountain, Wooden and Goodwin had been fellow servants, the rule of law adopted by the trial court would have been the correct one. To repeat the proposition herein announced as what I conceive to be the true one in language adapted in terms to the facts of this case, a servant assumes the risks involved in the use of unsafe methods and instrumentalities of which he has or is bound to have knowledge; but where, as in this case, the methods and instrumentalities were to be selected by the master as the exigencies of the business might demand at the moment of entering upon the particular part of the business then in hand, and the safety of such methods and instrumentalities depend on the selection then made by the master, the servant, without knowledge as to what the determination of the master was to be, did not assuipe the risk of a selection of the unsafe methods and instrumentalities by the master. Furthermore, it was incumbent upon the defendant to prove that the deceased knew or was bound to know in time to enable him to decline to continue in service that the defendant would select methods and instrumentalities which were unsafe, and there is no such proof in the record. It will not be profitable to review or discuss at length the decisions cited by the respective counsel in support of the propositions of law contended for by them if I am right as to the effect of the evidence given on the two trials, and if, as I believe, a recovery by the plaintiff is not barred on the ground that the deceased assumed the risk which resulted in his being killed. There can be no serious disagreement as to the rules of law which ordinarily apply as between master and servants and fellow servants. My conclusion is that the motion for a new trial should be granted, with costs to abide the event.


text:
    Charles J. Close, Resp’t, v. Richard K. Noye, App’lt.

      (Buffalo Superior Court, General Term,

      Filed July, 1893.)

    COKSTITUTIOKAL LAW—COKPOJtATIONS.
    Section 54, chap. 688 of 1892, is unconstitutional as to a creditor whose debt was incurred before the act was passed, though the right to amend charters of corporations was reserved by the legislature.
    Appeal from a judgment in favor of plaintiff.

      At the time plaintiff’s debt was incurred the liability of defendant as a stockholder of' such corporation existed to an amount equal to the amount of stock held by him for every debt of the corporation until the whole amount of capital stock was'fully paid. After the debt was incurred, Laws 1892, c. 688, § 54 was enacted, providing that stockholders should be liable for corporate debts only until the whole amount of capital stock “issued and outstanding at the. time such debt was incurred shall have been fully paid.”

      Á. Moot, for app’lt; Simon Fleischman, for resp’t.
   White, J.

I am for an affirmance of the judgment appealed from solely on the authority of the case of Hawthorne v. Calef, 2 Wall. 10, which seems to- hold that, notwithstanding the reservation by the legislature of the right to amend charters of corporations, the act of 1892 is unconstitutional as to the plaintiff in this action.

Titus, G. J., concurs.' Hatch, J., did not sit.


author: Van Wyck, J.

text:
    A. H. King Company, Resp’t, v. John H. Seed, Impleaded, etc., App’lt.

      (Brooklyn City Court, General Term,

      Filed November 27,1893.)

    Parties—Bitmonra in.
    Section 452 of the Code does not authorize an order in an action of replevin, on the application of plaintiff, making a person, who claims an interest in the property replevied, a party defendant.
    Appeal from an order denying a motion by defendant, Seed, to vacate the order making him a party.

      Barnum & Rebhann, for app’lt; McGuire & Low, for resp’t.
   Van Wyck, J.

This is an action of replevin commenced by plaintiff against the defendants Luengene and Eichard Eoe, to recover possession of certain furniture which plaintiff alleges he is the absolute owner of, and which is in the possession of Luengene, who refuses to return it to the plaintiff. There is no claim that Eichard Eoe was intended to represent any one in the matter whose name was unknown, or who had any interest in the litigation. The plaintiff, by virtue of sections 1694-1699 of the Code of Civil Procedure, required the sheriff to replevy the furniture; giving the undertaking according to section 1699 for the return of the property to defendants Luengene and Eoe if possession thereof is .adjudged to them, or if the action abates or is discontinued, and for the payment of damages awarded to them. The sheriff took possession of the furniture, and thereafter one John H. Seed, not a party to the action, made the usual claim upon the sheriff for the property, according to the provisions of section 1709, who refused to deliver up the same to either Seed or the plaintiff, and Seed then commenced an action against the sheriff therefor. Thereafter, the plaintiff applied for and secured an order ex parte, making Seed a party defendant, on the ground that he claimed some interest in the property. The amended and supplemental complaint is the usual one in replevin against defendant Luengene, the allegations of which have no reference to Seed, except that the fourth clause alleges “ that the defendant John H. Seed claims some interest in the foregoing goods and chattels.” Seed moved to vacate the order making him a party, and from the order denying the same this appeal is taken. Before Seed was so made a party defendant, this was an action at law to determine the alleged controversy as to whether the plaintiff was entitled to possession of the property as against Luengene. If section 452 of the Code of Civil Procedure only applies to those actions which were formerly known to the pleader as suits in equity, it will not help the defendant in his contention. But, even if it does apply to actions at law, the first clause thereof does not authorize the ordermaking Seed defendant, for a complete determination of the controversy between plaintiff and defendant Luengene could have been had without the presence of Seed, or affecting his rights. The second clause thereof would not authorize the plaintiff to make the application, but it is a provision for the express purpose, only, of enabling the person not a party to make it. These views seem to be fully sustained by Chapman v. Forbes, 123 N. Y. 532, (see pages 538-540 ;) 34 St. Rep. 351. We think the order making Seed a party ought to be reversed, with $10 costs and disbursements to be taxed, and motion granted, with $10 costs.


author: Osborne, J.

text:
    Margaret Coby, Resp’t, v. Frank Ibert, App’lt.

      (Brooklyn City Court, General Term,

      Filed November 27, 1893.)

      1. Pleading—Amendment.
    A complaint alleging a cause of action for negligence may be so amended as to set up a cause of action for maintaining a nuisance, where a recovery on the latter, will bar an action on the former, ground.

      2. Service of papers—Admission.
    The court may deny a motion to vacate an admission of service of an amended complaint, made on the ground that it was given inadvertently, where the defendant’s attorney could not have been misled.
    Appeal from two orders entered in the case.

      Horace G. Lansing, for app’lt; Moffett & Kramer, for resp’t.
   Osborne, J.

Defendant has appealed-from two orders made in this action under the following circumstances: The cause came on for trial on April 6, 1893, and, a motion having been made to dismiss the complaint, the court directed that plaintiff have leave to withdraw a juror, and that the complaint be dismissed, unless, within twenty days, plaintiff obtains leave at special term to amend her complaint. On the twentieth day thereafter, and without having obtained leave of the court, plaintiff’s attorney personally served on one of the defendant’s attorneys an amended complaint, and due service thereof, in writing, was admitted by defendant’s attorneys. On the same day said amended complaint was returned by defendant’s attorneys, with a statement endorsed thereon that the same was returned on the ground that leave to serve the same had not been granted at special term. Thereupon, plaintiff’s attorney returned said amended complaint, with a statement indorsed thereon that the same was returned because due admission of its service had been given, in writing, when first served. Defendant's attorneys then moved, on affidavit, to vacate said admission of service, and to set aside the service of .said amended complaint. The affidavit on which such motion was based alleged that the admission of service was given inadvertently,without examining it, in the hurry of business, and in the belief that the amended complaint so served was the leave which the plaintiff was directed to obtain at special term before serving an amended complaint. The answering affidavit of plaintiff’s attorney denied that defendant’s attorneys had been misled, but, on the contrary, alleged that at the time he served the amended complaint the question of defendant’s liability was discussed by him and one of the defendant’s attorneys; that after such discussion he served the amended complaint, distinctly stating that it was such amended complaint, and asked for admission of service, and thereupon the attorney signed the admission of service, which was as follows: “ Due service of a copy of the within amended complaint is hereby admitted. Dated April 26, 1893.” After argument, the court, at special term, by an order entered May 9, 1893, denied the motion to vacate the admission of service.

We think that the learned judge sitting at special term exercised a proper discretion in denying defendant’s motion. It cannot be questioned that defendant had a right to waive the provision directing plaintiff to apply for leave before serving an amended complaint. There was no denial of the matters alleged in the opposing affidavit of plaintiff’s attorney as to what took place at the time the amended complaint was served, and we fail to see how defendant’s attorney could have been misled. He knew, or ought to have known, that, when he admitted “due service of a copy of the within amended complaint,” he was admitting that the same was properly served in the action, and we do not think that he should now be permitted to withdraw such admission.

After the above-mentioned order of May 9,1893, had been made and entered, and pending this appeal therefrom, defendant moved to strike out the amended complaint served as aforesaid “ upon the ground that the same is not an amendment of the original complaint.” This motion was based upon the original complaint and the amended complaint, and also upon an affidavit of one of defendant’s attorneys, in which, after stating the proceedings in the action, it is alleged that the “ paper purporting to be an amended complaint is not an amendment of the original complaint in this action, but is a complaint founded upon entirely different facts from those set forth in the said original complaint, and alleges a different cause of action from that in the said original complaint set forth.” After argument, an order was made and entered at special term on May 29, 1893, denying said motion to strike out said amended complaint. From this last mentioned order, defendant likewise appeals. We have carefully examined the original and the amended complaint, and we are of the opinion that the order denying the motion to strike out the amended complaint was properly made. In both complaints, it clearly appears that plaintiff seeks to recover damages because defendant wrongfully permitted a large timber to be and remain upon the sidewalk in front of his premises, over which she fell, and sustained severe injuries. Her cause of action is the recovery of damages for injury sustained by her in consequence of the alleged wrongful act of the defendant, in obstructing the free use of the sidewalk, Whether the ground of defendant’s liability is for his negligence, or for maintaining a nuisance, does not, we think, change the cause of action. That still remains the same. The allegations in both original and amended complaint are substantially the same. About the only difference between the two is that in the original complaint it is alleged that the defendant permitted the obstruction to remain on the sidewalk, while in the amended complaint it is alleged that the defendant had put or caused the obstruction to be put on the sidewalk, and that the same "was a nuisance. We fail to see that a new or different cause of action is set up in the- amended complaint. The learned counsel for the appellant cites Davis v. N. Y., L. E. & W. Railroad Co., 110 N. Y. 646; 17 St. Rep. 172; as authority for his contention. We think that case supports our views. The court there says that a fair test to determine whether a proposed amendment sets up a new cause of action is, “would a recovery on the original complaint be a bar to a recovery under the amended complaint?” Applying this test to the present case, we have no hesitation in determining, that, if plaintiff had recovered damages on the original complaint for the injuries sustained by her-in falling over the obstruction on the sidewalk complained of, in consequence of the negligence of the defendant, such recovery would be a bar to any new action by her to recover further damages for the same injuries on the ground that defendant had been guilty of maintaining a nuisance. The order of May 9, 1893, should be affirmed, with costs and disbursements to be taxed. The order of May 29, 1893, should be affirmed, with costs and disbursements to be taxed.


author: Clement, C. J.

text:
    Anne Gaffney, Resp’t, v. Brooklyn City Railroad Company, App’lt.

      (Brooklyn City Court, General Term,

      Filed November 27, 1893.)

    Negligence—Street railroad.
    Where, at a transfer station, the company uses chains when it does not permit passengers to enter a car, the fact that they are down on the side next the other track, is an invitation to passengers to enter the car on that side.
    Appeal from a judgment entered on the verdict in favor of plaintiff, and from an order denying a motion for a new trial.

      Morris & Whitehouse, for app’lt; James & Thomas H. Troy, for resp’t.
   Clement, C. J.

The questions invdlved on this appeal seem, to be mainly of fact. The plaintiff, and two witnesses called in her behalf, testified that they were passengers on a train of the Ft. Hamilton line, which stopped in Third avenue, in this city, at Twenty-fifth street; that the passengers were given transfer tickets, and many of them walked a short distance, to take a Hamilton avenue car standing on the same track ; that many of the passengers got on the car, which was an open one, on the side nearest the sidewalk, but that ten or fifteen went on the other side; that plaintiff was about to get upon the car step, when a car came down on the other track at a rapid rate of speed, and struck her. The only witness for the company who saw the injury was the motorman. He testified that the plaintiff made a dart from behind the car, and jumped for the second stanchion, about four-feet from the rear of the Hamilton avenue car, and fell under his-car. It appeared that the company used chains on the sides to prevent passengers from boarding cars, and that the chains, at the time, were down on both sides of the car. The place in question was a transfer station, and, as the company used chains when they did not permit passengers to enter a car, the fact that the same were down on the side next the other track was an invitation to passengers to enter the car on that side. We are also of opinion that the motorman, when he saw that passengers were-entering a car at the station, was bound to exercise more care than when passing another car in motion, and particularly when he knew that the company invited passengers to enter on the side of the car near the other track. The weight of evidence was on the side of plaintiff, and we can see no legal reason why the verdict of the jury should be disturbed.

Judgment and order denying new trial affirmed, with costs.


author: Clement, O. J.

text:
    Mollie Rottenberg, an Infant, by Guardian, etc., Resp’t, v. Henry Segelke, App’lt.

      (Brooklyn City Court, General Term,

      Filed November 27,1893.)

    1. Negligence—Driving
    The driver of a vehicle, if his view is unobstructed, should, with ordinary care, know whether his horse knocks down children in the street.
    2. Same—Contributory.
    A person has the right to assume that a driver will not turn a sharp-corner and run over her without warning.
    Appeal from a judgment in favor of plaintiff.

      Benjamin W. Downing, for app’lt; Klein & Rendich, for resp’t.
   Clement, O. J.

This case was properly submitted to the jury and the verdict for plaintiff should hot be disturbed. The plaintiff, an infant of the age of eight years, was-on her way to school, accompanied by her sister, four years older. While in the act of crossing Graham avenue, at Stagg street, both children were knocked down by a horse attached to a wagon which came up Stagg street at a rapid rate, and suddenly, without warning, turned into Graham avenue. The wagon was driven up Graham avenue to the second house, where there is a watering trough for horses, and stopped, when a man came up, and said to the driver, “You ran over a child,” to which the driver replied, “I don’t know nothing about it,” and “I didn’t run over her.” The driver admitted that he did not know that his horse had thrown down the two-children, one 8 years old, and the other 12, who are presumed to be of the height of children of such age. On this admission alone, the plaintiff was entitled to go to the jury on the question of his negligence. Moebus v. Hermann, 108 N. Y. 349; 13 St. Rep. 648. The driver of a vehicle on a street should be watchful, arid, if his view is unobstructed, certainly, with ordinary care, should know whether his horse on the same occasion knocks down two children in the street. The driver claimed that the snow falling at the time blinded his view. If so, then he was bound to exercise greater care. Even on this question he was contradicted by the witnesses for plaintiff, who say that the storm of snow was light.

On the question of contributory negligence,-the testimony was strong in favor of the plaintiff. There is no duty, as matter of law, upon a person crossing the street, either at a cross walk or elsewhere, to look up and down to avoid an approaching wagon. Moebus v. Hermann, supra. In this case the plaintiff had the right to assume that the driver would not turn a sharp corner and run over her, without warning. The proof that the wagon in question belonged to the defendant is ample, and the counsel for defendant at the trial, conceded the point, judgment and order denying new trial affirmed, with costs.


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    Margaret Byrne, as Administratrix, etc., App’lt, v. Brooklyn City & Newtown Railroad Company, Resp’t.

      (Brooklyn City Court, General Term,

      Filed November 27, 1893.)

    Costs—Condition.
    Costs, taxed and paid to plaintiff as a condtion of obtaining leave to ■withdraw a juror, cannot be re-taxed in case of recovery by him.
    Appeal from an order striking out certain items of costs.

      J. Stewart Boss, for app’lt; Morris d? Whitehouse, for resp’t.
   Osborne, J.

This case first came on for trial on February 9, 1893, and, a jury having been impaneled, and the case opened on behalf oLthe plaintiff defendant asked leave to withdraw a juror, on the ground of surprise. After argument the application was granted, on the condition and stipulation that the defendant “pay to plaintiff or her attorney all the costs and disbursements in the action to date,” to be taxed by the clerk. Said costs and disbursements were duly taxed, and were paid by defendant. In the costs were included the following items: Before notice of trial, $25; after notice, $15 ; trial fee, $30; term fees, $50. Subsequently the case came on for trial again, and plaintiff obtained a verdict in her favor, and her costs and disbursements were taxed by the clerk at $270.79, and there were included therein the above-mentioned items, amounting in all to $120. On a motion for retaxation, an order was made at special term striking out said disputed items, on the ground that they-had already been paid, and plaintiff now appeals ■ from that order. The learned counsel for the plaintiff here contends that the costs paid as a condition for the adjournment were in the nature of a penalty, and as a compensation to the plaintiff for the loss, annoyance, and delay incurred by her, and that, on a recovery by plaintiff after a trial, she had a right to recover a full bill of costs ; that to now deduct the disputed items would result in depriving the plaintiff of the compensation intended as an offset to the favor granted her adversary. We do not think that the contention of the appellant can be maintained. The order granting leave to withdraw a juror was conditioned on “the payment of all the costs and disbursements in the action to date.” Nowhere in the order is there any intimation that the amount to be paid was in the nature of a penalty, or other than “ costs and disbursements,” as provided by the Code of Civil Procedure. Plaintiff benefited by the order granting leave to withdraw a juror, in that she was paid at once, and in advance of a trial, all the costs that had then accrued; while, if left to abide the event, their payment would have been contingent on her ultimate success, and she might never have become entitled to them. The effect of the order was to compensate plaintiff for all that had gone before, as if she had succeeded on the case as it then stood. Thereafter a fresh start, as it were, was made, and defendant became liable for only such costs ultimately accruing as might be taxed by the plaintiff in the event of her succeeding in the action. The weight of authority is decidedly in favor of our construction of the order granting leave to withdraw a juror. Andrews v. Cross, 17 Abb. N. C. 92; Schmidt v. Mackie, 9 Wkly. Dig. 228; Seymour v. Ashenden, 13 Civ. Pro. 255; Skinner v. White, 69 Hun, 127; 52 St. Rep. 737; are all cases supporting our view. The cases relied on by the learned counsel for the appellant are, with one exception, not in point. In Lennon v. McIntosh, 19 Abb. N. C. 175, defendant's default was opened “ on payment of $20 costs,” and, on plaintiff obtaining a verdict, he was allowed to tax a full bill of costs, on the ground that the $20 were allowed by way of penalty. In Dovale v. Ackerman, 11 N. Y. Supp. 5; in Donovan v. Board, 1 Civ. Pro. 311; and in Havemeyer v. Havemeyer, 48 N. Y. Supr. Ct. 104; the party who had paid costs, as a condition for favor granted, ultimately succeeded, and was allowed a full bill of costs; while, in the case at bar, the party who has received • the costs is seeking to recover them a second time. The case of Cohu v. Husson, 13 Daly, 334, is in support of the contention of the learned counsel for the appellant, but it stands alone, and we cannot concur with the reasoning by which the decision in that case was reached. The order appealed from should be affirmed, with costs.


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    Josie McKinley, Resp’t, v. Metropolitan Life Insurance Company, App’lt.

      (Brooklyn City Court, General Term,

      Filed November 27, 1893.)

    Evidence—Insueance.
    In an action on a policy of insurance, the certificate of the attending physician as to cause of the death of the insured, filed with the hoard of health of New York city, is inadmissible.

      Appeal from a judgment in favor of plaintiff.

      Arnoux, Bitch & Woodford, for app’lt; J. Stewart Boss, for resp’t.
   Van Wyck, J.

The plaintiff brought this action to recover on a policy which insured the life of her for her benefit. The verdict was in her favor, and from the judgment entered thereupon, and the order denying motion for a new trial, this appeal is taken. The plaintiff, on the trial, claimed, and gave evidence to establish, that she, at the solicitation of defendant’s agent, only made verbal application to him for the policy. The defendant claimed, and gave evidence to establish, that she made or authorized a written application for the policy, and warranted the truth of the statements therein. The defendant further asserted that the statement that her husband had never been sick was false, in that, at the time, her husband had syphilis, and had been suffering with it long prior thereto. We think the evidence would justify a verdict that no such written application was made. The court charged that, if such written application was made, plaintiff could not recover if, at the time, her husband had or had had the disease already referred to; and this brings us to the consideration of the question whether the court erred in excluding an authenticated copy of the attending physician’s certificate, filed with the board of health of New York city, in which he certified, among other things, that her husband was a married man, and had died of syphilis of four years’ duration. The defendant insisted that the certificate should have been admitted as presumptive evidence of the truth of the recital therein, by virtue of the provisions of 2 Laws 1882, c. 410, § 621. We do not think the legislature had made, or intended to make, the statements of the attending physician to the board of health in relation to the sanitary history of his dead patient admissible in evidence to establish presumptively that the patient had suffered with a disease for four years prior to his death, in an action between an insurance company and the beneficiary of a life insurance policy. It would be a plain violation of the general rule of inad-' missibility of hearsay evidence. It would substitute the statements of a person out of court for what he might swear to, for it is just possible that, if this very physician were called, he would disclose that he had only known deceased for a few days before his death, and, as is usual, that he learned of the four-years sanitary history of his patient from some of his friends. To receive this certificate in evidence under such circumstances would be the admission of the repetition out of court by one person of the declarations made by another out of court, and its character and weight would be clearly akin to common rumor. The proper and rational construction of the section (§ 621) in our opinion, is that an authenticated copy of the records of the board of health is admissible, when the records themselves are relevant and admissible according to the existing rules of evidence. This seems to be the view of the court of appeals. A similar question, in reference to the records of the board of health of Buffalo, arose in Buffalo Loan, etc., Co. v. Knights, etc., Ass'n, 126 N. Y. 450; 38 St. Rep. 247. The learned judge writing the opinion says therein, at page 458, 126 N. Y., and at page 251, 38 St. Rep.:

“The statute and ordinance were police regulations, and the records were required for local and specific purposes, and are not public records in such sense as makes them evidence between private parties of the facts recorded. We have found no case-which would justify their admission, in a controversy between private parties, as evidence of the cause of death recently happening, where that became a material inquiry.”

Even if this certificate was admissible as presumptive evidence of recitals therein, it would only extend to those required by § 608, subd. 3, of the act, viz. the name and death of the patient, and the name of the disease causing his death. This section does not require the physician to certify that he bad been diseased for many years prior thereto, or that he was married. Suppose defendant had set up as a defense that plaintiff was not the wife of deceased, it could have urged with equal force the admission of the certificate as presumptive evidence thereof if the physician had certified that deceased was unmarried. For the foregoing reasons we think the judgment and order should be affirmed, with costs.


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    Abel C. Vail, Resp’t, v. Broadway Railroad Company of Brooklyn, App’lt.

      (Brooklyn City Court, General Term,

      Filed November 27, 1893.)

    1. Appeal—Dismissal.
    Where the evidence presents a sharp issue between the parties on many important points in the case, a motion to dismiss the complaint is properly given.
    2. Railroads—Platfobm..
    Section 46 of the act of 1850 applies only to railroads where the motive power is steam, or some power other than horses.
    Appeal from a judgment in favor of plaintiff.

      Moore & Wallace, for app’lt; Thos. K Pearsall, for resp’t.
   Osborne, J.

Plaintiff brought this action to recover damages for injuries alleged to have been sustained by him through the negligence of the defendant’s servants. He obtained a verdict of the jury in his favor, and from the judgment entered thereon, and the order denying a motion for a new trial, this appeal is taken.

It appeared from the evidence in the case that on the 20th of October, 1892, plaintiff took passage on one of defendant’s horse cars near the corner of Fulton street and Alabama avenue, with a view of going to his residence. He was smoking a cigar at the time, and he got on the front platform of the car, and there paid his fare to the conductor. At and just beyond the point where plaintiff boarded defendant’s car there is a network of rails and crossings and switches extending some considerable distance. As the car approached one of these switches or cross-overs, the tongue of the switch being misplaced, the car was suddenly jerked on to the cross-over, by reason of which plaintiff was thrown from the front platform to the street, and thereby received the injuries complained of. There was testimony on the part of the plaintiff that the setting of the switch in question was done by a small boy, (the witness Brown,) who testified that he got off the car, and pushed the tongue of the switch to one side with his hand ; that it was the custom of the boys to so tend switch for the drivers of the cars in that neighborhood, and that they usually received a penny from the conductor for their trouble. Plaintiff’s evidence further tended to show that, while the car was crossing this switch, it was going at a high rate of speed, which was in direct violation •of one of the rules of the company which required drivers to walk their horses while crossing a switch, and that the car, after striking the switch, was some 10 feet on to the cross-over before it was stopped. There was further testimony on the part of the plaintiff ■seeking to show that the rails at the switch were loose, that they were not properly spiked, that the tongue of the switch was worn down, and that these alleged defects contributed to cause the car to be thrown to the wrong track. This testimony, however, as to the boy’s turning the switch, as to the rate of speed of the car, and as to the alleged imperfect condition of the rail and tongue of the switch was denied by witnesses on the part of the defendant.

It is very plain to us, from a careful perusal of all the testimony in this case, that the question of the negligence of the defendant, and of the lack of contributory negligence on the part of the plaintiff, was a question for the jury. Enough was made out by the plaintiff on his side, uncontradicted, to entitle him to a submission of his case to the jury, and it would have been error to have dismissed the complaint at the close of the plaintiff’s case. After the presentation of the defendant’s evidence, there was a sharp issue presented between the parties on many important points in the case, and it was essentially the province of the jury to determine these disputed points. Accordingly, we think that the ■motion to dismiss the complaint at the close of the plaintiff’s case, and which was renewed upon the whole case, was properly denied.

The learned counsel for the defendant further claims that, under the statutes in pursuance of which defendant was incorporated, it was not liable for injuries sustained by the plaintiff while riding on the front platform of one of its cars. Defendant proved on the trial that it was organized under chapter 303 of the Laws of 1858, and that § 6 of said chapter 303 provided that it shall be lawful for said Augustus Ivins solely or with his associates to organize under an act of the legislature entitled ‘An act to authorize the formation of railroad companies and to regulate the same,’ passed April 2d, 1850, and in the event of such organization, all the provisions of said last-mentioned act, except the number of persons designated iin the first section thereof, shall apply to the said grantee and his associates, also except the provisions of § '27 of said act.” Section 46 of the act of 1850, commonly known as the “General Railroad Act,” reads as follows : “Injuries to passengers on platforms, etc. In case any passenger on any .railroad shall be injured while on the platform of a car,' or on any baggage, wood or freight car, in violation of the printed regulations of the company posted up at the time in a conspicous place, inside of its passenger cars, then in the train, such company shall not be liable for the injury ; provided said company at the time furnished room inside its passenger cars sufficient for the proper accommodation of the passengers.” Evidence was offered that there was ample room inside of the car from which plaintiff was thrown, there being but two passengers in it at the time of the accident; and it was also shown on the part of the defendant that certain printed regulations were posted in a conspicuous place inside of the car on which plaintiff was a passenger, and that among these regulations was one to the effect that passengers were not allowed to ride on the front platform with the driver, and that any passenger breaking this rule did so at his own risk. The learned counsel for the defendent earnestly and ably contends that, the defendant having complied with the provisions of this section of the general railroad act, it was not responsible for the injuries which the plaintiff sustained while riding on the platform of the car. After a very careful examination of this question, we have come to the conclusion that the defendant’s contention cannot be sustained. It seems to us after perusing these provisions of the general railroad act, that the section in question is not applicable to a horse railroad. As was said by the court of appeals In re Washington St. Asylum & P. R. Co., 115 N. Y. 447; 26 St. Rep. 504: “Undoubtedly there are some provisions in the act which can only be applied to railroads where the motive power is steam, or some other power than horses ; but that furnishes no argument against the application of any of its other sections to horse railroads.” We are left, therefore, to determine, from the general reading of the section and the context, whether the legislature intended that it should apply exclusively to steam cars, or to horse cars as well. Looking at the section in question, it seems to us very plain that it is intended only to “apply to railroads where the motive power is steam, or some other power than horses.” Reference is made to a passenger riding on the platform of a car, or on any baggage, wood, or freight car, and the printed regulations are to be posted “in a conspicuous place inside of its passenger cars then in the train.” This language and these provisions seem to us to clearly indicate that this section was not intended to apply to horse cars. We cannot overlook the fact that, in our cities, horse cars are crowded night and morning from front to rear, that conductors not only carry passengers on the platforms, without objection or remonstrance, but also collect fares therefrom. It is further a well known fact that smoking is allowed by the street railroad companies on the front platforms, and in this case plaintiff put in evidence rule 10 of defendant’s book of rules and regulations for its employees, conductors, and drivers which is as follows: “Smoking. Smoking on the closed cars is prohibited, except on the front platform.” It certainly would, in our opinion be most inequitable to permit this defendant to shield .itself from any of its liabilities as a common carrier behind the provisions of the above quoted § 46 of the general railroad act, while at the same time it expressly authorizes its drivers and conductors to permit smoking on the front platforms of its cars, and only on its front platforms; to collect fares from its passengers for riding thereon; in short to enjoy all the benefits of its franchises, and to relieve it from all of its obligations as a carrier of passengers in that regard.

The verdict for the plaintiff in this case was for $7,500, and the learned counsel for the defendant has very strenuously contended that the amount of damages is excessive, and that this court should exercise the power vested in it, and reduce the verdict to what the defendant regards to be a more reasonable sum; and we are referred to Morris v. Eighth Av. Railroad Co., 68 Hun, 39; 52 St. Rep. 61; as authority for such action on our part. We are unable to follow the conclusions adopted by the majority of the court in that case, and they seem to us to be in conflict with many other authorities on the subject. It has been repeatedly stated that the assessment of damages by a jury is one of the most useful attributes of the jury system, and it has come to be an almost universal rule that courts will not interfere with the verdict of a jury, unless they can perceive that it is the result of passion or prejudice, or reached by an utter disregard of the principles of law that the court has laid down for the jury’s guidance in determining the case. The verdict in this case seems to us to be open to no one of these exceptions. It was shown that the injuries which plaintiff sustained were painful, severe, and lasting. He was confined to the hospital under surgical treatment for a period of three months, and he is still attended by his surgeon, and still suffers great pain. His leg is permanently shortened. He will always be lame, and, according to the medical testimony, will not be able to stand on his feet all day at any employment, and could really earn his living to better advantage with an artificial foot. In the face of these facts, it cannot be said that the interest on the verdict is more than plaintiff’s earnings, and therefore the verdict is excessive. To so hold would be to ignore any compensation to the plaintiff for his pain and suffering and his being permanently crippled. We are of the opinion that the verdict was not excessive under these circumstances. Even if we thought differently, however, and entertained an opinion that the verdict was a larger one than we ourselves would have awarded if sitting as jurors, that would afford no ground for disturbing the verdict, there being nothing to show that the jury were misled in any way, or were actuated by any improper motive or impulse. None of the other exceptions in the case are tenable, nor do they seem to call for any special discussion. We are accordingly of the opinion that the judgment and order appealed from should be affirmed, with costs.


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    Margaret Byrne, Resp’t, v. Brooklyn City and Newtown Railroad Company, App’lt.

      (Brooklyn City Court, General term,

      Filed December 26, 1893.)

    1. Evidence—Negligence.
    In an action for negligence, evidence of the condition of defendant’s track two months after the accident is admissible, upon proof that the track was in the same condition then as at the time of the accident.
    '2. Witness—Failtjbe to call.
    A/weak case for plaintiff is made strong when a witness, who could contradict it, is not called by the defendant.
    Appeal from a judgment in favor of plaintiff, and from an ■order denying a motion for a new trial.

      J. Stewart Ross, for app’lt; Morris & Whitehouse, for resp’t.
   Clement, C. J.

We are of the opinion that no error was committed by the learned trial judge in the admission of the testimony of Mr Byrne as to the condition of the low spot in the outer "rail on June 28, 1892. Mr. Stewart testified that the track was in the same condition as on April 25, 1892, the date of the accident. Though he never measured the depression of the rail, yet his testimony is to be construed to mean that the rails were in substantially the same condition on the two days, and that no repairs had been made between the two dates, and none up to the day of trial. Mr. Byrne stated that on June 28th the rail at about the middle of the curve was an inch and three-quarters lower than the adjoining one, and that the ends of the rails did not meet by half an "inch, and that if the outer rail was lower than the inner one on a curve, the effect on a car, as it struck such a place on the track, would be to produce a jolt, which effect was repeatedly noticed by Mr. Stewart in riding over the curve. The testimony of Mr. Stewart was the same as that given by Mr. ' Byrne, except that he did not measure the depression of the rail. Testimony similar to that given by Mr. Byrne was held to be proper by the court of appeals in the case of Wooley v. Grand St., etc., Railroad Co., 83 N. Y. 121, 129. Judge Folger there says :

“ A witness, by plaintiff’s counsel, was asked whether the switch, at the time of the trial, was as high as it was at the time of the accident. This is the ground of an exception. We think it was not error to admit the testimony. How it was at the time of the trial, or at any time after the accident, might be got at by actual measurement; and there might be, as there was, dispute as to how it was at the time of the mischance. So testimony that it was to appearance higher or lower at any intervening time was not incompetent, whether of more or less weight.”

We have carefully read the testimony in this case, and conclude that the verdict was not against the weight of evidence. While the statements of one or two witnesses for the plaintiff are open to criticism, and while the-case, at first sight, seems weak, yet our conclusion that the verdict should be upheld is greatly strengthened by the fact that the testimony offered by the defense tending' to show that the tracks from the time of the accident to the date of trial had not been out of repair is also weak. Mr. Stewart, as stated before, testified that the track, at the point in question, was in the same condition on the date of trial—10 months after the accident—as on the day it occurred. We must assume that the attorneys for the company were not surprised at "the testimony of Mr. Stewart, as they made no such claim on the trial. Three drivers for the defense testify that they noticed no jolt when their cars passed over the curve at or about the time of the accident, though one of them (Reilly) admitted that about two weeks before the trial he did notice that there was something the matter with the track at the place in question. That the track was out of repair at the date of trial seems not to have been contradicted. When it was first in that condition was a fair question for the jury.

We think that it is right to assume that the defendant employs men to inspect its track, and also has a superintendent of repairs, and that the defense would have been much stronger if the parties employed to perform the duty of inspection had been called to testify as to the date when the track was first discovered to be out of repair. A party seeking a new trial on the ground that a verdict is against the weight of evidence must satisfy the court that he has called, or explained the absence of, any witness who could contradict the testimony of the opposing party, when the fact in question would be peculiarly within the knowledge of such absent witness. A weak case for plaintiff is made strong when a witness who could contradict it is not called by the defendant. Schwier v N. Y. C. & H. R. Railroad Co., 90 N. Y. 558, 564; People v. Hovey, 92 N. Y. 554; Crary v. Crary, 18 N. Y. Supp. 753 ; 46 St. Rep. 307. If the jury had the right to find from the evidence that the track was in the condition testified to by Stewart and Byrne at the date of the accident, it would seem from a perusal of the case that the other question—whether or not the deceased was thrown off by the jolt of the car, caused by a defective track—was also properly submitted to the jury. The duty, imposed upon a street-railroad company to keep its track in repair and good condition is well settled. It owes such a duty to its passengers, (Gray v. Rochester, etc., Railroad Co., 61 Hun, 212; 40 St. Rep. 715 ; to foot travelers Schild v. Central P., etc., Railroad Co., 133 N. Y. 446; 45 St. Rep. 656; and to drivers of vehicles, Wooley v. Railroad Co., supra.)

Judgment and order denying new trial affirmed, with costs.


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    Hyman Spinrad, Resp’t, v. David Finelite, Impleaded, etc., App’lt.

      (Brooklyn Cily Court, General Term,

      Filed December 26, 1893.)

    Services—Account rendered.
    Where plaintiff, after completing his work, presents his hill, and after-wards itemizes and increases its amount, his recovery, without explanation and proof of mistake, will he limited to the amount of the original
    Appeal from a judgment in favor of plaintiff and defendants Beecher and another.

      George W. Stephens, for app’lt; Alex. S. Rosenthal, for resp’t Spinrad.
   Clement, C. J.

There is no question of law involved on this appeal, amount dispute not justify a discussion of the facts. It is sufficient to say that we have carefully examined the printed record, and conclude that the judgment below is not against the evidence, except in one respect. It appears that the plaintiff rendered a bill to Mr. Finelite, after the work was completed, for $215, and that plaintiff afterwards itemized it, and increased it to $289.50. No explanation is given why the bill was made larger, and there is no testimony on his part tending to show a mistake in rendering the original bill. The judgment in favor of the respondent Spinrad must be modified by reducing his claim to the amount of the bill as rendered.

Judgment in favor of respondent Spinrad modified by deducting the sum of $73, and, as modified, affirmed, without costs. Judgment in favor of respondents Beecher and another affirmed, without costs.

Yak Wyck, J., concurs.