text:
    Frank Guillaume, Respondent, v. The General Transportation Company, Appellant.
    (Argued October 22, 1885 ;
    decided November 24, 1885.)
    In 1876 defendant was engaged as a common carrier in transporting goods from Havre, France, to New York city. On November twenty-third of that year one S., who resided in Gourin, France, having received, in answer to inquiries, information by mail from defendant’s agent at Havre as to the charges and conditions of transportation, and also advices that one of defendant’s steamers would sail on the twenty-fifth, proceeded to Rennes and shipped from there, by rail, to said agent a bag of gold having a label attached, directed to the agent at Havre, with these words : “ To forward to Mr. Frank Guillaume. 152 & 154 Bleckert street, New York, Utica, America.” The gold was received by the agent on the twenty-fourth, and placed on board defendant’s steamer, which sailed on the twenty-eighth. On the twenty-sixth said agent wrote to S., at Gourin, inclosing a hill of lading, which stated that the gold was to be transported to New York and delivered “ to M. Guillaume Frank, 152 & 154 Bleckert street, New York.” The bill of lading contained a clause to the effect that the shipper or agent, by accepting the same, submitted to its conditions. It required two days for letters to go from Havre to Gourin. S. sent no reply to the letter, and took no steps to advise defendant of the erroneous statement in the bill of lading. Another bill of lading was sent by defendant to New York, directed to “ Mr. Guillaume Frank, 152 & 154 Bleckert St., in New York.” It fell into the hands of some person to whom, on presentation thereof, and with the representation that he was Guillaume Frank, the gold was delivered. In an action to recover the value of the goldbecause of defendant’s alleged negligence, Jield, that the bill of lading did not, under the circumstances, constitute the contract, as the shipper, had he objected, could not have reclaimed the property; that the retention of the bill by him did not show an assent to the mistake, and at most the question as to whether there was negligence on his part in not notifying defendant’s agent thereof was one of fact; that defendant was bound to deliver the gold to plaintiff in accordance with the directions on the label attached, or to place it, safely where he could obtain it; and that whether it was negligence on defendant’s part in sending the bill of lading to one not entitled thereto, who by reason tiler' jf obtained the gold, was at least a question of fact.
    Where goods h .ye actually been shipped under an oral contract, the subsequent rece’ t of a bill of lading and neglect of the shipper to point out errors th ein does not preclude him from showing the oral contract.
    Appeal from judgment of the General Term of the Supreme Court, in the fourth judicial department, entered upon an order made the second Tuesday of June, 1883, which affirmed a judgment in favor of plaintiff, entered upon the report of a referee.
    This action was brought to recover of defendant, a common carrier, running a line of steamers from Havre, France, to the city of New York, for alleged negligence resulting in the loss of a bag of gold delivered to it for transportation. The following facts appeared:
    Felix Stenfort, of Gourin, in the department of Morbihan, in France, on the 15th of November, 1876, wrote to defendant’s agent at Havre, known as its “ Chief of Traffic,” for information as to the company’s terms for the transportation of a certain sum of money, etc., and was answered by a letter, dated at Havre, the 17th of November, 1876, stating the charges for the transportation, insurance, etc., and also that in case of the loss of the package the company was responsible for its value, and that there would be a departure on the twenty-fifth then current by the packet-boat France.
    Gourin is over four hundred miles from Havrethere is no communication by railroad or telegraph at or in the vicinity of Gourin, and it takes a letter two days to go from one place to the other. On the 23d day of November, 1876, Stenfort, to reach one of the railroad stations having an express office connected with it, traveled from Gourin to Rennes, and deposited in the express office there 5,000 French francs in gold coins, tied up and ensealed in a linen bag, to which bag was securely tied by a double pack thread and sealed to it with sealing-wax, a tag or label containing an address and direction in the French language, the translation of which is as follows :

      “ Five thousand francs in gold. Value declared.
    “ To Mr. The' Chief of Traffic of the General Transatlantic Company, Havre.
    “ To forward to Mr. Frank Guillaume, 152 and 154 Bleckert “ street, New York, Utica, America.”
    Plaintiff, who resided in Utica, N. Y., was the person for whom the gold was intended.

      The bag with the gold, and the address and direction on it, was received by the defendant at Havre on the 24th day of November, 1876. It was transported to America on the company’s steamer “ France,” which sailed on the 28th day of November, 1876. It safely arrived on the 7th day of December, 1876, was there unladen' and carried to and deposited in the storehouse of the custom-house of the port of New York. The plaintiff at no time received any notice of the arrival of the gold or of the steamer. Four bills of lading, of the same tenor and date, were made out by defendant on the 24th day of November, 1876. One of these was sent on the 25th day of November, 1876, by mail, to the shipper Stenfort, who received and retained it, without notifying defendant of any error therein. The bills of lading stated that there was “ shipped by Stenfort ... a sealed bag containing 5,000 francs in coin . . . to be transported to New York and delivered there or elsewhere within the limits of the jurisdiction of the Custom House of the port of New York . . to M. Guillaume Frank, 152 and 154 Bleclcert street, New York, or to his order.’’ A copy of the manifest was published in two or three commercial papers of the city of New York. The entry in the manifest as to the gold was as follows : “ H. F.—one bag specie. Stenfort. G. Frank, New York.” One of the four bills of lading was sent by the defendant, addressed to “Mr. Guillaume Frank, 152 and 154 Bleclcert street, in New York.” It fell into the hands of some person who, provided with it, and representing himself to be Guillaume Frank, residing at 154 Bleecker street, in New York, called for, received, and carried away the gold.

      F. B. Couderb for appellant.
    The bag of specie was received for transportation under a special contract, limiting the defendant’s common-law liability; and it has fully complied with that contract. (Magnin v. Dinsmore, 56 N. Y. 171; Long v. N. Y. C. R. R. Co., 50 id. 77.) What constitutes a good delivery, to satisfy the exigencies of such a contract, will depend upon the known and established usages of the particular trade and well-known usages of the port of delivery. (Richardson v. Goddard, 23 How. [U. S.] 38; Johnson v. N. Y. C. R. R. Co., 31 Barb. 199; 3 Kent’s Com. 214; Van, Santvoord v. St. John, 6 Hill, 160 ; Chitty on Contracts, 20; Harris v. Dennie, 3 Peters, 304; Fish v. Newton, 1 Denio, 47; Redmond v. Liverpool, N. Y. & P. S. Co., 46 N. Y. 587; Wright v. Boughton, 22 Barb. 561.) As to notice the carrier’s duty is regulated by the ordinary custom of business at the port of delivery. ' (Gibson v. Culver, 17 Wend. 305; Henshaw v. Rowland,, 54 N. Y. 242.) The plaintiff is chargeable with contributory negligence. The only reasonable conclusion from the plaintiff’s case, as he has made it, is that the misdelivery by the custom-house authorities would never have ocburred bnt for the negligence of his own agents. (Shearm. & Redf. on Neg., § 25 ; MacDonell v. Buffum, 31 How. Pr. 162; Brown v. Elliott, 45 id. 187 ; Delafield v. U. F. Co., 10 Bosw. 216; Munger v. T. R. R. Co., 4 N. Y. 349; Milton v. H. R. S. Co., 37 id. 210.) The omission of the word “ Utica,” in the bill of lading, was proper, as the defendant only contracted to transport to New York. (Delman v. C. R. R. & B. Co., 26 Alb. L. J. 389.)

      Chas. L. De Giorgi for respondent.
    The carrier is bound at his peril to obey the direction of the bailor or shipper'as to the disposition to be made of the goods intrusted to him for carriage; and the delivery of the goods to the earner, with direction as to their carriage, his acceptance of them, and the payment of the freight, insurance and all charges thereon in advance, have sufficiently been proved. (Hutch, on Carr., § 12, p. 9; § 89, p. 68; § 763, p. 591; Redf. on Carr., §§ 34, 35, p. 25; Kreuder v. Wolcott, 1 Hilt. 223; Pitlock v. Wells, Fargo & Co., 109 Mass. 452.) It was gross and inexcusable carelessness and negligence, if not premeditated malfeasance, on the part of the defendant company, to insert a wrong or fictitious name and a wrong place of destination in its bills of lading. (Rosebrooks v. Dinsmore, 36 How. 138; Nat. Bank v. Graham, U. S. Sup. Ct., 9. Rep. 533. Even if the defendant had not been a carrier for hire, but had voluntarily sent the bill of lading, the defendant company is still liable for the loss and injury and damage to the plaintiff arising from its carelessness, negligence, recklessness or malfeasance. (Hutch. on Car., §§ 5, 6, 7, 17, 18, 19, 23, pp. 4, 5, 6,12, 13, 15 ; Shiells v. Blackburn, 1 H. Bl. 158 ; Wilson v. Brett, 11 M. & W. 113 ; Coggs v. Bernard, 1 Smith’s Lead. Cas. 293 ; Button v. Osborne, 1 Selw. H. P. 420; Kirtland v. Montgomery, 1 Swan, 452; Gray v. Mo. Packet Co., 64 Mo. 47; Kemp v. Coughtry, 11 Johns. 107; Harrington v. McShane, 2 Watts, 443 ; Nelson v. MacKintosh, 1 Starkie, 237.) The defendant company was bound to deliver this gold to the consignee personally under its bill of lading. (2 Add. on Oont. [3d Am. ed.] 687, § 961; 1 Add. on Torts [Am. note, 1876], 593-595; Hutch, on Carr., §§ 357 to 365, inclusive, pp. 288, etc.; Redmond v. Steamboat Co., 46 N. Y. 583; Price v. Powell, 3 Com. 322; McAndrew v. Whitlock, 52 N. Y. 40; Gleadell v. Thompson, 56 id. 194 ; Sprague v. N. Y. C. R. R. Go., 52 id. 637; Fisk v. Newton, 1 Den. 45 ; Clark v. Masters, 1 Bosw. 177; Rowland v. Miln, 2 Hilt. 150; McKeon v. See, 4 Rob. 449 ; Mierson v. Hope, 2 Sweeny, 561; Zinn v. N. J. S. Co., 49 N. Y. 442"; 15 Johns. 39; 26 Wend. 591; 6 Hill, 586; 45 N. Y. 184; 67 id. 11; M. & G. R. R. Co. v. Copeland, 10 Rep. 625.) Ho fraud, imposition, deception or mistake will relieve or excuse the carrier from responsibility for delivery of goods to the wrong person, either by himself or by his servants, agents or warehousemen at the terminus of his route. (Hutch, on Carr., §§ 344-354; Redf. on Carr., § 103, p. 88; § 318, p. 234; Ostrander v. Brown, 15 Johns. 39; Hawkins v. Hoffman, 6 Hill, 588; Collins v. Burns, 4 J. & S. 518; Houston and T. & C. R. R. Co. v. Adams, 6 Reporter, 793 ; Matteson v. N. Y. C. & H. R. R. R. Co., 76 N. Y. 381; 6 Johns. 170 ; 11 id. 107 ; 42 N. Y. 212; Price v. O. & S. R. R. Co., 50 id. 213.) Depositing the goods in the warehouse of the custom-house of Hew York will not shield the carrier from responsibility for the loss of the gold. U. S..R. S. [2d ed.] §§ 2785, 2809, 2880, 2887, 2888, 2965, 2966, 2971; Redf. on Carr., § 206, p. 166 ; Mc Andrew v. Whitlock, 52 N. Y. 40; Russell v. Livingston, 2 Smith, 515 ; Golden v. Romer, 20 Hun, 438.) Transportation of goods includes safe delivery, and they are at tlie risk of the carrier until delivery is complete. (2 Add. on Cont. [3d Am. ed.], §§ 953, 954, 955, pp. 670, etc.; § 977, p. 713; Redf. on Carr., §§ 24, 25, pp. 18-20; DeMott v. Laraway, 14 Wend. 225; Parsons v. Hardy, id. 215 ; McArthur v. Hurlburt, 21 id. 190; Prices. Hartshorn, 44 Barb. 655; Redpath v. Vaughan, 48 N. Y. 655; Elliott v. Rossell, 10 Johns. 1; French v. B., N. Y. & E. R. R. Co., 4 Keyes, 108 ; Mynard v. S. B. & N. Y. R. R. Co., 71 N. Y. 180; Sunderland v. Westcott, 40 How. 468; Edsall v. C. & A. R. R. & T. Co., 50 N. Y. 661; Curtis v. D., L. & W. R. R. Co., 74 id. 116 ; Alexander v. Greene, 7 Hill, 533 ; Wells v. S. N. Co., 4 Seld. 375 ; Faulkner v. Hart, 82 N. Y. 413.) The bill of lading cannot be taken as the contract between the consignor or shipper and the carrier. (Bostwick v. B. & O. R. R. Co., 45 N. Y. 712; Coffin v. N. Y. C. R. R. Co., 64 Barb. 379; Sunderland v. Westcott, 40 How. 468 ; Jones v. Ennis, 18 Hun, 452; Shiff v. N. Y. C. & H. R. R. R. Co., 16 id. 278.) Taking all the circumstances of this case into consideration and adding to it the non-accounting for the gold by the defendant’s agent or manager in New York, and the spurious hill of lading, conversion or embezzlement of the property may be inferred. (Stevens’ Dig. Crim. Law, 248; Redf. on Carr., § 103, p. 86 ; Carpenter v. Man. L. Ins. Co., 21 N. Y. W. Dig. 379.) Evidence of usage is not admissible to contradict or vary what is clear and unambiguous, or to restrict or enlarge what requires no explanation. (Thonpson v. Riggs, 5 Wall. 663; Taylor v. Ketchum, 5 Rob. 507; Baker v. Squire, 1 Hun, 448; Hopper v. Sage, 12 N. Y. W. Dig. 78.) Custom or usage, to be binding on parties, must be known to them, or have .been so long continued, universal and notorious that all persons may be presumed 'to have notice of it. (Redf. on Carr., § 249, p. 202; Wadley v. Davis, 63 Barb. 500; Bassett v. Lederer, 1 Hun, 280; Gallup v. Lederer, id. 284; Boardman v. Gaillard, id. 217; 60 N. Y. 614.)
   Miller, J.

This action is founded upon the negligence of the defendant as a common carrier in failing to deliver to the plaintiff a bag of gold which was shipped at Havre on a vessel of the defendant, in which it was transported to Hew York.

The first question that arises relates to the contract made in reference to the transportation of the bag of gold, and the right of the plaintiff to recover depends very greatly, if not entirely, upon its terms and conditions.

The preliminary negotiations were with one Stenfort, who resided at Grourin, in France, and were conducted by a correspondence with the defendant’s agent at Havre. Upon receiving information in regard to the charges and conditions of transportation, Stenfort, on the 23d of Hovember, 1876, proceeded to Rennes, and shipped from there by rail to defendant’s agent at Havre, a bag containing 5,000 francs in gold, which bag was securely fastened, and having a label sealed to it upon • which he had written the following direction:

“ Five thousand francs in gold.
“To Mr., The Chief of Traffic of the General Transatlantic Company, Havre.
“To forward to Mr. Frank Guillaume, 152 and 154Bleckert street, Hew York, Htica, America.”

The bag of gold, as thus directed, reached Havre on the 24th of Hovember, 1876, and was received by the defendant and placed on board its ship, which was about sailing for Hew York. On the twenty-sixth of Hovember the chief of traffic wrote a letter inclosing a bill of lading directed to Stenfort at Gourin. This bill of lading provided for the delivery of the bag of gold to M. Guillaume Frank, 152 and 154 Bleckert street, H ew York, and among other things, contained a clause to the effect that the shipper, his agent, or the owner, by accepting the same, submitted to the stipulations, conditions or exceptions therein contained. This letter could not have reached Stenfort prior to the twenty-seventh of November, in due course of mail. The defendant’s steamer departed from Havre on the twenty-eighth of November. Stenfort sent no reply to the letter and took no steps to advise the defendant of the erroneous statement in the bill of lading, and it becomes, therefore, important to consider whether under the circumstances this bill of lading constituted the contract between the parties.

As a general rule, when goods are delivered to a carrier for transportation, and before the goods are shipped", a bill of lading or receipt is delivered by him to the shipper, the latter is bound to examine it and ascertain its contents, and if he accepts it without objection, he is bound by its terms; he cannot set up ignorance of its contents, and resort cannot be had to prior paroi negotiations to vary them. To take a case out of this general rule, it must appear that before the delivery of the bill of lading the goods have been shipped, so that the shipper could not have reclaimed them had he objected to the contents of the bill of lading. (Germania Fire Ins. Co. v. Memphis and Charlestown R. R. Co., 72 N. Y. 90.)

This rule, however, has no application where there was a contract which had been acted upon, and where goods had actually been shipped under such a paroi contract, the subsequent receipt of a bill of lading, and the neglect to act thereon did not conclude a party from showing the paroi contract. (Bostwick v. Baltimore & Ohio R. R. Co., 45 N. Y. 712.)

In 72 N. Y. (supra), Rapallo, J., in commenting upon the case last cited, says: Whether he read it (the bill of lading) or not was immaterial, except upon the question whether his retention of it was evidence of an actual consent to vary the contract under which he had shipped the goods. He was in no situation to object to its terms and could not have reclaimed his goods.”

These remarks are peculiarly applicable to the facts presented in the case at bar, as Stenfort was in no situation to object to the wording of the bill of lading, and it is fair to assume that the gold would have been beyond his reach or control before he could have communicated with the defendant’s agent, as the ship had sailed on the twenty-eighth of November, one day at least sooner than he could have notified the agent at Havre of the mistake. (See, also, Hill v. S. B. & N. Y. R. R. Co., 73 N. Y. 351.)

It may be added that Stenfort was informed that the vessel would sail on the twenty-fifth of November, and he received no information to the contrary at any time. He had thus a right to suppose the steamer had sailed wlien he received the bill of lading. The retaining of the bill of lading of itself does not, we think, show an assent to the mistake made in the same. It was a receipt for the gold sent by him, which he was justified in retaining for his own protection. The proof does not show directly that he read it or had any knowledge as to the misdirection which it contained, and within the authorities cited'we think the retention did not make the hill of lading the contract between the parties. The utmost that .can be claimed from the retention, without notifying the defendant’s agent, would be that it was negligence on the part of Stenfort in not communicating to the defendant the error which had been made, and thus furnishing it with an opportunity to correct the same by cable to New York if the ship had already left Havre. The return of the bill of lading could not have been of any benefit to the defendant except in this manner, and it is at least very questionable whether it would have been regarded as of sufficient importance to require any such degree of attention and vigilance. It is a reasonable intendment that the defendant’s agent in New York would have taken care to see that the bag of gold was delivered to the person entitled to the same and in no way placed it in the power of an entire stranger to claim and dishonestly take possession of the plaintiffs property.

Under the circumstances presented, the question whether there was negligence, which contributed to the loss of the bag of gold on the part of Stenfort in not ascertaining the mistake in the bill of lading and advising the defendant’s agent thereof, was one of fact for the consideration of the referee. He has found no such negligence; neither do we think, in view of the evidence, that such a finding would have been justified.

The direction upon the bag of gold and not the bill of lading, being the contract between the parties, the defendant was lawfully bound to deliver the same to the plaintiff, who was the person named therein, or to place it safely where he could obtain possession of it.

As a general rule, if for any reason the consignee does not appear to claim the goods, or does not receive them, it is the duty of the carrier to provide a proper place of deposit; or, in case of imported goods, subject to duty, to see that they are in proper custody. (Redmond v. Liverpool, N. Y. & Phila. S. Co., 46 N. Y. 578.)

It is proved that after the arrival of the defendant’s steamer at New York and upon the same day, a permit or order was applied for and obtained to send her cargo to the custom-house warehouse, and the goods thus passed under the control, to a certain extent, of the custom-house officers. We are unable to see that the act of the defendant, in this respect, was wrongful or in any way affected the rights of the parties. The defendant had an undoubted right to make this disposition of the steamer’s cargo, while it was not relieved from the responsibility devolving upon it as a common carrier, in exercising superintendence over the property intrusted to it and in caring for and protecting the property from being lost or improperly disposed of. In the discharge of its duty the defendant attempted to notify the owner of the bag of gold of its arrival in New York by sending a bill of lading directed to .Guillaume Frank, at 152 and 154 Bleckert street, New York, and a publication was made in two papers in the city of New York containing a notice of the arrival of the steamer, which notice was a copy of the manifest of .the vessel, and the entry therein relating to this bag of gold was as follows: “ H. F., one bag specie, Stenfort, G. Frank, N. Y.”

The bill of lading sent to New York fell into the hands of some person who presented it to the officer of the custom-house, and representing himself to be Guillaume Frank he obtained the bag of gold. This result was caused by the act of the defendant in sending the bill of lading to a party who had no interest in it and was not entitled to it. But for the information thus communicated it may fairly be inferred that the gold would never have reached the party who appropriated it to his own use and the plaintiff would have received the same.

As the bill of lading was not the contract between the parties there was'no authority to send it to the person to whom it was directed. If the direction on the bag was of such a character as to advise the defendant’s agent of the party for whom it was intended, or to put it on inquiry as to whom that party was or where he resided, then it was either negligence, or a fair question whether it was not such negligence, in thus sending the bill of lading, to be determined by the referee. The direction was to the plaintiff, and after his name and street address, and on the next line, were the words “Hew York, Utica.” While it is apparent that the word “Utica” should have been before “ New York,” it is equally clear that Hew York is not in Utica, and any person familiar with the geography of the State would at once determine that “Hew York ” should have been placed after “ Utica,” and that the direction meant the city of Utica, in the State of Hew York. These two words being there in juxtaposition there was at least sufficient to suggest an inquiry as to what place was intended, and any such inquiry would have resulted in ascertaining the true residence of the party for whom the bag of gold was intended and to whom it was directed. Any other construction would leave the word “Utica” without any meaning whatever and render it entirely useless and of no account.

' Persons engaged in the transaction of business of this character, where many names and directions are used and given, should exercise ordinary care in determining what was really intended, and it would seem they would not be authorized to disregard the name of a well-known city within the State where the business was done. In so doing in this case, the defendant was clearly not astute in detecting the meaning of the direction even although it may be regarded as obscure and indefinite. Even if the omission to notice such a mistake or to exercise proper judgment in determining what was intended may not be regarded as negligence fer se, it would certainly present a question of fact as to the defeñdant being chargeable with negligence. The referee has found substantially that negligence existed in this respect, and that the defendant was guilty of inexcusable negligence in the performance of its contract, in that it sent a bill of lading to some person other than the real consignee and owner, and thereby placed it in the hands of a stranger and swindler to obtain the gold, and it cannot be said that the resfilt arrived at was not sustained by sufficient evidence. In thus furnishing the means to a stranger to deprive the plaintiff of the money which belonged to him, the defendant was clearly liable in this action and the decision of the referee should be upheld.

As the exercise of ordinary diligence would have enabled the defendant to determine what the direction on the bag was, it cannot be said that the plaintiff was chargeable with negligence in the direction which contributed to the loss of his money.

The misstatement made in the notice published as to the name of the plaintiff, while it may have induced some person to seek to obtain the gold, is not shown to have had that effect, and hence it is not important to consider whether that also can be regarded as negligence on the part of the defendant.

Various objections were urged to the findings of the referee and to his refusals to find as requested. Upon a careful examination we are unable to find that any material error was committed by the referee in any of these rulings.

Other points are raised, but the views which we have expressed upon the questions already discussed render their consideration unimportant.

The judgment should be affirmed, with costs.

All concur.

Judgment affirmed.


source: Caselaw Access Project

author: Danforth, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v. Guisseppe Guidici, Appellant.
    (Argued October 23, 1885;
    decided November 24, 1885.)
    Errors upon a criminal trial can be made available in this court only by exception duly taken on the trial. This rule is not changed by the provision of the Code of Criminal Procedure (§ 527), authorizing the Supreme Court on appeal in a criminal action to grant a new trial where the judgment is against evidence or law, although no exceptions were taken on the trial.
    Where upon a criminal trial the deposition of a witness taken in pursuance of said Code (§§ 620-633) on the application of the prisoner was offered in evidence on behalf of the people, and received without objection or exception on the part of the defendant, held, .that no question as to its admissibility could be considered here.
    A general exception to a portion of a charge is of no avail, unless all of the propositions laid down therein are erroneous.
    An indefinable doubt which cannot be stated, with the reason upon which it rests, is not a “ reasonable doubt ” within the meaning of the rule giving the defendant on a criminal trial the benefit of such a doubt.
    Where the court on such a trial charged the jury in substance to view all the facts from which an inference was to be drawn, and inquire whether, consistently with the truth of the whole, the prisoner might not be innocent; to weigh and consider the evidence, and if, from deficiency of proof or inconclusiveness of testimony, any material fact was not established, there was then a reasonable doubt, to the benefit of which the prisoner was entitled; but that it is not a mere guess or surmise that the man may not be guilty, it is such a doubt as a reasonable man might entertain after a fair review and consideration of the evidence for which some good reason arising from the evidence can be given. Held no error.
    Appeal from judgment of the General Term of the Supreme Court, in the second judicial department, entered upon an order made at the February term, 1885, which affirmed a judgment of the Court of Sessions in and for the county of Kings, convicting the defendant of the crime of murder in the first degree.
    The'facts so far as material to the questions discussed are stated in the opinion.

      Nathaniel C. Moak for appellant.
    When the evidence is conflicting, it is error for the court to refuse to charge the doctrine of reasonable doubt. (Code of Crim. Pro., §§ 389, 390; Spears v. State, 2 Tex. App. 244; May v. State, 6 id. 191; Mace v. State, id. 470; Snyder v. State, 59 Ind. 105; Whart. on Horn. [2d ed.], § 649.) Where the court, in defining what is a reasonable doubt, includes something which ought not, in fairness to the prisoner, to be included, a new trial should be granted. (State v. Johnson, 16 Nev. 36; People v. Brown, 59 Cal. 345 ; Anderson v. State, 41 Wis. 430; Myers v. Comm,, 83 Penn. St. 143; Castle v. State, 75 Ind. 146 ; State v. Sloan, 55 Iowa, 220.) A reasonable doubt may not only arise out of the evidence, but may be the result of a want of evidence. (Massey v. State, 1 Tex. Ct. App. 564; Dinsmore v. State, 67 Ind. 306; Wright v. State, 69 id. 163; Batten v. State, 80 id. 394; Holmes v. State, 9 Tex. App. 313; State v. Rowe, 11 Nev. 348; Mixin v. State, 55 Miss. 527.) A reasonable doubt exists when the evidence is not sufficient to satisfy the judgment of the truth of a propo- . sition with such certainty that a prudent man would feel safe in acting upon it in his own important affairs. (Arnold v. State, 23 Ind. 170; State v. Reed, 62 Me. 142 ; Miles v. United States, 103 U. S. 304; Commonwealth v. Costley, 118 Mass. 16; People v. Finley, 38 Mich. 482; McGuire v. People, 44 id. 286; State v. Bridges, 29 Kans. 138; Whart. Cr. Ev. [8th ed.], § 1; State v. Summers, 9 West. L. J. 415.) Nor is it an answer to what has been said, that the aggregated common sense of the twelve jurors is to determine when a juror is “ able to give some good reason ” for his doubt. It is not necessary he should be able to do so even to his own satisfaction. (Dinsmore v. State, 67 Ind. 308; Wright v. State, 69 id. 165; Anderson v. State, 41 Wis. 430; Myers v. Comm., 83 Penn. St. 142; Anderson v. State, 41 Wis. 433; People v. Ah Sing, 51 Cal. 372; Bishop’s Crim. Pro., § 1094; People v. Schryver, 42 N. Y. 6; 1 Greenl. Ev., § 13 A., and [3d ed.], § 29 ; People v. McCann, 16 N. Y. 58.) Not only the killing but the intent to kill must be proved beyond a reasonable doubt by the prosecution, and when the defense claim that such intent was wanting, they are not to prove beyond a reasonable doubt that the prisoner “ did not intend, to kill.” (Code of Crim. Pro., §§ 389, 390 ; People v. McGann, 16 N. Y. 58 ; People v. Schryver, 42 id. 4.) The reading of the deposition of the widow of deceased by the prosecution was illegal. (Code of Civ. Pro., §§ 527, 631.) The prisoner cannot waive any such constitutional and natural right. (People v. Cancemi, 16 N. Y. 501; People, v. Restell, 3 Hill, 289 ; Barron v. People, 1 N. Y. 391.) The inability of the witness to attend must exist at the time of the trial. (Pry v. Bennett, 4 Duer, 247; Downell v. Walsh, 6 Bosw. 621; Nixon v. Palmer, 10 Barb. 175 ; Guyon v. Davis, 7 Wend. 29 ; Browner v. Frauenthal, 37 N. Y. 166; Markoe v. Eldrich, 1 Abb. 55; Sheldon v. Wood, 2 Bosw. 267; Montressor v. Sice, 3 Wend. 180.) The prosecution cannot read on the trial a deposition taken before trial, unless the defendant was present when the deposition was taken. (People v. Mauer, 43 N. Y. 1; Code of Crim. Pro., § 8, subd. 3; 1 Bishop’s Crim. Pro. [3d. ed.], § 265.) The absence of the prisoner has been held to render the deposition inadmissible. (People v. Restell, 3 Hill, 289.) The judge, in charging the jury, may casually make known his opinion to them on the facts, but to assert to the jury that he has that right, and to impress it upon them by strong language, is by no means a prerogative of the presiding judge on a criminal trial. (2 Park. Cr. 223; 6 id. 209; 15 How. Pr. 557; 13 Abb. Pr. [U. S.] 370.) The verdict against the prisoner was against the weight of evidence and against law. Justice requires a new trial whether under the exceptions taken or under any other exceptions that could have been taken in the court below. (Code of Crim. Pro., § 527.)

      James W. Ridgway for respondent.
    There was a deliberate and premeditated design on the defendant’s part to effect the death of Daghiero. (People v. Batting, 49 How. 392; Thomas v. People, 67 N. Y. 218 ; People v. Majone, 91 id. 211; Sindram v. People, 88 id. 196; Leighton v. People, id. 117.) Even if the defendant did fire the shot accidentally, the circumstances were not such as justified him in pointing a loaded pistol at the defendant. (Penal Code, § 205.) Even as the basis of the defendant’s own story, he did not put himself in such a position as warranted the use of a deadly weapon. He was not pushed to the wall in any sense of the word. The evidence does not show that he retreated or flinched. (People v. Cole, 4 Park. Cr. 35; Shorter v. People, 2 N. Y. 193; Sullivan v. People, 7 id. 306.) The burden was on the defendant, after the proof of the assault with the deadly weapon, to show that there was sufficient cause to justify the use thereof. (Sawyer v. People, 91 N. Y. 667; People v. Thomas, 67 id. 218; Abbott v. People, 86 id. 470; Nichols v. People, 23 Hun, 167; 86 N. Y. 641; People v. Moett, 85 id. 373.) The exceptions to be available must have been raised at the trial. (People v. Hovey, 92 N. Y. 80.) Specific quarrels with other parties could not be given in evidence. (Eggler v. People, 56 N. Y. 643; Nichols v. People, 23 Hun, 167; Thomas v. People, 67 N. Y. 218.) The prisoner’s conduct and acts, as well when in custody as when at large, may be given in evidence against him, and their cogency or evidence will be determined by the jury. (People v. Wenz, 37 N. Y. 303 ; Teachout v. People, 41 id. 7; Hochreiter v. People, 2 Abb. Ct. App. Dec. 363; McKee v. People, 36 N. Y. 113; Commonwealth v. Coffee, 108 Mass. 285; Same v. Croker, id. 464.) A party can always contradict other witnesses though they may be his own. He cannot impeach them. (Thompson v. Blanchard, 4 N. Y. 403 ; Williams v. Sergeant, 46 id. 481; Lawrence v. Barker, 5 Wend. 301; McArthur v. Hurlburt, 21 id. 190 ; 1 Greenl. on Ev., § 343.) The counsel could not require the court to charge what had once been correctly stated. (Moett v. People, 85 N. Y. 375 ; Walker v. People, 88 id. 81; O’Connell v. People, 87 id. 377.) The court properly charged that the jury might take into consideration the evidence of character, as well as all the other evidence in the case, and determine the question whether the prisoner is guilty or not. (Stover v. People, 56 N. Y. 319 ; People v. Lyon, 1 Crim. Rep. 290; People v. Lamb, 2 Keyes, 318; (Cancemi v. People, 16 N. Y. 501.) Comments on the testimony so long as the judge leaves all the questions of fact to the jury, and instructs them that they are the sole judges of mattersoi fact, are not the subject of legal exception. (Sindram v. People, 88 N. Y. 202.) There is nothing contained in any Constitution, Federal or State, which renders section 620 et seq. of the Code of Criminal Procedure unconstitutional. (People v. Williams, 35 Hun, 516.)
   Danforth, J.

We agree with the learned judges of the courts below in the opinion that the facts in evidence fully justified the submission of the case to the jury as one in which they might find the defendant guilty of murder in the first degree, as charged in the indictment, and think it necessary to consider only those points which allege error in regard to evidence, or the directions under which the evidence was to be weighed. First. The deposition of Mrs. Daghiero, the widow of the murdered man, taken on application of the prisoner and in pursuance of the provisions of the Code of Criminal Procedure (§§ 620-635), was offered in evidence in behalf of the people, the district attorney stating, as appears by the record, “ that he would read the same for the reason that the same conditions now exist to prevent the personal attendance of the witness as existed at the time of granting the order for the taking such examination, and that the witness is unable to personally attend by reason of her continued sickness.” It also appears that the defendant’s counsel made no objection or exception to the reading of the same, and it was thereupon read. Errors upon criminal trials can be made available in this court only by exceptions duly taken on the trial (People v. Thompson, 41 N. Y. 6; People v. Casey, 72 id. 399; Connors v. People, 50 id. 240 ; Brotherton v. People, 75 id. 159); and it follows that as no objection was then taken, the questions now argued against the admissibility of the deposition are quite out of place. But notwithstanding this doctrine is well established, the learned counsel for the appellant contends that by section 527 of the Code (supra) a different rule is enacted, and that the question may be considered in the same manner as if an objection had been made upon the trial. It was, however, held otherwise in People v. Hovey (92 N. Y. 554); Same v. Boas (id. 560), and Same v. D' Argeneour (95 id. 631). . Nor is any hardship imposed upon the appellant by the application of this rule. Assuming what, except for this purpose, I by no means concede, that there is any force in the objections now made to the reading of this deposition it was deliberately acquiesced in by the prisoner, and it was clearly in his power to waive them. Consent would not give the court jurisdiction or authorize a substantial change in its fundamental mode of proceeding; that could be neither enlarged nor restricted. The trial must be by a jury of twelve, and not a less number, although the prisoner consent thereto (Cancemi's Case, 18 N. Y. 128), but'he may waive his right to challenge. He cannot be compelled to be a witness against himself, but by consenting to take the stand he waives the constitutional protection and may be examined in the same manner as any other witness. (Connors v. People, supra.) He is not subject to be twice put in jeopardy for the same offense, but if judgment is arrested on his motion, or if for any reason a new trial is granted on Ms prayer, he must submit to another trial. So the jury must act upon evidence, but secondary in place of primary evidence may be received. Admissions of facts may be allowed, and in many similar particulars consent will render valid what without it would be erroneous. (Cancemi's Case, supra; Pierson v. People, 79 N. Y. 424.) So here if there were no' statute upon the subject, whether the witness should be produced in court and there confronted with the prisoner, or whether her deposition, taken at his instance, should be read, might be left to Ms determination (Webster v. People, 92 N. Y. 422), and Ms assent to the latter course having been signified by acquiescence, makes it immaterial to inquire as to the true meaning and effect of the statute (supra).

Second. In behalf of the prisoner twenty-eight requests to charge were submitted to the court, and among others one in these words : “ The prisoner is entitled to the benefit of any reasonable doubt which the jury might entertain, not only upon the case generally but upon each and every specific fact necessary for them to find before reaching a verdict in the case, and if they entertain any such doubt in respect to any matter necessary to sustain a verdict for either of the higher offenses, then it is their duty to convict of the lesser, and if they entertain any such doubt on the whole .case they must acquit.”

In response the court said to the jury: I charge you that, perhaps I can put it in shorter terms so that you can understand it. If you have any reasonable doubts upon any facts which are necessary to convict the defendant he is entitled to the benefit of that doubt. If you have any reasonable doubt of his guilt he is entitled to be acquitted. If you have any reasonable doubt of his guilt of murder in the first degree you cannot convict him of that count. If you have any reasonable doubt of guilt of murder in the second degree you cannot convict him on that count, or if you have any reasonable doubt as to manslaughter in either degree you cannot convict him of that, and he must be acquitted. You must understand what a reasonable doubt is. It is not a mere guess or surmise that the man may not be guilty, it is such a doubt as a reasonable man might entertain after a fair review' and consideration of the evidence. A doubt for which some good reason arising from the evidence can be given. When you find such a doubt as that in a case, it is your duty to give the prisoner the fullest and amplest benefit of it.”

“ To all which defendant’s counsel,” as the case states, “ then and there duly excepted.”

It is entirely well settled that such general exception is of no avail if any portion of the matter be well stated. (Decker v. Mathews, 13 N. Y. 313.) No error was specifically pointed out, and it is not now claimed by the learned counsel for the appellant that all the propositions laid down in this portion of the charge are erroneous. The exception, therefore, might well be treated as unavailing, but having regard to the importance of the case we have followed the argument for the appellant and find no just cause of complaint. The criticism is limited to the definition given of a reasonable doubt, and aimed at that portion where, by way of paraphrase, the trial judge said: “A doubt for which some good reason arising from the evidence can be given.” It should be read with the whole sentence of which it forms a part, and so taken seems only to distinguish that doubt which would avail the prisoner, from one which is merely vague and imaginary. The jury were not called upon to formulate and state their reasoning, but in substance to view all the circumstances from which an inference was to be drawn, and inquire whether, consistently with the truth of the whole, the prisoner might not be innocent — to weigh and consider the evidence, and if from a deficiency of proof, or inconclusiveness of testimony, any material fact was not established, there was then left a reasonable doubt arising from the evidence, and to the benefit of that the prisoner was entitled. We find in the language of the judge nothing to mislead or perplex a juror, but if counsel at the trial thought otherwise, the attention of the court should have been directed to it. “ An indefinable doubt, which cannot be stated, with the reason upon which it rests, so that it may be examined and discussed, can hardly be considered a reasonable doubt, as such an one would render the administration of justice impracticable,” and as to this it has not been too strongly said, “ all the authorities agree.” (3 Green! on Ev. [14th ed.], § 29, note.)

Many other propositions are submitted to us as ground for a new trial. They have been examined, but we find no error of law, and must affirm the judgment.

All concur, except Rapallo, J., not voting.

Judgment affirmed.


author: Finch, J.

text:
    Sarah McCorn, Respondent, v. John McCorn et al., Appellants.
    (Argued October 23, 1885 ;
    decided November 24, 1885.)
    M. died leaving a will executed the day previous to Ms death, by which, after a bequest to his wife of $1,000, and to Ms son M. of $400, he gave the residue of his estate to his four children, to be divided equally between them. The personal estate left by the testator was insufficient to pay his funeral expenses. In an action to have the widow's legacy declared to be a charge upon the real estate held, that the intent of the testator was that both legacies should be so chargeable; and that the widow, in case the land was insufficient to pay both legacies, was not entitled to a preference in payment, but simply to share pro rata with the other legatee; and this, although he had not claimed his right and denied that the legacies were chargeable on the real estate.
    Appeal from order of the General Term of the Supreme Court, in the third judicial department, entered upon an order made July 3, 1883, which affirmed a judgment in favor of plaintiff, entered upon the report of a referee. (Reported below, 30 Hun, 171.)
    This action was brought to have a legacy given to the plaintiff by the will of her late husband, Moses McCorn, adjudged to be a charge upon the real estate of which he died seized. The facts so far as material are stated in the opinion.

      M. N. Tompkins for appellants.
    The legacy to the plantiff should not be made a charge upon the real estate of which the testator died seized. (Wiltsie v. Sham, 29 Hun, 195; Lupton v. Lupton, 2 Johns. Ch. 614; Reynolds v. Reynolds, 16 N. Y. 257; Babcock v. Stoddard, 3 T. & C. 207; Myers v. Eddy, 47 Barb. 267; Kinnier v. Rogers, 42 N. Y. 531.) The plaintiff was only entitled to interest on her legacy at the legal rate, to-wit: seven per cent, to January 1, 1880, and six per cent thereafter. (Sanders v. L. S. & M. S. R. R. Co., 94 N. Y. 541; Stoddard v. Same, id. 643; Jermain v. Same, 18 N. Y. Weekly Dig. 403; O’Brien v. Youmg, 95 N. Y. 428.) If the legacy to the plaintiff is charged upon the real estate, then so is the legacy to Moses of $400, and should be paid in the same proportion. (Code of Civ. Pro., § 519; Chatfield v. Simmonson, 92 N. Y. 218; Murtha v. Curley, 90 id. 372; Baker v. McLaughlin, 19 N. Y. Weekly Dig. 29; 2 Wait’s Law & Pr. [5th ed.] 941, 942.)

      James A. Christie for respondent.
    Where there has been no previous devise of real estate in a will, a devise of the residue will carry so much of the real estate as shall remain, after the pecuniary legacies have been paid and satisfied, and no more; and especially in this case, where the legatees are of the testator’s blood, and morally and legally objects of his bounty. (Scott v. Stebbins, 91 N. Y. 605; Hoyt v. Hoyt, 85 id. 142; Shutters v. Johnson, 38 Barb. 80.) Where a will first gives money legacies, and then disposes of the rest of the property by a general residuary clause, especially where there is no severance of the real estate from the personal, and there being no personal estate from which to pay or satisfy the legacies, resort must be had to the real estate left by the testator, to satisfy the legacies; and especially is that the case when the legatees are of the testator’s blood, having a natural-claim on his bounty, as in the case under consideration. (Tracy v. Tracy, 15 Barb. 503; Stoddard v. Pomeroy, 36 id. 546 ; Shutters v. Johnson, 38 id. 80; R. C. Church v. Wachter, 42 id. 43; Taylor v. Dodd, 58 N. Y. 335; Le Fevre v. Toole, 84 id. 95; . Hoyt v. Hoyt, 85 id. 142 ; Scott v. Stebbins, 91 id. 605; Ragan v. Allen, 7 Hun, 537; Hall v. Thompson, 23 Hun, 334.) The legacy became due in one year from the death of the testator; and from that time the estate is chargeable with interest, and it formed an integral part of the debt. (Hawley v. Johnson, 5 Paige, 318; March v. Hague, 1 Ed. Ch. 174; Dayton’s Surrogate [2d ed.], 429, 430.) Where a part of a proposition in a charge is correct, an exception to the whole is not available. (Graham s. Chrystal, 2 Keyes, 21; McMahon v. N. Y. & E. R. R. Co., 20 N. Y. 463; Briggs V. Boyd, 56 id. 289 ; Matthews v. Duryea, 2 Keyes, 525; Newell v. Doty, 33 N. Y. 83; Mabie v. Bailey, 95 id. 206.)
   Finch, J.

Whether a legacy is charged upon the real estate of the decedent is always a question of the testator’s intention. The language of the will is the basis of the inquiry, but extrinsic circumstances which aid in the interpretation of that language, and help to disclose the actual intention, may also be considered. (Le Fevre v. Toole, 84 N. T. 95 ; Hoyt v. Hoyt, 85 id. 142; Scott v. Stebbins, 91 id. 605.) In this case the testator, by a will exceedingly simple and brief, bequeathed to his wife $1,000 and certain specific articles; to his son Hoses the sum of $400 ; and then added, “ I devise that the rest of the property shall be divided equally between Mr. Moses McCorn, Jr., Mr. John McOorn, Mrs. Eliza Tompkins and Mrs. Mary Jane Alexander.” These four were children of the decedent. This will was made but one day before his death, so that no change in the condition of his estate can be supposed as occurring in the interval. His personal estate was insufficient even to pay his funeral expenses, and the two legacies to the widow and son were mere mockeries unless meant to be a charge upon the real estate. The testator must have known that he had no personal estate with which to pay the smallest portion of his bequests, and unless he meant to charge them upon the land we must impute to him the deliberate and conscious intention of making bequests to his wife and son which he knew could never be paid. The case is not one in which there proves to be a small and unexpected lack of personalty to pay legacies, and so in which the testator might be assumed to have honestly and reasonably supposed his personal assets sufficient. In such an event the foundation of an inference that the real estate was meant to be charged would be taken away, and the deficiency would have no significance. But the situation is such that all possibility of innocent mistake is removed, and the facts drive us to the alternative of believing that the testator in making his last will, under the solemnity of approaching death, indulged in bequests known to be useless and _ vain, or meant that they should be paid from the only possible source. FTo reasonable intelligence can hesitate to draw the latter inference. But the final language of the will further indicates the intention. There is a residuary clause which blends the personal and real estate by the phrase “ the rest of the property.” There could be no “ residue ” on the theory that nothing had been given to the wife and Moses, and the term would be inapplicable to what was known to be a devise of the whole estate. The use of the term implied an understanding of the testator that something had been given out of and taken from his property, so that there was left a remainder or residue of the whole property. Each of these circumstances in our consideration of other cases has had a place in the reasons given for inferring an intention to charge legacies upon the land. It is not needed to say whether one alone would be sufficient, for here the two concur, and their united force is enough to satisfy us that the decision of the referee and the General Term in this respect was correct.

But we think there was error in awarding to the plaintiff full payment of her legacy out of the land to the limit of its value to the exclusion of the legacy of $400 given to Moses McCorn. Whether he sought to enforce, his legacy or not, or was entitled in this action to a decree for its payment in full or pro tanto, is immaterial to the question of the right of the plaintiff and the relief to which she was entitled under the will. Her equity was not enlarged because he denied its existence, nor did he forfeit his right as against her by merely contesting her view of the law. The extreme limit of her equity under the will was to be paid out of the land pro rata with the legacy to Moses, also and equally charged upon the real estate; and she established a claim to no greater relief than this. But she was awarded preference of payment over the legacy to Moses without any basis for such preference in the facts, and her right was enlarged beyond the bounty and intent of the testator. We may not award to Moses relief which he has not sought in this action, but we ought not to shut the door against his right by transferring to another what equitably belongs to him. His claim upon the surplus will remain after full justice is done to the plaintiff.

It is claimed that no exception raises this question. The only exception applicable is that taken in terms to the whole of the referee’s fifth finding, which is a conclusion of law. The rule is familiar that such an exception fails when any portion of the finding is good, and that is asserted to be the case here. The finding directs the land to be sold, and the proceeds to be paid over to plaintiff up to the full amount of her legacy, and if there be a deficiency the defendants to be charged with it to the extent of the $500 mortgage upon the lands of which the testator died seized, and which defendants, in the life-time of the testator, had for a valuable consideration agreed to pay, if that remains unpaid, and any surplus to be paid over to the county treasurer. That is the whole of the fifth finding. A separate paragraph, although unnumbered, follows it relating to costs and appointing the sheriff to sell, which does not fairly belong to the finding excepted to. The whole of such finding, in all its parts, is infected with the error to which we have alluded. The sale is to be made to secure to the plaintiff too large a sum ; in case of a deficiency the whole mortgage money, instead of a just proportion, is to be applied to the legacy, and any surplus resulting from the erroneous disposition, and therefore inevitably lessened, is to be deposited with the treasurer. The exception to the whole of the finding must thus be deemed sufficient.

The judgment should be modified so as to charge the plaintiff’s legacy with lawful interest upon the land, pro rata with the legacy to Moses McOorn, and, as modified, affirmed without costs to' either party in this court.

All concur.

Judgment accordingly.


author: Ruger, Ch. J.

text:
    Thomas H. Stringham, Appellant, v. Cornelia M. Stewart, Respondent.
    (Submitted October 23, 1885 ;
    decided November 24, 1885.)
    The rule which, excuses a piaster from liability to a servant for injuries, caused by the negligence of a co-servant, presupposes that the master has performed the duties which the law imposes upon him, and that no negligence in this respect contributed to the injury. •
    Where, therefore, the master has furnished a dangerous and defective machine he is not excused from liability for an injury to his servant, which would not have happened had the machinery been safe and suitable, by the fact that the negligence of a fellow servant co-operated in producing the injury ; and this, although the machine, by the exercise of care and caution, might have been operated so as not to cause injury.
    Appeal from judgment of the General Term of the Supreme Court, in the second judicial department, entered upon an order made February 13, 1883, which affirmed a judgment in favor of defendant, entered upon an order nonsuiting plaintiff on trial.
    This action was brought to recover damages for injuries sustained by plaintiff, an employe of defendant, caused by the fall of an elevator in defendant’s warehouse, which plaintiff alleged “was defective in construction and' unprovided with the proper appliances for safety,” and that the injury was caused by such defects.
    The material facts are stated in the opinion.

      A. H. Dailey for appellant.
    The action is based on a negligent act, which is of such gross character as to make it an absolute wrong. (Corcoran v. Holbrook, 59 N. Y. 521; Clifford v. Dam, 81 id. 52.) The master failed in his duty to provide his servant with a reasonable safe appliance with which to do the work assigned him. (Ford v. F. R. R. Co., 110 Mass. 255-6; Fuller v. Jewett, 80 N. Y. 52; Keegan v. W. R. R. Co., 8 id. 175 ; Delaney v. Hilton, 50 N. Y. Super. 341; Thomp. on Neg. 994; Chapman v.
      Erie R. Co., 55 N. Y. 584; Cooley on Torts, 556, 557; Hackett v. M. Mfg. Co., 101 Mass. 101 ; Courtney v. Cornell, 49 Sup. Ct. 286 ; Green v. Banta, 48 id. 156 ; Holden v. F. R. R. Co., 129 Mass. 268; Coombs v. N. B. C. Co., 102 id. 572; Paterson v. Wallace, 1 Macq. 747; Huddleston v. L. M. S., 106 Mass. 282.) The servant does not accept risks latent in his employment, but it is the master’s duty to inform him of them. (Whart. on Eeg., §§ 210,211; Ryan v. Fowler, 24 N. Y. 410 ; Gone v. D., L. & W. R. R. Co., 81 id. 206.) The omission of the defendant to provide adequate space between the cross-beam of the elevator and the pulley-beam above, to enable the engineer to correct and overcome any accidental movement of the elevator above the level of the platform above the third story from miscalculation of the force of steam, or the turning of the valve, or- the fouling or doubling of the rope, was gross negligence on the part of the defendant to provide a reasonably safe appliance for her servant, the plaintiff. (Ellis v. N. Y., L. E. & W. R. R. Co., 95 N. Y. 546; De Groff v. N. Y. C. R. R. Co., 76 id. 125 ; Kirkpatrick v. Same, id. 241; Laning v. N. Y. C. R. R. Co., 49 id. 521; Fuller v. Jewett, 80 id. 46.) The fact that the wire rope broke placed the burden upon defendant of showing that in its selection, and in its continued use, reasonable prudence and care were exercised. (Flike v. B. & A. R. R. Co., 53 N. Y. 549; Booth v. B. & A. R. R. Co., 73 id. 40; Corcoran v. Holden, 59 id. 518; 3 Macq. 275 ; 2 id. 34; 49 N. Y. 522.) The plaintiff properly relied upon the natural and legal obligation of the respondent to discharge her duty and not place him in a position of peril without due notice to him, and failing in that duty she becomes liable in damages for his injuries. (Shearman on Neg., § 95; Ernst v. H. R. R. R. Co., 37 Barb. 292; Mackay v. N. Y. C. R. R. Co., 35 N. Y. 75; Newson v. Same, 29 id. 383; Russell Mfg. Co. v. N. Y. S. Co., 50 id. 121.) The case was properly one for the jury. (Ellis v. N. Y., L. E. & W. R. R. Co., 95 N, Y. 553.)

      Charles C. Smith for appellant.
    Defendant’s agent and superintendent was her alter ego, having entire control and management of her farm and business, where the accident in question occurred, and for his negligence, carelessness and omissions of duty in the premises the defendant is responsible. (Fuller v. Jewett, 80 N. Y. 46 ; Corcoran v. Holbrook, 59 id. 517; Brickner v. N. Y. C. R. R. Co., 49 id. 672; Wright v. Same, 25 id. 562; Malone v. Hathaway, 64 id. 5 ; Flike v. B. & A. R. R. Co., 53 id. 549; Laning v. N. Y. C. R. R. Co., 49 id. 521; Crispin v. Babbitt, 81 id. 516 ; Plank v. N. Y. C. & H. R. R. R. Co., 60 id. 607; Besel v. Same, 70 id. 171; Whart. on Neg., § 229.) It was defendant’s duty to furnish an elevator and machinery properly constructed and provided with suitable hoisting and other appliances as were requisite to make it safe for the use of plaintiff while in the performance of his duty. This was an obligation to be affirmatively and positively performed. (Warner v. E. R. Co., 39 N. Y. 468; Laning v. N. Y. C. R. R. Co., 49 id. 521; Leonard v. Collins, 70 id. 90; Gibson v. P. R. R. Co., 46 Mo. 163; Shanny v. A. Mills, 66 Me. 420; Burkin v. Sharp, 88 N. Y. 225; Marshall v. Stewart, 33 Eng. L. & Eq. 1; Slater v. Jewett, 85 N. Y. 61; Murphy v. B. & A. R. R. Co., 88 id. 148; Connolly v. Poillon, 41 Barb. 366 ; Sheehan v. N. Y. C. & H. R. R. R. Co., 91 N. Y. 334; Painton v. North. C. R. R. Co., 83 id. 7; DeGraaf v. N. Y. C. & H. R. R. R. Co., 16 id. 125; Plank v. Same, id. 607; Laning v. Same, 49 id. 521; 79 id. 242; Bricknor v. N. Y. C. & H. R. R. R. Co., 49 id. 672; Booth v. B. & A. R. R. Co., 73 id. 38; Ellis v. N. Y., L. E. & W. R. R. Co., 95 id. 546; Fuller v. Jewett, 80 id. 46; Keegan v. W. R. R. Co., 8 id. 175; Cone v. D. & L. R. R. Co., 81 id. 206; Kain v. Smith, 89 id. 375; Paulmier v. E. R. Co., 34 N. J. L. 151; Ackerson v. Dennison, 117 Mass. 407; Walsh v. Put. Valve Co., 110 id. 23; Summersell v. Fish, 117 id. 312 ; Stevenson v. Jewett, 16 Hun, 210; Brydon v. Stewart, 2 Macq. H. L. Cas. 30; Devlin v. Smith, 89 N. Y. 470; Noyes v. Smith, 28 Vt. 59; Shearm. & Red. on Neg., § 92 and note; Ryan v. Fowler, 24 N. Y. 410; Steinweg v. E. R. R. Co., 43 id. 123;
      Mattison v. N. Y. & E. R. R. Co., 62 Barb. 364; Ashworth v. Stanwix, 3 El. & El. 701; Thomp. on Neg. 972, 973 ; Wright v. N. Y. C. R. R. Co., 25 N. Y. 562; Ellis v. N. Y., L. E. & W. R. R. Co., 95 id. 546; Ogden v. Rummens, 3 Fost. & Fin. 751; Davis v. England, 10 Jur. [N. S.] 1235.) The principle that if a master employs ignorant and inexperienced workmen in dangerous employments, and exposes them improperly and carelessly to risks of which he is cognizant, and which are unknown to them, he is liable for the consequences, is applicable to this case. (Homer v. Everett, 91 N. Y. 641; Shaw v. Sheldon, 21 N. Y. Weekly Dig. 489; Wonder v. B. & O. R. R. Co., 32 Md. 411; Newson v. N. Y. C. R. R. Co., 29 N. Y. 383; Cayzer v. Taylor, 10 Gray, 274; Baxter v. Roberts, 44 Cal. 187; McGatrick v. Wason, 4 Ohio, 566; Webb v. Rennie, 4 Fost. & Fin. 751; Ogden v. Rummens, 3 id. 608; Wiens v. Mathuson, 4 Macq. H. L. Cas. 215; B. C. Co. v. Reid, 3 id. 266; Perry v. Marsh, 25 Ala. 659; Holmes v. Clarke, 6 Hurlst. & N. 349; Williams v. Clough, 3 id. 258 ; Paterson v. Wallace, 1 Macq. H. L. Cas. 748; Davis v. England, 10 Jur. [N. S.] 1235; Spelman v. F. I. Co., 56 Barb. 151; Coombs v. N. B. C. Co., 102 Mass. 572; Shearm. & Redf. on Neg., §§ 86, 92, and notes ; Dana v. N. Y. C. R. R. Co., 92 N. Y. 639 ; McCosker Case, 84 id. 77; Murphy v. N. Y, L. E. & W. R. R. Co., 19 Weekly Dig. 414 ; McGatrick v. Wason, 4 Ohio St. 366; Dixon v. Rankin, 14 Ct. Sess. Cas. 420; Ashworth v. Stanwix, 3 El. & El. 701; Noyes v. Smith, 28 Vt. 59; Davis v. England, 10 Jur. [N. S.] 1235 ; Railway Co. v. Fort, 17 Wall. [U. S.] 554; Walsh v. Peit V. Co., 110 Mass. 23; Coombs v. N. B. C. Co., 102 id. 572; Whart. on Neg., § 212; Meehan v. S., etc., R. R. Co., 73 N. Y. 585 ; Vosburgh v. L. S. & M. S. R. R. Co., 18 Weekly Dig. 310; Shearm. & Redf. on Neg., §§ 30, 92, 93; Smith v. Dock Co., L. R., 3 C. P. 326.) It did not vary the circumstances or grounds of liability, or tend to exonerate defendant because a particular part of the apparatus was deficient merely in its structure, or ill-proportioned, if the defendant knew, or should have known, that by reason of such incompleteness or deficiency in its construction, and as used and employed by her workmen in the usual course of her business, it was dangerous and unsafe in its operation and liable to injure ' those using it, and took no measures to advise them of the danger they incurred, and made no provision for their safety. (Coughtry v. Glove Co., 56 N. Y. 124; Patterson v. Wallace, 1 Macq. 748; Roberts v. Smith, 2 Hurlst. & N. 213 ; Clarke v. Holmes, 7 id. 937; Shearm. & Redf. on Neg., §§ 93, 94; Avilla v. Hash, 117 Mass. 318; C., etc., R. R. Co. v. Taylor, 69 Ill. 461; Riley v. Roxendale, 6 Hurlst. & N. 446; Sullivan v. India Manuf. Co., 113 Mass. 396 ; Sheehan v. N. Y. C. & H. R. R. R. Co., 91 N. Y. 322; Swartz v. Edgar, 59 id. 28; Thomp. on Neg. 972, 996, and notes; O' Donnell v. A. V. R. R. Co., 59 Penn. St. 239; Williams v. Glough, 3 Hurlst. & N. 758; Vosburgh v. L. S. & M. S. R. R. Co., 94 N. Y. 374; McGatrick v. Wason, 4 Ohio St. 466; Shaw v. Sheldon, 21 Weekly Dig. 489; Ford v. F. R. R. Co., 110 Mass. 240 ; Hayden v. S. Manuf. Co., 29 Conn. 548; Thomp. on Neg. 973, 1008, and notes; Knox v. C. R. R. Co., 32 Iowa, 357; Ernst v. H. R. R. Co., 35 N. Y. 9; Newson v. N. Y. C. R. R. Co., 29 id. 383; Mackay v. Same, 35 id. 75 ; Buzzell v. Laconia, etc., Co., 48 Me. 113; Le Clair v. St. Paul, etc., R. R. Co., 20 Minn. 9; F. W., etc., R. R. Co. v. Gildersleeve, 33 Mich. 133.) It was the duty of defendant to use diligence and reasonable care in supplying competent and efficient co-workers with plaintiff. (Mann v. President, etc., 91 N. Y. 495 ; Shearm. & Redf. on Neg., §§ 28, 89, 91, 93, 109, and notes; Thomp. on Neg. 981; Gilman v. E. R. Co., 10 Allen, 233 ; Crutchfield v. R., etc., R. R. Co., 76 N. C. 320.) The plaintiff did not undertake, impliedly or otherwise, the risk of any negligence on part of defendant, that he was ignorant of, did not comprehend, or had any reason to anticipate. (Shearm. & Redf. on Neg., §§ 89, 91, 95; Thomp. on Neg. 980, 981, and notes; Edwards v. B. R. R. Cco., 1 Post. & Fin. 531; Pierce on R. R. 379 ; Cone v. D. & L. R. R. Co., 81 N. Y. 206; Bills v. D. & L. R. R. Co., 84 id. 13.) The law will never hold it imprudent in any one, in the absence of notice or knowledge to the contrary, to act upon the presumption that another in his conduct will act in accordance with the rights and duties of both. (Shearm. & Redf. on Neg., §§ 28, 30, 92; Hawley v. N. C. R. R. Co., 82 N. Y. 320; Thomp. on Neg. 975-980 ; Russell Mfg. Co. v. N. H. S. Co., 50 N. Y. 121.) The nature of the accident itself afforded prima facie evidence of the presumption of negligence on part of defendant, and clearly indicated that the elevator was improperly constructed without safeguards and dangerous, especially when the evidence to that effect is considered and that danger was apprehended on account of its construction and its operating machinery. (Murphy v. N. Y., L. E. & W. R. R. Co., 19 W. Dig. 414; Schwier v. N. Y. C. & H. R. R. R. Co., 90 N. Y. 558 ; Bleeker v. Johnson, 69 id. 309; Shearm. & Redf. on Neg. §§ 13, 13a, and note; R. Mfg. Co. v. N. H. S. Co., 50 N. Y. 121; Caldwell v. N. J. S. Co., 47 id. 232.) Where several proximate causes contribute to an accident, and each is an efficient cause without the operation of which the accident would not have happened, it may be attributed to all or any of these causes. (Ring v. City of Cohoes, 77 N. Y. 83.) Negligence is a mixed question of law and fact, and should only be determined by the court alone against a party, when the undisputed facts show the omission or commission of some act on his part which the law adjudges to be negligence. (Stackus v. N. Y. C. & H. R. R. R. Co., 79 N. Y. 464; Seybolt v. N. Y., L. & W. R. R. Co., 95 id. 562; Painton v. N. R. R. Co., 83 id. 7; Payne v. T. & B. R. R. Co., id. 72; Homer v. Everett, 91 id. 641; Thurber v. H. B. M. & F. R. R. Co., 60 id. 326; Byrne v. N. Y. C. & H. R. R. R. Co., 83 id. 620 ; Kane v. Smith, 89 id. 375; Mann v. President, etc., 95 id. 495; Durkin v. Sharp, 88 id. 225; Hawley v. N. C. R. R. Co., 82 id. 370.)

      Horace Russell for respondent.
    The defendant was not bound to equip a freight lift in her barn with all the safety appliances of a passenger elevator, simply because workmen some times imprudently rode up and down on it. (Burke v. Witherbee, 98 N. Y. 562 ; DeGraff. R. R. Co., 76 id. 125; Henry v.
      S. I. R. R. Co., 81 id. 373; Salters v. D. & H. C. Co., 3 Hun, 338; Ladd v. R. R. Co., 119 Mass. 412; Wonder v. R. R. Co., 3 Am. Rep. 143.) An employe who contracts for the performance of dangerous duties assumes such risks as are incident to their .discharge, and also the risks and perils incident to the use of machinery and property of the employer as it was at the time of the employment, so far as such risks were apparent. (Evans v. R. R. Co., 12 Hun, 289; Ryan v. Fowler, 24 N. Y. 416 ; De Graff v. R. R. Co., 76 id. 125 ; De Forrest v. Jewett, 88 id. 264; Gibson v. Erie R. Co., 63 id. 449 ; Owen v. N. Y. C. R. Co., 1 Lans. 108; Whart. on Neg., § 214.) Against the negligence of a fellow-servant the master does not contract. (Burke v. Witherbee, 98 N. Y. 562; Devlin v. Smith, 89 id. 470 ; Fetch v. Allen, 98 Mass. 572; Wood v. New B. C. Co., 121 id. 252; Kelly v. Boston Lead Go., 128 id. 456.) When the defect or danger is as manifest to the servant as to the master, the former cannot recover. (Clarke v. Holmes, 7 H. & C. 937; Gibson v. Erie R. Co., 63 N. Y. 449; De Forrest v. Jewett, 88 id. 264; De Graff v. R. R. Co., 26 id. 125 ; Evans v. R. R. Co., 12 Hun, 289; Gottlieb v. N. Y. L. E. & W. R. R. Co., 29 id. 638; White v. Sharp, 27 id. 97; Hayden v. Smithville Manuf. Co., 29 Conn. 548; Davis v. D. & M. R. R. Co., 20 Mich. 185; Baker v. A. R. R. Co., 23 Alb. L. J. 96 ; Ballou v. C. & N. W. R. R. Co., 26 id. 137; Kelly v. Silver Spring Co., 18 id. 354; Jones v. Roach, 9 J. & S. 248 ; Wonder v. B. & O. R. R. Co., 5 Alb. L. J. 187.)
   Ruger, Ch. J.

At the close of the plaintiff’s evidence the defendant moved for a nonsuit upon the several grounds of contributory negligence on plaintiff’s part, the combination of such negligence and that of a co-servant in producing the injury, and the absence of any evidence of negligence on the part of the defendant. This motion was denied, the court thereby assuming that the evidence was then sufficient to carry the case to the jury. The defendant then gave evidence tending to controvert and impeach the testimony produced by the plaintiff, but we think failed to furnish such a preponderance as. rendered the questions arising thereon matters of law. At the conclusion of the evidence the defendant renewed his motion to nonsuit, and to dismiss the case on the whole evidence, and the plaintiff asked to go to the jury upon the questions of fact in the case. The court, without stating the reasons therefor, granted the defendant’s motion and denied that of plaintiff’s. To both of these rulings the plaintiff excepted. Upon appeal to the General Term the judgment of the trial court was affirmed.

We are unable to see upon what ground these various decisions can be reconciled or supported. Upon the trial, and while the plaintiff was engaged in giving evidence of experts as to the proper construction of elevators with respect to their safety, the defendant’s counsel interrupted its progress by conceding that the elevator in question was not constructed as one intended to carry passengers or people should be. This concession necessarily forecloses any discussion as to the negligence of the defendant in omitting to perform the duty of furnishing safe and adequate machinery for the performance of the work in question, and narrowed the issues to be tried to those of contributory negligence. Whether the defendant’s employes were authorized or permitted to make use of the elevator in prosecuting their work, and whether the injury occurred in consequence of the use made of it by the plaintiff in riding to the upper floor. The evidence clearly required the submission of these questions to the jury. It showed that the injuries occurred in consequence of the fall of the elevator used in defendant’s warehouse at Garden City in the prosecution of work which the plaintiff was employed to perform. This elevator was used in hoisting grain from the lower to the upper floors of the warehouse, with the view of their having it there distributed either in a fanning-mill to be cleaned or into bins for storage. The usual method of carrying on this business was for the servant charged with its performance to load the grain into a van capable of holding some thirty or forty bushels, and when loaded to push it on to the elevator and cause the engineer to apply the power necessary to raise it to the floor intended, and when that was reached to attend there to its distribution. On arriving at that floor certain marks upon the cable running into the engine room indicated to the engineer that the elevator had reached its place of destination. That point on the occasion in question was a platform above the second floor communicating with tramways upon which the vans were to carry the grain to the desired place. When the elevator arrived at this platform six inches space alone interposed between the top of the elevator and the pulley beam through which the cable ran. There was evidence showing that it was the custom of the servant having charge of the van to ride in the elevator to the place of destination and then push the van on to the tramways and along them to the place of delivery.

Upon the occasion in question the plaintiff ascended with the elavator until it stopped about an inch below the level of the intended platform; he then stepped from the elevator upon the platform and attempted to push the van off on to the tramways. While thus engaged the engineer suddenly applied the power and caused the elevator to ascend until its top struck the pulley beam, and being thus prevented from going higher, the cable was broken and the elevator with its load fell a distance of some thirty or forty feet, to the bottom of its well, carrying the plaintiff with it and causing serious injuries to him.

‘ If the question as to the sufficiency of the evidence to carry the question of the defendant’s negligence to the jury was now open for consideration we should entertain no doubt of the plaintiff’s right to have it determined by them. The proof upon the trial showed that no appliance or safety guard, such as is usual and customary, even on freight elevators, to arrest their fall in case of a break in the cable, was provided by its constructors, and that its motion was regulated entirely by an engineer who could have no ocular observation of its position. It is apparent that the space between the pulley beam and the elevator when it arrived at the upper platform left but little leeway to guard against the possible inattention or error of the engineer, or his inability to control with mathematical precision the motion of the elevator and arrest its ascent in time to avoid a collision between the car and the beam suspending the cable. The danger of so constructing an elevator as to require unremitted. attention and faultless accuracy on the part of a fallible agency in the application of power thereto in order to avoid serious injury to persons transported on it is so obvious that it needs neither proof nor argument to establish its existence. The evidence did show that the elevator and pulley beam had collided before, and the marks of their contact were apparent on the beam, and the defendant’s superintendent testified “ that the danger was so apparent it was pointed out by me to each one of them, and I indicated where the rope would be broken, exactly where it was.” “ The point of difficulty was the over-winding of the rope by the extra turning of the engine and striking on the top, and sooner or later an accident would occur of that nature.”

Upon the trial the defendant did not even attempt to establish the safety .of the elevator’s construction but directed her evidence to those facts tending to show that the workmen were not authorized to ride on it while it was transporting grain, and her superintendent testified that he had previously notified the plaintiff and anpther servant of the danger to be apprehended by those riding on it, and forbade them from doing so. On .the other hand testimony was given showing that the superintendent had himself ridden on it in the view of the workmen; that he had directed the servants employed in moving grain to ride thereon while performing their work, and it was expressly testified by each of the employes called who had been engaged in working with the elevator that he had not been forbidden to ride on it or notified that it was dangerous to do so. It was in proof that visitors had occasionally been taken up in the elevator, and the defendant’s superintendent testified that he had told the employes that it was safe to come down in it, or ride to the second floor, but not to the platform above. Ho written or printed notice had ever been given by the defendant that the elevator was unsafe or not intended for the use of the employes in performing their work, and it was in proof that it was constantly used by them with the knowledge of defendant’s superintendent.

A serious question of fact thus appears to have been presented by the evidence as to the use intended to be made of the elevator by the defendant. It was quite competent for the jury to find, upon the evidence, that the servants of the defendant were induced and encouraged to ride on it by the expectation and consent of the defendant in the prosecution of the work for which they were employed.

It was conceded by the General Term that the elevator was defective and unsafe for passengers, and that it was the duty of the master to use reasonable care and caution in the selection of implements, tools and machinery for the use of her servants in their employment; but the judgment was affirmed upon the ground that the accident occurred through the carelessness of a co-servant which was there held to be one of the risks of service assumed by the plaintiff in entering the employment.

We do not concur in this opinion. It has recently been several times held in this court that co-operation of the negligence of the master and a co-servant in the production of an injury to an employe, does not excuse the master from liability therefor. (Fuller v. Jewett, 80 N. Y. 46; Cone v. D. L. & W. R. R. Co., 81 id. 209; Ellis v. N. Y., L. E. & W. R. R. Co., 95 id. 546.) That a fellow servant may, by care and caution, operate a defective and dangerous machine so as not to produce an injury to others, does not exempt the master from his liability for an omission to perform the duty which the law imposes upon him of exercising reasonable care and prudence in furnishing safe and suitable appliances for the use of his servants. The rule which excuses the master under such circumstances presupposes that he has performed the obligations which the law imposes upon him, and that the inj ury. occurs solely through the negligence of the co-employe. (Pantzar v. Tilly Foster Mining Co., 99 N. Y. 368.)

The testimony of the plaintiff shows that he had no knowledge of the defects in the machinery in question, and could not, therefore, be chargeable with the responsibility of knowingly using such machinery. Even if we assume that the elevator was not designed for the use of the workmen in riding upon it in the prosecution of their work, it does not follow, from the evidence as a matter of law, that the injury in question was produced by the act of riding in it. The testimony is to the effect that the plaintiff had arrived at the upper platform and had stepped out and safely landed thereon before the accident, and was engaged in pushing the van on to the platform when it occurred. This work it was obviously his duty to do, however he had arrived at the place of its performance, and it was while he was thus engaged that the accident occurred. It was quite competent for the jury to have found, that even if he had gone to the upper platform by the stairs or otherwise, that the injury still would have been produced in the manner shown by the evidence.

In every view we have been able to take of the case questions of fact are presented requiring its submission to the jury.

The judgments of the courts below should be reversed, and a new trial ordered, with costs to abide the event.

All concur.

Judgments reversed.


author: Andrews, J.

text:
    Mather B. Almon et al., Respondents, v. James G. Hamilton et al., Appellants.
    Plaintiff held a claim against a firm, in which B. was a partner, upon which this suit was pending, and also an individual claim against B. The latter having become insolvent, proposed to his creditors to transfer all his property to trustees, to be divided among his creditors if those holding claims to the amount of three-fourths of his indebtedness would assent and join in a release. Plaintiffs, on being applied to to assent to the compromise and sign the composition deed, refused, on the ground that they would thereby release the firm. Upon being assured by B. that he was only a special partner, plaintiffs consented to transfer the individual claim to R., with the understanding that he should execute the deed and release as creditor, holding any dividends received in trust for them. B,, hy the partnership agreement, was a special partner, but, by reason of irregularity in the proceedings, he had incurred the liability of general partner, which fact he knew at the time, but did not disclose to plaintiffs. The proposed compromise agreement was carried out. Held, that the .case did not fall within the rule prohibiting a creditor, who is a party to a composition deed, or who assents thereto, from reserving a portion of his claim from the operation of the compromise, or stipulating for a secret advantage over the other creditors ; and that the compromise agreement was no defense and did not discharge B.
    (Argued October 26, 1885;
    decided November 24, 1885.)
    Appeal from, judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made June .15, 1883, which affirmed a judgment in favor of plaintiffs, entered upon a decision of the court on a trial without a jury.
    This action was upon three bills of exchange payable to the order of plaintiff’s firm, drawn upon the firm of Hamilton, Nephew & Co., of which firm defendants were the individual members, and accepted by that firm.
    The defendants set up by supplemental answer in substance that after the commencement of the action the defendant Black proposed to his creditors that if a majority of their number, representing at least three-fourths of the claims against him of $100 and upward, would assent and would release him from their claims respectively, he would convey his property to trustees, the avails thereof to be proportionally applied in payment of the claims of the creditors so releasing; that plaintiffs held a note against Black, as well as the acceptances in suit, and to induce his other creditors to accept his proposition and to procure for themselves an advantage, they represented that they would accept the proposition and enter into the arrangement; that-in fulfillment of the arrangement, and the requisite number of creditors having signed the compromise agreement and release, Black transferred his property to trustees; that in violation of their agreement and of tke rights of other creditors, plaintiffs procured one Ritchie to execute the agreement, ostensibly as owner of the note, but in fact as agent of plaintiffs, with the intent to bring the note within the compromise and obtain the benefits thereof, so far as said note was concerned, but withhold the claims in-suit, etc.
    The contention was simply as to such defense; the facts pertinent thereto are stated in the opinion.

      William J. Hardy for appellants.
    The one who controls or has a. right to deal with the debt is the creditor. (In re Petrie, L. R., 3 Ch. 232.) Where creditors enter into an arrangement with a debtor whereby they accept a portion of their respective claims in satisfaction, and agree to forbear as to the balance, then the several creditors are required to act with the utmost good faith toward each other, to bring into the arrangement all the claims they have against the debtor, and not to withhold any claim with a view of afterward maintaining an action upon it, or otherwise procuring for themselves a benefit not equally enjoyed by their fellow creditors. (Russell v. Rogers, 10 Wend. 475 ; Van Brunt v. Van Brunt, 3 Edw. Ch. 14; Holmes v. Viner, 1 Esp. 131; L. R., 15 Ch. 502; Britton v. Hughes, id. 488; Knight v. Hunt, 3 id. 310 ; Bissett v. Burgess, 23 Beav. 278; Chemical Bk. v. Kohner, 85 N. Y. 189 ; Gilmour v. Thompson, 6 Daly, 95; Smith v. Salomon, 7 id. 216; Fowler v. Perrin, 16 Up. Can. Com. Pleas, 258; Story’s Eq. Jur., § 379 ; Holmes v. Miner, 1 Esp. 131; Fawcett v. Gee, 3 Anstr. 914; Ex parte Sadler, 15 Ves. 58.) If a creditor, by undertaking to discharge a debtor, induces any other creditor to accept a composition, he cannot afterward enforce his claim. (Wood v. Roberts, 2 Stark. 417; Fawcett v. Gee, 3 Anstr. 914; Margettson v. Aitkin, 3 C. & P. 338; Britton v. Hughes, 5 Bing. 460 ; Forbes v. Limond, 4 De G., M. & G. 315; Ex parte Sadler, 15 Ves. 56; Jolly v. Wallace, 3 Esp. 228 ; Kitchin v. Hawkins, 12 Jur. [N. S.] 928 ; Butler v. Rhodes, 1 Esp. 236; Cheeseborough v. Wright, 28 Beav. 283; Re Baber's Trust, 40 L. J. Ch. 144; Field v. Donoughmore, 1 Drury & W. 228; 2 id. 630; Spottiswood
      v. Stockdale, Coop. 102.) The liability of the principal depends upon the act done, and hot merely upon the form in which it is executed. (Story, 152, 270, 450; Sherman v. Smith, 42 How. 198 ; Ford v. Williams, 21 How. [U. S.] 287; Rose v. U. S. Tel. Co., 24 How. 311; Trueman v. Loder, 11 A. & E. 594; Coleman v. Bk. of Elmira, 53 N. Y. 392 ; Rinz v. Norton, 4 Cal. 358 ; Mech. Bk. v. Bk. of Columbia, 5 Wheat. 337; Hulbert v. Border, 6 Whart. 92; Evans v. Wells, 22 Wend. 335 ; Hawley v. Beverly, 6 Scott N. R. 837.) It is no answer that the defendant is in the wrong; it is not a ease of par delicto, nor one in which the mere individual rights of the parties to the action are alone to be considered. (Cecil v. Plaistow, 1 Anstr. 202; Lewis v. Jones, 6 Dowl & Ryl. 567; Mawson v. Stock, 6 Ves. Jr. 309; Jackman v. Mitchell, 13 id. 581; Hatch v. Hatch, 9 Ves. 292; Story’s Eq. Jur., § 379; Alsager v. Spaulding, 4 Bing. N. C.407; Cochshott v. Bennett, 2 T. R. 763; Stock v. Mawson, 1 B. & P. 286; Smith v. Bromley, Doug. 696, n. 3; Turner v. Hoole, Dowl. & Ryl. N. P. C. 27 ; Horton v. Riley, 11 M. & W. 492 ; Smith v. Cuff, 6 M. & S. 160; Cullingworth v. Loyd, 2 Beav 385; Story’s Eq. Jur., § 379.) The terms of the deed being plain and particular, the parties to it cannot invoke the statute either in aid or in derogation of their covenants. (Fowler v. Perrin, 16 Up. Can. Com. Pl. 258; Kitchin v. Hawkins, 12 Jur. [N. S.] 928.)

      John B. Whiting for respondents.
    The ground on which it is a fraud for one creditor to prove part of his claim under the composition and release, and hold part as a distinct claim against the debtor, is either because he has made a prior agreement with his fellow creditors to sign the release and accept the composition as a compromise in full, or because by his name appearing on the release he is regarded as holding himself out to others as having accepted the proposition. (Russell v. Roders, 15 Wend. 351; Leicester v. Rose, 4 East, 372; Story’s Eq. Jur., § 379.) ' A release will not be held to include claims not intended to be covered by it. (Post v. AEtna Ins.

      Co., 43 Barb. 351 ; Rich v. Lord, 18 Pick. 322; Lyall v. Edwards, 6 Hurlst. & N. 337.) To release joint debtors by releasing one, there must be a technical release under seal. (Rogers v. Stoddart, 7 Johns. 208; Catskill Bk. v. Messenger, 9 Cow. 37; Matthews v. C. Mfg. Co., 7 Robt. 711; Brown v. Fitzhugh, 1 Hill, 185; Hoffman v. Dunlop, 1 Barb. 185; Code, § 1204.) Even if it were a fact that Ritchie executed the release as agent of the plaintiffs, the acceptances in suit would not have been discharged thereby, and the agency could not be shown by paroi. (Briggs v. Partridge, 64 N. Y. 357; Shafer v. Henkel, 75 id. 378; Evans v. Wells, 22 Wend. 335; Merchants' Bk. v. Hayes, 7 Hun, 530.)
   Andrews, J.

The plaintiffs did not sign the release of January 30, 1879, nor did they enter into any agreement with Black, or his other creditors, to accept a composition upon their demand against Hamilton, Nephew & Co. When Black applied to them to assent to the compromise and sign the composition deed, they refused on the ground that they would thereby release Hamilton, Nephew & Co., on the acceptances. It was not until they were assured by Black that he was a special partner only in the firm of Hamilton, Nephew & Co., and therefore not personally liable on the acceptances, that they consented to transfer to Ritchie the individual note of Black, with the understanding that he should sign the deed and execute the release as creditor, by virtue of such transfer, but under an agreement with the plaintiffs to hold any dividends, received on account of the note, in trust for them. The plaintiffs acted with extreme caution. The suit on the acceptances was then pending. There is not the slightest ground for questioning their good faith, nor is there any reasonable doubt that they relied upon the representation of Black that he was a special partner only in the firm of Hamilton, Nephew & Co. In fact Black by the partnership arrangement was a special partner, but by reason of some irregularity in the proceedings he had incurred the liability of general partner, which fact it is found he knew, but did not disclose to the plaintiffs.

The defendants, for defense to this action, invoked the well-established principle that a creditor who is a party to a composition between a debtor and his creditors, or who assents thereto, is not permitted to make a secret reservation of a part of his claim, from the operation of the compromise, or stipulate for a secret advantage over the other creditors. The law exacts of all the parties to a composition the most scrupulous good faith. It enforces a wholesome morality and inculcates the principles of honest and fair dealing, by defeating any advantage attempted to be gained, either by working upon the necessities of the debtor, or by colluding with him. It will not permit a part of debt withheld from the arrangement, to be enforced, and it will compel the cancellation of securities, received in violation of the principle of equality. (Russell v. Rogers, 15 Wend. 351; Leicester v. Rose, 4 East, 372; Alsager v. Spalding, 4 Bing. N. C. 407; Horton v. Riley, 11 M. & W. 492.) The doctrine is based upon public policy, and the principles of commercial honor, and we should be very unwilling to weaken it by nice distinctions. But to apply it in this case would make it a cover for fraud. The plaintiffs did not intend to reserve any claim against Black, nor did they stipulate for any secret advantage. They were by his fraud induced to believe that he was not personally liable on the acceptances. This is not found in express terms, but is clearly inferable from the findings made, and will be assumed in support of the judgment. They made no representations to the other creditors. They' did not sign the deed, and no oral representations are pretended. The signature of Eitchie was at most a representation that his claim, whatever it was, was released, and the only claim he had was upon the individual note of Black. The other creditors are not here complaining. The defense is made in behalf of Black who is seeking to take advantage of his own fraud, and of his copartners, who were in no way connected with the compromise.

We think the judgment should be affirmed.

All concur.

Judgment affirmed.


author: Earl, J.

text:
    James L. Sharp, Respondent, v. David J. Hutchinson, Impleaded, etc., Appellant.
    (Argued October 26, 1885;
    decided November 24, 1885.)
    Where, because of a failure to comply with the provisions of the statute reference to limited partnerships, a special partner has become liable for the firm debts, the same as if he was a general partner, in an action against the members of the firm upon a partnership debt, it is not necessary for plaintiff to allege in his complaint the attempt to form a limited copartnership, and the special defects which rendered the special partner liable ; it is sufficient to charge him as a general partner, and upon the trial to show that, as to creditors, he is such.
    Appeal from order of the General Term of the Superior . Court of the city of Hew York, made February 19, 1883, which reversed a judgment in favor of defendant Hutchinson, entered upon an order dismissing the complaint as to him on trial. (Reported below, 17 J. & S. 50.)
    The nature of the action and the material facts are stated in the opinion.

      George H. Forster for appellant.
    When the certificate of partnership offered by the plaintiff was received in evidence the whole certificate was properly taken together, which showed that Hutchinson became a special partner only. (Hopkins v. Smith, 11 Johns. 161; Holliday v. MoDougall, 20 Wend. 81 ; Smith v. Griffith, 3 Hill, 333 ; Burnett v. Snyder, 76 N. Y. 344.) The Code requires of a plaintiff that his complaint shall contain a plain and concise statement of the facts constituting each cause of action. The plaintiff was permitted to prove each and every fact contained in his complaint. That was all he could be permitted to prove against defendant’s objection. (Mann v. Morewood, 5 Sandf. 557; Lieman v. Lincoln, 2 Duer, 670 ; Hilsen v. Libby, 44 N. Y. Super. Ct. 12; Moak’s Van Santv. PI. 12; Allen v. Patterson, 7 N. Y. 478; Wright v. Hooker, 10 id. 59; Hudson v. Swan, 83 id. 552; Southwick
      v. First Nat. Bank, 84 id. 428 ; Cook v. Warren, 88 id. 40; Fuller v. Lewis, 3 Abb. Pr. 383; Durant v. Abendroth, 97 N. Y. 132.) Under the law as it has been since 1852 the complaint must state every fact, which the plaintiff must prove to enable him to maintain his action, and which the defendant has a right to controvert in his answer. (Allen v. Patterson, 7 N. Y. 478; Wright v. Hooker, 10 id. 59; Hudson v. Swan, 83 id. 552; Southwick v. First Nat. Bank, 84 id. 428; Cook v. Warren, 88 id. 40; Fuller v. Lewis, 3 Abb. Pr. 383; Mann v. Morewood, 5 Sandf. 564; Moak’s Van Santv. Pl. 173; Lieman v. Lincoln, 2 Duer, 671; Adams v. Mayor, etc., 4 id. 306.)

      Roderick Robertsons for respondent.
    A special copartnership is a creature of statute, and as the statute was enacted for the benefit of the would-be special partner the latter is held to a strict compliance with the statutory provisions as a condition of his exemption from liability as a general partner. (Durant v. Abendroth, 97 N. Y. 132; Haviland v. Chase, 39 Barb. 283; Pars, on Part. 535, 582; Hogg v. Ellis, 8 How. Pr. 470.) The plaintiff had a right to show that defendants had not complied with the requirements of the statute governing the procedure necessary to be observed in order to effect the creation of a special copartnership. (Andrews v. Schote, 10 Barr, 51; Van Dyke v. Rasskam, 67 Penn. St. 333 ; Pierce v. Bryant, 5 Allen, 91; Durant v. Abendroth, 97 N. Y. 132; Haviland v. Chase, 39 Barb. 283.) Plaintiff had. a right to know whether or not the would-be special partner had paid in his special capital. (Madison Co. Bk. v. Gould, 5 Hill, 309.) The certificate and-affidavit must be strictly truthful. (Durant v. Abendroth, 97 N. Y. 132; Haviland v. Chase, 39 Barb. 283; 69 N. Y. 148 ; Van Ingen v. Whitman, 62 Barb. 518; Stone v. De Puga, 4 Sandf. 681.)
   Earl, J.

In April, 1880, the defendants attempted to form a limited copartnership for the purpose of carrying on business in the city of New York under the firm name of Hogg & Patterson, the defendant Hutchinson being the special partner. Thereafter the plaintiff sold the firm certain goods, and this action was brought against all the members of the firm to recover the price of such goods. The defendant Hutchinson alone defended, setting up as his answer the formation of the limited copartnership, and claiming exemption from liability-under the statute as a special partner.

The plaintiff in his complaint alleged a cause of action against the defendants as copartners, making no mention of the attempt to form a limited copartnership ; and upon the trial he proved the sale of the goods to the firm, and then introduced in evidence the certificate and papers filed for the formation of the limited copartnership, from which it appeared that Hutchinson contributed to the capital of the firm $10,000; and then he offered to prove that he in fact contributed only $8,000. Upon the objection of Hutchinson’s counsel this proof was rejected on the sole ground that it was not within the issue. The view of the trial judge was that the complaint, instead of treat ing Hutchinson as a mere general partner, should have been based upon the statute alleging the special defects in the formation of the limited copartnership.

In this there was error. If the proof had been received it would have shown that Hutchinson never in fact became a special partner, blit that he was from the beginning a general partner, and liable as such. (2 R. S., chap. 4, tit. 1, § 8.) The cause of action against him was not based upon the statute, but upon his common-law liability as a general partner, and hence it was proper, in setting forth in the complaint the facts constituting plaintiff’s cause of action, to charge him as a general partner, and then upón the trial to show that he was such by any competent proof.

The General Term was, therefore, right in reversing the • judgment of the Special Term, and its order should be affirmed and judgment absolute ordered for the plaintiff, with costs.

All concur.

Order affirmed and judgment accordingly.