text:
    THOMAS FLYNN, Respondent, v. THE CENTRAL PARK, &c., R. R. CO., Appellant.

      Negligence—liability of master for acts of sonants.—SPreet railroad companies.

    Irrespective of the regulations of the company, the conductor of a street railroad car has a right and a duty, within the scope of his authority, to put off a passenger, even after his fare is paid, if he becomes disorderly or offensive.
    Though the act of an employee be flagrant, reckless and illegal, still if it is within the scope of his authority and employment, and his authority is not used merely for an independent and wrongful purpose of his own, the employer is liable therefor.
    Accordingly, where the conductor of a street railroad car and a passenger had a long altercation, in which the passenger was angry and excited and used abusive and insulting language to the conductor, and finally coming out on the back platform to see where he was, said to the conductor, “ I’ll fix you in the morning. I will go right up to the depot and report you. I am not going to lose twenty cents by you,” whereupon the conductor, without slopping the car, which was moving fast, shoved defendant off the car, whereby he was injured, etc. Held, that the case was properly submitted to the jury, and that a verdict for -plaintiff should not be disturbed.
    Before Sedgwick, Ch. J., Truax and O’Gorman, JJ.

      Decided February 5, 1883.
    Appeal by defendant from judgment in favor of plaintiff entered upon verdict and from order denying motion for a new trial made upon the judge’s minutes.
    The facts and exceptions appear in the opinion.

      Almon Goodwin, for appellant.

      Abel E. Blackmar, for respondent.
   By the Court.—O’Gorman, J.

—The evidence, regarding it in the light most favorable to the plaintiff, showed that on the evening of February 6,. 1880, he was returning from his day’s work at the corner of Fifty-seventh street and Tenth avenue to his home in East Thirty-first street, and got on one of the defendant’s cars which was going east. It was then a little after seven o’clock and dark. He, had knocked off work at half-past five that evening, and after he left the factory he had gone to a beer saloon where he had drunk two or three glasses of beer with friends whom he met there. Soon after getting on the car, an ac-' tive and angry altercation arose between him and , the conductor of the car as to the money handed by him to the conductor in payment of his fare ; the plaintiff saying that he had given the conductor twenty-five cents and demanded twenty cents change, and the conductor contradicting him and saying that plaintiff gave him only five cents. In the course of the dispute, plaintiff charged the conductor with the intention to pocket his—plaintiff’s—money and beat him out of it, and used toward the conductor abusive and insulting language and was angry and excited. Plaintiff followed the conductor, and was told by him to take his seat and keep quiet. When the Car reached to between Forty-third and Forty-fourth streets and First avenue, plaintiff went out on the rear platform to see where he was; when he got out he said again to the conductor, “ I will fix you in the morning. I will go right up to the depot and report you. I am not going to lose twenty cents by you.” As plaintiff turned on the rear platform the conductor shoved him off the car, and he fell in the snow which, lay on the avenue, and received severe injury. The car was then moving fast and did not stop. The evidence sufficiently shows that plaintiff was angry, excited, violent and abusive; that his conduct attracted the attention of the passengers and was unruly and disorderly.

At the close of the testimony on behalf of'the plaintiff, defendant’s counsel moved the -court for dismissal of the complaint on the grounds—First: That no cause of action bad been made out against the defendant. Second: That it affirmatively appeared by the plaintiff’s evidence that the conductor had been guilty of a willful assault on the plaintiff not in the course of his duty. The trial judge denied the motion, and the chief question now is, whether he erred in so doing.

No evidence was given in this case as to any regulations of the defendant corporation specifying the duties of their conductors, but it seems to have been conceded on both sides on the trial and argument of this case that the conductor had the right to put off a passenger even after paying his fare, if he became disorderly or offensive, and not only possessed the right, but the exercise of that right under certain conditions became a duty he owed to the other passengers. The trial judge so charged in effect, and no exception was taken to his charge in that respect, and it may be taken for -the purposes of this contention as expressing the true rule of law,—and if the conductor in the exercise of such right and acting for the purposes and within the scope of his employment and authority, exceeds or abuses his powers to the injury of any one, in that case, the master-carrier—by whom the conductor has been employed is legally responsible for the injury.

But if the conductor, although acting within the scope of his employment and authority, but without regard to his ■ service to his employer and not for the purpose of performing any duty that he as agent or representative of his employer, was bound to perform, but from malice and in order to effect some purpose of his own, foreign to the employment, wantonly commits an assault upon or causes damage to another—in that case "the act is not the act of the master, but the act of the servant only, and the master is not liable for it (Rounds v. R. R., 64 N. Y. 136; Mott v. Consumers’ Ice Co., 73 Id. 547; Hoffman v. N. Y. Cent. & Hudson River R. R. Co., 87 Id. 31).

Hoffman v. N. Y. Central & H. R. R. Co. (supra) is a strong case on this subject. A boy of nine years of age jumped on the steps of a passenger train passing along the street of this city and sat down on the platform of tiie car. The conductor while the train was in rapid motion kicked the boy from the car. The court of appeals held: “No doubt the kicking of the boy off the car, was not only a wrong to the plaintiff, but was a violation of the duty which the train servants owed to the defendant, to exercise proper care in executing the authority confided to them ; but in most cases, where the master has been held liable for the acts of a servant, the tortious act was a breach of the servant’s duty. In this' case, the authority to remove the plaintiff from the car was vested in the defendant’s servants. The wrong consisted in the time and mode of exercising it. For this the defendant is responsible, unless the brakeman used his authority as a mere cover of accomplishing an independent and wrongful purpose of his own.”

The evidence before the court when the case of the plaintiff in the case at bar had closed, would not warrant the trial judge in holding as matter of law, that the conductor in ejecting the man from the car was acting only from 'malice to accomplish his own private ends, irrespective of the duty he owed the company, defendant. The act may have been flagrant, reckless and illegal, still, if it was within the scope of his employment and authority, and his authority was not used merely for an independent and wrongful purpose of his own, the defendant, his employer, was liable.

The trial judge could not have decided this question as a matter of law. It was a question of fact for the jury on the evidence, and was properly submitted to them.

. At the close of the whole case, the defendant’s counsel requested the court to charge the jury that they should render a verdict for the defendant, which request was denied. Defendant’s counsel also excepted to that part of the charge which stated that “if the conductor was acting in the scope of his employment, but exceeded his duty, the defendant .was responsible,” on the theory that there was no question to go to the jury. I can see no error in either of these rulings. .

Evidence was before the jury, which warranted them in finding that the plaintiff, being violent, offensive, boisterous, unruly and disagreeable to the other passengers in the car, was, by the conductor, violently shoved off the car, while' the same was in quick motion, and severely injured there- - by.

The question of the credibility of the testimony, and the . comparative weight to be attached to it, was wholly for the jury, and their decision thereon should not be disturbed.

Judgment affirmed with costs, and order appealed from affirmed, with $10 costs.

Sedgwick, Ch. J., and Truax, J., concurred.


source: Caselaw Access Project

author: Per Curiam. Per Curiam.

license: Public Domain

text:
    THOMAS STILLMAN, Respondent, v. MARY S. VAN BEUREN, Impleaded, etc., et al., Appellant.

      Mortgage of lease—interest of lessor in rents from sub-leases—decree in foreclosure.—Interest—on amount payable from trust fund..

    Appellant, the owner of certain premises, leased the 'same, and her lessee thereafter sub-let the premises and mortgaged the original lease. The parties entitled to the rents under the sub-leases assigned them to trustees for distribution in certain ways, and in an action to foreclose said mortgage such trustees were made receivers, to hold the rents, etc., subject to the judgment of the court.

      Held, in said action that appellant (the original lessor), was not entitled to a direction in the judgment that puch receivers pay to her out of the fund the whole amount of her rent in arrear; that she had no lien upon such fund for rent due her, except as given by special agreement with the parties entitled to the rents under the sub-leases. But, it seems, that the judgment should have contained a direction that said arrears be paid . out of the proceeds of the sale under the judgment; this, as a protection ■ against the exercise of appellant’s right of ending the term for nonpayment of rent, etc. •
    Where the said trustees were directed by the assignment to apply the rents received by them from the sub-leases to the payment of the rent due appellant on the original lease, and provided that “ only $1,500 ” per annum should be so applied.

      Held, that appellant was not entitled to interest on said $1,500, as if it were a debt due on an independent obligation; that it was to be considered part of a fund.
    Before Sedgwick, Ch. J., Truax and O’Gorman, JJ.

      Decided February 5, 1883.
    Appeal by a defendant in an action for foreclosure of a mortgage, from certain provisions in the judgment of sale, etc.
    The facts are stated in the opinion.

      Edward Mitchell, for appellant.

      David Thurston and Henry R. Beekman, for respondent.
   Per Curiam.

—The mortgage was of a lease made by the appellant, .the owner of the fee. Her lessee had sub-let. Parties entitled to the rents under the sub-leases, had assigned them to trustees for distribution in certain ways. One of the trusts was to pay the rents due, or to become due, to the appellent, but not to a greater amount than §1500, in each year. The trustees had been-' appointed receivers in this action to hold the rents collected by them, subject to the .judgment of the court. On the trial, the appellant claimed that the judgment should direct that the receiver should pay to her a certain part of the fund in their hands, above the amount of $1,500, provided by the agreement, on the ground that she was entitled thereto, on account of rent alleged to be in arrear, after the $1,500 were paid. The appellant failed to show that she was entitled to any part of the fund formed of rents collected under the sub-lease, except so far as the assignment provided. She could get an interest in those rents, under the facts of this case, only by voluntary transfer by the person to whom they were legally due. Ho transfer has been made except as to the $1,500. It may, perhaps, be assumed, although it was not shown, that there were arrears. The amount in arrear was not proven. The fundamental difficulty is, she had no title to, or lien upon rents paid under the sub-lease.

It was also argued that the judgment should have provided that the rent in arrear should be paid out of the proceeds of the sale under the judgment. It may be granted, so far as this appeal is concerned, that plaintiff might have required the insertion of such a provision (Catlin v. Grissler, 57 N. Y. 364); that would not have been justified by any right, the appellant would have to be paid out of the proceeds, but, by such payment being a protection against the exercise of the right the appellant would have of ending the term, subject to statute provisions, by dispossessing the lessees and those holding under them, because of non-payment of rent due. The appellant could not claim a right to payment of rent in that particular way. Her rights were confined to enforcing personal obligations to pay rent, and to ejectment for non-payment of rent.

The judgment should be affirmed, with costs.

Appeal in the same action, by the receivers from an order specifying the amount of money that was in their hands, subject to the order of the court, after distribution of the amounts provided to be distributed by the assignment referred to in the decision of the last appeal.

The assignment provided for distribution to different persons. The clause of the assignment relating to said rents, was as follows :

“They (the trustees), shall apply the rents thereafter received (from sub-leases) to the extinguishment of the amount in arrear, or which may at any time be in arrear, for rent, taxes, Croton or assessments, under lease to said Christian F. Dickel (the lessee under the original lease), until there are no arrears of rent due the party of the second part hereto (the appellant) under the lease from her to said C. F. Dickel, and until there are no arrears of taxes, assessments or Croton on said premises. It being agreed, however, that $1,500 per annum only, from and after April 1, 1877, shall be applied from the rents to be received by the parties of the first part to the payment of and on account of the rent thereafter to grow due to the party of the second part under said lease to Christian F. Dickel.”

Per Curiam.

—The receivers took subject to the provisions of the assignment of the rents under the sub-leases. The claim is, that the appellant in the last appeal was entitled, under the assignment, to interest from the time the rent to her fell due to time of payment by the trustees, although that would.require the payment of more than $1,500 under the assignment. It was not the intent of the trust that the $1,500 should bear interest as if it were a debt due on an independent obligation. It was considered a part of a fund. Perhaps, if after the fund should have paid the $1,500, there was no payment, and the fund earned interest, a proper portion of earnings might belong to the $1,500. No claim of that kind is made on the appeal.

The order should be affirmed, with $10 costs.


author: By the Court.—Sedgwick, Ch. J.

text:
    ALBERT PALMER CO., Respondent, v. EDWARD VAN ORDEN, Appellant.

      Lien of attorney for compensation—how affected by settlement between clients. —Motion to open default.

    Before the time to answer had expired, the parties hereto settled the cause of action for $50, without the intervention of their attorneys. Plaintiff’s attorneys claiming their compensation by agreement, to be the taxable costs and the amount of the recovery on the cause of action above $50, after the time to answer had expired, forthwith entered judgment for default of answer, for the full amount of the claim ($87.50) besides interest and costs, and credited the $50 as a payment thereon. It did not appear that defendant had notice of the lien of plaintiff’s attorneys, nor was the good faith of the settlement impeached.
    On an appeal from an order denying a motion to open the default, the proposed defense being the settlement,—Held, that plaintiff’s attorneys were not irregular in proceeding to judgment in the enforcement of their lien upon the costs; but that they had no authority to enter judgment for the full amount claimed, crediting the $50 as a payment on account; and that the lien was upon the actual, not the alleged cause of action, and the attorneys could not claim the right to proceed with the action for the purpose of enforcing such asserted lien upon the cause of action, by showing the amount due to be greater than the parties had fixed it by their settlement.
    Upon a motion to open a default for failure to answer, strict practice requires that a copy of the proposed answer be served with the moving papers, but upon appeal it will be held sufficient if the papers, including the order to show cause, show upon their face the nature of the proposed defense, and that it is good and sufficient; e. g., a settlement between the parties before the expiration of the time to answer.
    Before Sedgwick, Ch. J., Truax and O’Gorman, JJ.

      Decided February 19, 1883.
    Appeal by defendant from order denying motion to open judgment entered for want of answer.
    The action was to recover the sum of $87.50 upon contract. Before the time to answér had expired, the parties, without the intervention of the attorneys, made a settlement, by which the defendant paid to the plaintiff the sum of $50, in satisfaction of the claim made in the complaint. It did not appear conclusively that this settlement included the costs of the action. No answer was served, and for want of answer, the plaintiff entered judgment for the §87.20, $11.19 interest thereon, and $18.58 costs ; in all for $117.27. After entry of judgment, its satisfaction to the extent of $50 was made by plaintiff, as if the $50 had been paid on account.
    The defendant moved to set aside judgment and for leave to serve answer on the ground of the settlement.
    The plaintiff’s attorneys claimed, that they and plaintiff had agreed, before action begun that their compensation was to be the taxable costs and the amount of the recovery above $50, and that they had a lien upon the cause of action and the judgment in the amount of the judgment after the application -of the $50, citing section 66, Code of Civil Procedure. It did not appear that defendant had notice of the lien of plaintiff’s attorneys, nor that plaintiffs before entering judgment on defendant’s default, and after settlement, applied to the court for leave to enter said judgment.
    Further facts appear in the opinion.

      H. B. Whitbeck, for appellant.
    —The parties had a right, to make the settlement, regardless of plaintiff’s attorneys ; its good faith was not impeached (Goddard v. Teenbath, 24 Hun, 182; Sullivan v. O’Keefe, 53 How. Pr. 426). The plaintiff’s attorneys were irregular; they had no right to proceed with action after the settlement (of which they had knowledge) without first obtaining leave from the court to continue the action (Goddard v. Teenbath, 24 Hun, 182). Plaintiff’s attorneys knew defendant intended to settle claim, and gave extension of time to answer to enable him to settle, yet failed to give notice of lien (if they had one) before settlement or judgment, and therefore cannot sustain their present claim (10 Abb. N. C. 392). “ To secure the lien before judgment, there must be either notice or a fraudulent or collusive settlement.” The amended Code, “§ 66,” does not dispense with the necessity of notice, etc. Compensation may be governed by agreement, but a careful reading of the section shows that, although a lien may exist for a special agreement, it cannot be secured before judgment without notice. The necessity of this is obvious, otherwise a defendant would be entirely at the mercy of the plaintiff and his attorney.

      Dill & Chandler, for respondents.
   By the Court.—Sedgwick, Ch. J.

—On the affidavits below, the defendant was not entitled to a finding that the settlement made between the parties embraced the costs of the action as well as the cause of action. The plaintiff disputed that it did, and the affidavits seem to show that the costs of the action were not regarded by either party. I do not perceive that under the facts of the case, especially the character of the settlement, the plaintiff’s attorney was bound to stay proceedings in the action or to discontinue without costs. The defendant, in order to prevent the consequences of not serving an answer, should have served one, setting up such defense" as might be made. If he chose to rely upon the compromise, and not upon a denial of any indebtedness, such a defense would involve the defendant being responsible for the costs of the action up to the time of settlement, at least, unless he alleged and proved that the compromise included the costs.

The plaintiff not being irregular in entering judgment, for default of answer, on the motion to open the default and allow defendant to plead, there were at least two questions. One was, to- what extent did the defendant show that he had a defense to the action % The other was, on what terms should he be allowed to defend ?

Under the first question, the defendant was bound to show affirmatively what his defense was. Strictly, he should have served with his- motion papers a copy of the . proposed answer. He presented an affidavit of merits in the usual form, and his attorney also made affidavit as to a good and substantial defense upon the merits. As matter of practice, this by itself would not have been sufficiently specific. And if nothing more had been shown as to a defense, it would have required a denial of the motion. The papers in other parts show, however, what was the defense • intended, and the order tq show cause stated as ground for the relief asked, “that the claim upon which this action was founded had been paid and settled in full prior to the entry of said judgment.” It has been already said, that the defense, properly pleaded, would not have, been a bar to the action, from the time of its beginning but to the continuance of the action, after the settlement, and would involve the defendant’s paying the hosts to the time of settlement. If, therefore, the judgment had been only for $50, the amount of the settlement and the costs of the action, with a satisfaction as to the amount of the $50, the defendant would not have been entitled to relief, and the motion would have been properly denied, with $10 costs. In that event, it would not have been necessary to determine what terms should be imposed upon the defendant as a condition of opening a judgment that had been regularly taken.

The papers for plaintiff show that they did compromise the claim made in the complaint for the $50, which the defendant paid, and that their attorney knew that a settlement had been made, so far as the claim was concerned. The x plaintiff’s attorneys wrote a letter to defendant’s attorney, saying that they understood that some money had been paid for a settlement, but that, as it was made without their knowledge, “we shall not ratify the settlement, unless our costs are paid and our lien discharged.” A letter of the plaintiff admits impliedly the settlément of the claim, but asserts that in making it nothing was said about the suit, and ended, we “ prefer that you enforce your lien for the costs and services in the case against the subject matter of the action.” An affidavit of one of the attorneys for plaintiff says “that plaintiff’s attorneys have a lien upon the judgment entered in this action for $67.27, being the amount of their services, which were to be and are whatever amount was recovered over $50 and the taxable costs; that the said lien is wholly unpaid and wholly unsatisfied, and the plaintiff refuses to pay the same, and the validity thereof depends upon the judgment entered herein which stands of record to the amount of said lien only.” This seems to be hardly more than a statement of certain conclusions of the affiant-, and not to contain a statement of facts as to any agreement between the parties as to the compensation of the attorneys. The judge below would have been justified in holding that the plaintiff’s attorney did not show that there had been an express agreement as to compensation. If, however, it be taken that there is enough to show that there was an agreement that the attorney should have, as compensation, the taxable costs and whatever amount beyond $50 might be recovered, the practical result, in my judgment, should be the same.

Under the notion that the attorneys held under section 66 of the Code of Civil Procedure, a lien, for the amount of their compensation, of the kind indicated, upon the cause of action, which attached to the judgment when entered, they proceeded to enter judgment fob the whole amount claimed in the complaint, of $87.50, and as interest $11.19, and $18.58 as costs and disbursements. They afterwards satisfied this to the extent of $50, calling it in the satisfaction-piece “part payment” of the judgment. It has been noticed that the plaintiff’s attorneys do not deny that as between the parties to the action, the cause of action has been definitely settled. The only fact to the contrary is that the attorneys chose to apply the $50 to the judgment as if it were a payment on account. They had no authority to make this use of the amount. This error will not affect the result. The attorneys claim that although there was this sufficient and valid compromise, nevertheless, as they had alien, they can prosecute the action on its original merits disregarding the compromise.

It will not be necessary to give a full construction of section 66, for, in my judgment, it is not necessary to go farther than to say, that the lien is upon the actual cause of action and not upon the alleged cause of action. A cause of action exists and has its validity without its being stated in a pleading. What proof is there here that the cause of action which the plaintiffs had is other, than a legal right to recover $50 ? I do not see anything to show that plaintiffs were entitled to recover more than this amount. This has to be shown as against the defendant. Against him, tile complaint does not prove it. Nor does his default of an answer prove it, in view of the facts shown, which include the settlement. The plaintiff’s attorneys claim the power to proceed with the action, irrespective of the otherwise manifest fight of the plaintiff to agree to a compromise, and this power is claimed because the attorneys assert a lien. Assume that the parties had no right .to agree that the amount due was less than in fact it was, the attorneys must show that the amount was less. There is no proof of this. In truth, the attorneys claim the right to proceed with the action for the purpose of showing that more than $50 was due. At least, such is the nature of the claim in its essential character, as would be shown if an answer had been served. Parties, however, do' not always succeed in proving what they assert. The plaintiff might be unsuccessful, i and it would then appear that the attorneys had no lien beyond the taxable costs. The experiment that the theory of the respondent proposes should not be made at the expense of both the parties.

What has been said does not refer to the taxable costs. It would appear that the attorneys had a lien for them. The motion should have been denied as to them. The judgment as to the amount of recovery should have been reduced to $50. It was correct to provide that the motion costs be paid by the defendant.

Although this result requires a modification of the order made below, it seems to be in accordance with McCabe v. Fogg (2 Month. Law Bull. 7.)

Order modified as indicated above, without costs to either party.

Truax and O’Gorman, JJ., concurred.


text:
    WILLIAM SCHULTZ, by Guardian, Etc., Appellant, v. THE THIRD AVENUE R. R. CO., Respondent.

      Security for costs from infant plaintiff, in what actions may be demanded.— Code Civ. Pro. §§ 3268, 3347, subd. 4, 13, construed.

    The defendant is entitled, under § 3268, Code Civ. Pro., to demand security for costs in an action by - an infant plaintiff, though such action was begun before the passage of said Code; viz., in December, 1877.
    The rule requiring that a statute-shall not be construed so as to have a retroactive effect, unless . necessary to give operation to some portion of it, is not applicable to said section, since it has not actions for its subject, but only a proceeding in an action, thereafter to be taken. •
    Subdivisions 4 and 13 of § 3347, Code Civ. Pro. are not to be construed as limiting § 3268 to actions begpn before September 1, 1877. An inspection of the whole of said section shows that its discriminations do not turn alone upon the timé of the commencement of the actions.
    Before Sedgwick, Ch. J., Truax and O’Gorman, JJ.

      Decided February 19, 1883.
    Appeal by plaintiff from order requiring plaintiff to give security for costs under section 8268 of the Code of Civil Procedure.
    The action was begun in December, 1877. The motion below, that plaintiff give security for costs, was made in September, 1882. Section 3268 enacts that “ The defendant in an action brought in a court of record, may require security for costs, to be given as prescribed in this title where the plaintiff was when the action was commenced . . 5, an infant whose guardian ad litem has not given such security.” This section is contained in title 3, chapter 21 of the Code. The guardian in this action had not given such security.
    “ The objections to the motion were, 1st, that the section cited could not be construed to operate retroactively as to actions that had been begun before the section took effect, viz.: on September 1, 1880, subject to the qualifications contained in section 3347 ; and, 2nd, that the construction of the 4th and 13th subdivisions of section 3347, was, that section 3268, under which the motion was made, should not apply to actions begun after September 1, 1877.

      Stillwell & Swain, for appellant.

      Lauterbach & Spingarn and H. Morison, for respondent.
   By the Court.—Sedgwick, Ch. J.

—It is claimed that if the Code had not made a specific provision as to the actions to which section 3268 should be applied, the rule of construction that in general “a statute shall not be so construed as to operate retrospectively, or take away a vested right, unless it contains an enumeration of the cases in which it is to have such an operation, or words which can have no meaning, unless such a construction is adopted” (Broom's L. Max. 4 ed. 28, approved in Amsbry v. Hinds, 48 N. Y. 60), would demand that the section be not applied to actions that were pending when the section became law. It was not claimed that the legislature was without the power to make the provision applicable to pending actions.. The plaintiff had no vested right of property which the constitution would protect. He was not aided by the consideration that might be favorable -to his claim, that the granting of the application might open some proceeding that had given him a substantial right or some adjudication that had been final in Ms favor. The subject of the statute was not new. It was a repetition of a provision of the Revised Statutes (2 R. S. 620, § 1), and related to a remedy in so far as it was a condition of bringing or continuing an action. The proposition is simply that the statute, making no reference to pending actions, shall be intended to refer only to ' future actions. This, however, is not a pertinent consideration when it is perceived that the section does not intend to make its subject actions pending or not pending. Its subject is a proceeding in an action to be taken in the future, and the only reference to actions is that at the time of the future application they must be of the kind, and in the state specified by the section. The statute need not, therefore, be construed to operate retrospectively, to just-'. ify granting the motion below which was made after the statute was passed.

To prevail, then, the appellant must be right in claiming that' from the effect of other sections of the Code, this particular section is not to be appliell in actions begun after September 1, 1877. The argument is that section 3347 regulates and qualifies the application of certain sections of the Code according to the time when actions were begun, that the 4th subdivision of the section declares that certain parts of chapter 5 and the whole of chapter 6, apply only to an action commenced on or after September 1, 1877, in the supreme court, a superior city court, the marine court of the city of New York, or a county court; that subdivision 13, in declaring that in chapter 21, titles first, second and third, in which last title section 3268 comes, apply only to an action in one of the courts specified in subdivision 4, and in omitting to specify the actions to which chapter 21, titles 1, 2 and 3 shall apply as actions commenced on or after September 1, 1877, intends that they shall not be applied to actions commenced after September 1, 1877, but only to actions begun before September 1,1877, the present action having been begun in December, 1877. An inspection of the whole of section 3347.shows that it did not intend to make its discriminations turn only upon the time when actions might have been begun. It also had regard to persons and proceedings. The provision of subdivision 4 referred not only to actions being begun after September 1, 1877, but also to the courts in which they should be commenced. If you assume that subdivision 13 does not intend to refer to the time of beginning actions by implication, then the argument rests upon the consideration that section 3268 went into effect on September 1, 1880. That has been already considered. On the other hand, if any implication was intended by omitting to say that chapter 23 was to be applied to actions begun after September 1, 1877, when subdivision 4 and others had made such an application, that implication would be that chapter 21 was intended to apply not only to actions after that date but also to those begun before it, which of course does not aid the appellant.

I am opinion that the court below had authority to require the plaintiff to give security for costs, but the order should have complied with section 3272, in requiring the plaintiff to pay into court the sum of $250, to be applied to costs, if any, or at his election to give the undertaking specified in the order that was made.

The order should be modified in the respect indicated, without costs to either party.

Truax and O’Gorman, JJ., concurred.


text:
    SAMUEL SCHWENK, et al., Respondents, v. ROBERT NAYLOR, Appellant.

      Pleading—construction of.—Order of a/rrest.—'False representations.

    In an action to recover damages for inducing plaintiff to part with his money by false and fraudulent representations, the complaint alleged that defendant stated to plaintiff that he (defendant) was “ the sole owner of the stock of a certain corporation .... which company owned and held the title to about thirty-three acres of land situated at Appalachicola, Franklin county, Florida, having thereon a large and valuable saw-mill .... water front .... wharves, all of which he represented to be of great value and a rare investment.” The complaint further stated that defendant “ pretended to point out to plaintiff the metes and bounds of said lands,” and “ further pointed out that the company’s land included, etc.” Defendant’s ownership of the stock was fully proven by his affidavits.
    Upon a motion to vacate an order of arrest,—Held, that the clause “which company owned, etc.,” and those which follow, are to be deemed descriptions of the property made by the pleader, and not allegations of statements made by defendant to plaintiff; that the allegation “all of which he represented to be of great value, etc.,” concerns a matter of opinion, not of fact; that the words “ pretended to point out,” and “ pointed out,” are not the equivalent of said or represented; and that, as the above were the false representations relied on, and as they were not stated in the complaint with definiteness and certainty sufficient to constitute such a cause of action, the order of arrest must therefore be vacated.

      Before Sedgwick, Ch. J., Truax and O’Gorman, JJ.

      Decided February 19, 1883.
    Appeal by defendant from order denying liis motion to vacate an order for his arrest.
    The facts appear in the opinion.

      William L. Snyder and William B. Putney, for appellant.

      Joseph Fettrich and A. R. Dyett, for respondents.
   By the Court.—Sedgwick, Ch. J.

—I am of opinion that the order of arrest should have been vacated, on the ground that the affidavits did not show fraud as to the cause of action which the complaint alleged.

The claim is that the complaint shows that by reason of false and fraudulent representations made by the defendant, the plaintiff was induced to part with certain moneys. The complaint to sufficiently set out such a cause of action must state with directness and certainty that the defendant made the representations. The part of the complaint which shows what the defendant did state is as follows: That the defendant “stated and represented to the plaintiffs that he was the sole owner and holder of all the shares of the capital stock of a certain corporation, formed under the laws of this State, and known as the Central Florida Mills <& Lumber Company, which company owned and held the title to about thirty-three acres of land situated at Appalachicola, Franklin county, Florida, having thereon a large and valuable saw-mill, with its machinery, fixtures, and appurtenances, also having an extensive water front of over two thousand feet, on Turtle .Harbor, with large and commodious wharves, all of which he represented to be of great value—a rare investment.”

The clauses “which company owned and held the title ” to thirty-three acres of land, and “having thereon a large and valuable saw-mill, etc.; also having an extensive water front, with large and commodious wharves, etc.,” do not appear to be allegations of statements made by the defendants, but are descriptions of the property made by the pleader. The rule is, that allegations which are consistent with there being no cause of action are not to be deemed as tending to show a cause of action, and in this casé, it as much appears that the defendant did not assert the existence of the facts embodied in the clause referred to as that he did.

The last clause—“all of which he represented to be of great value and a rare investment,”—taken in a sense most favorable to the plaintiffs, does not refer to anything which would make the cause of action on which the plaintiffs rely. It refers to the stock, the land, the mill, the water front and the wharves. The plaintiffs do not deny the value of these; and if they did, the matter was of opinion and not of fact. It does not contain an allegation of a representation that the water front was a part of the property, and the plaintiffs rely for their cause of action mainly on their claim that such a representation was made.

"The complaint subsequently alleges that afterwards the defendant met one of the plaintiffs in Florida, and then and there pretended to point out “to that plaintiff the metes 'and bounds of said lands,” and “further pointed out that company’s land (included in said thirty-three acres) took in and included all of the land immediately south of the mill between said mill and a certain creek, with said watel’ front of two thousand feet as aforesaid ; that the defendant then and there, in repetition of what he had before said in that behalf, reiterated and represented that said water front and wharfage were of great and permanent value to the property and business.” Excluding the allegations of “pointing out” and “ pretending to point out,” this part of the complaint does not strengthen the attempted statement of a cause of action. The words “pretending to point out” and .“pointed out,” have no definite meaning, and certainly are not the equivalent of said or represented. They describe acts of some kind, and there are no. sufficient allegations that these undefined acts were of a fraudulent character. There is no allegation, moreover, that any money was paid upon the inducement of the representations set out in the latter part of the complaint. It is consistent with the allegations of the complaint taken together that all the moneys were paid upon the faith in the representations as first alleged.

There remains, then, only the representation first alleged in the complaint, that the defendant owned the shares referred to. There is no doubt of the truth of this representation.

The order appealed from should be reversed, with $10 costs, and the order of arrest should be vacated with $10 costs, to abide event.

O’Gorman, J., concurred.


author: By the Court.—Truax, J.

text:
    HENRY GOODWIN, et al., Respondents, v. JACOB GOLDSMITH, et al., Appellants.

      Demand—when necessary in action to recover goods obtained on false representations.—Attorney—credibility of, when witness in behalf of client.—Commercial agencies—statements to.

    In an action brought to recover the possession of certain goods alleged to have been obtained by false representations, as against one who innocently took and held said goods as assignee for the benefit of creditors of the vendees, a demand must be shown; but in such case no demand is necessary as against the vendees who made the assignment.
    That the assignee in such case claims in his answer to own the goods, and through the sheriff retakes them, does not obviate the necessity of proving a demand on him.
    Where the sole evidence of a demand is given by one of the attorneys for plaintiff, as he is not to be deemed a disinterested witness, and his credibility is a question for the jury, the court should not on his testimony withhold the question of the demand from the jury.
    In such an action the evidence showed that four or five months previous to the sale in question, defendants stated to a commercial agency that their liabilities were §4,500, and their assets §35,000, which statement was false, and known by defendants to be so; that the statement was made with intent to deceive; and that learning of this statement and relying upon it, etc., plaintiffs made the sale in question to defendants upon credit. Held, that plaintiffs had a right to presume that defendants solvent condition would continue to the time of the sale, and that if defendants fraudulently concealed their insolvency from plaintiffs the sale was void.
    Evidence was admitted showing that defendants made similar representations to other persons about the time of that in question here. Held, no error. 1
    Before Sedgwick, Ch. J., Truax and O’Gorman, JJ.

      Decided February 19, 1883.
    This is an appeal from a judgment in favor of the plaintiffs entered upon a verdict of a jury, and from an order denying a motion for a new trial made on the judge!s minutes.
    The action was brought to recover certain goods which the defendants, Jacob and Louis Goldsmith, had obtained from the plaintiffs by and through certain false and fraud- . ulent representations as to their solvency, and by a fraudulent concealment of their insolvency, and which goods they had assigned to the defendant Wertheimer for the benefit of their creditors.
    The complaint was amended on the trial so as to allege a demand on the defendants.
    Further facts appear in the opinion.

      M. H. Regensberger, for the appellants.

      Kelly & MacRae, for the respondents.
   By the Court.—Truax, J.

—The court charged the jury that a sufficient demand on the defendants for the goods had been proved, and that on that point they were to find for the plaintiffs. To this the defendants excepted. The evidence of a demand is substantially as follows: One of the attorneys for the plaintiffs testified that he went to the Goldsmiths’ place of business ; that he did not see the assignee there, but did see the defendant Louis Goldsmith, and two clerks, and “made a demand, and they said they had no authority in the matter.” This statement he modified somewhat on cross-examination, so that the evidence is very indefinite as to when, and on whom, the demand mand was made ; but it was not made on the assignee nor was it made at his place of business.

The assignee came into the possession of the goods innocently, and therefore it was necessary for the plaintiffs to prove a demand for the property on, and a refusal by him to comply with such demands before they could maintain this action against them (Hall v. Robinson, 2 N. Y. 293; Jessup v. Miller, 2 Abb. App. Dec. 449; Sluyter v. Williams, 31 Super. Ct. 215; Talcott v. Belding, 36 Id. 92; Bliss v. Cottle, 32 Barb. 322).

Whatever evidence there is of a demand was given by one of- the attorneys for the plaintiff. He was not a disinterested witness. His credibility was a question for the jury, and the court was not warranted in withdrawing the question of the demand from the jury upon his evidence alone (Kavanagh v. Wilson, 70 N. Y. 179; Gildersleeve v. Landon, 73 Id. 609).

The learned counsel for the plaintiffs contends that, because the defendant Wertheimer claimed in his answer to own the goods, and because he re-took them from the sheriff, this claim and retaking is inconsistent with any hypothesis that he would surrender them on demand, and obviates the necessity of proving a demand. This position is untenable, and the cases cited by the learned counsel do not sustain the position.

If, in fact, no demand has been made, the plaintiffs cannot recover, and Wertheimer cannot be said to have waived his defense by pleading it.

The evidence shows that the defendants Jacob and Louis Goldsmith had assigned and delivered the goods which they had obtained from the plaintiffs to the defendant Wertheimer before the commencement of the action. This delivery was a conversion of the goods and rendered a demand unnecessary.

The case was submitted to the jury by the court upon the theory that the charge of fraud was proved if the jury believed the Goldsmiths had made false representations as to their solvency to the mercantile agencies, for the purpose of having such representations communicated to the persons from whom they purchased goods, and that such representations were communicated by the said agencies to the plaintiffs, and were made for the purpose of deceiving and defrauding the plaintiffs and others, and did, in. fact, deceive and defraud the plaintiffs. There was no exception to the charge.

The defendants requested the court to charge, “that a purchaser of goods owed no obligation to the seller to communicate his financial condition.” To this the court replied by saying: “He owes no obligations whatever, under such circumstances, except to be honest, and tell the facts, and not fraudulently conceal anything ; and, if he has not told any falsehood and has not fraudulently concealed anything, then there is nothing against him and the plaintiffs cannot recover.”

The defendants also requested the court to charge, that ‘1 a purchaser who received goods on credit need not state to the seller that there has been any change in the financial .condition since the prior dealings.” In answer to this request the court charged: “There is no law that compels him to do it, but if he keeps silent when he ought to speak out, he must take the consequences, and any purchase he makes under those circumstances will be void.” The defendants excepted to each refusal to charge as requested, and to each of the above parts of the charge.

The refusal to charge as requested was not error, because, if for no other reason, the requests were not applicable to the facts of the case.

The evidence shows that the Goldsmiths had dealt with the plaintiffs for some years prior to the purchase of the goods which are the subject of this action, and had paid for all goods they had purchased ; that they had made certain representations to mercantile agencies as to their solvency prior to the purchase" of these goods; that these representations had been communicated to the plaintiffs; that they were false, and the Goldsmiths must have known them, to be false; and that the plaintiffs relied on such representations and were defrauded by them.

It must be presumed that the defendants made the representations to Wood & Co.—the Mercantile Agency—for the purpose of having such representations communicated to the plaintiffs, for their guidance in giving credit to them (Eaton v. Avery, 83 N. Y. 31). Such representations were communicated to the plaintiffs. The case stands, then, as though the Goldsmiths had told the plaintiffs, about four months prior to the time of buying from them that their assets were of the value of about $35,000, and their liabilities only $4,500. This statement was false, and was known by the Goldsmiths, at the time they made it, to be false. The plaintiffs had a right to rely on this statement. They did rely on it. The jury found, under the charge of the court, that the representations were made with the intent to deceive, and that they did deceive the plaintiffs, and there is sufficient evidence to sustain this finding. The plaintiffs had a right to presume that this solvent condition of the said defendants would continue to exist at least for four or five months. If the Goldsmiths fraudulently concealed their insolvency from the plaintiffs, with the intention of deceiving and defrauding the plaintiffs, there was no error in the charge as made.

The plaintiffs were permitted to prove, the defendants objecting and excepting, representations made by the Goldsmiths to other persons, at or near the same time, and of a similar character as those which were communicated to the plaintiffs. This was competent upon the question of fraudulent intent (Miller v. Barber, 66 N. Y. 558).

The judgment and order are reversed as to the defendant Wertheimer, and a new trial is ordered, with costs, to the appellant Wertheimer to abide the event of the action.

The judgment and order against the defendants Jacob and Louis Goldsmith are affirmed, with costs.

O’Gorman, J., concurred.


author: By the Court.—O’Gorman, J.

text:
    HENRY A. BATE, Respondent, v. WILLIAM O. McDOWELL, et al., Appellants.

      Principal and broker—failure to keep accounts—confusion of property.— Partnership—assumption by firm of liability for act of member.— Objection■—waiver of.

    Where a broker is employed by liis principal to sell certain bonds at the best market price at his discretion, using therein his best care and skill, his refusal, after informing the principal of the sale thereof, to disclose the time of the sale or sales and the amounts realized thereby, raises a presumption against him authorizing the strictest construction of the evidence as to amount, value and price, in an action by the principal to recover the amount received for said bonds.
    In such an action,, where it appears that the broker sold certain of his principal’s bonds, and also certain of the same bonds in which he was personally interested, at a time when the market price was highest, and that the same had been so mixed and confused by him that he was unable to distinguish between them, the jury are at liberty to find that all -the bonds sold were the principal’s, up to the amount left by him with said broker, and that they were sold at the highest market price.
    Where an agent fails to keep or produce accounts, all presumptions of value are against him.
    In such a case, where said broker, subsequent to the sale of the bonds, enters into a copartnership with others, viz., his clerks and employees, the agreement providing that said broker should contribute to the firm . all the assets and interest in his former business, and such firm thereafter renders to the principal a statement of the transaction admitting a liability thereon less than that claimed by the principal, and admit in their answer that they assumed the sum therein named as part of the liabilities of the original business, they thereby adopt the whole transaction as their own, and are liable for the whole amount due the principal under the above rules, in an action for money had and received.
    Where pldintiff reads in evidence a portion of the separate answer of a defendant as to certain matters therein admitted, the objection of the co-defendants that all of the answer upon the same point should have been read, is waived by their examination at large of said answering defendant on the same subject.
    Before Truax and O’Gorman, JJ.

      Decided February 19, 1883.
    Appeal by defendants from judgment entered on verdiet for plaintiff and from order denying a motion for a new trial made upon the minutes.
    The facts are stated in the opinion.
    J. A. McCreery, for appellants.

      John Brooks Leavitt, for respondent.
   By the Court.—O’Gorman, J.

—This action is brought for the recovery of money alleged to have been received by the defendants for the use of the plaintiff, the amount claimed being $12,187.50.

The jury before whom the action was held rendered a verdict in favor of the plaintiff for $8,187.50. Motions were made on the part of the defendants for the dismissal of the complaint, to set aside the verdict, and for a new trial on the judge’s minutes, on the ground that the damages were excessive, and the verdict was contrary to the evidence. These motions were denied, and defendants appeal.

The material facts as they appear in evidence in support of the plaintiff’s claim are as follows : On April 1, 1880, the defendants executed a deed of copartnership for carrying on in the city of New York the general banking, brokerage and commission business, under the name of “McDowell Bros. & Company.” Previous to that time the business had been carried on by William McDowell, one of the defendants, alone, and the other defendants were his clerks and employees. The partnership deed provided that William O. McDowell was to contribute to the firm all the assets and interest in his business, and that neither of the partners should engage in any other business during the partnership, but each should give his whole time, thought and attention to the purposes of the partnership. For some time before the formation of the partnership the plaintiff had employed this W. O. McDowell to purchase securities for him, and on May 14, 1879, McDowell held in his hands certain bonds called “New Jersey Midlands,” the property of the plaintiff. W. O. McDowell wrote to plaintiff under that date that he could sell the “ New Jersey Midlands ” so as to give plaintiff a profit of about $2500, and thought he could invest the proceeds so as to make $10,000 turn into $15,000 in the next 90 days. About May 17,1879, plaintiff had an interview with this defendant, William O. McDowell, in which he told plaintiff that he knew a quiet, stagnant security in the market which could be purchased very low but would advance very soon to a respectable figure, and advised plaintiff to invest in it. McDowell did not then mention the name of the securities. Plaintiff thereupon instructed McDowell to sell the New Jersey Midlands, and McDowell under date of May 17, 1879, furnished the plaintiff with an account in writing showing a balance in his hands after the sale of the “ New Jersey Midlands” in favor of the plaintiff of $8,902.50. A few days afterwards, McDowell called on plaintiff at the store in which he was employed, handed him a check for $8,902.50, which check plaintiff indorsed, and passed back to McDowell in order that the amount should be invested in other securities.

About a week afterwards plaintiff called at McDowell’s office, and was told by McDowell that he had purchased for plaintiff New York and Greenwood Lake R. R. bonds to the amount of $40,000 par value at the rate of 13 cents on the dollar. Soon afterward, on July 5,1879, another interview took place between plaintiff and said William O. McDowell, in which the latter told the plaintiff that the New York and Greenwood Lake bonds had advanced to 15 cents on the dollar, while New Jersey Midlands had declined, and asked plaintiff whether he would change the investment, sell the New York and Greenwood Lake bonds and repurchase “New Jersey Midlands,” and plaintiff told McDowell to hold the New York and Greenwood Lake bonds and sell them at his discretion at the best market price. After that interview plaintiff called on defendant, W. O. McDowell from time to time during the winter and spring of 1880, to inquire whether the New York and Greenwood Lake bonds had been sold. McDowell said he had not sold them, and would not sell them until he could get Ms price. In June, 1880, plaintiff again called on McDowell, and was told by Mm that he had sold these bonds, but he declined to state the price, and on being pressed for information on that subject, he said to plaintiff, “yon will be satisfied,” nothing more. For some months afterward, plaintiff continued to call on W. 0. McDowell for an account of sale of these bonds, but without success, until, on October 8, 1880, plaintiff received from, the firm of “ McDowell Bros. & Co.,” of which the defendants are the members, a written statement with the heading “Henry A. Bate, in account with McDowell Bros. & Co.,” in which plaintiff is credited, under date of June 26, 1880, with profits on purchase and sale of N. Y. & G. L. bonds less commissions $700, average interest 4 per cent, and with a balance in favor of plaintiff on the whole account of $4,397.75. This sum, defendants admit in their answer they had assumed as part of the business liabilities of William O. McDowell, and as due by their firm to the plaintiff.

Plaintiff claims that this account is untrue, in that it does not truly set forth the profits actually realized on the sale of the New York and Greenwood Lake bonds purchased for plaintiff and sold for him at the best market price according to plaintiff’s instruction.

It is in evidence that defendant W. O. McDowell declined to inform plaintiff of the price realized by the sale of these N. Y. & G. L. bonds, which in June, 1880, he told plaintiff he had sold, and up to the time of the examination of W. O. McDowell at the trial as a witness in behalf of the defendants, he refused to give plaintiff any information on that subject. He then gave this account of his relations with the plaintiff on the subject: Before any dealing with the plaintiff as to these N. Y. & G. L. bonds, W. O. McDowell had been the secretary of that company, was jointly interested with the firm of Phelps, Stokes & Co., in about $250,000 worth of them, and he had on hand $60,000 worth or more which belonged to himself. In the last named lot he gave plaintiff an interest to the extent of $40,000 at the price of thirteen cents on the dollar. Of this alleged arrangement no entry whatever was made in any account book of W. O. McDowell. The bonds were to belong to plaintiff. McDowell was to act as broker, to receive no commission, but only one-half of the profit. W. O. McDowell further testified that he had frequent transactions as to H. Y. & Gf. L. R. R. bonds before and after his alleged arrangement with plaintiff. He had made efforts to create or improve the market for these bonds, and did improve it until it had reached a point at which he was willing to sell. That he made no distinction between the bonds in which he was interested jointly with Phelps, Stokes & Co., and those in which he was interested jointly with the plaintiff, and had no means of determining in which of them plaintiff was interested ; that he sold $5,000 of these bonds on December 24, 1879, and $15,000 on Januuary 15, 1880, at twenty cents on the dollar, and credited these sales to the transaction between him and plaintiff, realizing on these sales $1,400, one-half of which was credited to plaintiff, and one-half of which he took to himself at thirteen cents. That he sold some of the bonds, in which he and Phelps, Stokes & Co. were interested, at twenty-three and some at a fraction below twenty-four cents on the dollar, during January, 1880.

Witnesses on the part of the plaintiff testified that bonds of the H„Y. & GK L. R. R. were sold in the Hew York market in January, 1880, at twenty-five cents on^the dollar.

The questions as to the credibility of the various witnesses, the reconciling contradictions and discrepancies and the comparative weight to be attached to the testimony on both sides were left to the jury, and the question now to be considered is, whether the jury, if they preferred to believe the account of the transaction most favorable to the plaintiff, had evidence enough to justify them in finding, as they did find, that these U. Y. & G-. L. R. R. bonds were purchased for and belonged to the plaintiff, were sold for him at the best market price—-twenty-five cents on the dollar, and that the defendants, constituting the firm of “MeDowell Bros. &Co.” are liable to the plaintiff for the amount realized on the sale of said bonds at that rate.

As far as the relations between the plaintiff and William 0. McDowell are concerned, it was the duty of the latter, as the broker of the plaintiff, to act on plaintiff’s instructions and to sell the bonds at the best market price, using therein his best care and skill.

When, as he informed the plaintiff, he did sell the bonds, he was also bound to inform plaintiff, when requested by him, of the time or times of the sale and the amounts realized by the sale, or sales, and to exhibit toward plaintiff therein perfect good faith and candor; and his refusal to, give plaintiff the information on the subject of the sale of the bonds, for which plaintiff asked, and continuing that refusal up to the time of the trial of this action, raises a presumption authorizing the strictest construction of the evidence against him as to amount, value and price (Wylde v. R. R., 53 N. Y. 156; Story's Eq. J. §§ 308, 315, 316; Miller v. Kent, 23 Hun, 657).

The market value of the bonds in December and Janu1879, 1880, being proved to have been twenty-five cents on the dollar, or, as defendant W. O. McDowell testified, within a fraction of twenty-four cents on the dollar, at which rate he himself sold some of these bonds, it may be presumed that he then did his duty and" sold the plaintiff’s bonds at that rate.

In case of an agent failing to keep or produce accounts, all presumptions of value are against him.

The fact of W. 0. McDowell mixing and confusing plaintiff’s bonds with bonds in which he himself had an interest, leaves the jury at liberty to find that all the bonds sold by him up to §40,000, par value, were bonds of the plaintiff’s, and sold at the highest market price (Story's Eq. J. §§ 468, 628).

If William O. McDowell was the only defendant, the jury, in my opinion, had enough of evidence before them to warrant, as against him, the verdict which they have rendered in this case.

The next question is, whether the other defendants, comprising, together with W. 0. McDowell, the firm of “McDowell Bros. & Co.,” have by any act of theirs so far assumed the liability of W. O. McDowell in this transaction,' as to be equally responsible with him for the sale of these bonds at the best market price.

In June, 1880, William O. McDowell informed plaintiff that he had sold the bonds. The partnership had been formed in April, 1880. On October 8, 1880, the firm of “McDowell Bros. & Co.” sent to plaintiff an account in writing, written by "Van Name, one of the partners, headed: “Henry A. Bate, in account with McDowell Bros. & Co.,” in which they set forth and admitted their liability as a firm to plaintiff for the purchase and sale of the plaintiff’s bonds, charged themselves with a cash balance in plaintiff’s favor, under date of May 19, 1879, of $8,902.50, being the same balance stated by William O. McDowell in his letter to plaintiff of May 17, 1869. They debit themselves with interest on the balance $472.87, being interest at four per cent, from the date last mentioned. They debit themselves, on June 26, 1880, with $700 profit on sale of the bonds, and with a general balance due plaintiff in account with them of $4,397.75.

By this conduct, in my opinion, they have adopted the whole transaction as their own, both the benefit derived from it, and the responsibility resulting from it as part of the business of William O. McDowell, and if they have erroneously, falsely, or fraudulently misstated or understated the proceeds of the sale of plaintiff’s bonds, they are, equally with William O. McDowell, bound to plaintiff to do him right.

If this view of the case be correct, I can see no error committed by the trial judge either in the admission or rejection of testimony, and no valid exception to his charge.

The jury seem to have calculated the amount of the verdict charging against defendants $10,000 as the selling value of the bonds $40,000 at twenty-five per cent. In my opinion there was enough of evidence in the case to justify them in so doing.

A question was raised in this case whether an action for money received by defendants to the use of the plaintiff was the proper remedy, and whether an action for an account was not the correct form of action.

I see no force in that objection. The verdict in this case was founded on the belief entertained by the jury that the plaintiff’s testimony was true, that the bonds in question were his bonds, purchased for him, with his money, by the defendant, W. O. McDowell, and their reliance on the unqualified admission of said McDowell in June, 1880, testified to by the plaintiff and by McDowell himself, that he, McDowell, had sold the bonds, and on McDowell’s admission that he had sold such bonds in January, 1880, at a fraction below twenty-four cents on the dollar, and on the testimony of other brokers that such bonds at the same time had been sold in the New York market at twenty-five cents on the dollar; and on the facts admitted by said defendant that he had mingled and confused the plaintiff’s bonds with bonds of other parties for whom he dealt, and with his own, and also that he had persistently evaded and refused to perform his duty to plaintiff as his broker to give full and specific account of the sale made by him of the plaintiff’s bonds, and the prices realized therefrom.

On these facts the jury were justified in finding as matter of legitimate inference that the plaintiff’s bonds had been sold at the highest market price that could, with reasonable care, have been obtained for the same, and that the proceeds of such sales were in the hands of the firm of which said McDowell was a partner, and which, under their firm name, rendered an account to plaintiff, in which they acknowledged their connection with the purchase and sale of the plaintiff’s bonds and their liability to plaintiff for the same.

It was not necessary to establish that each defendant had personally received a part of the proceeds of these bonds. If the whole proceeds were received by W. O. McDowell, one of the partners, all of them would be liable for the entire sum (National Trust Co. v. Gleason, 77 N. Y. 404).

This was a question for the jury, and was left to the jury by the trial judge.

The defendants object that the trial judge erred in allowing the plaintiff’s counsel to read as evidence on his behalf, a pdrt of the separate answer of William O. McDowell, without at the same time, and also as part of the plaintiff’s case, reading all other parts of the said answer which bore upon the subject.

The right of the defendants to read on their own behalf, all other parts of said answer that bore on the subject was recognized by the court. The defendant, W. O. McDowell, was examined at length on behalf of the defendants, and testified on the same subject, and the defendants had ample opportunity to put his whole answer' in evidence if they had been so advised (Mott v. Consumers Ice Co. 73 N. Y. 550.

The plaintiff was not bound to read the whole of the said answer as part of his case, and if, he were, the. objection was waived by the defendants, by their examination of William O. McDowell on their own part, and by his testifying at large on the subject- (Westlake v. St. Lawrence Mutual Ins. Co., 14 Barb. 212).

In this way, their whole case, in its aspect the most favorable to them, was presented to jury.

The judgment is affirmed, with costs, and the orders appealed from are also affirmed, with $10 costs.

Truax, J., concurred.


author: Per Curiam.

text:
    ELIZA JOYCE, Respondent, v. MARVEL W. COOPER, Appellant.

      Poor person—whan one not permitted to sue as sueh.—Attorney.

    It is inconsistent with the letter and spirit of the Code to permit one to sue as a poor person who has parted with an interest in the claim upon which the action is brought, though the assignment thereof bo to her attorney as compensation for his services.
    The order permitting a person so to sue must contain a provision assigning to the petitioner an attorney who must act without compensation. Such an order is within the discretion of the court.
    Before Sedgwick, Ch. J., Truax and O’Gorman, JJ.

      Decided February 19, 1883.
    Appeal by defendant from order permitting plaintiff to sue, as a poor person, under Code of Civil Procedure, § 458 et seq.

    The facts appear in the opinion.

      Norwood & Coggeshall, for appellant.

      Dill & Chandler, for respondent.
   Per Curiam.

—It did not appear before the learned judge who granted the motion below, that the attorney who appeared for the plaintiff had an interest in the claim in action. This fact appeared by admission on the argument of the appeal. It is inconsistent with the spirit, and in some respects with the letter, of the provisions of the Code on this subject, to allow a plaintiff to sue as a poor person, when she has parted with an interest in the claim. Particulary section 460 may be noticed. That requires, as part of the order to be made, that it shall assign to the plaintiff an attorney and counsel to prosecute the action, who must act therein without compensation. The plaintiff’s attorney did not propose such an assigment in the order, nor was one made. If the plaintiff had in the nature of her cause of action a substantial value which might be parted with for a, consideration, or to compensate her attorneys, there is no reason why she should be exempted from responsibility for the costs and disbursements. Section 460 leaves the granting of such an order to the discretion of the court.

Order reversed, without costs.


text:
    MICHAEL NOONAN, Appellant, v. WILLIAM R. GRACE, et al., Respondents.

      Preliminary injunction—when granted.—Legislative 'authority to common council—when can he delegated to mayor.

    To justify granting a preliminary injunction, the plaintiff’s rights must be certain as to the law and the facts; and where, in an action for an injunction, the grounds of the preliminary order are not stated therein, and it appears from the complaint that the propositions of law upon which plaintiff’s claim rests are doubtful, the order should be vacated.
    Whether, under an act of the legislature authorizing the common council of a city to grant certain privileges as to the public streets, “.under such reasonable regulations as they may prescribe,” said council are authorized to pass a resolution granting such privileges, ‘1 upon such conditions as •may be prescribed and approved by his Honor the Mayor, etc.,” qucere.

    Before Sedgwick, Ch. J., Truax, and O’Gorman, JJ.

      Decided April 9, 1883.
    Appeal by plaintiff from order vacating an order of preliminary injunction.
    The action was for judgment restraining the defendants, who were respectively the mayor, the comptroller, and the commissioners of public works, of the city of New York, from granting to the Equitable Gas Light Company, a corporation formed under L. 1848, ch. 37, the right to lay gas-pipes in the streets of this city, etc.

      John H. Strahan, for appellant.

      George P. Andrews, corporation counsel, and William M. Ivins, for respondent.
    —It is a principle uniformly observed that an injunction to stay waste will not be granted where it is doubtful whether the acts com-, plained of are waste; “in such case the question of waste or no waste must first be decided” (Joyce on Inj. 111). Further than this,-“the jurisdiction of equity in restraint of the action of municipal corporations in regulating streets and highways, is exercised with much cautjon, and is not regarded as a favorite jurisdiction with the courts.” u And. with the control of matters resting largely on the discretion of municipal authorities equity will not ordinarily interfere ” (High on Inj. 2 ed. § 587). And apprehension of a future injury, even though preliminary steps may have actually been taken by a public body, sought to be enjoined, does not constitute sufficient ground for interference. Thus it has been held that the presenting of a petition to the commissioners of highways for a private road, and an express determination on their part by ordering a survey of the road, to grant the petition, will not authorize a court of equity to enjoin the proceedings (Winkler v. Winkler, 40 Ill. 179).
    There is not a single fact alleged by the plaintiff which tends to show other than that the defendants have done the best possible for the city.
    But even if better terms for the city could have been made, it has been repeatedly held that equity will not enjoin municipal authorities upon the ground that a more advantageous contract might be obtained for certain public franchises (People v. Mayor, 32 Barb. 102; High on Inj. 2 ed. § 1240, and cases there cited).
    Further than this, the act of 1848 authorizes the common council to grant their consent under such reasonable regulations as they may prescribe.
   By the Court.—Sedgwick, Ch. J.

—In my opinion, the rules of practice and law, call for an affirmance of the order vacating the injunction. The ground upon which the order of injunction was issued was not stated in it. It is necessary to look to the complaint to find on what claim the plaintiff alleges that he is entitled to an injunction. To justify granting a preliminary injunction the plaintiff’s rights must be certain as to the law and the facts.

One claim is apparently as follows : the legislature provided (L. 1848, ch. 37, § 18) that any gas-light company formed under that act, should have power to lay conductors for conducting gas, through the streets of cities, with the consent of the municipal authorities of said city, and under such reasonable regulations as they might prescribe. The complaint then avers that the common council of this city duly enacted a resolution 11 that permission be and is hereby given to all incorporated gas-light companies to lay gasrpipes, etc., in the city, etc., upon such conditions, as may be prescribed and approved by his Honor the Mayor, the Comptroller and the Commissioners of public works, etc.” The complaint then alleges certain matters intended to show that this resolution had been impliedly repealed or was no longer in force. These-matters did not have the force intended, but on the face of the complaint it appears that the resolution is still in existence. The complaint then alleges what is tantamount to an averment that the common council had no power to pass this resolution, because it delegated to officers named in it, the exercise of power and discretion that the act intended should be exercised by the common council itself. In my opinion, this proposition is not so clearly correct, that it should be assumed, as the ground for an injunction. There is doubt,, that that part of the resolution which gives permission upon such conditions as may be prescribed, and approved by his Honor the Mayor, etc., is not within the clause of the act “ under such reasonable regulations as they may prescribe.”

The complaint further claims an injunction upon the character of the conditions, which it is alleged the defend-j ants intend to impose upon the company, averring that these conditions do not properly provide for the benefit or advantage of the tax-payers or inhabitants of the city. On this point the preponderance of testimony was with the de. fendants, who showed by a witness of greater means of information than those possessed by plaintiff’s witness, that the defendant did not intend to give a permit upon, the conditions referred to, but had expressed the intention of imposing other conditions, more favorable to the city.'

.The order appealed from should be affirmed, with $10 costs.

Truax and O’Gorman, J., concurred.


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    SAMUEL RAYNOR, et al., Appellants, v. THE PACIFIC NATIONAL BANK OF BOSTON, Respondent.

      Attachment against national banks.—Insolvency—what implied, by in § 5342, U. 8. Rev. Btat.

    The proper construction of §5242, IT. S. Rev. Stat., is that no attachment can be issued against a national banking association or its property after it has committed an act of insolvency, and the word “ insolvency ” therein has its usual and general meaning, viz.: a condition of inability to meet current pecuniary obligations.
    The fact that such a bank had stopped business for several weeks before, and did not do business for several weeks after the attachment was allowed, without clear explanation, raises a presumption of insolvency.
    Before Sedgwick, Ch. J., O’Gorman and Ingraham, JJ.

      Decided April 9, 1883.
    Appeal from order granting motion to vacate attachment of property of defendant.
    The motion was made on the ground that the attachment was contrary to the provisions of U. S. Rev. Stat., § 5242, the defendant being a national bank. The motion was. made by the receiver of the property, etc., of the de-, fendant.
    The action is to recover the amount of a certificate of' deposit for $5,0.00 issued by defendant October 6, 1881, payable to the order of one George E. Horne on demand, and assigned to plaintiffs.
    The complaint and the affidavit on which the warrant of, attachment was issued, alleges that the certificate in question was duly presented for payment to the defendant and payment duly demanded, which was refused.
    The warrant of attachment was issued thereafter, viz., on January 9,1882, and on January 10, 1882, the same was' levied upon a balance of $37,000 to the credit of the defendant in the National Park Bank, in New York.
    At the time of issuing the warrant of attachment and of the levy thereunder, the defendant had closed its doors, suspended business, and was then in charge of a national bank examiner, acting under the authority and direction of the comptroller of the currency.
    On May 22, 1882, Linus M. Price was duly appointed receiver of the defendant by the comptroller of the currency, and the said Price duly qualified and entered upon the discharge of his duties.
    Further facts appear in the opinion.
    Thornton, Earl & Kiendl, for appellants.
    —The decision below cannot be upheld on the ground on which the justice puts it, viz., solely on the legal ground that by § 5242, U. S. R. S., no attachment can be granted by a State court against any national bank, solvent or insolvent. In this position he is clearly overruled by the express terms of Robinson v. National Bank of Newberne (81 N. Y. 385), folding that the inhibition applies only to insolvent banks.
    The burden of showing the insolvency of defendant is fupon it; and unless it clearly makes that fact to appear, the attachment must be maintained (Market National Bank of New York v. Pacific National Bank of Boston, Daily Reg., September 30, 1882, Haight, J.).
    The defendant, by the terms of the United States Banking Act, cannot be regarded as insolvent until May 22,1882. That act points out precisely when national banks shall be : regarded as insolvent, and how insolvency shall be shown. We claim, therefore, that it was legally solvent, as to at- ’ taching creditors, until legally declared insolvent for legal , cause, which was on May 22, 1882, when the receiver was appointed, or four months and twelve days after our attachment was levied.
    Vanderpoel, Green & Cuming, Delos McCurdy and Willard Bartlett, for respondent.
    —Aside from the overwhelming proof of actual insolvency, the refusal of the defendant to pay its certificates of deposit on November 19, 1881, was an act of insolvency under § 5242 (Irons v. National Bank, 6 Biss. 301; Brown v. Montgomery, 20 N. Y. 287; Bump Bank. [10 ed.] 33). In Horton v. Pacific Bank (unreported), general term, first department, January, 1883, Brady, J., uses the following language: “The refusal of the defendant to pay the instrument sued upon, viz., a certificate of deposit, on April 19, 1882, assuming that it was presented at that time, as alleged by the plaintiff, was an act of insolvency. It is quite evident from the proofs submitted in this case that the refusal to pay was founded upon inability to comply with the demand. It may be said that the refusal to pay it on presentation was an act of insolvency in itself, under section 5242 of the banking act, if it were necessary to invoke this principle in this case to maintain the order appealed from (Irons v. Manufacturers’ National Bank, 6 Biss. 301; Brown v. Mongomery, 20 N. Y. 287-291); but it is not, because proofs aliunde the refusal are presented.”
   By the Court.—Sedgwick, Ch. J.

—The construction of U. S. Rev. Stat., § 5242, is, that no attachment shall be issued against a national banking association or its property after it has committed an act of insolvency (Robinson v. National Bank of Newberne, 81 N. Y. 385).

The learned counsel for appellants argued that the insolvency referred to in § 5242 was of the kind that was referred to in the other parts of the acts on the same subject, such as allowing circulating notes to go to protest (§§ 5226, 5227-5234), or allowing judgments recovered to remain unpaid for thirty days (act of June 30, 1876), or by the determination of the comptroller of the currency after an examination (§ 5244). A consideration of the character and policy of § 5242 shows that in it, the word insolvency has its usual and general meaning, viz., a condition in which it cannot meet its current pecuniary obligations. In effect, this . was decided by the general term of the supreme court at its term of January, 1883 (MSS. of Judge Brady, citing Irons v. Manufacturers’ National Bank, 6 Biss. 301).

The other claim is, that there was no proof that at the ■ time the attachment was allowed the bank was insolvent. The proof of insolvency was too strong to sustain any supposition that the bank could then have been solvent. The bank had stopped business for several weeks before, and did not do any business for several weeks after the attachment was allowed. Without some clear explanation of these facts, the inference is it must have been unable to - meet its current pecuniary obligations.' The plaintiff himself says in his affidavit, that he is informed that it is in embarrassed circumstances, and is about to or has. already failed, and so believes, after presentation of the certificate of deposit, as to which the action is brought. After a while the bank began business and continued it for some time, until it finally abandoned any attempt to go on. The evidence shows that it resumed business because of its receiving money, which it did not control, and was not entitled to at the time it first stopped or when the attachment was allowed.

The order appealed from should be affirmed, with $10 costs.

O’Gorman and Ingraham, JJ., concurred.


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    DANIEL G. BACON, et al., Appellants, v. CHARLES B. KENDALL, et al., Respondents.

      Arrest—when individual partner may he arrested in action against firm.

    In an action upon contract against partners, to justify an arrest of any defendant, it is necessary to prove that he actually and individually participated in the fraud which is alleged to be connected with the contracting of the liability.
    Where the fraud alleged is the purchase of goods when the firm was hopelessly insolvent, the concealment of said fact, and the intent not to pay for said merchandise,—each partner will be presumed to be acquainted with the accounts and affairs of the firm.
    That one of the partners was served with summons in an action against the firm on a business indebtedness of a large amount, and long overdue, is a fact which makes strongly against him on motion to vacate an order for his arrest, upon the question of his belief in the firm’s solvency.
    Before Sedgwick, Ch. J., and O’Gorman, J.

      Decided April 9, 1883.
    Appeal by plaintiffs from order vacating an order of arrest as to defendant Charles B. Kendall.
    The order of arrest was made under Go. Civ. Pro. § 549, subd. 4.
    The complaint was upon contract, and alleged that the defendants were guilty of a fraud in contracting the liability. The contract averred was that the plaintiff sold and delivered to defendants certain merchandise of the value of $11,308.90, which the defendants agreed to pay ; the fraud alleged was, that at the time of the sale the defendants were hopelessly insolvent; that they fraudulently concealed their insolvency and bought the merchandise, then intending not to pay for the same.
    The affidavits on which the order of arrest was granted, showed that at thé time of the sale the defendants were partners in business and had so been for some years ; that the names of the partners were Charles B. Kendall, as to whom the order of arrest was vacated, and Hugh F. Kendall ; that for a" long time the business of the firm had been in an embarrassed state ; that it had bought goods in large quantities and had immediately sold them, at loss, and below market prices; that at the time of the sale an action for a business'debt of $13,000 had been pending for some months against the firm, and judgment was taken by default of answer, a few days after the sale ; that Charles B. Kendall knew of this action, the summons'having been served upon him alone, and he had not informed Hugh F. Kendall of this service; that by the books of account of the firm it appeared that the firm was insolvent.
    The affidavit of Charles B. Kendall averred that his knowledge of the actual state and conduct of the business was solely derived from oral statement made by Hugh F. Kendal]; that he was younger than the latter and confided in him ; that he exclusively attended to a part of the business, the control of which did not involve a knowledge of those matters which were claimed to show fraud by defendants. The affidavit of the book-keeper of the firm tended to show that Charles B. Kendall had no knowledge of the contents of the books of account, and averred that no statement of account had ever been given to him. It was further shown that the purchase in question had been, in fact, made by Hugh F. Kendall, and Charles B. Kendall did not know of it until after the delivery of the goods.

      John Sidney Davenport, for appellants.

      Frederick H. Man, for respondents.
   By the Court.—Sedgwick, Ch. J.

—The cases of the Bank of Commonwealth v. Temple (39 How 432), and Hathaway v. Johnson (55 N. Y. 93), sustain the proposition that in an action against partners on contract, to justify an arrest of any defendant, it is necessary to prove that he actually and individually participated in the fraud,' which it may be alleged was connected with the contracting of the liability. It is necessary to show by affidavit “ that the defendant was guilty of a fraud in contracting or incurring »a liability.” The court of appeals, in Hathaway v. Johnson (supra) said of a like provision of the Code of Procedure (§ 179), “He .must have been guilty of a fraud; and this implies personal misconduct-, moral or actual, and not merely legal or constructive fraud, in respect to the transaction which is the subject of the suit.”

The affidavits showed guilt on the part of Hugh F. Kendall. They also presented facts, which, if not explained, would support the conclusion that Charles B. Kendall was guilty also. On the motion below, the latter did attempt to make explanation. It is, at once seen, that the improbability is great, that he should be so ignorant of the affairs of the firm, as it was necessary to show that he was, to make a sufficient explanation. It was not impossible, however, that he should entirely trust to his brother, and. with great negligence indeed, but no criminality, omit to look at the accounts, and not inquire as to those details of the business, which were not in his own charge. It is a fact of great weight against him, that an action was pending against the firm for $11,000, for a business indebtedness over-due for a long time, in which service of summons was made upon him, and that he should still believe that the firm was solvent, and could honestly continue to make purchases. Again, however, it was possible, that he should believe that the firm was able to pay this indebtedness, if the leniency of the creditors would allow the firm to apply the necessary cash to its other general business, while paying the indebtedness, in convenient installments, and that he should believe that the creditor after beginning his action would, in fact, extend as much leniency in the future as he had in the past.

The point then, was, on the motion to vacate the order of arrest, did the defendant show this possible, but improbable state of things ? The answer to this depended upon the credence due to the defendant. His assertions were somewhat corroborated by the affidavit of the book-keeper, and by some intrinsic probabilities arising from the mode of conducting the business. On this appeal, I cannot find what would justify a difference in opinion from the judge below, who was satisfied that the affidavit of the defend-, ant was truthful.

The order appealed from is affirmed, with $10 costs.

O’ Gorman, J., concurred.


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    HENRY SMID, Respondent, v. THE MAYOR, &c. OF NEW YORK, Appellants.

      Public streets—duty of municipal corporation.-—Notice.-—Evidence.—Trial— , presumption as to theory of.

    In an action against the city of New York to recover damages for injury sustained by plaintiff in slipping upon snow and ice on the public street in a district much frequented and densely populated, where the evidence for plaintiff showed that for two weeks prior thereto, the sidewalk had been dangerous by reason of snow and ice thereon, and the testimony for defendant tended to overcome plaintiff’s evidence, and showed that the sidewalk had not been dangerous till the afternoou of the day on which the plaintiff was injured, and that the snow, etc., was then put upou the sidewalk by boys to make a slide.

      Held, that a verdict for plaintiff should not be set aside; that the jury could properly have been charged to determine whether, if ordinary observation or diligence had been used by. the agents of the city, they Would have had notice of the danger, which the city was bound to remove upon notice of it; and that as the charge is not set out in the appeal-book, it is to be presumed that the jury were properly charged.
    It was the duty of the city to use due diligence through its agents in observing whether the sidewalk remained in a safe state, and in ascertaining that there was an appearance of its passing from a safe to an unsafe state; and the more apparent the danger coupled with the apparent gravity of it, and the more frequented and densely populated "was the place, the more likely should be the danger to meet the observation of the city’s agents, soon after it occurs.
    In such a case, evidence that a passer-by, immediately after the happening of the accident in question, slipped and fell on. the same spot, is admissible as tending to show the dangerous condition of the street.
    Before Sedgwick, Ch. J., O’Gorman and Ingraham, JJ.

      Decided April 9, 1883.
    Appeal by defendants from judgment entered upon verdict in favor of plaintiff, and from order denying motion for new trial made upon the minutes.

      The action was for damages for personal injury sustained by plaintiff in slipping upon snow and ice, negligently permitted by defendants to lie upon the sidewalk of a public street in the city.
    The facts and defendants’ exceptions appear in the opinion.

      George P. Andrews and Charles Blandy, for appellants.

      Steen & Myers, for respondent.
   By the Court.—Sedgwick, Ch. J.

—There was no error in the court leaving to the jury the question of contributory negligence on the part of the plaintiff. There was evidence in the narration by the plaintiff as to the care he was exercising when he fell. He was apprehending the danger of slipping. He gave a warning to a friend. From this and the general account of what he had been doing and of how he fell, the jury were at liberty to infer caution and care of an ordinary kind on his part.

At the end of plaintiff’s testimony, the defendants’ counsel moved to dismiss the complaint, on the ground that there was no evidence of any knowledge brought home to the city of the condition of the sidewalk on which plaintiff slipped. This motion was properly denied, because, as the case then stood, the jury were at liberty to find that- the sidewalk had been for two weeks dangerous to passers, from 'the snow and ice there. The testimony for defendants was then given and controverted the testimony of the plaintiff materially. Especially the defendants’ testimony was important to show that the snow had not made the sidewalk dangerous until the afternoon of the day, in the evening of which the plaintiff was injured, and that the snow was placed upon the sidewalk and steps of a house by boys to make a slide from the top of the steps to the curb. If this conflict of the witnesses were decisive of the case, there might be strong reason to argue that there was no preponderance with the plaintiff. If, however, the jury could find from the testimony given for the defendants, facts which could make the defendants liable, the verdict should not be set aside by reason of the conflict.

The argument for defendants assumes, that if the sidewalk was in a dangerous condition, only for the time described by tire defendants’ witnesses, then there was no ground of proof that the defendants had notice of the slippery state of the sidewalk, which it was negligence on their part not to remedy, in case they had notice. I do not think that the argument is sound. Part of the duty of the city was to use ordinary diligence in observing whether the sidewalk remained in a safe state, and in ascertaining that there was an appearance of its passing from a safe to an unsafe state. This diligence is to be exercised through its numerous -agents whose duties have regard to the safety of the streets. Policemen are among those agents. The more apparent the danger, coupled with the apparent gravity of it, the more likely it is to meet the observation of these agents soon after it occurs, when they are using due diligence. The same may be said in respect of the place where the accident happens, if it be much frequented, surrounded by a dense population and not in a retired part of the city. In the present case, the obstruction made by the snow and ice was clearly apparent, was very dangerous, and in Forty-ninth street between the Third and Second avenues. The jury, from these circumstances, could be properly charged to determine, whether if ordinary observation of diligence had been used by the agents of the city, they would have had notice of the' danger, which the city was bound to remove upon notice of it. The charge of the court is hot set out in the case, and it is to be presumed that the correct view of the law was given to the jury. The defendants were not entitled to a dismissal of the action or a verdict in their favor, if to any facts which the jury might find, the law attached responsibility.

' The defendants’ counsel on the argument urged that the following exception called for a reversal. For the plaintiff a witness was asked: Q. “Do you know whether or not others had slipped at that place ; did you use to see others slip at that place ? ” The exception to the admission of this, question was to be considered in view of the facts brought out by the answer, which were: “I have seen during the time we were lifting up Smid and into the wagon, a lady pass by and she slipped on that slide ; she slipped on the spot where Mr. Smid fell; she fell where it went sliding down into the street.” The facts contained in the answer were, in my opinion, relevant to the issue of the existence of the slippery condition of the walk, at the very point where the plaintiff slipped. How smooth or how unsafe for the putting down of the feet, was the place, could not be described by attempting to state the' physical appearance, so practically, as by a statement of what ensued upon the place being used by a passer.

The judgment should be affirmed, with costs, and the order denying motion for a new trial should be affirmed, with $10 costs.

O’Gorman and Ingraham, JJ., concurred.