text:
    In the Matter of the Probate of the Will of MILTON BUDLONG, Deceased.

      Contested will— competency of declarations of proponents — of letters written under the direction of the testator — of testimony by a disinterested witness who subsequently becomes interested — burden of proof as to unreasonable provisions of the will— motion for judgment on the verdict.

    Upon an appeal from a judgment in favor of the contestants, in proceedings for the admission to probate of the will of Milton Budlong, it appeared that the said will had been admitted to probate by a decree of a surrogate; that, upon an appeal to this court, the decree was reversed and an order was made for a trial, by a jury at circuit, of the issues as to whether Budlong was, at the time of the execution of the instrument, of sound and disposing mind and memory, and whether it was procured to be executed by fraud or undue influence and deceit practiced by Isaac Budlong or other proponents or persons.

      Upon the second trial exceptions were taken to the admissions of certain declarations of several of the proponents, who were charged with the acts and representations which constituted the undue influence and deceit said to have been practiced upon the testator. ’None of the declarations objected to and received were in the nature of admissions by the several declarants of those acts charged against them, but were rather declarations made by them during the course of the transactions and events which led up to the result complained of.

      Held, that as they either constituted a part of the res gestae, or demonstrated the attitude of the xoroxionents towards the contestants, that it was not necessary to establish an actual consxiiracy between the actors in order to make their several declarations, of the character described, admissible in evidence.
    A large portion of the evidence received under this class of exceptions consisted of oral and written communications of the brothers, the xiroponents of the will, and especially of Isaac, the oldest and most influential of them, with Mrs. Cole, the principal contestant, during a x>eriod of several years, from the time of her marriage down to the date of the will.

      Held, that these communications were admissible upon the grounds above stated.
    Letters written by the step-motlier, as the amanuensis, or under the direction of the testator, to the contestant, Mrs. Cole, were received in evidence, under the objection of the proponents that they were within the provisions of section 829 of the Code of Civil Procedure.

      Held, that the objections were not well taken, as the communications were not personal between the deceased and the contestant, Mrs. Cole, but were made to the wife of the deceased, to be transmitted by her to such contestant.
    On the trial before (he surrogate the husband of the contestant, Mrs. Cole, testified as a witness on behalf of the contestant in relation to the personal directions and communications between himself and the deceased. After the trial before the-surrogate, and before the trial at the circuit, Mrs. Cole died, and on the latter trial the minutes of the former testimony of her husband were read by the contestants under objection.

      Held, that a claim made by the proponents that while the witness was competent to testify on the first trial while his wife was living, that by the death of his wife ho became interested in the result of the action, and consequently his testimony .was inadmissible, could not be maintained as that contention was fully answered by section 830 of the Code of Civil Procedure.
    The court charged the jury that ‘ ‘ if, under all the circumstances of the case, you find that this will was unnatural in its xn'ovisions and inconsistent with the duties, and obligations of the testator to the different members of his family, it imposes upon the proponents the duty of giving some reasonable exxilanation of its unnatural character, or at least of showing that it was not the result of mental defect, obliquity or perversion.”

      Held, that the charge was, in effect, that if the jury should find that the will was contrary to the dictates of natural affection, of justice and of duty, that it would be, to that extent, evidence of mental defect, obliquity or perversion of mind which would require evidence to rebut or explain, and that the proposition charged was entirely sound.

      After a motion for a new trial had been made by the proponents at the circuit and denied, a motion was made by the contestants at Special Term, and granted, for judgment on the verdict of the jury, and thereupon a judgment of the Supreme Uourt was entered accordingly,

      Held, that whether that practice was correct or not the question could not be entertained in this case, as it was shown by the order of the Special Term that the proponent expressly submitted to and conceded the jurisdiction of that court to hear and determine the motion for judgment and for costs.
    Appeal by tbe proponents from a judgment recovered at tbe Monroe Circuit, which was entered in the office of the clerk of Monroe county on the 2d day of January, 1889, adjudging that an instrument propounded as the will of Milton Budlong, deceased, was void and of no effect; and also from an order of the Circuit Court and Special Term, made on the 29th day of March, 1888, denying a motion for a new trial on the minutes on behalf of the proponents, and entered on the 28th day of February, 1889; also from an order granted on the 28th day of November, 1888, and filed and entered in said clerk’s office on December 28,1888, granting a motion for judgment on the verdict and from each and every part of'said orders.

      J. .A- Stull, for the proponents, appellants.

      E. A. Nash, for the contestants, respondents.
   Dwight, J.:

A decree of the surrogate of Monroe county, in December, 1883, admitted the will to probate. On appeal to this court, in June, 1887, that decree was reversed and an order was made for a trial by jury, at the Monroe Circuit, of the following issues:

First. Was Milton Budlong, at the time of the execution of the instrument in question, of sound and disposing mind and memory?

Second. Was the same procured to be executed by fraud, circumvention, undue influence and deceit, practiced upon him by Isaac Budlong, or the other proponents of the will, or persons acting in their behalf, while there was a loss of natural affection by the decedent for his daughter Mrs. Cole, occasioned by the falsehoods, fraud, deceit and evil practices of proponents, perpetrated on him for the purpose of unduly prejudicing him against her ?

On the trial had, as prescribed by such order, in March, 1888, the questions so propounded were both answered in the affirmative. At the same time a motion was made by the proponents for a new trial on the judge’s minutes, which was denied; and in November following a motion was made by the contestants, at a Special Term, held by the same judge before whom the issues were tried, for judgment on the verdict. On the hearing of that motion, counsel for the proponents appearing and expressly consenting to the jurisdiction of the court to hear and determine the same, an order was made for judgment accordingly, and judgment was thereupon entered in favor of the contestants, that the instrument propounded as the will of Milton Budlong, deceased, was void and of no effect, and requiring the surrogate of Monroe' county to annul the record and probate thereof. The proponent’s appeal from the judgment and from the order at the circuit denying their motion for a new trial brings the case a second time before this court. "When it was here before, on appeal from the decree of the surrogate, admitting the will to probate, this court, upon testimony substantially the same, and in large part identical with that adduced before the jury? were led “ to doubt the correctness of the surrogate’s conclusion upon the question of deception and undue influence,” by which, as it was alleged, the will was procured to be executed; and accordingly reversed the decree of the surrogate and directed that the issues, which were thereupon framed by the court, as stated above? should be tried by a jury at the circuit.

The evidence upon which this decision was reached was reviewed at much length in the opinion of the court as then pronounced by Mr. Justice Haight, and it seems to have been, in all material respects, similar to that which was given on the trial before the jury; indeed^ to a large extent, it constituted the evidence which was adduced on the latter trial, being read from the minutes of testimony given before the surrogate. A very careful perusal of the whole evidence in the record before us fails to show that there was any additional or different evidence given on the last trial which would require a different conclusion from that reached by the court on the former review, and none is pointed out in the very elaborate brief and argument of counsel for the proponents. Ve find ourselves concluded, therefore, by the former judgment of this court, to the extent of holding that the case was one which ought to be submitted to a jury for its decision upon the issues proposed ; and that a finding in favor of the contestants upon either of those issues, if not vitiated by error on the trial, must, so far as the judgment of this court is concerned, be conclusive against the probate of the will in question.

We are brought, therefore, to the inquiry whether any exception of the proponents taken on the trial points to error in the admission or exclusion of evidence, or in the instructions to the jury tinder which the issues were submitted for decision. A numerous class of the exceptions found in the case relate to the admission of certain declarations of the several proponents who are charged with the acts, and representations which constitute the undue influence and deceit, said to have been practiced upon the testator. It is to be noticed that none of the declarations objected to and received are in the nature of admissions by the several declarants of those acts charged against them, but are, rather, declarations made by them during the course of the transactions and events which led up to the result complained of, and which either constituted a part of the res gestee, or demonstrated the attitude of the proponents towards the contestant, in relation to the subject-matter of the inquiry, and the intent with which each performed the acts attributed to him. This being the case, it was not necessary to establish an actual conspiracy between the actors in order to make their several declarations, of the character described, admissible in evidence. Such declarations come within the rule well stated by Judge Redeield, as follows: “ There can be no question that where those opposing the probate place their case-upon the theory that the testator was made the dupe of a conspiracy,, or of undue influence in any form, it is competent to show the declarations of the agents in such alleged imposition, made in connection with their acts, as important and essential, if not indispensable in the transaction or res gestee, without which it would be impossible to place the case before the jury in any intelligent form”' (1 Redf. on Wills [4th ed.], 572); or, as was said by Bradford, Surrogate, in Brush v. Holland (3 Bradf. Sur., 240, 243), “ when a party is accused of having effectuated a certain act by undue means, if the facts show an opportunity for the accomplishment, I cannot say that the predisposition of the party to produce that precise result is immaterial, or that his declarations evincing his intention are incompetent evidence.”

A large share of the evidence received under this class of exceptions consisted of oral and written communications of tlie brothers, the proponents of the will, and especially of Isaac, the oldest and most influential of them, with Mrs. Cole, the principal contestant, during a period of several years, from the time of her marriage down to the date of the will. These communications were, no doubt,' admissible under the principles above indicated. The letters of Isaac, for example, are luminous with evidence of his feeling towards his youngest sister, and her husband, and of his disposition to influence the feeling and conduct of his father towards them.

Letters written by the step-mother, as the amanuensis or under the direction of the testator, to Mrs. Cole, were received in evidence under the objection of the proponents that they were within the exclusion of section 829 of the Code of Civil Procedure. The objection was not well taken. The communications were not personal between the deceased and the' contestant; they were made to the wife of the deceased to be transmitted by her to the contestant. The directions from the deceased to his wife to write, and what to write, were testified to by the widow and not by the contestant, while the latter merely produced the letters and identified them as those received from her step-mother.

On the trial before the surrogate, the husband of .the contestant, Mrs. Cole, testified as a witness, in behalf of the contestant, in relation to personal transactions and communications between himself and the deceased. After that trial and before the trial at the circuit, Mrs. Cole died. On the latter trial the minutes of the former testimony of her husband were read by the contestants under objection. Counsel for the proponents concede that the testimony was competent on the first trial, while the wife of the witness was living, but contend that by the death of his wife he became interested in the result of the action and, therefore, incompetent to testify to the matters referred to. The objection is fully answered by section 830 of the Code, which provides that “ where a party has died since the trial of an action, or the hearing upon the merits of a special proceeding, the testimony of decedent, or of any person who is rendered i/noompetent by the provisions of the last section (§ 829) taken or read in evidence at the former trial or hearing may be given or read in evidence at a new trial or hearing by either party subject to any other legal objection,” etc. The provision would liave been more clearly expressed if the portion italicized had read or of any person rendered incompetent thereby (i. e., by such death) under the provisions of the last section,” but such is the evident meaning and effect of the provision. Under it the testimony of Cole, competent when it was given, on the first trial, was properly received in evidence on the second trial, notwithstanding that he had in the meantime been rendered incompetent to give such testimony by the death of his wife. The provision, though new to the Code in 1879, was not then new to the law of evidence. (McKnight's Admr. v. Lewis, 5 Barb., 681, 685, and the cases cited; Morehouse v. Morehouse, 17 Abb. N. C., 407, 415; Lawson v. Jones, 1 N. Y. Civ. Pro. R., 247 Comins v. Hetfield, 80 N. Y., 261; Galbraith v. Zimmerman, 100 Penn. St., 374; Pratt v. Patterson, 81 id., 114.) The rule at common law, as exhibited by the eases cited, is much more general than that embraced in the section of the Code above cited and rests upon the evident principle that the interest which disqualifies testimony must exist at the time the testimony is given.

The charge of the court contained a very clear and correct exposition of the legal principles which should govern the jury in their consideration of the case; and, so far as the evidence was referred to, a very impartial statement of its character and possible effect. The proponent’s requests to charge were mostly granted, and when they were declined, except as charged, we think the court had already covered the propositions as far as the proponents were entitled to have them stated. None of the exceptions to the charge seem to us to have been well taken.

The submission to the jury of the question whether the letter of Levi written to his sister, Mrs. Blunt, and which he, in effect, requested her to show or read to his father, was wi’itten for the purpose of influencing the latter in making his will, was, we thinks warranted by the evidence. The character of the letter itself, the suggestion that it he read or shown to his father, together with the evidence, by his own declarations, of his feeling towards his sister, and particularly in respect to her sharing in his father’s estate, was such as would not have justified the court in withholding that question from the jury. It was very cautiously submitted, and in terms quite as favorable to the proponents as tire character of the evidence required.

The submission of the question of conspiracy was made with sole reference to the effect of the evidence of the declarations of the several proponents, the court properly instructing the jury that the fact of conspiracy was not necessary to the finding of undue influence. "We think that the evidence was such as would have warranted the finding that there was a common purpose, on the part of two or more of the proponents, to procure the exclusion of Mrs. Cole from her father’s bounty by improper means. But we have already indicated our opinion that most, if not all, of the evidence in question was properly received upon grounds which did not involve the existence of a conspiracy. So that, as we think, the charge of the court in respect to the effect to be given to that evidence was even more favorable to the proponents than they were entitled to ask.

The court charged the jury that “ if, under all the circumstances of the case, you' find that this will was unnatural in its'provisions and inconsistent with the duties and obligations of the testator to the different members of his family, it imposes upon the proponents the duty of giving some reasonable explanation of its unnatural character, or at least of showing that it was not the result of mental defect, obliquity or perversion.” The instruction is not if the jury should regard the will as unnatural, etc., abstractly considered, or on the face of its provisions, but that if they should find it to be so under all the circumstances of the case; that is, upon all the proofs which .they accept as establishing the truth of the case. The charge-was, in-effect, that if the jury shall find evidence that the will was contrary to the dictates of natural affection, of justice and of duty, that will be, so far, evidence of mental defect, obliquity or perversion of mind which will require evidence to rebut or explain it. The proposition seems to be entirely sound. It does not necessarily involve any shifting of the burden of proof, but only declares that certain circumstances are presumptive evidence of certain facts. Judge Redeield in his treatise (p. 531) goes so far as to say: “But gross inequality in the dispositions of the instrument, when no reason for it is suggested either in the will or otherwise, may change the burden and require explanation on the part of those who support the will to induce the belief that it was the free and deliberate act of a rational, self-poised and clearly disposing mind.”

Tlie appellants here question the practice by which, after a motion for a new trial made by them at the circuit and denied, a motion was made by the contestants at Special Term, and granted,, for judgment on the verdict of the jury, and thereupon a judgment of the Supreme Court was entered accordingly. The practice seems not to be entirely settled. (Marvin v. Marvin, 4 Keyes, 9; Matter of Hatten, 22 Abb. N. C., 66; Matter of Campbell, 48 Hun, 417.) The statute (Code of Civil Pro., § 2588) is silent as to the court to which the application for judgment on the verdict shall be made. The section cited does provide, by reference to section 2548, that a motion for a new trial after such verdict may be made either in the Surrogate’s Court, in the court in which the trial was liad or, in case the trial was had at the circuit, in the Supreme Court, by which, no doubt, is intended the Special Term; and it would seem to be fairly inferable that the motion for judgment inisrht also be made in either of those courts. Hut, whatever may be the correct or the better practice, the question cannot be entertained in this case, since the proponents here, as is shown by the order of the Special Term, expressly submitted to and conceded the jurisdiction of that court to hear and determine the motion for judgment and for costs.

"We find no other question presented by the brief or argument of counsel, and are of the opinion that the judgment and order appealed from should be affirmed, with costs to the respondents payable out of the estate.

Barker, P. <T., and Guilds, J., concurred.

J udgment affirmed, with costs to the respondents to be paid out of the estate.


source: Caselaw Access Project

author: Dwiuht, J. :

license: Public Domain

text:
    WALLACE BRADLEY, Respondent, v. THE CITY OF ROCHESTER, Appellant.

      Municipal corporations — authority given by the common council to the mayor to give licenses — when not an unlawful delegation of power —signing of a license by the mayofs cleric.

    Section 40 of the charter of the city of Rochester gives lo the common council of , that city “ the power to make * ® * such ordinances, by-laws and regulations as it may deem advisable within llie said city for the following purposes,” among which, by subdivision 19, it is authorized: “To regulate the vending of wood, coal and other fuel, meats, vegetables, fruits, fish, poultry, milk and provisions of all kinds * * and to prescribe the fees to be paid for a license for the sale of the aforesaid commodities,” and by section 34 it is authorized to “ regulate and restrain hawking and peddling in the street.”
    An ordinance passed by the common council provided that no person should peddle or sell from house to house within the city of Rochester any kerosene oil, vegetables, fruit, garden produce or provisions of any kind, without having a license therefor, under a penalty of ten dollars for each offense, and that the mayor should license any proper person to sell, as above, on payment therefor of a license fee of fifteen dollars for each wagon employed.

      Held, that the ordinance did not delegate to the mayor the authority belonging to the common council, but in the exercise of that authority imposed upon him a duty appropriate to his office, and that the imposition of that duty upon the mayor was clearly within the authority conferred upon the said common council.
    In an action brought lo recover money paid by the plaintiff for such a license it ■ was objected, on the part of the plaintiff, that the license was illegal and void because it was not signed by the mayor, but only by the city clerk.

      Held, that the answer to this objection was, first, that the license was as effectual to secure to the plaintiff the privileges paid for as if it had been signed by the mayor; and, second, that no objection was made to taking the license upon that ground.
    Appeal by thedefendent from a judgment of tlie Monroe County Court, entered in the office of the clerk of Monroe county on March 6, 1889, reversing a judgment herein of the Municipal Court of the city of Rochester, with costs, and from the whole and every part of the said county judgment.

      H. J. Sullmcm, for the appellant.

      G. D. Kiehel, for the respondent.
   Dwiuht, J. :

The action was to recover back sums of money paid by the plaintiff and his assignors to the defendant for huckster’s license fees. The judgment appealed from reversed that of the Municipal Court which dismissed the plaintiff’s complaint. The County Court held that the ordinance of the common council of the city of Rochester which provided for the licenses in question was void for the reason that it assumed to delegate to the mayor an authority given by statute to the common council itself, and which could only be exercised by it. In this view of the case we think the County Court erred.

The charter (chap. 143 of 1861, as amended by chap. 14 of 1880) of the city of Rochester (§ 40) gives to the common council the “ power to make * * * such ordinances, by-laws and regulations as it may. deem desirable within the said city for the following purposes; ” among them, by subdivision 19, as amended by chapter 120 of Í882, “to regulate the vending of wood, coal or other fuel, meats, vegetables, fruits, fish, poultry, milk and provisions of all kinds, * * * and to prescribe the fees' to be paid for license for the sale of the aforesaid commodities; ” and, by subdivision 24, “ to regulate and restrain hawking and peddling in the streets.”

The ordinance in question is entitled “ an ordinance regulating the sale of vegetables and provisions,” and is as follows:

“ Section 1. No person shall peddle or sell from house to house within the city of Rochester, any kerosene oil, vegetables, fruit, garden produce or provision of any kind whatever, without having a license therefor under penalty of ten dollars for each offense.
“ Section 2. The mayor of the city of Rochester shall license any proper person to sell as above on payment therefor of a license fee of fifteen dollars for each wagon employed.”

Here is no attempt to delegate to the mayor any authority conferred by the charter upon the common council. On the contrary the enactment of the ordinance was a direct exercise by the common council of the authority conferred upon it, viz., to regulate and restrain (by ordinance) the peddling of certain commodities in the streets of Rochester. This the ordinance seeks to accomplish by establishing a system of licenses for such traffic, and prescribing the license fees to be paid therefor. It does not delegate to the mayor the authority belonging to the common council, but, in the exercise of that authority, imposes upon the mayor a duty appropriate to his office. The authority conferred upon the common council by statute is not to issue licenses, but to make an ordinance providing for licenses to be issued. The duty imposed upon the mayor by the ordinance is to issue the licenses thus provided for. The imposition of that duty upon the mayor is clearly within the authority conferred upon the common council.

Counsel for the respondent (here) makes the further objection to the ordinance that it discriminates in favor of some and against other forms of traffic, to all of which the statute equally applies. There does not seem to be much force in the objection even under the first subdivision (subd. 19) of the statute quoted above; but it is entirely obviated by the second subdivision quoted (subd. 24), which selects hawking and peddling on the streets as special objects for the regulating and restraining power conferred upon the common ■council. It is further objected, on the part of the respondent, that the licenses are illegal and void because they are not signed by the mayor but only by the city clerk. There are, at least, two answers to this objection: First. So far as appears the licenses were as effectual to secure to the plaintiff and his assignors the privileges paid for as if they had been signed by the mayor. Second. No objection was made by the parties taking the licenses on this ground. So far as this objection was concerned the payment of the license fees was voluntary. The licensees were not required to pay their money for licenses not in due form; and the city having accepted their money would have been estopped to question the regularity of their licenses.

" That the adoption of an ordinance providing for license was a valid exercise of power conferred by the legislature upon the common council is not open to question. (People ex rel. Larrabee v. Mulholland, 19 Hun, 550; affirmed, 82 N. Y., 324.) The judgment of the County Court should be reversed, and that of the Municipal Court of Rochester affirmed.

All concurred.

Judgment of the County Court reversed and that of the Municipal Court of Rochester affirmed, with costs.


author: Dwight, J.:

text:
    MARGARET KENNEY, as Administratrix, etc., of ALEXANDER KENNEY, Deceased, Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

      Contract between a railroad and an express company that the foi'mer should not be liable for injury done to any employee of the latter — not binding on the employee.

    In an action, brought to recover damages for the negligent killing of the plaintiff's intestate, it was stipulated by the defendant that the deceased came to his death through the negligence of the defendant, without contributory negligence on the part of the said intestate. The intestate was a messenger of the National Express Company, and at the time of his death was in charge of goods then being trans- . ported by the defendant for the express company over the lines of the West Shore Railroad Company, which lines were then leased to and operated by the defendant. Previous to such lease a contract had been made between the West Shore Railroad Company and the National Express Company, by which the latter had the right to carry goods on all passenger trains of the former at rates specified in the contract, and “ to send one messenger by each train without charge.”
    A clause of the contract read as follows: “ Party of the first part is hereby expressly released from, and guaranteed against, any liability for any damage done to the agents of the party of the second part, whether in their employ as messengers or otherwise.”

      Held, that, in the absence of evidence of an agreement on the part of the deceased, or of knowledge on his part of this agreement of his employer, which assumed to grant immunity to the defendant for injuries done to him, that it was not competent for the express company to waive or compromise the right of the intestate to protection against negligent wrong at the hands of the defendant, or to discharge the defendant from a cause of action which belonged only to the intestate or his personal representatives.
    That a judgment in favor of the plaintiff should be affirmed
    Appeal by tlie defendant from a judgment, entered upon a verdict rendered at the Erie Circuit, in the office of the clerk of Erie county on the 28th day of February, 1889, in favor of the plaintiff against the defendant, in the sum of $4,477.47.

      J. G. MUbum, for the appellant.

      Moses Shire, for the respondent.
   Dwight, J.:

The action was for the negligent killing of the plaintiff’s intestate. It was stipulated by the defendant that the deceased came to Ms death by the negligence of the defendant, without contributory negligence on his part. This admission entitled the plaintiff to recover unless the defendant had made out its defense, which was to the effect that the defendant had been released beforehand from its liability, in such manner as to bind -the intestate and his personal representatives; and it is to be conceded that, for all the purposes of this examination, the case is to be treated as if it were an action by the intestate himself for an injury from which death did not result; for only in cáse such an action might have been maintained; is a cause of action given to his personal representatives. (Code Civ. Pro., § 1902.) The intestate was a messenger of the National Express Company, and at the time of his death was in charge of goods then being transported by the defendant, for the express company, over the lines of the West Shore Railroad Company, which lines were then leased to and operated by the defendant. Previous to such lease, a contract had been made between the West Shore Railroad Company and the National Express Company, by which the latter had the right to carry goods on all passenger trains of the former at rates, specified by the contract, to be paid by the latter, and “ to send one messenger by each train without charge.” There was a clause of the contract which read as follows: “ The party of the first part is hereby expressly released from and guaranteed against any liability for any damage done to the agents of the party of the second part whether in their employ as messengers or otherwise.”

In the answer of the defendant it was averred that the deceased had full notice of and entered upon his duties and performed the same by virtue of such contract, “and that pursuant to the terms of such contract he* did, by -his certain agreement, undertake to release and discharge the said railroad company and this defendant of and from any claim or right of action which he might have by reason of any injury which he should sustain while being carried under such contract.”

The weakness of the defendant’s case is in the fact that this avermeirt was not proved. There was no evidence of any agreement on the part of the deceased, nor of any knowledge on his part of the agreement of his employer which assumed to grant immunity to the defendant for injuries done to him. The question, so far as we know, is a new one, and it has not been mnch discussed upon this appeal, but we are not able to see how it was competent for the express company, without the consent of the deceased, to bargain away his right to the protection of the law. That the defendant owed him the duty to exercise a reasonable care for his' safety is a proposition which does not admit of dispute. The contract of his employer did not assume to discharge the defendant from that duty, but only from liability for its violation. The stipulation in this case, that the death of the deceased was caused by negligence of the defendant, implies that the latter owed a duty to the former, because negligence consists of the omission of care which is due. This duty did not depend upon contract, express or implied. The deceased was not a trespasser on the cars or the lines of the defendant. He was rightfully there with the consent of the defendant, and being so the defendant was bound to exercise a reasonable care for his safety. It is true the case contains a statement to the effect that proof was made that he (the deceased) paid no fare, and that such rights as he had in the car where he was killed were derived by him under the terms of the agreement ” above mentioned. But it cannot be intended by this that proof was made that the deceased had in any way forfeited or surrendered his natural and inalienable rights, among which was his right to life. The proof referred to must have been limited, as the statement is, to his rights in the car,” that is, his right to be in the express or baggage car and to be transported therein with the goods in his charge; to have the custody and control of those goods; to put off goods at stations to which they were consigned, and to take on goods at stations at which they were offered for transportation. • These were his rights in the car as the agent of the express company, and these were the rights which the express company contracted for and might limit by its contract. But he had besides these the rights which belonged to himself as an individual, and among them was the right to safety of life and limb as against the wrongful or negligent acts of the defendant, its agents or servants. He had never waived that right nor released the defendant from the liability which sprung from its violation. The express company could not waive a right which did not belong to it, nor release a liability which accrued to another.

The obligation to carry the deceased and give him the necessary facilities for doing his work was an obligation to his employer, by virtue of the contract with the latter. The obligation not to do him a personal injury through negligence was a personal obligation which the defendant owed to him in common with all persons who were so situated as to be liable to such injury, without fault, or wrong on their own part. The liability which sprung from the violation of this obligation did not rest in contract any more than if the deceased had been negligently run over by the defendant’s train at a crossing of its road, or if his house, contiguous to the defendant’s track, had been negligently burned by fire from the defendant’s engine.

In no aspect of the case was it competent for the express company to waive or compromise the right of the intestate to protection against negligent wrong at the hands of the defendant, or to discharge the defendant from a cause of action which belonged only to the intestate or his personal representative. Indeed, it would seem that the railroad company did not altogether rely upon the agreement of the express company to release it from the liability in question, for it proceeded to take an agreement to guarantee it against such liability. This latter was a contract which it was competent for the express company to make and prudent for the railroad company to require. In effect, it recognized the existence of the liability on the part of the railroad company to the person injured, and shifted the final responsibility, therefore, by giving to the railroad company an action over for such damages as it should be compelled to pay.

If the views so far expressed are correct, it is unnecessary to examine the question, principally discussed on the argument, whether the contract, even if the deceased were a party, to it, was . void as against public policy.

We find that the deceased was not a party to the contract, and conclude that it had no effect to deprive him of his rights in the respect which has been under discussion.

The judgment should be affirmed.

All concurred.

Judgment affirmed.


text:
    JOHN HUBBELL, Appellant, v. JOHN HARBECK, Respondent.

      A justice of the peace, accepting a retainer from, and bringing am, action in the Supreme Gou/rt for one who is a litigant in am, action pending in his court, is disqualified to act in his own court.

    In an action in a Justice’s Court the justice, who was an attorney at law, two days after the summons was issued accepted a retainer from the plaintiff to bring an action for him in the Supreme Court, which he proceeded to do. It was the first time he had been employed by the plaintiff and he was acting in that capacity when the action in the Justice’s Court was tried. The defendant, after issue was joined in the Justice’s Court, filed an affidavit, stating these facts, and moved that that action be dismissed. This motion was denied by the justice, who rendered judgment for the plaintiff;

      Held, that the judgment of the County Court reversing the judgment of the Justice’s Court, should be affirmed.

      O Brien v. Long (17 N. Y. S. Rep., 510); Stebbins v. Brown (65 Barb., 272); People ex rel. Roe v. The Suffolk Common Pleas (18 Wend., 550) followed.
    Appeal by the plaintiff from a judgment of the Allegany County Court, entered in the office of the clerk of Allegany county on the 18th day of August, 1886, in favor of the defendant, John Harbeck, reversing the judgment of a Justice’s Court in favor of the plaintiff.

      S. G. Swift, for the appellant.

      F. N. Todd, for the respondent.
   Dwight, J.:

Two days after he issued the summons in this action the justice, who was an attorney at law, accepted a retainer from the plaintiff to bring an action for him in the Supreme Court and proceeded to do so. It was the first time he had ever been employed as an attorney by the plaintiff. He was acting in that capacity when this action was tried. The defendant having learned of the relation existing between his adversary and the court, after the joining of issue, filed an affidavit of the facts on the adjourned day and asked that the action be dismissed for that reason. The motion was denied and the justice tried and rendered judgment in the action.

It is said that the case showed that the justice was not influenced to the prejudice of the defendant by his relation to the plaintiff, and so it seems to us on the evidence contained in the return. But in this case the justice not only tried' the cause, ruled on questions of law and the admission of evidence, decided the case and made the judgment, but he took the minutes of testimony and made the return. All these functions were performed by one who stood to the plaintiff: in the confidential relation of his attorney in another action, upon a retainer which the plaintiff had tendered to him, and he had accepted, after he had assumed the office of judge between the plaintiff and defendant. There may have been no corrupt intent in offering the retainer; there probably was none in accepting it; but the transaction did not avoid the appearance of evil, and was certain to cause suspicion and distrust, on the part of the defendant, towards the tribunal to which he was compelled to submit his rights.

In O’Brien v. Long, decided in this court last year (17 N. Y. State Rep., 510), an'order setting aside a referee’s report was-sustained upon facts much less marked than those which characterize this case. There a referee was attorney for one of the parties in' two actions which were referred to the attorney for the plaintiff in the action before him. He reported in favor of the plaintiff and the report was set aside, though, as the court said, “ there was no reason for supposing that the referee was corruptly influenced by the fact,” and the plaintiff himself was wholly ignorant of the relation existing between his attorney and the referee.' In this case it was the plaintiff who induced the improper relation by the offer of a retainer to the justice before whom his action was pending.

The case of Stebbins v. Brown (65 Barb., 272), was precisely like this case except that the judicial officer, who .accepted the retainer from one of the parties to a litigation pending before him, was a referee appointed by the Supreme Court; and his report was set aside. We know of no reason why the same rule, in defense of the purity and exemption from suspicion of the judicial office, should not apply to justices of the peace equally with referees.

In the case of the People ex rel. Roe v. The Suffolk Common Pleas (18 Wend., 550), the action of a justice of the peace was in question, and a writ of cerUora/ri to review a judgment rendered by him was quashed because the justice himself drew the affidavit upon which the writ was allowed. Judge Bronson, in his opinion, says “ the act complained of was calculated to impair the confidence of the opposite party in the impartiality of the officer, which is, of itself, an evil which should be carefully avoided.”

We have no hesitation in affirming the judgment of the County Court, which reversed that of the justice on the ground above stated.

All concurred.

Judgment affirmed, with costs.


text:
    RICHARD T. TUTTLE and Others, Appellants, v. CHARLES La DOW, Respondent, Impleaded, etc.

      What constitutes a license under, and not an assignment of, a patented article.

    In an action, brought for the specific performance of a contract made by the defendant, Wheeler & Melick Co., and the defendant La Dow, with the plaintiffs assignors, to enforce the assignment of certain patents for inventions relating to spring-tooth harrows, which provided that “the parties of the first part do hereby sell, assign and transfer to the said parties of the second part all other harrow patents that they may have a right to use, so far as they may be used, in the territory named, in the manufacture and sale of harrows without wheels or poles, and do hereby agree to assign to said parties of the second part all harrow patents * * * to be used in the manufacture and sale of harrows made without wheels or poles.” The territory consisted of the New England
    States and a certain portion of the State of New York.
    Upon an appeal from a judgment, entered at Special Term sustaining a demurrer interposed to the complaint, upon the ground that the contract did not provide for an assignment of the patents in question, or of any share of the interest therein, but only for a license under such patents, and that such license was not assignable:

      Held, that the decision should be affirmed.
    Appeal by tbe plaintiffs from a judgment of tbe Monroe Special Term, wbicb was entered in tbe office of the clerk of Ontario county on tbe 8th day of January, 1889, adjudging that the plaintiff’s complaint be dismissed, and from an interlocutory judgment, entered in tbe said county clerk’s office on November 16,'1888, sustaining a demurrer interposed by tbe defendant La Dow to the complaint.

      J. H. Metcalf, for tbe appellants.

      A. Chester, for tbe respondent.
   Dwight, J.:

The action was for the specific performance of a contract of the defendants, the Wheeler & JVCelick Company, and the demurrant, La Dow, with certain parties under the firm name of J. M. Childs & Co., which had been assigned by Childs & Co. to the plaintiffs under the firm name of G. B. Olin & Co. The performance sought to be enforced was the assignment of certain patents for inventions, relating to spring-tooth harrows, alleged to have been issued to the defendants, some of them before and some of them after the execution of their contract with Childs & Co. It is alleged that by such contract, which is set out in the complaint, the defendants agreed to assign all such patents to Childs & Co., and that by virtue of the assignment of such contract by Childs & Co. to the plaintiffs, the latter are entitled to have.such patents assigned to them. The defendant, La Dow, demurred on the ground that the complaint did not state facts sufficient to constitute a cause of action, and the demurrer was sustained.on the ground, as indicated by a brief memorandum of the judge at Special Term, that the contracts of the defendants with Childs & Co. did not provide for a grant or assignment of the patents in question, or of any share or interest therein, but only for a license under such patents, and that such license was not assignable. The questions thus presented turn upon the construction of the contract of the defendants with Childs & Co., and were, we think, decided in accordance with the law as established in the courts of the United States.

The paragraph of the contract under which the action was brought, being preceded by provisions in respect to other patents not here in question, reads as follows: “ And the parties of the first part do hereby sell, assign and transfer to the said parties of the second part all other harrow patents they may have a right to use, so far as they may be used, in the territory named, in the manufacture and sale of harrows without wheels or poles, and do hereby agree to assign to said parties of the second part all harrow patents, patents for improvements and reissue of harrow patents which may be obtained by them by purchase or otherwise, to be used in the manufacture and sale of harrows made without wheels or poles.” * * * The “ territory ” referred to in this provision was defined by a former paragraph of the contract as the New England States and a certain portion of the State of New York.

The statute of the United States relating to the assignment of patents is in the following words: “ Every patent or any interest therein shall be assignable in law, by an instrument in writing; and the patentee or his assigns, etc., may in like manner grant and convey an exclusive right under his patent to the whole or any specified part of the United States.” (U. S. Rev. Stát., § 4898.) As the monopoly secured to the patentee is a creation of the statute, so the right to transfer or share that monopoly is given only and is strictly controlled by the same legislative authority. (Gayler v. Wilder, 10 How. [U. S.], 477, 494.) That authority is found in the statute just quoted. It has received frequent construction at the hands of the courts of the United States, and has been uniformly held to embrace only three classes of assignments or grants, viz.: Eirst, of the entire monopoly for the whole of the United States; second, of an undivided share or interest in the entire monopoly for the whole of such territory; third, of an exclusive right to enjoy the entire monopoly within a specified portion of such territory ; and any concession or conveyance short of one of these is not a grant or assignment, but only a license. However exclusive the right conveyed, however unlimited the territory over which it extends, if it be not the right to exercise all the privileges secured by the patent, if it leave any interest in the monopoly in the patentee within the territory defined, it is a license only. (Curtis on Patents, §§ 212, 213, and the cases cited; Blanchard v. Eldridge, 1 Wall. Jr. [U. S.] 337; Theberath v. Celluloid Co., 3 Fed. Rep., 143; Snydam v. Day, 2 Blatch., 20; Hamilton v. Kingsbury, 17 id., 265; Gamewell, etc., Tel. Co. v. Brooklyn, 14 Fed. Rep., 255.) The cases cited variously illustrate the rule above stated. In several of them the fact which determined, the character of the conveyance was that of the limitation of the exclusive right to make, use and sell the patented invention to a particular purpose ; and such was the peculiarity of the contract of the defendants with Childs & Co. The limitation .here was to such use as might be made of the patents referred to “ in the manufacture and sale of harrows made without wheels or poles.” ■ And it plainly reserved to the owners of the patents the exclusive right to manufacture and sell, within the territory covered by the proposed conveyances, all harrows on wheels and horse rakes to be made under such patents.

If we correctly apprehend the force and application of the rules so far considered, the judge at Special Term was right in his conclusion that the conveyances contemplated by the contract, in this case, with Childs & Co., were not assignments or grants but licenses merely. This brings us to the second proposition involved in the decision below, which seems to be equally well established, viz., that as licenses those conveyances are not assignable. The rule in this respect seems to be that in order to give the quality of assignability to a mere license it must contain express words to that effect; it must run to the licensee and his assigns, or by other equivalent language indicate the intention to make the privileges transmissible by the licensee. (Curtis on Patents, § 213Walker on Patents, § 310; Oliver v. Rumford Chemical Works, 109 U. S., 75; Curran v. Craig, 22 Fed. Rep., 101; Eclipse Windmill Co. v. Woodmanse Windmill Co., 24 id., 650; Locke v. Lane & Bodley Co., 35 id., 289.)

There are no words of assignability in the contract of the defendants with Childs & Co., and we regard the cases cited as authority for the holding of the court below, that Childs & Co. took under that contract no right in respect to the patents in question which they could transfer to the plaintiffs.

If so, the complaint did not state facts sufficient to constitute a cause of action in favor of the plaintiffs, and the demurrer was properly sustained.

The judgment must be affirmed.

All concurred.

Judgment affirmed, with costs.


author: Barker, P. J.:

text:
    GEORGE L. HOLLOWAY, Respondent, v. THE CITY OF LOCKPORT, Appellant.

      Municipal corporation — failure to keep a sidewalk in repair — effect of knowledge of such fact on the part of a pa/i'ty injured thereby.

    In an action, brought to recover damages for personal injuries alleged to have heen caused hy the defendant’s negligence in failing to keep a sidewalk within the city limits in a safe condition, proof of the fact that the plaintiff knew of the condition of the walk before the accident happened does not establish such contributory negligence on his part as to preclude a recovery for the injuries sustained, but that circumstances, with all the other facts in the case, are to be considered by the jury in determining whether the plaintiff has been guilty of such contributory negligence.
    The plaintiff is not required, because of his knowledge of such want of repair, to turn off from the sidewalk and go around the dangerous place.
    Appeal from a judgment entered November 10, 1888, in tbe Niagara county clerk’s office upon tbe verdict of a jury rendered at tbe Niagara Circuit in tbe plaintiffs favor for tbe sum of $375, and from an order entered in said office November 10, 1888, denying tbe defendant’s motion for a new trial, founded on a case containing exceptions. Tbe action was brought to recover damages for personal injuries received by tbe plaintiff, alleged to bave been caused by tbe defendant’s negbgence because of its failure to keep a sidewalk within tbe city limits in a safe and secure condition. At tbe close of tbe plaintiffs evidence tbe defendant moved for a nonsuit, wbicb was denied and tbe defendant took an exception.

      John E. Found, for tbe appellant.

      8. E. Graves, for tbe respondent.
   Barker, P. J.:

Tbe exception to tbe refusal to grant a nonsuit presents tbe only question wbicb merits mucb consideration. Tbe plaintiff is a resident of tbe city of Lockport, and at tbe time of tbe accident be resided on Yan Burén street, on one side of wbicb there was a plank sidewalk four feet wide, tbe plank being laid crosswise upon stringers. He passed over this section of tbe walk daily in going to and from his place of business, his occupation being that of a machine blacksmith. On the day mentioned, while walking along the sidewalk, he stepped on one of the planks, which caused it to tip up and catch the plaintiff’s other foot, and he was thrown down .on his hands and face, and received an injury to one of his knees, which disabled him for forty days, from which he had substantially recovered at the time of the trial. The plank was warped, loose and unnailed, so that when stepped upon, the edge of the plank would turn up above the general level or surface of the sidewalk.

As the plaintiff fell the plank was entirely removed from its place, and when the plaintiff was down it was between his legs. The evidence tended to prove that this place had been in this condition for a considerable length of time previous to the accident, and from the proofs the jury were justified in finding that the officers of the city having charge of the streets and sidewalks knew the real condition of the walk at this place.

One of the deputy street commissioners passed over this part of the walk daily for months immediately preceding the accident, and other persons who passed over the walk observed that the plank was not nailed, and was loose and moved when stepped upon. It is a matter of common observation to all persons wdio are accustomed to walk upon plank sidewalks, that a loose, warped and unfastened plank, laid crosswise and on stringers, constitutes a dangerous trap in the sidewalk. So, if it be true, as the plaintiff’s evidence tended to establish, and which was not much disputed by the defendant’s witnesses, enough was shown as to the condition of the walk to- justify the finding that the defendant was guilty of negligence in permitting this walk to remain in an insecure and unsafe condition.

The duty of the defendant was to keep the streets and sidewalks constructed under its orders and directions, within the city limits, in a reasonably safe and secure condition. If the plaintiff did, in fact, know of the real condition of the walk before the accident happened, that circumstance alone does not deprive him of a right of action. That circumstance, however, with all the other facts bearing on the question, were to be considered and weighed by the jury, in determining whether the plaintiff was guilty of contributory negligence. We think that the jury properly disposed of that question; at least the case, as presented by all the evidence, is such as not to permit us to disturb their finding on the question.

This question was asked one of the plaintiff’s medical witnesses who attended him during the period of his lameness: “What do you say as to this injury to his knee being a permanent one?” The defendant’s counsel objected to the question as being incompetent and immaterial, and the objection was overruled and the defendant’s counsel excepted. But this question is not answered, and the court propounded to the witness the following question: “ Have you any opinion on the subject whether he will entirely recover from it?” No objection was made to this question, and the witness answered, “I hardly' think he will entirely.” We think the first question entirely proper, but as it was not answered it does not need further consideration.

The defendant’s counsel asked the court to charge that if the jury find “ that the plaintiff being familiar with the place where the accident took place used no more care or precaution in passing than if he wei’e wholly ignorant of its condition, he cannot recover.” The court declined so to charge, but stated, in response to the request, that if the plaintiff “ was familiar with it, and it was out of order, there is stronger probability that he must have known that there were loose planks there, and it became his duty to be careful and prudent, in view of the knowledge which he had.” To which charge the defendant duly excepted. By a strict construction the exception is limited to the charge as made, and is not an exception to the refusal to charge as requested. It needs no argument to show that the charge requested did not in any manner define the degree of care and caution which it was necessary for the plaintiff to exercise if he knew, as a matter of fact, that the walk was out of repair, to escape the imputation of negligence on his part, and the court properly refused to assent to the proposition. ‘The instruction which was given to the jury on the subject, so far as it went, stated the rule of law correctly relative to the subject. The court, after the exception was taken, gave to the jury the further instruction, that if the jury find that the plaintiff was familiar with the walk in question, and its condition, and passed over it daily, it was his duty to use more than ordinary care in passing over it on the day that he received the injury complained of, and that it was his duty to be more vigilant if he knew of tbe defect than if be bad been ignorant of the fact that it was out of order. The appellant has no right to criticise these instructions to tbe jury, and it appears that be was satisfied with the same, as they were made at bis request.

Tbe appellant also asked the court to charge the jury that if tbe plaintiff was aware that the walk was out of repair and dangerous to pass over at the point where he met with the accident, be should have turned out and gone around tbe dangerous place, which was declined and the defendant excepted. On tbe argument tbe appellant did not claim that this exception was well taken and, manifestly, it was not.

The judgment should be affirmed.

Dwight and Maoomber, «TJ., concurred.

Judgment affirmed.


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    ANN LEE, as Administratrix of JOHN LEE, Deceased, Respondent, v. THE VACUUM OIL COMPANY, Appellant.

      Negligence in not inspecting oil pipes used for the transportation of oil — such pipes a/re not, per se, a nuisance.

    Tlie pipe of an oil company, used for the transportation of its oil, was laid within a few feet of a street sewer connecting with other city sewers. A city contractor, in constructing a city sewer, exposed a section of the pipe, and in blasting rock struck and broke it apart at one of the joints, from which broken joint, some fourteen days thereafter, oil, which was pumped into the pipe, escaped and caused an explosion, causing personal injuries resulting in the death of the party injured.
    There was no evidence of negligence on the part of the company in the mode and manner of laying the pipe, or knowledge on its part of the injury done to it, but it had neglected to inspect the same, for the purpose of ascertaining if it was in proper condition, for the aforesaid period of fourteen days, at the end of which time the pumping of oil into this pipe was continued for a period of two hours and a half before the party at the pumping station was notified, by the employees of the company at the other end of the pipe where the oil was to be discharged, of the fact that no oil was being discharged therefrom at the latter point.
    In an action brought for the recovery of damages resulting from such death:

      Held, that the question of negligence on the part of the company was properly submitted to the jury.
    That the laying and maintaining of the pipes for the transportation through them of oil did not, per se, constitute a nuisance.
    Appeal from a judgment entered on a verdict, rendered in the plaintiff’s favor on a trial at the Monroe Circuit before the court and a jury for the sum of $5,000, in the office of the clerk of Monroe county December 31, 1888, and from an order, entered on the same day, denying the defendant’s motion for a new trial founded on a case containing exceptions.
    The plaintiff was the administratrix of the estate of John Lee, deceased, who died on the 21st day of December, 1887, in' consequence of injuries received on that day by the explosion of gas in a building in which he was employed as a laborer by the occupant. It was alleged that his death was caused by the negligence of the defendant; and it was claimed that it was liable for such damages as the next of kin of the deceased had sustained in consequence of his death, as provided in sections 1902 and 1903 of the Code of Civil Procedure.

      Theodore JBaeon, for the appellant.

      William F. Ooggswell, for the respondent.
   Barker, P. J.:

The defendant is engaged in the manufacture 'of oils from crude petroleum. In the process there is produced a fluid substance called “naphtha,” which, at the low temperature of thirteen degrees Fahrenheit, gives off vapor or gas which is inflammable and explosive when confined. Its explosive power is estimated to be equal to 140 pounds to the square inch.

The defendant’s works are mcatea m the city of Bochester on or near the bank of the abandoned Genesee canal. The Municipal Gas Company is engaged in the manufacture and distribution for consumption of illuminating gas consumed in the city of Bochester. Its works are also situated on the banks of said canal, nearly a mile and a half north of the defendant’s works. The latter company use naphtha in the manufacture of gas, consuming each month about 30,000 gallons, and the defendant supplies the same. Each company stores such quantity as it may have on hand in iron tanks. The naphtha sold by the defendant to the gas company is transported from its tanks to the gas company’s tank by pumping it through a three-inch wrought-iron pipe. • The grade on which the pipe is laid is such that naphtha will not flow to the gas company’s receiving tank by force of gravitation. The pipe is laid in the bed of the canal and passes under Atkinson street and under the Atkinson street bridge which crosses the canal. At that point the pipe is laid within a few feet of the street sewer, which connects with other sewers running in a northerly direction, and at some distance therefrom, and discharges into the Genesee river under the building destroyed by the explosion. The sewer jrassing under the building was open so that gas could escape into and be distributed through the same.

Naphtha was delivered to the gas company for the purposes mentioned every two weeks, and from twelve to fifteen thousand gallons at .each delivery, taking from three to four hours to pump that quantity through the pipe. During the intervening time the pipe was filled with naphtha, the quantity being about 2,000 gallons. The defendant had acquired the consent of the parties owning the bed of the canal to lay the pipe therein for the uses and purposes for which it was intended. A steam railroad track was also laid along the bed of the canal, and the pipe in question was laid by the side of, and, in some places, under the said track.

No time will betaken to prove that the business of transporting naphtha by the means adopted, from and to the place mentioned, and on the line adopted, was a lawful business, for that proposition cannot be reasonably disputed. The means adopted to transport this substance from one point to another is practically the same as the system in use for distributing illuminating gas, produced from coal, in all cities where it is used, and the danger to . life and property in the aggregate are no greater, if they cannot be said to be less. The legislature lias authorized the formation of corporations for “ the purpose of constructing and operating, for the public use, lines of pipe for the conveying or transporting therein petroleum, gas, liquids, or any products or property ” (chap. 203 of 1878), and such corporations may lay pipes across and along public streets and highways, and institute proceedings to condemn lands and acquire the right to lay and construct lines of pipe when they are unable to negotiate for that privilege with the owner. This law was not enacted for the purpose of making legitimate a business which, prior thereto, was condemned as unlawful and contrary to public policy. The chief purpose of this act was to provide for the creation of corporations, to carry on a lawful business, in a manner and by the means which theretofore were proper and lawful for any individual or company of persons to do, using due care in the management of the same.

The real question presented is, was the evidence sufficient to sustain the charge imputing negligence to the defendant, in the mode and manner of laying the pipe, or in neglecting to inspect the same to see if it remained in a safe and secure condition, or in failing to detect that it was broken and unfit for use, on the day the accident occurred, in time to have prevented the escape of naphtha in such quantities as to become dangerous to life or property ? The pipe was constructed from prime material, by an approved process, by manufacturers of experience, and had sufficient strength for the transportation of naphtha, and was well adapted for that use, between the places mentioned, under the pressure applied for pumping, and was well laid and properly covered with earth. It had been in .use several years, and there is no evidence that its original strength had been wasted in any perceptible degree by use. The test which was made, after the accident, of the section of the pipe which was broken fully sustains this statement. The last time the pipe was used before the accident was on the Ith day of December 1881, on which day about twelve thousand gallons of naphtha were successfully pumped through the pipe without any indication that the same was not in perfect order. There is no serious claim made by the plaintiff that the pipe was not in good order, and safe for use on that day.

The question of the defendant’s negligence is to be determined mainly by what occurred after the day named, in connection with the charge made by the plaintiff, that the defendant’s agents and servants in charge of the line failed, by reason of their carelessness and indifference,under the circumstances, to discover that the line was broken, so that all the oil pumped was discharged and wasted. On and prior to the said seventh day of December the city was constructing a sewer in Atkinson street, which was intended to connect with the then existing sewer, which passed under the bridge, which earned Atkinson street over the canal. The contractors constructing the sewer in their operations exposed a section of the pipe for several feet, and in blasting rock a fragment struck the pipe and bent it at that point, which resulted in breaking or pulling it apart at one of the joints, so as to discharge near the sewer all the naphtha that was in or might be pumped into the pipe. This occurred on the eighth of December, one day after the pipe was last used for transporting naphtha to the gas company’s tank. The soil at or near where the pipe was broken was such as to permit of a ready flow of naphtha between the broken end of the pipe and the sewer. Each way from the place of fracture the pipe was laid on an ascending grade, so that its contents at once discharged, but it is not claimed that any of the naphtha which was in the pipe, and which must have escaped immediately after the break, caused the explosion. The defendant’s servants made no inspection of the line between the seventh' day of December and the day of the accident, which was on the twenty-first day of the same month, for the purpose of ascertaining if it was in good order and suitable for use, nor had it been its custom to make an inspection for that purpose.

On the day of the accident the defendant had an order from the gas company to deliver to it 15,000 gallons of naphtha. Wilson and Sweeny, two of the defendant’s servants, who had charge of the pumps and the pipe line, undertook to make the delivery. As it was customary with them they agreed upon the precise time when the pumps should be started, which on this occasion was ten minutes past twelve, m., and time enough was allowed to permit Sweeny to go from the defendant’s works to the gas company’s tank and measure the quantity of naphtha which was then stored therein, and to oj)en the stop-cocks before the time for starting the pumps should arrive, as agreed upon. Sweeny did reach the receiving tank and opened the stop-cocks before Wilson started the pumps, which he did at the time agreed upon, and he continued to operate the same until he had pumped into the pipe 12,000 gallons, which took about two hours and a half before he was notified that the pipe was broken, and none of the oil reached the receiving tank. Sweeny remained at the receiving tank for two hours and twenty minutes watching all the time to see if the naphtha came, and as none was received he then notified an officer of the gas company, who immediately, by telephone, notified the defendant’s business office that no naphtha was being delivered, and the pumping was immediately stopped. About an hour thereafter the explosion took place.

It does not distinctly appear how soon after the pumping commenced that the naphtha reached the sewer, but gas was emitted, from naphtha running into the sewer, as early as one o’clock, and the several-explosions which took place, including the one in the building where the deceased lost his life, as early as about three o’clock thirty minutes in the afternoon.

In view of the danger likely to arise to life and property from the use of a broken or defective pipe, in the locality where this was laid, so that naphtha in considerable quantities might escape, a case was made for the consideration of a jury, with proper instructions as to the rules of law aj>plicable to the case. When safety of human life is in question, a very high degree of care is required in conducting a lawful business. If naphtha in large quantities should be discharged at most any point on the line of the pipe, it would be highly dangerous to property situated in close proximity thereto, and, also, to occupants of buildings in the immediate vicinity, as well as to individuals passing on the public streets. The learned trial judge instructed the jury, in substance, that the transportation of naphtha, by means of a pipe located on the line selected, was not, as matter of law, a nuisance, but it was for them to determine, from all the evidence in the case, whether it was a nuisance as a matter of fact; and if they came to the conclusion that it was a nuisance, then the defendant was liable for any damage which came from the explosion, without regard to the question whether the defendant was negligent or not. In this connection he also instructed the jury that if they came to the conclusion that it was not a nuisance, it did not necessarily follow that the plaintiff had failed' to maintain a cause of action. We are unable to discover in the facts, about which there is really no dispute, those elements of danger which justified the court in submitting the case to the jury for them to determine, whether or not, as a matter of fact, the defendant was guilty of maintaining a nuisance by transporting naphtha through the pipe, or by leaving the pipe full of the same material when the pump was not in use. The pipe was in good order, and safe for the transportation of this substance on this line, and it was lawful for the defendants to engage in that business. There is no evidence showing that there was any leakage of naphtha from the pipe, or that gas escaped therefrom, while naphtha was being pumped or during the time the pumps were not in.use. These facts being conceded, we fail to discover any fact upon which the charge of maintaining a nuisance can be founded. It is no more dangerous to life or property to- convey naphtha in a strong and secure pipe through a populous city than it is to distribute manufactured or natural gas by the same means. Gas thrown off from a body of naphtha is no more inflammable or explosive than coal gas, and either kind must be in some degree confined before the explosion will occur. The rule is of uniform application that while a man may prosecute such business as he dioses on his own premises, he has no right to erect and maintain a nuisance to the injury of an adjacent proprietor or of his neighbors, even in the pursuit of a lawful trade. (Heeg v. Light, 80 N. Y., 579.)

A private nuisance is defined to be anything done to the hurt or annoyance of the lands, tenements or hereditaments of another. (3 Blackstone’s Com., 216.) Any unwarrantable, unreasonable or unlawful use by a person of his own property, real or personal, to the injury of another, comes within the definition stated, and renders the owner, or possessor liable fbr all damages arising from such use. (Wood’s Laws of Nuisances, § 1 and authorities cited.) To constitute a nuisance for keeping in store articles in common use in a community, the substance must be of such a nature and kept in such large quantity and under such circumstances as to create real danger to life and property. This rule seems to be fairly deducible from the many decisions which have been made by the courts on this subject. The fears of mankind will not alone create a nuisance without the presence of real danger. “ The well-founded apprehension of danger, which would alarm men of steady nerves and reasonable courage passing through the streets in the locality where the business is carried on, is enough to show that something is being done which ought to be prevented by condemning it as a misdemeanor.” (Regina v. Lister, 3 Jurist [N. S.], 570; People v. Sand, 1 Johns., 78; Myers v. Malcom, 6 Hill, 292; Heeg v. Light, 80 N. Y., 579.) In such a case the rule which exonerates a party engaged in a lawful business, when free from negligence, has no application.

In another part of his charge the learned judge instructed the jury that if they should come to the conclusion that the defendant was in the act of carrying on a nuisance, and also that this pipe was a sufficiently good pipe, but was broken by the act of a wrong-doer, under such circumstances as that the defendant had no right to expect that it would be broken, and under such circumstances as that the defendant was not guilty of any negligence in not discovering that it was broken, but that it had every reason to believe that it had taken every precaution that a reasonably prudent man would have done to make this safe, and, in fact, had done so, if you come to the conclusion that was the state of affairs, then, although the defendant was guilty of carrying on a private nuisance, it would not be liable for this accident that happened.

These instructions were to the effect that if the defendant was maintaining a nuisance, it was not liable if the pipe was broken by the act of a wrong-doer, if the defendant was not guilty of negligence in the particulars mentioned. But it does not cure the error or leave.it to the jury for them to say whether the defendant was guilty or not of maintaining a nuisance, but for a reason which will be hereafter stated, it becomes unnecessary to consider how far the last instructions qualified those as given, relative to the defendant’s liability, if the jury found that it was maintaining a nuisance.

As an independent ground for a recovery it was submitted to the jury whether the defendant was guilty of negligence in .failing to ascertain by an actual inspection of the line of pipe, or by some other means, that it was broken and unfit for use before they commenced pumping on the twenty-first day of December, or that the defendant’s agent, Sweeny, who was stationed at the gas company’s tanks, in failing to give notice that naphtha was not passing through the pipe, in time to have prevented the escape of naphtha in sufficient quantities to be dangerous. Our comprehension of the case is that a case was made for the consideration of the jury on the question of the defendant’s negligence. Every fact and circumstance must be considered and reflected upon in determining the question submitted to the consideration of the jury. As the pipe was in a reasonably safe and secure condition up to the time it was broken by the act of a third person, the charge of negligence rests mainly, if not entirely, on the omission of the defendant’s agents and servants to do those things which, if done, would have disclosed the actual condition of the pipe before any considerable quantity of naphtha could have escaped. One test, for the purpose of considering whether the pipes were in order or not, was to have arranged that the pumps should have been started before the stopcocks at. the receiver were opened; and if that had been done the broken condition of the pipe would have been disclosed to the engineer at the pumping station ■ immediately, 'as the degree of resistance would have indicated that the naphtha was .escaping somewhere on the line of the pipe. The failure of Sweeny to give notice to those in charge of the pumping station that no naphtha w'as being delivered into the receiving tank, immediately after the time agreed upon for starting the pumps, subjects him to the charge of being guilty of negligence which caused the death of the deceased. It was his duty to act upon the assumption that the pumps would be started at the time agreed upon, and that oil would be immediately discharged into the receiving tank, and as none came through the pipe it was an indication on which any prudent and reasonably cautious man would have concluded that the pipe was out of order. By use of the telephone in the gas company’s office, which was connected with the defendant’s office, he could have communicated with the engineer at the pumping station, informing him that no naphtha was being discharged into the receiving tank, in time to have averted the accident.

The fact that the pipe crossed several streets and, for a portion of the way, was laid under 'the track of a railroad which was in constant use, was a circumstance indicating that it was an act. of prudence to make some sufficient tests to ascertain if the pipe was in a safe condition, immediately preceding the use of the same, for the transportation of a large quantity of naphtha. In face of ffil the facts and circumstances, we think the question was properly submitted to the jury for them to determine whether the defendant’s agents engaged in operating the pipe line were guilty of negligence.

The jury rendered a general verdict in the plaintiff’s favor of $5,000,’ and there was also submitted to them to answer this question: “Was the naphtha which caused the explosion on the 21st day of December, 1887, by which John Lee was killed, permitted to get into the sewer by the negligence of the defendant % ” which was answered in the affirmative. As the defendant’s negligence was established in the opinion of the jury, as indicated by their special verdict, the error in submitting the question to the jury whether the defendant was maintaining a nuisance should not prevail for the purpose of reversing the judgment, for the defendant’s liability was established irrespective of the question of nuisance. For the same reason, if there Vas any error of the court in ruling that the defendant was guilty of violating the provisions of chapter 773 of the Laws •of 1865, regulating the storage and keeping of crude petroleum or any of its products within'the corporate limits of any city within this State, it should not prevail for the purpose of securing a new trial.

The defendant’s counsel asked the court to charge the jury, that, if at a time when Sweeny should reasonably have been required to give notice that no naphtha was coming, the discharge into the sewer was so great as to cause the disaster, this failure to report was not negligence such as to authorize a verdict for the plaintiff. If the jury could, from the evidence, have determined the quantity of naphtha which, in fact, had at that time been discharged into the sewer, there is no evidence which would enable them to say that the quantity was sufficient to have caused the explosion. It is manifest that a considerable quantity must have been discharged from the pipe at the break before any would have been discharged into the sewer by reason of the character of the earth which lay about the pipe where it was broken. It is wholly conjectural as to the precise time when naphtha was first discharged into the sewer. ~We think that the proposition, as stated, was faulty and properly rejected, for the reason that it was the duty of the jury to determine the question of negligence from all the facts and circumstances of the case, and there were others bearing upon the question besides the omission of Sweeny to give notice that naphtha was not being received at the tank.

The defendant’s counsel also asked the court to charge the jury that if they should find that the sole cause of the accident was the breaking of the pipe by blasting at Atkinson street by the interference of third persons without knowledge or notice on the part of the defendant, or any co-operating negligence on the part of the defendant, they must render a verdict for the defendant. We think it is plain that the defendant was not entitled to these instructions. It was a conceded fact in the case that the pipe became broken by reason of tbe interference of third parties, and without any actual knowledge or notice on the part of the defendant at the time the pumping was commenced on the day of the accident, and the plaintiff seeks to maintain her right of action from facts and circumstances wholly independent of and distinct from those mentioned in the first part of the request. We do not need, therefore, to inquire in what sense the term “ co-operative negligence ” was used in the alternative part of the request.

Exceptions were taken by the defendant to the reception and rejection of items of evidence which were considered by the Special Term and held not to be well taken, and we concur in this part of the written opinion of the learned judge as printed in the case.

The judgment and order should be affirmed.

Dwight, J., concurred ; JIacomber, J., not voting.

Judgment and order affirmed.


text:
    EDWARD E. ERWIN, Respondent, v. FRANCIS ERWIN and Others, Appellants.

      Personal transaction with a decedent — what constitutes a participation in a conversation— the wife of the plaintiff, in an action for the specific performance of a contract to convey land, is an interested person.

    In an action brought to enforce tbe specific performance of a parol promise to convey land, made by a party deceased at the time of the bringing of the action, the wife of the plaintiff is an interested party within the provision of section 829 . of the Code of Civil Procedure, and is incompetent to testify to a personal transaction between herself and the deceased.

      Steele v. Ward (30 Hun, 555); Simar v. Ganafiay (53 N. Y., 298) followed; Witthaus v. Schools (105 id., 832) distinguished.
    The plaintiff and the witness (his wife) were seated on the sofa in the residence of the owner (since deceased) of the land, when the deceased turned toward the plaintiff and his wife and said, as testified to by the wife: “ Edward, my son, I have at last got that sixty odd acres that I wanted to add to your farm. I give you the whole farm, I want you to go on it and live. I will help you to build a house and barn. You may have all you make off that farm, and when I die it shall be yours, but I will keep the title in my own hands while I live that you shall neither burden it nor lose it in my lifetime.” He told him (Edward) to improve and fix it up; go on it and improve and fix it up, “I will help you build a bouse and barn.” To this Edward replied, “That is all right, I agree to that.” The wife stated that she took no part in the conversation.

      Held, that the wife was a party to this transaction within the spirit and meaning of the statute.
    That it was impossible to suppose that the witness did not give some signs by her actions, or the expression of her countenance, ■which were recognized by the deceased as a sign that the witness assented to the arrangement which he proposed to make for her husband, that he might establish a home for himself and family; that by means of these signs she became a participant to the conversation which rendered her incompetent as a witness.
    Appeal by the defendants from a judgment entered in the Steuben county clerk’s office August 18,1888, on the decision of the Steuben Special Term in an action brought for the specific performance of a parol promise to convey land. The decision directed a conveyance of the premises to the plaintiff by those of the defendants in whom the title was vested at the time of the commencement of the action.

      George T. Spencer, for the appellants.

      A. Sadden, for the respondent.
   Barker, P. J.:

The plaintiff is the son or the late Francis E. Erwin who died in the year 1887 As early as 1853 the decedent was the owner of the premises, consisting of 250 acres of farm land, the title to which remained in him until a few months before his death.

The plaintiff’s case, as alleged by him in his complaint, is, .that in the year 1853 the plaintiff and his father entered into an oral agreement, whereby it was agreed that if the plaintiff would enter into the possession of the premises in question, cultivate and improve the same as his own, the same should be the lands of the plaintiff; but that the title to the same should remain in the said Francis E. Erwin during his lifetime, and that he, the said Francis, would, at the time of his death, give, convey, devise or transfer the said lands and premises to the plaintiff, so that the plaintiff should have the title to the said lands at the death of his father, to which the plaintiff assented; that in pursuance of the aforesaid arrangement the plaintiff entered into the immediate possession of the said premises, with the consent of his father, and lived upon and occupied the premises as a home for himself, claiming that he had equitable title thereto under and in pursuance of the said agreement; and that he in all respects kept and observed every material promise on his part.

In his lifetime and in the year 1881, a few months before his death, the decedent conveyed the premises, vesting the fee thereof in the defendant Francis Erwin, who is also a son of the deceased. The deceased left a last will and testament, in which he made provision for the support of the plaintiff during his lifetime, the character of which it is unnecessary to mention. At the time of the making of the alleged agreement the plaintiff was married, and his wife was living at the time of the trial, and she was called and examined as a witness in his behalf and gave evidence, tending to prove that the decedent made the parol agreement to convey, which the plaintiff is seeking to enforce.

Without her evidence as to the terms of the agreement it is doubtful whether the plaintiff made a case entitling him to relief, at least it appears by the record that she gave the only direct evidence as to the terms of the agreement between the plaintiff and his father. At that time the plaintiff had been married less than a year, and he and his wife were living with his father as members of his family. The only question which we have deemed it necessary to discuss in disposing of this appeal relates to the competency of this evidence under the Code of Civil Procedure. The provisions of the Code applicable to this question may be abbreviated and stated as follows:

“ Section 829. Upon the trial of an action * * * a party or a person interested in the event * * * shall not be examined as a witness in his own behalf or interests • * * * against * a person deriving his title or interest from, through or under a deceased person or lunatic, by assignment or otherwise, concerning a personal transaction or communication between the witness and the deceased person.”

The title which the defendant, Francis Erwin, claims to have in the lands in question, and which he is seeking to protect against the plaintiff’s claim of title, was derived from his deceased father, and it is thus conceded that one of the circumstances exists which it is necessary should appear to sustain the objection of incompetency on the part of the witness, Was the witness interested in the event of the action? The cases of Steele v. Ward (30 Hun, 555) and Simar v. Canaday (53 N. Y., 298) are sufficient authorities, in support of the appellant’s position, that she was directly interested in the event of the action, and that the judgment, if allowed to stand, would be competent evidence to prove the nature and character of such interest in the premises. Her husband, by the force of tñe judgment, becomes seized of an estate in fee of the premises, and the witness, his wife, has also a claim of an inchoate or contingent right of dower therein which the law recognizes as property possessing some pecuniary value.

The late case of Witthaus v. Schack (105 N. Y., 332) is not in conflict with the proposition that an inchoate right of dower in lands is a claim of value, and can only be extinguished with the consent of the wife of the owner of the fee. That case decides that the wife has no estate in the lands, during the lifetime of her husband, which she can convey; that her inchoate right of dower is but a contingent claim, incapable of transfer by grant or conveyance, susceptible only during its inchoate state of extinguishment, and when she joins her husband in a deed of his lands that act on her part does not constitute her a grantor of the premises; and that the grantee does not derive any title to the premises conveyed through, from or under the wife, but simply secures an extinguishment of her contingent right of dower.

The chief disputation arises over the next question, which is, did -the evidence which the witness was permitted to give relate to a personal transaction or communication between herself and Francis E. Erwin, the defendant’s grantor ? This is to be tested by the witness’ own statements as to the circumstances under which she was present and heard the conversation which she related, which was substantially as follows: The evening the agreement was made the family, including Mr. Erwin and his wife, the plaintiff and the witness, were in the parlor, and she and her husband were seated on a sofa, when Mr. Erwin turned towards the plaintiff and herself and said, using the exact language of the witness: Edward, my son, I have at last got that sixty-odd acres that I wanted to add to your farm; I give you the whole farm; I want you to go on it and live; I will help you to build a house and- barn; you may have all you make off that farm, and when I die it shall be yours, but I will keep the title in my own hands while I live, that you shall neither burden it nor lose it in my lifetime. He told him (Edward) to improve and fix it up; go on it and improve it and fix it up; I will help you build a house and barn.” To this Edward replied,Pa, that is all right.; I agree to that.” She also stated that her husband and his father that evening drew the plan for a house. The witness also stated that she took no part in the conversation for the reason that Mr. Erwin did not like her, and she was afraid that if she spoke he would be angry and oppose the arrangement.

It seems plain that Mrs. Erwin was a party to that transaction within the spirit and meaning of the statute, although she was not named as a party to the agreement. The arrangement was wholly a family affair, and was manifestly intended that the farm should be a future home for the plaintiff and his family; a gift by the father to his son in the nature of an advancement, with an understanding that the title should be secured to the donee by a provision in the last will and testament of the donor. It was a term of the arrangement or agreement that, at some time in the future, the title to the premises should be conveyed to the plaintiff, and whenever that should take place, then, by operation of law, the witness would have an inchoate right of dower in the premises, which would have a pecuniary value of which she could not be deprived without her consent. The judgment decrees a specific performance of the agreement, testified to by the witness, and, if carried out and fully performed, would vest in her an interest in the premises of the nature and character already mentioned. Mr. Erwin, in his offer to give and convey the farm to his son as a homestead, ^really and doubtless intentionally, addressed himself to all the members of his family then present, including the witness, so as to give his remarks the character of a conversation between himself and the witness. Although it must appear' that the conversation or transaction sought to be excluded under the statute was _ a personal one, it need not have been private or confined to the witness and the deceased, nor need the witness have been pecuniarily interested in the transaction at the time he participated in the conversation.

In Holcomb v. Holcomb (95 N. Y., 316), the following general rule was formulated: The policy of the statute excludes the evidence of an interested witness concerning (1) any transaction between himself and the deceased person, or in which the witness in any manner participated; (2) all communications between the person deceased and the witness, including communications in the presence or hearing of the witness, if he in any way was a party thereto, or communications to either of one of two or more persons, if all were interested.

In commenting upon these rules, the court remarked: “ Each of these species of testimony is as much opposed to the spirit and intent of the statute as the other. If the proposed witness has asked a question of the decedent, and it is answered, it is a conversation ; if while the decedent is conversing with a third person the witness by word or sign participates in it or is referred to, it is evidence of what occurred and cannot be received.” The witness admits that she was present and listened to the conversation, and also substantially admits that she participated in it within the sense and spirit of the statute. Although she says she did not -take any part in the conversation, she gives as a reason for her silence, that Mr. Erwin did not like her and she was afraid of making him angry if she said anything, and that he would then oppose the arrangement. That she was desirous that the arrangement should be completed, and was present, giving strict attention to what was said and done, is admitted; and her interest in the negotiations must have been observed by Mr. Erwin, and satisfied him that she was satisfied with the proposed agreement. It is impossible to suppose that the witness did not give some sign by her actions, or the expression of her countenance, which was recognized by Mr. Erwin as a sign that the witness assented to the arrangement which he proposed to make for her husband that he might establish a home for himself and family. By means of these signs she became a participant in the conversation, which rendered her incompetent as a witness.

In view of the particular features presented by this case, which, in our opinion, made the witness incompetent, under the provisions of section 829, it is unnecessary to refer to the cases cited by the respondent, which laid down the general rule that the provisions of the Code do not preclude a party or an interested witness from testifying to the statements of a deceased person made to a third person, in the hearing of the witness, and to distinguish this case, as it readily may be, from the cases referred to, it is so manifest that the appellants were prejudiced by incompetent evidence, that a new trial must be granted, without considering the strength of the plaintiff’s case upon the legitimate evidence offered-and received by the trial court.

The judgment should be reversed and new trial granted, with costs of this appeal to abide the final award of costs.

Dwight, J., concurred ; Macombbr, J.-, not sitting.

Judgment reversed and new trial granted, with costs to abide the final award of costs.