author: By the Court.—Van Vorst, J. Barbour, Ch. J. (dissenting).

text:
    ELLEN L. PUTNAM, Administratix, etc., Plaintiff and Respondent v. THE BROADWAY AND SEVENTH AVENUE RAILROAD COMPANY, Dependant and Appellant.
    Before Barbour, Ch. J., Monell and Van Vorst, JJ.

      Decided June 28, 1873.

      A common carrier is liable for injuries sustained by his passengers and caused by his negligence, or that of his agents and servants.
    The duty of the carrier is not only to guard and protect each passenger from violence and assault, of its own agents, servants, and employes: but also from the assaults and violence of other passengers carried in the same conveyance, and from other causes of discomfort and injury which could have been reasonably anticipated and prevented.
    The, law demands of a carrier of passengers, the utmost skill and care which prudent men are accustomed to use, under similar circumstances, to secure the comfort, and safety of their passengers, and the absence of such sMU a/nd care is negligence.

    The right and the duty of carriers of passengers to remove or control disorderly persons is an incident to their proprietorship of the car or vehicle of the business they were conducting, and the responsibility they assume and take in such business for the safety and comfort of their passengers.
    The right and duty to expel are correlative, and its omission in the case at bar was a culpable breach of a positive duty.
    It was negligence, and for its legal consequences the carrier is liable.
    These principles applied to the case at bar, and the judgment of the court below affirmed.
    Babbotjb, Oh. J., dissenting.
    The facts developed upon the trial of this action are as follows:
    On the evening of April 26, 1871, Mr. A. D. Putnam, in company with Mrs. and Miss Duval, took a car of the defendants at Eighth Street, intending to go to a church in Forty-sixth Street. They took seats on the left-hand or westerly side of the car, towards the front—Mr. Putnam first, then Miss Duval, then her mother. Between. Fifteenth and Sixteenth Streets, Foster jumped on the front platform of the car. Nothing of note occurred till the car came within sight of the Grilsey Building, at the easterly corner of Broadway and Twenty-ninth Street, when Mr. Putnam called Miss Duval’s attention to the new clock in that building. Miss Duval tried to look at the clock from her seat, but it was too high, and Mr. Putnam said, “ G-o to the door and you can see it.” She went to the door, her mother crossing to the other side of the car. As Miss Duval looked through the window in the door, the driver turned round and placed his face at the window just even with hers, and then touched Foster who stood beside him. Foster pulled the door open and made an insulting gesture to Miss Duval. Mrs. Duval pulled her daughter back and quietly closed the door. Foster opened the door again ; again Mrs. Duval closed it, Foster opened it again, and again made use of the same insulting action. Again Mrs. Duval closed the door, when Foster threw the door wide open and stalked into the car. Mr. Putnam rose and said, ‘ ‘ What is the meaning of this ? these ladies are under my care, and I will not have them insulted.” He told Foster to come in and shut the door. Foster said, “ What right have you to say anything about it—what is it to you?” Foster stepped back to the front platform, and Mr. Putnam closed the door. Foster opened it, and Mr. Putnam closed the door two or three times. Mr. Putnam then went on the front platform and stood with his back to the door, the knob in his right hand. Foster said something about paying for his seat, and that he wanted it. Mr. Putnam said, certainly, he was welcome to have it, and pulled the door open without turning round, and backed into the car. Foster followed him.
    . The driver of the car saw a portion, at least, of this conduct on the part of Foster, but made no attempt to interfere. Mr. Putnam sat down on the left-hand side of the car, and Foster took a seat beside him, and turned so as to stretch his legs and feet along the seat, his feet toward Mr. Putnam; there were only four or five persons in the car, leaving most of the places unoccupied, so that the conductor could have removed Foster from the neighborhood of the Putnam party. He did not do so, and Mrs. Duval moved her daughter to her other side, when Foster said, “What is it to you?” Mrs. Duval replied, “You are very rude and impertinent.” It was quite obvious that Foster was in liquor. He commenced talking and swearing at Mr. Putnam, making faces and speaking roughly. Mr. Putnam paid no attention, simply saying, “When you get done talking, I suppose you will stop ; if I had thought you were in liquor, I should not have had anything to say to you,” and, Foster continuing his conduct, called the conductor and asked him if he could not make the man keep quiet.
    When Mr. Putnam called him, the conductor came in, and said to Foster, “ Sit down and be quiet.” The conductor did nothing further, and returned to the rear platform. Foster continued his rough and insulting conduct, ending by leaning over to Mr. Putnam, and saying to him, “How fa are you going up?” Mr. Putnam made no reply, an:. Foster continued, shaking his fist, “Well, I will go as far as you go, and before you leave the car I will give you hell.” There is no evidence that this was heard by either the conductor or the driver.
    Foster then returned to the front platform, leaving the door wide open; Mr. Putnam rose, and closed it. During all the occurrence the driver put his head through the front door from time to time to see what was going-on.
    Nothing further occurred until the car reached Forty-sixth Street, when Mr. Putnam asked the conductor to stop. He pulled the bell; Miss Duval got out first; Mr. Putnam followed her ; Mrs. Duval had not reached the door of the car. ' Mr. Putnam stood on the rear platform with one foot on the lower step and one on the ground, when Poster came from the front platform, and with something long, looking like iron, about the length of a car hook, struck Mr. Putnam twice over the head.. The conductor stood with the strap in one hand and one hand on the railing, waiting for Mrs. Duval to get out. Just as the blow was struck, Mrs. Duval heard Mr. Putnam say to the conductor, “Conductor, when you let disorderly people on the car you ought to know how to keep them quiet.” The blows so received by Putnam caused his death, and this action is brought by the executor and executrix of his estate to recover for the injury sustained by his next of kin by reason of his death.
    Upon the closing of the proofs, the defendants’ counsel asked the court to dismiss the complaint upon the following grounds:
    First.—(Because the plaintiff has failed to maintain or prove a cause of action, and for remoteness.
    Second.—The death of plaintiff’s intestate is not proved to have been caused by any wrongful act, neglect or default of the defendant, or any of its servants or agents, but by the criminal act of a third party.
    Third.—The circumstances of the killing of the said Avery D. Putnam were not such as would (if death had not ensued) have entitled him to maintain an action against the defendant.
    Fourth.—ISTo request was made by Mr. Putnam or any passenger that Foster should be ejected from the car.
    Fifth.—There is no proof of notice to the defendant or the persons in charge of the car, that Foster was a person whom the defendants had a right to exclude or expel from 'the car, or that he was in a condition from which violence or personal injury should have been anticipated.
    Sixth.—There is no proof showing that Foster’s condition or conduct were such, prior to the killing, as that the defendants were bound to remove him from the car.
    Seventh.—The proof shows that the injuries which occasioned the death of the said Putnam were sustained by him in the public highway after his journey had ended, and when both he and Foster had ceased to be passengers on the defendant’s car.
    Mghth.—There is no proof that if Foster was intoxicated or under the influence of liquor, that fact was brought to the notice of the defendant or its employes before he left the car.
    The motion to dismiss was denied, and the defendants excepted.. The jury rendered a verdict for the plaintiff of $5,000, and from the judgment entered thereon the defendant appealed.

      John M. Scribner, for appellant.

      Man and Parsons, for respondent.
   By the Court.—Van Vorst, J.

A common carrier of passengers is not liable for their safety to the same extent that he is for the safety of merchandise. He is not bound absolutely in every event, and under all circumstances, to insure the safety of his passengers.

But he is liable for injuries sustained by them through his own negligence, or that of his agents and servants.

The duty of the carrier is not only to guard each passenger from violence and assaults of its own agents and employes, but from the assaults and violence of other passengers carried in the same conveyance, and from other causes of discomfort or injury, which could have been reasonably anticipated and prevented (Sherby v. Billings, 8 Bush [Ky. R.] 147; Goddard v. The Grand Trunk Railway, 57 Maine R. 202 [2 Amer. Rep. 39.]; Flint v. The Norwich & New York Transportation Co., 34 Conn. 554; Pittsburg, Fort Wayne & Chicago R. R. Co. v. Hind, 7 Amer. Law Reg. 14 [N. S.] ).

The law demands of the carrier of passengers, the utmost skill and care which prudent men are accustomed to use under similar circumstances to secure the comfort and safety of their passengers, and the absence of such skill and care is negligence.

Nor will such care and skill be deemed unreasonable when it is considered that human safety is concerned.

Such being the measure of responsibility, carriers of passengers are required to have servants and agents in their service, competent, skilled, and experienced for their several employments. In no other way can they meet their responsibilities (2 Parsons on Contracts, 5th edition, vol. 2, p. 228).

At the time Putnam received the blows from Foster, which caused his death, the relation of pássenger and carrier between himself and defendant had not, as was urged by defendant’s counsel on the trial, ended.

The place, Forty-sixth street, had been reached, at which he had directed the conductor to stop for the discharge of himself and two females, a mother and young daughter, who were in his charge. The daughter had alighted, leaving her mother still in the car, but following her, and Putnam was standing with one foot on the ground, and the other on the step of the rear platform, his hand on the railing, in the act of aiding the mother to alight, when he was struck down in the presence of the conductor.

A passenger should have a reasonable time in which to leave the car, at the end of his route, with those in his charge.

In Brien v. Bennett (8 Cass. & P. 724), it was held that the relation of carrier and passenger was commenced when the plaintiff was putting his foot on the step of an omnibus which, had stopped on his signal, when he was injured by the act of the driver in going abruptly on. Much more would the relation once began, be not yet-ended, when a passenger in the act of alighting had but one foot on the ground.

The question presents itself, whether the defendants omitted any duties arising from the obligations which they had assumed with regard to the safety of Putnam, while he remained a passenger, or whether they were guilty of any negligence which contributed to his death.

Foster, when he was accepted as a passenger, was in a condition of gross intoxication. It appears that the car did not stop to receive him, but that he jumped on the front platform at Sixteenth Street, whilst it was in motion, and with a force so potent as to shake the car. He took his position near the driver, standing on the platform by his side. As he was in a condition of intoxication, he could have been refused as a passenger, and removed from the car. But the conductor, by after-wards receiving his fare, waived the manner of his intoxication upon the car, and accepted him as a passenger.

His rude and disorderly conduct, to be expected from his state of intoxication, commenced whilst he was standing by the side of the driver, when the car reached Twenty-ninth Street, and was of a nature to have called for his immediate ej ection. He grossly insulted by looks, acts, and speech, the mother and daughter under Putnam’s charge.

He violently, forcibly, and noisily opened and insisted on keeping open the front doer, which had been closed for the comfort of the passengers, it being in the night, and he remaining outside on the platform,' within a few feet of Putnam and the two females, one of whom was ill. Finally, entering the car, he seated himself near Putnam, with his body stretched upon the cushions, and Ms feet extended towards him. He offensively indulged in muttering speeches and fierce gesticulations, and finally uttered a distinct threat of injury to him, before Putnam should leave the car.

Whether the driver or conductor heard this specific threat, does not affirmatively appear.

But they were spoken in a tone of voice sufficiently loud to be heard by Mrs. Duval and her daughter, who were sitting on the opposite side of the car.

It was not necessary to have insured prompt action for his expulsion, that the driver and conductor should have heard this threat. Sufficient had before occurred within their sight and héaring to have demanded decided action. His intoxication, his insulting, disorderly, and menacing conduct, had called for his removal from the presence of passengers, whose comfort and safety were in jeopardy so long as he remained.

Beyond controversy, the defendant’s agents in the' car, had they been so disposed, had the right to have expelled him so soon as his condition was known or his disorderly conduct manifested.

This right to remove disorderly persons is an incident to the defendant’s proprietorship of the car, the business they were conducting, and the responsibility they were under for the safety of other passengers (People v. Cargl, 3 Parker, C. R. 326 ; Redfield on the law of Railroads vol. 2, p. 273, paragraph 5; fourth edition; Vinton v. Middlesex, Railroad Co., 11 Allen, 306).

The existence of this right of expulsion, and their obligations to the other passengers imposed upon the defendants the duty to expel. Under such conditions, the right and duty are correlative.

When a right is conferred, a relative duty is also imposed upon the party obliged. Putnam, as a passenger, had absolute right to protection against insult and inj ary from passengers admitted and tolerated by the defendants in their car.

And if such protection demanded, as it assuredly did, the expulsion of Foster, it was the duty of the defendants to have removed him promptly.

Their omission to do so was a culpable breach of a positive duty. It was negligence, and for its legal consequences the defendants are liable.

It can scarcely be questioned, upon principle or authority, that had Foster, at Forty-sixth Street, before leaving the car, inflicted the injury on Putnam, that the defendants would have been held responsible, as the consequences of their breach of duty and negligence. But the learned counsel for the defendant claimed on the trial, and in his argument on the appeal, that Foster, when he committed the injury, had also ceased to be a passenger, and that defendants were not liable for his acts committed thereafter.

But Putnam, as has already been observed, was still a passenger, and for his safety from injury, which, by the performance of their duty, the defendant could have secured, or for any damage to him, the result of their negligence, they were still liable.

Had Foster, instead of being carried by'defendants, under the circumstances of this case, casually or by design been at the spot without the defendants’ agency, and, under the,influence of passion, struck Putnam, no negligence or want of care being imputable to defendants, it might reasonably be urged that no liability would rest upon them.

It does not appear from the evidence that Foster had indicated either to the conductor or driver at what particular point he wished to stop. It may be inferred from his conduct, speech, and menace to Putnam at or about Twenty-ninth Street, that he had no specific objective point of* departure, but that he had determined in his mind to remain in the car and be carried at least as far as Putnam, and inflict upon him the injury which he had openly threatened before he should leave, or whilst in the act of leaving.

To the extent of carrying Foster, and enabling him to be in readiness to inflict the injury at the precise time Putnam should attempt to leave the car, the defendant aided the felon in his purpose. His prompt expulsion, on his first exhibition of rude behavior, would have' foiled his purpose and prevented the homicide.

If or does it appear that, when he left the front platform at Forty-sixth Street, and ran hurriedly along the side of the car to the rear to attack Putnam, he had finally terminated his relation as a passenger, ©r had indicated his intention then to do so. The end of the railroad route had not yet been reached, and his fare through had been paid. There is no evidence that he did not return. If he did not, however, the view is confirmed that he was travelling only to find a fitting moment to do effectually his work, or it may be that, having accomplished it, he feared to return and sought to escape. If instead of being under the influence of intoxicating drink, 'and rendered thereby rude, disorderly, and threatening, Foster had been a raving maniac unbound, voluntarily carried by the defendant, who, leaving the the car suddenly at some stoppage, and moved by some fancied wrong, attacked and severely wounded a passenger while in the act of leaving, it would seem that the defendant’s negligence in carrying a person in such condition would be a breach of duty to the other passengers, and render them liable for the injury. The learned counsel for the defendant earnestly contends that the death of Putnam was not the legal and natural consequence of the negligence imputed to the defendants.

The learned judge before whom the trial was had, in his charge to the jury, said: “The plaintiff, in order to maintain this action, is bound to show that the death of her husband was caused solely by some wrongful act, neglect or default of the defendants’ servants or agents ; ” and further: “If you come to the conclusion that there was negligence on the part of the defendants in not excluding this man, or in suffering this occurrence to transpire, and that this blow was a consequence or result of such neglect on the part of the defendants' or their servants, then it is for you to consider the amount of x damages, after satisfying yourselves that this injury, "by which the "deceased lost his life, was the result of negligence on the part of the defendants.”

The jury found a verdict for the plaintiff of five thousand dollars. We see no error in the charge of the judge ; no exception was taken, and the verdict of the jury establishes, and, as we think, correctly, both the negligence of the defendants and the killing of Putnam as its consequence.

The failure to remove Foster was not only a breach of duty on the defendants’ part to protect the passengers from the rudeness and violence of Foster, but was in itself a wrong,—a wrong to some extent aggravated by the fact that Foster stood on the front platform by the driver, and much of his disorderly conduct was committed in his presence without reproof or interference. The conductor, who was in sight, did nothing except on one occasion to say to Foster, “Sit down and be quiet.”

Heither of these men have been called as witnesses to give any account of the transaction, or any explanation or exculpation of their conduct, or failure to act promptly and efficiently in the premises.

The presumption is that no satisfactory excuse or reason in their justification, or even in palliation, could be offered.

In order to render the defendants liable for the death of Putnam, it is not necessary that their servants and agents should have either intended or expected that it would result from their failure to expel Foster, or that such result would be either the necessary or natural consequence of their negligence.

In Vandenburgh v. Truax (4 Denio, 467), Brown, C. J. says: “The injury which the plaintiff sustained was not the necessary consequence of the wrong done by the defendant, nor was it so in the case of the lighted squib in Scott v. Shepherd (2 W. Blade. 892). But in both instances the wrong was of such a nature, that it might very naturally result in an injury to some third person. It is true that the boy might have gone elsewhere instead of entering the plaintiff’s store, and it is equally true that Willis and Regall might have thrown the squib out of the market-house, which was open at both sides and at one end, instead of tossing it across the market-house among the people then assembled, and finally the proximate cause of the injury was in both cases an intelligent agent.”

In Leame v. Bray (3 East. Rep. 595), Lord Ellen-borough said: “ If I put in motion a dangerous thing, or if I let loose a dangerous animal, and leave to hazard what may happen, and mischief ensue, I am answerable in trespass, and if we put an animal or carriage in motion, which causes an immediate injury to another, he is the actor, the causa causans.” See also Gruille v. Swan (19 John R. 382).

It is true that the injuries in the cases "last above cited, were the consequence of positive acts wrongfully or negligently done, but the rule as to the sequence of damage in such cases is the same as when the injury is the result of an omission to perform a positive duty. The. condition and conduct of Foster was such as would naturally, and according to the usual course of things, lead to further disorder, violence, or injury. His reason and judgment were disordered, and his passions aroused. Such conditions, according to human experience and observation, naturally lead to injurious consequences.

All that is necessary is, that the negligence and injury is concatenated as cause and effect to support the action, and that has been found by the jury to exist in this action.

The primary cause of the plaintiff’s injury in the loss of her husband, may be directly traced to the defendants themselves who entrusted the conduct of their business and the safety of their passengers to persons incompetent for the service, or regardless of their duty ; persons who were apparently indifferent alike to Foster’s disorderly conduct and Putnam’s safety, and who, either unmindful, or not properly considering the consequences, negligently failed to discharge a duty which, if performed, would doubtless have obviated the evil and prevented the homicide.

A careful examination of the case fails to disclose any error in the rulings and decisions of the judge on the trial, and the judgment appealed from should be affirmed with costs.

Monell, J., concurred.

Barbour, Ch. J. (dissenting).

The few general common-law rules touching the rights and obligations of carriers of persons and their passengers respectively, which were found necessary while the modes of carrying were restricted to sailing vessels upon the water, and wagons or stage-coaches on land, have not only become somewhat modified and greatly extended within the last half-century, but, as novel questions have arisen, it has been found necessary from time to time to establish new rules applicable only to particular classes of cases. For instance, it may now be considered as settled by numerous decisions, that carriers of passengers upon a railroad train, propelled by steam at a rapid rate of speed, are bound to exercise vigilance and care for the protection of their passengers, proportionate to the dangers to be guarded against, and that such carriers are required to exercise extraordinary care, vigilance, and caution, and not merely that ordinary care which carriers by coach were bound to exhibit. The principle of this rule of law is quite correct. The duty of the carrier is increased by the additional dangers to which his own method of transportation subjects his passengers, and the greater helplessness of the latter. So, too, carriers by steamboat must see that their machinery is sufficient, and in good order, and managed by competent and skilful men.

Our street cars are propelled by horses at a moderate rate, keep upon their own track, are readily stopped, even if the horses become fractious or unmanageable, and are less easily overturned than a stage coach. No extraordinary care, therefore, is required in their management to secure the safety of persons carried by them.

Again: As passengers on shipboard are without power to protect themselves against aggression and personal annoyance, except by such acts as would be a breach of the proper discipline there, and cannot leave the ship, it is no doubt the duty of the master, who has all the necessary power, to protect each passenger who is in danger of suffering a personal injury from assault by another ; and so, perhaps, and for a similar reason, as to carriers on railroad cars propelled by steam (See liegeman v. 'Western railway, 3 Kern. 9). But that rule, it appears to me, is no more applicable to carriers by our street cars, than it is to innkeepers or carriers by stage coaches. For street car passengers are by no means helpless, nor necessarily dependent for-their personal protection upon the carrier, as they can easily cause the car to be stopped and leave the same together with the annoyance, and, if they choose, take another car. Carriers of that class discharge their obligation to carry safely” when the passenger is so transported as to remain uninjured because of some act of negligence, or want of care on the part of the carrier in regard to the construction or management of the vehicle or means of propulsion used, or of some wrongful act on the part of the employés. A carrier cannot be bound to fight for the safety of a passenger, who may protect himself, with but slight inconvenience, by leaving the car. In these remarks I have spoken only of the duty of carriers in regard to the personal safely of their passengers. The question as to their duty to provide for and protect the comfort of such persons, is quite another matter, which in no wise concerns this case ; for, unless the plaintiff have established the fact that the defendants failed to perform their obligation to carry Mr. Putnam safely, including of course his descent from the car, there can be no recovery.

In this case, the evidence was sufficient to authorize a finding by the jury that Foster was intoxicated, and that he by a series of offensive and disgusting acts and remarks greatly insulted-and annoyed Mr. Putnam and the ladies under his charge, and that some, at least, of those offensive acts were witnessed by the driver of the car. Mr. Putnam, however, does not appear to have apprehended any personal injury or danger to himself or the ladies, nor did he call the attention of the conductor to the matter, or request his interference more than once, when he said, “Conductor, can’t you make this man be quiet?” whereupon the conductor said to Foster, “Sit down and be quiet.” After that, Foster sat down, and after sitting a short time, told Mr. Putnam in a low tone, “Before you leave this car I will give you hell;” but it does not appear that the conductor heard or could have heard that threat. The car was at about Thirty-fourth or Thirty-fifth Street when the threat was made, and Foster then went out upon the front platform, and Putnam shut the door after him, and thus things remained for about half a mile and until the car was stopped for Mr. Putnam at Forty-sixth Street. From these facts, considering them all, in their connection, it may be assumed that neither the conductor nor the driver supposed or had any reason to believe that the brutal and offensive conduct of Foster indicated an intention on his part at any time to make a personal attack upon Mr. Putnam, and also, that after Foster had left the interior of the car and quietly remained for a long distance upon the front platform, no apprehension of personal violence from him could reasonably have been apprehended by any one unless Putnam himself and the lady who overheard Foster’s low-toned threat were exceptions. Besides, it clearly appears from the evidence that Mr. Putnam had, at least, all the knowledge touching the conduct and conversation of Foster that was possessed by the conductor and driver or either of them, and had quite as much reason for supposing that Foster designed to make a personal assault upon him as "those employés of the defendants could have had. If the death of Mr. Putnam can be said to have been occasioned by the negligence or want of care of any one, Mr. Putnam himself was .therefore chargeable with that negligence as fully, at least, as were the conductor and driver or the railroad company itself. For, he not only neglected to tell the conductor or driver of the threat which Foster, had made, or to ask their assistance and protection, but he took no precaution whatever to avoid or guard himself against an attack. In no view which can be taken of the duties and obligations of the carriers, therefore, can it be held that Mr. Putnam’s death was occasioned by the negligence of the defendants, without any negligence on the part of the former which contributed to the loss of his life.

For these reasons, the plaintiffs failed to establish their' right to recover upon the evidence, and it follows that the motion for a nonsuit ought to have been granted.

The judgment and order appealed from should be reversed, with costs, and a new trial directed.

Note.—The decision of the court in this case has been reversed by the Court of Appeals, opinion by Allen J. (not yet reported). The impertance of the case, and the general interest of the profession therein, warrants the above full report of the case in this court.

The Reporters.


source: Caselaw Access Project

author: By the Court.—Monell, J.

license: Public Domain

text:
    CHARLOTTE HAYNER, Plaintiff and Respondent, v. THE AMERICAN POPULAR LIFE INSURANCE COMPANY, Defendant and Appellant.
    Before Barbour, Ch. J., Monell and Van Vorst, JJ.

      Decided June 28, 1873.
    Reargument of an appeal heard at January General Term, 1873, and judgment reversed by decision announced at February Term, 1873, and reported by Jones & Spencer, in vol. 35 Supr. Gt. Repm'ts, 266. This court in this decision followed, and in a measure relied upon, the adjudications of the court in O’Reily v. The Mut. Life Ins. Co., (Abbott’s Rep. [N. S.] 167) and Cohen v. The Same (not reported). The latter case having been reversed in the Court of Appeals, on motion, a reargument of this case was ordered, and upon the hearing the judgment of the court 1 below was affirmed with modifications. By reference to the case as reported, vol. 35, Supr. Ct. Rep. 266, the points decided upon the reargument, and the difference between the respective decisions, will more clearly appear.
    Where a life insurance company, without just and legal cause, has simply declared one of its policies to have lapsed and become void by reason of the policy holder’s default, and refuses to have any further dealings with the policy holder, a right of action acrues to the policy holder in equity to have the policy adjudged and decreed to be in life and full force. The policy holder need not wait until a claim or right of action against the company has accrued under the policy by reason of the death of the person whose life is insured thereby.
    The judgment of the court below adjudged and decreed the policy to be in full force and effect, etc., etc., and also the following- alternative relief based upon a condition of .the policy, “ or if the plaintiff shall so elect, etc., etc., the defendant shall issue and deliver to the plaintiff an equitable, full paid-up policy, etc.” Held, That the alternative relief granted by the court below was inappropiate and should not have been granted, and that part of the judgment should be reversed.
    • Reargument of an appeal from a judgment heard. April General Term, 1873.

      The appeal from the judgment in this case was argued, at the late January General Term (1873). The action was to restore a policy of life insurance, which was claimed by the insurers to have lapsed, by the omission of the insured to pay the stipulated premium within the agreed time. The court at the trial found as a fact, that the forfeiture, by reason of the- non-payment of premium, had been waived, and gave judgment restoring the policy and requiring the defendant to issue to the plaintiff a full paid-up policy.
    It appeared that the life insured was .the husband of the plaintiff, who is now living.
    The General Term approved of the finding of fact, that the forfeiture had been waived, but differing from the judge below upon the power of the court to give the relief demanded, decided and rendered a decision reversing the judgment. The ground of the decision was that the court could not restore the policy. That until there was a right of action upon the policy (which could not arise until the death of the life insured), the court had not the power to determine the question of waiver.
    The General Term, in pronouncing its opinion, followed, and in a measure relied upon, two former adjudications in this court, involving the same questions . (O’Reilly v. The Mut. L. Ins. Co., 2 Abb. [N. S.] 169 ; Cohen u The Same [not reported]). The latter case, (Cohen’s) was taken to the Court'of Appeals, and the judgment of this court was there reversed.
    A motion, founded upon such reversal, was ifiade for a reargument of the appeal in this case, and as no order or judgment had been entered upon the decision, the motion was granted.
    Upon the reargument, the court was furnished with the printed case in Cohen v. Mutual L. Ins. Co., and a copy of the opinion of the Court of Appeals reversing the judgment of this court.

      Mr. L. R. Marsh, for the plaintiff.

      Mr. Geo. Bliss, for the defendant.
   By the Court.—Monell, J.

In the Cohen case it was alleged that the non-intercourse between 'the South and the North during the war of the rebellion had prevented the payment of the premiums, and by reason of such non-payment the company had declared the policy lapsed and forfeited ; and the relief demanded was, that the policy might be declared valid.

The defendants demurred, alleging a want'of jurisdic-' tion in the court of the subject of the action, and also an insufficient statement of facts to constitute a cause of action.

The demurrer was sustained by the Special and General Terms of this court.

I have looked at the opinion of the Court of Appeals in that case, and find that it fully covers the only ground upon which the decision in this case was put, and must, therefore, be regarded as stare decisis, unless this case can be distinguished by reason of its being against a stock company. In the Cohen case the cor-, poration was mutual, and it is now urged that the right to equitable relief granted in that case proceeded upon the principle that all policy holders in a mutual company were quasi partners in the company, having a joint interest, and thus entitling them at any time to be restored to all their rights as such partners. But the Court of Appeals, in effect, disposed of that question, or sufficiently so to make it proper for -us to hold, that there is no such distinction. Judge Allen, who delivered the opinion of the court, discussed the question of partnership, and rejected it, as applied to a mutual company. Besides, the general ground of the decision is not affected by any such question. That ground is, that it is competent for the court to restore a policy at-any time, and "before any liability had been incurred upon it. In that view, it is of no importance what is the nature of the corporation, whether stock or mutual.

So much, therefore, of the judgment as requires and provides for a restoration of the policy must, at least, be affirmed.

Any other questions raised by the appellant are, however, open for examination. Among such'questions not found necessary to^be decided by the late G-eneral Term, was, the appellant’s objection to so much of the judgment as gave to the plaintiff the option to require the defendant to issue to her a full paid-up policy.

The complaint in the action demanded the alternative relief—to restore the policy in all its provisions, or “ that the defendants be compelled to issue to the plaintiff an equitable, paid-up policy, for an amount equal to the true value of the policy, etc.,” and the judgment was, that the policy is, and should be, “in life and in full force and effect, and binding in- all its terms and conditions upon the defendants, etc. ; ” or, if the plaintiff shall so elect, “ the defendants shall deliver to the plaintiff an equitable, full paid up policy, etc.”

The policy contains an agreement by the company, that after payment of any of the premiums the company will give to the assured an equitable, paid-up policy for an amount equal to its true value, etc.

It is not necessary, I think, to inquire what obligation is imposed by the agreement alluded to. It is very probable that when the policy is restored and the plaintiff has regained all her rights under it, that slie will be entitled to enforce the agreement, and to require, if she has complied with the proviso, to have issued to her, a paid-up policy. But I am inclined to think that all she had the right to demand in the action, or the court the right to grant to her, was, that the policy should be restored to vitality. Such restoration would necessarily revive the agreement to issue a paid-up policy, and place the plaintiff in a condition to enforce it at the proper time. But I do not think it was appropriate relief in t.liis action, and should not have "been granted. Indeed, I do not see how the questions which are involved in such relief could well be litigated in this action. The proviso in the agreement is, that “ the last payment of premiums due shall not have remained unpaid for more than thirty days.” As the premiums were confessedly all unpaid, and their payment was required "by the judgment to "be made as a condition of restoring the policy, it would seem to me that the proviso was in effect set aside, and the defendants precluded from having a fair litigation over it.

I am in favor, therefore, of reversing so much of the judgment as provides for the issuing of a paid-up policy.

We think the remainder of the judgment sufficient in substance to give the plaintiff all the relief she is entitled to and also to protect the defendants. It requires the payment of all premiums which become due to and including April 27, 1870, with interest, and thereafter a performance by the plaintiff of all the terms and conditions of the policy. A compliance therewith will require payment of all subsequently accrued premiums, with interest.

The effect of this decision is to reverse in part the judgment appealed. We might send it back for another trial. But we prefer to end the litigation in this court by modifying and affirming. The costs are in the discretion of the court, and we cannot disturb the part of the judgment which awards general costs. But the appeal is also from the extra allowance, and it appears that it was granted without notice or motion or papers. Under the authority of Gori v. Smith (6 Robt. 568), and People v. N. Y. Central R. R. Co. (30 How. Pr. R. 149), the order is reviewable, and we think it should be reversed.

With the modifications mentioned, the judgment should be affirmed, but without costs to either party.

Barbour, Ch. J., and Van Vorst, J., concurred.


author: By the Court.—Van Vorst, J.

text:
    SOLOMON H. GOODMAN, Plaintiff and Respondent, v. JULIUS STROHEIM, impleaded, etc., Defendant and Appellant.
    Before Freedman, Curtis, and Van Vorst, JJ. .

      Decided June 28, 1878.
    In an action for malicious prosecution, the plaintiff was allowed to testify on the trial, under the defendant’s objection to statements that he the plaintiff made to one Martinott, a police officer, when the defendant was not present, nor did it appear that Martinott had communicated the statement to defendant before he had made his affidavit and complaint against the plaintiff.
    The defendant excepted to the ruling of the court admitting this testimony.
    The defendant was examined as witness on the trial, and was asked if he made the affidavit and complaint in good faith, believing that everything stated in the same was true. Plaintiff objected to the question and to any answer to the same, and the court sustained the objection, and the proposed testimony was excluded, and the defendant excepted.

      Held, That both of these exceptions were well taken, and the court below erred in the reception of the first testimony and the exclusion of the latter.
    The principles and rules relating to actions for malicious prosecution reviewed in the opinion of the court, VAN VOBST, J.
    Appeal from a judgment in an action for malicious prosecution. The points and facts appear fully from the opinion of the court.

      Nelson Smith and Cephas Brainerd, for appellant.

      Cornelius Runkle, for respondent.
   By the Court.—Van Vorst, J.

The law only renders a party responsible in an action for the prosecution of another where malice is combined with want of probable cause. There are other essentials which are not necessary here to be noticed, but in order to entitle the plaintiff to recover in such action, the evidence should be such as to satisfy any reasonable mind that the defendant had no ground for the proceeding other than his desire to injure the accused.

It is not enough, however, to prove malice in the defendant ; the want of probable cause is not necessarily inferred from malice, for; notwithstanding the malicious feeling of the defendant, if he was moved to the prosecution by reasonable and proper cause, he would be entitled to a verdict.

But when there is an entire absence of any reasonable or probable cause for a criminal prosecution, it may be fairly considered to have originated in some motive other than simply bringing a person to justice, and to have been suggested by malice (Vanderbilt v. Mathis, 5 Duer. 304).

The fact of the acquittal and discharge of the person accused, or that the proceedings were dismissed, as in this case, do not in themselves justify the conclusion that they were maliciously instituted.

In this case, the store of the defendant’s firm had been burglariously entered on the second of September in the night-time, and a large amount of merchandise had been stolen therefrom. Information of the burglary had been communicated to the police authorities, and a reward of five hundred dollars offered by defendant’s firm for the recovery of the stolen goods.

On the morning of September 9th, the defendant, upon first entering the store of his firm, and about ten o’ clock, found a police officer, Martinott, in the store, and was informed by Mm substantially that he had found the goods and had arrested the thieves, and wanted a member of the firm to go to the station house and make a complaint. It was suggested by his copartner, that defendant, as being more familiar with the goods and better able to identify them, should accompany Martinott to the police station.

Defendant accompanied Martinott to the station house, and there found the plaintiff with one Henry Deutch, who were claimed by Martinott to have been arrested by him for the burglary. At the station house defendant examined the goods and identified them as those stolen from the store of his firm.

The defendant then, at the request of the police authorities, accompanied • Martinott to the Tombs, with Deutch and plaintiff in the custody of the officers.'

Before Justice Hogan, at the Tombs, the defendant made an affidavit setting up the burglary, and charging its perpetration according to his belief upon Deutch and the plaintiff, and stating as Ms reasons for his belief and accusation, facts communicated to him by Martinott. Martinott also made an affidavit. The justice required that Deutch and plaintiff should give bail in $2,000 each. Plaintiff found the required bail and was discharged from custody, having been detained at the Tombs several hours. The proceedings were afterwards dismissed. If this was all, it might have been well argued before the learned chief justice before whom the trial was had, that the defendant had reasonable ground for Ms action before Justice Hogan.

But the evidence shows that before defendant came to Ms store on the morning in question, Deutch and the plaintiff had themselves together been: there, and had seen Schneider the partner of the defendant, and had communicated to him the fact that the goods which proved to be those stolen, were in the possession of Deutch himself, he having made an advance thereon, in ignorance of their being stolen, to one F. C. Jenks. That Dentch and plaintiff claimed of Schneider the reward offered for the stolen goods, and that Schneider had sent the parties to the police station for action in the'premises. It does not appear that defendant knew, or had any information of the fact that Dentch and plaintiff had been at his store, or claimed the reward, until after he had made the affidavit before the police justice at the tombs.

Yet the facts that these parties had. been at the defendant’s store and had seen the defendant’s partner, and had themselves stated to him that the goods were in the possession of Dentch, and the circumstances under which he had obtained possession, and that his partner was present when defendant arrived, and was there in conversation with Martinott, are not to be overlooked, and may suggest that the defendant, before going with the officer to the police station and entering so abruptly on the business, should have inquired further of his partner as to what communications had before been made to him by Martinott, and what had occurred on the subject. It was for the jury to determine, I think, whether the defendant had sufficiently examined into the matter before making the affidavit before the magistrate.

Reference is made to this branch of the subject, in view of the defendant’s motion at the close of the case, that the plaintiff’s complaint should be dismissed, upon the ground that there was no want of probable cause or malice shown, which motion was denied by the learned chief justice.

It is true that whether or not there was probable cause for the arrest, is a question for the court, and upon which it should express an opinion.

In Davis v. Russell (2 M. & P. 604; 5 Bing. 354), Best Ch. J., says: “ Probable cause is no doubt a question of law, and within the province of the judge to decide, but the jury must not only find the facts which are supposed to .constitute probable cause, but they are also warranted in forming their conclusion from these facts, and it is frequently difficult te draw the line between matter of law and matter of fact.”

If circumstánces of suspicion existed which might have been readily removed by proper inquiry, and if no inquiry at all, or insufficient inquiry was made, there is evidence for the consideration of the jury, in such omission of a want of probable cause, and we think, therefore, that it was not error to submit the question to the jury under the instructions of the court.

But it is objected by the defendant that there was no evidence that the defendant had instituted the prosecution. By this I presume is meant that at the time the defendant intervened, the ' plaintiff had already been charged with the burglary by Martinott, and was in custody of the police officers.

This is substantially true; but no legal prosecution was instituted until after the parties had proceeded to the Tombs, and appeared before Justice' Hogan, and in order that the parties charged might be legally held to answer the charge of burglary, the defendant made the affidavit.

Before taking that step he had personally done nothing to justify this action, and his responsibility commenced only at the point at which he affirmatively acted in continuing the proceeding already partially begun (Weston v. Beeman, 27 Law Journal Exch. 57).

There were exceptions taken by the defendant on the trial, both to the admission and exclusion of evidence which it is important to notice. The plaintiff, in his evidence, was allowed to testify, under the defendant’s objection, to statements which he made to Martinott on his way to the station house. The defendant was not present, and it is not established that Martinott, before defendant had made his affidavit before the justice, had communicated these matters to him.

The admission of this evidence, I think, was erroneous. There is nothing in this case which shows any such relation "between Martinott and defendant as would make defendant chargeable with any knowledge Martinott actually had on the subject.

The defendant was examined as a witness in his own behalf, and this question was put to him by his counsel:

“Did you make this affidavit in good faith, believing everything you stated in it was true ? ”

The question, on plaintiffs objection, was excluded, and defendant excepted. In the exclusion of this evidence I think there was error.

As it was incumbent on the plaintiff, in order to a recovery, that he should prove both the want of probable cause and malice, the defendant was at liberty to disprove these conditions. He was at liberty to prove that he acted in good faith, and with an honest intention, and upon reasonable grounds of suspicion.

What importance the jury might attach to evidence coming directly from the defendant’s lips, as to the goodness of his motives, and the reasonableness of his grounds for action, I cannot tell, but within the adjudged cases, questions of a kindred character and import have been allowed (McKown v. Hunter, 30 N. Y. 628 ; Forbes v. Waller, 25 N. Y. 430, 439). In view of these exceptions, which were well taken, it is needless to examine the other grounds of objection.

The judgment should be rever'sed, and a new trial ordered, costs to the appellant to abide the event.

Freedman and Curtis, JJ., concurred.


author: By the Court.—Sedgwick, J.

text:
    JOHN M. HUGHES, by his Guardian, Plaintiff, v. THE NEW YORK AND NEW HAVEN RAILROAD COMPANY, Defendant.
    When upon a freight train in motion a man appears wearing a brakeman’s
    , cap and jacket, and assuming to act upon said train with authority, and is called by those who see him a brakeman, it may be presumed that he was in the employ of the railroad company as a brakeman.

    The term brakeman is a common one, with a well-known meaning, and is used in our statutes without an accompanying definition. So that, without specific testimony, the duties of a brakeman are well defined.
    His duty, as such, to preserve and protect the company’s property, and prevent any unlawful trespass upon it, flows from his employment as a ser- • Vant in the care of property.
    It may be from this evidence that this person as a brakeman was in charge of a part of the train and bound to protect it from trespassers, and that his employer had imposed upon him the duty to remove such from tho train, and on this point the evidence was sufficient to take the case to the jury.
    In the case at bar, the plaintiff, a boy of thirteen years, and three other boys, were trespassers upon a freight train of defendant, moving at a rapid rate from New York towards the Harlem River, and were ordered to get off the car by the defendant’s brakeman. The plaintiff begged to stay, but finally jumped or fell from the train, influenced by the threats of the brakeman that unless he got off the train he would kick him off, and by his leaving or falling from the train under these threats he was injured.

      Held, That the acts of the brakeman in the premises, were not so done in the performance of a duty to remove trespassers ; that they constituted acts for which the defendant, his master, was liable.
    The brakeman was not engaged in the performance of his duty in attempting to remove the plaintiff from the cars while they were in motion. His threats and his acts were alike unjustifiable in that view.
    An authority to eject a trespasser in a proper exigency will not be presumed as an authority to eject the boy while the train was in motion, and therefore the brakeman was not acting in the performance of a duty he owed to his master, but was engaged in an undertaking for which he was solely and personally responsible and for which the defendant was not liable.

      Before Barbour. Ch. J., Freedman and Sedgwick, JJ.

      Decided June 28, 1873.
    Exceptions directed to he heard in the first instance .at the General Term. The facts in the case and points .reviewed appear fully in the opinion of the court.

      Ethan Allen, attorney for plaintiff.

      Thomas S. Moore, of counsel.

      William E. Barnett, attorney for defendant.

      Calvin G. Child, of counsel.
   By the Court.—Sedgwick, J.

Thelearned judge on the trial dismissed the complaint under exception, and directed the exceptions of the case to "be heard in the first instance at General Term.

The witnesses for plaintiff testified in effect to the following facts: The plaintiff was a boy thirteen years old. He wrongfully went upon the platform of a car in a freight train of the defendants. At that time there was no servant of the defendant there. The train started and was in full motion when a man called by the witnesses a brakeman, having a brakeman’s cap and jacket, appeared on the top of a car and ordered' the plaintiff to get off the train, but the plaintiff did not. The brakeman came down to the platform and again told the plaintiff to get off or he said he would kick him off. About this time the plaintiff went from the platform and was hanging by his hands from an iron bar fixed in the side of the car. The plaintiff cried and told the brakeman he was too small to get off, for God’s sake to let him stay on until they got to the next station. The brakeman again told him to get off or he would kick him off. The plaintiff’s feet w.ere then touching the. wheels of the car still in motion, and as they touched, the wheels threw them about. The brakeman lifted his foot to kick the plaintiff. The plaintiff jumped, and as he fell, one of his legs went under the wheel, which crushed it. A necessary amputation of the leg followed.

The first point that attracts attention is whether the plaintiff had given enough testimony as to any employment by the defendant of the man called a brakeman, of a kind that would have justified the jury in finding that it was within the scope of the brakeman’s duty to remove, in a proper manner, persons wrongfully on the platform.

I think there can be no doubt that when the witnesses say the man was a brakeman and had a brakeman’s cap and jacket, they give some proof that the defendant employed him as such on that train. The term brakeman is in common use, with a well-known meaning, and is used in our statutes without an accompanying definition, so that without specific testimony on the point, we can say what are the duties of a brakeman.

The train was owned by the defendant and was under their control. By law, their duty to the public was to provide it with all necessary agencies, among them engineer, conductor, and brakeman, for its management. The presumption is that there were such on this train, acting as the defendant’s agents and servants. The man moving around the cars with a brakeman’s cap on as described, was so doing in the presence of these agents and servants without' interference from them, and assuming in their presence to use some authority in the train. There was in this way, from the inherent character of the transaction, some evidence as against the defendant, that he was employed by the defendant to do some duty that had for one object the care of the property, cars, and their contents, if any, in the train.

If we look on him as a hrakeman only, whose specific duty was to stand upon a platform and move the brakes upon order, that will put him in charge of his master’s property so far as to call on him to interfere tó prevent anything in his presence likely to cause damage, or, indeed, any unlawful trespass upon it; to make it his duty to preserve and protect the company’s property, it does not seem to be necessary to prove that such was ever stated to him to be his duty. That duty flows from his employment as a servant, who will be left as such in care of property. I think, therefore, that, as a brake- ■ man, the proof showed he was in charge of a part of the train, and bound to protect it from trespassers, and that his employer, the defendant, had imposed on him the duty to remove such from the train. Such a protection is necessary against injury to the car, or depredation upon property carried by the cars (Mali v. Lord, 36 N. Y. 385; Church v. Landers, 10 Wend. 79; Norris v. Kohler, 41 N. Y. 42 ; McIntyre v. N. Y. Central R. R. Co., 43 Barb. 532, and 37 N. Y. 287). On this point I think there was enough testimony to take the case to the jury.

The next point is, whether the testimony tended to show that the acts done by the brakeman towards the plaintiff were so done in the performance of a duty to remove trespassers; that they were acts for which the defendant, as his master, was liable.

Cosgrove v. Ogden (49 N. Y. 258), gives the last statement the rule on this subject. If a master employs a servant to do a specified thing, and at the same time orders him to do it in a particular manner, that there may be no injury to third parties, and the servant proceeds to do the thing, but disregarding his orders as to the manner, does it in such a way that, by his negligence, injury is caused, the master is liable. Should the servant, intentionally, for some purpose of his'own, while he was doing the thing, cause an injury, the master would not be responsible, because it would not be done in Ms business, but would be a departure therefrom by the servant to effect a purpose of his own.

In this-case, did the brakeman, to accomplish a purpose of his own, abandon or leave on one side the duty he owed to his master, when he kicked at the boy ? or, again, was the brakeman in the performance of any duty that existed at the time to attempt to remove the plaintiff from the car ?

In Jackson v. 2d Av. R. R. Co. (47 N. Y. 377), a passenger having refused to pay the fare, the conductor rightfully proceeded to eject him from the car ; but in the course of this he used a force he had no right to exert, in striking him a blow in the face. The Court of Appeals considered that it was a question for the jury, whether the blow was given wilfully and in malice, or because the conductor mistakenly deemed the blow necessary to effect the purpose which the performance of his duty called on him to accomplish. We have to notice here that the circumstances called on the conductor to perform a justifiable act within the scope of his authority, and the blow was a part of the performance as matter of fact.

But in the present case the cars were in motion. It was unlawful to eject any trespasser so long as the train was, as was the fact in this case, moving at a rate which rendered the ejection dangerous to life and limb (Isaacs v. 3d Av. R. R., 47 N. Y. 137; Sanford v. The 8th Av. R. R. Co., 33 N. Y 344). Therefore, although the facts create a presumption that the defendant had authorized the brakeman to remove intruders, tMs authority is not presumed to cover a case where it would be unlawful to remove a trespasser. This I understand to be, in fact, the case of Isaacs v. 3d Av. R. R. Co. (Supra). The opinion in that case does not deny that the conductor, by reason of his general powers, is presumed to have authority from the company to eject a passenger in a proper contingency, hnt that such authority is not presumed to extend to a case in which it would be unlawful for, the company to direct expressly the conductor to eject a passenger. The first reason given in the case for the decision is that the car was in motion, and for no cause could the plaintiff have been thrust out into the street against her will while the car was in motion; that the law forbade it; the defendant could not have lawfully done it, and, therefore, no authority could be implied in the conductor to do it.

In the present case we have a like reason for saying, that the presumption is that the authority to eject a trespasser in a proper exigency, will not be presumed to have been given to turn the plaintiff out of the car while it was in motion. The brakeman, therefore, was not in the performance of a duty to the master, but was engaged in an undertaking for which he was solely responsible.

Again, in Isaacs v. 3d Av. R. R. Co., the court said the act-was wanton, reckless, and committed with great force, and was a wilful trespass, and not a natural or necessary consequence of anything which the defendant had committed to be done for it to the conductor. As in the present case, all the force used or threatened to be used by the brakeman was wilful, violent, reckless, and constituted a trespass of the same character upon the plaintiff; and.was not, as in Sanford v. 8th Av. R. R. Co., but a part of an act which otherwise was lawful ; we must, under Isaacs v. 3d Av. R R. Co. and Cosgrove v. Ogden, consider that it was a personal tort on the part of the brakeman, for which the defendant was not liable. Therefore the complaint was properly dismissed.

Judgment should be ordered for defendant, with costs.

Baeboub, Ch. J., and Freedman", J., concurred.


text:
    ANDREW J. PERRY, Plaintiff, v. ELISHA W. CHESTER and CHARLES T. GILBERT, Defendants.
    Before Sedgwick and Van Vorst, JJ.

      Decided June 28, 1873.
    On the 30th day of July, 1862, one Samuel C. Reed recovered a judgment against one Philip Nussbaum, for §1,545.10. Afterwards Reed commenced an action to recover the amount of said judgment from Nussbaum and one Allerton. In this action, Reed was unsuccessful, and Nussbaum recovered a judgment for his costs of §207.75, January 17, 1865. Reed appealed to the General Term, and the judgment was affirmed; Reed appealed to the Court of Appeals, and the judgment of the General Term was affirmed. May 30th, 1871. The costs of the appeal to the General Term was §77.81, and to the Court of Appeals, §202.53; the total amount of the three judgments being $624.48. On the appeal to the Court of Appeals in the last-named action, the defendants in this action became the sureties in the undertaking on appeal, for Reed.
    On Febuaxy 19th 1866, Reed assigned his judgment in the first action against Nussbaum for §1,545.10, to the defendant Chester. On January 10th, 1865, Nussbaum assigned to this plaintiff all his right, title, and interest in or to any costs that might be recovered by Nussbaum, and on June 27, 1871, he assigned to plaintiff all his right and interest in or to the undertaking, given by the defendants on the appeal. The plaintiff had been the attorney, with one Maclay, for Nussbaum in the action, and had an assignment from Maclay. The plaintiff brings this suit on the undertaking to recover of the defendants their several judgments for costs.
    The defendant Chester seeks to set-off his judgment against Nussbaum, that was assigned to him by Reéd against his, Chester’s, liability on the undertaking.
    The plaintiff claims that he had an attorney’s lien for these costs, and the former judgment was not a valid set-off to the same.

      Meld, That the judgment was a valid set-off, and the defendants are entitled to the same also. That the plaintiff became the owner of the judgment in favor of Nussbaum, and of the bond, by the assignments of January 10, 1865, and June 27, 1871, and cannot be considered as having a claim or lien as attorney upon the same that is not subject to this set-off. It cannot be held that a party has a lien upon what is his own.
   By the Court.—Sedgwick, J.

On Febuary 19th, 1866, the defendant Chester, "by assignment of Reed, he-came the owner of a judgment for $1,545, in favor of Reed, against Eussbaum. After that jugment had been obtained, Reed brought another action against Eussbaum. Eussbaum appeared by a firm of attorneys, of whom the plaintiff here was one. Before judgment was entered in the second action of Reed against Eussbaum, the latter assigned to the present plaintiff all his interest in or right to any costs in the action or which might accrue or belong to him by reason of any judgment in the action, and to all costs that might thereafter be recovered in his name.

We observe that as Eussbaum was defendant, interposing no counter-claim, any judgment he might have would be wholly for costs.

In such action Reed’s complaint against Eussbaum was dismissed, and Eussbaum nominally had judgment for the costs. From this judgment, appeals were taken to the General Term, and to the Court of Appeals. The judgment was affirmed on both appeals, and in each, Eussbaum nominally had judgment for his costs of appeal. The defendants in the present action were the sureties in the undertaking given on behalf of Reed, in each of the appeals. The judgment of the Court of Appeals was made the judgment of the court below, on May 30th, 1871. On the 3d of July, 1871, the partner of the present plaintiff, they two composing the law firm that appeared as attorneys for Eussbaum, assigned his interest in the costs and judgments nominally obtained by Eussbaum, and Eussbaum also assigned all his interests and rights under the undertaking to the plaintiff.

The plaintiff brings this action against the defendants on their liability upon the undertaking entered by them to pay the judgment of the Court of Appeals, in case of .affirmance, etc.

The defence made to that action is that the defendant Chester has a right to set off the judgment against Eaussbaum owned by him against his (Chester’s) liability on the undertaking. It is not a question made by the plaintiff here, as to whether, if the offset be valid in favor of Chester, it also extinguishes any liability of defendant Gilbert on the undertaking.

On the trial of the action, the court directed a verdict for the defendants, and stayed judgment thereon, until the exceptions were heard in the first instance at General Term.

On the argument of this appeal, the appellant specifically rested his right to a setting aside of the verdict, on the position that the plaintiff, as one of the attorneys appearing for Bussbaum, the other of the attorneys having assigned his interest in the costs to the plaintiff, had an attorney’s lien for. the costs on the judgment obtained by Bussbaum nominally, and that claim or lien could not be offset, by a judgment obtained against Bussbaum.

The authorities are against the proposition. Nicoll v. Nicoll (16 Wend. 445), and the cases cited in the note to it, are decisive that in an action, a right to a set-off is absolute, given by statute, of which the party entitled to it cannot be deprived. Whether it may be otherwise upon a motion, when a court may exercise discretion in imposing terms, is not material here, as "here the off-set is claimed in an action.

But I do not see that at the time the sureties became liable on the undertaking, which is the point when Chester, as one of them, had a right to set off his judgment, the plaintiff had an attorney’s lien upon the judgment obtained by Bussbaum nominally.

In Ely v. Cooke (28 N. Y. 373), an attorney made with his client, a defendant in an action, before judgment was entered in it, an oral agreement that he, the attorney, should be entitled to all the costs the client might recover in the action. The client did recover a judgment for costs. The Court of Appeals held, that by virtue of the oral agreement, the attorney became the owner of the judgment for costs when it was obtained, and that the client was never the owner thereof. Likewise the-plaintiff here, through his agreement with Nussbaum, became the owner of the judgment had in Nussbaum’s name for costs. The same may be said of the plaintiff’s law partner, for although the assignment was taken in ¡ the name of one, it was for the benefit of both by operation of law. The plaintiff or his partner, one or both, being owner of the judgment for costs, could not have a lien upon what Avas their own.

We have no’w considered the only point that the plaintiff requested the court to examine and pass upon on the decision of this appeal. We think the exception based upon it, made on the trial; is not sound, and that the defendants should have judgment on the verdict, with costs.

Van Voest, J., concurred.


author: By the Court.—Freedman, J.

text:
    EDWARD COLEMAN, Plaintiff and Respondent, v. VAN BRUGH LIVINGSTON, Defendant and Appellant.
    Motion for a reargument of appeal on the ground that a case has been decided in the Court of Appeals since the decision of this case at General Term, which, if it had been known to this court, its judgment on the case would have been different.
    The former judgment and opinion of this court in this case at General Term, reported ante p. 32.
    On examination and consideration of the two cases, this court denies the motion for reargument, on the ground that the facts in the respective cases arc dissimilar, and the cases are not analogous.

      Held, in this case and also in Hayner v. Popular Life Insurance Co. (ante 211), That a decision of the Court of Appeals adverse to one of the General Term of this court, and announced about the same time, furnishes good grounds for a reargument of the latter at the General Term of this court.

      Before Freedman, Curtis, and Van Vorst, JJ.

      Decided June 28, 1873.
    Motion for a reargmnent.

      Charles H. Smith, for .the motion.

      John McKeon, opposed.
   By the Court.—Freedman, J.

On defendant’s appeal from the judgment and order denying motion for a new trial, the April General Term reversed the judgment and order appealed from, and ordered a new trial, on the ground that at the close of the trial defendant’s motion for a dismissal of the complaint upon the whole evidence should have been granted.

Plaintiff now moves for a reargument on the sole ground that since that decision the Court of Appeals, as he claims, has decided in the case of the J. Bussell Manufacturing Company r>. The New Haven Steamboat Company, that upon a state of facts very similar to that presented by the evidence in this case, the question] of negligence was for the jury, and that he believes that if this adjudication had been brought to the notice of the General Term of this court, the judgment would have been affirmed.

An examination of the two cases discloses, however, that the claim is not well founded. In the case at bar, which is an action to recover from the defendant, a warehouseman, for the loss of merchandise, the General Term rigidly adhered to the rule that the burden of proof rested upon the defendant to explain and account for the loss. But at the same time it was held that the testimony given on the part of the defence, which it is not necessary to give in detail here, not only, fully and satisfactorily explained the manner of the loss, but that it also clearly demonstrated that defendant did not in any wise contribute by any neglect or want of precaution on Ms part. It was held that this evidence, which was uncontradicted and unimpeached, was so convincing, that in the absence of all proof on plaintiff’s side from which negligence could be inferred, the jury was not at liberty to adopt any other theory, and that consequently the case should not have been submitted to the jury at all, against the objection and exception of the defendant.

In Russell v. the New Haven Steamboat Company, on the other hand, the evidence adduced by the defendant was neither convincing nor otherwise satisfactory. The fire had not been commuMcated to defendant’ s wharf from without, but had broken out on defendant’s own premises.

Plaintiff gave evidence of defendant’s negligence, and such evidence, though slight, was held sufficient to make it the duty of the defendant, although liable as warehouseman only, to explain the circumstances of the destruction of the property. Defendant failed to give such explanation, and omitted to produce any of the persons said to have been left in charge, or to show that any efforts were made by these persons to save the property. From these suspicious circumstances, the jury in that case might well have drawn inferences unfavorable to the defendant, and it was for this reason that the withdrawal of the case from the consideration of the jury was held to have been erroneous.

The two cases are not analogous.

The motion for a reargument must be denied, with costs-

0trims and Van Voest, JJ., concurred.