author: Martin, J. :

text:
    The People of the State of New York, Respondent, v. Henry Brockett, Appellant.

      Conviction of assault in the third degree — statement of a witness made before the trial, when admissible in evidence — erroneous admission of evidence, whdn disregarded on appeal.

    Where, upon the trial of a prisoner indicted for assault in the second degree, the evidence might be sufficient to justify the jury in finding the intent necessary to constitute the crime of assault in the second degree, if the jury has a reasonable doubt as to the intent of the prisoner, but no doubt whatever as to the assault, the defendant is properly convicted of the crime of assault in the third degree.
    While, upon the trial of a criminal prosecution, the statement made by a witness before the trial may not be a serious contradiction of his testimony given thereat, yet if there is a slight variation between the statement and the testimony given by the witness, from which it may be argued that the witness at the time of the trial was less certain about th° matter testified to than he was at a time nearer the transaction, such statement is properly admissible in evidence.
    It is proper upon the trial of a criminal prosecution to show inconsistent statements of a witness made out of court, with a view to affecting his credibility.
    If no substantial right of a person upon trial for the crime of assault is prejudiced by the erroneous admission of testimony, the admission of such testimony, under the provisions of section 764 of the Code of Criminal Procedure, is merely a technical error, and will be disregarded upon appeal.
    Appeal by tbe defendant, Henry Brockett, from a judgment of tbe Court of Sessions held in and for the county of Herkimer, rendered on the 26th day of May, 1894, convicting him of assault in the third degree.

      George W. Smith, for the appellant,

      Irving B. Devendorf, for the respondent.
   Martin, J. :

The defendant was indicted for assault in the second degree. In the indictment it was charged, and the evidence of the prosecution tended to show, that the defendant was guilty of an assault with an intent to commit a rape. Whether an assault was made, if so its character, and the intent of the defendant in making it, were the questions at issue and litigated on the trial. The court, in effect, charged that if the jury found that the defendant performed the acts testified to by the complainant with' the intent of perpetrating an act of sexual intercourse with her without her consent and against her utmost resistance, it would constitute assault in the second degree, but that if they were performed without that intent it would amount only to assault‘in the third degree. The jury found the defendant guilty of assault in the third degree.

A careful and somewhat critical examination of the evidence renders it clear, we think, that it was sufficient to justify the verdict. The logic of the contention that the judgment should be reversed because the jury failed to find the intent necessary to constitute assault in the second degree, is hot quite apparent. The evidence was perhaps sufficient to have justified the jury in finding the intent necessary to constitute the greater offense. Yet it may have had a reasonable doubt as to such intent while it had none whatever as to the assault. Under these circumstances the defendant was properly convicted of the lesser crime (Penal Code, § 35), and it follows that the judgment should be affirmed unless there is some valid exception in the case requiring a reversal.

The only exception to which the defendant has called our attention is to the admission of evidence as to the contradictory statements of the witness Jesse Colliding. This witness had testified that on the night of the assault he met a rig ” beyond the woods; that the horse was light colored ; hitched to a top buggy, and that there were two persons in the wagon. It was claimed by the defendant that the persons who were mentioned by the witness were the complainant and himself. The witness also testified: “Met them somewhere between the sluiceway and the hill; can’t say just where; we had passed over the bridge; lady and gentleman in the carriage; I saw the lady turn and look back.” On the cross-examination of this witness he testified : “ I did not state to Melzer Buck that I met a gray horse and carriage with two persons in, between the bridge and the to¡3 of that stony hill.”

The People subsequently called Melzer Buck and asked him this question : “ Some time last winter, at Jesse Conkling’s house, did he say to you in the presence of Ed Perry, that he met this rig with a white horse and carriage and two persons in the carriage, between the sluice or bridge on the east side of the Beaver woods and the top of the stony hill ? ” This was objected to on the ground “ that no matter what would be the response to it, or, assuming that the response is to be what the question indicates, it doesn’t in any respect contradict the witness in any material part of his evidence; that it is wholly indefinite; that he might have said it is between the top of the stony hill and the bridge, because his testimony is so, only he locates it more particularly within that limit, there is no contradiction about it. The Court: I think I will allow the People. There is a slight variation in the statement, from which may be .argued that the witnesses at that time were less certain about the precise position than they are on the stand.” The question was allowed, to which the defendant excepted, and the witness answered : “ Pie did say so.” W e find in this ruling no error which would justify a reversal of the judgment. While it may be that the contradiction was not a serious one, yet, as stated by the court, it tended to show that at a time nearer the transaction than the trial, the witness had declared that he met the “rig” somewhere between the sluiceway and the top of the hill, while at the trial he testified that it was between the sluiceway and the hill. That it is proper to show inconsistent statements of a witness out of court to affect his credibility is too well established to require discussion. (Sloan v. The New York Central R. R. Co., 45 N. Y. 125.)

If, however, the evidence of these witnesses in no way contradicted that of the witness Conkling, it is difficult to see how the defendant was in any way injured by .the admission of the evidence. No substantial right was prejudiced thereby, and, hence, under the provisions of section 764 of the Code of Criminal Procedure, as it was merely a technical error, it should be disregarded.

These considerations lead ns to the conclusion that the judgment appealed from should be affirmed.

Merwin, J., concurred; Hardin, P. J., not voting.

Judgment of conviction of the Court of Sessions of Herkimer county affirmed, and after the judgment is entered in the judgment book a certified copy of the entry shall be forthwith remitted to the clerk of Herkimer county, with whom the original judgment roll is filed, in accordance with the provisions of section 547 of the Code of Criminal Procedure.


source: Caselaw Access Project

author: Merwin, J.:

license: Public Domain

text:
    John B. Kincaid, Respondent, v. Charlotte Kincaid, Appellant, Impleaded with Others.

      Appeal on the judgment roll alone — ratification of the purchase of real estate by an infant — an agreement void under the Statute of Frauds — part performance thereof —payment by one and conveyance to.another insufficient to create a trust — restituí tion enforced.

    Where an appeal is heard upon a judgment roll alone, the question to be determined by the appellate court is whether in any view of the facts found the • judgment rendered was properly ordered.
    Where an infant purchases real estate, and on becoming of age receives and uses it, the defense of infancy will not prevail to release her from the burdens, subject to which the real estate was taken
    Ordinarily a party who refuses to go on with an agreement void by the Statute of Frauds, after having derived a benefit by a part performance, must pay for what he has received, the other party not being in default.
    The mere fact that the purchase price of real estate was paid by one person and the conveyance thereof made to another, does not raise any use or trust in favor of the former, but the title vests in the latter. This, however, does not prevent the operation of any agreement that was good in law or equity in part performance of which the deed was given, and the power of a court of equity to compel the specific performance of a verbal agreement in cases of part performance is not thereby abridged.
    Where one of the parties to a contract void by the Statute of Frauds, avails himself of its invalidity, and unconscientiously appropriates what he has acquired under it, equity will compel restitution, and it constitutes no objection to the claim that the opposite party may secure the same practical benefit, through the process of restitution, which would have resulted from the observance of the void agreement. The part performance must be such that the party will be put into a situation which is a fraud upon him unless the agreement is fully performed.
    Appeal by tbe defendant, Charlotte Kincaid, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Jefferson on the 18th day of August, 1894, upon the decision of the court rendered after a trial at the Jefferson Special Term adjudging that the defendant execute and deliver to the plaintiff a life lease of certain real estate, and also from an interlocutory judgment entered in said clerk’s office.

      Bogers & Atwell, for the appellant.

      Bradley Winslow, for the respondent.
   Merwin, J.:

The appeal in this case is heard on the judgment roll alone, so that the question is whether, in any view of the facts found, the judgment for the plaintiff was properly ordered. (Agricultural Ins. Co. v. Barnard, 96 N. Y. 525.) The facts, as found by the Special Term, are substantially as follows:

The appellant is the daughter of the plaintiff, and was born on the 4th of June, 1871. On the 18th of August, 1890, the plaintiff agreed with one Taylor for the purchase of a farm of about 150 acres and some personal property, the consideration to be paid for the real estate being the sum of $6,000, and for the personal property $500. Both these sums the plaintiff paid to Taylor from his own funds, and Taylor, at plaintiff’s request, conveyed the farm by á warranty deed to the appellant. The deed, when executed, was delivered to one Thompson, by whom it was prepared, who, at the request of the plaintiff, procured the same to be properly recorded on the 25th of August, 1890, and since it was recorded it has been in the possession of the plaintiff. Contemporary with the execution and delivery of the deed by Taylor, the plaintiff and the appellant “ made an agreement one with the other whereby, in consideration of the purchase by the plaintiff of said farm and its conveyance to her, she would execute and deliver to the plaintiff a life lease of the same.” This agreement was not in writing/ After the execution of the deed the plaintiff managed the farm up to December 1, 1892, and had a portion of the avails. At that date the appellant assumed control of the farm, and has since then deprived the plaintiff of all control over it, and has excluded him from the enjoyment of the rents and profits and of all interest therein, and, before the commencement' of this suit, refused upon proper demand to execute to the plaintiff a life lease. No fraud or contrivance was practiced by the appellant upon the plaintiff in procuring the deed, and there was no mistake or misapprehension of any existing fact.

As conclusions of law it was found by the Special Term that the plaintiff was entitled to the possession of the farm, and to the use and occupation thereof for and during the term of his natural life, and that he was entitled to a judgment that the appellant execute and deliver to him a conveyance of a life lease thereof, the form to be settled by the trial justice if not agreed upon by the parties.

The appellant at the time of the making of the verbal agreement was an infant, being then about nineteen years old. This is claimed to be a'defense to the action. She became of age on June 4, 1892. On December 1, 1892, she took possession of the property, claiming in effect to own and control it under the deed to her. She thereby accepted the deed and retained the benefits of her contract. Taking its benefits, she should be subject to its burdens. In Henry v. Root (33 N. Y. 526) it was held that when an infant has purchased real estate and has taken and continued in possession after becoming of full age, and has exercised acts of ownership' over it, he will be deemed to have ratified the contract of purchase; that he cannot retain the benefits of his contract, and thus affirm it, after becoming of age, and yet plead infancy to avoid the payment of the purchase money. (See, also, 1 Pars. on Cont. [8th ed.] 326, note y; Hubbard v. Cummings, 1 Maine, 11; 10 Am. & Eng. Ency. of Law, 653.)

The present is not a case where an infant has undertaken to dispose of property of lier own, and on becoming of age disaffirms the contract and reclaims the property. It is rather a case where an infant bargains for property, and on becoming of age receives and uses it but repudiates any obligation to pay for it. The defense of infancy should not prevail.

The appellant further claims that as the agreement was verbal she cannot be compelled to perform it upon her part, although she received and retains the full consideration coming to her. At the time of tlie execution and delivery of the deed by Taylor, the appellant, in substance, agreed that if the plaintiff would purchase the property and have it conveyed to her she would execute and deliver to him a life lease. The plaintiff, on his part, fully performed. He cannot recover back from Taylor the money he paid him. Ordinarily a party who refuses to go on with an agreement, void by the Statute of Frauds, after having derived a benefit by a part performance, must pay for what he has received, the other party not being in default. ( Whitaker v. Burrows, 71 Hun, 481.) That is supposed to restore the parties to their original condition. Here the parties cannot in that way be restored to their original condition, inasmuch as Taylor is not obliged to receive back the property and return the money. Equitably, the appellant has no right to keep the property unless she performs her agreement.

The fact simply that the consideration to Taylor was paid by the plaintiff and the conveyance was made to the appellant, would not raise a use or trust in favor of plaintiff, but the title would vest in the appellant. (4 R. S. [8th ed.] 2437, § 51.) This, however, would not prevent the operation of any agreement that was good in law or equity, in part performance of which the deed was given. The power of a court of equity to compel specific performance of verbal agreements in cases of part performance was not intended to be abridged. (4 R. S. [Sth ed.] 2590, § 10.) There is no doubt the title vested in the appellant, and that was the intention of the parties. The question here is whether the appellant should do as she agreed to do in case the title did vest in her.

In Smith v. Smith (125 N. Y. 224) it was held that a parol agreement to give a lien upon laird for money to be expended in improving it, followed by an advancement and actual expenditure of the money in the manner contemplated, is so far performed that equity will enforce it and the Statute of Frauds is no defense. In Murphy v. Whitney (140 N. Y. 540) there was a verbal' agreement under which the plaintiff claimed a remainder in certain real estate, and in pursuance of which the defendant, JVIary Murphy, had become vested with the title, but was undertaking to dispose of it-in violation of the agreement. In answer to the defense of the Statute of Frauds it was said : “ But here there was part performance sufficient to take the agreement out of the Statute of Frauds. The agreement alleged in. the complaint had been substantially kept by all the parties thereto until the land became vested in the defendant Mary, and she had thus been largely benefited by the agreement, and had received all the fruits thereof which were to come to her. She could not, therefore, urge against this agreement that it was void under the Statute of Frauds, because not in writing.” In Ryan v. Dox 34 N. Y. 307, 319) it is said: Where one of the parties to a contract, void by the Statute of Frauds, avails himself of its invalidity, but unconscientiously appropriates what he has acquired under it, equity will compel restitution ; and it constitutes no objection to the claim that the opposite party may happen to secure the same practical benefit, through the process of restitution, which would have resulted from the observance of the void agreement.”

The part performance must be such that the party will be put into a situation which is a fraud upon him unless the agreement is fully performed. (Wheeler v. Reynolds, 66 N. Y. 231; 1 Story’s Eq. Juris. § 761; Farwell v. Johnston, 34 Mich. 342.)

As the plaintiff here cannot recover back from Taylor the money he paid him, and as he has no action at law'against the appellant 'for damages, he will be placed in a situation that will be a fraud upon him unless there be specific performance. The Special Term, therefore, did not err in awarding specific performance. The fact that at the time of the original transaction there was no fraud or mistake does not help the appellant. The question is, whether her failure subsequently to perform will operate as a fraud upon the plaintiff.

The appellant claims that the form, of the life lease as stated in the judgment is not correct. There is, however, no exception that raises the question. The agreement was to give a life lease, without stating for whose life. It is, however, from the facts as found clearly inferable that the intent of the parties was that the lease should be for the life of the plaintiff.

Some facts are found indicating that at the time of the arrangement between plaintiff and the appellant, there was litigation between the plaintiff and his wife, and that a few weeks after the delivery of the deed there was trouble between the plaintiff and the appellant. No facts, however, upon these subjects are found that operate as a defense. They, perhaps, had a bearing on the question as to how the discretion of the court, said to exist in such cases (Margraf v. Muir, 57 N. Y. 158), should be exercised. No good reason is apparent for interfering with the discretion as exercised by the Special Term.

The judgments should be affirmed.

Hardin, P. J., and Martin, J., concurred.

Judgments affirmed, with costs.


text:
    Michael E. Tierney, Respondent, v. The Syracuse, Binghamton and New York Railroad Company, Appellant.

      Employees — not neeessct/l'ily fellow-servants— liability of a master for his servant’s acts — ordinarily a question for the jury.

    The fact that an employee of a railroad company, while working on a train running over the lines of another railroad company, is subject to the orders of the latter company, does not make him a fellow-servant of the employees of such latter company so as to preclude him from recovering damages from such latter railroad company for the negligent acts of its employees whereby he sustains injuries.
    The test of a master’s responsibility for the act of his servant is not whether it was done in accordance with the instructions of the master to the servant, but whether it was done in the prosecution of the master’s business, and where an action is brought against a master to recover damages for injuries sustained by reason of the wongful act of the servant, the inquiry is simply whether the wrongful act was in the performance of the master’s work or outside of it.
    The master may be liable although the servant was reckless and foolhardy, and he may be liable for acts of injury or insult if they occur in the course of the employment, and ordinarily the question is one for the jury to decide. ,
    Appeal by tlie defendant, The Syracuse, Binghamton and New York Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 16th day of .October, 1893, upon the verdict of a jury for $10,000, rendered after a trial at the Onondaga Circuit, and also from an order entered in said clerk’s office on the 16th day of October, 1893, denying the defendant’s motion for a new trial made upon the minutes.

      Louis Marshall, for the appellant.

      William, LLemiedy and J. c& T. E. Ooiartney, for the respondent.
   Merwin, J.:

This action is brought by the plaintiff to recover damages for personal injuries sustained by him on the 3d day of November, 1890, at a collision between a passenger train of the defendant and a freight train of the Delaware, Lackawanna and Western Railroad Company, at a small station on defendant’s road called Rock Cut, which is about three miles southerly of the city of Syracuse. At that time the defendant owned, controlled and operated a line of railroad extending from the city of Syracuse to the city of Binghamton. The Delaware and Lackawanna Company owned or controlled a line of railroad running southerly from Binghamton, and also a line extending northerly from Syracuse to Oswego. There then existed a contract between the two companies, which was made the 8th of January, 1858, by which the defendant agreed “to allow the use of its road track to the party of the second part (the Delaware and Lackawanna Company) for the purpose of transporting coal thereon, which road track shall be kept in good running order by the party of the first part (the defendant).” The Delaware and Lackawanna Company agreed to pay the defendant a certain sum per mile for every ton of coal transported by it (the Delaware and Lackawanna Company) over the defendant’s road, and agreed that it would transport at least a certain amount each year over the road, and would make the defendant’s road its principal avenue for the transportation of coal destined for the lakes, Canada and points in Northern and Western New York. Eor returning empty coal cars over defendant’s road no charge was to be made by defendant, and the Delaware and Lackawanna Company was allowed to carry on the returning cars certain kinds of freight and pay a certain sum per ton per mile. It was also agreed “ that the time tables of the various trains over the Syracuse, Binghamton and New York railroad shall be arranged by the superintendent thereof and so regulated as to afford the party of the second part all needed facilities for running such number of coal trains daily as the business under the contract shall require; passenger trains in all eases to take precedence ; coal and freight trains going north to take precedence of those going south ; conductors of coal trains shall be under the control and subject to the orders of the superintendent of the Syracuse, Binghamton and New York railroad; the rate of speed of coal trains shall be restricted to ten (10) miles per hour ; all turnouts, side tracks and switches on the line of the road necessary for the convenient transit of the trains shall be furnished by the party of the first part, and the party of the second part hereby agrees to transport over the road coal in equal monthly quantities, as nearly as the season of the year and the natural course of the trade will permit.” There were other provisions in the contract that need not be referred to here.

The plaintiff, on the 3d day of November, 1890, was in the employ of the Delaware and Lackawanna Company as a brakeman, and had been for a number of years. lie was one of the crew of a coal freight train of that company that was made up at Great Bend in the State of Pennsylvania. It left that place on the morning of that day and proceeded on a railroad of the Delaware and Lacka■wanna Company to Binghamton, where it took the road of the defendant and proceeded thereon, under the contract referred to, to Syracuse. There the coal was left, the engine turned round and started back with a train of empty cars and the same crew. They left Syracuse about five o’clock in the afternoon, reaching Rock Cut about half-past five, and there, by the direction of the train dispatcher of the defendant at Syracuse, they took a side track and waited for the passage of the north-bound passenger train of the defendant. This came along a few minutes before six o’clock, and by reason of the negligent manipulation of the southerly switch at that point by one Clark, an employee of the defendant at that station, it was partially thrown upon the side track on which the plaintiff’s train was, and the engine on which he was then engaged was struck and the plaintiff injured.

On the part of the defendant it is claimed, (1) that the plaintiff and Clark were fellow-servants, and the defendant, therefore, is not liable, and (2) that Clark, in manipulating at that time the switch, was acting beyond the scope of his employment, and, therefore, the defendant is not liable. The trial court held as matter of law that plaintiff was not a fellow-servant of Clark or a co-employee, and submitted to the jury the question whether Clark was then acting witliin. the scope of his employment. The jury, in effect, found that he was.

1. The first proposition is based on the idea that at the time of the accident both men were under the exclusive control of the defendant. In the contract it was provided that the conductors of coal trains should be under the control and subject to the orders of the superintendent of defendant. The coal trains were to be and were on the time tables of defendant. Still, under the contract, the business of each was entirely separate. The defendant did not run the coal trains or transport the coal. The men on those trains were not in defendant’s employ or in its business. It appears that the same person was general manager of both roads, and one person was superintendent of both on a division extending from Oswego to Binghamton. Still this did not consolidate the corporations, or make the business of each the same. The superintendent testified that he sometimes discharged delinquent employees on coal trains, and put others in their places, but that this was only done when the men had violated the rules of the road, and the occasion had arisen while the train was on his division. This, as the witness_ said, was “ for the protection of the public and the protection of our own property,, and the protection of everybody on the road.” "The general manager told him, “ Make the men on the Delaware and Lackawanna obey the rules or discharge tliém.”

In Sullivan v. Tioga R. R. Co. (44 Hun, 304) the plaintiff’s intestate was an employee of the Erie railroad, and at work in its yard at Elmira. He was injured by reason of the negligence of the employees of the Tioga Railroad Company, in charge of a locomotive of that company in the yard. It. was held by this court that the plaintiff’s intestate and the defendant’s employees on the locomotive were not co-servants, although the Erie road owned and controlled the yard, and when the defendant’s locomotives were in it the servants employed on them were under the exclusive control of the officers of the Erie road, who directed how locomotives should be run, at what speed, what precautions should be used, and what signals given. The case was affirmed in the Court of Appeals (112 N. Y. 643), and it was said that the defendant audits employees used the yard of the Erie road under such regulations as were imposed as conditions of use, not of service, and so the intestate was in respect to his employment a stranger to the defendant. The case of Smith v. N. Y. & H. R. R. Co. (19 N. Y. 127) is inferentially in the same direction. The case of Zeigler v. Danbury & Norwalk R. R. Co. (52 Conn. 543) is very much in point. There the Danbury and Norwalk and the Shepaug railroads formed a continuous line. By an arrangement between the two companies a train owned and run by the Shepaug Company went over both roads to a certain point and back daily, the Danbury and Norwalk Company paying the Shepaug Company monthly an agreed price for the service upon its road. The train when on the road of the Danbury and Norwalk Company was under its general control, and governed by its rules, .and it had entire control of the hands upon it, including the right to discharge any of them for neglect, or any improper conduct while on the road, but the Shepaug Company was at liberty to use what engine and employ what hands it pleased. The plaintiff was a brakeman on this train, and was injured by a collision with a train of the Danbury and Norwalk Company on its own road, caused by the negligence of the conductor of that train. It was held that the plaintiff was not an employee of the Danbury and Norwalk Company, and that the conductor of the other train was, therefore, not his fellow-servant.

Numerous cases are cited by the learned counsel for the appellant, but they do not, w;e think, reach the present question. The power of defendant’s superintendent in certain cases to discharge men on the coal trains is specially dwelt upon, but that is to be construed with reference to the object to be attained under the contract. The coal trains were not the defendant’s trains, nor were the, men in its employ.

We think that upon this subject the trial court did not err.

2. The accident at Rock Cut was occasioned by the act of Clark in moving the switch so that the passenger train was thrown on the side track. Clark was a young man about seventeen years old, and had been at that place. a%mt a week. Tie was the only employee of the defendant stationed at that place. It was a telegraph station and Clark was the operator. The main line of the defendant has but one track, and at Rock Cut there is a side track on each side. The switch there that was operated on the occasion in question was what is called the “ Wharton safety switch.” There is a heavy ball on the lever which must be raised and held up in order to allow a train to pass on to the side track. When the ball was down on the ground the main track was unbroken. The switch could be locked down by means of a padlock. Clark seems to have received his instructions as to his duties from his predecessor at that place. He was told that it was his duty to flag the highway crossing and keep a train sheet, and telegraph to the main office the passage of trains; that in the morning a south-bound passenger train and a north-bound coal train met at that place and it was his duty to then operate the switch so that the coal train could enter on the side track and allow the passenger train to go by, and he understood that when other trains met at that place he did not have to turn the switch, but the men on the trains would do it themselves. A key to the switch was given him and he understood it was his duty to lock it nights, and that it might remain unlocked during the day. The hours of Clark at the station were from about seven in the morning to six in the afternoon. Ten or eleven regular trains passed each day during his, working hours. There was a pair of scales there that he operated. The place was a flag station where passengers got on and ofE. There was a small building or shanty there where the mail had been formerly received, but was not then, and one of the rooms was used as a telegraph office.

Upon the evening in question the switch was unlocked. The ball was down, and had Clark not touched it the train would have passed safely. Clark, when he saw the train from the south approaching, was in the office. He came out, picked up his lantern and signaled the train that the crossing was all light, and then, as he testifies : “ I swung my lantern and then I had an idea that the switch was wrong. These two trains leave here in the morning, the one from the north and the one from the south, and the train from the north comes down the main track. It is my business when I go down in the morning to let this train from the south in on the side track, and it was in such a flash that I got mixed up on the morning and evening. I thought I ought to let the express in on the side track. I let it in. I went up to the switch and raised the lever. The engine and about two cars and a half got in on the side track and I realized my mistake and dropped the lever. I tried to right the mistake. I threw the rear end of the Pullman on to the main track. The rest of tlie train was on the main track, and the part that was smashed was on the'side one.” He also says: “I had an idea that the train ought to go in on the siding, the same as the morning. * * * I ran as fast as I could from the crossing to the switch. I had a cattle guard and culvert to pass. I started with the impression that I had got to turn the switch and didn’t change that impression until I dropped the ball. I gave no other signal for the train to stop.”

The test of a master’s responsibility for the act of his servant is, not whether it was done in accordance with the instructions of the master to the servant, but whether the act was done in the prosecution of the master’s business. (Cosgrove v. Ogden, 49 N. Y. 255.) In Mott v. Consumers’ Ice Co. (73 N. Y. 543) the following propositions are laid down: “ For the acts of a servant, within the general scope of his employment, while engaged in his master’s business, and done with a view to the furtherance of that business and the master’s interests, the latter is responsible, whether the act be done negligently, wantonly or even willfully; the quality of the act does not excuse. But if the servant, without regard to his service, or to accomplish some purpose of his own, acts maliciously or wantonly, the master is not liable. Where, therefore, an action is brought against the master for the wrongful act of the servant, the inquiry is simply w'hether the wrongful act was in the course of the employment or outside of it.” The master may be liable though the servant is reckless and foolhardy. (Ochsenbein v. Shapley, 85 N. Y. 222.) So he may be, for acts of injury and insult, if they occur in the course of the employment. (Palmeri v. The Manhattan-Railway Co., 133 N. Y. 261.) Ordinarily the question is one for the jury to decide. (Mott v. Consumers’ Ice Co., supra, 550, and cases cited.)

Under the circumstances of the present case we are of the opinion that the question whether Clark was at the time of the accident acting within the scope or course of his employment was properly left to the jury. Clark was placed by the defendant in control of the switch as he was given a key to it. For some purposes he was authorized to manipulate it, and if he exceeded his instructions to the injury of a third party the defendant, who furnished him the means and opportunity to cause the injury, should bear the loss rather than an innocent party. Clark, according to his own eviclenee, thought he was furthering the interest of his employers. He supposed he was in the line of his duty. The court charged, at the request of defendant, that if Clark was acting maliciously or under the influence of temporary mental aberration the plaintiff could not recover. •

The defendant claims that the decision of this court in Burke v. This Defendant (69 Hun, 21) is in the way of plaintiff’s recovery. That case related to the same disaster and was an action brought by the administratrix of the engineer of the passenger train. The engineer was in the employ of defendant and so was a co-employee with Clark. The questions considered were whether, in several different aspects, there was negligence on the part of the corporation itself. The question whether the defendant was liable for the negligence of Clark was not considered, and the ruling there does not, therefore, affect this case.

It is further claimed by the defendant that the verdict is excessive. By the collision the plaintiff was rendered unconscious, and so remained for several days. He was taken to a hospital, and there remained till the twentieth of December following and then was taken to his home at Great Bend. He received severe cuts and bruises on his right leg and his back was bruised. It was, as he testifies, five or six months before his wounds healed over. He has been in pain ever since; could not walk for a year without crutches, and after that walked with a cane. He commenced to work some in February, 1892, and prior to the trial in October’, 1893, had worked about eight months. He was not able to work full time; didn’t average fifteen days a month. He says: “ When I was injured I got $1.90 a day as wages,- and had been for about nine years. I am not very able to work now because I am injured. I am crippled and my constitution can’t stand the work. To stand on my leg affects it, so I can’t stand on it, and stand steady on it. I can’t bend it. My back pains me steady all the while, has since I got hurt. I have never been free from pain there since I got hurt; it seems as though it is a kind of boring right through there ; steady pain on me all the while; it beats in the small of my back. * * * Since I got hurt I never had any appetite and don’t care if 1 never have anything: to eat; always had a good appetite before. I have to get up in the night, and can’t sleep, several times because of pain. * * * I am affected with pains so I can’t sleep ; have to get out of bed and walk the floor for to get rest; have to several times. Aside from pain I can’t sleep with pain. As to the feeling of my limbs and sensation of my back it feels as though there was pain there all the while; feels numb. Heat and cold does not make much change on my back, because-1 always keep it pretty warm. My leg is cold. No matter how warm the weather is the leg is always cold ; that is so ever since I got hurt. '' * * The changes in the atmosphere affect me in a way that when the change of the weather is I have more pain than I have at other times ; consequently can’t sleep or can’t rest or can’t work in fact when the weather is changeable. * * * The injuries that were of a serious character were the injuries to my leg and back. "When I first became conscious I don’t remember the condition of the leg, because they had it all tied up. I did not see it at that time. When I saw the leg it was all raw like a piece of beefsteak. It was all cut to pieces and torn to pieces; burned up. I'don’t think it was smooth all the way down; there were cuts or holes in it located from below the knee up to the small of the back, up on the- right side of the body all the way up; running from below the knee up to the calf of the leg. The injuries upon my back were not on the right side. They were in the middle of the back. It was a bruise in the small of the back. *. * * Before I received these injuries physically I was strong and healthy; never was sick to my knowledge. I could work all right, right along all the time doing a day’s work. I had no trouble with my limbs; no bruises of any other kind before this accident.”

There was medical evidence to the effect that the right leg was smaller than the left one, and was much cooler; that it was weaker than the other, and would become more so, and the power of the muscle to contract would largely disappear; that he could not fully use the limb on account of pain, and it would remain so; that he could not straighten the leg without pain, and this difficulty was likely to remain; that there was a tenderness at the place of the injury in the back that was likely to be permanent or worse; that when the spine is affected it is a serious matter, and a complete restoration of the function of the member is impossible. There was other evidence which, if relied on, would indicate that the injuries were less grave, but the subject was for the jury to pass upon. In one view of the ease the jury might have said that not only were the injuries and the pain and suffering therefrom very serious, but that also the effect was likely to be permanent, so that the plaintiff’s ability for labor would be very materially affected if not substantially destroyed. We are of the opinion that sufficient grounds for us to interfere do not appear.

The foregoing considerations lead to an affirmance of the judgment.

Hardin, P. J., and Martin, J., concurred.

Judgment and order affirmed, with costs.


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    Katherine J. Wilbur, as Administratrix, etc., of Judd L. Wilbur, Deceased, Respondent, v. The Delaware, Lackawanna and Western Railroad Company, Appellant.

      Negligence — death of a person crossing railroad tracks — contributory negligence, a question for thejmy — evidence as to a flagman.

    A person about to cross railroad tracks is bound to make all reasonable effort to see, that a careful and prudent man would make under like circumstances. He is not, however, bound to provide against any particular result.
    It is for the jury, upon the trial of an action brought to recover damages sustained by reason of the death of the plaintiff’s intestate, to determine from the evidence whether the deceased used reasonable care and caution when attempting to cross the railroad tracks where the accident occurred, and also to determine whether he could have seen the approaching train, by which he was run over and lulled, in time to have avoided the accident.
    Upon the trial of an action brought to recover damages sustained by reason of the death of the plaintiff’s intestate, caused by his being run down by a train at a highway crossing, where it has been shown that the flagman was absent from the crossing at the time of the accident, it is competent for the plaintiff to show that, two or three weeks prior to the accident, the deceased crossed the tracks at the same place, and that there was then a flagman stationed at the crossing at the time of the passing of the same train by which the deceased was subsequently killed.
    Appeal by the defendant, The Delaware, Lackawanna and Western Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the comity of Chemung on the 3d day of February, 1894, upon the verdict of a jury for $5,000, rendered after á trial at the Chemung Circuit, and also from two orders entered in said clerk’s office, one on the 24th day of January, 1894, and the other on the 1st day of February, 1894, denying the defendant’s motion for a new trial made upon the minutes.
    The action was brought to recover damages resulting from the death of Judd L. Wilbur, occasioned, as the plaintiff claimed, by the negligence of the defendant.

      John G. Milbw'n and Robert T. Turner, for the appellant,

      Frederick Collin, for the respondent.
   Merwin, J.:

The railroad of the defendant, at or near its station at Lowmanville, in the county of Chemung, crosses at nearly right angles a highway which runs nearly north and south. On the 8th day of April, 1893, Mr. Wilbur, the plaintiff’s intestate, in company with one Gardner, was passing northerly along this highway in a one-horse covered buggy. Mr. Wilbur sat on the right-hand or easterly side and was driving. The day was cloudy and rainy and the top of the buggy was up and the side curtains down. It was about five o’clock in the afternoon. The road of the defendant there has two tracks, the space between the two being about eight feet. As Wilbur approached the crossing, and about twenty-five feet from it, he stopped and waited for the passage eastwardly of a long freight train on the south or east-bound track. After this train passed by he drove on, and as he was crossing the north or west-bound track he was struck by a train going west on the north track and both he and Gardner were killed. The train was a fast one, going, according to some of the evidence, at the rate of over sixty miles an hour and was behind time. It was known as No. 3 and called the flyer. The plaintiff gave evidence tending to show that no signals were given of the approach of the train, no whistle blown or bell rung. Evidence to the contrary was given on the part of the defendant. An issue in this respect was presented for the jury to decide, and the verdict in this respect should not be disturbed. Whether the defendant was negligent was a question of fact.

The' question of contributory negligence is strongly pressed. Tliere is evidence that as Mr. "Wilbur started to drive across, and before he reached the first track, he looked out eastwardly as if to see whether a train was approaching on the other track. At what particular point he was when he looked cannot with certainty be fixed. Two witnesses speak of the looking out, but whether they refer to the same act or different acts was for the jury to say. So it was uncertain as to how far the rear of the freight train had passed beyond the crossing at the time the looking out occurred, and hence uncertain how far eastward the party looking could see an approaching train. There was a curve in the eastward tracks which, according to some of the evidence, prevented seeing a train in that direction more than about sixty rods. There was also the freight train, and its engine as it passed along emitted a good deal of smoke that was going over the tops of the cars and might interfere somewhat with seeing an approaching train. There was no flagman at the crossing, although the deceased had seen one there a short time before. The train was coming very rapidly, as the jury may have found, and without any signals heard by the deceased.

The question of contributory negligence was, we think, for the jury to decide. (Greany v. Long Island R. R. Co., 101 N. Y. 419; McNamara v. N. Y. C. & H. R. R. R. Co., 136 id. 650; Weber v. N. Y. C. & H. R. R. R. Co., 58 id. 451; Parsons v. N. Y. C. & H. R. R. R. Co., 113 id. 364; Sherry v. N. Y. C. & H. R. R. R. Co., 104 id. 652; Borst v. Lake S. & Mich. S. R. R. Co., 4 Hun, 346; Miller v. N. Y. C. & H. R. R. R. Co., 82 id. 164.) The deceased was bound to make all reasonable effort to see, that a careful, prudent man would make under like circumstances; he was not bound to provide against any certain result. (Shaw v. Jewett, 86 N. Y. 617.) In the Greany case (p. 427) it is said of an occurrence, similar in some respects to the present, that whether the party “ looked exactly at the right moment, or in each direction in proper succession, or from the place most likely to afford information, cannot be determined as matter of law, and whether upon the whole, and in view of all the surrounding circumstances, including the negligent conduct of defendant, she exercised due care, was a question which the trial court could not properly decide for itself, but was bound to submit to the jury as one which they alone could answer.” In the McNamara case it was said (p. 653): “ It was possible for tlie jury to find upon tlie evidence that she (the plaintiff) used reasonable care and caution, and this made the question one of fact which has been determined by the verdict in favor o'f the plaintiff.”

In this case whether the deceased, in. the exercise of reasonable care under the circumstances, should have seen the train in time to have avoided the accident was a question of fact for the jury.

Upon the question of contributory negligence it is claimed by the defendant that improper evidence was received. It was shown by plaintiff, without objection, that at the time of the accident there was no flagman at the crossing. It was then shown by a witness named Pierce that two or three weeks before the accident he had driven over this crossing with Mr. Wilbur about the time this train No. 3 passed through west. The question was then asked: “Was there at that time a flagman at that crossing ? ” This was objected to by the defendant as immaterial and inadmissible, and the court held it was admissible on the question of contributory negligence, and overruled the objection, and defendant excepted, and witness" testified that, within the view of witness and of Wilbur, there was a flagman at that crossing for that train.

In McNamara v. N. Y. C. & H. R. R. R. Co. (supra) a flagman stationed at a crossing whose duty it was to warn persons approaching of danger, was absent from his post at the time of the accident, and it was in effect held that this was a circumstance to be considered on the question of the contributory negligence of one accustomed to pass at that point, the court saying that the deceased “ had the right to rely upon the pi-esence of the flagman to warn her of any danger, and she had a right to assume that trains would not be operated at such a place with such an unusual rate of speed, and that proper signals would be given to persons using the street of the approach of a train by ringing the bell and sounding the whistle.” The defendant claims that the case of McGrath v. N. Y. C. & H. R. R. R. Co. (59 N. Y. 468) is in point against the relevancy of the evidence. In that case, as said in the opinion at page 412, “ There is no ground for imputing any negligence to the plaintiff upon the evidence in the case, unless he omitted to look for the approaching train before he crossed the railway, or undertook to cross the track in advance of the train after seeing it.” It was held that the absence of the flagman who was accustomed to be there did not excuse the traveler from the charge of negligence in omitting the use of his senses. This case does not seem to necessarily hold, and in view of the McNamara case it should not be deemed to hold, that when the traveler does not look and listen, and the question is whether he looks at the proper place or at the proper time, the circumstance of the absence of the flagman may not be considered with other circumstances.

In Dolan v. Del. & Hudson C. Co. (71 N. Y. 285) the absence of the flagman is stated to be one of the circumstances to be considered on the question of the negligence of the plaintiff. In Sullivan v. Tioga R. R. Co. (44 Hun, 304, 311) it was held competent to prove on the question of contributory negligence that the defendant failed to observe its rule as to the ringing of the bells of locomotives in its yard.

But it is argued that there is no proof that it was customary for the defendant to have a flagman at that crossing. There was no proof on that subject either way, except as it may be inferred from the evidence of the witness Pierce above referred to. The evidence was not objected to on that ground. The material question was, what knowledge did the deceased have of the situation, as he approached on the day of the accident, that would properly bear on the amount of care he should exercise ? He had been there shortly before at the time this train passed, and a flagman was there. It cannot be said, as in the case of Whalen v. N. Y. C. & H. R. R. R. Co. (58 Hun, 431, 433), cited by the counsel for the defendant, that the deceased knew it was not the habit of the company to have a flagman there. He did not live in that vicinity, and we cannot assume that he would know the custom of the company on the subject. That he had in fact been there recently before was, we think, competent and its weight was for the jury to determine. The counsel for the defendant claims that the court in its charge permitted the jury to give undue effect to the circumstances of the absence of the flagman. The question as finally left to the jury on that subject was “ whether, taking the circumstances as they there existed, including this fact, he acted as an ordinarily prudent man in proceeding to cross as he did.” This, we think, correctly presented the question, and, in view of the prior discussions between court and counsel, it is not apparent that the jury would be likely to be misled by any prior statement of the question in a form that, perhaps, was not exactly correct.

We find no sufficient ground for reversal.

Hardin, P. J., and Martin, J., concurred.

Judgment and orders affirmed, with costs.


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    First National Bank of Syracuse, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.

      Payment of a draft — subrogation to the rights of the pa/yee — delivery of- a hill of lading — effects a legal change of possession of the property — laches not presumed on appeal — appeal on a judgment roll alone.

    Upon tlie advancement by one bank to another of the amount of a draft of which the latter bank is the payee, made at the request of the drawee, the bank making such advancement is subrogated to the right of the payee named in the draft.
    The discount of a draft drawn by a consignor upon his consignee, which is accompanied by the delivery of a bill of lading to the party making the advance, not only passes to such party the legal title to such property, but, in the «ye of the law, the transfer of the bill of lading is regarded as an actual delivery and an actual change of possession of the property described therein, and the fact that the bill of lading is drawn to order does not prevent its transfer by delivery to a third person without any indorsement.
    Any act of the drawer after the delivery of the bill of lading and discount of the draft does not affect the rights of the person discounting the same, and it is immaterial, as between the carrier of the property mentioned in the bill of lading and the person discounting the draft, that prior to such person making an advance thereon, the carrier had improperly parted with the control of the property, as the improper delivery thereof by it would not relieve it from its liability in the premises.
    Where the fact of laches or consequent injury is not found upon the trial of an action, the existence of laches or injury will not be presumed upon appeal simply from delay, nor will it be assumed, without any finding on the subject by the trial court, that by reason of delay and the failure of the consignees of goods delivered by the defendant, it, the defendant, has lost any remedy it might have had.
    Where an appeal is heard upon a judgment roll alone the question to be determined is whether in any view of the facts found a proper judgment was ordered.

      Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the pounty of Onondaga on the 22d day of June, 1894, upon the decision of the court rendered after a trial at the Onondaga Circuit before the court without a jury.
    The facts, as found by the trial court, are substantially as follows:
    On the 2d of September, 1892, C. E. Drake delivered to the defendant, at its station at East Pembroke, N. Y., a carload of wheat in bulk, owned by him, to be carried by the defendant to its station at Marcellus, N. Y., and the defendant thereupon duly delivered to Drake, or his agent, a bill of lading. This was dated September 2, 1892, and acknowledged the receipt of the property and stated the agreement to carry, and also that it was agreed “ that every service to be performed hereunder shall be subject to all the conditions, whether printed or written, shown or indorsed hereon, and which are hereby agreed to by the shipper and by him accepted for himself and his assigns as just and reasonable.”
    Upon the face of this bill, and under the words “ Marks, consignees and designation,” there was the following :
    “ Order of C. E. Drake, Marcellus, N. Y. (Notify C. E. Drake, Rochester, N. Y.)” There then followed a description of the property and a statement that the freight was prepaid.
    Hpon the back of the bill of lading, there was printed the word “ condition,” and under it the words “ not negotiable,” and under these in smaller type a number of conditions, two of which are claimed to be material here, and are as follows:
    “ 5. Property not removed by the person or party entitled to receive it, within twenty-four hours after its arrival at destination, may be kept in the car, depot or place of delivery of the carrier, at the sole risk of the owner of said property, or may be, at the option of the carrier, removed and otherwise stored at the owner’s risk and cost, and there held subject to lien for all freight and other charges. The delivering earner may make a reasonable charge per day for the detention of any car and for the use of'track after the ear has been held forty-eight hours for unloading, and may add such charge to all other charges hereunder, and hold such property subject to a lien therefor. Property destined to or taken from a station at which there is no regularly appointed agent shall be entirely at risk of owner when unloaded from cars, or until loaded into cars, and when received from or delivered on private or other sidings, shall be at owner’s risk until the cars are attached to and after they are detached from trains.
    “ 9. If the word ‘ order’ is written hereon immediately before or after the name of the party to whose order the property is consigned, without any condition or limitation other than the name of a party to be notified of the arrival of the property, the surrender of this bill of lading, properly indorsed, shall be required before the delivery of the property at destination. If any other than the aforesaid form of consignment is used herein, the said property may, at the option of the carrier, be-delivered without requiring the production or surrender of this bill of lading.”
    Other facts were found as follows :

      “ Foiorth. That on the 3d day of September, 1892, said C. E. Drake, then being the holder of the said bill of lading and the owner of said wheat, drew his draft in writing upon H. C. Smith & Co., of Marcellus, N. Y., of which the following is a copy:
    “£ $465.49. Rochester, N. Y., September 2>d, 1892.
    “ ‘ At sight pay to the order of P. R. McPhail, cashier, four hundred sixty-five and 49-100 dollars.
    “ ‘ Yalue received and charge to account of
    “ £ C. E. DRAKE, per C. E. Drake.
    ££ £ To Mess. H. C. Smith & Co. (Indorsed on face.)
    “ £ Cash, Syracuse, N. Y.’
    “ And attached the said bill of lading to the said draft, and delivered the said draft and bill of lading, the latter indorsed: £ Deliver to the order of H. C. Smith & Co. (Signed) C. E. Drake,’ t'o the Merchants’ Bank of Rochester, and the said Merchants’ Bank of Rochester on said day discounted the said draft and placed the avails thereof to the credit of said Drake upóli the books of said bank.

      “Fifth. That on the said 3d day of September, 1892, said Merchants’ Bank of Rochester indorsed the said draft as follows : ‘ For collection for account of Merchants’ Bank of Rochester, N. Y. P. R. McPhail, Cashier,’ and transmitted the same with the bill of lading attached to the plaintiff, First National Bank of Syracuse, for collection, and the same were received by said plaintiff on the 6th -day of September, 1892, upon which day said plaintiff duly notified said TI. O. Smith & Co. of the receipt thereof.

      “Sixth. That on the 10th day of September, 1892, H. C. Smith, a member of the firm of H. C. Smith & Co., called at the banking office of the plaintiff at Syracuse, N. Y., and requested the cashier of said bank to remit to the Merchants’ Bank of Rochester the amount of said'draft and to hold the bill of lading as security for such advancement until said draft was paid by said H. C. Smith & Co., and that thereupon said plaintiff did remit to said Merchants’ Bank of Rochester on said 10th day of September, 1892, the amount of said draft, by its draft upon New York, which said remittance was received by said Merchants’ Bank of Rochester on the 12th day of September, 1892, and said draft on New York was thereupon collected and the proceeds thereof retained by said Merchants’ Bank of Rochester.

      “ Seventh. That on the 5th day of September, 1892, the firm of H. C. Smith & Co. presented to the station agent of the defendant at Marcellus, N. Y., a postal card signed by said O. E. Drake, of which the following is a copy:
    “£ Rochester, N. Y., Sept. 4, ’92.
    £* ‘ Messrs. H. C. Smith & Co.:
    “ £ This is your authority to unload car wheat No. 41383, consigned from E. Pembroke 9-2 to my order, Marcellus. Unload without B. L. and deliver B. L. to agent when you get it from 1st Nat. Bank of Syracuse, where we sent it on Saturday for delivery to you.
    £££ Yours, truly,
    £££C. E. DRAKE.’
    ££ And that thereupon said defendant delivered to said H. C. Smith & Co. said carload of wheat, shipped under the bill of lading aforesaid, without requiring the surrender and cancellation of said bill of lading, and the same was wholly removed from said car on the 5th and before eight a. m. of the 6th day of September, 1892, by said H. C. Smith & Co., and said wheat was converted into flour by said II. C. Smith & Co. before September 10, 1892.

      “Eighth. That on or about the 1st day of November, 1892, after the failure of said II. O. Smith & Co., the plaintiff duly presented the said bill of lading and duly demanded from the defendant the possession of the .said carload of wheat mentioned therein, and that the said defendant refused to deliver the same to the plaintiff.
    ££ Ninth. That at the time of such shipment, and up to the time of such demand for the possession thereof, said wheat was of the value of $465.49.
    “ Tenth. That after the receipt of said bill of lading by the plaintiff, not earlier than Sept. 10th, 1892, and before the demand for the property therein mentioned from the defendant, the said IT. C. Smith & Co. indorsed the said bill of lading by writing across the back thereof the words £ TI. C. Smith & Co.’
    ££ Eleventh. That said H. O. Smith & Co. never paid the said draft, and that the said bill of lading was never delivered to said II. C. Smith & Co., but remained in the possession of the plaintiff until after the demand aforesaid.
    ££ Twelfth. That Marcellus station is about fifteen miles west of the city of Syracuse, plaintiff’s place of business, and there is telegraph and railroad communication between the two places.”
    As conclusions of law the court found that the delivery by the defendant of the grain to said Ii. C. Smith & Co. without the cancellation and surrender of the bill of lading, and the subsequent refusal to deliver the same to tire plaintiff upon demand, constituted a conversion thereof, and that the plaintiff is entitled to judgment against the defendant for the sum of $465.49, the value of said wheat, with interest from the 10th day of September, 1892.
    The appeal is heard on the judgment roll alone.

      Ercmlc Hiseoelc, for the appellant.

      White c& Cheney, for the respondent.
   Merwin, J.:

The plaintiff, upon its advancement to the Merchants’ Bank of Rochester of the amount of the draft at the request of H. C. Smith & Co., was subrogated to the rights of that bank to the draft and bill of lading. (Gans v. Thieme, 93 N. Y. 225; Acer v. Hotchkiss, 97 id. 403; 24 Am. & Eng. Ency. of Law, 290, 294.)

In Commercial Bank of Keokuk v. Pfeiffer (108 N. Y. 250) it is said to be settled law in this State that the discount of a draft drawn by a consignor upon his consignee, which is accompanied by the delivery of a bill of lading to the party making the advance, not only passes to such party the legal title to such property, but in the eye of the law the transfer of the bill of lading is regarded as an actual delivery and an actual change of possession of the property. As supporting this proposition there are cited the cases of Bank of Rochester v. Jones (4 N. Y. 497); First Nat. Bank of Cin. v. Kelly (57 id. 37); City Bank v. R., W. & O. R. R. Co. (44 id. 136); Merchants’ Bank v. U. R. R. & T. Co. (69 id. 379). The fact that the bill of lading is drawn to order does not prevent its transfer by delivery to a third person without any indorsement. (Merchants’ Bank v. U. R. R. & T. Co., supra.) The acts of Drake after delivery of the bill of lading to, and discount of the draft by, the Rochester bank did not affect the rights of that bank.

It would seem, therefore, that the right of plaintiff to the property under the bill of lading was perfect, unless it is affected by the printing on the back of the bill of lading of the words “not negotiable.”

By section 633 of the Penal Code it is provided that any person, who is the master, owner or agent of any vessel, or officer or agent of any railway, express or transportation company, or otherwise being or representing any carrier, “ who delivers to another any merchandise for which a bill of lading, receipt or voucher has been issued, unless such receipt or voucher bears upon its face the words £ not negotiable,’ plainly written or stamped, or unless such receipt is surrendered to be canceled at the time of such delivery, or unless, in the case of a partial delivery, a memorandum thereof is indorsed upon such receipt or voucher, is punishable by imprisonment not exceeding one year, on by a fine not exceeding one thousand dollars, or by both.” The bill of lading in this case did not have written or stamped on its face the words “ not negotiable,” and, therefore, the delivery of the property by the agents of the defendant without its surrender and cancellation was unlawful. In 1 Kent’s Comm. 467, it is said if a statute inflicts a penalty for doing an act, the penalty implies a prohibition, and the thing is unlawful though there be no prohibiting words in the statute.

As the printing of the words “ not negotiable ” on the back of the bill did not comply with the statute, it may be doubtful whether they in any way affected the rights of the Rochester bank. It had a right to assume that the defendant would not deliver the property without production of the bill and so it would be able to obtain payment of the draft. Aside from this, by reference to condition No. 9, it was apparently within the contemplation of the parties that if the consignment was in the form which it in fact appears to be on the face of the bill, it then became the subject of transfer, and the rights of third parties might intervene and so the property must not be delivered without surrender of the bill.

I am of the opinion that the Rochester bank had a valid claim on the property to the extent of the draft and this inured to the benefit of the plaintiff although the property had passed from defendant’s control before the plaintiff made its advancement. (Serat v. The Utica, 1. & E. R. R. Co., 102 N. Y. 681.) The improper delivery by defendant did not relieve it from its liability. (Corsan v. Oliver, 2 Abb. N. C. 356.) It is, however, urged by the defendant that at the time the plaintiff advanced its money, the bill of lading was spent,” and, therefore, the plaintiff could acquire no rights to it. This might perhaps be so if plaintiff took only the right which H. C. Smith & Co. could give. As, however,_ it stood in the place of the Rochester bank it was not affected by what had occurred between the defendant and Smith & Co. It is not found that the plaintiff knew anything about these occurrences.

The defendant also claims' that the plaintiff is chargeable with laches by reason of its delay in presenting the bill of lading and making a demand of defendant. The fact of laches or consequent injury is not found. From the delay simply we cannot assume the existence of laches or injury, especially in view of the fact that the unlawful delivery by defendant’s agents which is the basis of plaintiff’s claim occurred on or before the 6th of September, 1892. No facts are found showing an estoppel. (Galway v. M. E. R. Co., 128 N. Y. 133.) Nor can we say without any finding on the subject that the defendant by reason of the delay and the failure of the consignees has lost any remedy it might have had against them, or did not protect itself in the transaction. The defendant claims the plaintiff ratified the delivery to Smith & Co. But that is not found. No question is made about interest.

The appeal being heard noon the judgment roll, the question is whether in any view of the facts found the proper judgment was ordered. (Agricultural Ins. Co. v. Barnard, 96 N. Y. 525.) We are of the opinion that the judgment must be sustained.

Hardin, P. J., and Martin, J., concurred.

Judgment affirmed, with costs.


text:
    Frederick W. Webster, Respondent, v. The Elmira, Cortland and Northern Railroad Company, Appellant.

      Wegligence —presumed, in an action for personal injuries, from the derailment of a ca/r.

    Upon the trial of an action brought to recover damages resulting from personal injuries, sustained by tbe plaintiff by reason of tbe defendant’s alleged negligence, it was shown that a car on the defendant’s steam railway in which the plaintiff was a passenger was derailed, whereby the plaintiff was injured.

      Weld, that it was error for the trial court to charge the jury that the fact that the train left- the track raised no presumption of negligence, and that such error, where judgment was rendered for the defendant, furnished a sufficient reason for granting a new trial of the action.
    Appeal by the defendant, The Elmira, Cortland and Northern Railroad Company, from an order of the Supreme Court, made at the Chemung Special Term and entered in the office of the clerk of the county of Chemung on the 10th day of April, 1894, granting the plaintiffs motion for a new trial made on a case containing exceptions.
    The action was brought to recover damages sustained by the plaintiff while a passenger on one of defendant’s trains by reason of the derailment of the car in which he was riding. The case was tried at the Chemung Circuit and a verdict was rendered for the defendant. A case and exceptions were then settled, and a motion for a new trial made at a Special Term held by the justice who held the Circuit. From the order made on that motion the defendant appeals.

      Frederick Collin, for the appellant.

      Parsons, Shepard & Ogden and John M. Perry, for the respondent.
   Merwin, J.:

The defendant claims that there was no good reason for granting a new trial. The order does not state the particular ground on which it was made. Both sides, however, have addressed themselves mainly to the question whether the court at Circuit erred in its charge as to the presumption that arises from the fact of derailment, and that is the main question here. .

The accident happened on the 16th of March, lSSA On that day plaintiff purchased a ticket for passage over defendant’s road from Canastota to Elmira. The train consisted of an engine, tender, baggage car, passenger coach and a smoker. The plaintiff was in the smoking car. The train proceeded safely until it passed Park station. Between that station and Erin station there is a four degree curve in the track for the continuous distance of about 1,400 feet, a portion of which is over a bridge which is thirty-four feet long. As the train passed round this curve, the car in which the plaintiff was riding left the track, and after proceeding a short distance on the ties was overturned and the plaintiff was injured. The engine passed along safely but all the cars were derailed to some extent, the derailment commencing at or near the north end of the bridge. There was evidence on the part of plaintiff tending to show that the train was going very fast, that the ties were defective and the rails spread. On the part of the defendant there was evidence tending to show that the speed was about twenty-four miles an hour, that the track was in good order and the rails did not spread.

The court, in the course of its charge, said : “ The fact that the accident occurred under the circumstances that it did, is not necessarily presumptive of negligence, but it is a fact which you have a right to take into consideration under all the circumstances of the case, and see whether it leads you to think that there was some negligence either in the running of this train or in the condition of this roadbed, in order to cause that train to jump the track where it did.” At the close of the charge, after a request by the counsel for plaintiff as to certain expenses, and a ruling and an exception, the following occurred: “Plaintiff’s counsel: We also except to the charge that the accident does not necessarily furnish presumptive proof of negligence. The Court: I have charged them that it is for them to consider how far, under the evidence in this case, it is evideuce of negligence. Defendant’s counsel: We ask your honor to charge the proposition, the mere fact that the train left the track raises no presumption whatever of negligence. The Court: I have already charged that it was not presumptive, but proper evidence for them to consider on the question of the defendant’s negligence. Plaintiff’s counsel: We desire to except to the remarks of the Court to that request of the defendant. Defendant’s counsel: We request the Court to charge that although the train left the track the burden is on the plaintiff to show that the derailment of the train was due to the negligence of the defendant, and to show that by a fair preponderance of evidence. The Court: Yes, by a fair preponderance of evidence. Defendant’s counsel: If the accident was the result of the action of frost or the elements, and human agency was not responsible for it, the plaintiff cannot recover. The Court: Unless the defendant could have provided against it by care, that is true. Plaintiff’s counsel: We except to the requests of the defendant that the Court has charged against us.”

c From this statement it is quite apparent that the court intended to charge, and did in substance charge, that the mere fact that the train left the track raised no presumption of negligence. The general proposition which the court had previously stated was, perhaps, broad enough to include all the circumstances of the accident and relate to the general burden of proof, but the request made by defendant called the attention of the court to a particular fact and the presumption to be derived from that alone. So that the question is, not where the burden of proof is generally, but what significance is to be given to a particular and material fact.

In Edgerton v. N. Y. & Harlem R. R. Co. (39 N. Y. 227) it is said by Judge Grover : “ The evidence showed that the car in which the defendant was riding in part ran off the track and was broken, by means of which the plaintiff was injured. This was prima faeie evidence of negligence of the defendant. The latter not only had the entire control of the vehicle, but also of the track upon which it was run, and it owed a duty to the plaintiff to keep both in a perfect and safe condition for the transportation of passengers with entire safety, so far as human prudence can accomplish these results. Experience proves that when the track and machinery are in this condition and prudently operated, the trains will keep upon the track, and run thereon with entire safety to those on board. Whenever a car or train leaves the track, it proves that either the track or machinery, or some other portion thereof, is not in a proper condition, or that the machinery is not properly operated, and presumptively jiroves that the defendant, whose duty it is to keep the track and machinery in the proper condition, and to operate it with the necessary prudence and care, has, in some respect, violated this duty.” This language was approved in Seybolt v. N. Y., L. E. & W. R. R. Co. (95 N. Y. 562, 568), and the general rule was said to be that in an action by a passenger against a carrier for negligence, where the plaintiff has shown a situation which could not have been produced except by the operation of abnormal causes, the burden then rests upon the defendant to prove that the injury was caused without his fault. A like view was taken in Caldwell v. N. J. Steamboat Co. (47 N. Y. 282, 293), where it was said to be a rule of the common law that where an act takes place which usually, and according to the ordinary course of things, would not happen, if proper care was exercised, it is presumed that such care was not observed. (Murphy v. Coney Island & B. R. R. Co., 36 Hun, 200.) In Feital v. Middlesex R. R. Co. (109 Mass. 398) which was an action against a street railway corporation for injuring a passenger, it was held that proof that the injury was caused by a car running off the track, at a place where the track and the car were under the exclusive control of the defendants, was sufficient to charge them with negligence, in the absence of any evidence that the accident happened without their fault. In The Pittsburgh, Cin,. & St. L. R. R. Co. v. Williams (74 Ind. 464) it was held that when the fact has been established that a passenger in a railroad car has been injured, without his fault, by the car in which he was riding being thrown from the track and upset, the law will presume negligence on the part of the railroad company, unless the evidence shows there was none. The doctrine of the Edgerton case was approved, and nrimerous other cases cited as sustaining the same view. (See, also, 2 Wood’s Railway Law, 1095, 1096; 2 Am. & Eng. Eney. of Law, 768; Hutchinson on Carriers, § 800.)

"We are of the opinion that the court erred in charging that the fact that the train left the track raised -no presumption of negligence. This error furnished a sufficient reason for granting a new trial. We cannot fairly say that the charge in this respect did not influence the jury to plaintiff’s disadvantage. The order, therefore, should be sustained.

Hardin, P. J., and Martin, J., concurred.

Order affirmed, with costs.


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    The People of the State of New York, Appellant, v. Irving D. Lamb, Respondent.

      Want of capacity to sue, how raised — an attorney's authority, when to he questioned — a retainer presumed— action to enforce the penalty provided for in chapter 338 </1893 — complaint by the commissioned• of agriculture.

    A defendant is not in a position to raise the question that the plaintiff has not capacity to sue, unless his answer or demurrer contains allegations to that effect. The question as to the right of the attorney, appearing for the plaintiff in an action, to appear and bring the suit, must, as a general rule, be raised by a motion before the trial, and is not an issue to be disposed of at the trial.
    When a party appears by an attorney a retainer will, as a general rule, be presumed.
    There is nothing in the provisions of chapter 338 of the Laws of 1893 making it • necessary for the plaintiff, in an action brought to enforce the penalty provided in such act for the selling of adulterated or impure milk, to allege in his complaint and prove that the action was caused to be brought by the commissioner of agriculture.
    Appeal by the plaintiff, The People of the State of New York, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Broome on the 2d day of July, 1894, upon the dismissal of the complaint directed by the court after a trial - before the court and a jury at the Broome Circuit, and also from an order entered in said clerk’s office on the 27th day of June, 1894, denying the plaintiff’s motion for a new trial made upon the minutes.

      A. D. Wales, for the appellant.

      Jno. P. Wheeler, for the respondent.
   Merwin, J.:

In the complaint in this case it is alleged that the defendant, on the 8th day of August, 1893, in violation of sections 20, 22 and 37 of chapter 338 of the Laws of 1893, entitled “An act in relation to agriculture,” offered for sale and sold a quantity of adulterated and impure milk to a certain creamery, and thereby incurred the penalty of $100 provided by said section 37, and became indebted to the plaintiff thereby in the sum of $100.. Upon the trial the plaintiff gave evidence tending to show that at the date referred to the defendant sold milk which was adulterated within the standard laid down in section 20 of the act. At the close of the plaintiff’s evidence, the defendant made a motion for a nonsuit on the grounds that the plaintiff had failed to establish a cause of action, and that it was necessary for the plaintiff to allege and prove that this action was brought by the State Dairy Commissioner. There was no such allegation in the complaint, or proof, and for this reason, as the counsel on both sides concede, the nonsuit was granted.

By section 37, above referred to, it is provided that “ every person violating any of the provisions of this article shall forfeit to the People of the State of New York the sum of one hundred dollars for every such violation.” Section 8 of the act is as follows: “ § 8. Prosecution for penalties. Whenever the commissioner of agriculture shall know or have reason to believe that any penalty has been incurred by any person for. a violation of any of the provisions of this chapter, or that any sum has been forfeited by reason of any such violation, he may cause an action or proceeding to be brought in the name of the People for the recovery of the same.” By section 9 it is provided that one-half of the recovery shall be paid to the county for the benefit of the poor, and the other half be paid into the treasury of the State and be applicable to the payment of the expenses of the department of agriculture. By section 2 the commissioner of agriculture is authorized to employ such agents and counsel as he may deem necessary for the proper enforcement of the laws relating to agricultural products. ■

The claim of the defendant is that it was necessary for the plaintiff to allege in the complaint and prove that the action was caused to be brought by the commissioner of agriculture. There is nothing in the statute that requires this to be alleged or proved as part of the cause of action. On the contrary, the occasion or propriety of giving such authority is predicated on the fact that a cause of action exists. The cause of action accrues to the People upon the violation of the statute. In the complaint the particular acts or omissions which constitute the cause of action are to be set forth. {The People v. Brooks, 4 Den. 469.)

Yery clearly the action of the commissioner under section 8 is not any part of the cause of action. Nor does it affect the ownership of the right of action, for by section 37 it is only given to the People, and there is no provision for bringing suit in the name of any other party. The objection of the defendant, therefore, must go either to the capacity of the plaintiff to sue or to the authority of the plaintiff’s attorney to appear.

If the objection is deemed to relate to the capacity of plaintiff to sue (Fulton Fire Ins. Co. v. Baldwin, 37 N. Y. 648; Perkins v. Stimmel, 114 id. 359; Nanz v. Oakley, 122 id. 631; People ex rel. Meakim v. Eckman, 63 Hun, 212), then the defendant is not in a position to raise it, as it is not raised by demurrer or in the answer. (Code, § 499.)

If the objection relates to the right of the plaintiff’s attorney to appear for the plaintiff and bring the suit, then, as a general rule, at least, that is matter for a motion before the trial, and is not an issue to be disposed of at the trial. (Clark v. Fitch, 2 Wend. 464.) In The People v. Denison (17 Wend. 312), which was an action of ejectment, the defendant offered to prove that the suit was prosecuted by an attorney of the court for the benefit of individuals, without the knowledge or permission of the Attorney-General of the State, as required by sections 10 and 11 of title 5, chapter 8, part 1 of the Revised Statutes (1 R. S. 180). This was ruled out and on appeal the ruling was held to be correct, the court saying that “ the defendant must avail himself of such an objection on motion to set aside the proceedings. The question is one of practice, not of title or jurisdiction. For the purposes of the trial the court should presume that the suit had been regularly commenced.” An irregularity in the mode of commencing a suit cannot be taken advantage of at the trial. (Daniels v. Patterson, 3 N. Y. 47.) The remedy by motion was employed, in Commissioners of Excise v. Purdy (36 Barb. 266) and Sutter v. Fauble (25 Hun, 195). When a party appears by attorney a retainer will, as a general rule, be presumed. (Hamilton v. Wright, 37 N. Y. 502.) It is not claimed that section 1962 of the Code applies to this case. Here special provision is made for the manner of the enforcement of the penalties under the Agricultural Law ; a particular department is charged with the duty of executing that law. ' (§ 2 of the act.)

The defendant relies on the case of People v. Belknap (58 Hun, 241). That was an action to recover penalties given by sections 23 and 24 of the Game Law of 1879 (Chap. 534 of the Laws of 1879). The summons and complaint were not signed by any district attorney and there was no allegation or claim that the action had been commenced under the direction of any fish or game protector or other officer. It was held that the action was not maintainable, and a judgment for penalties was reversed. In that case, unlike the present one, the question of capacity of plaintiff to sue was raised by the answer. It is also to be observed that the sections, under which in that case the penalties were claimed, provided simply that the party offending shall be liable ” to a certain penalty, without stating to whom. By other provisions of that or subsequent acts, the penalties could be sued for by any person in his own name, or by the district attorney of the county in the name of the People, either on his own motion or by the direction of a game protector, and in certain cases the game protector could employ other counsel to commence suits in the name of the People. In the present case the statute in terms gives the penalty or forfeiture to the People, and an action is not authorized in the name of any one else.

We think that the Belknap case is materially different from the present one and should not be deemed to be controlling in this case. It was not necessary for the plaintiff, in stating the facts constituting its cause of action, to state that its agent had authorized the bringing of the suit. ’ If for any reason the plaintiff had not capacity to sue, the defendant waived the objection by not taking it by answer or demurrer. If the plaintiff's attorney had no right to appear for the plaintiff, the question ’should have been raised before the trial, within the principle of the case of People v. Denison (supra). We think that the motion for a nonsuit should not have been granted.

Hardin, P. J., and Martin, J., concurred.

Judgment reversed on the exceptions and a new trial ordered, with costs to abide the event.


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    Frank McClanathan and Another, Respondents, v. William Friedel and Another, Appellants.

      Ambiguous contract — interpi'eted by the action taken under it — contract to work a week of “seven days.”

    If the language of a writing is ambiguous or indefinite, the 'practical interpretation of it by both parties is a consideration of importance, and there is no surer way to find out what the parties meant by a contract than to see what they have done thereunder.
    Where, by a contract, it was in effect agreed that for the work of seven days constituting a week, from a certain time to a certain time, one of the parties thereto should he guaranteed and receive a certain compensation to he paid weekly, .the contract cannot, consistently with the intent of the parLies, he construed to give an option to the party to whom the guaranteed amount was to he paid to work on Sundays or not, as he chose.
    Where the number of days is a material element in a contract of guaranty, effect must he given to the words “seven days,” and it cannot he held as a matter of law that the same should he construed not to include services to he performed on Sundays. i
    Appeal by„the defendants, William Friedel and another, from a judgment of the County Court of Onondaga county in favor of the plaintiffs, entered in the office of the clerk of the county of Onondaga on the 19th day of February, 1894, upon the verdict of a jury, with notice of an intention to bring up for review upon such appeal an order entered in the clerk’s office on'the 27th day of February, 1894, denying the defendants’ motion for a new.trial made upon the minutes.
    The action was commenced on the 3d day of August, 1893, in the Municipal Court of the city of Syracuse, and, from a judgment there obtained by the plaintiffs, appeal was taken to the Onondaga County Court.
    The action was brought to recover two installments, one due July 24, 1893, and the other July 31, 1893, on a contract of which the following is a copy:
    “ Syracuse, N. Y., June 25, 1893.
    “ This contract certifies that Mr. Frank McClanathan & Co. and Friedel & Gebhardt, this 25th day of June, 1893, for which Mr. McClanathan & Co. agree to put their merry-go-round at Salina ..Pier, for which Friedel & Gebhardt guarantee them one hundred and fifty dollars ($150.00), furnish coal and board two men, to average this seven days or one week from July 1, 1893, to Sept. 15, 1893, the money to be paid every Monday of every week.
    “ FRIEDEL & GEBHARDT,
    “FRANK McCLANATHAN & CO.”

      William Nottingham and Oostello & Welch, fox the appellants.

      Waters, McLennam <& Waters, for the respondents.
   Merwin, J.:

One of the defenses set up by the defendants is that the consideration of the weekly payment to be made or guaranteed by the defendants was in part for services to be peiffoimed on Sunday, and that the agi-eement in substance required the service to be so performed, and that, therefoi’e, the contract, under which plaintiffs claim, is illegal and void. It is not disputed that this result follows, provided the agreement is to be construed as requiring the machine to be run on Sunday. It was held by the tidal court as matter of law that the agi’eement should not be so construed, and that the contract, so far as this question was concerned, was a legal one. The appellants claim that this l’uling 'was ei’roneous.

The contract is dated June 25,1893, and that day was Sunday. It is, howevei-, shown that it was in fact executed on Monday, June twenty-sixth. The defendants had a pavilion and a saloon or restaurant near Salina pier on Onondaga lake, and it was understood by the parties that the plaintiffs’ machine was be placed near the defendants’ place of business, and it was so placed. It was run by steam powei’, an engine, and there was an organ connected with it. The machine commenced to run, according to the evidence on the part of plaintiffs, on Sunday, the second of July, and continued tó run every day, including Sundays, up to about the eighteenth of J uly, when practically it stopped by reason of the failure of defendants to furnish coal for the engine. Whether the plaintiffs ‘ were without fault, and Avere l’eady to pei’fonn on their part for the time covered by the claim in this action, weie questions litigated at the trial and found by the jury in favor of the plaintiffs. On the fifth of July the defendants paid the plaintiffs $150 for the first week’s payment. The defendants assisted in running the machine to the extent of selling the tickets.

By the contract it was in effect agreed that for the work of every seven days constituting a week, from a certain time to a certain time, the plaintiffs should be guaranteed and receive a certain compensation. This was to be paid weekly, and, therefore, it must necessarily have been the intention that every day in the week should be occupied. It was seven days’ work in a week, the earnings of which were guaranteed at a certain amount and to be paid for weekly. In this view the contract could not, consistently with the intent of the parties, be construed to give ah option to plaintiffs to work on Sunday or not, as they chose. The number of days that the machine ran was a material element in the guaranty, and effect should be given to the words “ seven days.”

If the language of a writing is ambiguous or indefinite, the practical interpretation of it by both parties is a consideration of importance. (Woolsey v. Funke, 121 N. Y. 92; Dodge v. Zimmer, 110 id. 18.) As said in Insurance Co. v. Dutcher (95 U. S. 273): “ There is no surer way to find out what parties meant than to see what they have done.” In the present case it is undisputed that the machine was in fact run upon Sundays during the time it was run under the contract.

We are of the opinion that the trial court erred in holding as. matter of law that, so far as this question was concerned, the contract was legal. The judgment must, therefore, be reversed.

HARDifr, P. J., and Martin, J., concurred,

J udgment and order reversed on the exceptions and a new trial ordered, with costs to abide the event.