text:
    JAMES A. RIDDEN, Respondent, v. JOSEPH H. THRALL, as Administrator of the Goods, etc., of CHARLES H. EDWARDS, Deceased, and GEORGE B. ABBOTT, Late Public Administrator in Kings County, as Administrator of the Goods, etc., of CHARLES H. EDWARDS, Deceased, Appellants.
    Causa mortis gift— what constitutes — completed by a death which does not result from the cause anticipated.

    One Edwards, wlio was afflicted with hernia, when about to go to a hospital to submit to a surgical operation, took a tin box and stated to a personal friend (Ridden) that he was going to the hospital to have an operation performed, and if he did not return, he wished Ridden to have the box and its contents. Ridden received it and held it on his lap. Ridden’s wife at this time entered the room and he said to her : " Sophia, Charles has given me this box as ho is going to the hospital, and if he doesn’t return, the box is for me to keep as my own; if he doesn’t return.” Edwards then arose and said: “ Yes, Mrs. Ridden, if I never come back, this is for Jim.” The key to the box was tied to the handle. The box was taken by Ridcien’s wife, who kept it. Edwards wept at the time and expressed much concern respecting the result of the contemplated operation, saying: “ Oh, Jim, you don’t know; I do not fear the operation, but I fear the results.”
    ‘The next day he left Ridden’s house, went to the hospital, where the surgical operation was performed three days thereafter, and he died some eleven days after the operation, of myocarditis, and not from the operation.
    The tin box contained sixteen savings bank books, with credits aggregating $40,000'. Subsequent to the death of Edwards, a letter was found, signed by him the day before the conversation above stated, as follows:
    “ Eriend Jim.— Should I not survive from the effects of the operation about to be performed upon me at St. Luke’s Hospital, this is my last will and request: * * * That you will take full charge of all my personal effects, of every kind, and to have and hold the same unto yourself, your heirs and assigns forever. You will find my papers and all the accounts in the box.'”

      Held, that the foregoing transaction constituted a valid gift, causa mm’tis, and. that Ridden was entitled to receive the amount of the deposits in the savings, banks, the deposit books for which had been delivered to him in the tin box.
    That the fact, that the immediate cause of Edward’s death at the hospital was myocarditis, or a thinning of the muscular fibres of the heart, a cause of death which he did not anticipate and did not foresee when he made the gift, did not affect its validity; that his return was the only condition impressed upon the gift; and there was no reason why the court should impose another or any additional contingency. .
    Such a gift is only revoked by a revocation in the lifetime of tlie donor, or by his recovery from the illness or escape from the danger, in view at the time-of the execution of the gift; or if death ensues from a sudden and unforeseen cause before such recovery or escape, the gift stands complete and the title - vests absolutely in the donee.
    Appeal .by the defendants from a judgment, entered in the office of the clerk of the county of Kings on the 20th day of June, 1889, for the sum of $2,208.54 deposited by one Charles II. Edwards in his lifetime with the Manhattan Savings Institution, which was. adjudged to be the property of the plaintiff James A. Ridden.

      Carlisle Norwood,, Jr., for the appellants.

      John U. Corwin and William J). Veeder, for the respondent.
   Dykman, J.:

This is an appeal from a judgment entered in favor of the plaintiff' after a trial before a judge without a jury.

The action was commenced against the Manhattan Savings Institution for the recovery of $2,208.54 deposited in the bank by Charles H. Edwards, deceased, and when the present defendants, interposed a claim to the fund as the administrators of Edwards, the savings bank obtained an order of interpleader, and the money was left in the bank subject to the judgment and order of the court.

The material facts are these: The plaintiff and Charles H. Edwards, deceased, were warm personal friends. They grew up together, and the friendship of their childhood continued unbroken in their manhood, and their relations were at all times very intimate. For a year and a half before his death Edwards, lived with the-plaintiff, and when he became afflicted with hernia, and was about to go to the hospital to submit to a surgical operation for that difficulty on the 1st day of October, 18S8, he went down stairs in the.evening with a japanned tin box about eight inches long, six inches-wide and about four inches deep, with a brass handle on the top of the box. The plaintiff was in the room with Edwards, and the wife; was in the adjoining room with the door open between the two rooms. Edwards then said he was going to the hospital to have an operation performed, and if he did not return he wished the plaintiff to have-the box and its contents, and then handed the box to the plaintiff, who received it and held it on his lap. Then the wife of the plaintiff, entered the room, and he said to her : “ Sophia, Charles has given me this box, as he is going to the hospital; if he doesn’t return, the-box is for me to keep as my own if he doesn’t return.” Then Edwards arose and said: “ Yes, Mrs. Ridden, if I never come back, this is for Jim.” The key to the box was tied to the handle. The-wife of the plaintiff then took the box and wrapped it up and put. it in a place of safety and kept it. Edwards wept at the time and expressed much concern respecting the result of the contemplated operation; and when the plaintiff endeavored to cheer him and dissipate his fears, he said: “ Oh, Jim, you don’t know; I don’t fear the-operation, but I fear the results.” He evidently feared he would die from the operation.

He left the house of the, plaintiff on the 2d day of October, 1888.. The same day he was admitted to the hospital and never returned. He underwent the surgical operation on the fifth, and died on the sixteenth. Edwards was a single man, about forty-six years of age, and left no relatives nearer than first cousins, and of those, he had no-knowledge, for he told the plaintiff, in his conversation the evening-before he left for the hospital, that he had no relatives living that he-knew of. According to the testimony of the house surgeon of the= hospital where Edwards died, the causé of his death, as indicated by the autopsy, so far as could be determined, was myocarditis, of a. thinning of the muscular fibres of the heart. The testimony, however, is unsatisfactory, for the witness said, “ technically,” such was-the cause of his death, and how far that should qualify his testimony we cannot .ascertain.

The tin box so delivered to the plaintiff by Edwards, contained sixteen savings bank books, with credits aggregating about $40,000, among which was the book issued by the Manhattan Savings-Institution with a credit of the amount claimed in this action. About-■one week after the death of Edwards, the wife of the plaintiff found ■a letter, written and signed by Edwards, under the cover of the bureau in his room, inclosed in an unsealed envelope, directed to the plaintiff, ■of which the following is a copy:

“ Brooklyn, Sept. 30, 1888.
“ James A. Bidden :
“ Friend Jim. —■ Should I not survive from the effects of the ■operation about to be performed on me at St. Luke’s Hospital, this is my last will and request, that you will take charge of my body •and have it placed in my family plot in Greenwood Cemetery, and, also, that you will take full charge of all my personal effects of ■every kind and to have and hold the same unto yourself, your heirs ■and assigns forever. You will find my papers and all my accounts m the box.
££ ^ ^ ErwAEDg „

The uncontradicted testimony upon the trial established the facts ■as we have recited them, and the trial judge found and decided that they constituted a valid gift ecmsa mortis, and that the plaintiff was ■entitled to the fund as the donee of the depositor. Gifts in prospect •of death are natural; and it is a curious fact that the son of Ulysses made a valid and effectual gift, causa mortis, to Piraeus of his "treasure in view of the peril he was to encounter with the suitors. (Homer’s Odyssey, Book 11.) Such gifts were well known and well regulated in the Roman civil law, and the common law on the .subject was derived wholly from that system of jurisprudence. We have not, however, adopted all the formalities of the civil law; but ■our law views them as conditional gifts to be made in contemplation and expectation of death by the donor from some cause imminent ■and impending, or the conceived near approach of natural death; immineney of foreseen peril or apprehended approach of death from ■existing sickness from which there is no recovery. It is essential to the validity of such gifts that there shall be a present delivery in -contemplation of death, and death without recovery from the ailment •or illness from which the donor then suffers and which induced his apprehension of death. If the ailment of the donor furnishes him with an admonition of the near approach of death, and the gift be made in view of approaching dissolution, the law is so far satisfied; •■and if unrevoked in his lifetime, and he do not recover or escape from tlie impending peril of deatli, the title of the donee becomes-absolute and perfect at his death, and by relation, from the time of the actual delivery of the property. The foregoing propositions are sustained by the following authorities: Story’s Equity Juris, prudence (§ 606); Kent’s Commentaries (vol. 2, p. 444); Grymes v. Hone (49 N. Y., 17); Irish v. Hutting (47 Barb., 370). There, is no reason why gifts should not be upheld as well as sales. Both are based upon the right of all people to do what they will with their own. Gifts are made without money and without price, from motives of affection or esteem, while grants are made for a. consideration.

The sales throughout the world are made verbally, and perfected by physical transfer and acceptance of the subject, and gifts are made in the same way and consummated by delivery, and one method of transfer should be as free as the other. Devises and bequests, like donations, mortis causa, are but gifts to take effect absolutely only upon the death of the giver; and if they are to be surrounded with safeguards beyond those requisite in transactions between the-living, let it be so, but let not the intention of donors be defeated.

In this case, Edwards intended to give the tin box and its contents, if he did not return from the hospital, to the plaintiff, and the-evidence manifests the presence of every element necessary to constitute a gift in prospect of death. It never was revoked, and the-donor never returned from the hospital and never recovered from the illness from which he was suffering at the time wdien he made the gift. Much is said by the appellant respecting the immediate-cause of the death of Edwards at the hospital, and their contention is' that he died of a disease and from a cause which he did not anticipate, and from a peril which he did not foresee when he made the gift; but there is no insistence that he recovered from the illness- or survived the peril from which he apprehended his death ; when he made the gift he was under the shadow of a great danger. He was about to submit to a surgical operation which he apprehended would be serious and might be fatal, and if he never returned from the hospital the property was to belong to the plaintiff. His return was the only condition impressed upon the gift, and there is no-reason why the court should impose another or any additional contingency.

“While there are expressions in book and opinions of judges, ■considered separately, favor the contention of the appellants, yet there are as many which look the other way. All sorts of views have been expressed by judges upon the subject of gifts causa mortis, and they are incapable of reconciliation. The assertion is ■often found in books, that the donor must die of the ailment ■or perils in view when the gift was made, and the expression is ■sufficiently accurate, for if the donor recover or escape from the .impending peril, the gift is thereby defeated, not because death did not ensue from the illness or peril -in view, but because it did not result at all. If a person in the last stages of a fatal disease made .a gift in expectation of death therefrom, and died in a few days from heart failure without having recovered from the illness, the .gift would be valid, because the revocation depended upon the recovery of the giver, and that event never happened.

In this case, if Edwai’ds had been prostrated with a malignant disease from which he expected to die, and made the gift he did in prospect ■of death therefrom, and then died of myocarditis in ten days, and before he recovered from the disease which prompted the donation, the gift would be complete. The gift was only ambulatory and incomplete during his lifetime and in case he recovered from his illness.

Our view is, that such a gift is only defeated by a revocation in the lifetime of the donor or recovery from the illness or escape from the danger in view at the time of the execution of the gift; and if death intervenes from a sudden and unforeseen cause, before such recovery or escape, the gift stands complete and the title vests absolutely in the donee. A different conclusion would defeat the intention of the donor, which the law is careful to execute. The essential conditions of a gift, causa mortis, are contemplation of death, clearly expressed, intention to make a present gift and a delivery of the .subject-matter thereof. A delivery of the bank-book,-which was the evidence of the claim against the bank, and the death of the donor without a revocation of the gift and without a recovery or escape from the dreaded peril, were sufficient to vest the fund in question in the plaintiff. (Champney v. Blanchard, 39 N. Y., 11; Westerlo v. De Witt, 36 id., 310.)

The judgment appealed from should be affirmed, with costs.

Barnard, P. J., concurred ; Pratt, J., not sitting..

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Dykman, J.:

license: Public Domain

text:
    EDMOND F. RYERSON, Appellant, v. MILLY ANN RYERSON, Respondent.

      Divorce —power of the court in reviewing the referee’s report — right to order a, new trial at circuit.

    In an action brought for divorce on the ground of adultery, a referee was appointed, under a stipulation of the parties, to hear and determine the action, who, after a trial, made a report in favor of the plaintiff.
    ■On application to the Special Term for the confirmation of this report, the motion was denied and the issues in the action were sent to the circuit for trial.

      Beld, that the report of a referee upon such a trial stands as the decision of the court, which will not review the findings upon the merits, but will only make such examination as may be necessary to ascertain whether the report has any support in the evidence, or whether there has been fraud or collusion or any evil practice in the case by either party.
    After such examination the application for judgment will either be granted or denied, but the report will not be set aside; and where the parties have agreed to a reference, the court has no authority, in the absence of a reason sufficient in law, to disregard the order of reference and order a trial at the circuit.
    Appeal by tbe plaintiff from an order made at a Special Term, Feld in Dutchess county on tbe 3d day of August, 1889, whereby a motion, made on behalf of the plaintiff for the confirmation of ■a referee’s report in an action for divorce, and for judgment for tbe relief demanded in the complaint, was denied, and an order was made that the issues joined in the action be sent to the Orange County Circuit for trial, which order was entered in the office of the clerk of the county of Orange on the 14th day of August, 1889.

      M. FT. Kane and J. J. Beattie, for the appellant.

      K. V. Sanford and George W. Greene, for the respondent.
   Dykman, J.:

This is an action by the husband against his wife to procure a dissolution of the marriage tie on the ground of adultery. Upon the stipulation of the parties, a referee was appointed by the court to hear and determine the action, and after a trial before him he made a report in favor of the plaintiff.

Thereupon, an application was made to the Special Term of the Supreme Court for judgment upon the referee’s report for the relief demanded in the complaint, and the court denied the motion, and ordered the issues in the action sent to the circuit for trial, and the appeal now before us is from, that order. "When an action is-tried before a referee appointed by the court to hear and determine the same, his report stands as a decision of the court, but in an action to annul a marriage, a judgment cannot.be entered upon such report without the direction of the court; but it has been many times decided that the court will not review the findings or report' of the referee in such a case upon an application for judgment thereon. The question was very fully examined by the General Term in this department in the case of Schroeter v. Schroeter (23 Hun, 231), and Ross v. Ross (31 Hun, 110), and although one-of the members of the court dissented from the conclusion reached in the last case, his dissent was upon a question not involved in this appeal. We have found no decision adverse to those named, and the same doctrine was recognized in the recent case of Matthews v. Matthews (53 Hun, 244).

Our views were fully expressed in the two opinions delivered in the case of Ross v. Ross (supra), and a restatement of them here will be neither necessary nor profitable. We have found no reason to modify our views. So far as the Supreme Court can determine the question, we regard it as settled that upon an application to the Special Term for judgment upon the report of a referee, appointed to hear-and determine a matrimonial action, the court will not examine the case upon the merits or set aside the report for errors, committed upon the trial. The court upon such an application will only make such examination as may be necessary to ascertain whether the report has any support in the evidence or whether there has been fraud or collusion or any evil practice in the case by either party. After such examination the application for judgment will be either granted or denied, and the court will proceed no further because no other subject is presented for its action. It is beyond the province of the court upon such a motion to set aside the report because no such application is made, ho such relief is sought and neither of the parties are heard upon such a question.

Neither will the court upon such an application direct the issues in the action to be tried at the circuit. The action was referred by consent, and when the parties adopt that mode of trial they do so iu tlie exercise of a legal right, and the court is vested with no jurisdiction or authority, in the absence of a reason sufficient in law, to vacate the order of reference and nullify all that has been accomplished under and in pursuance of the same. (Maicas v. Leony, 113 N. Y., 619.) In this case, there' has been no charge of misconduct against the referee and no application to vacate the order of reference or for the removal of the referee, or for a trial in any other manner than before the same referee, and yet the order from which this appeal is taken destroys the order of reference, nullifies all the proceedings upon the trial, and prescribes a mode of trial which the parties have repudiated by an express agreement for the appointment of a referee to try the cause instead of the court and jury. Neither do we find any reason for the denial of the motion for judgment upon the report of the referee. There was no irregularity and there was no collusion or fraud charged or claimed; on the contrary, the cause was fairly tried and severely contested, and two unequivocal acts of adultery were sworn to by two different witnesses; and if their testimony is true, it is sufficient to sustain the report of the referee.

Whether the denial of the defendant and the co-respondent should be taken to answer such testimony, or whether upon a full consideration of all the evidence and all the circumstances, the plaintiff has sustained his case by sufficient evidence, or whether the referee reached a wise or erroneous conclusion, can only be properly determined upon an appeal from the judgment and a case made and settled in the usual and orderly way.

We, therefore, reach the conclusion that the order from which this appeal is taken should be reversed, with costs and disbursements, and the motion for judgment upon the report of the referee should be granted, with ten dollars costs.

Pratt, J., concurred; Barnard, P. J., not sitting.

Order refusing to confirm report reversed, with costs and disbursements ; report of referee confirmed, with 'ten dollars costs.


text:
    JOSEPH F. SWAN, Appellant, v. JOHN F. JACKSON, Respondent.

      Negligence — when the manufactwrer of am, article is not liable for an injury occasioned thereby to a third person.

    In an action brouglit to recover for injuries received by an employee of an ice company, it appeared that while engaged in delivering ice at a meat market, into a box, from a platform constructed six feet above the floor and intended to sustain the weight of a man while he was filling it, the employee fell from the platform upon which he was standing, by reason of the defective construction thereof; that the box and platform had been constructed for the butcher by one Jackson, the defendant in the action, in a defective and negligent manner.

      Reid, that while the builder or manufacturer of an article may incur liability to third parties, where the defects are such as to render the article itself imminently dangerous, and where serious injury and loss would result from its use, yet that such a rule would not apply to a scaffold like the one in question, as it would not be a natural and necessary consequence of the imperfect and unnatural construction of the box or scaffolding that injury would result to the third person.
    That this case was within the general rule, that a manufacturer or builder of a defective article is not liable for injuries resulting to third persons, and not within the exception thereto covering the cases where the article is imminently dangerous and calculated to cause injury.
    Appeal by the plaintiff from a judgment dismissing the complaint with costs, after a trial at the Kings County Circuit, entered in the office of the clerk of the county of Kings on the 30th day of April, 1888.
    The action was brought against one John F. Jackson, to recover damages for alleged personal injuries which the plaintiff claimed to have received while attempting to put ice into an ice-box made by said Jackson for one John Boettcher, who was not a party to this action.
    The plaintiff was temporarily employed by the Montauk Ice Company on an ice-wagon to assist in the delivery of ice, and while delivering ice into the box of the said John Boettcher he sustained the injuries in question.

      Ghcm-les J. Patterson, for the appellant.

      Isaac Frornme, for the respondent.
   Dykman, J.:

The defendant in this action constructed an ice-box for one John Boettcher, who kept a meat market in the city of Brooklyn. The box was about twelve feet high, and upon the front side there was a platform about six feet high from the-floor. The platform was supported by iron arms, and was designed as a standing place for menwho were filling the ice-box, to enable them to place the ice in the box when the ice was hoisted for that purpose by ropes and pulleys.

There was testimony tending to show that these iron arms were ■defective. The plaintiff was in the employ of an ice company which ■supplied Boettcher with ice, and it was the duty of the plaintiff to deliver and deposit the ice into the box. To enable him to perform that duty he was obliged to go upon the platform with another man, and while he was so upon the platform engaged in placing ice into the box, one of the iron arms broke and gave way, and let the platform down, and in falling he received very severe injuries. The plaintiff’s complaint was dismissed upon the trial at the close ■of his ease, and he has appealed from the judgment.

Negligence is an omission of duty or the violation of the obligation which enjoins care. Generally, the law imposes no liability where there is no privity, and hence the rule by which actions of this character are determined is, that a stranger cannot recover from the builder for damages resulting from the defective construction of any edifice, structure or article, after the title of the object has changed and has passed from his possession, control and direction. The reason for the rule being, that the person sought to be charged, has no connection with the wrong, because the entire control of the article has passed from the builder, and is at the time of the injury' subject to the existing owners and proprietors.

Judge Strong, in his opinion, in the case of The Mayor v. Cunliff (2 N. Y., 175, 180) illustrated the rule by the following-hypothetical case: A carpenter is hired to build a barn and furnish the materials. He carelessly places a timber, slightly defective, under the mow, and the barn is accepted by the owner. Some years afterwards the timber, owing to its original defect, "breaks and falls upon a laborer, who sustains a serious injury, can he recover of the carpenter?” After stating another suppositional case in the same connection, he says: “ I know of no decision which would authorize a recovery under such circumstances.”

The case of Loop v. Litchfield (42 N. Y., 351) was this: The defendants in that action manufactured a balance-wheel for sale and sold it to one Callister, who purchased it for his own use in a machine for sawing wood by horse-power. There was a hole in the rim of the wheel caused by shrinkage in casting, which weakened the wheel. That defect was visible, and the attention of Callister was called to it before the purchase. The defendants filled the cavity with lead secured by a bolt, to receive which a hole was drilled through the rim, still further weakening the wheel, and it was them painted over and, by the request of Callister, adjusted to the machine-by the defendants. After it had been in use over four years, the wheel burst, parting where it had been drilled to receive the bolt,, and a fragment struck the plaintiffs intestate, who was using the machine with the consent of Callister, with such violence as to cause-his death. In that case it Avas decided by the Court of Appeals, in an action brought under the statute for causing death by negligence, that the plaintiff could not recover. This case and the suppositional case of Judge Strong have been cited fully because they bear much similarity to the case in hand.

The case of Losee v. Clute (51 N. Y., 494) bears much resemblance to the last case, and was decided in the same way upon the same principle, and we think these cases are decisive of this appeal. Yet, notwithstanding the well-settled rule of law which we have stated,, the builder or manufacturer of an article may incur liability to third parties where the defects are such as to render the article itself imminently dangerous, and where serious injury and misfortune would result from its use.

The case of Thomas v. Winchester (6 N. Y., 397) involved that principle, and, in the subsequent cases of Coughtry v. The Globe Woolen Co. (56 N. Y., 124) and Devlin v. Smith (89 id., 470), the doctrine was extended so as to apply to the erection of a very high scaffold. In the former case, the scaffold was about fifty feet from the ground, and in the latter it was about ninety feet. In both these cases, the Court of Appeals reached the conclusion that misfortune to third persons, not parties to the contract, would be a natural and necessary consequence of the builder’s negligence, and that the cases were taken out of the operation of tlie general rule of law by that fact. Now, the plaintiff seeks to bring this case within these last-named decisions and the decision of the English Court of Appeal in the case of Heaven v. Pender (11 Q. B. Div., 503). We do not think this case sufficiently analogous to'the last-named cases to justify the application of the principle upon which they were decided.

The scaffold in question was six feet from the floor and constructed and intended to sustain the weight of a man while he was Ailing the ice-box, and we do not think it can be assumed that misfortune or injury to third persons, not parties to the contract, would "be a natural and necessary consequence of the imperfect construction of the box or the scaffold, within the meaning of the decisions invoked in aid of this action.

Our conclusion is that this case is to be controlled by the general rule of law established in this State, and not by the exceptions to that rule recognized in the case of Devlin v. Smith (89 N. Y., 470).

The judgment should be affirmed, with costs

Barnard, P. J., and Pratt, J., concurred.

Judgment affirmed, with costs.


author: Barrett, J.:

text:
    In the Matter of the Application of the METROPOLITAN ELEVATED RAILWAY COMPANY, Respondent, v. FRANCIS J. DOMINICK, Appellant. THE SAME, Respondent, v. WILLIAM P. DOUGLASS, Appellant. In the Matter of the Application of the NEW YORK ELEVATED RAILWAY COMPANY, Respondent v. SUSAN A. BALDWIN, Appellant.

      Eminent domain — precision required in the description of the property rights sought to be tabeen — allegation as to inability to agree with the owners as to the price to be paid.

    In a proceeding by a railroad company to condemn property rights, extreme accuracy is required in the description of the property sought to be acquired, and there must be no uncertainty in such description or in the degree of interest, sought to be acquired.
    A petition filed by an elevated railroad company, in proceedings to condemn property, stated, that for the purposes of its incorporation, etc., there “is required so. much of the property, easements or other interests in the streets-aforesaid, hereinafter described, as has been taken,” etc. A further specification mentioned “ the property, easements or other interests in said streets, and intersecting streets, appurtenant to or part of, or constituting the street in front or along side of the lots and premises in this subdivision hereinafter described, respectively, as has been taken by reason of the construction and maintenance of the elevated railway of the petitioner, as the same is now constructed and maintained, with two rows of columns in said street, and a superstructure carrying tracks upon transverse girders spanning the street, and as has been or may be required by reason of the operation of said railway with cars,” etc.

      Held, that the term of the description “may be required” was too indefinite a statement of the rights to be condemned, upon which to estimate the proper compensation to be awarded.
    That the petitioner should have pointed out to each owner the surrounding conditions, and thus have indicated how he was to be affected.
    An allegation in the petition, “upon information-and belief that yoiir petitioner has not been able to acquire title to the real estate so taken as aforesaid, and is unable to agree for the purchase thereof with the persons who own, or have or claim to own, or have, estates or interests in the said real estate, and the reason of such inability is that they will not sell the same to your petitioner for a reasonable compensation,” is insufficient. What is meant by the word “ reason” in the statute is the ground of inability to purchase, and that ground must be the statement of some fact.
    Appeals by Francis J. Dominick, William P. Douglass and Susan A. Baldwin, respectively, from orders entered in the office of the clerk of the county of New York, respectively, October 30, October 31 and November 2, 1889, overruling objections to the respective petitions in the above-entitled matter.

      E. G. Perkins, for the appellant Dominick.

      E. B. Whitney, for the appellant Baldwin.

      Jay & Gaudier, for the appellant Douglass.

      JuTAen T. Dames, for the companies, respondents..
   Barrett, J.:

There are but two objections to the petitions which should be considered upon these appeals. The first is that they do not sufficiently describe the property sought to be acquired. The second, that the reason of the petitioners’ inability to acquire title has not been sufficiently stated.

The other objections were properly overruled. They were either untenable or doubtful. Among the untenable objections was, that which went to the root of the proceeding and denied the petitioners right in toto. My views upon that head, have already been expressed at Special Term in an unreported opinion (see Daily Register, April 14, 1888), and I adliere to those views. Under the act of 1850 (chap. 140, §§ 14, 21), as amended by chapter 649 of the Laws of 1881, there can be no doubt of the petitioners’ general right to proceed in the present way, notwithstanding the fact that the road has been constructed and that the past use of these easements without compensation, may be deemed a continuing trespass. This was the clear intimation given in Henderson v. New York Central Railroad Company (78 N. Y., 423); and it harmonizes with the views expressed in Prospect Park and Coney Island Railroad Company (67 N. Y., 371). (See, also, Ford v. C. and N. W. R. R. Co., 14 Wis., 609.)

Among the doubtful objections is that which rests upon the provision of the statute requiring railroad corporations, in their petition for the condemnation of real estate, to state that “ it is the intention of the company in good faith to construct and finish a railroad from and to the places named for that purpose in its articles of association.” We think this statement or its equivalent was essential. It is one of tlie facts which the property owner may controvert and disprove. As tbe question is one of the company’s intent, the burden of proof is upon them. (In re N. Y. C. R. R. Co., 66 N. Y., 407.) The petitions do not state this fact. They.-do state, however, what are claimed to be equivalent facts, namely, that under acts of the legislature and the determination of commissioners duly appointed pursuant to certain statutes, particular routes were designated and established for these companies, and that each of said -companies has “ constructed, maintained and operated a railway which it was so authorized to construct, maintain and operate.” Of course, if the companies have completed the railways which they offered and were authorized to construct, they, cannot be required to express, under the solemnity of an oath, an intention to do what has .already been done. If, however, they have not completed the railways “ from and to the places named in théir articles of association,” •or from and to the places mapped out for them by legislation, or by the action of duly authorized commissioners, they should be required to comply with the statute and state, under oath, their intention in good faith to so complete. The doubt here is as to the form of the averment read in connection with the other facts. It is such a doubt as should not be solved upon a mere preliminary objection. Counsel declare that the intention was to aver completion of the entire road which each company was authorized to construct, and the averments are, perhaps, sufficient to comprehend that purpose. This raises a question of fact which must depend upon the proofs, for the court cannot take judicial notice of the reports of commissioners or of actual construction thereunder. (See Porter v. Waring, 69 N. Y., 250.) The question should, therefore, be reserved until the proofs on the subject are all in, when it can be disposed of, properly and, advisedly, as a question of fact. The two objections, however, which I premised by stating, were well founded.

The description of the property sought to be acquired was insufficient. In this particular, extreme accuracy is required (In re N. Y. C. and H.R.R.R.Co., 70 N. Y., 191), and there must be no uncertainty in the description of the property to be 'taken nor in the degree of interest to be acquired. (Matter of Water Comrs. of Amsterdam, 96 N. Y., 361.) What it is understood that the companies here desire to condemn is the property owner’s easement of light, air and access appurtenant to his property. But it is impossible-to say what specific rights are claimed under these petitions or what burdens are to be compensated for. After stating that for the purposes of its incorporation, etc., there “ is required so much of the property, easements or other interests in the streets aforesaid, in this paragraph hereafter described, as has been taken,” etc., the petition proceeds to specify what is sought. It states this in a series of subdivisions, of which the following is a sample:

“ So much of the property, easements or other interests in said .Greenwich street and intersecting streets, appurtenant to or part of or constituting the street in front or along side of the lots and' premises in this subdivision hereinafter described, respectively, as has been taken by reason of the construction and maintenance-of the elevated railway of the petitioner, as the same is now constructed and maintained, with two rows of columns in said street and a superstructure carrying tracks upon transverse girders spanning-the street, and, as has been and may be requvred by reason of the operation of said railway, with cars and trains of cars thereon necessary for the transaction of the business of the petitioner according-to the statutes, conditions arid requirements aforesaid.”

How can the commissioners tell what “may be required” in the-future ? And how can any one estimate the proper compensation to be awarded therefor ? The learned counsel for the companies, makes an ingenious answer to this objection, but its very subtlety-shows that the requisite clearness and precision are wanting. He would have us qualify the exj>ression “ may be required ” by the-preceding words “ as has been taken ” and thus make the paragraph read “ so much of the property which may be required as has been. taken.”

This will not do. It is a strained and unnatural reading of the sentence. The property owner’s rights should not be left even to doubtful, though plausible, construction. If, by-and-by, an additional burden were sought to be imposed, a very much stronger argument than the present could be made in favor of the claim that it was. covered by the expression in question. Apart from this, we think the description is loose and indefinite as to what has been taken and as to the precise burden to be permanently imposed.

The description of the structure is in the most general terms, and the easements are not specifically defined. The petitioners should, have pointed out to each owner, the surrounding conditions and thus, have indicated how he was to be affected. Thus, and thus alone, can the-petitioners practically set forth what they desire to take and secure-The court can then determine whether they have a right to take the property sought for the purposes set forth, and, if they have, to indicate clearly to the commissioners the scope of the easement and the-precise subject upon which their judgment is to operate.

The second objection is made to the following paragraph of the-petition:

Upon information and belief, that your petitioner has not been able to acquire title to the real estate so taken as aforesaid, and is-unable to agree for the purchase thereof with'the persons who own or have, or claim to own or have, estates or interests in the said real estate, and the reason of such inability is that they will not sell the.same to your petitioner for a reasonable compensation.”

The difficulty here is, that no reason is stated as matter of fact. The companies say, in substance, that they have been informed by some one, and believe, that the property owners will not sell for a. reasonable compensation. By section 13 of the act it is provided that the company may apply in case it “ is unable to agree for the-purchase ” of the required property. But the company cannot say that it is unable to agree with the property owner until it has tried toi do so. The purpose of the statute would be frustrated if the company were permitted to state its conclusions or its beliefs upon mere hearsay. The statement of the reason is essential to jurisdiction. (In re Marsh, 71 N. Y., 315.)

What is meant by the word “ reason ” is, the ground, of the inability to purchase, and that ground must be the statement of some issuable-fact. How do the companies know, upon what information do they believe, that the property owners will not sell for a reasonable compensation ? No fact is stated which justifies any such opinion or-conclusion. And to say that a person will not do a thing is to state nothing but a conclusion. To say that lie has refused to do a thing is to state a fact. By this form of averment the plain provisions of the statute have been disregarded. If such a course were to pass-unchallenged and uncondemned, railroad companies need never try to agree with the property owner, and yet an honest endeavor, in good faith, to so agree is, a prerequisite to tlieir seeking the aid of the court.

It follows that these objections must be sustained. As, however, the petitioners may possibly be able to supply the necessary averments upon the head last discussed, and may alpo be able to cure the defects of description, they should have leave, if so advised, to apply at Special Term, upon proper papers, for an amendment of the present petitions and proceedings. And if such amendment be-granted, the present proceedings may stand and be continued.

The orders appealed from should be reversed, with ten dollars costs in each case, and the usual disbursements, and the motions to dismiss the proceedings granted without prejudice to the institution of fresh proceedings, and also without prejudice to the application to amend hereby permitted, if the petitioners are so advised.

YaN Brunt, P. J., and Bartlett, J.,. concurred.

So ordered.

       The unreported opinion referred to was filed April 13,1888, and was as follows: " (X-) The petitioner may maintain a proceeding of this character notwithstanding the construction of the road. If the easement is necessary for the maintenance or operation of the road, it can be condemned under the statute. (3.) The suit in the Superior Court is not a bar to this proceeding. The court there simply found that the owner’s interest had been depreciated in a given sum, and that an injunction should run against the companies unless they chose to pay such sum. The companies are not bound to accept' this condition. They may, if they choose, proceed under the statute. Such is the effect of the language used by Daneorth, J., in Henderson v. Railroad, Company (78 N. Y., 438). Whether, in view of the express finding of fact as to the quantum of depreciation, that matter is res udijudicata may be questionable. The contention against that theory is that the finding was not the subject of a judgment, and consequently was not binding upon the parties. The judgment was for damages for the wrong done, and an injunction against its continuance. True, the court said that the injunction should not go into operation, provided the defendant chose to pay, in addition to the fixed damages, $9,000 for the general depreciation. But there is no judgment for this latter sum, and the finding of fact on that head was solely for the purpose of providing a definite basis for the condition. At all events, this finding is not conclusive upon the right to proceed under the statute. Whether it is conclusive upon the commissioners may well be left for determination when the question properly arises before them. It follows that the application should be granted.”


author: Bartlett, J.:

text:
    In the Matter of the Application of THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK to Compel an Accounting by ALFRED L. SIMONSON and EDWARD T. SCHENCK, as Executors of and Testamentary Trustees under the Last Will and Testament of SAMUEL WOOD, Deceased.

      Trust — in favor of a corporation to be created,, if not created within three lives the property to go to the city of Sew York — void under the statute against perpetuities.

    A testator, by liis will, created a trust fund “ to create, eudow and forever maintain an institution in the city of New York to be called the Samuel Wood Benevolent Institute,” and directed his three executors to apply to the legislature for an act of incorporation thereof, “ and in case said charter .shall not be obtained within the life of the longest liver of my said executors, then I give, devise and bequeath the said rest, residue and remainder of my estate, real and personal, to the Mayor, Aldermen and Commonalty of the city of New York in their corporate capacity, to be strictly devoted by the city of New York to the charitable uses in this, my will, declared.”
    Held, that it was the manifest intention of the testator that the city of New York should receive nothing until the death of the last survivor of his three executors, and that the suspension of the absolute ownership aud power of alienation, necessarily involved in thus deferring the gift to the city of New York, was in violation of the statute against perpetuities.
    That the gift over to the Mayor, Aldermen and Commonalty of the City of New York -was void.

      OruiMiatik v. Some of Friendless (118 N. Y., 887), distinguished.
    Appeal by tbe Mayor, Aldermen and Commonalty of the City of New York from an order of the Surrogate’s Court of the county of New York made in the above entitled proceeding, dismissing the-petition of the petitioner, which order bore date February 16,1888, and denied an application made by the petitioner to compel the executors of the last will and testament of Samuel Wood, deceased, to account, under the provisions of sections 2726 and 2727 of the Code of Civil Procedure.

      B. E. Valentine, for the Mayor, etc., appellants.

      Eclwarcl Sohenoh, for the executors, respondents.
   Bartlett, J.:

The appellants failed in their application because, in the opinion of the learned surrogate, they were not persons interested in the estate or fund in the hands of the executors within the meaning of the Code, aud the only question presented by this appeal is whether that view is correct. We think it is. The claim of the city to any interest in the estate of the testator rests upon the second subdivision of the seventh article of the will, which seeks to establish a trust in three executors for purposes which are thus stated :

“ To create, endow and forever maintain an institution in the city of New York, to be called ‘The Samuel Wood Benevolent Institute,’ and to vest in said institute all of my property and estate not otherwise disposed of, and for the use and purposes thereof as the same are hereinafter declared, and to the end that the said ‘ The Samuel Wood Benevolent Institute ’ may, by the laws of this State, be capable of taking and holding real estate and other gifts and donations to its use, I hereby direct and order my executors, as soon as may be after my decease, to apply to the legislature of this State for an act of incorporation, incorporating the said ‘ The Samuel Wood Benevolent Institute,’ with power to take, and hold real estate for the purposes of said institute, and to prosecute said .application until a charter shall be obtained conformably to this, my will, and to be governed as hereinafter provided; and m case said charter shall not be obtained within the life of the longest li/ver of my said executors, then I give, devise and bequeath the said rest, residue and remainder of my estate, real and personal, to the Mayor, Aldermen and Commonalty of the City of New York in their corporate ■capacity, to be strictly devoted by the city of New York to the charitable uses in this my will declared.”

The primary gift for the establishment of the Samuel Wood Benevolent Institute (changed by the codicil to a college of music) was invalid. So far as the real estate was concerned, the power of .alienation was suspended for more than two lives. So far as the personal property was concerned, the absolute ownership was suspended for more than two lives. In neither case was the period of suspension limited by two lives in being, but, on the contrary, the testator contemplated that it might last through the lives of his three executors. But, notwithstanding that the primary gift must be deemed void, the learned counsel for the appellants insists that the substituted gift to the city of New York is good, and he refers to Cruikshank v. Home for the Friendless (113 N. Y., 337) as a case in which a somewhat similar primary devise was adjudged void, while the alternative and substituted gifts were upheld. But in that case the testator plainly intended that the gifts over should take effect at once, if the prior disposition of his property for the benefit of a non-existent corporation was invalid in law. In the will now under consideration, however, the language upon which the substituted gift is dependent, manifests a clear intention that the Mayor’, Aldermen and Commonalty of the City of New York shall receive nothing until the death of the last of the testator’s three -executors. “ In case said charter shall not be obtained within the life of the longest liver of my said executors ” is the phraseology. The suspension of the absolute ownership and power of alienation is thus attached to the substituted gift itself, and operates to invalidate it equally with the primary devise. The lurking doubt of the validity of the prior trust which influenced the testator in the case of Cruikshank v. Home for the Friendless (see opinion of Finch, J., 113 N. Y., 350), does not appear to have existed in the mind of Mr. Wood. He contemplated possible and probable delay in the ■formation of such a corporation as lie desired to have organized, but no legal objection to the testamentary disposition he attempted to make. He distinctly postponed his gift over to the city of New York until the expiration of three lives in being, and hence rendered ineffectual the only portion of his will under which the city could .assert any interest to compel his executors to account.

The order of the surrogate should be affirmed, with costs.

Yan Brunt, P. J., concurred.

Order of the surrogate affirmed, with costs.


text:
    THEODORE C. SCHELL, Respondent, v. JACOB COHEN, Appellant.

      Mortgage foreclosure — gum'dian ad litem fox' infant defendant appointed nisi, without his consent thereto being acknowledged.

    In an action for tlie foreclosure of a mortgage, an infant party under fourteen years of age resided witli his mother in the State of New York, but at the time of the commencement of the action was temporarily absent in the State of New Jersey. Upon proof of these facts the court made an order designating a guardian ad litem nisi, and directing personal service of such order upon the mother and that service be made upon the infant by mail, which service was accordingly duly made.

      Held, that the court acquired jurisdiction thereby and the infant thereupon became its ward.
    That the fact that the guardian so appointed never acknowledged a consent to become such guardian did not affect the validity of the proceeding in this case as it appeared that, at the time specified in the order nisi, the infant’s mother applied for the appointment of another person as guardian ad litem.

    That the fact that the consent to act of the guardian so appointed on the application of the mother, although produced, was not, at the time when the appointment was made acknowledged, did not invalidate the proceedings, as such acknowledgment was subsequently permitted by an order directing the acknowledgment to be made nunc px'o tunc.

      Tobin v. Gary (34 Hun, 432) followed.
    Appeal by the defendant from a judgment entered after a trial at Special Term, in the office of the clerk of the county of New York, on the 5th day of June 1888, adjudging the defendant’s title to certain lands in-Macdougal street, in New York city, to be defective and directing the repayment of the sum paid by plaintiff to defendant (upon the signing of the contract of purchase) together with the expense of examining the title to the lands, besides costs.
    The action was brought to compel the defendant specifically to perform a contract to convey certain premises, or in case of his inability to do so for the damages resulting therefrom.

      Albert Matthews, for the appellant.

      Gustave 8. Draehmcm, for the respondent.
   Barrett, J.:

The defendant’s title came through a sale under a decree of foreclosure. The sole objection to this title is that the guardian ad litem for an infant defendant failed to acknowledge his consent to become-such guardian. The infant was under fourteen years of age and he-resided with his mother in this State. At the time of the commencement of the action he was temporarily absent from the State. His-temporary abode was Old Bridge, New Jersey. Upon proof of these facts, the court made an order designating Jeff M. Levy guardian ad litem nisi and directing personal service of such order upon the mother. The court also directed service of the order upon the infant by depositing a copy thereof, properly inclosed in an envelope, with postage prepaid, in the post-office at the city of New York, directed to the infant at Old Bridge, New Jersey. This .deposit was properly made upon the day when the order was granted, and within two days thereafter, personal service of the order was duly made upon the mother. Thereupon the court acquired juris diction and the infant became its ward.

The service of such an order (properly granted under section 473 of the Code of Civil Procedure), in the manner specially directed by the court, is equivalent, for the purpose of acquiring jurisdiction to appoint a guardian ad litem, to personal service of the summons upon a resident infant, who is not absent from the State, and his father, mother or guardian; and is also equivalent, for the same purpose, to service by publication upon a non-resident infant. Service of process upon the infant is not constitutionally required in order to confer jurisdiction. Andrews, J., in Ingersoll v. Mangam (84 N. Y., 626), said that “ there is no invariable rule defining what legal proceedings constitute due process of law conferring jurisdiction upon a court to deal witli and bind the property of infants. Notice in some form, actual or constructive, is essential, but the legislature may prescribe that such notice shall be given to the parent or guardian, or other person as representing the infant, and proceedings in conformity with the statmte in such cases will be valid, and the infant will be bounds This was a reaffirmation,- in substance, of the rule stated in Croghan v. Livingston (17 N. Y., 218); Gotendorf v. Goldschmidt (83 id., 110), and in many other cases. The contention that jurisdiction was not acquired because of the fact that Levy never acknowledged a consent to become such guardian is without merit. Levy was not appointed a guardian ad litem for this infant, and, consequently, the provision of section 412 requiring the production of such acknowledged consent upon the making of the appointment is inapplicable. There was simply a designation of Levy to be such guardian nisi, and his actual appointment would not become operative unless the infant, or some one on his behalf, failed to procure the appointment of a guardian within the time specified in the order. If, in the case at bar, the infant, or some one on his behalf had so failed, then the question would have arisen whether Levy should not have acknowledged a consent before the designation nisi had ripened into an appointment. This is the only reasonable construction of the statute when an appointment is made; there is an application for some particular person, and that person is required to make his acknowledged consent a part of the motion papers. "When, however, a designation is made nisi, the court exercises its discretion with regard to the person; and as the applicant does not know who the court will designate, he cannot well come fortified with an acknowledged consent; which consent, it will be observed, must be “produced to the court or judge making the appointment.”

In Ingersoll v. Mangam (supra) the infant was anon-resident, and the summons was not served upon him either personally or by publication. The court held that there was no jurisdiction to appoint a guardian ad litem, for the reason that the statmte in such cases had not been complied with. Here the infant was a resident temporarily absent from the State, and the statute in such cases was strictly complied with. Jurisdiction having been acquired by compliance with the special directions of the court as to service of the order upon the infant and his mother, all subsequent irregularities were amendable. (Rogers v. McLean, 34 N. Y., 536; Croghan v. Livingston, supra; Gribbon v. Freel, 93 N. Y., 93; Tobin v. Cary, 34 Hun, 432.)

It appears that within the time specified in the order nisi, the infant’s mother applied for the appointment of a guardian ad Utem, and upon that application Mr. John E. Ward’s consent to act was produced. This consent, by an inadvertence, was not then acknowledged, but the appointment was made. In my judgment this was not a jurisdictional defect, but at most, a mere irregularity. It was so held in Croghan v. Livingston (supra) with regard to the failure of a guardian ad litem in partition, to file the bond required by statute. (Opinion of Pratt, J., at p. 221.) In Rogers v. McLean (supra) an amendment to the petition upon which the guardian was appointed, to the effect that the infant was residing with the petitioner or was under his charge or custody when the petition was originally verified, was permitted nunc pro tumo, and this amendment was sustained by the Court of Appeals. In Gribbon v. Freel (93 N. Y., 93) it was held that the publication of a six instead of a ten-day summons in the Marine Court was not a jurisdictional defect, but only an irregularity, and that, as the court acquired jurisdiction by the granting of a provisional remedy, an order amending the summons nunc pro tnmc was properly made. And in Tobin v. Cary (supra) the precise question here involved was decided adversely to the plaintiff’s contention. The court there also held that the order, duly executed by inserting the acknowledgment in the record, removed all objections to the title, and the purchasers were required to complete.

The present objection seems especially trivial in view of the fact that the summons was served upon Mr. Ward the day after his appointment, and thereupon he duly acknowledged, before a notary public, personal service of such summons. He also interposed a verified answer. I have no doubt that the irregularity was completely cured by the order (made on consent of all parties who appeared in the foreclosure suit) of March 25, 1886, permitting the proper acknowledgment to be filed nunc pro tunc, and by the execution of that order when the acknowledgment was filed and attached to the original consent and record.

The judgment appealed from should, therefore, be reversed and a new trial ordered, with costs to abide the event.

Daniels, J., concurred.

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


text:
    ROSA ALPERIN, Respondent, v. BERNARD EARLE, Appellant.

      Injury to a tenant from defects in a roof used for drying clothes — liability of the landlord.

    In an action to recover damages sustained by a tenant, who was injured while engaged in hanging clothes upon a line stretched across the roof of the house for drying purposes, it appeared that there was no yard to the house, and that slats had been placed upon the roof for the common use of the tenants in drying their clothes, and that the injury was caused by the breaking of one of these slats.

      Held, that to render the landlord liable for injuries to his tenants resulting from the dangerous condition of those parts of the building reserved for the common use of the tenants, and over which he retains control, it must appear, either that he has been guilty of actual negligence in regard thereto, or that with notice of, or an unreasonable omission on his part to ascertain such condition, he fails to make the necessary repairs.
    Appeal by the defendant from a judgment, entered upon a verdict for $500, rendered on a trial'at the New York Circuit before the court and a jury, in the office of the clerk of the county of New York on the 28th day of January, 1889; and also from an order, entered in said clerk’s office January 21, 1889, denying a motion for a new trial made upon the minutes of the court.

      Townsend & Mahcm, for the appellant.

      Moses Esher g, for the respondent.
   Barrett, J.:

The defendant is the owner of a tenement-house in this city; the plaintiff is the wife of one of his tenants. She was injured while engaged in hanging clothes upon a line stretchéd across the roof of the house for drying purposes. At the time of the accident she was standing upon some wooden slats which had been placed over the tin roof for the accommodation of the tenants. One of these slats broke under her weight and her foot went through and was injured. There was no yard to the house, and this slatting was a substitute provided by the landlord for the common use of the tenants in drying their clothes,.

The rules applicable to public halls and stairways in such buildings govern here. The landlord is responsible for injuries to his tenants resulting from the dangerous condition of those parts of the building which he reserves for the common use and over which he retains control, but only when he has been guilty of actual negligence with regard thereto. To bring him within this rule “ it must appear,” as was said in Hankel v. Murr (31 Hun, 30), “that with some notice of the condition of things, or under some circumstances equivalent to notice, such as an unreasonable omission to ascertain the condition, he had failed to .make the necessary repairs or changes called for by the condition or exigency.” This is the fair rule. That contended for by the appellant, namely, that the landlord is only responsible for some willful act or for fraud, or for creating a nuisance, is too narrow and is only applicable to a demise of the entire building, as in Jaffa v. Narteau (56 N. Y., 398); and Edwards v. New York, and Harlem Railroad Company (98 id., 245).

There was evidence tending to show that the defendant’s agent, Hennessy, knew that the slat in question was rotten and that he neglected to have a new one put in. The appellant’s criticism upon this testimony was for the jury. It was sufficient, if believed, to save the case and sustain the verdict. The charge upon which the jury retired was correct, and but for an unfortunate incident which subsequently occurred, we would have had no difficulty in affirming this judgment. The incident to which we refer is disclosed in the printed case in these words:

The jury then retired, and after being out some time, sent the following written question to the court:

“ Will the court please advise, viz., should Mr. Earle or his agent Hennessy, or the plaintiff, neither be aware of any defect in the slat-work and the accident occur, would the defendant be liable ? ”

The court sent for the jury, and after they returned to the court room, in the presence of counsel for both sides, instructed them further as follows:

The Court.— The jury submits this question: “ Will the court please advise, viz., should Mr. Earle or his agent Hennessy, or the plaintiffs, neither be aware of any defect in the slat-work and the accident occur, would the defendant be liable ? ” The answer to this is that the landlord might be liable even though neither of them knew about this defect.” To this the defendant excepted. The learned judge said a good deal more upon the same subject, at the same time emphasizing and illustrating this instruction.

Eor instance, he told the jury that the landlord had “ some kind of a duty towards that roof, and that duty, so far as it can be stated, is, in law, to exercise the reasonable care which a prudent man does about his roof; * * * that the case shall be left to the sound judgment of twelve men to say whether they think the landlord, under all the circumstances of the ease, has exercised the reasonable care that a prudent man does about a roof which he lets out. It may occur that the landlord ’did not know it, or his agent did not know it,'and that they did not know it beccmse they did not look, cmd if they had looked they might ham discovered it. * * * It is for the jury to say, under all the circumstances, whose business it was to f/nd out that the slat was not i/n sound condition. "x' * * Whether this was one of those inscrutable accidents that happen or whether some one or other was to blame for not seeing that that slat was vn an unsound condition.” And more to the same effect. This, we think, was error, as applied to the facts of this case. There was really nothing here upon which to hold the defendant except the actual notice which we have already adverted to.

There was no evidence tending to show “ an unreasonable omission to ascertain the condition ” of the slat, none, that the landlord had “ reason to suspect ” that the roof was unsafe. The uncontradicted testimony, indeed, the testimony furnished by the plaintiff herself, showed that there was no indication of rottenness upon the upper or exposed surface of the slat. The rottenness embraced but about one-half of the surface underneath, a circumstance which gives plausibility to the defendant’s criticism of the testimony which attributes to the agent Hennessy, an admission of knowledge of the defect.

It also appeared, without dispute, that this agent frequently examined the roof and had it repaired from time to time, the last occasion being about eighteen months prior to the accident. There was, therefore, nothing to go to the jury upon the theory of negligence in not examining the slat. The defect was not visible nor could it have been discovered by any ordinary examination. There was no reason to suspect decay; ■ and although the structure was an old one, the defendant did his fair duty in having it frequently examined by his agent and repaired whenever a defect was observed.

As the verdict plainly resulted from the learned judge’s answer to what seems to have been, to the jury, a crucial question, we feel constrained to grant the defendant a new trial.

The judgment and order appealed from should, therefore, be reversed, and a new trial granted, with costs to abide the event.

Yan Brunt, P. J., and Daniels, J., concurred.

Judgment and order reversed, and a new trial granted, with costs to abide the event.


author: Daniels, J.: Barrett, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JOHN RYAN, Appellant.

      Assault with intent to hill with a loaded pistol, which fails to go off, constitutes an assault in the first degree.

    On the trial of an indictment containing two counts, charging the defendant, first, with making an assault with a loaded pistol and shooting it off with intent to kill; and, second, with making an assault with an instrument likely to produce grievous bodily harm, the defendant was convicted under the first count. The court was asked to direct the jury, that if they came to the conclusion that the only time the pistol was aimed at the witness was when it snapped and failed to go off, they could not convict the defendant of an assault in the first or second degree.

      Reid, that the court properly declined to so charge.
    That the court also properly refused to define the punishment of each of the crimes mentioned in the indictment.
    The court refused to permit the complaining witness to answer whether he believed that, at the time when the defendant made the threat to kill him, he intended to carry it out.

      Reid,, that the ruling was proper as it was not important what the witness believed, the question being what the defendant did and intended to accomplish.

      Appeal by tbe defendant from tbe judgment of tbe Court of General Sessions of tbe county of New York, held in and for’the county of New York on tbe 15th day of January, 1889, convicting tbe defendant of tbe crime of an assault in tbe first degree, and from an order denying a motion for a new trial, and in arrest of judgment on tbe said day.

      James J. Walsh, for tbe appellant.

      McKenzie Semple, for tbe respondent.
   Daniels, J.:

Tbe indictment contained two counts, the first charging tbe defendant with making an assault upon tbe complaining witness with a loaded pistol, and shooting it off, with intent to kill him. Tbe second count was for a similar assault with an instrument likely to produce grievous bodily barm. And be was convicted under tbe first count of this indictment, and tbe evidence given upon tbe trial was sufficient to support tbe verdict to that effect rendered by tbe jury. •

It was stated by tbe defendant, in tbe course of tbe evidence which be gave as a witness in bis own behalf, that be fired two shots from tbe pistol, and snapped it when it did not go off, but did not aim it at tbe complaining witness at either time. And tbe court was asked to direct tbe jury, if they came to tbe conclusion that tbe only time tbe pistol was aimed at tbe witness was when it failed to go off and snapped, they could not convict tbe defendant of an assault in tbe first or second degree. This tbe court declined, and tbe defendant excepted to the refusal to charge this proposition. In tbe request which was made, tbe intent with which tbe defendant might have been animated at tbe time was wholly omitted. And tbe court was, therefore, in substance, at least, asked to direct tbe jmy that they could not convict tbe defendant, even though be intended at tbe time to kill tbe complaining witness, if tbe pistol was pointed towards him, and it was then snapped, but failed to go off. By section 217 of tbe Penal Code, it has been declared that a person who, with an intent to kill a human being, or to commit a felony upon tbe person or property of tbe one assaulted, or of another, assaults another with a loaded fire-arm, or any other deadly weapon, or by any other means or force likely to produce death, is guilty of an assault in the first degree. This is the enactment contained in the section so far as it is applicable to this case. And the commission of the offense has not been made to depend, where a loaded fire-arm may be used and pointed, upon the fact of its being discharged. "What an assault with a loaded fire-arm, or any other deadly weapon, may be, has not been declared or defined by this or any other section of the Penal Code. And the legal signification of the term, therefore, is to be ascertained and derived from the general principles of the law affecting the charge. The enactment of the statute, so far as it is applicable to this case, briefly is, that where one person assaults another with a loaded fire-arm, intending to kill that other, then he is guilty of the crime charged in the first count of the indictment as an assault in the first degree. And that conforms to the preceding state of the law. (Slatterly v. People, 58 N. Y., 354.)

The jury necessarily, by their verdict, found the defendant to have been actuated with this intent. And if what was included in this request was an assault, then both attributes of the crime were presented by it. An assault, in legal parlance, has been defined “ To be an attempt, with force or violence, to do a corporal injury to another, and may consist of any act tending to such corporal injury, accompanied with such circumstances as denote at the time an intention, coupled with the present ability, of using actual violence against the person.” (Hayes v. People, 1 Hill, 351.)

And in People v. Bransby (32 N. Y., 525) this principle was so far sanctioned and followed as to declare it to .be only indispensable to create an assault “ that violence to the person be either offered, menaced or designed.” (Id., 532.) And Wharton, in his American Criminal Law (4th ed., § 1244), states the legal principle in very nearly the same form. And that is, that “ it is an assault to point a loaded pistol at any one, but not an assault to point a pistol at another which is proved not to be so loaded as to be able to be discharged.” And so, in substance, it was also held in People v. Connor (53 Hun, 352). The weapon in the hands of the defendant was not at the time in this disabled condition. For it had previously been twice •discharged, and only failed to be discharged again when it was snapped by some intervening circumstance not disclosed by the evidence, and not dependent on any act of the defendant. What the defendant did, as the proof was obtained from the complaining witness, was to point the instrument at him. And, in one of its discharges, the testimony was that he felt the ball, or its effects, as it was passing by his neck. And it further appeared, by his testimony, that the defendant had, immediately preceding the discharge of the pistol, threatened to kill the complaining witness. The evidence was sufficient upon each branch of the case to require it to be submitted to the jury, and the verdict which they rendered is amply supported.

In the course of the charge, the court defined to the jury the offense of an assault in the second degree, as that has been desdribed and designated by section 218. The defendant’s counsel excepted to what was said as to this degree of the offense. But the court followed literally the language of so much of the section as related to this case, and accompanied it with no more than pertinent explanations. This exception, therefore, was not well founded. And it is clear that it could not have been of any disadvantage to the accused, inasmuch as the jury found him to be guilty of the higher offense. The court also, in the submission of the case to the jury, stated to them that what had been said concerning the trade unions had no importance in the case. In giving this information to the jury the court was very clearly right, and the exception to it wasunfoitnded.

The defendant’s counsel also requested the court to define the punishment of each of the crimes mentioned in the indictment. That was declined, and an exception taken to the refusal. The provisions contained in the law defining the extent of the punishment to which the defendant might be subjected upon an adverse verdict against him, formed no part of the inquiry which the jury' were required to make in the case. What they were impanneled and sworn to do was to render a truthful verdict upon the evidence; and whether the punishment following their verdict would be greater or smaller in no way came within the range of their province; for it could in no manner affect the weight or indication of the evidence which the jury were required to consider and act upon. This was held to be the law in Russell v. State (57 Georgia, 420, 424). In People v. Cassiano (1 N. Y. Crim. R., 505), the jury inquired of the court what the punishment would be for the offense included in the indictment. This was not given, and the court in its opinion said “We think the information should have been given. In all cases the jury should know the effect of their verdict.” But the conviction was not reversed on this ground, but upon another which was held to be a material and fatal error in the proceeding. The case is, therefore, not an authority sustaining this request made by the counsel for the defendant. Neither is it sustained by anything which was said in People v. Bragle (88 N. Y., 585, 591). It was the duty of the jury by their verdict to give effect to the evidence, and that alone. And informing them what the extent of the punishment might be would not aid them in the discharge of that duty. And no disposition whatever was exhibited on the part of the jury to obtain the information which was refused.

The defendant had been discharged from a printing establishment under the superintendence of a Mr. Monroe. And the complaining witness was asked whether- he had not discharged thirty men from that place. This was objected to and excluded by the court. The defendant’s counsel then stated the object of the question to be to prove if the men were discharged by giving information to Mr. Monroe, that the information was untrue, and this was designed to affect the credibility of the witness. The court excluded the evidence, and the defendant’s counsel excepted. ’ The inquiry proposed to be made had no possible connection with any fact required to be proved to make out the commission of the offense or to sustain the defense. And whether the court would permit the inquiry to be made, as it very well might have done by way of cross-examination of the witness, was within the discretion of the judge presiding at the trial. (Canaday v. Krum, 83 N. Y., 68; Pratt v. Peckham, 44 Hun, 247, 252.)

The refusal to allow it, as the evidence proposed to be obtained and contradicted, in no manner would tend to disprove the existence of the charge, presented no error in the ruling of the court. (People v. Bragle, 88 N. Y., 585, 588.) For if the answer had been produced, as the defendant’s counsel expected it might be, he would not have been at liberty to contradict it by other testimony, for the reason that it affected no material circumstance within the issue on trial. It is only when a witness has been interrogated concerning a statement relating to some material part of the case, that his denial of the statement can be contradicted by other and independent evidence produced by the party affected by the answer. Where the evidence relates to no more than an immaterial or incidental circumstance, there evidence contradicting the statement is not permitted to be given. (Carpenter v. Ward, 30 N. Y., 243, 246; Marx v. People, 63 Barb., 618; 1 Greenl on Ev. [7th ed.], § 462.) The exception to the ruling of the court, refusing to permit the complaining witness to answer whether he believed at the time when the defendant made the threat to kill him he intended to carry it out, is devoid of merit. It was not important what the witness believed, but the case depended upon what the defendant did and he himself intended to accomplish. The witness, upon his cross-examination, also stated that it was said by the defendant that he had his mother or somebody to support. He was then asked the question: “You didn’t want to get that before the jury, did you?” This was excluded, and an exception was taken to the ruling in this manner made. Whether the witness did or did not want to get the statement before the jury, was not a material question for him to answer. There was no concealment made as to the circumstances attending the altercation between these men or the efforts made by the defendant to shoot the witness. And the question which was put was more in the nature of an impertinence than by way of exhibiting a disposition to elicit information which would be advantageous in the case. It may, however, be as well to add that it would do no harm to allow even inquiries of this character to be answered. Eor in criminal cases it is not advisable to apply as against the defendant the strict rules of evidence for the disposition of even immaterial inquiries.

By the notice of appeal it is stated that an appeal is taken from an order denying a motion for a new trial and in arrest of judgment. But no order of this description is contained in the case, and this part of the appeal, therefore, cannot be considered. The conviction was right and it should be affirmed.

Yan Brunt, P. J., concurred.

Barrett, J.:

I concur with Mr. Justice Daniels in the conclusion that it is an assault with a loaded fire-arm, to shoot at a person with intent to kill, though accidentally the bullet does not happen to be propelled from the pistol. The statutory assault is not with an expelled bullet, but with a loaded fire-arm. "When the weapon is loaded, but snaps, the actor has done everything in his power to effectuate the deadly purpose. He cannot escape because of the accident which frustrated that purpose, any more than if the bullet were expelled but missed its mark. The request was bad if the hypothesis came within the definition of assault in the second degree, for such request was in the disjunctive.

An assault in the second degree does not require an intent to kill nor even the use of a loaded fire-arm. All that is demanded is the willful and wrongful use of a weapon likely to produce grievous bodily harm. (Penal Code, § 218, subd. é.) Clearly, the snapping of a pistol pointed at the complainant, with intent to fire, was such an assault “ by the use of a weapon or other instrument likely to produce grievous bodily harm.”

But, further, the hypothesis was without foundation. There was no evidence even tending to support the claim that the only time the pistol was aimed at the complainant was when it snapped. Nor was there testimony from which this, as one of two possible inferences', could be deduced. The defendant denied that he ever pointed the pistol at the complainant, either when it went off or when it did not. The complainant said nothing directly about when or how it went off, but declared that he heard the click, saw the flash and almost felt the heat of the ball as it passed his neck. Again, he testified that he saw a flash and felt a concussion at the back of his head. At these times the pistol was certainly aimed at the complainant, and it is equally certain that it went off. Upon such testimony it was absurd to talk of the time when the pistpl snapped and did not go off as the only time when it was aimed at the complainant. The court gave the jury all the instructions properly called for by these facts, and it was not error to refuse to supplement such instructions with those called for by this request. These were the instructions actually given:

“ If you believe the story of the defendant, that he did not point this weapon at the man at all, of course he is not guilty, that is certain, because if he did not aim it at him, but aimed it at the ground and sky, then he did not so point as to inflict any wounds at all upon this man, and he is not guilty. But if yon believe that he pointed it at him, the fact that he was a bad marksman does not relieve him.” Besides this, the fullest definition was given of the crimes charged in the indictment, with appropriate explanations as to the applicability of the evidence. The case, therefore, comes within the principle laid down in Slatterly v. The People (58 N. Y., 351), that “ when the instructions of the court are unexceptionable as to the offense charged, and for which the prisoner is • on trial, and such instructions cover every element of the crime, and correct rules for the proper application of the evidence, it is not strictly the right of the prisoner to ask instructions upon a hypothetical case based upon other facts.”

Upon all the other questions discussed I also concur. But I must be permitted to dissent from the suggestion that in criminal cases it is not advisable to apply as against the defendant the strict rules of evidence for the disposition of even immaterial inquiries. There should, of course, always be firm and even tender consideration for a defendant’s rights, but the object of the trial should never be overlooked, namely, to reach the truth.

That result cannot well be expected if parties are permitted to wander from the real issues. Inquiries, irrelevant in substance and argumentative in form, only tend to confuse juries or to warp their minds. The guilty should not be afforded that kind of an opportunity to escape. The innocent need no such devices.

The judgment, I agree, should be affirmed.

Judgment affirmed.