text:
    Edward V. Thebaud and Others, Plaintiffs, v. The Great Western Insurance Company, Defendant.

      Marine insurance policy — specifications of the insured vessel admissible — insurance foi'an ocean trip of a vessel constructed for river navigation — parol evidence of knowledge by the insurer of a breach of covenant — delay of an insured vessel to stewt— when insurance is not avoided thereby — trial trips— their necessity a question for the.jury.

    In an action brought to recover the amount of a policy of marine insurance issued by the defendant, upon a vessel constructed for river navigation, to cover the vessel during an ocean-going trip, the written specifications of the insured vessel presented to the insurer as a necessary step in the application for insurance, and retained by it for its protection, are admissible in evidence as bearing upon the question of the knowledge of the insurer of the character of the vessel.
    Where an insurance company and the owner of a vessel attempt to insure for an ocean voyage a vessel which they both well know is not intended for ocean navigation, and is not capable of being made seaworthy as a sea-going vessel, it would seem that the only implication as to seaworthiness which corrld consistently arise from such intention would be that the vessel should be made as seaworthy for the voyage insured against as a vessel of her kind could reasonably be made.
    In an action .brought upon a marine insurance policy which contains an express warranty, it is competent, for the purpose of avoiding it, to show by parol evidence that the insurer knew at the time the insurance was effected of the facts constituting a breach thereof.
    Where a policy of insurance was issued upon a certain steamer “ on voyage,” and the insurance read, ‘'at and from Philadelphia to Frontera, Mexico,” an implied warranty is' created on tlie part of the assured, among other things, that the vessel, at the time of the issuing of the policy, was about to sail upon her voyage, subject only to such reasonable delay as should be proper and necessary to enable her to complete her loading and immediate preparations for the voyage, and in an action brought to recover the amount of such policy the question whether the delay of such vessel to start upon her voyage was reasonable, or unreasonable is ordinarily a question of fact for the jury to determine, unless the facts are undisputed, in which case the question of delay will be determined as one of law by the court.
    The fact that a vessel, after being insured for an ocean trip, before starting on her voyage took one or two trial trips, does not necessarily avoid the policy, and it is for the jury to say whether the trial trips were prudent or necessary where the vessel did not land on the trial trips so taken, and did not, during the trial trips, go out of the limits of the port in which she was at the commencement thereof.
    Motion by the defendant, The Great Western Insurance Company, for a new trial on a case containing exceptions, ordered to be heard at the General Term in the first instance upon the verdict of a jury in favor of the plaintiffs, rendered after a trial at the New York Circuit on the 25th day of January, 1891.
    The action was brought to recover the amount of an insurance policy issued by the defendant on the Dos Hermanos.

      Everett Hasten, for the plaintiffs.

      Prescott Hall Butler, for the defendant.
   Parker, J.:

On a. former appeal this court reversed a judgment in favor of the plaintiffs on the opinion in Thebaud v. Phœnix Insurance Company, a companion ease. Upon that trial plaintiffs proved that the Dos Hermanos, which was insured by the defendant, “ at and from Philadelphia to Frontera, Mexico,” was built for river navigation, and that she was staunch and strong for the purposes of river and smooth water navigation ; but no evidence was offered tending to show that any substantial precaution was taken to protect her against the dangers to which vessels of this construction were peculiarly subject upon the ocean, namely, the action of the sea upon her hull, nor was evidence offered tending to show that the plaintiffs, appreciating her structural weakness, had attempted to strengthen her for an ocean voyage, which the insurance was intended to cover. The court held that the facts did not permit a submission to the jury of the question of seaworthiness, for, indisputably, the voyage insured against was one for which the vessel was not structurally fitted, and there was an entire absence of evidence tending to show that any additional precaution had béen taken for the purpose of providing against the perils of a sea voyage.

The plaintiffs, upon the retrial, have introduced evidence bearing upon all the points which were discussed on the former appeal.

' (1) Plaintiffs offered evidence tending to show that the boat was a good, strong and well-constructed vessel of her class. Thomas M. Rees, who had much experience in the construction of similar vessels and was familiar with the peculiarities of their navigation, testified that the Dos Hermmios was much more strongly constructed than is usual with vessels of her kind. lie said that he constructed the Tres Hermanos, which was built from similar specifications as the lost Dos Hermanos, and to take her place, and that she was made fifty per cent lighter. Other testimony corroborating Rees as to the character of her construction was given by Lavendeyra, a-skilled engineer, who superintended her construction; by Captain Weir, the master of the vessel, who was familiar with vessels o'f this sort; by Captain Stuart, the defendant’s inspector, who was also an experienced engineer and who had examined the Dos Hermanos / and by Captain Swasey, who, in addition to making an examination of .her, had charge of her on the first trial trip.

• (2) Evidence was also presented for the purpose of showing that the Dos Hermanos was made as seaworthy for the ocean portion of the voyage as a vessel of her class could be made. Captain Stuart, who was at one túne defendant’s inspector, in response to the inquiry “ What, if anything, could be done to strengthen the vessel for the sea voyage, which she would necessarily encounter,” replied : Well, to protect her from seas that might break over her it is always well to shut her in with light joiner work, as far as possible, to protect the engines and boilers, and also to protect the vessel from heavy sprays, shipping seas, etc. By shutting her in I mean simply planking her up. She was a vessel with a single deck and houses above. Stanchions run up to the houses. Carry the houses over the top of the stanchions and inclose her with light material that don’t weigh her much, just to keep the sea from going in. I don’t know of anything more that could be done-for the protection of the vessel for a sea voyage.

That railing or inclosure ought to be extended to protect the boilers forward, and aft to the engines to protect the machinery also. I don’t know of any other protection that could be added to such a vessel. I don’t know of any, providing that covering is put on properly. That is the only means I know of as far as adding anything to it is concerned. If a railing composed of 3x3 scantling on both sides spiked to the deck stanchion were added to the boat, also partition aft nailed to the after stanchions, and carried up to the upper deck running athwartships were added, that, in my opinion, is the only thing that could be done to her to make the vessel as seaworthy as such a vessel could be made.”

All this, it appears from plaintiffs’ evidence, was done, and in addition cross timbers, x shape, were fitted under the hurricane deck, to stiffen it in the sea, and heavy wooden stanchions were placed in the hull beneath the deck to strengthen the vessel, and a breakwater fitted forward.

Touching the preparations intended to make her as seaworthy as possible for such a vessel to be, the witness Rees, to whom we have already referred, and who had built a large number of vessels of the same kind which were taken on similar voyages to the south, testified that nothing more could be done to make the vessel seaworthy. lie was supported in this position by the testimony of Captain Stuart, Captain Weir and Commander Field. The evi-. dence to which we have referred makes it apparent that the jury were entitled to find, as they have, under a proper submission by the court, that the boat was a well-constructed vessel of her class, and that while not a sea-going vessel, she was made as seaworthy, for the ocean portion of the voyage insured against, as it was possible to make a vessel of her kind. It further appears that defendant’s officer, who accepted this risk, knew that the vessel was not an ocean-going steamboat, but, instead, was constructed for river navigation only.

The first evidence tending in this direction was produced by the defendant, and consisted of the specifications in accordance with which the Dm Ilermcmos was then being constructed. These specifications were given to Mr. Smith, defendant’s vice-president, by the broker Bascom who made ajiplication for the insurance for plaintiffs, and they were retained thereafter by the defendant, and produced on the trial in response to a notice given by the counsel for plaintiffs. The first part of the specifications was as follows :

“ Specification of a Stern-wheel Steamer.
“Dimensions.— Length, 90 feet; beam, 22 feet; draught,loaded, 33 inches ; depth at side, 4 feet 3 inches.”

It is difficult to conceive of anything necessary to be added to the statement we have quoted, in order to assure those entirely familiar with the construction of vessels that the Dos Hermanos was not an ocean-going, steamboat.

Bnt if more were needed it was furnished by the details of the specifications, - which because of their length we refrain from quoting.

Whatever may be urged against the admissibility of the conversations had between the applicant for the insurance and the defendant’s representative, for the purpose of showing knowledge on the part of the insurer of the character of the vessel, certainly could have no force as against written evidence of this character, presented to the defendant as a necessary step in the application for insurance and retained by it for its protection. There was other evidence showing that the defendant not only understood the character of the vessel, but that an increased premium was charged. Captain Stuart, defendant’s inspector, prior- to the application for ,tlie insurance was upon the vessel Dos Hermcmos, and inspected her by request of the officer in charge. He testified that the vice-president, Mr. Smith, who accepted the risk, asked him whether he had seen the steamer, and what he thought of her, and he said in reply: “ I had seen it there at Goringes’ yard; I told him of course it was a fancy risk; I mean by that simply that she was built for the river trade, and I didn’t consider she was just the thing to attempt all weathers on the coast going around there. * * *

“ Fancy risk means there ought to be an excessive rate charged, something more than would be usual for an ordinary risk.”

It appears that the premium charged was about double the usual rate.

We have presented, then, a case where both the parties attempted .to'insure for an ocean voyage a vessel which they well knew was not intended for ocean navigation, and was not capable of being made seaworthy as a sea-going vessel, and it would seem that the only implication as to seaworthiness which could consistently arise from such intention would be, that 'the vessel should be made as seaworthy, for the voyage insured against, as a vessel of- her kind could reasonably be made.

It was intended to effect an insurance, and any other implication Would defeat such intention and amount to a fraud on the part of the insurer.

The evidence in this case, considered in connection with the inferences of fact, necessarily found by the jury, brings this action within Burges v. Wickham (3 Best & Smith Q. B. *669), in which case the policy was issued upon a vessel built at Liverpool for river navigation on the river Indus. On account of her construction the vessel was not fitted for ocean navigation. The insurance was sought to cover the risk of the voyage to Calcutta. In an action upon the policy to recover for the loss resulting, the plaintiff had judgment. In discussing the question involved the court said, in part: “ The warranty * * * must be construed in such a way as not to be repugnant to the general adven ture in which the parties were engaged. * * * If such an adventure is insured the underwriters, when fixing the rate of premium, consider what will be the risk if the ship be put in the shape in which she ought to be put on beginning such an adventure, but what that state is must depend on the whole nature of the adventure. The assured warrants that she shall be put in that state, but he warrants no more. * * * It is true that when it was all done it appears the adventure was more dangerous than an ordinary voyage to India, but the assured do not in any case warrant the prudence of the adventure — that is for the underwriters to consider when fixing the premium, and to enable them to do so the assured are _ bound to disclose every material circumstance.”

Clapham v. Langton (5 Best & Smith Q. B. *729) was a declaration on a policy of insurance on a ship “ at and from the Tyne to Odessa or another port in the Black Sea,” the length, breadth, draught and tonnage whereof were specified in a memorandum on the face of the policy at the time of making the same. Issue was joined on the plea of unseaworthiness. On the trial it appeared that, before the execution of tlie policy, the plaintiff wrote letters to the defendant describing the dimensions of the ship, and stating that she was a new iron steamer, and took no cargo, only coal enough for her use - to Gibraltar. The ship was intended, after accomplishing the voyage, to be employed in river navigation only, and was, as to her hull, built and adapted to such navigation exclusively, and could not by any strengthening appliances be rendered fit to encounter the ordinary perils of the voyage; but, before commencing the voyage, certain appliances were put into and upon her hull to assist her in encountering the perils of the voyage.

The lord chief justice instructed the jury, “That if in their opinion the plaiutiff had, before the execution of the policy, brought to the knowledge of the defendant the nature and description "of the vessel intended to be insured, and the more than ordinary risk that such a vessel would necessarily encounter on the voyage insured, and if in their opinion the vessel at the time of commencing the insured voyage had been and was by the strengthening appliances put into and upon her hull, made as seaworthy for the insured voyage as a vessel of such a nature and description could reasonably be made, they should find a verdict for the plaiutiff on that issue.” The jury having found for the plaintiff, an appeal was taken, which resulted in an affirmance of the judgment on the authority of Burges v. Wickham (supra).

It should be said that in Olapham?s case no opinion whatever was expressed upon the question whether parol evidence as to the character of the vessel was admissible, to qualify an ordinary warranty of seaworthiness in a policy, and it may have been that the fact that the policy contained the dimensions of the vessel, showing that it could not possibly have been seaworthy as a sea-going vessel, had a controlling influence in bringing about the decision made, but the fact appears that j>arol evidence as to the character of the vessel was received by the trial court, and on the appeal Blackburn, J., contended that an ordinary Avarranty of seaworthiness could not be qualified by evidence of that character, hut upon that proposition the court expressed no opinion. Our attention is not called to any case in this jurisdiction Avhere this question has been- considered, but in fire insurance cases the Court of Appeals has held that even where there is an express warranty it is competent, for the purpose of avoiding it, to show by parol evidence tliat the insurer knew at the time of the facts constituting the breach. It is difficult to discover any principle upon which a distinction between the two classes of cases can be found. In the case of Bidwell v. North Western Ins. Co. (24 N. Y. 302) parol evidence was admitted to show scienter on the part of the assurer at the time of the application, and the court says : “ Indeed, it is not easy to perceive why an insurance company, by reason of the formal words or clauses (of a general and comprehensive nature) inserted in a policy, intended to meet broad classes of contingencies, should ever be allowed to avoid liability on the ground that facts of which the company had full knowledge at the time of issuing the policy were then not in accordance with the formal words of the contract or some of its multifarious conditions. If such facts are to be held a breach of such a clause they are a breach eo instanti of the making of the contract and are so known to be by the company as well as the insured, and to allow the company to take the premium without taking the risk would be to encourage a fraud.”

In each of the cases of Van Schoick v. Niagara Fire Insurance Company (68 N. Y. 434); Woodruff v. Imperial Ins. Co. (83 id. 133), and Short v. Home Ins. Co. (90 id. 18), oral evidence was received showing a situation in contravention of an express warranty contained in the policy, and that the insurer had knowledge of such situation when the policy was issued. Evidence of this character was received, not for the purpose of contradicting the written agreement, but to demonstrate tliat the insurer had knowledge of the facts at the time the policy was issued, which it relied upon on the trial as constituting a breach of warranty. Upon such proof was predicated an estoppel, the object of the rule being to prevent fraud, and to render it impracticable for insurers to attempt acquisition of premiums upon policies understood by them to be invalid when issued.

The defendant further contends that the plaintiffs were not entitled to recover because of the vessel’s delay in going on the voyage after the issuing of the policy. The statement or title of the policy was “steamer on voyage,” and the insurance was “at and from Philadelphia to Frontera, Mexico,” which constituted an implied warranty on the part of the assured, among other things, that the vessel, at the time of the issuing of the policy, was about to sail upon her voyage, subject only to such reasonable delay as should be proper and necessary to enable her to complete her loading and immediate preparations for the voyage. When a delay, which is relied upon by the insurer to avoid a policy, occurs in the ordinary course of loading and unloading, and making such preparation for the voyage as the insured deems necessary and proper, the question whether the delay is reasonable or unreasonable is ordinarily a question of fact for the jury. (Mount v. Larkins, 8 Bing. 108 ; Arnold v. Pacific Mut. Ins. Co., 78 N. Y. 7.)

But the defendant urges that where the delay is occasioned by circumstances outside of the ordinary course and procedure of the voyage insured against, which amount to a distinct change of risk, or which in the nature of the Aoyage necessitates a non-fulfillment of any of the warranties expressed or implied on the part of the insured, the delay avoids the policy.

The defendant cites the following statement of the rule from Arnould on Marine Insurance (5th ed. 484) : “ In short, whenever the delay exists an unreasonable time, or is hicurred for purposes unconnected with the true object of the voyage insured, it will amount to a deviation.”

In the former case it is said whether the delay is reasonable or unreasonable is for the jury, but in the latter, that if the facts are undisputed, a question of law is presented for the court.

This rule has been frequently the subject of application by the courts and discussion by text writers. (3 Kent’s Com. 313; Arnould on Marine Insurance, §§ 223-405, 457-484; Williams v. Shee, 3 Camp. 469; Hermann v. Western M. & F. Ins. Co., 13 La. 517; Natchez Ins. Co. v. Stanton, 10 Miss. 340; Matter of Ewmark, 1 Sum. 400 ; Hammond v. Reid, 4 B. & Ald. 72 ; Tasker v. Cunninghame, 1 Bligh, 87.)

The evidence conclusively establishes that the risk of taking a vessel of this character to Frontera is far greater in September than in July.

A number of witnesses testified, and without any contradiction whatever, that the risk was greater in August than in July, and greater in September than in August.

The policy of insurance was issued June twenty-eighth, and not until August twenty-seven tli did. the Dos Hermanos start on her voyage. Thus there is before the court evidence tending to show that the risk was in fact enhanced by the delay; but, entirely independent of that fact, the defendant contends that the delay was not in the ordinary course and procedure of the voyage, but was occasioned by circumstances outside of those contemplated by the contract of insurance, “ at and from ” one port to another, and, therefore, the policy was avoided. But, as we read the decision in Fernandez v. The Great Western Ins. Co. (48 N. Y. 571), it is directly in point and against defendant’s position. In that case defendant insured plaintiff’s vessel, then lying in the port of New York, undergoing repairs, “at and from New York to Havana.” Evidence was given to show that the underwriter was informed that the vessel was'undergoing extensive repairs, and was being thoroughly remodeled ; .the court said : “ The insurance covers the vessel while in port preparing for her voyage. The rule is that such delay must he for a reasonable time only. * * Were there no excusing facts in the case, a delay of 45 days in the clearing of a ship, whose intended voyage would occupy only five or six days, would appear to be unreasonable. * * If} on the -other hand, the vessel was in good order for river navigation, but was being remodeled and substantially rebuilt to fit her for an ocean steamer, several weeks might well be exhausted in that duty. Again, this vessel while under repairs, met with various disasters and calamities which delayed her completion. I cannot discover such a state of facts as, upon the principles of law laid down by the appellants, would justify the court in saying that, as matter of law and necessarily, there was a breach of the warrant}’' that the vessel should sail in a few days. The jury might have so found, but the question was not submitted to them and neither party asked that it should be.”

It is clear that under this decision the facts in the case under review presented a question for the jury whether the delay was for an unreasonable time, and the court did not err in refusing to hold, as matter of law, that the delay constituted such a deviation as to avoid the policy.

The Fernandez case is cited by the defendant as authority for its further contention that the trial trips of the steamboat Dos Hermanos constituted such a deviation as to avoid the policy.

In that case, after the policy had been issued, the vessel went on a trial' trip to Elizabeth, N. J., a distance of sixteen miles, to test her engines, and to take on coal. After being loaded she returned to New York, subsequently sailed to Havana, and while prosecuting her voyage was destroyed by fire. The court held that the trip to Elizabeth -was in violation of the terms and conditions of the policy and operated to avoid it,'because not excused on the ground of necessity. The plaintiffs sought to obviate the difficulty by the argument that the trip to Elizabeth was a trial trip, but to this the court made answer: “ No necessity is shown for the vessel in this case to go out of the limits of the port of New York. Apparently, she could have been tested as well by going down the bay to Staten Island as by going to Elizabeth. * * * The opportunity to test her fitness for the sea could have been perfectly attained without going to another port, in another state, at a distance of eighteen or twenty miles.” Thus was recognized the necessity of trial trips for new vessels, which are both usual and customary. The trial trips of plaintiffs’ boat seem to have been of this character. On the first one defects were developed which necessitated their correction, and the engineer directed a second trial trip, which was taken down the • river.

The vessel did not land on either of the trips, and the testimony of the witness Tucker was to the effect that the vessel did not.go out of the limits of the port of Philadelphia.

The most favorable view of this question which the trial court could have taken for the defendant was, that it was for the jury to say whether the trial trips were prudent or necessary, and the defendant is without exception to the charge of the court in such respect.

Defendant’s exceptions should be overruled, and judgment directed for the 'plaintiffs upon the verdict, with costs.

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

Exceptions overruled and judgment directed for plaintiffs upon the verdict, with costs.


source: Caselaw Access Project

author: O’Brien, J.:

license: Public Domain

text:
    The Jewelers’ Mercantile Agency (Limited), Respondent, v. The Jewelers’ Weekly Publishing Company (now The Trades Weekly Company) and Others, Appellants.

      •Oopyriyhts — jurisdiction vested in the Federal courts — common-law property rights of an author enforced in the State courts — obtaining a copyright when a book is published— what is not a dedication thereof — hearsay evidence — objections first taken on appeal.

    It seems that the statute conferring jurisdiction upon the Federal courts in cases relating to copyrights does not affect any pre-existing- jurisdiction which exists at common law, independently of all statutes.
    Where a person seeks a remedy under the Copyright Law, for an injury to property rights secured thereby, the United States courts have exclusive jurisdiction, but when no remedy is sought under the Copyright Law, and the plaintiff stands upon his common -law rights, it seems that the Supreme Court of the State of New York has jurisdiction of the subject-matter of the action.
    Although the initiatory steps have been taken with a view to acquiring a copyright, it is essential to the procuring of if that a publication bo made within a reasonable time after entry of the title, and the deposit of two copies of the book in tlie office of the Librarian of Congress.
    A book is published when printed copies are sold unconditionally to the public. To constitute a publication it is essential that the work be exposed for sale or gratuitously offered to the general public, so that the public, without discrimination as to persons, may have an opportunity to enjoy that for which protection is granted.
    Printing in itself cannot amount to a publication, for the obvious reason that a book may be withheld from the public long after it is printed.
    The books deposited in the office of the Librarian of Congress, with a view to obtaining a copyright thereon, cannot pass into general circulation, their use being specially restricted by statute — while there may be free access-by the public thereto with the right to the inspection thereof, the right to take copies of the same and thus deprive the author of his property rights thereto is not permitted, and there is not, by reason of such deposit, a public dedication of the book.
    An author or compiler has the right to his literary property at common law without respect to the copyright statutes, and although such right may be lost by publication, yet a person may print any number of copies of which he remains the owner, and by contract may so restrict their use by those to whom he lends them, as to retain his original rights therein.
    A motion to strike out evidence given upon the trial of an action on the ground that it was hearsay is properly denied, if upon the admission of such evidence the only objection made to the reception thereof was that the evidence was immaterial and such objection was properly overruled.

      It is not permitted upon tbe trial of an action to take a general objection to tbe reception of evidence, which is not good, or speculate upon wliat a witness may testify to, and then, if the testimony be not agreeable, to move to strike out such testimony, or upon appeal to destroy be effect thereof by presenting specific objections which would have been good had they been presented at the time the testimony was given.
    ' Appeal by the defendants, The Jewelers’ Weekly Publishing Company (now The Trades Weekly Company) and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 23d day of May, 1894, upon the decision of the court, rendered after a trial at the New York Special Term, adjudging that the plaintiff has the exclusive property rights in certain reference books and confidential sheets, and that the defendants have violated such property rights, and restraining the defendants from using such books, and sheets.
    ■ Leopold Sondheim, for the appellants. .

      Howard Mansfield, for the respondent.
   O’Brien, J.:

The judgment appealed from enjoined the defendants from making any use of the plaintiff’s reference books or confidential sheets, and from copying, appropriating, printing, publishing or using in any way information taken therefrom, or furnishing such information to others. Such judgment, is based on the following facts found by the court

The plaintiff, a domestic corporation organized in 1883, has ever since been engaged in the business of a mercantile agency, which consisted in obtaining from various sources information regarding the places of business, street addresses, particular kinds and extent of business, commercial standing and mercantile credit of individuals, firms and corporations engaged in the jewelry trade throughout the United States and Canada, and in furnishing confidentially for the use of subscribers such information. This information, obtained at considerable expense, is twice a year printed in the form of a reference book, which is furnished exclusively for the use of plaintiff’s subscribers. A duplicate of smaller form is furnished upon like conditions. These books are leased to subscribers upon a contract printed in each, which restricts the use of the book, and requires its return to the plaintiff, no copy of the book ever being sold. The plaintiff also issues weekly to subscribers a confidential sheet of changes and corrections furnished subject to the conditions of subscription.

The defendant corporation was organized in January, 1891. This corporation took over the business which before had been earned on by the defendant Rothschild, and still earlier by both of the individual defendants. Some time prior to the incorporation the individual defendants had been subscribers to the plaintiff’s book, but their subscription ended in 1886, and was not renewed. Prior to the defendant’s incorporation, one Keller suggested to Rothschild the issue of “A Jewelers’ Weekly Complete Directory,” and he was permitted to undertake the compilation of the book, without special oversight on the part of Rothschild or other officers of the corporation. Much of the information thus compiled was obtained by copying names and addresses from directories belonging to the Trow Directory Company, except for those States of which that company had no directory; and in respect to these a list of jewelers was furnished which, according to the statement of a manager of the directory company, was purchased from a lady named White without inquiring as to where she got it. This book, when printed and issued, was sold for three dollars a copy, and came in direct competition with plaintiff’s reference book, for the use of which plaintiff received ftom subscribers seventy-five dollars a year.

Plaintiff’s claim, in substance, is that the defendants unlawfully took and appropriated from its reference book, issued confidentially to its subscribers in July, 1890, certain information which was incorporated in the compilation prepared by Keller. In support thereof evidence was offered tending to show that numerous errors of fact, which had crept into the plaintiff’s reference book of July, 1890, appeared in the defendant company’s book. Fifteen such instances in the State of New York were testified to in detail. Some of these consisted of misspelt names and of the placing of names out of alphabetical order, which errors were identically the same as in the defendant company’s book. On behalf of the defendants, in addition to testimony as to the sources from which the information was derived, already alluded to, evidence was offered to the effect that in June, 1890, the plaintiff deposited in the copyright office with the Librarian of Congress the title of the plaintiff’s reference book of July, 1890, and on the same day deposited in the office of the Librarian of Congress two copies of said reference book, and printed on the page following the title piage tlie following notice : ■ “ Entered according to Act of Congress, in tlie year 1890, by Tlie Jewelers’ Mercantile Agency (Limited), in the office of tlie Librarian of Congress at Washington.”

Upon such testimony, and the evidence appearing and the books themselves, the court below found that the defendant corporation’s hook contained material information, directly copded or otherwise appropriated from the plaintiff’s confidential reference hook, and that the information so copied and appropriated formed an important and necessary piart of the defendant corporation’s directory; that such acts, unless restrained, would he a substantial injury to tlie plaintiff in its business, and directed the entry of tlie judgment appealed from.

To obtain a reversal of such judgment the defendants insist: (1) That this court has not jurisdiction -to grant any relief in this action, because the work from which it is claimed information was wrongfully taken is a copyrighted work ; (2) that this action cannot be maintained by the plaintiff, because it has lost any literary property it ever liad in its reference book of July, 1890, by publishing the same; (3) that no information contained in the defendant’s hook was ever obtained by it or its agents in any way from any of the plaintiff’s hooks of July, 1890, or from any of its hooks or sheets; (4) that the complaint against Rothschild and Ulman must be dismissed on tlie merits, as the plaintiff offered no testimony to substantiate its charges made against them in its complaint.

Fwst. Upon tlie question of jurisdiction. The plaintiff did not, in its complaint or upon the trial, invoke the Copyright Law or seek a remedy for a violation of its copyright; it stood upon its common-law right to unpm Wished material in which it insisted it had always retained exclusive property. It is not necessary for us to determine whether, had it obtained a copyright, and waiving its remedy thereunder, it could stand upon its common-law right, though there appears to be authority for the proposition that the statute conferring jurisdiction in eases relating to copyrights upon tlie Federal courts does not affect any pre-existing jurisdiction which exists at common law independently of all statutes. (Isaacs v. Daly, 7 J. & S. [39 N. Y. Super. Ct.] 511; Palmer v. De Witt, 47 N. Y. 532.) In the latter case it is said : “ But if jurisdiction is, by the statute, conferred upon the Federal courts in a case like this, the act does not purport to and does not make the jurisdiction exclusive, or deprive-State courts of jurisdiction in actions, legal or equitable, touching the common-law rights of authors. At most, the statute gives parties within its provisions and not claiming the benefits of a copyright under the laws of the United States, a cumulative remedy and a choice of tribunals. The jurisdiction of the State courts in cases in which it had before been exercised was not taken away or in any respect impiaired.”

There is nothing inconsistent with those cases in that of Potter v. McPherson (21 Hun, 562), relied upon by the appellants, which holds that “ if the book has been copyrighted under the law's of the United States, while that would secure to the plaintiffs the right to restrain its publication by the defendant under those law's, it would not afford this court jurisdiction over the subject-matter of the controversy.” Potter v. McPherson is authority for holding that where the plaintiff seeks a remedy under the Copyright Law for an injury to property rights thus secured, the United States courts have exclusive jurisdiction. "Where, however, as here, no remedy is sought under the Copyright Lawq but the plaintiff is standing upon its common-law rights, this court seemingly would have jurisdiction.

It is unnecessary for us authoritatively to decide this question, however, for the reason that no copyright was secured by the plaintiff. It is true that the initiatory steps were taken with a view' to acquiring such rights, but the failure to make a publication essential to obtain a copyright prevented the securing of the same. As held in Boucicault v. Hart (13 Blatchf. 47), publication must be made within a reasonable time after entry of the title and deposit of the-two copies. And, for a definition of publication, we find it stated in Drone on Copyright (p. 291): A book is pmblished when printed copfies are sold unconditionally to the public. * * * To constitute a publication it is essential that the work shall be exposed for sale or gratuitously offered to the general public, so that the public, without discrimination as to persons, may have an opportunity to enjoy that for which protection is granted. Printing itself cannot amount to a publication, for the obvious reason that a book may be withheld, from the public long after it has been printed.” We think, therefore, that as the plaintiff never secured a copyright, and as this would prevent the relief it has sought upon an application to the Federal courts, this court had jurisdiction to entertain the action and upon suitable proof to grant relief.

This conclusion to some extent disposes of the appellants’ second assignment of error, that plaintiff, by reason of publishing its reference book in various ways, had lost any literary property it ever had therein. Thus it is insisted that by the deposit in the library of Congress of the two copies of the book the plaintiff made a complete, formal and solemn dedication of it,.to the public; and to support this our attention is called to the Revised Statutes of the United States, which recite what books shall compose the library of Congress, and who shall be entitled to access thereto, from which the conclusion is sought to be induced that because public inspection is allowed, and to certain persons and upon certain conditions a loan of such books may be made, this, by constituting such library a public library, operated with respect to such books deposited therein as a public dedication. The answer seems to be that books so deposited cannot pass into general circulation, their use being specially restricted by statute; and' though it is true that there is a clause in the regulations of the library allowing the loaning of books upon deposit of the value thereof, this, as shown by the instructions given to the librarian by the joint committee of Congress on the library, has been expressly declared to be contrary to law. With respect to books so deposited, while there may be free access by the public and a right to inspect the same, this does not include the right or authority to take copies and thus deprive the author of his property rights therein. In other words, the distinction is clear between the right of inspection and the right to copy and use such books.

Apart, however, from this, the appellants insist that plaintiff has lost its common-law right to any literary property it ever had in its reference books, by printing and offering them to anyone who would become a subscriber, and that the mere making of a contract with tlie-subscriber to return the book and keep the information confidential is not sufficient to make the publication a restricted one. In this we think the appellants overlook the facts appearing, that the book was never sold, and that its use was restricted; and though printed and issued to subscribers, this was not such a publication as would destroy the plaintiff’s original property rights in the book. We think the authorities amply support the respondent’s view that both in England and in this country an author or compiler has the right to his literary property at common law 'without respect to the copyright statutes, and that, although such right may be lost by publication, yet a person may print any number of copies of which he remains the owner, and by contract may so restrict their use by those to whom he lends them as to retain his original rights. This has been repeatedly held to be the law with respect to trade and other directories. (Kelly v. Morris, L. R. [1 Eq.] 697; Morris v. Ashbee, 7 id. 34; Prince Albert v. Strange, 1 Mac. & G. 25 ; Palmer v. De Witt, 47 N. Y. 532; Gold & Stock Tel. Co. v. Todd, 17 Hun, 548; Kiernan v. Manhattan Quotation Tel. Co., 50 How. Pr. 194; Tabor v. Hoffman, 118 N. Y. 30, 34; High on Inj. §§ 994, 996, 1011.) Nor do we think that the selling, or offering to sell, the names and addresses contained in the books on envelopes sent by it to non-subscribers would constitute a publication so as to destroy the plaintiff’s literary property in such books.

The contention that there is no competent evidence to show that the defendants have incorporated in their directory information obtained from plaintiff’s reference book is equally unfounded. The similarity of errors appearing in the two books could not be explained upon any theory of chance, and the number of such errors, coupled with evidence showing that the defendants Rothschild and Ulman had been guilty of a similar offense as against this same plaintiff prior to the formation of the defendant company, into which they entered as officers, if they were not the actual promoters and guiding spirits, ■ amply justified the conclusion reached, that with respect to information which could not be obtained from Trow’s State directories, the company’s agent, Keller, directly or indirectly, obtained the information from plaintiff’s reference book. In this connection the defendants named, having been shown to have been the principal incorporators of the defendant corporation, to which the business previously owned by both, and which had passed into the hands of one, was transferred, the judgment against them in the plaintiff’s previous action, brought for a similar purpose, was admissible, if for no other reason than as showing knowledge on their part of jilaintiff’s rights, and upon the question of whether or not such incorporation was resorted to with a view of avoiding the effect of the judgment, in this action, which was one of the charges made in the complaint.

In regard to testimony as to the correct spelling of the names of jewelers, such evidence when first offered was objected to upon the ground that the plaintiff’s book in which the names were contained was copyrighted; and this objection, which was made not only to such testimony, but to the plaintiff’s books themselves, was of course properly overruled for the reason already stated, that the court had jurisdiction. So the objection to what the witness said as to how one of the jewelers was doing business, if placed upon the ground of hearsay, might have been good. But the objection to such evidence was that it was immaterial; and, in view of the issues, the ^act which such evidence was elicited to prove was very material. It is true that at the close of the testimony in which instances in the State of New York were given of misspelt names, a motion was made to strike out as hearsay all the evidence as to what was told the witness by persons whom he saw as to their correct names. But this motion was properly denied, and for the reason stated by the trial judge, that no objection to the admission of such testimony was taken when offered. It will not do to take a, general objection which is not good, or speculate upon what a witness may testify to, and then if not agreeable to the one against whom the testimony is given, move to strike out such testimony, or, upon appeal, seek to destroy the effect thereof by presenting specific objections which would have been good had they been presented at the time the testimony was given.

The only serious question presented is, whether upon the testimony which was amply sufficient to sustain the judgment as against the company, there was enough to support the complaint as against the defendants Rothschild and Ulman. The court, in two of- its findings, inadvertently finds that from March, 1881, until the incorporation of the defendant company in the month of January, 1891, these defendants were engaged in publishing a newspaper circulated in the jewelry trade and kindred trades, which, at the latter date, was transferred to the defendant corporation. Also, that between these dates Rothschild, on behalf of himself and the defendant Ulman, employed Keller to compile the directory. Upon these points the testimony of the defendants, which was not controverted, shows that Ulman and Rothschild were partners until the summer of 1889, when the latter became sole proprietor of the Jewelers' Weekly, and it was during this period that Keller suggested the idea of the “Jewelers’ Weekly Complete Directory,” which was the compilation that plaintiff complained of. These findings, however, are not of sufficient importance to justify a reversal or modification of the judgment, there being sufficient in the record to show that one of them at least, when the suggestion as to the compilation was made by Keller, frankly avowed that he did not see how it could be done without resort to plaintiff’s reference book, which Keller claimed wasmot necessary; yet, without any supervision or examination, he permitted him to proceed with the compilation and adopted his work, which, in part, consisted of pirating information, which was the property of the plaintiff, and this compilation was adopted, printed and used by the defendants for their own benefit and to the detriment of the plaintiff. The argument that such testimony would bear equally against the other officers of the defendant company and would be as good against them as against the defendants specifically enjoined, may be true, but it would not from this follow that because the plaintiff had not enjoined them it was not entitled to relief against those whom it had made individual parties to the action.

Apart, however, from this, we think that the prior conduct of these particular defendants, Uhnan and Rothschild, the former judgment obtained against them for a similar offense, and what seems to have been the well-grounded view of one of them that the compilation could not be completed without resort to the plaintiff’s book, place them in a little different position from the other officers of the company.

Upon the whole case, we think the conclusion of the trial judge, that the plaintiff had exclusive rights of property in its book and in its confidential sheets and their contents, and that the publication by the defendant corporation in its directory of information, copied or appropriated from the plaintiff’s reference book issued confidentially to its subscribers iu July, 1890, was a violation of tbe plaintiff’s right of property, and tended to produce and continued to produce substantial injury to it, for which the plaintiff had no adequate remedy at law, was right and justified the issuance of the injunction. As said upon the argument, exclusive of the question of costs, which, as compared with the labor and expense entailed upon the defendants by the preparation of the record and of this appeal, was not serious, we fail to see, if the defendants’ disclaimer of taking the plaintiff’s property was sincere, how they would be injured by the injunction. The reason for the appeal, we think, may be furnished in the more strenuous arguments advanced, seeking for an adjudication that would leave them free to utilize' the work and business which, at great expense, the plaintiff had created, and which adjudication, -if in their favor, would résult to their great advantage and corresponding injury to the plaintiff.

The judgment, which has determined that -they have no such right to appropriate tire plaintiff’s property, is supported, and, we think, in all respects right, and should be affirmed, with costs.

Van Brunt, P. J., and Follett, J., concurred.

Judgment affirmed, with costs.


author: Van Brunt, P. J.:

text:
    Wylie H. Vilas, as Assignee of Frank L. Froment, Appellant, v. The Allentown Rolling Mills, Respondent.

      Mstoppel — in favor of a Corporation or its selling agent — •general objection — when not available on an appeal — objection to the judges charge.

    Where a corporation and its selling agent are the same, so far as a person with whom they are engaged in buying and selling merchandise is concerned, the receipt by such person of ap evidence of indebtedness from either the corporation or its selling agent, does not operate as an estoppel in favor of the other.
    A general objection is not available upon an appeal if it appears that, had a special objection been taken upon the trial, the error could have been there remedied.
    Upon an appeal from a'judgment in favor of the defendant, the plaintiff cannot present in the appellate court for the first time the objection that the charge of the trial judge was erroneous, on the ground that it referred to a defense not pleaded.

      Appeal by tbe plaintiff, Wylie II. Vilas, as assignee of Frank L. Froment, from a judgment of the Supreme Court in favor of the defendant, entered in thd office of the clerk of the county of New York on the 17th day of May, 1894, upon the verdict of a jury rendered after a trial at the New York Circuit, and also from an ordered entered in said clerk’s office on the 15th day of June, 1894, denying the plaintiff’s motion for a new trial made uj>on the minutes.

      B. J. Mahon, for the appellant.

      J. B. Leavitt, for the respondent.
   Van Brunt, P. J.:

This action was brought by Frank L. Froment to recover of the defendant a balance alleged to be due on account of goods, wares and merchandise claimed to have been sold by him to the defendant.

The answer admitted the purchase of a small amount of goods from Froment and alleged payment for the same, and for a further defense it alleged an agreement between the said Froment, as the agent of the Blandón Iron and Steel Company, and the defendant, whereby it was agreed that the defendant should sell pig iron to the said Blandón Iron and Steel Company, and that the company should sell bar iron to the defendant, and that such sales should offset each other so far as the amounts thereof should go, and that by virtue of said agreement it had an offset against the amount alleged by the plaintiff to be due in the sum of $950.02.

Prior to the trial of the action the plaintiff, as assignee of Froment, was substituted as plaintiff herein. Upon the trial evidence was given upon the part of the plaintiff and of the defendant, and the question of the agreement alleged in the answer was submitted to the jury, who returned a verdict in favor of the defendant. From the judgment thereupon entered and from an order denying a motion for a new trial this appeal is taken.

The main ground on which error is alleged upon this appeal is that the alleged fact that Froment was the principal in the sales was established beyond intelligent doubt and that the verdict is against the weight of evidence. Upon a consideration of the evidence in this case, instead.of such evidence establishing the fact that Froment was the principal in these sales beyond intelligent doubt, we are of the opinion that the jury could have come to no other conclusion than that Froment and the Blandón Iron and Steel Company, so far as these transactions were concerned, were one and the same thing.

It is to be noticed that Mr. Froment was a stockholder of this company, that the treasurer of the company was a clerk in his office, and that the letters upon the part of Froment and the Blandón Iron and Steel Company were written from New York indiscriminately, sometimes being signed by the company, per Tilton, and sometimes being signed in the name of Froment by Tilton.

It appears upon an examination of this testimony that Froment sold all the output of the Blandón Iron and Steel Company, and throughout his correspondence with the defendant in respect to this matter he speaks of the Blandón Iron and Steel Company’s mills as “ our mills ” and “ my mills.”

It is true, when asked in respect to the expression “ for my mills,” Froment said that he did not mean the Blandón mills. And when asked the question: “ By your mills you meant the Blandón mills ? ” he answered, I cannot say now; that is two years ago.” But it is manifest that this witness is entirely disingenuous, and that he knew perfectly well that at the time of writing the letter in question he meant the Blandón mills. The agreement alleged in the answer is stated to have been made on the 30th of April, 1891.

It was admitted by Froment that some of the conversation in reference to the bar iron manufactured by the Blandón mills and the pig iron to be sold by the defendant was had. He was asked: “ Q. Do you mean to say that in that conversation with Mr. Allison (who represented the defendant) there was nothing said between you and him upon the subject that the bar iron which his company should buy either from you or the Blandón Company should be offset or paid for by iron which his company should sell to the Blandón Company? A. No, sir; no such conversation. Q. Do you mean to say that you never told Mr. Allison, in any way, that you and the Blandón Company were willing to take in payment for iron which you or the Blandón Company would sell to the Allentown Company, pig iron in return ? A. I cannot. Q. Will you swear you never said to Mr. Allison that you were willing to take in payment for iron which you or your company might sell to the defendant, pig iron, which they might deliver to the Blandón Company? A. I could not answer that question. Q. Was there no such conversation or talk ? A. Conversation such as I have stated here. Q. State it over again. A. I told Mr. Allison if he did not wish to pay me the money he might ship iron up to Blandón and he did, and the Blandón Company paid me for that. Q. Did you tell him he might ship iron up to the Blandón Company for the iron he owed you? A. Yes. Q. Was it not talked of between you, that for any iron he might order from you, he might ship iron to the Blandón Company? A. No, sir; that depended upon whether we wanted iron. Q. Did not you tell him you would send him iron from the Blandón Company and accept iron'from his company in payment? A. Yes, to a certain extent, if the price was right. Q. Was it not understood between you as honorable men that the iron which one company would send to the other company would be offset by the iron the other company would send? A. No, sir.”

In another part of the cross-examination the witness was asked this question: Do you mean to say at the interview April 30th, 1891, you did not say to him you would give him best refined iron and take from him pig iron in return ? A. I said if he filled his orders for bar iron. Q. Will you tell the jury whether you said you would accept in. payment the pig iron? A. Yes. Q. Inpayment of the bar iron which you sold him ? A. I sold him none then. Q. Do you understand 'my questioh ? A. Yes. He did not know whether he wanted any. Q. Did not you tell him if he would want it yon would accept pig iron in payment? A. Yes, if he would give it to me. Q. Did not he always give it? A. No; sent cash several times, and sent checks sometimes.”

This evidence shows beyond question that the statement which the witness had sworn to at first, that he had had no conversations with Allison with respect to this matter, was absolutely untrue, and known by him to be untrue. And it is not at all remarkable that the jury, in view of the testimony of this witness as to what took place on the 30th of April, 1891, should have placed no confidence in his evidence thereafter. It is manifest from the correspondence and' from the testimony, that Froment and the Blandón Iron and Steel Company considered themselves as one and the same concern, lie sold the whole of their output and received a commission of two and one-half per cent upon such sales. Orders came from and through him, and. it was • he who conducted all the business of the corporation. In view of the nature of all the evidence it would be difficult to say that Froment was not acting on behalf of the Blandón Iron and Steel Company at this time; and if he was not so acting, then the jury have found, and the evidence clearly supports the finding, that there was an understanding between Froment and the defendant that for all the goods it received of the Blandón mills manufacture it might repay the sainé by .the,delivery of pig iron to the Blandón Company.

It appears from the evidence that, for the alleged balance of $950.02 claimed as an offset, the defendant had accepted a note of the Blandón Company which had not fallen due at the time of thq failure of said company, and it is claimed upon the part of the , plaintiff that the acceptance of this note and Froment’s payment to the company after such acceptance created an estoppel against the alleged set-off. We are unable to see the force of this position. Froment and the Blandón Company being the same so far as this defendant is concerned, the receipt of an evidence of indebtedness from either would not operate as an estoppel in favor of the other. The ground of the estoppel is based upon the claim, which at one time in his testimony Froment asserted, that he only assented to the delivery of pig iron to the Blandón Company as long as he was paid therefor by the Blandón Company. But in his testimony he was compelled to recede from this position, and he had to admit that he told Mr. Allison, the representative of the defendant, that if he wanted, he would accept pig iron in payment so" long as he would give it to him, which pig iron was to be delivered to the Blandón Company — a feature in the transaction which is entirely inconsistent with any theory of estoppel.

It is perfectly clear from the whole of this evidence that the defendant believed that it was dealing with the Blandón Company; that Froment was merely its selling -agent, and that Froment knew such to be the fact. Vnd such was the fact, Froment representing to the defendant at the time of the making of this arrangement tliat these mutual offsets were to take place, and claiming no individual interest in the transaction.

It is true that in some parts of the correspondence he speaks of himself, and if these letters stood alone they might support the claim that Eroment was the principal. But when all are taken together it is plainly manifest that Froment was only the agent of the Blandón Company, selling perhaps under a del eredere commission. There is no pretense but that he had a right to represent the Blandón Company, -and until it became necessary to separate their interests for the purpose of avoiding the claims of offset, there seems to have been no method of determining whether Froment was acting for himself or the Blandón Company in any of these transactions. It was of no moment, then; but when the necessity arose Froment was equal to the emergency, and swore that he had no arrangement in regard to the ¡jayment for Blandón iron by the defendant’s pig iron, and then was compelled to admit that such an arrangement existed.

The only other point which it is necessary to consider is the alleged error in the judge’s charge. The court charged as follows: “ Even if the plaintiff’s assignor, Froment, did own the goods in question, and was the person who sold them to defendant, yet, if this was done pursuant to any arrangement between said Froment and defendant’s treasurer, Allison, whereby it was agreed that defendant should sell pig iron to the Blandón Company and the Blandón Company should sell bar iron to the defendant, and that such sales should offset each other so far as the amount thereof should go, then the defendant would be entitled in all fairness and honorable dealing to offset its claim against the Blandón Iron & Steel Co. against the claim of Froment for the goods in suit.”

This portion of the charge was excepted to, and it is claimed to have been substantially error, inasmuch as it refers to a defense not pleaded and not even suggested in 'the answer; that the only contract alleged was stated as having been made by the Blandón Company, and that there was not an intimation in any part of defendant’s case that Froment acted as principal, or made any contract as principal, and that if any evidence in the case could be construed as tending to prove aii individual contract by Froment to give bar iron to the defendant, in consideration of defendant sending pig iron to tlie Blandón. Company, it would not be available under the pleadings, and that no motion was made to amend the answer or to make it conform to any alleged proof.

In answer to this objection it is sufficient to say that there was ample evidence in this case to show that if Froment was acting in liis own behalf in the sales of Blandón iron, an arrangement had been made that such sales were to be repaid by the furnishing by tlie defendant of pig iron to the Blandón Company, and that such evidence was submitted to tlie jury without objection, and in such submission the question in regard to the pleadings is nowhere mentioned, and in the exception taken to tlie charge no statement is made that the issue was not presented by the pleadings. As the court would have had tlie right to have made the pleadings conform to the proof, no such objection can-now be taken. Tlie plaintiff cannot upon appeal first raise a question 'of this description. The objection, if it had been pointed out upon the trial, could have been remedied without difficulty; and where such is the case a general objection is not available upon appeal.

But even under the pleadings we think the charge was correct. The plaintiff alleged that Froment made the agreement. It is true that the defendant alleged that he made it as agent of the Blandón Company. But if this agreement was not made on behalf of the Blandón Company by Froment as its agent he made it on his own behalf, and the only question was whether it was made by him individually or in his representative capacity ; and so far as the purpose of this offset is determined it was entirely immaterial so long as the agreement was made.

It seems to be clear, therefore, that the objection in respect to the pleading is not well taken, and no error was made in the submission of the case to the jury nor in the course of the charge.

The judgment and order appealed from should be affirmed, with costs.

O’Brien and Parker, JJ., concurred.

Judgment and order affirmed, with costs.


author: Follett, J.:

text:
    George B. Clarke and Another, Appellants, v. Alice A. Schell, Individually and as Executrix, etc., of Richard J. Clarke, Deceased, and Others, Respondents.

      An attorney writing himself a heneflcia/ry in his client’s will —fraud not presumed therefrom —■ evidence.

    Tlie fact that two of the beneficiaries named in a will were the attorneys of the testator and drafted the will does not alone create the presumption that the bequests to them were procured by fraud.
    Upon the trial of an action brought to set aside the probate of an instrument as the last will and testament of a testator, an anonymous letter received by the testator during his lifetime and offered in evidence by the plaintiffs, is wholly incompetent, where there is nothing in the letter which is relevant to the issues.
    The fact that the aunt of the principal beneficiary named in a will was in early life an immoral woman, or reputed to be such, is not relevant evidence upon the trial of an action brought to set aside the probate of the alleged will; nor is it error, upon the trial of such action, to refuse to permit a witness to testify as to the impression made upon his mind by a gesture of the testator at a certain interview shortly previous to his death. The witness may describe the interview and state what was said or done, but it is not competent for him to draw the inferences which it is ihe duty of the court or jury to indulge in.
    Appeal by the plaintiffs, George B. Clarke and another, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 5th day of June, 1894, upon the verdict of a jury, rendered by direction of the court, after a trial at the New York Circuit, adjudging among other things that two papers purporting to be the last will and testament and codicil thereto of Richard J. Clarke, deceased, are the valid last will and testament and codicil thereto of the said Richard J’. Clarke, and also from an order entered in said clerk’s office nunc joro i/u/nc as of the 28th day of May, 1894, denying the plaintiffs’ motion for a new trial made upon the minutes.

      W. Bou/rlce Cochran, for the appellants.

      Daniel G. Hollins and 'Wm. Mitchell, for the respondents.
   Follett, J.:

This action was brought July 13, 1893, pursuant to section 2653 of the Code of Civil Procedure, to set aside the probate of the last will and testament, and of a codicil thereto, of Richard J. Clarke, on the ground that they were not the voluntary acts of the decedent, but were procured by the fraud, coercion and undue influence of Alice A. Schell, "William Mitchell and others.

Richard J. Clarke was born October 1, 1810, and died June 10, 1892, aged eighty-one years, eight months and nine days. He had never been married, and he left no ancestor nor descendant, but left George B. Clarke and William J. Clarke, plaintiffs, his first cousins, his only heirs and next of kin. He left realty valued at $11,000, and personalty valued at $110,000. He left a will, executed November 9, 1889, and a codicil, executed September 3, 1891, which are the subject of this controversy. By the first clause of the will his executors were directed to pay his debts and funeral expenses ; by the second he bequeathed $25,000 to Mrs. Alice A. Schell; by the third, $1,000 to her-daughter, Alice Schell; by the fourth, $1,000 to her son, Richard M. Schell; by the fifth, $250 to William Etgen, a clerk in the law office of Mitchell & Mitchell; by the sixth, $1,000 to Samuel Hopping; by the seventh, $1,000 to Eugene M. Berard ; by the eighth, $5,000 to Edward Mitchell; by the ninth, $5,000 to William Mitchell; by the tenth clause, the foregoing legacies were charged upon the testator’s real estate; by the eleventh, the residue was divided into two equal parts, one of which was given to Alice A. Schell and the other to his executors, who were directed to apply the income, or such portion thereof as they saw fit, to the use of Anson Clarke House during his life, with authority to convey all, or such portion of the half so placed in trust, to said Anson Clark House ; by the thirteenth, he directed that in case the trust should be held invalid the one-half left in trust should go absolutely to Anson Clarke House, and by the fourteenth, if Anson Clarke House should die while any portion of the half was held in trust, that the trust estate so held should go to Alice A. Schell; by the fifteenth, he directed that during the settlement of his estate his executors should pay Alice A. Schell and Anson Clarke House each $1,200 annually; by the last clause Alice A. Schell and William Mitchell were nominated as executors and given power to sell his realty.

Anson Clarke House, for whose benefit the trust was created, died August 9, 1891, and, on the 3d of September, 1891, the testator executed his codicil, in which he referred to the death of Anson Clarke House and revoked the eleventh, twelfth, thirteenth and fourteenth clauses of his will and gave to Mrs. Mary Divins $1,000; to Miss Emma Naylor, a sister of Mrs. JDivins, $1,000; to Mrs. Mary Naylor, $1,000; to Miss Mamie Naylor, daughter of Mrs. Mary Naylor, $1,000; to Frank Naylor, $1,000; to George Naylor, $1,000; to Miss Eliza T. Wilson, $1,000; to Cecelia R; Burford, $1,000; to Mrs. Clara Lavery, $500; to Richard Divins, $500; to Miss Mamie Coonan, $500. The remainder he devised and bequeathed to Mrs. Alice A. Schell. The fifteenth clause of the will was modified by striking out the name of Anson Clarke House, and directing that fifty dollars a week should be paid Mrs. Alice A. Schell while his estate was being settled.

The general legacies, aside from those to Mrs. Schell and the Mitchells, amounted to $13,750, and, including those, to $48,750.

The main facts relied on to establish the issue tendered by the plaintiffs are that the testator gave nothing to his first cousins, the plaintiffs; that he gave $10,000 to Edward and William Mitchell, his legal advisers and the draughtsmen of the will; $2,250 to employees in their office, and the remainder of his estate to Mrs. Schell and her relatives. Considering the circumstances of the testator and his surroundings, we think these facts do not give the slightest support to the contention of the plaintiffs.

In 1819 the testator’s father and his eldest brother, William B., came from England to this country and were followed the next year by the testator, his mother, liis brother Thomas G., his sister Elizabeth, and his maternal uncle, John P. Brown. Subsequently a brother, Robert, and a sister, Rose, were born in this city. In 1820 John P. Brown and the testator’s father established a hotel or restaurant in Maiden lane, and the business was continued by them and by the testator and his brothers until 1858, when it was abandoned. The testator’s father died in 1833, liis mother in 1835, his eldest brother, William B., in 1837,, his sister Rose in 1844, liis brother Thomas G. in 1865, his brother Robert in 1884, and liis sister Elizabeth in 1887. None of his brothers or sisters left descendants.

For more than forty years prior to 1884 the testator lived at “Anson House,” a hotel or boarding house in Canal street, kept by Anson House and liis wife Sophia, and there liis brother Robert lived for many yeai'S until his marriage, when he left. Mrs. House was an aunt of Mrs. Alice A. Schell', and Anson Clarke House was an illegitimate son of Anson House. Mrs. Schell was much at Anson House and had known, the testator from her childhood. About 1884 Anson House died leaving his widow, and, subsequently, the hotel which they had kept for many years was abandoned, and the testator and the widow, Mrs. Anson House, took separate rooms at the St. NicholasHotel, on Washington place, in this city, kept by Julius A. Robinson. Mrs. House remained in this hotel until her death, which is stated by one witness to have occurred June 25, 1886, and by another June 20, 1887. The evidence is that until Mrs. House’s death the testator and Anson .Clarke House occupied room 88, and after her death room 72, sleeping in the same bed, until Anson Clarke House became ill, wheii they occupied single beds in the same room. During all this time Mrs. Schell and her daughter frequently visited the testator and cared more or less for his wants. It is charged, but -*tlie charge is -not supported by evidence, that the testator and Mrs. Anson House, and after her death, the testator and Mrs. Schell, sustained improper relations. The evidence called out in behalf of the plaintiffs shows conclusively that the relations existing between the testator and Mrs. Schell and her family were for many years most intimate and friendly, but, as before stated, does not sustain the charge of improper intimacy. The testator’s cousin George B. Clarke lived in Brooklyn. They seldom saw each other, and had little or no intercourse. The otlier cousin, William J. Clarke, the testator never saw. Under such circumstances we do not think that the fact that the jn’operty was given to those with whom he had sustained most intimate relations for half a century, to the exclusion of two cousins, one of whom he never saw, and the other of whom he seldom saw and with whom he had little intercourse, is a circumstance tending to show that the testator was unduly influenced, coerced or defrauded into making his will.

Under the circumstances of this 'case, we do not think that the bequest of $10,000 to his attorneys and of $2,250 to their employees raises a presumption of undue influence on the part of his counsel, who drafted the will. Prior to 1885 James B. Bullock had been the testator’s legal adviser, and Mitchell & Mitchell had been employed to assist in conducting a litigation in which, the testator was involved. About 1885 Bullock died, leaving a will of which Richard J. Clarke was the executor, and the estate was settled through the aid of Mitchell & Mitchell, who succeeded Bullock as the counsel of the testator. Besides this, the firm assisted Mr. Clarke, who was the representative of his deceased sister Elizabeth, in settling her estate. This brought him frequently to the office of his counsel and made him acquainted with their employees. The undisputed evidence is, that during his life he was accustomed 'to give liberal gratuities to the servants in the hotel where he boarded, and made liberal presents to those who served him. The fact that two of the beneficiaries in the will were the attorneys of the testator, and drafted the will, does not alone create a presumption that the bequests to them were procured by fraud or undue influence. (Matter of Will of Smith, 95 N. Y. 516.)

The plaintiffs called a witness who testified that in November, 18Y6, Richard J. Clarke executed a will to which the witness became a subscribing witness. Tie testified that the testator told him that he left his property to his sister Elizabeth, to Anson Clarke House, and to relatives in Brooklyn. The amount given to each was not stated, and the will was not produced. On the 20th of September, 188Y, the testator executed a will in which he gave substantially the same general legacies to the same persons, excepting Mrs. Schell, to whom he made bequests in his last will and codicil thereto. He gave to Mitchell & Mitchell $10,000 as in his last will. The remainder of his estate he devised in trust for the benefit of Anson Clarke House, with power to the executor to vest House with the absolute title, and the remainder over, if not so vested, to three charitable institutions. When this will was. executed his sister was dead. Anson Clarke House, whom he treated as an .adopted son, was living, and when he died he changed his will and increased the leg-acy of Mrs. Schell from $1,000 to $25,000, and gave the residue to her. This, under the circumstances, does not seem to us to have been such an unnatural disposition of his estate as to arouse the slightest presumption of undue influence. His Brooklyn cousin was then seventy-eight years old, and whether he required aid or assistance does not appear. It is certain that no such relations ever existed between them as entitled him to a claim upon the bounty of the testator. The evidence is that the testator, for a man of his years, was in good health until a short time before his death, and that he transacted his business with intelligence and accuracy. It seems to us that the record is barren of any evidence which tends to show that this will was procured by fraud, coercion or undue influence, and that there was no question of fact for the jury and no error committed in directing a verdict for the defendants. Three exceptions to the exclusion of evidence were argued. It was testified that Mr. Clarke at one time received an anonymous letter, which the witness copied, and the copy was produced at the trial (Exhibit 24) and was offered in evidence, and excluded. There is nothing in the letter which is relevant to the issue, and, besides, it was not an act of the testator, or of any of the defendants, and was wholly incompetent. The plaintiffs offered to show that early in life Mrs. House had borne another name and was reputed to be a woman of bad character and a keeper of a house of assignation. She had been married to Anson House for more than forty years, and there was no attempt to show that during her married life she was a woman, of bad repute. Mrs. House had died before the will was executed, and the fact that the aunt of the principal beneficiary in early life was an immoral woman, or reputed to be such, was not relevant. No error was committed in refusing to'permit the witness Neiderstein to testify to the impression made on his mind by a gesture of the testator at an interview in the St. Nicholas Hotel on the 1st of October, 1891. The witness described the interview, stated what was said and done, and it was not competent for the witness to draw the inferences, which was the duty of the court or jury.

After a careful reading of the whole of this voluminous record, we are of the opinion that no error was committed by tire learned trial court, and that the judgment and order should be affirmed, with costs.

Van Brunt, P. J., and Parker, J., concurred.

Judgment and order affirmed, with costs.


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    Hannah Conabeer, Appellant, v. The New York Central and Hudson River Railroad Company and Another, Respondents.

      Grant by an abutting owner of easements in a street to a railroad company — damages recoverable only for defective construction or negligent operation — estates in fee, burdened by easements — easements reserved in lands acquired by condemnation — railroad structure existing on land condemned for a city street.

    The grant to a corporation by an abutting owner, of her right to a portion of the street and of the right to construct a railroad thereupon, carries with it the right to operate the railroad when constructed, and the railroad company cannot be held liable to the grantor for damages caused to her abutting real estate by reason of the operation of the road, unless it be shown that the road was improperly constructed or negligently operated, and a subsequent owner of such property, whose title is derived through such grantor, has no greater rights in respect thereto than her predecessor in title.
    The fact that there are incumbrances and easements upon real property is not necessarily inconsistent with the existence of a title in fee thereto.
    When land is acquired for public use by condemnation proceedings, an easement therein may be reserved, with the consent of the owner, and its value may be taken into consideration upon the determination of damages.
    If, when a city acquired title, to an avenue, a railroad company was and had been for more than twenty years occupying the central part of the street under legislative and municipal authority for railroad purposes, and had erected therein, pursuant to such authority, an expensive and valuable structure, it cannot be assumed, in the absence of proof, that for an award of one dollar the city intended to acquire, or the corporation intended to surrender, the title to the structure, or that the railroad company intended to surrender a right long enjoyed by it of operating its road in the avenue.
    Appeal by the plaintiff, Hannah. Oonabeer, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 9th day of December, 1893, upon the decision of the court, rendered after a trial at the New York Special Term, dismissing the plaintiff’s complaint upon the merits.
    This action was begun in November, 1891, (1) t'o perpetually enjoin the defendants from operating their railroad in Fourth avenue in front of plaintiff’s premises; (2) to compel defendants to remove their structure in front of the plaintiff’s premises, and (3) to recover damages sustained by reason of the construction and operation of the road.

      April 25, 1831, tlie New York and Harlem Railroad Company was incorporated by chapter 263 of the laws of that year, and "authorized to construct a railroad from the north side of Twenty-third street to any point on the Harlem river between Third and Eighth avenues, and in 1832 it constructed its road in Fourth avenue from Forty-second street to the Harlem river. The avenue at this time was 100 feet in width. . The roadbed was on an ■ embankment in the center of the avenue, but the height and width of the embankment, as the road was originally constructed, are not definitely disclosed by the record.
    On the 18th of January, 1832, Margaret McGown was the owner in fee of a tract of land bounded on the east by Fourth avenue, on the north by One Hundred and Sixth street, on the south by Ninety- . seventh street, and on the west by a line so far west from Fourth avenue that it included the premises now -owned by the plaintiff. On the date mentioned she, by a deed duly executed, delivered and recorded August 18, 1835, conveyed to the New York and Harlem Railroad Company certain premises described in said deed as follows:

      “ All that certain piece of land situate, lying and being in the Twelfth ward of the city of New York, being part of one of the avenues laid out on the map of the city of New York as the Fourth avenue, and is included within a space of twenty-four feet wide running through the center of said avenue and between 97th and 106th streets, from the day of the date thereof for and during the full period of time during which the said New York and Harlem Railroad Company may remain an incorporated company, and on which they are to construct their railroad, and for no other purpose, with the power of sloping their embankments or excavations so much farther beyond the lines of said premises hereinbefore granted as may be necessary to support their work, not, however, extending beyond the width of the avenue.”
    Pursuant to chapter 274, Laws of 1837, the width of the avenue from Thirty-fourth street to Harlem river was increased to 140 feet, a strip of land twenty feet in width being added to each side of said avenue. In 1853 the city laid out the avenue to the width pre- ‘ scribed by said act, acquiring the title thereto for street purposes, oi^ened 'it and assessed the benefits on abutting lots, an assessment being made on tlie lot now owned by tlie plaintiff, wbicli was paid, and tlie railroad and others whose lands were taken receiving compensation for the lands acquired. By chapter 702, Laws of 1872, entitled “ An act to improve and regulate the use of the Fourth avenue in the city of New York,” it was provided: “§1. The New York and Harlem Railroad Company is hereby authorized and required to regulate the grade of their railroad in the Fourth avenue of the city of New York, and to construct such viaducts, foot and road bridges over the same, and such excavations and tunnels under the same, with openings for proper ventilation, _ for the purpose of rendering the same safe and convenient to any persons crossing the same, and the railroad trains and passengers traveling thereon, in the following manner, namely: * * * From thence to Ninety-sixth street * * * and thence continuing upon the present grade to the center of One Hundred and Fifth street. * * * From Ninety-eighth street to One Hundred and Fifteenth street the railroad shall be carried upon a viaduct, with stone arches or iron bridges in said viaduct over the cross or intersecting streets above One Hundred and First street, to and include One Hundred and Thirteenth street.”
    Shortly after the passage of this act the New York and Harlem Railroad Company, pursuant to plans agreed on between it and the city, erected in the center of said avenue crossing One Hundred and Fourth street and in front of the premises of the plaintiff, a viaduct about fifty-six feet wide and thirty-three feet high, retained by walls of masonry running parallel with the lines of the avenue, and laid on the surface of the viaduct tracks for the use of the railroad. Wherever intersecting streets were crossed openings were constructed of masonry for the accommodation of persons traveling on said streets; one-half of the expense of such reconstruction was paid by the city and one-half by said railroad company. The road, as it now exists, was constructed by the joint act of the city and the railroad corporation.
    April 1,1873, the New York and Harlem Railroad Company was leased to the New York Central and Hudson River Railroad Company, a corporation of this State, for 401 years, since which time the lessee has been in possession and has operated the road.
    Prior to 1887 Thomas Foy, by mesne conveyances from Margaret McGown, became the owner of part of the land owned by her when she conveyed the strip to the New York and Harlem railroad, and, on June 29, 1887, by a deed duly executed, delivered and recorded on that date, he conveyed to the plaintiff a piece of land described as follows:
    “ All that certain lot, piece or parcel of land, with the improvements thereon, situate, lying and being in the city of New York, and bounded and described as follows: Beginning at the southwest . corner of One Hundred and Fourth street and Fourth avenue, and running thence southerly, along the westerly side of Fourth avenue one hundred feet and eleven inches, to the center line of the block; thence westerly, along said center line and parallel with One Hundred and Fourth street, sixteen feet; thence running northerly, parallel with Fourth avenue, and part of the way through a certain party wall, one hundred feet and eleven inches to the southerly side of One Hundred and Fourth street, and thence running easterly, along the southerly side of One Hundred and Fourth street, sixteen feet to the point or place of beginning.”
    At that date there was, and now is, standing on the lot, a three-story brick dwelling. The plaintiff on the date of the deed entered into possession of said premises and has ever since occupied them as a dwelling. From that time the' defendants, during every day and night, have run a large number of trains over said viaduct, drawn by locomotives propelled by steam, which emit smoke, steam, soot, ashes and sparks, which, from time to time, have entered the windows of the plaintiff’s dwelling and have fallen upon her premises, to the injury thereof. The operation of said road produces loud and disagreeable noises, and its construction and operation interrupt the natural passage of light and air to and from the plaintiff’s dwelling.

      Joseph Ullman and Sol. Hohn, for the appellant.

      Henry II. Anderson and Frank Loomis, for the respondents.
   Follett, J.:

The plaintiff’s lot is bounded on the north by the south line of One Hundred and Fourth street, and on the east by the west line of Fourth avenue, she having no title or estate in the bed or sod of either street, and she claims no private rights or interests in either street except such as are incidental to lots abutting on streets. The title to these streets is in the city of New York in trust. By the deed of January 18, 1832, Mrs. MeG-own, the former owner of the fee of the plaintiff’s lot, conveyed to the New York and Harlem Railroad -Company a strip of land twenty-four feet wide in the center of the avenue, and extending from Ninety-seventh street to One Hundred and Sixth steeet. By the terms of this deed the grantee was authorized to construct a railroad on the land conveyed, with the right of extending the embankment on which the rails were to be laid to the exterior lines of the avenue. At the date of this conveyance the avenue was 100 feet wide, and on each side of the land conveyed and within the avenue, there was a strip of land thirty-eight feet wide the title to which was not conveyed, but the right to cover these strips with an embankment was expressly granted. The embankment as now constructed is fifty-six feet wide, covering the land conveyed by Mrs. McGown, and a strip sixteen feet wide on each side of the strip granted by her, which is twenty-two feet less on each side of the strip conveyed than the defendants, by the grant, were authorized to use. By the conveyance, the grantee was authorized to construct a railroad on the subject of the grant, and, if necessary, to occupy the whole width of the avenue adjacent to the grantor’s remaining land. The grant of the right to construct a railroad carried with it the right to operate it when constructed, and the defendants could not have been held liable to Mrs. McGown for incidental damages caused to her remaining property by operating the road, without showing that the road was improperly constructed or negligently operated. The plaintiff stands in the shoes of her predecessor in title, and has no greater rights than she had. There is no assertion that the road was improperly constructed. On the contrary, the proof is that it was built in accordance with the statute of 1872 and the requirements of the city authorities, and it is not alleged or proved that the defendants have been negligent in the operation of the road. But the plaintiff insists that when the city in 1853 increased the width of the avenue from 100 feet to 140 feet, and acquired the title to all lands within its exterior lines, including the strip granted to the railroad, Mrs. McGown’s grant was annulled, and the successors to her title were from that date vested with all the rights in the avenue that they would have had in case no such conveyance had been made by her. In support of this contention it is urged that this avenue having been laid out, pursuant to chapter 86 of the Revised Laws .of 1813, section 118 of which provides (Yol. 2, R. L. 1813, p. 414) that the city shall become seized in fee of lands taken for streets, subject to the trust that lands so acquired shall be kept open and used as streets, the title of the railroad to the strip of land in this street was not only acquired, but from that time its right'to use the street for railroad purposes became subject to the right of the abutting owners to recover damages for injuries to their street easements occasioned by the subsequent use of the street by the railroad.

In support of this position it is asserted that the city could not acquire the fee of the street, subject to the right of the railroad to use a portion of it-for its purposes. Incumbrances and easements burden many estates, the title to which is held in fee, and such burdens are not necessarily inconsistent with a title in fee. When the city acquired the title to this avenue the New York and Harlem Railroad Company was, and for more than twenty years had been, occupying the central part of the street, under legislative and municipal authority, for railroad purposes, and had erected therein, pursuant to such authority, an expensive and valuable structure, and it cannot be assumed, in the absence of proof, that for an award of one dollar the city intended to acquire, or the corporation to sin-render, its title to the structure, or that the railroad intended to' surrender its long-enjoyed right to operate its road in the avenue. The practical construction by the city and by the railroad of the effect of the acquisition of the title to this street is opposed to such a contention. The city never claimed to be the owner of the structure,, and the corporation -was not compelled to remove it, nor was its right to use it abridged, and it has been held that the structure is not the property of the city but of the railroad. (People ex rel. The N. Y. & H. R. R. Co. v. Comrs. of Taxes, 101 N. Y. 322.) By chapter 102, Laws of 1812, the title of the railroad to its structure in the avenue and the .right to continue to operate its road therein are expressly recognized. We are referred to Hill v. The Mohawk & Hudson R. R. Co. (5 Den. 206; affd., 7 N. Y. 152) as an authority for the position that when land is acquired for public use by condemnation, an easement therein cannot be reserved in favor of the person from whom acquired. This ease is not an authority for this position, as it simply holds that an easement in lieu of or in diminution of the owner’s damages cannot be reserved without the consent of the owner of the property taken. With the consent of the owner an easement may be reserved and considered upon the question of damages. (Mills- Em. Dom. § 112, and cases cited; Randolph on Em. Dom. §§ 203, 201.)

In the case at bar it is apparent that the railroad assented to an award of one dollar as compensation for its land taken, iii consideration that'its easement in the street was not to be disturbed, but was to be continued.

We think the judgment is right, and that it should be affirmed, with costs.

Tan Brunt, P. J\, and Parker, J., concurred.

Judgment affirmed, with costs.