text:
    GEORGE E. SIBLEY, as Assignee of Joseph Manning a Bankrupt, Appellant v. THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES, Impleaded with Mary R. Heather and Joseph Manning, Respondent.

      Interpleader—Motion in nature of—Crantablé on application of an answering defendant, setting up no adverse claim, the other defendants (one of them answering) claiming adversely to the plaintiff-—Terms of order, restraining the plaintiff and the other defendants, ordering instrument \'to be deposited—Conditions, interest on principal from the time it is claimed to run must be brought into court—Costs, order need not impose.

    In this action the complainant claimed a principal sum with interest thereon from a certain date to be due from the corporation defendant upon a contract made by it. That defendant answered the complaint admitting the claimed principal sum to be due under the contract to some person and that it had been due since the date from which interest was claimed; but alleging that the other defendants claimed the sum to be payable to them; that it was ignorant of the rights and interests of the plaintiff and the other defendants in said sum and of their equities in respect thereto, and had no means of ascertaining the same; that it had-not since the principal sum became due been able to make payments to any one with safety, and that when said principal sum became due it was ready and willing, and had ever since been ready and willing, to pay the same to the persons rightfully, lawfully and justly entitled to receive it; and praying that it might be allowed to pay into court the said principal sum; that thereupon the interest on which the indebtedness arose (a policy of insurance) be surrendered to it; that it be discharged from all liability thereon and that plaintiff and other defendants be restrained from prosecuting any action against it on said instrument or anything connected therewith.
    One of the other defendants also answered.
    On the complaint, the two answers, and an affidavit which set forth no additional material facts, the corporation defendant moved at a special term held at chambers, for the relief asked for in its answer. On such motion the court made the order set forth in the opinion. The order ■ imposed no costs, and did not require the interest on the principal sum to be brought into court.

      Held, 1st. That the court had no power to discharge the corporation defendant without payment of the interest claimed as well as the principal; that if it had an equitable defense to the claim for interest, it must remain a party to the action and set it forth by answer.
    2d. That the order below should be modified by requiring the corporation defendant to pay the principal sum with interest thereon from the day from which it was claimed to the date of the payment of the principal.
    3d. That the order as modified should be affirmed.
    Before Freedman and Ingraham, JJ.

      Decided October 25, 1888.
    The facts sufficiently appear in the head note and the opinion.—

      Roger Foster, attorney, and of counsel for appellant, argued:
    I. The court had no power to discharge the defendant from liability without the plaintiff’s consent. There is no provision of the code under which this can be done. The section authorizing a motion for interpleader only applies when a claim is made by a person not a party to the action. Code of Civil Procedure, § 820.
    II. The court should now require payment of interest upon the whole sum up to the date of the second deposit by the insurance company. The default of the respondent has delayed the trial until October pending the appeal. It is but just that it should pay interest during, this time. Its liability does not cease till it is rightfully discharged. As the order below was erroneous, that discharge is incomplete before proceedings have been taken under the order of this general term. Till then it is liable for interest.
    III. The order below should have directed the defendant insurance company to pay costs before its discharge. The only excuse for such an order as was made is to be found in §§ 731-740 of the code. They expressly provide (see § 731) that costs be paid up to the time of tender and payment into court. Code §§ 611-613. If the imposition of costs were in the discretion of the court, the conduct of the respondent in delaying its payment has been so inequitable as to make it justly liable.
    IY. The order was further erroneous inasmuch as it gives an injunction without requiring an undertaking by the insurance company. See Code of Civil Procedure, § 611.
    Y. There was no propriety in ordering a deposit of the policy of insurance in the clerk’s office. There is no authority for this except when an inspection is requested, as was not the case here. The deposit has put the plaintiff to inconvenience in his preparation for trial, and may prejudice his lien founded upon the possession of the policy.
    The counsel also made points in support of the legal liability of the defendant corporation to pay interest.

      Alexander & Oreen, attorneys, and James O. Janeway, of counsel for respondent, on the question decided, argued :—
    I. The plaintiff, by bringing this action, prevented the society from obtaining an interpleader order. The plaintiff was not appointed assignee until one day prior to the expiration of the tontine dividend period, to wit, October 1, 1887. He thereupon, and without giving the society sufficient opportunity to investigate the facts, and to determine upon a course that might safely be pursued, commenced his action by the service of a summons on the first 'of November. All persons claiming an interest to the fund resulting from this contract •of insurance were made parties, and the plaintiff thereby prevented the assurance society from obtaining an inter-pleader order under § 820 of the Code. Defendant could not file a bill in the nature of a bill of inter-pleader in equity, for the reason that such bill would be open to the objection of the pendency of another action. Nor has the plaintiff shown himself especially desirous of a speedy determination of the controversy, inasmuch as his complaint was served on the twenty-first of November, and his amended complaint on the sixth of January following. The verified answer of the defendant, the assurance society, avers that it has been ready and willing since the first of October, 1887, when the fund became due by the terms of the policy, to pay to the person or persons rightfully, lawfully and justly entitled to receive the amount due and payable under the said policy, and shows that by reason of ignorance of the rights and equities of the parties, it has been unable to make the payment with safety to itself or with regard to the rights and interests of its policyholders.
    No claim for interest was made by the defendants Mary R. Heather or Manning.
    The counsel also made points against the legal liability of the corporation defendant to pay interest.
   Per Curiam.

The complaint demands judgment against the defendant the Equitable Assurance Company for the amount due under the policy of insurance set up in the complaint with interest thereon from the 1st of October, 1887.

The corporation defendant presented a petition to the court whereby it admits that the amount named is due under the said policy and that it has been due since October 1,1887 ; and alleges that when said amount became due, it was ready and willing to pay the same to the person rightly entitled thereto but that it is ignorant of the rights of the several parties to the action and cannot with safety pay the same to any person; on that petition the court ordered that the said corporation may-pay the amount due without interest into, the Mercan-, tile Trust Co. to the credit of this action and that upon said payment the said corporation defendant be relieved and 'discharged from all liability to the plaintiff or any of the defendants herein; that the policy be deposited in the custody of the court subject to use by either of the parties to the action under the order of the court without prejudice to any lien that any of the parties may so have thereon, and that the plaintiff and other defendants be restrained from prosecuting the action and instituting any other action against the corporation defendant on account of said policy.

We do not think that the court had power by an order to discharge the corporation defendant from liability to the plaintiff without payment of the amount which was due upon the policy and interest from the 1st October, 1887. This interest was, under the complaint in this action, as much a part of the demand of the legal owner of the policy of insurance as the amount required to be paid by the policy.

If the company desired to relieve itself from the obligation to pay interest, it could have commenced an action for an interpleader. Instead of commencing such an action the company, after having refused to pay the plaintiff, did nothing until it was sued and in the meantime retained the money. So if in point of fact the company has an equitable defense against plaintiff’s claim for interest, it must remain a party to the action and set forth such defense by answer.

As the case stands at present the order should only be granted on the payment into court of the amount admitted to be due with interest up to the time of payment.

The order appealed from should be modified by requiring the defendant to pay the sum of $10>142 with interest thereon from October 1, 1887, to the date of the payment of the principal sum.

The appellant should have ten dollars costs and disbursements of this appeal.


source: Caselaw Access Project

author: By the Court.—Truax, J.

license: Public Domain

text:
    GEORGE ZOLLER, et al., Respondents, v. HUGH J. GRANT, Sheriff, etc., et al., Appellants.

      Warrant of attachment, Sheriff's powers and duties under the same.

    The seizure and levy by a sheriff under an attachment or execution against one person, upon the entire property of a firm as the sole property of the debtor, is not justified by showing that the debtor has an interest in the property as a copartner.
    If the sheriff, instead of levying upon the debtor’s interest in the property, levies upon and seizes the same as the sole property of the debtor, he is a trespasser. Atkins v. Saxton, 77 N. T, 195.
    Before Sedgwick, Ch. J., and Truax J.

      Decided December 10, 1888.
    Appeal from a judgment entered upon the verdict of a jury in favor of plaintiffs at trial term.
    The action was brought to recover damages for the seizure of certain personal property that plaintiffs claimed to own under an attachment against a third party.

      Stine & Calman, attorneys, and Cochran & Clarh, of counsel for appellants.

      E. B. & C. P. Cowles, attorneys for respondents. •
   By the Court.—Truax, J.

Although a motion for a new trial was made and denied after the jury had brought in their verdict, yet no order denying the motion was entered and the appeal is only from the judgment. We shall, therefore, consider only the questions of law that are presented by the exceptions other than the exception that was taken to the ruling of the judge denying the motion for a new trial.

It is not necessary for us to determine whether the Lupert & Klein Furniture Co., who the defendants claim was either the owner of the property or a member of the firm of Zoller, Alexander & Co., in whose possession the property was at the time it was taken, was or was not a member of said firm of Zoller, Alexander & Co., for the stipulation between the parties, which was offered in evidence, provides that the fund in suit shall be paid over to the plaintiffs if it shall be decided that the property taken by the sheriff under the attachment, was not the property of the said Lupert & Klein Furniture Co. If the Lupert & Klein Furniture Co. was a member of the firm of Zoller, Alexander & Co., and if the said property belonged to the firm so constituted, then, under the stipulation the fund must be paid to plaintiffs, because the Lupert & Klein Furniture Co. was not the sole owner of the property.

In order to succeed in this action the defendants must show that the Lupert & Klein Furniture Co. was the owner, that is, the sole owner of the property taken under the attachment. In fact, the only question litigated on the trial was whether the Lupert & Klein Furniture Co. was or was not the owner of the property.

But even if the Lupert & Klein Furniture Co. was a member of the firm of Zoller, Alexander & Co. the levy of the sheriff was illegal. The seizure and levy by a sheriff under an attachment or execution against one person, upon the entire property of a firm as the sole property of the debtor, is not justified by showing that the debtor has an interest in the property as a copartner. The power of the sheriff, for the purpose of rendering the levy upon the interest on one partner in the copartnership effectual, to take possession of the whole property, is merely incidental to the right to reach the debtor’s interest, and is to be exercised as far as possible in harmony with, not in hostility to the rights of the other partners; therefore, when the sheriff exceeds this limit and instead of levying on the debtor’s interest levies upon and seizes the property as the sole property of the debtor, he is a trespasser. Atkins v. Saxton, Sheriff, 77 N. Y. 195.

It was not error for the trial judge to allow the plaintiffs to show what took place between them and Mr. Dean, the chairman of the Lupert & Klein Furniture Co. Exhibit A., which was offered by the defendants, showed that Mr. Dean was the chief officer in the said company, and the question called for testimony that might explain the relation between the plaintiffs and said company.

The objection at folio 150 seems to have been taken after the question had been answered and for that reason if for no other, is too late.

It is true that the question at folio 155, to which the defendants objected, called for the witness’s interpretation of a written contract, which contract was in evidence, but no one was harmed by that, because the witness put the right construction upon the contract. Under the contract the Lupert & Klein Furniture Co. had nothing to do with the losses in the business except as those losses tended to decrease the amount of profits that was coming to it.

It may be that the firm of Zoller, Alexander & Co. and the Lupert & Klein Furniture Co., as against third persons, constituted a new firm, without a name; but that question was not litigated upon the trial.

By the stipulation above referred to, the plaintiffs are entitled to recover damages, unless it appears that the Lupert & Klein Furniture Co. was the sole owner of the property; and all the litigation on the trial was directed to showing on the part of the defendants that they were such owners, and on the part of the plaintiffs that they were not such owners.

No question arises as to the amount of damages. It was conceded on the trial by the defendants that the damages against the defendants, in case there was a verdict, should be, in addition to the amount deposited with the trust company such damages as were proved for the detention; or, to use the words of the admission the damages ought to be $730 (which was the amount deposited -under the stipulation), and such damages for the unlawful taking and detention as are proved. Those damages were itemized and part of them were stipulated; for instance, it was stipulated that there was $133.30 due for rent (see folio 278) and that the salary of the bookkeeper was $10.70 (see folio 255). These sums added to the $730 and the other damages that were proved would not make the verdict excessive.

The judgment is affirmed with costs.

Sedgwick, Ch. J., concurred.


author: By the Court.—Sedgwick, Ch., J.

text:
    FRANCIS J. McCANN, BY GUARDIAN, etc., Appellant v. THE SIXTH AVENUE RAILROAD CO., Respondent.

      Negligence.

    Although negligence may be predicated upon a dangerous rate of speed in travel, yet ordinary caution and care calls for the regulation of the speed and the control of the horses, of a street car, in reference to persons, that ordinary prevision may or should anticipate, may be endangered. If the danger arises from the sudden and unexpected and not to be anticipated presence of a person before the horses, any rate of speed is not of itself negligence.
    A driver in regulating the speed of Ms horses, is not called upon to expect the occurrence of the unusual, as in the particular exceptional facts in this case, where the plaintiff jumped from another car, directly before the horses.
    Before Sedgwick, Ch. J., Freedman and Truax, JJ.

      Decided January 7, 1889.

      Appeal from a judgment entered upon a verdict of a jury, rendered at trial term by direction of the court.
    The facts appear in the opinion.
    • Kellogg & Kilgen, attorneys, and James C- Toley of counsel, for appellant.

      D. M. Porter,, for respondent.
   By the Court.—Sedgwick, Ch., J.

The facts of the case were that while one car of the defendants was at stand, its conductor kicked at the plaintiff who was upon its platform. To prevent the kick reaching his body the boy by one jump, jumped into the middle of the up-town tracks. As he touched the ground he was knocked down by the horses of a car going up-town. The jury might have found that these horses were going at a great and unusual speed.

The complaint did not charge negligence in general or specifically in respect of the kick .and its effects. It confined the negligence charged to the following matter, “ that while the plaintiff herein, in a careful and orderly manner and with full and lawful right was passing along a public highway etc., to wit, etc., he was struck and knocked down by the horses, attached to one of the cars belonging to the defendant.”

I am of opinion, that while negligence may be predicated of a dangerous rate of travel, ordinary caution and care call for the regulation of the speed and the control of the horses in reference to persons, that ordinary prevision may or should anticipate may be endangered. If the danger arises from the sudden and unexpected and not to be anticipated presence of a person before the horses, I do not think that any rate of- speed is negligent.

In this case, the proof was that the plaintiff by his bound came to the ground, at once in the middle of the up-town track, where ordinary prudence and calculation on the part of the driver of the horses, that did the damage, could not suggest that the plaintiff would be. It is only a matter of conjecture as to what would have happened if the boy had stepped from the platform of the car and before he went upon the up-town track, first went to the space by the side of that track where he could have been seen by the driver of the horses that knocked the plaintiff down.

I am of opinion, that the driver in regulating the speed was not called upon to suppose the occurrence of the unusual, and in this particular, exceptional facts, that preceded the plaintiff’s jumping before the horses.

I am of opinion that the judgment and order appealed from should be affirmed with costs.

Freedman and Truax, JJ., concurred.


author: By the Court.—Sedgwick, Ch. J.

text:
    BENJAMIN B. ARNOLD, et al., Respondents v. GEORGE F. TROWBRIDGE, Surviving Partner of the Firm of Seely and Trowbridge, Appellant.

      Judgment on the pleadings at trial term, on the ground that no defense was interposed by the answer.

    The action was upon two promissory notes, made by the defendant and his partner for $5,000 each. The complaint was verified four days after the second note fell due. Every allegation in the complaint was expressly admitted at the trial.
    The answer however sets up in defense, that the notes were given under a written agreement of plaintiffs, that “ everything being satisfactory ’’ the notes were to be renewed at maturity so as to make the loan of two years duration; that subsequently plaintiffs further agreed to renew the notes for the same period “ except in case of unusual disaster ” to the defendant’s firm; that before the notes fell due the defendant’s firm furnished a statement to the plaintiffs showing a profit on the business done between the time of giving the first note and the time of rendering the statement; that the plaintiffs, after receiving this statement and examining the books, gave notice that they would not renew and told the defendant’s firm to make an assignment for creditors to one of' the plaintiffs, threatening, if this were not done, to make the defendant and his then partner, Guy B. Seely, pay all they owed; that before this, Seely & Trowbridge “had made such arrangements that they could have continued their business to a profit,” if the plaintiffs’ loan could not be collected from them; and that from the time they got the plaintiffs’ money up to the time of these “ wrongful acts” of the plaintiffs, the business of the defendant’s firm was profitable; but that on account of these things which the plaintiffs said, “ especially in view of the depressing effect which the said wrongful acts of the plaintiffs hereinabove mentioned in their notification and threats aforesaid, had upon the mind of the said Guy'B. Seely, which incapacitated him, said Seely, in a great measure from transacting the business to an advantage, this defendant and the said Guy B. Seely were unable to further prosecute their business successfully, as they would otherwise been able to have done, and their business and affairs were so disarranged that in justice to the creditors of this defendant and of the said Guy B. Seely, it became necessary that an assignment for the benefit of ercditors should be made by the said Guy B. Seely and this defendant, which they accordingly made on or about the Wth day of October, 1887; and that, as a result of the said assignment, the business, of the said Guy B. Seely and this defendant was entirely broken up and destroyed, and resulted in great loss and damage to them.” The date of the assignment was nineteen days before the first note would become due.

      Held, That the plaintiffs, notwithstanding their declarations could not compel the defendant to pay the notes, at maturity, if there was a valid agreement to renew which could be enforced. N. Y. Trust & Loan Co. v. Helmer, 77 N. T. 64; Pomeroy v. Tanner, 70 N. T. 547. Their declarations could not be considered a cause for the defendant’s firm stopping business, or making an assignment for which the plaintiffs would be responsible. The plaintiffs were not deprived of the right to consider the execution of the assignment, by the defendant’s firm as “ an unusual disaster ” which freed them from the obligation to renew, because they requested defendant’s firm to make the assignment. One of the conditions of the agreement set forth in the answer, was, that plaintiffs should advise defendant as a partner might advise and giving advice should not deprive the plaintiffs of the benefits that would accrue to them, if the advice given was received and acted upon. There aré no averments in the answer which modified the inference or conclusions arising from the making of the assignment.

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

      Decided January 7, 1889.
    Appeal by defendant from a judgment entered upon a verdict for plaintiffs as directed by the court.

      Jay, Candler & Brush, attorneys, and Flamen B. Candler, of counsel for appellant.

      George B. Cheney, attorney, for respondents.
   By the Court.—Sedgwick, Ch. J.

The question upon the trial was whether the answer contained a defense. The complaint was upon two promissory notes made by the firm of which the defendant was the survivor. The defendant claimed that the answer made the defense, that the plaintiffs had agreed to renew the notes.

The answer averred that defendant’s firm and plaintiffs’ firm made two agreements which it is now assumed were upon consideration and are to be construed together. The first was signed by the members of the defendant’s firm. Its substance was that in consideration of loans made to them by the plaintiffs and for which we gave you our notes at six months from the 14th inst., which everything being satisfactory are to be renewed so as to make the loan of two years duration, we agree in the event of any disaster to us that shall necessitate the winding up of our affairs, or an assignment, to make your loan of $7,500, a preferred debt above any or all other loans or debts of ours.”

The second agreement was, among other things, that the plaintiffs agreed that they would renew from time to time, the notes as might be necessary, “ except in case of unusual disaster to the said firm of Seely & Trowbridge, so that the same should be continued for two years, as mentioned in the said agreement above set forth, from the said 14th day of May, 1887, and the said Seely & Trowbridge also further agree to allow the said Arnold & Co. to exercise such supervision over the business of the said firm of Seely & Trowbridge by way of examining their books of account and bank and cash books, and by way of advising in regard to what payment of notes or other considerable payments, the said Seely & Trowbridge should make as is usually exercised and directed by persons who are partners together in business.”

The answer averred that the defendant’s firm, before the maturity of the notes, made a general assignment for the benefit of its creditors. The making of this, prevented any obligation of the plaintiffs to renew the notes, unless there were other averments of facts which if proven would show that notwithstanding the occurrence of an unusual disaster, namely, the assignment, the plaintiffs were bound to renew. The defendant claimed that there were such averments and these are now to be examined.

The answer averred that the assignment was induced by the wrongful acts of the plaintiffs. These wrongful acts, as alleged, were that the plaintiffs claimed the right to dictate and direct in regard to the conduct of defendant’s firm and especially attempted to dictate and control that firm in regard to the payment of certain notes made by the firm, and claimed and insisted that under the agreements, the defendant’s firm had no right to pay the notes without the permission of the plaintiffs ■ and further insisted that under the agreements the plaintiffs had the right to dictate and as far as they saw fit, to control the management and conduct of the business of the defendant’s firm; that the plaintiffs after-wards notified the defendant’s firm that the plaintiffs would not renew the notes but would insist upon their payment, and subsequently claimed and insisted that defendant’s firm should make an assignment for the benefit of their creditors.

These averments do not disclose any wrongful act by plaintiffs. No one of the acts was a violation of law or of any contract-duty to the defendant’s firm. If the attempted dictation or control, was in excess of the privileges of the plaintiffs tó supervise the business of the defendant and to advise as to it, as is usually done by a partner, yet as to such an excess, the plaintiffs would not be guilty of a tort or wrong, more than a third person doing or saying the same things would be guilty.

The answer also averred that the plaintiffs threatened that if the defendant’s firm did not make an assignment, the plaintiffs would pursue the defendant’s firm in every way possible under the law, until all the plaintiffs’ claim should be paid in full with interest, and also that the plaintiffs would buy up all claims against defendant’s firm that they could buy and hold them to the detriment of defendant’s firm until the claims should be paid in full, principal and interest, and that the plaintiffs would never let go upon the defendant’s firm, “ until they had paid the last dollar.”

The holding of the obligations of a person cannot be a detriment to that person, in the form of a legal injury, and the so called threats were declarations that plaintiffs would do what they had a legal right to do.

The answer also averred that before the plaintiffs had notified the defendant’s firm that the plaintiffs would insist upon the payment of the notes at maturity, the defendant’s firm had made such arrangements in their business, that if the plaintiffs should renew the notes, that business could have been continued to a profit, but that by the aforesaid wrongful acts of the plaintiffs, especially in view of the depressing effect which the said wrongful acts of the plaintiffs had upon the mind of Guy B. Seely, one of the defendant’s firm, which incapacitated him in a great measure from transacting the business to any advantage, this defendant and the said Seely were unable to further prosecute their business successfully, as they would otherwise have been able to have done, and their business and affairs were so disarranged ” that it became necessary to make the assignment for the benefit of creditors.

So far as the ability of the firm to continue business, after the maturity of the notes was affected by the plaintiffs declaring that they would not renew the notes, it is clear that this declaration did not tend to lessen the resources of the defendant’s firm. The plaintiffs notwithstanding their declarations could not compel the defendant’s firm to pay the notes, if there were a valid agreement to renew which could be enforced. N. T. Trust & Loan Co. v. Helmer, 77 N. Y. 64; Pomeroy v. Tanner, 70 N. Y. 547. This declaration could not be considered to be a cause of the defendant’s firm stopping business or making an assignment for which the plaintiffs would be responsible.

The effect upon the mind of one of the partners, that incapacitated him from business to a certain extent, certainly did not make the assignment an act of defendant’s firm, not voluntary on their part, especially when the mind of the present defendant was not disturbed.

The plaintiffs were not deprived of the right to consider the making of the assignment as an unusual disaster, which freed them from the obligation to renew, because they had requested the assignment to be made. One of the contingencies of the agreement was that the plaintiffs should advise as a partner might, and giving advice was not to deprive the plaintiffs of the benefits that would accrue to them if the advice were taken.

I am of opinion, therefore, that there were no averments of the answer which modified the inference from the making of the assignment, and that it did not appear that the plaintiffs were bound to renew the notes.

The answer did not set out a defense of usury.

Judgment affirmed with costs.

Freedman and Ingraham, JJ., concurred.


text:
    AUGUSTA G. GENET, Appellant v. PRESIDENT, MANAGERS & COMPANY, OF THE DELAWARE & HUDSON CANAL COMPANY, Respondent.

      Injunction judgment, suspending operation of pending appeal.

    The final judgment in this case enjoined the defendant from doing certain things. Defendant appealed from the judgment to the general term, where it was affirmed and thereupon appealed to the Court of Appeals— on motion upon notice to the plaintiff, defendant obtained an order suspending, pending the appeal to the Court of Appeals, the operation of the judgment so far as it contained an injunction against the defendant upon certain conditions.

      Held, (1). That the court, by reason of its inherent power in respect of its own judgment, had power to stay proceedings upon the judgment, or that might be taken to enforce it. But (2). That it had no power so to suspend the operation of the judgment as to relieve the defendant from the duty of the obeying the judgment therein contained pending an appeal therefrom.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided January 7, 1889.
    Appeal by the appellant from an order made at special term.
    The facts sufficiently appear in the opinion.

      George C. Genet, attorney and of counsel for appellant, on the questions considered in the' opinion, argued:—
    By the order appealed from the defendant has obtained a right, pending its own appeal to the court of appeals, to forbear mining plaintiff’s coal, and to continue to endanger its safety by omitting to shut off the water that it has brought down upon it, but which enables it to make a large profit elsewhere, and to continue to mine its own coal through works that should he devoted to mining plaintiff’s coal, and to continue to extend its illegal use of plaintiff’s land. No single judge can, on motion, lawfully reverse or modify a final judgment so rendered and duly entered. His power is limited to staying proceedings upon it, pending appeal in the cases, and in the manner provided in the statute, and in no other way. Judgments are sometimes suspended before entry by the judge who tries the cause, until the general term can pass on some difficult question of law, but not after judgment entered. The provisions are laid down by the Code Sections 1327 to 1331, and are § 1327, security to stay on judgment for money; § 1328, security to stay on judgment for delivery of personal property; § 1322, on judgment for a chattel; § 1330, on judgment directing a conveyance; § 1331, security on judgment for real property. This section provides, “If the appeal is taken from a judgment which entitles the respondent to the immediate possession of real property, or from a judgment or order directing the sale or delivery of possession of real property, it does not stay the execution of the judgment or order until the appellant gives a written undertaking that he will not while in possession of the property, commit or suffer to be committed any waste thereon, and that if the judgment or order is affirmed, or the appeal dismissed he will pay the value of the use and occupation.” This provision is the same as the provision of 2 E. S. 606, § 85, prior to the Code, and is the only provision of the statute that can in any way be construed into a provision affecting the mandatory or the prohibitory part of this judgment.
    The order appealed from does not conform in any respect to these provisions or to the general policy of the statute on the subject.

      Frank E. Smith, attorney and of counsel for respondent, on the questions considered in the opinion, argued:—

      The order appealed from- was within the power of the court. Section 1351 of the Code authorizes the court, on appeal to the general term, to “ stay the execution ” of the judgment appealed from. But as a judgment of injunction executes itself, a stay of proceedings upon such a judgment is ineffectual to relieve the party from the duty of immediate obedience to it. Sixth Avenue R. R. v. Gilbert El. R. R., 71 N. Y. 430. In order therefore to “ stay the execution ” of such a judgment an order must be made, which by arresting the operation of the judgment, shall prevent it from executing itself. The usual chancery practice in such cases is to make an order suspending the injunction pending the appeal. Daniel’s Ch. Practice (4th ed.), p. 1468-1470; Rule 93 of Equity Rules of Supreme Uourt of United States; Kerr on Injunctions, 32. But it will doubtless be argued that the authority conferred by § 1351 of the Code only extends to appeals from the special to the general term, and that on appeal to the court of appeals authority must be found in the provisions of §§ 1327 to 1332 relating to appeals to that court. It may be conceded that these particular sections do not in terms provide for arresting the operation of a judgment of injunction. Section 1310, which relates to appeals generally, provides that when an appeal is perfected, and the other acts performed, if any are "required to be done to stay execution, the appeal ipso facto “ stays all proceedings to enforce the judgment.” As regards a judgment of injunction there are no acts required to be done to stay execution. But since a judgment of injunction operates on the defendant without the aid of any proceeding to enforce it, the stay resulting from this section of the Code is not available. This section however, does illustrate the general purpose and intention of the legislature to permit a judgment of any kind to be superseded on appeal. Authority, then, to make the order in question must be found in the general powers of the court and these we think are ample for the purpose.

      In Granger v. Craig, 85 N. Y. 619, an order had been made staying proceedings in a foreclosure suit pending appeal to the court of appeals upon the execution of a certain specified undertaking which was not the undertaking required by § 1331 in order to make the appeal itself a supersedeas. The power of the court to make such an order was challenged. The court of appeals say: “ The Code does not abridge the power that the supreme court has always had over its own judgments, to stay proceedings on them for such time, and on such terms as to the court seem proper.” The power to suspend a decree exists inherently in every court of equity, and is freely exercised.
    In Sixth Avenue R. R. v. Gilbert El. R. R., 3 Abb. N. O. 53, an order was made by Judge Van Vorst staying proceedings upon the judgment of injunction which order was plainly intended to supersede the judgment pending the appeal, though the court of appeals in the same litigation held that, as the order merely stayed proceedings to enforce the judgment, it did not stay the execution of the judgment, because the judgment executed itself (71 N. Y. 430). In Amoskeag Co. v. Garner, reported in a note to 3 Abb. N. C. 53, Judge Barrett made an order suspending an injunction pending appeal. In Walford v. Walford, L. R. 3 Ch. App. 812, a decree awarding a perpetual injunction had been made, from which an appeal was taken, and a motion made to suspend the decree pending such appeal, which was granted, the court saying: “ The usual course is to stay proceedings pending an appeal only when the proceedings would cause irreparable injury to the appellant.” In Roskell v. Whitworth, 19 Weekly Report 804, an injunction had been awarded by final decree restraining defendant from operating a steam-hammer on the ground that it was a nuisance. A motion to suspend the decree pending appeal, so as to allow the hammer to be operated as before the decree, was denied by the Vice-chancellor but granted by the Justices of

      Appeal. James, L. J., saying : “ If there is a bona fide intention to take the opinion of the court upon it, it is not usual that things should remain otherwise than in statu guo.”
   By the Court.—Sedgwick, Ch. J.

The plaintiff had obtained in the action a final judgment, which with other provisions enjoined the defendant from using in a certain manner described in the judgment, appliances for the mining of coal, placed upon the plaintiff’s property, under an agreement in writing that had been made between the parties, and from depositing upon plaintiff’s land culm or refuse coal from a certain source. The defendant had appealed to the general term where the judgment was modified and affirmed. As affirmed it contained an injunction of the kind described.

Thereupon, the defendant made the motion upon which the order appealed from was granted. The moving papers contained an averment in the affidavit of the defendant’s attorney, “ that defendant intends to appeal to the court of appeals, from so much of said general term judgment as sustains said injunction.”

The order as granted was “ That the operation of the judgment, entered in the above entitled action, etc., so far as the same contains an injunction against the defendant, etc., etc., be suspended, pending appeal by defendant therefrom to the court of appeals, upon condition that, etc., and that it execute a bond to the plaintiff, with good and sufficient sureties in the penal sum of $25,000,” etc.

From the arguments of both learned counsel, it appears that the sections of the Code that refer to what .kind of order or undertaking will stay proceedings upon an appeal to the court of appeals, do not refer to a judgment like the one in this case, containing the injunction, excepting counsel for appellant while admitting, by way of concession, that although the operation of a mandatory injunction may perhaps be suspended, it must be upon condition of filing the undertaking described in section 1331. This section however refers to a judgment which entitles the respondent to the immediate possession of real property, or that directs the sale or delivery of possession of real property. The present judgment is not of a kind referred to in the section.

Although no section of the Code regulates or allows the granting of an order like the one appealed from, I am of opinion, that the court might grant a proper order on the general subject by reason of its inherent power in respect of its own judgment. An order would not be proper if the power of the court were limited as to it specifically. The limitation may be found in the obligation on the court to give full effect to other provisions of the law or in the practice of the court on the subject. In a case like the present, the court has the power that the court of chancery had.

The phrase of the order “ suspending the operation of the judgment so far,” etc., seems a little doubtful in meaning. If it should be considered to mean only staying " the proceedings upon the judgment or that might be taken to enforce the judgment, it would seem that the court might competently grant such an order. By the Code, section 1241, a judgment of the present kind may be enforced by punishment for disobeying it. In Sixth Ave. R. R. v. Gilbert E. R. R., 71 N. Y. 430, one question discussed but not determined was, whether proceedings to punish for contempt was a proceeding in an action. If such proceedings were not in the action but were special, that would be a reason for holding, that an order made in them might be taken by appeal to the court of appeals. It would not be a reason for saying that such proceedings would not be stayed by an order granting a stay of proceedings, for such an order stays all proceedings to enforce a judgment, and one method of enforcing a judgment containing an injunction, is by proceedings to punish for disobedience of it, even if they be in their nature special proceedings.

But while this may be, such a stay would not justify a disobedience of the injunction, for in the nature of things, a stay of the plaintiff’s proceedings do not refer to the acts of the defendant, and if during the stay the defendant disobey the injunction, the order of stay would not be an answer to proceedings to punish made after the stay is dissolved. Sixth Ave. R. R. Co. v. Gilbert Elevated R. R., 71 N. Y 430. Therefore if the order appealed from means not a stay of proceedings to enforce the judgment but a release of the defendant from the- duty of obeying it for the time and until the appeal is decided, it is necessary to determine whether the court has the power to make such order. Both counsel have argued the appeal as if the order had the meaning last referred to.

A final judgment fixes, absolutely and unconditionally, the rights of the parties. By the law, as it stands under the Code, no .court, except upon an appeal, can in a proceeding in the action reverse or modify the judgment. There is no reason for excepting from this rule, the time when the judgment by express provision in it or by its implication is to go into operation. The judgment adjudicates finally, that it is the legal duty of the defendant, then and thenceforward, to refrain from" the acts that are injurious to the plaintiff. To order, contrary to the terms of the judgment that the injunction should not operate as between the parties until the lapse of a month, or of a year, would at least modify the judgment. To permit such a delay and such an impairment of the plaintiff’s enjoyment of her rights, would take from her a part of what has been adjudged finally to be her right and without remedy, excepting another action upon the undertaking. For it must be considered that if the operation of the judgment is suspended, there can be no remedy, by proceedings, to punish a disobedience, taken after an affirmance, should the judgment be affirmed. The legislature in the Code has allowed this to be done, in certain cases, but not in a case like the present. In my judgment there was no power to release the defendant from its obligation, under the judgment for a time, and this would be the result of suspending the operation of the injunction.

This conclusion is sanctioned by the observation of the chancellor in Graves v. McGuire, 6 Paige 381, which was decided under the provisions of the Revised Statutes. These provisions do not vary from those of the Code, that refer to the same matter, so as to make the observations inapplicable here. The chancellor said: “ If the order appealed from was an order granting an injunction, the same is not dissolved by the appeal, so as to authorize a party to proceed in violation of such an injunction pending • such an appeal, although the present or immediate power of the court below to punish the party for a breach of the injunction pending the appeal, would perhaps be suspended until after such appeal was disposed of by the appellate court. 2 R. S. 607, § 89. The reference here to an appeal itself staying proceedings means an appeal in connection with a certificate of probable cause, obtained under Chancery Rule, 116. The case cited refers affirmatively only to the powers given by the Rev. Stat. and the Chancery Rules. There was no claim that the court could make any order that would affect the duty of the defendant, under an injunction in a final judgment. I cannot find that the court of chancery of this state, has made, at any time, such an order.

The order should provide for the modification of the order appealed from in accordance with the views expressed without costs.

Freedman and Ingraham, JJ., concurred.


text:
    JASPER P. ROE, Respondent v. THE MAYOR, &c., OF THE CITY OF NEW YORK, Appellant.

      Negligence—Municipal corporation—Duty as to keeping coverings in street, after adoption, in repair—Injuries resulting from causes for which the defendants are responsible, the danger from which is enhanced by causes from which alone no liability would attach, liability for—Expert testimony as to effect of rain on streets of much traffic, admissibility of-— Charge, requests to refused, exceptions when too general.

    Conceding that the selection by a municipal corporation of a covering for a gutter in a street which was likely, beyond doubt, to be dangerous and unfit for travel on it, was a proper use of its discretion for an error in the exercise of which it would not be liable, yet after having selected such covering it is bound to keep it in repair and good order, and is liable for any injuries resulting from the neglect of that duty.
    If such covering becomes worn and smooth so as not to furnish a safe foot-hold and to be dangerous to those stepping on it at all times, and especially if it be wet and muddy, the fact that an injury results from the conjoint causes will not relieve the corporation from liability therefor.
    An officer of the weather bureau was asked as to the effect of such a rain fall as he had previously described upon a New York street of much traffic, the evidence was excluded, held no error.
    When the court in its charge correctly refers to some parts of those requests to charge which it had refused, and had made it unnecessary to charge other parts by the way in which it described the legal liability of the requestant, an exception without specifying any particular omission is too general.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided January 7, 1889.
    Appeal from judgment entered on verdict for plaintiff and from order denying motion for a new trial made upon the minutes.
    After the close of the testimony on both sides and before the judge charged the jury, defendant submitted the following requests to charge :

      1. The city of - New York is not the insurer of the safety of the public streets, and is- compelled by law to do no more than take reasonable care of the same.
    2. The city has, in law, the right to determine the particular kind of pavement which shall be used for its streets and sidewalks; and it is, therefore, not for the jury to say whether stone, iron or wood be safest or best for such purpose.
    3. There is no obligation assumed or imposed by law upon the city to keep its streets at all times and at all hazards in an absolutely safe condition for travel; the liability, therefore, of the city, so far as this case is concerned, and in all cases of a like nature, depends upon the fact whether the municipality has exercised due care under the circumstances in the maintenance or reparation of the streets. The mere existence of a defect from which a traveler sustains injury does not (independently of negligence) establish a culpable breach of duty on the part of the municipality.
    4. The jury, therefore, must not assume in this case, that because the iron plates, or some of them, used as gutter coverings, have worn smooth “ here and there,” that any responsibility or liability thereby necessarily attaches to the municipality.
    5. The omission of the city authorities to provide an underground sewer at Washington and Warren streets, for the purpose of carrying off the water from the street, furnishes no evidence whatever of negligence.
    6. There being no evidence whatever of consequential damages, the value of the horse alone, testified as being 13 50, is all plaintiff can recover.
    Thereupon the judge charged as follows:
    The plaintiff alleges that on the 3d of October, 1887, a horse belonging to him was injured through negligence of the defendant, and without any negligence on the part of the plaintiff or of his servants.
    The defendant denies that plaintiff’s horse was injured through its negligence; and it also denies that it was injured without negligence on the part of the driver of the horse.
    The first question, then, that you will determine is, was the horse injured, without negligence on the part of the driver of the horse ? And the next question is, was he injured through the negligence of the defendant. By the defendant, I mean the corporation of the city of New York and its servants.
    If you come to the conclusion that the horse was injured without negligence on the part of the driver of the horse, and through the negligence of the defendant, the city of New York, then you will ascertain what was the value of the horse.
    It is the duty of the city of New York to keep its streets in such a condition that persons may travel through them without injury to life or limb, not only in fair weather but also in rainy weather. But the corporation is not an insurer of the safety of those who use the streets. It is bound only to exercise a reasonable degree of care and diligence through its appointed officers ; and if it has exercised that reasonable degree of care and diligence, and then an accident should happen, still it is not negligent.
    The corporation of the city of New York is bound, when it has received notice that there is a dangerous place in one of the streets, to remove that danger within a reasonable time. And the corporation is also bound to loóle, on its own account, to see whether there are dangerous places in the streets.
    Now, the negligence of the corporation, if it be negligent, in this case consists in the fact that it either failed to repair this defective place, if it be a defective place, after it had received notice of the defect, or that it allowed it to remain in the defective condition for so long a time that it was negligent in not finding out that there was such a defect there. In other words, its negligence in the last view would be what the lawyers call constructive negligence—negligence because it failed to exercise due care in ascertaining whether or not there was a defect in the streets.
    You have heard the testimony as to this point, and it becomes material then, for you to ascertain how long the street was in a defective or dangerous condition, if it be a dangerous condition. And if you find that it had been in such a condition for months or years prior to that time—prior to the third of October—then you would be authorized in saying that the city was negligent in not repairing it.
    If the plaintiff is entitled to recover at all, he is entitled to recover only the value of the horse. That value, I believe, has been fixed by the experts at §330 or §350. You may find, if you conclude that the plaintiff’s property was injured without negligence on his part and through the negligence of the defendant, in any sum up to §350, but as I told you, you can find against .the city only if you come to the conclusion that this was a dangerous place, and also if you come to the conclusion that it remained there for so long a time that the city was negligent in not repairing it.
    The other requests I refuse to charge.
    At the conclusion of the charge defendant’s counsel excepted as follows : “ I except to your honor’s charge and to the refusal to charge my requests, other than the first and sixth; said first and sixth having been charged.”
    The other facts sufficiently appear in the opinion.

      George F. Murray, attorney and of counsel for respondent, argued:—
    I. The exception to the exclusion of the expert testimony is untenable. The witness was not shown to be an expert regarding the streets of New York, and if he were, the subject of inquiry is the effect of rain on this particular locality and on these very plates.
    II. It is not deemed necessary to examine with particularity the several propositions which defendant sub.mitted. The presiding judge charged favorably for defendant, and gave the jury accurate and full instructions about the law applicable to the facts as developed. This is true respecting each of the proposed requests of defendant. It is not the province of the trial judge to lecture upon the general doctrine of the rights and duties, in negligence cases, of municipal corporations when he is delivering his charge. He acquits himself of his whole obligation when he tells enough to the jury about the law which fits the relevant facts to keep them from going astray.
    III. Defendant tried this case on the theory that Urquhart against the City of Ogdensburg, 91 N. Y. 71, applied to the facts. It is unnecessary to adopt or dispute the doctrine of that case. In effect we accept it unreservedly. It is undoubtedly true that, as is stated, “ the rule is well settled that where power is conferred on public officers or a municipal corporation to make improvement.....the duty to make them is quasi-judicial or discretionary, involving a determination as to their necessity, requisite capacity, location, etc., and for a failure to exercise this power, or an erroneous estimate of the public needs, no civil action can be maintained.” What the plaintiff complains of in this case, and what the jury have found to be the fact, is that the defendant allowed the crossing to fall into disrepair, to get into a condition in which by reason of the want of repair it was not reasonably safe for traffic. That being the case, the plaintiff himself could have no better support than this very case of Urquhart, and the cases, Hines v. City of Lockport, 50 N. Y. 238; Mills v. The City of Brooklyn, 32 IV Y. 489; Saulsbury v. The Village of Ithaca, 94 N. Y. 27; Requa v. City of Rochester, 45 N. Y. 134.

      Henry R. Beekman, counsel to the corporation, and W. Hartwell of counsel for appellant, argued:—
    I. The complaint should have been dismissed because, as matter of law, the city cannot be held liable for the use, or toleration of the use, of a particular species of pavement for its streets, or what amounts to the same thing, cannot be held liable for the obviously natural consequence and logical result of such a use. No responsibility or liability should attach to the municipality in the case at bar, because of the smoothness and consequent slipperiness (when wet) of a material such as iron when used as a pavement. The adoption of this material by the municipal authorities as a pavement for a portion of Washington and Warren streets was an act entirely within their discretion, and there can be no question but that the charter makes them the sole judges on this point. Subd. 9 of section 86 of chapter 410, Laws of 1882; Lansing v. Toolan, 37 Mich. 152; Urquhart v. Ogdensburg, 91 N. Y. 71; Dillon on Mun. Corp., § 751 (3d ed.) In the case at bar no questions of fact as to the repair or disrepair of the gutter-coverings in question arise upon the testimony except in the most strained and narrow construction of it. The iron plates were admittedly unbroken and in their places. The fact that certain witnesses for the plaintiff testified that the plates were worn smooth here and there, or the fact that rain and mud, ex necessitate, made them slippery, as the witnesses on both sides admitted, but sustains the proposition contended for in this brief : that if the city had the right to use iron it was not bound to insure it against a purely incidental feature. Nor would the fact testified to, that when the plates were originally put down they were roughened by being cut in squares, prevent rain or wet mud from rendering them slippery even at the outset. To give the case to the jury, in such a condition of the testimony, except with the most careful instructions as to discrimination, was but to tempt them to usurp the province of others, and was at variance with well established rules of law. Under the above cases and that of Walter M. Hunt v. Mayor, etc., of New York, 109 N. Y., 134; it was error for the court at trial term in the case at bar to refuse to charge as requested that: “ The omission of the city authorities to provide an underground sewer at Washington and Warren streets for the purpose of carrying off the water from the street, furnishes no evidence whatever of negligence.”
    II. Nor is the city liable in a private action for an omission to exercise discretionary functions for benefit of the public at large. Urquhart v. Ogdensburg, 91 N. Y. 71; 2 Dillon on Municipal Corporations, § 753 ; Wharton on Negligence, § 260; Hines v. City of Lockport, 50 N. Y. 236, 238; Mills v. City of Brooklyn, 32 Ib. 489; Lynch v. The Mayor, 76 Ib. 60; Hunt v. Mayor, 109 Ib. 134; Saulsbury v. Ithaca, 36 Hun, 12.
    HI. The question put to Elias B. Dunn, an official of the Weather Bureau of the United States, was erroneously ruled out by the court. The question was perfectly proper in form, and was pertinent to the issue and admissible. The witness was called as an expert and asked in regard to matters about which he was, therefore, presumably better informed than the average citizen would be likely to be, and the defendant certainly had the right to ascertain from him: first, whether or not he had any such knowledge; and, secondly, what his conclusions from such knowledge were. These were facts for the jury to weigh, since they were germane to the issue before them as to whether or not due care had been exercised by the city authorities in regard to the streets.
    IV. The court below erred in refusing to charge as requested by the defendant, and for such error a new trial should be awarded. The defendant made of the court six requests to charge. The court charged Nos. 1 and 6, but refused to charge Nos. 2, 3, 4 and 5. To these refusals the defendant duly excepted. The principles involved in the said requests Nos. 2, 3, 4 and 5, are sufficiently well established not to need the citation of authorities here. The only question is: Is it not likely that the failure of the court to give the jury the opportunity to be warned against ah infraction by them of these principles in their deliberations, tended, in the special circumstances of this case, to mislead them or obscure the issue.they were to try ? It is submitted that the defendant was plainly entitled to have some direction given to the j ury upon all these points. In the case of the refusal of request No. 2, how easy it might well have been for the jury, not warned, after hearing the testimony of the plaintiff’s witnesses as to the number of horses they had seen slip on the gutter-coverings with which this controversy is concerned to reflect: “We think it was negligence on the part of the city authorities to have any iron gutter-coverings in the mid-street. They ought to know that iron is, from its nature slippery.” But nowhere in the charge of the court is anything to be found which bears upon the distinction here to be observed, although no less important a witness than the engineer in charge of sewers called by defendant, testified that wood would be safer, than iron for a gutter-covering, and in the same connection that the question of iron or wood was one of expense only. As to request No. 5, and the failure to charge the same, it would seem to have been equally easy for a juror to say to himself that the failure of the city to provide an underground sewer at Washington and Warren streets, was a piece of negligent parsimony; that a city so great as New York should manifestly have no surface sewerage system at any points where there was a dense population and the traffic great; all of which this court knows, the jury has no more right to pass judgment upon, in law, than it has to do with determining the rules of evidence or the imposition of fines.
   By the Court.—Sedgwick, Ch. J.

The complaint charged, that the horse of plaintiff slipped and fell upon an iron plate or covering over a gutter, across a certain street and that the slipping was caused “ by reason of the dangerous, negligent and unskillful construction and maintenance by the defendant of the said iron plate or covering,” etc.

Upon the trial there was testimony upon which the jury could have found, that the iron' covering, when it was first placed over the gutter, was rough on its surface and furnished a safe foot-place for horses, and since then the roughness had been worn off until its surface was so smooth that it did not furnish a safe foot-place for horses, and was dangerous to horses stepping upon it on all occasions and especially if it were wet and muddy.

On the trial the defendant’s counsel moved for a dismissal of the complaint on the ground that the city cannot be held to liability for an exercise of its judgment and discretion in selecting particular material for a covering of a gutter across a street, and Urquhart v. Ogdensburg, 91 N. Y. 71, was cited to support the motion.

It might be doubted if, in the first instance, the covering was beyond doubt likely to be dangerous and unfit for travel upon it, whether a selection of it would be a use of discretion rather than an abuse of discretion. If this doubt were not valid, the case cited, and others which follow it, declare it to be the duty of a corporation to keep in repair or good order, whatever it has once competently devised and selected. It was therefore for the jury in this case to find whether or not the city had negligently suffered the iron plate which was in the first place safe to become smooth and unsafe, without replacing it with a fresh plate or in some way preventing the place in the street remaining in a dangerous state.

It may be suggested, that if the slipperiness was because of the wet and mud upon the covering of the gutter and therefore the result of causes for which the city was not responsible, Kinney v. The City of Troy, 108 N. Y. 567; Kaveny v. The City of Troy, 108 N. Y. 571, the plaintiff should not recover. In the present case, it was for the jury to say whether the slipperiness resulted from the wet and mud, only, or from the smoothness of the covering, with the wet and mud upon it. If the latter were the cause, and the city negligent in respect of that, then the defendant would not be entitled to a dismissal of the complaint. On the trial the defendant did not ask that the jury should pass upon the matter.

The learned counsel for the city, urges that the cause of action alleged in the complaint did not include a case of the city negligently suffering the plate to get out of repair or out of order. On the trial, no specific allusion was made to the testimony as not supporting the complaint as it was framed. The objections were taken to the sufficiency of the proof to sustain a cause of action, and the proof did sustain the allegation of the complaint that the defendant “ negligently maintained ” the street in the respect specifically averred.

The court refused to allow the question asked for the defendant, of an officer of the Weather Bureau. “ Are you familiar with the effect upon a New York street of much traffic, that such a rain-fall would have ? The witness had testified that rain had fallen, of a described quantity, recently before the accident.

Several considerations support the ruling of the court, even if it be assumed that the witness was an expert, as to part of the subject of the question. The question was too general as relating to many streets in many and various conditions. As to parts of the effect of a rainfall, which are commonly observed, the witness was not an expert.

Before the charge to the jury, the counsel for defendant made six requests to charge. In the charge the ■court complied with the 1st and 6th requests and said, “The other requests I refuse to charge.” There was an exception to that refusal. The court in the charge as made, had correctly referred to some parts of the requests it refused to make, and had made it unnecessary to charge other parts by the way in which it described the legal liability of the defendant. The exception therefore was too general, as there was no specification of any particular omission by the court.

The judgment and order should be affirmed with costs.

Freedman and Ingraham, JJ., concurred.


text:
    THE NEW YORK SMELTING AND REFINING COMPANY, Appellant v. GEORGE LIEB, Respondent.

      Evidence, exelusion of, when not injurious to appellant—agency as to a particular transaction, exclusion of testimony as to general powers of a superintendent of a corporation when not injurious, § 829 Code of Civil Procedure, who not debarred from testifying by its provisions, one for whose benefit the business in relation to which the evidence is given, he being an inf ant,is not.

    One of the questions involved in this case was whether one Schoenberg, the superintendent of plaintiff, was constituted the agent of plaintiff according to whose directions defendant was to construct a certain machine; evidence was given on behalf of the defendant that at the time when he was employed to construct the machine the president said 'to him, “You make this machine as Schoenberg instructs you.” The court charged the jury that Schoenberg, as superintendent, simply had no authority to direct the defendant; but that if the president did make to defendant the said statement the defendant had a right to act in accordance with the instructions given by Schoenberg. Held, that the exclusion of testimony as to the custom of the superintendent, as to the mode of the business of the company, as to whether any person other ' than the president was authorized to give orders, and as to whether the witness (not being the president) authorized the superintendent to give directions as to the machine in question, or for extra work, was not injurious to the appellant, even if the evidence was relevant, and therefore its exclusion was not ground for reversal.
    On the trial a son of the defendant was permitted to testify to directions given by Schoenberg (Schoenberg being deceased). Held, that although the business -was set up and prosecuted for the benefit of the son, yet as he had no legal interest in it and as being an infant he could not have a legal interest, and as he was not a party to the action and was not interested in the event, and was not one from whom the defendant had acquired an interest he was not precluded from testifying by the provisions of § 829 of the Code of Civil Procedure.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided January 7, 1889.
    Appeal from judgment entered on verdict of jury.
    The facts sufficiently appear in the opinion.

      Leopold Wallach, attorney and of counsel for appellant, argued:—
    I. The learned judge erred in not admitting the questions tending to show the extent of the authority of Schoenberg, the superintendent, and the custom of the plaintiffs relative to the giving of orders. MacDonell on Lato of Master and Servant, 244; Starr v. Gregory, 6 Montana Reports, 485; Smith’s Law of Master and Servant, 4th ed., 275 ; 2 Starkie N. P. C. 281; Salk. 442; Ward v. Evans, Comb. 450; 2 Ld. Raym., 930; Paley on Agency, 137; Wood on Master and Servant, 503, 529; Maunders v. Conyers, 2 Starkie 250; Story on Agency, § 77, p. 96 ; Howard v. Smith, 56 Mo. 314; Kraft v. Fancher, 44 Md. 204; Smith’s Mercantile Law, 120; Pickering v. Busk, 15 East 38; Gallinger v. Lake Shore Traffic Co., 67 Wisc. 529 ; 30 Northwestern Rep., 790.
    II. The. learned judge says, that he “ will charge the jury, that simply as superintendent he (Schoenberg) had no authority to order goods.” This leaves us to think that the reason for the exclusion of the testimony, tending to show custom, was the fact of Schoenberg’s connection with the company as one of its trustees. The members of a corporation aggregate cannot separately and individually give their consent in such manner as to oblige themselves, as a collective body, for in such case it is not the body that acts. Angell and Ames on Corporations, 9th ed., 206; Winchester v. Balt. & Susquehanna R. R. Co., 4 Md. Rep. 239, 240.
    TTT. The learned judge erred in admitting any of the testimony relative to conversations between Schoenberg and the defendant. Card v. Card, 39 N. Y. 317; Potts v. Mayer, 86 N. Y. 302. Section 829 of the Code of Civil Procedure, undoubtedly covers this case.

      Walsh & EcJcerson, attorneys, and P. Q. EcJcerson of counsel for respondent, argued :—
    I. The president of the company having told defendant’s son, who was to build the machine, that “ Mr. Abram Schoenberg (the superintendent of plaintiff) would direct us how to build the machine—he was the inventor of it”—it was proper for this son of defendant to state what Schoenberg said to him in reference to the machine, and the motion to strike out this evidence was properly denied.
    II. The rule of the plaintiff as to by whom orders had to be signed, or who should give orders, except the president, etc., could in no way bind or affect the defendant in this case. It had been previously shown that- the president gave the order for making this machine, and there was no by-law fixing these duties. The question as to what were the duties of a man who had nothing to do with the matter in question, was clearly improper, and objection .thereto was properly sustained, as were also the questions as to the rulés of the factory properly excluded, and I submit that no error was committed upon any of the rulings on the evidence.
   By the Court.—Sedgwick, Ch. J.

action .was The to recover certain sums paid on account to the defendant, under a written contract between the parties, by which the defendant was to make a certain machine for the plaintiff, the plaintiff alleging that the defendant failed to make or deliver the machine as provided by the contract. The answer alleged performance of the contract by the defendant and made a counter-claim for the part of the contract price that remained unpaid and for extra work and materials furnished at request of the plaintiff.

The objections taken upon the trial by plaintiff referred especially to the relations of one Schoenberg to the plaintiff, the defendant claiming that he was the agent of plaintiff to direct the defendant as to the manner in which the machine should be constructed.

It was conceded, virtually, that Mr. Schütz, the president of the plaintiff, had authority to make the contract and to direct the manner of its performance. The defendant gave testimony, that the machine was built according to the directions of Schoenberg, who was a superintendent of the manufacturing department of the plaintiff. Among other facts and declarations that tended to establish that Mr. Schütz gave specific authority to Schoenberg to act for the plaintiff in the matter was proof by the defendant that at the time the contract was made, Mr. Schütz said to the defendant, that Mr. Schoenberg would direct him how to build the machine, he being the inventor of it.

The plaintiff disputed the facts and claimed that Schoenberg was not the agent of the plaintiff. For the purpose of maintaining their position, they asked of witnesses, being officers of the plaintiff, questions like these. And in regard to orders, what was the custom, if he, Schoenberg, wanted anything, so far as you were concerned ? What was the usual mode of business in your company, if anything was desired or any order was to be given, as coming from the superintendent? Who, if any person in the place, was authorized to give orders for machinery or matters of that kind, with the exception of the president? Was there any one in your place, who was authorized to give orders for machinery or for any outside work with the exception of the president ? Did you (the witness not being the president) ever authorize him to make any contracts or to superintend the manufacture of a machine which Mr. Lieb was making or to give orders for extra work ?

The witnesses of whom these questions were asked had without objection described the duties and employment of Schoenberg, as superintendent and in his general relation to the company. But the questions were immaterial to the issue, in view of the statement of the court as to the way in .which he would submit it to the jury, and this statement conformed to the charge after-wards made. The charge was that Mr. Schoenberg, as superintendent, simply had no authority to direct the defendant; that the question for the jury was, did Mr. Schütz delegate to Mr. Schoenberg the power of controlling Mr. Lieb in reference to the construction of the machine, and that if it were the fact that Mr. Schütz did say to the defendant, “You make this machine as Schoenberg instructs you,” then the defendant had a right to act in accordance with instructions given by Schoenberg.

It therefore appears that the exclusion of the questions, was not injurious to the plaintiff even if it is assumed that they were relevant.

It appeared on the trial, that Mr. Schoenberg was dead. On the argument of the appeal it is insisted that a witness was allowed to testify as to Schoenberg’s directions to defendant, after it was objected that the evidence was incompetent under section 829 Code Civil Procedure that forbids a party, etc., from testifying to a personal transaction with the deceased, etc. .The witness referred to was not a party or a person interested in the event or one from whom the defendant had acquired an interest. He was. the son of the. defendant, and although the defendant’s business was set up and prosecuted for the benefit of the witness, yet the witness had no legal interest in "the business and being an infant, was, under the circumstances incapacitated from having a legal interest. There is no intention to hold that if it were otherwise the exception taken would raise the point or be valid in itself. The exceptions on this subject should not be sustained.

What has been said, has referred to all the exceptions argued upon the appeal.

The judgment is affirmed with costs.

Freedman and Ingraham, JJ., concurred.


author: By the Court.—Sedgwick, Ch, J.

text:
    AMOS R ENO, Respondent v. THE METROPOLITAN ELEVATED RAILWAY COMPANY and THE MANHATTAN RAILWAY COMPANY, Appellants.

      Injunction—Judgment, to beco'nie operative only in event of defendants declining to avail themselves of a grace or privilege tendered by it, effect of granting the grace—Testimony bearing on the question as to what grace or privilege should be extended, admission of not in.

    On the trial of the action the court received evidence as to the extent of injury to the permanent value of the premises in question and adjudged that such permanent value had been diminished to the amount of $10,000; and further adjudged, that after sixty days defendants be enjoined and restrained, etc., unless within said sixty days they paid or tendered to plaintiff the said sum of $10,000, and a certain deed, in the judgment provided for, to be executed by plaintiff. Held, no error.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided January 7, 1889.
    Appeal by defendants from judgment entered Upon findings made at special term.

      The provisions of the judgment which came under consideration on the appeal, are as follows :
    “ And it is further adjudged, that the construction and operation of the elevated railroad owned and operated by the said defendants, opposite the premises No. 6 Morris street, in the city of New York, the property of the plaintiff, and situate at the northeast corner of Morris street and New Church street, or Trinity Place, extending eighty-three feet and three inches or thereabouts along the easterly side of said New Church street, has diminished the permanent value of the said premises to the amount of ten thousand dollars.
    “And it is further adjudged, that after the expiration of sixty days from the date of the entry of this judgment and the service of a copy thereof, with notice of entry upon the defendants’ attorneys, the defendants the said, the Metropolitan Elevated Railway Company, and the Manhattan Elevated Railway Company, and each of them, and all persons under them be, and they hereby are enjoined and restrained from operating their railroad in said New Church street, opposite the plaintiff’s said premises, or from continuing the railroad at that place, unless within the said sixty days, the defendants shall have paid or tendered to the plaintiff or his attorney thé said sum of ten thousand dollars with interest thereon, from the 29th day of June, 1888, and a sufficient deed for execution by the plaintiff to convey to the defendants, or either of them, all the interest, property, rights and easements of the plaintiff in and to said New Church street, in front of the said premises taken by the defendants by the erection and operation of their said railroad as the same existed on the 29th day of June, 1888, and the plaintiff shall thereupon have neglected or refused to execute said deed.”

      Davies & Rapallo, attorneys, and Charles A. Gardiner and Brainard Tolies, of counsel for appellants, argued:
    I. The judgment is erroneous, because it absolutely enjoins the operation of the defendants’ railway unless the defendants tender to the plaintiff the sum of $10,000. The judgment leaves but two courses open to the defendants: (1) To submit to the operation of the injunction. (2) To purchase the plaintiff’s easements in New Church street at the price fixed by the court. There was a third course which the defendants asked to have left open to them, namely, the acquisition of plaintiff’s easements by the exercise of the power of eminent domain. This alternative the learned judge below refused to leave open. Under the judgment as it stands, even should they acquire the plaintiff’s easements by condemnation proceedings, they would be restrained from making use of the rights thus acquired for the operation of their railway. The defendants submit that there is no precedent for such a refusal. On the contrary, they direct the attention of the court to the fact that the alternative, which the defendants requested the court to leave open, is one which has been regarded as peculiarly suited to the circumstances of such cases as the one at bar. Henderson v. The New York Cent. R. R. Co., 78 N. Y. 423 ; Story v. The New York Elevated R. R. Co., 90 N. Y. 179 ; Glover v. Manhattan Ry. Co., 51 N. Y. Super. Ct. 1; Methodist Society v. Brooklyn El. R. R. Co., 46 Hun, 530; Vick v. City of Rochester, 46 Hun, 607; Lohman v. St. Paul, etc., R. R. Co., 18 Minn. 174; (a.) The statutory method of appraisement is the one directed by the constitution. Sec. 7 of art. 1 of the constitution of the state of New York. It has been decided that the method prescribed by the constitution for ascertaining the compensation to be made under such circumstances is exclusive, and that any other mode of appraisement is unconstitutional. Menges v. City of Albany, 56 N. Y. 374; Hilton v. Bender, 69 N. Y. 86. (b.) The statutory method is peculiarly suited to the nature of the case, (c.) The initiation and supervision of the statutory proceedings constitute part of the exclusive jurisdiction of the supreme court upon which this court should with extreme reluctance infringe. The supreme court asserts jurisdiction to entertain condemnation proceedings in these cases, even after a judgment of injunction in another court. Matter of Kearney, Daily Reg., April 14th, 1888 ; Matter of Elevated R. R. Cos., 18 N. Y. St. Rep. 144; Insurance Company v. Morse, 20 Wall. 445 ; Doyle v. Continental Insurance Company, 94 U. S. 535. (d.) The amount of the award by the learned trial judge for the permanent impairment of the value of plaintiff’s premises by the taking of his easement in New Church street, was based upon such slight and unsatisfactory evidence that a re-examination by commissioners appointed expressly for that purpose is desirable.
    ■ II. The judgment is inconsistent and erroneous, in that it adjudges that the plaintiff’s premises have already been permanently depreciated in value in the sum of ten thousand dollars, and at the same time directs the discontinuance and removal of defendants’ railroad. The portion of the judgment which adjudges that the plaintiff’s property has been permanently diminished in value to the amount of ten thousand dollars, is directly opposed to the remainder of the judgment. It assumes that the injury to the permanent value of plaintiff’s property has already been inflicted, and that the damage has already been suffered. The language used in this portion of the judgment is such as would have justified a provision in the judgment that the plaintiff recover against the defendants the sum of $10,000 as damages already suffered. The defendants submit that this provision should be' stricken from the judgment. It serves no useful purpose. No relief is, at this time, granted the plaintiff upon it. The only effect which it can have, and the effect which it is evidently intended to have, is to bind the defendants as an adjudication in any subsequent controversy with respect to this property. If the defendants should submit to the operation of the injunction and remove their structures, it would afford a basis for an application to the court for a money judgment. Upon such an application it wTould be represented that the final clause of the present judgment was intended only as a means of enforcing the payment of the amount of the permanent depreciation in the value of his property adjudged to have been suffered by the plaintiff, and that that remedy having failed, the court should grant some other means of enforcing the payment. Only by a re-examination of the merits of the case could it be discovered that the clause referred to was a superfluity and did not express the judgment of the court. We cannot believe that it is the intention of the court to adjudge that the plaintiff has already suffered damage by a permanent depreciation in the value of his property. If condemnation proceedings were instituted by the defendants, this portion of the judgment, which is not a determination of any issue raised by the pleadings, and which is not essential to any relief now granted by the court, would be invoked by Mr. Eno -as a prior adjudication of the issue of damages. Upon the discontinuance and removal of defendants’ structures and the payment of all the loss which the plaintiff has suffered up to this time by reason of the diminished rental value of his property, the plaintiff will be restored to his former position, and the defendants should be free from all further liability. Another ground for striking this provision from the judgment is, that it is not a determination upon an issue raised by the pleadings. Neither the complaint nor the answer requests any finding by the court of the amount of the permanent depreciation in the value of plaintiff’s property, or presents in any way that issue to the court for adjudication.

      John E. Parsons, attorney, and Mr. Man of counsel, for respondent.
   By the Court.—Sedgwick, Ch, J.

This was an equity action in which the plaintiff asked for a permanent injunction restraining the defendants from operating or maintaining their elevated railroad in front of plaintiff’s premises.

The defendants object to the judgment that it absolutely enjoins the operation of the defendants’ railway, unless the defendants tender to the plaintiff the sum of $10,000.

The testimony shows that the plaintiff was entitled to an absolute and unconditional judgment of injunction and the condition by which the defendants might be relieved from such an injunction was, a grace or privilege to the defendants of which they cannot complain. The N. Y. National Exchange Bk. v. The Metropolitan Elevated Railway Co. et al., 53 N. Y. Super. Ct. 511. This decision was affirmed by the court of appeals.

I am of opinion, that it was not injurious to the defendants that the court should hear testimony as to what was the proper sum to be named in the condition that has been alluded to, and to specifically find what sum the defendants should pay if they wished to be freed from their obligation to abate the wrong, that consisted in their illegal maintenance and operation of their road. The court did not adjudge that the defendants should pay the sum. If all these matters were stricken from the case, there would remain an unassailable judgment that the defendants should stop persisting in their wrong to the plaintiff. To the general position that the defendants desire now to acquire the plaintiff’s property in a legal manner, the plaintiff is right in replying, that there had been full opportunity for that before the judgment was rendered.

The judgment should be affirmed with costs.

Freedman and Ingraham, JJ., concurred.


text:
    CHARLES CORDS, Appellant v. THE THIRD AVENUE RAILROAD COMPANY, Respondent.

      Negligence, evidence insufficient to establish.

    In this case it being consistent with the testimony that the party injured (a child) by being run over by one of defendant’s cars, came into contact with the horses at the side so suddenly that the consequences were unavoidable, it was Held, that the complaint was properly dismissed.
    Before Sedgwick, Ch. J., and Ingraham, J.

      Decided January 7, 1889.
    Appeal by plaintiff from judgment dismissing the complaint.
    The facts sufficiently appear in the opinion.

      Miller & Savage, attorneys, and George W. Miller of counsel for appellant, on the question considered in the opinion, argued:—
    I. The court below overlooked a rule applicable to such cases which is thoroughly well settled, and, it is submitted, is controlling in this case. The rule is thus stated in the very recent case of Breen v. N. Y. C. R. R. Co., in the Court of Appeals, 109 N. Y. 297. “In an action for negligence where the thing causing the injury is shown to be under the control of defendant, and the accident is such as does not happen in the ordinary course of business, if reasonable care is used, in the absence of explanation by defendant, it affords sufficient evidence that the accident arose from want of care on its part.” This case merely followed and confirmed the same doctrine as held in Russell v. Steamboat Co., 50 N. Y. 126-7-8; Caldwell v. Steamboat Co., 47 N. Y. 282; Seybolt v. N. Y. & E. R. R., 95 N. Y.
      562-568. While the affirmative is upon plaintiff to prove negligence, it is not necessarily to be sustained by “ positive and direct evidence; ” “ proof of circumstances from which the inference may fairly be drawn is sufficient” “ where the inferences are not certain and incontrovertible, for the jury to decide.” Hart v. H. R R. B. Co., 80 N. Y. 622. Although there may have been no eye-witness of the whole occurrence, negligence of defendant and want of contributory negligence may be found from circumstances proved. Smedis v. R. R. Co., 23 Hun, 279; 88 N. Y. 13; Jones v. R. R Co., 28 Hun, 364-366. “ Plaintiff is entitled to have the issue of negligence submitted to a jury when it depends upon conflicting evidence, or on inferences to be drawn from circumstances in regard to which there is room for a difference of opinion among intelligent men.” Payne v. Troy & B. R. R. Co., 83 N. Y. 572; R. R. Co. v. Stout, 17 Wallace, U. 8. 657, and numerous other cases. It is submitted that the case cited by the trial judge,Searles v. Manhatten R. Co., 101 N. Y. 661, is in no sense like the one at bar. That- was an action for an injury alleged to have been caused by negligence of defendant by reason of a cinder falling from one of defendant’s engines and striking plaintiff in the eye while riding on a street car beneath. There was no nonsuit. The court of appeals merely held, upon a consideration of all the evidence, pro and con, that “ there was an utter failure of evidence to show that the accident occurred from any fault, negligence or unskillfulness on the part of defendant.”.....“ The undisputed evidence shows that all the appliances used to prevent the escape of sparks and cinders, were skillfully made and were the best known,” etc.
    There are, however, numerous cases reported which are on all fours with the case at bar, and which clearly show the error in granting the nonsuit. Bahrenburg v. Brooklyn City & H. P. R. R., 56 N. Y. 652; Thurber v. H. B. M. & T. R. R., 60 N. Y. 326 ; Fallon v. Central Park, N. & E. R. R., 64 N. Y. 13; Murphy v. Orr, 96 N. Y. 14; Birkett v. Ice Company, 41 Hun, 404; Kuntz v. City of Troy, 104 N. Y. 344.
    II. In view of the last point it would seem clear that the injury to the child in this case was attributable to one of two causes: either negligence of the driver of the car, or, negligence of the child and his mother. The latter cannot be presumed. The evidence was ample, within the cases cited, to show no contributory negligence, or at least to make it a question for the jury.- “The plaintiff is entitled to the most favorable inferences deducible from the evidence.” Kuntz v. City of Troy, 104 N. Y 352. The injury is not to be presumed to have occurred from normal causes, or without negligence somewhere. • The only inference left is that it was caused by the negligence of the driver. At least, the jury should have been allowed to decide that question. If the .driver, on a clear day, on a clear street, where children and others were, and had a right to be, did not see the child, he was negligent. If he did see it, and did not usé proper care to avoid running over it, he was negligent. Whether negligent, the circumstances being proved, was a question of' fact for the jury.

      Hocidly, Lauterbach & Johnson, attorneys, and Wm. N. Cohen, of counsel for respondent, on the question considered in the opinion, argued :—

      “ A judge will not be justified in leaving the case to the jury when the plaintiff’s evidence is equally consistent with the absence a,s with the existence of negligence in the defendant. In such case the party affirming negligence has altogether failed to establish it.” Benlec v. N. Y. & Harlem R. R. Co., 59 N. Y 356 ; Hayes v. The Forty-second street R. R. Co., 97 N. Y. 259 ; Searles v. Manhattan Railway Co., 101 N. Y. 661; Taylor v. City of Yonkers, 105 N. Y 202.
   By the Court.—Sedgwick, Ch. J.

The action was for damages for the loss of the services of the plaintiff’s child, caused by the negligence of defendant’s servants in driving a car of defendant’s so that the child was knocked down by the horses and seriously hurt.

In my judgment, there were no facts in the case which would have justified the judge in submitting to the jury the issue of negligence. The negligence charged against the driver of the car, was in not stopping the horses before they ran over the child. There was however no fact which tended to show that at any point of time, the child was at a place where the driver could have seen him and then have managed the horses so that the child would not have been knocked down by them. It was consistent with the testimony that the child came into contact with the horses at the side and so suddenly, that the consequences were unavoidable.

There was-no presumption of negligence. Until the contrary is shown it is to be assumed that the driver did his duty in looking ahead over his pathway and would have avoided whatever it was his duty to avoid. To show that he neglected this duty, it was necessary to show that the child was in the way and that it was the duty of the driver of the car to see him. There was an absence of testimony in this respect.

The judgment should be affirmed with costs.

Ingraham, J., concurred.