text:
    Emil Ludekens, as Receiver of The National United Benefit Savings and Loan Company, Plaintiff, v. Charles Pscherhofer and Another, Defendants.

      Bond of indemnity — when the surety is relieved from liability by fraudulent ■ concealment by the obligee — alteration of the affidavit of justification.

    The omission of the obligee to advise the surety upon a bond of indemnity of the refusal of another to go upon such bond as a surety, because he considered the obligor untrustworthy, is not of itself a defense to an action brought against such surety upon the bond.

      Semble, that if the obligee had knowledge, or had been informed, that the obligor was dishonest, and for that reason untrustworthy, and had an opportunity to advise the proposed surety of such fact prior to the receipt and execution of' the bond, and failed to do so, such obligee would be chargeable with fraudulent concealment which might be effectual to relieve the surety from liability as such upon the bond of indemnity.
    A surety is prejudiced by the risk assumed by reason of the non-disclosure of the. fact that the principal, for want of integrity, is not entitled to confidence in the relation which his surety as such is induced to assume to him; such concealment is deemed fraudulent, and everything short of that is insufficient to avoid the obligation of the surety.
    An affidavit of justification, made by the surety and principal to a bond of indemnity, is no part of such bond, and an alteration made therein cannot be treated as'a material, or as any, alteration of such bond.
    Motion by the plaintiff, Emil Ludekens, as receiver of The National United Benefit Savings and Loan Company, for a new trial on a case containing exceptions, ordered to be heard at the General Term in the first instance, after a verdict in favor of the defendants rendered at the Monroe County Circuit on the 25th day of October, 1893.

      John II Hopkins, for the plaintiff.

      William, E. Warner, for the defendant Wagner.
   Bradley, J.:

_ The defendant Pscherhofer was treasurer of The National United States Savings and Loan Company, and to secure to the company the performance of his duties as such treasurer, he, as principal, and the defendant Wagner, as surety, executed a bond on the 30th day of August, 1890, of that date. This action is upon such bond. Defendant Dora Wagner alleges that the officers of the defendant withheld from her knowledge which they had affecting the character for integrity of her principal in the bond to her prejudice, and that after she executed it material alterations were made in the instrument whereby it was as against her rendered void.

Pursuant to the order of the court, made when the action came on for trial, the question of fact for special finding of the jury was: “Is the bond set forth in' the plaintiff’s complaint valid as against the defendant Dora Wagner?” and all other questions of fact were to await the verdict upon that question.

The jury found for the defendant. No question is raised as to the regularity of the trial of that issue alone. It appeared that the principal in the bond had applied to the Fidelity company of the city of New York to become surety for him, and such company declined to do so, and expressed such declination by letter, which was produced and read in the presence of the board of directors of The National United States Savings and Loan Company on the evening prior to the execution of the bond in question. The letter was not produced at the trial. There was some evidence tending to prove that the Fidelity company declined to become surety for him because it did not consider him trustworthy. Whether the letter contained anything to that effect was upon the evidence a disputed question of fact. The omission to advise the defendant Wagner of the refusal of the Fidelity company to go upon the bond was not of itself any defense. But if the savings and loan company, through its .officers, had knowledge or had been informed that the treasurer was dishonest and for that reason untrustworthy, and having the opportunity to do so failed, before the bond was executed and received, to advise the surety of the fact it would be chargeable with fraudulent concealment, which might be effectual to relieve her from liability as such upon the bond. This rests upon the ground that the surety is prejudiced by the risk assumed by reason of the non-disclosure of the fact that the principal for want of integrity is not entitled to the confidence in the relation which his surety as such is induced to assume to him, which concealment is deemed fraudulent. Anything short of that is insufficient to avoid the obligation of the surety. (Howe Machine Co. v. Farrington, 82 N. Y. 121; Atlantic & P. Tel. Co. v. Barnes, 64 id. 385 ; Farmers’ N. Bank v. Van Slyke, 49 Hun, 7.)

In the present case, as there was some evidence bearing upon that question, there was no error in submitting it to the jury.

The question of the weight of the evidence is not here for consideration. The further inquiry has relation to the charge that there was an alteration of the instrument after its execution.

It is not claimed that any change was made in the body of the bond itself, but that in the affidavit of justification made by both the principal and surety some erasures and insertions were made. The affidavit was one in which they both joined, and the evidence on the part of the defendant Wagner is to the effect that when executed it contained the statement that the principal was worth in property the sum of $10,000, and that it was afterwards altered by erasing the word “ property ” and inserting in place of it the word “ business ” and by striking out the figures 10 ” and inserting figure “ 5,” making “ $5,000 ” in place of “ $10,000.”

It is not seen liow this can be treated as a material or any alteration of the bond. The affidavit was no part of it. The liability of the defendants or either of them upon the bond was made no less or greater or in any manner affected by it, as the obligation assumed was not in any sense dependent upon the affidavit of justification.

It seems that no rights, interests, duties or obligations of either of the makers of the bond were affected or changed by the alleged alteration, and it was, therefore, immaterial. (People ex rel. Newell v. Muzzy, 1 Den. 239; Vogle v. Ripper, 34 Ill. 100; 85 Am. Dec. 298 ; Eddy v. Bond, 19 Maine, 461; 36 Am. Dec. 767 ; Inglish v. Breneman, 5 Ark. 377; 41 Am. Dec. 96 ; Smith v. Smith, 1 R. I. 398; 53 Am. Dec. 652.)

Whether the defendant Wagner supposed when the affidavit was made that she was becoming surety for a principal worth $10,000 in property or $5,000 in business, did not concern the obligee any more than it affected the liability of the obligors or either of them. •It may be that the subject of his responsibility, as represented by him in the affidavit, was considered by the surety.

If for any reason he afterwards altered it, the condition of his property or responsibility was not made any different by the alteration, nor was the surety by it- prejudiced in the means available to her for indemnity.

These views lead to the conclusion that the exception was well taken to the submission of the question of the alteration to the jury, with instruction that, if they so found the fact, they might find a verdict for the defendant Wagner.

And for that reason the motion for a new trial should be granted, costs to abide the event.

Dwight, P. J., Dewis and Haight, JJ., concurred.

Plaintiff’s motion for a new trial granted, costs to abide event.


source: Caselaw Access Project

author: Bradley, J.:

license: Public Domain

text:
    Harold J. Emmett, Respondent, v. William J. Penoyer, Appellant.

      Wntten contract — varied by parol proof — acknowledgment of receipt of consideration, — rule excluding pas'ol evidence not available to a third person.

    As a general rule all negotiations leading to a written contract are merged in it,, and parol evidence is not, as between the parties thereto, admissible to vary or modify its terms, but when some of the elements of the agreement are not embraced within the writing, the terms so omitted, as well as undertakings collateral to it, may be shown by parol proof, but such proof to be competent, must be consistent with the terms contained in the writing made by the parties-to express their agreement pro tanto.

    Such rule is not necessarily applicable to evidence offered to prove the purpose-for which an instrument purporting to have been executed as a contract was. made, and to show that it was or has become inoperative for such purpose.

      A mere receipt is not treated as a contract, and the rule is not applicable to it.
    The provision of a written instrument acknowledging the receipt of the consideration is not conclusive, but is open to explanation, and the consideration may be shown by parol proof to be other than that expressed and be proved to be unpaid.
    The rule excluding parol evidence to vary or contradict a written agreement is applicable only to the contracting parties and their privies. It is not available to a stranger.
    Upon tlie purchase by one Penoyer of certain property from one Emmett, an ' instrument in writing was executed and delivered to Penoyer, of which the following is a copy :
    “W. J. Penoyer bought of H. J. Emmett the marble counters, marble floor, glass and silver show case, desk, mirrors and all personal property * * * now in said store No. 809 Fourth avenue, N. Y., it being a part originally bought of W. J. Penoyer and since purchased, $3,500.
    “New York, Dec. 10, 1891. H. J. EMMETT.
    “Witness: W. E. Hitchcock.”

      Held, that the terms of such memorandum of sale were not subject to modification by parol proof.
    Appeal by tbe defendant, "William J. Penoyer, from a judgment pf tbe Supreme Court in favor of tbe plaintiff, entered in tbe office of tbe clerk of tbe county of Genesee on tbe 5th day of September, 1893, upon tbe verdict of a jury for $832.70, after a trial at tbe Genesee Circuit, and also from an order entered in said clerk’s office on the 5th day of September, 1893, denying tbe defendant’s motion to set aside tbe verdict, and for a new trial made upon tbe minutes.
    Tbe plaintiff having in January, 1890, purchased of the defendant ‘■the stock of goods, furniture, etc., of a drug store in tbe city of New York, carried on tbe business there until in December, 1891, when he resold to tbe defendant and executed and delivered to him a bill of sale of which tbe following is a copy:
    ■ “ W". J. Penoyer bought of II. J. Emmett tbe marble counters, marble floor, glass and silver show case, desk, mirrors and all personal property * * * now in said store No. 309 Fourth avenue, N. Y., it being a part originally bought of W". J. Penoyer and since purchased, $2,500.
    “ New York, Deo. 10, 1891. H. J. EMMETT.
    “ Witness : W. R. IIitchoook.”

      The plaintiff alleges that the defendant agreed in consideration of the sale to him to surrender the plaintiff’s notes held by him, and in addition to pay the plaintiff $1,000 as soon as the defendant made sale or transfer of the property, and that afterwards, in March, 1892, the defendant did make sale of it and became liable to pay that sum to the plaintiff.
    The defendant admits that he purchased the goods and thereafter sold them, and he puts in issue the other allegations of the complaint. He also alleges a counterclaim.

      Isaac If. Miller, for the appellant.

      John F. Dorthy, for the respondent.
   Bradley, J.:

The main question here is whether oral proof to the effect that the defendant agz’eed to pay the plaintiff $3,500 instead of $2,500 for the goods was admissible.

The proposition of fact arising upon the conflicting evidence given in behalf of the respective parties was properly submitted to the jury, unless they were concluded as to the price by the written bill •of sale subscribed by the plaintiff.

By that he states that the defendant bought the property, and the price there mentioned is $2,500. After the writing was so executed-the defendant delivered up the plaintiff’s notes amounting to $2,500 and took possession of the property.

It is urged on the part of the plaintiff that no consideration for the sale is expressed in the writing, and that if the sum so appearing may be treated as the consideration, it was competent to prove by parol that it was different in amount from that so expressed for any purpose other than to impeach the validity of the instrument. The sum so stated in the instrument fairly, imports the price for which the sale was made, and no reason is given by the evidence for its application to any other specific purpose. As a general rule all negotiations leading to a written contract are merged in it, and parol evidence is not as between the parties admissible to vary or modify its terms. When, however, some of the elements of •the agreement are not embraced within the writing, the terms of it so omitted as well as undertakings collateral to it may be shown by parol proof. (Chapin v. Dobson, 78 N. Y. 74; Routledge v. Worthington Co., 119 id. 592.)

But such proof to be competent must be consistent with the terms, contained in the writing made by the parties to express their agreement pro tanto. (Case v. P. B. Co., 134 N. Y. 78.)

These are familiar propositions applicable to written contracts, made without fraud or duress.

This rule is not necessarily applicable to evidence offered to prove the purpose for which an instrument purporting to have been executed as a contract was made, and to show that it was or has become inoperative for such purpose. That would not tend to contradict or vary its terms. (Grierson v. Mason, 60 N. Y. 394.) And because a mere receipt is not treated as a contract, the rule-before mentioned is not applicable to it. Therefore, the provision of a written instrument acknowledging receipt of the consideration is not conclusive, but is open to explanation and the consideration may be shown by parol proof to be other than that so expressed, and to have been unpaid. (McCrea v. Purmort, 16 Wend. 460; Barker v. Bradley, 42 N. Y. 316 ; Hebbard v. Haughian, 70 id. 54.) If the instrument in question had contained the acknowledgment of the receipt by the plaintiff of the sum there mentioned, the consideration would properly have been the subject of proof by parol, as it would have been if words to that effect subscribed by him had been added to it.

In that case it may have been treated as a mere receipt. (Filkins v. Whyland, 24 N. Y. 338; Buswell v. Poineer, 37 id. 312.)

But, as said by Judge Selden in Terry v. Wheeler (25 N. Y. 523), if the property had not been paid for, and the instrument omitting the receipt had been signed and delivered “ as a note or memorandum of the sale, it would then have been the evidence of a contract, executory on one part at least, and not open to explanation by parol.” The written memorandum in the present case did not indicate payment or receipt of the consideration, nor was it paid before the instrument was delivered by the plaintiff to the defendant. It was executory on the part of the latter, and purported to state the price he was required to pay for the goods, without any agreement on his part expressed in it to take the property and do so; when he accepted a delivery of the goods lie became iiable to pay the price for them. It is true that 'the bill of sale was drawn by the defendant pursuant to some understanding between the parties, and although the language of the writing imports a past sale, none in fact appears to have been accomplished prior to the time of its execution and delivery to the plaintiff.

It is not seen how the sum there mentioned in its relation to the property and sale as evidenced by the writing can be treated as other than the expression of the price for which the sale and purchase were made.

In Bonesteel v. Flack (41 Barb. 435) it was held that the terms of a memorandum of sale similar to the one in question were not subject to modification by parol proof. This is in accordance with the general doctrine. And although the question in that case did 'not have especial reference to the price of the property, it is not seen that any distinction between the provisions in that and any other respect can be observed in the application of the rule against the admissibility of parol evidence to vary the terms of a written contract. (Engelhorn v. Reitlinger, 122 N. Y. 76; Thomas v. Scutt, 127 id. 133.) The cases cited by the learned counsel for the plain.tiff do not seem to support his contention that the consideration appearing in the bill of sale may be shown by parol to have been greater than there stated. The reason of the rule relating to provisions acknowledging receipt of payment in written instruments is-not applicable to that in question. In McKinster v. Babcock (26 N. Y. 378) the question arose between the mortgagee as plaintiff and the defendant, whose intestate as sheriff had taken the property by virtue of an execution issued upon a judgment against the mortgagor. The defense was founded upon the charge that the mortgage was made in fraud of creditors of the mortgagor. It purported by its terms to have been given to secure the payment of $1,000, which the mortgagor agreed to pay. The defendant proved that the mortgagor did not owe the plaintiff any money, and thereupon the plaintiff was permitted to prove that the mortgage was-to secure the latter for his accommodation indorsement of two notes of $500 each. This evidence of the plaintiff was held admissible to show the purpose of the mortgage that it was-made in good faith and to support its validity. The evidence-in such case is not treated as contradictory of the terms of a mortgage, but to show its purpose. (Truscott v. King, 6 N. Y. 147; Chester v. Bank, 16 id. 336 ; Miller v. Lockwood, 32 id. 293; Hutchins v. Hebbard, 34 id. 24; Bainbridge v. Richmond, 17 Hun, 391; 78 N. Y. 618.) The doctrine of the McKinster case, that when a mortgage is attacked by creditors of the mortgagor its consideration and its purpose are open to explanation to uphold it, is approved in Ham v. Van Orden (84 N. Y. 269).

And the rule excluding parol evidence to vary or contradict a written agreement is applicable only to the contracting parties and .their privies. It is not available to a stranger to it. (Coleman v. Bank, 53 N. Y. 388; McMaster v. Insurance Co., 55 id. 222; Dempsey v. Kipp, 61 id. 462; Brown v. Thurber, 58 How. 95 ; 77 N. Y. 613.)

It is not claimed that the bill of sale in question was made for any purpose other than to sell the property mentioned in it to the ■defendant. Nor does it come within the principle of any cases to which our attention has been called permitting parol proof to vary its terms, nor is there any ambiguity which seems to permit it. And ■ as the price there mentioned is deemed subject to the same rule as .any other portion of the instrument in that respect, the conclusion follows that the exception to the parol evidence to prove that the ■price was not correctly stated, and that it was greater was well taken. If, as treated at the trial, it had been open to such explanation, the verdict would have been deemed supported by the • evidence.

The conclusion here rests solely upon the question of law. And with a view to enable the plaintiff, if he is so advised, to have a review without another trial, the questions of fact are determined in his favor.

The judgment and order should, upon the exceptions, be reversed, and a new trial granted, costs to abide the event.

Dwight, P. J., Lewis and Haight, JJ., concurred.

Judgment and order reversed (on questions of law only) and new ■trial granted, costs to abide the event, the questions of fact being • considered and determined in favor of the plaintiff.


text:
    Nora Fuller, Respondent, v. Nancy Brown and Another, Appellants.

      Motion to dismiss a complaint — remewable upon appeal — transfer by a judgment debtor — •question of fraudulent intent — complaint, when sufficient — right of subsequent creditor — evidence of financial condition.

    The erroneous denial of a motion made at the commencement of the trial of an action to dismiss the complaint on the ground that it did not state facts, sufficient to constitute a cause of action, is available upon an appeal from a, judgment rendered against the defendant.
    It is a question of fact and not of law whether or not a conveyance was made-with intent to hinder, delay or defraud the creditors of the grantor.
    The complaint in an action brought by a creditor to set aside the transfer of property of his debtor, as being fraudulent as to creditors, alleged that the defendant, without consideration, for the purpose and with the intent to hinder, delay and defraud her creditors, and particularly the plaintiff, and to prevent the plaintiff or any other creditor from levying upon and selling it, transferred' certain property, and that such debtor neither claimed to own nor was possessed of property outside of that so transferred out of which the plaintiff’s, demand could be satisfied.

      Held, that while it was not expressly alleged that the defendant had no other orsufflcient property remaining to pay her existing debts after and at the time of" such conveyance, the complaint did allege facts sufficient to support the plaintiff’s attack upon the transfer as having been fraudulently made.
    While the want of a valuable consideration is not alone sufficient to sustain a charge of fraudulent intent in the transfer of property, it is an important fact, in that direction when it is made to appear that the transfer embraced substantially all the property of the debtor, and left him without means to pay what, he owed, and in such a case his voluntary conveyance is controlling evidence of fraud against his then existing creditors.
    A person who recovers a judgment subsequently to a transfer made by his judgment debtor, in an action of tort, upon a liability existing at the time the transfer was made, is a subsequent creditor.
    When the plaintiff in an action to set aside a transfer of property as fraudulent, stands to the debtor in the relation of a creditor whose claim arose subsequently to the transfer, he cannot rest upon the proposition that the imputation of ' fraudulent intent arises from the fact that the debtor made the transfer without • valuable consideration and was at the time insolvent, but must show that it was made with actual intent to defraud.
    The attempt to collect an execution against a judgment debtor within two weeks after a conveyance was made by her and the failure to do so furnish some evidence of her financial condition at the time the transfer was made, and the inference is justified that in the intermediate time no substantial change in respect to her property had taken place.

      Appeal by the defendants, Nancy Brown and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Cattaraugus on the 18th day of September, 1893, upon the decision of the court after a trial before the court at Special Term.

      Henry DonnelT/y, for the appellants.

      Ernest F. Kruse, for the respondent.
   Bradley, J.:

The purpose of the action was to have adjudged fraudulent as ■against the creditors of the defendant Nancy Brown, a deed of conveyance of certain land made by her to the defendant Allen, September 8, 1891.

The plaintiff became the judgment creditor of the defendant Brown December 15, 1891, by recovery in an action commenced in October of that year for the conversion of certain personal property about the 1st day of August, 1891. And execution against the property of the defendant Brown, issued December sixteenth upon the judgment, was returned unsatisfied January 8,1892.

At the commencement of the trial the defendants’ motion to dismiss the complaint on the ground that it did not state facts sufficient to constitute a cause of action was denied and exception taken. If this was error it is available to the defendants on this review. (Tooker v. Arnoux, 76 N. Y. 399.)

The objection made to the pleading is in its omission to allege that at the time the defendant Brown made the conveyance she was insolvent or rendered so by it, and that it was not alleged that she owed any debts other than that arising out of the cause of action upon which the plaintiff’s judgment was recovered. In the complaint it is alleged that the conveyance of the property was made by the grantor to the defendant Allen, her son, “ without consideration, for the purpose and with the intent to hinder, delay and defraud her creditors, and particularly this plaintiff,” and to prevent the plaintiff or any other creditor from levying upon and selling it; that the property is worth $6,000, and that the defendant Brown “ claims to own and is possessed of no property outside of the above so transferred, out of which the plaintiff’s demand can be satisfied.” While it is not there expressly alleged that the defendant had no •other or sufficient property remaining to pay her existing debts after and at the time of such conveyance, the complaint does allege facts sufficient to support the plaintiffs attack upon it as fraudulently made. The statute provides that every conveyance of property made with the intent to hinder, delay or defraud creditors or other persons of their lawful suits, damages, etc., shall be void as against the person so hindered, delayed or defrauded. (2 R. S. 137, § 1.) And that is always a question of fact and not of law. (Id. § 4.) The intent, therefore, is the fact upon which the determination in such case must be founded, and that fact is distinctly ■alleged in the complaint. The reasons which go to sustain the imputation may constitute the evidence of the fact, and need not necessarily be alleged.

The charge of such intent, with the other facts alleged in the •complaint, was such as to support the ruling of the court upon the preliminary motion.

The consideration expressed in the deed was a nominal one of one •dollar. While the want of a valuable consideration is not alone sufficient to sustain the charge of fraudulent intent, it is an important fact in that direction when it is made to appear that the transfer embraces substantially all the property of the debtor, and leaves him without means to pay what he owes. In such case his voluntary conveyance is controlling evidence of fraud as against his then •existing creditors. (Erickson v. Quinn, 47 N. Y. 410.) It has been said that a person who recovers a judgment subsequently to such a transfer by the judgment debtor in an action of tort upon a liability existing at the time it was made is a subsequent creditor. (Ford v. Johnston, 7 Hun, 563.) When the relation of the plaintiff in an action to set aside a transfer of property as fraudulent is that of subsequent creditor, he cannot rest upon the proposition that the imputation of fraudulent intent arises from the fact that the debtor made the transfer without valuable consideration and was at the time insolvent, but must show that ’it was made with actual intent to defraud. (Dygert v. Remerschnider, 32 N. Y. 629; King v. Wilcox, 11 Paige, 589.)

It may be observed that the judgment referred to in Ford v. Johnston was recovered in an action for assault and battery, while that upon which the plaintiff founded this action as a creditor was recovered for the appropriation of her personal property in such manner as to constitute a conversion of it by the defendant Brown, who then incurred the liability to pay to the plaintiff the value of the property, and equitably as of that time the relation of the latter was that of a creditor or equivalently so for the purposes, of the remedy founded upon the judgment. (Pendleton v. Hughes, 65 Barb. 136 ; 53 N. Y. 626; Young v. Heermans, 66 id. 374.) And assuming that the deed to Allen transferred all her property or left her insolvent, the inference was permitted that it was made with the intent on the part of the grantor to hinder or delay the plaintiff in the collection of the amount she should recover on account of such existing liability of the defendant to, her, and that • she thus intended to defraud the plaintiff as such creditor. (Cole v. Tyler, 65 N. Y. 73.) Such as are the natural consequences-of the act' may be deemed upon the facts to have been within the intent of the defendant. (Coleman v. Burr, 93 N. Y. 18-31.)

But it is urged that the plaintiff failed to establish by evidence-facts from which such inference could legitimately be derived, because it did not necessarily appear that the defendant may not at. the very time of making the deed have had other and adequate-property to discharge her pecuniary liabilities. While this was not absolutely or conclusively proved it did appear that within two-weeks after the conveyance was made, and on the 21st day of Sep-, tember, 1891, an execution against her property was issued to the sheriff of the county of her residence upon a judgment then recently recovered against her, and in about a month thereafter was returned unsatisfied. And, as has been observed, a like execution upon the plaintiff’s judgment was issued in December following and thereafter returned with the same result.

The attempt and failure to collect the first execution so soon after the time of conveyance made by the defendant, furnished some evidence of her financial condition at the time the deed was made, and the inference was justified that in the intermediate time no substantial change in respect to her property had taken place. There was no evidence tending to prove or to indicate that she after the conveyance had any occasion to use or dispose of or may have disposed of property, or that she had 'any remaining after the transfer so made by the deed to Allen.

In view of the fact that it may be deemed to have been made for a mere nominal consideration, and was practically a voluntary conveyance, the return unsatisfied of the executions was evidence, although not conclusive, of the insolvency of the judgment debtor. (Herrick v. Borst, 4 Hill, 650.)

The present case differs quite materially from that of Kain v. Larkin (131 N. Y. 300) in respect to the question upon which that case was determined. There the execution returned unsatisfied was issued to the sheriff nearly a year and a half after the time of conveyance, and the evidence tended to prove that the judgment debtor in the meantime had occasion to expend and may have expended a considerable amount of money in his defense of the action and of the criminal prosecution against him. And the referee found that it was not shown by the evidence that the defendant had not ample means to pay all claims against him, including that for which the judgment was recovered, at the time of the conveyance. But that the transfer so made would so divest him of his property that he had not sufficient to satisfy the judgment. The latter part of the finding was construed to have reference to the time of the recovery of the judgment, which was seventeen months after the time of such conveyance. Upon such state of facts the court there held that the charge of intent to hinder, delay or defraud creditors or other persons of their lawful suits, damages, etc., was not sustained.

In the present case we think the evidence was sufficient to support the conclusion of the trial court.

The judgment should be affirmed.

Dwight, P. J., Lewis and Haight, JJ., concurred.

Judgment appealed from affirmed, with costs.


text:
    The People of the State of New York, Respondent, v. Albert G. Vosburgh, Appellant.

      Repeal by implication — prohibition in chapter 401 of 1892 as to sale of liquor in quantities of fine gallons or oner — chapter 679 of 1887 is not repealed thereby.

    Although a statute is not expressly repealed by a subsequent enactment of tbe Legislature upon tbe same subject, yet if it appears by the provisions of the later statute that it was intended to cover the subject-matter of the former the prior statute will be deemed, by implication, to have been repealed or superseded.
    Subdivision 7 of section 19 of chapter 401 of the Laws of 1892 contains the only resti'iction in such act applicable to the sales of liquors in quantities of five gallons or upwards, and under it such sales are illegal only when made to be drank or used at the place or in the specified locality of the sale.
    Chapter 679 of the Laws of 1887 and chapter 401 of the Laws of 1892 are in harmony with each other, and the law of 1887 is not repealed by implication or superseded by the statute of 1892.
    Appeal by tbe defendant, Albert G. Yosburgb, from a judgment of tbe Court of Sessions held in and for tbe county of Wyoming on tbe 6tli day of June, 1893, convicting tbe defendant of a violation of tbe excise laws.

      Myron II. Peek, for tbe appellant.

      George W. Botsford, District Attorney, for tbe respondent.
   Bradley, J.:

Tbe charge in tbe indictment was tliat Yosburgli, at tbe town of Warsaw, being a town “ in wbicb there was not at the time of such sale * * * a license granted and issued permitting tbe sale of such strong and spirituous liquors, wine, ale or beer in quantities less than five gallons at a time, did, without lawful authority, unlawfully and willfully sell and deliver in quantities of five gallons and upwards at a time, strong and spirituous liquors, wine, ale and beer ” (naming tbe person to whom such sale was made) contrary to tbe statute in such case made and provided.”

Tbe defendant demurred to tbe indictment on tbe grounds: (1) That tbe facts stated in it did not constitute a crime; (2) that tbe indictment contained facts constituting a justification for tbe acts charged.

The court having overruled the demurrer and denied a motion of the defendant (who had refused to plead to the indictment) in arrest of judgment, directed judgment that he pay a fine of $100, and stand committed until paid. Exceptions were taken by the defendant.

The indictment was founded upon the statute which provides that “ It shall not be lawful to sell strong or spirituous liquors, wine, ale or beer in quantities of five gallons or upwards at a time in any town, village or city in this State in which there is not in force at the time of such sale a license permitting the sale of such strong and spirituous liquors, wine, ale or beer in quantities less than five gallons at a time,” and that a sale in violation of such provision be a misdemeanor. (Laws 1887, chap. 679.)

This is the only statute of the State to which our attention has been called making it unlawful to sell strong or spirituous liquors, etc., in quantities of five gallons or upwards at a time, to be drank or used elsewhere than on or about the premises where sold.

And the question is, whether or not that statute was superseded by the provisions of chapter 401 of Laws of 1892, entitled “An act to revise and consolidate the laws regulating the sale of intoxicating liquors.” While this title imports an act to embrace within its provisions the entire subject to which it relates, it may be observed that it is there declared that the act “ shall be known as the excise law and shall supersede the provisions of any special or local law in conflict therewith ” (§ 1), and that the laws Enumerated in the schedule there annexed are repealed (§ 45). The legislative intent was thus indicated to the effect that some existing provisions of the statute upon the subject of excise might still remain, notwithstanding the provisions of the act of 1892. Amongst the laws mentioned in the schedule so referred to in, and annexed to it, is not included chapter 679 of Laws 1887, before mentioned. And although it is not expressly repealed, if it appears by the provisions of the later statute that they were intended to cover the subject-matter of the former one, the latter will be deemed by implication to have been repealed or superseded. (Matter N. Y. Institution, 121 N. Y. 234.) It is provided by the later act that no license granted shall authorize the sale of intoxicating liquors in quantities of five gallons or upwards at a time. (Laws 1892, chap. 401, § 19, subd. 7.) No provision for license to sell in such quantity at a time, so far as we are advised, has been in any statute of this state, and. no necessary purpose of that before mentioned of subdivision 7 of section 19 in the act of 1892 is apparent. The prohibition in respect to sales in quantities of five gallons or more at a time, has relation to intoxicating liquors to bo drank upon the premises where sold and places appurtenant or contiguous thereto. (Id. § 31.) This was the effect of the prior statute. (Laws 1873, chap. 549, § 2.) It is urged by the learned counsel for the defendant that the provisions of the act of 1892 taken together manifest the legislative intent to restore the traffic in respect to the sales of five gallons or upwards to the status as it existed after the passage of the act of 1873, and before that of 1887. And reference is made to subdivision 4 of section 19 of the act of 1892, providing for license to sell by the quantity not to he drank upon the licensed premises, and to subdivision 7 of the same section in connection with the provision of section 31, relating to sales in quantities of five gallons or more at a time. The latter is the only restriction in the act applicable to sales in such quantities, and by it they are illegal only when made to be drank or used at the place or in the specified locality of the sale.

The provisions of the act of 1892, standing alone, would have substantially the same effect as those of section 2 of the act of 1873 in so far that no legal restriction other than that last mentioned would exist to interrupt sales of five gallons or more at a time.

But it ,is not seen that the provisions of the act of 1892 have by implication crowded out of operation those of the act of 1887. They may stand harmoniously together. And as the latter act was in force concurrently with that of 1873, it in like manner may remain operative consistently with the provisions of the later act. They do not furnish any substitute for it. It must be assumed that the act of 1887 was purposely omitted from the laws repealed by the act of 1892. And, therefore, it cannot be said that there was a legislative intent to supersede its provisions.

The judgment should be affirmed.

Dwight, P. L, Lewis and Haight, JJ., concurred.

Judgment and conviction of the Court of Sessions of Wyoming county appealed from affirmed and case remitted to that court to proceed therein.


text:
    Smith, Perkins & Company, Respondent, v. Milon F. Wilson and Another, Appellants.

      Wa/rrant of attachment ■ — recital therein in the alternative of the grounds thereof— when sufficient.

    The statement in a warrant of attachment that “the defendants have assigned, disposed of or secreted their property with intent to defraud their creditors” is a recital of one class only of the grounds set forth in section 686 of the Code of Civil Procedure and is sufficient.
    The same state of facts presented by affidavits might consistently be applicable to, and permit inferences in support of, each of the causes of action recited.
    Appeal by the defendants, Milon P. Wilson and another, from an order made by the county judge of Monroe county, and entered in the office of the clerk of the county of Monroe on the 23d day of February, 1891, denying the defendants’ motion to vacate a warrant of attachment upon the original papers, -

      II II Woodward, for the appellants.

      W. W. Webb, for the respondent.
   Bradley, J.:

The objections made to the warrant of attachment are: (1) That it fails to state the ground upon which it was issued. (2) That the affidavits are insufficient to authorize or support it.

The recital in the attachment of the grounds is that “ the said defendants have assigned, disposed of or secreted their property with intent to defraud their creditors.” It is said that this alternative statement does not specify which of the causes so recited is the one upon which the process was issued, and, therefore, thp requirement of the statute in that respect is not observed. (Code Civ. Proc. § 611.)

This has been the subject of consideration in several cases since the enactment of the provisions of that section. (Rothschild v. Mooney, 36 N. Y. St. Repr. 565 ; Dintruff v. Tuthill, 62 Hun, 591; Garson v. Brumberg, 75 id. 336 ; 26 N. Y. Supp. 1003 ; Cronin v. Crooks, 76 Hun, 119 ; 57 N. Y. St. Repr. 475 ; 27 N. Y. Supp. 822.)

In none of those cases is it determined that a recital like the one in question is insufficient.

Amongst the grounds specified as essential to an attachment are those that the defendant has removed, or is about to remove, property from the State with intent to defraud his creditors, “ or has assigned, disposed of or secreted, or is about to assign, dispose of or secrete, property with the like intent.” (Code Civ. Proc. § 636.) In the Cronin case the recital in the attachment was that the defendant “ has assigned and disposed of, or is about to assign or dispose of, her property with intent to defraud her creditors.” This disjunctive union of the two grounds was held bad, and not such as to support the attachment. .But it was there remarked that a statement that the defendant had assigned or disposed of property with intent to defraud her creditors would have been a compliance with the statute, as would also have been the recital that-she was about to assign, secrete or dispose of her property with such intent.

In the Rothschild case an attachment having a recital similar to that in the Cronin case was sustained.

In Dintruff v. Tuthill the recital was that the defendant had removed, or was about to remove, property from the State with intent to defraud creditors, or had assigned, disposed of or seereted, or was about to assign, dispose of 'or secrete, his property with the like intent. This was a statement in the alternative of distinct classes of the causes for which a warrant of attachment could be granted, and it was held that by thus disjunctively reciting them neither was designated as the ground upon which it was issued, and for that reason there was a failure to comply with the requirement of section 641 before mentioned.

In the present case the recital is of one class only of the grounds as they are arranged in section 636, and the same state of facts presented by affidavits may consistently, in supposable cases, be applicable to and permit inferences in support of each of the causes so recited. And within the rule stated in Garson v. Brumberg the statement of the grounds must be deemed sufficiently made in the attachment.

A careful examination of the affidavits leads to the conclusion that they are sufficient to support it.

The order should, therefore, be affirmed.

Dwight, P. J., Lewis and Haight, JJ., concurred.

Order of county judge of Monroe county appealed from affirmed, with ten dollars costs and disbursements.


author: Bradley, J. :

text:
    In the Matter of the Judicial Settlement of the Accounts of Frank A. Teed, as Administrator, etc., of Lewis B. Grant, Deceased.

      • Value of a testator's personal estate— when the interest on the fund is prima facie the value of a life estate therein.

    To ascertain, where a testator's residuary estate is left to a corporation, the value of liis personal property at the time of his death, the value of a life estate therein created hy his will must be measured.
    Where the life estate has ended before the determination of its value there is no occasion to do more than make it appear what was, in fact, its value.
    In such case, if nothing appears to the contrary, the interest upon the amount of the fund received by the life beneficiary will prima facie represent the value of the life estate.
    Appeal by the New York Baptist Union for Ministerial Education from a decree of the Surrogate’s Court of the county of Chautauqua, entered in the Chautauqua County Surrogate’s Court on the 4th day of March, 1892, settling the accounts of the administrator, decreeing a distribution of the proceeds of said estate, and directing restitution of moneys paid the appellant under former decrees made by such Surrogate’s Court.

      Marseaus II. Briggs, for the N. Y. Baptist Union, appellant.

      George Barker, for Frank A. Teed, administrator, and others, respondents.
   Bradley, J. :

The testator, Lewis B. Grant, died May 16,1884, leaving his will, which was admitted to probate. By it he gave to his wife his household furniture, and devised and bequeathed to her the use of his estate, real and personal, during her life.

He gave to his brother, Henry D. Grant, an annuity of $100, from and after the death of his wife.

He gave to the Cook Academy an endowment of $1,000, payable in one year after the death of his wife.

He devised and bequeathed to the New York Baptist Union for the endowment of the Rochester Theological Seminary'all the residue and remainder of his estate, real and personal, and charged such Baptist Union with the expense of taking care of his cemetery lot in Fredonia, N. Y. Ilis wife survived him and died intestate February 6, 1887. His brother Henry did not survive her.

A prior decree of the surrogate settling the accounts was, on review, reversed and resettlement directed. (59 Hun, 63.)

The controversy now has relation only to the personal estate.' The two institutions mentioned in the will can take only one-lialf in value, as of the time of the death of testator, of the estate. (Laws 1860, chap. 360.) The value of the personal estate, as represented by the inventory and appraisal made after his death, was $20,896.67, to which may be added for that not included in tlie appraisal, $272.89, making together $21,169.56. There ivas no judicial settlement completed during the life of the widow, to whom letters testamentary were issued. The debts of the testator as of the time of his death amounted to $6,977.52. The expenses of the proceedings had for the accounting, as allowed, were $1,821.02. And the interest received by the widow upon the personal assets amounted to $2,6-12.01.

In the settlement made by the decree of the surrogate the appellant was allowed the benefit of the interest upon one-lialf of the net value of the personal property from the time of the death of the testator to that of the widow. The sum for interest so allowed was less than half the amount of the interest so received by her during that time. Upon this fact arises one question presented for consideration. To ascertain what the personal property, was worth at the time of the death of the testator, the value of the life estate in it, which succeeded his death, must be measured. If it had not terminated when the division was sought it would have been determined by a certain known method of measurement. This was well illustrated by Judge Earl in Hollis v. Drew Theological Seminary (95 N. Y. 166).

But as the life estate had ended there was no occasion to do more than to make it appear what in fact was its value. In such case, if nothing appeared to the contrary, the interest upon the value of the personal estate so held would prima facie represent it. Here the fact appears that the amount of interest received by the widow upon the personal assets was greater than the interest upon the value of the personal estate remaining after deducting the debts and expenses as tlie computation was represented by the decree of the surrogate.

The interest so received by her issued out of the personal estate which came to her use, and the amount thus (by her derived from it during her life should be treated as the value of the life estate, and the institutions should have the benefit of one-lialf of it to realize one-half of the personal estate of the testator as of the time of his death.

It is urged on the part of the appellant that the inventory before mentioned as made determines the value of the personal property at the time of the testator’s death, because, as it is insisted, there is no satisfactory evidence to the contrary.

It may be true that an inventory regularly made, as this was, is prima facie correct in respect to value as well as quantity of the property. (Stewart's Appeal, 110 Penn. St. 410.) In the present case it concededly appeared on the accounting that of the accounts and claims in the inventory, there were those amounting to $2,801.09 uncollected and uncollectible. And while the proceeding for settling the accounts in which this was made to appear was instituted nearly two years after the death of the widow, it may be observed that such then deficiency in value, in view of the nature of the accounts and circumstances which may be inferred, furnished some evidence of their available value as of the time of the death of the testators and they should lie treated as having no such value at that time. The result of these views is that the two institutions should have of the personal estate $6,101.97; instead of $5,971.59, as determined by the decree, and after deducting the $1,000 to which the Cook Academy is entitled there remains for the appellant $5,101.97, to which should be added for taking care of the cemetery lot before mentioned, the sum of fifty dollars, agreed upon by the parties for that purpose, making together $5,151.97.

It is also urged that the appellant is entitled to interest upon its share in the personal estate from the time of the death of the widow until that of the former decree, November 25, 1889. No reason for this seems apparent upon the facts in the record. It appears that some time prior to October, 1885, the widow as executrix instituted proceedings before the surrogate for a judicial settlement of her accounts, and this proceeding does not seem to have beeu fully concluded; that after her death the administrator of her estate in May, 1887, instituted proceedings for the judicial settlement of his accounts, which resulted in the decree of the surrogate directing him to hand over to the administrator with the will annexed of Lewis B. Grant, deceased, all the personal estate of the latter which came to his hands and any moneys he had received thereon. He did so, and this included substantially all the personal estate left by him, and it was the subject of the accounting in question. This estate consisted mainly of choses in action, and any interest which liad accumulated and been uncollected was in the property so delivered to the representative of the testator, and became the subject of the judicial settlement finally made by the surrogate, and whatever was collected by the latter went into his account soon after presented on application for judicial settlement, which was finally determined. The proceedings occupied some time. No satisfactory reason appears for allowing interest under the circumstances after the time of the death of the widow. The estate after that time was subject to no use. The right and duty then arose to have the estate settled and its proceeds distributed, and during that period any appropriation of it or its proceeds or income for any purpose other than its preservation was not permissible.

These views lead to the conclusion that the surrogate’s decree should be so modified as to award to the appellant from the personal estate the sum of $5,154.97, and to reduce accordingly the amount directed by the decree to be paid to the respondent, Elias Forbes, as administrator, etc., of Julia A. F. Grant, deceased. And that such other modification only of the decree be made as may be necessary to conform it to the views above mentioned, with costs to the appellant payable out of the entiré fund which is the subject of the division between the parties and derivable from the personal estate of the testator.

Dwight, P. J., Lewis and Haight, JJ., concurred.

Decree of Surrogate’s Court of Chautauqua county appealed from modified as indicated in the opinion, with costs to the appellant payable out of the estate. Decree to be settled by Bradley, J.


author: BRADLEY, J.:

text:
    The Central Bank of Rochester, Respondent, v. John G. Thein and Others, Appellants.

      Action on a note — when a bank must apply a deposit of the maker to the pa/yment thereof — motion, to strike out an answer as false.

    In an action brought by a bank to recover the amount of a promissory note from the indorser thereof, the verified answer admitted the making of the note and the indorsement thereof, and the transfer of the same to the plaintiff. It alleged that the maker of the note deposited moneys from time to time to the credit of such maker with the plaintiff, and that at the time the note became due the maker had on deposit with the plaintiff an amount more than sufficient to pay such note, and out of which the maker by order directed the plaintiff to pay the same.
    The plaintiff moved upon the pleadings and upon the affidavit of its cashier to the effect that such maker did not have a balance to its credit sufficient to pay the note, to strike out the answer as false.
    One of the defendants, by affidavit, stated that if the plaintiff had correctly kept its account with the maker of the note, the balance in favor of such maker, as stated in such answer, was correct. Such affidavit also stated, on information and belief, that the plaintiff had erroneously reduced upon its books the balance of the maker, by charging to its account the amount of certain forged checks, and that the answer was interposed in good faith and not for the purpose of delay. The answer was stricken out as false.

      Held, that if at the time of the maturity of the note the maker had funds deposited with the plaintiff sufficient to pay the same, it was the duty of the plaintiff to charge up the amount of the note to the maker and thus satisfy the same;
    That if the balance continued to be adequate to pay such note up to the time the action was commenced, that fact was a defense available to the indorser thereof;
    That the defendant’s answer set up matter which, if supported by the evidence, constituted a defense to the action;
    That the order striking out the defendant’s answer as sham was error, and he-was entitled to the opportunity of a trial, and to have the facts determined upon evidence in the usual manner.
    There may be cases where an answer or defense may be stricken out as sham,. . when matter is set up in a pleading as a mere pretense in bad faith and without color of fact.
    The issues presented by a denial in an answer of material allegations contained in a complaint cannot be disposed of upon a motion to strike out the answer as. false or sham.
    Appeal by the defendants, Jolm G. Tliein and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 25th day of September, 1893, upon an order of tbe court striking out tbe defendants’ answer, and also from an order of tbe Supreme Court made at tbe Monroe Special Term and entered in said clerk’s office on tbe 25th day of September, 1893, striking out tbe defendants’ answer as false.
    The plaintiff by its complaint alleges that the Solidarity Co-operative Clothing Company made its promissory note, of date December 23, 1892, whereby it promised to pay at the banking office of the plaintiff $2,000 to tbe order of the defendant Them, three months after its date, and delivered it to the payee; that the note was indorsed by him and the other defendants and before its maturity transferred to the plaintiff. That when it became due, the note was duly presented at the place where payable, payment thereof ■demanded and refused, and due notice of such presentment, demand, refusal and protest was given to the defendants.
    The defendants by their answer admitted the making and indorsement of the note, as alleged in the complaint, and the transfer of it to the plaintiff. They further alleged that the company, the maker of the note, deposited moneys from time to time to its credit in the plaintiff’s bank, and that prior to and at the time the note became due, there remained of the amount of the moneys so deposited $2,203.59 in the possession of the, plaintiff, and that on March 25, 1893, the maker of the note by order directed the plaintiff to pay and apply $2,000 of the amount so remaining with the plaintiff of the money so deposited, upon and in payment of the note.
    And they “ deny each and every allegation in said complaint contained, not hereinbefore specifically admitted, modified or explained.”
    ' The plaintiff’s motion was made upon the pleadings, and an affidavit of the cashier of the plaintiff to the effect that the co-operative company did not have a balance to its credit with the plaintiff sufficient to pay the note, and it so appeared by a statement of the account set forth in the affidavit. One of the defendants by his affidavit stated that if the plaintiff had correctly kept the account with the co-operative company, the balance as stated in the answer would have been represented by it. The affidavit also stated on information and belief that the plaintiff had erroneously reduced ■upon its books the balance of the company by charging to its account the amount of checks forged by one Adler. And further, that the answer was interposed in good faith and not for the purpose of delay.
    The answer was stricken out as false.

      Forsyth <& Brothers, for the appellants.

      Hubbell.& McGuire, for the respondent.
   BRADLEY, J.:

The allegations of the answer are to the effect that the plaintiff had of the amount of the funds deposited by the maker of the note, at the time of its maturity, sufficient to pay it. If that were so it was the duty of the plaintiff to charge up the amount of the. note to the maker, and thus satisfy it. (Ætna National Bank v. Fourth National Bank, 46 N. Y. 82-88; Indig v. National City Bank, 80 id. 100-106; Robarts v. Tucker, 16 Ad. & El. [N. S.] 560-578.) And if the balance continued to be and was adequate to-pay the note up to the time this action was commenced, that fact, was then a defense available to the defendants as indorsers of the-paper, assuming, as we must, that the maker was primarily liable, as. between it and the defendants, to pay the note.

The defendants by their answer, therefore, did set up matter which, if supported by evidence, might constitute a defense, and the note be treated as paid. Whether it was demurrable for want of allegation to the effect that the balance due the maker in his bank account with the plaintiff sufficient to satisfy the note at maturity was permitted and did still remain there, it is unnecessary to inquire- or determine for the purpose of the question here. The defendants’ answer was duly verified, and the affidavit in opposition to the motion was contradictory of that on the part of the plaintiff, and contained the statement that the answer was put in in good faith, and not for purposes of delay.

In such case it is quite well settled that an answer containing matter of affirmative defense will not be stricken out as sham, but that, the party alleging it is entitled to the opportunity of a trial, and to-have the fact determined upon evidence in the usual manner. (Webb v. Foster, 13 J. & S. 311; Henderson v. Manning, 5 N. Y. Civ. Proc. Rep. 221; Barney v. King, 37 N. Y. St. Repr. 533-535; Rogers v. Vosburgh, 87 N. Y. 228.)

There may be cases where an answer or defense may be stricken out as sham. This was within the contemplation of the Code. (§ 538.) But as has been elsewhere said, it is applicable to matter set up in a pleading as mere pretense, in bad faith and without color of fact. (Farnsworth v. Halstead, 18 N. Y. Civ. Proc. Rep. 227.) And in Barney v. King it was held that it did not apply to matter of defense in a verified answer.

The allegations of affirmative defense in the answer in the present case may be false, but that question is not triable by or to be determined upon conflicting affidavits without infringing the defendants’ right to trial by jury.

While the allegations in the answer tending to specifically deny the service and receipt of notice of presentment of the note and of demand and default in payment are not sufficient to put the due service of such notice in issue, the defendants do not expressly admit the service of it, nor do they admit the allegation of. the complaint that the note ivas presented at the place where payable and payment demanded and refused. This was an essential allegation as against the defendants. And the latter allegation at least seems to come within the denial made by the answer of the defendants. The issue presented by denial, in an answer of material allegations in the complaint, cannot be disposed of on a motion to strike out the answer as false or sham. (Wayland v. Tysen, 45 N. Y. 281; Robert Gere Bank v.Inman, 51 Hun, 97.)

If these views are correct the order should be reversed, the motion denied and the judgment set aside.

Dwight, P. J., Lewis and TIaigiit, JJ\, concurred.

Order appealed from reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs and judgment set aside.


text:
    Margaret Leary, as Administratrix, etc., of John W. Leary, Deceased, Plaintiff, v. The Lehigh Valley Railroad Company, Defendant.

      Master and servant — duty of an. employer to furnish proper implements — ■negligence of a co-servant — evidence of negligence.

    An employer is required to use reasonable care in furnishing his employees with suitable implements, apparatus and machinery for the service in which they are engaged, but it is not necessaiy that the employer supply the very best means which can be devised.
    The requirement is satisfied if the employees are provided with appliances which are reasonably safe, in good condition, and adequate to the purpose in view, and the fact that the use thereof becomes unsafe by the want of due care on the part of the employees does not charge the master with injurious consequences occasioned to them from such use.
    It is sufficient if the apparatus is in a good condition of repair, and is such as is ordinarily or generally in use for the purpose.
    A person entering the employment of another assumes the hazard arising from the negligence of his co-employees.
    Upon the trial of an action brought against a railroad company to recover damages resulting from the death of the plaintiff's intestate because of injuries received by the explosion of the boiler of one of its locomotives, it was shown that on the boiler of the locomotive there were two injectors located for the purpose of taking water when required from the tank into the boiler. Upon the boiler were gauge cocks accessible to the engineer, by which he could test the height of the water in the boiler, and ascertain whether it contained an adequate quantity for the purpose of steam and safety. Upon opening the gauge cocks there was some difficulty in distinguishing between the emission of water and steam.

      Held, that the evidence was not sufficient to charge the defendant with negligence; That while a well-sustaiued light upon the test valves would render it more convenient to discover in the night-time whether water was discharged from the test valves when opened, the absence of such a light only required more care to be exercised in doing so;
    That the defendant was not bound to furnish a fusible plug in the crown sheet of the boiler.
    MotioN by the plaintiff, Margaret Leary, as administratrix, etc., of John W. Leary, deceased, for a new trial on a case containing exceptions, ordered to be heard at the General Term in the first instance, ■upon the granting of the defendant’s motion for a nonsuit, after a trial in the Superior Court of Buffalo on the 1st day of May, 1893.

      John Loughlin, for tlie plaintiff.

      Martin Oarey, for the defendant.
   Bradley, J.:

The plaintiff charges that the death of her intestate was caused by the negligence of the defendant. A nonsuit was directed by the trial court.

The plaintiff’s intestate was a fireman in the discharge of his duty as such upon the defendant’s locomotive engine Avhich was drawing a train of freight cars at the time in question. His death was the result of injuries received from the explosion of the boiler, which also caused the death of the engineer. There is no dispute about the facts. The boiler of the engine exploded because the water in it was permitted to get too low. The explosion was the necessary consequence of the cause which produced it. The engineer was a competent man for the position he occupied. The engine was in good condition for- service. And the only question is whether it was properly equipped with the means or ajiparatus to enable the engineer to gauge the water in the boiler. There were two injectors on the engine properly located for the purpose of taking water, when required, from the tank into the boiler. With the means for such supply no fault is found. Upon the boiler were gauge cocks accessible to the engineer by which he could test the height of the water in the boiler, and ascertain whether it contained an adequate quantity for the purpose of steam and safety. This he had failed to do at the time in question. The water had fallen about fourteen inches below the crown sheet, which became so heated that the stay bolts were ineffectual to hold it to its place, and the necessary consequence was the explosion. This would have been obviated by a supply of water sufficient to cover it. The crown sheet is said to have been twenty inches below the upper surface of the boiler. This condition of the water in the boiler was attributable to the failure of the engineer to use the means which he had of ascertaining the necessity of a further supply of water in the boiler and to furnish it by the use of the injectors. The try cocks were in good order. The time of the- explosion was on a December morning before daylight. The weather was very cold. And there is some evidence tending to prove that by the sound on opening the gauge cocks there might be some difficulty in distinguishing between the emission of water and steam, and, therefore, it may be said that if he applied the test by the means provided, he could by the discharge of steam, have been misled into the belief that it was water.

It is insisted by the learned counsel for the plaintiff that it was the ■ duty of the defendant to furnish better facilities for the engineer to ascertain the stage of the water in the boiler; that there should have been provided a stationary light to enable him to see the valve or test cocks in the night-time, or that there should have been a glass gauge in like manner lighted; but more especially it is urged that there should have been in the crown sheet what is knoVn as a fusible plug. The duty of the defendant was such that it was required to use reasonable care in furnishing its employees witlr suitable implements, apparatus and machinery for the service in which they were engaged. This duty did not demand of it the supply of the very best means which could be devised. The requirement is satisfied when they are provided with appliances, which in that sense of the term are reasonably safe, in good condition and adequate to the purpose in view. And then the fact that the use of them is or becomes unsafe by want of due care on the part of the employees, does not charge the master with injurious consequences so occasioned to them from such use. (Stringham v. Hilton, 111 N. Y. 188; Kern v. De Castro & D. S. R. Co., 125 id. 50.)

It is sufficient that the apparatus is in good condition of repair and is such as is ordinarily or generally in use for the like purpose. (Hickey v. Taaffe, 105 N. Y. 26.)

The application of these general principles to the present case would seem to relieve the defendant from the charge of negligence. While a well-sustained light upon the test valves would render it more convenient to discover in the night-time whether water is discharged from them when opened, the absence of light requires only more care to do so. The same may be said of a glass gauge exposed to light with the qualification that, as appears by the evidence, it might become clogged and unreliable. Then it would be worse than useless. And although a fusible plug in the crown sheet would by the melting of its filling make an opening for the passage of steam into the fire box and thus give warning, this might also have the ■effect to stop the train and bring danger of collision in the rear as well as to cause delay in travel and transportation upon the railroad. The engineer knew that he had neither of those appliances to relieve himself from care in using the means provided. He had the infallible gauge cocks to test and ascertain the height and adequacy of the water in the boiler, and as must be assumed sufficient skill to do it Intelligently.

So far as appears by the evidence the fusible plug is not used on railroad locomotives. It is, however, used to some extent upon stationary engines and upon some in marine service other than war vessels. In the cases where so .used it may be done without danger and with less inconvenience.

The calamity in question must, therefore, be deemed the result of the negligence of the engineer, and not the co-operative negligence of him and the defendant. And as one of the hazards assumed by the plaintiff’s intestate when he entered into the defendant’s service was that arising from the negligence of his co-employees, the alleged cause of action is not supported.

The motion for the nonsuit was, therefore, properly granted; .■and the view here taken renders it unnecessary to consider any other ■exception, as none of the evidence excluded or stricken out could have had any essential bearing in support of the action.

The motion for a new trial should be denied and judgment ■directed for the defendant.

Dwight, P. J., Lewis and Haight, JJ., concurred.

Plaintiff’s motion for new trial denied, with costs, and judgment ordered for the defendant upon the nonsuit.


text:
    Stephen Mahoney, Appellant, v. The Vacuum Oil Company, Respondent.

      Master and servant — relation of a foreman to employees — when his acts are those oj a co-servant.

      A. master assumes to bis servant the duty of using due care to provide him with suitable implements for his use and a safe place in which to perform his work, but the master is not responsible to the servant for the consequences of the negligence of a co-employee unless he, with knowledge of the unfitness of such co-employee, employs or continues him in his service.
    Whether an act or omission having relation to the service of employees is that with which their master is chargeable is dependent upon its nature, and not upon the grade in the service of the person whose act may come in question between the master and the employee; the relation of a foreman'to other workmen is that of a co-employee, except as to such acts performed by him as are embraced in the duties of the employer.
    Appeal by tlie plaintiff, Stephen Mahoney, from an order of the Supreme Court, made at the Monroe County Circuit and entered in the office of the clerk of the county of Monroe on the 23d day of August, 1893, denying the plaintiff’s motion for a new trial made upon the minutes.
    The plaintiff by his action sought to recover damages for personal injuries suffered by him while in the service of the defendant under the following circumstances:
    . He, with others in the employ of the defendant, was engaged in putting a tank weighing about six tons into a hole about six feet in diameter cut through the floor of the second story of the building and onto a supporting iron girder about eight feet below the floor. For that purpose the lower end of the tank was placed so as to project some over the hole in the floor, and a two-inch rope was put through a hole in the bottom of the tank to be there securely fastened, with a view to raising and placing the tank by means of a tackle above. For the purpose of putting the rope through and securing it there the plaintiff and others were on a plank. It broke and he was precipitated to the bottom of the building and sustained the injuries complained of. He was nonsuited at the trial.

      Eugene Van Voorhis, for the appellant.

      William F. Oogswellj for the respondent.
   Bradley, J.:

Tlie general principles applicable to the relation of employer and employee in respect to the duties to be observed by the former for the safety of the latter while serving in such relation are well settled. And they may be embraced in the general proposition that the master assumes to his servant the duty of using due care to provide him suitable implements for his use and a safe place in which to perform his work; and that the master is not responsible to him for the consecpiences of the negligence of a co-employee unless lie, with knowledge of his unfitness, employs or continues him in the service.

While this doctrine is recognized by the plaintiffs counsel, he contends that the defendant failed to perform the duty it owed to the plaintiff, in that it did not furnish him a place of safety to perform the work in which lie was engaged at the time in question; and that his injury was the consequence of such default or neglect on the part of the defendant, or with which he was chargeable.

If the placing of the plank over the hole in the floor was within the duties assumed by the defendant, the plaintiff’s case was improperly withheld from the jury. The hole, about six feet in diameter, had been cut in the floor, the tank was placed there to be hoisted, dropped into the hole and upon the supporting girders below. This was the situation when the plaintiff and the other employees of the defendant proceeded to put the tank in the place so provided for it.

To accomplish this a rope and tackle were brought into requisition.. To draw the rope through the hole in the lower end of the tank and there fasten the end of it it was necessary for some one or more of those engaged in the work to occupy a place over the hole in the floor, and to enable that to be done the plank was picked up and placed over it by the foreman. The plaintiff and two other workmen including him were standing upon it, at work securing the end of the rope. The fourth man (Patterson) stepped upon the plank,, it broke, and the plaintiff, with some others, fell about eighteen feet to the bottom of the building and was injured.

It was a hemlock plank, nine feet long, one foot wide and two-inches thick. It was so smeared with dust or dirt as to conceal its. defective quality from observation. The plank was brought into-requisition as an expedient for the time being, for use in tbe performance of the work of setting the tank in its place.

There were other planks about there which the men could have used as the means of strengthening the support if they had chosen to do so. The floor was a safe place to work. The hole was rendered dangerous only by want of care to avoid falling through it. And so far as it was necessary for the accomplishment of the work to get over it, the means were to be found in the plank lying about there to give safety and protection from danger.

In such a case it would seem that the act of making use of the appliances for such purpose is within the details of the work of the co-employee rather than of the master or his representative. (Hogan v. Smith, 125 N. Y. 774; Cregan v. Marston, 126 id. 568.)

The fact that the employee who placed the plank over the hole in the floor was foreman in the work has no particular significance upon this question: Whether an act or omission having relation to the service of the employees is that with which the master is chargeable is dependent upon the nature of the act and not upon the grade in the service of the person whose act or default may come in question between the master and an employee. The relation of the foreman to the other workmen was that of co-employee, except as to such acts performed by him as were embraced in the duties of the defendant. (Loughlin v. State of New York, 105 N. Y. 159; Cullen v. Norton, 126 id. 1.)

The line of distinction may seem narrow between some cases where liability has and has not been sustained, founded upon the relation of master and employee. In Hogan v. Smith the plaintiff sought to recover on the alleged ground that the defendant had neglected to furnish a safe place for the plaintiff’s intestate to do the work required of him in the service. The court held that the omission of the employees to make use of the materials and means at hand for their own safety -was their fault and not that of the defendant, and that it was their privilege and duty to use the means and materials to do the work in their own way. And such was the doctrine upon which was determined Cregan v. Marston, where the death of the plaintiff’s intestate was caused by the continued use of a rope attached to a derrick, after it had become so worn as to be unsafe, while there were other ropes from which they might have taken one to supply its place. It was held that it was in tlie details of tlieir duty to note the wear of the rope and by observation to ascertain when its condition became such as to require the substitution of another for the safety and efficiency of the service. The several cases cited by the plaintiff’s counsel may be distinguished from those before mentioned. In Benzing v. Steinway & Son (101 N. Y. 547) the defective platform was provided for the work in view, and the plaintiff was called from his other service to perform upon the platform some work not in the line of his general employment. It was held that the defective condition of the platform which caused the plaintiff’s injury was chargeable to the negligence of the defendant, although it was placed there by another in his service.

In Kranz v. Long Island Ry. Co. (123 N. Y. 1) the plaintiff’s intestate, an employee of the defendant, who, by direction, entered a trench which had been opened to clean out an underground water pipe, and while doing it the earth caved in causing his death. It was held that the defendant owed him the duty of providing him a reasonably safe place to perform the work which he was directed to do, and that he had the right to assume that it had been made reasonably safe.

Similar to this was the case of Wannamaker v. Rochester (44 N. Y. St. Repr. 45; 137 N. Y. 529). In McLean v. Standard Oil Co. (50 N. Y. St. Repr. 626) the defective scaffold on which the plaintiff was at work when it fell causing his injury, was erected by carpenters in the service of defendant preparatory to the work in which the plaintiff was engaged at the time it gave way. In none of those three cases was preparation of the places for the work to be done within the details of the service in which the persons who suffered the consequences of the defective and unsafe conditions were engaged. A like principle in some phase is that upon which the other cases cited on the part of the plaintiff were determined. (Pantzar v. Tilly F. Iron Mining Co., 99 N. Y. 368 ; Bushby v. N. Y., L. & W. R. R. Co., 107 id. 374.) The present case is distinguished from those where the master has been held liable to his employee for not furnishing a reasonably safe place for him to work, in the fact that the plank which gave way was an instrumentality employed at the time in the work being performed. The place of' the service was in the building, upon the second floor of it, which was safe. Tlie means used to perform it were those appropriated by the employees as such. (Butler v. Townsend, 126 N. Y. 105.) And the defendant, having furnished sufficient help with materials, for the work, was not responsible for the use made of them, or for the negligence of any of them engaged in its performance. The fault was theirs, or that of some one or more of their co-employees. (Hussey v. Coger, 112 N. Y. 614; Cullen v. Norton, 126 id. 1.) It is urged with some force that as Patterson, the defendant’s superintendent, directed the plaintiff to go upon the plank, which resulted in his injury, the defendant is chargeable with the consequences, and in support of that proposition reference is made to McGovern v. Central Vermont R. R. Co. (123 N. Y. 280) and McCampbell v. Cunard Steamship Co. (69 Hun, 131).

In the former of these cases the plaintiff’s intestate, having been directed to do so by the defendant’s superintendent, went into a grain elevator to clean it out upon the assumption that the grain had been discharged from it.

While he was there some of the grain which had become heated, was thus rendered cohesive and having adhered to the elevator, came down upon the plaintiff’s intestate causing his death.

The place in which he was directed to perform the work was for that reason unsafe; and the court held that inasmuch as by the exercise of care on tlie part of the defendant the condition in that respect might have been ascertained the question of its negligence was for the jury. In that respect the defendant was clearly chargeable with the direction of its superintendent to the intestate. In the JMJüCampbéll case there was a defective condition or situation of a skid extending from the defendant’s vessel to the dock, making a slide on which the plaintiff was employed and directed by the defendant’s superintendent to remove the cargo from the ship by means of a truck. In the attempt to do this the plaintiff, by reason of the defective connection of the skid with the dock, was injured. And it was held that the place where lie was put to do the work was unsafe and the danger one which he did not assume.

It may be observed that those places were unsafe, and the conditions which made them so were not produced in the progress of the work in which the injured employees were engaged, and not a detail of their service in its performance. And although Patterson was the alteo' ego of the defendant in the present ease in doing whatever required that relation, his grade in the service of the ■defendant was dependent upon that in which for the time being he was engaged. When, therefore, he was at work with the others at the time in question he was a co-employee, and his contribution by his acts and direction in the details of the work were not those of the master or for which the latter was responsible to those who were engaged there ivith him in its performance. (Crispin v. Babbitt, 81 N. Y. 516; Cullen v. Norton, 126 id. 1.)

If these views are correct it follows that to whatever negligence the injury to the plaintiff may have been attributable it was that of the co-employees or some one or more of them, and was within the hazards assumed by him in the service.

With a view as is said of showing that the foreman was incompetent for the position assigned to him a witness was by the plaintiff’s counsel asked: “ Did you observe his manner of doing work ? ” The evidence was excluded and exception was taken. It may be that the ruling was made upon the ground that no such defense was alleged in the answer, as that was a specific ground of the objection, but however that may be the man' Schoenfilder was in this work and at the time in question acting in the capacity of a co-employee merely, and there was no purpose indicated in the evidence offered, to prove anything affecting his condition, character or habits which rendered him unfit for service or prejudicial to his relation as such co-employee.

It, therefore, seems that without reference to the question of pleading the plaintiff was not prejudiced by the exclusion of the evidence.

No other question requires consideration.

The order should be affirmed.

Dwight, P. J., and Lewis, J., concurred; Haight, J., not sitting.

Order denying motion for a new trial appealed from affirmed, with costs.