author: Parker, J.:

text:
    Andrew J. Delaney, Administrator, etc., of John H. Delaney, Deceased, Respondent, v. The Pennsylvania Railroad Company, Appellant.

      Right of the public to go on -wharves in the city of Mew York — duty of the occupants thereof — liability for injuries sustained.

    As a general rule, people have the same right to go upon the docks and wharves of the city of New York as upon any other of the highways and public places of the city, and it is the duty of the occupants of piers and wharves in such city to keep them in sufficient repair for the public safety; in the event of their failure to do so, a person injured by reason of such failure, without fault on his part, is entitled to recover compensation therefor from such occupants.
    It is the duty of the occupants of such wharves to warn the public that the docks and wharves, which are in their possession and undergoing repairs, constitute an exception to the general rule, if such be the case.
    The principal exception to the general rule that an owner has the right to make such use of his premises as he pleases without being liable for injuries sustained by one who goes upon them, is where the injured party goes upon the land by the invitation, express or implied, of the owner.
    Where the real property of a corporation is so situated with reference to the public highway, even though it does not form a part of it, as renders it possible that a person using ordinary care and caution may come upon such property, and thereby suffer injury because of its dangerous condition, the corporation will be chargeable with the damages resulting therefrom.
    The public were accustomed, and it was their privilege, to use at pleasure a certain avenue in the city of New York and many of the wharves along its highways. The right to the possession of a particular wharf had become vested in a railroad company by a contract entered into between it and the authorities of the city, of which fact the public could not have had knowledge, and there was nothing to indicate to the people going upon it that they had not the same right to use it, with the same impunity, as any of the other wharves in that vicinity or along that avenue.

      Held, that, under such circumstances, it was the duty of the occupant of such wharf to take precautions to warn the public not to come upon the same, and that, in the absence of any such precaution on its part, it was liable for injuries sustained by a person going thereon without contributory negligence on his part.
    Appeal by tbe defendant, The Pennsylvania Railroad Company, from a judgment of .the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 26th day of December, 1893, upon the verdict of a jury rendered after a trial at the New York Circuit, and also from an order entered in said clerk’s office on the 20th day of December, 1893, denying the defendant’s motion for a new trial made upon the minutes.

      Henry Galbraith Wan'd, for the appellant.

      Denis A. Spellisy, for the respondent.
   Parker, J.:

The judgment appealed from awards to the plaintiff $3,500 for damages sustained by reason of the negligent acts of the defendant, resulting in the death of plaintiff’s intestate.

In the early evening of October 4, 1891, the plaintiff’s intestate, a boy about eight years of age, came upon a dock which the defendant had leased from .the city of New York, accompanied by his father and mother and three younger brothers and sisters. They resided in the immediate neighborhood, and their little outing was for the purpose of getting exercise and fresh air.

Defendant’s dock, upon which they passed from Thirteenth avenue, had the appearance of a platform built out from such avenue. Reaching the string piece, which was the usual height, they sat down. A few moments later deceased walked away from them, and, after going a short distance, he fell through an unguarded hole in the platform, about eighteen inches wide, and was drowned. This hole was a space between - the platform and a bridge, which was being so constructed as to rise and fall with the tide, the purpose of the bridge being to permit ingress and egress for passengers and teams from defendant’s ferryboats to the dock.

Tlie defendant had been at work for some time in preparing the dock for ferriage purposes, and the work was so far incomplete that the usual guard on the bridge and platform, intended to prevent persons from falling into the aperture between them, had not yet been erected.

On the night in question this hole had been left unguarded and unlighted, and without any sign to indicate to people passing upon the dock that there was danger of falling througli into the water. Respecting defendant’s negligence, therefore, the question upon the trial mainly was and now is, whether it owed to plaintiff’s intestate any duty whatever. If it did owe to him as one of the public a duty to warn him of the danger of going upon this platform, then the court rightly denied defendant’s motion to dismiss the complaint.

Respondent’s view of the case is, that this dock was a public street or highway of the city which the defendant by its contract -with the municipality had agreed to take care of and keep in repair, and for its failure to do so it became obligated to respond in damages to a person injured, in precisely the same way and upon the same principle as the city would be compelled to respond for an injury happening to a person in one of its public streets, occasioned by the neglect of the city authorities.

In support of this contention he cites Taylor v. Atlantic Mutual Insurance Co. (37 N. Y. 284) in which it is said these wharves and piers are streets of the city of N ew York, for the free passage of all citizens, and are so declared by statute.” This rule has been asserted many times in 'cases where the leases, so called, did not pretend to give the lessee an exclusive possession, but sold and assigned the wharfage which should accrue during the time covered by the lease. (Radmay v. Briggs, 37 N. Y. 256; Clancy v. Byrne, 56 id. 129; O. S. N. Co. v. Co. T. E., 131 id. 461.)

Indeed, the authority of the dock commissioners to confer an . exclusive private right in and to a public wharf or pier, such as would permit its inclosure and the erection of structures thereon; was denied even after the passage of chapter 435 of the Laws of 1883.

An attempt of the dock department to grant a license setting aside a pier was characterized as an unwarrantable assumption of power.

But in People v. B. & O. R. R. Co. (117 N. Y. 150), an action brought to restrain the erection of a shed upon a pier, it was held that the dock department had the power to give to its licensee exclusive possession and the authority to cover the pier by the erection of structures exclusive and permanent in their character.

The contract between the city and this defendant provides that the defendant shall have possession of the property, and by it the defendant became fully vested with the right to erect thereon, at its own cost, such structures as it should deem necessary, in order to enable it to' enjoy to the fullest extent the benefits which should accrue from the use which it contemplated making of the property. Undoubtedly, it had the right to keep the public off of the property while making the repairs and improvements in which it was engaged at the time of the happening of the accident, but it took no steps to inform the public of the character of its possession, or of its intention to exclude them from coming upon the property.

Appellant contends that inasmuch as the commissioners had authority to vest in it exclusive possession, and had contracted to do so for the term mentioned in the agreement, plaintiff’s intestate was a trespasser in coming upon the property, and, therefore, defendant owed him no duty; that the most favorable view of the relations of plaintiff’s intestate towards this property and the defendant was that he was a mere licensee. Therefore, it urges that the case is within the rule of Murphy v. The City of Brooklyn (98 N. Y. 642, and 118 id. 575), and Sterger v. Van Sicklen (132 id. 499). Were it not for the well-understood character of the user which the public are accustomed to enjoy of property similarly situated, and its close connection with the public streets, between which and it there were no barriers whatever, appellant’s contention would have much force.

• While defendant had the right to exclusive possession it has proved no act, so far as the record discloses, which was intended to inform the public that this dock constituted an exception to the general rule, which accords to the people the right to go upon them as upon any other of the highways and public places of the city. That such is the general rule is asserted in Gluck v. Ridgewood Ice Co. (31 N. Y. St. Repr. 99; affd., 125 N. Y. 728) and O. S. N. Co. v. Co. T. E. (supra).

In view of the existence of such rule, and the generally understood fact that, from the easterly part of Thirteenth avenue out to the waters of the Hudson, the public are at liberty to pass to and fro; that it is the duty of the occupants of the piers and wharves to keep them in repair for the public safety; and that in the event of a failure to do so which results in injury, without the fault of the injured, there will accrue to.the injured a right to compensation, it would seem that it was the duty of the defendant to warn the public that the dock and wharves which it was in possession of and repairing constituted an exception to the general rule.

The general rule is as asserted in Murphy v. City of Brooklyn (supra), that an owner has a right to make such use of his premises as he pleases, without being liable for injuries sustained by one who. goes upon them.

The principal exception to this rule is where the injured party-goes upon the land by the invitation, expressed or implied, of the owner. To this general rule there is a still further exception, of which Beck v. Carter (68 N. Y. 283) furnishes an illustration. In that case the owner made an excavation upon his own land, but so near the boundary of an alley along which people were accustomed to travel as to render it dangerous to the public. The excavation was only ten feet from the line of the alley, and one dark night the plaintiff, intending to pass over the alley, fell into the excavation and was injured. In that case another fact received consideration by the court, and that was, that some time prior to the accident the excavation had been covered with boards, which for some reason had been removed; it was held that the circumstances imposed a duty upon defendant to protect the excavation, and because of his failure to perform his duty in that respect he became liable for the injuries sustained.

In Jewhurst v. City of Syracuse (108 N. Y. 303) a judgment was sustained which awarded damages against the city for injuries received by plaintiff outside the limits of the public highway. It was put upon the ground that inasmuch as there was no. visible boundary to the line of the street, and its appearance was such as to induce the belief of any one passing, that he was within the line thereof, the injured party might recover if for any reason it was' dangerous to travel, and the city had had notice thereof.

In the opinion of the court the case of Hayden v. Attleborough (7 Gray, 338) was commented on and approved. In that case the limits of the highway were not indicated by any visible object, and there was nothing to inform a person driving thereon, in the evening, that the course he was pursuing was not within the way intended for public travel, and the defendant was held liable for an injury caused to the plaintiff, by being- thrown from a wagon out into a cellar, which had been dug two years before, although the cellar was outside of the limits of the road, and the plaintiff at the time of the accident was outside of such limits.

On appeal complaint was unsuccessfully made of the charge of the court, which stated “ that if the line of the highway was not indicated by any visible objects, such as fences, banks of earth, or other objects, and if there was nothing to show the plaintiff, in the evening, that the route she was pursuing was not within the way intended for public travel, and if within the general course and direction of the travel, where travelers were accustomed to pass along the said highway, the cellar was so situated within the limits of the highway as to render the traveling there dangerous, or without the limits of the located way, but so near as to render the traveling there dangerous in the condition in which it was at the time of the accident, * * * and there was nothing reasonably to indicate or give notice to travelers of their approach to the cellar until too late, * * * ”' then, after proper notice, the town would be liable.

The point determined by the cases cited, as we apprehend it, is that where the property of an individual or corporation is so situated with reference to the public highway, even though it does not form a part of it, as renders it possible that a person using ordinary care and caution may come upon, it, and thereby suffer injury because of its dangerous condition, the municipality will be chargeable with the damages resulting.

In Alger v. City of Lowell (3 Allen, 402) the court said: “The true test, on the contrary, is not whether the dangerous place is outside of the way, or whether some small strip of ground not included in the way must be traversed in reaching the danger, but whether there is such a risk of a traveler, using ordinary care, in passing along the street, being thrown or falling into the dangerous place, that a railing is requisite to make the way itself safe and convenient.” This case was cited with approval in Hayes v. Michigan Central R. R. Co. (111 U. S. 228).

In the latter case, as in Jewhurstfs case, the municipality, it is true, were held liable for injuries sustained upon premises adjacent to the highway, but in Beck v. Carter the owner of the property upon which the pitfall was situated was held liable. In each case liability was predicated on the ground that the situation of the property, and the circumstances surrounding the user of the highway by the public, were such as to make it a duty to employ some reasonable effort to save people from harm. In this case the public were accustomed, and it was their privilege, to use at pleasure Thirteenth avenue and many of the wharves along its highways.

The right to the possession of this particular wharf had become vested in the defendant, it is true, by contract entered into between it and the authorities of the city, but of that fact the public naturally could not have had knowledge.

There was nothing to indicate to the people going upon it that they had not the same right to use it, and could not use it, with the same impunity as any of the other wharves in that vicinity and along that avenue. That being so, within the principle of the authorities already referred to, it was clearly the duty of the defendant to take some precautions to warn the public against coming upon the property.

As the evidence tended to show that the defendant did not take any precautionary steps whatever in that direction the court properly denied the motion for a nonsuit.

Our attention is called to two exceptions taken to the charge of the court, but we shall not discuss them, for, if the views so far expressed are correct, they do not call for a reversal of the judgment.

The judgment should be affirmed, with costs.

Van Brunt, P. J., concurred.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: O’Brien, J.:

license: Public Domain

text:
    The Corn Exchange Bank of the City of New York, Respondent, v. American Dock and Trust Company, Appellant.

      Wa/rehouse receipts — when the corporation issuing them is estopped thereby — erroneous charge, how cured.

    A bank with which a storage warehouse receipt had been pledged, as collateral to a loan made to the president of the warehouse company, in whose name the receipt had been issued, brought an action against the warehouse company to recover the value of certain cotton alleged in such warehouse receipt to have been stored with the defendant.

      Held, that the right of recovery by the bank did not rest upon the actual possession of the cotton by the defendant or its assertion of possession, but upon its contract, and that the defendant could only be estopped from denying the contract by conduct upon the part of its officers, or some one of them, amounting to an assurance that the alleged receipt was that of the corporation. (Per Parker, J.)
    The action in such case is upon the contract, and the defendant’s liability depends upon its validity, which rests not upon the question whether there was cotton in the defendant’s warehouse belonging to the person to whom such warehouse receipt was issued, but whether the making of the receipt was authorized. (Per Parker, J.)
    If, after mailing an erroneous charge to a jury, the judge, at the request of one of the parties, instructs the jury correctly as to the objectionable part of his charge, the original error therein is cured, and the judgment will not be reversed by reason thereof. *
    Appeal by the defendant, American Dock and Trust Company, from a judgment of the Supreme Court in favor of tbe plaintiff, entered in the office of the clerk of the county of New York on the 3d day of March, 1893, upon the verdict of a jury rendered after a trial at the New York Circuit, and also from an order entered in said clerk’s office on the 9th day of March, 1893, denying the defendant’s motion for a new trial made upon the minutes.

      Thaddeus D. Kenneson, for the appellant.

      John M. Bowers, for the respondent.
   Parker, J.:

On the 9th day of February, 1891, Medad W. Stone, the president of the American Dock and Trust Company, made his certain note to the Corn Exchange Bank for the sum of $5,000, and deposited with said bank as security for the money advanced him on such note two papers purporting to be warehouse receipts, issued by the defendant in this action.

One of such receipts was dated December 23, 1890, and was in these words:

“ M. W. Stone, Prest.,

A. J. Pouch, Vice Prest..,,

“ F. H. Pouch, Treas.

A. C. Hascy, Seay.

“American Dock & Trust Company.

“ Number of certificate 21,820.

Office, Cotton Exchange1, Rooms 50 & 51, New York.

“New York, Dee. 22, 1890.

“ Received on storage at The American Docks/ for account of M. W. Stone.

“ One hundred and twenty-two bales of cotton.

“ 50 x R. Y. 50 U. M. W., 22 W. I. L.

“ Subject to the order of themselves, on payment of the charges accrued thereon and surrender of this receipt.

“Weight or grade not guaranteed.

“ Labor 10c.

“ Storage per month, 10c.

“ Bales 122.

“ Store 5. , M. W. STONE, PrestP

(Indorsed on left-hand margin): “ This receipt is valid only when, signed by either the president or treasurer.” ,

(Indorsed on back):

(Indorsements for delivery.)

“The property mentioned below is hereby released from this receipt for delivery from warehouse:

“Date. Merchandise. Marks. Signature.

“ M. W. STONE.”'

The other receipt was in the same form, but dated December 23, 1891.

These warehouse receipts were in the usual form of warehouse.1 receipts issued by the defendant, except that the president, who ■ signed the receipt, was also named as the person for whose account the goods were said to have been stored.

After the maturity of the note the plaintiff demanded the cotton which the receipts purported to describe. But as Stone had not ■deposited the cotton in the warehouse the demand was refused. .Hence this action.

Plaintiff’s officers knew at the time of discounting the note that the person named in the receipt as the one on whose account the bales of cotton therein described had been stored, was the same person who, as president, had signed the receipt, and also knew that he was making use of it for his own personal benefit.

The facts so far presented are precisely like those in Bank of N. Y. National Banking Association v. this defendant (70 Hun, 152), and Hanover National Bank v. this defendant (75 id. 55), in which it was held that the facts were such as to put the plaintiff upon inquiry touching the authority of the president to issue the receipts.

In the latter case it was held that where a situation is presented which the law declares should put a person of ordinary prudence ■upon inquiry, he is chargeable with constructive notice of everything to which that inquiry would reasonably have led him, and •nothing more; that failure to inquire would not work the defeat of the party chargeable with inquiry, should he prove upon the trial the existence of such facts at the time inquiry should have been made as would have protected him had he inquired before accepting the paper. And it was held that the facts of that case, tending to show assent on the part of the officers of the corporation to the acts ■of its president, in signing certificates in behalf of the corporation, ■representing that it had stored for him cotton, were of such a char■acter as entitled the plaintiff to a submission of the question to the jury whether the defendant had assented to the president’s assumption of •authority in making such certificates.

In this action the plaintiff, in attempting to meet the burden Testing upon it, ¡moved the same facts which led this court to decide that there was a question for the jury in the Hanover National Bank case. It also ¡moved that it did make some inquiry, not before it .¡had discounted the paper, it is true, but in time to have saved it from loss, liad the result of its investigation led it to doubt the authority of the president of the defendant to sign the receipts.

Plaintiff’s loan clerk testified that "William Mead, an employee of the Corn Exchange Rank, and whose principal employment in the bank was to make an examination of all merchandise offered as collateral to loans, was directed by him to make an examination, and to assist him in the matter, he ga^e him a memorandum containing the warehouse marks, the name of the man who borrowed on the cotton, the number of bales, and the marks on the bales. Mead testified that he had been connected with the bank for a number of years, and had been in the habit of visiting this warehouse on similar errands, and that the person with whom he had always transacted the business was a Mr. Jewell, the bookkeeper in charge of the office, who also had charge of the receipt and storage of cotton; that the paper which he received from Mr. Nichols contained a statement of the number of bales, the marks on the bales, the name of the person who stored it, and the number of bales stored.

That paper,” said the witness, “ I handed to Mr. Jewell and said to him, “ I come to learn something about that cotton ; to see that cotton,” and he said, That cotton is here, but it is inspected now and has an inspection number on it.” After the interview had ended, Mead returned to the bank and announced that the cotton was in the warehouse and inspected. Jewell, defendant’^ employee, speaking of the same interview, said, “ I stated to Mr. Mead that we had cotton of those marks and that they had been inspected, and I gave him the inspection numbers into which those marks had been changed. I did not tell him who owned that cotton. He did not ask me who owned that cotton. He did not say anything about a certificate having been issued to Mr. Stone.”

A careful examination of the testimony shows that there was no direct conflict in their evidence, although the witnesses must have ■ intended that different inferences should be drawn. Jewell, defendant’s employee, asserts with great positiveness that Mead did not tell him who owned the cotton, not that he did not know who owned it. Rut Mead did not testify that he told him that Stone owned the cotton, but instead he said, I handed Jewell the paper containing, among other things, the name of Stone, the president, on whose account the cotton was stored. Thereupon Jewell said that cotton is here.” It is clear that the jury would have been authorized to infer from the testimony that Jewell did know that the object of the inquiry was to ascertain whether Stone had in storage the cotton described in the receipt, and with such knowledge informed plaintiff’s employee that the cotton was there.

Under the evidence, therefore, the plaintiff was entitled to go to the jury on the question, whether defendant had assented to its president’s assumption of authority to make certificates acknowledging storage of cotton on his account. While the court rightfully denied the motion to dismiss the complaint, because there was presented a question for the jury, which we have pointed out, it did not submit any such question to them.

Instead, the jury were instructed that The plaintiff can only recover in this action if you shall find from the evidence in the case that Mr. Jewell told Mr. Mead that Mr. Stone had 194 bales of cotton there. And it recovers then because the defendant will be estopped from denying the truth of the statement.” This proposition does not seem to be entirely accurate. If Mead had inquired of Jewell whether Stone had 194 bales of cotton in storage, and received a reply in the affirmative, when the statement was not true, that would not of itself have estopped the defendant from denying the execution of the contract upon which the possession of the cotton was sought to be acquired.

The right to maintain the action does not depend in any measure upon the possession by the defendant of the cotton described. Were it so, then the assertion of the possession of cotton when there was none, would quite likely be held to have estopped defendant from denying it as against one led into an investment on the faith of the assertion of possession. But that is not this case. Plaintiff’s right of recovery is not founded upon the actual possession of the cotton by the defendant, or its assertion of possession, but rather upon what is alleged -to be its agreement; and the defendant can only be estopped from denying the agreement by conduct on the part of its officers, or some one of them, broad enough to amount to an assurance that the alleged certificate or receipt was that of the corporation. The action is upon the contract. Defendant’s liability depends upon its validity. That rests, not on the question of whether there was cotton in defendant’s ■warehouse belonging to Stone, but whether its making was authorized. If there never was any such cotton in defendant’s possession there will be a recovery if the agreement be valid. If there was and still is cotton there belonging to Stone, there can still be no recovery unless the agreement be valid or defendant estopped from denying it. To say casually, or in response' to inquiry, that Stone had cotton on storage would amount to an assertion of an immaterial fact. It would not have placed the plaintiff in any worse position certainly than if it liad been true. If true there could be no recovery unless defendant can be properly charged with making the certificate. If plaintiff’s assertion of what took place between Mead and Jewell were undisputed, it is possible that it might be deemed broad enough to create an estoppel, because Mead’s description of the paper which he says he handed to Jewell informed him that plaintiff was trying to ascertain whether it should take a certificate made by the defendant, declaring that its president, who signed it, had on storage 194 bales of cotton. And when, after examining the paper, if it be true, as Mead asserts, Jewell said, we have that cotton, his answer might be held to imply more than that he had 194 bales of cotton belonging to Stone, for it would have amounted in effect to an assertion by the only person in authority present that the certificate was all right.

But Mead’s testimony was in some measure disputed. While, according to Jewell’s testimony, he did not deny that Mead was inquiring about a certificate which acknowledged that Stone had cotton in storage, he did say that nothing was said about Stone, and the inference was permissible from his testimony, considered as a whole, that he was without knowledge of the existence of the certificate which was the subject of Mead’s inquiry. If the views expressed be correct it would seem to follow that the most favorable charge on the question of estoppel to which plaintiff was entitled was, that if the jury should find'that Jewell knew that Mead was attempting to ascertain whether the certificate was all right, and described cotton in storage to the account of Stone, and that his answer was intended to be in the affirmative, then the defendant could not be heard to deny the validity of the certificate. The instruction given was, therefore, too broad and defendant’s exception thereto was well taken.

The judgment should be reversed and new trial ordered, with costs to the appellant to abide the event.

O’Brien, J.:

I concur with Mr. Justice Parker and for the reasons given by him, that under the evidence the plaintiff was entitled to go to the jury on the question “ whether defendant had assented to its president’s assumption of authority to make certificates acknowledging storage of cotton on his account.” If this question was fairly presented, the verdict of the jury should not be disturbed, and the question is whether it was so presented or not.

I also agree with Mr. Justice Parker in his view that it was not a correct statement of the law to charge that the jolaintiff can only recover in this action if you shall find from the evidence in the case that Mr. Jewell told Mr. Mead that Mr. Stone had 194 bales of cotton there. And it recovers then because the defendant will be estopped from denying the truth of the statement.” The error into which the court fell in thus stating the law in its main charge seems to have been entirely cured when, after his attention was called to the statement and at the .request of the defendant, the judge correctly stated the law to be “ that the defendant cannot be estopped from denying the genuineness of the alleged warehouse receipts, unless they find that Mr. Jewell represented to Mr. Mead that the defendant had, at the time of the inquiry, the cotton mentioned in the alleged warehouse receipts, and that that cotton belonged to Stone, and that such representation was made with knowledge that the bank was making the inquiry for the purpose of acting or relying upon it.” I think that by this instruction, which was full and clear, the prior inaccurate statement in the charge was cured.

It is true that, in a subsequent discussion between counsel for the defendant and the court, some obscurity may have resulted from the colloquy between them, but if so, counsel has only himself to blame, because, after the original charge containing the inaccuracy was finished, and he had called the attention of the court specifically to it by a request which was full and accurate, he should have been content to allow that branch of the case to rest in that condition. He saw fit, however, to except to the very portion of the charge which was thus cured by his own request, and is responsible, therefore, for the confusion which may have been thus created. I do not think he is entitled to be rewarded by having the; judgment on this ground alone reversed.

I think, therefore, that the judgment should be affirmed, with costs.

Yan Brunt, P. J., concurred.

Judgment affirmed, with costs.


text:
    Elizabeth Fisher, Respondent, v. William Rankin, Appellant.

      Damages for personal injuries — proof of responsibility foi' negligence — evidence of work being done by an independent contractor — city gas lamp not presumed to delighted at night.

    Upon the trial of an action brought to,recover damages for personal injuries sustained by a fall on a sidewalk, alleged to have been caused by the defendant’s negligence, the plaintiff proved that the defendant owned and was in the actual possession of the property abutting on such sidewalk; that he had dug out cellars and caused the erection of certain buildings thereon; that he visited the premises every day while the excavations were going on, and sometimes half a dozen times each day; that he saw men at work excavating the sidewalk and putting in ashes, and was seen apparently giving directions to men at work both upon such buildings and sidewalk.

      Held, that the plaintiff had established by prima facie evidence that the work was-, being done by the defendant or his agents, and that the negligence, if there-was any, was chargeable to him.
    Upon the trial of such action, the plaintiff having established prima facie that the negligence, if any, was that of the defendant or his agents, the defendant testified that the work was being done by an independent contractor; other-witnesses testified to independent facts which might be regarded as corroborating the defendant’s testimony, but, without his testimony, the evidence would not permit a finding that the work was being done by an independent contractor.

      Held, that the court could not assume that it was proved that the work had been done by an independent contractor and dismiss the complaint on that ground.
    There is no presumption that a gas lamp in a city is lighted at night.
    Appeal by tlie defendant, William Rankin, from a judgment of the Supreme Court in favor of tlie plaintiff, entered in the office of the clerk of the county of New York on the 27th day of February,. 1893, upon the verdict of a jury rendered after a trial at the New York Circuit, and also from an order entered in said clerk’s office on the 24th day of February, 1893, denying the defendant’s motion for a new trial made upon the minutes.

      JRobert E. Deyo, for the appellant.

      'Christopher Fine, for the respondent.
   Parker, J.:

The defendant purchased certain vacant lots situate on Tenth avenue and Forty-eighth street in November, 1883. The sidewalk in front of the premises was about fifteen feet wide, but the only pavement consisted of a row of stone flagging about four feet wide. Thereafter he commenced the erection of buildings on the lot, and •either constructed personally or caused to be constructed by an independent contractor, a pavement covering the full width of the .sidewalk. At the beginning of the latter work the stone flagging was taken up and the earth excavated to a depth of between six .and eight inches for the full width of the sidewalk. While it was in this condition, and on the evening of July 15, 1881, the plaintiff •came down the street, and upon the place where the pavement had formerly been, fell, receiving severe injuries. The evidence bearing upon the question of contributory negligence was of such a character as to present a question for the jury.

The appellant concedes that if this court reaches the conclusion .that the plaintiff was not guilty of contributory negligence as a matter of law, then, in determining whether the court rightly denied the defendant’s motion to dismiss the complaint, but one proposition need be considered.

That proposition is presented by the following extract from appellant’s brief: “ Laying aside for the present any question of the contributory negligence of the plaintiff, there remains but one other question, viz.: lias the plaintiff given any evidence tending .to show that the work was being done by the defendant or his agents ? If she has she was entitled to go to the jury. If she has not the complaint should have been dismissed or a verdict directed for the defendant.”

When the plaintiff had proved that the defendant owned and was in the actual possession of the property abutting upon this sidewalk ; that he had dug out the cellars and caused the erection of the buildings; that he visited the premises every day while the •excavations were going on, sometimes a half dozen times each day; that he saw men at work excavating the sidewalk and putting in the ashes, and was seen apparently giving directions to men at work both upon the buildings and the sidewalk, she had made out, prima facie at least, that the work was being done by the defendant or his agents, and that the negligence, if any there was, was chargeable to him.

There was nothing further she could have proved, except to introduce upon the witness stand every man who did any work on or about the sidewalk, and ask him whether he was doing this work as an independent contractor, and this she was not called upon to do in order to establish a cause of action. Having made out her prima facie case on that point the defendant had the right to show, if he could, that he was not responsible for the alleged negligent acts, because he had contracted with another to do the work. This he attempted. He testified that he had made a contract with one James Deering to do the work. He failed to remember whether the contract was in writing; whether any one was present at the time it was made, and did not know what had become of Deering. That there was such a man as Deering, and that he worked on this property during the time the building was in progress, was quite satisfactorily proved. Whether he was one of the mechanics, a foreman of a gang of workmen, a superintendent of the entire work, or an independent contractor, no one pretended to know except the defendant, who testified that he was an independent contractor. Other witnesses were called for the purpose of proving independent facts, which the defendant regarded as tending in some degree to corroborate his testimony. Without his testimony the evidence would not have permitted a finding that Deering was an independent contractor under defendant. Because of certain facts and circumstances proved, permitting a different inference than that contended for by the defendant, coupled with the further fact that the only evidence tending to show that there was a contract and the terms of it is furnished by the testimony of a party to the action, the court could not assume that it was proved, and dismiss the complaint on the ground that it had been made to appear that Deering, and not the defendant, washable. (Goldsmith v. Coverly, 75 Hun, 48, and cases cited.)

A question was, therefore, presented for the jury, and the court rightly denied defendant’s motion to dismiss the complaint.

Tlie appellant urges that the court should have granted his requests to charge.

It was not error for the court to refuse to charge that the sidewalk was being laid under lawful authority, because the court had already charged that plaintiff must recover on the ground of negligence, if at all. Upon that issue the instruction requested had no bearing, and if charged could have, had no other effect than to«confuse the jul7- . . . ' .

. . . It was not error to refuse to charge that if the sidewalk was in a dangerous condition, the danger arose from the manner of carrying on tlie work, for the reason that the court had already properly and sufficiently instructed the jury with reference to the acts constituting the negligence alleged. Again, it was not claimed that the condition of the sidewalk leading to the injury was due to building operations on the abutting lot; hence, there was no occasion for a specific instruction on the subject.

Neither was it error to refuse to charge that the presumption was that a certain gas lamp situated within ten feet of where plaintiff fell was lighted. , Plaintiff testified that it was dark when and where she fell, which it would not have been had the lamp been lighted.

A daughter of the plaintiff, who went to the place of the injury immediately after it happened and with full knowledge of it, said : It was dark, and there were no lights there at all. I did not see any gas lamps or anything; no lights to warn you of danger. I did not look at the lamp post but it was dark.” This testimony the defendant sought ineffectually to put in issue by an instruction of the court that wherever there is a gas lamp the presumption is that it is lighted. We deem it not unsafe to say that no court has ever so held nor ever will, certainly not until that time shall come when it is absolutely impossible to collect of municipal corporations for gas lamps that do not burn at night.

Our attention is called to no other exceptions which we deem it necessary to consider.'

The judgment should be affirmed, with costs.

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

Judgment affirmed, with costs.


text:
    Peter Walsh, Respondent, v. John McArdle, as Administrator, etc., of Catherine Duffy, Deceased, Appellant.

      Code of Oivil Procedure, § 829- — evidence inadmissible thereunder — the rule is the same whether an affirmative or a negative is sought to be proved.

    It is the purpose of section 829 of the Code of Civil Procedure to exclude an interested witness from'testifying, first, to any transaction between himself and the deceased, or to any in which he in any manner participated, and, second, to all communications between the deceased and the witness, including communications in the presence or hearing of the witness, if he in any way was a party thereto, or communications to any one of two or more persons, if all are interested.
    The rule is the same whether the object be to prove an affirmative or a negative, and an interested witness can no more testify that a conversation or an interview concerning a contract or transaction between him and the deceased did not than he can testify concerning a conversation which did take place.
    Appeal by tlie defendant, John McArdle, as administrator, etc., of Catherine Duffy, deceased, from a judgment of tlie Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 23d day of May, 1893, upon the report of a referee, and also from an order made at the New York Special Term on the 10th day of January, 1893, and entered in said clerk’s office, confirming the report of the said referee.

      Rufus M. Williams, for the appellant.

      Augustus 3. Vamderggoel, for the respondent.
   Parker, J.:

The referee to whom the questions relating to a disputed claim of the plaintiff against the estate represented by the defendant were referred out of Surrogate’s Court, found as facts that plaintiff, previous to the time of entering the employment of defendant’s intestate, was receiving a salary of ten dollars a week; that she offered to pay him the same sum if he would enter her service; that he accepted the offer and performed, the services requested from July 4, 1886, to the time of her death, November 19, 1890, making the amount of salary earned by him $1,590; that she paid him on account ten dollars a month during such period, aggregating $530 ; that in addition the estate should be credited with $450.90, which a decree of Surrogate’s Court had found to be due the defendant from this plaintiff, and as a conclusion of law that plaintiff should recover the agreed sum less offsets, with interest, amounting to $688.57.

In passing, it may be said that the finding of the referee to the effect that plaintiff is indebted to the defendant in the sum of $450.90, as adjudged by the decree of the surrogate, was in reality founded upon a decree made in a discovery proceeding instituted by the administrator against Peter Walsh (this plaintiff), in which it was adjudged that Walsh, after the death of defendant’s intestate, unlawfully took and carried away from the premises in which she died the sum of $450.90.

It further appeared upon this trial that after her death he overhauled her receipts and papers and burned a few of them, which turn out to have been receipts given by him to her for moneys paid him from time to time. This fact is testified to by two witnesses who were present at the time when lie selected these receipts from a great number for burning. It is true that he undertakes to deny it, but his efforts in that direction are accompanied by admissions that these parties were with him on the occasion to which they testify, and that he did then burn some papers, which he describes as old newspapers and scraps.

The appellant contends that, in view of plaintiff’s conduct in unlocking the receptacle in which the intestate kept her valuables, taking from it bank books, money, deeds and other useful papers, and his misconduct in destroying the receipts given by him to Mrs. Duffy, thus depriving the defendant of the opportunity to use them in this action, considered in connection with the testimony of several witnesses to the effect that they had overheard conversations between plaintiff and defendant’s intestate in which it was asserted by Mrs. Duffy, and not denied by plaintiff, that his compensation was ten dollars a month, with his board, washing and mending added, and that such conversations had resulted at different times in the payment by her of small sums of money to him, accompanied by a demand on her part, and acquiescence on his, that he give a receipt for a month’s salary at the rate of ten dollars per month, the findings by the referee were against the weight of evidence, and for that reason the report and the judgment entered thereon should be set aside.

Without determining whether his position in such respect is well taken, we pass to the consideration of exceptions taken to the admission of certain testimony offered on the part of the plaintiff against the objection that it was not admissible under section 829 of the Code of Civil Procedure.

In order that the relation which such testimony bears to other evidence in the case may be readily understood, a brief statement of the facts beyond that already given will be made.

We have already observed that the réferee found that the plaintiff received his board, washing and mending and ten dollars a month during all the period that he was employed by Mrs. Duffy. It was the contention of the defendant that this sum represented the price agreed upon between them. Now, plaintiff, in order to' establish his claim, called one Alexander MacDonald, who prior to July, 1886, was, in company with this jfiaintiff, working for the Metropolitan Express and Yan Company. He testified that he was present at a conversation which occurred between plaintiff and Mrs. Duffy, in the course of which she asked the plaintiff to come and live with and take care of her, and she would pay him the sum for wages he was then receiving, and in addition “ at her death would leave him all right.” The plaintiff testified that he was receiving ten dollars a week from the company at that time, and other witnesses described the work which they saw plaintiff do for Mrs. Duffy on different occasions. But no witness on behalf of the plaintiff, other than MacDonald, undertook to throw light upon the question in dispute as to what was the agreement between Mrs. Duffy and the plaintiff, touching the amount of his compensation.

After plaintiff had rested defendant undertook to show affirmatively that the amount which Mrs. Duffy actually paid the plaintiff, to wit, ten dollars a month, was the price agreed upon between them as the sum of money to be paid, him in addition to his board, washing and mending. Defendant called several witnesses, who testified to conversations which they allege took place between the plaintiff and-Mrs. Duffy in their presence — conversations which, if true,, make it very clear that the plaintiff received from Mrs. Duffy from month to month the sum which she had agreed to pay him. After defendant had rested plaintiff was called in rebuttal, and was aslced whether the specific interviews and conversations to which the several witnesses on the part of the defendant had testified took place ? And his answers were received against proper objections and timely exceptions on the part of defendant.

The questions and answers following are but typical of others occupying nearly seven pages of the record : “ Q. On page 65 Mrs. Kiernan testifies that in August, 1887, she heard a conversation between you and Mrs. Huffy, it being the first conversation that she heard between you, in which you stated you wanted money, and Mrs. Huffy said you were getting ten dollars a month and that you were not worth half that. Hid that conversation ever take place ? [Same objection; same ruling and exception.] A. No. Q. On the same page Mrs. Kiernan testifies that in January, 1888, she was present at an interview when you asked Mrs. Huffy for money, and she refused to give it, saying that she had already given you over and above his wages, and, on the following page, that Mrs. Huffy .stated that your wages were ten dollars a month. Hid that interview ever take place ? [Same objection; same ruling and exception.] A. No. Q. On page 73 Nellie Huffy testifies that she recollected .an occasion when a controversy took place between Mrs. Huffy and yourself as to whether Mrs. Huffy owed you any money. Hid that interview ever take place? [Same objection; same ruling and .exception.] A. No.”

It will be observed that plaintiff was permitted to deny that the alleged conversations between himself and the deceased ever took place.

The courts have declared the purpose of the statute to be to exclude .■an interested witness from testifying, first, to any transaction between himself and the deceased, or in which the witness in any manner participated, and, second, to all communications between the deceased and the witness, including communications in the presence or hearing of the witness, if he in any way was a party thereto, or communications to either one of two or more persons, if all were interested. (Holcomb v. Holcomb, 95 N. Y. 316.)

The rule is the same whether the object be to prove an affirmative or a negative. The interested party cannot testify that an alleged conversation or an interview concerning the agreement or transaction did not take place any more than he can testify concerning the conversation. Our attention is called to certain cases which it is contended justify the rulings of the referee, and which it is insisted considerably relax the rigor of the more early decisions, which undertook to apply and enforce the statute.

In Pinney v. Orth (88 N. Y. 441-451) a party to the action was permitted to testify that a witness who had detailed a conversation which he alleged took place between the interested party and the deceased, at a place named, was never present at the place specified when any such conversations took place. The court held that it was proper for him to so testify; that the statute did not preclude the survivor from testifying to extraneous^facts or circumstances tending to show that a witness who had testified affirmatively to such a transaction or communication had testified falsely.

By way of illustration, the court said that it would have been entirely proper, for instance, for the survivor to have testified that he was at some other place than the city of New York, where and when the conversation was alleged to have taken place. But, said the- court, “ the language of the prohibition is sufficiently broad to prohibit the survivor from testifying that any particular communication 'or transaction did or did not take place personally between himself and the deceased. * * * ”

It should be remarked, in this connection, that the questions put to, and responses made by, the plaintiff amounted to a denial of certain communications alleged to have taken pla’ce between him and Mrs. Duffy. Such was their intended purpose and effect. Had defendant’s witnesses beeh called upon to fix the time and place of the conversations related by them, and then plaintiff, in rebuttal, had been asked whether he was present at the times and places mentioned, and he had answered that he was not, his testimony would have been within the protection of Pinney v. Orth (supra).

Lewis v. Merritt (98 N. Y. 206) was based on Pinney v. Orth. The plaintiff in that action was the executor of his testator, and as a witness in his own behalf testified that he saw certain notes, the possession and ownership of which were in issue, in a box in the room of his testatrix the morning before her death, and that the defendant was in the testatrix’s room during the day preceding her death, and had opportunity to take the notes from the box without authority.

The trial court having refused to permit the defendant to answer the questions:

1. Whether he had taken the notes 'from any trunk or any person ?

2. Whether at the time of the conversation, which was alleged to have occurred two days before the testatrix’s death and in her presence, “ he had possession of the notes.”

The correctness of the ruling came before the appellate court for decision and it was held that it was competent for the defendant to testify that he did not take the notes from the box, and thereby rebut the inference which the plain tiff by his testimony attempted to justify, namely, that he had wrongfully abstracted them. The second question was regarded as much nearer the border line than the first, but it was considered admissible as furnishing an inference on the leading issue, whether the intestate gave the notes to defendant, the court stating, however, that it was not offered for the purpose of establishing an affirmative defense.

In the still later case of Clift v. Moses (112 N. Y. 426) the cases already referred to were considered and discussed, but not extended, the court alluding to the fact that in Pinney v. Orth the range of permissible contradiction was confined within such narrow limits as not to include testimony by the survivor of what was or was not said between the parties at a conversation sworn to by a witness produced by the other side, even when offered for the sole purpose of contradicting the witness’ narration of the transaction.

The respondent does not call our attention to any case which he regards as giving stronger support to his contention than those we have referred to, and we think his failure to do so was due not to his lack of diligence, but to its non-existence.

The courts have not abrogated the construction long ago given to the statute which accords to it the effect of depriving a survivor from testifying that a certain communication or transaction did or did not take place personally between himself and the deceased, although a witness has already repeated the communication and described the transaction. The cases referred to supra furnish seeming, not real, exceptions to the rule.

The judgment should be reversed, with costs to the appellant to abide the event, and a new trial ordered before another referee.

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

Judgment reversed, a new trial ordered before another referee to be appointed in the order to be entered hereon, with costs to appellant to abide event.


author: Yan Brunt, P. J.:

text:
    Elise Reich, as Administratrix, etc., of William Reich, Deceased, Appellant, v. The Union Railway Company of New York City, Respondent.

      Mcpert evidence — when admissible — motorman on an electric ca/r — not bound to anticipate any one’s crossing the tracks in the middle of a block.

    Expert evidence will not be allowed upon the trial of an action where the facts can be stated and described to the jury in such a manner as to enable it to form a correct judgment in regard to them, but where it is impossible to so state the facts that the jury can comprehend them, and no better evidence is obtainable than the actual observations of a witness, then expert evidence becomes admissible.
    The motorman on a car upon an electric surface railroad is not bound to expect or anticipate the fact that a boy is going to cross the car tracks in the middle of a block.
    Appeal by the plaintiff, Elise Reich, as administratrix, etc., of William Reich, deceased, from a judgment of the ^Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 31st day of March, 1893, upon the dismissal of the complaint directed by the court after a trial at the New York Circuit before the court and a jury.

      G. W. Smith, for the appellant.

      W. S. Gogswell, for the respondent.
   Yan Brunt, P. J.:

This action was brought to recover damages because of the killing of the plaintiff’s intestate by one of the defendant’s cars. It appeared upon the trial that, upon the evening in question, which was pleasant, but dark, the deceased was playing with some comrades in the street at a considerable distance from the crossing. There was a crowd of youngsters chasing the boy. A car was going north at about seven miles an hour, making a stop at the crossing. There was also a car going south. Just as the tail end of the northbound car was passing the boy, he left the east sidewalk to go across Third avenue diagonally tending towards the south, and when he stepped on the south-bound track, 'the north-bound car was about twenty-five to thirty feet away, and the south-bound car was about four feet from him. Before the boy came upon the south-bound track, the motorman shouted and rang the bell, the other boys at this time being six or seven feet away from him. One of the witnesses testified that, when the motorman shouted and rang the bell, the deceased attempted to go across the track. He was struck by the car and run over and killed. In another place, one of the witnesses stated that the boy ran within eight feet from the rear dashboard of the north-bound car, and that this car cut off his view of the car coming south. Upon this evidence the court dismissed the complaint, and from the judgment thereupon entered this appeal is taken.

The only question which seems to be at all important upon this appeal, is as to whether the court was justified in excluding the questions put to the witness Klebs as to the distance at which this boy could have been seen by the motorman of the south-bound car, the southbound car and the north-bound car being in the position stated in the questions propounded. It is undoubtedly true that expert evidence will not be allowed where the facts can be stated and described to the jury in such a manner as to enable them to form a correct judgment thereupon. But where it is impossible to so state the facts that the jury may be able to comprehend them, and no better evidence than the actual observations of the witness is attainable, then expert evidence is admissible. In the case at bar it was claimed, on the part of the plaintiff, that the question as to how far the motorman of the south-bound car could see the deceased after the passing of a • north-bound car was material. But it seems to us, from the evidence in the case, that the motorman of the south-bound car had no right to expect or anticipate the fact that this boy was going to cross the track in the middle of the block. He undoubtedly, under the rules, was required to be more vigilant at the crossing, where he might naturally expect parties to cross the track, than in the middle of the block. Furthermore, if the motorman could see the boy in the dark, it being conceded that it was dark, the boy certainly could see the car, a very much larger and more conspicuous object, and he, crossing in the position in which he was, was bound to look and see that the way was clear. If the car was within sight sufficiently long for the motorman to have avoided the boy, it was in sight sufficiently long for the boy to have avoided the car. It appears from the evidence that as soon as the motorman saw that the boy was going to cross the track he warned him, and the only result was an attempt, upon the part of the boy, to rush in front of the car and go over, when he first presented himself in front of the car, he being only four feet away. Under the rules laid down in the case of Fenton v. Second Avenue Railroad Co. (126 N. Y. 625) under such circumstances a recovery cannot be had. Therefore, the evidence which was excluded seems to have been immaterial. It may further be suggested that in the questions which were put, no one of them in its facts coincided with the testimony which had been introduced showing the position of these cars and the boy previous to and at the time of the happening of the accident.

The case seems to be entirely free from any proof of negligence upon the part of the motorman, and shows that the accident was the result of the carelessness of the deceased.

Judgment should be affirmed, with costs.

Follett and Parker, JJ., concurred.

Judgment affirmed, with costs.


author: Van Brunt, P. J.:

text:
    Miles M. O’Brien and Another, as Receivers of The Madison Square Bank, Appellants, v. Ronald T. McDonald and Another, Respondents.

      Action on promissory notes — the notes must he construed with the agreement under which they are held — how an agreement illegal, ultra vires or contras'y to public policy is avoided.

    Where notes are the offspring of an agreement, and are connected therewith and form part and parcel of the same transaction, the rights and obligations of the parties to the notes, as between themselves, are regulated by the terms of the agreement. The holder of the notes cannot enforce one part of the contract, the notes, and be relieved from the obligations of another part of the contract, the agreement.
    When the makers and indorsers of certain notes enter into a contemporary agreement in respect thereto with the bank by which they were discounted} if such agreement is illegal or beyond the power of the bank to make, the only way in which the bank can escape its obligations under the agreement is to rescind the same, return what it has received in pursuance thereof and place the parties in the position in which they were before the agreement was made, or at least offer to do so.
    Even where a portion of a contract is ultra vires, a corporation cannot recover upon that portion of the contract which it claims to he within its powers and repudiate the balance as ultra vires.

    The fact that one portion of a contract is contrary to public policy gives to a party thereto the right to demand a rescission of the whole contract, but such party cannot, while insisting upon the illegality of one part, enforce any other portion of the contract.
    An action brought upon promissory notes constitutes an election on the part of the plaintiffs therein to place their right of recovery upon such notes, and no matter what ultimate right they may have, unless they are entitled to recover upon such notes, by reason of the provisions of the notes themselves, no recovery can be had in the action.
    Appeal by the plaintiffs, Miles M. O’Brien and another, as receivers of The Madison Square Bank, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 17th day of March, 1894, upon the dismissal of the complaint after a trial by the court without a jury at the New York Circuit.

      Louis Ma/rsTiall, for the appellants.
    . W. B. Puimey, for the respondents.
   Van Brunt, P. J.:

This action was brought to recover upon two promissory notes made by one Ronald T. McDonald to the order of the Port Wayne Electric Company, and indorsed by said company, and thus indorsed delivered to the Madison Square Bank of which the plaintiffs are receivers.

There is no dispute as to the facts established by the evidence, the controversies arising as to the deductions to be drawn therefrom. It appears that prior to January 27, 1891, the Madison Square Bank had taken proceedings to increase its capital stock and .to issue and sell the same; and the bank requested the defendant, the Port Wayne Electric Company, to purchase a certain amount of such increased stock, to wit, 1,000 shares. Negotiations were had which resulted in an agreement that said company should buy said 1,000 shares of stock at $150 per share, in consideration of the bank making a certain agreement in writing as follows:

“This agreement, made this 27th day of January, 1891, by and between R. T. McDonald, of Fort Wayne, Indiana, and New York, party of the first part, and the Madison Square Bank of the city of New York, a corporation organized under the laws of the State of New York, party of the second part;

“ Witnesseth, That in consideration of the discount by the party of the second part of three promissory notes of the party of the first part, each for fifty thousand dollars and interest, and each payable in six months from date thereof, made payable to and indorsed by the Port Wayne Electric Company, the said party of the first part agrees to and does, at the time of the execution hereof, deposit with the said party of the second part bonds of the Louisiana Electric Light Company, a corporation organized and doing business in New Orleans, in the State of Louisiana, to the amount, at par, of two hundred thousand dollars, with interest coupons thereto attached, as collateral security for the payment of said notes, and of notes which may be given in renewal thereof, upon the following terms and conditions, to wit:

“ The said bonds are a part of an issue of bonds amounting to $600,000, and the party of the second part is to have the, right to sell and pledge bonds, or any part thereof, at any time while the said notes, or notes given in renewal thereof, shall be outstanding, and shall account for the proceeds of any such sale-to the extent of ninety per cent of the face value of the bonds sold and no more. After having sold the said pledged bonds the • said party of the second part shall have the right at any time while this contract remains in force and not fully performed to sell any other bonds of the same issue then owned and held by the party of the first part at and for a price or sum not less than ninety per cent of their face value, and in such case the party of the second part shall account for the proceeds of the bonds so sold to the extent of ninety per cent of their face value, and in consideration of the premises the party of the second part agrees that the party of the first part shall not be called upon to pay his said notes until the said two hundred thousand dollars of pledged bonds shall have been sold, otherwise than by giving renewal notes therefor from time to time as the notes held mature, the party of the second part agreeing to accept such renewal notes for the said one hundred and fifty thousand dollars from time to time, until the said pledged bonds shall have been sold or mature.

“ The party of the second part is to receive the interest on the pledged bonds so long as it shall hold the same and apply said interest on account of said notes.

“ It is further agreed that the party of the first part shall also' have a right to effect the sale of the said pledged bonds at any time, but in such case the party of the second part is to receive the proceeds thereof an,d to apply the same so far as required in payment of said discounted notes, or notes given in renewal thereof,” and in consideration of its discounting for the said company the three notes mentioned in said agreement and payable under and pursuant to the terms thereof.

Thereupon, and as part and parcel of the transaction, the said company delivered to the bank, together with the said three notes, each for $50,000, bonds of the Louisiana Electric Light Company of the par value of $200,000 as and for security for the payment of said notes or the notes which were to be given in renewal therefor in accordance with the terms of the contract first above set forth. Thereupon said bank credited the said Fort Wayne Electric Company With the proceeds of said notes, and a draft or check was made by said company as against said credit and in favor of the bank for said $150,000, the purchase price of said shares of stock, and the stock was thereafter delivered to said Fort Wayne Electric Company. The bonds in question have never been sold. The defendants gave, and the bank received, renewal notes down to December, 1893, the date of the maturity of the note set forth in the complaint, when the defendants tendered new renewal notes which were refused by the plaintiff.

It further appeared that no money ever passed between these parties in respect to this transaction, and that on the 9th of February, 1891, the transaction was reported to the board of directors of the bank at a regularly called meeting, and by it formally approved; and it was further ordered at this meeting that the bank’s counsel should examine this agreement as to its legality. At a meeting on March 9, 1891, a communication was presented from the bank’s counsel in response to the resolution passed at the meeting of February 9, 1891, and a resolution was introduced that McDonald be requested to amend his agreement so that the loans made to him be in conformity with the counsel’s recommendation, and that the maturity of the loan be fixed at some reasonable and definite period. The notes were renewed from time to time and the old notes surrendered, the board of directors not passing upon the renewal before the renewal notes were executed, but approving of the same afterwards.

TJpon this state of facts the court held that no right of recovery as to the notes existed in the plaintiffs and dismissed the complaint, and from the judgment thereupon entered this appeal is taken.

It is urged that the burden of proof rests upon the defendants to establish the execution of a valid contract whereby the defendants became entitled to a renewal of their obligation to the bank until such time as the bonds of the Louisiana Electric Light Company, pledged as security, could be sold at ninety per cent of their face value, and that the contract was not authorized by the directors of the bank, and was, therefore, ineffectual as an agreement to extend the time of payment of the indebtedness owing by the defendants to the plaintiffs. In regard to these propositions it seems to be sufficient to say that the bank came into possession of these obligations upon the part of the defendants by virtue of that contract. They came into possession of these bonds, which they have ever since the date of the contract held, and upon which they have collected the interest, and neither the bank nor its receivers have made any effort whatever to rescind the contract and place themselves upon what legal rights the transaction might give them, independent of the obligations arising out of the contract. The notes being the offspring of the agreement, .connected therewith and forming part and parcel of the same transaction, the rights and obligations of the parties to the notes, as between themselves, are regulated by the terms of the agreement; and these plaintiffs cannot enforce one part of the contract, viz., the notes, and be relieved from the obligations of another part of the contract, viz., the paper which is styled the agreement. It is a familiar principle that papers forming part of the same transaction must be read together. Hence, when the question as to the liability of the defendants upon the notes is to be determined} it must be gauged not only by the contents of the notes themselves but of the agreement of which they formed a part. The makers and indorsers of these notes entered into an agreement with this bank by which the lattter received the notes. If that agreement was illegal or beyond the power of the bank to make, then the only way in which the bank can escapq its obligations under the agreement is to rescind the same, return that which it has received in pursuance thereof, and place the parties in the position in which they were before the agreement was made, or at least offer to do so. But the receivers of the bank, representing the bank, claimed to hold all that they got under the agreement and- all the rights which the contract gives to them without being bound at all by the obligations entered into upon the part of the bank. We do not understand, even where a portion of a contract is ultra vires, that a corporation can recover upon that portion of the contract which it claims to be within its powers and repudiate the balance as ultra vires.

The same reasoning will apply to the further claim that, assuming the alleged contract to be authorized by the directors, it nevertheless has no binding force upon the plaintiffs since the contract as made is contrary to public policy. The most that such a condition of affairs, even, if it existed, would give to the bank would be the right of rescission ; and as has already been observed there has been no attempt to rescind ; and they are now seeking to enforce a part of this very contract which, according to their claim, is obnoxious to public policy.

This reasoning also applies to the claim that the contract was illegal and that in consequence thereof the plaintiffs are entitled to the immediate payment of the money received by the defendants as money had and received by them for the use of the bank, and can enforce the notes in suit given as security for such indebtedness without regard to the terms of the agreement pleaded in the answer. As suggested by the court below, this is not an action for money had and received, but an action upon the notes, and the plaintiffs can only succeed by reason of the validity of these notes. They have chosen to place their right of recovery upon these notes; and no matter what ultimate rights the bank may have, unless they are entitled to recover upon these notes by reason of the provisions of the notes themselves, no recovery can be had in this action. As already demonstrated, no right of recovery exists upon these notes, because they are part and parcel of a contract which the bank has not fulfilled, which contract, if illegal, the bank has not attempted to rescind, but has retained all that it received under it, and now proposes, while claiming to be relieved from its own obligation, to enforce the obligation of the other party to the contract. No such rule of law has as yet obtained in this State.

The claim made, that there was some misrepresentation in regard to the amount of the issue of the bonds, a part of which were pledged, rests upon precisely the same foundation. If the bank claims to be relieved because of such misrepresentation, which certainly is not entirely apparent upon the face of the contract, they might have had the right to rescind or to sue for any damages sustained by reason, of such misrepresentation. But they have done neither. They simply proposed to compel these defendants to keep their part of the contract without being bound, as already stated, by the terms of the contract in respect to their own obligations.

Ve think, therefore, that the court below was entirely right in dismissing the complaint in this case; and, furthermore, that the rights of the parties do not depend upon the question as to whether the. transaction in regard to this money was a mere matter of bookkeeping or not. That may be a matter of importance when the question as to the rights of these receivers comes up in a different form.

The judgment should be affirmed, with costs.

Follett and Parker, JJ., concurred.

Judgment affirmed, with costs.


author: Pee Cueiam :

text:
    Robert C. Black and Another, Appellants, v. Henry McAleenan and Another, Respondents.

      Bill of pa/rticulaA's — what facts relating to a business customer must be stated therein.

    In an action brought to recover a chattel or the value thereof, alleged to have been wrongfully pledged with the defendant by an employee of the plaintiff, who was given the possession thereof for the purpose of showing it to a proposed customer, the plaintiff should not be required to disclose by a bill of particulars, the name, address, business and financial standing of the proposed customer.
    Appeal by the plaintiffs, Robert C. Black and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the. county of New York on the 15th day of February, 1894, requiring the plaintiffs to furnish a further bill of particulars.
    In this action, brought to recover the possession of a diamond necklace or the value thereof, the complaint contained, among others, the following allegations:

      “ That on or about the -day of May, 1891, the plaintiffs delivered to one James A. Eustice the said diamond necklace referred to in paragraph II of this complaint on memorandum. That by such delivery no title passed to said Eustice, but tbe title and right to possession of the said diamond necklace remained, and has ever since remained, in thesq plaintiffs.

      “ Upon information and belief, on or about the 26th day of May, 1891, the said James A. Eustice voluntarily and without any right, pledged the said chattel with the defendants, and the said defendants wrongfully detained the said diamond necklace fi*om these plaintiffs, to the damage of these plaintiffs in the sum of one thousand dollars.”
    The answer denied the allegation in the complaint, and alleged that said Eustice was, at the time of the pledging of the chattel, the owner thereof, and that such chattel was pledged by him as security for money advanced to him which had never been paid.
    In pursuance of an order of the Supreme Court the plaintiffs delivered a bill of particulars to the defendants as follows:
    c< First. That the day of May, 1891, on which the plaintiffs claimed to have delivered to one James A. Eustice the diamond necklace referred to in the complaint, was on or about the 26th day of May, 1891.

      “ Second. That the agreement under which said diamond necklace was delivered to said James A. Eustice was that the plaintiffs delivered to the said James A. Eustice the necklace for the purpose of being shown to a proposed customer, the necklace to be returned if not sold to the customer then and there mentioned by him; and if sold, the price fixed by plaintiffs thereon to be paid.”
    Thereafter a further order was made directing the plaintiffs to furnish a further bill of particulars, which should state whether James A. Eustice gave to the plaintiffs any description of the proposed customer, and which should also state his name, address, description, business, trade, occupation, ■ financial standing or responsibility.

      Joseph Fettretch, for the appellants.

      George G. GomstocJc, for the respondents.
   Pee Cueiam :

The name, address, business and financial standing of the proposed customer are not particulars of the plaintiffs’ cause of action, but are merely evidentiary facts which the plaintiffs should not be required to disclose by a bill of particulars. The plaintiffs’ right of recovery would not be defeated or affected by the fact that Eustice gave the name of some person as a proposed customer who had not in fact proposed to purchase the necklace.

The order should be reversed, with teu dollars costs and disbursements, and the motion denied, with ten dollars costs.

Present — Yak Brunt, P. J., Follett and Parker, <TJ".

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.


text:
    Louise Meise, Respondent, v. Henry Newman, Appellant, Impleaded with Another.

      Notice of the non-payment of a note — when the nota/ry need, not have personal knowl- ' edge of the demand for payment.

    It is not essential, in order to charge the indorser of a note with liability thereon, that the notary who signed a notice of the non-payment thereof should have had personal knowledge of the making of the demand for the payment, where the notary did not undertake to act in his official capacity, nor certify to the protest of the note, but simply gave notice to the indorser that the note had been presented for payment and that payment had been refused.
    Appeal by the defendant, Henry Newman, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 18th day of October, 1S93-, upon the verdict of a jury rendered after a trial at the New York Circuit.

      J. O. Mosenbaum, for the appellant.

      J. G. Flammer, for the respondent.
   Yan Brunt, P. J.:

Upon a previous argument of this case the court reserved for consideration the question as to whether there had been any sufficient proof of presentment and notice of non-payment to entitle the plaintiff to recover. Upon the record, as it then stood, the court was of opinion that there was not sufficient evidence of presentment and non-payment to charge the indorser. The case has now been resettled and the confusion which previously existed in reference to the testimony has been eliminated. A re-argument has been had, and it would seem that the objections suggested upon the previous argument have now been met.

It appears that the note in question was presented upon its due day by the plaintiff and her husband to the defendant and payment demanded, which was not made, and that the notice of such demand and non-payment was duly mailed to and received by the indorser.

It is urged upon the part of the appellant that there is no authority shown upon the part of the notary to sign the notice of nonpayment, and that, he not having made the demand, and not having personal knowledge of the making of the demand, such notice was of no avail and the indorser was not charged. It appears that the notary had his place of business in the office of the plaintiff’s attorney, and that the husband of the plaintiff came in with the note and told the notary of the presentment, and that subsequently the attorney came in and he and the notary talked the matter over, and it was then decided to send the notice of non-payment. This, it seems to us, was sufficient, and the authority to act complete.

It is to be observed that the notary did not pretend to act in his official capacity, and did not certify to the protest of the note, but simply gave notice to the indorser that the note had been presented for payment, and that payment had been refused.

We think, therefore, that the judgment should be affirmed, with costs.

Eollett and Parker, JJ., concurred.

Judgment affirmed, with costs.


text:
    George G. Williams and Another, as Executors, etc., of Catherine M. McCoskry, Respondents, v. Katherine Van Wyck Haddock, an Infant, Appellant, Impleaded with Others.

      Contracts — binding on the pes'sonal reprresentatives of a deceased party — rights of such representatives —power to extend the time of performance of a contract for the sale of land.

    It is a familiar principle in reference to the interpretation of contracts, that, although there are no express words making the same binding upon the personal representatives of a deceased party, yet they may be enforced by and against such representatives, and the introduction of a clause in a contract making the stipulations therein contained binding upon the heirs, executors, administrators and assigns of the respective parties, does not confer upon the executors of a deceased party any rights which, they would not have enjoyed had the contract contained no such provision, nor does it impose any restrictions upon their right of action which would not otherwise have existed.
    When the rights of a deceased party to a contract descend to her personal representatives, such representatives possess, so long as they act in good faith, the same powers as the deceased, and represent her fully in respect to the obligations and rights under the contract.
    The executors of a testatrix, acting in good faith, have the power to extend the time for the performance of a contract to purchase real estate, made by third persons with the testatrix, in her lifetime, where such sale is advantageous to the estate, notwithstanding the fact that by reason of such contract being performed, certain of the heirs of the testatrix, who would have taken a share of the real estate described in such contract if the contract had not been performed, are not entitled to share in the proceeds of the sale thereof.
    Appeal by tbe defendant, Katlierine Yan Wyck Haddock, an infant, by J. Henry Swanstrom, her guardian ad litem, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 23d day of June, 1893, upon the decision of the court, rendered after a trial at the New York Special Term, except so much thereof as directed the payment of costs and allowances.

      J. E. Swanstrom, for the appellant.

      O. A. Jackson and Mmiley A. Raymond, for the respondents.
   Yan Brunt, P. J.:

This action was brought to compel a conveyance by the heirs at law of one Catherine M. McCoskry of certain real estate contracted to be sold .by the deceased in her lifetime, and for the purpose of determining whether, under the will of said decedent apd other instruments referred to, the infant defendant appellant and others, as heirs at law, have any beneficial interest in or right to any part of the real estate in question. The trial court adjudged, amongst other things, that no deed of conveyance by the said heirs at law is necessary, and that they have no interest in the said property and premises in question, and that, consequently, neither said infant nor the defendant, her mother, is entitled to any interest in said property, or in the proceeds of a sale thereof, as heirs at law or otherwise. From this judgment this appeal is taken.

Catherine M. McCoskry died in the city of New York on the 22d of April, 1886. Her will was admitted to probate by the surrogate of the county of New York in February, 1881, and consists of a will executed in December, 1884, and two codicils bearing date respectively September 3,1884, and April 12,1886. The appellant Avas the daughter of a nephew of the deceased, and, therefore, could not take under- the Statute of Distributions, being too far removed in relationship. And the question presented is whether the proceeds of the real estate in question are to be considered as real estate or personal property. As has been already stated, at the time of the death of the testratrix she had contracted to sell the property in ■question, the contract providing that the same should be closed on the 18th of March, 1881, and that the purchaser should have the right and privilege of occupying and using said premises as a tenant until said date, or until the closing and consummation of said sale if sooner completed. At the end of the contract was a clause which provided that in case of the failure of the purchaser to complete said contract on or before the 18th of March, 1881, all interest in the said premises, and all right and claims to a conveyance thereof, should, ipso facto, cease and determine absolutely, and the premises should be delivered over to the party of the first part. The contract contained the further provision that the stipulations were to apply to and bind the heirs, executors, administrators and assigns of the respective parties. Before the time for the completion of this contract the vendor died. Upon the day fixed for its completion the vendees were not ready to and did not complete the contract. The executors were ready and willing on their part to perform the contract in accordance with its terms and conditions. Upon the last day within which, by its terms, the contract was required to he completed the executors waived the said stipulation by executing an agreement extending the time for the performance of the contract by the vendees. This extension and waiver were given without obtaining the consent of the heirs at law of the deceased vendor. And it is now claimed by the appellant that such extension was without authority and beyond the powers of the executors, .and that by virtue of the clause referred to in the contract, the same ceased to exist, and the property became real estate in the hands of the executors, to the proceeds arising from a ■sale of which the heirs at law of the testatrix were entitled. The argument in support of this proposition seems to be based upon the clause in the contract making the stipulations therein binding upon the heirs, executors, administrators and assigns of the respective parties. It is difficult to see how any additional jights were conferred or limitations imposed upon the personal representatives of the deceased by this clause, which would not have existed by operation of law. It is a familiar principle in reference to the interpretation of contracts that although there are no express words making the same binding upon the personal representatives of a deceased party, yet they may be enforced by and against such representatives; and the contract is just as binding upon such representatives as though made so by express terms. Therefore, the introduction of the clause in question does not seem to have conferred any rights upon the executors of the deceased which they would not otherwise have enjoyed, or to have imposed any restrictions upon their right of action which would not otherwise have existed.

It will not be disputed that even if time was of the essence of the contract, the testatrix in her lifetime would have had the power to have extended such time of completion. And as the rights of the testatrix under this contract descended to her personal representatives, as long as such representatives acted in good faith, it is difficult to see why they did not possess the same powers, they representing the testatrix fully in respect to the obligations and rights under the contract. It is not claimed, had there not been this provision for forfeiture, that the executors would not have had the right to extend the time for the completion of this contract. If, under any circumstances, they have the right to extend the time, how can the insertion of this clause have abridged such right if any force whatever is to be given to the clause making the stipulation binding upon the representatives ? It is evident that it was the intention that the stipulations to be performed by the testatrix were to be binding upon her representatives; not the privileges which were conferred upon such personal representatives. And the question as to whether the enforcement of this contract upon its due date should be insisted upon, was a privilege which they might possibly have had the right to enforce, but which was not absolutely certain, because, even where time is of the essence of the contract, a party may, under some circumstances, be excused from performance and. be allowed to fulfill bis obligation subsequently.

We cannot see, upon a consideration of the rights of these parties, how it is possible to hold that the executors in respect to this contract did not fully represent the testatrix and have the right to use their best judgment, as long as they acted honestly and without negligence, upon the question as to whether these purchasers should be allowed an extension of time to complete a contract.which seems to have been advantageous to the estate.

We do not think that there is any question of equitable conversion arising in this case. It is the ordinary case of a contract to purchase, the title to be completed at a certain time; the vendor dies before the time arrives for its completion and the executors extend the time in order that the purchaser may complete and the contract is finally fulfilled. Unfortunate as it may be for this appellant that the result of the contract by the vendor has deprived her of a portion of the estate of the testatrix because portions of her will had been declared void, we do not think that the ordinary rules of representation of executors, in respect to the contract of their testatrix, can be set aside in order that this apparent hardship may be obviated.

We are of opinion, therefore, that the claim made by the appellant, that the executors were without authority to extend this time, and that by force of the provisions of the contract the property therein described reverted to the estate of the testatrix as real estate, is not well taken.

The judgment appealed from should be affirmed, with costs.

Follett and Parker, JJ., concurred.

Judgment affirmed, with costs.