author: Rumsey, J.:

text:
    Adelbert P. Little, Respondent, v. The City of Rochester and Samuel B. Williams, Personally and as Treasurer of The City of Rochester, Appellants.

      City of Rochester — assessment fot' street improvements — deducted from award- — - payment by mistake— when the city will be enjoined from collecting the assessment.

    By tlie provisions of the charter of the city of Rochester (Chap. 14 of the Laws of 1880) that city is not obliged to pay for the taking of any land for the widening of a street until after the confirmation of the assessment roll which shall be made for the expenses of such improvement, and when the assessment roll is made for the expenses of any improvement there must be made to appear on the face of it not only the amount of the assessment against any person, but also the amount of damages, if any, to which that person shall be entitled,
    “and the amount of the excess, if any, to be collected.”
    In August, 1892, the mayor of the city of Rochester, by the authority of an ordinance passed by the common council of said city for the widening of Went-worth street, entered into a contract with one Yoshall, whereby Voshall agreed to convey to said city eighteen inches on the east side of his lot for a specified sum of money, the contract providing that there should be deducted from the consideration therein expressed the amount of the assessment to be made against said property for the improvement specified in the ordinance, and that the consideration was not to be paid until four months after the confirmation of the assessment..
    After the execution of said contract, and before any assessment roll had been completed, one Little bought of Yoshall the premises adjoining those contracted by Yoshall'to bo sold to the city of Rochester, and took actual possession of the premises in April, 1893. On May 8, 1893, Yoshall conveyed to Little the premises so sold to him, and also conveyed to the city the premises contracted by him to be sold to the city. The assessment roll was confirmed by the common council of said city on May 16, 1893.

      On the 13th of May, 1893, Voshall obtained from the city attorney of Rochester an order upon the city treasurer, which stated that he was entitled to the amount of the award made to him for the eighteen inches of land to be applied upon the assessment therefor, or in case the amount of the award exceeded the assessment, then to the payment of the balance. The order was presented, hut instead of deducting the amount of the assessment the treasurer paid to Voshall the whole amount of the award. After the confirmation of the assessment roll a notice was sent to Voshall to pay the whole amount of the tax, which notice was by him transferred to Little, and the city sought to make the land conveyed to Little liable for the whole amount of the tax.
    Upon the trial of an action brought by Little to restrain such proceeding on the part of the city,

      Meld, that under the contract between the mayor of the city of Rochester and Voshall the land was not to be made amenable to any lien for the assessment unless the amount thereof was greater than the consideration paid for the land purchased of Voshall;
    'That at the time that Little purchased the property from Voshall it was certain that no assessment would he levied against the property to pay for the widening of Wentworth street, as the assessment was tobe deducted from the consideration for the eighteen inches of land sold to the city by Voshall;
    'That the city had practically guaranteed that there should he no lien upon such property for such improvement unless the amount due to Voshall was less than the amount of the assessment against the land;
    'That the consequences of the mistake should not be visited upon Little, who had nothing to do with it, and that the city should be restrained from collecting the assessment against his land;
    That there was no reason why Voshall should be made a party to an action to restrain the city, Little making no claim against him and having no right of action against Voshall.
    Appeal by the defendants, The City of Rochester and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 5th day of December, 1894, upon the decision of the court rendered .after a trial at the Monroe Equity Term.

      A. J. Jiodenbeoh, for the appellants.

      Walter S. Hubbell, for the respondent.
    Present — Lewis, Bradley, Ward and Werner, JJ.
    Judgment affirmed, with costs, on opinion of Rumsey, J., at Special Term.
   The opinion of Rumsey, J., was as follows:

Rumsey, J.:

In tlie year 1892 the common council of the city of Rochester passed a final ordinance for the widening of "Wentworth street in that city. The usual proceedings were had for the taking of lands, and the executive board reported that the necessary land could be bought at a certain price, which appeared to the common council to be reasonable, and in pursuance of its authority on the 1st day of August, 1892, the mayor of Rochester made a contract with Charles W. Voshall, by which he agreed to convey to the city eighteen inches on the east side of his lot for the sum of $2,212.80. It was further .agreed in the contract that there should be deducted from the consideration above expressed the amount of the assessment made Against said property for tlie improvement specified in final ordinance No. 4780, which was the final ordinance for the widening of Wentworth street. The consideration was not to be paid until four months after the confirmation of the assessment roll for that ordinance. By the provisions of the city charter it appears that the city is not obliged to pay for the taking of any land for the widening of .a street until after the confirmation of the assessment roll which should be made for the expenses of said improvement. (§ 196.) It further appears by section 191 of the charter that when the assessment roll is made for tlie expenses of any improvement there ¡shall be made to appear on the face of it not only the amount of the .assessment against any person, but also the amount of damages, if .any, to which that person shall be entitled, and the amount of the •excess, if any, to be collected.” It is quite evident from this that the theory of the law is that there shall not be collected by assessment from any person any greater sum than the difference between the award which has been made to him and the assessment made against him, and, therefore, if the assessment is less than the award nothing whatever can be collected from his property.

After this contract had been made with Voshall, and before any .assessment roll had been completed, the plaintiff bought of Voshall these premises on the corner of Wentworth street and West avenue, and took actual possession of them in the middle of April, 1893. The assessment roll was duly made and was confirmed by a vote of the common council on the sixteenth day of May, at which time it .became a lien upon the premises described in it. (City Charter, § 215.) On the eighth day of May Yoshall conveyed to the plaintiff the premises which lie agreed to sell to him, and he also conveyed to the city the eighteen inches which he had agreed to sell to it. On the thirteenth day of May the city attorney gave to Yoshall an order of which the following is a copy:

“City Attorney’s Office,
“ Rochester,. N. Y., May 13, ’93.
To the Oity Treasurer:
“Charles W. Yoshall and Caroline P. Yoshall have this day delivered to me a duly executed and acknowledged deed of the parcel of land taken by the city of Rochester for the widening of Wentworth street in said city under final ordinance No. , and is, therefore, entitled to the amount of the award made to them by the commissioners of appraisal therein, viz., twenty-two hundred twelve and eighty, one-hundredths dollars ($2,212T8$r), to be applied upon the assessment therefor, or in case the award exceeds the assessment then to the payment to them of the balance.
“ Respectfully yours,
“A. J. ROJDENBECK,
First Assistant City Attorney.”

The order was presented, but instead of deducting the amount of the assessment the city treasurer paid to Yoshall the w'hole amount of the award, being $2,212.80. Shortly after the confirmation of ;Üie assessment roll a notice was sent to Yoshall to pay the whole amount of the tax, which notice was by him transferred to Little, and the city now seeks to make the land conveyed to Little liable for the whole amount of this tax. It is to restrain this proceeding on. the part of the city that this action was brought.

The contract which was made between the mayor and Yoshall was strictly within the provisions of the city charter as well as a compliance with the resolution of the common council, and by that contract the city bound itself not only to pay Yoshall the amount of his award, but to deduct in the first place the amount of the assessment from the consideration for the land. The result of this was that the land was not to be made amenable to any lien for the assessment unless the amount of the assessment was greater than the consideration paid for the land.

This was the situation, between Voshall and the city at the time when Little made his contract for the purchase of the land. At that time it was certain that no assessment would be levied against this property to pay for the widening of Wentworth street, because the whole amount of the assessment was to be deducted from the consideration for the eighteen inches of land sold by Voshall. There was no cause, therefore, for Little to make any provision in his contract against this assessment, for there was no way at that time in which the assessment could become a lien upon his land. It is quite true that there was not at that time, and perhaps there never was, any relation between Little and the city with regard to this matter which could prevent the proper authorities of the city from changing this contract so as to pay to Voshall the whole amount of this award and leave the land liable for the whole amount of the assessment. But the city never undertook to do anything of the kind. Neither the city attorney nor the city treasurer had any right to modify or change the contract which had been made by the mayor under the authority of the common council. Nor did they attempt to make any change. The direction to the city treasurer was simply to pay to Voshall the balance which was due after deducting the assessment. There was no intention on the part of the city treasurer to do anything else, and that anything else was done was only the result of mistake which occurred somewhere in his office.

The position which the three parties occupied with relation to this assessment was this : The city had the right to deduct the amount of this assessment, in the first instance, from the consideration which it was to pay to Yosliall. If that were done there would be no lien upon the land arising from this assessment, and unless there was a lien on account of the assessment the plaintiff here could not be subjected to the payment of any part of -that sum.

So far as the land was concerned, therefore, the city had practically guaranteed that there should be no lien upon it for this improvement unless the award to Voshall was less than the amount of the tax against this land. So long as that condition of affairs existed the plaintiff has the right to insist that there shall be no effort made to collect from his land the amount of this tax which the city has agreed to deduct from the consideration going to Voshall. The contract between Voshall and the city has never been changed, and the payment of the full amount of this conr sideration by the city treasurer was clearly a mistake. The question arising here, therefore, is who must bear the consequences of this mistake ? Must it be visited upon the plaintiff, who has had nothing to do with it, or must the city look to Voshall for the money whicli its officer unwittingly paid him, and recover it from him ?

It seems to me that there can be no difficulty in answering that question. Whoever else may have been to blame it is clear that the plaintiff was -not. The person in the first place responsible for this overpayment is Yoshall, because the plainest principles of good faith called upon him to advise the city treasurer that there wras an assessment to be deducted from this consideration, and that he was only entitled to the balance after deducting the assessment.

The mistake was undoubtedly the mistake of some person in the city treasurer’s office acting for the city treasurer, and was one of which Yoshall was ready to take advantage. But whoever committed the mistake, in the office of the city treasurer, was the agent} not of the plaintiff, but of the city, and the rule should apply that where one of two innocent parties must sustain a loss from the fraud of a third such loss should fall upon the one, if either, whose act has enabled the fraud to be committed. (Moore v. Metropolitan National Bank, 55 N. Y. 41, 47.) The case at bar is a very proper one for the application of that rule. As we have seen, the city was bound by its contract to deduct the amount of this assessment from the consideration to be paid to Yoshall. If that had been done ho harm could come to any one by reason of this assessment, but the burden of it would have fallen where it was expected and was proper that it should fall.

The defendant’s attorney claims that it was competent for the city to have changed this contract and .agreed to pay the whole of the consideration to Yoshall, and to have collected the whole of the assessment from the property. In view of the provisions of section 191 of the charter it is doubtful whether this claim is well founded or not. But however that may be, it is not doubtful that no attempt 'was made by the city to make any change in this contract. lam not referred to any provision of the law which authorizes the city treasurer to make any such chahge. Ilis duty is simply to pay the money as required by tlie contract and when the contract provides. If lie bad confined bimself to that this litigation would not have arisen.

I can see no reason wby Yosball and bis wife should be made parties to this action. The plaintiff makes no claim against them, and has, so far as I can see, no right of action against them. Undoubtedly the city has a right of action to recover this money which was paid by mistake, but that is a matter with which the plaintiff has no concern whatever, and there is no reason why he should bring these persons into this litigation.

For the reason thus stated the plaintiff is entitled to the relief which he asks.


source: Caselaw Access Project

author: Childs, J.:

license: Public Domain

text:
    Santi Peri, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.

      Negligence — what are excessive damages.

    Upon the trial of an action, brought to recover damages sustained by reason of the alleged negligence of the defendant, it appeared that the injury complained of was the loss of the plaintiff’s foot; that the plaintiff was a laborer and accustomed to earn about a dollar and a half per day; that he had not been able to work since the accident, a period of about eleven months; that he was twenty-four years of age, and suffered some pain at the time of the trial. It did not appear that the case differed from the ordinary one where the loss of a foot was suffered, or that there would not be as complete a recovery as is ordinarily secured in such a case, neither was it shown that the ability of the plaintiff to labor would be seriously impaired or to what extent. The jury rendered a verdict in favor of the plaintiff for §10,000.

      Neld, that as the testimony came short of supplying a more definite guide, experience and observation must lead to the conclusion (in view of the fact that the plaintiff, though suffering from disability occasioned by the loss of his foot, was still able to labor and to earn wages not much diminished in amount from the sum earned by him previous to the accident) that the jury were governed by some mistaken view in arriving at their verdict, and that the verdict should be reduced to §5,000, which would seem to be ample compensation to the plaintiff for the injury sustained by him.
    Appeal by the defendant, The New York Central and Hudson River 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 Erie on tlie 4th day of January, 1895, upon the verdict of a jury rendered after a trial at the Erie Circuit, and also-from an order made at the Erie Special Term and entered in said clerk’s office on the 8th day of February, 1895, denying the defendant’s motion for a new trial on a case containing exceptions.

      Charles A. Pooley, for the appellant.

      George W. Cothran, for the respondent.
    Present — Lewis, Bradley, Ward and Werner, JJ.
    Judgment and order affirmed on opinion of Childs, J., at Special Term.
   The opinion of Childs, J., was as follows:

Childs, J.:

The plaintiff received an injury which resulted in the loss of his foot, and this action was brought to recover the damages sustained thereby, upon the claim that such injury was occasioned wholly by reason of the negligence of the defendant and without any negligence on the part of the plaintiff contributing thereto. Upon the trial testimony was given by the plaintiff tending to' establish his cause of action, and by the defendant tending to establish its defense and disprove the allegations of negligence on its part. At the close of the testimony the court held that questions of fact arose upon the testimony and submitted the case to the jury, and a verdict was rendered in favor of the plaintiff and against the defendant for the sum of $10,000. The testimony given upon the trial has been again, and upon this motion, carefully examined and considered, and the conclusion again reached that a case was made for the jury, and that there is no such balance of testimony in favor of the defendant as to authorize the court to set aside the verdict as against the evidence.

The defendant’s claim that the verdict is excessive presents a more serious question.

The plaintiff is a laborer and accustomed to earn about one dollar and fifty cents per day. If he was entitled to recover he was entitled to be compensated for the pain and suffering which he endured by reason of the injury and for the diminution of his ability, if any, to work and earn money. But little testimony was given relating to the question of damages. It appeared that the plaintiff had lost one foot and that he had not been able to labor since the accident, a period of about eleven months; that he was twenty-four years of age, and suffered some pain at the time .of the trial. Beyond these facts the jury were left to conjecture as to the future results or effect of the injury. It did not appear that the case differed from the ordinary one, where the loss of a foot was suffered, or that there would not be in the plaintiff’s case as complete recovery as is expected or secured in such a case, or that the ability of the plaintiff to labor would be seriously or to what extent impaired. In this situation it becomes the duty of the court to examine the testimony for the purpose of determining whether the jury in rendering the verdict was controlled by. the testimony given and the legitimate inferences to be drawn therefrom, or whether an excessive verdict has been rendered, a verdict unsupported as to the amount, by the evidence. Interest upon the verdict rendered in this case would exceed the amount the plaintiff could earn, if employed every working day in the year at one dollar and fifty cents per day, by the sum of $150 yearly, and this leaves out of the question the principal sum. Governed by experience and observation, in so far as the testimony comes short of supplying a more definite guide, the mind is led to the conclusion that the plaintiff, suffering from the disability occasioned by the loss of his foot, is still able to labor and to earn wages not much diminished in amount from the sum earned by him previous to the accident, and that this fact should have an important bearing in estimating what amount would compensate the plaintiff for the injury sustained. In view of the condition of the testimony, as stated, it cannot be said that the jury was governed by the rule of compensation in reaching its verdict, but rather by some mistaken view, which resulted in an excessive verdict.

Having reached this conclusion, it follows that the verdict must be corrected by consent of the plaintiff, or that a new trial of the action must be granted. My conclusion is that the verdict should be reduced to $5,000, which sum would seem to be ample compensation to the plaintiff for the injury which he has sustained.

An order may be entered setting aside the verdict and granting a new trial herein unless the plaintiff shall, within five days after the entry and service of a copy of such order, stipulate to reduce the verdict to the sum of $5,000.


text:
    Allen J. Arnold and Others, Appellants, v. James Fee and John Fee, Respondents.

      Extent of am, easement of right of way- — depends upon the construction of the grant, not upon the user — right to drive vehicles.

    The purposes for which a private way created by grant may be used depend upon the terms of the grant. If, in general terms, it gives the grantee the use of the whole and every part of the way, it‘may be used in any manner and for any purpose reasonably necessary; and where the way is granted for all purposes it cannot be restricted to one purpose, because the owner thereof has had occasion, for a long series of years, to use it for that purpose only.
    The right depends not upon the user but upon the construction of the grant of an easement of a right of way. Such grant is to be construed liberally against the grantor, who should be deemed to intend to pass by his grant all that is within the fair meaning of the words which he uses.
    A conveyance of real property conveyed the following easement of a right of way, “ the privilege of the main alley eading to the Palace Stables, so-called, as an easement for ingress and egress along the north lino or alley line of the premises hereby deeded.” For a number of years the grantee in said conveyance used the alleyway simply along the sidewalk and for foot passengers.
    In an action brought by adjoining- property owners to enjoin the use of said alley for the passage of carriages and wagons,

      Held, that a construction which would restrict such grant so as to allow foot passengers only to pass over the alley, would be too strict, and that the grantee in said conveyance might, under said grant, drive in and out of the alley with wagons and other vehicles.
    Appeal by the plaintiffs, Allen J. Arnold and others, from an interlocutory judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Monroe on the 6th day of October, 1894, upon the decision of the court, rendered at the Monroe Special Term, sustaining the defendants’ demurrer to the plaintiffs’ complaint and dismissing the complaint.

      William F. Cogswell, for the appellants.

      John H. Hopkins, for the respondents.
    Present — Dwight, P. J., Lewis, Bradley and Ward, JJ.
    Interlocutory judgment affirmed, with costs, on opinion of Rumsey, J., at Special Term, with leave to the plaintiff to amend his complaint within twenty days, on payment of the costs of the demurrer and of this appeal.
   The opinion of Rumsey, J., was as follows :

Rumsey, J.:

It appears from the complaint in this case that the plaintiffs and the defendants are owners of parcels of land lying contiguous, and that one Joseph Ulrich was at one time the common owner of both pieces. In 1884 he conveyed to the defendants’ grantor a piece of land on Franklin street which was bounded on the north by an alley belonging to the grantor. The premises of the defendants extended ninety-eight feet on this alley. At the end of the description of the premises contained in the deed to defendants’ grantor, and which had been followed in the subsequent deed to the defendants themselves, is contained the following, “ with the privilege of the main alley leading to the Palace Stables, so-called, as an easement for ingress and egress along the north line or alley line of the premises hereby deeded, for the distance of ninety-eight (98) feet west from Franklin street and no more, and for no other purpose.” The Palace Stables, so-called, are situated upon the property of the plaintiffs. Access to them is had by this alley and they are used for livery stables. The alleyway is upon the boundary between the plaintiffs’ and the defendants’ land. 'Whether by the conveyance to the defendants they were to take an interest in the land to the center of the alley it is not necessary to discuss in this opinion.

It appears from the complaint that at the time of the conveyance to the defendants’ grantor by Ulrich, there was situated upon the premises a house standing a number of feet back from Franklin street, and that the rear of the house extended to a point about thirty feet from the rear end of the lot along the alley, so that for a distance of thirty feet along the rear end of the lot it was not built upon. On the south side of the alley there was a stone sidewalk extending its whole length. It is alleged in the complaint that from the time of the execution of the conveyance to the defendants’ grantors, they, and the defendants after them, were in the habit of using the sidewalk along the alley for the purpose of ingress or egress to their premises, and especially to a door which was in the wall of their premises’ in the rear of the house. The open space in the rear of the house was, some time ago, built up, so that the whole ninety-eight feet of the defendants’ premises along the alley was covered with the building. It is alleged further in the complaint that the defendants are now about to convert the house into a farmers’ hotel,” and that they propose to use that portion of the premises in the rear of the house, being the thirty feet which was formerly left open, for stables, and access to which they propose to have through the alley, and the complaint alleges that it is the intention of the defendants, not only to use the sidewalk for the passage of foot passengers, but also to use the whole of said alley for the ingress and egress of carriages and wagons to said barn or stable and pass over, with such vehicles, the sidewalk along said alley and threaten to use the same accordingly. The complaint contains, in addition to that, the usual allegations of irreparable damage.

It should also be said that shortly after Ulrich conveyed to the defendants’ grantors, he, by another deed, conveyed to the plaintiffs grantors the remainder of his property, which deed contained a provision that the alley was subject to the easement expressed in the deed from Ulrich to the grantors of the defendants. The claim of the plaintiffs is that by a proper construction of the grant of the right of way in the alley, the grantees are limited to use it simply for ingress and egress along the sidewalk and for foot passengers, and that they have no right to enlarge its use further than they have been accustomed to use it. This claim is disputed by the defendants, who insist that they have, by a fair construction of the deed, the right to use the whole alley for such ingress and egress as the necessities of any business which they carry on may require. The right of the defendants to use this alley is one which they acquire solely by virtue of the provision in their deed, and, of course, while they can get no more than their deed gives them, they are entitled to use it as fully as a fair construction of the deed will permit.

The well-settled rule should apply that the construction of such a grant is to be made liberally against the grantor, and he should be deemed to intend to jmss, by his grant, all that is within the fair meaning of the words which he uses. Referring to the words of the grant, it will be noticed that the owner conveyed to his grantee the privilege of the main alley as an easement for ingress and egress. Standing by themselves, undoubtedly those words are sufficiently broad to permit the grantee in the deed to use this alley, not only for passage of foot passengers, but for the ingress and egress of carriages, if he saw fit to do so. Is there anything in the subsequent words which can be construed to limit this right ? The exact wording of the grant is “ with the privilege of the main alley leading to the Palace Stables, so-called, as an easement for ingress and egress along the north line or alley line of the premises hereby deeded. It seems to me that the words “ along the north line or alley line of the premises ’’ are not intended to limit the use of the alley, but simply to describe more particularly the situation of the premises with reference to the alley which is to be used. It will be noticed that the grant does not say as an easement for ingress and egress along the north line of the alley, but along the alley line of the premises, from which it is necessary to bo inferred that the reference to the alley is made, not for the purpose of limiting its use, but for the purpose of describing the alley which is to be used. Besides that, if the words “ the north line ” should be construed to refer to the alley they would give the right to the defendants to use the alley on the side opposite to that on which their premises are situated, which certainly could not have been intended. It should be noticed also that in the deed from Ulrich to plaintiffs’ grantors the alley is said to be subject to the defendants’ easement.

The words, “ for the distance of ninety-eight feet,” are operative, and I have no doubt are intended to limit the right of the defendants to go upon the alley, and to preclude them from going further than the ninety-eight feet, and prevent them from using any entrance which may be put at the bacK side of their premises. They may go along this alley ninety-eight feet and they have the right of ingress and egress at any point for that distance, but they have no right to go beyond the ninety-eight feet and make an entrance upon their premises along the west side, -where it abuts upon #ie yard of the plaintiffs’ land. The words “ for no other purpose,” at the end of the description, are to be construed, I think, as limiting the words ingress and egress. This clause in the deed, I think, should be construed as though it read with the privilege of the main alley for the distance of ninety-eight feet west from Franklin ' street, and no more, as an easement for ingr'ess and egress, and for no other purpose.”

I have examined the ease of Allan v. Gomme (11 A. & E. 759), and it does not seem to me that that case is controlling or is of much aid in construing this grant. The way granted in that case was to a certain place which was described therein as an open place then used for a woodhouse. The court held that the grantee of the way might use the way for all purposes for which the open space might be used, but that he was not at liberty to change the nature of the use of the open space and have the unlimited right of way to it when the use was so changed. The case has not been followed to the full extent of the decision, even in England (Henning v. Burnet, 8 Exch. 187), and I should have grave doubts whether the decision would be held applicable to the situation of affairs in this country. The right in that case was limited to the loft and open space, and within the plain terms of the grant it could not be used for access to any other place. In the case at bar the grant is not so limited j the grantee, by the express terms of his grant, may use this alley for ingress and egress for any part of the ninety-eight feet, although he can use it for no greater distance. The grant which was construed in Allan v. Gomme was of a right of way over a yard, and it contained a provision that the yard should be used in common by the occupiers of A.’s and Gr.’s messuages in the same manner as the tenants had been accustomed to use it, which plainly limits the use of the way through the yard. I can find no authority for limiting the use of the words “ ingress and egress ” to ingress and egress by foot passengers, nor can I find anywhere within this grant any reason to believe that it was so intended. It is quite true that the complaint contains allegations that at the time of the making of the grant and for some time afterwards, the grantees had been in the habit of using the sidewalk only along the alley for the purpose of ingress and egress to the door in the wall of their house, and for no other purpose, but it does not follow from that that they are estopped to make use of it for another purpose, if such use is not beyond what is conveyed to them. The rule, I think, must be that the purposes for which a private way, created by the grant, may be used, depend upon the terms of the grant. If it is in general terms, it gives the grantee the use of the whole and every part of the way, and it may be used in any 'manner and for any purpose reasonably necessary, and where the way is granted for all purposes, it cannot be restricted to one purpose because the owner thereof has had occasion, for a long series of years, to use it for that purpose only. (19 Am. & Eng. Ency. of Law, 107.) The right depends, not upon the user, but upon the construction of the grant.

As I have said before, the right here is a general right of ingress and egress, and I think it would be putting too strict a limit upon the terms of this grant to hold that it was for ingress and egress for foot passengers only. But those words undoubtedly are of force in limiting the use to which this alley may be put by the defendants. They have only the right to ingress and egress, and they have no right to use this alley for the purpose of storing wagons. They may drive in and out, and, undoubtedly, may obstruct the use of the alley to the plaintiffs while they are driving in and out, but they are not entitled to obstruct it for any other purpose, nor does the complaint allege that they intend to do so It alleges simply that they propose to use it for ingress to and egress from their stables. That use, I think, is clearly within the terms of the grant which has been made, and, consequently, the complaint does no't show that the defendants intended in any way to violate the fights of the plaintiffs, and for that reason it does not set out a cause of action.


author: Bradley, J.:

text:
    Benjamin C. Miller, Plaintiff, v. J. Wesley Bush, as Sole Overseer of the Poor of the Town of Cohocton, County of Steuben and State of New York, Defendant.

      Overseer opthe poor, not am, agent of the town — power to sue and be sued — sections 182 amd 241 of chapter 569 of 1890— Code of Civil Procedure, § 1928 — remedies modified by statute.

    Prior to the passage of chapter 569 of the Laws of 1890, although overseers of the poor were elected at town elections, they were not, in the performance of their official duties, in any legal sense the servants or agents of their respective towns. They and their successors in office alone could sue and he sued upon their contracts and for other causes of action relating to, and within the scope of, their official powers.
    The provisions of section 182 of chapter 569 of the Laws of 1890 are within the application of section 1928 of the Code of Civil Procedure, to the effect that the two preceding sections oí the Code do not apply to a case where it is specially prescribed by law that an action may be maintained by or against the body represented by an officer designated in those sections, and the fact that a plaintiff’s original cause of action arose prior to the taking effect of the act of 1890 does not relieve his action, thereafter commenced, from the operation of said section 182.
    While a contract and the right to enforce it cannot be impaired by State legislation, the form of the remedy may be modified by statute.
    The saving provisions of section 241 of chapter 569 of the Laws of 1890 relate to existing rights, and not to the remedies for their enforcement.
    MotioN by tlie plaintiff, Benjamin C. Miller, for a new trial on a case containing exceptions, ordered to be heard at the General Term in the first instance upon the granting of the defendant’s motion for a nonsuit at the Steuben Circuit on the 10th day of September, 1894.

      W. E. Davis, for the plaintiff.

      O. W. Stcmton, J. F. Little and M. Rumsey Miller, for the defendant.
   Bradley, J.:

The alleged purpose of the action is to recover compensation for the services of W. Martin Jones as attorney and counsel in an action which had been prosecuted in the name of a predecessor in office of the defendant against a party charged with illegally selling intoxicating liquors, and to recover penalties for such violation of law.

The alleged services commenced in 1887 and terminated in 1890. The claim was assigned by Jones to the plaintiff, and'this action was commenced in August, 1892.

The only question requiring consideration on this review is whether the overseer of the poor is a proper party defendant for the purpose of the relief sought by the action. Prior to the time the act of 1890, known as “ The Town Law,” took effect, the towns had a very limited corporate power. (1 R. S. 337, §§ 1, 2.) In cases coming within such powers the town could sue and be sued except where the town officers were authorized to sue in their names of office for the benefit of the town. (Id. 357, § 2.)

Although the overseers of the poor and other administrative officers were elected at town elections, they, in the performance of their official duties, were not, in any legal sense, the servants or agents of their respective towns. They and their successors in office alone could sue and be sued upon their contracts and for other causes of action relating to and within the scope of their official powers. (Palmer v. Vandenbergh, 3 Wend. 193; Lorillard v. Town of Monroe, 11 N. Y. 392; People ex rel. Van Keuren v. Town Auditors, 74 id. 310.)

The first general statute shifting the direct liability of any of the town officers to the town as a party defendant was that which relieved the highway commissioners in certain cases from that relation to an action. (Laws 1881, chap. Y00.)

Afterwards, by “ the Town Law,” it was provided that “ Any action or special proceeding for the benefit of a town upon a contract lawfully made with any of its town officers to enforce any liability created or duty enjoined upon those officers, or the town represented by them, or to recover any penalty or forfeiture given to such officers, or the town represented by them, or to recover damages for injury to the property or rights of such officers, or the town represented by them, shall be in the name of the town. Any action or special proceeding to enforce the liability of the town upon any such contract, or for any liability of the town for any act or omission of its town officers, shall be in the name of the town; and all contracts made by such officers for and in behalf of their towns shall be in the name of the town. When such contracts are otherwise lawfully made, they shall be deemed the contracts of the town, notwithstanding it omitted to be stated therein that they are in the name of the town.” (Laws 1890, chap. 569, § 182.)

The provisions of the Revised Statutes hereinbefore referred to, so far as they are not consistent with those of the act of 1890, are repealed by it. And it is evident that the purpose of those provisions of the act was to place the town, as a party plaintiff or defendant, in the same relation to actions as those officers before then had to like actions for causes legitimately arising ont of or relating to the performance of their official powers or duties. Although the officers are not there mentioned otherwise than as those by whom the town is represented, that expression, as commonly understood, embraces the officers of the town whose powers are administrative and must be deemed to include them. As to those officers, there were statutory provisions for their indemnity by the town when they were subjected to expense arising out of the lawful discharge of their duties.

And in sucb case it was provided that as against them, other than the commissioners of highways and certain other town officers, no execution could be issued. (2 R. S. 475, 476, §§ 107, 108; Code Civ. Proc. § 1931.) Por those reasons the policy as well as the apparent purpose of the provisions of the act was to require that the town have direct relations as a party to actions instead of such officers.

In support of the contrary view reference is made by counsel to sections 1926 and 1927 of the Code of Civil Procedure, which provide that actions may be maintained by and against those officers upon contracts lawfully made by them and for other causes of action arising from their official action. And it is urged that as those provisions are permitted to remain unrepealed, the right of such officers to maintain actions and their liability to be sued are not taken away by the provisions of the act of 1890 before mentioned. ’While those sections are unrepealed, their provisions, so far as they .'relate to those town officers, are relieved from any want of harmony with those of that act by the next section of the Code’ of Civil Procedure, which provides that “ the last two sections do not apply to a case where it is specially prescribed by law that an action ma¡y be maintained by or against the body represented by an officer designated in those sections.” The provisions referred to of the act of 1890 are within the contemplated application of that section of the Code.

The fact that the plaintiff’s alleged cause of action arose prior to the time that act'took effect does not relieve his action commenced since then from its operation. While his contract and the right to enforce it cannot be impaired by State legislation, the form of his remedy may be modified by statute. The saving provisions of section 241 of the act of 1890 purport to relate to existing rights and not to the remedy for their enforcement.

These views lead to the conclusion that the town of Cohocton, and not the overseer of the poor, was the necessary and only proper party defendant, and, therefore, the exception to the direction of nonsuit was not well taken.

No application was made at the trial for leave to amend. And on this review it is not deemed proper to direct an amendment making the town the party defendant.

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

Lewis and Ward, JJ., concurred.

Motion for a new trial denied and judgment directed for the defendant on the nonsuit.


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    Obed M. Rice, Appellant, v. Charles A. Bruff, Respondent.

      A judgment proew'ed by fraud is a nullity — actual fraud, not changeable to the judgment debtor’s negligence, must be shown.

    A judgment procured by fraud may be attacked collaterally as well as directly, and if it appears to have been so procured it will be treated as a nullity.
    To justify its being so treated the fraud must be actual and positive; it must occur in the very procuring of the j udgment and must be something not known to the opposite party at the time, and for not knowing which he is not chargeable with negligence.
    What facts are insufficient to impeach a judgment (against plaintiff and in favor of a third person by whom it was assigned to the defendant and by the latter set up by way of counterclaim) as fraudulent on the ground that the plaintiff was induced to bring the action, in which such judgment was recovered against him, by the false representations of the defendant, considered.
    Appeal by the plaintiff, Obed M. Rice, from a judgment of the County Court of Monroe county in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 23d day of February, 1895, upon the verdict of a jury rendered by direction of the court.
    This action was brought to recover double commissions, amounting to $524.50, on a sale of real property alleged to have made through the procurement of a purchaser by the plaintiff at the defendant’s request.
    The plaintiff by his complaint alleges that Jacob K. Post was, at the time in question, the owner of the premises referred to; that they were managed and controlled by the defendant, who entered into an agreement with the plaintiff to pay him double commissions on his procuring a purchaser for the premises; that the plaintiff procured a purchaser, and that a contract of sale and afterwards a deed of conveyance by Post were executed to the person so procured by the plaintiff, and that such double commissions amounted to $524.50, for which amount he demanded judgment.
    The defendant, by his answer, alleged payment of $264.50 to the plaintiff, and, by way of counterclaim, alleged the recovery of a judgment by Post against the plaintiff in the Monroe County Court for $234.82 September 20, 1894, and the assignment of it to the defendant.
    The plaintiff, in reply to the counterclaim, admits the recovery of the judgment, which was for costs in an action brought by the plaintiff against Post, and alleged that the-plaintiff was-induced to bring the action against Post by the representations of the defendant that Post was the owner of the premises and the real party in interest, for whose benefit such sale had been made, and that the defendant acted as his agent in the matter, and that such representations were false, etc.
    A verdict was directed for the plaintiff for fifty-eight dollars, and as that did not exceed the amount of an offer of judgment made by the defendant the latter had the benefit of his costs accruing subsequent to the time of the offer.
    The plaintiff’s recovery was thereby reduced to twenty-seven dollars and fifty-three cents.

      Herbert J. Stull, for the appellant.

      Marsenus H. Briggs, for the respondent.
   Bradley, J.:

The defendant admitted at the trial that the double commissions amounted to $524.50.

By the judgment record in the action of the plaintiff against Post it appeared that the plaintiff there in his complaint alleged that, pursuant to agreement, he procured the purchaser of the premises then owned by defendant Post at the stipulated compensation of double commissions, which amounted to that sum, “ of which sum defendant has paid the sum of $264.50, leaving still due and owing to plaintiff the sum of $260, which plaintiff has demanded of defendant (Post) and which defendant has refused to pay,” and he demanded judgment for $260 and interest; that by the answer the defendant Post admitted that he was such owner of the premises, denied upon information and belief that double commissions amounted to $524.50, admitted that be bad paid the plaintiff $264.50 thereon; that he had refused to pay any more, and denied all allegations of the complaint not admitted or denied; that the plaintiff was nonsuited on the trial of that action, and judgment was finally perfected against the plaintiff for $234.82, costs. This judgment was assigned by Post to the defendant.

The verdict directed for the plaintiff was produced by deduction from $524.30 and interest of the sums $264.50 and $234.82.

It appears that the plaintiff had occupied the premises as tenant, and that at the time he earned the commissions there was due from him $264.50 for rent. This was treated at the trial as having been applied as a payment upon his claim for such commissions. The defendant testified that in October, 1892, in an interview with the plaintiff, he presented a bill for the rent to the latter, who said he would accept it on account of the commissions, and that in making out his bill the plaintiff allowed the rent on the account, and that afterwards the defendant left with the plaintiff a receipted bill for it. The plaintiff testified that no receipt for the rent was given him by the defendant. He does not deny by his evidence that it was in fact applied upon his claim for commissions, and by the evidence it quite conclusively appears that it was treated by all the parties as having been so applied.

Before the commencement of his action against Post the plaintiff caused to be written and sent by his attorney to the defendant a letter addressed to him, in which the attorney stated that the plaintiff had placed in his hands for collection “ a claim for commissions on the sale of property in which he alleges you were interested, amounting to $260, being the amount unpaid on a total claim of $524.50.”

In his action thereafter brought by the plaintiff against Post, as has been seen, he alleged in his complaint that he had been paid the sum of $264.50 on the claim. This was admitted by the answer of Post as defendant. In view of all this evidence of payment, and there is none to the contrary, it is difficult to see any reasonable ground for escape from the conclusion on the trial that such payment should be treated as having been made and applied upon the ’ plaintiff’s claim. His statement that his willingness to have it so applied was the reason of his so alleging, does not seem to qualify the fact which the evidence established. The court was justified in withholding from the jury the question of payment. If it had done otherwise, a verdict to the contrary would have been so against evidence as to require the direction of a new trial.

It is urged on the part of the plaintiff that evidence which was offered to prove that the Post judgment was the result of fraud practiced by the defendant upon the plaintiff was erroneously excluded. This charge is founded upon the letter of the defendant’s attorney in answer to that before mentioned. In that letter of date 27th of January, 1893, reference is made to the plaintiff’s letter of the day previous, and then is added that Mr. Bruff denied having made any arrangement to pay commissions in excess of $260, and that such sum was “ paid by offsetting a claim which the owner of the property sold, to wit, Mr. Post, had against Mr. Rice for rent. Mr. Post is the real party for whom the building was sold, and he claims he paid all the commissions which was due Mr. Rice, and all which Mr. Bruff agreed should be paid.”

It is asserted on the part of the plaintiff that he was induced by the statements in that letter to bring the suit against Post. The plaintiff’s counsel, in pursuing the subject on that basis, asked the defendant, as a witness, the question: Is it not a fact that you and Willis owned this building together? And he asked Post, as a witness, the following questions : Were you at any time during the year 1892 the owner of the building ? Had you at that time anything more than the record title to the building? Were you the real party for whom it was sold ? Did you ever claim any amount due you for rent from Mr. Rice for its occupancy ? Did you retain counsel to defend the action of Rice against you or pay anything for the defense of it to anybody? Was there any consideration for the assignment of the judgment to Bruff? Did you know who were the owners of the building ? Objection following each of these questions was sustained, the evidence excluded and exception taken.

While the business management of the property was conducted by the defendant the legal title appears to have been in Post. The plaintiff not only in his complaint in the action against Post, but in that in the present action alleged that Mr. Post was the owner of the property. If the purpose was to prove that Bruff was beneficially interested in the title to the property it could not be proved by oral evidence. Nor was it important to prove whether or not Post personally claimed any amount of rent due him from the plaintiff. If, however, there was any basis to support the charge as against Bruff that the judgment was obtained by fraud and, therefore, ineffectual, it would have been proper to prove that the action against Post was, in fact, defended by Bruff. But it is not seen how what did appear, together with-that which the plaintiff sought to prove, would tend to render the Post judgment invalid on that ground.

It is the general rule that a judgment obtained by fraud may be for that reason attacked collaterally as well as directly, and if it appears to have been so procured will be treated as a nullity. The fraud which supports such relief is deemed to have been perpetrated upon the court as well as upon the party defrauded or injured by its recovery. (Dobson v. Pearce, 12 N. Y. 156; Mandeville v. Reynolds, 68 id. 528 ; Verplanck v. Van Buren, 76 id. 247; Ward v. Town of Southfield, 102 id. 287.) But as said in Ross v. Wood (70 N. Y. 8) the fraud must be actual and positive. “It must be that which occurs in the very concoction or procuring of the judgment or decree and something not known to the opposite party at the time, and for not knowing which he is not chargeable with negligence.” It does not appear nor did tho plaintiff offer to prove what ground or for what reason he was nonsuited on the trial of his action against Post. It must be assumed that as to Post the judgment was drily recovered. The reason why this action was not barred by the Post judgment appears in the fact of record that- it was not determined on the merits but by nonsuit. And he comes into court in the present action, alleging by his complaint, that during the time when the rent accrued Post owned the premises, but that they were controlled and managed by the defendant, and that he promised in his own name and behalf to pay the plaintiff the double commissions, etc. The allegations upon which the plaintiff sought to recover in this action are not inconsistent with the statements of the defendant in his letter referred to; while he stated that Post owned the property, he may not have disclosed the fact when he made the arrangement with the plaintiff to procure a purchaser, and, therefore, he may have made himself jiersonally liable. This the plaintiff knew when he brought his first action. So far as appears, therefore, no fraudulent inducement to sue Post could arise out of the statements in the letter. Then the defendant did not by anything in such letter advise or request the plaintiff to bring suit against Post, nor did he there assert that he (defendant) did not by the agreement become personally liable to pay whatever the plaintiff was entitled to recover by virtue of it.

It follows that in any view presented at the trial there was nothing in the letter written for the' defendant upon which the imputation of fraud could rest for the purpose of impeaching the judgment as invalid in the hands of the defendant as assignee of it.

The judgment should be affirmed.

Lewis and Ward, JJ., concurred; Werner, J., not voting.

Judgment affirmed.


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    Charles F. Huie, Respondent, v. Henry Allen and Edward L. Norton, Appellants.

      Use of checks of a corporation to pay an officer’s individual debt — notice to the party receiving them — burden of proof .

    The manager of a foreign corporation, having extensive powers in regard to its business, and particularly in regard to its banking business, speculated in wheat upon his own account, and paid his losses to his brokers with blank checks of the company headed “American Preservers Company,” which he filled out and signed “ American Preservers Co., Charles F. Tomes, Manager.”
    The business of the corporation was to make jellies and fruit preserves.
    In an action brought by the corporation to recover these moneys from the brokers,

      Held, that the manager had no authority to draw or deliver the checks, and that the brokers knew or, upon the facts, were chargeable with notice that the acts of the manager were not within the real or apparent scope of his agency ;
    That while, as against the bank, the corporation would be estopped to deny the validity of the checks, no estoppel existed in favor of the brokers:
    That if there was anythiug t® take the case out of the general rule in such matters, as, for example, an indebtedness from the corporation to the manager for salary, and for which it might be assumed that the cheeks were drawn, the onus was upon the brokers to prove that the checks were based upon such an indebtedness.

      Appeal by the defendants, Henry Allen and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 4th day of June, 1894, upon the verdict of a jury rendered by direction of the court after a trial at the Erie Circuit.
    The American Preservers Company was a foreign corporation engaged in manufacturing and selling fruit preserves and jellies, and had never engaged in the purchase or sale of grain or stocks, or options upon the same.

      Frank Brundage, for the appellants.

      Simon Fleischmann, for the respondent.
   Bradley, J.:

The subject of the action is a claim assigned by the American Preservers Company to the plaintiff for a sum of money alleged to have been drawn by the defendants from the funds with which that company had credit in the Manufacturers and Traders’ Bank of Buffalo, N. Y.

The money was drawn from the bank upon the checks purporting to have been made by one Charles F. Tomes as manager of that company. Tomes then was the business manager of the Buffalo branch of that company, having quite general powers in conducting that branch of its business. He was authorized as such manager to indorse for deposit, collection or discount notes, drafts or checks, to deposit in the bank moneys which came to his hands and to draw checks against the funds so deposited. The defendants, constituting the firm of Henry Allen & Co., having an office in Buffalo, were stockbrokers engaged in the business of buying and selling stocks on the New York Stock Exchange, of which they were members, •and in buying and selling grain in Chicago on the Chicago Board of Trade, of which they were also members.

In June, 1892, Tomes became a customer of the defendants, and they in that month bought and sold wheat in the Chicago market on his account. When a transaction for him was opened by a purchase it was followed by a sale, and when opened by a sale a purchase followed to supply the requirement of the sale, and to ascertain a balance, if any, arising from the deal. The balances resulting from the transactions were against Tomes. They were covered by three checks drawn on such bank by him. The company’s blank checks were used. They were headed “ American Preservers Company,” and signed American Preservers Co., Charles E. Tomes, Manager.” They were payable to the order of Henry Allen & Co., and their amounts, $500, $512.50, $500. The checks were indorsed, and the amounts of them drawn by the defendants’ firm and charged by the bank to the account of the American Preservers Company.

Those transactions with the defendants were throughout the individual affairs of Tomes, solely on his account, and were outside of the business of the company. He, therefore, had no authority to draw and deliver those checks to the defendants.

It is urged on their part that as it was within his power to draw checks in that manner upon the bank account of the principal, the latter is estopped from asserting his want of authority to issue those in question. It is true that the company would be so estopped as against the bank, but as against the defendants it is otherwise. They were chargeable with notice of the general nature of his agency, real or apparent. If the checks had been made under circumstances apparently within the scope of his power as such manager, and had been taken in good faith for value by a person not chargeable with notice to the contrary, the fact that he had no authority to issue them by reason of some extrinsic fact peculiarly within his knowledge, his principal would have been estopped from making available to the prejudice of the party so taking them the falsity of the fact upon which the right to make the checks depended. (N. Y. & N. H. R. R. Co. v. Schuyler, 34 N. Y. 30; Bank of Batavia v. N. Y., L. E. & W. R. R. Co., 33 Hun, 589; 106 N. Y. 195; Bank of New York Nat. B. Assn. v. A. D. & T. Co., 143 id. 559.)

The bank was at liberty to rely upon the representation furnished by the import of the checks that they were issued by Tomes pursuant to his authority as manager of the company for which they purported to have been drawn. But the defendants knew, or were chargeable with notice, that they -were made in transactions -with Tomes on his own account and did not relate to the business of his company, and, therefore, that it was not within his power to draw them for the purposes for which they- were issued and taken. (Gerard v. McCormick., 130 N. Y. 261.) In the view taken of the case as presented by the evidence, none of the authorities cited by the defendants’ counsel have any essential application in support of the defense. In Goshen Nat. Bank v. State of New York (141 N. Y. 379) it seems to have been within the powers of the cashier who drew the draft there in question of his bank on its corresponding bank to draw drafts for himself on the same terms as in due course of business he drew drafts for others. And it was held that the Comptroller received the draft hi good faith.

We are unable to adopt the suggestion that it was for the plaintiff to prove that nothing was due from the company to Tomes on account of his salary. When it appeared that the checks were drawn by him and taken by the defendants in transactions known to the latter not to be within the scope of his agency, they were charged prima faeie with liability, and if any fact existed to take the case out of the operation of the general rule and in support of the defense the onus was with the defendants to prove it.

The conclusion is that the verdict was properly directed for the plaintiff.

The judgment should, therefore, be affirmed.

Dwight, P. J., Lewis and Ward, J J., concurred.

Judgment affirmed.


author: Bradley, J. :

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    Guiseppe Mancuso, as Administrator, etc., of Genaro Tricarico, Deceased, Plaintiff, v. The Cataract Construction Company, Defendant.

      Master and servant — risks assumed— duty to furnish a safe place.

    A servant assumes the ordinary hazards incident to his service including those arising irom the negligence of his co-employees, but a master is required to use reasonable care to furnish liis servants with a safe place within which to work.
    Upon the trial of an action brought to recover damages resulting from the death of the plaintiff, caused by the alleged negligence of the defendant, it. appeared that the decedent was employed in tiie excavation of a pit; that three or four days before the accident a blast of dynamite had been exploded therein, and that the decedent in proceeding to clean out the blast found a block of stone too large for him to move and too hard to break up with his hammer.

      He was directed to drill boles in the stone to receive dynamite, and while so drilling an explosion occurred, caused in some manner by his drilling igniting some of the dynamite used for the previous blast which remained unexploded, resulting in his death.
    The pit was about ten feet in depth and about eight feet in diameter, and the situation within it was open to view from the surface of the ground above.

      Held, that the existence of any danger in the performance of the work could not, by the exercise of ordinary care, have been ascertained or apprehended; that the calamity was a casualty from a cause unforeseen, and not within reasonable apprehension; that it was within the hazards incident to the service assumed by the employee, and that a nonsuit was properly directed.
    Motion by tlie plaintiff, Guiseppe Mancuso, as administrator, etc., of Genaro Tricarico, deceased, for a new trial on a case containing exceptions, ordered to be heard at tlie General Term in tlie first instance, upon the granting of the defendant’s motion for a non-suit at the Niagara Circuit on the 3d day of May, 1894.

      Charles Oishei, for the plaintiff.

      Ely & Dudley and Morris Cohn, Jr., for the defendant.
   Bradley, J. :

The plaintiff’s intestate, while engaged as employee of the defendant in a pit which was being excavated, was killed by an explosion. The plaintiff charges that the death was occasioned by the negligence of the defendant.

The defendant’s method of making the pit was to take off the earth from the surface down to the rock, then with steam apparatus drill holes to the depth of several feet, insert dynamite cartridges, and by their explosion break up the rock. The explosion in the pit in question had taken place three or four days before the accident.

The plaintiff’s intestate and another employee were directed by the foreman of the work to go into the pit and take out the broken stone. In proceeding to clean it out they found a-block of stone too large for them to move and too hard to break up with their hammers. They were then directed to drill throe holes into it to receive dynamite. They drilled two holes about ten inches in depth and were proceeding to drill the third one and had gone to.the depth of about six inches when the explosion occurred causing the death of the plaintiff’s intestate, but, so far as appears, without injuring his comrade in the work. The explosion was in some manner caused by the operation of their drilling, and it is evident that some of the dynamite used for the blast a few days previous remained unexploded. But it does not appear to have been attributable to the negligence of the defendant.

There is no evidence tending to prove that the apparatus or machinery by the means of which the previous blast yas produced was in any respect defective or unsuitable for the purpose. The only question is whether the defendant is chargeable with negligence as for failure to furnish the plaintiff’s intestate with a safe place to work. It is the general rule that the master is required to use reasonable care in that respect.

Before those workmen proceeded to drill they cleaned off the stone upon which they operated. Nothing was then visible to indicate that there was any dynamite there or any place for it in the stone on which they were at work. Nor does there seem to have been any reasonable ground for apprehension that there was any. It is urged that no inspection followed the prior explosion to ascertain whether any dynamite remained unexploded in the pit. That, certainly, was a prudent, precautionary thing to do, and the evidence on that subject is very vague and too uncertain to show that it was not done. But, however that may be, the decedent was one of the several employees engaged generally in the work of making the pits. The details of the service were under the management of the defendant’s foreman who directed the distribution of the work amongst the workmen employed. Tie was their co-employee. They assumed the ordinary hazards incident to the service, including those arising from his negligence as such co-employee. (Loughlin v. Sttate of New York, 105 N. Y. 159; Hussey v. Coger, 112 id. 614; Cullen v. Norton, 126 id. 1.)

The pit was about ten feet in depth and about eight feet in diameter. The situation within it was open to view from the surface of the ground above. It may, however, be assumed that if there had been any reasonable ground to apprehend danger in the performance of the work assigned to the decedent in the hole or pit the question would have arisen whether by the direction to go in there and do the work the foreman may not have been placed in the relation of master to him. (Crispin v. Babbitt, 81 N. Y. 516; Pantzar v. Tilly Foster Mining Co., 99 id. 368 ; McGovern v. C. V. R. R. Co., 123 id. 280; Hogan v. Smith, 125 id. 774.)

So far as the facts are disclosed by the evidence tbe existence of any danger, in the performance of the work where and at the place in which the decedent was at the time engaged, could not by the exercise of ordinary care have been ascertained or apprehended. And .in view of all the circumstances as they appear by the evidence the calamity seems to have been a casualty from a cause unforeseen and not within reasonable apprehension. It was within the hazards incident to the service assumed by the employee. The non-suit was, therefore, properly directed.

The motion for a new trial should be denied.

Lewis and Ward, JJ., concurred.

Motion for a new trial denied and judgment directed for the defendant on the nonsuit.


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    Joseph A. Barr, Respondent, v. Henry L. Fish and Henry L. Fish, Jr., Appellants.

      Principal and agent — possession by a tenant under the agent —when that of the agent and when of the landlord — agent not treated as homing a right hostile to his principal.

    Where, pursuant to an agreement made between a principal and his agent, the latter has the right to the possession of a certain house and lot, the property of the former, by virtue of a contract made between thiem for the exchange thereof for other property, and the agent rents such property to a tenant by a verbal lease, without assuming to represent the principal, and such tenant goes into occupation, the agent will be deemed to have thereby entered into possession of the property; but if the agent had no right to the possession of the property he will not be treated as having a relation to the premises hostile to that of his principal in whose behalf he accepted the relation of agency.
    Appeal by tbe defendants, Henry L. Fish and another, from a judgment of the County Court of Monroe county in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 23d day of November, 1894, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 21st day of January, 1895, denying the defendants’ motion for a new trial made upon the minutes.
    The purpose of the action was lo recover the amount of rents which it is alleged the defendants, as agents of the plaintiff: and his partner, Nathaniel L. Barr, received from a tenant of certain premises known as the Grand avenue house and lot in the city of Rochester. The defendants by their answer allege that during the time such rents accrued they were in possession of the premises under a contract of purchase from the Messrs. Barr. On the trial it appeared that a contract in writing had been made between those pai-ties of which the following is a copy :
    “A contract and agreement made and entered into between J. A. & N. L. Barr, of Rochester, N. Y., of first part, and H. L. Fish & Son, of the same place, second part, to wit: That farm of ten acres on the Lyell road of one John Shaw, now under foreclosure sale and about to come into the hands of said Fish & Son, in which event said Barr Bros, agree to trade house and lot known as 123 Grand Avenue, all taxes and other expense paid to date, except a mortgage of $2,500, interest being paid to date, said mortgage held by M. L. Ins. Go. of New York, and take farm subject to $3,171.43 mortgage held by Loan Association of Rochester, N. Y. This amount being more or less, but not to exceed $3,300, Fish & Son to take Grand Avenue house subject to said $2,500 mortgage.

      “ Rochester, August 15, 1893.
    “ J. A. & N. L. BARR.
    “ HENRY L. FISH & SON.”
    The Lyell road property was sold in the mortgage foreclosure on the same day and after that contract was made. It was bid off by the Barrs, and a referee’s deed made to them.

      Frederick A. Mann, for the appellants.

      John A. C. Wright, for the respondent.
   Bradley, J. :

The main question is whether or not, when the rent in question accrued, the defendants had the possession of the Grand avenue property, and that for the purposes of this review is dependent upon the question whether or not the defendants then had a right to the possession under their contract with the Barrs. This is so because independent of that fact the finding of the -jury upon the evidence is deemed conclusive.

.Less than two months before the contract was made the defendants became agents of the Barrs to rent the Grand ;venue premises. Thereafter, and after the sale on the mortgage foreclosure of the L^-ell road property, bid off by the Barrs and the referee’s deed taken by them, the defendants rented the Grand avenue house and lot to a tenant, from whom was derived the rent fund in question. No written lease was made, nor did the defendants apparently assume to represent the Barrs in renting to such tenant. If, therefore, the defendants had the right to the possession of that house and lot by virtue of the contract before mentioned, it may be here assumed that they took the possession through the tenant who went into occupation, as he may in that case be deemed to have held under them. It is otherwise if they had no such right. Then the defendants would not be treated as having a relation to the premises hostile to that of the Barrs in whose behalf they had accepted the relation of agency. There are no exceptions requiring consideration.

It is insisted- on the part of the defendants that the verdict was so against the weight of the evidence as to require the direction of a new trial.

The evidence on the part of the defendants is to the effect that, by arrangement between them and John Shaw, the owner of the Lyell road property, they undertook to make some disposition of it. The precise nature of the understanding does not appear. They thereupon had some negotiations with the Barrs, which resulted in the contract of August 15, 1893, in which it is stated that the land was then “ under foreclosure sale and about to come into the hands ” of the defendants, “in which event said Barr Bros, agree to trade” the Grand avenue house and lot as there stated. 'It was then contemplated between the parties to the, contract that the defendants would take the title to the Lyell property on the foreclosure sale to be made that day. The sale was made, the property bid off by Shaw pursuant to an understanding between him and the defendants.

The required ten per cent was not paid. The sale was held open until two p. m. In the meantime one oí the defendants and Shaw, being so advised by the lawyer having charge of the foreclosure proceedings, and concluding that it would be a shorter way to the result to have the Barrs bid off the property, called upon the plaintiff and informed him that the sale was held open until two b. m., and it may be assumed that they suggested to him that he bid in the property. He did so. The Barrs decline to convey the Grand avenue property to the defendants because the event which was to render the contract available to them, to wit, that the Lyell road property should come into their hands, did not occur. It is quite evident that the defendant, when he made the suggestion to Barr to bid off the property, liad in view the conveyance of the Grand avenue lot to the defendants pursuant to the contract. He testified that he was advised by the lawyer that it would simplify matters- to have the referee’s deed made directly to the Barrs; that he so informed the plaintiff, who promised to accede to that view, and thereupon he was present and bid off the property.

This is corroborated by the testimony of Shaw. And there is evidence on the part of the defendants tending to prove that the Barrs, after the purchase, promised to carry out the arrangement by conveying the Grand avenue lot to the defendants, and directed the preparation of a deed, which was drawn accordingly, but never was executed.

The plaintiff, by his evidence, tends to give a different phase to the transaction. His evidence is to the effect that he did not bid off the property and take the referee’s deed in pursuance or in consummation of the contract with the defendants, bnt independent of it; that he wanted the property, and as Shaw was unable to complete his purchase by payment of the requisite percentage, a resale was had at which he made the purchase, the payment and took the deed, and that he did not then or thereafter promise to convey the Grand avenue property under the contract, nor did he direct the preparation of a deed for that purpose, or in any manner recognize any right of the defendants to a conveyance of it. While it is true that the Barrs did not interfere with the right of the defendants to become the purchasers of the Shaw property, and by that means put themselves in a position to require the performance of the contract, the supposition is quite reasonable that the plaintiff was by the defendants given the opportunity’ to become the purchaser with a view in that direct manner to have the title taken by the Barrs in performance of the contract on the part of the defendants, and the weight of the evidence as represented by the record is apparently in that direction. Nevertheless this was a question of fact upon the evidence. It was fairly submitted to the jury, and in such manner that no further direction was requested by the defendants. There may have been an advantage had by the jury in seeing and hearing the witnesses which is not made fully apparent by the record here. And the trial judge after a careful review of the evidence, as appears by his opinion, denied the motion for a new trial.

The conclusion is not, therefore, fairly justified on this review that the verdict was so against the preponderance of evidence as to reauire the direction of a new trial.

The trial’ of the issues in this action presented questions of strictly legal rights and involved the determination of the question whether or not the defendants were in the actual possession of the Grand avenue premises at the time the rent in question accrued. The effect of the verdict was that they wero not then in such possession for the reason, as it must be inferred, that in renting the property they acted in their relation as agents of the Barrs.

It is unnecessary here to inquire what, if any, equitable rights or remedy the defendants may have arising out of the contract in view of the circumstances under which Barr obtained the title to the Lyell road property.

There was no eguitable defense set up for trial in this action

The judgment and order should be affirmed.

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

Judgment and order affirmed.


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    Dennis Callahan, Despondent, v. William L. Matthews and Nellie P. Matthews, Appellants.

      Pleading in a case of personal injury from, negligence — admission contained in the answer — burden of proof upon the plaintiff — -presumption arising out of ownership— that the'worn was done by an independent contractor, a defense.

    The general rule is that a pleading will not be extended by construction in favor of the pleader, beyond the reasonable import of its language.
    In an action brought to recover damages resulting from negligence, an admission contained in the answer of one of the defendants that she owned the premises whereon the injury to the plaintiff occurred,' must be taken in connection with the other allegations in the same paragraph and subject to the same qualifications there given to it, so far as it relates to the question arising upon the charge of negligence against the defendant so answering.
    While the burden is upon the plaintiff in an action brought to recover damages resulting from personal injuries caused by the alleged negligence of the defendants, to prove every fact essential to the liability of the defendants, the presumption arising out of the owner’s relation to the premises, the negligent condition of which caused the injury to the plaintiff, is available as evidence in support of the action against him.
    If it be established that the work being carried on upon such premises was being done by an independent contractor for the owner, such fact is a defense to such owner.
    Appeal by tbe defendants, William L. Matthews and another, from a judgment of the County Court of Monroe county in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 27th day of September, 1894, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 19th day of December, 1894, denying the defendants’ motion for a new trial made upon the minutes and upon the ground of newly-discovered evidence.

      George E. Milliman, for the appellants.

      Henry J. Sullivan, for the respondent.
   Bradley, J.:

On the night of October 4,1893, the plaintiff, while passing along the west side of Prospect street in the city of Rochester, fell into a trench excavated across the sidewalk for the purpose of a lateral sewer to premises and buildings owned by the defendant Nellie P. Matthews there situated. The night was dark, and, on the part of the plaintiff, evidence was given tending to prove that there was no barricade there, and no light to guard against the danger to which persons were thus exposed, or to warn them of its existence. There was, however, a conflict in the evidence upon that subject.

This question, as well as that of contributory negligence of the plaintiff, and as to the nature and extent of his injury, were upon the evidence questions of fact properly submitted to the jury. It is with some force urged on the part of the defendant Nellie P. Matthews that the evidence did not warrant the recovery against her. The defendants were husband and wife. The latter by her answer admitted that she was the owner of the premises and buildings adjacent to the street where the excavation was made, but denied that she occupied and had control of them, and alleged that the defendant "William L. Matthews occupied and controlled the premises for the purpose of erecting a building thereon for her. As the only evidence that she owned the premises is in such admission in the answer, it must be taken in connection with the other allegations in the same paragraph, and subject to the qualifications there given to it for the purposes of the question arising upon the charge of negligence as against her. (Gildersleeve v. Landon, 73 N. Y. 609.)

The work of making the excavation and of the erection of the building on the premises, it may be assumed, was done under the immediate direction of the husband. By what relation to his wife he was doing the work does not appear by evidence of witnesses. But nothing appearing to the contrary, it might be presumed that in the performance of it he was engaged as her agent in the service. And in view of the fact that the wife owned the property, and as the improvements to the freehold were of a permanent nature, the allegation in her answer that the husband occupied and controlled the premises for the purpose mentioned, does not necessarily import that he was not engaged as her agent in performing the work. She alleged that he occupied and controlled the premises for the purpose of erecting a building thereon for her. The important fact is other than that of occupation and control of the premises, and is in what relation to her he was engaged in the performance of the work which produced the dangerous condition. This is not within the expression or fair meaning of the allegations referred to.. And the general rule is that a pleading will not be extended by construction in behalf of the pleader beyond what is the reasonable import of its language. The defendants were at liberty to prove that the work was done by the defendant William L. Matthews as an independent contractor for the other defendant, and such fact if established would have constituted a defense for her. (Blake v.. Ferris, 5 N. Y. 48.) But no evidence to that effect was introduced on the defense.

And the fact that the defendants were husband and wife does not tend to support the proposition that his relation in the performance of this work on the premises of his wife was other than that of agent or servant.

While the burden was with the plaintiff to prove every fact essential to 'the liability of the defendants, the presumption arising out of the relation of Mrs. Matthews to the premises as owner is available as evidence in support of the action against her.

The jury were by the evidence permitted to find the verdict against both of the defendants.

After a careful examination of the evidence given on the trial, and of the affidavits upon which the motion for a new trial on the ground of newly-discovered evidence was heard, no occasion appears for overruling the conclusion of the trial judge on the motion.

The judgment and order should be affirmed.

Lewis and Ward, JJ., concurred; Werner, J., not sitting.

Judgment and order affirmed.


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    Guiseppe Critelli, as Administrator, etc., of Angelo Orlando, Deceased, Appellant, v. Rodgers and Clement (first names unknown), Respondents.

      Allegations of time in actions ex délictu— a single act of injury only provable before the dale named — amendment of complaint — postponement of date of commencement of action as a condition thereof— Statute of Limitations.

    The allegation as to the time of the occurrence of the act complained of, in actions ex delictu, is generally an immaterial averment.
    At common law, while a party was permitted to prove a single act of injury alleged, lie could prove no more than that one act, anterior to the day stated in his pleading, although he was not so limited as to acts subsequent to’that day and prior to the commencement of the action.
    Where there is no new cause of action alleged in the proposed amended complaint, as distinguished from that alleged in the original complaint, in an action brought to recover damages resulting from the death of the plaintiff’s intestate by reason of the alleged negligence of the defendant, there is no well-founded reason for imposing as a condition of the allowing of such amendment that the time of the commencement of the action be deemed postponed to the date of the application for such leave to amend, for the purpose of admitting the defense ■of the Statute of Limitations.
    Appeal by the plaintiff, Guiseppe Critelli, as administrator, etc., of Angelo Orlando, deceased, from so much of an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county.of Erie on the 20th day of April, 1894, granting the plaintiff’s motion for leave to serve an amended complaint, as grants defendants’ motion for leave to serve an amended and supplemental answer to such amended complaint setting forth as a defense to the complaint, the Statute of Limitations as a bar, with the same force and effect as if the summons in the action was served and the action was begun on the date of the plaintiff’s application for leave to amend his complaint.

      Charles Oishei, for the appellant.

      Ely & Dudley and Morris Cohn, Jr., for the respondents.
   Bradley, J.:

This action was commenced in September, 1892. By the complaint it was alleged that the death of the plaintiff’s intestate was caused by the negligence of the defendants. They answered in October following.

When the action was reached and moved on for trial at the Erie Circuit, March 15, 1894, the plaintiff’s counsel moved to amend the complaint as hereinafter mentioned. The motion so made at the trial was denied, but with a view to further application for such .relief the plaintiff was permitted, to and did withdraw a juror. Upon an order to show cause the motion was afterwards heard and granted, and by the order the defendants were, by amended and .supplemental answer, permitted to set up the Statute of Limitations with the same effect as if the action had been commenced on the 15th day of March, 1894. This would have been well enough if the plaintiff had by the Amendment to the complaint alleged a new cause of action or one not fairly within the allegations of the original complaint. But such does not' seem to have been the case. Both allege that the death of the plaintiff’s intestate was occasioned by the negligence of the defendants.

In the original complaint it was alleged that the plaintiff’s intestate, employed by the defendants as a laborerin a tunnel at Niagara Fails, was, on or about May 3, 1892, killed by the fall upon him of .a cage used by the defendants for hoisting stone from the bed of the tunnel canal.

In the proposed amended complaint it is alleged that prior to and on or about June 22, 1891, the cage used by the defendants in hoisting stone from the bed of the tunnel fell upon and killed him. 'These are the only changes sought to be made in the pleading which require any consideration. They are in the date and in the designated place of the accident so far as the difference is represented by the “tunnel canal” and “tunnel” at Niagara Falls. The time alleged in actions ex delietu of the act complained of is generally an immaterial averment.

And at common law, while the party was permitted to prove a single act of injury alleged, he could prove no more than one anterior to the day stated in his pleading, although he was not so limited subsequent to that day and prior to the commencement of the action. (Chitty on Pleadings, 259, 383, 384; Cheetham v. Lewis, 3 Johns. 42; Relyea v. Beaver, 34 Barb. 541; S. C., sub nom. Dubois v. Beaver, 25 N. Y. 123.)

Under the present system evidence offered to prove more than one act of trespass anterior to the alleged time would be treated as nothing more than variance. And although the “ tunnel canal ” in the work at Niagara Falls may have been distinct in designation from the “ tunnel ” in the work, there the difference -was in the designation of the particular place in the same locality where the accident occurred, while its alleged instrumentality was substantially the same. The cause alleged was the negligence of the defendants, and its consequence was the death of the plaintiff’s intestate. He was killed only once. And it seems clear that the result on the merits of the trial of the action upon the issues as presented by the original pleadings would have been a bar to another action against the defendants upon the charge of negligence for causing his death. There is no new cause of action alleged in the proposed amended complaint as distinguished from that in the original one. It purports to make some correction in the allegations of fact in relation to the negligence charged in the original complaint.

And there seems to be no well-founded reason for imposing as a condition of the amendment that the time of the commencement of the action be deemed postponed beyond that when it was commenced for the purposes of the defense of the Statute of Limitations.

In view of the nature of the proposed amendment of the complaint, that provision of the order is. unreasonably prejudicial to the plaintiff.

And that portion of the order should be reversed.

Lewis, J., concurred; Dwight, P. J., not voting; Ward, J., not sitting.

The portion of the order, postponing the time of the commencement of the action so that the Statute of Limitations runs to a day later than that of the commencement of the action, and providing for so alleging it as a defense, reversed, with ten dollars costs and disbursements.