author: By the Court—Hoffman, J.

text:
    George B. Boswell, Administrator, &c., of John B. Boswell, deceased, Plaintiff, (Respondent,) v. The Hudson River Railroad Company, Defendants, (Appellants.)
    1. To an action for an injury to the person sustained, by one who was riding in a car of a Railroad Company, through the alleged negligence of the servants of the Company, it is a good defense that the person injured was at the time riding by virtue of a special contract which was evidenced by a pass or free ticket accepted and used by him to enable him to take charge and care of his live stock while on the railroad, and as part of the contract for transporting such stock, which contained an express stipulation that “ by accepting or using it he expressly releases the Company, in consideration of this pass and the reduction of price below the tariff rates, from all liability for injury to said stock from, suffocation, crowding, trampling, or delay m transportation, or for injury to his person or stock arising from any cause whatsoever,” the answer also averring that the injury to the person was not caused by any fraudulent, willful or reckless act or misconduct or gross neglect.
    2. A Railroad Company may limit their common law liability as carriers of passengers, by express contract with the passenger upon sufficient consideration, so as not to be liable for casualties not arising from fraud, willfulness, recklessness, or gross neglect.
    (Before Hoffman, Woodruff, Honorief and Robertson, J. J.)
    Heard, April 14th;
    decided, April 28th, 1860.

      Appeal from an order sustaining a demurrer to the defend-' ants’ answer and ordering judgment for the plaintiff, with leave to the defendants to amend within twenty days.
    The complaint alleged in substance and among other allegations, that John B. Boswell, the plaintiff’s intestate, on the 8th of September, 1858, at the defendants’ request became a passen-' ger in their car to be carried by them as common carriers .from East Albany to the city of New York. That defendants undertook and it became their duty to carry him safely, but defendants and their agents conducted so negligently that the car, in which he was, came in contact with another car or locomotive and was demolished or thrown-from the track, and the said John B. Boswell, then and there, from such gross negligence of the defendants, was instantly killed or received great injury, from which he immediately died. And the death of said John B. Boswell yras caused by and was the result of the gross negligence of the defendants.
    The answer contained denials of many of the allegations in the complaint, but the defense demurred to was as follows:
    “ And for a further and separate defense, the defendants further answering, say: that at the time and place in the complaint mentioned, the said John B. Boswell was upon the cars of the defendants, not as a passenger, nor upon the payment of, or promise to pay, any fare, but under and in virtue of a special contract made between the said Boswell and the said defendants, which contract was evidenced by the pass or free ticket given to him by the defendants, and accepted and used by bim, and by virtue of which he was riding upon the road and in the cars of the defendants at the time of' the alleged injury. That the conditions of the said contract, by which the defendants agreed to carry the said Boswell, were printed upon the face of the said ticket or pass; and were in the words following: ‘ Conditions. This ticket is issued to the owner of Live Stock, or his agent, to enable him to take the entire charge and care of his stock while on the Hudson River Railroad, and is part of the contract for transporting the same. By accepting or using it, he expressly releases the Company, in' consideration of this Pass, and the reduction of price below the Tariff Rates, from all liability for injury to said stock from suffocation, crowding, trampling or delay in transportation, or for injury to his person or stock, arising from, any cause whatsoever.’
    “ That the said ticket was accepted and used by the said Boswell at the time of the injuries alleged to have been sustained by him, and that the said injuries were not caused by any fraudulent, willful or reckless act or misconduct or gross neglect or default on the part of the defendants, and that the defendants are not liable therefor.”
    The plaintiff’s demurrer was on the general ground that the facts stated did not constitute a defense.

      William Fullerton, for defendants, (appellants.)
    I. Common carriers of goods may, by express contract, limit their liability and exempt themselves from responsibility for loss or damage unless caused by their own fraud or gross neglect. (Merc. Mat. Ins. Co. v. Chase, 1 E. D. Smith, 115; Dorr v. N. J. Steam Nav. Co., 4 Sand., 136; 1 Kern., 485; Holford v. Adams, 2 Duer, 471; Newstadt v. Adams, 5 id., 43; Wells v. Steam Nav. Co., 4 Seld., 381; Moore v. Evans, 14 Barb., 524; Parsons v. Monteath, 13 id., 353.)
    II. So may carriers of passengers. (Welles v. N. Y. Cent. R. R. Co., 26 Barb., 641.)
    III. The answer alleges that the injuries were not caused by fraudulent, willful or reckless act or misconduct or gross neglect. The demurrer admits this.
    IT. From all other negligence the contract exempts the defendants.
    V. ‘The defendants could exempt themselves from liability for any negligence of its servants, provided due diligence was exercised in the selection of such servants. (Wells v. Steam Nav. Co., 4 Seld., 381; Welles v. N. Y. Cent. R. R. Co., 26 Barb., 641.)

      George Stevenson, for plaintiff, (respondent.)
    I. Passage tickets are mere tokens, not contracts. (Quimby v. Vanderbilt, 17 N. Y. R., 306.)
    II. Accepting or using such a pass cannot be construed into an assent to the terms printed thereon. The deceased was entitled to the full protection of the law of carriers though he paid no fare otherwise than by paying for his stock. (Phil. and Read. R. R. Co. v. Derby, 14 How. U. S. R., 468.)
    HI. If the deceased did assent, the terms “ any cause whatever,” do not embrace the negligence of the carrier. (Wells v. The Steam Nav. Co., 4 Seld., 375; Alexander v. Green, 7 Hill, 544.)
    IV. In the part of the answer demured to an issue is attempted to be made on the question of gross negligence. Actual negligence is therefore admitted, and in a case like this any negligence is gross. (1 Parsons on Contracts, 694, note.)
   By the Court—Hoffman, J.

It is insisted by the counsel of the plaintiff, that the Court is at liberty to interpret the contract between the defendants and the plaintiff’s intestate by the attending circumstances, and to restrict the general language to cases which would still leave the defendants liable for some neglect.

Adopting this view, this at least is clear, that the plaintiff must show plainly that the intention of the parties was to qualify and restrain the very comprehensive language used in the instrument.

So far from its being obvious that there are cases other than those of negligence, which the parties may be reasonably supposed to have contemplated, it seems to us difficult to understand in what cases the Company could be rendered liable at all for injury to the person of the party, without some negligence on their part or on the part of their agents. An injury to his person, in the course of his being carried to New York in their cars, could have arisen either from his own negligence, without any fault of the defendants; or from an event wholly independent of fault of either party; or from some neglect or fault on the part of the defendants.

The parties cannot be intended to have contemplated the exemption of the defendants in the first two cases. The natural interpretation is, that they meant to cover the last case.

• The counsel of the defendants does not deny that there may be a degree of gross neglect, amounting to willful and fraudulent misconduct, for which they might be responsible, even under this contract. His answer is framed to negative such a case.

It may be difficult or impracticable, as observed, in Welles v. The New York Central R. R. Co., (26 Barb., 646,) to distinguish accurately between the different degrees of negligence. Yet one case can certainly be readily supposed in which a marked and practical distinction would exist. There might be a case of such misconduct on the part of an agent as would indicate a willful design to injure'the party, a desperate recklessness which wantonly endangered the lives or property of all those who are in his charge, a case of personal misconduct, and yet the principal be responsible. In Weed v. The Panama Railroad Company, (5 Duer, 193, and 17 N. Y. R., 362,) the willful act of the conductor who managed the train was not allowed to be a ground of exemption for the Company.

But the averments of the answer seem to us to cover all such cases by denying that the injuries were caused by any fraudulent, willful or reckless act or misconduct, or gross neglect, or default; and the terms and import of the stipulation appear to amount to an agreement that the party was to have no redress for injuries arising from other degrees or cases of negligence.

We consider, also, that the parties were fully at liberty to enter into a contract of this nature. (1 Kern., 485.)

We think that the Court below erred, and that the order must be reversed, and the demurrer overruled.

Order reversed and demurrer overruled, with leave to withdraw demurrer, &c., on the usual terms.


source: Caselaw Access Project

author: Woodruff, J.

license: Public Domain

text:
    Benajah Leffingwell, Receiver, &c., v. William G. Chave and Wife.
    1. The provision, of section 220 of the Code requiring that on the service of an injunction a copy of the affidavit on which it is granted be served therewith, is satisfied by the service of copies of whatever papers were laid before the Judge, and on which he ordered the injunction whether the allowance was upon a summons and a complaint duly verified or upon affidavits commonly so called.

      2. An injunction order may be allowed and signed by the Judge, and be delivered to the officer before the service of the summons upon the defendant; but the service of the order upon the defendant before the summons is served, is irregular and is ineffectual. (Oode, §§ 220 and 99.)
    3. An undertaking duly approved by the Judge, procured or furnished by the plaintiff or his attorney for the security of the defendant, and executed by, any persons possessing the requisite qualifications, agreeing that the plaintiff shall pay to the defendant the damages he may sustain, is an undertaking “on the part of the plaintiff” within the meaning of section 222 of the Oode, requiring security on granting an injunction. It is not necessary that it should be executed by the plaintiff or his agent or attorney,
    4. Such undertaking must be given in form absolute and binding either the • plaintiff, or some one or more who undertake for him, absolutely for the payment of such damages; and it may, if the Judge require sureties, also bind others as sureties in form and in terms as sureties. There should be a principal and the Judge may require sureties; but such principal may be one who undertakes on behalf or for the plaintiff, without the latter being a party to the instrument.
    5. The neglect to file the papers upon which an injunction is granted, within the time prescribed by the rales of Court, may be excused, and it does not render the service of the injunction a nullity or require that it be set aside.
    (Before Woodeuff, J.)
    At Special Term; Heard and decided, April, 1860.
    Upou the summons and complaint in this action with the usual affidavit of verification, and upon an undertaking executed by two persons, neither of whom is the plaintiff, an injunction order was granted by a Justice of this Court before the summons had been served on the defendants, and the injunction order was served with the summons and complaint upon each of the defendants. The summons and complaint upon which the injunction order was granted had not been filed when the notice of the motion was served.
    The defendants move to vacate the order of injunction or dissolve the injunction, or set aside the service thereof, &c., on various grounds, viz., that the affidavits upon which the injunction was granted, were not served therewith; that the injunction was granted and signed by the Justice before the action was commenced (i. e., before the actual service of the summons on either of the defendants); that the undertaking was not executed by the plaintiff nor by any person on his behalfj but by sureties only; and that the papers upon which the injunction was granted were not filed within five days as required by the rules of Court. (Rule 4.)
    The plaintiff showed that after receiving notice of this motion he filed the papers, it having been omitted theretofore through inadvertence.

      Bliss & Barlow, for defendant, in support of the motion cited in support of the aforesaid grounds thereof:
    1st, Code, § 220; 8 How. Pr. R., 87; 9 id., 426.
    2d, Code, §§ 99 and 220; 5 Duer, 118.
    3d, Code, § 222; 1 Duer, 666 ; 4 S. & M., 683.
    4th, Court Rule No. 4; Code, §470; O'Donnell v. McMunn, 3 Abb., 391.

      Charles K Jenkins, for plaintiff.
   Woodruff, J.

The objection that the affidavits upon which the injunction was granted were not served is not insisted upon. The plaintiff’s affidavit shows that no other affidavit than the complaint duly verified was presented to the Justice for the purpose of obtaining an injunction; this is sufficient for that purpose. By. the plain terms of section 219, a temporary injunction may .be granted, when it “appears by the complaint” that a case exists in the plaintiff’s favor entitling him to have the defendant restrained. Whether under the language of section 220 requiring that “a copy of the affidavit” be served with the injunction, the complaint and verification are to be regarded as “ an affidavit ” as sometimes held, or the requirement of section 220 in this respect be held to relate only to cases in which the injunction is obtained upon affidavit (strictly so called) after the suit has been commenced. In either view it is sufficient to serve with the injunction the complaint and verification upon which it was granted.

The next objection denies the jurisdiction of the Justice to grant an injunction order before the actual service of the summons.

The language of the 220th section is, “ the injunction may be granted at the time of commencing the action, or at any time afterward before judgment,” &c.; and section 99 declares .that “ an action is commenced as to each defendant when the summons is served on him or on a co-defendant who is a joint contractor or otherwise united in interest with himand section 127, “ that civil actions in the Courts of record in this State shall be commenced by the service of a summons.”

Under these provisions it is plain, I think, that an injunction order cannot become operative until the summons in the action has been served; and that the service of an injunction upon the defendant, prior to the service of the summons, would be irregular and ineffectual.

It does not follow, that the injunction order may not be signed by the Justice preparatory to such service and be delivered by the Justice to be served with the summons, although until the summons is served it has no effective operation.

The language, the injunction may be granted “at the time of commencing the action or at any time afterwards ” was meant to define two periods. If the summons must in all cases be served before the Justice has jurisdiction to grant the order, then no injunction can issue until after the action has been commenced,, and the words “at the time of commencing the action” are without meaning and superfluous; but the Code means that a plaintiff may not only have an injunction after his action is commenced, but that he may have it at that prior-time described by the words “at the time of commencing” his action. And in this connection, those words mean while the work of commencing the action is going on and not after it is finished.

It imports that the injunction may be obtained so that it shall operate at the time when and so soon as the action is commenced, and not alone after it is commenced.

This- accords with good sense. It meets a very large class of cases- in which it is of vital importance to a plaintiff to enjoin the defendant at the very instant he is apprised that an action is commenced, and in which the defendant would, but for such injunction, defeat the very object of the suit.

The section which declares that the Court is deemed to have acquired jurisdiction in a civil action from the time of the allowance of a provisional remedy 139) is in harmony with this construction, and sustains it.

The objection that the undertaking was not signed by the plaintiff or his agent, or by some person who in very terms is described on the face of the undertaking as acting “ on the part of the plaintiff,” raises a question in regard to which there has been some conflict of opinion.

The language of the 222d section is, that “-the- Court or Judge shall require a written undertaking on the part of the plaintiff, with or without sureties, to the effect that the plaintiff will pay to the party enjoined, such damages,” &c.

In my opinion the just meaning of this language is satisfied, and all the proposed benefits to the defendant are secured by construing the words “on the part of the plaintiff,” as simply words of contrast or opposition to the part of his adversary. And that an approved undertaking, executed by any persons of competent ability, agreeing that the plaintiff shall pay to the defendant the damages which he may sustain, if it be procured and furnished by the plaintiff or his attorney for the security of the defendant, is an undertaking on the part of the plaintiff within the meaning of this section.

If this be not so, then on the part of the plaintiff can only mean “ executed by the plaintiff.” Ho other person can execute it who would not be (as between him and the plaintiff) a mere surety.

It is suggested that his agent or attorney may execute the undertaking. Ho doubt he may, but if he executes it by the plaintiff’^ authority then it is in law the plaintiff’s undertaking and not his own; if he have no such authority, then he executes it just as any other person would execute it, binding himself and not the plaintiff, and he is just as much a surety as any other person would be.

Suits are often necessary when a plaintiff is out of the State, or sick, or under disability, or an infant, or otherwise incompetent or unable to execute an undertaking, or to authorize any agent or attorney to do so. I cannot concede-that it was intended that in such case no injunction should be issued.

The words “ by the plaintiff, with or without sureties,” had they been used, would be plain and would require the plaintiff to execute, but the words “ on the part of the plaintiff, with or without sureties,” are fully satisfied if any person or persons in aid of the prosecution, acting in furtherance of the action, at the instance of the plaintiff, will peremptorily and unqualifiedly undertake that the plaintiff shall pay to the defendant the damages which he may sustain.

The terms “ with or without sureties” would seem to indicate that whoever gives the absolute undertaking, whether it be the plaintiff himself or some person or persons whom he or his attorney may procure, there may still be sureties if the Judge so require. The forms of undertaking now in common use make all the undertakers in form and in fact principals as between them and the defendant; and in that sense they are absolute undertakings on the part of the plaintiff and not undertakings with sureties, and such is the undertaking-in this case.

It is only in accordance with the language of the section under consideration to say that an absolute undertaking that the plaintiff will pay (whether executed by him or by other persons) is an undertaking on the part of the plaintiff, and the Court or Judge may receive it, if satisfactory, of he may require the security of 'Others who shall execute in very terms as “ sureties.”

That those who sign as sureties may so express their obligation is plain. Oftentimes they will prefer .to .do so. And the utmost that can be claimed by a defendant-(if so much even be conceded) is, that there shall be a principal in the undertaking in form; and whoru he can treat as principal without the necessity of demand or notice, and if the responsibility of such principal be inadequate then that he may have sureties. This construction would har■monize with the claim that in using the terms “ with.or without sureties,” the Legislature necessarily imply that there must be a ■principal, since otherwise there is no surety.

If a defendant bring his action on an undertaking in the form in common use, in which the undertaking is absolute, he will be the first to say,'1 ‘As between me and yourselves you are principals and not sureties.” If so, then he has an undertaking given on the part of the plaintiff strictly without sureties. ■

■ Nor is it doubtful, I think, that an undertaking in the form “I undertake and promise,” &c., executed by one person, with a further agreement in due form by another person by which he became bound as surety, would be a compliance with the statute in its terms as well as its meaning, although the plaintiff signed neither.

Indeed if that form of undertaking had been introduced into use, I greatly doubt that this question would have ever arisen.

But as undertakings are, in general, in form absolute, binding all the signers as principals, it has happened that'they have been called sureties and somebody is sought for to be principal in the terms “ on the part of the plaintiff.” ■

I repeat that an approved absolute undertaking that the plaintiff will pay, &c., is enough, whether it be executed with sureties or without sureties, and such an undertaking has been given here.

I am aware that there has been on this point also a difference of opinion, the late Chief Justice Duer, in Richardson v. Craig, (1 Duer, 666,) held that similar words in the section (182) prescribing the undertaking to be given, on obtaining an- order of arrest made it necessary that the plaintiff should sign the undertaking. But he was compelled to make his own construction yield when the plaintiff was an infant, &c. In Sief v. Shausenburgh, (Sept. 22, 1858,) I am told that Chief Justice Boswobth held an absolute undertaking sufficient to justify an order of arrest, though neither signed by the plaintiff nor by any one professing to be his agent. (Askins v. Hearns, 3 Abb., 184; Bellinger v. Gardiner, 12 How. Pr. R., 381.)

The last obj ection to the plaintiff’s proceedings is that he has not filed the papers upon which the injunction was granted as required by the 4th of the Rules of Court. When the notice of this motion was given the fact so stated was true and the defendant had a right to his motion and the Court might vacate the injunction order upon that ground. But it appears by the affidavit on behalf of the plaintiff that the omission to file the papers was an inadvertence, and so soon as the notice of motion was received the papers were filed. Under such circumstances the Court have a discretion to relieve the plaintiff from the consequences of his omission, but as the defendants’ motion is regular such relief should be granted upon terms. Indeed, if the plaintiff had at once given notice of the filing and sought a waiver of the motion, I would have allowed no costs to the defendant if he persisted in his motion.

All the other grounds of motion must be overruled, but upon this last point the motion must be granted unless the plaintiff pays the costs of motion, $7. If he pay those costs within five days the motion is denied.


text:
    James H. Hilliker, Receiver, Plaintiff, v. George C. Hathorne, Jr., et al.

    1. Where by a judgment or decree a defendant is required to execute an assignment or conveyance to the plaintiff, and an instrument in proper form is tendered to him, he is bound to execute it, although it has not been submitted to the Court or Judge for approval.
    2. It is, however, proper that such a judgment should provide for the settlement of the form of the instrument by a Judge or Referee, and if the defendant is in doubt respecting the propriety of the form of the instrument proposed, he should apply to the Court to have it settled.
    3. On a motion to punish a defendant for a contempt in not executing the assignment tendered, where the judgment did not provide any mode of settling the form thereof, it appeared that the defendant acted in good faith, under the advice of counsel deeming him not bound to sign the instrument in the form tendered; the motion was discharged without costs, on the defendant’s executing the instrument.
    4. In an action by a Receiver, on behalf of a judgment creditor to set aside an assignment of a lease, the Court, on the 27th of March, announced its decision that the assignment was void; that the plaintiff is entitled to an assignment thereof as Receiver, and to the rents thereafter to accrue from the tenants in possession. On the 1st of April, one of the defendants, who had heard, in general terms, that the case had been decided in the plaintiff’s favor, but had no knowledge of the particulars, or that the plaintiff was by such decision entitled to the rents due that day, collected such rents. On the 9th of April, a judgment was entered in conformity with the decision, and was made to bear date of the day the decision was announced. The defendant was not under any injunction in the action, and the decision did not direct an injunction. Upon these facts, a motion to punish the defend- . ant for collecting those, rents, as for a contempt, was denied.
    (Before Woodruff, J.)
    At Special Term; May 5th, 1860.
    In this case certain judgment creditors of the defendant Hathorne, caused him to be examined before a Judge of the Supreme Court on proceedings supplementary to execution issued on a judgment recovered in that Court, procured an injunction from a Judge of that Court, to restrain him from disposing of or interfering with his property, and the plaintiff herein was appointed Receiver of his property. The plaintiff, as Receiver, brought an action in this Court to set aside an assignment of a lease executed and delivered by Hathorne to the other defendants as fraudulent and void as against the judgment creditors. A judgment was rendered declaring the assignment void, and directing the defendants to assign the lease to the plaintiff as Receiver, and directing the tenants in possession of the premises “ to pay over the rents hereafter to accrue to the plaintiff, as such Receiver, and that he collect a sufficient amount to satisfy the judgment and execution aforesaid with costs,” &c. The decision of the Court was publicly announced and noted in the minutes on the 27th day of March, 1860. But the judgment was not drawn up and entered until April 9th, 1860. After which the plaintiff’s attorney drew an assignment and tendered it to the defendant, Hathorne, for execution, and served on him a copy of the judgment. He declined; his counsel advising him that he was not bound to sign the instrument tendered to him, and that the form of the instrument must first be settled by the Court, or under its order, before he should sign it.
    Rents became due from the tenants of the demised premises on the 1st day of April, (after the Judge had announced his decision,) and the defendant, Hathorne, after he had heard in general terms that the case was decided in the plaintiff’s favor, but before the judgment was entered, collected such rents or a portion thereof.
    The plaintiff then moved for an attachment to punish the defendant, Hathorne, for a contempt in refusing to execute the assignment and also in collecting such rents.
    His excuse was, that the form of the instrument of assignment had not been settled or approved by the Court or a Judge thereof and the advice of his counsel.
    And in relation to the collection of the rents, he swore that he was not aware that by the decision of the Court the plaintiff was entitled to the rents which had already become due; that the rent which he had collected had become payable before he had received any notice of the terms of the judgment and before the judgment itself was entered, which declared the plaintiff to be entitled to the rents hereafter to accrue.
    The judgment when entered, viz., on the 9th April, 1861, was made to bear date March 27th, the day the decision was announced. It contained no terms of injunction restraining the defendants.

      Nelson Smith, for plaintiff, in support of the motion.
    1. Refusal to execute the assignment was a contempt.
    2. Collection of rents after notice that the case was decided in favor of the plaintiff, was a contempt although the decree had not been entered or served. (Skip v. Harwood, 3 Atk., 564; Kempton v. Eve, 2 Ves. & Beames, 349; Hull v. Thomas, 3 Edw. Ch. R., 236; People v. Compton, 1 Duer, 515, 553.)
    Although the decree contains no prohibition restraining Hathorne from collecting the rents,, it does declare the plaintiff entitled thereto, and adjudges their payment to him as Receiver. It was, therefore, a contempt on his part, and impeded the plaintiff in the assertion of his rights under the decree tending to defeat the decree, and render it ineffectual. (5 Vin. Abr., 446; Sir James Butler's Case, 2 Salk., 596.)

      Otis D. Swan, for defendant.
   Woodruff, J.

In this case the decree ought to have provided some mode in which, if counsel differed as to the form of the assignment to be executed by the defendants, their difference could be settled by laying before a Justice of this Court the proposed assignment and the objections thereto, that the form might be settled by him. But, in the absence of such a provision, the plaintiff had a right to require the execution of an assignment; and, if the one tendered by him was a proper one, the defendants, under the advice of their counsel, should have executed it, or should have procured and executed some other in proper form, or, if he was in doubt, should have applied to the Court on his own behalf to have th*e form settled. Kevertheless, if, as appears on this motion, the form of assignment had not’been approved by the Court, and the defendants’ counsel advised that it was not drawn in proper form, the defendants should have an opportunity to execute the assignment, and, upon doing so, this motion should be deemed discharged.

As to the moneys collected from the tenants in possession of the demised premises, although I think the conduct of the defendant Hatkorne is by no means free from fault, and that the plaintiff has a clear right to collect them, either from him, or, it may be, from the tenant, a case for an attachment is not made out so as to warrant that mode of compelling the defendants to pay OYer the money.

If fraudulently collected, possibly the defendant may be arrested. If he violated an injunction of the Supreme Court, or a Justice thereof, that Court, or Justice, has power to punish for that. But it would be carrying the idea of contempt of the orders of this Court further than I am now prepared to do, if I should hold that oral notice that the suit was decided in the plaintiff’s favor, without notice of the particulars of the decision,'when the defendant is not under an injunction, and no injunction was ordered by the decision, subjected the defendant to process of contempt when no order or decree had been drawn up or entered, in the face of the defendant’s express denial that he had any notice that the decision entitled the plaintiff to the rents which he collected.

The defendant Hathorne may have five days within which to execute the assignment proposed by the plaintiff; and if, within that time, he execute and duly acknowledge it, the motion shall be discharged, without costs. In default of such execution, a precept may issue against him, to commit him until he execute such assignment and pay (in that event) $10 costs of motion and the fees of the Sheriff, &c.

1 Ordered accordingly.


author: Robertson, J.

text:
    William Palen v. Samuel E. Lent and Catharine, his Wife.
    1. A cause of action against a husband, entitling the plaintiff to a recovery of money from him, cannot be joined with a claim to charge the separate estate of the wife with the payment of the amount sought to be recovered.
    2. A promissory note, signed by the wife and delivered by the husband, for the purchase of property used and enjoyed in a business carried on for their joint benefit, does not operate both as a note of the husband mating him personally liable and as an appointment by the wife of her separate estate or as a charge thereon.
    3. A complaint which seeks to charge the separate estate of a married woman upon her promise must show that the consideration of the promise was some benefit to her separate estate, or that there was a distinct intention on her part to charge her separate estate.
    (Before Robertson, J.)
    At Special Term; May 14th, 1860.
    Demurrer to the complaint. The pleadings, so far as it is material to state them to show the points decided herein, are set forth in the opinion of the Court.
   Robertson, J.

The defendants are husband and wife; the complaint alleges the making of a note signed by the wife payable to and indorsed by a Mr. Brown to the plaintiff, and the possession of separate estate by the defendant, Mrs. Lent. It also alleges that the note was given for the purchase of a pair of horses, owned and enjoyed by the defendants; that Mrs. Lent carried on a livery stable in her own name and for her own benefit; that her husband acted conjointly with her or as her attorney, or was interested in the business of such livery stable and as such attorney, or otherwise assented to the making of such note, to derive some benefit therefrom. It prays judgment against both defendants and also against the separate property of Mrs. Lent.

This pleading joins a liability of the wife’s separate estate with that of the husband which is one of the causes of demurrer. The Code (§ 167) permits causes of action to be united, whether legal or equitable, provided they arise out of the same transaction, or transactions relating to the same subject matter, or originate in contract, but they are required to be separately stated, but in "this case they are not separately stated; on the contrary, it appears that the cause of action is but one only, the liability is separate. It is clear the complaint-1 does not set out a joint contract, nor does it set out a separate one by both defendants, supposing the appointment of the separate estate of the wife to be a contract, which is very doubtful. The defendants must therefore, if liable at all upon the' same transaction, be liable as principal and surety, actions against whom it has been held cannot be joined. (Brewster v. Silence, 4 Seld., 214; Phalen v. Dingee, 4. E. D. Smith, 379.) The complaint also falls to make out a cause of action against both defendants, because it seeks to make both responsible upon an instrument -signed only once, by one; clearly the note cannot operate as a note of the husband making him personally liable, and an appointment by the wife of her personal estate. The facts that both parties "were interested in the same livery stable conducted in the wife’s name and for her benefit, and that the note was given for a pair of horses is not sufficient; if a husband and wife could enter into a contract of copartnership and it was alleged they did so in this case, those facts might make them jointly liable but not severally. If the note in question had been, however, merely the joint note of both, the wife’s separate estate would not have been hable. (Yale v. Dederer, 18 N. Y. R., 265.)

As regards the cause of action set out against the wife, the complaint is defective in not alleging either that the consideration of her promise was for the benefit of her separate estate, or that of which it is the evidence, to wit, that she intended by the note to charge such estate, which is always necessary to be established, either by the words of the writing or proof aliunde. (Story Eq. Jur., 1400; Vanderheyden v. Mallory, 1 Comst., 462; Yale v. Dederer, ubi sup.; Curtis v. Engel, 2 Sandf. Ch. R., 288.) The facts that the note was given for a pair of horses, and that the defendant Mrs. Lent was carrying on a livery stable for her own use, may be important links in evidence to show such intent, but their averment is not equivalent to that of the latter.

The failure of the complaint to set out the particulars of the defendant’s separate estate may not be available on demurrer or in any other way than by motion to make definite. The mere joinder of the defendant, Lent, too; as a party is probably not objectionable. (Draper v. Heningsen, 16 How. Pr. R., 284,) but the other defects are sufficient to make the demurrer of both parties well taken.

The demurrer must therefore be sustained and judgment given for the defendants, with costs, unless the plaintiff amend within twenty days. The costs to be one bill in favor of either defendant, as they or their counsel may elect.


text:
    Ferdinand C. Lighte and others v. The Everett Fire Insurance Company.
    1. It is not necessary that a corporation, plaintiffs, should in the complaint allege that the plaintiffs are a corporation.
    2. Mor is it necessary, in declaring against a corporation, to allege that the defendants are a corporation.
    (Before Robertson, J.)
    At Special Term; May 26th, 1860.
    Demurrer to the complaint. The opinion of the Court sufficiently states the complaint and the grounds of demurrer.
   Robertson, J.

The objection in this case is that the complaint has not alleged the defendants to be a corporation or Joint Stock Company. It has long been settled that plaintiffs need not aver themselves to be a corporation. (Bank of United States v. Haskins, 1 J. C., 132; Bank of Utica v. Smalley, 2 Cow., 770; Holyoke Bank v. Haskins, 4 Sandf. S. C. R., 675; Union Mutual Ins. Co. v. Osgood, 1 Duer, 708; Bank of Waterville v. Beltser, 13 How. Pr. R., 270.) Before the passage of the Revised Statutes it was held that the plea of the general issue put in issue the existence of the plaintiffs as a corporation as though it were averred, and it could only have been upon the principle laid down in the above case of Union Mutual Insurance Company v. Osgood, that the name being an appropriate name for a corporation, the very name imported an averment to the same effect. The Revised Statutes merely require the defendants to make it a special issue. (2 R. S., 458, § 3.) It would be difficult to see why the same reasoning should not apply to the defendants. If the law takes notice of the character of the name, it must equally do so in the other. It is as important to show a personality to be contracted with-as one to contract.

Another difficulty arises from the fact that the Code only permits specific causes of demurrer, and the objection in question does not come within any of them. The question whether the defendants are a corporation, is no part of the cause of action. They are either a corporation or an association, or have no existence; if the last, of course no judgment can be of any avail; if they are persons using a corporate name, and. the plaintiff makes a mistake in suing them as a corporation, they are at liberty to plead that they are not what they have seemed, but it must be by an answer.

If the question were a new one in regard to plaintiffs, I might perhaps entertain a different view; but it being established that a name carries with it the assertion of a fact, I can see no reason for not applying the same rule to defendants.

The demurrer must, therefore, be overruled, with costs, and judgment be given for the plaintiffs, with liberty to the defendants to answer in twenty days, upon payment, of costs, upon filing affidavit of merits and of good faith in putting in the demurrer, in five days.


text:
    John T. Allen, Plaintiff and Respondent, v. Daniel Devlin, Defendant and Appellant.
    1. A parol lease of lands for a term exceeding one year is not valid, nor can a term exceeding one year be surrendered by parol. But a parol agreement, upon sufficient consideration, duly performed on the part of the tenant or his surety, for the surrender of the last year [of the term] is valid, and evidence of such an agreement is admissible as a defense in an action brought to recover upon the lease for the rent of the said last year of the term, when it appears that the tenant did not occupy during such last year.
    2. The statute of the State of New York, (2 R. S., p. 135, § 6,) which declares that no estate or interest in land other than leases for a term not exceeding one year shall be created, granted, assigned, surrendered or declared, unless by act or operation of law, or by a deed or conveyance, in writing, subscribed, &c., does not render invalid an agreement by a lessee for a term of years with his lessor, that the premises shall be surrendered on the first day of May of the last year of the term.
    (Before Bosworth, Ch. J., and Hoffman and Moncrief, J. J.)
    Heard, December 15th, 1859;
    decided, January 7th, 1860.

      This action was brought against the defendant as surety for the payment of rent reserved in a lease, for the term of three years, given by the plaintiff to one Meadore. The plaintiff claimed to recover for rent which, according to the terms of the lease, was payable on the 1st day of August of the last year of the term for the quarter ending on that day, i. e., from the 1st of May to the 1st of August.
    The defense was, that in the preceding month of January, {i. e., in the second year.of the term,) the plaintiff agreed with the defendant, with the concurrence and authority of the lessee and the tenants in possession, that, in consideration of one hundred dollars to be paid by the defendant to the plaintiff, the lease should be canceled, and the premises and term therein be surrendered on the first day of May then next, for the residue unexpired of such term of the lease, that being one year only; and that the defendant tendered to the plaintiff the said sum of one hundred dollars, and he and the tenants in possession left the said premises on or before such first day of May, and placed the keys and the control of the premises at the disposal of the plaintiff) in full performance, on their part, of the said agreement. The evidence on the question whether the plaintiff accepted the keys was conflicting.
    The action was referred, by consent, to the Hon. William Kent, as sole Referee, before whom the same was tried, on the 30th of Kovember, 1858.
    The Referee decided the cause in favor of the plaintiff, and ordered judgment for the amount of rent due according to the terms of the lease, with interest and costs, amounting to $636.25.
    In giving his decision he stated, as one of his conclusions of law, “that the said lease being under seal for a term exceeding one year could not be surrendered by parol, and could only be surrendered by act or operation of law, or by a deed or conveyance in writing, subscribed by the party creating the same, or by. his lawful agent thereunto authorized in writing.” To this conclusion of law, the defendant’s counsel excepted.
    It was quite apparent that the finding of the Referee upon the issues, notwithstanding the evidence of the parol agreement and tender, &c., above referred to, proceeded upon his view of the law, as stated in the conclusion above stated.

      From the judgment, entered in favor of the plaintiff, the defendant appealed to the general term.

      John E. Develin, for the defendant (appellant).
    I. This was a valid surrender by agreement.
    1. Surrenders are of two lands — surrender by agreement or deed, and surrender in law — and no particular words are necessary to constitute a surrender by agreement. All that is required is that such words should be used as evidenced an intention upon the part of the tenant of the estate for years to give up, and the owner of the reversion to accept, the lesser estate. (2 Shep. Touchstone, 306, 307, Lond. ed. of 1808.) The words of the agreement here plainly indicate an intention to surrender and accept; and if these words had been committed to writing, no question would have arisen on the agreement. Inasmuch, however, as the agreement rested in parol, the Referee decided it to be invalid. In this the appellant claims the Referee erred.
    2. “ Anything that may be granted without writing, may be surrendered by words without writing.” (Shep. Touchstone, 307.) By the Revised Statutes, a lease for a year of lands will be valid, although made by parol and to commence in futuro. (2 R. S., 135, [m. p.;] Young v. Dake, 1 Seld., 463.) And a surrender of a term of years may be made to take effect in futuro. (Allen v. Jaquish, 21 Wend., 628.) The words of the statute are, “No estate or interest inlands, other than leases for a term not exceeding one year, * * * * shall hereafter be created, granted, assigned, surrendered, or declared,” except in writing, &c. In this case, although the lease was originally for three years, yet, at the time when the agreement of surrender was to take effect, there was but one year of the original term unexpired, and the lease was therefore but for one year, and it and the residue of the term could, independently of and under the statute, be surrendered by parol. (Smith v. Niver, 2 Barb. S. C., 180.)
    II. The agreement was also a surrender in law. It was on the part of .the landlord, an agreement, in consideration of $100, to take the premises from his tenant, and upon the part of the tenant to give the $100 to the landlord, and the premises from 1st May, 1858, to 1st May, 1859. This agreement amounted to a redemise of the premises to the landlord for the remainder of the term, and such redemise is a surrender in law, even though the agreement be by parol, and the original lease be under seal. (Woodfall’s Landlord and Tenant, 151, [Lond. ed., of 1802,] 186, [Lond. ed. of 1804;] Leonard v. Patterson, 3 Blackf., 356, 357; Allen v. Jaquish, 21 Wend., 628.)
    III. There was another surrender in law; the plaintiff having accepted the keys, and his agent having, with his approbation, gone into possession of the premises.
    1. The delivery and acceptance of the keys of a house, with an intention sursum reddendi, is a surrender in law. (4 Kent Com., 107, note c.; Dodd v. Acklom, 6 Mann. & Grang., 672; Wilkes, &c., v. Ferris, 5 John., 335; Whitehead v. Clifford, 5 Taunt, 518; Com. Law R., vol. 46, p. 672.)
    IY. The judgment should be reversed, and a new trial granted.

      Frederick A. Lane, for the plaintiff (respondent).
    I. The lease sought to be surrendered was a lease for a term exceeding one year, and therefore could not be surrendered unless, by act or operation of law, or by a deed or conveyance in writing subscribed by the party creating the same, or by his lawful agent, thereunto authorized by writing. (2 R. S., part II., ch. 7, tit. I., § 6.)
    II. This lease created an estate in the lands for the term of three years, and the estate could not be separated in the way defendant contends.
    1. The common sense construction of the statute is, that the estate, granted by a lease of a term not exceeding one year, might be surrendered by parol, but that where a lease was made for a term of more than one year, being in writing, should only be surrendered by writing. If this were not so, then the whole statute in reference to the surrender of leases for a term of years, could be made a nullity. A. leases lands to B. for a term of years, and at the expiration of the second year he agrees to surrender the lease for the third year, and at the same time agrees to surrender for the fourth year, and so on; each time agreeing to surrender only the estate of one year.
    III. The testimony of defendant Devlin and of Miss Hope, as tó the conversation at Devlin’s office, ought not to have been received by the Referee, and should be entirely laid aside; for supposing it to be true, yet it would not operate to defeat this action. Consent is not sufficient; it must be followed by actual and continued change of possession. (Nicholls v. Atherstone, 11 Loud. Jur., 778; Randall v. Rich, 11 Mass. R., 494; Ogden v. Sanderson, 3 E. D. Smith, 166; Lyon v. Reed, 8 Lond. Jur., 762; Dodd v. Acklom, 6 Mann. & Grang., 673, 679.)
    IV. In order to constitute the surrender of a particular estate by act and operation of law, the owner of the particular estate must be a party to some act, the validity of which he is by law afterwards estopped from disputing, and which would not be valid if his particular estate had continued to exist (Lyon v. Reed, supra.)

    1. The acts which operate by way of estoppel are such as, in contemplation of law, are acts of notoriety; as formal and solemn as the execution of a deed, or livery, entry and acceptance of an estate; the concurrence of the parties to which there could, from that notoriety, be no difficulty in ascertaining. (Parsons on Contracts, vol. 1, p. 428; Taylor’s Landlord and Tenant, § 512, et passim; Lyon v. Reed, supra, and 13 Mees. & Wels., 309; Lawrence v. Brown, 1 Seld., 404.)
    V. There cannot be a surrender to operate in futuro, though there may be a lease to commence in futuro. (Schieffelin v. Carpenter, 15 Wend., 400; Doe, dem. Murrell, v. Milward, 3 Mees. & Welsh., 328; Roe, dem. Berkley, v. York, 6 East., 86; Taylor’s Landlord and Tenant, § 513.)
    1. Hence, the argument derived from Young v. Dake, (1 Seld., 463,) and from Shep. Touchstone, (vol. 2, p. 307,) cannot apply. This is not a lease by parol, and of course may not be surrendered by parol. And the same may be said of the cases in 21 Wend., 628; (1 Sand. S. C. R., 5; and 2 Barb., 180;) that the principles are entirely different from the case now under argument.
    VI. The animus sursum reddendi must be apparent in both parties. Hence, the delivery of the keys to Allen (supposing Mr. Devlin’s testimony to be correct) would not operate as a surrender by act or operation of law. (Townsend v. Albus, 3 E. D. Smith, 560.)
    1. Mr. Allen’s intention is evidenced by his non-acceptance of the gold—by Mr. Devlin’s remark: “I told him he could do as he pleased with them,”—by Mr. Allen’s remark “ that he should not repair the house under that lease,”—from his refusing to pay for the advertising the houses to let.
    Also from his never giving Bisco, his confidential agent, any authority to rent the houses or to repair.
    VII. The decision of the Referee was correct, and should be confirmed.
   By the Court—Hoffman, J.

The lease was dated the 4th of March, 1856, for the term of three years from the 1st of May then next. It would expire, then, on the 1st of May, 1859. The guaranty of the defendant is of the same date as the lease.

The action is for the recovery of the rent due the 1st of August, 1858, and some arrears of Croton water-tax agreed to be paid by the lessee.

It is alleged, in defense to the action, that, in the month of January, 1858, the plaintiff agreed with the defendant that, on the 1st of May, 1858, he would cancel, determine and put an end to the lease, provided the defendant would, on or before the 1st of May, pay the plaintiff $100 as a consideration for such cancelment.

This agreement is by parol. The point is, can testimony of such a parol contract be admitted ?

The provision of the statute applicable to the subject is as follows: “ Fo estate or interest in lands, other than leases for a term not exceeding one year, shall hereafter be created, granted, assigned, surrendered, or declared, unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the party creating, granting, assigning, surrendering, or declaring the same, or by his lawful agent, thereunto authorized by writing.” (2 R. S., p. 134, § 6.)

In Young v. Dake, (1 Seld., 463,) an agreement was made on the 4th of April, 1848, to lease a store for one year from the 1st of April, 1848. On the 11th of September, 1848, a further parol agreement was made that Dake should occupy the store for another year, commencing April 1, 1849. The proceeding was to remove Dake from possession.

It was held that a lease for a term not exceeding one year, and a contract for a lease or letting for a period not longer than qne year, are valid, though made by parol.

There was nothing which would seem to attach any qualification or condition to a parol lease, or contract of letting, for a year, or that it shall commence immediately, and cannot be made to commence at some future day.

“The time between the making of the lease and its commencement in possession, is no part of the term granted by it. The term is that period which is granted for the lessee or tenant to occupy and have possession of the premises. When, therefore, our statute speaks of a lease for a term not exceeding one year, and of a contract for a lease for a period not longer than one year, (§ 8,) it has reference to the time for the tenant to possess and occupy the premises, and does not include any previous or intermediate time. A lease, therefore, for the term of one year-may as well be made to commence at a future day, as at the day of making it.”

It must, I think, be conceded that, if a lease can be entered into by parol, three months before possession is to be given under it, and such possession is then to be but for a year, then a contract to surrender a lease, when the surrender is only to take effect for one year of occupation, may be made by parol.

Hence, the Referee was bound to have passed upon the evidence, and stated his conclusion of fact whether the landlord did accept the surrender alleged. The point of most importance relates to the delivery of the keys on the 30th of April. As to this, there is some contradiction of evidence.

It is true that the Referee finds that the lease has not been surrendered. But it is obviously so found mainly on his view of the rule of law not allowing of a parol surrender or agreement to receive it in the present case; and hence he has not considered and passed upon the evidence of the facts tending to show a surrender and acceptance.

There must be a new trial, and before the same Referee, unless a jury is applied for.

New trial ordered; costs to abide the event.

       The plaintiff appealed from this order to the Court of Appeals—his notice of appeal containing an assent that, if the order was affirmed, judgment absolute should be rendered against him. That Court, at its June Term in 1861, affirmed the order, and gave judgment absolute for the defendant.


author: By the Court—Pierrepont, J.

text:
    George Cassard, Plaintiff and Respondent, v. E. W. Hinman Defendant and Appellant.
    1. No one can enforce a contract which his agent has fraudulently obtained, \ although he neither authorized nor had notice of the fraud prior to the execution and delivery of the contract.
    2. Where such agent was a broker, and induced the defendant to employ him as such to negotiate the contract, and made representations calculated and designed to induce the defendant to enter into it, and the defendant entered into it relying on such representations and the advice of the broker, believing the latter to be in his own exclusive interest; and such broker was at the time the secret and fraudulent agent of the plaintiff to obtain such contract from the defendant: Held, that no action could be maintained by the plaintiff against the defendant for a breach of it.
    3. Where the defense to an action upon a contract to sell and deliver merchandise at a future day is, that the alleged contract was not, when made, intended by either party to be actually performed, but was in the intent and understanding of both parties a gambling contract to be settled by the payment of differences; what was said at the making thereof by the parties making it, is competent evidence upon the question of the truth of the facts stated as a defense, although such contract was negotiated on behalf of one party by a broker.
    (Before Hoffman, Pierrepont and Moncrief, J. J.)
    Heard, November 1st, 1859;
    decided, January 7th, 1860.
    This is an appeal by Elisha W. Hinman the defendant, from a judgment in favor of George Cassard the plaintiff, entered on a verdict rendered on a trial had before Mr. Justice Slosson and a jury, on the 10th day of February, 1859.
    The action was commenced on the 6th day of September, 1856, upon three several contracts in writing, signed by the defendant, one dated April 22d; one April 26th and one May 9th, 1856; each for the sale of (500) barrels of pork, and each of which is in the same form. The one dated April 22d, is in these words, viz.:
    “New York, April22, 1856.
    “ For value received, I have this day sold, and in consideration of one dollar paid me by George Cassard, I hereby agree to sell and deliver to George Cassard, a merchant, Baltimore, Md.t or to his authorized agent, viz.: five hundred (500) barrels of new mess pork, inspected by either Lawson, Gretty or Lewis, of this city, deliverable in either of their yards all the month of August, 1856, seller's option, five.days’ notice, to buyer to receive the same; at the rate of sixteen dollars ($16) per barrel, cash on delivery.
    E. W. HINMAN".
    Sealed and executed in presence of
    Philip Nathan.”
    The defendant refused to deliver the pork; and its market price being higher, at the time specified for its delivery, than the contract price, this action is brought to recover such difference in price with interest thereon, as damages.
    The answer, first, denies that the defendant “ did, by any valid or legal or obligatory act or thing, make or enter into said supposed contracts,” and denies that plaintiff has tendered the stated price; second, avers that the defendant was led and induced, by one P. Nathan, a broker, to sign the contracts, and to entploy him as his agent to negotiate the same) that Nathan was at the time the secret and fraudulent agent of the plaintiff in the same matter, and made misrepresentations which are stated and on which the defendant relied, and by which he was induced to sign the contracts; third, it avers that it was the mutual design and intention of both the plaintiff' and the defendant, at the making of the said supposed contracts, that the same should not be specifically performed in whole or in part, but on the contrary that at the maturity of said supposed contracts, the differences between the then market value of said pork and the said contract prices therefor should be paid by the one party to the other as performance or satisfaction of said supposed contracts.
    The answer had also set up as a fourth defense, that the con- ' tract was entered into by the plaintiff as part of a design on his part, to obtain the control of all the pork in the market, and then to resell at a greatly enhanced price and to obstruct and hinder the proper course of trade, and rmjustly and unlawfully raise the price of pork to the injury of the public, and that the contract was on that ground illegal and void. This defense had been demurred to, and the demurrer thereto was sustained.
    At the trial the Judge excluded evidence to prove the second defense, on the ground that the part of the answer stating it was insufficient as a pleading.

      He also excluded evidence of any conversation between the defendant and Nathan, at the time “ of making the writings,” “ as to the performance by receipt afid. delivery of pork, or the settlement by payment and receipt of differences.” The defendant excepted to each decision.
    The court directed a verdict for the plaintiff for the difference between the contract price and the market price, at the time for performing the contracts, with interest from that time, and the defendant excepted to each branch of such instruction.
    The jury accordingly found a verdict for $3,200, and judgment having been entered thereon, the defendant appealed to the G-eneral Term.
    Some of the allegations employed in stating the second defense, not adverted to above, are recited in the opinion of the court.

      Wm. M. Allen, for the defendant (appellant).
    I. The court erred in admitting evidence of damages, and in refusing to dismiss the complaint.
    II. The court, at the trial, erred in refusing to receive evidence in support of the second defense.
    The defense is well pleaded; and is a full, legal and meritorious defense to the plaintiff’s action. (Story on Agency, §§ 31, 210-214; Paley on Agency, 33, and notes; New York Central Ins. Co. v. Nat. Prot. Ins. Co., 4 Kern., 85, 91; Utica Ins. Co. v. Toledo Ins. Co., 17 Barb., 132.)
    III. The court erred in excluding evidence offered by the defendant, to show the intention of the defendant, and the expressed intention and understanding of both the defendant and the agent of the plaintiff. (Cassard v. Hinman, 14 How. Pr. R., 84; 1 R. S., 662, §§ 8, 10; id., p. 710, §§ 6, 7; 8 and 9 Vic., ch. 109, § 18; Grizewood v. Blane, 20 Eng. L. & Eq., 290; S. C., 11 Com. B., 538; S. C., 8 Eng. L. & Eq., 415; Rourke v. Short, 34 id., 219; Williams on Personal Property, 80; Addison on Contracts, 117; Bunn v. Riker, 4 Johns., 426; 1 R. S., 223, §5; 3 R. S., 3d ed., 55, notes on §§ 8, 9, 10.)
    IV. The fourth defense is valid. The judgment on the demurrer to that defense is erroneous, and should be reversed.
    The offenses of forestalling, regrating, and engrossing the market are criminal at common law, and all contracts in furtherance of criminal designs are void. (4 Bl. Com., 158; 3 Just., 196; Wharton’s Criminal Law, 688, 689; Wharton’s Precedents, 587, and notes; 2 R. S., p. 692, § 8, sub. 6; People v. Fisher, 14 Wend., 9, 14, 15; Loomis v. Edgerton, 19 id., 419; Hilton v. Eckersley, 32 Eng. L. & Eq., 198; Pepper v. Haight, 20 Barb., 438.)

      James C. Carter, for the plaintiff (respondent).
    Among other points which in the view of the case taken by the court at General Term, it is not material to state, argued,
    1. That the making of the contracts, the readiness and willingness of the plaintiff to perform on his part, and the neglect and refusal of the defendant, are alleged with great distinctness in the complaint, and are not denied by the answer. The cause of action is therefore admitted.
    Under such a contract it is not necessary for the vendee to allege and prove á tender on his part. Readiness and willingness to receive and pay are sufficient. (Rawson v. Johnson, 1 East., 203; Waterhouse v. Skinner, 2 Bos. & P., 447; 2 Chit. Pl., 269-271, notes; Porter v. Rose, 12 J. R., 209.)
    Defendant should have given notice of an intention to deliver. (Quarles v. George, 23 Pick., 400.)
    II. The allegations contained in the second defense set up in the answer, if admitted to be true, as stated, -constitute no defense to the action; and evidence under that defense was, therefore, properly excluded.

      (a.) The contracts were not ffiade by the broker Nathan. They are set forth in the complaint, and are signed by Hinman himself. Whatever, therefore, the nature of Nathan’s agency was, and it is left vaguely enough by the plea, it was not an agency to make the contracts. Hinman acted on his own behalf. This relieves the case at once of the first ground of objection.
    (b.) The plea does not allege that the agency of Nathan was to make the contracts, or that he had any authority to make them.
    (c.) The plea does, however, speak of persuasion, inducement, representation, &c., all of which necessarily suppose that the mind of Hinman, and not that of Nathan, was the one which assented to the contract.
    2. It is clear that the plea states no case of false representations.

      (a.) If the representations actually alleged to have been made by Nathan came up to the requirements of the law, it would still be necessary that it should appear that Nathan was Oassard’s agent to make, and did make, the contracts, and that such representations were made in the course of the business of making such contracts. But neither of these things appear.

      (b.) But no false representation whatever is alleged. Not a single fact is alleged to have been wrongly stated, and a false representation is not predicable of an opinion as to the present, much less the future, market value of merchandise. [Foley v. Cowgill, 5 Blackf., 18; Sandford v. Handy, 23 Wend., 260; Hawkins v. Campbell, 1 Eng., 513.)
    (c.) Nothing is clearer than that a man may state a false opinion as to the value of an article which he is selling, as an inducement to the purchaser, with impunity.
    3. A further difficulty in the way of the defendant is, that he shows no reason why the plaintiff should be bound by Nathan’s representations, even if such representations were false and fraudulent. The plea does not allege that the plaintiff ever authorized Nathan to make such representations, nor does it allege that Nathan was in fact the plaintiff’s agent for making the contracts, or that he did make them.
    III. The exception in folio 13, is frivolous. An inquiry as to a man’s intentions in making a contract, without reference to whether the other party knew them or not, is manifestly irrelevant.
    IV. The question as to what was said between Nathan and the defendant, was clearly inadmissible. Nothing had been shown in the case to make the conversation between the defendant and a third person binding on the plaintiff.
    V. The final exception to the direction of the Judge, is not well taken.
    1. The question was, whether the evidence contained anything tending to show a mutual understanding between Oassard and Hinman, that the pork should not be specifically delivered, but that differences should be paid. It is plain that the evidence, so far as it tends to prove anything on this point, tends to prove that there was no such understanding.. The defense had wretchedly failed, and there was no alternative but to instruct the jury that the plaintiff was entitled to a verdict.

      2. It was right to direct the jury to allow interest. In such cases the loss of interest is always an element of the damages. (Fitch v. Livingston, 4 Sandf., 492; Van Rensselaer v. Jewett, 2 Comst., 141; Dana v. Fiedler, 1 E. D. Smith, 484; opinion of Woodruff, J., and 12 N. Y. R., [2 Kern.,] 40.)
    The judgment should be affirmed.
   By the Court—Pierrepont, J.

The legislature abolished all forms of pleading in use at the time the Code was passed; and provided that a defendant might state in his answer any matter constituting a defense, “ in ordinary and concise language.” If the second defense set up in this case was good in law, and so pleaded as to answer the requirements of the statute, it was error to exclude the defendant from giving any evidence under that pleading.

If the broker, who negotiated these contracts, persuaded the defendant to employ him as his agent in the matter, and while professing to act as the defendant’s confidential broker and agent, and only for the defendant’s interest, was “ the secret and fraudulent agent of the plaintiff to induce the defendant to make such contracts," and while pretending to act for the defendant, and to guard the defendant’s interest, he was in the employ and secret service of the plaintiff and using his information, ability and influence to entice the defendant into these contracts to the prejudice of the defendant and the advantage of1 the plaintiff,” while “the defendant was ignorant of such fraud and treachery, and confiding in the broker, as the defendant’s true and faithful agent, he entered into the contracts ” which the said broker well knew would be of great loss to the defendant and of great gain to the plaintiff, and if the broker being in the secret service of the plaintiff and deceiving the defendant, craftily combined together with the plaintiff to procure from the defendant those contracts, which he knew would be injurious to the defendant, for whom he was professing to act as a confidential and faithful agent, and which he knew would be beneficial to the plaintiff, in yhose secret service he was employed, and with whom he had craftily combined to procure these contracts, then, these contracts are void in law, and the plaintiff cannot recover npon them.

All this is substantially pleaded in the second defense, and in such language as, we think, answers the requirements of the Code.

The plaintiff could not have been misled or taken by surprise on the trial, and no such suggestion was made. A demurrer had been interposed to the third and fourth, defenses, which had been argued both at Special and General Terms, and the demurrer to the third defense was overruled, but no demurrer or motion whatever had been .made touching the second defense. It was urged that there was no evidence that the plaintiff had authorized the broker to make the representations alleged. There was the clearest proof, given by the plaintiff himself, that the broker Nathan was his agent in the negotiation and completion of those contracts; and we think the law well settled that no . one can avail himself of the advantages of a contract which his agent has fraudulently obtained, and, on suit brought, deprive his adversary of the right to prove the fraud, on the ground that the principal did not authorize his agent to commit it. If these contracts were obtained by fraud they are void, and the plaintiff can no more, in such case, avail himself of his agent’s fraud than of his own. We do not wish to intimate that there was any fraud in the procurement of these contracts; we merely wish to say that, under the pleadings, the defendant had the right to offer evidence of fraud; and that, if the proofs showed that the plaintiff’s agent procured these contracts from the defendant by fraud, that such fraud would vitiate the contracts.

Another exception, taken by the defendant, arises under the following question:

Q. At the time of making the writings between you and Cassard, was anything said by Nathan as to the performance by receipt and delivery of pork, or the settlement by payment and receipt of differences ? and if so, what ?”

(This question was objected to by the plaintiff’s counsel, on the grounds, 1st. That it was relevant only to the third defense; 2d. And, as to that, it was offering parol evidence against the writings; and, Sd. There was no proof to show any authority in Nathan, except to negotiate as a broker between the parties, as to the contracts actually made, and in evidence. The Court sustained the objection, and excluded the question; to which decision the defendant’s counsel objected.)

We think it plain that this inquiry was relevant to the third defense; and, as to that defense, this Court have, at a General Term, held by five Judges, fully expressed their opinion, as follows : (Then follows the opinion which has since been reported in 1 Bosw., 207.)

As the proof was clear that Nathan was the plaintiff’s agent, we think what he said at the time of making the written contracts may be received as evidence going to show whether or not these were gambling contracts and void by the statute. There are many contracts, good on their face, which may be rendered void or voidable by parol evidence; such as a bond or note which is usurious, or given for a gaming debt, or for any illegal consideration, or by an infant, &c.

We think the judgment should be reversed, and a new trial granted, with costs to abide the event

Ordered accordingly.


author: By the Court— Hoffman, J.

text:
    Henry Carolus, Administrator, &c., of Charles D. Bibelga, deceased, Plaintiff and Appellant, v. The Mayor, &c., of the City of New York, Defendants and Respondents.
    1. While the Corporation of the city of New York were engaged (by a contractor employed for that purpose) m regulating and grading one of the avenues in the upper part of the island already in úse as a highway, and had erected across a valley a narrow embankment to sustain the Croton water-pipes in the center of the avenue, and thereby reduced the carriage-
    ■ way to the width of a few feet, a foot-passenger, instead of keeping in the carriageway, attempted to pass along the narrow embankment, and fell, and was so injured that he died: Held, that the Corporation were not responsible for the injury.
    2. The fact that other persons used the top of this embankment as a footpath does not .affect the question, when it appears it was not erected for that purpose nor intended to be used as a foot-path and was dangerous, and the carriageway could be used with but slight inconvenience.
    3. While making lawful public improvements in the streets or highways, the Corporation are not responsible for an injury sustained through the heedless neglect of ordinary care by a traveler or passenger.
    (Before Bosworth, Ch. J., and Hoffman and Moncrief, J. J.)
    Heard, December 8th, 1859;
    decided, January 7th, 1860.

      This action was "brought by the plaintiff, as administrator of the goods, chattels, &c., of one Charles D. Bibelga, to recover damages, (by virtue of the statute authorizing the administrator, in such case, to maintain an action,) by reason of an injury received by the intestate, when walking along the Eighth avenue, in the city of New York, from falling off an embankment, which injury caused his immediate death. The complaint charged that it was the duty of the defendants to keep the said avenue in repair, and in good order and condition, as a public highway; that they, on the contrary, caused high embankments and dangerous precipices to be built therein, rendering travel thereon extremely dangerous to persons lawfully traveling thereon; and that the intestate, while so traveling, was, without any fault or neglect on his part, thrown, precipitated and fell from one of said dangerous precipices about thirty feet upon rocks, stones and water, whereby he was so bruised, mangled and crushed, that he immediately died of said wounds.
    The Eighth avenue, according to the plan according to which, the island above the settled portion of the city is laid out for future improvement, extends northerly to the Harlem river, and although not graded, it has been an open traveled highway for twenty years past. It is, according to the said plan, intended to be one hundred feet wide, as used, worked and macadamized, it was much narrower, it had a carriage path only, and its surface conformed in general to the uneven face of the country through which it passed. From the point where 74th street ( according to the plan of the city) will,- when opened, cross the avenue, to that where 79th will cross it, is very low ground, and the carriageway had been built up, and embanked by a stone wall ten or fifteen feet above the natural surface of the ground.
    In 1854, the defendants determined to grade the avenue, from 59th to 86th street, leveling elevations and filling in depressions, so as to make the avenue conform to a permanent grade designated on a profile, which was placed on file,— and in this grading to make the avenue of its full width, (100 feet,) with carriageway and sidewalks on the proper level; and for that purpose entered into a contract with one Fredericks to do the work, the contractor agreeing to leave a passable carriageway during the regulating of the said avenue. The new grade was at the low ground above-mentioned, nearly thirty feet above the natural surface of the ground.
    During the progress of the work, it was desired to lay the Croton water pipes along the avenue for the distribution of water, an embankment was raised at or about the center of the avenue, across the low ground aforesaid, of width barely sufficient to sustain the pipes, and of a height nearly equal to the new grade, and the pipes being laid, earth was thrown thereon about three feet in width at the top, and this embankment was sustained by a stone wall nearly perpendicular on the west side thereof About midway and in the center of the embankment, at the top, was placed a pipe (or man-hole) from the pipes below, extending up a few feet above the top and to the line of the permanent grade, to furnish means of access to the pipes after the avenue should be finished, and the earth was extended so that the top of the embankment was there a little wider than elsewhere.
    On the erection of this embankment, the carriageway, which was, to a great extent, occupied thereby, was turned to the east, and was only about nine or ten feet wide, so that travelers in vehicles, on reaching this valley, turned a little towards the east side of the avenue, and kept along up the level of the old, macadamized road until the valley was passed.
    But persons on foot were in the habit of walking on or over the Croton water pipes, on the narrow top of the embankment.
    There was no pretense that the embankment was constructed for a foot-path, but only to sustain the pipes, and the pipes were covered with earth, not in order to make a foot-path thereon, but only to protect the pipes themselves, until the grading of the avenue should be completed; foot travelers were, nevertheless, wont to use this embankment as a foot-path, it being much less convenient to descend and keep the carriageway, especially, because it was very narrow and muddy.
    This was the condition of the avenue, in October, 1857, when on the Sabbath (October 4th) the plaintiff’s intestate, (a cigar maker,) who lived in the eastern part of the city, near the corner of Avenue A and Eighteenth street, visited, as he had often before, a grocery, at the corner of Eighty-Sixth street and the Eighth avenue, to sell cigars, and also visited certain gardens in the vicinity; he remained until'about nine o’clock at night, and' then, in company with an acquaintance, started to come to the city, walking down the Eighth avenue; when they reached the embankment referred to, they continued along the center of the avenue, on the top of the embankment, and, in attempting to pass around'the man-hole, the intestate fell off the embankment, among stones and water at the bottom, and was killed. Eighty-Sixth street was an open traveled street, and through that and the Bloomingdale road or through the Third avenue there were other ways of returning to the city entirely free from obstruction.
    Upon facts substantially as above proved, without contradiction, at the trial, which was had before Mr. Justice Slossom, on the 25th of May, 1859, the complaint was dismissed. The plaintiff1 appealed to the General Term.

      J. W. Gilbert., for plaintiff (appellant).
    I. The defendant is clearly liable, unless the deceased negligently exposed himself to the injury which destroyed his life. This liability results—
    1. From the positive act of the defendant in causing the erection of the embankment, and leaving it at night without a light or anything to warn a passer of the danger, thereby creating a nuisance. (16 N. Y. R., 172, note.)
    2. From the implied contract on its part to keep the streets of the city in repair, and in a safe condition. (Furze v. The Mayor, 3 Hill, 612; 16 N. Y. R., supra; Rochester W. L. Co. v. The City of Rochester, 3 Comst., 464; Hutson v. The Mayor, 5 Seld., 163; Lloyd v. The Mayor, 1 id., 369; City of Buffalo v. Holloway, 3 id., 493; Storrs v. The City of Utica, 17 N. Y. R., 104.)
    3. From the fact that it provided the erection in question as a means of passage, and invited the public to use it, although it was unsafe.
    It needs no argument to prove that such an erection is a nuisance. It is so because it detracts from the safety of the public. (Dygert v. Schenck, 23 Wend., 446; Clark v. Kirwan, 4 E. D. Smith, 23; Congreve v. Smith, 18 N. Y. R., 79, 84; 16 id., 172.)
    And a corporation is no more exempt from liability in case it creates a nuisance, either public or private, than are individuals. (16 N. Y. R., 172, and cases, supra.)

      Nor can there be a doubt that, although the Corporation had the right to grade and improve the street, and to lay down the pipes, yet whenever it assumes to exercise its corporate powers, it is bound to see that due care and caution are used, to avoid injury to individuals. (Cases, supra.)

    II. The liability above stated remains unaffected by the circumstance that the work was let out by contract. (Hickok v. Plattsburgh, 16 N. Y. R., 161; Storrs v. Utica, 17 id., 104.)
    III. The Croton Aqueduct Board are the agents of the corporation, and the latter is liable for their acts and negligence.

      (Bailey v. The Mayor, 3 Hill, 531; S. C., in Court of Errors, 2 Denio, 433.)
    IV. No question as to the negligence of the deceased can properly arise upon the evidence in this case.
    1. It was argued at the trial, and so ruled by the court, that the deceased was negligent in using the causeway instead of the narrow road below. The answer to this is threefold:

      (a.) There is no proof that the deceased knew of the existence of this road, or that he was ever on the spot before.
    (b.) It was clearly proved that deceased trod the beaten track, and in doing so was led directly upon the causeway.
    (c.) The entrance to the narrow road was shut off from view, by a pile of stones, and no guide to it had been provided, nor had any precaution been taken to warn passers of .the danger of the. causeway. And the accident happened at night.
    2. The evidence shows that the causeway had been used by foot-passengers for a long time, and was kept in order for that purpose, by the corporate authorities.
    3. The narrow road was not of sufficient width to allow of its being safely used by foot-passengers.
    4. No adequate cause for the accident appears, other than the dangerous character of the causeway, and the neglect of the Corporation to provide safe means of transit, or to warn passers of the danger before them. This negligence, on the part of the defendant, and all the circumstances of the accident, therefore, excluded the idea of a want of due care on the part of the deceased, and prima facie established the plaintiff’s right to recover. (Button v. Hudson River Railroad Co., 81 N. Y. R., 248: and cases cited.)

      V. In any view, the questions of negligence should have been submitted to the jury, and the court, therefore, erred in directing a nonsuit.
    VI. The fact that the accident occurred on Sunday constitutes no defense.
    1. The deceased was not in the violation of any of the prohibitions of the statute. (1 R. S., 675.)

      (a.) He was not “ traveling,” in the sense in which the term is used in the statute. The word evidently means the going from one town or city to another. Such was the case, 10 Metcalf, 363. The deceased was going home, after a visit to a friend. The legislature, certainly, never intended to prohibit the visit or the return.
    2. Nor is it material that he had a short time before sold some cigars.
    (a.) Such a sale is not prohibited. (Boynton v. Page, 13 Wend., 425.)

      (b.) If it were it would work no disfranchisement.
    3. In any view it is no answer to the action. (Mohney v. Cook, 26 Penn., 349; Abraham v. Staten Island Ferry Co., MS.; Norris v. Litchfield, 35 N. H., 271.)
    The case in 10 Metcalf may be reconciled, upon the principle of the non-liability of town officers. (Hutson v. The Mayor, 5 Sand., 289; 16 N. Y. R., supra.)

      G. Dean, for the defendants (respondents).
    I. The complaint was properly dismissed, because the deceased was himself guilty of negligence, which contributed to the accident which resulted in his death.
    1. The place on which he attempted to walk was not constructed for the purpose of a passage-way or road.
    2. Of this fact he had notice:
    Eirst, by the character of the embankment itself, twenty-five feet high, perpendicular, stones below.
    Second, by the iron pipes on which he had to walk, to get to the place where he fell.
    Third, by what is called the man-hole, elevated in the center of the aqueduct, and in attempting to pass which the accident occurred.

      Fourth, by a pile of stones placed in front of the carriageway at Eighty-Second street.
    3. The defendants had constructed a place for deceased to walk, viz., the carriageway, and on which he could have traveled safely. If he chose to take the embankment instead of the road, he did so at his peril and in his own wrong.
    4. The notice of the character of the place on which he was walking was continued at every step, and it is shown that, on account of his prior visits to the neighborhood, he was not a stranger to the locality.
    II. The facts being undisputed, there was no'question to be left to the jury. These facts raised a question of law for the Court only; and the requests of plaintiff’s counsel to submit to the jury any of the questions, were properly denied. (Pratt v. Hull, 13 John., 334; Stewart v. Simpson, 1 Wend., 376; Jansen v. Acker, 23 id., 480; Rudd v. Davis, 3 Hill, 287.)
    1. Dismissing complaint is equivalent to a nonsuit. (2 Duer, 50; 6 How., 218.)
    HI. The complaint was properly dismissed, because the death of deceased was caused by his own violations of the laws of the State then in force for the “prevention and punishment of immorality and disorderly practices.” (R. S., part 1, tit 8, ch. 20.)
    This statute makes it unlawful for any person to expose for sale any wares or merchandise on Sunday. This deceased had violated, and was returning home with the wages of his sin upon him.
    The same article makes it unlawful for any person to frequent a tippling-house on Sunday; this deceased had done, and had tarried hours at the bar of an unlicensed grocery, and the accident which followed is the legitimate penalty of such practices.
    The same article makes it unlawful for “ any person to travel on Sunday, unless in cases of charity or necessity, or in going to or returning from some church or place of worship.”
    There is no pretense that deceased was within any of the exceptions of the statute; this being the fact, the plaintiff who represents him has no right to invoke the aid of a court of law for any loss or injury sustained by the deceased while violating the law.

      1. This rule has been applied to a statute identical with our own, in Massachusetts.
    2. The same principle prevents a person engaged in an illegal vocation from maintaining an action for libel, on account of a publication in reference to his conduct in that vocation. (Hurst v. Bell, 1 Bing., 1; Yrissari v. Clement, 3 id., 432; Starkie on Slander, vol. 2, p. 87.)
    3. It is this principle which is recognized in the maxim, so often quoted, that a plaintiff must come into court with “ clean hands.”
    IV. There is no pretense for saying that the laws for the observance of Sunday are obsolete. On the contrary, our written constitution reenacts the legislative provisions then in existence, and recognizes the “ right and necessity of prohibiting acts of licentiousness, and justifying practices inconsistent with the peace and safety of the State.” (Art. I., §§3, 17.)
    1. Not only have the Legislature the right, but it is its duty, to provide laws for the observance of the Christian Sabbath.
    2. The courts are bound to enforce these laws, by applying to persons who suffer loss in violating them, the principles applicable to other violators of law, not only the statute penalties, when suits are brought against them, but a denial of redress, when injuries result to offenders from such violation. (8 J. R., 290; 11 Serg. & R., 394, 403, 405.)
   By the Court— Hoffman, J.

The intestate came to his death by heedlessly using as a path, an embankment of about two or three feet in width, raised by the contractors for regulating the Eighth avenue; never intended, designated, or by any implication used or authorized to be used as a foot-path, by the defendants,- or any one under them. It is shown that the carriageway, which he could have used, was no. more than inconvenient; no risk was encountered by pursuing it, which very slight care would not avoid: none, it seems, could occur, except in meeting carriages. It was from nine to twelve feet wide. There were other safe and not inconvenient modes of getting to his house. (18 N. Y. R., 427.)

We think the dismissal of the complaint was right, and the judgment should be affirmed, with, costs.

. Ordered accordingly. -


text:
    John Rodi, Plaintiff and Appellant, v. The President, &c., of the Rutgers Fire Insurance Company, Defendants and Respondents.
    1. In an action upon a policy of insurance against loss or damage by fire, to the goods of the plaintiff, contained in certain described premises, a complaint setting out the substance of the policy and averring that the plaintiff, within the term of the insurance, 11 did sustain loss to the amount of $231.08, by reason of a fire taking place in the cellar of the said premises above mentioned,” does not state facts sufficient to constitute a cause of action.
    2. In such case the complaint should state that the goods which were insured were injured or destroyed by fire; otherwise non constat, but the loss sustained by the plaintiff was by injury to the building or to other property which was not embraced within or covered by the insurance.
    ( Before Bosworth, Ch. J., and Hoffman and Moncrief, J. J.)
    Heard, December 15th, 1859;
    decided, January 7th, 1860.
    This is an appeal from an order, made at Special Term, before Duer, J., February 28, 1857, sustaining the defendant’s demurrer to the complaint, and ordering judgment unless the plaintiff amend, &c.
    The complaint sets forth the making and delivery of a policy by the defendants, whereby they insured and agreed with the plaintiff that they “ would pay and make good to him any loss or damage which he might sustain by fire, (within one year from the date thereof,) of any of his goods and chattels, consisting of bar and household furniture,” &c., &c.; and which were contained in the first story and basement of the four story brick tenement-house 58, Avenue A, in the city of New York.
    . And the complaint then averred “ that the said plaintiff did sustain loss, within the year for which he was insured, to the amount of $231.08; and, on the 3d day of November, 1854, by reason of a fire taking place in the cellar of the said premises above-mentioned.” Notice and proofs of loss were served, &c., &c.
    To this complaint the defendants demurred, assigning as cause of demurrer, among other particular specifications, “ that the said complaint does not state facts sufficient to constitute a cause of action.”

      George Carpenter, for the plaintiff (appellant).

      C. A. Nichols, for the defendants (respondents).
   By the Court—Hoffman, J.

The Code requires that a complaint shall contain a plain and concise statement of the facts constituting a cause of action, without unnecessary repetition. (Code, § 142.)

It should at least comprise a statement of all the facts which, being proved or admitted, are essential to entitle the plaintiff to recover on the case he makes. The statement should be such that upon the face thereof assuming it to be true, the law alone (without the aid of a jury) draws a necessary conclusion that a cause of action exists in favor of the plaintiff, unless the defendant can avoid such conclusion by some new facts. (Page v. Boyd, 11 How. Pr. R., 415.)

The present complaint is palpably defective in the omission to state that the goods and chattels, which were insured, were lost, injured or damaged, by the fire. It is quite immaterial to any question between the plaintiff and these defendants whether he sustained any loss or how much loss he sustained by reason of a fire taking place in the cellar, unless the goods of the plaintiff mentioned in the policy, or some of them, were destroyed or injured.

As the plaintiff does not state how he sustained loss or in what the loss consisted, non constat, but the loss which he states was by injury to the building. The subject of the insurance was the goods and chattels of the plaintiff; and it is not averred that any goods or chattels of the plaintiff were destroyed or injured; and, therefore, no loss is shown which is covered by the policy, and no cause of action against the defendants appears.

Among the precedents in Abbott’s Pleadings and Forms (p. 186) is the form of a complaint upon a fire policy, which will, I think, afford a safe guide to the pleader. The order appealed from should be affirmed.

Order affirmed, with costs.