text:
    LEO SCHLESINGER, and Another, Appellants v. THE SPRINGFIELD FIRE AND MARINE INSURANCE COMPANY, Respondent.

      New trial — Court not bound to grant merely because both parties move for it; where the court refuses to grant a motion of one party for a new trial although the other party consented thereto, the consenting parly is not aggrieved by thé denial of the motion, and the order of denial is not appealable from by him—Uncontradicted evidence, what not to be considered such, although there is no direct affirmative evidence offered—Result of calculations, evidence of, when inadmissible—Questions put to a witness on cross-examination tending to elicit evidence bearing upon his direct evidence on a material matter are properly allowed; the rule that a witness cannot be cross-examined as to immaterial facts unless such fads tend to an impeachment of the witness’ credibility generally as a witness, has no application to such a case—Non-acceptance by one party of a proposition made by the other for a view'of premises by the jury, effect of.

    Plaintiffs moved for a new trial on the exceptions taken by them, for insufficiency of damages and because the verdict was contrary to the evidence and contrary to law; the defendant also moved for a new trial upon the exceptions taken on its behalf, for excessivenes's of damages and because the verdict was contrary to the evidence and contrary to law. Both motions were denied. The order on defendant’s motion recited that plaintiffs consented in open court that it be granted. Held, that the court was not bound to grant a new trial by the mere fact that both parties moved for it; also that the denial of defendant’s motion was not a subject of complaint by plaintiffs, and the order entered thereon was not appealable from by them.
    One of the questions involved was as to the quantity and value of goods destroyed by a fire. The most important witnesses for plaintiffs on this subject were one of the plaintiffs and men who had been and were at the time of the trial in the employ of the plaintiffs. These employees made the documents on which plaintiffs’ case in part (that is as to the goods on hand at the time of the fire) rested. These documents were not made according to the usual business methods. Defendant introduced no direct proof as to the quantity and value of the goods destroyed. There was, however, much evidence pro and con as to the quantity of the mass of debris remaining after the fire apart from goods capable of identification and as to its constituents. Held, that the jury was not bound to find the witnesses on behalf of plaintiffs or any one of them to be credible or exact; that it was for them to say whether the documents were correctly or exactly made; that under the evidence the jury were at liberty to find that there was not on hand at the time of the fire as many goods as the witnesses for the plaintiffs had testified to by a practically certain amount; and as a result that there was not uncontradicted evidence which entitled plaintiffs to recover a larger sum than the amount of the verdict.
    One of the plaintiffs was asked “What was the amount of loss and damage sustained by the plaintiffs by reason of the fire ? ” Held, inadmissible as calling for the result of a calculation based on such facts as the witness might consider proper for that purpose.
    One of the plaintiffs was asked on cross-examination how many other fires he had had. He had testified on the direct that he had had experience in judging what was indicated by refuse after fires. Held, that the question was proper as calling for evidence tending to show that his experience was acquired under circumstances which would affect his power to judge impartially.
    In the course of the trial plaintiffs proposed that the jurors go uptown and inspect the entire remains of the fire. The defendant said nothing to the proposition. Held, that no inference or opinion whatever was thereby created in favor of the calculations and claims of the plaintiffs, and that a charge to that effect was correct.
    Before Sedgwick, Oh. J., and O’G-obman, J.

      Decided May 5, 1890.
    Appeal by plaintiffs from judgment entered upon verdict for plaintiffs, and from order denying plaintiffs’ motion for a new trial, and from an order denying defendant’s motion for a new trial, which latter order recited that plaintiffs consented to the granting of the motion.
    The facts sufficiently appear in the opinion.

      Benno Loewy, attorney and of counsel, and Frederick B. Coudert of counsel, for appellant, argued :—
    I. The damages assessed by the jury are inadequate, and the verdict for the amount rendered is against all the evidence in the case.
    II. There is nothing whatever in the case to support the verdict for the amount rendered.

      (in support of these points, counsel submitted an able and elaborate analysis of the evidence.)
    III. The plaintiffs’ witnesses being unimpeached and not contradicted by any witness, but being corroborated by some of the defendant’s witnesses, and by all the facts and circumstances in the case, and the verdict being against all the evidence, and having no support in any evidence the motion of the plaintiffs for a new trial on the minutes should have been granted. Newton v. Pope 1 Cow. 109 ; Lomer v. Meeker, 25 N. Y. 361; Ellwood v. Western Union Telegraph Co., 45 lb. 549 (553) ; Hodges v. The City of Buffalo, 1 Abb. N. C. 356 (360) ; Halpin v. Third Avenue Railroad Company, 40 N. Y. Superior Court, 175 ; Clark v. Mechanics’ National Bank, 8 Daly, 481; Desh v. Barnes, 13 Weekly Dig. 251.
    IY. Again, the verdict is wholly inconsistent—it should have been either for the defendant, or for the full amount of two thousand dollars—it should therefore have been set aside. McDonald v. Walter, 40 N. Y. 551; Platz v. City of Cohoes, 8 Abb. N. C. 392; McKeever v. Weyer, 11 Weekly Dig. 258 ; Sternfeld v. Park Fire Ins. Co., 50 Hun, 262.
    Y. But independent of the foregoing reasons, the verdict should have been set aside because of errors made by the court on the trial and in the charge to the jury, (a.) Mr. Schlesinger, when on the stand, was asked on his direct examination to state what was the amount of loss and damage sustained by his firm by reason of the fire. This question was overruled on the ground that it called for a conclusion of law ; and the plaintiff duly excepted to this ruling. This ruling was erroneous. The question did not involve the opinion of the witness, nor did it call for him to deduce any conclusions of law ; but it was simply for him to state a fact within his own knowledge. The evidence was admissible under the following authorities. Sweet v. Tuttle, 14 N. Y.
      465 ; De Witt v. Barley, 17 lb. 340 ; Clark v. Baird, 9 lb., 184 ; Robertson v. Knapp, 35 lb. 91 ; De Wolf v. Williams, 69 lb. 621. (b.) On his cross-examination Mr. Schlesinger was asked how many other fires he had had. This question was allowed by the court, although objected to by the plaintiffs, and the plaintiffs duly excepted. This was also error. It is a general rule of evidence, that a witness on cross-examination cannot be cross-examined as to immaterial facts, unless such facts tend to discredit him or his testimony. 1st Greenleaf on Evidence, § 458 ; Kober v. Miller, 38 Hun, 184 ; Ryan v. People, 79 N. Y. 593 ; People v. Irving, 95 lb. 544. Counsel in asking this question could have had but one object, namely : to prejudice the jury against Mr. Schlesinger by showing the fact that he had had other fires. (c.) The court charged the jury, as requested by defendants’ counsel, that “ the objection of the defendant to the jurors going uptown to inspect the entire remains of the fire, does not create any inference or opinion whatever in favor of the calculations and claim of the plaintiffs in this case.” This offer of the plaintiffs was, as is evident, made in perfect good faith. The main point in controversy was the character and amount of this debris ; testimony was offered by both sides on ' this question. The jury, it is manifest, could have been better able to decide such question if they had been allowed to inspect this debris. While the offer of the plaintiffs and its rejection by the defendant was not conclusive, still the fact that the plaintiffs made it and the defendant rejected it was a circumstance in the case, and a circumstance which the jury should have considered, and from which they would have been justified in drawing some' inference favorable to the plaintiffs. The making of it certainly tended to show that the plaintiffs believed they were right in claiming the amount they did. This portion of the charge was liable to mislead the jury, and from all that appears it actually did mislead them, for had ’ the jury seen the 110-120 cases and 50-60 barrels full of this debris, they would not have jumped at the conclusion that it was worth only $3,000.
    VI. A .motion for a new trial having been made by both the plaintiffs and the defendant, a new trial should have been granted. When a motion is made by one party and consented to by the other it is the duty of the court to grant the application, unless such motion asks something illegal or manifestly opposed to public policy. A new trial in an action involving the amount of the present one is not opposed to public policy. Courts of justice sit for the administration of justice, and when respectable counsel 'for both plaintiff and defendant unite in the opinion that justice has not been done, the court should respect that opinion. A new trial should, therefore, have been granted to one party or the other. Both moved for this, and the court denied both motions.

      Robinson, Scribner & Bright, attorneys, and Osborne E. Bright of counsel, for respondent, submitted a brief on the facts.
   By the Court.—Sedgwick, Ch. J.

The ground of plaintiffs’ dissatisfaction with the verdict is that, by the uncontradicted evidence in the case, the plaintiffs were entitled to recover a larger sum, than the amount of the verdict.

The plaintiffs claim, as a matter of right, that the judge below should have granted a motion for a new trial because both parties moved for a new trial.

The motions were several and also the orders respectively. The order on the defendant’s motion declares that the plaintiffs consented to the granting of that motion. Although the judge refused to consider himself obliged to grant the order, this is not a subject of complaint by the plaintiffs. If it is assumed that defendant might claim a right to have the. new trial granted, he has not appealed and the plaintiffs did not make the motion then denied. The order denying the plaintiffs’ motion does not appear to have been made after the defendant had consented to a granting of the motion. Indeed the proceedings on the trial show that there was no such consent. Each party made a motion, but each did not consent that the motion by the other should be granted. I therefore think that the plaintiffs were not entitled to a new trial on the ground that has been examined.

As to the position that the evidence taken altogether shows that the plaintiffs’ loss and damage was greater than the amount assessed by the jury, I am of opinion that it is not valid. There was not a witness whose testimony the jury was bound to find to be credible or exact. The most important witnesses for the plaintiffs were one of the plaintiffs and men who had been in the employment of the plaintiffs, These servants were at the time of the trial employed by the plaintiffs. They had made the documents on which the plaintiffs’ case in part rested. Whether they had made them correctly or exactly was for the jury to say. The documents were not made according to the usual methods of business. The plaintiffs’ book contained no merchandise account. Instead of proving the amount of merchandise on hand at the time of the fire, by the production of the ordinary books of account, the plaintiffs produced a carelessly made, so far as form is concerned, inventory of goods on hand made in the January before the fire, which was in the month of July, and to show the changes of the stock in the meantime, numerous slips of paper made by the plaintiffs’ clerks, were, put in evidence. The slips that were of a white color contained, as plaintiffs claimed, statements of goods sent into the basement where the fire occurred. Slips of a yellow color contained, as claimed by plaintiffs, statements of the goods sent out of the basement. The jury was not bound to say, upon these facts and others that appeared, that the oral testimony or the documents in evidence incontrovertably showed the amount claimed by the plaintiffs as loss and damage, was correct.

But it is suggested for the plaintiffs that if the jury. rejected the testimony in favor of plaintiffs as incredible, there was no testimony which could have shown to.the jury what the actual loss was. I think that this overlooks the significance the . jury were entitled to give to the facts that concerned the mass that remained after the fire apart from the goods that might be identified for the purpose of the appraisement that was made. The jury had to consider the size of the piles of refuse as bearing upon the probable quantity of the goods subjected to the fire. The plaintiffs had gone into this matter and their witnesses had described the quantity of the refuse. There was opposing testimony as to this, and as to the constituents of the refuse. If the jury’s opinion was favorable to the defendant, they could find that, in consideration of their judgment as to what was really proved by the other evidence, the testimony as to the refuse showed that there was not on hand before the fire as many goods as the witnesses for plaintiffs had testified there were, by a practically certain amount. I am of opinion that there should not be a new trial on this ground.

I agree with the court below that the plaintiff who appeared as a witness could not be allowed to answer the question “ what was the amount of loss and damage sustained by the plaintiffs by reason of the fire.’’ This would have been the result of a calculation upon such facts as the witness chose to consider the proper facts to show the loss or damages, and therefore was inadmissible. For instance, he might have supposed that he should consider the facts he testified to and the documents in the case as furnishing indubitable data in estimating the loss.

The court allowed defendant’s counsel to ask of the plaintiff, how many other fires he had had ? If the question did not call for anythingbut an impeachment of the witness’s credibility generally as a witness, it may be assumed that the court should have overruled the question. But the witness had in his direct examination testified that he had had experience in judging what was indicated by refuse after fires as to the amount of goods represented by the refuse. It was, therefore, competent to show that such experience had been acquired in part by facts connected with fires in which he had an interest that would affect his power to judge impartially.

The defendant asked the court to charge that the objection of the defendant to the jurors going, uptown to inspect the entire remains of the fire, does not create any inference or opinion whatever in favor of the calculations and claims of the plaintiffs in this case. -The court made the charge and the plaintiffs excepted to it.

In the course of the trial the objection referred to in the charge had been made, or rather the plaintiffs made the proposition, adding “if the defendant consent.” The only refusal was made by the defendant saying nothing.

I am of opinion that the charge was correct. The defendant was not open to being charged with an apprehension that the inspection by the jury would result unfavorably to it until after it was determined that the defendant was bound to believe or did believe that the mass of the refuse at the time of the inspection would be the same in kind and quantity that it was after the fire. The defendant was not bound to have such a belief. But on general principles I think the defendant was not called to assist the plaintiffs in making evidence for themselves and then being held to explain, why they did not assist.

The judgment and order are affirmed with costs.

O’Gorman, J., concurred.


source: Caselaw Access Project

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

license: Public Domain

text:
    CHARLES NORTHRUP v. ALFRED H. SMITH. In Re. Petition of WILLIAM A. HARDING to have above action continued in his name as Plaintiff. ALFRED H. SMITH, Appellant, WILLIAM A. HARDING, Respondent.

      Revivor, meaning of “successor in interest” in Section 751 Code Civil Procedure—Petition for order of revivor, insufficiency of—Expedient rule to require notice to be given to administrator or executor.

    The words “ successor in interest ” in section 757 Code Civil Procedure, refer only to the possessor of an interest which commences, or as to the right of enjoyment depends, upon the fact of a death occurring.
    A petition for a revivor which simply sets forth that the cause of action was duly assigned by an administrator or executor by an instrument duly executed and acknowledged is insufficient. The assignment itself should be set forth.
    It is an expedient rule to require notice of a motion to be given to any party who may be affected by the granting of the motion; especially in the case of a motion by one claiming to be the assignee of an administrator or executor for an order of revivor should notice be given to the administrator or executor.
    Before Sedgwick, Ch. J., and Freedman, J.

      Decided May 5, 1890.

      Appeal by defendant from order granted upon the petition and affidavits, that William A. Harding be substituted as plaintiff. The facts sufficiently appear in the opinion.

      Thornton, Earle & Kiendl, attorneys, and Charles M. Earle of counsel, for appellant, argued:—
    I. The motion is made under § 757 of the Code. That section provides for the substitution of a representative or successor in interest, in case of death, as distinguished from a transfer of interest. Here the petitions both rely on a transfer of interest. Rogers v. Adriance, 22 How. 97.
    II. The papers do not show a plain prima facie state of facts sufficient to sustain the application, whether it be under § 756 or under § 757. The new papers set forth no facts, but only allegations of devolution of title. They should make out, by appropriate facts, a clear prima facie case, and this for two reasons : 1st. Because the order here, and the papers on which it is based, are admissible on the trial to prove the transfer of interest. Smith v. Zalinski, 26 Hun, 225. That was a case of foreclosure, and after the commencement of the action the plain tiff made an assignment; thereafter the assignee was substituted as plaintiff by order. On the trial the plaintiff introduced the motion papers in evidence, against defendant’s objection and exception, as proving transfer of the bond and mortgage, and title and ownership in plaintiff, and it was held sufficient, and defendant’s exception was overruled. It was held that his remedy was to oppose the motion to substitute or seek relief by a new motion, and the court also said he might, if he could, give evidence to disprove the plaintiff’s title. But this, of course, throws the burden of proof on the defendant, making this order of itself enough to establish the plaintiff’s prima facie case as to title. Under such circumstances is it not just that plaintiff should do more than merely allege, as in a pleading, “ that the cause of action was duly “ assigned by the administratrix * * * to one “ John Pierce, who thereafter transferred,” etc. If this proceeding is to take the place of proof, it should itself partake of the nature of proof. 2d. Because the authorities hold that the plaintiff must make out a clear case of ownership. This proceeding is the modern substitute for the writ of scire facias,and in that proceeding it was necessary for those applying to be made plaintiffs to show that they had succeeded to the original plaintiff’s title. Boynton v. Hoyt, 1 Den. 53 (see p. 57 middle). Since the Code the rulings have been the same. St. John v. Croel, 10 How. 253 ; See also St. John v. West, 4 How. 329 (at p. 334) ; Smith v. Zalinski, 26 Hun, 227. In this case there is the more reason to insist on this rule, because there is no copy given in the papers of an assignment from the administratrix to Pierce, nor from him to plaintiff, nor any statement of consideration for the transfer from the administratrix, nor of application by her to the Surrogate for leave to transfer. It is hence perfectly fair to conclude that the transfer was without consideration. But then it would be a devastavit, and void. Williams on Exrs. 840, 841, 842 ; Colt v. Lasnier, 9 Cow. 320 ; Sacia v. Berthond, 17 Barb. 15.
    III. In any event, and whether plaintiff relies on an assignment from Mr. Northrop or from his administratrix, there should have been notice to her, and she should have been made a party to this proceeding, so as to estop her by record from denying petitioner’s title. Where a plaintiff has, pending an action, transferred his interest and died, his assignee after his death must move to be substituted as plaintiff, and must give notice to the defendant and to the personal representatives of the deceased plaintiff. McLoughlin v. Mayor, etc., 8 Weekly Dig. 560; 8 Daly, 474.

      Harriman & Fessenden, attorneys and of counsel, for respondent, argued :—
    I. The facts in the petition brought the application within the section, if they were true, and they were not denied. McLachlin v. Brett, 2 Civil Procedure Reps. 194 ; 34 Hun, 478 ; 105 N. Y. 391.
    II. The judge at special term had the right to compel the applicant to give notice of the motion to the representative if he was not satisfied with the proof of devolution of interest ; but if he was satisfied he could properly grant the application and leave the question of the devolution of interest to the defence of the action. The appellant is not injured by not having the representatives of plaintiff in court on the application, because any objection which could have been made by the representatives are available to appellant by way of defence. Defendant can deny the allegations of the complaint in respect to the transfer of the cause of action. He can by law compel plaintiff to give him an inspection of the assignments of the cause of action mentioned in the proposed complaint - and in the petition ; he can examine plaintiff and the administrator before trial, and can ascertain fully all the facts bearing on the actual ownership by Harding of the cause of action. The judge at special term had the discretion to leave appellant to this, and his exercise of it is no ground for reversal of the order of substitution. Schlecter v. Saw Mill Co., 35 Hun, 339.
   By the Court.—Sedgwick, Ch. J.

The decision below involved the construction of section 757 Code Civil Procedure. The section is, that in case of the death of a sole plaintiff or sole defendant if the cause of action survives or continues, the court must, upon a motion, allow or compel the action to be continued by or against his representative or successor in interest. The question is, what is the meaning of “ successor in interest.”

I am of opinion that the words refer to the possessor of an interest which, apart from the right to the interest, however' that may be created, commences, or as to the right of enjoyment depends, upon the fact of the death occurring. And they do not refer to an interest gained by transfer from the party by assignment which transfers the interest before the party’s death.

So far as the petitioner rested his motion upon the assignment by the plaintiff in his life time, the motion should have been denied irrespective of the consideration that the transfer assigned the judgment only, which has since been reversed upon appeal.

The petitioner also claimed under an assignment made- by the administratrix of the plaintiff. The proofs on this subject were insufficient. The petition, and there was no other proof on the subject, averred that since the death of Northrup, letters of administration have been taken out on his estate, and the cause of action set up in the complaint was duly assigned by the administratrix by an instrument duly executed and acknowledged to one Pierce, who thereafter transferred and assigned the same to your petitioner. These are not statements of facts but results of opinion or inference from the relevant facts. The expediency of requiring facts to be given is illustrated in this case. The assignment by the plaintiff in his life time, is of the judgment only. Whether this embraces an assignment of the cause of action is a matter of law. But it is necessary for the court to have the assignments made after the death put in evidence, so that it may judge, and not the petitioner, whether they had the efficacy the petitioner gives to them by way of opinion or inference. I am of opinion the motion should have been denied.

The decision here may be made without giving as one of its grounds that there should have been notice of motion to the administratrix of the plaintiff. Nevertheless, it may be said that it is a most expedient rule to require notice of motion to any party that may be affected by a granting of the motion, and especially in such a case as this where- the party to be affected is a party that apparently has a right to continue the action. That- administratrix would have a right to apply to continue the action and would not be bound by the decision of the motion here.

I think the order should be reversed with ten dollars costs, and the motion below denied with ten dollars costs.

Freedman, J., concurred.


author: By the Court.—Freedman, J.

text:
    HENRY G. VOLKMAR, Appellant v. THE MANHATTAN RAILWAY COMPANY, Respondent.

      Negligence, Damages for personal injuries caused thereby.

    This action was brought to recover damages for injuries caused by an iron plate or clip falling upon the plaintiff from the railroad structure of defendant. The plaintiff proved the falling of the plate or clip while he was riding under the structure, and then rested. A motion to dismiss the complaint at this stage of the trial was denied an"d properly so, because the fall of the plate or clip in the absence of explanation, raised the presumption of negligence. The evidence given by the defendant was full and circumstantial and sufficient to 3 overthrow this presumption of negligence, and the burden thereafter rested upon the plaintiff to show that the defendant, in the exercise of due care, was bound to do, or omit to do, something else, by which the accident would have been averted. The plaintiff gave no such additional proof.

      Held, that it was in the nature of things, impossible for defendant to prove more, and it was incumbent upon plaintiff, by evidence, to point out the specific action which constituted the negligence, especially in view of the fact that he had carried off the bolt, the breaking of which caused the injury, and failed to produce it on the trial. In the absence of such evidence, a verdict was properly directed for the defendant.
    As the case was left, the occurrence came within the category of accidents that sometimes happen notwithstanding the exercise of due care by ail parties.
    Before Sedgwiok, Ch. J., Freedman and O’Gorman, JJ.

      Decided May 5, 1890.
    Appeal by plaintiff from judgment entered upon a verdict rendered on the direction of the Court against him, and from an order denying plaintiff’s motion for a new trial.

      Leavitt & Leavitt, attorneys, and Edwin R. Leavitt of counsel, for appellant, argued:—
    There is only one question to be reviewed, which is brought up by the exception to the direction of the verdict, and denying plaintiff’s motion to go to the jury. And it isn-espectfully submitted that the court erred in not submitting the case to the jury upon the question of defendant’s negligence upon the ground there stated, viz.: “That the evidence shows that the presumption arises that the defendant was negligent in view of the fact that this iron plate fell from its structure upon the plaintiff.” Did plaintiff, on proving the falling upon him of that iron piece from defendant’s structure, prove a fact that raised an issue to be submitted to the jury ? Clearly he did.
    First.—It is a well settled rule that it is a matter of right in the plaintiff to have the issue of negligence submitted to the jury when it depends upon conflicting evidence, or on inference to be drawn from circumstances in regard to which there is room for difference of opinion among intelligent men. Payne v. Troy & B. R. R. Co., 83 N. Y. 574. “ And if there is any evidence from which a jury might find in favor of the plaintiff, the case should not be withdrawn from their consideration.” Ib. “ When the thing causing the injury is shown to be under the control of the defendant, and the accident is such that in the ordinary course of business would not happen if reasonable care were used, it affords,in the absence of explanation by the defendant, sufficient evidence that the accident arose from want of care on its part.” Breen v. N. Y. Cent. R. R, Co., 109. N. Y. 297; Holbrook v. Utica, etc., R. R. Co., 12 lb., 243. The presumption of negligence arises from the cause of the injury. Ib. And when such presumption of negligence is once established by such evidence, it is clear that, whatever evidence is offered to disprove it, it must together with the former, be submitted to the jury, and that it is not then within the province of the court to say that, as matter of law, that presumption has been overcome by defendant’s evidence. Guided by these rules, it cannot seriously be contended that from the breaking of the bolt and falling of the plate, no inference of negligence could be drawn. And the learned justice recognized this when he refused to dismiss the complaint at close of plaintiff’s case and held, what counsel contends, that from proving the nature of the accident negligence was to be inferred.
    Second. In fact two inferences of negligence necessarily arise from such a fact : (1.) Negligence of construction. (2.) Negligence in maintenance and repair. The proof of the defendant’s expert, Wellington, that that clip-fastening was proper and in general use, might possibly be sufficient, in the absence of conflicting evidence on that point, to show no negligence of construction, so as to take away, as matter of law the first inference. But even then the jury might have very justly said that the clips being known by defendant to come off it was its duty to take greater care—some precaution, such as placing a receptacle under them, etc.—to prevent them from falling on unsuspecting persons. The defendant did not show such a thing was impossible, and it needed no other expert than an intelligent jury to show, that such a thing could be done. But granted that as matter of law the first inference of negligence, viz., in construction, was taken away by the. expert testimony, surely the second inference of negligence, viz., in maintenance and repair, remained. The mere evidence of Roach that he had, pursuant to defendant’s instructions given him in 1878,gone carefully over the track and looked at bolts, etc., continuing so doing in June, 1885, was not enough to free defendant from all imputation of negligence. Granted he did all he said he did (and he nowhere testified he made any examination of the track on June 24, 1885—the day of the accident—nor the day nor the week before, could not this jury have inferred that he, one of defendant’s servants, had negligently carried out his instructions, from the mere fact that he allowed this clip and bolt to get into such a condition that they fell ? The very fact that he knew they occasionally came off should have entailed greater care in his inspection, and the jury could very rightly say that to allow a part of its mechanism —and such a part—to get into such a loose condition as to menace persons traveling on the highway was, in fact, conclusive evidence of negligence. The thing causing the injury was wholly under defendant’s care, and plaintiff was perfectly innocent, and no explanation is given by defendant of the cause of the accident, except that “ the clips come off and 'accident is likely to happen,” If such an explanation as that is, as matter of law, a good one, then, as matter of fact the Elevated Roads can continue dropping their “ structure ” upon the crowded thoroughfares with perfect impunity. The same reasoning applies with equal force to a portion of the structure collapsing, such as a pillar, or this bolt and plate in evidence here. Under the court’s ruling it is clear that the plaintiff was remediless unless he showed affirmatively either (1) that the kind of fastening was unsafe and improperly constructed ; (2) that this particular clip was negligently and improperly fastened. The first could only be shown by experts, contradicting Wellington, who might or might not have been procured. The second, plaintiff, of course, could not show, as the court evidently recognized, for it gave him the opportunity, saying, “You can show that this bolt was improperly fastened—if you can.” What an irony of ironies to permit his plaintiff in order to send his case to the jury to prove that one of about 140,000 clips belonging to and fastened by defendant, was improperly and negligently fastened, by proof other than the fact that it did break and fall! By every principle of common sense, counsel respectfully submits, the jury should •have determined this question of defendant’s liability here, and the court erred in withdrawing the case from their consideration.
    Third.—But the principle that counsel has urged as governing this case is as well sustained by well-settled authorities as by common sense. A railroad company is bound to use ordinary care for the purpose of laying its track and roadbed in such a manner as to make the road safe for the use of its passengers, and of all persons having the right to pass over or under it, or to be upon it, or to have their property thereon. Shearman & Redfield on Neg., Vol. 2, § 406. In a case where an injury happened to one working on a dock by the fall of a door, the court say : “Whether the doors or gates were properly constructed to secure safety, whether the principle on which they were constructed was reasonably safe, or if so, whether the principle was operated with reasonable guard to secure safety, or whether the machinery had got out of order and become unsafe, were questions of fact for the jury to determine.” Newall v. Bartlett, 114 N. Y. 404. And the rule laid down in the leading case of Kearney v. London, etc., R. R. Co., (L. R., Q. B., 411), and followed in" this state, is the very rule under which the learned justice should have sent this case to the jury. The facts there were, that the plaintiff was passing on a highway under a railway bridge,, when a brick fell and injured him on the shoulder. A train had passed over the bridge shortly - before- the accident. The bridge had been built three years, and was an iron girder bridge resting on iron piers on one side, and on a perpendicular brick wall with pilasters on the other, and the brick fell from the top of one of the pilasters where one of the girders rested on it. On a -motion to nonsuit on the ground that there was no evidence of defendant’s negligence, the court held, that there was prima facie evidence, and that the maxim of res ipsa loquitur applied, upon the principle that whenever it is the duty of the defendant to use reasonable care, to keep a bridge or other structure or premises in a proper condition, as respects persons passing along the highway, and' these are out of condition, and an accident happens, it is incumbent upon defendant to show that it used that reasonable care and diligence which it was bound to use ; and that the absence of that care may be fairly presumed from the fact that there was the defect from which the accident had arisen.” Mullin v. St. John, 57 N. Y. 570. And the court there held further, to wit: “ When the plaintiff proved that the building fell on to the street and injured her, she had made out a case in the absence of any explanation on the part of the defendant, as buildings do not usually or necessarily fall, and that it is for the jury to say, under all the evidence, whether that explanation on the part of the defendant is reasonably made.” lb., p. 568 ; Lowery v. Manhattan R. Co., 99 N. Y. 163. In another case, exactly in point, the facts were these : As plaintiff was entering his cellar he was struck on the head by a bar of iron. The tracks of defendant’s Elevated road passed in front of plaintiff’s premises, supported on elevated iron structures, and at the time of the accident a train was passing overhead. The bar was seen descending from the train, and its flight was observed from the time it began to so descend until it struck plaintiff. Held, that it was proper to deny a motion to dismiss the complaint upon the ground that no negligence on the part of defendant causing the injury had been shown. And the court say : “It may be unnecessary to say that the plaintiff was entitled to protection from any negligent act of the defendant while in the exercise of any right of property and the lawful use of the street, and that it was the duty of the defendant, in the exercise of its franchise, to use all necessary caution, care and diligence to prevent injury to person and property. * * * The iron which fell is germane to the structure, which is chiefly of that material, as well as the machinery employed, and it must be that it was broken off in’ some way while the franchise was in use, which would indicate, the absence of that care and duty—that high sense of obligation—which is imposed upon the defendant to keep its structure and machinery in such perfect condition that ¡no one—except by.extraordinary circumstance to be proved by it—shall be injured. And this rule should apply as well to wayfarers along the public streets as to passengers.” Maher v. Manhattan R. Co., 6 N. Y. Sup. 309 ; Supm. Ct. 1889. And the case of Goll v. Manhattan R. Co., recently decided by this court, is on all-fours with the present case. The plaintiff while walking on the sidewalk on the Bowery, immediately under the track of defendant’s Elevated railroad, was' struck by a heavy piece of metal, which fell from one. of defendant’s cars passing above. This piece of metal was part of the cylinder of the engine, which cylinder had suddenly burst, scattering the pieces ; and this court held : “ That from the nature of the accident itself negligence on the part of- the defendant might be inferred.” Goll v. Manhattan R. Co., 57 N. Y. Super. Ct. 186. What difference what part of defendants’s mechanical contrivances breaks ? So long as it is shown to break and injure some one, it is for the jury to say whether the breakage was through defendant’s negligence, or whether defendant was reasonably careful. The learned justice who tried this case has elsewhere held, “ The happening of the accident, therefore, affords evidence, in the absence of explanation, that the accident happened from want of care.” Gerlach v. Edelmeyer, 47 Super. Ct. 297.

      Dames & Rapallo, attorneys, and EdwardS. Rapallo and Brainard Tolies oí counsel, for respondent,argued
    The verdict in defendant’s favor was rightly directed. The evidence which the defendant produced for the purpose of overthrowing the presumption of negligence was absolutely uncontradicted, and was of the most positive and decisive character. To have refused to direct a verdict upon such evidence would have been to rule that the presumption of negligence arising from the mere happening of an accident was incapable of being overthrown. It was in the nature of things impossible for the defendant to prove more than that the original construction of the road in this particular was in accordance with the best methods in known practical use, and that it had been subjected to regular and careful inspection ever since. If this did not constitute a defence, nothing could. The plaintiff had carried off the bolt, the breaking of which caused the injury, and “ lost” it. His only evidence is the falling of the plate. Against the presumption thereby raised was the testimony of two credible and uncontradicted witnesses, showing that the occurrence came within the category of inevitable accidents. In Elwood v. Western Union Tel. Co., 45 N. Y. 553, Rapallo, J., said, delivering the opinion of the Court of Appeals : “It is undoubtedly the general rule that where unimpeached witnesses testify distinctly and positively to a fact and are uncontradicted, their testimony should be credited and have the effect of overcoming a mere presumption.” The case at bar is substantially indentical with Searles v. Manhattan Railway Company, 105 N. Y., 661. In that case a cinder from defendant’s locomotive fell in defendant’s eye. In spite of uncontradicted evidence on the part of the defendant, that its appliances for preventing the escape of sparks and cinders were skillfully made and the best known for that purpose, the jury were allowed to render a verdict in favor of the plaintiff. The Court of Appeals reversed the judgment, Earl, J., saying: “ The undisputed evidence shows that all the appliances used on defendant’s locomotives to prevent the escape of sparks and cinders were skillfully made and were the best known. There was no evidence that any of such appliances were defective or out of order. The mere proof of the escape of cinders was not sufficient, as the evidence showed that their escape could not be avoided and was inevitable.* * * When the fact is that the damages claimed in an action were occasioned by one of two causes, for one of which the defendant is responsible, and for the other of which it is not responsible the plain tiff must fail if his evidence does not show that the damage was produced by the former cause. And he must fail also if it is just as probable that they were cahsed by the one as by the other, as the plaintiff is bound to make out his case by a preponderance of evidence. The jury must not be left to mere conjecture, and a bare possibility that the damage was caused in consequence of the negligence and unskillfulness of the defendant is not sufficient.” In this case the falling' of the plate was caused by the breaking of an iron bolt three-quarters of an inch thick, at about an inch and a half from the nut in the interior of a wooden beam. The place where the break took place was entirely concealed from sight and the defect in the bolt, if such there was, could not be discovered except by taking the structure apart. Every other source of danger from the use of the plates had been obviated, except that arising from the breaking of the bolts. This there was no known means of preventing. And accidents of this kind were so rare that out of the many thousands of such bolts in use only six had broken in twelve years. In view of these facts the court was justified in directing a verdict for the defendant, under the rule laid down in Dwight v. Germania Life Ins. Co., 103 N. Y. 359.
   By the Court.—Freedman, J.

This action was brought to recover damages for personal injuries occasioned by an iron plate or clip falling upon the plaintiff from the railroad structure of the defendant. The fall of the said plate or clip was alleged as having resulted from the negligence of the defendant or its servants. This was denied by the answer. The plaintiff proved the falling of the plate or clip while he was riding under the structure, and then rested. A motion to dismiss the complaint at this stage of the trial was denied, and properly so, because the fall of the plate or clip, in the absence of an explanation, raised a presumption of negligence. The defendant then showed that both in the construction and the maintenance of the road great care had been taken to guard against such an occurrence; that the plate or clip had been secured according to the best method in known practical use at the time of the accident and with more than usual precaution; that the plate or clip could only have come off by reason of the breaking of a bolt; and that the break in question, in the manner it did occur, was not discovered or discoverable notwithstanding the exercise of great care. As a whole the evidence thus given by the defendant was full and circumstantial and sufficient to overthrow the presumption of negligence. The burden thereupon rested upon the plaintiff to show that, notwithstanding all that was shown by the defence, the defendant, in the exercise of due care, still was bound to do, or omit to do, something else by which the occurrence would have been averted. The plaintiff gave no such additional proof. Nor could an inference be competently drawn from the whole evidence notwithstanding the explanation given by the defendant, that after all the defendant was negligent in some specific particular. It was in the nature of things impossible for the defendant to prove more than it had proved, and it therefore became incumbent upon the plaintiff to point out the specific thing which constituted the alleged negligence, especially as he had carried off the bolt, the breaking of which caused the injury, and had not produced it. In the absence of such proof or inference pointing to specific negligence, a verdict was properly directed for the defendant. To have refused to direct a verdict under such circumstances, would have been equivalent to hold that the presumption of negligence arising from the mere happening of an accident, was incapable of being overthrown. As the case was left, the occurrence came within the category of accidents which sometimes do happen in spite of the requisite care exercised by both parties.

.The judgment and order should be . affirmed with costs.

Sedgwick, Ch, J., and 0’Gorman, J., concurred.


author: By the Court,-Fbeebman, J.

text:
    ALLAN C. DALZELL, Respondent v. THE FAHYS WATCH CASE COMPANY, Appellant.

      Order for ike examination of defendant’s officers and boolts before complaint, when it may be vacated.

    The motion to vacate in this case was made, (1) upon alleged indefiniteness and insufficiency of plaintiff’s affidavit, and (2) upon affidavits and exhibits showing cause against the order. Held, that the power of the court to vacate the order for either of the reasons stated cannot be questioned.
    At this stage of the case plaintiff was bound to show that the examination was material and necessary to enable him to frame his complaint. The object of allowing the examination before the complaint or joinder of issue, is not to enable plaintiff to ascertain whether or not he has a cause of action, but to enable him to elicit material facts necessary to be known and incorporated into a statement of the cause of action which exists and he has. It was necessary that the plaintiff should have established the good faith of his application and the materiality and necessity of the examination, for the purpose of framing his complaint. This the plaintiff failed to do and consequently the order should have been vacated.
    Before Sedgwick, Ch. J., Freedman and O’Gorman, JJ.

      Decided May 5, 1890.
    Appeal from order denying defendant’s motion to vacate an order for the examination of defendant’s officers and books.

      Wetmore & Jenner, attorneys, and Wm. A. Jenner of counsel, for appellant.

      Wilber & Oldham, attorneys, and S. W. Fullerton of counsel, for respondent.
   By the Court,-Fbeebman, J.

This is an appeal from an order denying defendant’s motion to vacate an order granted ex parte for the examination of defendant’s officers and books before service of the complaint.

The motion was made, (l)upon the alleged indefiniteness and insufficiency of plaintiff’s affidavit, and (2) upon affidavits and exhibits showing cause against the order. The power of the court to vacate the order for either of the reasons stated, cannot be questioned. Levy v. Loeb, 44 N. Y. Superior Ct. (12 J & Sp.) 291 ; affirmed 75 N. Y. 609. The plaintiff obtained the order before service of a copy of the complaint, and consequently he was bound to show that at' that stage of the case the examination was material and necessary to enable him to frame his complaint. The object of allowing the examination to be had before the joinder of issue, is not to enable the plaintiff to ascertain whether he has a cause of action, but to enable him to elicit material facts necessary to be incorporated into the statement of the cause of action which he has.

A careful inspection of the record shows not only that the plaintiff’s affidavit, even if barely sufficient in the first instance, was very indefinite, but also that- the plaintiff had sufficient facts for framing a complaint based upon defendant’s refusal to account, and that he failed to establish any necessity for the order of examination. The case as presented by the affidavits and exhibits of the defendant called upon the court to see to it that the plaintiff should establish the good faith of his application and the materiality and necessity of the examination for the purpose of framing a complaint. This the plaintiff failed to do, and consequently the order should have been vacated, and not merely _ modified as to the books.

The order appealed from should be reversed and the order of examination vacated with ten dollars costs of the appeal and disbursements to be taxed and ten dollars costs of motion.

Sedgwick, Oh. J., and O’Gorman, J., concurred.


text:
    ALEXANDER KUH, Respondent v. THE METROPOLITAN ELEVATED RAILWAY COMPANY, et al., Appellants.

      Damages to the fee and rental value of premises adjoining a street in the city of ¿few York caused by the construction and operation of an elevated railway on said street—Admission of improper testimony on the trial; its effect considered.

    The plaintiff, after'objection, was permitted to prove that he was offered $42,000 for his Sixth avenue property before the defendants’ railway was constructed. Assuming that this testimony was incompetent, yet it sufficiently appears from the whole case, that the defendants were not prejudiced by it, for upon testimony which was competent, the trial judge found that during a period of six years there was an actual loss in rental that amounted to $150 each year. It thus fully appears that the award of $2,500 for -loss of fee value, which was made, is a reasonable one under all the circumstances. It bears the usual relation between fee value and rental value at the legal rate of interest.
    The testimony admitted as regards the plaintiff’s Eighth avenue property, to the effect that other owners of property in that neighborhood had difficulty in renting their flats after the construction of the railroad, was proper under all the circumstances, for it tended to show the uniform operation of a general cause to produce a loss of rents.
    Before Sedgwick, Oh. J., Freedman and O’Gorman, JJ.

      Decided May 5, 1890.

      Appeal from judgment entered upon the decision of a judge at an equity term.

      Davies & Rapallo, for appellants.

      Peckham & Tyler, attorneys, and Charles A„ B. Pratt of counsel, for respondent.
   By the Court.—Freedman, J.

The only questions presented for review are raised by exceptions taken by the defendants to the admission of testimony.

Assuming that it was incompetent for the plaintiff to show that he was offered $42,000 for his Sixth Avenue property before the defendants’ railway was constructed, yet it sufficiently appears from the whole case that the defendants were not prejudiced by it. The testimony of defendants’ experts seems to have been wholly discarded. Upon the testimony of plaintiff’s experts four times the amount which was awarded as damage to fee value, might have been awarded. Upon testimony which was competent, sufficient and found worthy of belief, the trial judge found during a period of six years an actual loss of rental value amounting to $150 for each year. It thus fully appears that the award of $2,500 foloss of fee value which was made, is a reasonable one under all the circumstances. It bears the usual relation between fee value and rental value at the legal rate of interest. A somewhat similar question was presented to this eoupt in Ross v. The Manhattan Elevated R. R. Co., 57 N. Y. Super. Ct. 412 decided during January, 1890, and it was held no ground for reversal.

The testimony admitted as regards plaintiff’s Eighth 'Avenue property to the effect that other owners of property in that neighborhood had difficulty in renting their flats after the construction of the elevated railroad, was proper under all the circumstances. It tended to show the uniform operation of á general cause ánd that plaintiff’s loss of rents was not attributable to his own neglect, and consequently it also had a legitimate bearing upon the question of fee value as affected by loss of rents.

The judgment should be affirmed with costs.

Sedgwick, Oh. J., and O’Gorman, J., concurred.


text:
    ANTHONY PRISCO, Appellant v. HERMAN HUG, Respondent.

      Action for money had and received by defendant for the use of plaintiff's assignor Defences to such an action.

    Plaintiff’s assignor, John E. Sehipper, made a draft on his brother Gerhard Sehipper of Bramen, Germany, for 1,500 Reichsmarks, equal to $360, payable to the order of the defendant at five days sight, and gave the draft to defendant to collect for him. Defendant undertook to collect the same and to pay to the said John F. Sehipper, the amount of the same as soon as he was advised by cable from the bankers in Germany, to whom the draft was to be sent, that it was paid. The draft was sent, presented and paid, and defendant advised of payment by cable, and afterwards received the money, yet defendant refused to pay the proceeds of said draft to John F. Sehipper when the latter demanded the same. The grounds of his refusal, as claimed by him, appear in the opinion of the court, which were held to be no defence to this action under the circumstances. That the case, as presented, is governed by the principles that usually apply between principal'and agent. The agent collected the money of his principal without incurring any responsibility except to pay it over to his principal according to the terms of his employment, and having refused so to do he is liable. It was therefore error to direct a verdict for defendant.
    Before Sedgwick, Oh. J., Freedman and O’Gorman, JJ.

      Decided May 5, 1890.
    Appeal from judgment entered in favor of the de- . fendant upon a verdict directed by the court.

      The facts sufficiently appear in the opinión.

      Samuel D. Sewards, for appellant.

      Gruber & Bard, for respondent.
   By the Court.—Freedman, J.

The action was brought by the plaintiff, as the assignee of one John F. Schipper, upon the allegation that the defendant, as agent of the said John F. Schipper, had received from one Gerhard Schipper a sum of money of the value of $360 to the use of the said John F. Schipper and upon due demand had refused to pay it over."

The defendant, in his answer, denied this allegation, and then set forth that he received the money' from Gerhard Schipper with instructions to expend it in the establishment in business of the said John F. •Schipper in the city of San Francisco and to pay it over to said John F. Schipper for that purpose whenever the latter should have proceeded to and become permanently located at said city, and not otherwise ; that said John F. Schipper did not proceed to San Francisco, and abandoned .his project of going there and establishing himself there, and notified and informed the said Gerhard Schipper to that effect, and that thereupon the said Gerhard Schipper notified and instructed the defendant not to pay the money to said John F. Schipper, but to return the same to him, the said Gerhard Schipper, and that thereupon, and before the commencement of the action, the defendant did return the money to said Gerhard Schipper, etc.

The trial of the issues opened with an admission on the part of plaintiff’s counsel that the payment of the money was a gift from Gerhard Schipper in Bremen to John F. Schipper, and plaintiff’s assignor thereupon took the stand, and his testimony substantiated the allegations of the complaint. A motion made by the defendant at this stage of the trial for a dismissal of the complaint on the ground that no cause of action had been shown against the defendant, was denied.

The defendant then took the stand as a witness in his own behalf, and the substance of his testimony was as follows : In the course of a conversation which, on or about August 6,1886, the defendant had with plaintiff’s assignor, the defendant suggested that plaintiffs’ assignor should go to San Francisco, establish himself in business there, and then should sell defendant’s goods on commission. The defendant declined to advance any money for that purpose, and thereupon John F. Schipper, being of the opinion that his brother, Gerhard Schipper of Bremen, Germany, would let him have some, made a draft on his said brother for 1,500 Reichsmarks,, equal to $360, payable to the order of the defendant at five days sight, and gave the draft to the defendant for collection. The defendant undertook to collect it and to pay John F. Schipper the amount as soon as he (the defendant) should be advised by cable from the bankers in Germany to whom the draft was to be sent for presentation and collection, that it was paid. The draft was sent, presented and paid, and the defendant was advised of it by cablegram on or about August 24,1886. Nevertheless the defendant subsequently refused to pay the money over to John F. Schipper when the latter demanded it. The ground of this refusal has been variably stated by the defendant.

In his answer he took the position, as already shown, that he refused to pay because he had received the money from Gerhard Schipper with instructions to expend it only for establishing John F. Schipper in business in San Francisco, and because John F. Schipper had changed his mind and declined to go to San Francisco. But there is not a particle of evidence in the case to the effect that Gerhard Schipper gave any such instructions or any instructions whatever at the time he paid the draft. On this point there was a complete failure to establish the defence set up by answer.

In the course of the trial the defendant took the position, and his testimony on his direct examination was to the effect, that he refused to pay because he had been instrumental in assisting John F. Schipper to obtain the money from his brother upon the representation that John F. Schipper intended to establish himself in business in San Francisco ; that it was an enterprise promising good results, and that the money was necessary for that purpose, and that, when John F. Schipper changed his mind and finally decided to establish himself in Now York, and not in San Francisco, he, the defendant, believed it to be his duty not to pay the money over before he had written to Gerhard Schipper and heard from him again. In taking this position the defendant claimed that, when John F. Schipper applied to his brother for the money, he, the defendant, had sent a letter to Gerhard Schipper in which he, the defendant, had indorsed the application by the representation that John F. Schipper intended to go to San Francisco and to establish himself in business there; and that a good result might be expected. But no such letter appears in evidence, and, even if it were assumed that a letter to such effect was written, no proof was given that it was received, or even that it was properly mailed. Upon his cross-examination the defendant distinctly admitted that he had no knowledge whatever that Gerhard Schipper had received the letter, and that all he knew was that Gerhard Schipper paid the draft. No other evidence having been adduced upon this point, the position taken by the defendant at the trial therefor involved a defence which was neither pleaded nor sustained by competent proof.

Moreover, the defendant in the course of his cross-examination was forced to admit, and finally did admit, and the testimony of Frederick Huhn, who at the time of the transaction was defendant’s confidential clerk, was to the same effect, that the true reason of defendant’s refusal to pay" was that the defendant thereby intended to prevent John F. Schipper from establishing himself in business in New York in competition with defendant’s business.

The case, as presented, is therefore to be governed by the principles which usually apply between principal and agent. The agent collected the money for his principal without incurring any responsibility except to pay it over to his principal according to the terms of his employment, and having refused to do so, he is liable. • No representation by the agent having been made to Gerhard Schipper as an inducement to the payment of the draft, and no condition having been annexed by Gerhard Schipper to the payment, the money became the property of John F. Schipper, and it constitutes, under the circumstances of the case, no defence to the defendant that, subsequent to his refusal, he procured Gerhard Schipper to instruct him to pay the money to a banking house in New York for the account of said Gerhard Schipper, and that he, the defendant, did pay it pursuant to such instruction.

It was therefore error to direct a verdict for the defendant, and for such error the judgment should be reversed and a new trial ordered with costs to appellant to abide the event.

O’Gorman, J., concurred.


text:
    FANNIE SCHACHNE, Respondent v. SAMUEL BARNETT, Appellant.

      Negligence—Inability of owner of tenement house for damages caused by the falling of a stone upon plaintiff that had rested upon the fin escape, for some time previous to its fall, to the knowledge of defendant.

    The plaintiff was lawfully walking upon Ridge street, a public highway in the city of New York, and when passing the tenement house, known as No. 91, Ridge street and owned by defendant, a large stone or marble slab which had been placed and had remained for some time upon the uppermost fire escape on the front of the building, fell and striking her upon the head severely injured her. It was admitted by the pleadings that at the time in question, and for some time prior thereto, the defendant was the owner and had possession and control of the said premises and the fire escapes attached thereto, and all the appurtenances thereunto belonging. The immediate cause of the fall of this stone was left in uncertainty. It lay upon the fire escape in front of the sixth story of the building and the two middle windows of the top floor. The right window belonged to apartments which had been occupied by a tenant named Seiler, and the left window to apartments,, then occupied by a tenant named Natowiich. The stone lay between these windows and projected somewhat over the opening in the bottom of the fire escape. When Seiler moved into these apartment's-he found the stone in the position described and it remained there during his occupation and was there when he left about eight days before the accident. That the defendant rented the Seiler apartments after the accident, and during the time they were vacant, had been locked and in the possession and control of defendant, who had actual notice of the presence of the stone on the fire escape, but neglected to remove it. The defendant had a housekeeper on the premises to keep them in order and in general charge of the same who had seen and known the stone to have been there for a year and a half in the same position. There was no evidence that the tenant Nato witch had anything to do with placing the stone on the fire escape or maintaining it there.

      Held, that, upon these facts appearing, the trial judge properly refused to dismiss the complaint or to direct a verdict for-the defendant, and it was competent for the jury to find that the presence of the large stone or slab, projecting over the opening in the fire escape in the manner it did, was a standing menace to the safety of the passers by on the street, of which the defendant had sufficient notice and was bound to remove, and failing so to do, was liable for the damages and injury to plaintiff. The issues were submitted to the jury under a charge which fully and fairly guarded all the rights of the defendant, and were determined in favor of plaintiff, and the record discloses no tenable exception, and no sufficient reason appears to disturb the verdict.
    Before Sedgwick, Ch. J., and Freedman, J.

      Decided, May 5, 1890.
    Appeal from judgment entered in favor of the plaintiff upon the verdict of a jury, and from order denying defendant’s 'motion upon the minutes for a new trial. • ■
    The facts sufficiently appear in the head note and opinion.

      Aaron Levy, attorney, and Christopher Fine of counsel, for appellant.

      Adolph Cohen, for respondent.
   By the Court.—Freedman, J.

The plaintiff was lawfully walking along Ridge street, a public street in the city of New York, and passing the tenement house known as No. 91 Ridge street and owned by the defendant, when a large stone or marble slab which had been placed and had remained for some time upon the uppermost fire escape on the front of the building, fell down and struck her upon the head and severely injured her. The action was brought to recover damages for the injuries thus sustained.

The complaint alleged, and the answer by not denying admitted, that at the time in question and for some time prior thereto, the defendant was the owner and had possession and control of the said premises known as No. 91 Ridge street, with the fire escapes attached thereto and all the appurtenances thereunto belonging.

Notwithstanding this admission upon the record the defendant now contends that the complaint should have been dismissed at the trial, because it was shown that he was not an actual occupant of the said building or any part thereof, and because, not having been said occupant, he cannot be held liable for any misuse of the premises by any of his tenants. This contention is not well founded in view of the state of the evidence, even if the defendant could be permitted to deny the admission that he was in control. True, there was no evidence that the fire escapes were out of repair, or that the stone which fell was part of the building or fire escape, or that the defendant put it upon the fire escape from which it fell, or that he authorized anybody to put it there. So it is also conceded that the premises consisted of a six-story building, with properly constructed fire escapes in front thereof from the sixth to the second floor, and that some 26 families lived upon the premises. There was an .opening in the bottom of each fire escape except the lowest, and through said openings a ladder ran in front of the building from the sixth to the second floor. The top or uppermost fire escape was the one on which the stone lay. That fire escape was in front of the two middle windows of the top floor, the right window belonging to apartments which had been occupied by a tenant named Seiler, and the left window belonging to apartments then occupied by a tenant named Natowitch. The stone lay between the said two windows and projected somewhat over the opening in the fire escape. There was some testimony that some boys were playing or quarrelling on that fire escape, but the immediate cause of the fall of the stone was left uncertain. But the plaintiff showed that when Seiler moved into his apartments, he found the stone in the position already described ; that while he resided there, he let the stone remain, there ; that when he moved, he left it there ; that Seiler vacated his apartments about eighty days before the accident and that the defendant rented them to another tenant after the accident ; that in the meantime the premises were kept locked and that the, defendant had full control over them and even had, through a conversation with another person on the premises, actual notice of the presence of the stone on the fire escape, but neglected to remove it after such notice. And the plaintiff also gave proof that the defendant had a housekeeper on the premises, whose duty it was to keep the house in order and to take charge of the house generally, and that the said housekeeper had seen the stone from a year to a year and a half in the same position. There was no evidence that the tenant Nato witch had anything to do with placing the stone on the fire escape or maintaining it there.

In view of these facts the trial judge properly refused to dismiss- the complaint or to direct a verdict for the defendant, for upon the same and the other evidence in the case it was competent for the jury to find that the presence of the large stone or marble slab projecting over the opening in the fire escape in the manner it did, constituted under all the circumstances a standing menace to the safety of passers-by, of which the defendant had sufficient notice and which he was bound to remove irrespective of any duty specifically cast upon him by Section 26 of Chapter 566 of the Laws of 1887 relating to the erection of fire escapes, but which he failed to remove notwithstanding the notice and sufficient opportunity for the purpose. True many of these facts were contradicted by the defendant, but that only created a conflict and it was then for the jruy to determine the conflict.

The issues were submitted to the jury under a charge which fully and fairly guarded all the rights of the defendant, and were determined by them in favor of the plaintiff. The record discloses no exception which is tenable, and no sufficient reason appears why the verdict of the jury should be disturbed.

The judgment and order should be affirmed with costs. •

Sedgwick, Ch. J., concurred.


author: By the Court.—-Freedman, J.

text:
    LOUIS SCHOEN, as Administrator, etc., Appellant v. THE DRY DOCK, EAST BROADWAY AND BATTERY RAILROAD COMPANY, Respondent.

      Negligence, action to recover damages in consequence of the death of the son of the plaintiff, caused thereby; under Chapter 450 of the Laws IS47,and Section 1902, of the Code of Civil Procedure.

    The burden of proof was upon plaintiff to establish that the wrongful act, neglect or default on the part of defendant’s driver was the actual cause of the death of plaintiffs son.
    The plaintiff at the trial failed to establish by competent evidence that the death was the legitimate result of any such wrongful act, neglect or default, and plaintiffs complaint was properly dismissed.
    Before Freedman and O’Gorman, JJ.

      Decided May 5, 1890.
    Appeal from judgment of dismissal of complaint.

      George W. Wilson, for appellant.

      John M. Scribner, for respondent.
   By the Court.—-Freedman, J.

This action was brought to recover damages for the benefit of the next of kin of the decedent by reason of the death of the decedent alleged to have been caused by the negligence of defendant’s driver. The decedent at the time of his death was 4| years of age. Such an action did not lie at common law. The right of action was first created by Chapter 450 of the Laws of 1847, and the action may now be maintained under Section 1902 of the Code of Civil Procedure by the executor or administrator of the decedent for a wrongful act, neglect or default by which the decedent’s death was caused.

The burden was, therefore, upon the plaintiff to establish, as part of his case and by competent evidence, that a wrongful act, neglect or défault on the part of defendant’s driver was the actual cause of death. The plaintiff, at the trial, did not sustain the burden in this respect. True, it is not necessary that the cause of death should be shown by the testimony of an expert. Where, for instance, a person, on being run over, is killed on the spot, the cause of death is apparent to every ordinary observer. But in the case at bar the boy was taken to a hospital and lived for twenty days thereafter. While there his arm was amputated. No witness described the injuries sustained as sufficiently severe. His little brother-testified that one-wheel of the -car passed over decedent’s hand, but no evidence was given that the injury was sufficient to cause death or to require amputation. The hospital doctors were not placed upon the stand. The surgeon who performed the amputation was not called as a witness. The only witness relied on by the plaintiff to prove that the death of the decedent resulted from the injuries which he sustained on the occasion of the occurrence complained of, was a physician attached to the coroner’s office who had never seen the decedent until after death. This witness admitted that he had no personal knowledge as to the character of the injuries which resulted in the amputation; that there were no other signs of violence except the amputated arm ; that the amputation of a person’s arm is not usually fatal ; and.that after amputation it is impossible to tell what the conditions were that necessitated the operation, because the operation would necessarily remove all the indicative features of the case. As the result of a post mortem examination, which he had made and which had disclosed that the left side of the pleura or membrane involving the lung was in a state of acute pleuritic inflammation, he undertook to say that, in his opinion, the cause of death was exhaustion and acute pleurisy following in the wake of the amputation, but he did not account in any way for the origin of the pleurisy. As the case was left, the pleurisy might have come from a cold or exposure before the accident, or from the condition of the boy immediately preceding the accident, although he then appeared in health, or from subsequent unnecessary exposure in the hospital. This being in substance the state of the evidence, there was no sufficient competent proof that the death was the legitimate result of any wrongful act, neglect or default on the part of defendants’ driver, and plaintiff’s complaint was properly dismissed. That being so, it is not necessary to determine whether a sufficient case was made out in other respects.

The judgment should be affirmed with costs.

O’Gdrman, J., concurred.


author: By the Court.—O’Gorman, J.

text:
    FRANCIS PARES OSBORN, et al., Plaintiffs v. WILLIAM C. ROGERS, et al., Defendants.

      'Written instrument, construction of, principles, applicable to where its meaning and purpose by reason of ambiguity or confusion of language is not clear.

    Defendant,, for the purpose of enabling one Rogers (who was one of them) to comply with the conditions of an order made on his motion which stayed proceedings on a j udgment against him pending an appeal by him, first to the general term and then in a certain event to the Court of Appeals, from an order at special term denying his motion to vacate a judgment recovered against him and the execution thereon,and which discharged a levy made under an execution in such judgment on certain conditions, gave to plaintiffs a joint and several bond conditioned that “ in case said order appealed from shall be affirmed by the general term, and if an appeal be taken from the determination of the general term upon such appeal to the Court of Appeals in case said order be finally affirmed by such Court of Appeals, the defendant, Wil•liam 0. Rogers, shall well and and truly pay unto the plaintiff’s,’ etc. This bond complied with and pursued the conditions of the order granting a stay and discharging the levy. The general term reversed the order appealed from. On appeal to the Court of Appeals that court reversed the general term and affirmed the special term.
    The question involved was, whether the phrase “ in case said order be finally affirmed by the Court of Appeals ” was confined to an affirmance after an affirmance by the general term, or included an affirmance after a reversal by the general term, in other words whether or not it referred to an affirmance of the special term order whatever may have been the determination of the general term from which the appeal to the Court of Appeals was taken. If the phrase included an affirmance by the Court of Appeals after a reversal by the general term, then plaintiffs were entitled to be paid the sum conditioned to be paid by the bond, otherwise not.

      Held, (1.) That it is a principle of law that where the meaning and purpose of a written contract, from the ambiguity or confusion of language employed, is not quite clear, such a construction of it is to be sought for and adopted as may be the most reasonable, the most liberal and most consistent with the sense in which the promisor believed the promisee accepted the promise and in which he did actually accept.

      (2) That upon this principle, in view of the facts and circumstances attendant on and surrounding the execution of the bond, the sense mutually understood by the parties was that payment was to be made to plaintiffs upon the order being affirmed by the general term, or if the litigation was carried to the Court of Appeals by either of the parties then upon affirmance by that court.
    (3) That plaintiffs’ were entitled to judgment for the sum conditioned to be paid by the bond.
    Before Sedgwick, Ch. J., Freedman and O’Gorman, JJ.

      Decided May 5, 1890.
    Submission' in an agreed case. The facts sufficiently appear in the opinion.

      Couderb Brothers, attorneys and of counsel, for plaintiffs, argued :—
    I. The bond was executed and delivered as the condition of a favor to the defendant Rogers—as the “ terms ” upon which his request for favor was granted. That request is found in the affidavit of Rogers, at folio 19 of the case, and is in the following words. “ The defendant asks for a stay of proceedings, pending said appeal, and that the levy under the execution herein be discharged upon such terms as to the court may seem just.” This language is substantially repeated in the order to show cause and precludes any necessity of citing authority in support of the power of the court to exact terms in the premises. In other words, the power is conceded. Rogers asked for two things : (1.) For a stay of proceedings under the judgment and execution pending his appeal. In respect of this element -we concede that the vitality of the bond expired upon the reversal of the order by the general term. After that, and pending the plaintiffs’ appeal to the Court of Appeals, there was no necessity for a stay ; for although the judgment was never cancelled of record, the plaintiffs could not have enforced it, with the order of reversal staring them, in the face. (2.) The other favor asked for was the discharge of a levy which afforded the plaintiffs ample security for their debt. The bond was a substitute for this security. This element is entirely lost sight of in thé contention of the defendants. (3.) The decision of the court, at special term, upon the favors asked for was practically, this :—“ Yes ; proceedings shall be stayed and your property, which the plaintiffs hold as a security, shall be released and handed back to you, to dispose of as you see fit, upon condition that you give the plaintiffs equally good and ample security in its stead.” That this was intended is evident from the provision in the order and in the bond itself, for payment “ within thirty days after the final affirmance of said order,” by either the general term or the Court of Appeals, as the case should be. (4.) That this bond was exacted, not only to stay proceedings, but as a consideration for the discharge of the levy cannot be disputed.
    II. It is clear from all the circumstances of the case and from the language of the bond itself, that the contingency contemplated was a final affirmance of the order of the special term, whether that final affirmance should be by the general term, (in case no appeal should be taken to the Court of Appeals), or by the Court of Appeals. It is also clear that both the order and the bond contemplated an appeal by either party to the Court of Appeals.- The language of the order is “if an appeal be taken from the determination of the general term upon such appeal,” that of the bond, “ in case of an appeal from the determination of the general term.” The office of the bond was two-fold. (1.) To protect the defendant from further prosecution under the judgment until his motion to vacate should have been finally passed upon ; and (2.) To indemnify the plaintiffs for the loss of the security afforded them by the levy. The propriety for such indemnity is shown by the fact that otherwise their final success in the court of last resort would have proved a barren victory. And it is undoubtedly true that the possibility of such a contingency was in the mind of the court at special term when indemnity was demanded as the condition of discharging the levy.
    III. The contract of the defendants is in plain, unmistakable terms—“ in case said order be finally affirmed by the Court of Appeals, the defendant, William C. Rogers, shall well and truly pay * * * within thirty days after the final affirmance of said order by such Court of Appeals.” If there were any ambiguity in the language of the obligation, (which we deny) it should be construed against, the obligors. Ripley v. Larmouth, 56 Barb. 21 ; Marvin v. Stone, 2 Cow. 781 ; Grifford v. First Pres. Soc., 56 Barb. 114 ; White v. Hoyt, 73 N. Y. 505 ; Hoffman v. Ætna Fire Ins. Co., 32 lb. 405.
    • IV. In the case of Robinson v. Plimpton, 25 N. Y. 484, it was held that the sureties in an undertaking on appeal from an order of the special term which was reversed by the general term, were not thereby discharged ; but were liable upon the ultimate affirmance of the first order by the Court of Appeals. The language of the undertaking in that case was general ; following § 335 of the Code of Procedure—“ that if the judgment appealed from, or any part thereof, be affirmed, or the appeal be dismissed, the appellant will pay,” etc. There was no reference, in the undertaking, to either the general term or the Court of Appeals ; and it was claimed' that the reversal by the general term absolutely discharged the sureties, and that they could not be again made liable, without their assent, by the order of another court in an appeal to which they were strangers. The court held that “ the statute and the undertaking given in pursuance of it, have respect to the final determination in the court of last resort, or the last court to which the parties may take it by appeal.” The cases cited by Mr. Justice Allen, in that opinion are Traver v. Nichols, 7 Wend. 434 ; Bennet v. Brown, 20 N. Y. 99 ; Ball v. Gardener, 21 Wend. 270 ; and Smith v. Crouse, 24 Barb. 433. And the case Robinson v. Plimpton has been cited and the principles there enunciated approved in Doolittle v. Dininny, 31 N. Y. 350 ; Hinckley v. Kreitz, 58 lb. 583 ; Humerton v. Hay, 65 lb. 380. A fortiori, where the instrument itself makes specific provision for payment within thirty days after affirmance by the general term, (if no appeal be taken from that affirmance), and also, in terms, for payment within thirty days after final affirmance by the Court of Appeals, if an appeal be taken from the determination of the general term.

      Marston Niles,- attorney and of counsel, for defendants Edgar and Grannis, among other things, argued :—
    I. The bond has these words : “ The court having ordered such discharge of levy and a stay of execution * * * in case of an appeal from the determination of the general term to the Court of Appeals * * * until the final determination of the Court of Appeals.” 'The plaintiffs claim that the court ordered such discharge and stay, even in case the general term should vacate the judgment and discharge the execution, and the plaintiffs should appeal. Why should the special term order that the levy should remain discharged and the stay of execution continue at a time when the judgment should have been wholly vacated and the levy have been entirely discharged, and the execution rendered null ? Of high value to the defendant, as the plaintiff thinks, would be a stay forbidding the plaintiffs to issue execution upon a judgment that had already been, vacated. On account of the value to him of such a stay, the plaintiffs think the special term imposed upon him the burden of a bond pending the operation of such a stay, and on account of its value the defendant was willing to give the bond. But perhaps the plaintiffs will say that there was another purpose in exacting the bond ; viz., that the plaintiffs should be protected in case the general term should vacate the • judgment and the plaintiffs take an appeal to Albany. According to the plaintiffs, the special term designed to protect the plaintiffs against a possible adverse determination of the general term. The ■ general term might, perhaps, determine that the special term had been in error. Therefore the special term, by exacting a bond, secured the plaintiffs against injury by the general term, and threw its defending arm about the plaintiffs until the Court of Appeals could be heard from. Assuming that the special term designed the bond to baffle somewhat the effect of the general term’s determination, how would the stay operate which was granted in consideration, of the bond? In fact the general term vacated the judgment. As soon as the judgment was vacated the plaintiffs were stayed. Stayed by virtue of the stay, say the plaintiffs ; and therefor, say they, the bond which was the condition on which the stay was granted, held good. Is that true ? Was it not because the plaintiffs had now no judgment in their favor that they were stayed ? But perhaps the plaintiffs will say that the meaning was that the defendant should somehow be stayed, in case the judgment against him should'be set aside by -the general term ? should be stayed till the Court of Appeals could be heard from. Assuming that the special term had jurisdiction to stay the operation of the general term’s determination, in what would such stay of the victorious defendant consist ? What proceedings of the defendant could there then be to stay ? The defendant would be having no proceedings pending ; he would simply have gone about his business. But assuming the defendant might take some proceedings except for this stay, why should he be called upon to give a bond as a condition of staying his own proceedings ?
    II. I understand the plaintiffs make claim that the words “ until the final determination of defendant’s said appeal from said order by the general term ” mean “until the general term shall, after the Court of Appeals’ affirmance of the special term order, make final determination affirming the order.” I understand the plaintiffs make claim that “ final” means here “ upon remittitur from Albany and order of conformity entered below.” Were this possible, the language would be absurd : for it speaks of “ an appeal * * * to the Court of Appeals” subsequent to such “final determination.” But appeal to the Court of Appeals would be impossible after order of conformity pursuant upon remittitur. Moreover if the plaintiffs’ contention in that behalf is true, the words “ and in case of an appeal from the determination of the general term ” would be superfluous; for the greater includes the less, and the immediately preceding words, “until the final determination * * * by the general term,” would then include the utmost contingencies. But the bond does in fact, throughout, use the phrase “ final determination” in no such sense as that which the plaintiffs claim. It says “ the final determination by the Court of Appeals,” and it says “ in case said order be finally affirmed by the Court of Appeals ; ” in neither of which cases can the plaintiffs’ proposed interpretation attach. And in respect to the general term itself, the bond uses the phrase in a sense necessarily opposite to the plaintiffs’ proposed sense ; for it uses the words “within 30 days after the final affirmance by the general term, or, if an appeal be taken to the Court of Appeals, within 30 days after the final affirmance of said order by the Court of Appeals.” Here the ‘1 final affirmance by the general term ” is an affirmance that may be followed by an appeal to the Court of Appeals, and consequently is not an affirmance which is “final ” in the sense that it is “after remittitur from the Court of Appeals.” Besides, the word “ or ” imports an alternative. If “ final affirmance by general term” is here meant to include a case of previous determination by the Court of Appeals, the function of the word “ or ” is destroyed. The probable reason for using the word “final is in order to provide for such a contingency as where the general term might make a determination which would not finally determine the matter, as, for example, a determination referring the matter for further evidence, etc.; with perhaps some general instructions to be pursued by the special term ; and perhaps from the special term’s ordered thereon, the defendant might make an interlocutory appeal to the general term. In any such case the stay ought to hold, and the bond therefore ought to hold beyond such interlocutory determination ; ought to hold until a “final” determination. Likewise, the word “ final” includes a casein which the special term order would be modified, and yet, as modified, affirmed. Moreover, the order itself, contains no trace of such a meaning for the word “ final ” as the plaintiffs claim for it. In its parallel passage that order says merely, “ In case the said order appealed from shall be affirmed by said general term.” If the plaintiffs say that the special term purposely caused the bond to vary from the order, considering the order to be defective, a sufficient answer is that so far from indicating this, the bond expressly refers to the order as its fons et origo, and purports to follow strictly the order.
    III. Robinson v. Plimpton, 25 N. Y. 484 ; Smith v. Crouse, 2k Barb. 434; Hinckley v. Kreitz, 58 N. Y. 583; Gardner v. Barney, 24 How. 467 ; Bennett v. Brown, 20 N. Y. 99; Traver v. Nichols, 7 Wend. 434; Ball v. Gardner, 21 lb. 270; Tibbles v. O’Connor, 28 Barb. 538, are not in point as authorities in favor of plaintiffs contention. (Here counsel commented on them) A radical distinction is to be drawn between the statutory undertaking, and a bond, like this one, required “ as the condition of a favor.” Rice v. Whitlock, 16 Abb. 225.

      A. D. Williams, attorney and of counsel, for defendants Rogers and Horton.
   By the Court.—O’Gorman, J.

This action being now pending, this is a submission, under sections 1279, et seq., of the Code, on an agreed case of a controversy arising from the differing opinions entertained by the parties plaintiff and defendant, as to the true meaning, force and effect of a certain bond with sureties, given'by defendant Rogers, under order of the Supreme Court, as a condition for the discharge of a levy made under judgment and execution against Rogers, in favor of the plaintiffs for the sum of $7,938.53, with interest and costs.

The plaintiffs claim that this • bond is now in full force." The defendants deny the claim.

On issue of execution and levy made on the property of “ Rogers,” he moved at the special term of the Supreme Court, for the vacation of the judgment and execution. His motion was denied. From this decision, he appealed to the general term, and also moved in the special term for a stay of plaintiffs’ proceedings pending that appeal. This motion was granted and “ Rogers” obtained an order staying the plaintiffs’ proceedings, and discharging the levy pending the appeal to the general term, and also pending such appeal as might be taken to the Court of Appeals, on the condition of his giving a bond with sureties. -The bond was given under the approval of the court, and the contention now is as to the true intention and legal effect of that bond. The Supreme Court, at general term, reversed the order of the special term, and set aside the judgment against “ Rogers.” From that decision the plaintiffs appealed to the Court of Appeals, who reversed the decision of the general term of the Supreme Court and restored the judgment and execution against Rogers to their former force and effect.

The defendants now claim that the liability of the sureties on the bond was discharged by the judgment of the general term, setting aside the judgment against Rogers, and that plaintiffs can maintain no action against the sureties.

The plaintiffs, on the other hand, contend that the bond and all its obligations continued in full force and effect during all the litigation in the Court of Appeals, and on the decision of that court reversing the decision of the general term and reinstating the judgment against Rogers and the execution against his property, they were intitled to demand the fulfillment of all the provisions of that bond, in their favor, and to compel the sureties to pay tho amount of the judgment, etc.

The condition of the bond is as follows :—“ That whereas, the above bounden William C. Rogers has appealed to the general term of the Supreme Court of the state of New York, First Department, from an order made and entered on the 28th day of October, 1887, in an action in the Supreme Court of the state of New York, wherein Francis Pares Osborn, and others, are plaintiffs, and the said William C. Rogers, defendant, which order denies the motion made by the said Rogers to vacate the judgment entered in said action on October 17th, 1887, and to set aside the execution issued thereon.

“ And whereas, a motion has been made by said Rogers for a stay of proceedings pending said appeal and to discharge the levy under the execution issued upon said judgment upon such terms as to the court may seem just, and the court having ordered such discharge of levy and a stay of proceedings until the final determination of the defendants’ said appeal from said order by the general term, and in case of an appeal from the determination of the general term to the Court of Appeals, then until the final determination of the Court of Appeals upon such appeal, then, that in case said order appealed from shall be affirmed by said general term, and if an appeal be taken from the determination of the general term upon such appeal to the Court of Appeals in case said order be finally affirmed by said Court of Appeals the defendant William C. Rogers shall well and truly pay unto said Francis Pares Osborn, Charles Spencer Osborn, William Osborn, and Robert Arthur Osborn, any and all sum or sums which may be or shall be due, owing and unpaid upon said judgment, and the fees of the sheriff under said execution, with interest upon such sum or sums unpaid, and sheriff fees and all costs of appeal that may be awarded to the plaintiffs, within thirty days after the final affirmance by the general term, or if an appeal be taken to the Court of Appeals within thirty days after the final affirmance of said order by such Court of Appeals, then this obligation to bo void otherwise to remain in full force and effect.”

The language used might have been, no doubt, more clear, but, taking into account the circumstances under which it was executed, and the important advantages secured by defendant Rogers, because of its execution, I find little difficulty in arriving at the conclusion that the plaintiffs’ contention is right, and that the liability of the sureties on the bond to the plaintiffs, still exists, and the action on behalf of the plaintiffs against defendants is well brought.

In the endeavor to ascertain the meaning and purpose of a written contract, which, from the ambiguity or confusion of language may not be quite clear, a court is justified in seeking for such construction as may be the most reasonable, the most liberal and most consistent with the sense in which the promisor believed that the promisee accepted the promise, and in which he did actually accept it.

I entertain no doubt, that, in the case of the instrument here in question, the sense thus mutually understood by the parties was, that the bond should be and continue to be a valid and sufficient security for payment of the amount of plaintiff’s judgment, whether that judgment was sustained by the general term of the Supreme Court, or the decision of the Court of Appeals if the litigation reaéhed that court. If the intention of the parties to the bond was that the liability of the sureties was to end on the decision of the appeal to the general term, all allusion in the bond to the Court of Appeals would have been useless, idle and irrelevant. The allusion to the Court of Appeals clearly indicated that an appeal to that court was to be expected on the part of either party who might be dissatisfied by the decision of the general term. It is very unlikely that the intention of the parties was, that in case of a decision of the general term hostile to the plaintiffs’, they were to accept their defeat, or, if they sought redress by appeal to the Court of Appeals, carry on that litigation without any security from which they could realize any substantial benefit or protection.

It should be remembered that, at the time the the bond was executed, the plaintiffs had levied under the execution, on the goods of Rogers, and that, to the extent of the value of these goods, security, pendente lite, had been, in effect, given. By setting aside that levy, the plaintiffs were left without any security, unless such as was found in the bond. That whatever security was afforded by. the bond should cease to exist on the decision of the general term in favor of the defendant Rogers, would have left the plaintiffs without any security in place of the levy on the goods of Rogers, of which security he had been deprived by the order of the special term. That this injustice should have been intended by the court, or would have been acquiesced in by the plaintiffs, is not to be believed. No violence is done to the language of the bond by this holding, and the general drift of authoritative judicial opinion is in that direction. Robinson v. Plimpton, 25 N. Y. 484 ; Doolittle v. Dininny, 31 lb. 350.

The intention of all the parties was, in my opinion, that the plaintiffs were to receive, by means of the bond, a security which should be the full equivalent of the security they held by their levy on the goods of Rogers.

There should be judgment for the plaintiffs in form, and for the amount specified in folios 55 and 56 of the agreed case.

Sedgwick, Oh. J., and Freedman, J., concurred.