text:
    Geneva and Waterloo Railway Company, Respondent, v. The New York Central and Hudson River Railroad Company and Another, Appellants.
   Order affirmed, with ten dollars costs and disbursements.


source: Caselaw Access Project

license: Public Domain

text:
    The Geneva and Waterloo Railway Company, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant, Impleaded, etc.
   Order modified by adding thereto a clause to the effect that the manner of crossing shall be determined by the commissioners as provided by the statute, and as so modified affirmed, with ten dollars costs and disbursements.

Davy, J., not sitting.


text:
    Michael J. Haugh, Respondent, v. Jerome S. Moore, Appellant, impleaded, etc.
   Order affirmed, with ten dollars costs and disbursements.


text:
    John Draper, Respondent, v. Matthew McDonough, Appellant.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Conrad Marshall, Appellant, v. The City of Buffalo, Respondent.
   Order granting a new trial affirmed. Ward, J., not voting.


text:
    Juan F. Pastor, Respondent, v. Michael Regan, Appellant.
   Judgment and order affirmed. Lewis, J., dissenting.


text:
    M. Fillmore Brown, Respondent, v. Margaret A. Root, Appellant.
   Order so modified as to permit the judgment of dismissal merely of complaint to remain of record; in other respects and as so modified affirmed, without prejudice to the right of the defendant Root to move at Special Term for costs of the action. No costs of this appeal to either party.


text:
    The McCormick Harvesting Machine Company, Appellant, v. Enoch A. Clayson, Respondent.
   Judgment and order affirmed,

Adams, J., not sitting.


text:
    Anthony Rattell, Respondent, v. Belle Hovey, Appellant.
   Judgment of the County Court and that of the Justice’s Court reversed.


text:
    J. Christ Bernhardt and Another, Respondents, v. Lewis A. Redell, Appellant.
   Judgment affirmed, with costs.


text:
    Ella G. Bentley and Another, Respondents, v. Schuyler C. Wells, Appellant.
   Judgment affirmed.


text:
    Ida Green, Appellant, v. The Middlesex Valley Railroad Company, Respondent.
   Order affirmed, with ten dollars costs and ments. Ward, J., not voting.


text:
    John W. Cullis, Respondent, v. Allen G. Smith, Appellant, Impleaded, etc.
   Order affirmed, with ten dollars costs and disbursements.

Ward, J., not sitting.


text:
    The Milburn Wagon Company, Appellant, v. William A. Frazer, Respondent, Impleaded, etc.
   Order affirmed, with ten dollars costs and disbursements.


text:
    Phebe J. Colby, Appellant, v. Edward Colby and Another, Respondents.
   Order affirmed, without costs.


text:
    Henry S. Anderson v. Edward P. Dickinson.
   Order amended and as amended herewith handed to and entered by the clerk of this court.


text:
    Allen J. Arnold and Others v. James Fee and Others.
   Motion for the requisite certificate to enable the plaintiffs to appeal from interlocutory judgment to the Court of Appeals granted.


text:
    Thomas Larkin v. The Village of Lockport.
   Motion denied.


text:
    Joseph A. Barr, Respondent, v. Henry L. Fish and Another, Appellants.
   Motion for re-argument or for leave to go to the Court of Appeals denied.


text:
    County of Monroe v. The City of Rochester.
   Motion to amend order so as to read that the judgment of the Special Term was reversed for errors of fact as well as errors of law, granted.


text:
    In the Matter of the Application of the Auburn City Railway Company for the Appointment of Commissioners, etc.
   Motion granted and commissioners appointed.


author: Foldett, J.:

text:
    John H. Millard Respondent, v. Holland Trust Company, Appellant.
   Judgment and order affirmed, with costs.

Foldett, J.:

This action was begun May 12, 1893, to recover damages for the failure of the defendant to perform its executory contract by which, it is alleged, it agreed to purchase fifty $1.000 bonds and pay therefor a sum sufficient to pay the amount of the plaintiff’s lien on the bonds acquired by an attachment. The defendant, in its answer, denied making the contract, and also pleaded that it was void under the Statute of Frauds, because not in writing. The contract, if there was any, was made between the attorneys for the plaintiff and the defendant. Whether such a contract was made was the principal question of fact litigated before the jury, which found in favor of the plaintiff. The appellant does not complain of the manner in which this issue was submitted’to the jury, but it urges that the question of the authority of the defendant’s attorney to make the contract was not fairly submitted. Upon this question the. trial judge, without such reference to the evidence, submitted to the jury the question whether the attorney for the defendant had been invested with apparent authority to enter into the contract testified to in behalf of the plaintiff. Upon an exception being taken by the learned counsel for the defendant to the charge on this issue, the court further said: ‘ ‘ If the defendant did not authorize its attortorney, Van Hoesen, to buy the fifty bonds, but only to buy the one hundred bonds, it is not liable in this action even if the agent did agree to buy the fifty. The act of the agent in excess of his authority never binds the principal unless a third party, having a right to believe that the agent was acting within his authority, would sustain a loss if the act was not consideredThat of the principal.” The plaintiff sought to establish the power of the defendant’s attorney to make the contract by proving that the entire contract related to 150 bonds, and that the defendant had taken and paid for 100 bonds in accordance with the agreement. The defendant’s attorney testified that he had no authority to purchase the fifty bonds; that he told the plaintiff’s attorney so, and that he did not agree to buy them. Without reciting the evidence, we think a fair question of fact as to the authority of the defendant’s attorney was raised, and that it was fairly submitted to the jury. The appellant urges that the court erred in refusing to permit the defendant’s attorney to testily to the conversation between him and defendant’s president. The question was: “ Q. State what occurred with Mr. Roosevelt. Objected to; objections sustained. Exception by defendant.” The appellant now urges that the object of this question was to show the extent of the authority given by the defendant to his attorney in respect to this matter. The question does not disclose that such was the subject of the inquiry, and we think that it was the duty of the defendant’s counsel to have stated in this connection that he desired to show the extent of the authority conferred upon defendant’s attorney. For any other purpose the conversation between Mr. Roosevelt and the defendant’s attorney was incompetent. The contract, as testified to by the plaintiff’s attorney, was taken out of the Statute of Frauds by the delivery of and payment for 100 of the 150 bonds. We think it sufficiently appears that the bank of Fayetteville had some interest in the fifty bonds and that jurisdiction was acquired, but, in any event, the defendant in this action had greater knowledge in respect to the interest of the bank than the plaintiff, and made its contract with reference to its knowledge, and it cannot now be heard to say that the bank of Fayetteville had no interest in these bonds. The judgment and order should be affirmed, with costs.

Van Brunt, P. J., concurred.


text:
    James E. Delehanty, Respondent, v. The Philadelphia and Reading Railroad Company, Appellant.
   Order affirmed, with ten dollars costs and disbursements. No opinion.


text:
    Poland Paper Company, Appellant, v. The American Wheelman, etc., Publishing Company, Respondent.
   Order affirmed, with ten dollars costs and disbursements. No opinion.


text:
    In the Matter of Robert R. Hamilton.
   Order affirmed, with ten dollars costs and disbursements. No opinion.


text:
    The Bank of America, Respondent, v. East River Silk Company, Appellant.
   Order affirmed, with ten dollars costs and disbursements. No opinion.


text:
    Oliver M. Arkenburgh, Respondent, v. Robert H. Arkenburgh, Appellant.
   Order affirmed, with ten dollars costs and disbursements. No opinion.


text:
    Randolph Koch and Another, Respondents, v. Charles L. Link and Others, Appellants.
   Order affirmed, with ten dollars costs and disbursements. No opinion.


author: Per Curiam:

text:
    The Edison Electric Illuminating Company of New York, Respondent, v. William B. Riker, Appellant, Impleaded, etc.
   — Judgment affirmed, with costs.—

Per Curiam:

The evidence presented by this record is, with the exception of the testimony of one witness, substantially the same as in the case of Comyns v. Riker, which resulted in a judgment setting aside the transfer of certain property by William H. Riker to William B. Riker, on the ground that it was fraudulent and void as against the plaintiff, because made with intent on the part of the transferer to hinder, delay and defraud his creditors, and was accepted by the transferee with notice of such intent. This court on the appeal in Comyns1 case affirmed the judgment (83 Hun, 478). On this review the evidence is substantially the same as in the Comyns'' case, with the exception of the testimony of William H. Riker, the transferer, who was not sworn in that case, and we shall inquire whether a different result than was then had is now required because of it. The learned judge at Special Term thought not, and we see nd reason to disagree with Mm. It was shown on the former trial that the father, William B. Riker, by mortgages upon his property, given at different times prior to October 2, 1891, obtained about $71,000, which was turned over to his son. And that the father transferred to his son his interest in the drug business, in December, 1887, for $60,000, for which six notes of $10,000 each were given. On account of these notes, and the moneys received from the mortgages, the son claims there wa$ an indebtedness due to his father on February 12, 1892, of about $120,000, while the father claims the amount to have been $128,000. The fact that such moneys were turned over to the son, and the father’s interest in the drug store transferred to him. were not in dispute on either trial, and to such extent the testimony of the son merely corroborates that of Ms father in the Corny as'' case upon a point not disputed. The contention in that case was, as it is in this one, not that the father did not turn over the moneys to liis son, but that he did not loan them to him. That instead, he intended them as a voluntary and absolute gift to his only child, and that it was only when the business failure of his son seemed imminent, that the plan developed of treating such gifts as advances and loans for the purpose of securing a foundation upon which to base a transfer of whatever of assets the son had remaining, at the expense of his other numerous creditors. In support of the contention of the plaintiff that the money was intended by the father as a gift to the son who succeeded him in business, it. was proved that from the year 1878 to June 5,1887, the father loaned to the son at various times, sums of money ranging from $200 to $4,400, aggregating $8,500. And that for each sum when loaned he took back the son’s note. It was not until December 15, 1887, that the father executed a bill of sale to his son of his interest in (he business carried on under the firm name of William B_ Riker Son, although he testifies that he had been previously out of the business: “I had nothing to do; my son did everything-' and took the entire profits for at least a year previous to my giving the bill of sale.” ■With this statement the son agrees. But after June, 1887, the former practice of the father in requiring the son to give him notes for moneys advanced was abandoned. According to the testimony of both father and son, the father borrowed ¡§20,000 on mortgage in .October, 1857, and immediately turned it over to the son. "When paid to the son the money was all in bank notes, but the father did not take a note for it nor a receipt. This statement is not contradicted by the son on this trial, and the further fact appears that no record or entry of these transactions was made by either father or son. And in that important respect, the son’s testimony strengthens the evidence of the former trial on this subject. Then it appeared that there were no entries in the business books of the son. Now it appears that he never made an entry anywhere of the transactions. What we have said as to the absence of a note, receipt or entry by either father or son as to the $20,000, is also true of the $5,000 turned over December 27, 1887; of the $8,000 on November 4, 1889, and the $14,000 paid over May 28,1891. The father, in answer to an inquiry as to whether he kept any account between himself and son during this period of time, said: u As a general thing, I kept no account; I may have in these later years a few little memoranda, but I did not at the time that I loaned this large amount and down to the 12th of February, 1892, keep any account, not until the whole thing was paid.” The date given by the witness was some little time after the last payment, which he now claims to have been a loan to his son. It also appears, from the testimony of the manager and bookkeeper of the wholesale firm, and from the testimony of the bookkeeper of the retail department, that the books contained no evidence of any of these transactions, and the son on this trial testified: “I did not keep any account in any book with my father; none whatever * * * I did not keep any account with him at all; I kept no entry of this indebtedness on any book.” In such importantrespect, therefore, the son’s testimony strengthens the evidence upon which the judgment was based in-the Comyns' case. On that trial, it also appeared, from the testimony of a representative of Bradstreet’s Commercial Agency, that in February, 1888, when, according to the father's testimony, the indebtedness of his son to him was $93,500, the son stated that his total indebtedness consisted of a debt due the Sixth avenue store of from $6,000 to $8,000, and on the factory account of $15,000. On this trial, William H. Hiker admits that he did make that statement. There are other features of the testimony, such as a failure at any time to demand payment by the father; the omission to pay interest; the swearing off of his personal assessment by William B. Hiker, and his testimony in relation to it, in which he said: u I did swear off that I was not liable to personal tax, because what my son owed mo I did not look upon in the light of a debt; I did not think of it; it was a different kind of a debt.” But such evidence, and the weight to be attached to it, was considered by us in the Comyns’ case, .leaving for consideration here whether the testimony of William E. Hiker so far overcomes the evidence in the Comyns’ case as to require a different conclusion. Our examination of it, to which brief reference only has been made, satisfies us that it is not of such a character as to justify this court in holding that the decision of the Special Term was against the weight of evidence. The judgment should be affirmed, with costs.

Present — Van Brunt, P. J., O’Brien and Parker, JJ,


author: Per Curiam :

text:
    Henry H. Savage, an Infant, etc., Respondent, v. William D. Faulhaber, Appellant.
   Judgment affirmed, with costs.

Per Curiam :

At the close of plaintiff’s case defendant moved to dismiss upon two grounds, which in different form presented the question as to whether the plaintiff had established his cause of action. The motion having been denied, defendant excepted; and, as no testimony was offered in his behalf, and tho case went to the jury on the testimony for the plaintiff, and upon their rendering a verdict, no motion having been made for a new trial, the single question before us on this appeal is as to whether the plaintiff had made out a prima facie case. An examination of such testimony will show that every fact which it was necessary for the plaintiff to prove to justify a favorable inference of the jury was established, and, as it is not the province of this court to disturb a verdict which is fully supported, it follows that the judgment appealed from should be affirmed, with costs.

Present— Van Brunt, P. J., O’Brien and Parker, JJ.


text:
    Emily A. Emerson, Appellant, v. Jesse M. Emerson, Jr., Respondent.
   Order affirmed, with ten dollars costs and disbursements.—

Per Curiam:

Even if the court could entertain this motion, our examination of the record leads to the conclusion that the discretion of the Special Term was not improperly exercised in refusing to allow a counsel fee to the plaintiff to be employed in securing counsel to oppose defendant’s motion. The order should be affirmed, with ten dollars costs and printing disbursements.

Present — Van Brunt, P. J., O’Brien and Parker, JJ.


text:
    John E. Devlin, Individually, etc., Respondent, v. The New York Elevated Railway Company and Others, Appellants.
   Judgment affirmed, with costs. No opinion.


text:
    James Roarty v. Edward C. McDermott and Others.
   Motion for re-settlement denied, except as to formal parts of order. See mem.


text:
    Frederick L. Colwell v. Genevieve R. Colwell.
   Motion granted.


text:
    Thomas C. Graham v. John Graham. Same v. Same.
   Motions denied.


text:
    Henry A. Landgraff, Appellant v. Lancashire Insurance Company of Manchester, England, Respondent.
   Order affirmed, with . ten dollars costs and disbursements. No opinion.


text:
    The People of the State of New York ex rel. George J. Gould and Others, Executors, etc., Appellants, v. Edward J. Barker and Others, Commissioners, etc., Respondents.
   Order affirmed, with costs.

Per Curiam:

Upon the statute, as construed in the case of The People- ex rel Coudert v. Commissione s (31 Hun, 235), in which we concur, the order appealed from should be affirmed, with costs

Present — Van Brunt, P. J., O’Brien and Parker, JJ.


text:
    American Aquol and Pyrodene Paint Company, Respondent, v. James B. Smith and Another, Appellants.
   Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs to abide the event of the action.—

Per Curiam :

No rights of third parties having intervened, we think that the rule that the appearance of an attorney must be held binding, does not necessarily apply to this case. Upon the facts then, it appearing that the defendant never was served with the summons and that he states that he was not a partner and, therefore, not liable to the plaintiff, a judgment against him would be manifestly unjust. It appeared, moreover* that the motion was made as soon as the knowledge of the existence of the judgment came to the defendant, and we do not see how, under these circumstances, laches can be imputed to him. The order appealed from should be reversed with ten dollars costs and’ •disbursements, and,the motion granted, with ten dollars costs to abide the event of the action.

Present — Yan Brunt, P. J., O’Brien and Parker j JJ.


text:
    National Union Bank, Respondent, v. East River Silk Company, Appellant, Impleaded, etc.
   Order affirmed, with ten dollars costs and disbursements. No opinion.


text:
    In the Matter of Manhattan Railway Company, Appellant, v. Thos. J. McKee and Others, as Receivers, etc., Respondents.
   Order affirmed, with costs. No opinion.


text:
    Arthur A. Carey, as Substituted Plaintiff, Respondent, v. New York Elevated Railway Company, Appellant.
   — Judgment modified by reducing fee damage to $54,300 and rental damage to $2,000, and as modified affirmed, without costs. No opinion.


text:
    Silas F. Overton v. Emily F. Barclay and Others; Same v. Annie E. Barclay.
   Motions denied.


text:
    Louis Ravene and Another, Appellants, v. Henry Rogers, Respondent.
   Order affirmed, with ten dollars costs and disbursements. No opinion.


text:
    Maria Geis and Others, Respondents, v. The New York Elevated Railway Company and Another, Appellants.
   Judgment modified by reducing fee damage to $5,000 and rental damage to $2,500, and as modified affirmed,' without costs. No opinion.


text:
    Batavian Bank, Respondent, v. Alfred A. Freeman and Others, Defendants; William H. Ricketts, Receiver, and Others, Appellants.
   —Judgment modified so as to allow costs to receiver, and affirmed as modified, without costs of appeal. No opinion.


text:
    Matilda Moser, Respondent, v. The Manhattan Railway Company and Another, Appellants.
   —Judgment modified by reducing tee damage to $1,000 and rental damage to $310.87 and allowance to fifty dollars, and affirmed as modified, without costs. No opinion.


text:
    Charles Percival, Respondent, v. The Metropolitan Elevated Railway Company, Appellant.
   Judgment modified by reducing fee damage to $1,500, allowing no rental damage, and reducing allowance to seventy-five dollars, and affirmed as modified, without costs. No opinion.


text:
    Jacob Schwarz, Respondent, v. The Metropolitan Elevated Railway Company and Another, Appellants.
   Judgment affirmed, with costs. No opinion.


text:
    John Schreiner, Respondent, v. The New York Elevated Railway Company and Another, Appellants.
   Judgment affirmed, with costs. No opinion.


text:
    Robert Boyd, Respondent, v. The New York Elevated Railway Company and Another, Appellants.
   Judgment affirmed, with costs. No opinion.


text:
    Winifred J. Mulry, as Trustee, v. William P. Mulry and Others.
   Motion denied.


text:
    Sarah L. Myers and Another, Respondents, v. Thomas Bolton and Others, Appellants.
   Motion denied.


text:
    James B. Mackie, an Infant, etc., Appellant, v. Isabella Mackie and Others, Defendants; Adams Hill, Purchaser, Respondent.
   Order affirmed, with ten dollars costs and disbursements. No opinion.


text:
    Lewis A. Myers and Another, Respondents, v. The American Investment Guaranty Company, Appellant.
   Order affirmed, with ten dollars costs and disbursements. No opinion.


text:
    Otto Heinze and Others, Respondents, v. Maier Rothschild and Another, Appellants.
   Order affirmed, with ten dollars costs and disbursements. No opinion.


text:
    Samuel Caskel, Respondent, v. Maier Rothschild and Another, Appellants.
   Order affirmed, with ten dollars costs and disbursements. No opinion.


text:
    Thomas E. Huffington, Assignee, Respondent, v. John Farrell and Another, as Executors, etc., Appellants.
   Judgment affirmed, with costs.—

Per Curiam :

The opinion of the Court of Appeals delivered on a former appeal (100 N., Y. 179) required the action taken by the trial judge and commands an affirmance of the judgment on this review. The judgment should be affirmed with costs.

Present — O’Brien and Parker, JJ.


author: Mayham, P. J.:

text:
    Charles H. Judson, Respondent, v. The Central Vermont Railroad Company, Appellant.

      Gontrilmtory negligence — duty of one approaching a railroad crossing at night— noise of his wagon.

    The duty of a person who approaches a dangerous railroad crossing is not performed simply by looking each way when he is approaching the crossing upon a dark night; he must bring into requisition all the faculties with which he is endowed for the purpose of protecting himself from injury ; he must listen as well as look, and his failure to listen, or the production by him of a condition, like the rattling of a wagon which he is driving, which prevents him from hearing the approach of a train, amounts to contributory negligence.
    In an action brought to recover damages for injuries sustained by reason of the alleged negligence of the defendant, it appeared that the plaintiff was driving at night a lumber wagon which made considerable noise; that he was proceeding at the rate of four or five miles an hour from the south upon a street, the principal thoroughfare in a country village, which ran north and south, and which was crossed by a railroad which ran east and west; that hev could not see east and west of the crossing until he had come within about forty feet of the crossing; that east of the street the defendant was making up a train, the backing down of which in a westerly direction caused the accident; that at this time there was, west of the street, an engine having its head light lit, which threw a strong light over the crossing and that the plaintiff was seated upon the lumber wagon sidewise, with his face towards the west, his back being towards the train in question.
    The plaintiff testified that, upon arriving at the point where he could do so, he looked east and west, saw upon the west the engine with its head light and, upon the east, lights which he supposed to he lanterns on cars east of the crossing, but that he estimated that the cars wore some distance from him ;' that he heard no train moving and saw no train which he supposed to be in motion; that he did not slacken the speed of his team, but continued on a trot.
    The evidence of the defendant was that there was a hrakeman upon the rear end of the train, on which there were also two other brakemen ; that the rear hrakeman displayed a lantern; that three blasts of the whistle were blown, and that the bell was kept ringing constantly. The rear hrakeman also testified that he saw the plaintiff approach the track; that the hrakeman halloaed several times, signaled the engineer to stop the train, and that it was stopped as soon as possible after the accident. The speed of the train was estimated by the plaintiff's witnesses at from ten to twelve miles an hour, and upon the part of the defendant at four miles an hour.

      Held, that the plaintiff was guilty of contributory negligence and should have been nonsuited.
    Appeal by the defendant, The Central Vermont Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of St. Lawrence on the 1st day of February, 1895, upon the verdict of a jury rendered after a trial at the St. Lawrence Circuit, and also from an order entered in said clerk’s office on the 1st day of February, 1895, denying the defendant’s motion for a new trial made upon the minutes.
    The judgment was for $2,000 in an action for personal injuries alleged to have been sustained by the plaintiff by reason of the alleged negligence of the defendant.

      Louis ILasbrouoh, for the appellant.
    _ZV M. Olaflin and O. A. LLellogg, for the respondent.
   Mayham, P. J.:

The case discloses that on the 2d of November, 1893, at about half-past six o’clock, the plaintiff, while driving a team hitched to a heavy lumber wagon, on Main street, in the village of Norwood, across the track of the defendant’s railroad, which, at that point, crosses Main street at right angles, was hit by the rear end of a freight car attached to a freight train, and which was being backed across the street, and thrown from his wagon and injured.

The railroad track at this point seems to constitute a part of the defendant’s railroad yard for making up trains of cars to be forwarded over its track, and also over tlie track of the Rome, Water-town and Ogdensburgh railroad, the junction of which two roads is at, or near, the village of Norwood. The track of tlie defendant’s railroad at this point was substantially a straight line, as is also Main street, in the village of Norwood, which crosses the railroad at that point.

The plaintiff approached the railroad track on Main street from the south, and at the point of approach the view of the railroad on either side of Main street was obstructed by buildings until within about forty feet of the track, from which point the railroad track was in plain view for a long distance on either side of Main street. The plaintiff approached the railroad, and, at the time of his approach, there was an engine standing upon the track, about 150 feet west of the street, with its headlight shining easterly, throwing its reflection of light over and across Main street at that point. The train, the rear car of which collided with the plaintiff’s wagon, was backing in a westerly direction from the railroad station, which is located east of Main street, and consisted of several freight cars attached to an engine, being backed across Main street to a point westerly therefrom for the purpose of being hitched or attached to other freight cars to make up a train.

The plaintiff was seated on planks resting upon the bolsters of his wagon, there being no box upon the wagon, and was facing west as he approached the railroad, with his feet hanging off of the platform on which he was seated. The wagon on which he was riding made considerable noise, and his team was traveling on a trot at the rate, as estimated by tlie witnesses, of from four to five miles an hour. Before emerging from the buildings on either side of Main street, he heard the whistle of a locomotive, and, on arriving at the point where he could look in an easterly and westerly direction, he testified that he looked both ways; saw the engine with its headlight pointed toward him, and saw lights, which he supposed to be lanterns on cars on the easterly side of the crossing, but estimated that they were some distance from the crossing. He swears he heard no train moving and saw no train which he supposed was in motion on either side of the crossing, but he did not slow his team or stop, but continued his team on a trot, attempting to cross the track ; when at near the point of collision he saw a freight train moving from the east toward the west, from which he could not escape, and by collision with the rear car of which the injury complained of was inflicted.

The evidence and situation discloses that his back was toward the freight train, and that his only view of the track in the direction-from which the freight train approached was by turning his head and looking backward down the track. He says-he-saw no light on the rear car of the freight train at the time of collision and heard no outcry from any one on that train.

One or two witnesses offered by the plaintiff also testified that at the time of the collision they saw no lantern or light on the rear car of the freight train and heard no outcry. The plaintiff testifies that he was very familiar with this crossing, and had been for thirty years.

This is substantially the evidence offered by the plaintiff in support of his action. Some of the witnesses for the plaintiff estimated the speed at which the train was being backed down at from ten to twelve miles an hour.

On the part of the defendant the evidence of the engineer and other employees discloses that the rate of speed at which the train was moving at the time of the collision did not exceed four miles an hour. The defendant’s evidence also discloses that the freight train by which the plaintiff was injured consisted of several cars, on which were located three brakemen at different points with lanterns, one near the engine, one in the middle of the train and another on the rear car of the train, that being the car by which the plaintiff was hit; that on starting to move the train across the street for the purpose of attaching it to other cars then in defendant’s yard, the signal used at that point for crossing the street was blown, it being three blasts from the locomotive whistle; that the bell on the engine was constantly kept ringing from the time the train commenced backing until the happening of the collision, and the brakeman on the rear car testified that the lantern was constantly displayed by him on the rear end of that car, until the time of the collision, when it was put out by the concussion, and that as he approached the crossing he saw plaintiff approaching the track, and halloaed several times, at the same time signaling the engineer to stop the train, and the engineer testifies that he stopped the train as soon as possible after being signaled to do so.

Erom these facts, which constitute substantially the facts proved,' two questions are presented for consideration :

First. Did the evidence disclose any negligence on the part of the defendant which caused the injury complained of %

Second. Did the plaintiff, by his proof, establish his freedom from contributory negligence ?

Upon the question of defendant’s negligence there seems to be such a conflict in the evidence offered by the plaintiff and defendant as properly to present a question of fact for the jury, as to whether or not the defendant was guilty of negligence.

The case discloses that the crossing at which this accident occurred was the principal thoroughfare in an active country village, and while the defendant, by its charter and under the laws of the State, was fully authorized to operate its railroad at that point, it is apparent that, in the use of the powerful and somewhat dangerous appliances and machinery necessarily used in its operation, the defendant was charged with a high degree of care in promoting the safety of the public, who had also a right to pass over and across its track, and if it failed in the performance of that high and responsible duty, to the injury of a person properly crossing the track, it was doubtless liable for such injury.

The conflict in the evidence as to the rate of speed at which the train was moving, and as to whether or not there was any danger signal, either by lanterns or any other appliance, on the rear car as it approached this crossing, to warn travelers upon the highway of its approach, were disputed questions of fact upon which the jury might have found in support of the plaintiff’s theory, and thus have reached a conclusion that the defendant was guilty of negligence which produced or contributed to this injury. And if the case stood upon that question alone we do not see how the verdict of the jury and the judgment thereon could be disturbed on appeal. But in this class of cases, as has been repeatedly held, the plaintiff does not establish his right to a recovery upon the proof of the defendant’s negligence alone. He must go further and prove himself free from negligence, and that he in no way contributed by his own negligence to the injury complained of.

In this, we think, that within the decisions in this class of cases in this State, the plaintiff failed in his proof. He acted with the full knowledge of the manner in which this railroad was operated at this point, and was charged with more than an ordinary degree of care in approaching and crossing this track, to avoid serious and fatal consequences to himself as well as injury and hazard to the railroad company running over this track. He knew the railroad company had rights, in some respects, as was said by the learned trial judge, superior to his own. It was confined to the limits of the steel rails that cross the public highway, and could not exercise that absolute control over its machinery and cars, as could one approaching its track, either on foot or with a team. It was, therefore, his duty, on approaching this track, with a knowledge of the fact just stated, to do everything in his power to avoid a collision. On approaching the track, he was required to look and to listen, and if prevented from listening by the noise of the vehicle in which he was riding, and listening could have averted the injury, it was his duty to stop, as he could, his team, and' assure himself as well as he might, both by looking and listening, that there was no danger in crossing.

This, it seems to us, he failed to do, and, failing in that, he was guilty of a negligent omission which produced this injury.

, It can hardly be pretended that had he stopped on approaching this railroad track, or on passing the line of vision on either side of the highway as he approached the railroad track, he would not only have seen the lights stationed on the different cars, but would have necessarily heard the rumble of the cars in time to have averted the collision. Failing to do this, it seems to us that he failed in the high duty which he owed to himself for the preservation of his own life and property.

It is quite true that a rule has been established that where, upon the question of contributory negligence, there is such a reasonable doubt as that different minds looking at the same circumstances might reach different conclusions as to the negligence, or absence of negligence of the party, the question should be submitted to the jury. But it can hardly be conceived that minds would differ upon the question as to whether, or not, the plaintiff would have heard these cars had he stopped his team and silenced the rattling of his own vehicle, and, that being so, this case does not come within the rule above suggested. ,

In Bates v. The N. Y. C. & H. R. R. R. Co. (84 Hun, 287) the facts disclosed were somewhat similar to the case at bar. The plaintiff’s intestate was driving a team drawing a wagon loaded with ice. He was walking at the time at the side of the wagon with the lines in one hand and his other hand resting upon the box. As he approached .the track, he looked both ways and continued to drive on. "When he was upon the track, which was single at that place, an engine with a pay car attached, struck the deceased, inflicting an injury from which he died.

Upon this proof the trial court dismissed the complaint, holding that the plaintiff’s intestate was guilty of contributory negligence.

Dykman, J., in delivering the opinion of the General Term, which affirmed the decision of the trial judge, uses this language: The deceased was walking, and thus had entire control of his own movements. He could stop and recede instantaneously at his volition. One of the witnesses for the plaintiff testified hat she saw him first when his horses’ front feet were just stepping upon the track. Of course, he was then about ten feet from the track. The witness * * * waved a towel at the deceased, and said ‘ Keep back,’ but she could not attract his attention,” and the court adds : “ It is impossible, in view of that testimony and other facts and circumstances, to escape the conclusion that the deceased went heedlessly upon the track, and brought the calamity upon himself.”

In Fowler v. The N. Y. C. & H. R. R. R. Co. (74 Hun, 144), Herrick, J., in discussing the question of contributory negligence, uses this language: When a person approaches a point of danger it is his duty to do so with care and caution commensurate with the dangers of the locality. The duty of looking and listening when' one approaches a crossing of many tracks does not seem to me to be adequately discharged by merely looking as the dangerous point is approached, and then, when it is absolutely reached, going blindly, forward.”

And the learned judge, after discussing other features of the case, somewhat similar to the case at bar, reaches the conclusion that the plaintiff’s intestate had not shown himself free from contributory, negligence.

In Shires v. The Fonda, Johnstown & Gloversville Railroad Co. (80 Hun, 92) the court says: The evidence shows that if, on approaching the railroad track, he (the plaintiff) had looked he could and must have seen the approaching train. Had he done so, he could, without difficulty, have avoided collision,” and the court held that his failure to do so was contributory negligence, which prevented him from recovery.

In Albert v. N. Y. C. & H. R. R. R. Co. (80 Hun, 155), Herrick, J., in discussing the question of contributory negligence, says: “ It has been held in the case of travelers along a highway approaching a railroad crossing, that it is their duty to look and listen — to look both ways for ajiproaching danger; that if they fail to look, it is negligence on their part, and that if by looking they could see the approaching danger in time to avoid it, and still go on, they are negligent, either in not having looked, for in looking they must have seen the danger, or, having looked, in still going on; that the duty they owe to themselves and to the railroad company, in such a case, in approaching points of danger, is one of active vigilance.”

It will be seen from these cases that the duty of a person in approaching a dangerous crossing is not performed, even by looking each way, especially if, as in the case at bar, he attempts to cross on a dark night. He must bring into requisition all the faculties with which he is endowed to protect himself against injury. He must listen as well as look, and his failure to do that, or his producing a condition, such as the rattling of his wagon, which prevents him from hearing the approaching train, is such an act of negligence as, we think, brings him within the rule of the adjudged cases.

Under these circumstances, we think the learned judge erred in refusing to nonsuit the plaintiff and in denying the defendant’s motion to set aside the verdict upon the minutes.

The judgment must be reversed and a new trial ordered, costs to abide the event.

Putnam and Herrick, JJ., concurred.

Judgment reversed and a new trial granted, costs to abide the event.


text:
    Catherine Roach, as Administratrix, etc., of Thomas H. Roach, Deceased, Respondent, v. The City of Ogdensburg, Appellant.

      Negligence — duty of a city in regcw'd to the condition of a street — held to a greater degree of care than a town — the condition of the street and the question of notice are questions for the jury.

    In an action brought to recover damages for injuries, which caused the death of the plaintiff’s intestate, alleged to have resulted from the negligence of the defendant, it appeared that the intestate was driving a team over a city street, which was intersected by the track of a street railroad; that across said street and track the city had constructed a crosswalk which was raised several inches above the grade of the street, so that the railroad track was depressed where it crossed the crosswalk to the extent of two or three inches; that on one side of the crosswalk there was a rut formed by the wheels of vehicles, which had made an excavation below the concrete roadbed of from five to seven inches; that the wheels of the wagon of the intestate went into the depression and the intestate was thrown upon the roadbed and his wagon passed over and killed him.

      Held, that whether the street at this point was in a reasonably safe condition, or, if it was unsafe, whether the city authorities had notice of its condition, or were chargeable with such notice, were questions proper for the jury, their verdict upon which should not be disturbed.

      Semble, that a city is held to a higher degree of responsibility in regard to the condition of a principal thoroughfare than a town or village would be wher defect existed in a country road.
    Appeal by the defendant, The- City of Ogdensburg, fro judgment of the Supreme Court in favor of the plaintiff, ent in the office of the clerk of the county of St. Lawrence on the day of January, 1895, upon the verdict of a jury rendered after a trial at the St. Lawrence Circuit, and also from an order entered in said clerk’s office on the 17th day of January, 1895, denying the defendant’s motion for a new trial made upon the irmutes.

      holds Kasbrouelc, for the appellant..

      John M. Kellogg, for the respondent.
   Mayham, P. J.:

This action was prosecuted by the plaintiff against the defendant to recover for the alleged negligence of the defendant in the maintenance of a public street in'allowing it to be so far out of repair as to cause plaintiff’s intestate, while driving on such street, to be thrown from his wagon and be so injured as to cause his death.

The action is prosecuted by the mother of the intestate, as administratrix of his estate.

The case.discloses that intestate was eighteen years of age and engaged in driving a team drawing loads in the city of Ogdensburg, and that while passing over one of its principal streets he was thrown from his wagon upon the concrete roadbed, the wagon passing over some portion of his body and so injuring him that he soon thereafter died from such injury.

The principal contention on the part of the appellant is, that there was a failure on the part of the plaintiff to establish, by proof, any negligence of the defendant which would justify a recovery against the city for the injury complained of.

On the part of the plaintiff it was shown that at about the place where this injury occurred Ford street was intersected by the track of a street railroad ; that across said street and also across the track of the railroad a crosswalk had been constructed by the defendant, raised several inches above the even grade of the street and so graded on either side as to make passage over it easy, and that through said crosswalk the railroad track had a depression of from two to three inches, and that on one side of this crosswalk there had been an excavation, or rut, formed by the wheels of vehicles ■tesing over it, which made a dejaression below the surface of the concrete of from five to seven inches, and that into this depression the wheels of intestate’s wagon fell, which so jostled the wagon as to throw intestate from his seat u¡3on the roadbed.

Evidence was offered by the plaintiff tending to prove that this depression in the surface of the street had been there, at least, from the twenty-second of April until the eighth of the succeeding May, when the injury occurred, and that its existence was known to the street commissioner at the time of cleaning the street on the twenty-second of April, and no c-teps are shown to have been taken on the part of the defendant, or any of its agents, to repair the same. And there is some-evidence tending to show that during that interval other persons driving upon the street had driven into this depression, and a hack driver was thrown off his hack by reason of driving into the same.

Oil tbe part of the defendant it ivas contended that this depression was not greater than many others in the city, and that in view of the large amount of public streets to be cared for by the city authorities the street was in a reasonably good state of repair, and that the defendant could not be held responsible for injuries growing out of the condition of the street shown to exist at this point.

These contested questions of fact were properly, we think, submitted to the jury by the trial judge. Whether the street at this point was in a reasonably safe condition, and, if unsafe, whether the city authorities had notice of its condition, or by reason of its long continuance were chargeable with notice, were questions properly submitted to the jury, and their verdict upon those questions cannot be disturbed on appeal.

It is true, as contended by the learned counsel for the defendant, that the burden of satisfying the jury of the existence of negligence on the part of the defendant rests with the plaintiff, and while, as claimed by him, in every case there is always a preliminary question for the court as to whether there is any evidence upon which the jury can properly find a verdict for the party producing it, and upon whom the burden of proof is imposed, yet, if there be any evidence of negligence, it is equally the duty of the court to submit the question to the jury for their determination. This long been the well-established rule, and we do not think it has been disturbed or overruled by the ease of Lane v. The Town of Hancock (142 N. Y. 510).

In that case the court had under consideration the question of negligence, as applied to the maintenance of a country road in a sparsely settled community, on which there was but a small amount of public travel.

In the case at bar the question arises as to the maintenance of the principal thoroughfare of a large and populous city, and in the recent case of Wood v. The Town of Gilboa (not reported) the court seemed to have recognized a clear distinction between the streets of a populous city or village and a country road in determining the question of negligence, of a town or city.

We think the question of negligence in this case was properly submitted to the jury as a question of fact, and. we see no errors in tbe rulings of the learned trial judge which call for a reversal of the judgment entered upon the verdict in this case.

The judgment must be affirmed, with costs.

Putnam and Herrick, JJ., concurred.

Judgment affirmed, with costs.


author: Mayham, P. JT.:

text:
    Peter Nugent, Respondent, v. Jules Breuchard and Others, Appellants.

      Negligence — duty of a master to Ms servant — res gestee — what cha/rge lea/oes the matter to the jury and does not specifically direct them.

    It is the duty of the employer to furnish his employee a reasonably safe place of employment and reasonably safe appliances, and, upon the other hand, the employee must show, upon the trial of an action brought to recover damages for injuries which it is claimed have resulted to him from the negligence of his employer, that he in no way contributed to the injury by his own negligence.
    Upon the trial of such an action it appeared that the plaintiff was injured by the breaking of a guy rope which was intended to prevent the swinging of the arms of a derrick; that the rope broke and allowed the arm of the derrick to swing around, thus precipitating stones in a bucket attached to the derrick down upon the plaintiff who was in a rock cut below.
    the trial of the action the plaintiff’s counsel asked a witness what was done vl't this line after it parted; objection was made, hut the court admitted the evide.- - ns part of the res gestee, and the witness answered, “ I think, to the best of my oph.\>n, it was put into use again tied up ; I won’t swear positively.” The court then asked the witness whether he meant that this was done right away, and whether its use was resumed, to which the witness replied that it was.

      Held, that the evidence did not prejudice the defendant, as it was confined to the time of the accident.
    One question in the case was whether the plaintiff had a right to be in the rock cut at the time of the accident, and upon this point the court said: “ He had a right to be in this place. He was not informed; it is for you to say whether he was or not — that he must not work in the place where he was at work at the time this accident happened.” The court then asked the jury, “Did he do anything that he ought not to have done ? ”

      Held, that the charge did not declare to the jury that the plaintiff had a right to be in the rock cut, but left it to the jury to say whether the plaintiff had received any information as to whether or not he had a right to be in the rock cut.

      Appeal by the defendants, Jules Breuchard and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ulster on the 17th day of April, 1895, upon the verdict of a jury rendered after a trial at the Ulster Circuit, with notice of an intention to bring up for review upon such appeal an order entered in said clerk’s office on the 7th day of May, 1895, denying the defendants’ motion for a new trial made upon the minutes.

      Charles F. Cantme for the appellants.

      John G. Van Etten for the respondent.
   Mayham, P. JT.:

This action was prosecuted by the plaintiff Nugent against the defendants for injuries suffered by the plaintiff to his person by reason of the alleged negligence of the defendants in furnishing unsafe and improper implements, by reason of which the plaintiff was injured while engaged in the service of the defendants.

The defendants were engaged in the construction of the Otis Elevated railroad, running from Palenville to the top of the Catskill mountains, and were excavating a deep rock cut on the line of said road. The cut was twenty feet wide and twenty feet deep, with perpendicular rock walls on either side. The plaintiff was employed in the cut barring out and loading stones into a bucket, which had to be hoisted from the bottom of the cut to the surface, and high enough above the surface to be swung on the arm of a derrick and dumped. The derrick was located on the surface on one side of the cut, and was so adjusted that when stones were elevated in the bucket they would swing around by their own gravity over the dump, and to keep the arm of the derrick from swinging'before the bucket was elevated above the surface there was attached to it a guy rope, which was held or managed by a man located upoii the surface, who wrapped the guy rope around the stump of a tree so as to enable him to hold it sufficiently tight to prevent the swinging of the arm of the derrick. On the occasion of the injury the plaintiff was in the bottom of the cut handling stone with a bar, and, as the tub was being elevated by the machinery of the derrick, the guy rope broke and allowed the arm of the derrick to swing around, and the stones in the bucket were precipitated against or upon the plaintiff, breaking one of his legs and in other respects injuring him.

The contention on the part of the plaintiff was that the defendants were negligent in not furnishing a guy rope sufficiently strong to hold the derrick arm in position, and that by reason of the defective rope the injury occurred.

On the part of the defendants it is insisted that the plaintiff was negligent in not being at the place to which it was claimed he was assigned by his employers, and that his negligence contributed to the injury which he suffered.

There was some proof given in the case that the guy rope was old and very much worn, and that some of the strands were broken, and that it was consequently a defective appliance, and not suitable for the purpose for which it was being used, and that by reason of its defects this injury occurred.

The contentions on both sides had the semblance of support upon the evidence offered by the respective parties, só that it clearly became a question of fact:

First. Whether the defendants were negligent in not furnishing safe implements and appliances for their employees, by reason of which this injury occurred ?

Second. Whether the plaiiitiff himself used the care and diligence which the dangerous nature of his employment required, to relieve himself from the imputation of contributory negligence ?

These questions, we think, were proper for the consideration of the jury, and were, under a careful charge by the learned judge, submitted to them for their consideration. .We think they were proper questions for the jury, and the jury having passed upon them, and reached a conclusion in favor of the plaintiff, their determination should not be disturbed, unless there was some error committed by the learned trial judge which affected their verdict.

The duty of an employer to furnish a reasonably safe place of employment and reasonable safe appliances for the use of his employees is too well settled to need any citation of authority. And, on the other hand, the duty of the employed to show on the trial of an action for injuries claimed to have resulted to him from the negligence of his employer, that he in no way by his own negligence contributed to the injury, is also too well settled to require citation of authorities, and where the negligence, either of the employer or employed, is the subject of controversy, about which men of ordinary intelligence might differ upon the facts disclosed, it becomes eminently a question of fact for the consideration of the jury.

It is insisted by the learned counsel for the appellants that this judgment should be reversed for alleged errors committed by the trial judge in the admission of testimony and in his charge of the jwy-

On the trial the question was asked by plaintiff’s counsel of McCormick, a witness: “ What was done with this line after it parted ? ” This was objected to as immaterial and irrelevant by the defendants, to which the court responded: “What was done there on the same occasion may be proved as a part of the res gestae.”. The answer was: “ I think to the best of my opinion it was put into use again, tied up. I won’t swear positively.” This evidence the defendants moved to strike out.

The court thereupon propounded this interrogatory: “ Q. Done right away do you mean? A. Yes, sir. Q. And its use resumed? A. Yes, sir. The Court. I think that will do.”

We do not think that the ruling of the learned judge, when taken in connection with the answers given by the witness, was error for which this judgment should be reversed.

It does not seem to contravene the principle laid down in Clapper v. The Town of Waterford (131 N. Y. 390). In that case the evidence which was objected to, and the reception of which was held error, was quite unlike the evidence offered in this case. In that case the plaintiff was permitted to prove, against the defendant’s objection and exception, that the commissioner of highways of the town was seen repairing the alleged defective walk several days subsequent to the accident, and it was held error, for the reason that the jury might construe it as evidence of the knowledge or admission of the commissioner of highways that the defect in the sidewalk complained of really existed and needed repair.

In this case no such inference can be drawn from the question, answer and ruling of the learned trial judge, and it does not seem that any harm could have resulted to the defendants from the reception of the evidence; and particularly as it was confined by the learned trial judge to the time of the accident. Nor do we see any error in the charge of the learned trial judge which would justify a reversal of this judgment.

The part of the charge urged as objectionable, to which attention is called, is as follows : “ If you find the defendants have been at fault in this respect, the next question is, whether the plaintiff has been neglectful. He had a right to be in this place. He was not informed — it is for yon to say whether he was or not — that he must not work in the place where he was at work at the time this accident happened.” Did he do anything that he ought not to have done ? ” “ Did he omit to do anything that he ought to have done, that a man commonly prudent and careful of himself, while employed in a dangerous situation, would have done ? ”

Taking these statements of the learned judge as a whole, we fail to see that they enunciate any improper rule of law. The language of the judge, that “ he had a right to be in this place,” when fairly and liberally interpreted, means in the rock cut in which he was employed. The statement of the judge, he was not informed,” followed immediately by the qualifying words, “ it is for you to say whether he was or not,” submits the question of information to the consideration of the jury, and is not such an assertion of a fact as would make the statement of the judge erroneous for that reason.

On the whole case, we see no error for which this judgment should be reversed.

The judgment should be affirmed, with costs.

Putnam and Herrick, JJ., concurred.

Judgment affirmed, with costs.


text:
    Isaac Freiberg and Herman Freiberg, Appellants, v. James Moffett, Respondent.

      Accord and satisfaction — money sent to a creditor with a condition that it is pa/yment in full, if retained cannot be credited only on account.

    Where a debtor sends a draft to his creditor, stating- it to be in full payment of his account to date, and the creditor retains and uses the draft, but declines to regard it as full payment, and the debtor thereupon demands that it be taken as such or that it or its avails be returned at once, and the creditor neglects to return the draft or its proceeds, but repeats his demand for a balance alleged to be still due, there is an accord and satisfaction, the claim is canceled and no protest, declaration or denial of the creditor can vary the result.
    Appeal by the plaintiffs, Isaac Freiberg and another, from a judgment of the County Court of Schenectady county in favor of the defendant, entered in the office of the clerk of the county of Schenectady on the 26th day of January, 1895, upon the verdict of a jury rendered by direction of the court after a trial before the Schenectady County Court on May 21,1891, and also from an order, made on the 21st day of May, 1891, denying the plaintiffs’ motion for a new trial made upon the minutes.
    The action was originally commenced in the City Court of Schenectady.

      HoraMo G-. Glen, for the appellants.

      Demiel Uaylon, Jr., for the respondent.
   Mayham, P. J.:

The case shows that on the 15th of October, 1892, the defendant purchased a bill of liquors from the plaintiffs, amounting to $313.55, on which the defendant made certain payments, and on the 21th of February, 1893, the defendant purchased of the plaintiffs another bill of liquors, amounting to $356.16.

Several payments appear to have been made by the defendant to the plaintiffs upon these bills, and a controversy arose between plaintiffs and defendant in which the defendant insisted that he had paid to plaintiffs’ agent $100, which left a balance on the bill of October, 1892, of $43.55, the plaintiffs insisting that the balance remaining on the bill was $143.55, and denying that the $100 had been paid to the agent.

On the l'ltli of March, 1893, the plaintiffs sent to the defendant a letter, of which the following is a copy :

“ Cincinnati, March 11th, 1893.

“ Mr. J ames Moffett,

“ Cor. Centre & Union Streets,

“ Schenectady, N. Y. :

“Dear. Sir^ — Inclosed you will find statement of your account. Please send us the amount of $43.55, which is due on the bill of October 15th, 1892.

“We hope to hear from you soon, and remain,

' “ Respectfully,

“ISAAC FREIBERG & BRO.”

In answer to that communication, as would seem, Arery soon after its receipt, the defendant forwarded to the plaintiffs his check for forty-five dollars and fifty-five cents, in which, by his evidence, he claims to have made a mistake of two dollars against himself.

On the 9th of May, 1893, plaintiffs sent to defendant a letter, of which the following- is a copy:

“ Cincinnati, May 9th, 1893.

“Mr. James Moffett,

“ Central & Union,

“ Schenectady, N. Y. :

“ Dear Sir — We herewith send you a statement of your account, showing that you owe us a balance of $98.00 on the bill of October 15th, ’92; also the last bill of February 24th, 1893, amounting to $35(3.10.

“ This balance of $98.00 of October 15th should have been paid long ago, and we expect to hear from you by return mail with check or money order inclosed, otherwise wo shall draw on you for this amount.

“Yours truly,

“ISAAC FREIBERG & BRO.”

Subsequently, on the 24th of June, 1893, the plaintiffs sent to defendant a letter, of which the following is a copy :

“ Cincinnati, June 24¡5/¿, 1893.

“ Mr. James Moffett,

“ Central & Union,

“ Schenectady, N. Y.:

“ Dear Sir — Inclosed you will please find statement of your account, showing that you owe us a balance of $454.Y6.

“ "We have taken the liberty to draw on you to-day at one day after sight $454. Y6, and sent our draft to Schenectady bank for collection.

“We trust you will honor our draft promptly, and remain,

“ Yours truly,

“ ISAAC FREIBERG & BRO.”

This draft was presented for payment to the defendant, but does not seem to have been honored, except by the following answer sent to plaintiffs by defendant :

“ Schenectady, N. Y., June 22th, 1893.

“ To Isaac Freibero & Bro. :

“ Gents — I herewith inclose a New York draft for $354.Y6, in full payment of my account to you up to date.

“ Please acknowledge the receipt of the same.

“ Yours very truly,

“JAMES MOFFETT.”

In reply to this the plaintiffs wrote defendant as follows:

“ Cincinnati, June 30th, 1893.

“ Mr. James Moeeett,

“ Schenectady, N. Y.:

“DexIbSir — Your favor of June 29th to hand, with inclosed draft for $354.Y6, which Ave have placed to the credit of your account. We cannot square your account up to date as you request us in your letter, but we liereAvith inclose you statement of your account, showing you still OAve us a balance of $100.00. By examining this statement you Avill find we are correct, and we kindly ask you to remit this amount by return mail, as the amount is over due.

“ Hoping to hear from you soon, we remain,

“ Yours truly,

“ISAAC FREIBERG & BRO.”

To this letter the defendant replied as follows :

“ Schenectady, July 6th, 1893.

“ Messrs. Isaac Freiberg & Bro.:

“ Gents — I am in receipt of yours of the date of the 30th ult. In reply would say that I enclosed you a draft for $354.J6 on condition that you receive it in full payment of your claim up to date, for it is all I owe you.

“ I now direct you, either to retain the draft in' full payment of your claim as stated in my letter containing the draft, or to immediately return to me either the draft or its equivalent.

“ Yours,

“JAMES MOFFETT.”

To this letter the plaintiffs replied July eighth, omitting to return the draft or its equivalent, and demanding payment for the balance claimed by them to be due.

There is considerable oral evidence in the case, but we think that the rights of the parties are substantially fixed by the written correspondence between them.

At the conclusion of the evidence the learned trial judge held that there was an accord and satisfaction of the plaintiffs’ claim, and directed the jury to find a verdict for the defendant.

We think he was right in that determination. Whatever the real right of the controversy between the plaintiffs and the defendant may be, it is manifest that there was a dispute between them, and that the defendant, in sending his draft on New York in full payment of the balance, tendered his ultimatum to the plaintiffs, which the plaintiffs were at liberty to accept or reject, and that their acceptance of the amount offered in full payment of their claim was an accord, and the receipt and appropriation to their own use of the proceeds of the draft was a satisfaction of the claim in controversy. (Jaffray v. Davis, 124 N. Y. 164.)

In Fuller v. Kemp (138 N. Y. 238) the court sums up a discussion on the question of accord and satisfaction in these words : “ c When a tender or offer is thus made, the party to whom it is made has no alternative but to refuse it, or accept it upon such condition. If he takes it his claim is canceled, and no protest, declaration or denial of his, so long as the condition is insisted on, can vary the result. The principle is too well settled in this State to require either argument or tbe citation of authorities to support it.’ To make out the defense the proof must be clear and unequivocal that the observance of the condition was insisted upon, and must not admit of the inference that the debtor intended that his creditor might keep the money tendered in case he did not assent to the condition upon which it was offered.”

It is manifest within these decisions that the acceptance of the draft upon the conditions upon which it was tendered, and the receipt of the money upon it, in view of the information contained in the letter in which it was forwarded, and the subsequent information and warning of the defendant contained in a letter written immediately thereafter, were, in law, a satisfaction of the plaintiffs’ demand.

The judgment must, therefore, be affirmed.

Putnam and Herrick, JJ., concurred.

Judgment affirmed, with costs.


author: Mayiiam, P. J'.:

text:
    Edward Gilligan, Appellant, v. The Town of Waterford, Respondent.

      Laborers employed by the State and paid by a town — the Legislature may fix the rate of their wages — the town board cannot alter the rate — liability of the town to the person selected after he has accepted a less sum.

    Tlio Legislature lias power to pass general laws regulating tlie compensation of laborers employed by the State, and when such compensation has been fixed by statute it cannot be reduced by the action of a town board.
    It is the duty of the Superintendent of Public "Works, under chapter 320 of the Laws of 1888, lo select a bridge tender to operate the lift bridge at Broad street, in the town of Waterford; and a bridge tender, appointed after chapter 380 of the Laws of 1889 went into effect, was entitled to be paid for liis services at the rate of two dollars for a day of eight hours during a period which elapsed before the act of 1889 was repealed.
    His right to this rate of compensation is not affected by the fact that the town board of Waterford lias passed a resolution fixing his compensation at fifty dollars a month; and, notwithstanding the fact that he has without objection accepted payment of such smaller compensation, he may recover by action against the town the difference between the compensation actually received and the amount lie would be entitled to at the rate of two dollars for a day of eight hours.

      Appeal by the plaintiff, Edward Gilligan, from a judgment of the County Court of Saratoga county, entered in the office of the clerk of the county of Saratoga on the 25th day of March, 1895, upon the verdict of a jury rendered after a trial at the Saratoga County Court, and also from an order entered in said clerk’s office on the 8th day of March, 1895, denying the plaintiff’s motion for a new trial made upon the minutes.

      I. JI. Maynard, for the appellant.

      J. W. Atkinson, for the respondent.
   Mayiiam, P. J'.:

On the lltli of July, 1889, the plaintiff was employed or appointed by the Superintendent of Public Works of the State as bridge tender to operate a hoist or lift bridge across the Champlain canal where it intersects and crosses Broad street in the town' of Waterford. lie served in that capacity from the 20th of July, 1889, to the first of December of that year, a period of 1,596 hours.

This hoist or lift bridge was constructed by the State under the direction of the Superintendent of Public Works pursuant to chapter 320 of the Laws of 1888. Section L of that act provides as follows : The Superintendent of Public Works is hereby authorized to construct, or cause to be constructed and maintained at the expense of the State, a lift bridge over the Champlain canal at Broad street in the village and town of Waterford, Saratoga county. Said bridge shall, when constructed, be operated at the expense of the town of Waterford, under the direction of the Superintendent of Public Works.” The balance of the section limits the amount of expenditure and describes the method of letting the contract for the construction of the bridge.

In pursuance of that act the State constructed a bridge at the point indicated, which was completed before the 20th of July, 1889.

Chapter 380 of the Laws of 18S9 took effect on the sixth day of June of that year. By section 1 of that act it is provided as follows: “From and after the passage of this act the wages of day laborers employed by the State, or any officer thereof, shall not be less than two dollars per day, and for all such employed otherwise than day laborers, at a rate of not less than twenty-five cents per hour.”

On the 11th of July, 1889, the Superintendent of Public Works addressed a communication in writing to the supervisor of the town of Waterford as follows :

“ John E. Gage, Esq.,

Supervisor of Waterford, Pf. Y.:

Dear Sir — This is to certify that, under the provisions of law, that I select the tenders of the Waterford lift bridge, while the town of Waterford fixes the compensation for such services.

“Very truly yours, '

' “ JAMES SHANAHAN,

Superintendent of Public WorksP

On the 12th of July, 1889, the supervisor called a meeting of the town board of the town of Waterford, at which the following resolution was adopted:

Resolved, that the sum of §50.00 per month be paid for each man employed for operating the lift bridge for the season of 1889, and that the number of men be limited to two.”

The case does not disclose that the plaintiff had any notice or knowledge of the correspondence between Shanahan and the supervisor, to which we have referred, or of the adoption of the resolution by the town board.

The persons designated or selected by the Superintendent of Public Works as bridge tenders for this bridge were the plaintiff, Edward Gilligan, and one Mr. Clark.

On the twenty-third day of August, the plaintiff was paid by the town fifty dollars on account of his services as bridge tender, and, at the time of receiving the same, made no claim for additional compensation for his services. On the 2(!th of September, he was also paid fifty dollars, and made no additional claim, and on the third of December, lie was paid sixty-six dollars and sixty-six cents, being his salary for one and one-third months at the rate of fifty dollars per month.

The testimony of the plaintiff shows that he was appointed by Shanahan, the Superintendent of Public Works, to the position of bridge tender, and tliat lie never had any understanding or agreement with the town board as to his compensation.

The case shows that the plaintiff never made any claim for more than $50 per month compensation during the time of the performance of the service; that he had received in all $218.34, and that his compensation, if fixed at the rate of $2 per day for a day of eight hours, or twenty-five cents per hour for the whole number of hours, would aggregate $399, leaving due him upon that basis $180.66, which amount he claimed to recover in this action.

The jury, upon the evidence, under the charge of the judge, rendered a verdict for the defendant, and the plaintiff appeals from the judgment entered upon that verdict. After the rendition of the verdict, the plaintiff moved to set it aside, and for a new trial upon the minutes of the judge, on the ground that the verdict was against the weight of evidence and contrary to law, and also upon the exceptions taken at the trial. The motion was entertained and denied, to which the plaintiff excepted.

If, under the circumstances of this case, the town board had authority to fix the compensation of the plaintiff at a rate other than that prescribed by statute, we think the jury might, under the evidence in this case, have reached the' conclusion that there was an implied contract on the jiart of the jilaintiff to accept the sum of fifty dollars per month, and upon his acceptance of the same, in the manner indicated by the evidence in this case, they might properly have reached a conclusion that the town had paid the plaintiff the amount regulated by such implied contract. But, under the circumstances of this case and the statute governing the same, we are of opinion that neither the Superintendent of Public Works nor the authorities of the town had any power to fix upon a different rate of compensation than that regulated by chapter 380 of the Laws of 1889.

It is true that that act was repealed by chapter 218 of the Laws of 1890, but that repeal in no way affects the rights of laborers employed by the State or any officer thereof during the period for which chapter 380 of the Laws of 1889 remained in force.

The appointment or employment in this case by the Superintendent of Public Works was in the proper exercise of the power conferred upon him of operating this lift bridge, which, by the express provision of chapter 320 of tlie Laws of 1888, was to be operated under tlie direction of tlie Superintendent of Public Works. Tlie appointment or employment of the plaintiff came clearly within the duties imposed upon the Superintendent of Public Works under this act, and the town or the town board had no power; authority or volition in the selection of such appointee. Nor does it appear from that act that the town board had any power or authority to ñx the compensation of such appointee or employee. The only power or authority conferred upon' the town or duty-imposed upon it was to pay the expense of operating such • bridge.

Plaintiff’s appointment went into effect after the enactment of chapter 380 of the Laws of 1889, and was subject to the provisions of that act. All the labor for additional compensation for which this action is brought was performed before its repeal, and must, we think, be compensated for under its provisions.

If the plaintiff rendered the services for additional compensation for which, this action is brought, by the day, his compensation would, under section 1 of chapter 385 of the Laws of 1870, making-eight hours a day’s work, be two dollars for every eight hours’ service performed by him, or, if rendered by the hour, he would be entitled to twenty-five cents for each hour during which he was actually employed. And there seems to be no controversy in the evidence as to the length of time the plaintiff served under his employment.

We think that, upon authority, the questions presented in this case have been fully settled.

In the case of The People ex rel. F. Le Roy Satterlee v. The Board of Police (75 N. Y. 38) the question was: “ Whether the board of police commissioners could fix the salary of a police surgeon by resolution at a less rate than that fixed for such salary by statute ? Even where the police surgeon had accepted the position, and had drawn his salary at the rate fixed by the resolution for two years, at the end of which period he claimed the salary fixed by law, and demanded compensation at that rate; he was held to be entitled thereto.”

In that case the court held that tlie salary fixed by law was his rate of compensation, and Miller,' J., in delivering the opinion of the Court of Appeals, uses this language: “As the statute gave the salary, I think fixing the amount at a less rate by resolutkm could not make it less than the statute declared. There is no principle upon which an individual appointed or elected to an official position can be compelled to take less than the salary fixed by law. The acceptance and discharge of the duties of the office after appointment is not a waiver of the statutory provision fixing the salary therefor, and does not establish a binding contract to perform the duties of the office for the sum named. The law does not recognize the principle that a board of officers can reduce the amount fixed by law for a salaried officer and procure officials to act at a less sum than the statute provides, or that such officials can make a binding contract to that effect. The doctrine of waiver has no application to such a case, and cannot be invoked to aid the respondent.”

The correctness of the rule- laid down in the case cited does not seem to have been questioned, and is manifestly sound upon principle.

We have been referred by the learned counsel for the respondent to Larkin v. The Village of Brockport (81 Hun, 364) and the same case as reported in 87 id. 573.

From, an examination of the reports of that case we are clearly of the opinion that it has no direct application to the case at bar. That case, in some of its aspects, was similar to this, in that it was for additional compensation for the services of a bridge tender of a bridge across the Erie canal which had been constructed by the State, the compensation for tending which was charged upon the village of Brockport by the act under which it was constructed. The amount of compensation was fixed by a resolution of the village trustees on the 5th of June, 1888, and the services were rendered, most- of them, under the express contract between the plaintiff and the village trustees to perform the sendees at the rate fixed by the resolution. That contract 'was in force at the time of the passage of chapter 380 of the Laws of 3889, and it was held, in effect, that the passage of that act did not affect existing contracts. No such question arises in this case.

In Clark v. State (142 N. Y. 101) it was held that the Legislature has power to pass general laws regulating the compensation of laborers employed by the State or by any officer under its authority where the act disturbs no vested right; and that chapter 380 of the Laws of 1889, which took effect in June of that year, regulating the wages of day laborers employed by the State or any officer thereof, was constitutional, and that the compensation of a laborer, if so fixed by statute, cannot be reduced by a State officer under whom the laborer is employed; and the fact that the laborer takes for a time a reduced compensation, does not estop him from subsequently claiming the residue.

It will be admitted that the compensation in this case was not fixed by a State'officer. But it can hardly be successfully maintained that the limitation fixed by that act did not apply to all officers, or individuals, appointed by a State officer. And, as we have seen that the operation of this bridge was a part of the duty of the Superintendent of Public Works, the appointment of the laborers to operate the same was necessarily a duty imposed upon him, and was, in this instance, performed by him ; it follows that the employees operating the bridge in question were, therefore, employees of a State officer within the wording of the provision of chapter 380 of the Laws of 1889.

That being so, the town board had no power or authority to fix the compensation of such employees at a price less (than that specified in that chapter, and it must, we think, be held that the compensation of these bridge tenders came clearly within the provisions of that law.

It is no part of the duty of the court to determine whether that provision of law was wise or unwise. It is enongh to know that it was an act of the Legislature, and that in enacting it the Legislature acted strictly within its constitutional power.

We think, therefore, that the learned trial judge erred in refusing to hold, as requested, that the plaintiff as matter of law, was entitled to the statutory compensation.

The payment of the wages of this plaintiff at the rate fixed by statute was charged as a duty upon the town of Waterford, and that duty, when the town fails in its performance, may, we think, be enforced by action.

In The People ex rel. James Lynch v. The Mayor, Aldermen & Commonalty of the City of New York (25 Wend. 680) it was held that tbe Legislature lias power to impose upon a town in its corporate character the obligation to pay for the services rendered within its territory, and directly for the benefit of its inhabitants, and the court used in that case this language: “ Here is a legal duty enjoined by competent authority, which the corporation are bound to discharge. It is as binding upon them as if entered into under their corporate seal. Full consideration has been rendered in the services of the officer for the liability thus imposed. An action on the case or assumpsit will lie for a neglect of corporate duty.”

To the same effect is Canniff v. The Mayor, etc., (4 E. D. Smith, 437); Federgreen v. The Town of Fallsburgh (25 Hun, 153).

On the whole case, we think the plaintiff was entitled to recover, and that the judgment must be reversed and a new trial ordered in the County Court, costs to abide the event.

Putnam and Herrick, JJ., concurred.

Judgment reversed and a new trial granted, costs to abide the event.