author: By the Court.—Sanford, J.

text:
    JULIUS EINSTEIN, Plaintiff and Respondent, v. THOMAS C. CHAPMAN, as Assignee of William Rothman, and WILLIAM ROTHMAN, Defendants and Appellants.
    ASSIGNMENT FOR THE BENEFIT OF CREDITORS.
    Action by a Judgment Creditor to set aside same.
    The change of possession required by the statute must be not only actual hut continued, or it will be presumed fraudulent.
    In the case of Tilson v. Terwilliger, 50 IF. T. 273, immediate delivery was made and actual possession retained by the purchaser about a year before the property came again into the hands of the vendor to be kept by him for the purchaser. It was held that the possession was not continued as required by the statute, and therefore the sale was presumptively void as against a creditor of the vendor.
    When it appears, as in this case, that the possession was not continued or retained by the purchaser, the burthen of proof to establish that the assignment was made in good faith and without intent to defraud creditm-s, rests upon the defendants.

      Held, that the evidence in this case was insufficient to remove ■ the legal presumption of fraud which arose from the change of possession from the assignee to his assignor, which the statute raises imperatively. ■
    Before Sedgwick and Sanford, JJ.

      Decided March 5, 1877.
    This is an appeal from a judgment rendered at special term, March 20, 1876, after a trial of issues of fact before the court without a jury.
    The action was brought by the plaintiff, a judgment creditor of the defendant Rothman, upon whose judgment an execution had been duly issued and returned unsatisfied, to set aside an assignment for the benefit of creditors, executed by the judgment debtor to the defendant Chapman, under date of December 23, 1874.
    Upon the trial, the plaintiff produced from the files of the office of the clerk of the city and county of New York, and read in evidence such assignment, dated December 23, 1874, and recorded in said county clerk’s office, December 30, 1874; also the record of a judgment recovered in the marine court of the city of New York by Einstein, the plaintiff, against Eothman, one of the defendants, January 12, 1875, for $384.78. The docket of said judgment in the office of the said county clerk, and the due issuing and return unsatisfied of an execution thereon‘were admitted. The plaintiff then proved by the defendant Rothman, that on and prior to December 23, 1874, he was engaged in business, as a dealer in leather and shoe findings, at No. ISO Canal street, in said city. That up to February 1,1875, he continued to carry on the business at the same place, making purchases and sales, from time to time, as before, and without changing the signs upon the building otherwise than by adding the letters “Agt.” to his name, “William Rothman,” on a wooden sign in front. Upon the witness’s cross-examination it appeared that for about a week from and after December 29, 1874, the store was closed by Chapman, who had the keys, and that, after January 1, 1875, witness was again put in possession of the store by Chapman, and thereafter carried on the business-claiming to act as his agent.
    The plaintiff then rested his case. Defendant’s counsel moved to dismiss the complaint. The motion was denied, and counsel for defendants excepted.
    Evidence was then adduced on the part of the defendants, tending to show that on December 19, 1874, Rothman, being then indebted in the sum of $2,000 or thereabouts to the firm of Everit & Chapman, whereof the defendant Chapman was a member, addressed a note to Chapman dated on that day, advising him that owing to hard times and losses he had been compelled to suspend payment, and that a meeting of his creditors to confer as to a possible settlement of his affairs would be held at the office of his attorneys on thp 23rd inst. The meeting was held, and Chapman attended. Ten or twelve out of about nineteen creditors were present, or were represented. It appeared that Rothman’s indebtedness was about $10,000 and his assets about $3,000. Propositions for a compromise and settlement were then made, and were entertained by some of the creditors present, and an assignment was also proposed and agreed upon. After the execution of the assignment Chapman took the keys, kept the store closed for about a week, and then, at the instance of some of the creditors, who said it would be well for Rothman to go right on, allowed him to go into the premises and carry on the business as before, accounting weekly for all receipts and expenditures.
    On February 15, Chapman sold out, at public auction, the entire stock, fixtures, implements, book accounts, and good will of the establishment, in one lot. The property was struck down to one Ahrens, Rothman’s father-in-law, for $725. Chapman received ’ from him that amount, and delivered to him a bill of sale. Rothman continued to carry on the business. It further ' appeared, that, during the first week in January, 1875, a composition deed, in which were embodied terms and conditions of compromise, which had been proposed and considered at the meeting of creditors, held on December 23, 1874, was signed by the firm of Ever.it & Chapman, of which firm the defendant, 'Chapman, was a member, and by all the creditors of Rothman except the plaintiff and one other, who has since released and discharged his claim. By the terms of this instrument, which bears date December 31, 1874, the creditors agreed to accept thirty cents on the dollar of their respective claims, in full settlement and satisfaction thereof, payable in two equal installments by the promissory notes of Rothman, indorsed by Frederick Ahrens and John Jahn, at sixty and ninety days respectively, after the date of such agreement. In and by the said instrument, the said creditors covenanted that Rothman might dispose of his property, at his own free will and pleasure, for and towards the payment of said thirty per cent. The paper was signed by Chapman’s partner, in the name of Chapman & Everit, and other signatures were obtained by Chapman himself. The notes therein specified were delivered soon after the agreement was signed, and were duly paid. Chapman testified that the assignment papers were delivered to him a day or two after December 29, 1874.
    Upon áll the evidence, the court found, among other things, that the said assignment was not accompanied by an immediate delivery, followed by an actual and continued change of possession; and that it was not made. to appear that said assignment was made in good faith, without any intent to defraud the creditors of said Rothman. Also, that the said assignment was made by Rothman, with intent to hinder, delay, and defraud his creditors, and particularly the plaintiff, and is fraudulent and void.
    Judgment was rendered accordingly, and both defendants appealed.

      Nehbras & Pitshke, for appellant, Chapman.

      Martin S. Meyer, for appellant, Rothman.

      Bushnell & Albright, attorneys for respondent; S. Jones, of counsel.
   By the Court.—Sanford, J.

Defendants’ exception to the ruling of the court, in refusing to dismiss the complaint at theo close of the testimony on the part of the plaintiff, was not well taken. If an immediate delivery of the assigned property, and an actual change of its possession can be inferred from the facts that, upon the execution and delivery of the assignment, the keys passed into the possession of the assignee, and the store was closed for about a week thereafter, it nevertheless appears that the assignor, except during that period, continued to carry on the business, after the assignment, making purchases and sales, as before, without other outward and visible indications of a change of ownership, than the mere addition of the letters “ Agt.” to his name, upon one of the signs in front of the building.

This evidence was sufficient, under numerous decisions of this court, to justify a finding that the alleged transfer was not accompanied by an immediate delivery and followed by an actual and continued change of possession, and was, by virtue of the statute (2 R. S. 136), therefore, presumptively fraudulent against the creditors of the assignor (Randall v. Parker, 3 Sandf. 69 ; Topping v. Lynch, 2 Robt. 484; McCarthy v. McQuade, 1 Sweeny, 387). The change of possession, required by the statute, must be not only actual, but continued, or it will be presumed fraudulent. In Tilson v. Terwilliger, 56 N. Y. 273, immediate delivery was made and actual possession ‘ was retained by the plaintiff, for about a year after his alleged purchase, but the property was then returned by Mm to the possession of his vendor, to be kept for him, as he testified ; but the court held that, notwithstanding such immediate delivery and actual change of possession, and although much time elapsed before the chattel came again to the hands of the vendor, the change of possession was not continued, according to the statutory requirement, and the sale was, therefore, presumptively void, as against a creditor of the vendor.

Under these authorities, we think the defendant’s motion for a dismissal of the complaint was properly denied.

The evidence for the defense not only confirmed and corroborated that advanced on behalf of the plaintiff, with respect to the brief continuance of any change of possession, but tended'strongly to show that such change, if any, actual or constructive, was merely colorable, and not made in good faith. Of course, if the ruling above considered was correct, the burthen of proof was upon the defendants to make it appear that the assignment was made in good faith and without intent to defraud (2 R. S. 136). The evidence offered by the defense failed to satisfy the court in this regard, and the result was a finding of fact adverse to the honafides of the transaction.

We have carefully examined the evidence bearing upon this question, and deem it insufficient to outweigh the legal presumption of fraud, which the statute renders imperative. Without attempting to analyze it minutely, it may be said that it tends to induce the belief, that the assignment in question was but part of a collusive scheme to coerce a compromise between an insolvent debtor and certain of his creditors whose assent to a composition could not readily be procured ; that it was not made for the purpose of realizing upon the assets, and converting them into money for distribution among creditors generally, but that it was intended to cover and screen the debtor’s continued possession of the assigned estate, during the period requisite for the successful negotiation and consummation of the compromise proposed.

On the whole case, we think the material findings of fact are sustained by the evidence, and that the conclusions of law, upon which the judgment was rendered, were properly deduced therefrom.

The judgment must, therefore, be affirmed, with costs of the appeal.

Sedgwick, J., concurred.


source: Caselaw Access Project

license: Public Domain

text:
    JOHN W. PARKER, Plaintiff and Appellant, v. JOHN G. HARRISON, et al., Defendants and Respondents.
    ACTION IN THE NATURE OF A CREDITOR’S BILL.
    Property held in trust for the defendant.

      Where such trust has been created by, or the fund so held in trust has proceeded from,, some person other than the defendant himself, it cannot be reached and applied in payment of the judgment.
    The legislature has defined the cases and prescribed the manner in which, after the return of an execution unsatisfied against the property of a judgment creditor, satisfaction may be decreed out of property or things in action belonging to or held in trust for him, and that all the power of the courts in the premises is derived from, and is limited by legislation (Campbell i>. Foster, 35 N. Y. 381).
    The article of the Revised Statutes, relative to the general powers, duties, and jurisdiction of the court of chancery (2 B. 8. 273), prescribe the limitations within which the satisfaction of judgments out of property held in trust for a judgment debtor, can be decreed in a creditor’s suit; and sections 38 and 39 (2 B. 8. 874) were construed as excepting property held in trust for the debtor, where the trust has been created by, and the fund so held in trust has proceeded from some person other than the debtor himself (Campbell». Foster, 35 N. Y. 361).
    While the income derived from the money held in trust remains in the possession of the trustee, it is applicable,
      solely and exclusively, to the purposes of the trust, and it cannot be treated otherwise by the trustee, the cestui que trust, or his creditor.
    The relation of trustee and cestui que trust, must be terminated by the fulfillment thereof, and the money ceased to be held in trust and become absolutely and unqualifiedly the property of the judgment debtor by delivery to him, and the trustee discharged from all responsibility in regard to the same before it shall be liable for the debts of the cestui que trust, the judgment debtor.
    Before Curtis, Ch. J., Sanford and Freedman, JJ.

      Decided March 5, 1877.
    Appeal by the plaintiff from a judgment in favor of the defendants, dismissing the complaint and dissolving an injunction granted pendente lite without costs.
    This action, in the nature of a creditor’s bill, was brought by the plaintiff, a judgment creditor of the defendant John Gr. Harrison, upon whose judgment an execution had been duly issued and returned unsatisfied, to reach property of the judgment debtor, viz., money amounting to more than $1,000, alleged to be in the possession of the defendant Henry Harrison.
    A preliminary injunction was granted restraining the defendant Henry Harrison, pendente lite, from paying away any money in his possession belonging-to the said John Gr. Harrison, to the extent of $1,000.
    The cause was tried at special term without a jury, December 20, 1875. It appeared upon the trial, and the court found among other things, that by last will and testament, duly proved before the surrogate of the county of New York, James Harrison, late of the city of New York, deceased, father of the defendant John Gr. Harrison, gave and devised to trustees therein named, all his property (remaining after the payment of his debts) in trust to pay the whole income thereof after the death of his. widow, to his children in equal shares during their respective lives. The widow died in February, 1862. Prior to June 3, 1862, by an order of the supreme court, the defendant Henry Harrison was duly appointed sole trustee under said will, and duly qualified as such. As such trustee, he received and now holds the share of said testator’s estate to the income of which the defendant John G-. Harrison is entitled as one of the cestuis que trust under said will. Such income amounts to about $5,000 per annum. At the date of the commencement of this action there remained in the hands of the defendant Henry Harrison, of the income which had arisen under the said trust in favor of the defendant John Gr. Harrison, the sum of $1,069, of which $1,000 was the balance of his share of said income for the quarter ending December 31, 1874, and $69 thereof a balance of such income for the quarter ending March 31, 1875.
    It did not appear that any accounting had been had between the defendants as trustee and cestui que trust, nor that the amount of income in the hands of the trustee to which the cesfaoi que trust was entitled, had been adjusted and settled between them; nor was any express promise by Henry Harrison to pay to John Gr. Harrison any certain sum proven.
    It was admitted, and the court further found that the plaintiff’s judgment was recovered as alleged in the complaint, viz., on March 9, 1875, for $696.45, and that execution thereon had been duly issued and returned unsatisfied.
    Upon these facts judgment was rendered in favor of the defendants, and ¿from such judgment the plaintiff now appeals.

      A. W. Knapp, for appellant.

      B. F. Dunning, for respondents.
   By the Court.—Sanford, J.

There is no allegation in the complaint, nor was any proof offered at the trial to the effect that the income and profits of the property given and devised by the testator in trust for the benefit of the defendant John Gf. Harrison exceeds the sum necessary for his suitable maintenance and support. That question is not in the case. No such issue was made, and none such has been litigated. It cannot, therefore, now be claimed that the provision of section 57 of the statute of Uses and Trusts (1 R. S. 729), which subjects the surplus of rents and profits, accruing from lands held in trust, beyond the sum that may be necessary for the education and support of the person for whose benefit the trust is created, to liability in equity, for the claims of the creditors of such person, has any bearing upon the determination of the present appeal.

The case, therefore, presents the naked question whether, irrespective of the provisions of the statute above cited, the accrued income of the fund held in trust for the benefit of the judgment debtor, John Gf. Harrison, under the residuary clause contained in his father’s will, can be reached by a suit of this character and subjected to the payment of his debts. The case of Campbell v. Foster (35 N. Y. 361), seems to be directly in point. It was there held that the legislature has defined the cases and prescribed the manner in which, after the return of an execution unsatisfied against the property of a judgment debtor, satisfaction may be decreed out of property or things in action belonging to or held in trust for him, and that all the power which the courts now possess to subject such property to the payment of judgments is derived from and is limited by legislation. The article of the Revised Statutes relative to the general powers, duties and jurisdiction of the court of chancery (2 R. S. 273), was held to prescribe "the limitations within which the satisfaction of judgments out of property held in trust for a judgment debtor, can be decreed in a creditor’s 'suit; and the provisions of that article, as contained in sections 38 and 39 (2 R. S. 274), were construed as excepting from the operation of a judgment in such a suit property held in trust for the debtor, where the trust has been created by, and the fund so held in trust has proceeded from some person other than the debtor himself. In that case, as in this, the trust was created by, and the fund held in trust proceeded from the father of the defendant, the judgment debtor. The beneficial interest of the cestui que trust in the income of the fund placed in trust by her father for her support and maintenance during her life, was held to be beyond the reach of a creditor’s bill, and the sections of the statute above referred to were construed as excluding and exempting the case from that statutory remedy.

It was strenuously urged upon the argument, that inasmuch as the purpose of this suit was not to anticipate accruing income, but to reach income actually accrued when the suit was commenced, the case was distinguishable from that of Campbell v. Foster. No such distinction was suggested or recognized in the opinion there rendered. It is true that the bill in that case, did not in terms, allege that there remained in the hands of the trustees at the time of filing it, or at the time of the plaintiff’s appointment as receiver, any portion of the income derived from the trust fund, but judgment was demanded, that out of the income derived, or thereafter to be derived from the trust fund, there be paid by the trustees a sum sufficient to satisfy the judgment against the cestui que trust. The principle established by that case is equally applicable to accrued and accruing income, and the reasoning upon which the decision was based seems to be equally conclusive as respects both. In the dissenting opinion of Judge Denio, in Graff v. Bonnett (31 N. Y. 9), the position was taken that the exceptional clause of the statute was intended by the legislature to protect the fund itself, and not the income derived from it, from the pursuit of creditors, when such fund had proceeded from some person other than the debtor himself. The opinion of the court in Campbell v. Foster distinctly repudiated this position as purely conjectural, and held the income irrespective of its amount, of its superfluity, or of the question whether or not it had already accrtied as money held in trust for the debtor under a trust created by a person other than himself; and, therefore, as excluded and exempt from liability by virtue of the express exception stated in the statute.

While the income remains in the hands of the trustee it is applicable solely and exclusively to the purposes of the trust. Its application to such purposes can be enforced in equity by the cestui que trust; it cannot be treated by him, or by his creditors otherwise than as subject to the trust. Certainly, until there has been an accounting and settlement between him and the trustee, or some action taken between them, the effect of which is to discharge the trastee from liability as such, to terminate the relation of trustee and cestui que trust, and to substitute in its stead that merely of debtor and creditor as respects the money sought to be reached, that money cannot be deemed withdrawn from the operation and effe¿t of the trust, and cannot, therefore, be impounded. The trustee cannot discharge himself from the obligation of the trust otherwise than by its performance. The mere fact that he has kept an account of all his dealings with the cestui que trust, and that such account shows a balance in his hands, in no wise relieves him from his accountability as trustee, or changes the nature of the title whereby he holds such balance. It is still money held in trust, and under the authority of Campbell v. Foster, is beyond the reach of the creditors of the beneficiary for whom it is held. The ruling in that case seems to have been reluctantly but unhesitatingly followed in Hann v. Van Voorhis, (5 Hun, 425). I concur with the learned justice before whom the trial was had at special term, in the opinion that “nothing immoral, unjust or in fraud of the plaintiff” can be imputed to the law in sanctioning, enforcing and protecting such a trust. All that can rightfully be demanded by a creditor is that when the jus disponendi lawfully exercised by the original owner of the fund has been fully carried into effect, when the trust has been executed, when the money has ceased to be held in trust and has become absolutely the property of the debtor, it shall be liable for his debts.

The judgment must be affirmed with costs of the appeal.

Curtis, Ch. J., and Freedman, J., concurred.


text:
    LESLEY E. WESTON, Plaintiff and Respondent, v. THE NEW YORK ELEVATED RAILROAD COMPANY, Defendant and Appellant.
    RAILROAD CORPORATIONS AS CARRIERS OF PASSENGERS FOR HIRE.
    Their responsibility and care in keeping their floors AND PLATFORMS IN A SAFE AND PROPER CONDITION, FOR THE ENTRANCE AND EGRESS OF PASSENGERS, INTO AND FROM THEIR CARS.

      They are responsible foi' something more than ordincvry care.

      They are hound to use all such reasonable precautions against injury, as human sagacity and foresight can suggest.

    Passengers have a right to assume that if they proceed with ordinary care over platforms and through passages leading to and from their seats in the train, that they may do so without risk of injury to life or limb from an unsubstantial, insecure or treacherous foothold (Hurlburt ®. New York Central & Hudson River R. R. Co., 40 M. T. 145; McDonald ®. Chicago & North Western R. R. Co., 56 Iowa, 124).
    As in the case at bar, they are bound to be on the alert during cold weather to see whether there is ice upon the platform, and to remove it or make it safe by sanding it, or putting ashes upon it, or in some other manner. The degree of care requisite for safety varies with the exigencies of the case, and it is no error to assert that a more watchful scrutiny and care should be exacted and bestowed in winter than in summer in the protection of steps, landings and platforms from dangerous accumulations of ice and snow.
    NEW TRIAL.
    Motion fob, on the Ground of Newly Discovered Evidence.
    Facts within the knowledge of the conductor of the train upon which an accident occurs, may properly be deemed within the knowledge of the company.
    The fact that the defendant’s superintendent failed to inform himself of such facts by inquiry of the conductor, affords no ground for ordering a new trial, especially where, as in this case, the conductor was known to the defendant’s counsel to be a material witness for the defense. Ordinary diligence on the part of the defendants would have informed them of all the facts within the knowledge of the conductor, and the omission to interrogate him fully was wholly inexcusable.
    In applications of this character (which are not regarded with favor), the applicant must show that he has done all in his ppwer in acts tending to discover the testimony, and that the failure was not owing to any delinquency on his part. “If the least fault be imputable to him, he will ask for relief in vain ” (3 Graham & Waterman, 1026).
    Before Curtis, Ch. J., Sanford and Freedman, JJ.

      Decided March 5, 1877.

      Appeal by defendant from a judgment for $9,142.30, entered upon a verdict in favor of plaintiff; also, from an order denying defendant’s motion for a new trial made on the minutes of the court; also, from an order made at special term, after judgment, denying defendant’s motion for a new trial on the ground of newly discovered evidence.
    The action was brought to recover damages for personal injuries sustained by the plaintiff, through the alleged negligence of the defendants, who are common carriers- of passengers for hire.
    On the afternoon of February 3, 1873, the plaintiff, with other passengers, crossed the platform extending from defendant’s waiting room to the track of their railroad, in order to enter a train then about to depart from one of their stations. It had been snowing-during the day and the night previous. The platform was in an icy, snowy, slippery condition. The plaintiff slipped upon the ice, fell, and sustained serious injuries, from which it is improbable that he can ever entirely recover.
    At the close of the plaintiff’s case, the defendants moved to dismiss the complaint, on the ground that the evidence failed to show negligence on their part, and tended to establish want of due care on the part of the plaintiff. The motion was denied. It was renewed at the close of defendant’s evidence, and again denied.
    The court charged the jury, among .other things, that “the defendants were bound to be on the alert during cold weather,,and to see whether there was ice upon the platform, and to remove it, or make it safe by sanding it, or putting ashes upon it, or in some other manner ; and that the omission to do so, or something equivalent, was negligence.” Also, “that the defendants were bound under the circumstances of this case, to keep the platform free from snow and ice, or from being slippery, . . . so as to allow passengers to go upon it in safety.” "Exception was taken by the defendants to these portions of the charge.
    The jury rendered a verdict for $9,000 in favor of the plaintiff.
    The court declined to set aside the verdict as against the weight of evidence or as excessive, and the defendant’s motion upon the minutes, for a new trial on these grounds, was denied.
    After judgment, the defendants applied at special term for a new trial, upon affidavits tending to show that the conductor, who had charge of the train, and who witnessed the accident, but who was not called as a witness at the trial, could testify to material facts not within the knowledge of defendant’s superintendent at the time of the trial. The newly discovered evidence was to the effect that the plaintiff fell on the steps leading from the waiting-room to the platform; that there was no snow or ice upon those steps, and that he afterwards admitted that the company was not to blame. Several affidavits were read in opposition, contradicting the conductor, and showing that the trial had been once postponed in order to enable the defendants to secure his attendance or procure his deposition, and that they finally proceeded to trial voluntarily in his absence, without applying for a further postponement, and without attempting to take his deposition under commission or otherwise.
    Tracy, Olmstead & Tracy, attorneys for appellant; Charles Tracy, of counsel.

      Royal S. Crane, attorney, for respondent; I. T. Williams, of counsel.
   By the Court.—Sanford, J.

This case appears to have been submitted to the jury upon the issues of fact presented by the pleadings under proper instructions from the court, and I see no reason to interfere with the verdict, either as against the weight of evidence, or on the ground of excessive damages. The jury were in effect instructed that the burthen of proof was upon the plaintiff, and that in order to recover he was bound to satisfy them by a preponderance of credible testimony that the defendants were guilty of negligence, whereby his injuries were occasioned, and that no negligence on his part contributed thereto that on the other hand, an absolute duty devolved upon him to exercise all his faculties against suffering • injury from facts of which he had notice; and that, under the circumstances, it was a question of fact for them to say, whether he “was using ordinary prudence in proceeding as he did on the platform as he described it, slippery to the extent that it was, in the midst of such disturbance as he described.”

The court further charged, in compliance with the request of defendants’ counsel, that the defendants were not bound to keep their platform in such a condition that it would be impossible for a passenger to slip thereon ; but in such condition, that persons using the ordinary care that people do use when they are not apprised of danger, would not have slipped. That the plaintiff was negligent, if, having seen that there was snow and ice on the platform on which others slipped, he did not exercise greater 'care and caution than he would have used if he did not know that there was snow or ice, and that the notice he had of danger called upon him to use special precautions against slipping.

These instructions are as favorable to the defendants as they well could be, consistently with the established rules of law applicable to cases of negligence. Railroad corporations, as carriers of passengers for hire, are responsible for something more than mere ordinary care in keeping their floors and platforms in a safe and proper condition for the entrance and egress of passengers into and ont of their cars. They aré bound to use all such reasonable precautions against injury as human sagacity and foresight can suggest; and their passengers have a right to expect and to assume that in proceeding with ordinary care over platforms, and through passages leading to and from their seats in the train, they may do so without risk of injury to life or limb from an unsubstantial, insecure or treacherous foothold (Hurlburt v. N. Y. Central R. R. Co., 40 N. Y. 145; McDonald v. Chicago & N. W. R. R. Co., 56 Iowa, 124).

It is not stating the responsibility of carriers of passengers for hire too strongly in this regard to declare that they are bound “to be on the alert during cold weather, to see whether there is ice upon the platform, and to remove it, or make it safe by sanding it, or putting ashes upon'it, or in some other manner.” The degree of care requisite for securing safety varies with the exigencies of the case, and it is no error to assert that a more watchful scrutiny should be exacted and bestowed in winter than in summer in protecting steps, landings and platforms from dangerous accumulations of snow and ice. Indeed, the evidence in this case shows that the defendants recognized this very obligation, for one of their witnesses testified that he always did his best to try and keep the platform free from snow. That he generally took ashes or sand, and shook it on the platform, and on the steps leading in and out of the door. That he took a broom, and swept the snow off; and a mop, and mopped it after-wards, “Avhich,” he adds “was my duty to do.” In exacting from their employees a more stringent observance of the precautions requisite for securing the safety and comfort of their passengers than their counsel deems strictly obligatory, we think the defendants but conformed to the requirements of law, and in no Avise exceeded their responsibility to the public. It was for the jury to determine, on all the evidence, whether such precautions were in fact observed or omitted.

The exceptions taken at the trial to certain rulings of the court in rejecting evidence have been considered, and are not deemed tenable.

The motion for a new trial on the ground of newly discovered evidence was properly denied. The existence of this evidence alleged to have been newly discovered, could readily have been ascertained by the defendants prior to the trial, had proper diligence to that end been employed. Indeed, facts within the knowledge of the conductor "in charge of the train upon which an accident occurs, may properly be deemed to be within the knowledge of the company running the train. That the defendants’ superintendent failed to inform himself of such facts by inquiry of the conductor, affords no ground for ordering a new trial; especially where, as in the present case, no effort seems to have been made to secure the attendance or obtain the deposition of the conductor, who might well have been presumed, and was, in fact, known to defendants’ counsel to be a material witness for the defense.

Ordinary diligence on the part of the defendants would have elicited from their conductor all the facts within his knowledge pertinent to the controversy, and the omission to interrogate him fully, and to procure Ms testimony, is wholly inexcusable. Applications of this character are addressed to the discretion of the court, and are regarded with disfavor. The applicant must show that he has done all in his power, and that failure to discover the testimony was owing to no delinquency on his part. “If the least fault be imputable to him he will ask for relief in vain” (3 Graham & Waterman, 1026).

I am of opinion that the newly discovered evidence in question would not, if adduced at the trial, have materially affected the result. It is not of sufficient weight to authorize a new trial.

The judgment and orders appealed from should be affirmed with costs.

Curtis, Ch. J., and Freedman, J., concurred


author: By the Court. — Sanford, J.

text:
    ARTHUR T. WHITE, Plaintiff and Appellant, v. LEWIS MEALIO, et al., Defendants and Respondents.
    LEASE.
    Reservation op the Right op Entry upon the Premises by the Landlord to make Repairs, &c.

      Consideration for a promise of the landlord to pay tenant for do,Triages caused by an entry and holding of the premises to secure the same against excavations being made on adjoining lot.

    In this case the plaintiff was a tenant of defendants, and held under a lease which reserved to the landlord the right of entering the premises “at reasonable hours in the day time to examine, <6c., and to maJce such alterations and repairs therein as shall be necessary for the preservation thereof or of the building. ”
    The defendant agreed to allow plaintiff one quarter’s rent if he would permit needles to be inserted and remain in the walls of the premises for two weeks, in order to shore up or secure the building against the danger of excavations being made upon adjoining premises, and if they remained more than two weeks the defendant agreed “to make it right” with plaintiff. The needles remained for a period of about eight weeks, to plaintiff’s injury, &e. Held, that the defendant was liable on his promise for the injuries committed and damages sustained, notwithstanding the conditions in the lease, and there was ample consideration for the promise.
    Evidence tending to contradict the facts in the case as claimed and proved by the plaintiff, makes a case for submission to the jury, and a dismissal of the complaint is error.
    Before Sedgwick and Sanford, JJ.

      Decided March 5, 1877.
    Appeal from a judgment in favor of defendants for $465.95 costs entered upon the dismissal of the plaintiff’s complaint.
    This case has been twice tried. On the first trial, the complaint was dismissed at the close of the evidence on behalf of the plaintiff. Exceptions then taken were heard in the first instance, as ordered, at general term, and were overruled. The court of appeals reversed the judgment thereupon entered in defendant’s favor, and directed a new trial. On the second trial, a motion for dismissal, made at the close of plaintiff’s case, was denied; but, after testimony had been taken on behalf of the defendants, such motion was renewed, and was granted. Judgment was thereupon entered in favor of the defendants for their costs, and from that judgment the plaintiff now appeals.

      S. Jones, for appellant.

      E. T. Brown, for respondent.
   By the Court. — Sanford, J.

—This action was brought for the recovery of damages alleged to have been sustained by the plaintiff by reason of defendants’ breach of an agreement to compensate him for an injury to his business, occasioned by their running needles through the walls of the premises occupied by him, in order to shore up the building while excavations were making upon adjoining premises. The plaintiff was a tenant of defendants’, and held the premises occupied by him under a lease from them which reserved to the landlord or his agent, the right of entering the premises “at reasonable hours in the day-time, to examine or to make such alterations and repairs therein as shall be necessary for the preservation thereof, or of the building.” The complaint alleged that before the insertion of such needles, the defendants agreed to allow the plaintiff one quarter’s rent with the understanding that the needles were not to remain more than two weeks; but that defendants wrongfully allowed them to remain for nearly eight weeks, against the plaintiff’s will, and to the injury of his business.

Upon the trial, the plaintiff testified that upon being notified by the persons who were about to commence the work that such needles were to be inserted, he refused to permit them to be put in until he saw Mr. Mealio, (one of the defendants). That he went with the foreman who had thus notified him to Mr. Lewis Mealio, and objected to the introduction of the needles as they would inconvenience him a good deal; that, on being asked by Mealio what he wanted, he said he wanted some equivalent, because they would upset him in his business; that Mealio then asked the foreman how long the needles would be in ; that the foreman replied, about two weeks; that Mealio again asked what he wanted, and that he thereupon demanded $100 ; that, after some conversation as to the amount of rent he was paying, viz., $350 per annum, Mealio said, “I will give you a quarter’s rent, and, if it is any longer than the two weeks, I will make it right with you.” That, under that condition, he let the men come in with the needles. They came in on February 17 or 18, and remained till April 8, 1867, materially obstructing him in his trade during the whole period.

The testimony on the first trial was substantially to the same effect.

The court of appeals held that this evidence established the liability of the defendants for the injuries committed, and made out a prima facie case against them, notwithstanding the lease; and that, in the absence oí evidence tending to show that the alterations were necessary to the preservation of the building, and that the time employed was not unreasonable, the lease constituted no justification. It further held that, without regard to this question, the plaintiffs were entitled to recover under defendants’ agreement to pay them a certain amount for the damages sustained ; that there was adequate consideration to support the defendants’ promise in the plaintiff’s claim, to which the defendants assented, of a right to exclude them from inserting the needles,. and having his premises exposed day and night, while the lease only authorized repairs in the day-time.

At the second trial, the defendants gave evidence in contradiction of the plaintiff’s testimony as to the alleged agreement, and also proved, without contradiction, that they were not the owners of the building, but merely lessees thereof; and that the men who inserted the needles were not employed or paid by them, but by their landlord ; and that the work done was necessary for the preservation of the building.

But Lewis Mealio testified that, when the plaintiff complained of the inconvenience to which the insertion of the needles would subject him, and was captious' about it, he said in reply that “if we did not put these things in, we would be liable to the landlord for any damages done to his building,” and the foreman, who was present when the interview between the plaintiff and Mealio occurred, in which the alleged agreement was made, if at all, but who did not hear what passed between them, states that after they had talked together Mealio said to him, “go on and put in the needles; ” that it was “ all right.”

There is, therefore, evidence tending to show that. the work was done by defendants’ direction, under an agreement between them and the plaintiff that compensation should be made to the latter for the inconvenience to him thereby occasioned. The agreement, indeed, is not denied in the answer, and the decision of the court of appeals is to the effect that there was ample consideration to support it. Such evidence sustains the allegations of the complaint, and the only effect of testimony in contradiction is to require the submission of the disputed points to the jury. The plaintiff allowed such testimony to come in without objeótion, notwithstanding the implied admission of the answer, and only asked that the jury might be allowed to pass upon this question, and upon ah the questions in the case.

The court refused to permit the case to go to the jury, except upon the question “whether the needles were permitted to remain an unreasonable length of time.” The submission of that question, alone, involved a determination by the court of defendants’ liability only in case of unreasonable delay on their part in removing the needles; but, if the agreement was made as alleged, and was valid, the plaintiff was entitled to recover under it “what was right," whether the needles remained for an unreasonable length of time or not, and the amount of his just and reasonable compensation was a question for the jury.

If the agreement was not made as alleged, the pleadings presented the issue whether the injuries complained of were committed by the defendants; if so, whether, in committing them, they exceeded their rights as reserved by the lease; and, finally, in such case, what amount would be adequate as indemnity to the plaintiff. Upon all of these questions there was conflicting evidence. The refusal, therefore, to submit the case to the jury upon any other question than that spepified by the court, and the dismissal of the complaint upon the plaintiff’s declining to have that question, alone submitted, and after his request to be allowed to go to the jury upon the whole case and on all the questions involved, including the question whether there was an agreement between Mealio and the plaintiff, constituted error for which a new trial should be granted. It involved a determination adverse to the plaintiff, of the question as to the making of such agreement; whereas, under the omission from the answer of any denial of the making thereof, the least that the plaintiff could ask was that the conflicting evidence on the subject should be passed upon by the jury. The defendant’s counsel urges that the agreement, if made, was void for lack of consideration, and it would seem that the ruling of the court below was based upon that assumption. But the court of appeals, as I have already intimated, seems to have adopted the opposite view, and to have held the consideration sufficient, and the defendants’ promise binding, if made.

Were the question an open one, I think it sufficiently appears from the evidence that the defendants had a direct interest in having the building shored up and the needles inserted; that the plaintiff strenuously objected, claiming that they would interfere with his business, and that he had the right to exclude them; that the defendants, by negotiating and contracting with him, acknowledged that there was color for his objection; and I am of opinion that, under those circumstances, his concession of the privilege constituted an adequate consideration for their promise to compensate and indemnify him for the inconvenience thus occasioned.

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

Sedgwick, J., concurred.


author: By the Court.—Sanford, J. Curtis, Ch. J. [concurring in result on different grounds.]

text:
    HANNAH M. CARTER, Plaintiff and Respondent, v. DANIEL S. YOUNGS and JENNIE YOUNGS, Defendants and Appellants.
    Substituted service op summons and complaint, under the ACT TO FACILITATE THE SERVICE OP PROCESS IN CERTAIN CASES,

      Session Laws of 1853.
    This act is applicable to cases in Which the defendant, if a resident of the State, cannot he found, after proper 'and diligent effort to effect service upon him, or, to cases in which, if found, he avoids or evades such 'service. These provisions are in the alternative form, "and are not coupled conjunctively; if, therefore, it sufficiently appeared by the affidavit upon which the order was made, that the defendant could not he found (no question being raised as to the earnestness or diligence of the effort to find him) the order was properly granted.
    The word found, as used in the statute, is the equivalent of the Latin word inventus. The primary definition of the verb to find, is to come to, to meet, and hence to reach, to attain to, to arrive at,

    It appears by the affidavit upon Which the order was granted in the case at bar, that the officer charged with the service of the summons, was unable to reach or get at the defendant so as to serve him personally, and such inability afforded sufficient grounds for a resort to other service, which this statute provides in cases where the defendant cannot be found, even although the defendant did not attempt to evade or avoid personal service.
    Although the order appears to have been made on the ground of an evasion or avoidance of service, it was not irregularly or improvidently granted. The question is, does the law authorize the act upon the facts appearing in the case, namely, that the defendant could not he found hy the officer.

    Jurisdiction does not depend upon the intention of the officer or tribunal undertaking to act, but upon the facts upon which they act.
    Ch. J. Curtis, in an opinion that concurs in the result, holds that under the facts in the case, the defendant, through his wife as his agent, or acting for him in the premises at the time, declined or avoided the service, and the order for substituted service was authorized thereby.
    Before Curtis, Ch. J., and Sanford and Freedman, JJ.

      Decided March 5, 1877.
    Appeal from an order denying defendant’s motion to set aside an order made for a substituted service of the summons and complaint on the defendant Daniel S. Youngs.
    The summons and complaint were served, on March 27, on the defendant Mrs. Youngs, at the-residence of the defendants, by a deputy sheriff. She informed him that her husband was ill within the house, and declined to give him permission to see him or to serve him. The officer in Ms affidavit stated he was unable for these reasons to make such service, and an order was made for a substituted service. The affidavits to vacate the order for a substituted service show that at the time the defendant Darnel S. Youngs was ill in the house, and that a personal service, by disturbing and exciting Mm, would probably have been detrimental to Mm.

      Luther R. Marsh, for appellants.

      George W. Lord, for respondent.
   By the Court.—Sanford, J.

The “Act to facilitate the service of process in certain cases” (Laws of 1853, ch. 511), materially enlarges the power of courts and 'judges to dispense with the necessity of personal service; and, without directly amending the Code, in terms, greatly modifies its provisions with respect to the manner in which the service of a summons may be made. Under subdivision 2 of section 135 of the Code, service by publication can only be made when it appears by affidavit to the satisfaction of the' court not only that the person upon whom service is to be made cannot, after due diligence, be found within the State, but also, if he be a resident of the State, that he has departed therefrom, with intent to defraud his creditors, or to avoid the service of a summons, or keeps himself concealed therein with the like intent. Satisfactory proof must be furnished, as well of such departure or concealment, and with the intent aforesaid, as of the fact that the person upon whom service is to be made cannot be found.

In Towsley v. McDonald (32 Barb. 604), a judgment rendered upon service by publication was held void for want of jurisdiction, because the affidavits on which the order of publication was made failed to show an intent to defraud creditors or to avoid the service of a summons, although it sufficiently appeared that the defendant was a resident of the State, and could not be found therein, but had either departed therefrom or kept himself concealed. And in that case the court refused to infer an intent to avoid service from the fact of departure or concealment, in the absence of proof that a suit was threatened, expected or feared.

In Van Rensselaer v. Dunbar (4 How. Pr. 151), an order for publication was refused, where the officer who had the summons saw and pursued the defendant, but failed to effect service, by reason of the superior fleetness of defendant’s horse. It was remarked in that case, that if the statute had only required, generally, that the defendant could- not be found within the State, and the sheriff had returned non est inventus, that might have been sufficient; as it is said that a return non est inventus is good, even if the plaintiff know where to find defendant. But inasmuch as the defendant, although not to Yucfound, could not also be said to have concealed himself with intent to avoid the service of a summons, it was held that the case was not brought within the statute, and the application was denied.

The act of 1853, authorizing substituted service, is applicable either to cases in which the defendant, if a resident of the State, cannot be found, after proper and diligent effort to effect service upon him, or to cases in which, if found, he avoids or evades such service. The provisions of the act are in the alternative form. They are not coupled conjunctively, as is the case in the Code. If, therefore, it sufficiently appeared by the affidavit upon which the order was made, that the defendant Daniel S. Youngs could not be found, no question being made as to the earnestness and diligence of the effort to find him, the order was properly granted, and the motion to vacate it was properly denied.

I think the word found is used in the statute in its technical sense, as the equivalent of the Latin word inventus, which has long been employed in legal practice. Indeed, the two words are synonymous, as well in them general as in their technical use. “ To find,” says Webster, “coincides in origin with venio, but in sense with invenio.” And the literal signification of invenio is to come upon, to get at. The primary definition of to find, as given by Webster, is to come to, to meet; and hence, to reach, to attain to, to arrive at. It appears by the affidavit upon which the order now in question was made, that the deputy charged with the service of the summons in this suit was quite unable to reach or get at the defendant so as to serve him personally; and such inability afforded sufficient warrant for resorting to the remedy which the statute affords in cases where the defendant cannot be found, even although no attempt may have been made by the defendant to avoid or evade such service. For this reason, I am of opinion that the order for substituted service was not irregularly or improvidently granted, notwithstanding it appears on its face to have been made on the ground of an avoidance or evasion of service, and not upon the ground above considered. Every intendment is in favor of the jurisdiction ; and ‘‘ jurisdiction does not depend upon the intention of the officer or tribunal undertaking to act. The question is, Does the law authorize the act?” (Snyder v. Plass, 28 N. Y. 465).

I cannot assent to the proposition that the affidavit shows either an avoidance or evasion of service on the part of Mr. Youngs, since there is no proof whatever that he suspected or believed, or had reason to suppose that a suit was about to be instituted against him, or that process or papers were about to be served. But inasmuch as it appeared that he could not by proper and diligent effort be found, and personal service could not, for that reason be made, I am of opinion that the motion to vacate was properly denied, and that the order appealed from should be affirmed with costs.

Freedman, J., concurred.

Curtis, Ch. J. [concurring in result on different grounds.]

The order for the substituted service was made under the provisions of the act of 1853 (Session Laws, 974). This act is remedial in its character, and was probably intended to meet a class bf cases not provided for in subdivision 2 of section 135 of the Code, which designates a mode of service where there is a departure from the State, with intent to defraud creditors, or to avoid the service of a summons, or a concealment within the State with a like intent.

It was evidently the intention of the framers of this provision of the statute of 1853, that no suitor should be deprived of his remedy, or hindered in the service of process against a resident of the State, where he could not “be found, or if found, avoids or evades service, so that it cannot be made personally.” The rules of the United States supreme court direct that the process of subpoena issuing against the defendants on the filing of a bill in equity, shall be served by a delivery of a copy to the defendant personally, or by leaving a copy at the dwelling-house or usual place of abode of each defendant, with some person who is a member or resident in the family.

It is the aim of justice to protect both parties, and neither should be deprived their rights, and the courts are open to protect them from hardship either in efforts to serve process or from want of due notice.

In the present case the summons and complaint were served on the defendant Mrs. Youngs, March 27, 1876, who, as it appears by her affidavit, then, and for several months had been well acquainted with her husband’s business affairs, and assisted him in conducting them. When the officer served the papers upon her, she, acting for and on behalf of her husband, refused him permission to see him, or to serve him, and made such statements about his health to the officer, that though her husband could have been found in the house at the time, he did not serve him. Mrs. Youngs was the agent and the custodian of her husband at this period, and as such, and for his welfare and interest, as she deemed it, thus enabled him to avoid personal service. It was simply an avoidance of personal service by the acts of defendant’s agent and custodian, and the case appears to have been one where the defendant, ■ either acting for himself, or through those who ordinarily acted for him, might very properly, in consideration of the condition of his health, decline and thereby avoid being served.

But the statute wisely provides that in such a con-' tingency as this, there may be another mode of service by which the rights of all parties can be protected ; for it must be observed that there are occasions for the commencement of suits where persons are made defendants whose interests would suffer detriment, unless there was some mode of bringing them within the remedial protection of the court, by other ways than by personal service.

It was not the intention of the legislature, that where physical disability interferes with and renders personal service dangerous to a defendant, and it is for that reason avoided by or on behalf of such defendant, that a suitor should be left remediless either to protect himself, or the party sought to be served.

The affidavit of the appellant Daniel S. Youngs, made four weeks after the substituted service, states that he was told by his wife, that this suit had been commenced, though he does not state when he was so told, and the clear and elaborate narration contained in it confirms his allegation as to his convalescence. It is apparent from the record that comes before the court on the defendant’s appeals, that his interests are duly watched and protected, and there is no reason to believe that he has been otherwise than benefited by the order for a substituted service, under which he seems to have diligently proceeded in the litigation.

The order appealed from is not at variance with the views expressed in Simpson v. Burch (4 Hun. 315) and Collins v. Ryan (32 Barb. 647).

It should be affirmed without costs to either party.


author: By the Court.—Freedman, J.

text:
    SIDNEY DILLON, and Others, Plaintiffs and Respondents, v. JOHN S. MASTERSON, Defendant and Appellant.
    i. oohtraot, hon-performahoe bt the time limited.

    1. WAIVER OF.
    («.) What is.—Permitting the continuance of work under the contract after the time limited, is.
    (5.) Effect of.—The contract continues open for performance until another limit is fixed, either by the service of a notice requiring performance by a reasonable time therein specified, and notifying the party on whom it is served, that in case of default in so performing his rights would be deemed abandoned, or in some other manner.

    1. Effect of such a notice.—In case of default in complying with it, the party giving it may rescind the contract and retain the benefits of a partial performance, but in such case he would waive his claim for damages.
    (c.) Notice, what not sufficient to limit the time for PERFORMANCE.
    1. One to the effect that the party serving it. would take the further execution of the contract into his own hands, and complete the same for account of the party on whom it is served and hold him responsible in damages, is not.
    1. Effect of such a notice.

    1. It is an act of the party giving it, which prevents full performance by the other.
    2. Consequently the party on whom it is served is entitled to recover the value of what he had done under the contract.
    3. The party giving it is entitled, there being no unperformed condition on his part, to recover the damages sustained by him in consequence of the delay in performance.

      3. DAMAGES.

      (a.) Collateral contracts, damages sustained under,
    WHEN RECOVERABLE.
    1. When one, on making a contract with another, knows that that other party has an existing contract with a third party for the same work, and that such other party is making with him a sub-contract to the principal one, and he by his sub-contract agrees to supply the work necessary to fill the principal contract, any damage to the principal contractor, which would naturally flow from a breach by Mm of his principal contract in consequence of the default of the sub-contractor may be recovered of, or recouped against the sub-contractor.
    1. What damage does not so naturally flow.

    1. The damages, if such there are, arising from the refusal of the third party to give other contracts to the principal contractor, by reason of his being in default in his existing contract, which default was caused by the default of the subcontractor, do not.
    Before Curtis, Ch. J., Sanford and Freedman, JJ.

      Decided March 5, 1877.
    Tkis action arose out of a written contract, by which the plaintiffs agreed to furnish the necessary materials for filling up, and to complete the filling of Seventy-sixth street, in the city of New York, and have the ■ same completed on or before June 1, 1873, and by which the defendant agreed to pay for such work, upon the completion thereof, at the rate of twenty cents per cubic yard.
    The plaintiffs failed to complete the contract at the time agreed upon, but at the request of the defendant proceeded from time to time with the work until the month of December following, when the defendant terminated the contract by the following notice:
    “In consequence of your violation of your contract dated February 13, 1873, for filling of Seventy-sixth street, between Lexington and Madison avenues, in this city, and in consequence of the loss and damage caused to me by your non-fulfillment of the same; I hereby notify you that I shall now proceed to have the same completed and hold you personally responsible for the damages caused to me by your delay and action in the premises.”
    The plaintiffs thereupon brought this action to recover for the work done up to the time of the notice.
    On the first trial, before a referee, the defendant had judgment, which was afterwards reversed by the general term (39 N. Y. Super. Ct. 133).
    The case was re-tried before the court and a jury, and the plaintiffs had a verdict for the full amount of the work done.
    The appeal is by the defendant from the judgment entered upon such verdict, and from the order denying his motion for' a new trial.

      L. A. Gould, attorney, and of counsel for appellant, upon the points discussed by the court, urged:
    I. The complaint should have been dismissed as requested. The plaintiffs had abandoned the work before the service of the notice; the plaintiffs say they worked “till sometime in the fall, can’t state the date exactly;” another says they quit the work some time in December; there is no denial of the .defendant’s testimony, that they had quit the work before he served the notice ; they never offered, and there is no evidence that they ever intended to complete the contract. Even admitting that plaintiffs have a claim-for work done, it could not become due till the contract was finished, which was long after the bringing of this suit, because defendant did nothing to hinder and used due diligence to complete the work, and plaintiffs do not show that they could or would have completed it at an earlier day (Champlin v. Rowley, 18 Wend. 187; Wallman v. Society of Concord, 45 N. Y.
      485; Cunningham. v. Jones, 20 Id. 486; Mead v. Degolyer, 16 Wend. 632).
    II. The defendant suffered great damage from the plaintiff’s delay and failure to complete the contract, all evidence of which the court rejected and excluded. The defendant did not waive his right to damages by excusing plaintiff’s failure to perform within the time agreed upon (Ruff v. Rinaldo, 55 N. Y. 664; Beebe v. Johnson, 19 Wend. 500). This testimony was excluded on the theory that the damages were too remote, and did not flow directly from plaintiffs’ breach of the contract. But defendant offered, to show that the plaintiffs knew before entering into this agreement with the defendant that this was a sub-contract, that their failure to complete at the time fixed must of necessity put defendant in default and must cause him the very damages which he now sets up. The exclusion of this testimony was manifest error (Messmore v. N. Y. Shot & Lead Co., 40 N. Y. 422; Griffin v. Colver, 16 Id. 493).

      Alex. Thain, attorney, and of counsel, for respondent, on the points discussed by the court, urged:
    I. Defendant’s counter-claim is made up of damages for losses peculiar to a contract collateral to the one alleged to have been broken, and to which the plaintiffs were not parties: for such damages there can, therefore, be no recovery against them (Masterton v. Mayor, &c. of Brooklyn, 7 Hill, 61-68). Such damages are not fairly to be supposed to have entered into the contemplation of the parties at the time the contract between them was made, and are also disallowed as too remote and contingent (Masterton v. Mayor, &c. [supra], per Nelson, J., 68; Griffin v. Colver, 16 N. Y. 489-495). The questions, therefore, tending to show knowledge on the part of the plaintiffs that defendant had a contract with the city involving this and other work, were wholly immaterial. Had the parties intended that plaintiffs should be bound by the terms of such collateral contract, or had it been contemplated that they were to be answerable for damages so remote they would have made it so in the contract, and not left so important a question in doubt. The reference to the contract between the defendant and the city in the one between the plaintiffs and defendant could have had no other object than the identification of the work.
    II. The motions to dismiss the complaint were properly denied. The plaintiffs had shown that they had furnished upwards of 20,000 yards of materials under their contract with defendant, and had failed to entirely complete the work because defendant assumed to complete it himself.

       Compare Kemple v. Darrow, 39 N. Y. Sup’r Ct. 447.

   By the Court.—Freedman, J.

On the former appeal which had been taken by the plaintiffs, the general term of this court held, and the point actually decided was, in substance, that inasmuch as the contract had been kept alive by the acts of the parties after the expiration of the time limited for the performance thereof, if the defendant had wished to annul the rights of the plaintiffs under the same, he should have given them a notice requiring performance within some reasonable time specified, and further notifying them, that in case of default their rights would be deemed abandoned ; and that no such notice having been given plaintiff’s action for the price should have been sustained.

On the trial which is now the subject of review, the plaintiffs obtained a verdict, but the defendant was not permitted to recover any damages suffered in consequence of plaintiffs’ delay in completing the work, and the principal question involved in the present appeal is, whether the defendant has a right to recoup such damages, and, if so, to what extent he may do so.

Upon plaintiffs’ failure to complete, at the time designated in the contract for the completion thereof, defendant might have rescinded.

He elected not to do so, but from time to time he called upon the plaintiffs to proceed with it, which they did to some extent up to the month of December following, when they again ceased work. Both parties, therefore, departed from the provision of the contract as to time, and hence plaintiffs’ rights could not be annulled without another time being'fixed and a new default being made.

In the month of December following, on becoming tired of plaintiffs’ dilatoriness and apparent abandonment of the contract, the defendant did serve a notice. But instead of serving one which called upon the plaintiffs to complete within some reasonable time therein specified, and which notified them that in case of default their rights would be deemed abandoned, he served a notice to the effect that he would take the further execution of the contract into his own hands and complete the same for account of the plaintiffs and hold them responsible in damages.

Full performance on the part of the plaintiffs having been thus prevented by the deliberate act of the defendant, plaintiffs were entitled to recover for what they had done up to that time, and the defendant was bound to make the compensation. This liability on the part of the defendant, however, is coupled with his right to insist upon a deduction for the damages sustained by him in consequence of the delay.

Had he first notified the plaintiffs to complete within a reasonable time specified, he might, on their default, have rescinded and retained the benefit accruing to him from a partial performance. In such case he would have waived his claim for damages.

But having adopted the other course, which was in affirmance of the contract, and which rendered him liable to pay for such partial performance, and there being no condition of the contract unperformed on his part at the time of such election, he is not estopped from claiming damages (Ruff v. Rinaldo, 55 N. Y. 664; Cassidy v. Le Fevre, 45 Id. 562; Dibble v. Corbett, 5 Bosw. 203 ; Sinclair v. Tallmadge, 35 Barb. 602).

The question therefore remains, what damages the defendant is entitled to.

No effort was made to show, and indeed it is not claimed, that the defendant incurred a larger expense in doing the work which he did himself subsequent to the notice given, than he would have incurred if he had permitted the plaintiffs to finish their contract.

It appears, however, that the whole work to be done by the plaintiffs for the defendant under the contract in question, was embraced in a prior contract between the defendant and the corporation of the city of New York, and the contract between the parties to this action recites such fact.

At the trial the defendant offered his contract with the city in evidence, for the purpose of thereby laying the foundation for the proof of damages which he alleged he sustained under that contract by reason of plaintiffs’ delay, and it was excluded.

He also offered to show that the plaintiffs had examined the said contract of the defendant with the city, that they knew its terms and conditions, and that defendant’s liability under the same was dependent upon the performance of plaintiffs’ contract, before plaintiffs entered into the' contract in suit, and that the former constituted the basis upon which the latter was made. This testimony was excluded.

I am of the opinion that these rulings constituted error.

True, in ordinary cases and under the operation of the rule applicable to that class of cases, that damages, in order to be recoverable, must not only be such as might naturally be expected to flow from the violation of the contract in suit, and such as are certain both in their nature and in respect to the cause from which they proceed, but must also be such as may fairly be supposed to have entered into the contemplation of the parties at the time of the execution of the contract, in settling the amount of damages to be recovered for the breach of the principal contract, damages sustained on collateral contracts entered into as subsidiary to the fulfillment of the principal one, cannot be considered (Masterton v. Mayor, &c. of Brooklyn, 7 Hill, 61).

But when the sub-contractor, at the time of making his contract, knows that the principal contractor has an existing contract for the same work, and that the sub-contract is made to fulfill the principal contract, and the sub-contractor agrees to supply the work to enable the principal contractor to fulfill his contract, any damage which the principal contractor might naturally be expected to sustain under his contract in consequence of the default of the sub-contractor, may justly be said to have entered into the contemplation of the parties to the sub-contract, and may be recovered for that reason, if subsequently sustained and capable of being ascertained with certainty (Messmore v. N. Y. Shot and Lead Co., 40 N. Y. 422).

The evidence should, therefore, have been received, and then the duty would have devolved upon the court to see to it, that the defendant recovered no damages except such as clearly and naturally flowed from the breach of the contract with the city, as necessitated by plaintiffs’ breach of their contract with him. Defendant’s claim for damages in being kept from obtaining other contracts, can under no circumstances be sustained ; but as to his right to recover any of the other items set forth in his bill of particulars, in respect to which he ineffectually sought to give testimony, I am unable to form an opinion without having the excluded contract before me.

Inasmuch as it sufficiently appears, however, that the excluded testimony above referred to, together with other proof subsequently offered and likewise rejected, might have entitled the defendant to some recoupment, the judgment and order appealed from should be reversed, and a new trial ordered, with costs to appellant to abide the event.

Curtis, Ch. J., and Sanford, J., concurred.


text:
    FREDERICK W. MOORE, et al., Plaintiffs, v. LOUIS J. BELLONI, Jr., Defendant.
    I. EVIDENCE.

    1. WRITTEN INSTRUMENTS.

      (a.) Copies, when admissible without accounting for the originals.

    1. When the party against whom they are offered, furnished them to the party on whose behalf they are offered, as a guide in the performance of the contract contained in the originals to be performed by the latter for the former.
    II. BILL OF PARTICULARS.

    1. WHEN DEMANDABLE AS A MATTER OF RIGHT.
    (a.) Only when the action is on an account stated, not when it is based on the original indebtedness.
    1. Meld in this case not to be demandable.

    2. PRECLUDING THE GIVING OF EVIDENCE FOR NOT FURNISHING ON DEMAND, IN A CASE WHERE IT IS DEMANDABLE.

      (a.) Order at special term. An order to that effect should be obtained at special term in advance of the trial.
    (6.) Application at the trial. If the motion to produce is made in the first instance at the trial, it is then at best addressed to the discretion of the trial judge, the exercise of which should not be interfered with on appeal.

    Before Curtis, Ch. J., Sanford and Freedman, JJ.

      Decided March 5, 1877.

      Exceptions heard at general term.

    The defendant consigned to the plaintiffs, who are merchants at Buenos Ayres and Monte Video, two cargoes of coal for sale on commission.
    The action is brought by the plaintiffs to recover for advances and an alleged balance for disbursements on account of freight, demurrage, &c., over and above the proceeds realized from the sale of the coal.
    The complaint was as follows : ‘ ‘ For a first cause of action, plaintiffs allege that on or about September 30, 1872, the defendant consigned to the plaintiffs a cargo of coal by the bark “ Margaret S. Weir,” to take charge of and sell the same for the account of the defendant, and on which the plaintiffs, at the special instance and request of the defendant, advanced to the defendant the sum of five hundred and twenty-two pounds eighteen shillings and eleven pence, British money, on the sixteenth day of December, 1872, and that thereafter the said cargo of • coal arrived at Monte Video, and was there received by the plaintiffs, and the freight and other. charges thereon paid by the plaintiffs, and thereafter the said cargo was sold, and on the eighteenth day of March, 1873, the plaintiffs received the proceeds of said cargo and applied the same in payment of the freight and charges by them paid, and after so applying -the same, there remained a balance due the plaintiffs of four hundred and eighty-seven pounds eighteen shillings and four pence, which, together with the aforesaid sum of five hundred and twenty-two pounds eighteen and eleven pence, and the further sum of seven pounds sixteen shillings and ten pence for commission, together amount to the sum of ten hundred and eighteen pounds fourteen shillings and one penny, British money, and which sums the defendant promised to pay to the plaintiffs.
    “That the value of said ten hundred and eighteen pounds fourteen shillings and one penny in the currency of the United States is the sum of seven thousand dollars.

      “Second. And for a second and distinct cause of action the plaintiffs allege that, on or about the third day of December, 1872, the defendant consigned to the plaintiffs a cargo of coal by the bark ‘Kestrel,’ to take charge of and sell the same for the account of the defendant, and on which the plaintiffs, at the special instance and request of the defendant, advanced to the defendant the sum of two hundred and seventy-three pounds fifteen shillings and seven pence, British money, on the seventeenth day of February, 1873, and that thereafter the said cargo of co#l arrived at Monte Video, and was there received by the plaintiffs, and the freight and charges thereon paid by the plaintiffs; and thereafter the said cargo was sold, and on the nineteenth day of. March, 1873, the plaintiffs received the proceeds of said cargo, and, after paying the said freight and charges by them paid, applied the balance thereof, to wit, the sum of eighty-one pounds thirteen shillings in payment of said advance, and the interest and commissions thereon, amounting to the sum of five pounds five shillings and five pence, leaving a balance then due the plaintiffs thereon of one hundred and ninety-seven pounds eight shillings, which sum the defendant promised to pay to the plaintiffs, with interest thereon from the nineteenth day of March, 1873. That the value of said one hundred and ninety-seven pounds eight shillings in the currency of the United States is the sum of thirteen hundred dollars.
    “"Wherefore plaintiffs demand judgment against the defendant for the sum of eight thousand three hundred dollars, with interest on thirty-five hundred dollars from the sixteenth day of December, 1872, and on forty - eight hundred dollars from the nineteenth day of March, 1873, besides costs.”
    On the trial the court ordered a verdict for the plaintiffs for §6,744.15 in gold, and directed defendant’s exceptions to be heard in the first instance at the general term.

      Scudder & Carter, attorneys, and George A. Black, of counsel, for plaintiff, on the questions discussed by the court, urged:
    I. The defendant’s exceptions to the admission of the evidence of payments made by plaintiffs and his objection thereto are based upon a demand of copies of the accounts and omission to serve them. The answer to the objection is two-fold: 1. The complaint does not allege any account, and the action is not in its nature based upon an account, but is for money lent and paid, laid out and expended, and there was consequently no items of an account to set forth (Code, § 158). 2. If the defendant desired to preclude the plaintiff from giving evidence on the ground of failure to comply with the demand, his remedy was to apply to the court, at special term, and have the question settled there, in advance of the trial (Kellogg v. Paine, 8 How. 332; Goring v. Patten, 17 Abb. 339).
    II. The exceptions of defendant to the admission of the copy charter-parties are not well taken. If the originals were the best evidence, the defendant had notice to produce them, and failed to do so. But, taken in connection with the evidence that the broker always kept the original charter-party, and furnished copies to the parties, and with the defendant’s letters, in evidence, mentioning the inclosure of the charter-parties to the plaintiffs’ agent, and the evidence of Hughes that the documents had gone to Moore and Tudor by mail, had come back to Hughes and been handed by him to the plaintiffs’ attorney, and were produced by them on the trial and identified, they were sufficiently proved. But the copies were in this case the best evidence. They were what the defendant furnished to the plaintiffs as their guide, as to the contract they were to perform for him.

      George L. Ingraham, attorney, and Charles A. Davison, of counsel, for defendant.
   By the Court.—Freedman, J.

The action is for advances and disbursements made over and above the proceeds realized from the goods consigned. There were two distinct consignments. The first was made in September, 1872, by the bark Margaret S. Weir, and the second in the month of December following, by the bark Kestrel. Defendant’s answer is in effect a general denial, except as to the advances which are admitted.

Defendant complains that against his objection and exception the court, upon the trial, admitted in evidence copies of the charter-party of both vessels.

Notice had been served on defendant’s attorney to produce the originals, but they had never been in his possession or in that of the defendant. George H. Brewer, a witness, had been subpoenaed to produce them, but it turned out that at the time of the service of the subpoena he was no longer connected with the shipping firm which had the custody of them. ¡Nor was any proof given that a search had been made for them and that they could not be found. Unless, therefore, the copies were admissible without accounting for the non-production of the originals, they were improperly received.

Proof was given, however, of the due execution of the originals by the defendant, and then it was shown that the shipping brokers always kept the original charter-party and furnished copies only to the parties in interest; that this custom was observed in this case; that the defendant received his copies, which were certified, and handed the copy relating to the bark Margaret S. Weir over to plaintiffs’ agent in the city of Hew York, who mailed the same to the plaintiffs ; that the copy received by the defendant relating to the bark Kestrel was mailed by the defendant himself to the plaintiffs; that the plaintiffs subsequently sent both copies so mailed to them back to their agent in the city of Hew York, and that said agent handed them over to plaintiffs’ attorney, who produced them in court.

Having been thus identified and connected with the defendant, the copies produced and put in evidence were clearly admissible. Indeed it may be said, that such copies were, as between the plaintiffs and the defendant, the best evidence, for they were furnished by the defendant to the plaintiffs as a guide, in the performance of the contract which they were to perform for him.

The defendant also objected to the admission in evidence of certain accounts of sales and disburse•ments relating to the cargo of the bark Margaret S. Weir, upon the grounds, first, that the defendant had, during the pendency of the action, demanded copies of the accounts mentioned in the complaint, and that the plaintiffs had omitted to furnish the same, and hence were precluded under section 158 of the Code from giving evidence thereof; and secondly, because, as they claimed, there was no evidence that the accounts offered had ever been rendered to the defendant.

As to. the first ground of objection the answer is twofold:

1. The complaint does not proceed upon an account stated. It is for moneys advanced, laid out and expended for defendant’s use, and it specifies the facts and circumstances under which, and the manner in which, it was done. The causes of action pleaded are based, therefore, upon the original indebtedness. It is only in cases in which the pleading is based upon a specific account, set forth in the manner permitted by section 158, that the items may be called for as matter of right.

2. Even if the complaint could be deemed to allege an account, if the defendant desired to preclude the plaintiffs from giving evidence thereof, on the ground of failure to comply with the demand, he should have applied to the court at special term, and have the question settled there in advance of the trial. Having delayed until the trial, the motion to preclude the plaintiffs was at best addressed to the discretion of the presiding judge, and the exercise of his discretion should not be interfered with, especially when it appears, as it does in this case, that the accounts were rendered to the defendant before the commencement of the action, and that their correctness as to items was expressly acknowledged by him.

As to the second ground of objection:

It distinctly appears that accounts were rendered by plaintiffs to defendant of both consignments. The defendant, by letter, acknowledged that he had examined them, and that they were correct as to figures. These accounts hti had notice to produce, but he failed to do so. The plaintiffs thereupon offered a copy of the account relating to the Kestrel, and the same was received without objection. The account of the Margaret S. Weir, it seems, was transmitted by the plaintiffs to their agent in ¡New York on the same sheet with the account of another vessel called the James Kitchen, in which defendant had no interest, and so much of the account as related to the Margaret S. Weir was offered and put in evidence after proof had been made that the agent referred to had shown the whole document to the defendant, and had discussed it with him, and that he had furnished the defendant with a copy of so much of it as related to the Margaret S. Weir.

¡No error was therefore committed in receiving the accounts.

The defendant finally claims that the case should have been submitted to the jury on the question whether the defendant is chargeable with the lighterage, demurrage and cartage set forth in the accounts.

The evidence was not only abundant, but uncontradicted, and all the facts and circumstances in the case seem to corroborate it, that these charges were incurred by the plaintiffs in good faith and necessarily, and hence plaintiffs were entitled to have the jury so instructed.

There are other exceptions in the case, but, as they have not been noticed in defendant’s points, they may be deemed to have been waived.

Defendant’s exceptions should be overruled and judgment ordered for the plaintiffs, upon the verdict, with costs.

Curtis, Ch. J., and Sanford, J., concurred.