author: “ Truax, J. By the Court.—Dugro, J.

text:
    JOHN L. STROUB, Appellant v. THE MANHATTAN RAILWAY COMPANY, Respondent.
    Injunction, order of, modification.

    This is an appeal from so much of an order of injunction made by Judge Truax, enjoining defendant from constructing a switch and turn-out in front of the house No. 2369 Third avenue, as provides that it be referred to William M. Hoes, Esq., to determine the value of plaintiff’s property in Third avenue, to be taken for the proposed structure, and . as further provides that upon payment of such sum the temporary injunction be not operative.

      Weld, that the order contains a provision which, in effect, provides a way for defendant to obtain plaintiff’s property other than that fixed by statute, and should be amended by providing that the injunction should continue until the defendant shall have obtained the right to enter upon the premises of plaintiff in the way provided by statute.
    Before Freedman, Dugro and Gildersleeve, JJ.

      Decided July 2, 1891.

      Appeal by plaintiff from a part of an order made at special term, upon plaintiff’s motion for an injunction pendente lite.

    The following opinion was delivered by the court at special term :—
   “ Truax, J.

The plaintiff is the lessee of premises situate on the east side of Third avenue, between One Hundred and Twenty-eighth and One Hundred and Twenty-ninth streets. The lease to him is from May 1, 1887, to May 1, 1897. Since the making of the lease the defendant has purchased the fee of the property.

“ The defendant is about to construct in front of plaintiff’s premises, a track or tracks leading from the line on Third avenue into One Hundred and Twenty-ninth street, and the plaintiff asks an injunction restraining it from so doing. There is now a portion of the defendant’s structure in front of the premises occupied'by the plaintiff, and it is to be noticed that the additional structure that the defendant intends to put in front of plaintiff’s premises will but slightly increase the inconveniences already suffered by the plaintiff. Such structure will take up a triangular piece of the extreme northerly corner of the sidewalk of the premises in front of plaintiff’s premises.

“ It is provided by section 5 of chapter 606 of the Laws, of 1875, that the commissioners, known as the rapid transit commissioners, appointed under said law, shall decide upon the plan , or plans for the construction of railway or railways with the necessary supports, turn-outs, switches, sidings, connections, landing places, stations, buildings, platforms, stairways, elevators, telegraph and signal devices, or other requisite appliances upon the route or routes, and in the locations determined by them. While the same act gives the defendant the right to enter upon and underneath the several streets, avenues, public places and lands designated by the said commissioners, and enter into and upon the soil of the same ; to construct, maintain, operate and use in accordance with the plan adopted by the said commissioners, a railway or railways upon the route or routes, and to the points decided upon, and to secure the necessary foundations and erect the columns, piers, and other structures which may be required to secure safety and stability in the construction and maintenance of the railways constructed upon the plan adopted by the said commissioners, and for operating the same (section 26.)

“ In accordance with the provisions of the rapid transit act, the commissioners laid out a route from the intersection of Third avenue and East Ninety-second street, crossing East Ninety-second street, over, through and along Third avenue to East One Hundred and Twenty-ninth st’reet, (there connecting with the ferries having landings at or near the Harlem bridge;) thence over, through and along East One Hundred and Twenty-ninth street to the intersection of East One Hundred and Twenty-ninth street and the Harlem river ; thence over and along the Harlem river to First avenue, and gave the defendant authority to construct such supports, turn-outs, switches, sidings, connections, landing places, stations, buildings, platforms, stairways, elevators, telegraph and signal devices, and such other requisite devices and appliances upon the route or routes and in the locations determined by the commissioners, as shall be proper for the purpose of rapid transit railways, and as shall be necessary to meet the requirements of the traveling public.

“ I am of the opinion that by virtue of the provisions of the statute above referred to, and of the act of the commissioners, the defendant has authority to erect the structure of which the plaintiff complains, especially in view of the fact that there is nothing before me showing that the structure cannot be constructed within the time fixed by the commissioners, if any time were fixed.

“ The plaintiff contends that the defendant should not be allowed to erect this structure, first, because it has not the authority so to do ; and, secondly, because it has not yet acquired his easements of light, air and access.

“ The first objection of the plaintiff is overruled for the reasons above stated.

“ Secondly, section 17, of chapter 606, of the Laws of 1875, gives to the defendant the right to acquire and hold such real estate or interest therein, as may be necessary to enable it to construct, maintain and operate the said railway or railways, and such as may be necessary for stations, depots, engine houses, car houses and machine shops; and in case any such corporation cannot agree with the owner or owners of any such real estate, or of any interest therein, it shall have the right to acquire title to* the same in the manner and by the special proceedings prescribed in that act.

“ The question to be determined in this case is whether the defendant should be allowed to acquire the easements in addition to the easements that it already had there before or after the construction of the additional track.

“ It is provided in the constitution of this . state that no person shall be deprived of life, liberty or property without due process of law, nor shall private property be taken for the public use without just compensation.

This court held in the case of Abendroth v. The Manhattan Railway Company, 22 Jones & Spencer, 417, affirmed 122 N. Y. 1, that an easement of light,air and access is private property, and within the provision of the state constitution above referred to, and such is now the law of this state.

“ It is stated in Lewis on Eminent Domain, § 631, that ‘ it is now almost universally held that an entry upon private property under color of the eminent domain power will be enjoined until the right to make such entry has been perfected by a full compliance with the constitution and the laws’ (see cases there cited.)

“ The case of Bloodgood v. The Mohawk and Hudson Railroad Company, 18 Wendell, 9, is one of the earliest cases on that subject.

“ The act of incorporation of the defendant in that case authorized them i to enter upon and take possession of and use all such lands and real estate as may he indispensable for the construction and maintenance of their single or double railroad or ways, and the accommodations requisite and appertaining to them, * * * provided that all lands or real estate thus entered and taken possession of and used by the said corporation, and which are not donations, shall be purchased by said corporation of the owner or owners of the same at a price to be mutually agreed upon betwixt them; and in case of a disagreement of the price it shall be the duty of the governor of the state to appoint three commissioners to determine the damages which the owner or owners of the land or real estate so entered upon by the said corporation has or have sustained by the occupation of the same, and upon payment of such damages, then the said corporation shall be deemed to be seized and possessed.’

“ Section 18 of chapter 606 of the Laws of 1875, provides for the appointment of commissioners of appraisal. Sections 18, 19, 20 and 21 provide for the appointment of commissioners of appraisal and for their method of procedure in determining the sums to be paid as compensation for the land and property taken. Section 22 provides that upon payment or deposit by the company of the sums to be paid as compensation for the land, and for costs, expenses and counsel fee as aforesaid, and as directed by said order, with interest from the date thereof, the company shall be entitled to enter upon, take possession of and use the said land for the purpose of its incorporation.

The act under which the defendant is incorporated, in this respect, is not unlike the act of incorporation of the defendant in the case of Bloodgood v. the Mohawk and Hudson Railroad Company above referred to. . In that case the Court of Errors decided that ‘ by the true construction of the defendants’ charter or act of incorporation they were not authorized to take and appropriate the plaintiff’s lands to their use for the purpose of making their railway thereon until his damages were appraised and paid or deposited for his use as provided for in the act of incorporation.’ And it was held in the case of Dusenbury v. The Mutual Telegraph Company, 11 Abb. N. C. 440, ‘ that the payment of compensation to owners along the proposed route of the telegraph company is a condition precedent to the right to erect lines, and applies to public roads, streets and highways and any other lands which the company is authorized to occupy.’

“ The plaintiff in this action alleges that by the acts of the defendant access to his premises is made extremely difficult, so that the number of persons resorting thereto has been already diminished, to his great damage, and will be in the future diminished if the acts contemplated by the defendant are carried out; that he will be injured by the noxious smells, vapors and noises generated by and emitted from the locomotives, which the defendant proposes to run over, the structure so to be erected, and by the soot, cinders and sparks of said locomotives, and by the interrupted and intermittent character of the light which will be caused by the trains and locomotives passing over such structure, and the light upon and within the said premises will also be greatly diminished by said structure itself; that the said contemplated acts of the defendant, if permitted to be continued or performed, will amount to a continual and serious detriment to the business of said plaintiff and to his residence, and are and will be inconsistent with the legitimate objects of the Third avenue for public enjoyment; that he has already suffered special damages in the sum of $250 (two hundred and fifty dollars) and such injury will be constant and continuous. These allegations are not denied.

Edward C. Perkins, attorney and of counsel, for appellant.

Davies, Short & Townsend, attorneys, and Julien T. Davies and Brainard Tolles of counsel, for respondent.

“ I am of the opinion that, within the decisions above referred to, the plaintiff is entitled to an injunction restraining the defendant from constructing the additional track in front of the plaintiff’s premises. This ruling works no hardship upon the defendant. It has and has had the right at all times to apply under the statute for the condemnation of the plaintiff’s property (see Carter v. N. Y. El. R. R., decided March 14, 1888, in which an injunction was granted by me.) It should ba,ve done this before it began to construct the road. Payment should precede taking. It must be enjoined until it shall have acquired bv nurchase or otherwise plaintiff’s easement. By acquiring the rights of adjacent property holders before taking those rights many actions will be saved.

“ Motion to continue the injunction granted upon the plaintiff’s giving an undertaking in the sum of $500, with two sureties.”

By the Court.—Dugro, J.

The plaintiff sought an injunction to prevent defendant from unlawfully taking his property.

For the reasons stated in the opinion of the learned judge at special term an injunction which will prevent this wrong should have been granted.

The order appealed from contains a provision bjr which defendant is, in effect, provided with a way to obtain plaintiff’s property other than that fixed by statute. As the facts presented do not show a necessity for such extraordinary aid, it should not have been granted.

The order appealed from is modified by striking therefrom all therein that follows the words or until the further order of this court” and inserting in lieu thereof the following: “ or until the defendant shall have obtained the right to enter upon the said premises in the way provided by statute.”

As thus modified the order should be affirmed, with ten dollars costs and disbursements to the appellant.

Freedman and Gildersleeve, JJ., concurred.


source: Caselaw Access Project

author: By the Court.—McAdam, J.

license: Public Domain

text:
    JACKSON ARCHITECTURAL IRON WORKS, Respondent v. CHARLES BROADWAY ROUSS, Appellant.

      Mechanic's lien—Building contract—Supervising architect, his powers beyond the terms of the contract, by implication, from the acts of his principal.

    This action was brought to foreclose a mechanic’s lien, the plaintiff claiming a balance due for contract and extra work, and another sum as the agreed price for the construction of ail iron staircase in defendant’s building.

      Held, that the agreement made by the architect of the plaintiff for the construction of the iron staircase was a proper exercise of authority, under the owner, in respect to the subject matter of his employment. It was competent for the owner to enlarge the specified powers given in the contract to the architect, and this he might do by word or writing, or by permitting the architect to make changes and alterations at pleasure, and afterwards paying for the work so done. Powers beyond those contained in the contract may thus be conferred upon the architect by the action of his principal. The defendant, with knowledge of the facts, ratified the previous acts of his architect in departing from the plans and specifications. After the defendant had received the full benefit of plaintiff’s work it would be inequitable to permit him to object for the first time, especially as the plaintiff was led to believe, from the acts of the defendant, that the architect had power to direct in. and contract for the work.

      Before Dugro and McAdam, JJ.

      Decided July 2, 1891.
    Appeal from the judgment of the special term in favor of the plaintiff and against the defendant for $11,531.96.

      Palmer & Boothby, for appellant.

      Norwood & Coggeshall, for respondent.
   By the Court.—McAdam, J.

The action was brought for the foreclosure of a mechanic’s lien, the plaintiff claiming $6,308.50 as a balance due for contract and extra work, and $4,138 as the agreed price of an iron staircase put up by the plaintiff in the defendant’s building.

The main controversy presented by the pleadings and tried by the court was over the question whether the staircase was included in the original contract between the parties, the defendant resting his claim of nonperformance of the contract on the proposition that because a certain staircase was included in the contract, and not built as he claimed it was provided it should be by the contract, that, therefore, the plaintiff had not performed the contract, and that the agreement made by the architect of the defendant with the plaintiff for the building of the staircase put in the premises was without the authority of the defendant and, therefore, not binding upon him.

The proof satisfactorily establishes the substantial performance of the contract and of the extra work, and that $6,308.50 was actually due therefor. The staircase, about which the main dispute arises, was erected by the direction and under the superintendence of the defendant’s architect under a special agreement to pay therefor $4,138. The architect was the defendant’s chosen agent to superintend the erection of the building, and all alterations were to be made under his direction and all disputes respecting the plans and specifications and the manner of doing the work were, by the contract, left to his decision. The contract between the parties contemplated the erection of a structure agreeably to the. plans and specifications, and the fact that certain enumerated powers were conferred upon the architect would not imply but rather negative any extension of his authority, yet the proof shows that the architect in at least seventeen different respects made changes and alterations which were subsequently ratified by the owner, a circumstance indicating that the owner did not mean to limit him to the powers expressly conferred, for he seems to have relied upon his superior experience to direct as well as superintend the erection and do everything necessary to make it complete and satisfactory. Indeed, in almost every large structure, alterations and modifications are found necessary to carry into practical effect the design of the architect, and the necessity for the changes become apparent as the building progresses.

The proof amply shows that the stairs, for which this $4,138 was to be paid, were not included in the original contract Avith the plaintiff, and that the agreement made by the architect for their erection was a proper exercise of authority which the owner by his conduct conferred upon the architect in respect to the subject matter of his employment. The trial judge found that the architect had authority, and the evidence sustains the finding. While the contract confers certain specified powers upon the architect, it was competent for the defendant to enlarge them, and this he might do by word or writing, or by permitting the architect to make changes and alterations at pleasure, and afterwards paying for the things so done, and this he did in reference to the plaintiff and its work upon the building in question. This principle has been applied to various eases.

Thus, where a clerk is usually intrusted to sign notes, or usually does sign notes for his master, which are afterwards paid, or recognized to be valid, he is presumed to possess a rightful authority to do so in other instances, within the scope of the same business (Story on Agency, Sec. 55.) The defendant, with knowledge of the facts, ratified the previous acts of the architect in departing from the plans and specifications, and in the instance of the stairs, about which he now objects, there was no previous dissent upon his part.

It would be inequitable to permit the defendant, after he has received the full benefit of the stairs, to object for the first time to paying for their erection, particularly as the plaintiff was led to believe from the conduct of the defendant that the architect had power to direct the work, and that it, like the other changes made, would be compensated for by the defendant.

The certificates of the architect, furnished to the plaintiff (there being no evidence of fraud or mistake), are evidence of due performance of the contract. (Anderson v. Meislahn, 12 Daly, 149; Wyckoff v. Meyers, 44 N. Y. 145 ; Butler v. Tucker, 24 Wend. 449 ; Smith v. Brady, 17 N. Y. 175 ; Stuart v. Keteltas, 36 Ib. 388 ; Glacius v. Black, 50 Ib. 151.) The certificates have not the force of proving that something was embraced in the contract which was in fact not included therein, but merely that the contract itself had been performed.

The doing of the extra work, including the extra stairway, and their value, were all established by competent evidence aside from the certificates. The case involves questions of fact which the trial judge on satisfactory evidence disposed of adversely to the defendant. We have failed to discover any reason for disturbing his findings or conclusions. Several exceptions were taken during the trial, but it is unnecessary to go over them in detail, for we regard them as without merit.

It follows that the judgment appealed- from must be affirmed, with costs.

Dugro, J., concurred.


author: By the Court.—Gildersleeve, J.

text:
    FREDERIC G. MOORE, Respondent v. PRENTISS TOOL AND SUPPLY COMPANY, Appellant.

      Chattel mortgage, prior liens based thereon—Conversion of property.

    This is an action for conversion.. On October 28,1889, the Yonkers Brass Works, a copartnership composed of Samuel Hunt, Herman Siebert and Charles Florence, executed and delivered to the plaintiff a chattel mortgage payable in thirty days, and which mortgage covered principally the machinery and tools of the Yonkers Brass Works at Yonkers, 'New York. The mortgage to the plaintiff was for twenty-three hundred and fifty dollars, and was given to secure an indebtedness for money loaned and goods sold exceeding said sum. There is no dispute but that the Yonkers Brass AVorks owed the plaintiff said sum. About a month prior to the giving and filing of the mortgage to plaintiff, the said Yonkers Brass .AVorks executed and delivered a chattel mortgage to one Jewett to secure the payment of a promissory note for twelve hundred dollars, dated September 21, 1889, and payable in twelve months from its date, with interest, and providing that until default should be made in the payment of the said-sum of money that the Said Yonkers Brass Works were to-remain and continue in peaceable possession, etc. Subsequent to the execution and delivery of both of these mortgages said Yonkers Brass Works, on November 12, 1889, executed a bill of sale whereby they transferred to the defendant all the property of the Yonkers Brass Works, including the property in question in this action; and at the same time delivered to the defendant a key of the factory in which the chattels were contained. That the property was taken possession of by the defendant in this action was proved beyond the shadow of a doubt. On December 5, 1889, the plaintiff foreclosed his chattel mortgage at the city of Yonkers, New York, the foreclosure sale taking place in front of the factory of the Yonkers Brass AVorks. The defendant was represented at said sale by its attorney, Mr. Perry, who refused the plaintiff admission to the factory, and stated that the goods and chattels offered for sale belonged to the defendant. The sale proceeded and the goods and chattels were bought in by the plaintiff, but he could not obtain possession of them. On December 10, 1889, the plaintiff served on the defendant a written demand for the possession of the property, which was refused, defendant stating that it was its intention to hold on to the property. On December 30, 1889, the plaintiff commenced this action, and after the defendant had answered therein, the first or Jewett mortgage was assigned to one Roy, who made an arrangement with defendant by which that mortgage was to be considered then due, and on the 28th day of February, 1890, it was foreclosed and the defendant became the purchaser, and thereupon it served an amended answer setting up these facts as a further defence. Held, that the defendant acquired no rights that can affect the issues in this action by the purchase of the chattels at the sale under the foreclosure of the Jewett mortgage, which was considered due by the arrangement between Roy and defendant. Whatever right of action the plaintiff had at the commencement of this action could not be taken away from him without his consent, and he was not a party to said agreement or foreclosure, nor did he acquiesce therein or assent thereto. The bill of sale of the chattels to the defendant, after the execution and filing of the mortgage to the plaintiff, cannot and did not deprive the plaintiff of any rights under his mortgage. That bill of sale was executed and delivered to defendant with full knowledge of the two preceding mortgages.
    The principal error assigned by defendant, was the refusal of the court below to permit defendant to show that, at the time of the execution of the mortgage to the plaintiff, the plaintiff agreed to start in business again the persons who gave the mortgage before the expiration of the time mentioned in the mortgage, which defendant claimed was a part of the consideration for the execution of the mortgage. Held, that the question here presented is not on the admission of parol evidence to explain, vary, or contradict a written instrument, nor is it a question as to the admission of parol evidence tending to establish an independent agreement. There being no agreement claimed as between plaintiff and defendant, the latter cannot avail itself of a breach of contract between plaintiff and the Yonkers Brass Works. If such an agreement existed and was a part of the consideration of the mortgage, it constitutes no defence here, and the rulings of the trial court on this question were proper.
    The facts in the case show a conversion of the property in question by the defendant.
    Before Freedman, Dugro and Gildersleeve, JJ.

      Decided July 2, 1891.

      Appeal from a judgment entered on a verdict of a jury at trial term, and from an order denying a motion for a new trial.

      John M. Perry, for appellant, argued :
    I. It was error not to allow the defendant to show that the chattel mortgage under which plaintiff claims, was given upon an express condition, and in consideration of an express promise, which he did not fulfil. Plaintiff had the right to show, by parol, what the true consideration for the giving of the mortgage was. Parkhurst v. Higgins, 38 Hun, 113, was an action by the representative of a deceased mortgagee to foreclose a mortgage, which stated that it was given to secure the payment of the sum of $2,500. The defendant, under plaintiff’s objection, was allowed to prove, among other things, that the mortgage was executed with the understanding that it should not be enforced, and that it was only made to make it appear that the property was encumbered for its full value. McKinster v. Babcock, 26 N. Y. 378, was an action by a chattel mortgagee against the defendant for an alleged conversion where the real consideration, differing from that stated in the mortgage, was allowed to be shown. In Young v.Wilson, 27 N. Y. 351, the Court of Appeals said (p. 356) : “ It has long and often been held in this state that the real consideration of mortgages or deeds may be shown by parol, though differing from that expressed in the instrument, and this court, in McKinster v. Babcock, 26 N. Y. 378, applied the rule to a chattel mortgage, in which the consideration expressed was money, when, in truth, the real consideration was the endorsement of the note of the mortgagor, and the mortgage was given by way of security.” In Kane v. Cortsey, 100 N. Y. 132, one P. had given plaintiff a mortgage on certain real estate, and defendants were sureties for the sum secured to be paid thereby. When the mortgage matured, P. made an oral agreement with.plaintiff that the time of the mortgage should be extended one year upon his giving a chattel mortgage as additional security; this was done. P. subsequently failed to pay the real estate mortgage, and this action was brought against the defendants on their guaranty. Defendants defended on the ground that the above extension being made without their knowledge released them. On the trial, when defendants attempted to give evidence of this agreement, it was objected to, and, speaking of this objection, the Court of Appeals (Earl, J.), said (p. 139): “ The parol evidence as to the agreement for the extension of time does not come under the ban of the rule which prohibits parol evidence to explain, vary, or contradict written instruments. It does not contradict or vary the real estate mortgage. That was past due, and the time for its payment could be extended by any valid agreement. It does not contradict the chattel mortgage. That was complete in itself, and was not intended to embody the agreement. Its sole purpose was to give the additional security. This was an independent agreement, existing outside of the two mortgages. It was the occasion or condition inducing the giving of the chattel mortgage, and no rule of evidence was violated in allowing it to be proved by parol.” Unless this court is going to draw a distinction which will on the one side in cases where a money consideration is expressed "permit it to be shown that the real consideration was an extension of time (100 N. Y. 139), or security for an endorsement (27 N. Y 351), or to indicate encumbrances (38 Hun, 114); and on the other side exclude evidence that the real consideration is a promise to start a business, as is the case here; it is submitted that the law as established by the above cases necessarily leads to the conclusion that it was error not to allow the plaintiff to prove the real consideration here.
    II. Defendant was in a position to contest the validity of plaintiff’s mortgage. There is no dispute about the fact that before plaintiff’s mortgage matured the Yonkers Brass Works, plaintiff’s mortgagor, gave the defendant a bill of sale of the property which plaintiff claims is covered by the mortgage. Defendant thereby had a specific interest in this particular property. Its bill of sale did not recognize the plaintiff’s mortgage. By this bill of sale, if plaintiff’s mortgage were declared invalid the property belonged absolutely to the defendant, and even if it were declared valid defendant had thereby acquired the equity of redemption. It is not only a judgment creditor who can attack a chattel mortgage ; any one who has obtained a specific interest in the particular property which the mortgage is claimed to be a lien upon has this right. In Thomas on Chattel Mortgages (p. 188) the author states the rule to be that: “ A purchaser of the mortgaged chattels, or of any interest therein, or the holder of any subsequent lien thereon, providing that his claim has not, by the contract under which he claims, been limited to the equity of redemption, may resist the enforcement of the mortgage on any other ground that would have constituted a valid defence for the mortgagor.” On the same subject Judge 'Huger said in Sullivan v. Mitchell, 106 Ah 7. 635, that the validity of a chattel mortgage could be assailed by a creditor who has u secured a lien thereon by a levy under a judgment and execution, or by some other method acquired a legal or equitable interest in the property,” citing Southard v. Benner, 72 N. Y. 426, and Gerry v. Gerry, 63 Ib. 256 ; Briggs v. Austin, 29 State Rptr. 245.
    ■ III. There was not sufficient evidence to render defendant liable as for a conversion, and it was error to allow the question to go to the jury; and not to set aside the verdict of the jury finding a conversion, as contrary to law and evidence, (a.) The evidence did not establish that defendant held possession adverse to the plaintiff, subsequent to the time of the maturity of his mortgage and prior to the time of the commencement of this action. (5.) The evidence did not establish a sufficient demand and refusal. The alleged possession by the defendant, and the alleged demand by the plaintiff and refusal by the defendant were all denied in the answer, and were the questions principally contested on the trial. The most succinct and satisfactory definition of what character of acts in relation to property will be considered sufficient evidence of possession, which, when coupled with demand and refusal, will render a defendant liable for a conversion which we have been able to find, is contained in Gillet v. Roberts, 57 N. Y. 28, where Judge Earl says there must be “ active interference ” and that “ mere passivity and quiescence could not make him liable for a conversion.” It is submitted that there is nothing in this case to indicate any active interference by the defendant with the plaintiff in his right, if he had any, to take this property. Defendant did not go in the building where it was from before the time of the bill of sale until after this action was commenced. Plaintiff was in the building several times, and examined the property. Surely there is nothing in the evidence that indicates anything more than mere passivity and quiescence on the part of the defendant, so far as preventing plaintiff from taking physical possession of the property is concerned. The defendant’s position is that there was no proof of such possession or control as would render it liable as for a conversion. But assuming, for the sake of argument, that there was such evidence, it is then contended that the evidence given as to a demand and refusal does not establish such a demand and refusal as would render the defendant liable in conversion. Plaintiff and defendant both claim from the same source. The defendant received its bill of sale from the very people who gave plaintiff his chattel mortgage. If they had the right to give the one they had the right to give the other. Defendant having acquired what rights it had rightfully, in order to render it liable in conversion, a demand had to be shown. The following authorities, it is submitted, establish that the alleged demand and refusal shown here were not sufficient to render the defendant liable in conversion. G-illet y. Roberts, supra; Andrews v. Shattuck, 32 Barb. 396 ; Richard v. Pitt. A. Works, 27 Hun, 1; McClellan v. Wyatt, 11 N. Y. Supp. 686.
    IV. Defendant was under no obligation to comply with the written demand in the form in which it was made. By the terms of the chattel mortgage under which plaintiff claims, he was given the right, upon default in payment, “ to enter * * the premises * * where * * such goods * * may be placed, * * and take and carry away the said goods.” In his written demand he demanded a return or delivery of the property and asked that a place be specified where the goods would be delivered. The demand, it is submitted, is entirely too broad to conform to the rights required by the terms of the mortgage. The words used in the mortgage to confer the right signify that the act shall be done by the plaintiff’s mortgagee. He shall enter and take and carry away. The mortgagor remains passive, and the thing to be accomplished is to be done by the mortgagee. The action is on the part of the mortgagee. If the plaintiff’s mortgagee had demanded here from the defendant who had succeeded to the rights to the mortgagor the right to enter the premises and take and carry away the goods, he would have been within the terms of his mortgage. But he did not do that. By his written demand he did not even demand possession. What he did was to demand that the defendant return and deliver the property and specify the place where it would deliver it. The words used in this demand do not allow of mere passiveness on the part of defendant, but render it necessary that it should take some active step. An enforced compliance with this demand reverses the positions that obtained under the mortgage. The mortgagor must become active and the mortgagee needs but remain passive. The words used are “ return ” and “ deliver.”

      Webster defines the word “ return ” to mean “ to bring, carry, or send back,” and “ deliver ” has a synonymous meaning. In common parlance, if one says he wishes a thing delivered, he means he wishes it sent to him, and that it is used in that sense here is clear from the fact that defendant is asked to name the place where he will make the delivery. Plaintiff under his mortgage had no right to impose this burden on the defendant. This distinction, obvious in itself, has the sanction of authority. Richards v. Agricultural Iron Works, supra.

    V. The demand of possession upon defendant’s attorney was not sufficient, as there was no proof that the attorney had power to comply with it. The alleged demand of December 5th, to which reference has been made, was made upon Perry, the attorney for the defendant. There is no evidence that he acted in any other capacity than as attorney for the defendant, and in that capacity he was not the proper person upon whom to make the demand. He could not have complied if he wished, for, so far as the evidence shows, he was not authorized to do so. He was asked to surrender the property of his client, a thing which ordinarily does not fall within the usual powers conferred upon an attorney where the mere relation of attorney and client exists. Such relation was all that was shown to have existed here, and it is submitted that as it was not shown that in this case the attorney was invested with powers beyond the usual powers of an attorney, such powers cannot be presumed to have existed. In Goodwin v. Wertheimer, 99 N. Y. 149, the defendant was the general assignee of Goldsmith, whom he had left in possession of the assigned goods as custodian. Plaintiff made a demand upon. Goldsmith for property claimed, and then begun a conversion action against the assignee, based on this demand, and in holding that this demand was insufficient, the court said : “ In reply (to the demand) Goldsmith said that he had no power or authority to give up the goods, as the firm had made a general assignment for the benefit of the creditors. ' It does not affirmatively appear wliat authority Goldsmith had or in what capacity he was acting. The most that can be inferred from the evidence is that he had the custody of the assigned property for the assignee, and had been placed in charge by him. It is insisted that the demand made of Goldsmith was sufficient to support the action against Wertheimer. If Goldsmith, in refusing to deliver the goods, was acting in obedience to Wertheimer’s orders, there would be no question. But this cannot be assumed in the absence of any evidence on the subject. The refusal of a servant to deliver goods entrusted to him by his master on a demand by a stranger is not sufficient evidence to maintain replevin against the servant, nor against the master when a demand and refusal is necessary to make the possession of the defendant tortious, unless the servant acted under direction of the master in refusing to deliver the goods. Mount v. Derrick, 5 Hill, 455. We can make no difference in respect to the sufficiency of the demand against the master, that the servant knew the person making the demand was entitled to the property, or that the master’s title was voidable. An agent or servant having the custody merely of goods, cannot bind the principal by acceding to a demand of a third person, nor, on the other hand, by refusing to deliver the property.”

      Phillips & Avery, for respondent, argued
    I. Plaintiff had title to the chattels in question. Upon the 27th day of November, 1889, the day plaintiff’s mortgage became due and was not paid, he became entitled to the property described in his mortgage, a portion thereof being subject to the encumbrance of the Jewett mortgage, but which mortgage was not then due. Said Jewett was not in possession, nor was he entitled to the possession of the chattels described in his mortgage. After default has been made by a mortgagor (in this case the Yonkers Brass Works), the conditional title in the mortgagee (in this case the plaintiff,) becomes absolute, leaving in the mortgagor only a right of redemption in equity. Campbell v. Birsch, 60 N. Y. 214 ; Code v. Cassidy, 72 Ib. 133 ; Judson v. Easton, 58 lb. 664 ; Bragehnan v. Dane, 69 Ib. 69. And this is the rule even though the mortgage is not in possession, and said mortgagee may maintain an action for conversion. Bragehnan v. Dane, swpra ; Davis v. Morrell, 16 Weekly Dig. 530.
    II. A. mortgagee may recover the whole value of the property converted, subject to a liability to account for the excess according to the equities of the parties. M. & T. Bank v. F. & M. National Bank, 60 N. Y. 40 ; Marsden v. Cornell, 62 Ib. 215.
    III. The jugglery with the first mortgage, by which, subsequent to the commencement of this action it was made due, and foreclosure thereunder had, in no way affected plaintiff’s rights, even assuming that the court could consider matter occurring subsequent to the service of the summons and not set up by supplemental answer after leave granted. The plaintiff having acquired a right of action could not without his knowledge or consent be held to have lost it. Livermore v. Northup, 44 N. Y. 112 ; Wehle v. Butler, 61 Ib. 245; Tiffany v. Lord, 65 Ib. 310; Cormier v. Batty, 41 N. Y. Superior Court, 70.
    IV. There was a conversion. The defendant asserted title to the property in question and entirely repudiated any rights of the plaintiff, as well as refused to relinquish its ‘dominion and control after demand. The mere assertion of title constituted a conversion independent of the demands made. Pease v. Smith, 51 N. Y. 477 ; Heald v. McGowan, 5 N. Y. Supp. 450. The demand at the factory was in immediate proximity to the chattels ; the evidence being conflicting, the verdict of the jury is controlling here. Nelson v. Neil, 12 N. Y.

      Week. Dig. 157. The demand made in New York City was sufficient of itself, as it read, “ in case of a willingness to deliver the same, that you .specify where the same will be delivered.” This obviated any criticism that could be raised, because of the property not being in proximity to the demand. The. demands were sufficient. Mather v. Freelove, 3 State Rep. 424. Technicalities in reference to a demand will not be encouraged where the defendant is clearly in the wrong. The technicalities in regard to a demand have grown up in the law to protect the innocent, such as bona fide holders for value. Where it clearly appears that a defendant had fair notice and intended to deprive plaintiff of his rights, the reason for entertaining technicalities in regard to a demand disappears. The case at bar is an instance Avhere the technicalities should not be encouraged. On two occasions the defendant had an opportunity to disavow its retention of the property; and again ’ the hardships of a judgment for conversion do not obtain where the same is against a corporation. Even where a demand was for several hundred bushels of wheat more than the person was entitled to, the same Avas held sufficient. Marine Bank v. Fisk, 71 N. Y. 353.

      Y. The defendant, in open defiance of plaintiff’s rights, on the day following the maturity of plaintiff’s mortgage, actually sold over eleven hundred dollars worth of the identical machinery and brass goods covered by the plaintiff’s mortgage. This sale was a conversion, and is a sample of the audacity displayed in defendant’s conduct. Even if this sale had been made prior to the maturity of plaintiff’s mortgage, it Avould still have been a conversion, as it would have been its duty after a demand to at once regain the possession and restore the chattels to plaintiff. A neglect or refusal so to do would give the plaintiff an action for conversion. Lawrence v. Maxwell, 53 N. Y. 19. It is not requisite to a A'alid claim for conversion that demands should be made while the goods are in defendant’s possession and before their sale. Pease v. Smith, 61 N. Y. 477. After a sale it assumed to be the owner, and will be estopped to deny in an action by the lawful owner, the natural consequence of its own acts, and is liable in an action for the value of the goods (lb. 481). The defendant, as a matter of fact, actually did take possession of the chattels, but it is estopped from questioning said fact because it had a key of the premises on November 12, 1889, and there was no pretence or proof -that said key had ever been surrendered or turned over to any person by the defendant. A state of facts once proven to exist is deemed to continue until the contrary is proven and the burden of proving the contrary is thrown upon the opposite party.
    VI. The questions of law involved by the third defence are practically the same. Defendant’s attorney relied upon “the bald statement that he (plaintiff) was to start them (Yonkers Brass Works) up in business again if they, gave him a chattel mortgage.” Counsel would not even state whether this “ starting up ” was to be by advancing money or goods. It was not contended that the original delivery of the mortgage was conditional, but that an agreement which was to take effect thereafter was orally made between the plaintiff and the Yonkers Brass Worlds. No agreement between the plaintiff and this defendant is claimed, (a) The defendant in this action cannot set up as a defence a breach of contract, if any such existed, between plaintiff and the Yonkers Brass Works. Even if such agreement existed and was part of the consideration for the chattel mortgage it would not be a defence. A partial failure of consideration is not a defence. The remedy is by a separate action for damage by the Yonkers Brass Works, and which they, and they only, can assert. Lasher v. Williamson, 55 N. Y. 619 ; Fellows v. Folsom, 2 Rob. 138. (b) But it is believed that a further complete answer will be found in the statement that such alleged contract would be void for ambiguity and uncertainty. The defendant’s contention as to this defence is disclosed, where counsel states that they rely upon “ the bald statement that the plaintiff was to start the Yonkers Brass Works up in business again, if they gave the chattel mortgage.” Can the court say what that means, or what it means as pleaded in the answer ? Was the plaintiff to loan ten dollars or ten thousand dollars ? Was he to furnish ten barrels of material or ten thousand barrels of material ? Was plaintiff to rent or buy a factory ; obtain ten square feet or ten thousand square feet of space ? Was the arrangement to continue for ten days or ten years ?—Even if such contract existed it was void. Buckmaster v. Consumers’ Ice Co., 5 Daly, 313; Vanderwoort v. Dewey, 42 Hun, 68; Eaton v. Wilcox, 42 Ib. 61. (c) Again, there was no consideration for any such alleged contract. Nothing was done-by the parties but to secure a debt already in existence, (d) The rule that a stranger to a written contract may prove it otherwise than as stated in the writing does not obtain where a stranger stands in privity with the party. Selschow v. Stymus, 26 Hun, 145.
   By the Court.—Gildersleeve, J.

On or about September 21, 1889, the Yonkers Brass Works, a co-partnership carrying on a brass moulding business, in the city of Yonkers, executed to one Leonidas C. Jewett a chattel mortgage, to secure the payment of a promissory note for $1,200 payable in twelve months from said 21st day of September, 1889. This mortgage covered a large number of chattels in the possession of the Yonkers Brass Works. Subsequently, and on or about the 28th day of October, 1889, the said Yonkers Brass Works, being indebted to the plaintiff in the sum of $2,350, executed a chattel mortgage to, secure this indebtedness to the plaintiff, which mortgage ' covered the same chattels that were covered by the Jewett mortgage. On November 12, 1889, the said Yonkers. Brass Works executed a bill of sale of all the chattels covered by the two mortgages to the defendant, and at the same time delivered to the defendant a key of the factory in which said chattels were contained, and the defendant thereupon took possession of said chattels. Both of said mortgages, to Jewett and the plaintiff, had been duly filed. On the 27th day of November, 1889, the plaintiff’s mortgage became1 due, but was not paid ; whereupon the plaintiff, on the 5th day of December, 1889, foreclosed his said mortgage, and at the sale,—which took place in front of the premises of the "Yonkers Brass Works, in which the chattels were, the key to said premises being in the possession of the defendant or its agent,—the plaintiff bought in the property, and then demanded of Mr. Perry, who represented the defendant at said sale, the key to the premises, which was in the possession of said Perry, so that plaintiff could take possession of said chattels. The defendant’s said representative, however, refused to give up the key, and declined to allow the plaintiff to take the said chattels, claiming that they belonged to the defendant. On December 10, 1889, plaintiff made both an oral- and written demand upon the defendant to deliver or give up the said chattels to the plaintiff. On December 80, 1889, the plaintiff, being unable to obtain possession of the said chattels, commenced this action for conversion. After this action was so commenced, and on the 21st day of February, 1890, and after the defendant had appeared and answered the complaint, the Jewett mortgage was assigned to one Roy; and, on or about the 24th day of February, 1890, the defendant and said Roy made an arrangement, by which the said Jewett mortgage should be considered then due. On the 28th day of February, 1890, the said Jewett mortgage was foreclosed, the chattels covered by it sold, and the defendant became the purchaser ; whereupon it served an amended answer setting up this fact as a defence. Prior to the foreclosure of plaintiff’s mortgage, a fire had taken place at the factory of the Yonkers Brass Works, in which the chattels covered by the two mortgages were, and some damage done to the chattels; but the preponderance of evidence is to the effect that the value of the chattels was abundantly sufficient to cover both mortgages.

The defendant acquired no rights that can affect the issues in this action, by the purchase of the chattels in question at the sale under the foreclosure of the Jewett mortgage, which mortgage had been previously assigned to said Róy, and which, although by its terms not yet due, was considered due by virtue of the arrangement entered into between the defendant and said Roy. Whatever right of action the plaintiff had, at the time of the service of the summons and complaint herein, could not be taken away from him, without his knowledge or consent. Livermore v. Northrup, 44. N. Y. 112. The plaintiff was not a party to said agreement between Roy and defendant, and did not directly or indirectly acquiesce therein or assent thereto.

It was not claimed at the trial below,, nor upon the argument at general term, that the Yonkers Brass Works did not have a good title to the chattels in question, at the time they executed and delivered the mortgage to the plaintiff, and did not have the lawful right to execute said mortgage, subject, of course, to the prior lien of the Jewett mortgage. The subsequent bill of sale of the chattels in question by the plaintiff’s mortgagor to the defendant, although it did not specify in any way or recognize the plaintiff’s mortgage, cannot and did not deprive the plaintiff of any rights under said mortgage. The defendant’s rights to the chattels in question were acquired by the bill of sale, executed by the Yonkers Brass Works, and delivered to the defendant, with full knowledge and notice of the existence of both the Jewett mortgage and the plaintiff’s mortgage, as both had been duly filed. If defendant wished to retain possession of the property, it could hope to do so only after satisfying the claims of said mortgagees.

It is conceded that the Yonkers Brass Works owed the plaintiff, at the time of the execution of said mortgage to the plaintiff, the sum of $2,850. The mortgage seems to have been in proper form; no objection has been taken to its sufficiency in that regard, nor to the regularity of its execution and filing. We quote from the mortgage as follows: “ * * * for securing the payment of the indebtedness hereinafter mentioned, and in consideration of the sum of one dollar to them ” (Yonkers Brass Works) “ duly paid ” * * * “ have bargained and sold,” etc., * * * “ upon condition that if we, the said parties of the first part,” (Yonkers Brass Works) “ shall and do well and truly pay unto the said party of the second part,” (plaintiff) “ his executors, administrators or assigns, the sum of $2,350, within 80 days from this date, then these presents shall be void,” etc. No other or further consideration than as above set forth is expressed in said mortgage, nor is any condition imposed, except the foregoing.

If the mortgage to the plaintiff was what it purports to be on its face; if it was properly foreclosed, and if there was sufficient evidence to justify the jury in believing that there was a conversion of the chattels in question by the defendant, the judgment and order appealed from should be affirmed.

But the defendant claims that there was more to the mortgage than appears upon its face. It alleges that the mortgage was given to the plaintiff by the Yonkers Brass Works “upon the express understanding and condition that the plaintiff should, within the time mentioned in said instrument, to wit, thirty days from its date, start and establish the persons composing the Yonkers Brass Works, or furnish the means for the persons to start and establish the business formerly carried on by them at said city of Yonkers; ” and that plaintiff ■has failed to comply with this condition.

The principal error assigned by defendant, and the one upon which it mainly relies for a reversal of the judgment herein, is the refusal of the court below to permit the defendant to show the foregoing alleged understanding and condition. When the plaintiff was on the stand, the defendant undertook, upon cross-examination, to show a conversation that took place between the plaintiff and his mortgagors, at the time the chattel mortgage now under consideration was given. In the midst of this line of examination, he was interrupted by the court as follows:—

Court: “ I see you have a defence of that kind. The court is of opinion that the facts stated in your third defence ” (that being the defence last above indicated) “ do not constitute a defence. That would not constitute a defence, conceding that he did promise to advance the money to continue the business, if they would give him a chattel mortgage,—the promise was made without consideration.”

Defendant’s counsel: “I shall endeavor to show that the chattel mortgage was given in consideration of that promise.”

Court: “ The chattel mortgage does not contain that consideration.”

Defendant’s counsel: “It says ‘ a consideration,’ and I can show that it was different from the one mentioned in the instrument. I offer by the line of questions which I have been pursuing to prove, or attempt to prove, that apart of the consideration for the giving of the alleged chattel mortgage, under which he claims, was a promise on his part to start in business again the persons who gave the chattel mortgage, before the expiration of the time mentioned in the mortgage.” Plaintiff’s counsel: “I object to that line of proof.” Court: “ You say ‘to start in business again,’ do you ■mean by advancing more money or goods?”

Defendant’s counsel: “No; the bald statement that he was to start them up in business again, if they gave him the chattel mortgage.”

Court: “ The objection is sustained.”

To this ruling, the defendant’s counsel duly excepted.

Subsequently, and after the plaintiff had rested his case, the defendant, as a part of its defence, called one Siebert, one of the members of the co-partnership known as the Yonkers Brass Works, and who signed the mortgage in question, and asked him the following questions: Q. “Was there any condition attached to the giving of that mortgage?” Q. “Was there any consideration for the giving of that mortgage other than the consideration expressed in the instrument ? ”

To both of these questions, plaintiff’s counsel objected, and the court sustained the objections, and defendant’s counsel duly excepted.

It will be observed that defendant’s counsel relied upon “the bald statement that he (plaintiff) was to start them (the Yonkers Brass Works) up in business again, if they gave him a chattel mortgage.” Defendant’s counsel would not state whether the “ start up ” was.to be by advancing money or goods. It does not appear that it was intended that the original delivery of the mortgage in question was to be conditional. The defendant’s claim is that an agreement, which was to take effect thereafter, was orally made between the plaintiff and the Yonkers Brass Works, at the time of the execution of said mortgage. The question here presented is not on the admission of parol evidence to explain, vary or contradict a written instrument, nor is it a question as to the admission of parol evidence tending to establish an independent agreement. No agreement between the plaintiff and the defendant is claimed. The defendant in this action cannot avail himself of a breach of contract, if any such existed, between plaintiff and the Yonkers Brass Works. We are of the opinion that if such an agreement existed, and was .a part of the consideration for the mortgage in question, it would not be a defence here. The Yonkers Brass Works mio'ht main-O tain a separate action for the damage, if there had been a violation of such a covenant. If the Yonkers Brass Works ever had any such right, they do not appear to have transferred it to the defendant, or any other person, by assignment or otherwise; and the right, therefore, rests with them, and with them only. Lasher v. Williamson, 55 N. Y. 619; Bellows v. Folsom, 2 Robt. 138.

Even if the defendant’s claim that a part of the consideration was to start the Yonkers Brass Works in business again be correct, the contract between the plaintiff and the Yonkers Brass Works would not fail, as the rest of the consideration wras good, to-wit, the existing indebtedness; and the Yonkers Brass Works’ remedy would.be a separate action against the plaintiff, for damages. Bellows v. Folsom, supra. Defendant only claims that the agreement, if such existed, to start the Yonkers Brass Works in business again, formed “ a part of the consideration.” The rulings of the trial court, upon this question, were proper.

■ The plaintiff became entitled to the property described in said mortgage upon the 27th day of November, 1889, the day said mortgage fell due and was not paid, subject, of course, to the Jewett mortgage, not yet due. Jewett was not in possession of the property, nor was he entitled to the possession. The Yonkers Brass Works, the mortgagor, having defaulted in payment, the conditional title in the plaintiff, the mortgagee, became absolute, leaving to the mortgagor, or his assigns, only a right of redemption in equity. Campbell v. Birsch, 60 N. Y. 214, 218; Coe v. Cassidy, 72 Ib. 133, 138 ; Judson v. Easton, 58 Ib. 664; Bragelman v. Dane, 69 Ib. 69, 74. The rule is the same where the mortgagee is not in possession. See Bragelman v. Dane, supra.

There is abundant evidence to justify the conclusion that the defendant was in possession of the property at the time of the foreclosure of plaintiff’s mortgage. On the day following the maturity of plaintiff’s mortgage, the defendant actually sold a portion of the property covered by plaintiff’s mortgage; the foreclosure sale under the plaintiff’s mortgage took place in front of the Yonkers Brass Works, at Yonkers; the defendant was represented at the sale by its attorney, Mr. Perry; a demand for the key was made by the plaintiff upon said Perry, who refused the plaintiff admission to the building, where the chattels were, and stated that the goods and chattels belonged to the defendant; the sale pro-ceded in front of said premises of the Yonkers Brass Works, where said goods were, and they were bought in by plaintiff, but defendant refused to allow the plaintiff to take possession or to enter said building. On December 10, 1889, plaintiff served a written demand on the defendant for said chattels; the representative of defendant refused to comply with said demand, say-' ing “you can’t have it; it belongs to the Prentiss Tool and Machine Company; I propose to hold on to it.” Plaintiff said, “ Do you mean to rob me ? ” Defendant’s representative and agent replied, “ I do not know anything about that, but we propose to hold on to that' property.”

The facts also indicate clearly a demand for the property upon the defendant, and its refusal to surrender the same,—two facts necessary to be established by the plaintiff to entitle him to maintain this action. These facts, together with the other evidence in the case, show a conversion of the property in question by the defendant. After demand, the defendant exercised dominion and control over the property, asserted its title thereto, and said to the plaintiff, “You can’t have it.” Pease v. Smith, 61 N. Y. 477, 481; Heald v. McGowan, 5 N. Y. Supp. 450, 451, 452.

If the case were free from acts of the defendant, indicating an exercise of ownership, we think the words of defendant might safely be relied on to constitute conversion. In Gillet v. Roberts, 57 N. Y. 28, Judge Earl, in the course of his opinion, says, “ It is true that to constitute a conversion a manual taking' is not necessary; but where words are relied upon, they must be uttered under such circumstances, in proximity to the property, as to show a defiance of the owner’s right, a determination to exercise dominion and control over the property, and to exclude the owner from the exercise of his rights.”

The rights to the property that defendant had, were acquired, as we have already said, with full notice of both the Jewett mortgage and plaintiff’s mortgage; and it is no hardship to the defendant to subject it to the operation of those instruments.

Several exceptions to the admission and rejection of evidence, not heretofore noticed, were taken by the defendant. They were not, however, urged upon the argument here. We have examined them, but do not consider -them of sufficient importance to require discussion here.

There is, for the reasons stated, no ground for the reversal of the judgment and-order appealed from; they must, therefore, be affirmed, with costs.

Freedman and Dugro, JJ., concurred.


text:
    FREDERICK SCHNEIDER, Respondent v. THE SECOND AVENUE RAILROAD COMPANY, and Another, Appellants.

      Negligence, action for damages caused thereby.

    it was for the jury to say whether the driver of the Second avenue car exercised the care required of him under the circumstances. The defendant owed to the plaintiff, its passenger, the highest degree of care, and was liable for slight neglect. Applying the case of Palmer v. The Del. & Hudson Canal Co., 120 N. T. 170, the court below was justified in submitting the question raised by the broken rod of the 36th street car to the jury as a question of defendants’ negligence contributing to the accident, and one of the proximate causes of damage to the plaintiff. It was fairly submitted, and the evidence justified the conclusions of the jury on this question, and there is no good reason for disturbing the verdict. The fact that plaintiff stood upon the front platform was not negligence, especially as he was directed to do so by the conductor.
    Before Freedman and Gildersleeve, JJ.

      Decided July 2, 1891.
    Appeal from a judgment in favor of the plaintiff and against both defendants, entered on the verdict of a jury, and from orders denying the motions of the defendants for a new trial.

      Miller & Wells, attorneys, and Charles E. Miller and Francis L. Wellman of counsel, for appellant, The Houston, W. S. & P. R. R. Co.

      A. S. & W. Hutchins, attorneys, and A. S. Hutchins of counsel, for appellant, The Second Avenue R. R. Co.

      G. Washbourne Smith, attorney and of counsel, for respondent.
   By the Court.—Gildersleeve, J.

This action was brought to recover damages for a personal injury to the plaintiff, caused by the alleged negligence of the defendants. The defendants are domestic corporations, having no interests in common, engaged in operating street railroads as common carriers of passengers for hire, through certain avenues and streets in the city of New York. On the 7th day of November, 1888, at about ten o’clock in the forenoon, the plaintiff was riding down town on the front platform of a Second avenue car, belonging to and operated by the defendant, The Second Avenue Railroad Company. He had got on to the rear platform of the car, but, as he had some paint brashes and pails with him, being a painter by trade, he -was ordered by the conductor to go on to the front platform and ride there, which he did. The defendant, The Houston, West Street & Pavonia Ferry Railroad Company, has a single track railroad in East 36th street, which crosses the Second Avenue Railroad Company’s tracks, and is used by the former for eastward bound cars only. The crossing of Second avenue at 36th street is approached from the west, upon a down grade of two feet four and one-fifth inches in one hundred feet. As the Second avenue car, upon which the plaintiff was riding, as aforesaid, neared the crossing at 36th 'street, one of the cars of the defendant, The Houston, W. S. & P. F. R. R. Co. was also approaching said crossing, going east on the down grade and at about twice its usual speed, to-wit, about twelve miles an hour,” as testified by Donohue, the driver of said car. Further evidence of said driver on this point is as follows : “ I tried to put on the brake, and found there was something the matter, I did not know what was up. I knew there was something not in good order.”

It appears from other evidence in the ease that the failure of the brake to work was due to a broken brake rod, a part of the gear to which is applied the general term of brake,” and necessary to its effective operation. It further appears from the evidence that an examination of the broken rod disclosed a flaw in the iron, which was the cause of its breaking.

Donohue’s ‘‘car being unmanageable, and the Second avenue car approaching the crossing at ordinary speed, Donohue shouted to the driver of the Second avenue car, who whipped up his horses, thinking to get over the crossing, without a collision with the 36th street car, but the 36th street car struck the rear of the Second avenue car, and the plaintiff was thrown to the ground and injured. He was taken to a hospital, where he remained under treatment for about five weeks, and, after leaving the hospital, he was under medical care for some considerable time. There is evidence to justify the conclusion that he is permanently injured, in such a way as to cause "deformity, and practically incapacitated for labor. Before the accident, he was earning three dollars a day in wages for painting. The action was tried before a jury, and a verdict rendered in favor of the plaintiff and against both the defendants for the sum of $15,000. From the judgment entered on this verdict, and from the orders denying the motions of the respective defendants for a new trial, both defendants appeal.

The defendant, the Second Avenue Railroad Company, claims that the complaint should have been dismissed as to it, on the ground that the evidence fails to show that it was guilty of any negligence. The evidence is conflicting on the question of the negligence of the driver of the Second avenue car, but we think the evidence was amply sufficient to warrant the court in submitting the question to the jury. Three expert drivers, including Donohue, the driver of the 36th street car, testified that the driver of the Second avenue car might have averted the collision by stopping his horses and car. These experts all agree that either of the cars in question, at the points they were moving at the time under consideration, with the brakes in good order, could have stopped within the space of five or six feet. The plaintiff’s evidence places the Second avenue car at least thirty to fifty feet from the 36th street track, when the Second avenue driver saw, or should have seen, the 36 th street car approaching the crossing at unusual speed; it shows that when the Second avenue car was this distance away from the crossing, Donohue, the driver of the 36th street car, shouted to the Second avenue driver, who had his face turned toward the east, and was' not looking ahead. This evidence clearly indicated a neglect of duty on the part of the Second avenue driver. He was nearing a crossing, where, if a car was to be met with at all, it must come from the west, and yet he was looking towards the east, heedless of possible peril that might be encountered at the crossing directly in front of him by the rapid advance, on the down grade, of a 36 th street car. The question this evidence presents is not “ did he,” the Second avenue driver, do the. best he could, when the peril was upon him ? ” but it is “ did he exercise that care and caution which the law imposed upon him to avert the peril ? ” It was the duty of this driver to be vigilant in observing the crossing immediately in front of him, and the possible approach' of a 36th street car, that collisions might be avoided. Mangan v. Brooklyn, etc., R. R. Co., 38 N. Y. 455, 456; Murphy v. Orr, 96 Ib. 14; Barrett v. Third Avenue R. R. Co., 45 Ib. 628.

Where from the circumstances shown, inferences are to be drawn which are not certain and uncontrovertible, and as to which persons might differ, it is for the jury to decide. See Hart v. Hudson River Bridge Co., 80 N. Y. 622; also see Flynn v. Central R. R. of New Jersey, 20 Civ. Pro. Rep. 179.

On the question of non-suit, all disputed facts are to be decided in favor of the plaintiff, and all presumptions and inferences, which he had a right to ask from the jury, are to be conceded to him. Ward v. Central Park, etc., R. R. Co., 1 J. & S. 395.

Applying this doctrine to the present case, it would clearly have been error, had the court below dismissed the complaint as against the defendant, the Second Avenue R. R. Co., for, if the testimony of the plaintiff were to be taken 'uncontradicted, the evidence unquestionably shows negligence on the part of the Second Avenue Railroad Company’s driver.

The evidence raised an issue of fact as to the direction in which the driver of the Second avenue car was looking as he approached the crossing, and the distance he was therefrom when the unmanageable condition of the 36th street car should have been observed by him. What the driver of the Second avenue car did, and what he failed to do, that he ought to have done, were questions of fact for the jury, to be determined upon all the evidence, which determination necessarily affected the verdict, and they were properly left to the jurju It was for the jury to say whether the Second avenue driver exercised the care required of him, under the circumstances. The instructions to the jury by the court below on the degree of care necessary on the part of the Second Avenue Company were favorable to that defendant. -The Second Avenue E. R. Company owed to the plaintiff, its passenger, the highest degree of care, and was liable for slight neglect. Maverick v. Eighth Avenue Railroad Company, 36 N. Y. 378, 381; Ganiard v. Rochester City, etc., R. R. Co., 50 Hun, 22, 25.

Is there sufficient evidence to Avarrant the court in submitting to the jury the question of negligence on the part of the defendant, the Houston, West Street and Pavonia Ferry Railroad Company ?

The evidence is uncontradicted that when the car of this defendant was moving eastward on 36th street, on the doAvn grade, at the time in question, and within about seventy feet of the Second avenue crossing, it became unmanageable, and rushed toward the crossing at a speed of about twelve miles per hour, twice the usual rate. No negligence can be imputed to the driver . of this car. He showed courage in standing to his post in the face of imminent danger. He shouted to the driver of the Second avenue car, tried to put on the brake, and apparently did everything in his poAver to avoid, the accident. Had the brake been in order, he . could have stopped the car, and prevented the collision.

But the unusual and unlawful rate of speed at which this car. was moving just before reaching a crossing; the failure of the brake to perform its functions; the fact that it was a large car, with tivo horses, and that there yvas no person in charge, except the driver; the fact that there was a rear brake that might Inwe been applied, if there had been a conductor on the car; are all circumstances, which, together with the other evidence in the case, were for the consideration of the jury, on the question of the negligence of this defendant, and afforded good grounds for the refusal of the court to dismiss the complaint as to this defendant, the Houston, West Street and Pavonia Ferry Railroad Company. See Seybolt, as Adm. etc., v. The N. Y., L. E. & W. R. R. Co., 95 N. Y. 562; Palmer v. President, etc., of the Delaware & Hudson Canal Company, 120 Ib. 170; Breen v. N. Y. C., etc., R. R. Co., 109 lb. 297; Holbrook v. Utica & S. R. R. Co., 12 lb. 236, 242; Wooster v. Forty-second, etc., R. R. Co., 50 Ib. 203 ; 50 Hun, 22, 24.

The case of Palmer v. The President, etc. of the Delaware & Hudson Canal Company (supra), is very similar in some respects to this case. That was an action for damages for personal injuries, and on the trial it was shown that part of the machinery of the defendant’s car, to-wit, the bell-rope, which was attached to the engine and ran through the cars, struck the plaintiff in the eye and caused the injury. Plaintiff proved that the severance, through the occurrence of which the bell-rope was made to strike the plaintiff, was caused by the breaking of the spindle of the draw-bar on the forward end of the car next to the engine ; that this spindle was an iron rod an inch and five-eights in diameter, and at the point where it broke there was a flaw three-fourths of an inch in depth. Defendant proved that the spindle, when on the car, was not accessible to observation or inspection, and gave evidence tending to prove that for the purpose of an examination it was necessary to put the car in the shop and take out the draw-bar, which it was not customary to do frequently; that the spindle and draw-heads of the bar had been renewed two years before.; that they were made of the best wrought iron, and the vibration and strain was not such, when the car was in use, as to require frequent examinations ; that such a spindle has never been known to break by use, and that the period of availability of a car for use is ordinarily twenty-five years. The court submitted to the jury the question whether defendant had failed to perform its duty in regard to inspecting the draw-bar so as to ascertain whether it was, or remained, in suitable condition for use, and the Court of Appeals held that it was not error. The Court of Appeals held further that whether the system of inspection and the manner of its execution are all that may be required of the carrier cannot be measured by any rule of law to be applied by the court, but ordinarily must be a question of fact, in view of the circumstances appearing by the evidence.”

Applying this doctrine to the case at bar, the court below was j ustified in submitting the question raised by the broken rod of the 86th street car to the jury. The broken rod was produced in court; witnesses were examined as to the quality of the iron of which it was made, the character of its construction, the degree of care exercised by the defendant, the Houston, West Street, etc., R. R. Co., in inspecting the rod and car from time to time ; and, under proper instructions from the court as to the duty of this defendant to the public in these matters, the question of this defendant’s hegligence, contributing to the accident, and being one of the proxirmite causes of damage to the plaintiff, was fairly submitted to the jury.

We think the evidence justified the conclusions of the jury on this question, and that no good reasons appear in this branch of the case for disturbing the verdict.

As to the contention, raised by one of the defendants, that if negligence was proved against the other defendant, the first defendant should have had the complaint dismissed as to it, we see no force in this argument ; for the comparative degrees in the culpability of the two defendants will not effect the liability of either. If both were negligent in a manner contribuíing to the result, they are liable jointly or severally. See Barrett v. The Third Avenue Railroad Company, 45 N. Y. 628.

The evidence fails to show any contributory negligence on the part of the plaintiff. The fact that he was standing on the front-platform was not negligence (see Nolan v. Brooklyn, etc., R. R. Co., 87 N. Y. 63), especially as he was directed to do so by the conductor of the Second avenue car.

We have carefully examined the questions raised by exceptions taken to the admission and exclusion of evidence in the progress of the trial, and find no error in any of the rulings that can be held to be prejudicial to •the defendants or either of them. It is strenuously urged by the defendant, the Houston, etc., R. R. Co., that it was error to allow the defendant, the Second Avenue R. R. Co., to contradict Donohue, the driver of the 36th street car, by showing statements made by him, previous to the trial, to Police Sergeant McDonough in regard to the condition of the brake, inconsistent with his direct evidence upon this point. Either defendant had a right to test the credibility of Donohue in any legal way. Donohue was a witness for the plaintiff, and he testified that he did not know that there was anything the matter with his brake until within about one hundred feet from where the collision occurred. The proper foundation for the interrogatories to Sergeant McDonough was laid by inquiries of Donohue, calling his attention to time and place, and he denied that he had made any such statements. This question was also put to Sergeant McDonough : “ Q. Did or did not the driver of the Avenue C car (36th street car), when he was before you, state that the driver of the Second avenue car was in no way in fault, was not to blame for the accident, and did what he could to avoid it ? ” An objection to this question was made by the defendant, the Houston, etc., R. R. Co., and in ruling upon the objection the court said : “ The objection of the Houston Street Road is sustained, and the evidence is not to be considered as against that road.” The court permitted the witness to answer the question, and the defendant, the Houston, etc., R. R. Co., duly excepted. The court distinctly charged the jury that the testimony of the police sergeant as to what the witness, Donohue, said, could be considered by the jury only for the purpose of affecting the credibility of Donohue as a witness. As to the defendant, the Houston, etc., R. R. Co., this evidence is not admissible, and it cannot be said that the direction of the court to disregard it entirely cured the defect of its admission. But this testimony was brought into the case by one of the defendants, and against the opposition of the plaintiff, and should not be allowed to defeat the plaintiff’s claim against the defendant, the Houston, etc., R. R. Co., which is fully established by other and competent evidence. The error is not such an one, when considered together with the whole case, as to call for a reversal of the judgment, upon the ground that substantial justice requires it. See Code of Civil Procedure, § 1003 ; Carley v. N. Y. & O., 16 State Rep. 307.

The charge of the learned trial judge, when considered as a whole, is correct, and no error of substance was committed in the manner in which he submitted the case to the jury.

The injuries the plaintiff received were such that he never can stand erect, must carry a physical deformity through life, always suffer more or less pain, and continue physically incapacitated for labor. The damages are not, therefore, excessive.

For the reasons above stated, the judgment and orders appealed from are affirmed, with costs.

Freedman, J., concurred,


text:
    CLARENCE A. PARSONS, Respondent v. CHARLES ROBINSON, Appellant.

      Agreement for the purchase of stocks, what is sufficient consideration to uphold an agreement or contract in relation thereto.

    This action is brought to recover the amount due to the plaintiff under a special agreement as to the purchase and sale of five hundred shares of the re-organization trust receipts of the Texas Pacific Railroad Com- ■ pany. The agreement was that in case the transaction resulted in a profit the plaintiff should be entitled to the profit on two hundred of the shares purchased. The evidence shows that the plaintiff and defendant had previously had a number of similar transactions which had resulted in a profit, and that on each occasion the plaintiff had been • paid his share of such profit. The plaintiff, on account of his position as a broker, had peculiar facilities for obtaining information as to certain stocks. The principal consideration for allowing him to share in the profits was his furnishing this information to the defendant and thus enabling the latter to take advantage of it. These being the relations between the parties, the plaintiff, on the 5th of October, 1886, informed the defendant that they had an opportunity to make some money in Texas Pacific Trust Receipts, if the defendant would carry the stock. The latter agreed to do so and directed the plaintiff to give the order to purchase, and to. send the stock in to Knickerbocker & Co., the defendant’s brokers. The plaintiff did so, and reported the púnchasete the defendant, at the same time saying to him : “ What will my inter'est be, 200 shares as before ? ” to which the defendant responded: “ All right.” The stock was purchased at 18£ and in a short time advanced to between 24 and 25, and the plaintiff then informed the defendant that he feared a break in the market and that the transaction had better be ’ closed out. The defendant instructed the plaintiff to give the order to ; sell out at 24, which order the latter gave to Mr. Rigney, a broker. One hundred shares were sold at this price, and then the order was canceled. Subsequently, defendant sold 100 shares at 28-J- and S00 shares at 28. On the plaintiff demanding his share of the profits, defendant refused to pay.

      Held, that reliable information as to facts upon which the future price of a stock will depend, is a sufficient consideration to uphold an agreement or contract in relation to such stock. The defendant acted upon information from plaintiff with profitable results. This forms a sufficient consideration for the promise of the defendant. As to the promise being made after the purchase of the stock, we see no value in defendant’s contention; for a past consideration, beneficial to the defendant, to which he afterwards assents, is sufficient to support the action.
    Before Dugro and Gildersleeve. JJ.

      Decided July 2, 1891.
    Appeal from a judgment entered in favor of the plaintiff on the verdict of a jury, and from an order denying the motion for a new trial.

      Vanderpoel, Cuming & Goodwin, attorneys and of counsel, for appellant.

      Boardman & Boardman, attorneys, and Edward C. Boardman of counsel, for respondent.
   By the Court.—Gildersleeve, J.

Prior to the 5th day of October, 1886, the plaintiff and defendant had entered into a sort of an agreement for the purchase of stocks, bonds, etc., according to the terms of which the plaintiff was to keep watch of the market, and when he heard of a good investment, he was to notify the defendant, who would advance the money with which to make the investment; and then, if it was successful, plaintiff was to share in the gains. A number of such investments were made, and on each occasion plaintiff received his share of the profits.

On October 5, 1886, the plaintiff advised the defendant to buy five hundred shares of the re-organized trust receipts of the Texas Pacific Railroad Company, stating his reasons for such advice. The defendant agreed, and plaintiff ordered the purchase. He then returned and informed the defendant of the purchase, and at the same time asked him, “What will my interest be ? Two hundred shares, as before ? ” To which the'defendant replied, “ All right.” The stock was subsequently sold at a considerable profit, but defendant refused to give plaintiff his share; whereupon the plaintiff brought this action, and recovered a judgment of fourteen hundred and thirty-eight dollars and sixty-three cents.

The defendant’s contention is that there was no consideration for the agreement to give plaintiff the two hundred shares, and that the agreement, if made at all, was made after the purchase of the stock.

But reliable information as to facts, upon which the future price of a stock will depend, is a sufficient consideration to uphold an agreement or contract in relation to such stock. See White v. Drew, 56 How. 53. The plaintiff had what turned out to be reliable information, which he imparted to the defendant, who acted upon such information, with profitable results to himself. This forms a sufficient consideration. See White v. Drew, supra ; 3 Parsons on Contracts, 359.

As to the promise to give the plaintiff the two hundred shares being made after the purchase of the stock, we see no value in the defendant’s contention; for a past consideration, beneficial to the defendant, to which he afterwards assents,, is sufficient to support an action. See Doty v. Wilson, 14 Johns. 378.

The evidence, although conflicting, was sufficient to warrant the submission of the question to. the jury, who found in favor of the plaintiff.

To the charge no exception was taken, and we find no exception to the admission or exclusion of testimony that raises a question of sufficient importance to require discussion here.

The judgment and order appealed from are affirmed, with costs.

Dugro, J.. concurred.


author:
      “ McAdam, J.
      •Per Curiam.

text:
    CITY SAVINGS BANK, Respondent v. HENRY E. STEVENS, Jr., et al., Appellants.

      Promissory note—Mahers and endorsers—Accord and satisfaction—Agreement between holder and payee.

    A party who becomes the bona fide holder of a promissory note before its maturity, in the usual course of business, without notice that it was accommodation paper, has the right to deal with the payee thereof as if it had been made for a full consideration. Under such circumstances any agreement between the holder and the payee does not affect the right of the holder to prosecute the maker of the note.
    The doctrine of suretyship, sometimes applied to the makers of accommodation notes, transferred by the payees to third persons, is inapplicable here, because the plaintiff, the holder of the note, had no knowledge of any facts creating the relation of principal and surety, and acted, as it lawfully might, on the assumption that the note was business paper, and that the parties thereto held that relation to each other which- the form of the contract disclosed.
    The term “ payment” in its legal import, “means the satisfaction of a debt by money, not by an exchange or compromise, or an accord and satisfaction.”
    Before Freedman, Dugro and Gildersleeve, JJ.

      Decided July 2, 1891.
    Appeal from judgment in favor of plaintiff, entered upon the decision of McAdam, J., at trial term, a jury having been waived.
    The following statement and opinion was delivered by the court at trial term :
    “ The plaintiff, a corporation doing business at Chattanoga, Tennessee, sues the defendants, as makers of a promissory note, dated August 15, 1889, wherein they ■promised to pay, four months after said date, to the order of the North Alabama Lumber and Manufacturing Company $1,463.91. The payees endorsed and transferred the note to the plaintiff. The defence is two-fold—first, that there was no consideration for the note, and, next, that it was discharged by an executed agreement made between the payees and the plaintiff, the terms of which are hereafter stated.
   McAdam, J.

The plaintiff, by discount, in the usual course of business, became the bona fide holder of the note before maturity, without notice that it was accommodation paper, and had the right to deal with the payees thereof as if it had been made for a full consideration. Hoge v. Lansing, 35 N. Y. 136 ; Central Bk. v. Hammett, 50 Ib. 160; Union Bk. v. Crine, 33 Fed. R. 816. Upon this hypothesis the agreement made between the payees and the" plaintiff does not affect the right of the latter to prosecute the makers. The agreement (which is pleaded as an accord and satisfaction) recites that in a certain attachment suit pending in the Federal Court at Huntsville, Alabama, wherein the plaintiff herein is plaintiff and the North Alabama Lumber and Manufacturing Company is defendant, there shall be a judgment entered for $17,191.78 damages (including, the note in suit), that the judgment shall not now be forced, but that three persons named as assignees in an assignment made by the Lumber Company shall act as receivers, with power to sell the attached property. That said persons shall also act as receivers in respect to a $3,500 judgmént between the same parties in the Chancery Court of Marion county, Tennessee. That, although there is actually due to the plaintiff $27,589.04, that amount is to be considered discharged as soon as the judgments aggregating $20,691.78 are paid. It is also agreed that the plaintiff shall hold whatever bills receivable it has in its possession and endeavor to collect the same from the parties by whom they were made, crediting the proceeds on the $20,691.78 aforesaid. The plaintiff has thus far received $5,000 and has the right, under the agreement, to continue to enforce whatever obligations it holds until the entire $20,691.78 is realized. The transaction stated does not constitute an accord and satisfaction of the plaintiff’s demand, nor does it in any way prejudice the defendants, and consequently does not impair the plaintiff’s remedies. The doctrine of surety-ship sometimes applied to the makers of accomodation notes, transferred by the payees to third persons, is inapplicable here, because the plaintiff, the holder of the instrument, had no knowledge of any facts creating the relation of principal and surety, and acted, as it lawfully might, on the assumption that the note was business paper, and that the parties to it held that relation to each other which the form of the contract disclosed (vide authorities before cited.) The defendants did not plead the receipt by the plaintiff from the trustees of the $5,000 on account, nor claim any pro rata benefit from it, nor do they claim ‘ payment ’ (in the technical sense) of the obligation sued upon, either in the whole or in part, for the term ‘ payment ’ in its legal import means the satisfaction of a debt by money, not by an exchange or compromise, or an accord and satisfaction.’ Manice v. Hudson R. R. R. Co., 3 Duer, 441 ; Morley v. Colverhill, 7 Mees. & W. 171. The defendants are not, therefore, in a position to invoke the application of the equitable doctrine, Orleans Co. Nat. Bank v. Moore, 112 N. Y. 543, that, where a creditor receives money on account of his debtor, he may be compelled to apply it ratably to all claims against the debtor, as well as to those upon which other persons are liable. Upon the pleadings and proofs the plaintiff is entitled to judgment for $1,567.23, the amount claimed, and interest.”

Kelly & MacRae, attorneys, and William F. MacRae of counsel, for appellants.

George W. Van Slyck, attorney and of counsel, for respondent.

•Per Curiam.

Judgment affirmed, with costs, on the opinion of the court below.


author: “ McAdam, J. Per Curiam.

text:
    IN THE MATTER OF THE APPLICATION OF THE DIRECTORS OF THE CHRISTIAN JENSEN COMPANY, Limited, for a Voluntary Dissolution.

      Order of injunction restraining appellants from prosecuting certain suits and proceedings as creditors.

      Meld, that the order was sufficient in form. It needed no amendment, yet the court, in furtherance of justice, had the power to amend it; the petition being in accordance with the statute, conferred power on the court to act. The objection to the jurisdiction being untenable, must be overruled.
    Before Freedman, Dugro and Gildersleeve, JJ.

      Decided July 2, 1891.
    Motion by receiver for an order permanently restraining and enjoining William Eggert and Edward Eggert, the sheriff of the county, Charles Wahlig, Frank A. Wahlig, and Frederick Wahlig, Michael Goode, city marshal, and all other persons, from taking any further steps in various actions and proceedings heretofore taken on behalf of them or either of them against “ The Christian Jensen Co.”
    Second—Directing the receiver to borrow sufficient money to enable him to properly box and stamp certain segars of the corporation and prepare the same for sale, and to issue receiver’s certificates for any sums so borrowed.
    Third—To make such arrangement as may be equitable and reasonable with the landlord of the premises where said segars are, for the use of said premises until April 1st next.
    Fourth—Directing the receiver to sell all of the Christian Jensen Company, Limited, except book accounts.
    The following opinion was delivered by the court at special term:
   “ McAdam, J.

Jurisdiction of the subject matter is conceded, and it is also conceded that the petition is in proper form and contains all the statutory requirements. The petition prays for £ the dissolution of the corporation,’ and the order requires all persons interested in it to show cause £ why the prayer of the petition should not be granted.’ The order is entitled in the proceeding which expresses its purpose, and refers to the petition on file. This is a substantial if not literal compliance with the statute, and all the law requires. The objection to the order is that it should have required those interested to show cause £ why the corporation should not be dissolved.’ It did so state, not in words repeated, but in words so plain that repetition was unnecessary. The object of the proceeding was the dissolution of the corporation; the petition prayed for a dissolution and requiring those interested to show cause £ why the prayer of the petition should not be granted,’ intelligently required them to show cause £ why the corporation should not be dissolved.’ It meant that, could mean but that, and no person of ordinary intelligence would claim that he understood anything different. The objection is a mere juggle on words, not meaning; is one of form, not substance; and j urisdiction even in special proceedings, to look at substance, not form, so long as there is a substantial compliance. The form used was taken literally from Abbott's New Forms, Vol. 1, p. 668, and anything that leaves the hands of Austin Abbott comes well recommended. In re Pyrolusite Company, 29 Hun, 429; 3 Civ. Pro. R. 270, the petition was defective and no jurisdiction was in consequence required. In pointing out its numerous defects the court incidentally referred to the form of the order, and said it did not comply literally with § 2248 of' the Code. If that so-called defect had been the only one in the case, jurisdiction of the court would no doubt have been sustained. The order made herein was sufficient in form. It needed no amendment, yet the court in furtherance of justice, had the power to amend it, the petition being in accordance with the statute, conferred power on the court to act. The other cases relied on as authorities against the validity of the order have no application. They relate to the following subjects : The People v. Hulburt, 46 N. Y. 110, to the authority of taxpayers of towns; Battel v. Torrey, 65 N. Y. 294, to infants’ estates; In re Valentine, 72 N. Y. 184, to lunatics’ estates; and Stillwell v. Swarthout, 81 N. Y. 109, to administrators’ sales. The objection to the jurisdiction being untenable must be overruled. As to the perpetual stay, the application will be denied as to the Eggerts, whose rights became vested before the order herein was made. As to the Wahligs, the application must be granted. Their proceedings were instituted after the order was granted, and after the receiver acquired title which relates back to the time the order was signed. The second, third and fourth branches of the application are in the interest and for the benefit of all concerned and will be granted.”

John Fennel, for appellant Wahlig.

Lewis Hessberg, for appellant Eggert.

John C. Coleman, for the receiver, respondent.

Per Curiam.

The order should be affirmed, with ten dollars costs and disbursements, upon the opinion of the learned judge at special term.


author: By the Court.—Freedman, J.

text:
    GEORGE C. AKERSLOOT, an Infant, by Guardian, etc., Respondent v. THE SECOND AVENUE RAILROAD COMPANY, Appellant.

      Negligence—Excessive damages,

    Held, in this case,- that, upon the facts disclosed, the question of negligence on the part of the person having charge of the infant-plaintiff, and of defendant’s negligence, were questions for the jury, and were fully and fairly submitted under a charge which carefully guarded every right of .the defendant. Under all the circumstances the verdict of $12,000, for the loss of plaintiff’s leg, and the suffering connected therewith, is not excessive in amount.
    Before Freedman, Dugro and Gildersleeve, JJ.

      Decided September 20, 1891.
    Appeal from judgment entered in favor of the plaintiff upon the verdict of a jury, and from order denying defendant’s motion for a new trial.

      Merrill & Rogers, for appellant.

      Franklin Bartlett, for respondent.
   By the Court.—Freedman, J.

Upon the facts disclosed at the trial the question of negligence on the part of the person having charge of .the infant-plaintiff at the time of the occurrence complained of, and the question of defendant’s negligence, were questions for the jury, and they were fully and fairly submitted under a charge which carefully guarded every right which the defendant had. There was no error in the charge or the refusals to charge otherwise, and the jury were expressly instructed to determine the case upon their own recollection of the evidence and not upon any allusion of the trial judge as to his recollection of certain particulars. Nor can it be held that, under all the circumstances, the verdict of $12,000, for the loss of plaintiff’s leg, and the suffering connected with it, is excessive in amount. Upon the whole case no substantial reason appears why the verdict of the jury should be disturbed.

The judgment and order should be affirmed, with costs.

Dugro and Gildersleeve, JJ., concurred.


text:
    HUGH DONNELLY, Appellant v. GEORGE B. MORRIS, Respondent.

      Injunction against prosecuting an action commenced in another state, what not ground for—Inconvenience in ascertaining facts, and in going to the other state to defend the action there, is not ground for injunction.

    Before Sedgwick, Ch. J., and Freedman, J.

      Decided January 5, 1891.
    Appeal from an order denying plaintiff’s motion for an injunction restraining defendant from prosecuting an action in . Massachusetts, the complaint praying, among other things, for that relief.

      LaRoy S. Gove, attorney and of counsel, for appellant.

      Bliss & Schley, attorneys, and George Bliss of counsel, for respondent.
   The Court (per Curiam) in affirming the order held as stated in the head note.