text:
    Martha Brayman, Respondent, v. William E. Stephens and Others, as Executors, etc., of David W. Langley, Deceased, Appellants.

      A finding of fact not excepted to will not be reviewed on appeal — evidence inadmissible under Code Giv. Proa. § 829.
    When no exception was taken to the report of a referee to whom a claim was referred under the statute, in regard to a finding therein that the claim of the plaintiff was greater than that presented hy her to the executors, such matter will not be considered upon an appeal from the judgment rendered in such action, and the order confirming the referee’s report and denying the defendant’s motion for a now trial.
    In an action brought by a vendor to recover from the executors of the deceased vendee the value of goods sold and delivered, the testimony of the vendor upon the trial to the effect that such goods had never been paid for is inadmissible under section 839 of the Code of Civil Procedure.
    Appeal by the defendants, William E. Stephens and others, as executors, etc., of David W. Langley, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Steuben on the 18th day of December, 1893, rendered upon the report of a referee, and also from an order ■entered in said clerk’s office on the 18th day of December, 1893, denying the defendants’ motion for a new trial upon a case containing exceptions and granting the plaintiff’s motion to confirm the referee’s report.

      Eli Soule, for the appellants.

      A. M. Burrell, for the respondent.
   Haight, J.:

David "W. Langley died on the 5th day of July, 1888, and thereafter letters testamentary were issued to the defendants.

The claim presented by the plaintiff was as follows:

“ March 21, 1877, to a quantity of millinery goods sold and delivered at the agreed price of............... $250 00
And interest on the same.......................... 231 36
$481 36
“Allegany County, ss. :
“Martha A. Brayman, being duly sworn, says she was well acquainted with David W. Langley in his lifetime; that she sold and delivered to him the goods charged'in the above bill at the price charged herein, and that no part of the same has in any manner been paid or satisfied and is not secured by judgment or mortgage.
“MARTHA A. BRAYMAN.
“ Subscribed and sworn to before i me, this 1st day of June, 1889. j
~W. J. Sutein,
Notary Public.”

This claim was rejected by the defendants, and upon stipulation an order of reference was entered under the statute.

It appears from the findings of the referee that Mrs. Brayman and Mrs. Langley were co-partners carrying on the business of milliners and dressmakers, and were each equal owners of the stock of goods ; that on the 21st day of February, 1877, they sold and delivered the same to David W. Langley, who was to pay the plaintiff one-half of the amount of what the same should bring when sold by him. That thereupon Langley sold the stock of goods to one James Roblee, without making an inventory thereof, and that within a month thereafter Roblee sold the same to Mrs. Stone ; that an inventory was then made and their cost price and value amounted to the sum of $580, and that the interest of the plaintiff was of the value of $290. It further appears from the findings that on the 21st day of November, 1878, John W. Brayman, the husband of the plaintiff, ■entered into an agreement with Langley, in and by which Langley ■agreed to sell, and Brayman agreed to purchase, a certain lot of land situate in the village of Canisteo, for the sum of $1,367.86, which sum was to be paid in ten equal semi-annual payments, with interest; that thereafter and during the year 1879 it was agreed between the parties that Langley should keep the money that was ■due and owing the plaintiff on the sale of the millinery goods and apply it on the last payments on the contract between Langley and Brayman; that at the time of the death of Langley, in 1888, the ■contract remained in full force and effect, but the amount due and ■owing the plaintiff had not been applied thereon. The referee further found that the goods so purchased of the. plaintiff had not been paid for ; that the testator was, at the time of his death, indebted to her in the sum of $290, and interest thereon from the 21st day of February, 1877, amounting to $571.86, for which sum he reported ■she was entitled to judgment.

The referee’s report appears to have been based upon the testimony of the plaintiff’s husband. If further appears from his testimony that on the 3d day of 'July, 1886, he assigned all his right, title and interest in the land contract to Langley as collateral security for indorsing a note of $100 at the bank of Porter & Davis, and that subsequently Langley had to pay the note so indorsed by him; that Langley died by reason of a gunshot wound, and, after receiving such wound, Brayman was at Langley’s house in company with the defendants, and before his death he said to them that Brayman had no interest in the house, but he wanted the executors to sell the house and lot, and if there was any balance, after deducting what was owing him, they should pay it to Brayman. It further appears •■that the executors subsequently sold the premises, Brayman uniting with them in such sale; that there was a balance of $250 which the ■executors paid to Brayman.

It appears that the referee has found the plaintiff’s claim to be .greater than that presented by her to the executors, but no exception is taken to the report in this regard, and we are, therefore, not called upon to consider it. The contention on the part of the executors was that the claim had been paid; that it had been applied upon the contract, as evidenced by the indorsement thereon of $367.86, November 21, 1882, and that the same was barred by the Statute of Limitations.

The claim was upwards of twelve years’ standing at the time it was presented to the executors, and in view of its long standing it was important for the plaintiff to show that the claim had not been paid. To do this she was sworn as a witness in her own behalf and was asked the question, “ Have you ever had your pay for those goods ? ” This was objected to upon the ground that the question called for a personal transaction between the witness and the deceased. The objection was overruled and the evidence received as to all others, except the decedent.” An exception was taken by the defendants, and the witness answered that she had never been paid for the goods.

We do not quite understand what the referee meant by receiving the evidence as to all the others except the decedent. The decedent was not a party; the defendants were. The evidence was received. It could have no bearing except as against the defendants, and tending to establish the plaintiff’s claim. We do not understand that it was competent.

In McMurray v. McMurray (17 N. Y. Supp. 657) the General Term in the second department-held that, under section 829 of the Code of Civil Procedure, a mortgagee is incompetent to testify that payment of the mortgage was never made to him by the deceased mortgagor.

In Lerche v. Brasher (37 Hun, 385) the action was for services rendered to the, defendant’s intestate. It was held error to allow the plaintiff to testify that his claim had not been paid.

In Howell v. Van Siclen (6 Hun, 115) the action was upon a promissory note made by the defendant’s testator. It was held that the plaintiff should not have been permitted to testify that the note had not been paid, and for that reason the judgment should be reversed. Upon appeal to the Court of Appeals this judgment was affirmed. (70 N. Y. 595.)

This is not an appeal from a decree of a Surrogate’s Court, and consequently the cases to which the respondent has called our attention have no application.

In Wheeler v. Wheeler (18 N. Y. St. Repr. 445) there was no issue or controversy in the case upon the question to which the evideuce related. It is, therefore, not in point. But in this case the question of payment was the main and important issue in the case.

The plaintiff was also permitted to testify under objection and exception that Langley was a man who boasted of his property; that he boasted of having notes, mortgages and evidences of debt. We cannot understand the purpose of this evidence. He was dead, and his character and credibility were not involved. The plaintiff had no greater rights against the estate because of the wealth of the deceased. The evidence certainly was immaterial, and had it been given before a jury we should not hesitate in holding that its purpose was to prejudice, and, therefore, harmful. Perhaps, before a referee, we should not so regard it. Because of the first exception discussed, the judgment should be reversed and a new trial granted, costs to abide the final award of costs.

Dwight, P. J., Lewis and Bradley, JJ., concurred.

Judgment and order appealed from reversed and new trial granted, costs to abide the event.


source: Caselaw Access Project

author: Bradley, J. :

license: Public Domain

text:
    William J. Muckle, Respondent, v. Rochester Railway Company, Appellant.

      Regulations of a railroad company — their reasonableness a question of law — carrier of passengers — liability for misconduct or neglect of its servant — exemplary damages.

    Regulations are essential to the proper conduct and management of the business of any railroad corporation, and, upon a given state of facts, the question whether or not such regulations are reasonable is one of law to be determined by the court. The fact that unforeseen causes may sometimes intervene to produce inconvenience does not necessarily render such regulations unreasonable or unsuitable, but for such cases provision should be made so far as practicable.
    There may be cases where the disposition of a controversy about the reasonableness of certain regulations is dependent upon the determination of controverted questions of fact, in which case such facts are for the jury to determine, but the view of the facts which will render the regulations reasonable is a question of law for the court.
    It is a general rule that a carrier of passengers is answerable for all the consequences which may result to a passenger from the willful misconduct or negligence of the persons employed by it in the execution of the duty it has assumed towards such passenger, and where a railroad company has, by its contract with a person, undertaken, for a consideration paid, to carry him to his place of destination, such person has the right of passage, and as between him and such company he is at liberty to refuse to repay his fare and to insist upon having his continuous passage.
    If, in violation of the rights of a passenger, a railroad company, by its conductor, proceeds to forcibly eject him from the car in which he is rightfully seated as a passenger, notwithstanding the fact that the conductor personally may be justified by his instructions in doing so, by reason of the passenger, because of the mistake of another conductor, not having proper evidence of his right to ride on the car, yet the railroad company is.no more justified in the attempted act of ejection than it would be if such passenger had at the time held and presented the evidence of his right to remain as a passenger in the car without further payment.
    A person will not be permitted to recover exemplary damages against a master for the act or negligence of his servant, unless the master has authorized or ratified his servant’s misconduct, or unless the conduct complained of is that of the servant while he is in the service, after his unfitness for it is shown to the master, and the like rule is applicable, in an action against the master for the act of his servant, when the latter would not be chargeable with punitory damages if he were the party defendant.
    Appeal by the defendant, Rochester Railway Company, from a judgment of the County Court of Monroe county in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 14th day of November, 1893, upon the verdict of a jury,, and also from an order entered in said clerk’s office on the 14th day of November, 1893, denying the déíendant’s motion for a new trial made upon the minutes.

      Charles J. Bissell, for the appellant.

      Charles Van Voorhis, for the respondent.
   Bradley, J. :

The action is brought to recover damages for an alleged assault upon the plaintiff while a passenger in one of the defendant’s cars.

In the afternoon of March 17, 1892, the plaintiff took passage upon an Exchange street car going to what is known as the Four Corners, where he desired to take a West avenue car, paid his fare, asked for and received a transfer for that car. The plaintiff at the Corners boarded a West avenue car, and when he presented the transfer ticket to the conductor the latter refused to receive it for the reason that it was past the time within which it was available, and asked the plaintiff to pay his fare, and on his refusal to do so or leave the car the conductor took hold of the plaintiff: to remove him from it, but before it was accomplished he paid his fare and was permitted to continue in his seat. The payment by the plaintiff of a single fare of five cents entitled him to one continuous passage from any one to any other point of the railroad operated by the defendant. (Laws 1890, chap. 565, § 101.) The right of the plaintiff on the payment made by him of his fare was to take the West avenue car to the place of his destination. To accomplish the purpose of indicating such right of passage, to be observed by the several conductors of the cars upon which continuous passage should be desired by the passengers, the company adopted regulations to the effect that a transfer ticket should be given to them by the conductor of the car upon which the passage was taken, and that the transfer ticket should be so punched as to indicate that the passenger has ten minutes time at the place of connection within which to take the other car for which the transfer is given, and to be further punched to indicate the connecting line on which the passenger desires to proceed. Such a ticket had been provided and was in use at the time in question. The conductor gave the plaintiff a transfer' ticket which purported to be good until five-forty p. m. It was more than an hour after that time when he boarded the West avenue car, and because the time for its use appeai’ed by the ticket to have expired the conductor of the latter car refused to permit him to ride without payment of his fare. There is some conflict in the evidence as to the time at which the plaintiff got on the Exchange street car, but the jury were permitted to find that it was then six-forty p. m. And as the passage of the car to the Eour Corners occupied only two minutes, it must be assumed that the difficulty arose from the mistake of the conductor in attempting to indicate by his punch mark the time within which the plaintiff could continue his passage on the West avenue car. The conductor thus made it appear upon such transfer slip that the plaintiff was not entitled to do it, and in the observance of his instructions it was the duty of the conductor to whom it was offered to refuse to accept it and to require the plaintiff to pay his fare. The question is whether or not the plaintiff is entitled to the relief which he seeks by this action. While it is conceded that he may have his remedy for breach of the contract, it is urged on the part of the defendant that he has no right of action for the cause alleged, because the defendant had provided suitable regulations for the management of the business of conveying passengers and the transfer of them from one to another line of its road so as to give to them the continuous passage on payment of a single fare as provided by the statute.

In view of the fact, as the evidence tends to prove, that cars on all the lines of the road operated by the defendant in the city of Rochester pass each way any given point within every five to eight minutes, the system provided for transfer slips, and their use will work effectually to accomplish the purpose, provided no mistakes or accidents occur to defeat its operation. And the fact that unforeseen causes may sometimes intervene to produce inconvenience does not necessarily render the regulations unreasonable or unsuitable for the purposes in view. However perfect they may be in any case there is a possibility of interruption of their due execution by inadvertence or other incidental cause. For such causes provisions should, so far as practicable, be made if they do not exist.

There is a reason for limiting the time within which a transfer ticket may be effectually used for the purpose of a continuous passage in the fact that otherwise the opportunity might be taken to use, or permit it to be used, for other than the contemplated continuous passage to the prejudice of the company. Regulations are essential to the proper conduct and management of the business of any railroad corporation. And upon a given state of facts the question whether or not they are reasonable is ,one of law to be determined by the court. (Hibbard v. N. Y. & E. R. R. Co., 15 N. Y. 455; Vedder v. Fellows, 20 id. 126; Northern R. R. Co. v. Page, 22 Barb. 130; Illinois Central R. R. Co. v. Whittemore, 43 Ill. 420; 92 Am. Dec. 138; South Florida R. R. Co. v. Rhodes, 25 Fla. 40; 23 Am. St. Rep. 506; Pittsburgh, C. & St. L. Ry. Co. v. Lyon, 123 Penn. St. 140; 10 Am. St. Rep. 517.)

In some of the States it is held to be a question of fact, or a mixed question of law and fact, to be submitted to the jury with proper instructions. It is so held in State v. Overton (4 Zab. 435; 61 Am. Dec. 671); Day v. Owen (5 Mich. 520; 72 Am. Dec. 62); Bass v. Chicago & N. W. Ry. Co. (36 Wis. 450; 17 Am. Rep. 495).

There may be cases where the disposition of the controversy about the reasonableness of certain regulations is dependent upon the determination of controverted questions of fact. It may be seen that .then such facts are for the jury. But then the view of the facts which will render the regulations reasonable is a question of law for the court.

It appeal’s that the system adopted by the defendant for the practical operation of its road is such as to give the requisite frequency to the running of its cars on all parts of its lines for the supply to its patrons of continuous passage for single fares by the observance and execution of the regulations in question. And, in view of the facts as they appear by the record, the conclusion is required that such regulations of the defendant are reasonable. The failure of the plaintiff to obtain the continuous passage to which he was entitled, on the payment of his fare, did not arise from any defect in those regulations, but solely from the mistake of the conductor in the execution of them. The question is, therefore, presented whether the defendant is liable in tort for the act of the conductor of the West avenue car, who was justified, by such regulations, in refusing to permit the plaintiff to ride in the car without payment of his fare. The question has seemingly been one where diverse views have been held by judicial writers.

In Townsend v. N. Y. C. & H. R. R. R. Co. (56 N. Y. 295) the plaintiff, having a ticket for passage from Sing Sing to Rhine-beck, took a train which went no further than Poughkeepsie. Before the train reached there the ticket was taken up by the conductor, and no evidence of his right to proceed further on the. defendant’s road was given to him. He took passage on the next, train to complete his trip to Rhinebeck, and, on his refusal to pay fare, for the reasons before mentioned, and which he stated to the conductor, the latter forcibly ejected him from the train.

The views of Judge Grover expressed in his opinion were to the effect that the defendant was not liable in tort for the consequences of the wrongful act of the first conductor in taking up the plaintiff’s ticket. The court did not, however, necessarily determine that, question, as there was another ground for the reversal of the court below.

The plaintiff recovered on the retrial, and the recovery was .sustained by the General Term. (6 T. & C. 495.) And Mr. Justice Learned cites in support of his conclusion Hamilton v. Third, Ave. R. R. Co. (53 N. Y. 25) in which the opinion was also delivered by •Judge Grover, who in the later case refers to. the Hamilton case for the purpose of distinguishing the questions presented in the two ■cases. Our attention is called to no other case in this State necessarily bearing upon the question. There are elsewhere, however, cases having some relation to it. Amongst those in which the actions founded upon principle similar to that of the plaintiff’s proposition in the present action have been sustained are the following ■cases : Palmer v. R. R. Co. (3 S. C. 580; 16 Am. Rep. 750); Burnham v. G. T. Ry. Co. (63 Me. 298; 18 Am. Rep. 220); L. E. & W. Ry. Co. v. Fix (88 Ind. 381; 45 Am. Rep. 464); Murdock v. B. & A. R. R. Co. (137 Mass. 293; 50 Am. Rep. 307); Head v. Georgia P. Ry. Co. (79 Ga. 358; 11 Am. St. Rep. 434); Kansas City, M. & B. R. R. Co. v. Riley (68 Miss. 765; 24 Am. St. Rep. 309).

And of those tending to hold to the contrary are Yorton v. Milwaukee, Lake Shore & W. Ry. Co. (54 Wis. 234; 41 Am. Rep. 23); Frederick v. M., H. & O. R. R. Co. (37 Mich. 342; 26 Am. Rep. 531); Bradshaw v. S. B. R. R. Co. (135 Mass. 407; 46 Am. Rep. 481).

The latter case and that of Murdock v. B. & A. R. R. Co. (supra) may be distinguished by the fact that the familiarity of the plaintiff in the Bradshaw case with the practice of the company and the checks used by it was such that by inspection he would have observed that he had not received the one suitable to his purpose, while in the other case the plaintiff was assured by the ticket seller that the ticket entitled him to passage to his place of destination.

In the present case the plaintiff was advised by the transfer ticket that it permitted him to take a West avenue car, and that he must do so within ten minutes, but he did not understand what was the meaning of the punch mark which was intended to advise the conductor of that car of the time the transfer slip was issued. It must be assumed on the evidence that the plaintiff took the first West .avenue car that left the Corners after he reached there, and that he -.so informed the conductor.

The plaintiff was given by the statute the right to a continuous passage to his place of destination on payment of the single fare, and it cannot be said that it was by any fault or neglect on his part that the right was denied to him. It is a general rule that a carrier of passengers is answerable for all the consequences to a passenger of the willful conduct or negligence of the persons employed by it in the execution of the duty it has assumed towards him.

The defendant had by its contract with the plaintiff undertaken for a consideration paid to carry him to his place of destination, and pursuant to it he had the right of passage, and as between him and the defendant he was at liberty to refuse to repay his fare and to insist upon having his continuous passage. In violation of that right the defendant by its conductor proceeded to forcibly eject him from the car in which he was rightfully seated as a passenger. Although the conductor personally may have been justified by his instructions to do so the defendant was put in the wrong by the act of the other conductor, and was no more justified in the attempted act of ejection than it would have been if the plaintiff had at the time had and presented the evidence of his right to remain as a passenger in the car without further payment.

It follows, if these views are correct, that the defendant is liable to the plaintiff for the consequences of such violence upon his person as was used by the conductor for the purpose of ejecting him from the car.

The court erred in the refusal to charge as requested that the jury could give the plaintiff compensatory damages only, and that, in no view of the evidence could they award to him punitive damages. This is also a question about which the judicial writers of several of the States disagree.

The rule adopted by the courts of this State is such as not to permit the recovery of exemplary damages against the master for the act or negligence of his servant unless he has authorized his misconduct, or ratified it, or unless the conduct complained of is that of the servant while he is in the service, after his unfitness for it is known to the master. (Cleghorn v. N. Y. C. & H. R. R. R. Co., 56 N. Y. 11; Hendricks v. Sixth Ave. R. R. Co., 12 J. & S. 8; Murphy v. Central P., etc., R. R. Co., 16 id. 96; Fisher v. M. E. R. Co., 34 Hun, 433; Donivan v. M. Ry. Co., 49 N. Y. St. Repr. 722.)

And tbe like rule is applicable in an action against tbe master for the act of tbe servant, where tbe latter would not be chargeable with punitory damages if be were tbe party defendant. (Hamilton v. Third Ave. R. R. Co., 53 N. Y. 25; Townsend v. N. Y. C. & H. R. R. R. Co., 56 id. 295.)

It cannot well be claimed that tbe conductor, who sought to eject tbe plaintiff from tbe car, would be chargeable with punitive damages. He did what appeared to him to be bis duty, and, therefore, it may be assumed that be acted in good faith in tbe matter, and not wantonly.

Tbe two cases last above cited are quite applicable to this question in tbe present case.

Tbe judgment and order should be reversed and a new trial granted, costs to abide the event.

Dwight, P. J., Lewis and Haight, JJ., concurred.

Judgment and order of tbe Monroe County Court appealed from reversed, and new trial granted, with costs to abide tbe event.


author: Bradley, J.:

text:
    Frederick F. Hoyer, Respondent, v. The Village of North Tonawanda, Appellant.

      Duty of trustees of a village in regard to its streets — notice of the defective condition thereof — negligence— oare required of a person driving in a village street.

    It is the duty of the trustees of a village, to the public, tó exercise care for the protection of those travelling upon the streets of such village, and the fact that such trustees presumed that a street railway company, which was engaged in tearing up the streets under a franchise, would properly guard its work in so far as it was dangerous to the public, does not necessarily excuse such trustees from the reasonable care and vigilance which their duty to the public imposes upon them.
    Where the defective condition of a street in a village was not caused by the act of such village through its officers or employees, notice of such defect, express or implied, is requisite to charge the village with negligence in an action brought to recover damages for personal injuries alleged to have been sustained by reason of such defect. When the defective condition of a street is produced by some sudden cause, or by the act of a trespasser, or by some means not anticipated, a reasonable time must elapse in order to raise the implication of notice to the municipal authorities. After the lapse of such time notice can be implied from the fact that the supervision and care of the streets are within the duties which the authorities are required to observe and exercise, and it may be supposed that those charged with such duty have become cognizant of .the situation which requires their attention. What the time requisite to charge a municipal corporation with such notice is, depends upon circumstances.
    Where an excavation in the streets of a village is made pursuant to permission given to a street railway company by the trustees of such village, the village is chargeable with knowledge of what is being done by the company in its ■streets, where the franchise so granted to it permitted the construction of the railway, and is advised of the necessity of providing some means for warning people to avoid the danger of entering the portions of the street for the time being thus rendered unsafe for travel. Whether such village is chargeable with a want of reasonable diligence in not having provided safeguards for the protection of the public at a certain time and place is a question for the jury to determine in an action brought to recover damages for personal injuries alleged to have been sustained by reason of such excavation.
    While a person driving along the street of a village is permitted to assume, if nothing appears to indicate the contrary, that he can safely proceed, he is nevertheless required to exercise care to avoid any danger the existence of which under the circumstances lie has any reason to apprehend.
    A person driving along the street of a village know that a railroad company was proceeding with the work of constructing its railway in the streets thereof, but had not been advised that it was engaged in such work at a particular place. He had gone over that street the day before, and it was then in good condition.

      Meld, in an action brought to recover damages for personal injuries sustained by him by reason of the defective condition of the street, that if the evidence on his part tended to prove that no suitable precautionary means were provided to warn persons not to proceed into the place where the accident happened, the jury was justified in finding that the plaintiff was free from contributory negligence.
    Appeal by the defendant, The Village of North Tonawanda, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Niagara on the 27th day of January, 1894, upon the verdict of a jury rendered after a trial at the Niagara Circuit, and also from an order entered in said clerk’s office on the 27th day of January, 1894, denying the defendant’s motion for a new trial made upon a case containing exceptions.

      Root, Orton & Baldwin, for the appellant.

      George W. Oothrcm, for the respondent.
   Bradley, J.:

In the evening of December 9, 1892, the plaintiff’s -buggy, in which he was riding on Vandervoort street in the village of North Tonawanda, was overturned, and he was thrown out and injured. He charges that his injury was caused by the negligence of the defendant.

The occasion of the accident was an excavation made in the street by the Tonawanda Street Railroad Company, which was proceeding to construct its road in that street. For that purpose the company on the day of the injury had excavated a place for its location there. The plaintiff, not being -aware or advised of the situation, drove into the excavation, causing the injury. It was dark, and the evidence on the part of the plaintiff tends to prove that there were no barriers or lights, other than the electric lights at some distance from the place in question, to warn him of the danger.

Upon the subject of lights there was a conflict in the evidence.. "Witnesses on the part of the defendant testified that there was a red light at the intersection of Thompson and Vandervoort streets, where the plaintiff turned from the former into the latter, and another south on Vandervoort street. The question whether or not such lights were there was one of fact for the jury.

The village authorities had in the spring before granted to the company the franchise to construct its railroad in various streets of the village, including the street in question, and thereafter the company had been engaged in the work of constructing its road. But nothing for that purpose had before that day been done in that particular locality. The jury were by the evidence permitted to find that the condition in which it was left at the close of that day was -dangerous to the public travel, and that no suitable guards or means were provided to warn persons driving in the street of the danger.

It is, however, urged that notice of the unsafe condition of the street at the place in question was not imputable to the defendant, and for that reason the exception to the denial of the motion for a nonsuit was well taken.

The trustees knew that the company had been during the summer engaged in tearing up streets in places preparatory to the construction of its railroad; and in the grant of the permit to construct it some provision was made for supervision of the street committee of the board of trustees. And as to the public the duty was with the latter to exercise care for the protection of the travel upon the streets. The trustees were advised that the work which the company was doing for the purpose of the construction of its road rendered the portions of the streets where they were so engaged unsafe; and that it was essential that some means should be provided as a warning of the danger which otherwise might be encountered by the persons passing over the streets with vehicles.

With a view to that it would not be unreasonable to suppose that they may have deemed it their duty to observe “where the company was doing its work, and to take precautionary measures for the safety of travel within the village.

The trustees may have supposed and assumed that the company would do all that was essential to that purpose. But this did not necessarily excuse them from that reasonable care and vigilance which their duty to the public imposed upon them (Pettengill v. City of Yonkers, 116 N. Y. 558; Masterton v. Village of Mt. Vernon, 58 id. 391.)

Inasmuch as the excavation'was not the act of the defendant-through any of its officers or employees, notice of it, express or implied, was' requisite to charge the defendant with negligence. When a defective condition of a street is produced by some sudden cause or by the act of a trespasser, or by some means not anticipated, the lapse of a reasonable time is requisite to raise the implication of notice to the municipal authorities. This, after such time, could be implied from the fact that the supervision and care of the streets are within the duties which they are required to observe and exercise, and then it may be supposed that those charged with such duty have become cognizant of the situation which requires their attention. What time is requisite to charge the municipal corporation with such notice is dependent upon circumstances;

In the present case excavation in the streets in the manner and for the purpose which it was done by the railroad company was made pursuant to the permission given by the defendant. The latter, therefore, was chargeable with knowledge of what was being done by the company in the streets where the franchise so granted to it permitted the construction of the railroad, and was advised of the necessity of providing some means for warning people to avoid the danger of entering the portions of the street thus for the time being rendered unsafe for travel.

And whether the defendant was chargeable with a want of reasonable diligence in not having seen to it that safeguards were provided for the purpose at the time and place in question, and whether the plaintiff’s injury was attributable to the negligence of the defendant, were questions for the jury. (Wendell v. Mayor, 4 Keyes, 261; 4 Abb. Ct. App. Dec. 563; Hume v. Mayor, 74 N. Y. 264.)

While the plaintiff, if nothing appeared to indicate to the contrary, was permitted to assume that he could safely proceed, he, nevertheless, was required to exercise care to avoid any danger which, under the circumstances, he had any reason to apprehend may have existed. He knew that the company was proceeding with the work of construction of its railroad in the streets, but had not been advised that it was so engaged at the place in question. He went over the street the day before. It was then in good condition. If, as the evidence on his part tended to prove, no suitable precautionary means were provided to warn persons not to proceed into the place of the accident, the jury were permitted to find that the plaintiff was free from contributory negligence, and that his injury was attributable to the negligence of the defendant.

Those facts were properly submitted to the jury.

The judgment should be affirmed.

Dwight, P. J., Lewis and Haight, JJ., concurred.

Judgment and order appealed from affirmed.


text:
    Burdette B. Brown and Another, Respondents, v. Helen M. Brown, Defendant; Charles Dow and Another, Appellants.

      Action to reform a deed — merger of prior agreements between the parties — burden of proof — laches—power of husband and wife to take as tenants in common — deed from a husband, to his wife — when valid in equity.

    It is presumed that all the prior negotiations and agreements between grantees on the subject of the estate to be taken by them have been finally concluded by, and are embraced in, the terms of the deed conveying such estate, and in an action brought to reform a deed because it'does not conform to the understanding of the grantees therein named as to the title to be taken by them, the burden of proof is upon the plaintiff to overcome such presumption by evidence.
    To reform an agreement between parties it is essential that mutual mistake or fraud on the part of one of the parties be shown, but such rule is not necessarily' applicable to a case where the mistake occurs merely in the reduction of the agreement to writing.
    When a grantor fails to observe the contract pursuant to which a deed is made, a grantee who has not assented to the terms of the deed nor been advised at the time of its delivery of the defective execution of the contract, may seek a remedy in an action for the reformation of the deed founded upon the charge of fraud on the part of the grantor.
    The fact that,a wife relied upon her husband to prepare a deed according to their mutual understanding, and rested in the belief that it was so made, and did not ascertain or know that it did not express their intentions, does not necessarily constitute laches on her part, or deny to her or her heirs the right to make the mistake and misapprehension a ground for reformatory relief.
    It is enough to authorize the reformation of a contract if it appears that, through the mistake of both parties to it, the intentions of neither have been expressed in it.
    Since the statute has given to the wife individuality, for the purpose of taking and holding property as effectually as if she were a feme sole, she may take as a tenant in common under a single'deed to her and her husband, if the deed properly expresses an intention to that effect.
    While a deed made by a husband directly to his wife is void at law by reason of the marital relation, yet, if it has for its support an adequate consideration paid by her to him, it may be valid and effectual in equity.
    Appeal by the defendants, Charles Dow and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Allegany on the 3d day •of January, 1894, upon the report of a referee.

      William II. Henderson, for the appellants.

      L. G. Yon Fleet, for the respondents.
   Bradley, J.:

The import of the terms of the deed of conveyance made by Jason Hunt and wife to Anson D. Brown and Esther J. Brown, his wife, was that the grantees took title as tenants by the entirety, and, therefore, that on the death of the wife the husband became seized of the entire estate in the premises. (Bertles v. Nunan, 92 N. Y. 152.)

The plaintiffs allege that the relation of the grantees to the title was not correctly represented by the deed, but that by it they intended and sought to take title as tenants in common, and that the words essential to the creation of such tenancy were omitted from the deed by inadvertence or mistake.

The referee upon the subject found as facts that, by an agreement between Anson D. Brown and Esther J. Brown, they agreed to purchase the lot; that each should pay one-half of the purchase price; that a deed should be taken by them as tenants in common, each to have an equal undivided half; that Anson D. Brown should prepare the deed containing a provision to that effect; that he did prepare the deed, which was executed by the grantors; that each of the grantees paid one-half of the purchase money, and the deed was delivered to Anson D. Brown, who caused it to be recorded; that he as well as his wife intended that the deed should convey to the wife an equal undivided half of the premises as tenant in common with her husband; that she had no actual knowledge of the terms of the deed, but believed that it did contain a provision to that effect, assented to nothing to the contrary and never knew that its legal effect was otherwise. That in 1874 the grantees erected a house on the premises, and each of them paid one-half of the expense of the building. That in March, 1876, Anson D. Brown, by deed, conveyed an equal undivided half of the premises to Esther J. Brown, his wife; that she paid him as the consideration the fair value of such half, and that all the payments so made by her were made out of and from her separate estate, the most of which came to her from her father. These facts have the support of evidence. And the question is, whether or not they are sufficient to permit the relief sought and directed by the referee.

The judgment of the defendant Dow was-recovered in 1887 upon a debt incurred by Brown in 1881. He caused the premises to be sold upon execution issued upon Ms judgment and took the sheriff’s certificate of sale.

The alleged purpose of the action was not to reform the agreement made between the grantees pursuant to which the deed was taken in their names, but to reform the deed because it was not in terms made to conform to such understanding. The plaintiffs in the outset encountered the presumption that all prior negotiations and agreements between the grantees on the subject wei’e finally reduced to and concluded by the terms and legal effect represented by the deed. And they assume the burden of overcoming by evidence such presumption. This they have done in so far as to make it appear that Mrs. Brown did not assent that the deed should be made to create any other relation of the grantees to the premises than that of tenancy in common, and that she was not cognizant of the omission of the provision requisite to effectuate such purpose. And while Anson D. Brown understood that he was to have the deed so made pursuant to such agreement, and intended to do so, he failed to accomplish what he had undertaken in that respect. It is very likely that such failure was because he was not well advised of the effect of the language of the grant or of what was essential in its terms to accomplish the purpose in view. ITis mistake, therefore, was in the failure to make use of words to express in the conveyance what was necessary to such purpose, and to effectuate the intention of the grantees.

It is urged on the part of the defendants that those facts are not sufficient to entitle the plaintiffs to relief, but that fraud on the part of Mr. Brown, or mutual mistake of fact of himself and Ms wife, is essential to the reformation sought. That position is sound in its application to a remedy to reform an agreement as such between parties. But that rule to the extent claimed for it is not necessarily applicable to a case where the mistake is merely in the reduction of the agreement to writing. (Pitcher v. Hennessey, 48 N. Y. 415; Born v. Schrenkeisen, 110 id. 55; Marsh v. McNair, 48 Hun, 117.)

• When a grantor fails to observe the contract pursuant to which Ms deed is made, the grantee, not assenting to its terms nor advised at the time of its delivery of the defective execution of the contract, may seek the remedy in an action brought for the reformation of tiie deed founded upon tlie charge of fraud on the part of the grantor. (Welles v. Yates, 44 N. Y. 525.)

In the present case the agreement in question was made between the grantees alone, and had relation only to the interests which they respectively intended to take in the land. It was a matter about which the grantors were necessarily indifferent. The reason it was not consummated by the terms of the conveyance is attributable to the failure of the husband to so draw the deed as to express in that instrument that which was essential to give effect to the agreement pursuant to which they as between themselves made the purchase. There was no actual fraud on the part of Ur. Brown. And while he knew how the grant was expressed, his mistake or misunderstanding was as to the effect of the language employed. It is reasonable, in view of the relation between himself and his wife, to assume that she confidently relied upon him to prepare the deed according to their understanding, and that she rested in the belief that it was so made. And the fact that she did not ascertain or know that it was in effect otherwise, did not necessarily charge her with laches or deny to her or her heirs the right to make the mistake and misapprehension available for reformatory relief. (Martin v. Martin, 1 N. Y. Supp. 746; Albany City Savings Institution v. Burdick, 87 N. Y. 40.)

It seems, in view of the facts so found and which the evidence tends to prove, that both the husband and the wife believed thkt their relative interests in the property taken by the conveyance were those with which they intended and sought by it to become vested, and thus (assuming that both of them were advised of the contents of the deed) their mistake may be said to have been mutual as to the effect of the words employed to express the grant to them. But the inference is permitted that such assumption was not applicable to the wife. In Maher v. Hibernia Ins. Co. (67 N. Y. 283) Judge Rolger said: It is enough to authorize the reformation of a contract if it appears that, through the mistake of both parties to it, the intentions of neither have been expressed in it.”

The facts in the present case make that proposition applicable. The reason of the rule which requires mutual mistake of the parties to a contract to reform it, is that otherwise the court might make a new contract for them which would be the consequence of its reformation, when the mistake is applicable to only one of tbe contracting parties. But when tbe contract as written does not fully or correctly express their intentions the court will give effect to it as made. Here it is found what the agreement was between Mr. and Mrs. Brown, and that their intentions were alike disappointed by the failure of the deed in its terms to give effect to it. In that view, by the reformation sought for or by adjudication of the relative rights of the grantees in the deed, the court effectuates the intent and purpose of their agreement before mentioned. It is, however, suggested on the part of the defendants that while the marital relation existed the husband and wife could not take as tenants in common under the deed by reason of their unity in contemplation of law.

Since the_ statute has given to the wife individuality for the purposes of taking and holding property as effectually as if she were' a feme sole it would seem but reasonable that she may take as tenant in common under a single deed to her and her husband properly expressing the purpose of the conveyance to that effect.

And while the deed made by Anson D. Brown to Esther J. Brown, his wife, was, by reason of such relation, void at law, yet, having for its support an adequate consideration paid by her to him, it may be valid and effectual in equity. And the conclusion of the referee in respect to that deed is sustained, by the facts found by him.

These views lead to the conclusion that the judgment should be affirmed.

Dwight, P. J., Lewis and Haight, JJ., concurred.

Judgment appealed from affirmed, without costs of this appeal to either party. *


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    The People of the State of New York, Respondent, v. Charles Flaherty, Appellant.

      Bernal intercourse with a female under sixteen years of age ■ — • sufficiency of the indictment— evidence of intercourse with others.

    An indictment for a statutory offense is sufficient when it charges the offense as , the statute defines it, and it is the purpose of the statute that no indictment shall be deemed insufficient by reason of an imperfection in matter of form which does not tend to the prejudice of a substantial right of the defendant.

      An indictment charged that a person did wickedly and feloniously perpetrate an act of sexual intercourse with a specified person, a female not his wife, she being at that time a female under the age of sixteen years, contrary to the statute in such case made and provided, and against the peace of the People of the State of New York and their dignity.

      Held, that such indictment was sufficient.
    Upon the trial of a person for the crime of having had sexual intercourse with a female, not his wife, under the age of sixteen years, evidence was given upon the part of the People tending to prove that the defendant had sexual intercourse with the prosecutrix twice in June, 1892; that no person other than the defendant had had sexual intercourse with the prosecutrix, and that in March, 1893, the prosecutrix had given birth to a fully developed child. The defendant offered to prove that certain other persons in the month of June, 1892, had had sexual intercourse with the prosecutrix, which proof, under the objection of the prosecutrix, was excluded.

      Held, that such evidence was improperly excluded;
    That while the fact that others had had sexual intercourse with the prosecutrix would be no defense to the defendant if he also had sexual intercourse with her while she was under the age of sixteen years, yet that such evidence was admissible as bearing, so far as it might, against the corroboration which the evidence of the birth of a child tended to give to the charge of intercourse by the defendant with the prosecutrix.
    • Appeal by the defendant, Charles Flaherty, from a judgment of a Court of Sessions, held in and for the county of Livingston, rendered on the 24th day of April, '1893, convicting the defendant of the crime of having had sexual intercourse with a female under the age of sixteen years, not his wife.

      F. G. Peck, for the appellant.

      William Garter, District Attorney, and Fdward P. Goyne, for the respondent.
   Bradley, J.:

The indictment contained two counts. By the first it is charged that the defendant on the 1st day of July, 1892, at the town of Mount Morris, in the county of Livingston, “ did wickedly and feloniously perpetrate an act of sexual intercourse with one Mary Sweeney, a female not his wife, the said Mary Sweeney being at said time a female under the age of sixteen years, contrary to the statute in such case made and provided, and against the peace of the People of the State of New York and their dignity.”

The second count, for the purposes of any question presented, is not essentially different from the first.

The defendant demurred to the indictment on the grounds: (1) That the acts stated in it do not constitute a crime. (2) That no crime is charged by it.

This demurrer was overruled and exception taken, and the defendant thereupon entered his plea of not guilty to the indictment. The trial was had, and the result was a verdict of guilty and a judgment of conviction.

The question raised by the demurrer requires a reference to the statute, which at the time of the commission of the alleged offense provided that “ Rape is an act of sexual intercourse with a female not the wife of the perpetrator, committed against her will or without her consent. A person perpetrating such an act or an act of sexual intercourse with a female not his wife : (1) When the female is under the age of sixteen years, or * * * (3) When her resistance is forcibly overcome * * * is punishable by imprisonment,” etc.

The objection made to the indictment was that it failed to charge the defendant with any defined crime. It did set forth the act which was by the statute a criminal offense. .

Was anything further requisite?

The statute provides that “An indictment is an accusation in writing, presented by a grand jury to a competent court, charging a person with a crime.” (Code Crim. Proc. § 254.) This is the definition of a presentment by the grand jury. Then as to its form and contents the statute further provides that “ the indictment must contain: (1) The title of the action, specifying the name of the-court to which the indictment is presented, and the names of the parties.' (2) A plain and concise statement of the act constituting the crime without unnecessary repetition.” (Id. § 215.) That “ words used in a statute to define a crime need not be strictly pursued in the indictment, but other words conveying the same meaning may be used.” (Id. § 283.) “ That no indictment is insufficient, nor can the trial, judgment or other proceeding thereon be affected, by reason of an imperfection in matter of form, which does not tend to the prejudice of the substantial rights of the defendants upon the merits ” (Id. § 285), and that “ neither presumptions of law, nor matters of which judicial notice is taken, need be stated in an indictment.” (Id. § 286.) It is, however, urged on the part of the defendant- that although the act charged in the indictment was a crime, the definition of it was rape, and that the allegation in it of such definition was essential to its support.

It is the general rule that an indictment for a statutory offense is sufficient when it charges the offense as the statute defines it. (Phelps v. People, 72 N. Y. 334; Tully v. People, 67 id. 15.) This the indictment in the present case does with substantial precision. When, a crime has a general name it is desirable for certainty that it be inserted in the indictment as well as the act which constitutes it. Such is the form mentioned in the statute. (Code Crim. Proc. § 276.) But it does not by the terms of that section seem to be imperative in its application to all cases. It purports to give what may he substantially the form. In that respect by its terms it is not applicable to an offense having no general name.

In People v. Maxon (57 Hun, 366) it was held that the crime charged as in the present indictment was not rape because it did not come within the definition of that crime. By the Revised Statutes the “ Carnally and unlawfully knowing any female child under the age of ten years ” constituted the crime of rape, and was there so designated. (2 R. S. 663, § 22.)

The language of section 278 of the Penal Code differs from'that of the prior statute on the subject, and as it was at the time in question is susceptible of a construction which rendered sexual intercourse against the will or without the consent of the female essential to the crime of rape as there defined, as held in People v. Maxon.

In the view taken it is unnecessary to consider the question whether or not the theory of the crime is such that a female within the designated age cannot consent to sexual intercourse, and, therefore, in the legal sense it is had against her will. However that may be, the act constituting the crime in the present case is concisely stated in the indictment, and there is no opportunity to misunderstand from it the nature of the offense charged, nor is it susceptible of any other than one interpretation, and that one cannot mislead in that or any respect. In People v. Dumar (106 N. Y. 502) and in People v. Connor (126 id. 278) the- question presented here did not arise. In the former the indictment was held insufficient because it failed to state the act which constituted the crime. This the charge of larceny did not necessarily do.

And in the Connor case no question arose upon the sufficiency of the indictment. There the conviction of the charge of rape upon a female upwards of sixteen years of age was affirmed. As has been observed, the purpose of the statute, to which reference has been made, is that no indictment shall be deemed insufficient by reason of an imperfection in matter of form which does not tend to the prejudice of any substantial right of the defendant. The conclusion is that the indictment in question is sufficient and, therefore, the demurrer was properly overruled.

In July, 1882, the defendant became, and thereafter, up to the time of the presentment of the charge in question against him, continued to be, the pastor in charge of St. Patrick’s Church at Mt. Morris, N. Y. The prosecutrix attended that church. She became sixteen years of age July 4, 1892, and remained unmarried. She testified that upon eight occasions during the period commencing in February, 1892, and ending in June following, the defendant had sexual intercourse with her. And other than by her testimony evidence was given tending to prove circumstances corroborative of the charge of such intercourse by him with her within that period of time. The evidence on the part of the prosecution was sufficient to send, the case to the jury.

The defendant, by his testimony, fully contradicted the charge and the evidence tending to prove it. It was for the jury to determine what the truth was. The question of fact was submitted to-them and their verdict was supported by the evidence.

After the People had given evidence tending to prove that the^ defendant had sexual intercourse with the prosecutrix twice in June,. 1892, and had proved that she had in March, 1893, given birth to a fully developed child, the defendant offered to prove that certain other persons in the month of June, 1892, had sexual intercourse with her. This evidence on the objection of the prosecution was. excluded and exception taken.

The fact of pregnancy and child birth was of itself unimportant. Nor was it important that such intercourse had been had with the prosecutrix by others. That fact would be no defense for the defendant if he also had sexual intercourse with her while she was under the age of sixteen years. But so far as the evidence offered by the defendant may have had a bearing in refutation or contradiction of the charge made against him it was competent. When it was proven that Miss Sweeney gave birtli to a child in March, 1893, that fact, in view of her evidence that no person other than the defendant had had sexual intercourse with her, was corroboration of the charge against him. It was evidently proved for such purpose, as it was quite satisfactory evidence to the effect that such inter- • course had been had with her by some person.

The defendant, therefore, should have been permitted to prove that others in the month of June and thereabouts had sexual intercourse with her, as bearing so far as it might against the charge of such intercourse which that corroborative evidence tended to impute to him.

The purpose of the evidence so offered by the defendant was legitimate. In cannot now be seen what may have been the effect of the evidence if it had been received, or that the defendant may not have been prejudiced by its exclusion. The defendant’s exception was well taken.

And for that reason the judgment and conviction should be reversed and a new trial granted.

Dwight, P. J., Lewis and Haight, JJ., concurred.

Judgment and conviction of Court of Sessions of Livingston county appealed from reversed and a new trial granted, and for that purpose the proceedings are remitted to that court.


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    Francis X. Hooper and Others, Respondents, v. John T. Story and Others, Appellants.

      Executory contract for sale of personal property — liability of vendor for breach of warranty — damages must be proved.

    When a contract for the sale and delivery of a machine is executory, the remedy of the vendee, where the article does not comply with the provisions of the contract of sale, is to refuse to accept it; if he retains the property, after having an opportunity to examine and ascertain its qualify or character, he cannot maintain an action for damages. But the remedy of the purchaser is not thus qualified and limited when the seller has, by his undertaking collateral to the contract of sale, expressly warranted the quality of the article; then the liability of the vendor for damages for breach of warranty survives its acceptance by the vendee.
    Where, on the trial of an action brought to recover the purchase price agreed to be paid for certain personal property, the warranty and the breach thereof appeared, but it did not appear that any damages were sustained as a consequence of such purchase, judgment in favor of the plaintiff for the amount of the purchase price agreed upon is proper and will not be disturbed upon appeal.
    Appeal by tlie defendants, John T. Story and others, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Erie on the 13th day of March, 1893, upon the report of a referee.
    The action was brought to recover the purchase price of a varnishing machine sold and delivered by the plaintiffs to the defendants.
    By their answer thé defendants allege that the plaintiff's agreed to make and deliver to the defendants an extra large size varnishing machine, and then represented, agreed and warranted that the machine should be of a capacity sufficient to varnish 10,000 sheets of labels or advertisements per day, and that it should be so adjusted that it would operate perfectly with another machine called the dryer, and that there was a breach of the plaintiffs’ undertaking in that the machine made and delivered by them to the defendants had not such capacity and was not so adjusted, in consequence of which the defendants sustained damages.
    The referee directed judgment for the plaintiffs for the full amount of the purchase price of the machine.

      W. H. Whiting, for the appellants.

      L. M. Ownmings, for the respondents.
   Bradley, J.:

None of the evidence is here. The questions arise upon the exceptions to the conclusions of law of the referee, and those conclusions are dependent for support upon the facts as found by him. The referee found that the plaintiffs agreed to make and deliver to the defendant an extra large varnishing machine, to connect with a certain dryer, at a certain price, and represented, agreed and warranted that it should be of capacity sufficient to properly varnish 10,000 sheets of labels or advertisements per day; be complete in all its parts; that the machine delivered to the defendants was not complete in all its parts, was not made in a workmanlike manner, and that it was not of a capacity sufficient to varnish 10,000 sheets of labels or advertisements per day. And as one of his conclusions of law the referee found and determined “that defendants, by retaining possession of the machine, rising the same, and deriving profit therefrom, with knowledge of its imperfections and incapacity, as well as making repairs and alterations thereon, accepted the machine and became liable to pay therefor.”

To this conclusion the defendants excepted.

The contract for the sale and delivery of the machine was executory. In such case the remedy of the vendee, if the property does not correspond with that which by the contract of sale the vendor undertook to deliver, is to refuse to accept it, and if he retain the property after having opportunity to examine and ascertain its quality or character, he cannot maintain action for damages. (Reed v. Randall, 29 N. Y. 358; Brown v. Foster, 108 id. 387; Studer v. Bleistein, 115 id. 316.) But the remedy of the purchaser is not thus qualified and limited when the seller has by his undertaking, collateral to the contract of sale, expressly warranted the quality of the property; then the liability of the vendor for damages for breach of the warranty survives acceptance of it by the vendee. (Day v. Pool, 63 Barb. 506; 52 N. Y. 416; Parks v. Morris Ax & T. Co., 54 id. 586; Fairbank Canning Co. v. Metzger, 118 id. 260.)

In the present case the referee has found an express warranty of the capacity of the machine, and of its fitness for use with the dryer so called, and a breach of the warranty. This undertaking of the plaintiff did not include visible defects within its operation for the purposes of a remedy for damages. (Studer v. Bleistein, 115 N. Y. 316.) It may be that 'the difficulty in the adjustment of the machine for the purpose of its operation with the dryer in use by the defendants was discernible, and not covered by the warranty. It, however, is not found that it was 'so. It must here be assumed upon the findings of fact as to the character of the machine that it was otherwise, and that the defendants were entitled to be allowed, by way of counterclaim, damages equal to the difference in value of the machine as it was, and the value which it would have had if in accordance with the warranty. No other basis of estimating damages appears by tlie facts as found. The referee, as a further conclusion of law, found that the defendants failed to show any legal claim for damages. There is no finding upon the subject of the value of the machine. The defendants did, however, ask the referee to determine that they were entitled to a specific amount for money paid by them for repairs of the machine and the sum paid out for work spoiled.

There was no error in the refusal of the referee to do so. While he found that the defendants had paid out certain sums for repairs of the machine and for work spoiled, he did not find that those expenses, or any part of them, were occasioned by any defect in the machine for which the plaintiffs were chargeable upon their warranty, and he declined to find that the work was spoiled by reason of the imperfect construction of the machine. He also refused to find, as requested, that the defendants’ profits would have been greater if it had been as warranted.

While, therefore, a warranty and its breach appear, it does not appear by the facts, as found by the referee, that any damages were suffered as a consequence. And as this review is founded solely upon the findings of the referee, there is no opportunity for inferences other than such as necessarily arise from the facts as found by him.

The judgment must, therefore, be affirmed.

Dwight, P. J., Lewis .and Haight, JJ., concurred.

Judgment appealed from affirmed.


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    Alice M. Colvin, Respondent, v. Sophia Shaw, Appellant, Impleaded with Others.

      Estoppel — election of remiedy— amended complaint — conclusion of 1cm, not excepted to, reviewed.

    The assignee of a mortgage covering premises, a portion of which is subject to an equitable right in a third party derived from the mortgagee, is no more entitled to assert an estoppel as against such third party who, at the time of .the purchase of the mortgage, was in the actual, open occupation of that portion of the mortgaged premises, than is the mortgagee himself.
    The assertion in a complaint of a claim for an amount in excess of what was actually due to the plaintiff, by reason of the fact that a portion of the claim had been paid by a transfer to the plaintiff • of an equitable interest in certain mortgaged premises, does not necessarily establish an election on her part to relinquish her right in such mortgaged premises, where such plaintiff, in an affidavit accompanying such complaint on an application for an attachment, has set up the fact of her interest in the mortgaged premises as representing to the extent thereof an offset to the amount claimed by her in the complaint.
    An amended complaint becomes, after its service, the only complaint in an action as between the parties, and for its purposes is as effectual as if it had been the original complaint.
    It must be assumed on appeal that leave to amend was properly granted. Although on an appeal it does not appear that any exception was taken to an erroneous conclusion of the court, yet, where exceptions were taken to refusals to find certain other conclusions of law which would have uecided the matter favorably to the appellant, such conclusion of the court is open to consideration.
    Appeal by the defendant, Sophia Shaw, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Orleans on the 9th day of August, 1893, upon the decision of the court, rendered after a trial at the Orleans Special Term, adjudging that the defendant is estopped from asserting her title to certain premises.
    The action was brought against the defendant Shaw and others to foreclose a mortgage made by Miles Broadbent to Jonah D. Decker, of date of August 1,1893, upon certain premises at Holley in Orleans county, to secure the payment of $600.
    The defendant Shaw alleged an equitable title in herself to a portion of the premises arising from a contract with Broadbent to sell and convey such portion to her for a consideration, which she had paid, and pursuant to which she had taken possession, etc.
    The trial court determined that as against the plaintiff she was estopped from asserting title to that portion of the premises.

      John M. Stall, for the appellant.

      I) (miel N\ Salisbury, for the respondent.
   Bradley, J.:

The view of the trial court, as appears by the findings of fact, was that the defendant, Sophia Shaw, had, as against Miles Broadbent, the mortgagor, the equitable title to the west half of the premises described in the mortgage, but that she was estopped from asserting such title against the plaintiff. The facts, as found by the court, were that in the fall of 1880 the defendant Shaw went into the possession of tlie west half of the premises under an agreement with Broadbent of purchase; that she paid him the purchase price in services, board, etc., and has since remained in the open, visible and notorious occupation and possession of the premises ; that in June, 1883, and after his refusal to convey the premises to her, the defendant Shaw commenced an action against Broadbent to recover the sum of $2,085.52, alleged in her complaint to be due to her from him, without deducting the amount claimed by her to have been allowed in payment for land pursuant to the contract of purchase ; that she procured an attachment to be issued against the property upon an affidavit made by one Wilson and another by herself, portions of which are set forth in the findings and which will hereafter be referred to. These affidavits were made and the attachment was issued in July, 1883, and upon the motion of the defendant in that action the attachment was vacated August 1, 1883. On that day the defendant Shaw made another affidavit upon which alike attachment was issued and levied upon the premises mentioned in the mortgage. The defendant in that action appeared therein. The complaint was not served until August 14,1883, and in June, 1884, her motion to amend the complaint so as to express an allowance to the defendant therein by way of credit, $1,200, the amount of the purchase price of the premises as per her contract of purchase, was made and granted.

The complaint was amended accordingly.. The action was after-wards tried and complaint dismissed. In the meantime and in October, 1883, Broadbent had brought an action against Shaw and her surety on the bond given upon the issuing of the first attachment, which was vacated, and she in that action alleged her equitable title and demanded relief founded upon it. The action came to trial in February, 1884, and the plaintiff there recovered judgment for damages arising from the, levy of the attachment. In 1887 the defendant Shaw commenced an action against Broadbent for specific performance of the contract.

The trial resulted in judgment dismissing the complaint, affirmed at General Term and reversed by the Court of Appeals, aild by the judgment of the latter court specific performance of the contract was directed and judgment was perfected accordingly, with costs. (Shaw v. Broadbent, 129 N. Y. 114.)

"We are tlius led to the conclusion that as between the parties to that action the defendant Shaw had the equitable title to the west half of the premises described in .the mortgage. The question remaining is whether such title in her is available against the morh gagee and his assigns ? The mortgagee was an attorney at law and was attorney and counsel for Broadbent in the actions of Shaw against him before mentioned, and in his action against her upon the bond made to obtain the attachment which was vacated, and on the same day it was accomplished and before Shaw could with diligence get another attachment levied upon the property, he took from his client the mortgage in question, and it was afterwards assigned to the plaintiff.

It is said that she was estopped from asserting her title as against Decker, the mortgagee, by reason of the facts stated in the affidavits upon which the first attachment was issued, and. because she by her action had elected to sue for the full amount of her claim, not allowing to Broadbent the portion of it which had been applied as payment for the land. The matters stated in her affidavit to procure the attachment are not such as create any estoppel. She there stated that a cause of action existed in her favor against Broadbent to recover about $1,000 for board Dill and services, and that she was then entitled to recover therefor such sum. She also states that the defendant had been a boarder and occupant of certain premises, in the village of Brockport, in the county of Monroe, and the village of Holley, in the county of Orleans, as such boarder;” and further, that the “ defendant is the owner of certain land premises, in the village of Holley and county of Orleans, or has a large mortgage interest in said property.” He was the owner of the east half of the premises described in the mortgage. It was only in the west half of them that Shaw claimed an interest. The levy of the attachment upon the whole.was the act of the sheriff, and could not be treated as her act, nor could the affidavit of Wilson, made in support of her application for the attachment, be so treated for the pui’pose of creating an estoppel. And Decker, at the time that he took the mortgage, could not have been advised that the action was brought to recover any sum in excess of $1,000, because the complaint was not served until two weeks after that time. Nor could he have learned from the papers, or othérwise than from his client, that the claim made by the complaint embraced that which constituted the consideration for the sale to her of land which she occupied. There was, therefore, nothing in the papers or proceedings on the part of Shaw in her action up to the time when JDecker took the mortgage to enable him to effectually charge that she was estopped from asserting her equitable title to the west half of the premises; nor did the adjudication in the action against her and her surety upon the bond support such charge. (Shaw v. Broadbent, 129 N. Y. 114.)

She was then, and had been for three years, in the actual possession of that portion of the premises. This was notice to the mortgagee of such equitable right, title or interest as she had in the land. (Gouverneur v. Lynch, 2 Paige, 300; Union College v. Wheeler, 61 N. Y. 88.)

The assignee of the mortgage occupies no more fayorable position to assert estoppel than did the mortgagee himself. (Schafer v. Reilly, 50 N. Y. 61.)

It is urged, however, that inasmuch as Shaw brought her action to recover her claim for board and services against Broadbent, she made her election of remedy, and thereafter could not be permitted to assert any claim founded upon the contract with him for the sale and purchase of the land. It is true that when a party has two inconsistent remedies, and he pursues one of them, he will not be permitted to avail himself of the other. (Moller v. Tuska, 87 N. Y. 166; Conrow v. Little, 115 id. 387; Terry v. Munger, 121 id. 161; Crossman v. U. R. Co., 127 id. 34.)

It may be assumed that Broadbent had refused to convey the land to Shaw in performance of the contract, and that in her action thereafter brought she, by her complaint as originally prepared, ■alleged due her from him a greater sum than she was entitled to recover if she allowed to him credit for the $1,200 which was the ■contract price of the purchase, but she, nevertheless, claimed ineffectually, as the result of the action established, that there was ■due her a sum in excess of that consideration. It has been observed that in her affidavit to obtain the first attachment, while she stated nothing about the purchase or its consideration, she there stated as the amount due from Broadbent only about $1,000 over and above counterclaims, discounts or set-offs. In her affidavit made the day of the date of the mortgage to obtain, the second attachment she made the same statement, and, after stating the facts out of which the claim arose, added that he “ turned out and over to her certain real estate situate in Holley, but delivered her no deed therefor as yet, but put her in possession thereof for the purpose of having its value thereof applied upon any general indebtedness which he was owing her, and which value was called $1,200, leaving the balance justly due and owing to her by him, by reason of the matters aforesaid, the aforesaid sum of $1,000, with interest, as above stated, over and above all counterclaims, discounts or set-offs in his favor against her, known to her.” The fact that she alleged in her complaint a claim against Broadbent in excess of that she was entitled to recover, or beyond that which she in her affidavit stated was due her over counterclaims and set-offs, did not necessarily establish the fact that she had elected to relinquish such right as she had under the contract, nor did the omission to mention such contract in the complaint, and expressly therein give credit to the defendant for the amount, necessarily require the conclusion that she had made the election to recover that which constituted the consideration of the sale of the land to her.

And, although she in the complaint alleged due her a sum of upwards of $2,000, the defendant and his attorney in that action were advised by her affidavit in the action long before the complaint was served, that she, in making application for the attachment, stated in effect that she sought to recover about $1,000 ; and, in her affidavit for the second attachment, two weeks before the complaint was served, stated that sum as the balance due her over the amount of such consideration. She stated the same fact in her affidavit upon which the motion to amend the complaint was made. And the complaint, pursuant to the order of the court, was so amended as to expressly exclude the amount of the consideration allowed for the land from that sought to be recovered.

This amended complaint became the only complaint between the parties to the action, and for its purposes, as effectually as if it had been so from the beginning. (Hurd v. Everett, 1 Paige, 124; Seneca Co. Bank v. Garlinghouse, 4 How. Pr. 174; Sands v. Calkins, 30 id. 1; Kanouse v. Martin, 3 Sandf. 594; Penniman v. F. & W. Co., 133 N. Y. 444.)

It must now be assumed that the amendment was properly granted. The question of its propriety was one to be disposed of in that action only.

In view of all these facts, there seems to be no support for the charge of election by the defendant Shaw, of remedy inconsistent with the defense she now seeks to make, founded upon the alleged equitable title to the west half of the mortgaged premises.

The cases to the effect that a person brought into an action as defendant after its commencement is deemed a party only from the time he is made so, and, therefore, any defense existing in his behalf as of that time is available to him, do not have any necessary application to the present case. The question is, what right, as against the defendant Shaw, was acquired by the lien of the mortgage at the time it was taken by the mortgagee. It does not appear that she had then denied to herself the right to assert such claim to the land as she had derived from the parol contract of purchase and its performance, etc., on her part, or that the mortgagee was then permitted to so assume to her prejudice in consequence of any proceeding had or taken by her in the action she had commenced against the mortgagor. And the plaintiff, as assignee of the mortgage, occupies no more favorable position in that respect than the mortgagor then had to defeat the alleged defense of the defendant.

The determination of the trial court was that she is estopped from ■asserting her title to the west half of the mortgaged premises as against the plaintiff. ■

Although there does not appear to have been any exception taken to that conclusion of the court, exceptions were taken to refusals to ■find certain other conclusions of law deciding the matter favorably ■to the defendant; and upon this review such conclusion of the court is open to consideration.

And, in view of the facts, we think the determination that the defendant was so estopped is not supported.

The judgment should, therefore, be reversed, and a new trial granted, costs to abide the final award of costs.

Dwight, P. J., and Haight, J., concurred; Lewis, J., not sitting.

Judgment appealed from reversed and new trial granted, costs to abide the final award of costs-


author: Haight, J.:

text:
    Commercial Bank, Respondent, v. Archey Cameron and Another, Appellants.

      Action on a promissory note discounted by a bank through an agent — the agent’s retention of money does iiot constitute usury:

    Upon the trial of an action brought to recover the amount of a promissory note, it was shown that one of the makers thereof went to one McCartney, and asked him to let him have some money, and McCartney said he would. A promissory note was then drawn for §125, payable to the order of McCartney, and signed by the defendants. 'A check upon the plaintiff, Commercial Bank, was drawn for §125, which was signed by the defendants. The note and check were given to McCartney “to go to the bank and get the money.” McCartney indorsed the note and went to the bank, presented the note to the bank, which discounted it for the full amount thereof for the defendants, and that amount was placed to their credit. McCartney then presented the defendants’ check for §125, and the same was paid to him by the bank. He returned to his office with the §125, and gave the defendants §100, retaining §25.
    The officers of the bank testified that the note was discounted for the defendants in good faith and without knowledge of any arrangement in reference thereto between the defendants and McCartney.

      Held, that there was no usury in the transaction, and a verdict was properly directed for the plaintiff.
    Appeal by the defendants, Archey Cameron and another, from a judgment of the County Court of Monroe county in favor of the plaintiff, entered in the ‘office of the clerk of the county of Monroe on the 26th day of January, 1894, upon the decision of the court affirming the judgment of the Municipal Court of Rochester.

      George M. Williams, for the appellants.

      Horace MoGuire, for the respondent.
   Haight, J.:

This action was brought to recover the amount of two promissory notes executed hy the appellants, payable to the order of S. E. McCartney. The defense was usury. Upon the trial a verdict was directed in favor of the plaintiff. The first note was for $125, payable ten days after date. The transaction in reference to the second note is identical with that of the first, and we shall, therefore, only refer to the testimony in reference to the first.

The defendants are husband and wife. The defendant Archey .Cameron testified that lie went to McCartney’s office and asked Mm to let Mm have some money and lie said be would. This is all of the evidence given in reference to the agreement. All of the other evidence pertains to what was done, and that is to the effect that a promissory note was drawn for $125, payable to the order of McCartney, and was signed by the defendants ; a check upon the plaintiff’s bank was then drawn for $125, which was also signed by the defendants. They were then given “ to McCartney to go to the bank and get the money.” Thereupon McCartney indorsed the note and went to the plaintiff’s bank. He presented the note to the bank and it was discounted for the full amount thereof for the defendants, and that amount placed to their credit. McCartney then presented the defendants’ check for $125, and the same was paid to him by the bank. He then returned to Ms office with the $125, and gave the defendants $100, retaining the other $25.

The officers of the bank testified that the note was discounted for the defendants in good faith and without any knowledge of any arrangement in reference thereto between the defendants and McCartney.

Upon these facts we are of the opinion that the plaintiff was entitled to recover. It will be observed that no money was paid by McCartney to the defendants until after the note was discounted at the bank, and that the note had no inception until such discount. If McCartney had loaned his own money thereon, and had taken twenty-five dollars therefor before presenting the note to the bank for discount, a different question would have been presented, but he does not appear to have loaned his own money.- He indorsed the defendants’ note, took it to the bank, together with their check, procured the note to be discounted for them and drew the money upon their check. We think the transaction constituted him their agent to procure the money upon the note, and that the note remains valid in the hands of the bank.

It is claimed that the court erred in not submitting the question to the jury as to whether McCartney became the holder of the notes before they were discounted by the bank, and our attention is called to the case of Chatham Bank v. Betts (37 N. Y. 356). In that case it was held that the payment of the consideration by the maker of a note for the indorsement of the same and procuring its discount at the bank does not render the note usurious; that the bank which discounts the same in good faith may recover the amount thereof from the maker. But Davies, Ch. J., in delivering the opinion of the court, says: “ The only ground of defense set up was that Potter had discounted the note upon an usurious and corrupt agreement before he transferred it to the bank, and though the testimony failed to establish that, yet there was sufficient in the testimony on the part of the defendant to send the case to the jury. If it had not been discounted by Potter before he transferred it to the bank there was no jiretense of any defense to the note in the hands of the bank. If it had been so discounted by him, then the note was void in the hands of Potter and he could not have transferred a good title to the bank.”

But here, as we' have seen, the facts are different. They appear from the defendants’ own showing. The notes had not been discounted by McCartney before they were taken to the bank. He took them to the bank, together with the defendants’ check, for the purpose of procuring the money thereon. The notes were given to-McCartney by the defendants for that purpose. It is, therefore, apparent that there was no question of fact for the jury.

The judgment appealed from should be affirmed, with costs.

Dwight, P. J., Lewis and Bradley, JJ., concurred.

Judgment of the County Court of Monroe county appealed from affirmed.


text:
    Caroline L. Ely and Another, as Surviving Executors, etc., of Joseph Field, Deceased, Plaintiffs, v. John Fahy, Defendant.

      Written, lease — prior agreement merged therein — when a tenant may make repairs and charge the same to his landlord.

    Where a lease is in -writing- its provisions control the rights of the parties so far as relates to any negotiations had or agreements made before and at the time of its execution pertaining to the subject of the demise, as all such negotiations and agreements are deemed to have been merged in the writing.
    The lessor, without an express agreement to that effect, is not bound to make repairs, nor is he chargeable for those made, but if a landlord has agreed to make repairs and does not, a tenant, on his refusal to do so, can make them and charge the necessary expense to his landlord, or he can leave the premises and recover the damages sustained by him because of such refusal.
    Motion by tlie defendant, John Ealiy, for a new trial on a case containing exceptions, ordered to be heard at the General Term in the first instance, upon the verdict of a jury directed by the court after a trial at the Monroe Circuit.

      IT. F. Remmgton, for the plaintiffs.

      John D. lyrni, for the defendant.
   Bradley, J.:

The purpose of the action was to recover a portion alleged to be unpaid of the installment due April 1, 1893, from the defendant to the plaintiffs upon a lease of store premises in the city of Rochester. The defendant alleged, by way of counterclaim, the payment by him for certain repairs upon the store, pursuant to agreement with the plaintiffs; that the payment so made should be allowed to him and applied upon the rent reserved by the lease. The plaintiffs controvert the charge of liability to him for such payment. The lease is in writing, sealed with the seals of the parties, and bears date November 12, 1889. By it the premises are leased to the defendant for the term of five years from the 1st day of January, 1890, at the annual rent of $12,000 for two years and $13,000 for the remaining three years of the term.

The testimony of the defendant is to the effect that at the time the lease was made it was orally agreed between him and the agent of the plaintiffs that a new front should be put in the store, and that it was for the purpose of paying íhe expense of it that the increase in the rent for’ the last three years of the term was made; that it was afterwards done at an expense of nearly $3,000, which the defendant paid. The lease contained no provision on the subject of repairs, other than “no permanent alterations or changes shall be permitted to the interior of said building without the written consent of the parties of the first part or their agent.” There was no written consent of the lessors or their agent to the repairs in question. The lease being in writing its provisions control the rights of the parties so far as relates to any negotiations had or agreement made before and at the time of its execution pertaining to 'the subject of the demise, as they are deemed to have been merged in the writing. The testimony before mentioned of the defendant ivas, therefore, ineffectual to charge the plaintiffs with liability for such repairs. (Cleves v. Willoughby, 7 Hill, 83; Wilson v. Dean, 74 N. Y. 531.) But there is some evidence on the part of the defendant tending to prove that the plaintiffs’ agent, some time after, consented to the making of the contract to do the work which was afterwards performed, and understood that the contractors were about to proceed in its performance.

Assuming that the evidence of his consenting to and participating in the making of the contract to do the work was such as to permit the inference of liability of the plaintiffs, the question arises whether or not such inference was effectually repelled by what followed. Before proceeding to the further consideration of the facts, it may be stated, as legal propositions, that a lessor, without an express agreement to that effect, is not bound to make repairs, nor is he chargeable for those made. (Witty v. Matthews, 52 N. Y. 512.) But if the landlord has undertaken to make .repairs the tenant, on his refusal to do so, may make them and charge the necessary expense to the landlord, or leave the premises and recover the damages sustained. (Myers v. Burns, 35 N. Y. 269; 33 Barb. 401; Cook v. Soule, 56 N. Y. 420.)

It appears that about the time the work of putting in the front of the store was commenced the plaintiffs’ agent forbid the performance of it, of which the defendant and the contractor were advised, and about the same time, in answer to the defendant’s letter on the subject, one of the plaintiffs wrote him, denying knowledge of any agreement to make the repairs and refusing to consent that they be made.

If there had been any promise or acquiescence on*the part of the plaintiffs by their agent it was executory, and they could not be required to proceed with the work. And it is at least very questionable whether there had been such agreement made by them or in their behalf as would enable the defendant to cause the repairs to be made and charge them with the expense.

It seems that the defendant and his brother were then occupying the store and doing business there in their firm name of J. Fahy & Co. And being so advised of the refusal of the plaintiffs to make the repairs the defendant subscribed the firm name of J. Fahy & Co. to an agreement, in writing, which was delivered to the plaintiffs, expressing an undertaking as follows : “ For and in consideration of one dollar, received by the undersigned of Caroline L. Ely and Almira F. Beers, executors of the estate of the late Joseph Field, deceased, we do hereby agree to indemnify and save harmless the said executors or their successors from the payment of any and all costs, charges and expenses which may be expended or incurred in the making certain changes or alterations now contemplated to be made by us to the front of the ” store building in question. The repairs there referred to are none others than those in controversy. By reference to the letters of the defendant it appears that he was desirous of having the new front put in, and by thi& agreement it is stated that his firm contemplated doing it. That agreement, so executed by the defendant, is not consistent with an existing obligation of the plaintiffs to do it. And for the purpose of the question here it may not be important whether the defendant alone or jointly with his ' partner, as the terms of the instrument import, undertook to indemnify the plaintiffs, because if they should be charged with and he required to pay for the repairs the defendant would be liable upon such undertaking to reimburse them, although he might be so jointly only with his partner.

And the allowances to the defendant or recovery by him of his alleged counterclaim would be productive of circuity of action which the law does not favor, but seeks to prevent. (Carr v. Stephens, 9 Barn. & Cress. 758.)

There would have been a different question if the agreement had been the subject of an action by the plaintiffs. Then the nonjoinder of his partner as a defendant would have been available as a defense. But here the defendant cannot be prejudiced by the application of the principle against circuity of action, because it appears by the agreement of the firm that the repairs were made, not at the expense of the defendant alone, but were made by his firm.

These views lead to the conclusion that the verdict was properly directed for the plaintiffs, and that none of the exceptions at the trial were well taken.

The motion for a new trial should be denied, and judgment ordered for the plaintiffs on the verdict.

Dwight, P. J., Lewis and Haight, JJ., concurred.

Defendant’s motion for a new trial denied, with costs, and judgment ordered for the plaintiffs on the verdict.