source: Caselaw Access Project

author: By the Court. Hoffman, J.

license: Public Domain

text:
    Albert G. Bagley, Plaintiff and Appellant v. Wm. Clarke and Jos. G. Gurney, Defendants and Respondents.
    1. Where, by a sealed contract between two persons, one is to serve the other in a specified business for a term of years, at a fixed sum per annum, and the laborer as part of the arrangement gives a bond with surety to the employer, conditioned for the performance by the laborer of the contract on bis part, and subsequently a verbal contract is made and acted upon between the employer and laborer, by which th„e latter is to receive compensation graduated by the amount of work he may perform, and this is done without the knowledge or consent of the surety, the latter is discharged.
    2. Where, after the contract has been made and the bond executed and delivered, the employer forms a partnership with third persons, and the laborer, by verbal agreement between him and the firm, contracts to serve the firm, and pursuant to such agreement does subsequently serve the firm for nearly two years, upon'a different agreement as to compensation, the sealed contract and bond are thereby abandoned and superseded, and no action will lie thereon for an alleged breach occurring after such a term of service under„tbe new arrangement.
    (Before Hoeeman, Pierrepont and Robertson, J. J.)
    Submitted June 16,
    decided June 30, 1860.
    Appeal by the plaintiff from a judgment against him, and from an order denying a motion made by him for a new trial. The action was commenced Nov. 30, 1848, and tried Jan. 19, 1859, before Mr. Justice Woodruff and. a jury.
    The complaint alleges the making of a written and sealed contract between the plaintiff and the defendant Clarke, dated Dec. 8, 1845, by which the latter agreed to render services for the former, as hereinafter stated, and sets forth a copy of the contract; and also alleges that the defendants, Clarke and Gurney, executed their penal bond to the plaintiff, also dated Dec. 8, 1845, conditioned as hereinafter stated, for the performance by Clarke of his new contract; sets forth a copy of the bond; alleges a breach of its condition, and prays judgment for $1,000.
    By the terms of the contract between Bagley and Clarke, of the date of December 8, 1845, Clarke covenanted to “ become servant unto” and to serve and continue with “ the said Albert G-. Bagley as his covenant servant or journeyman,” for three full years, and to do certain specified things and refrain from doing other specified things, “ in the business of gold pen making;” and Bagley, therein and thereby promised to pay Clarke for such services, “ for the first year of his said service, the sum or salary of $400 ;” and, for the second and third years, the yearly sum or salary of $500.
    The said bond, executed by Clarke and J. G-. Gurney, was conditioned that Clarke should perform the contract on his part, and that if he failed to do so, they would pay $1,000 as stipulated damages. This action is brought on that bond, to recover the $1,000; and the breach alleged is, that, in August, 1848, Clarke, without the consent and against the wishes of the plaintiff, refused to continue longer in his service, and took employment from and worked for the firm of G. and E. M. Smith.
    The answer alleges {inter alia) that, in May, 1856, the contract of December 8, 1845, “ was virtually abandoned and superseded by a new agreement ” between the plaintiff and Clarke, for an indefinite term, whereby Clarke was to serve, and the plaintiff was to allow, in lieu of the stipulated salary, $1.50 per 100 for all gold pens that Clarke should polish. Also, that, in 1846, the plaintiff associated with him Gerrit Smith and Edgar M. Smith, as partners, under the firm name of A. G. Bagley & Co., and, a few days thereafter, changed the compensation of Clarke to $1.25 per 100 pens polished by him for that firm ; and that, from December 1,1846, Clarke was required and directed by the plaintiff to work for that firm at that rate, instead of continuing in the plaintiff’s employment under the contract of December 8, 1845, and that all this was done without the knowledge or consent of Gurney, whereby he was discharged.
    That Clarke, under this direction and requirement of the plaintiff, served the said firm until August 10, 1848, when it was dissolved, by reason of difficulties between Bagley and the said G-. and E. M. Smith. Wherefore, the defendants insisted that neither of them was liable on the said bond.
    When the evidence was closed, the judge said it was proved “ that the original contract was, in fact, rescinded by a new and executed agreement, whereby the defendant was paid by the piece, both by the plaintiff and a new partnership of Smiths, instead of by yearly salary, as provided by the old •agreement,” and instructed the jury to find a verdict for the defendants, which, the’ jury, in pursuance thereof, did, find. The defendant excepted to this instruction.
    It was proved, without any attempt to contradict such testimony, that from December, 1845, to May, 1846, Clarke was paid at the rate of $8 per week. Clarke testified thus :
    “ About May, 1846, he (Bagley) offered to pay me, and I said I would take one dollar and a half for each hundred • pens I polished, and I was afterwards paid at that rate ; I was paid at that rate until December 1, 1846.”
    On the first of December, 1846, Bagley formed a copartnership with G-. and E. M. Smith, which, by its terms, was to continue until the first of January, 1851, but which was, in fact, dissolved on the 10th of August, 1848.
    By the articles of said copartnership, it was provided that Bagley “ should have the direction and control of the manufacturing part of the business of the said concern,” but they contained no provision giving to Bagley the power to employ workmen and fix their compensation, or which declared that the workmen then employed" by him should or might continue to work under their contracts, and that the firm would allow to Bagley the sums for their services which he, by his contracts with them, had agreed to pay.
    The defendant, Clarke, further testified thus :
    “When the partnership with the Smiths was formed, the workmen were called into the office, and Bagley told us that he had formed a partnership with the Smiths, ancj that we were to obey their orders as his own; a few days after this he changed my wages, and I was paid $1.25 for every hundred pens polished; he said that the Smiths were not willing to pay as much as he had been paying me, and offered to pay me, and I said I would take one dollar and twenty-five cents for each hundred pens I should polish ; from that time I worked at that rate till the firm was dissolved ; Bagley, in behalf of himself and partners, came to me and said, the Smiths were not willing to pay so much as he had been doing, for my work, and made an offer to pay me one dollar and twenty-five cents per hundred for all the finished fens turned into the office ; by the first agreement in May, 1846, I was to have $1.50 for one hundred pens, whether finished or not; in this way I would lose my work upon all the pens that were injured in making after passing out of my hands; this was a reduction of about one-third in my compensation; I said I supposed I should have to take it if he would give me no more, and I worked at that rate afterwards; Mr. Wood, the bookkeeper, paid me at this rate after he came.”

      William J. Wood testified thus :
    “ I was employed by A. G-. Bagley & Co., in the early part of the year 1848, and continued with them until the summer; I was not exactly their bookkeeper; I paid the men sometimes ; the firm of G. & E. M. Smith was formed in the month of August, 1848 ; Clarke was paid by the piece for the work, I think, $1.50 by the hundred pens, and not paid by the year, he did for A. G. Bagley & Co.; he was not paid by the year; I paid the men every Saturday night; paid Clarke by the piece; this was done for A. G. Bagley & Co.; the firm of A. G. Bagley & Co. was composed of A. G. Bagley, Edgar M. Smith and Gerrit Smith; I do not know when they commenced business.”

      Clarke, on his cross-examination, was asked this question : Q. How much did the $1.25 per hundred amount to per week, or did you receive, after your compensation had'been changed as you have stated ?
    (Objected to, as the amount of compensation received by the defendant would not alter the fact of the rescission of the contract, and discharge of the surety. Objection sustained by the court; to which ruling the plaintiff's counsel duly excepted.) (Fol. 81.)

      Luther H. Buel, a witness for plaintiff, testified that he worked for A. G. Bagley & Co. at the time of their dissolution; that he had worked for A. G. Bagley since 1845. He was asked : “Did you receive notice from Bagley (after the dissolution of A. G. Bagley & Co.,) to go on and w°orlc under your contract ?” This question was overruled, and the plaintiff excepted to the decision. He further said : “ I do not know that Clarke received notice personally; I worked in a different room from him.”
    Q. Was notice given in your room, that Bagley should expect all the men in that room to go on and work out their contracts ?
    This question was overruled on defendant’s objection, and the plaintiff excepted. (Fol. 101.)
    The defendant moved on a case, containing the evidence and exceptions, for a new trial, and the motion was denied. From the order denying it and from the judgment entered on the verdict, the plaintiff appealed to the general term.
    The appeal was argued February 24, 1860, at a general term, held before Bosworth, Ch. J. and Robertson, J., and they being unable to agree ordered, in May 1860, a re-argument. Bosworth, Ch. J., delivered a written opinion, which after stating the proceedings had and evidence given at the time, substantially as above set forth, concltided as follows, viz.:
    Bosworth, Ch. J. —The mere fact that Clarke was paid at the rate of $8 per week from December, 1845, to May, 1846, I should not regard, as of itself, at all material. It was compensating him at the rate of at least |400 per annum. It could hardly have been contemplated that he should receive no compensation under the contract of December 8, 1845, before a full year’s service had been performed.
    Neither should I regard payment at the rate of 12s. for evqry 100 pens polished, if manifestly done to secure Clarke a higher compensation and with no other intent, as a rescission of the sealed contract. But if done with a view to make a contract for service upon new terms; which, although in certain contingencies it might secure larger pay, might in others entitle him to only a reduced compensation, I should deem it a matter of graver import in its effect úpon the position and rights of the parties. But this is not all that was done. On the first of December, 1846, Bagley formed a partnership with the Messrs. Smith, which, unless sooner dissolved, was to continue until January, 1851.
    So far as the articles of copartnership furnish any evidence of what these partners agreed between themselves, they did not agree that Bagley might furnish and the firm should receive the labor for which Bagley had contracted with his covenant servants, and allow to him therefor the sum he had agreed to pay them.
    The presumption, from the uncontradicted testimony of Clarke, is otherwise. He testifies that “Bagley in behalf of himself and partners, came to me and said, the Smiths were not willing to pay as much as he had been doing for my work, and made an offer to pay me $1.25 per hundred for all the finished pens returned into the office; * * I said
    I supposed I should have to take it if he would give me no more, and I worked at that rate afterwards.” He so worked from the first of December, 1846, until the tenth of August, 1848, when the firm was dissolved by disagreement between its members.
    This evidence standing alone, and there is nothing to contradict it, or impair its force, is satisfactory proof of an agreement between Clarke and Bagley’s firm, by which the former was to work for the firm for the compensation thus agreed upon, and by which the firm agreed to pay him at that rate.
    After that agreement had been acted upon, and payment had been made by the firm, and accepted by Clarke under it, he would be precluded from sueing Bagley upon the contract to recover at the rate of $500 per annum, if the rate of compensation thus fixed should amount to less.'

      So too if there should be default in making payments for services rendered for the firm, and Clarke should sue the firm to recover therefor, they could not set up as a defense that his employer was Bagley alone, and that in such a suit his recovery must be limited to $500 per annum, although he would be entitled to more, if he was to be compensated at $1.25 per hundred, for all the finished pens turned into the office.
    The conclusion, therefore, seems to me unavoidable, upon the uncontradicted testimony, that from the 1st of December, 1846, to the 10th of August, 1848, Clarke was employed by, and worked for, the firm of A. G-. Bagley & Co., under a contract made with that firm, and at a rate of compensation agreed upon between him and that firm.
    As a necessary consequence, the contract of December 1, 1846, was rescinded and abandoned. While working under a different contract, for different persons, and at a different rate of compensation, and a contract too, to which Bagley was a party, he could not, at the same time, be performing the same services for Bagley alone, under the contract of December 8, 1845, and for the compensation therein specified.
    The two things cannot co-exist, and therefore there can be no question that the original contract .was superseded and abandoned.
    The firm might have expected that Clarke would be as faithful to them as he had covenanted to be to Smith. And there is no complaint that he was not, although, except by implication, he did not agree to be.
    Suppose Bagley, on the 1st of January, 1848, had started an independent business on his own account, and by the partnership articles was not precluded from doing so, could he have required Clarke to leave the firm’s employment (where his compensation might have amounted to $600 per annum,) and work for him only, under the original contract for $500 per annum ? I think this will not be pretended. Clarke might say to Bagley: “Tour firm, by special agreement, has employed me for over a year at an agreed rate of compensation, which pays me $600 per annum; when my obligation to work longer under that contract is at an end I am at liberty to go where I please, and accept employment upon such terms as I may see fit to contract.”
    In this view the evidence; offered to show what compensation Clarke realized under the contract to accept $1.25 for every one hundred pens polished, was rightly excluded.
    Up to the time when the firm was dissolved, he was at work for the firm on its employment and responsibility, and on its promise to pay.
    After it was dissolved he could not be compelled, under that contract, (and no other then existed,) to work for any one member, on his individual responsibility. (Hurlbut v. Post, 1 Bosw. 28-41.)
    The evidence offered, in respect to a notice, that Bagley would expect all the men to go on and work out their contracts, made before the firm of A. G. Bagley & Co., was formed, was properly rejected.
    I think there was no error in ordering a verdict in favor of the defendants, and that they should have judgment on the verdict.
    Under the re-argument ordered, the cause was submitted, on printed points, at a general term held June 16, 1860, before Justices Hoffman, Pierrepont and Robertson.

      Waldo Hutchins and John Slosson, for Appellants.
    I. The judge, by ruling that “the original contract was, in fact, rescinded by a new and executed agreement,” drew a conclusion from the evidence which the jury alone could be justified in drawing.
    If there could be no rescission in fact, without the concurrence of the parties, (a proposition self-evident,), all the evidence which bore on the question of the parties’ understanding on the subject, should have gone to the jury.
    The direction of the judge was equivalent to saying that the mere fact of the parties having agreed to vary the compensation was an estoppel upon their ever denying that the contract was rescinded, whatever may have been their intentions in making such change, and however contrary such a conclusion smight be to their real intentions ; in other words, that the existence of the fact of the change operated of itself, as matter of law, to work a rescission.
    This was clearly erroneous.
    II. If this was a rescission or abandonment of the ori-" ginal contract, it was so, and could be so only by the mutual consent of the parties, and that was a question solely for the jury. (2 Pars. Con. 190; Fitt v. Cassanet, 4 Man. & Gran. 898.)
    Neither party, at the time the new arrangement was made, claimed, or even suggested that the original agreement was to be superseded by it, in any of its provisions, except merely as to the amount, of compensation. Nor did they at any subsequent period, during the continuance of the term of service, 'make any such claim.
    This is not the case, in which one party had put it out of his power to perform his part of the agreement—each had it in his power to perform, to the letter, all he had stipulated to do, even after this modification of the agreement, if the other had required it; so that neither had, for any such reason, a right as against the other, to treat it as rescinded. (Dubois v. Del. & Hud. Can. Co., 4 Wend. 289.)
    Neither is it the case of a rescission under a stipulation reserved to the parties in the contract.
    Neither is it the case of two inconsistent agreements, in which, from the fact of inconsistency, a presumption is entertained that the parties intended to rescind.
    The new agreement for compensation is no more inconsistent with the original contract than it would have been if it had been simply an agreement to raise or diminish the yearly salary by the amount of one dollar or one cent.
    All the other provisions remain intact, and the same reason exists for retaining them as before. The work to be performed was the same, and nothing was said or agreed as to any change in the term of service. *
    ■ The necessity of secrecy on the part of Clarke, as to Bagley’s improvements, inventions, or discoveries, still continued, and it is almost absurd to suppose that either party imagined that this important covenant was abrogated by the change of compensation.
    So far from the new agreement being inconsistent, the .original agreement can hardly be said to have been modified.
    i
    The mode, and even the rate of payment, was never literally complied with, according to the orignal contract. That called for a yearly sum or salary of $400 the first year, and $500 for the other two, and yet he was paid from the first, weekly, at the rate of eight dollars a week, which would have been $416 for the first year.
    There is no case in which an executed parol agreement has been held to have abrogated a contract under seal, unless it was an agreement in terms or substance, to rescind, or so inconsistent with the original contract, as that a rescission might be presumed to have been in the contemplation of. the parties.
    Such were the cases of Latimore v. Harsen, 14 J. R. 330, and Dearborn v. Cross, 1 Cowen 48.
    And see these cases commented on in Mien v. Jaquish, 21 Wend. 628.

      a. Clarke did not change masters in working for the new firm. He was not employed by the new firm. He was still under Bagley’s orders, and Bagley’s directions to him to work for his new firm were no more than he had a right to give under his agreement with Clarke.
    ITT. To hold this agreement rescinded, would be to leave Bagley in a worse position than he was in when it was made, for he would have introduced a workman into the secrets of his art, without any guaranty against his disclosing them ;■ and this was considered by both parties as of such vital importance that it was expressly provided for in the original agreement. It is a rule that one party cannot rescind a contract, unless both can be left in the condition in which they were before the rescission. (2 Parson’s Con. 191—2; Hunt v. Silk, 5 East. 449 ; Martin v. McCormick, 4 Sandf. 366.)

      IV. If this was an agreement fully executed, it was so the moment the first one hundred pens were' polished and paid for, since it is not denied that Clarke left Bagley’s service before the three years had expired, and the modifi- ■ cation as to payment was wholly indefinite as to' time.
    The contract could not be abrogated in part. It was abrogated as to time of service, as well as everything else, if abrogated at all. It must have been fully executed at some time, and if time of service was abolished, then it was as fully executed when the first one hundred pens were paid for as at any other time.
    If there was any obligation to remain for three years, then the original contract was never abrogated at all, and the case is one of a mere parol executory agreement, and nothing is better settled than that such an agreement cannot rescind or abrogate a sealed executory contract. A covenant under seal cannot be discharged by a parol agreement before breach. (Suydam v. Jones, 10 Wend. 180 ; Delacroix v. Bulkley, 13 Id. 71; Allen v. Jaquish, 21 Id. 628; Nelson v. Sharp, 4 Hill, 584.)
    Will the court seriously hold that this agreement was fully executed when the first one hundred pens were polished and paid for, and that if Clarke had the next day revealed all the secrets, which he had by covenant bound himself not to do, Bagley would have had no redress ?
    V. The question should never have been taken from the jury.
    The real question was whether Clarke left Bagley’s service with his consent. The case was, in fact, tried principally on this theory, and this was a pure question of fact about which there was conflicting evidence.
    VI. No distinction was made by the judge between the two defendants, on the ground that one was principal and the other surety. Had different rules been applied to each the plaintiff would have the benefit of an exception.
    On this appeal they are both to be considered as standing, by the ruling of the court, on the same ground; and if the surety was not discharged by an actual rescission of the contract, he was discharged by nothing else.
    If, therefore, the judge erred on that question, there must be a new trial as to both.
    VII. The exceptions at fols. 81 and 101 are well taken.
    VIII. There should be a new trial, costs to abide the event.

      William R. Stafford, for Respondents.
    I. The only question at issue was, whether the parties by their acts had not rescinded the contract for service made by the defendant Clarke with the plaintiff. If by operation of law such was the case, or if in the opinion of the court a verdict for the plaintiff would be set aside as contrary to law and evidence, it was clearly the duty of the court to non-suit or direct a verdict for defendants. (Stuart v. Simpson, 1 Wend. 376; Rudd v. Davis, 3 Hill, 287.)
    II. Although there is no precise rule applying to a breach of contract which settles whether it has been abandoned or not, yet if the act of one party be such as necessarily to prevent the other from performing on his part according to the terms of the agreement, the contract will be considered as rescinded. (Dubois v. Del. & Hud. Canal Co., 4 Wend. 285.)
    And if performance of the condition of a bond be prevented by the omission of the obligee, the obligor is discharged. ( Whitney v. Spencer, 4 Cowen, 39.)
    The rule may now be considered well settled, that wherever the contract becomes incapable of being performed substantially as the parties intended, by the voluntary act of one of the parties, the other is not bound to proceed. (Kleine v. Catara, 2 Gallison, C. C. Rep. 61.)
    ITT. The mutual consent of the parties to, and their concurrence in the rescission claimed by defendants, is evidenced by acts as to which there is no dispute.
    The first witness called by the plaintiff, 'William J. Wood, testified, that the defendant Clarke, instead of working for plaintiff, worked for the firm of which plaintiff was a member, and at •piece-work, and was paid, 'not by the year, but at an entirely different rate, and in a different manner, by the firm, and not by plaintiff solely.
    This is substantiated by Clarke, by Gerrit Smith, and by B. P. Gurney, and is nowhexe denied.

    IY. Upon such a state of facts, created by the plaintiff himself, who, by twice altering the terms of compensation, ' and transferring the benefits and control of Clarke’s services to his copartnership, had deprived Clarke of all right of action against him under the agreement, and stripped it of all mutuality, the agreement itself was clearly merged in the parol, and executed subsequent arrangement of the parties. (Dearborn v. Cross, 7 Cowen, 47; Latimore v. Harsen, 14 John. 330; Allen v. Jaquish, 21 Wend. 628; Ballard v. Walker, 3 John. Cs. 60.)
    The agreement, therefore, being rescinded in part, was rescinded in toto. (Raymond v. Bearnard, 12 John. 274.)
    Y. The fact of the agreement being under seal can make no real difference. The new arrangement here was not a mere executory agreement, but was carried into effect and fully acted upon by the parties, and everything was done except the actual destruction of the writing itself. (De Peyster v. Pulver, 3 Barb. 284; Healy v. Utly, 1 Cowen, 345; Barnard v. Darling, 11 Wend. 27; and cases under point IV.)
    All the advantages of this new arrangement were with the plaintiff. By recognizing his alterations as to the compensation, extending his liability so as to embrace his firm, and accépting employment under them, (not as agents of plaintiff, but as principals,) we were deprived of any right of action under this agreement against Bagley, while, at the same time, exposed to actions by all of that firm. The estoppel must be mutual, and as the plaintiff was a party, he is equally bound. (Vide opinion'of Justice Bosworth.)
    The judgment should therefore be affirmed.
   By the Court. Hoffman, J.

—The question as to the surety on the bond, the defendant Gurney is perfectly clear. He covenanted to be responsible for the performance of a contract, which secured to his principal a fixed salary of four hundred dollars for the first three years, and five hundred dollars for the remaining two years, and bound him to serve the plaintiff and no one else. Without the sureties’ knowledge or consent this is changed into a contract, making the rate of compensation depend upon the quantity of work, rendering it wholly indefinite, making the term of service uncertain, and binding the principal to the commands of two other persons in connection with the plaintiff. Upon the settled law of principal and surety, this alteration discharged the latter. (Mc Williams v. Mason, 6 Duer, 276; The Northwestern R. R. Co. v. Whinray, 26 Eng. L. & Eq. 488, and cases cited,) is directly in point. And as to. Clarke, the principal in the bond, the plaintiff changed the agreement in most important particulars. He failed to perform his part of the contract. He gave new employers to the defendant. He varied the terms, and assented to the defendant’s laboring under such' new terms. At one time he relinquished all claim upon Clarke, telling him that he could not go on with the business; his means were locked up; that he could not give him work, and advised him to apply to the Smiths; that he must do the best he could for himself.

To hold this defendant liable for the liquidated damages on a penal bond, under such circumstances, would be unjust and unprecedented. (Parsons on Contracts, 190,191, note R and cases.)

1 The admission of evidence at the trial, which is the subject of some exceptions, was of testimony tending to show acts and declarations proving the fact of rescission or alteration ; not a variation of an existing agreement still executory, by means of parol evidence. None of the exceptions of the plaintiff can be sustained.

Judgment affirmed with costs.


author: Pierrepont, J. Hoffman, J.

text:
    Samuel Frost, Plaintiff and Respondent v. Albert Smith, Defendant and Appellant.
    1. When an appeal is moved in its order on the calendar, the court will presume that the case therein has been settled, unless moved to interfere, on affidavits alleging the contrary.
    2. On appeal from a judgment entered on the report of a referee, the appellant may be heard on exceptions taken to the referee’s conclusions of law upon the facts found, although the printed case does not contain any of the •evidence.
    3. But, in such case, he cannot be heard upon his exceptions ,to the findings of fact. It must be assumed that they are found upon competent and sufficient evidence.
    4. Where a defendant contracts to make, and deliver from time to time, as required, six engines, and he delivers only two, and on request to deliver another refuses, without cause, so to do; the contract may be treated as rescinded, and any moneys advanced to him, over and above the worth or contract price of the two delivered, may be recovered back.
    5. Where in an action to recover such excess and any balance due on general account, the answer admits advances on account, and alleges no defense except that the engines delivered, and other work, &c., performed by defendant, amount to more than all payments and advances made to him; and the judgment for plaintiff is for the actual balance, charging him with all he had received from the defendant, and crediting him with all he had paid, it will not be reversed merely because the referee held that such a refusal as stated in the proposition-(No. 4) was a rescission of not only that contract, but of a subsequent one for the bargain and sale of other two engines, only one of which had been delivered; especially when the case contains no evidence or other matter showing affirmatively that it was error not to credit defendant for the engine not delivered under the last contract.
    (Before Hoffman, Piekkepont and Robektson, J. J.)
    Heard June 14,
    decided June 30, 1860.
    Appeal by the defendant, from a judgment entered on the report of George W. Stevens, Esq., as referee. This action was commenced the latter part of January, 1859. The printed case contains the. summons, complaint, reply, order of reference, the referee’s report of his findings of fact and conclusions of law, (dated December 24, 1859,) the defendant’s exceptions, the judgment entered on the report, and the notice of appeal. It does not contain any evidence given on the trial.

      The complaint alleges that, at divers times, between 9th September, 1856, and 5th December, 1851, Benjamin Frazee, having certain dealings and an account with defendant, paid on said account, and lent and advanced to defendant,various notes and sums of money, and the defendant made and delivered to said Frazee various machines, and other articles, some of which were defective; and that there was a balance due to said Frazee, of $2,240.41, besides interest. That this claim was assigned to plaintiff.
    The answer denies most of these allegations, and alleges that the defendant made, sold and delivered to Frazee, various articles of machinery, and other articles, and paid large sums of money to and for Frazee, amounting altogether to the sum of $5,614.01; and that the various notes and sums of money mentioned in the complaint, were paid on account of this—and claims a balance due to defendant of $1,285.19, besides interest.
    The referee finds, as facts:
    1. That a contract was made between Frazee and defendant, on 2d September, 1856, by which defendant was to make for Frazee six small steam engines, at $212.50 each, and that Frazee was to pay the cost of making the patterns.
    2. That defendant made the patterns, which were worth
    $122.88.
    3. That defendant made and delivered the said engines.
    4. That defendant sold and delivered to Frazee fixtures for the engines, to the value of $210.
    5. That, in January, 1851, a further contract was made between defendant and Frazee, for six other engines, to be delivered to Frazee from time to time, as he should require the same, at $225 each; that Frazee should pay defendant for altering the patterns for the said engines.
    6. That defendant altered the patterns, and that the alteration'was worth $16.25.
    1. That defendant made, constructed and delivered two of the said engines to Frazee.
    8. That, in January, 1851, defendant bargained and sold to Frazee two other engines, at $400 each, and on 5th March, 1857, delivered one of them to Frazee.
    9. That, on 5th March, 1857, defendant sold and delivered to Frazee fixtures for said engine, of the value of $58.33.
    10. That, between 2d day of September, 1856, and March, 1857, defendant performed work for Frazee, to the value of $172.30.
    ■ 11. That one of the first six engines was defective, and the difference in value between it and a sound one was $162.50.
    12. That, between 2d September, 1856, and 11th March, 1857, Frazee paid defendant $1,987.
    13. That Frazee delivered to defendant one promissory note, November 18, 1856, for $550; one January 17, 1857, for $471.45 ; one April 1, 1857, for $550, and one May 7, 1857, for $400—which notes were paid by Frazee.
    14. That, on 29th June, 1857, defendant delivered his note to Frazee for $550, to take up Frazee’s note of April 1, 1857. That defendant paid this note.
    15. That, on 11th March, 1857, Frazee delivered to defendant a draft of one Doolittle, for $846.60, to sell; that same was sold for Frazee for $778.84, and defendant paid to Frazee $450, and retained the balance, $328.84.
    16. That, in January or February, 1858, Frazee demanded of defendant one of the engines mentioned in 5th finding of fact, and defendant refused to deliver the same.
    17. That, on 16th May, 1857, Frazee delivered to defendant a note for $381.24; which note was not paid by Frazee, and that the consideration therefor failed.
    18; That, on December 18, 1858, Frazee assigned his claim to plaintiff.
    And the referee finds, as matter of law:
    1. That the refusal of defendant to deliver to Frazee the engine demanded in January or February, 1858, operated as a rescission of the contract to deliver the residue of' the engines mentioned in the fifth finding of fact, and of the second of the engines mentioned in the eighth finding of fact; and, thereupon, Frazee became entitled to recover all sums paid and advanced by him, over and above the cost and value of the engines, &c., furnished by the defendant; and that there was due to Frazee, over and above all the work, machinery and materials delivered by defendant, $1,185.03.
    2. That plaintiff, as assignee of Frazee, is entitled to judgment for $1,185.03 and interest from February 25, 1855, $152.92—making in all, $1,331.95.
    The defendant excepted to the findings of facts and conclusions of law separately, and appealed from the judgment entered on the referee’s report.

      R. Andrews, for Appellant.
    I. This action was an action for money and notes lent and advanced, and plaintiff could recover therein for no other cause of action.
    II. The judgment is a judgment for a breach of certain contracts to deliver certain engines, and which contracts are not set up or alluded to in the pleadings, nor is any • breach of such contracts set up or claimed.
    III. The demand mentioned in the sixteenth finding of fact, was a demand of b.ut one engine of the lot stated in the fifth finding, and a refusal to deliver that one was not • a refusal to deliver all the lot, or a breach of the contract to' deliver the engines.
    IY. The demand and refusal to deliver one of the engines mentioned in the fifth finding, was not a demand or refusal to deliver the engines mentioned in the eighth finding.
    Y. The contract mentioned in the eighth finding was a separate and distinct contract from the contract mentioned in the fifth finding; and, to maintain an action for the breach of that contract, there must have been a demand of the engines there contracted for, and a failure to deliver.
    YI. The demand made for one engine of the lot of six, mentioned in the fifth finding, did not operate as a rescission of the contract to deliver the residue of the engines mentioned in that finding. It was, at most, a breach' of the contract to deliver that one engine-, and that alone. At all events, it could not operate as a rescission of the contract to deliver the engines mentioned in the eighth finding, and was no breach of that contract.
    VII. The referee finds the balance due to Erazee to be $1,185.03, and erroneously finds that plaintiff, as his assignee, is entitled to recover $1,185.03 and interest. The. judgment is erroneous, and should be set aside.

      W. R. Stafford, for Respondent.
   Pierrepont, J.

—It must be assumed that the facts are found in accordance with the evidence. The conclusions of law are supported by authority so far as relates to the facts stated in the fifth finding. (Raymond v. Reamard, 12 J. R. 274.)

As the suit was to recover the moneys which the plaintiff had paid and advanced to the defendant at his request, and as he, the defendant, was credited with all to which he had any title, the judgment must be affirmed, with costs.

Hoffman, J.

—It is insisted on behalf of the respondent (the plaintiff,) that we cannot hear this appeal at all; that the record does not entitle the appellant to review even the conclusions of law of the referee. The case having been referred to a referee to hear and decide all the issues, he made his decision, on which judgment was entered, in favor of the plaintiff. We have before us a record entitled, case on appeal, containing the pleadings, order of reference, the referee’s finding of facts and conclusions of law, exceptions of the defendant comprising objections to both, the judgment and notice of appeal. It is insisted that the appellant cannot question any conclusion of law, because there is no case containing all the evidence before us, and no evidence of its having been settled.

We are entitled to presume that it was settled.

I have always understood that a case or bill of exceptions, as it may be termed, with the findings of fact, judgment, and exceptions to the conclusion of law, brings the case for review as to the latter, properly before the general term. The exceptions as to matters of fact are discarded, as the court has no evidence to judge of them. All exceptions to rulings, during the progress of the trial and before decision, are also excluded. There is, nakedly, a statement of facts like a special verdict, with a conclusion of law upon such facts, and the exceptions to this, the appeal brings up for review.

I do not understand any of the cases cited as settling a different rule; (Johnson v. Whitlock, 3 Kernan, 344; Smith v. Grant, 15 N. Y. Rep. 590; Connolly v. Connolly, 16 Howard Pr. Rep. 224; Magie v. Baker, 4 Kernan, 435;) and the last amendment of the Code appears expressly to recognize such a course. “ When a case on appeal shall have been heard and decided at the general term, upon the report of a referee and exceptions, without a case containing the evidence, the decision may be reviewed in like manner on appeal to the Court of Appeals.” This is the amendment to section 272, and is made applicable to appeals then pending. (§ 268.)

The question, therefore, and the only question before us is : has the referee drawn a correct conclusion from established and incontestable facts? That the appellant has included exceptions as to matters of fact, cannot prejudice his right to raise this question of law.

There can be no question that the demand of one of the engines provided to be made and delivered by the contract of January, 1857, stated in the fifth clause of the finding, entitles the plaintiff to treat the contract as broken for the four engines not delivered. The engagement was, to deliver them to Frazee, from time to time, as he should require the same. He demanded one, in January or February, 1858, and the delivery was refused. The case of Weston v. Barker, (12 John. Rep. 276,) is a sufficient authority to hold this contract broken, in toto; and that the defendant is not entitled to retain, from the moneys advanced to him by Erazee, the cost price of the four engines not delivered..

But I have had a difficulty in relation to the deduction of $400, which he also has made on account of one engine not delivered under the eighth finding. This states a sale of two engines, at the price of $400 each, in January, 185*7, and a delivery of one on the 5th of March, 185*7. There is no statement of the terms' of this sale, the time of delivery, nor of any demand of the other. The referee considers that the violation of the contract in the 5th clause set forth, amounted in effect to a violation of this independent sale in the eighth clause. I do not see any connection between these contracts, and, beyond a doubt, the finding would be wholly insufficient by itself; and if that was the only contract, to put the defendant into default, (Weaver v. Sessions, 6 Taunton, 154,) at least a proffer of the price and demand should appear. (Dunham, v. Mann, 1 Selden Rep. 508.)

But I think there is a view of the case which meets the difficulty. The complaint sets forth various advances for the defendant in cash, notes, &c.; a defect in two engines delivered, and a demand resulting from the whole of such advances and claim, to the amount of $5,446.29; credit for engines, &c., delivered, work performed &c., to $3,205.82, and judgment demanded for the balance. The answer states the manufacture, sale t and delivery of engines, fixtures, &c., work done, money expended, &c., for Erazee, amounting to $5,614.0*7, and proceeds to say that the moneys and notes set forth in the complaint were paid and delivered to the defendant as part payment and security for such sum, except the Doolittle draft.

With this admission of the sums received from Erazee, the defendant is bound to make good his averment of the liquidation and payment of that amount, by means of advances or work done, or something delivered by him to Erazee, or for his use. He had been paid for the two engines. He should have proved that the other was delivered, or showed something to excuse its delivery, and show why performance was not completed.

Judgment affirmed, with costs.


author: By the Court. Bosworth, Ch. J.

text:
    James B. Dayton, Receiver, &c., of the American Exchange Bank, Plaintiff and Respondent v. John B. Borst, Defendant and Appellant.
    1. Where the Court of Chancery, of New Jersey, in proceedings against a' bank, created under the hanking laws of that State, to appoint a receiver of its property and effects, on the ground of its insolvency, adjudges it to be insolvent and appoints a receiver, the validity of the appointment cannot be questioned collaterally, provided enough 'was alleged and done on initiating the proceeding to give that court jurisdiction of the matter.
    2. The order is not void, merely because no officer of the hank had notice of " the application, it having been proved to the satisfaction of the court, before making it, that no such officer could be found within that State.
    3. The provision of the statute requiring a receiver to take a prescribed oath and file it, is directory, and the omission to take and file it, until after the receiver, as such, has brought a suit, is not sufficient cause for dismissing the suit.

      4. A subscriber to the certificate, filed to organize a hank, is liable to pay for the number of shares therein stated to have been subscribed by him, and payment can be enforced at the suit of a receiver, appointed on its becoming insolvent, to satisfy the just demands of creditors of the bank.
    5. In a suit by such receiver, against an original subscriber, a judgment in favor of a third person against the bank, in a court of record, in an action in which the hank appeared and defended, is prima facie evidence that the bank owes the sum recovered.
    6. The fact that a subscriber assigns all his interest in the bank does not discharge his liability upon his subscription, and it can he enforced for the benefit of one who subsequently becomes a creditor of the hank.
    (Before Boswortk, Ch. J., and Monoriee and Pierreeost, J. J.)
    Heard March 8,
    decided June 30, 1860.
    Appeal, by the defendant, from a judgment against him, rendered April 20, 1859, on a trial had at special term, before Mr. Justice Slosson, without a jury.
    The action is brought by James B. Dayton, as receiver of the property and effects of the American "Exchange Bank, at Cape May court house, in the county of Cape May, State of New Jersey, a bank organized under the laws of that State, ag'ainst the defendant Borst, as a subscriber to the stock of the bank, to enforce payment of his subscription, or of sufficient thereof to pay the debts of the bank.
    The certificate of the organization of the bank is signed by the defendant and six others; states the capital to be $50,000, and the number of shares 2,000; Borst to be a subscriber for 1,990 shares, Tappen Townsend for five, and F. Brant, F. F. Cary, E. Cooke, J. 0. Morgan and J. Hand for one share each. It was duly acknowledged and filed of record December 5, 1851. On the 1st of November, 1853, Edward J. Tinkham, in the Supreme Court of the State of New Jersey, recovered a judgment against said bank for $5,641.94, on a draft dated September 14, 1852, drawn by R. Eaton for $5,243.55 on said bank, and payable to said Eaton’s order and by him endorsed, and accepted by Edward Cook, the president of the hank, and as such president. The bank appeared in that action.
    This judgment is wholly unpaid, and the record of it was read in evidence, and the draft on which it was recovered was produced on the trial of this action.
    The plaintiff was appointed receiver by the Court of Chancery of New Jersey, by order dated July 6, 1854, with power to sue for, collect, &c., all the goo.ds, rights and credits of that bank.
    The eighth section of the act of April 15, 1846, part of the banking laws of New Jersey, declares that “before any receiver shall be capable of acting,” he shall comply with the terms of the order appointing him, and he shall take an oath or affirmation (the form of which is prescribed,) which shall be filed in the office of the clerk in chancery within ten days after the taking thereof. The order of July 6, 1854, did not require such oath to be taken, and it was not taken until after this suit was commenced.
    The plaintiff was appointed receiver in a suit commenced by bill in said Court of Chancery, June 2, 1854, by said Tinkham against said bank, to obtain payment of said judgment, enjoin it from disposing of its assets, and to obtain the appointment of a receiver to receive and convert its assets and apply them to pay its debts. It was insolvent and had no assets. The record of that suit and of the proceedings therein, was read in evidence.
    In the month of September, 1852, defendant transferred all his interest in the bank to Patmore 4r Jones, who assumed the entire charge and control of the bank, and verbally,
    ■ but not otherwise, assumed all the stock subscriptions. After that the defendant had no connection with the bank, and did not interfere with its management. .
    The banking laws of New Jersey, the proceedings against said bank in the State of New Jersey, resulting in the . plaintiffs appointment as receiver,, and the evidence given on the trial of this action, essential to an understanding of the points decided, aré sufficiently stated in the opinion of the court.
    The defendant insisted that the plaintiffs appointment was void, for grounds stated in the following opinion: That the acceptance in question did not bind the bank; that the defendant was not liable to pay the sum named in his subscription ; and that as he ceased .to have any connection with the bank, before the draft in question was issued or accepted, he was not liable for its payment.
    The judge found in favor of the plaintiff, and held as conclusions of law: 1st. The validity of the receiver’s appointment; 2d. That such appointment was prima facie evidence of the insolvency of the Bank; 3d. That the judgment in favor of Tinkham was presumptive evidence of the existence of the debt, and that it was unpaid; 4th. And was conclusive evidence, until impeached, of the bank’s indebtedness to him; 5th. That the defendant was precluded from impeaching the consideration of the bill, or Cooke’s power to accept; 6th. That Borst’s subscription imposed a legal obligation to pay the sum subscribed; 7th. That the plaintiff was entitled to enforce such obligation; 8th. That defendant’s disconnection from the bank did not impair that obligation; and 9th. That plaintiff recover the amount of Tinkham’s said judgment, with interest and costs.
    Exceptions were duly taken to each of the conclusions of law, and from the judgment entered the defendant appealed to the general term.

      J. E. Burrill, Jr., for Appellant.

      J. L. Jernegan, for Respondent.
   By the Court. Bosworth, Ch. J.

—The plaintiff was appointed receiver in a suit commenced in the Court of Chancery of the State of New Jersey, by the filing of a bill by Edward J. Tinkham, as complainant, against the American Exchange Bank, as defendant. The bill was filed on the 2d of June, 1854. A subpoena ad respondendum was issued, returnable on the 20th of that month, and the sheriff of Cape May, the county in which said bank was located, made affidavit that he had diligently inquired for said bank and the officers thereof, and had been credibly informed, and believed, that there was no such bank or office, or officer thereof, in that county, whereon to serve»' said writ. He also formally returned the said writ, not served, and that said bank, or any officer thereof, could not be found. The Court of Chancery, on the 6th of July, 1854, made an order appointing the plaintiff receiver of said bank.

The order is not void. The fact that no officer of the bank could be fourfd, on whom service of notice of a motion for the appointment of a receiver could be served, left the Court of Chancery at liberty, in its discretion, to appoint a receiver, without notice to the bank. (The People v. Norton, et al., 1 Paige, 17.)

There was sufficient proof before the court, of the bank’s insolvency, to authorize it to act; and, the order made, declares that the court was satisfied, by the evidence produced, of the fact of actual insolvency.

An injunction had been previously granted against the bank, upon service on the bank of the papers on which it was granted; and that injunction was continuing when the order appointing a receiver was made.

These facts are all" that need exist, to make it competent for that court to appoint a receiver. (§-l of act of April 15, 1846.) By § 5 of that act, the application may be by bill of complaint, and the Chancellor, in his discretion, is at liberty to entertain the motion, though no notice of it had been given to the bank.

It was no part of the terms of the order, that the receiver should take the oath of office, in order to perfect his appointment. The statute requiring such oath to be taken and filed, is directory; and the omission to take it before this suit was commenced, does not so incapacitate him to sue, that the complaint should, for that cause, be dismissed. (2 Barb. 320.)

I think it quite clear that the complaint should not have been dismissed upon any grounds affecting the validity of the receiver’s appointment, or his competency, as such, to bring this suit.

The judgment in the suit of Tinkham v. The American Exchange Bank, is conclusive of the liability of the bank, as between it and the receiver. It establishes the liability of the bank as a debtor of Tinkham, and the receiver’s right to maintain a suit against any one liable upon any contract made by himself, so far as that right depends upon the mere fact that there are creditors of the bank whose ' claims are unsatisfied.

The question, whether the bank was indebted to Tinkham, having been litigated in a suit between them, and decided against the bank, the record of that recovery was at least prima facie evidence of that fact in the present suit,' in which the defendant is to be charged, if at all, on the ground that he is the debtor of the bank, and not on the ground that he is a statutory guarantor of the payment of any debt which the bank may owe.

The decision upon admitting that record was, merely, that it was prima facie evidence of the indebtedness of the bank to Tinkham, on the cause of action therein set forth. During the trial, the acceptance of the bill on which that judgment was recovered, was produced, and it was proved that Cook, the president of the bank, accepted it.

Whether the judge was right or wrong in his fourth and fifth conclusions of law, I regard as quite immaterial. No evidence offered to impeach the validity of the acceptance was excluded; and none was given which tended to establish its invalidity, as against these plaintiffs.

The acceptance was purchased in good faith, without knowlege of any fact amounting to notice that it was not accepted for value, and upon full authority to the officer accepting, to accept as such officer. (The Bridgeport City Bank v. The Empire Stone Dressing Co., 19 How. Pr. R. 51; Goodman v. Simonds, 20 How. U. S. R. 343.)

The fifth finding of fact, viz : that there is due from the bank to Tinkham $5,64'7.94 and’ interest from November 1, 1853, which is whólly unpaid—is, therefore, fully sustained by the evidence.

The only question of practical importance is this: Is the defendant, as a signer of the certificate of association, liable as a subscriber for the stock of the bank, so 'that the receiver may coerce him to pay such part thereof as the bank justly owes to persons who have dealt with it as a bank?

The statute of New Jersey declares, “ that the persons so associating shall, under their hands and seals, make a certificate, by the terms of which such association shall be bound, which shall specify, * * * the names and residences of the shareholders, and the number of shares held by each of them respectively,” &c.

The certificate of association filed (and which was signed by the defendant), specifies that' he held 1,990 shares of the capital stock of said bank, amounting to $49,l750.

It is found as a fact that he never paid any part of said stock subscription. The evidence shows that he was the bank, and that its officers were his employees and acted according to his wishes, until he disposed of-his interest to others, upon an expectation or promise that his vendees would protect him against liabilities.

The certificate of association, and the statute under which it was filed, estop the defendant from denying that he was a subscriber for 1,990 shares of the capital stock of this bank; and he is liable, equally as he would be, if an actual subscriber in form for a like number of shares, to. a subscription paper, containing an express promise to pay the amount so subscribed. (Sagory v. Dubois, 3 Sand. Ch. R. 466 and 492, 493; Buffalo and N. Y. City R. R. v. Dudley, 14 N. Y. R. 336.)

The certificate of association must be read in connection with the statute under which it is made. The two, read together, declare that “ the amount of capital stock of such association ” is to be $50,000; that it is “ divided ” into 2,000 shares; that the defendant is a “ shareholder,” and, as such, holds 1,990 of said shares.

These facts he is not at liberty to deny, and having taken this number of shares, he must pay for them to the plaintiff, as the representative of creditors of the association, until their just claims are satisfied. (16 N. Y. R. 451.)

The defendant cannot claim exemption from liability as a shareholder, merely because the associates never chose a board of directors, nor succeeded in obtaining deposits, nor did other business than issue circulating notes and accept bills of exchange. On filing the certificate of association, the associates became a corporation (§§ 16 and 1Y of the N. J. banking act), and could issue circulating notes, (§§ 3 and 4, Id.) The statute contemplates that such an association might become liable as surety. 30, sub. Y.)

Although the association never attempted to carry on “ the business of banking,” as described and provided for by the eighteenth section of the statute, yet, from the moment of its incorporation, it could create valid obligations, when acting in a mode not prohibited by the statute.

As between the bank and Tinkham, the evidence is con-elusive that the bank became his debtor. Tinkham has a right to the intervention of the receiver to collect from those indebted to the' association, the means to pay the amount due to him.

The defendant stands in the position of a debtor for its capital stock, which he received, and for which he has not paid, and the judgment appealed from should be affirmed.

Judgment affirmed.


author: Pierrepont, J Bosworth, Ch. J.

text:
    Hewlett Sanford, Administrator, &c., of Gilbert Sanford, deceased, Plaintiff and Respondent v. The Eighth Avenue Railroad Company, Defendants and Appellants.
    1. In an action by an administrator, &c., of a person killed by being ejected from the cars of a railroad company, to recover damages for the wrong, the administrator is a competent witness in his own behalf.
    2. In such action, the facts that the intestate entered the car intending not to pay fare, and that he refused to pay fare or leave, and resisted the efforts made to put him off the car, do not of themselves necessarily constitute that concurring negligence or fault which defeats a recovery.
    3. If there is no actual negligence of the decedent, at the time of his being put off, to which his injury and death may in fact be imputed, the company is liable.
    (Before Bosworth, Oh. J., and Pierbepont and Moncrief, J. J.)
    Heard May 17,
    decided June 30, 1860.
    Appeal by the defendants from a jiidgment against them, and from an order denying a motion made by them for a new trial.
    The action was tried before Bosworth, Gh. J., and a jury, on the 16th of November, 1858.
    This action is based on the allegation that the death of Gilbert Sanford was caused by the wrongful act and negligence of the defendants, and it is brought by H. Sanford, his administrator, to recover damages therefor.
    There was evidence to the effect, that on the 30th of December, 1855, the decedent, at the corner of Church and Chamber streets, got on one of the cars of the defendants; that he wanted to take the reins and drive, but this not being acceded to by the driver, he said to the driver, “1 won’t pay any fare; I came up last night and was not carried through;” he then went inside.
    Soon after this the conductor proceeded through the cars to collect the fare. He came to the decedent and asked him for his fare; he refused to pay, saying he had paid his fare the night before, but had not been carried through because of the snow. The conductor said he must pay or leave the car. The conductor passed on collecting fares, and then came back to decedent and told him that he was accountable to the company for the fare of every person that rode in the car; that he must have the fare or eject him.

    The decedent refused to pay his fare or to leave the car.
    The conductor rung the bell, and the speed of the car, as some witnesses testified, was immediately “reduced” or “ checked.”
    Decedent rose at the conductor, and the two clenched and went toward the forepart of the car, both clenched.
    The conductor went out of the door of the car first, and backwards; the car was well filled, and it was with considerable difficulty that a passenger worked his way in from the rear platform.
    Decedent was a taller and stouter man than the conductor.
    There is a conflict of evidence, as to whether “ the conductor pushed Sanford off” or whether the conductor went off first, or as to whether one or three persons went off the platform.
    There had been a heavy fall of snow the day previous; it had been scraped off the track by a snow-plow, and was piled up each side of the track, perhaps two feet high. There was a space between the projection of the car and the bank of snow; and it is alleged that decedent fell and rolled down between the car and snow, and was crushed. When found, he lay with his head up the street, (the direction in which the car was moving,) and his legs on the track. Decedent died on the fourteenth day after the occurrence. The' evidence itself is here omitted, a statement of it not being material to an understanding of the charge. The view of its effect, taken by the court at general term, appears in the following opinions. A motion was made for a non-suit when the plaintiff rested, and also when the testimony was closed, which was denied, and defendants excepted. The defendants requested the court to charge eight several propositions, five of which are repeated in the charge, and the other three are as follows, viz :
    “ VI. That, after the deceased refused to pay his fare, the conductor might then employ so much force.as might be necessary to effect the removal of the deceased, at the same time doing no unnecessary injury.
    “VII. If the deceased refused to pay his fare, and resisted, and injury happened in consequence of resistance, it was an injury for which the company is not responsible, for it was a result attributable to his own wrongful conduct.
    “VIII. If the deceased was injured by the use of unnecessary force, used to effect what the company had a right to do, then the conductor, and not the company, is liable.” The charge was as follows, viz.:
    “ This action is brought to recover damages, on the allegation that the death of Gilbert Sanford was caused by the wrongful act,' neglect, or default of the defendants. Prior to the 13th of December, 1847, no action of this kind could be maintained. If a person, injured by the wrongful act, neglect or default of another, died from such injury, all liability of the party doing the wrong died with the person who was the subject of the wrong. In other words, the cause of action was personal to the injured party. No one except him could bring it. When he died, the cause of action was at an end. An act was passed on the 13th of December, 1847, which provides in substance, that when one person is injured by the wrongful act, neglect or default of another, under such circumstances, that the person so injured could maintain an action1 and recover damages therefor, if living, then the person who would have been liable, if death had not ensued, shall be liable, even if death ensues, in an action to be brought by and in the names of the representatives of such deceased person. In every such action the jury may give such damages as they shall deem a fair and just compensation, not exceeding §5,000, with reference to the pecuniary injury resulting from such death to the wife and next of kin of such deceased person.
    “The rule, therefore, in respect to the question whether the defendant is liable, is precisely the same it would be if Gilbert Sanford were living and was prosecuting - this action to recover damages for a mere injury to himself. If he could not, on the facts proved, maintain an action if he had been hurt but not killed, this plaintiff cannot.
    “ The general rule is clear and well settled, that when a person is injured he cannot recover, although the person who injured him was negligent, if his own negligence contributed to his being injured. The question is not, which of the two is most to blame when both are in fault, but the question is, ‘Did the negligence of the person injured concur in causing or producing the injury?’ If it did, the other party is not liable. In such a case the law will not make one of the two persons in fault pay to the person injured, damages caused as well by his own fault as that of the other, nor attempt to speculate as to the degree that each was in fault and make each bear thé loss in the proportion in which he was guilty of the wrong that produced it. A person injured, in order to recover, must not, by his own negligence or default, have contributed to his own injury. If he did, he cannot recover.
    “ The deceased was ejected from the defendants’ car because he refused to pay his fare; he refused to pay it on the ground that on the previous day he paid the regular fare and was not carried to the place at which he wished to leave, on account of the track having been rendered impassable by a heavy snow. The conductor told him that with the occurrence of the previous day he had nothing to do, and if he would not pay his fare he must leave the car. On being applied to a second time, the deceased refused to pay his fare, and, as I understand the evidence, insisted on his right and purpose to ride in the car without paying his fare. The conductor had a right, under • such circumstances, to eject him from the car. I am asked to charge the following propositions :
    “I. If the deceased entered the car with the preconceived intention of not paying his fare, he,was an intruder, and a wrongdoer from the outset, and the relation of passenger and carrier was never established.
    “*II. If the relation of passenger and carrier never became established between deceased and defendants, then the company are not liable.
    “III. That if the deceased entered the car with the intention of compelling the defendants to carry him without any charge, this was an act of negligence on his part, primarily contributing to the accident.
    “IV. That conceding the deceased acquired the right of a passenger, that was forfeited when he refused to pay his fare.
    “ I decline to charge you in the terms of these requests, or otherwise, in relation to the matters embraced in them, than I shall now proceed to state, and in relation to these matters I charge you as follows :
    “ From the moment the deceased refused to pay his fare, or to leave, he was in fault. Had he d,one his duty, there would have been no occasion to complain that he was injured by being ejected from the car. Notwithstanding this, it was the duty of the conductor to use no more force or violence than was necessary to eject him. He was authorized to use force enough to put the passenger out, and to overcome all the resistance he made, if any, to the efforts employed to remove him.
    “ It is proper to say, and a jury should bear in mind, that when a person enters a car and refuses to payhis fare, or to leave the car, and it becomes necessary to eject him because he will not go out unless put out, the conduct of the conductor, who removes him, as he is acting in the line of his duty, should not be scanned over nicely, and' his "principal should not be held liable, unless the jury is clearly satisfied that there was a want of prudence and care on the part of the conductor, to which the injury that followed may be attributed.
    “If when the conductor told the passenger in this case, that he must put him out, or should- put him out, the passenger rose and put himself in a posture which justified an apprehension that he intended to strike the conductor if he attempted to eject him, the conductor was justified in hurrying the passenger out as rapidly as could be done, without endangering in any way the safety of the passenger.
    “There is testimony which tends to show that the conductor, in the scuffle, went off the car into the snow as well as the deceased. The testimony of Mr. Dunning, on the other hand, is to the effect that the conductor, while holding to the dashboard with one hand, pushed the deceased off with the other. The driver says that a third person standing on the front platform, was pushed off first by the conductor coming against him; that the conductor went off next, drawing Sanford off with him.
    “The point which I deem quite material, involves the question at what rate of speed was the car going when Mr. Sanford was put off? If a conductor attempts to eject a passenger because he will not pay his fare, he has no right to thrust him off when the car is going at a rate of speed which of itself would make such an act dangerous to life or limb, or the bodily health. To persist in an- attempt to put him off when the act of stepping off would be dangerous, merely on account of the rate of speed at which the car was moving, would be an act of negligence, for the consequences of which the defendants would be liable.
    “ There is evidence' that tends to show that before attempting to put Mr. Sanford out, the conductor rung the bell and the speed of the car was slackened; at what precise rate of speed the car was moving at the time Mr. Sanford was put off, is not very clear. The evidence shows that the snow was heaped up on each side of the track, and the effect which this fact may justly have upon the question, whether the conductor ejected Mr. Sanford in a careless and imprudent manner, which caused the injury, should be considered. I am also asked to charge the following proposition:
    “V. That if the conductor, in the execution of the company’s directions to remove any one from the cars who declined to pay fare, used unnecessary force, and wantonly injured the deceased, the defendants are not liable for such malicious excess.
    “ I decline to charge you as to this proposition or otherwise in relation to the matters embraced in the same than I have already charged, further than to say that I do not think the evidence justifies the conclusion that anything which the conductor did was done maliciously or with a design to injure Gilbert Sanford, or supposing that he would be injured by being ejected as he was ejected.
    “ The court further charged; the question of fact to which the case is reduced is this : Bid the conductor, Mr. Sanford being in the wrong by refusing to pay his fare or to leave the car, put him out of the car in a negligent and imprudent manner, so that by the negligent and imprudent manner in which Mr. Sanford was ejected he received the injuries of which he died, without himself being guilty of negligent or imprudent conduct at the time he was actually put off, which contributed to produce the injury ? If the evidence satisfies you that this question should be answered in the affirmative, the defendants are liable. If it should be answered in the negative, the defendants are not liable.
    “ You are not justified in finding the conductor negligent and Mr. Sanford free from negligence in this matter merely because the latter was injured. A person may jump off a car in a rash manner or be put off in a careless manner, and still escape unhurt. •
    “ And it may so happen, that a person is put off under circumstances which, according to ordinary -experience, would not be supposed to be at all dangerous, and nevertheless be injured.
    “ You will, therefore, determine first, whether there was any negligence or want of proper precautions on the part of the conductor in ejecting Mr. Sanford from the car. If there was not, the defendants are not liable; if there was, the next question is, was Hr. Sanford, while the conductor was putting him off, also guilty of negligence or misconduct which concurred with the conductor’s negligence or want of care in causing the injury ? If Mr. Sanford was guilty of such negligence or misconduct, the defendants are not liable. If he was not guilty of such negligence or misconduct, the defendants are liable, provided you also find that he was injured by the conductor’s negligence or want of proper precautions in ejecting him.”
    [The residue of the charge relates to the question of damages, and is omitted.]
    The defendants then and there excepted to the refusal of the judge to charge as fifthly requested, and excepted to the charge as made in respect to the matter thereof.
    The defendants also excepted to that part of the charge which is to the effect that if Sanford received the injuries of which he died, by reason of the negligent and imprudent manner in which he was ejected, without himself being guilty of negligence or imprudent conduct, at the time he was actually put off, which contributed to produce the injury, the defendants were liable.
    The defendants also excepted to tlie charge generally in so far as it did not conform to the said requests to charge.
    The jury having retired, returned into court with a verdict for the plaintiff for $4,250.
    The plaintiff was allowed to be examined as a witness on the trial, against the objection and exception of the defendants.
    The defendants moved at special term before Mr. Justice Pierhepont for a new trial, which was denied. Prom the order denying it, and from the judgment entered on the verdict, the defendants appealed to the general term.

      A. J. Vanderpoel and John McKeon, for Appellants.
    I. In the case of one who is a trespasser, or who, being on the cars, has no right to be there, no duty exists requiring care or prudence on the part of the carrier; he is only protected against wilful or wanton injuries, and as to those he must seek his remedy against the conductor, and cannot complain of negligence. He is not protected against the negligence of the company or- its servants. A man is under no obligation to be cautious and circumspect toward a wrongdoer.
    II. Looking at the charge of the court, and the refusal to charge in accordance with the third request, we must infer that this distinction between one- rightfully in the place where the accident happened, and a trespasser, was not acknowledged or was overlooked. While charging the jury that the evidence did not justify the inference that the injury was wilful or wanton, that the deceased was in fault from the moment he refused to pay his fare, or to leave, and that the conductor had a right to eject him; yet the case was submitted to the jury as one of simple negligence or imprudence on the part of the conductor. We infer that the court limited the effect of the fact, that the decedent was unlawfully in the car, as merely giving the right to eject him, and as not having any influence on the question of negligence; and that, had there not been an error in this respect, the motion to dismiss the complaint would have been granted. (Wilbrand v. Eighth Av. R. R., 3 Bosworth, 314; 15 N. Y. 382, 383; 18 N. Y. 248.)

      a. The term “ negligence ” signifies an omission of duty toward those to whom it is owing. This duty is relative, and there can be no such thing as negligence, in the legal sense of the term, where relative duties do not exist between the parties. There is no rule of law which enjoins care and caution toward a wrongdoer. (Tonawanda Co. v. Munger, 5 Denio, 266, 267; Carroll v. New Haven R. R. Co., 1 Duer, 583; Nolan v. Western Railroad Co., 15 N. Y. Rep. 449.)

      b. Negligence is, strictly, wowfeasance and not mofeas-, anee. There is no purpose to do a wrongful act, but an absence of proper attention, .care, or skill. Gardner v.
      Heartt, 3 Denio, 236; Tonawanda R. R. Co. v. Munger, 5 Denio, 266, 267.)
    III. If mere negligence on the part of a plaintiff, contributing to the injury, is sufficient to debar him from a right to recover, because the law declares that it will not punish either where it is the common fault of the parties, but will leave each to sustain the consequences of his own folly—a fortiori—a plaintiff should not be allowed to sustain an action where he wilfully invites the accident by getting on the car, not intending to pay—by remaining in the car and refusing to leave when required, and after an opportunity was afforded him to do so—and by resisting his removal.

      a. The decedent invited violence, and took the risk of the consequences of a forcible removal. *

      b. It is not suggested that the decedent, while being put off, repented of his wrong, or expressed a desire or willingness to leave the car.

      c. It can probably be said with accuracy, that a trespasser is always guilty of negligence which contributes to the injury.

      d. The court should have charged the jury in accordance with the proposition contained in the third request.
    IY. The foregoing propositions are alike applicable to - the exception to that part of the charge, which was to the effect that the defendants were liable, if the decedent received the injuries of which he died, by reason of the negligent and imprudent manner in which he was ejected from the car, without being himself guilty of negligence, at the time he was actually put off, which contributed to the injury.

      a. The manner in which the proposition is stated excluded from the consideration of the jury the primary and proximate negligence of decedent, in refusing to pay his fare. As there stated, it only affected the right to eject, and at the same time applied the rule of negligence in the same manner as if each party was rightfully in the discharge of his duties.

      £. Although wholly ignoring the fact that decedent entered the car with" the preconceived intention not to pay his fare, yet the court put the case to the jury squarely—that decedent was a wrongdoer by refusing to leave the car—that he had no right to remain there—that notwithstanding this, decedent must have been guilty of some other negligence or misconduct, “ at the time he was actuallyput off,” or “ while the conductor was putting him off,” which contributed to produce the injury.
    . Y. The plaintiff (administrator) was incompetent as a witness.
    The rule being in derogation of common law, must be strictly construed. Section 399 of Code covers the case of parties for whose personal benefit suit is brought.
    YI. The verdict is against the evidence.

      JB. G. Hitchings and H. B Cowles, for Respondent.
    I. The defendants insist that if the deceased entered the car with the intention of compelling- the defendants- to carry him without any charge, this was an act of negligence on his part primarily contributing to the accident. (3d request to charge.) But the judge’s refusal to charge in this respect was not erroneous, and his charge was quite as favorable to the defendants as legal rules would admit.
    1. An intention not to pay fare, or a refusal to pay fare, was, in no proper sense, or within the spirit of the rule, a a negligence which contributed to the accident or the injury. The accident or injury was caused entirely by the neglect of obvious precautions against danger, in the act of ejecting the deceased. His refusal to pay fare may have been the cause, or even the justification of the act of removal, but it did not absolve the defendants from their obvious legal duty to use such care and precautions as were necessary for the safety of the deceased whilst performing the act of removal.
    2. This so-called negligence was entirely too remote in its relation to the accident or injury, to be regarded as co-operating with the negligence of the defendants to cause the injury.
    Negligence on the part of the plaintiff, which is not proximate, but remote, and not immediately contributing to the accident, does not prevent a recovery for the negligence of' the defendants.
    The negligence of the plaintiff, which will prevent a recovery, must occur at the same time with that of the defendants. (Trow v. The Vermont Central R. R. Co., 24 Verm. R. 487 ; Beers v. The Housatonic R. R. Co., 19 Conn. R. 566; Kerwhacker v. The Cleveland and Cincinnati R. R., 3 Ohio R. [new series] 172.)
    The rule is also stated thus: “If there’were negligence on the part of the plaintiff, yet, if at the time when the injury was committed it might have been avoided by the defendants, by the exercise of reasonable care and prudence, an action will lie for the injury.” (Shelford on Railways, vol. 2, p. 733; Trow v. The Vermont C. R. R., 24 Verm. R. 487; Kerwhacker v. The Cleveland and Cincinnati R. R. Co., 3 Ohio R. [new series] 172.)
    In the last case, the following propositions, amongst others, were laid down by the Supreme Court of Ohio:
    1st. “ The liability to make reparation for injuries by negligence, is founded upon an original "moral duty, enjoined upon every person, so to conduct himself, or exercise his own rights, as not to injure another.”
    2d. “ The mere fact that one person is in the wrong, does not necessarily discharge another from the due observance of proper care towards him, or the duty of so exercising his own rights as .not to do him any unnecessary injury.”
    II. Although, in general, the master is not liable for the forcible acts of his servants, unless he directs them, because they are held to be without the scope of his employment, yet, as in this case, the removal was in pursuance of the directions of the company, and they committed the performance of the act to the conductor—an act in its nature forcible, and calculated to excite the passions—he was acting within the scope of his authority throughout, and the company are liable for his acts, even if he used more force than was necessary. (Smith, Master and Servant,’ Law Library, [new series] vol. 59, p. 130—title, “In cases of torts, civiliter,” p. 130 ; Angel & Ames on Corporations, § 310 ; Redfield on Railways, p. 381, § 169 ; Phila. & R. R. Co. v. Derby, 14 How. U. S. R. 468 ; Phila., Wilmington, &c., R. R. Co. v. Quigley, 21 How. U. S. R. 202; Moore v. Fitchburgh R. R. Co., 4 Gray’s Mass. R. 465.)
   Pierrepont, J

.-—-Two questions are presented by this appeal:

First. Under the law of the case, as stated by the court to the jury, was the verdict against the weight of evidence ?

Second. Does the case disclose any errors in the rulings of the judge below, to which the defendants excepted?

It appears, from the evidence, that Gilbert Sanford, the deceased, on the 30th of December, 1855, stepped upon the defendants’ car, which was on its route from Chambers street to 30th street, in this city, and at once announced that he would not pay fare, saying : “ I came up last night and was not carried through;” that the car was crowded with passengers, many of whom were standing; that the conductor told him that he must pay fare or leave the car; that it was the duty of the conductor to collect fare from every passenger; that the conductor tried to collect it from Sanford, and returned to him more than once for that purpose; that Sanford became “very turbulent,” “rose at the conductor,” “muttered something,” and placed himself, in an attitude as though about to strike the conductor; that the conductor took Sanford by the collar, rung the bell for the driver to stop; that the driver put down the brakes, and so stopped the speed of the car; that it was just in movement when the conductor pulled the deceased off the front platform; that he fell against the sloping snow, when he was in some manner so bruised and injured that he died in consequence:

I think that the charge of the judge made a just and fair presentation of the case to the jury; and if so, then the verdict is against the law of the case, against the weight of evidence, and against the scope and meaning of the charge of the court.

The court charged the jury, as matter of law, that “ Sanford was in the wrong by refusing to pay his fare or to leave the car;” and, that if he was guilty of negligent or imprudent conduct at the time he was put off, which contributed to produce the injury, that the defendants were not liable.

The following authorities may be cited in support of this proposition, and I think it is well established law: (Button v. The Hudson R. R., 18 N. Y. R. 248; Rathbun v. Payne, 19 Wend. 399 ; Harlow v. Humiston, 6 Cowen, 189 ; Holbrook v. Utica & S. R. R. Co., 2 Ker. 236; Butterfield v. Forrester, 11 East. 60; Dowell v. The Steam Nav. Co., 5 Ellis & Bl. 195.)

The evidence in the printed case hardly leaves room to doubt, that the deceased was guilty of negligent and imprudent conduct which contributed to produce the injury at the time it happened. The court was requested to charge :

“That if the conductor, in the execution of the company’s directions to remove any one from the cars who declined to pay fare, used unnecessary force, and wantonly injured the deceased, the defendants are not liable for such malicious excess.”

The court declined so to charge, but said : “ I do not think the evidence justifies the conclusion that anything which the conductor did was. done maliciously, or with a design to injure Gilbert Sanford, or supposing that he would be injured-by being ejected as he was ejected.” The evidence clearly justifies these observations of the court, but does not justify the finding of the jury.

It is true as a proposition of law, that the company would not be liable for the malicious excess and wanton injury of one of their conductors in ejecting a passenger who refused to pay fare. (Vanderbilt v. Richmond Turnpike Co., 2 Comst. 479 ; Wright v. Wilcox, 19 Wend. 343 ; Weed v. The Panama R. R. Co., 17 N. Y. R. 362; Story on Agency, sec. 456 to 462; Phil. R. R. Co. v. Derby, 14 How. U. S. 468; Crocker v. New London R. R. Co., 24 Conn. 249.) Under the circumstances of this case, as presented, I think that the refusal as modified was not error; but I am of opinion, that to allow this verdict to stand upon the whole case which this appeal presents, would be to sanction the lawless invasion of others’ rights, and to censure the fidelity of the employee in the honest discharge of a most unpleasant and thankless duty. As the verdict is both against the weight of evidence, and against the law as charged by the court, the verdict must' be set aside and a new trial ordered, with costs to abide the event.

Bosworth, Ch. J.

—The court charged {inter alia) that the conductor had a right, under the circumstances proved, to eject the deceased from the car. That the latter was in fault in refusing to leave the car. That the conductor was authorized to use force enough to put him out.

That, in his opinion, the evidence did not justify the conclusion that the conductor acted maliciously, or with a design to injure Gilbert Sanford, or supposing that he would be injured in being- ejected as he was ejected.

Assuming these instructions to be correct (and the defendant is entitled to have them so regarded for all the purposes of the present appeal), then it must be deemed to be true, that the conductor was in the right in attempting to remove the deceased, and the latter was in the wrong in resisting the efforts to effect his expulsion.

But the judge also charged, that if «there was any negligence or want of proper precautions, on the ‘part of the conductor, in ejecting Mr. Sanford from the car, which caused his death, the defendants were liable, provided the deceased, while the conductor was putting him off, was not guilty of any negligence or misconduct which concurred with the conductor’s negligence or want of care, in causing the injury.

This part of the charge affirms, that although the conductor had a right to eject the deceased, and although the latter was in fault to such extent as to justify the use of sufficient force to remove him, and was therefore wrong in resisting, and was in fault up to the instant of his injury, yet if such fault involved, at the time of his being ejected, no negligence or misconduct which contributed to his injury, the defendants are liable.

The defendants excepted to this part of the charge.

It seems to me, that when two persons are engaged in a line of action, at a particular time, which causes injury to one, and in all of said action the latter is in fault and the former is negligent and only that, the conclusion of law is, that the misconduct or fault of each contributed to his injury.

It is difficult to conceive on what theory or hypothesis it can be affirmed, or found, that the negligence of the deceased was not as truly a proximate cause of his injury as that of the conductor. If there was negligence of the conductor in removing the deceased, for the reason that the car was moving at such a rate of speed as to make the removal dangerous for that cause, there was, at the same time, operative and co-operating misconduct on the part of the deceased, in making the resistance which he offered, until the completion of the act which placed him in the perilous position that caused his death.

As the case was put to the jury, it was not suggested that there was “ any negligence or want of proper precaution, on the part of the conductor, in ejecting Mr. Sanford from the car,” unless it should be found that the car was moving at a rate of speed which of itself would make the act of ejecting him “ dangerous to life or limb or bodily health.”

In this connection, the judge expressed the opinion that the evidence did not justify the conclusion that the conductor acted maliciously, or supposed that Mr. Sanford would be injured by being ejected, or designed to injure him.

On this theory, the only negligence or misconduct of the conductor was in not stopping the car, or reducing its motion to such extent, that no danger could result from its being in motion. There was then, or may have been, in this view, fault on the part of the conductor (and, it may . be said, the jury have found,) that in this respect the conductor was in fault. But, during all this time, the deceased was also in fault, and actively so, up to the moment he was placed in the perilous position which made his injury unavoidable. This persistent and continuously operative, fault was concurring to place him in the position of actual danger, and it is difficult to see how a jury could say that the deceased was not guilty, while the conductor was putting him off, of any negligence or misconduct which contributed to his injury.

In the case of Hegan v. The Eighth Avenue R. R. Co., (15 N. Y. R. 383,) Denio, Ch. J., said, that the defendants “have no right to drive immoderately, and it is in the highest degree dangerous for them to do so. Still, if they offend in that respect, and the driver of a common carriage will negligently or wilfully place himself, or remain in their path, he has no reason to claim damages.”

Assuming, that although the conductor had a right to eject Mr. Sanford, yet, that it was misconduct to do it while the car was going at its then rate of speed, still it is true that Mr. Sanford wilfully and without right, insisted on being carried in the car without paying fare, and in his own wrong wilfully resisted the efforts made to remove him. The distinction between this case and the one last supposed, if there be any, is hardly discernible.

In this case the deceased was in fault from the time of entering the car until he was put out. Even assuming that he had persuaded himself that he had a right to insist on being carried, as he had paid his fare the previous night and was obliged to leave the cars because they could not be drawn through the snow, yet, in judgment of law he was in the wrong in not leaving when ordered to do so, and continued in the wrong in resisting the efforts made to remove him.

The. conductor was right in removing him, and in using sufficient force for the purpose and to overcome all resistance that was offered.

The deceased was injured by the movement of the car before he had been placed or had got beyond its reach, and the fault of the conductor consisted in not entirely stopping the car, or in not reducing in a greater degree its rate of speed, and, perhaps, in ejecting him from the front platform without'first stopping the car.

On such a state of facts, it is a case of misconduct or want of care on the part of the conductor, and only that, -.and concurring active wrong on the part of the deceased, which contributes to produce the injury. At all events, there seem to be no materials to uphold a finding that the deceased, while the conductor was putting him off, was not guilty of any negligence or misconduct which concurred with that of the conductor to cause his injury.

The' rule obtaining in the case of one person removing another from his premises, who refuses to leave upon request, and contrary to his duty, viz : that if more force be used than is required to effect the removal and overcome the resistance offered, and the person removed is injured, that he may recover for such injuries as were produced by the excess of force employed—is not applicable to a case like the present.

The part of the charge now under consideration, does not involve the question of the company’s liability for injuries resulting from the use of unnecessary force.

Nor is the position of these parties like that of two persons, one of whom assaults the other, and the latter— instead of using only so much force as is necessary for his personal protection, and desisting from further violence when he has disarmed the aggressor—proceeds, unnecessarily, to injure him. (Elliott v. Brown, 2 Wend. 497.)

It being settled law, that a party in fault shall not recover compensation for an injury which would not have been inflicted upon him without the concurrence of such-fault ; and as in the view most unfavorable to the defendants, there was only a want of proper precaution in not having stopped the car before the conductor ejected the deceased; and as the deceased was in fault in not leaving the car when requested, and also in resisting the efforts made to remove him; and as the injury resulted from his being ejected in a manner in respect to which he was, at the time, in fault as well as the conductor—it is an unsatisfactory conclusion, upon such evidence, that his own misconduct did not concur with the conductor’s, to cause his-injury.

This view is not in conflict with the proposition, that if the conductor used unnecessary force, and by reason of that the deceased was- injured, the company may be liable.

If, in this instance, the deceased had offered to leave, or had made no resistance, but, "on the contrary, had directed his efforts to keep himself from being harmed by being removed, and, notwithstanding that, had been injured, the case would be different.

Conceding the rule stated to the jury to-be correct, on circumstances being proved which would admit of its application, and I think it is, still the evidence given does not satisfactorily establish that the deceased’s misconduct (which is undeniable), did not contribute to his injury.

The case is one in which the ends of justice require that a new trial should be granted.

The only question is, on what terms. The costs of the appeal should be costs in the cause, and abide the event, as we reverse the order denying the motion for a new trial.

The question of the negligence or misconduct of each party, was one of mere fact, and exclusively "within the province of the jury. If there was any evidence that the deceased did not resist the conductor, I am not prepared to say it was the duty of the court to take the case" from the- jury, although such evidence may have been very slight.

Still, in the view now taken of the evidence, upon a careful review of the whole, there was not enough to warrant the jury in finding, as they may have done, and as I think they have done, that there was no negligence of the deceased, at the time of his removal, which contributed to his injury.

If this view be correct, the costs of the former trial should abide the event. The verdict is against the charge of the court, as well as against evidence. (Knapp v. Curtis & Root, 9 Wend. 60.)

Moncbief J.—.Concurred in this opinion.

New trial ordered,

       On appeal, the Court of Appeals reversed the order and affirmed the judgment of the special term. (23 N. Y. R. 343.)