text:
    THEODORE HAEBLER, et al., Respondents v. JOHN G. BERNHARTH, et al., Appellants.

      Motion by defendant to vacate attachment on the papers on which it was issued, permitting an affidavit to be read in opposition, when not substantial error, Haebler v. Bernharth, 115 N. Y. f59,— effect of on question of sufficiency of affidavit. .

    Permitting an affidavit to be read in support of an attachment upon a motion to vacate upon the papers on which the warrant of attachment was granted, is not substantial error where the affidavit on which the warrant of attachment was granted, authorized its issue.
    In the case at bar the Court of Appeals, in 115 N. Y., 159, has held that the affidavit on which the attachment was granted was sufficient to authorize its issue.
    Under this decision the permitting the plaintiff to read an affidavit in opposition to a motion by defendant to vacate the warrant of attachment on the papers on which it was issued, was not substantial error.
    Before Sedgwick, Ch. J., Freedman and O’Gorman, JJ.

      Decided May 5, 1890.
    Appeal from an order denying defendants’motion to vacate the attachment issued herein on the papers whereon it was granted.
    The affidavit on which the attachment was granted was as follows :
    “ Theodore Haebler, being duly sworn, says: That he is one of the plaintiffs named in the above entitled action, which has been brought to recover the sum of one thousand sixtyrfour dollars as damages suffered by the plaintiffs by reason of a breach of warranty by the defendants as to the kind and quality of one thousand bags of beans, purchased and paid for by the plaintiffs to be shipped by the defendants from Havre, France, under said warranty.

      “ That the defendants are not residents of this State, .but reside at Havre, France.
    “ That the plaintiffs are entitled to recover from the defendants the sum of one thousand sixty-four f0’0 dollars over and above all counterclaims known to deponent.”
    The other matters sufficiently appear in the opinion.

      Couclert Brothers, attorneys and of counsel, for appellants, on the questions considered in the opinion, argued :—
    I. The attachment can only be sustained, if at all, upon the affidavit, recited in the warrant. No further proof can be given in plaintiffs’ behalf. Buhl v. Ball, 41 Hun, 61 ; Pach v. Orr, 15 Code C. P. 176, and cases cited, p. 178.
    II. The plaintiffs must affirmatively establish every fact necessary to sustain their attachment. Richter v. Wise, 6 T. & C. 70 ; S. C. 3 Hun, 398 ; Smith v. Davis, 29 lb. 306 ; Pomeroy v. Ricketts, 27 lb. 242 ; Reilly v. Sisson, 31 lb. 572 ; Labalt v. Schulhof, 4 N. Y. Supp. 819 ; Pomeroy v. Moss, 15 Weekly Digest, 25 ; Golden Gate Concentrator Co. v. Jackson, 13 Abb. N. C. 476 ; Walts v. Nichols, 32 Hun, 276 ; Manton v. Poole, 67 Barb. 330. The cases cited by plaintiffs as to the sufficiency of the affidavit have no application here ; in those cases facts, and not conclusions drawn from facts, were alleged. The general term of this court has previously and very properly criticised and condemned this affidavit in the strongest terms. 56 N. Y. Super. Ct. 575. All the Court of Appeals has decided, respecting the affidavit, is, that “ dealing solely with the question of jurisdiction,” they thought it. sufficient, but they reaffirm the principles above referred to, as to the necessity of establishing’affirmatively by the affidavit, “ a full and clear statement of facts, bringing the case immediately within the statutory conditions before granting the warrant.” Our contention as to the effect of the decision of the Court of Appeals just mentioned is sustained by Judge O’Brien in Supreme Court Chambers (N. Y. Law Journal, Jan’y 14th, 1890), in Belmont v. Arizona Copper Co., wherein he says : “ This case comes within the principle stated in Golden Gate Co. v. Jackson, 13 Abb. N. C. 476 ; and the rule there laid down is not affected by the decision of the Court of Appeals in Haebler v. Bernharth, 115 N. Y. 459. The motion to vacate in the latter case was not made by the defendant. If it had been, the court said it would not have interfered with the decision below. The question there was strictly one of jurisdiction. The question here, however, is—conceding the jurisdiction-—whether the attachment ought to have been granted. When the motion to vacate is made by the defendant, that is the real question. Allen v. Meyer, 73 N. Y. 3. Here the value of the property is not stated at all. The plaintiff simply states that upon the facts alleged he has suffered damages to the amount of $25,000. That is his opinion. He might as well have put his damages at $250,000. An attachment requiring the sheriff to sieze property sufficient to cover a precise amount should not be granted upon such an affidavit. The plaintiff should at least have furnished some evidence of the value of the property with respect to which he claims damages. The motion to vacate should therefore be granted.”
    III. The Code of Civil Procedure, § 636, distinctly requires that “if the action is to recover damages for a breach of contract, the affidavit must show that the plaintiff is entitled to recover the sum stated therein.” This means that he must show by legal proof the facts, so that the court may infer from them that he is entitled to at least the amount of the attachment. The complaint does not approach this requirement. The court is not permitted to assume the existence of any facts not clearly alleged. The rule of damages upon the facts stated, is the difference in value between beans of the kind and quality of the sample, and those of the kind and quality delivered (Opinion, Court of Appeals herein); but on this appeal the court cannot spell out facts, by applying the rule of damages for the purpose of showing that the plaintiffs have been damaged to some extent. Andrews, J., in the opinion of the Court of Appeals herein (supra), says : “The complaint does not distinctly show upon its face that upon this rule, the damages would be the sum stated, but it cannot be inferred that beans greatly inferior in quality to those warranted would be worth but a nominal amount less than beans of greatly superior kind and quality;” And so the Court of Appeals, on the motion made by the subsequent lienors, held that there was sufficient in the papers to confer jurisdiction, upon this court, but they add the expressed words-: “ The complaint and affidavit upon this point are undoubtedly very general and are open to criticism. But dealing here (in the Court of Appeals) solely with the question of jurisdiction, we, think the affidavit did tend to show a cause of action on contract and a liability of the defendants to the amount stated.”
    IY. The attachment cannot be sustained for the amount of unliquidated damages, by reason of the breach of a contract. It does not follow that because a party is damaged by the breach of a contract, that .he is entitled to obtain an attachment as a matter of course.

      Marshall P. Stafford, attorney and of counsel, for respondents, on the questions considered inthe opinion argued :—
    I. The attachment was warranted by the papers on which it was granted, (a). This is settled by the decision of the Court of Appeals in this action. Haebler v. Bernharth, 115 N. Y. 459. That decision may not make the question technically res adjudicata as to the appellants, but it settles the law of the matter. (6). In the court below, the appellants contended that the decision of the Court of Appeals makes a distinction between a defendant and a subsequent lienor as to facts necessary to justify the issuing of a warrant of attachment. There is no basis for this claim. The Court of Appeals make a distinction between a defendant and a subsequent lienor as to the right to appeal to that court from an order granting or vacating an attachment. There is not the slightest intimation that an attachment may be justified by the papers on which it was granted if a subsequent lienor moves to vacate, but not so justified when the defendant moves, (c). In the court below counsel for appellants laid much stress on the fact that the Court of Appeals held that when subsequent lienors moved they must stand upon a strict legal right, but that when a defendant moved it was' discretionary with the court whether the attachment should be vacated or not. The lan-. guage of the Court of Appeals thus sought to be availed of in support of this motion was used solely in reference to the right to appeal to. that court, and it is a manifest perversion of it to give it a bearing upon any other point. It affords no basis whatever for a claim that the Court of Appeals did not mean and decide that the attachment was properly granted and ought not to be vacated on any one’s motion on the ground that it was not justified by the papers on which it was granted, (cl). The judge who granted the warrant necessarily exercised his discretion as to the sufficiency of the papers. He held them sufficient and the Court of Appeals has decided that he was justified in exerising this discretion in the way he did. It is well settled that a motion to vacate an attachment as not warranted by the papers on which it was granted will be denied if there is enough to call for the exercise of the judicial discretion of the judge who granted the warrant. The attachment must be absolutely and totallyj unwarranted before it will be vacated on this ground. The judge who exercised his discretion in granting the warrant was called upon to exercise his discretion about it again on the motion resulting in the order from which this appeal is brought. He exercised it on this second occasion with the same result as he did on the first, which the Court of Appeals has decided he was fully justified in doing. It was therefore difficult to see how the question of “ discretion ” can be advantageously invoked here by the appellants.
    II. Laches in moving would be sufficient ground for denying the motion to vacate.
    III. The affidavit of Mr. Stafford was properly received, the motion being based on an affidavit as well as the original papers. Even if it had been otherwise inadmissible, it was proper for the purpose of showing what papers in fact were before the judge when he granted the attachment. This matter was all gone over on the Myers appeals. If the affidavit is admissible, for any purpose, then it must stand, since the objection was general. The motion for resettlement was properly denied.
   By the Court.—O’Gorman, J.

The warrant of attachment in this case was granted by the court on April 5, 1888.

An order to show cause why the attachment should not be vacated on the papers upon which the same was granted, was made on November 10, 1889.

The motion on the order to show cause was denied by the judge at special term, and from that decision the defendants appeal, on the ground that the court allowed the plaintiffs to submit an affidavit in opposition to the defendants’ motion to vacate the warrant made in November, 1889,—that the court had not power to receive and consider said affidavit on defendants’ motion to vacate—that plaintiffs had been guilty of laches in offering said affidavit, setting forth that the plaintiffs had obtained a judgment against the defendants by default—that the money held by the sheriff on the plaintiffs’ attachment had been by some indirection applied to payment of a judgment of another creditor of the parties defendant, and an action against such creditor for restitution of such money, is now pending.

The delay of defendants in moving to vacate tho attachment is laches, which' did not seem entitled to much favor from the court before which tho motion to vacate was made.

- The permission of the court to the plaintiffs’ counsel to read affidavits as to occurrences in the action since the granting of the attachment, was not substantial error.

The affidavit on which the warrant of attachment was granted, discloses facts sufficient to warrant the order. Haebler v. Bernharth, 115 N. Y. 459, 462.

The remedy by attachment is summary and should not be hampered an d frustrated by unnecessary technicality, although all proper precautions should be taken to protect a defendant against imposition or oppression.

The order appealed from should be affirmed, with costs.

Sedgwick, Oh. J., and Freedman, J., concurred»


source: Caselaw Access Project

author: By the Court.—O’Gorman, J.

license: Public Domain

text:
    THE SECOND AVENUE RAILROAD COMPANY, Respondent v. THE METROPOLITAN ELEVATED RAILWAY COMPANY, et al., Appellants.

      Complaint, order for amendment of, what objections thereto are not available on appeal.—Instance of such order not interfering with the constitutional right of trial by jury.

    The objection that the order permitting the plaintiff to amend the complaint required the defendants to answer the amended complaint, is not available on appeal, it not being claimed that the order prevented defendants from demurring, or that but for the order they would have demurred.
    The objection that the order required the defendants to answer within twenty days after service of the amended complaint, is not available on appeal.
    The objection that the order directed the issue to remain as of November 15, 1888, is not available on appeal.
    The proper and sufficient remedy as to the above matters, if defendants were aggrieved, was to move for a resettlement.
    Order for amendment of complaint not depriving defendant of his constitutional right of trial by jury, instance of.
    Before Sedgwick, Ch. J., Freedman and O’Gorman, JJ.

      Decided May 5, 1890.
    . Appeal from order allowing an amendment to the complaint.
    The complaint alleged that plaintiff is and was a corporation duly organized ; that Second Avenue between 123d and 129th streets in the city of New York, is a public highway laid out and opened under chapter 86 of the Laws of 1813, entitled “ an act to reduce several laws relating particularly to the city of New York into one act,” passed April 9, 1813 ; that upon-the opening of said avenue the corporation of the city of New York became seized of the fee and certain trusts in the complaint set forth, among others, that the avenue should forever be appropriated and remain open in like manner as other public streets and avenues in said city then were, and of right ought then to have been appropriated and kept open.
    The complaint then alleged, “ That at the time of the passage of said act of 1813, none of .the streets or avenues in said city were appropriated or kept open for the use or purposes of a railroad, either surface, underground or elevated. That such proceedings created a valid trust in the corporation of said city, which precluded it from authorizing any other use of the land acquired for' such portion of the said second avenue than that described in said act of 1813. That the said city of New York in effect contracted with all persons who owned land on said avenue, that such abutting owners and their successors might erect buildings upon their lots and open windows overlooking said street, and receive light for their said buildings from said street as a perpetual easement over said street.
    “ That no use of said street should be permitted ■ which should render the air in said street noxious or unwholesome, or which should obstruct the entrance to buildings erected or to be erected, or which should disturb and annoy the occupants of said buildings by unusual noise, jars, or in any other manner whatever.
    “ That said avenue, until taken possession of by the defendants, as hereinafter set forth, was only used for the ordinary purposes of a street or avenue, that is to say, for the passage of man and beast and of "Vehicles drawn or. propelled upon the surface of the same, and for the free admission and use of air and light and access to houses and buildings erected and to be erected upon the boundary lines of said street.
    “ That said use of light, air and access to buildings, is a necessary use indispensable to the enjoyment and ownership of the said premises, and is an easement legally appurtenant to said premises, and is property.”
    The complaint then alleged that in 1871, the plaintiff became the owner in fee simple of certain premises situate on Second avenue, between 126th and 127th streets, (particularly described them) and of the buildings thereon, and had ever since been and then was such owner thereof ; that before the acts of the defendants thereinafter set forth said property was of great value; that in consequence of such acts of defendants the use, enjoyment and value of said property was greatly damaged and reduced, and the plaintiff suffered great injury and loss. It then alleged the incorporation of the defendant “ The Metropolitan Elevated Railway Company.” It then alleged that in 1880 the said Railway Company took possession of said Second avenue, between said streets, and erected thereon a structure of iron and wood. It then gave a particular description of the structure and the use thereof made by the defendant. It then alleged that since 1880 the railroad has been in possession of and operated by the defendant The Manhattan Railway Company and lessee and agent of the Metropolitan Elevated Railway Company. It then alleged the incorporation of the Manhattan Railway Company. It then proceeded as follows:
    That the defendants by constructing and maintaining said structure in such parts of said Second avenue, deprived the said avenue of the purifying action of the sun in drying the surface, and prevented the former and usual circulation of air, and made the said street damp, dark and unwholesome. Trains of cars were and are run by defendants upon this structure at intervals of a few minutes all day and until midnight. That this structure and these trains deprived and now deprive plaintiff’s premises of the uninterrupted use of and access by the light and air in said avenue and opposite plaintiff’s said premises, so that this plaintiff could not and cannot have the former or customary use of said light and air in their said premises, but are deprived thereof by the defendants. That the* engines drawing these trains emit into said street and into plaintiff’s said premises and buildings offensive and noxious stenches and cinders.
    That said columns obstruct plaintiff’s free use of said street.
    That trains in passing said buildings emit sparks, steam, soot and ashes, and water into the street and plaintiff’s said premises, and cause a loud and unpleasant noise and disturbance during their passage past plaintiff’s said premises.
    That by the construction and operation of said Elevated Steam Railway as hereinbefore set forth, the said defendants deprive the plaintiff of the free and uninterrupted or unimpaired enjoyment of its rights and property, and the lawful use of its said premises, and greatly reduced their value.

    The plaintiff, further says that each and every of the aforesaid injurious acts of the defendants have been done wrongfully, and against the will and consent of the plaintiff. That for the aforesaid wrongs aad injuries which the defendants inflicted upon the plaintiff and the said premises, and upon the rights and interests and easements as above set forth, defendants never made or offered plaintiff any compensation, nor did defendants, by recourse to the right.of eminent domain accorded to them by law, ever take any steps to compensate plaintiff for any of said wrongs and injuries, but on the contrary defendants inflicted said wrongs and injuries, and imposed said burdens on the plaintiff and the said property without compensation or indemnity during the whole period from, in or about the month of March, 1880, when the said structure was completed, till the present time.
    That but for the said unlawful acts of defendants the plaintiff’s said property would be of much greater value, and the rental value thereof would be much greater, and in cofisequence of the continuance of said unlawful acts, the market value and rental value of said premises have been greatly diminished.

    Wherefore plaintiff prays judgment that unless the defendants shall pay to this plaintiff the amount of damages sustained by them through their said unlawful acts up to the time this action was commenced, and which damages in rental depreciation amount to the sum of thirty thousand dollars, and unless they shall also pay to the plaintiff within sixty days after the tender by plaintiff to them of a conveyance of the easements of light, air and access lawfully appurtant to said premises, and now abridged by defendants,- the further sum of forty-five thousand dollars, that an injunction may issue restraining said defendants, and that they be enjoined and restrained from operating and maintaining said struct-ures and compelling them to remove the said railroad structure and station from in front of plaintiff’s said premises and for such" other and further relief as to the court may seem fit, together with the costs of this action.
    Issue was joined November 15," 1888, by defendants’ answer. The issue thus joined came on to be tried on the 21st and 22nd days of January, 1890. at an equity term as an equity cause before Sedgwick, Ch. J., without a jury. On the trial defendants’ counsel moved to strike the cause of action from the calendar, on the ground that it sets forth no equitable cause of action.

      Thereupon plaintiff’s counsel moved to amend the complaint so as to put in the complaint allegations that the defendants intended and threatened to continue the structure and the operation of the road through the term of its charter ; and asked the court to allow an adjournment in order to apply at the special term for leave to amend. Defendants’ counsel asked that the cause be marked off the term. The court thereupon ruled: “ In my judgment the defendants, if an amendment is allowed, will have a right to claim a trial upon the issue as of the time when made by the amendment. I have no power to put this over in contemplation of a new issue being made, for if that new issue be made it will take its place on the calendar of that date ; ” and granted the motion to put the cause off the term. Thereafter plaintiff moved at a special term held at Chambers for the hearing of motions for leave to amend the complaint by inserting therein after the words “ and greatly reduced their value ” above italicized the allegation, “ That the said structure and the running of trains thereon and the other acts of defendants hereinbefore alleged are of a permanent, lasting and continuous nature and will be permanent, lasting and continuous,” and by inserting after the words “ greatly diminished ” above italicized, the allegation “ That plaintiff is obliged to seek the equitable assistance and interference of this court in order to prevent a multiplicity of actions.”
    The motion was granted and an order dated February 6,1890, entered upon the granting of it, which is sufficiently set forth in the opinion. Defendants appealed to the general term.

      Davies & Rap alio, attorneys, and T. Frelinghuysen C. Demarest of counsel, for appellants, argued:—
    I. The order appealed from should be reversed, because it imposes on the defendants, who were wholly without fault, terms on granting relief to the plaintiff against the results of a non-observance of the tules of pleading. (1.) The order appealed from provides : “ And it is further ordered that, within twenty days after the service of a copy of the complaint, amended as aforesaid, upon the attorney for the defendants, the defendants shall serve their amended answer upon the attorney for the plaintiff.” This was error : “ The only pleading, on the part of the defendants is either a demurrer or an answer” (Code Civ. Pro., § 487). This statute gives the defendant an option, of which a court cannot deprive him, where he asks no favor, and has been guilty of no laches. Fink v. Manhattan R. Co., N. Y Com. Pleas. Gen. Term, Feby., 1890, 8 N. Y. Supplement, 327 ; Union Bank v. Mott, 19 How. 267. (2). The order appealed from provides ; “ And it is further ordered, * * * that the issue herein shall remain as of the 15th day of November, 1888.” This was error : (a.) “ An agreement to forbear for a time, proceedings at law or in equity, to enforce a well-founded claim, is a valid consideration for a promise” (Parsons on Contracts, 7 th ed., 470, and cases cited); and (b.) It is a familiar condition imposed by the courts on opening a defendant’s default in pleading, or on granting to a defendant an extension of time to plead to provide that the issue shall remain as of the date which it would have had in case the default had not occurred or the extension been granted. It follows that (c.) To so antedate an issue, as against an unoffending defendant’s title to demand the observance of the statutory prescription as to the time of his arraignment, is to deprive him, without reason, of a right, without possessing which he could not waive or forfeit it in the cases of default or extension supposed ; and of which right, if existence were not predicable, forbearance could not be purchased by the promise referred to in the last quotation.
    II. The order appealed from should be reversed, because, in accomplishing its only intended object, the substitution of an equitable, for a legal, cause of action, it violates the defendants’ constitutional right to a jury trial of the issue offered by plaintiff and accepted by defendants. Before the amendment allowed by the order appealed from, the complaint set forth a claim for money damages—a legal as distinguished from an equitable cause of action—presenting an issue for trial by a jury, as distinguished from a trial by the court. In the affidavit of plaintiff’s attorney, upon which the order to show cause was based, the affiant pointedly calls the attention of the court to the fact “that, by the ninth section of defendants’ answer herein, it is admitted that said structure is of a permanent and lasting nature. And it is the fact, that the defendants’ answer to the first-named complaint, i. e., to the complaint as it existed before the order appealed from was made, alleged “that the said railway was constructed according to law, and with the greatest care and skill, and that the structure, maintenance and operation thereof are permanent.” Here, then, we find both parties insisting on the permanency of the road. The Lcthr case makes the issue, in such a conjuncture, triable by jury, as a question of damages. 104 N. Y. 294. The. case at bar is thus brought distinctly within the doctrine announced in Davison v. Associates of the Jersey Company 71 N. Y. 333.
    III. The order appealed from should be reversed, because its result is a defective pleading. (1.) “ A court has not the discretion to allow a defective pleading to be served as an amendment of the earlier pleading” Pracht v. Ritter, 48 N. Y. Super Ct. 509, 510. (2.) The complaint, as permitted to be amended by the order ,appealed from, is defective, because (a.) The allegation,—“ that the plaintiff is obliged to seek the equitable assistance and interference of this court in order to prevent a multiplicity of actions,” is sham, on its face. A “ multiplicity of actions” cannot arise, and therefore cannot be prevented between two persons only. Willard's Eq. Jurispr., Potter's ed., 326 ; citing Cowper v. Clark, 3 P. Wms. 157, and Alexander v. Pendleton, 8 Cranch, 468 ; 1 Maddock’s Chancery, 1st Am. ed., 140. If, however, it is assumed that the pleader was trying to allege the danger of a necessity of suing repeatedly to collect damages, then (b.) The two amendments are inconsistent, because, as has been seen, the quality of “ permanency,” by the Lahr decision, makes the damage recoverable once for all by the verdict of a jury. That inconsistent amendments of a complaint will not be allowed, see Evangel L. Church v. Fingar, 11 N. Y. Week. Dig. 460 ; Scheier v. Tyrrell, 23 lb. 476.
    IV. The order appealed from should be reversed, because it transcends the broadest limits of the field wherein the courts have exercised their regulative power over pleadings. (1.) Although it is decided that the statute is not the sole source of the power to allow amendments, it is believed that the clause of Code Civ. Pro., § 723,—which allows of an amendment “ by inserting an allegation material to the case,”—suggests a degree of liberality which a court can never find it needful or suitable to exceed. (2.) The allegations inserted in the complaint, in the action at bar, were not material to the ease. Plaintiff had stated a good case. All that was requisite was to properly notice it for trial.
    V. The order appealed from is appealable to the general term. If deemed discretionary, defendants are entitled to the discretion of the general term. People v. N. Y. C. R. R. Co., 29 N. Y. 418 ; Howell v. Mills, 53 lb. 322 ; Martin v. Windsor Hotel Co., 70 lb. 101 ; Hand v. Burrows, 15 Hun, 483.

      Augustus S. Hutchins, attorney and of counsel, for. respondent, argued:—

      I. The order of February 6, 1890, allowing certain amendments to the complaint herein is a proper order and should not be disturbed. § 723 of the Code ; Dennis v. Coman, 61 N. Y. 642 ; Van Duzen v. Howe, 21 lb. 531 ; Fox v. Hunt, 8 How. 12 ; Woolsey v. Trustees, etc., 2 Keyes, 603.
    II. The order appealed from being a discretionary one is not subject to review on appeal except it be shown that such discretion was abused. No such claim can be successfully made in the case at bar. Olendorf v. Cook, 1 Lansing, 37 ; Gould v. Rumsey, 21 How. 97 ; McQueen v. Babcock, 13 Abbott, 268 ; Ford v. David, 1 Bos. 569 ; Saltus v. Genim 19 How. 233 ; Train v. Barger, 24 Barb. 614 ; Phincle v. Vaughan, 12 lb. 215 ; Iron Works v. Smith, 4 Duer, 362.
   By the Court.—O’Gorman, J.

The defendants appeal from an order of the special term of this court, of which the following is a copy :—

“ Upon reading and filing the affidavit of Augustus S. Hutchins, plaintiffs attorney herein, verified January 29, 1890, and a proposed form of an amended complaint thereto annexed, and the order to show cause granted on said affidavit, returnable February 1, 1890, with proof of due service thereof, and the affidavit of Theodore F. C. Demarest, of counsel for defendants, in opposition' to the motion made by said order to show cause, and the transcript of the minutes of the official stenographer of this court of the proceedings had herein at the equity term of this court, on January 21 and 22, 1890, submitted on the hearing of the motion, and upon all the pleadings and other proceedings herein, and after hearing Agustus S. Hutchins for the motion made by said order to show cause, and Theodore F. C. Demarest in opposition thereto, it is

“ Ordered, that the complaint herein may be amended by inserting therein, after the words ‘ greatly reduced their value,’ in the eighteenth folio, the following allegation : 1 That the said structure, and the running of trains thereon, and the other acts of defendants hereinbefore alleged, are of a permanent, lasting and continuous nature, and will be permanent, lasting and continuous ’ ; and also by inserting in the said complaint after the words 1 greatly diminished’, in the twentieth folio, the following allegation : 1 That the plaintiff is obliged to seek the equitable assistance and interference of this court in order to prevent a multiplicity of actions.’

“ And it is further ordered that within twenty days after the service of a copy of the complaint, amended as aforesaid, upon the attorney for the defendants, the defendants shall serve their amended answer upon the attorney for the plaintiff, and that the issue herein shall remain as of the 15th day of November, .1888.

“ This order is made conditional upon the payment of twenty dollars by the plaintiff to the defendants.

“ And it is further ordered that- the order permitting an amendment of the complaint heretofore entered in this cause, on the first day of February 1890, be revoked ; the foregoing provisions of this order being in lieu and stead of the last-mentioned order.”

The chief grounds of the defendants’ appeal are— That the order imposes the terms on the defendants that they shall serve their amended answer on the attorney for the plaintiff, within twenty days after service on them of a copy of the plaintiff’s amended complaint.

Defendants did, in fact, serve such amended answer, but under protest. They do not claim that this order prevented them from demurring to the amended complaint, or that but for the order they would have demurred. The defendants also claim that they were prejudiced by the requirement in the order that they should answer within twenty days. That is the statutory time within which an answer must be served after service of summons. Code Civil Procedure, §§ 418, 422. The court at special term had power to make the order appealed from and it was matter of discretion. Code, § 723. The defendants, if aggrieved by the order, could have moved for resettlement, and called the attention of the court to such substantial detriment, if any, which they sustained by reason of the order. That would have been the proper and sufficient remedy. Code Civil Procedure, §§ 723, 724. The other alleged grounds of appeal are without merit. The defendants’ constitutional right to trial by jury, if such right appears on the pleadings to exist, cannot be denied, and defendants are not deprived of the exercise of that right by the order appealed from. It is a right that can be asserted at any time, and before any tribunal, unless waived. Code Civil Procedure, §§ 968, 1009.

The order appealed from is affirmed, with costs.

Sedgwick, Ch. J., and Freedman, J., concurred.


text:
    BERNARD BRADY, Respondent and Appellant v. THE MAYOR, &c., OF THE CITY OF NEW YORK, Appellant and Respondent.

      Contract for regulating and grading 95th street in the city of New York, from, 10th avenue to Riverside drive, action upon, to recover amounts claimed to be due to the assignor of plaintiff.

    The trial judge directed the jury to find for the plaintiff on the first cause of action in the sum of $44,163.26, the full amount of his claim on that cause of action, and the defendant excepted; and as to the second cause of action, which was for the recovery of 862,264, the trial judge dismissed the complaint, and the plaintiff excepted.
    The work done by the assignor, constituting the first cause of action, was accepted and received by the commissioner of public works, on behalf of defendant. The excavation of earth and rock called for in the contract was completed in due time, and all the work, so far as required by any of the officer'' ^ the defendant, was performed and accepted by the defendant, and a w Silicate of completion and acceptance was signed by the surveyor, superintendent of street improvements, chief engineer of the Croton aqueduct, and the commissioner of public works, as required by the terms of the contract. The defence claimed that a certain portion of the rock was not,, in fact, taken out two feet below .the curb of the street, but the testimony produced to support that defence was indefinite and uncertain, and no avail as against the evidence in behalf of the plaintiff that the rock was taken out, and to the satisfaction of the defendant’s officers. Held, that the various officers named in the contract, who signed the certificate of completion and acceptance, must be regarded as the representatives of the defendant, and their action and certificate as binding upon the city; and the trial judge was justified in directing a verdict for the plaintiff.
    As to the second cause of action the ruling of the trial judge in the’ dismissal of the complaint is fully justified by reasons given by him on the trial and set forth in the case on appeal. The plaintiff’s contention, that the certificate of defendant’s official engineer, in charge of the work, was wrong, to the injury of the contractor, by reason of the fraud or corruption of the engineer, was not sustained by such clear preponderance of evidence as required in proof of such a charge.
    The strong presumption of the correctness of the official certificate of the engineer, which went far to support the plaintiff’s first cause of action, tended to defeat his contention in regard to the certificate as to the second cause of action. The judgments as entered below should be affirmed.
    Before Sedgwick, Ch. J., and O’Gorman, J.

      Decided May 5, 1890.
    Appeal by the defendant from a judgment entered upon a verdict rendered by the direction of the court at trial term in favor of plaintiff.
    Appeal in the same action by plaintiff from a judgment dismissing his complaint as to his second cause of action.

      L. Laflin Kellogg, for plaintiff, respondent and ap- . pellant.

      William H. Clark, counsel to the corporation, and David J. Dean and Arthur H. Masten, of counsel, for defendant, appellant and respondent.
   By the Court.—O’Gorman, J.

The complaint presented two causes of action.

As to the first cause of action, the trial judge directed the jury to find for the plaintiff in the sum of $ 44,163.26, the full amount of his claim as far as that cause of action was concerned, and the defendant excepted.

As to the second cause of action, which was for the recovery of $62,264, the trial judge dismissed the complaint, and the plaintiff excepted.

As to the first cause of action, it was brought by the plaintiff, Bernard Brady, as assignee of John Brady, to recover the amount $37,371.81; claimed to be due said John Brady by the defendant, under a contract for regulating and grading 95th street in the city of New York, from 10th avenue to Riverside drive.

It is admitted by the defendant that the work done by Brady, the assignor, was accepted and received by the commissioner of public works, acting on behalf of the defendant. That all the excavation of the earth and rock called for in the contract referred to, was completed in due time ; all the work so far as required by any of the officers of the defendant under the contract has been performed by the plaintiff’s assignor, and the work has been accepted by the defendant. A certificate of completion and acceptance, signed by the surveyor, by the superintendent of street improvements, by the chief engineer of the Croton aqueduct, and by the commissioner of public works, as required, was duly made and filed.

The work provided for in the contract was, by its terms, to be completed to the satisfaction of the commissioner of public works, and in substantial accordance with the specifications and plans therein mentioned. It is not disputed that the work was done as required and directed by these officers, who had the work in charge on behalf of the defendant.

The defence is that a certain portion of the rock was not in fact taken out two feet below the curb. The testimony produced to support that position is indefinite and uncertain. The witness does not deny that the work was done under the charge, of the engineer and assistant, officers of the defendant, and in all respects as directed by them. There is nothing in the testimony to contradict the evidence on behalf of the plaintiff, that the rock was substantially taken out to the satisfaction of the commissioner of public works and of the other officers of the defendant. In fact, the defendant accepted the work and never required the plaintiff’s assignor to do anything more in performance of the contract, and the street has been in general use for four years since it was taken possession of by the defendant. The various officers of the city who have signed certificates testifying to the sufficient completion of the work by the contractor Brady, must be regarded as representing the city, and, in the absence of any evidence of fraud, their deliberate certificate must-be regarded as binding on the city. Mulholland v. The Mayor, 113 N. Y. 632 ; .People v. Stephens, 71 lb. 550. The acceptance of the work, of itself, by the city, without objection, and the application of the work when accepted to public use, are strong-evidence that the contract has been practically and sufficiently carried out. Kingsley v. City of Brooklyn, 78 N. Y. 200 ; Smith v. Alker, 102 lb. 87. Thus the preponderance of evidence was clearly on the side of the plaintiff, and the learned trial judge was justified in directing a verdict for the plaintiff.

It appears that the learned counsel for the plaintiff and for the defendant both asked the direction from the court, and it is my opinion that as to the first cause of action, the direction of the trial judge was clearly right.

As to the second cause of action, the trial judge dismissed the complaint, and his ruling is fully justified by the reasons given by him on the trial, and which are set forth in page 44. folio 173, of the case on appeal.

The plaintiff’s contention that the certificate of the defendant’s official engineer, in charge of the work, was wrong, to the injury of the contractor, by reason of,the fraud or corruption of the engineer, is not sustained by such clear preponderance of evidence as is required in proof of such a charge. Indeed the strong presumption of the correctness of the official certificate, which went far to support the plaintiff’s first cause of action, tended to defeat his contention as to the second cause of action.

On the whole case, I am of the opinion that no substantial error has been committed at the trial, and that the judgments as entered below should be in all respects affirmed.

Sedgwick, Ch. J., concurred.


text:
    STAR COMPANY, Appellant v. WILLIAM S. ANDREWS, and Another, Individually and as Trustees, Respondents.

      Corporation under “ Manufacturing Corporations Act of 18J/S, power to mortgage their property— Chattel Mortgage, sale thereunder.

    In this action the plaintiff seeks equitable relief, and prays that two chattel mortgages covering the personal property of the Star Printing Company, including printing presses, etc., be declared void, also for an injunction, etc. The judge at trial term dismissed the complaint on the merits. The case on appeal does not state that it contains ail the evidence, and, therefore, for the purposes of decision on this appeal, all the facts found by the trial judge must be assumed to be. true.
    The Star Printing Company was a domestic corporation, engaged in the publication of the “ Star,” a newspaper in the city of New York, and borrowed from various persons, contributors to the loan, the aggregate amount of $25,030, for the payment of which it executed and delivered' to defendant Andrews, who represented all the contributors to the loan, its five promissory notes of $5,000 each, and as security for their payment executed mortgages on all its personal property, including the chattels in question in this action. Judgments were subsequently recovered against the company, and execution issued thereon, under which all its chattels were sold, and there was a sale subsequently to these of the property of the company made by a receiver. Public notice was given at each of such sales, that the chattels in question were subject to the liens of said mortgages. The plaintiff acquired the title of the purchasers at said sales, and the' printing presses that were so mortgaged are in its possession, and now seek to have the mortgages declared void, and the lien removed, The defendant Dayton, by assignment of the mortgages, represents the contributors to the original loan of $25,000 to the Star Printing Company. The plaintiff claimed in the complaint that the chattel mortgages were invalid because the consent of the corporators had not been obtained for the execution of the same, and their consent was necessary. The plaintiff also contended that as to one of the printing presses, it had been substituted after the first mortgage was executed in place of another press, and the consent of the corporators to the first mortgage, if it was obtained, did not apply to the substituted mortgage.
    The defendant contends, that as the plaintiff represents the purchasers of these chattels, who had notice of the execution and lien of these mortgages before the sales thereof, it is estopped from taking advantage of any defect caused by the absence of any consent of the corporators, if any such defect existed, but that, in point of fact, all needful consent on the part of the corporators, to the exécution of the mortgages, had been obtained and filed.

      Held, that the money was loaned on the security of these mortgages, and that the amount so loaned is wholly unpaid, there is no question; and that the corporation and the lenders did in fact consent to the substitution of the mortgage on the new printing press, in place of the press theretofore mortgaged, is not denied. That assent of the corporators, as set forth in writing and filed, was an assent “ that the real and personal property of the Star Printing Company may be mortgaged,” and the language was broad enough to warrant the cancellation of the mortgage on some of the chattels with the consent of all parties to the mortgage, and the substitution of another mortgage on other chattels. That the purchasers of these printing presses at public sale, having full notice of the mortgages as liens on the presses, cannot take advantage of the alleged defect, as to want of consent by the corporators to the execution of the mortgage, even if it existed. Whatever depreciation of price occurred at the sales, because of these liens and notice of the same, the purchasers reaped the advantage. It would be unjust and inequitable that they should be permitted to repudiate the lien. Findings of the trial judge approved, and the judgment appealed from affirmed.
    Before Sedgwick, Ch. J., and O’G-obman, J.

      Decided May 5, 1890.
    Appeal from an interlocutory judgment dismissing the complaint as to each defendant, and directing judgment in favor of defendant Dayton, as trustee, upon his counter-claim, and an order for a reference, etc., and final judgment.

      Anderson & Iiowland, attorneys, and Henry H. Anderson of counsel, for appellant.

      Arnold & Green, attorneys and of counsel, for respondents.
   By the Court.—O’Gorman, J.

In this action, the plaintiff seeks equitable relief that two chattel mortgages, covering the personal property of the Star Printing Company, including printing presses in its possession, be declared to be void, and for an injunction.

The learned trial judge dismissed the complaint on the merits, and the plantiff appeals. • The case on appeal does not state that it contains all the evidence, therefore, all the facts, as found by the trial judge, must, for the purposes of this appeal, be assumed to be true. Porter v. Smith, 35 Hun, 118.

The material facts are these :—The Star Printing Company was a domestic corporation publishing the “ Star,” a newspaper in the city of New York. This corporation, having become financially embarrassed, borrowed from various persons contributing, the sum of $25,000, for payment of which loan, it gave to “Andrews,” who represented all the contributors, its five promissory notes for $5,000 each, and as collateral security executed mortgages on all its chattels, including the chattels in suit. Judgments were subsequently recovered' against the company, and executions issued, under which all its chattels were sold by the sheriff.

There was a sale subsequently, of the property of the company, made by a receiver. Public notice was given at such sales, that these chattels were subject to the liens of said mortgages. The plaintiff acquired the title of the purchasers at these sales, and the printing presses are in its possession. The mortgages were assigned to the defendant, Dayton, who now represents the contributors of the money lent to the Star Printing Company, to secure payment of which the mortgages were given. The question now in contention is only a question of law.

The plaintiff claimed in its complaint that the chattel mortgages were invalid, because the consent of the corporators had not been obtained for the execution thereof.

The defendants contend (1) that as the plaintiff represented the purchasers of these chattels, who had notice of the execution of the mortgages before the sales, it is estopped from taking advantage of such a defect, if it existed; and (2) that, in fact, the written consent of the corporation to execution of the mortgages had been obtained, and was duly filed.

The plaintiff next contends that, as to one of the printing presses, it had been substituted after the first mortgage was executed, in place of another printing press, and that the consent of the corporation to the mortgage did not apply to the substituted mortgage.

That the money was loaned on the security of these mortgages, there is no question, and that the amount so loaned is wholly unpaid, ■ is also true. That the corporation and the lenders did in fact consent to the substitution of the mortgage on the new-printing press in place of the press theretofore mortgaged, is not denied.

The plaintiff’s contentions depend on its views as to the strict application of the law as it interprets it, and the question now to be considered is whether, the facts not being open to dispute, the decision of the learned trial judge on the law was correct. It seems to me that the purchasers of these printing presses at public sale, having full notice of the mortgages as liens on the presses, cannot take advantage of the alleged defect, as to want of consent to the mortgage by the corporation.

Whatever depreciation occurred of the price obtained at the sales, for these chattels, by reason of these liens, the purchasers reaped the advantage. That such depreciation must have been considerable cannot reasonably be doubted. It would be unjust and inequitable that they should now repudiate the lion. Gildersleeve v. Landon, 73 N. Y. 609.

The necessity of obtaining the written consent of corporators of the “ Star Printing Company” to these mortgages, depends on the interpretation of the act, known as the “ Manufacturers Act,” enacted in 1848 as amended by Chapter 517, Laws of 1864. There is no evidence in the case that it was incorporated under that act, and the trial judge finds only that the “ Star Printing Company” was a domestic corporation. But even if it were conceded that the assent of the corporators should have been obtained to the execution of these mortgages, such assent was, in fact, obtained. The assent of the corporators as set forth in writing and filed, was an assent “that the real and personal property of the Star Printing Company may be mortgaged.” This language was broad enough to warrant the cancelling of the mortgage on some of the chattels of the company, with the consent of all parties to the mortgage, and the substitution of another mortgage on other chattels of the company. This assent was not of itself a mortgage, but only a permission to mortgage, and authorized the substituted mortgage in question.

It should be borne in mind that the objection of the legislature in requiring such assent, was the protection of stockholders against improvidence, collusion, or unwise acts of the trustees, the governing body of the corporation, in incumbering the corporate property. Rochester Savings Bank v. Averell, 96 N. Y. 473. There is no reason to believe that it was any part of the intention of the legislature to supply purchasers of corporate property with means of defeating the just claims of bona fide creditors of a corporation, when the existence of such claims and of the liens depending thereon were well known to the purchaser, and the justice and validity of such claims were unimpeached. Purchasers of the mortgaged property of the corporation were sufficiently protected from loss, by notice of the existence of the liens, given at the time and at the place of the»sales.

On the whole case, I am satisfied that the findings of the trial judge were warranted by the facts, and that the judgment appealed from should be affirmed, with costs.

Sedgwick, Oh. J.y concurred.


text:
    PATRICK DERVIN, Appellant v. HENRY HERRMAN, et al., Respondents.

      Master and servant, duty of former to furnish lader with sound and suitable tools and machinery, and keep same -in repair.

    The relation of the master is not that of insurer of the safety of his servant, but the master is bound to use all reasonable care, diligence and caution for the safety of those employed in his business and while in his employ. He is bound to exercise ordinary care in providing his servant with sound and suitable tools and machinery while he is engaged in the prosecution of liis work, and the same must be kept in good repair. Ignorance by the master of defects in the instrumentalities, used by his servant in the performance of his work, is no defence when by the exercise of ordinary care and inspection the master could have discovered and remedied the defects, or avoided danger incident therefrom.
    In this case, the defendants knew, or- were bound to know, that the elevator had been under repair on the day of the injury to the plaintiff; that the repairs had not been completed, and the elevator was out of order. They also knew that it was the custom and duty of the plaintiff to close and fasten the iron doors over the elevator at night, when the day’s business was closed, and to use the elevator for that purpose, and they should have informed plaintiff of the condition of the elevator, or warned him not to use the same, or otherwise prevented its use, and his exposure to danger therefrom. It was a new element of danger, against which they were bound to put plaintiff on his guard, for the defective and dangerous condition of the defendant’s elevator on the evening of the accident, was not one of the risks of his employment which plaintiff assumed.

      Held, that there was enough proved and established by the plaintiff on the trial to support the conclusion that defendants had been derelict in the performance of the duty which, as masters, they owed to the plaintiff, and that they had not exercised in his behalf that ordinary care which the circumstances demanded, and to which plaintiff was entitled.
    Before Freedman and O’Gorman, JJ.

      Decided May 5, 1890.
    Appeal from- a judgment entered upon the dismissal of the complaint in favor of defendants and against the plaintiff.

      G. Washbourne Smith, for appellant.

      Otto Horwits, for respondents.
   By the Court.—O’Gorman, J.

In this ¿ase, the plaintiff’s complaint was dismissed, on the evidence, as presented on his behalf, and the question on this appeal is, whether the learned trial judge erred in so ruling. The action was brought by the plaintiff, a servant of the defendants, to recover damages for severe personal injuries incurred by him, by reason of the failure of the defendants to perform their duty to the plaintiff, as masters.

The evidence, as presented by the plaintiff, disclosed these facts: The defendants were dry goods merchants at 466 and 468 Broadway, New York City, where the injury occurred on the 7th day of August, 1882. Their store consisted of the first floor in this double building and the basement below, and extended from Broadway to Crosby street. The ceiling of the basement was on a level with the sidewalk, and was seventeen feet above the floor.of the basement. This basement was used for the stock and as a shipping room. On the Crosby street side there was an Otis sidewalk elevator, which ran from the basement up to the sidewalk, and was used to take goods out of, and into the basement. The opening or hatchway at the mouth of the elevator was on the sidewalk, a'nd was closed by two heavy iron doors fastened at the sides on hinges. When let down the doors came together at the middle of the hatchway, and an iron staple in one door went through a hole in the other door, and they were fastened by an iron pin put through the staple on the under side of the doors.

The plaintiff, at the time of the injury, was, and for three years prior thereto had been, in the employ of the defendants as a general porter, and it was part of his duties, every second or third week, to close the store, including the closing of the iron doors over the elevator, other employees closing the rest of the time. The plaintiff, during the three years he was with defendants, closed the iron doors over the elevator in this way: He would go out on the sidewalk at the rear of the store and let down the iron doors over the hatchway. He would then go in the store and down the stairs to the basement, get on the platform of the elevator, pull down on the chain a little, and run the elevator up far enough so that he could reach up and put the iron pin through the staple on the underside of the iron doors. When up far enough to do this he would pull upon the ch lin a little, and stop the elevator; then reach up and put the iron pin through the staple ; then pull up on the chain, and run the elevator down to the bottom. Other porters closed the iron doors over the hatchway in the same way during the three years plaintiff was with defendants, and before he came. The defendants told plaintiff, through Campbell, to close in this way. The defendants had seen plaintiff use the elevator in this way time and time again, and had not objected. They had provided no other means for closing the iron doors. Campbell was the defendants’ shipping cleric, and. had full charge of down stairs, and of the porters there. His duties kept him usually in the basement.

On the 7th of August, 1882, between six and half-past six o’clock in the afternoon, the plaintiff began to close, as usual. He went to the sidewalk on the Crosby street side, and let down the iron doors over the hatchway, then went into the store and down the stairs to the basement, stepped upon the platform of the elevator and pulled down on the chain to run the elevator up far enough so that he could reach up and put in the iron pin. After the elevator had .ascended far enough for him to do this, he pulled up on the chain, as usual, to stop the elevator, but it would not stop. It carried him up and crushed him against the iron doors, injuring him severely. On the day of the injury, the engine and elevator had been undergoing repairs, and the repairs were not completed at the time the injuries were received. The plaintiff did not know that the elevator had been undergoing repairs,and had no notice from the defendants, or anybody, that the elevator was in a dangerous condition.

Defendants knew that the elevator was undergoing repairs that day, and knew as late as four o’clock in the afternoon, that the repairs would not be completed that day, but they did not give the plaintiff any notice or warning that the elevator was out of repair. McCoy, the “ elevator man,” who did these repairs on the elevator, left off working at about five o’clock in the evening, having effectually shut off the steam power, intending to finish his work on the following morning. The elevator, as he left it that evening, was not in its ordinary working order. A short time before he left, Herraran, one of the defendants, went into the basement, and had a conversation with Campbell, the shipping clerk. Herr-man said—“ These goods must be shipped.” Campbell said—The elevator is not in order—They could not be. Herraran replied—“ Damn it, they must go.” He then left the basement. Some time afterwards, between five and six o’clock, Campbell had the goods put in the elevator, and they went up. The steam must have been put on the elevator, but by whom it was applied, the testimony does not show. A few minutes after these goods had been thus raised by use of the elevator,—about six o’clock—the plaintiff, attempting to shut the elevator for the night, as was his duty, and in the manner ordinarily used by him for that purpose, was caught in the elevator and crushed by reason of the absence of the means he had always found in the elevator to stop its ascent when he pleased. This defect was the result of the repairs which had been begun that day, but left unfinished.

The question now is, whether, giving to this evidence, and to all legitimate presumptions and inferences derivable therefrom, the force and effect most favorable to the plaintiff,v the dismissal of the plaintiff’ s complaint was error, inflicting injustice on the plaintiff. Did any failure.of the defendants to perform the duty they owed to the plaintiff as their servant, cause the injury to him ?

In considering this question, it must be borne in mind that the relation of the master is not that of insurer of the safety of his servant. But the master is bound to use all reasonable care, diligence and caution in providing for the safety of those in his employ.

The master is bound to exercise ordinary care in seeing to it that his servant is furnished with sound and suitable tools and machinery in the prosecution of his work, and that the same be kept in repair. Benzing v. Steinway, 101 N. Y. 552. “ Ignorance by the master of defects in the instrumentalities used by the servant in performance of his work is no defence * * * when, by the exercise of ordinary care and inspection, the master could have discovered and remedied defects, or avoided danger incident therefrom.” lb. p. 553.

The defendants in this case knew, or were bound to know, that the elevator had been, on the day of the injury to plaintiff, under repair ; that the repairs had not been completed, and that the elevator was out of order. They knew, also, that it was the duty and custom of the plaintiff to shut the iron doors and use the elevator for that purpose at night, when the day’s business was done. The energy of the language used by one of the defendants, in telling Campbell that the goods should be got up, notwithstanding his knowledge that the elevator was out of order, may be presumed to have been the inducing cause of the use of the elevator by defendants’ men, and the application of steam power necessary for its use. If the elevator had not been thus put to work, in its then incomplete condition, there is no reason to believe that the plaintiff would have received the hurt. During all that day, and especially after the' “ elevator man” left off work, the elevator was in a condition, unsafe for use by the plaintiff, in shutting it for the night, as was his duty to do, and in the manner which he had always adopted. The defendants were hound to know these facts, and they were bound to warn the plaintiff of these facts and of the new danger to which he was exposed. It was a new element of danger, against which they were bound to put plaintiff on his guard. 1 Sherman & Redfield on Negligence, § §195, 203:. Corcoran v. Holbrook, 59 N. Y. 520, 521.

The defective and dangerous condition of the defendants’ elevator on the evening of the accident here, was not one of the risks of his employment, which plaintiff assumed.

In my opinion there was enough proved on the part of the plaintiff, on the facts in evidence, and on the presumptions and inferences naturally and reasonably deducible therefrom, to warrant a jury in finding that the defendants have been derelict in the performance of the duty which, as masters, they owed to the plaintiff; that they did not exercise on his behalf the ordinary care which the circumstances called for, and that the dismissal of the plaintiff's complaint, was error.

The judgment should be set aside, and a new trial ordered, with costs to the appellant to abide the event.

Freedman, J., concurred.


author: By the Court.—Dugro, J.

text:
    DENNIS W. MORAN, Respondent v. THE MURRAY HILL BANK, Impleaded, &c., Appellant.

      Assignment of building contract to secure loan and mechanics’ liens for work and materials on building, relations to each other.

    One Duffy had a contract with the city of Now York, through the commissioners of the Eire Department, for the erection of a building for said department that ho fulfilled, and there became due to him for the same, the sum of $12,516.73. Before he completed the contract he obtained a loan from the appellant of $5,000, and, in consideration of such loan, assigned to the appellant the moneys due on the contract, to the amount of $6,000. One of the respondents, Lewis O. Tufts, had furnished work and materials for that building, to Duffy, and on or about the 14th day of December, 1886, and immediately after the assignment to the appellant, Duffy assigned unto the said Tufts the sum of $5,000 out of the final payment due or to become due to Duffy upon the contract. Subsequently, Dennis W. Moran, the plaintiff and respondent, and others of the respondents, including the said Tufts, who had furnished work and materials to Duffy for this building, respectively filed liens against this fund or the money from this contract, and several actions were commenced to foreclose these liens, which were finally consolidated into this action, which resulted in the said liens, excepting three, being allowed, and in precedence of appellant’s claim of $6,000 under and by virtue of the said assignment.
    The appellant claimed on the trial, and on the appeal from the judgment below, a reversal as to so much of the judgment as favored the recognition and approval of any lien in favor of Tufts as against appellant’s claim on the money or fund, by virtue of the assignment, on the following grounds, (a) The defendant Tufts, by accepting the assignment from Duffy of all the moneys duo or to grow due from the city to him under his contract, thereby waived and lost all right to file and maintain, a lien. (5) Having accepted said assignment subject to a prior assignment to the appellant, Tufts is estopped from contesting the validity of the assignment to the appellant, (c) The lien of Tufts is a nullity because no action was ever commenced to enforce it and no Us pendens ever filed. It has expired by limitation, (d) Tufts should-have been compelled by the court below to elect one of the two remedies upon which he claimed. Held on appeal, on the first ground (a),'that the assignment was in effect of moneys due to Duffy after the discharge of all mechanic’s liens, such as would have been due to Duffy except for the liens; Duffy could not assign more than this. That Tufts’ lien right, was superior to his right acquired by the assignment, and the acceptance of the assignment cannot be assumed to have been a waiver of his lien. A lienor’s rights will not be considered waived unless the facts clearly indicate an intention to abandon them, and such an intention cannot be presumed from his acceptance of an assignment under the facts in this case, for it does not appear that the assignment was accepted as a payment of the indebtedness, and, unless it was so accepted, the debt remains, and the right of lien continues to exist as incidental thereto.
    As to the question of estoppel claimed by appellant (6) Held, that it could only avail, if at all, in case the acceptance of the assignment constituted a waiver of the lien.
    In regard to the lien of Tufts’ being a nullity (c) Held, that Tufts’ lien expired because of non-compliance with the statute in regard to the commencement of an action and filing of a Us pendens, etc. The exception to the finding of the referee, that Tufts set up his lien by answer in the McShane action in which a Us pendens was filed, is well taken, for the case is without evidence to support that finding.
    As to the election of remedies (d), Tufts’ remedies were not inconsistent. He had a right to rely upon the lien, and assignment, but he Could have only one satisfaction. Judgment affirmed except that part which adjudges that Tufts had a valid lien on the fund superior to the appellant, and as to that part reversed.
    Before Sedgwick, Ch. J., Truax and Dugro, JJ.

      Decided May 5, 1890.
    Appeal from judgment entered upon the report and findings of a referee.

      Samuel Untermyer, for defendant—appellant, the Murray Hill Bank, argued:—
    I. The claim of Tafts under his assignment and lien cannot be sustained. He waived his right to file a lien. His mechanic’s lien is void and his assignment subsequent to that of the appellant. He should have been compelled to elect whether he claimed upon the assignment or the mechanic’s lien. The judgment sustaining his recovery upon the assignment and lien cannot be sustained for the following reasons: (a) By accepting the assignment he waived and lost all right to file a mechanic’s lien. (b) Having accepted the assignment subject to a prior assignment to the bank, he is estopped from contesting the validity of the bank’s assignment, (c) No action having been commenced to enforce his lien and no Us pendens having been filed by him, his lien has expired by limitation. (d) Tufts should have been compelled to elect one of the two remedies upon which he claimed.
    II. The defendant Tufts, by accepting the assignment from the contractor Duffy of all the moneys due or to grow due from the city to him, under his contract, thereby waived and lost all right to file a lien. The defendant Tufts not only admits" that at the time he filed the lien he held an assignment of all the moneys then due or which might thereafter be due from the city to the contractor, as security for the payment of his claim, but he affirmatively asserts in his answer in this case, and he insisted throughout upon the trial, that by virtue of this as ’ signment he was entitled to recover so much of the moneys in suit as might be necessary to pay his claim. This clearly presents the proposition: Can a party furnishing labor or material take all the rights and interests of his debtor in the property, and then, whilst those rights are in his hands, file a lien against them to the detriment of subsequent claimants ? An analogous case would be this: Suppose A, who is the owner of land, erects a building and employs B to furnish the material, and thereafter conveys the property to B to secure him for his claim. Can B, holding the title to that property, file a lien against it to the exclusion of other claimant's ? Such a result, would be monstrous, and if successful could'defeat any lienor. In the case of Tunninger v. Kofald, 7 Oregon, 228, it was held that “where a mechanic has a lien upon real property for material and labor furnished by him in érecting a building thereon he waives the same by taking a mortgage upon that property to secure the amount due him, for which he holds a lien.” It is elementary law that a lien may be waived by the express agreement of the parties, or a waiver may be inferred from the acts of the parties. The intent to waive may be shown by the taking of a security inconsistent with the lien. Burrows v. Baughman, 9 Mich. 213; Kinzey v. Thomas, 28 Ill. 502; Brady v. Anderson, 24 lb. 110; Grant v. Strong, 18 Wall. 623; Weaver v. Demuth, 40 N. J. L. 238; Tunninger v. Kofald, 7 Ore. 228. In Grant v. Strong, 18 Wall. 623, a builder took a real estate security for the payment of the work which he was to do, and it was held that he waived his right to the mechanic’s lien. Mr. Justice Miller in delivering the opinion of the court said: “In short we are of the opinion that these agreements (referring to the agreements to accept security on real estate) show an acceptanee and reliance by Strong on another and very different security for the payment for his work, inconsistent with the idea of a mechanic’s lien, and that no such lien ever attached in the case.” In the case of Weaver v. Demuth, 40 N. J. L. 238, the court said: “The decision of the question proposed may be rested on the case of Burrows v. Baughman, 9 Mich. 213, which was the judgment of a court of well recognized authority. In a similar case it was there held that the statute creates no lien where the parties by their contract provide for a different security upon the same land for the same debt which the lien would not otherwise secure. The agreement for a particular kind of lien upon the same property, to which the mechanic’s lien would usually attach, must necessarily be exclusive of all other liens. Such must evidently be the purpose when the agreement is made, though they may not state it in express words, and such would be the construction which others, in dealing with the property, would ordinarily put upon it. In legal effect the contractor waives his lien to get another in different form. This he may do if he choose, for this is a statute designed for the benefit of individuals of a particular class, and not for general objects, hence its benefits may be waived.” Quick v. Corlies, 10 Vroom, 11. What more conclusive evidence of the intent to waive the lien could there be than the taking by Tufts from Duffy of a security which would render it impossible'for Tufts ever to file a lien if he retained that security? Tufts accepted his assignment of the moneys due on the final payment, which, by the very terms of the contract was to be reserved for such mechanics and material men who should file valid liens. That indicated a clear intention upon his part to waive his right to file a notice of lien. When he filed his lien he did not even repudiate the assignment, and when he brought his action to enforce that lien he asserted in the same pleading by which he claimed a lien on this fund that he held an assignment of that fund. If this -is not an illustration of the taking of a security inconsistent with the filing of a lien, it will be quite impossible to furnish such an illustration. The lienor takes unto himself the thing which he might otherwise subject to his lien, and then files a lien against it whilst it is yet in his hands. Then he goes a step further and brings an action to foreclose his lien upon the fund, the title to which is in him. The referee was of the opinion that Tufts’ right to pursue as many concurrent remedies as he might have is well settled, and he cited the cases of Hall v. Pettigrove, 10 Hun, 607, and Gambling v. Haight, 59 N. Y. 854, to sustain his views. We submit that the referee erred in considering the remedy upon the assignment and that upon the lien concurrent remedies. They are absolutely inconsistent with each other. Assuming the assignments to be valid, as the referee has found them io be, and that Tufts claimed upon his assignment, there would be no fund against which the mechanic’s lien could be filed.' Then, again, the case of Hall v. Pettigrove, cited by the referee, is no authority for the proposition which he asserts, and has no application to the facts of the case at bar. That was a case decided by the general term of the Second Department, where a person had taken a mortgage upon certain lands to secure him for materials furnished upon the building and also filed a mechanic’s lien against the building to which the materials were furnished. The mortgage was not against the same property against which the lien was filed. The question was not raised in that case, nor was it argued whether the acceptance of a mortgage was a waiver of the lien; the point raised seemed to be that the mortgage should be regarded as a payment or as a security of a higher nature than the original contract debt and that it ought to be held to extinguish it, and the court declined to sustain that point. Nor is the case of Gambling v. Haight, in 59 N. Y. 354, any authority for the proposition stated by the referee. That was an action upon a promissory note which was given to a sub-contractor as collateral security for the payment of work contracted to be done by him in the construction of a building. An action was pending for the foreclosure of a mechanic’s lien filed by the plaintiff for the' same claim against property, the title to which was in another party. It was held in that case that the action upon the note could be maintained, notwithstanding the fact that proceedings were pending for the foreclosure of the lien. There was no prior security given upon the same property against which the lien was filed, nor does it appear in the case whether the lien was filed before or after the acceptanee of the note, and the question was not raised whether the right to file a mechanic’s lien was waived. This is not a case of cumulative remedies, nor even of inconsistent remedies. It is a case in which the lienor has taken, unto himself the thing against which he might otherwise have a remedy. Upon the trial Tufts was frequently given an opportunity to waive his rights under the assignment and to claim upon the mechanic’s lien filed by him, but he insisted upon claiming under the assignment.
    III. The defendant Tufts having accepted the assignment of the moneys due or to grow due from the city under this contract, subject to the claim of the Murray Hill Bank, under the assignment of tho same moneys which had previously been made to it, is thereby estopped from contesting the validity of the assignment to the bank. Hartley v. Harrison, 24 N. Y 170; Freeman v. Auld, 44 lb. 50. In the case of Freeman v. Auld (supra), the court said: “The premises were purchased 'by the defendant and conveyed to him, 1 subject’ nevertheless to certain mortgages now a lien on said premises. * * * * In receiving his conveyance upon these terms, the defendant admitted and agreed that this $4,000 mortgage was a lien upon the premises. He cannot now deny it.”
    IV. The lien of Tufts is now a nullity, as no action was ever commenced-.to enforce it, and no Us pendens was ever filed. It has expired by limitation. The statute provides that an action must be commenced and a Us pendens filed within ninety days after the filing of the lien. Section 1817 of the Consolidation Act provides : “No lien provided for in this title shall be binding upon the property therein described, unless an action be commenced within ninety days from the filing of the same, and a notice of pendency of said action be filed with the comptroller.” Tufts is the'only party to the record who has failed' to file a notice of the pendency of an action, but he claims that as Moran andMcShane having commenced actions to which he is a party, the statute has been complied with as to him. He contends that a defendant can reap the benefit of the plaintiff’s proceedings. The appellant contends that each lienor must file a separate and independent Us pendens. Section 1836 of the Consolidation Act supports the appellant’s contention. It prescribes the method of discharging a lien. The statute says : “A lien may be discharged as follows : “1st. By filing a certificate of the claimant or his successor in interest, duly acknowledged and proved, stating that the lien is discharged. 2d. By lapse of time, when ninety days have elapsed since the filing of the claim and no action shall have been commenced to enforce the claim. 3d. By the satis-' faction of any judgment that may be rendered in actions to foreclose said liens or claims.” The case of McDermot v. McDonald, 50 Super. Ct. 153, is relied upon by Tufts. The case at bar is distinguishable from the reported case, for there the defendant was made a party, by reason of his having filed a mechanic’s lien. When Moran filed his lis pendens, however, Tufts had nothing more than an assignment. He was not made a party to this action because of the fact that he had filed a mechanic’s lien, and therefore the notice filed by the plaintiff could not operate as a notice on behalf of Tufts, who, when it was filed, only held an assignment. Now it is true that section 1830 of the Consolidation Act provides that “ all parties who have filed claims under this title, may, by an answer in such action, set forth the same, and the court in which the action is brought, may decide as to the extent, justice and priority of the claims of all the parties to the action.” But that section does not relieve a person who has filed a claim from complying with the other mandatory provisions of the statute. A party who has filed a claim must, within ninety days in order to keep his lien alive, commence an action and file a Us pendens. The statute contemplates the commencement of independent actions by independent lienors, for by section 1833 of the Consolidation Act, it is provided “ that when, separate actions are commenced the court in which the first action was brought, may, upon the application of the city, consolidate them.” The failure to file the Us pendens comes under the same principle which was decided in the. case of Prior v. White, 32 Him 14. That was a case under the Law of 18G2, which contained a statement providing for the discharge of the lien, “ by an entry of the clerk 'made in the book of liens, after one year had elapsed since the filing of the claim, stating that no notice has been given to him of the lienor’s steps to enforce the lien.” It was held in that case that by the lapse of time the lien was discharged. The court followed the case of Mushlit v. Silverman, 50 N. Y. 360. In that case the Court of Appeals said, “ when the Act declares, as it does, that a lien may be discharged in any one of several methods the happening of any of the events or the performance of any of the acts mentioned, operate per se as a discharge without the necessity of further acts by any person. The lién claimed by the plaintiff is a creature of-the statute and depends solely for its validity upon the Act creating it.” * * * * “ Such an act cannot be extended in its operation and effect beyond the fair and reasonable import of the words used, and the plaintiffs in their lien must bring themselves within its terms, and the lien must be shown not only to have been regular and valid in its inception, but to be a continuing and existing lien under the statute. This they have failed to do.” Then -again the later case of Danziger v. Simonson, in 53 Super. Ct. 158, is a substantial modification of the ruling in the case of McDermott v. McDonald. The question arose in that case whether it was necessary for a lienor, who filed a claim under a different act, but containing a similar provision in regard to the filing of a Us pendens to file a Us pendens in order to keep the lien alive. The lienor was a defendant in an action brought to forclose a mortgage. The referee in that case, Edward Patterson, Esq., held that it was absolutely necessary that a Us pendens should be filed. The referee said: “It appears affirmatively that neither of these defendants filed, a notice of Us p-endens within the ninety days required by the Mechanic’s Lien Law, and by the failure to do so they lost whatever rights in the mortgaged premises they might otherwise have acquired. Bones v. N. Y. Christian Home, 64 How. 509. The filing of the lien and the subsequent filing within the statutory limitation of time of a notice of Us pendens were absolutely necessary to give the defendants above named a standing in court to litigate.” * * * This court at general term affirmed that judgment. It is true that section 1813 of the Consolidation Act, as amended by the Law of 1883; which was construed in the Danziger case, contained a provision directing a party defendant who desires to enforce his lien, to file a Us pendens. Section 1813 (as amended) reads: “ And where a claimant is made a party defendant to any action brought to enforce any other lien, a notice of the pendency of such action must be filed by him or in his behalf.” The court, however, was of the opinion and held, that regardless of that provision the ‘defendant lienor was compelled to file a Us pendens. The court said: “ Section 1813 of the Consolidation Act as amended in 1883, does not apply to a case of this kind, i. e., to an action for the foreclosure of a mortgage. But if a mortgage is to be regarded as an ‘ other lien’ within the meaning of the section, then the defendants should have filed notices of Us pendens, for that is expressly required to be done.”
    V. Tufts should have been compelled to elect one of the two remdies upon which he claimed. The Murray Hill Bank was prejudiced and embarrassed at the trial by reason of the refusal of the referee to compel an election of remedies. It was impossible for the appellant to know upon which theory Tufts based his cause of action. The appellant was compelled .to contest the claim of Tufts without being apprized of the cause of action upon which he relied. When the complaint contains two causes of action, resting substantially upon the same facts, the plaintiff should be put to an election. Roberts v. Leslie, 14 J. & S. 76. In that case Judge Freedman said : “ Under the former practice the object of inserting two or more counts in one declaration, where there was in fact but one cause of action was to guard against an insufficient statement of the case, where a doubt existed as to the proper mode of declaring, and to provide, if possible, against a variance between the pleadings and the proof on the trial. The Code, by providing that amendments for the correction of the insufficient pleadings shall be liberally allowed, not only renders this practico unnecessary, but expressly requires the pleading of a cause of action to be reduced to a plain and concise statement of the facts constituting the cause of action, without unnecessary repetition. The plaintiff is no longer required to characterize his action by any particular appellation or averment. All he has to do is to set forth the facts upon which ho relies and let them speak for themselves, and this he is required to do without unnecessary repetition. The object is to secure singleness and unity in-the issue.” If the remedies are inconsistent, as we insist they were, there can be no question about the right to compel an election. Clapp v. Campbell, 124 Mass. 50.

      Austen G. Fox, for defendant-respondent Lewis C. Tufts, argued :—
    I. The referee was right in' refusing to compel the respondent to elect whether he would claim under' his lien, or under his assignment. (1). The respondent had the right to have his claim considered and sustained, either upon his lien, or upon his assignment. Gambling v. Haight, 59 N. Y. 354; Hall v. Pettigrove, 10 Hun, 609; Munn v. Cook, Supreme, Court, G. T., January, 1890, MSS. Opinion. In the present case, the appellant, by its answer, prays the court “ that the lien and claims of all the parties to this action be ascertained and the priorities thereof determined.” Section 8 of the act (Laws 1878, ch. 315) requires the court so to do. Plainly, if the respondent Tufts was bound to elect in this action, whether he would pursue his rights under his lien, or under the assignment, it must be that, if he had begun a separate action on the assignment, and that action was proceeding when his action to enforce his lien came on for hearing, he would have been required to suspend the prosecution of one or the other of his two actions. That is, of course, only another mode of saying the same thing. By uniting two claims in one action,he enlarges no right and limits no right, unless the two claims cannot lawfully be united, and, in such case, the point must be raised by demurrer. The precise point has been determined. Gambling v. Haight, 59 N. Y. 354. In that case the plaintiff was prosecuting an action on two promissory notes given for work. He was prosecuting also an action to enforce a mechanic’s lien for the same work. The court said: “ The primary obligation, founded upon the original agreement, including the statutory liability under the mechanic’s lien law, and the promissory notes of a third person collateral to it, may be enforced simultaneously, * * * but there can be but one satisfaction.” If the referee had found that the lien was defective, the primary obligation was still valid, and if there should remain a balance after the discharge of valid liens, then, and not till then, would the referee have to determine the question of priority of assignments between Tufts and the Murray Hill Bank. It is not a ease of inconsistent claims, but a case where a court must determine “ the liens and claims of all the parties,” and this the appellant came into court asking the court to do. In Munn v. Cook, supra, Supreme Court, G. T. January, 1890, MSS. Opinion, the plaintiff alleged certain agreements and a judgment of an English court. The court at special term held that the plaintiff could not rely on both, but the judgment was reversed. The court, per Daniels, J., said: “ All the evidence was legally and properly in the case. And she had the right to require its decision, not only upon the decree, but upon the agreements themselves. And if in the judgment of the court she failed in her position as to one, that failure did not prevent her from relying in support of her action upon the other.” (2). The acceptance by Tufts of the assignment in December, 1886, and of the note prior thereto, did not extinguish his right to file his lien in June, 1887. " Gambling v. Haight, (supra); Hall v. Pettigrove, (supra).

    II. The defendant Tufts was not obliged to begin an action to foreclose his lien, nor file a notice of the pendency of this action. (1.) The question has been decided under the Act of 1878, by virtue of which the liens, now under consideration, were filed. 50 Super. Ct. 153, McDermott v. McDonald ; cited Danziger v. Simonson, N. Y. Law Journal, Dec. 23, 1889. Court of Appeals. (2.) Tufts was a party to the suits of Moran, Candee & Smith and Campbell, which were consolidated into this action by order dated May 25, 1887. He filed his notice of lien June 27, 1887, and answered July 3,1887. Tufts was also ’ a party to the McShane suit, the lis pendens in which was filed July 1, 1887 after Tufts had filed his notice of lien, he answered therein July 29, 1887 and by the order of reference herein the McShane suit was consolidated with this action on October 6, 1887. This action is the McShane action as much as it is the Moran. It was mere chance whether Moran, Candee & Smith, Campbell or McShane should be plaintiff in the consolidated action. (3.) The defendant Tufts proved and, at his request, the referee found as facts, that in all the actions which had been commenced by the different lienors, notice of the pendency of each action was duly filed. In the Moran action, the Us pendens was filed February 19, 1887; in the Campbell action, March 11, 1887 ; in the Candee & Smith action, March 15, 1887 in the consolidated action, on June 23,1887 and in the McShane action, on July 2, 1887 or five days after Tufts had filed his notice of lien. Thus, under McDermott v. McDonald, supra, the point would have had no possible ground—for this action is the McShane action as much as it is the Moran action.
    III. —The lien of the respondent Tufts is valid. (1.) The referee has found in his favor on the facts. (2.) The respondent Tufts was not bound to set forth in his lien the fact that he had received an assignment and a note. Sec. 2 of the act (Laws 1878, ch. 315,) contains no requirement that the lienor shall make such a statement. The notice of liens sets forth “all just credits and offsets.”
    IV. —The referee was right in holding that the valid liens were superior to the appellant’s assignment. (1.) The assignment is of no effect as against lienors. The assignment is of moneys “ out of the third payment of all moneys due or to grow due in and by virtue of a certain contract.” By that contract, the third payment is provided for as follows : “ And on the expiration of thirty days after the entire work shall be completed in conformity with this contract, and the said parties of the first part shall have accepted the same, they will pay to the party of the second part (Duffy) the remainder of the sum of thirty- six thousand seven hundred and twenty-nine dollars.” But the city did hot accept the same until June 16,1887. (2.) The provisions of the contract between Duffy and the city require that any sum remaining in the hands of the city shall be held until the liens created under the statute shall be discharged. (3.) The appellant’s assignment was subject to the provisions of their assignor’s contract with the city. Murphy v. Bowery Nat. Bank, 30 Hun, 40. The “material men are entitled to protection over and above the assignees of the contractor.”
    • Thomas C. Ennever, for defendant-respondent, William McShane & Co,

      Alexander Thain, for plaintiff-respondent Dennis W. Moran.
   By the Court.—Dugro, J.

The appellant claims, with respect to so much of the judgment as favors Tufts, a reversal, for reasons stated by its counsel, as follows : (a) By accepting the assignment Tufts waived and lost all right to file a mechanic’s lien. (6) Having accepted the assignment subject to a prior assignment to the bank; he is estopped from contesting the validity of the bank’s assignment, (c) No action having been commence to enforce his lien and no lis pendens having been filed by him, his lien has expired by limitation, (d) Tufts should have been compelled to elect one of the two remedies upon which he claimed.

In support of reason “ a,” it is argued that the assignment conveyed to Tufts the very property he seeks to lien, and that to allow him after acceptance of the assignment a lien right, would be to permit him to lien his own property ; this position is not maintainable, as the monies liened and those assigned are not identical. The assignment was in effect of monies due to Duffy after the discharge of all liens. The monies liened were such as would have been due Duffy but for the liens. This distinction, arises through the existence of a provision in the contract that the City should deduct from the monies otherwise due under the agreement, the amount which might be allowed to lienors prior to the discharge of the notices of lien in one of the ways provided by law. Duffy could not assign more than he would be entitled to by virtue of his contract and its performance. Tufts’ lien right was superior to the right acquired by virtue of the assignment. The acceptance of the latter cannot, therefore, be fairly assumed to have been a waiver of the former. It simply gave Tufts’ ’ an opportunity to obtain his money, as against Duffy, without filing a lien and being under the necessity of foreclosure.

A lienor’s right will not be considered waived unless the facts clearly indicate an intention to abandon his rights, and such an intention is not to be presumed from the mere fact of an assignment such as is disclosed by the evidence. It does not appear that the assignment was accepted as a payment of the indebtedness, and unless it was a payment the debt remains and the right of lien still exists as incidental thereto.

As to reason “5,” it may be said the estoppel claimed could only avail, if at all, in case the acceptance of the assignment constituted a waiver of the lien.

The reason “c,” presents a more difficult question. It was the legislative intent that no lien should be binding unless an action was commenced by the lienor, as plaintiff, within ninety days from the filing of the lien, and a notice of pendency was filed; except in the cases referred to by the language “ But all parties who have filed claims under this title may by answer in such action set forth the same ” in section 1830, of the Consolidation Act, (McDermott v. McDonald, 50 Super. Ct. 153), and if in the action, in which a claim is set up by' answer, a proper notice of pendeney is filed by the plaintiff, the defendant need not file a similar notice. The defendant Tufts having filed no claim at or prior to the commencement of the Moran action, was not in that action one of those referred to by the words “ parties who have filed claims under this title.” These words apply only to parties who have filed claims and whom the plaintiff by section 1830 is obliged to make parties defendant. Tufts, therefore, had no right conferred by the statute to set up his lien in the Moran action. He should, to preserve his lien, have complied with section 1827, or answered in an action in which he was a necessary party defendant, as allowed to do by section 1830. The latter course he claims to have adopted, but the "claim is not well founded. . The referee finds that Tufts set up his lien by answer in the McShane action ; in this action a notice of pendency was filed, so that, if the finding is correct, the statute has been complied with, but an exception to the finding is well taken, for the case is without evidence warranting the conclusion.

(“cl”) Tufts’ remedies were not inconsistent. He had a right to rely upon the lien and assignment. He could, however, have had but- one satisfaction.

I find no error in the allowance of the claims of Moran and McShane.

The judgment should be affirmed, except that part of it which judges that Tufts had a valid lien on the fund superior to the claim of the appellant, and as to this part of the judgment it is reversed and a new trial ordered, with costs to abide the event. Costs of appeal to Moran, McShane, and Candee & Smith, to be paid by the appellant.

Truax, J., concurred.