author: Bradley, J.

text:
    Frank C. Vinton, as Supervisor of the Town of Persia, Respondent, v. The Board of Supervisors of Cattaraugus County and Henry O. Wait, Appellants.

      Failure of a county treasurer to apply tax money to pay town railroad bonds — action therefor by a town against the county — county entitled to credit for money applied improperly to the benefit of the town.

    A town lias the right, by its supervisor, to maintain an action against the county ior the failure of the county treasurer to follow the directions of chapter 907 of the Laws of 1869, as amended by chapter 288 of the Laws of 1871, in regard to the disposition to be made by him of moneys collected by taxes upon the assessed valuation of a railroad in such town.
    Upon the trial of an action brought by the supervisor of a town against the board of supervisors of the county to recover the money misappropriated by its county treasurer, resulting from his failure to follow the directions of chapter 907 of the Laws of 1869, as amended by chapter 283 of the Laws of 1871 — said act providing in effect that all taxes, except school and road taxes, collected in any town on the assessors’ valuation of any railroad within it, for which the town should issue its bonds to aid in the construction of such railroad, shall be paid over to the county treasurer, and that it shall be the duty of such county treasurer, with the money thus collected and paid over to him', to purchase such bonds or invest the money in the manner therein prescribed as a sinking fund for their redemption and payment — it appeared that in each year a specific sum was collected by tax upon the taxable property in the town to make payment of the interest and upon the principal of bonds so issued, and that the amount of money so collected for such purpose was paid over to the railroad commissioners of the town and was so applied in payment of the interest upon and by way of redemption of the bonds which had been issued by the town in aid of the railroad.

      Held, that while such money was not paid upon the bonds by the county treasurer, nor the money derived from such tax on the railroad property and paid over to him set apart as directed by the statute, yet the benefit accruing to the town from such payment through its railroad commissioners was practically the same, and that the county should have credit for the amount so collected and paid in to the railroad commissioners.
    It appeared that in each year a certain sum of money was levied and assessed against the railroad company and a proportion thereof paid to the county treasurer and applied to the payment of State and county taxes.
    The tax which was levied each year was levied without reference to the requirement of the statute, that money received as taxes from the railroad company should be paid over to the county treasurer to purchase such bonds or to invest the money received as therein provided, and if the money so collected from such railroad had been applied as directed by the statute it would have been necessary to have raised an additional sum upon tlie assessed valuation of property in tlie town other than that of the railroad company.

      Held, that as a portion of the money so collected from such railroad company was actually appropriated and applied to the benefit of the town, it would be inequitable to include the amount of such portion in a recovery against the county.
    ' Appeal by the defendants, Tlie Board of Supervisors of Catta-raugus County and another, from a judgment of the Su]ireme Court in favor of tlie plaintiff, entered in the office of the clerk of tlie county of Cattaraugus on the 6th day of September, 1894, upon the decision of the court rendered after a trial at the Cattaraugus Special Term.
    In 1873 the town of Persia, in the county of Cattaraugus, issued’ its bonds to the Buffalo and Jamestown Railroad Company' to the • amount of $29,000 in aid of the construction of its railroad: It was constructed and has since become known as the Buffalo and Southwestern railroad.

      Norman M. Allen, for the appellants.

      Leonard & Sprague and William Woodbury, for the respondent.
   Bradley, J.

The bonds of the town of Persia w.ere issued pursuant to chapter 907. of the Laws of 1869, as amended by chapter 283 of theLawáof 1871. This action is founded upon the fact that the moneys arising from taxes collected upon the assessed valuation of the railroad in the town were by the treasurer of the county misappropriated and diverted from the purposes to which he was directed to devote their use by. the statute, which provided in effect that, all taxes except school and road taxes collected in any town on the assessors’ valúation of any railroad within it, for which the town should issue its bonds to aid in the construction of such railroad, should be paid over to the county treasurer; that it should be his duty with the money thus collected and paid over to him to purchase such bonds or invest' the, money in the manner mentioned therein .'as a sinking fund for their redemption' and payment. (Laws of'1871, chap. 283, §1.)

¡ Although the moneys collected on the assessment ‘of tlie railroad, other than school and road taxes, were annually paid over to the county treasurer, tbe statutory direction was not observed by liim, but those moneys were treated in distribution as were the moneys collected on the assessed valuation of other property within the town, and, therefore, contributed proportionately to the fund which was annually applied to the payment of State and county taxes.

The controversy now relates only to the moneys collected on the assessments of the railroad property in the years 1879 to 1884 inclusive, since the recovery for moneys collected in the years pre ceding 1879 was, as held by the trial court, barred by the Statute of Limitations. The moneys derived from such assessments and paid over to the county treasurer were, in 1879, $303.15 ; in 1880, $314.08 ; in 1881, $249.74; in 1882, $278.14; in 1883, $305.66; in 1884, $280.02. For the aggregate amount of those sums, and interest upon them respectively to June 4,. 1894, amounting together to the sum of $2,928.29, judgment was directed for the plaintiff.

The right of a town by its supervisor to maintain an action against the county for the misappropriation by its treasurer, resulting from his failure to pursue the direction of the statute before mentioned, is well settled by adjudicated cases. (Bridges v. Board of Supervisors of Sullivan County, 92 N. Y. 570; Strough v. Board of Supervisors, 119 id. 212; Crowninshield v. Supervisors, etc., 124 id. 583; Kilbourne v. Supervisors, etc., 137 id. 170.)

The question here has reference to the extent of the recovery. In each of those years a specific stun was collected by assessment upon the taxable property in the town to make payment of the interest and upon the principal of such bonds, and the amount of moneys so collected for such purpose was paid over to the railroad commissioners of the town, and so applied in payment of the interest upon and by way of redemption of the bonds.

The trial court found that of the total amount so paid to the railroad commissioners of the town in each year the following sums were the portions thereof derived from the taxes levied and assessed against the railroad company in the town, that is to say : In 1879, $179.25 ; in 1880, $166.42; in 1881, $124.99; in 1882, $181.49 ; in 1883, $174.05; and in 1884, $167, making together $993.20. To that extent, therefore, the town had the benefit of the application to the payment of its bonds of the moneys collected during those years upon the assessed valuation of the railroad property. It is true that it was not paid upon those obligations by the county treasurer, nor was the money derived from such assessment and paid over to him as before mentioned set apart as directed by the statute, but the beneficial effect to the town to the extent of such payment through its railroad commissioners was practically the same, and no good reason appears why the county should not have credit for it in this •action.

The trial court also found that of the whole taxes levied and •assessed in the town for those years there was paid to the town officers for local town purposes the following amounts of the taxes levied and assessed against the railroad company, to wit: In 1819, •$22.71; in 1880, §43.73 ; in 1881, $44.49 ; in 1882, $31.42 ; in 1883, $37.26 ; and in 1884, $27.49, making together $207.10, and that of the taxes so levied and assessed against the railroad company in those years the proportion thereof paid to the county treasurer and applied to the payment of State and county taxes was as follows: In 1879, $101.19 ; in 1880, $103.93; in 1881, $80.26; in 1882, $65.23 ; in 1883, $94.35; and in 1884, $85.83, making together $530.79.

On this state of facts it appears that the town of Persia thus had the benefit of all the moneys levied and collected as taxes upon the property of the railroad company in the town during the years in question except the sum last mentioned. The question arises whether by reason of the failure of the county treasurer to pursue the direction of the statute in respect to the money collected upon the assessment of the railroad property, the county should be denied credit in this action for a sum equal in amount to the portion of the money so collected of the railroad company which went to the railroad commissioners and the officers of the town for its local purposes. The answer given by the counsel for the respondent to this suggestion is to the effect that the receipt by the town of -what was due to it on one demand did not pay what was due to it on another, and that the default in duty of the treasurer was in not applying or investing the specific taxes as he was required to do for the benefit of the town.

It is true that in not so applying the money derived from the •assessment of the railroad property the treasurer clearly disregarded bis duty. But if he had done as the statute directed, the tax levied (assuming the amount which was so directed had been annually levied) upon the assessed property of the town in each of those years would have been insufficient in amount, to answer the' purposes for which the- tax levy was made as represented by the tax roll and warrant delivered to the collector. It seems that the tax was levied each year without any reference to the requirement of the statute before mentioned; and it may be assumed that it was not contemplated, in making the tax roll, that any money would be set apart by the county treasurer for the redemption of the bonds, or that any moneys derived from taxes other than those expressly levied generally upon the assessed property of the town for such purpose would be applicable to the payment of the bonds. 'Otherwise it would have been necessary to have collected during those years the further sum of $737.89 by a tax upon the assessed valuation of property in the town other than that of the railroad company. The company would by the tax on its property have been charged with its proportion of the tax rate requisite to produce that amount from levy on the other property in the town, and the sum applicable to the redemption of - the bonds would have been increased in amount equal to that so realized from the company. So that while the town was relieved from the levy of taxes to the amount of the deficiency in the fund applicable to the State, county and town taxes, it failed to derive from the railroad company the amount which should have been collected from it to apply upon the town bonds. But the latter-fact requires no consideration, as the inquiry in the present action relates only to the moneys which were actually derived from the taxes levied upon the assessed valuation of the railroad property.

While it may be said that the town in some sense was benefited by the application of the money collected from the railroad company to the payment of the State and county taxes, since the assessable property in the town was chargeable with the payment of its quota of those taxes, there is a distinction in the beneficial nature to the town of the moneys thus applied and those which were appropriated to the payment of its bonds and local town expenses. The ntoneys expended for the latter purposes were devoted to the use of the town, and it is difficult to see any reason founded upon equitable considerations why the assessable property in the county should be charged with the payment to the town of the amount of those moneys which had been thus applied to its use and benefit.

Nor does the adoption of such an arbitrary rule seem justified by any principle applicable to the present case.

In Bridges v. Supervisors (92 N. Y. 570) and in Strough v. Supervisors (119 id. 212) it was said that an action for money-had and received was a proper remedy for relief of a town for the cause upon which this action is founded.

Whether strictly so or not, such is the nature of an action at law brought in behalf of a town to recover the amount misappropriated by the county treasurer in the manner alleged in the case at bar. In the complaint in this action equitable relief was demanded, but the facts were specifically alleged, and as the defendants answered the complaint, the form of relief demanded became immaterial, and judgment was directed and entered as in an action at law for a specific sum. This was regular in view of the facts as alleged and determined. (Code Civ. Proc. §-1207.)

The principles applicable to an action for money had and received are no less applicable to the present one, as such in its nature and purpose. In that view it is to be determined upon equitable considerations consistent with the legal rights of the parties, and the question as between them is what amount according to equity and' conscience is the plaintiff entitled to recover against the defendants. (Wright v. Butler, 6 Wend. 284; Eddy v. Smith, 13 id. 488; Buel v. Boughton, 2 Den. 91; Cope v. Wheeler, 41 N. Y. 303; Hathaway v. Town of Cincinnatus, 62 id. 434.) The application of this doctrine to the present case requires the court to look beyond the mere fact of the failure of the treasurer to perform the statutory direction, to see the consequences resulting to the town by reason of such default, and as it appears that a portion of the sum in question was actually appropriated and applied to the use and beneficial purposes of the town it would be contrary to equity and conscience to include the amount of such portion in the recovery against the county, and in the view here taken the plaintiff is not entitled to recover it in this action.

In Matter of Clark v. v. Sheldon (134 N. Y. 333) neither the town,. by its supervisor, nor the county, by its board of supervisors, was a party; the proceeding was-instituted by a taxpayer-of the town-of Sodus against tlie treasurer of "Wayne county pursuant to tlie statute to compel liim to apply, as there directed, the moneys derived from the taxes upon the railroad property there mentioned. (Laws of 1871, chap. 283, § 1.)

That case, therefore, has no necessary application to the question in this one.

These views lead to the conclusion that the judgment should be reversed and a new trial granted, costs to abide the event, unless the plaintiff stipulates to reduce the recovery, exclusive of costs, to $530.79 and interest on $101.19 from June 1, 1879 ; on $103.93 from June 1, 1880; on $80.26 from June 1, 1881; on $65.23 from June 1, 1882; on $94.35 from June 1, 1883, and on $85.83 from June 1, 1884.

If the plaintiff so stipulates the judgment be modified accordingly, and as modified affirmed, without costs of this appeal to either party.

Ward, J., concurred; Lewis, J., not sitting.

So ordered.


source: Caselaw Access Project

author: Bradley, J.:

license: Public Domain

text:
    Hannah Smith, as Administratrix, etc., of George W. Smith, Deceased, Respondent, v. The Empire Transportation Company, Appellant.

      Master and servant — ■'place of work becoming unsafe from the manner in which the work is being conducted • — •master not liable for injuries resulting therefrom.

    The fact that the place where services are being performed may become unsafe during the progress of the work, resulting from the manner in which the work is done by co-employees, furnishes no ground for charging the master with liability for personal injuries occasioned by the unsafe condition thus produced.
    Upon the trial of an action brought to recover damages arising from the death of the plaintiff’s intestate, caused by alleged negligence, it appeared that the plaintiff’s intestate and others were at work in the hold of the defendant’s steam propeller, for the purpose of relaying the wooden floor, which at the close of the previous season had been taken up and placed in sections against the stanchions extending from the keelson to the main deck in line along the center the whole length of the midships.
    The distance between the stanchions was a little less than four feet, except at the hatch, where two of them were separated by the distance of eleven feet and seven inches at the floor, and so inclined that at the deck they were seven feet and seven indies apart. The wooden flooring was in thickness a little more than two inches, and was in sections of eight and one-twelfth feet in length and five and eight-twelfths feet in width, and when laid they made three courses on each side of the line of stanchions. As they were placed standing against the stanchions when taken up, all the sections had tlie direct support thereof, except those sections which were at or under the hatch, where the distance between the stanchions was greater than the length of the sections. There they were placed against the ends of the others, which overlapped the stanchions on each side of the wide opening.
    While the plaintiff’s intestate was engaged in painting a portion of an iron tank under the hatch on the starboard side of the boat some of the workmen were engaged in removing the sections standing on the port side of the line of stanchions, and in doing so a section, which had only the support of the overlap of others resting against the stanchions, fell upon the plaintiff's intestate, producing the injury which resulted in his death.

      Held, that the removal of the support of the section and its fall upon the plaintiff’s intestate were caused by the manner in which the workmen conducted the work in which they were engaged, and that the consequences to the decedent were within the hazards incident to the service, and which were assumed by him when he entered it;
    That as the flooring stood when the work was commenced the danger of accident was not within reasonable apprehension ; that the accident which followed could not have occurred otherwise than in the process of the work of removing the means of support furnished by some of the sections to others beneath the hatch, and that the defendant was not chargeable with negligence.
    Appeal by the defendant, Tlie Empire Transportation Company, from a judgment of tlie Supreme Court in favor of tlie plaintiff, entered in tbe office of tlie clerk of tlie county of Erie on tlie 8th day of May, 1S95, upon tlie verdict of a jury rendered after a trial at tbe Erie Circuit, and also from an order entered in said clerk’s office on tlie 8th day of May, 1895, denying the defendant’s motion for a new trial made upon tlie minutes.'

      John G. Milburn, for the appellant.

      Mackey & Draper, for the respondent.
   Bradley, J.:

The plaintiff’s intestate, while in the service of the defendant, in March, 1894, received an injury resulting in his death. He and others were engaged in the hold of the defendant’s steam propeller, in the port of Buffalo. The purpose of the work was -to relay the wooden floor, which at tlie close’ of the season of 1893 liad been taken np, and. placed in sections against the stanchions extending from the keelson to the main deck in line along the center the whole length of the midships, 100 feet.

The distance between the stanchions was a little less than four feet, except at the hatch, where two of them were separated by the distance of eleven feet and seven inches at the floor, and so inclined that at the deck they were seven feet and seven inches apart. The wooden flooring was in thickness a little more than two inches, made of oak and pine lumber, and was in sections, eight and one-twelfth feet in length and five and eight-twelfths ■ feet in width. When laid they made three courses on each side of the line of stanchions.

As they were placed standing against the stanchions when taken up, all the sections had the direct support of the stanchions except those sections which were at or under the hatch, where the distance between the stanchions was greater than the length of the sections. There they were placed against the ends of the others, which overlapped the stanchions on each side of this wide opening. The workmen had scraped and painted the iron surface of the water tank to be covered by the floor on the starboard side, except a space along near the stanchions which had been occupied by the sections standing there. They had put down the outer courses of the floor sections and laid upon them the sections to constitute the course adjacent to the stanchions on that side. The plaintiff’s intestate was engaged in painting the uncovered portion of the iron tank under the hatch on the starboard side when a section of the floor standing on the port side of the line of stanchions fell upon him, producing the injury in question. Some of the workmen were then engaged in removing the sections standing on the port side of the line of stanchions, and laying them on that side, and it was on the removal of one of them that the section fell on the plaintiff’s intestate. As the one that fell had only the support of the overlap of others resting against the stanchions, the fall of it was evidently directly attributable to the removal of one or more of the sections standing on the port side.

The evidence of the only witness who gave any description of the occurrence was that after they got through on the starboard side they went over to the port side. There were some sections standing up under this hatch, and these sections were lapped so as to hold them there secure. After we had taken five or six, something like that, down, and laid them on the port, side we took bold'of another one that -was standing there and put it in its place and somehow or another this section fell over upon Smith.” : .

The only question requiring consideration is whether there is any support in the evidence for the charge of negligence on the part of the defendant.

When the decedent went to work for the defendant .he assumed the ordinary hazards incident to the service, which included the consequences of the negligence of his co-employees. The second mate, who was foreman of this work in which they were engaged, was the co-employee of the other workmen. (Mahoney v. Vacuum Oil Co., 16 Hun, 519, and cases there cited.) The trial court so held, but submitted to the jury the question whether or not the defendant was chargeable with negligence for not furnishing a safe place for-the decedent to' do the work which.'he was employed to perform. -The duty of the defendant was to use'reasonable care to that end, and if it appears that the injury was attributable to the failure of the defendant to do so the charge of its negligence is 'Supported. When the decedent went into the defendant’s service in the hold of the steamer the sections of the wooden flooring were standing on either side of the .line-of stanchions. The place appeared to be and in the then situation was entirely safe.

The safety under the hatch on the starboard- side near the line -of the stanchions may have been reduced by the'removal of the standing sections from that side. But the opposite section on the port side, which afterwards fell, was not dependent upon them for support. It remained standing after they were removed. The disturbance which caused the section to fall was occasioned by the removal of one or more of the sections on the port side, which in some manner contributed to support and sustain it in its position. This was the act of the workmen, and if the fall of the section was the result of the want of their due care, or of that of any one of them, the negligence was that of the co-employee of the. decedent for which the defendant is not responsible to the plaintiff. This w.as the view 'of The trial court, and the jury were instructed that if they found that the workmen used such care and that the section' fell by reason of the manner in which it was placed there, the question whether it was negligence on the part of the defendant to leave it where-and as it was placed, was for the jury to determine, and if they found that fact in the affirmative, the plaintiff was entitled to recover unless the negligence of her intestate contributed to the injury sustained by him. It is quite difficult to see in the evidence any support for the proposition that the defendant was chargeable with negligence for want of safety in the hold of the steamer where the decedent was engaged in the work which he was employed to perform.

The flooring was taken up and in sections placed lengthwise along the line of stanchions as it usually had been at the close of the season of navigation, to permit it to dry out and to enable the defendant to clean and paint the iron surface beneath it preparatory to fitting the vessel for use the coming season. The manner in which the sections wore placed on either side of the stanchions, and the support those located under the hatch had, to maintain them in position, were apparent to the workmen who were engaged in removing them and placing them in position. They could not, with the exercise of any reasonable care, fail to observe that in the space under the hatch the sections were dependent for support xrpon the overlap of the adjacent ones which rested against the stanchions, and it is evident that the disturbance or removal of that support by the workmen in the service caused one of them to drop from its inclined standing position. The lessening of the safety in condition as it existed when the decedent went into the service, arose from the manner in which the work in its detail was performed by the co-employees of the plaintiff’s intestate.

There is no question about the competency of the workmen and sufficiency in number to do the work.

The manner of doing it was intrusted to them. The management in process of the performance of the work necessarily rested in the care, discretion and judgment of those engaged in the service or of their foreman.

The removal of the support of the section, and its fall with the unfortunate result, were caused by the manner in which the workmen conducted the work in which they were engaged. This is evident from the fact that this section was supported on the port side of the line of stanchions after the sections 'were removed from the starboard side, and it could be thus supported only by the overlap of the sections standing against the stanchions. And so far as appears by the facts derivable from the evidence, the consequences to the decedent were within the hazards incident to the service and which were assumed by him when he entered into it. (Cullen v. Norton, 126 N. Y. 1; Hudson v. Ocean S. S. Co., 110 id. 625; McCampbell v. Cunard S. S. Co., 144 id. 552.)

The fact that the place where services are performed may become unsafe in the process of the work, and resulting from the manner it is clone by co-employees, furnishes no ground to charge the master with liability for physical injuries occasioned by the unsafe condition thus produced. (Loughlin v. State of New York, 105 N. Y. 159; Cregan v. Marston, 126 id. 568.)

So far as we are advised by the evidence the danger of accident was not within reasonable apprehension, as the flooring stood when the work was commenced, aud the accident which followed could not occur otherwise than in the process of the work of removal of the means of support furnished by some of the sections to others beneath the hatch. Until this was done by the workmen there was no want of a reasonable degree of safety. The evidence does not. show any existing condition inherently dangerous in the combination of the sections of the flooring,’or a condition from which danger in the course of the work could reasonably be apprehended from; the exercise of reasonable care in the removal of those sections from the positions in which they were to the places designed for them ta constitute the floor of the hold of the vessel.

The proposition, therefore, upon which a master may be liable to his employee by reason of his failure to furnish him a safe place to work, does not seem applicable to the present case, as- presented by the evidence.

In the cases to which our attention is called by the plaintiff’s, counsel, the unsafe conditions were not produced by the performance of the work in which the employees were engaged. In. McGovern v. C. V. R. R. Co. (123 N. Y. 280) the defendant failed to use -the care required of it to see that the place where the servant, was put to work in the elevator was then safe, when in fact it was-otherwise.

The same may be said of Stuber v. McEntee (142 N. Y. 200), where the plaintiff’s intestate was enjployed to work in a trench, which was in an unsafe condition for the service. Similar in its nature was Kranz v. L. I. Ry. Co. (123 N. Y. 1). And for a like reason a recovery against the defendant was affirmed in Pantzar v. Tilly Foster Iron M. Co. (99 N. Y. 368). It there appeared that the place where the plaintiff was at work for the defendant in the mine of the latter -was rendered unsafe by an insecure mass of rock in an overhanging cliff, by the fall of which he was injured.

The conclusion is that the verdict was not supported by the evidence.

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

Lewis and Ward, JJ., concurred.

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


text:
    Jay D. Bowen, an Infant, by Hila A. Bowen, his Guardian, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.

      Negligence — when plaintiff is excused, from looking both ways before crossing a railroad track — what testimony of a physician is not speculative.

    Upon the trial oí an action brought to recover damages resulting from alleged negligence, it appeared that, as the plaintiff, who was on a highway going north, reached a railroad track which crossed the highway at right angles, he saw a freight train approaching from the east and waited for it to pass, and when what he supposed was the rear car had passed, he stepped on to the track and was struck by a detached car which was following at a short distance In the rear of the cars connected with the engine. This car had been detached while the train was in motion, so that by its momentum it might' pass on to a switch on the north side of the track and some distance west from the center of the highway.
    It further appeared that the plaintiff was not aware of this method of running-cars on to that switch; that there was no one at the crossing, nor was any signal given to warn persons on the highway that a detached car was following the train; that his attention had been diverted by a salutation from the fireman in the cab of the engine, and that he continued looking in the direction in -which the train was moving until he observed the passage of the car in the rear of those attached to the engine, when he proceeded to cross the track and was struck by the detached car.

      Held, that the ordinary rule which requires the traveler at a crossing to look both ways before proceeding- to cross a railroad track was not’ necessarily applicable, for the reason that the plaintiff had no reasonable ground to apprehend danger when he saw the train pass and stepped on to the track in the rear of it, and that the question of the defendant’s negligence was properly submitted to the 3 ary.
    A physician and surgeon, called as a witness for the plaintiff, who at the time of the accident was seventeen years of age, and in vigorous health, testified that he attended the plaintiff shortly after the injury, and that he had examined him at different times thereafter, and stated the plaintiff’s condition and gave evidence tending to prove that his impaired physical condition and the deformity of some of the members of his body were attributable to the injury in question, to which defendant’s counsel objected on the ground that such evidence was speculative.

      Sdd, that it was competent to prove that such consequences might be attributable to the injury, and that there was no error in the reception of such evidence.
    Appeal by the defendant, The New York Central and Hudson River Railroad Company, from a judgment of tlie Supreme Court in favor of tlie j>laintifi, entered in tlie office of the clerk of the county of Niagara on tlie 20th day of March, 1895, upon the verdict of a jury rendered after a trial at the Niagara Circuit, and also from an order entered in said clerk’s office on tlie 20th day of March, 1895, denying tlie defendant’s motion for a new trial made upon a case and exceptions.

      Charles A. Pooley, for the appellant.

      S. E. Filkins, for the respondent.
   Bradley, J.:

There is substantially no conflict in the evidence as to the circumstances under which the plaintiff’s injury was occasioned. He was upon the highway going north, and as he came to the track of the Rome, Watertown and Ogdensburg railroad, a single-track road, which crossed the highway at right angles, he saw a freight train approaching from the east, and waited for it to pass, and when what' he supposed was the rear car had passed he stepped on to tlie track and was struck by a detached car which was following at a short distance in the rear of those connected with the engine. This car had been detached while the ears were in motion, so that by its momentum it might pass on to a switch on the north side of the track, and 110J feet west from the center of the highway. The speed of the train at the time the car was detached, by pulling out the pin connecting it with the car ahead of it, was variously estimated as at the rate of from four to fifteen miles per hour, and the distance between the detached, car and the rear one connected with,the engine, as represented by the evidence, was from ten to sixty feet. The alleged negligence of the defendant i,s in the fact that the. running switch was made across the highway. This crossing is near the depot of the station, known as Miller’s.

It is not a populous village, and, therefore, the method of moving a detached car across this highway on to the switch may not necessarily be negligence jper se, as it has been held to be in making a running switch at the intersection of a railroad and a public street in such a village. (Brown v. N. Y. C. R. R. Co., 32 N. Y. 597.)

The defendant gave evidence tending to prove that the manner in which it was done at the time in question was not what is termed a running or flying switch, because the train was stopped some distance east of the highway for the purpose of having the movement of the detached car slower than it otherwise would have been at the crossing, and (as the defendant’s witness terms it) thus dropping it on to the switch. But the question of the negligence of the defendant was properly submitted to the jury. There was no one at the crossing, nor a signal in any manner given to warn persons on the highway that a car detached from a train was following it. The brakeman upon the car was upon the rear end of it, and so situated that he did not see the plaintiff as he proceeded to go upon the track. These circumstances permitted the imputation of want of due care on the part of the defendant. It would more palpably have been negligence if the occurrence had been in the night time. (Delaware, Lack. & West. R. R. Co. v. Converse, 139 U. S. 469.) But it was at midday, and the plaintiff would have seen the approaching car if lie had looked to the east. He did not do so. This fact gives much force to the charge of his contributory negligence, and must defeat his recovery unless the circumstances were such as to permit the conclusion that such omission on his part was excused. The plaintiff was not aware of this method of running cars on to the switch at that station. Ilis attention was diverted by a salutation from the fireman in the cab of the engine, which salutation he returned, and he continued looking in the direction in which the engine was moving, until he observed the passage of the rear car of those attached to the engine; then, proceeding to cross the track, he was struck by the detached car. The plaintiff had reason to suppose that the end of the train had passed when he attempted to cross oyer, and it cannot, as matter of law, be assumed that he had reason to apprehend that a disconnected car may have been following those drawn by the engine, or that another train would so soon succeed that which had passed the place where he stood. The care ordinarily essential to reasonable precaution, which requires the traveler at a crossing to look both ways before proceeding to cross a railroad track, was not, in view of the circumstances, necessarily applicable to the present case, for the reason that there was no reasonable ground to apprehend danger when he saw the train pass and stepped on to the track in the rear of it to go forward. (French v. Taunton Branch R. R., 116 Mass. 537; Brown v. N. Y. Central R. R. Co., 32 N. Y. 597, 603; Duame v. Chicago & N. W. Ry. Co., 72 Wis. 523; 7 Am. St. Rep. 879.)

In delivering the opinion in Brown v. N. Y. Central R. R. Co., Judge Davis made the remark, somewhat applicable to the situation in the present case, that: “ It is asking too much to say that it was negligence as matter of law not to have antibipated that detached cars were following in the rear of the train that had passed.” The fact that the plaintiff might have seen the approaching car if his attention had not been attracted to the fireman by their exchange of salutations does not aid the defense. This continued diversion of his attention until he proceeded to cross the track, did not necessarily evince a want of due care, in view of the fact that it was not within his reasonable apprehension that a disconnected car would follow the passing train.

In Woodard v. N. Y., L. E. & W. R. R. Co. (106 N. Y. 369) the plaintiff’s intestate was familiar with the fact that the company was in the habit of shunting or kicking cars down the switch over the crossing on which he received his fatal injury, and it was held that his failure to avoid the accident was attributable to his want of due care.

That case has not necessarily any application to the present one upon the question of contributory negligence, which question, we think, in this case was one of fact and properly submitted to the jury.

A physician and surgeon called as a witness for the plaintiff, having testified that he attended the plaintiff, dressed his wounds, etc., shortly after the injury in October, 1893, made an examination of him in April following, and bad recently, in September, 1891, examined him, proceeded to state the plaintiff’s condition, and gave evidence tending to prove that the impaired physical condition and deformity of some of the members of his body were attributable to the injury in question.

The defendant’s counsel took exception to the reception of this evidence as speculative. The plaintiff at the time of the accident was seventeen years of age, in vigorous health and good physical condition. His injury was apparently severe. It was followed by certain conditions of physical impairment. It was competent to prove that they are consequences which may be attributable to the injury, and in view of the fact that such conditions have been the result, the medical Opinion is relieved from any imputation that it was speculative.

There was no error in the reception of the evidence. (Griswold v. N. Y. C. & H. R. R. R. Co., 44 Hun, 236; 115 N. Y. 61.)

The verdict for $8,000 was quite large, but, in view of the evidence relating to the injury and its consequences, it cannot be said to be so large as to justify the conclusion that the jury were influenced by prejudice or passion in reaching the result.

The view taken is that the verdict is supported by the evidence and that there was no error in the rulings at the trial.

The judgment and order should be affirmed.

Lewis and Davy, JJ., concurred; Ward, J., not fitting.

Judgment and order affirmed.


text:
    Milwaukee Harvester Company, Respondent, v. John C. Culver and Clara D. Culver, Appellants.

      Title taken in the name of a wife in fraud of creditors — when a question of fact.

    Upon the trial of an. action brought by a judgment creditor of one Jolm C. Culver to have if declared that a conveyance made by one Soule to Clara D. Culver, the wile of the said John C. Culver, was made with intent to hinder, delay and defraud the creditors of said John C. Culver, and that the same was void, and to have it adjudged that the said John C. Culver was the owner of said premises, it appeared that the conveyance in question was made to Clara D. Culver in May, 1890; that the sum of §900 on account of the purchase price has been paid by Clara D. Culver, and that an additional sum of $500 had been paid on account of the purchase.
    The additional sum of §500, paid on account of the purchase of the premises in question, was derived from the moneys secured by a mortgage executed by the corporation to Mrs. Culver to secure a portion of the purchase price of a tract of land which in 1889 was conveyed to Clara D. Culver, who thereupon conveyed the property to the corporation which was subsequently organized, of which corporation John C. Culver was the promoter and became secretary ; and to the management of whose business it was understood that he should give his attention, which he did.

      Held, that, assuming that the purchase was made by the wife, and that the property was hers in good faith as against the creditors of her husband, the fact that the husband undertook to and did give his time and services to her business would not prejudice her right to the property and its proceeds as against his creditors, or subject it or its proceeds to the payment of his debts; but if the wife was made the depositaryof the title to the property as a device to enable the husband to carry on his business under such cover, to avoid the claims of his creditors, and with intent to defeat the collection by them of the debts against him, the property and the proceeds of the business so conducted by him might, as to his creditors, be treated as his for the purposes of a'remedy in their behalf;
    That although the transaction might have been made in good faith without any intent to defraud the creditors of the husband, and solely with a view to the creation of a separate estate for Mrs. Culver, the question was one of fact whether such was the sole purpose, and as there were circumstances which permitted the conclusion that the sole purpose and intent on the part of the husband, by the means employed, was to put the title in his wife to hinder, delay and defraud his creditors, a judgment in favor of the plaintiff would be affirmed.
    Appeal by tbe defendants, John C. Culver and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 26th day of December, 1894, upon the decision of the court rendered after a trial at the Monroe Equity Term.
    The action was brought to have a certain deed made to the defendant Clara D. Culver declared void as against the creditors of the defendant John C. Culver.

      Charles A. Widener, for the appellants.

      Arthur Warren, for the respondent.
   Bradley, J.:

The plaintiff, a judgment creditor of the defendant John 0. Culver, charges that the conveyance of the title to certain premises on 'Monroe avenue, in the city of Rochester, was procured to be made to the defendant Clara D. Culver, and was taken by her in fraud of the creditors of the defendant John C. Culver, her husband. The conveyance was made by Wilson Soule to her in May, 1890. The consideration was $5,400, of which the sum of $1,400 has been paid. The trial court found as facts that the sum of $900 of that amount was paid by the defendant Clara D. Culver, and that the additional sum of $500 was paid by John C. Culver out of moneys belonging to him; that the money was so paid by him with intent to defraud his creditors, and that the deed was taken in the name of his wife as a device on the part of the defendants for the like purpose.

The conclusion of the court was that the defendant Clara D. Cul-ver had an equitable lien on the premises to the extent of such payment made by her, and that, unless the.amount of the plaintiff’s judgment, with costs, should be paid, the premises should be sold subject to such lien and to that of the unpaid purchase money, and that the proceeds of the sale be applied to the payment of the plaintiff’s judgment and costs.

In 1887, when the defendants came from Illinois to Rochester, the indebtedness of John C. Culver amounted to from $1,000 to $1,500. In November, 1889, a tract of land, known as the South Park Homestead tract, was conveyed to the defendant Clara D. Culver for the consideration of $13,000, expressed in the deed. Thereupon the South Park Homestead Association was organized and the defendant Jokn C. Culver became its secretary. Mrs. Culver conveyed the tract to the association in December, 1889, for the consideration, as expressed in the deed, of $37,800, and took from the association a mortgage to secure the payment of $27,800 of the purchase money, the residue being the amount of a prior mortgage on the tract.

The evidence tends to prove that- the $500 before referred to as paid on the purchase price of the Monroe avenue property was derived from the moneys secured by the mortgage on the Homestead Association property.

The question, therefore, is whether the conclusion -was warranted that the money derived from that source might as to his creditors be treated as and was that of the defendant John C. Culver. He was the promoter of the purchase, although the option for it was taken by his brother J. Z. Culver. The purchase with the organization of the association in view, was a speculative enterprise. It was understood that John C. Culver should give his attention to the management of the business, and he did so. Assuming that the purchase was made by the wife, and that the property was hers in good faith as against the creditors of John 0. Culver, the fact that he undertook to and did give his time and service to her business, and thus for the benefit of his wife relating to her separate estate, would not prejudice her right to the property and its proceeds, as against his creditors, or subject it or the proceeds to the appropriation by them to the payment of his debts. (Abbey v. Deyo, 44 N. Y. 343; Coddington v. Bowen, 24 N. Y. St. Repr. 832; 6 N. Y. Supp. 355.) But if the wife was made the depository of the title to the property as a device to enable the husband to carry on liis business under such cover, to avoid the claims of his creditors, and with intent to defeat the collection by them of the debts against liim, the property and the proceeds of the business so conducted by him might, as to his creditors, be treated as his for the purposes of remedy in their behalf.

At the time of the purchase of the South Bark tract the .wife had no separate estate other than the $900 put into the Monroe avenue property, nor did she personally take any active part in making the purchase of the South Park tract, and personally she did nothing in the business of its management That was substantially controlled by her husband, and it appears by her evidence that she had but very little knowledge of the transactions resulting in the purchase of the property and the organization of the association. There is evidence tending to prove that the defendant John C. Culver in the outset contemplated making the purchase in his own name, with a view to the speculative enterprise, but that the views of his brother that the purchase should be made in the name of his wife, and that the husband should give his personal attention to the business, prevailed, and it was accomplished through or by the brother.

Note.— Tlie rest of the cases of this term will he found in the next volume, 90 Hun. — [Rep.

Although all this may have been done in good faith without any intent to defraud the creditors of the husband, and solely with a view to the creation of a separate estate for Mrs. Culver, the question, in view of the circumstances, ivas one of fact, whether such was the sole purpose, and the conclusion was permitted that the intent on the part of the husband by the means employed was to put the title in his wife to hinder, delay and defraud his creditors.

It may be observed that in the Abbey and Coddington cases before cited, the question of good faith, as against creditors, was treated as one of fact. To the same effect is Knapp v. Smith (27 N. Y. 277).

Although the husband testified that the transaction was without any intent on his part to defraud his creditors, his relation to it was such as to bring his credibility in question. And, as the wife paid no value for the South Park property, the question of good faith on her part as to that purchase, necessarily arises for consideration. (Starin v. Kelly, 88 N. Y. 418.)

The finding of the trial court that the defendant John C. Culver was insolvent at the time of the conveyance in question to Mrs. Cul-ver, has the support of the evidence.

While the burden was with the plaintiff to prove that the sum of $500 in question was, as to his creditors, the money of the husband (and that was dependent upon his intent to defraud them by the cover of the transaction from which such money was derived), there were circumstances made to appear by the evidence which would permit a conclusion to that effect. And the result reached seems to have the support of the evidence in the view which the trial court may properly have taken of it.

The judgment should be affirmed.

Lewis, Ward and Davy, JJ., concurred.

Judgment affirmed, with costs.


author: Dykman, J.

text:
    In the Matter of the Petition of Alfred C. Chapin, Mayor of the City of Brooklyn, and Others, Appellants; Thomas Bulmer, Respondent.
   Order affirmed, with ten dollars costs. No opinion.—

Dykman, J.

(dissenting): The facts involved in this appeal are these: On the 22d day of May, 1891, three commissioners were appointed to ascertain and appraise the amount of damage done to any property or interest by reason of the erection of the public hospitals in the town of Flat-bush. The commissioners qualified and entered upon the discharge of their duties, and on the 22d day of May, 1893, made their report to the court, to which some exceptions were filed, and on the 11th of November, 1893, such report was confirmed by the court. It appears from the petition in this proceeding that Thomas Bulmer is the owner of certain lands and premises designated on the commissioners’ map as lots 17 and 18 on block 14. The commissioners of appraisal reported that they had ascertained and appraised the amount of damage to such lots taken together, at the sum of $600, and their award was made to the petitioner and owner, A. D. Wood, as joint owners of such lots. It further appears that some of the awards so made by the commissioners have been paid, and that George G. Herman, one of such commissioners is now dead. Upon that petition an order was made appointing Charles H. Otis a commissioner in this proceeding in the place of George G. Herman, deceased, and Otis, in connection with the other two commissioners, met and apportioned the awards between the respective owners of lots Nos. 17 and 18 on block 14. There are other provisions in the order which do not require recitation here. From that order the mayor has appealed, and we find it to be erroneous. The act under which the proceedings were instituted, provided, among other things, that the report of the commissioners “be Presented to the Supreme Court, at Special erm thereof, on any day upon notice published in the corporation papers for ten days successively, and tjiat said report be presented to said court for confirmation. The said court shall hear any objections to said report, or any part thereof, and may either confirm the same, or send it back to the commissioners of estimate, who shall thereupon reconsider the same, and again report the result to the said court, and the said report shall again be presented to said court for confirmation upon a similar notice as heretofore provided for. Said court shall again hear objections, and may confirm the same or send the same back as before provided. If the said report is confirmed, said confirmation shah be final and conclusive, but the same shall be sent back and reconsidered as often as said court may deem necessai’y.” There is no authority or jurisdiction in the court other than such as is found in the statute itself, and the proceedings must be governed by the statute by which it was authorized. When the report of the commissioners was confirmed, such confirmation was final and conclusive. The liabilities of the city became fixed and determined definitely and finally. The statute authorized a special proceeding which should be complete and independent, subject to no judicial review. The following authorities justify this conclusion: N. Y C R. R. Co v. Marvin (11 N. Y. 276); In the Matter of the Commissioners of Central Park (50 id. 497); In the Matter of Canal & Walker Streets (12 id. 406); King v. Mayor (36 id. 182); Mayor v. Erben (38 id. 805). Upon the confirmation of the report, the powers of the commissioners terminated, and their occupation was gone. They had discharged the functions of their office and exhausted their power. (People ex rel. Mann v. Mott, 2 Hun, 672; S. C., 60 N. Y. 649.) This rule should be applied with more rigor in this case because one of the commissioners died after he signed the report. Again, no application by the petitioner for the appointment of a commissioner under this statute was authorized. Such application could only be made by the mayor and the two commissioners who were clothed with that power by the statute. Moreover, the order confirming the report was a bar to the new proceeding. So long as that order remains it is conclusive upon the rights of all the parties. The order should be reversed, with ten dollars costs and disbursements.


text:
    In Matter of Application of William A. Randall, Respondent, v. Charles R. Cline, Jr., Town Clerk, etc., of Warwick, N. Y., Appellant.
   Reargument ordered.


text:
    In Matter of Application of John Dunne for a Writ of Mandamus.
   Order affirmed, with ten dollars costs and disbursements. No opinion.

All concur.


author: Dykman, J.:

text:
    James H. Birdsall, Respondent, v. Henry E. Emmons and Another, Appellants.
    Order affirmed, with costs.—
   Dykman, J.:

This is an appeal from an order made at the Special Term, denying a. motion to vacate an attachment against the property of the defendants, who were nonresidents, on the ground that the affidavit upon which the attachment was issued failed to state facts sufficient to constitute a cause of action. The attachment was issued on the 5th day of February, 1895, and on February 18,1895, the property attached was sold by order of the court as perishable property. The defendants have not appeared or answered, and judgment in favor of the plaintiff lias been duly entered in Orange county. An order to show cause why the attachment should not be vacated was made returnable on the 16th day of April, 1895, and the motion to vacate the attachment was made on that day and denied, with costs. The motion to vacate the attachment was. based on the contents of the affidavit of the laintifc upon which the attachment was-ased, and no counter affidavits were used. In our view, the affidavit upon which the attachment was granted is sufficient, and sets forth a compl etc cause of action upon an expressed and implied contract and a breach thereof on the part of the defendants. The order should be affirmed, with costs.

Pratt, J., concurred; Brown, P. J., not sitting.


text:
    Valentine Cromwell v. Charles H. Clement.
    Motion for leave to appeal to the Court of Appeals denied, with ten dollars costs and! disbursements.—
   Dykman, J.:

This is an application on the part of the defendant for permission to appeal to the Court of Appeals from the judgment of the General Term of this court, reversing the judgment of the Special Term which sustained a demurrer to the complaint in this action. The motion is based upon an affidavit of the attorney for the defendant, which states that the defendant desires to appeal to the Court of Appeals from the judgment of the General Term. The affidavit states no reason why such permission should be granted, and we have been unable to discover any. According to the complaint the defendant has been guilty of a gross fraud, and he should not be permitted to delay the day of trial by technical objections to the complaint. If he has any defense he had better address himself to its production, and if he has none, there shouldbe no delay of the day of judgment. The motion should be denied, with ten dollars costs and disbursements.

Brown, P. J. and Pratt, J., concurred.


text:
    Emma Bryant v. Louis J. Grant.
    Motion for reargument denied, with costs.—
   Dykman, J.:

There is a motion for a reargument in this case, but no sufficient reason appears in favor of the application, and the motion should be denied, with ten dollars costs and disbursements.

Brown, P. J., concurred; Pratt, J., not sitting.


text:
    Louis Liebmann and Another, Plaintiffs, v. Liebmann Brothers Company, Defendant; Louis Blumgart, Appellant.
   Orders affirmed, with ten dollars costs and disbursements, on opinion of Justice Cullen at Special Term.

All concur.


text:
    Matthias Ruppert, as Administrator of Joseph Ruppert, Deceased, v. The Brooklyn Heights Railroad Company.
   Judgment and order affirmed, with costs. No opinion.

All concur.


author: Pratt, J.:

text:
    The Town of Newtown, Respondent, v. Thomas Auld, Appellant.
    Judgment and order affirmed, with costs.—
   Pratt, J.:

This case does not purport to contain all the evidence adduced on the trial. Regulations of the local board of health were read. In the absence of evidence to the contrary, we must assume that the property existed under chapter (561 of the Laws of 1893. We can see from the case that there was sufficient evidence to justify the court in submitting the case to the jury. We discover no error in the record. Judgment affirmed, with costs.

Brown, P. J., and Dylunan, J., concurred.


text:
    Estelle Floyd, as Administratrix, etc., of Wallace J. Floyd, Appellant, v. Elizabeth A. Floyd, Respondent.
   Judgment affirmed on opinion of Bartlett, J., at Special Term.

All concur.


author: Dyicman, J.:

text:
    William L. Rich, as Administrator of the Goods and Chattels and Credits of Josiah Rich, Deceased, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.
    Judgment affirmed, with costs.—
   Dyicman, J.:

This is an appeal from the judgment entered upon the dismissal of the complaint at the close of the testimony on the part of the plaintiff upon the trial at the Circuit before a jury. When this case was in the Court of Appeals (87 N. Y. 382) it was stated in the opinion delivered there that the complaint was for a tort, and that the tort charged was, that the defendant, in order to reach a lawful result, planned a fraudulent scheme for its accomplishment by unlawful means, and through an injury to the plaintiff which would strip him of his damages by a complete sacrifice of his property hy means of a plan embracing a refusal to open the restored depot at the foot of Main street, the driving of the plaintiff's mortgagee to a foreclosure, stripping the plaintiff of his property, and all this by the defendant’s direct instigation. The evidence necessary to support the charge was declared by the Court of Appeals to be such as to establish a scheme for oppression and fraud, of which, if established, the defendant’s procurement of the foreclosure and sale was a part. The court said: “If it is made plain that the mortgagee would have waited but foT the fraudulent scheme and conduct of the defendant, that is enough.” The court further declared that: “Proof of the contract and • its breach, of the delay in restoring the depot and the reasons therefor were essential links in the chain. If the proof should go no further a nonsuit would be proper.” Under the standard thus set up, it was incumbent upon the plaintiff to establish a scheme of fraud carried out by the defendant or its agents with intent to deprive the plaintiff of his property, by inciting a foreclosure of the mortgage of the Mutual Life Insurance Company, and a sale of his property thereunder. Bo far from meeting the requirements and sustaining the burden thus placed upon the plaintiff, the case is destitute of proof to convict the defendant of any of the acts charged against it in the complaint. The principal charge in the complaint against the defendant is that it incited the foreclosure of the mortgage held by the Mutual Life Insurance Company against the property of the plaintiff, and caused his property to be sold under a judgment, and the record is destitute of any proof to connect the defendant with that transaction. There was no proof to show any connection of the railroad company with the various proceedings of the insurance company in the foreclosure suit, or even that it was in possession of any knowledge or notice thereof. The property of the plaintiff was injuriously affected* by the change in the grade of Main street at the railroad station in the city of Yonkers, and the sale under the mortgage of the insurance company was ruinous to him, but the evidence in this case fails to connect the railroad company with this transaction in any manner. In fact neither of these disasters befell the plaintiff by reason of anything done by the company. Great indulgence was shown to the plaintiff by the trial judge upon the trial of this action. He was permitted to reopen the case and introduce further proof, but the effort in that direction failed, and the trial judge was left no discretion except to dismiss the complaint, which he properly did, and the judgment must be affirmed, witli costs.

Pratt, J., concurred; Brown, P. . J., not sitting.


text:
    Corydon Powell Karr and Others, Respondents, v. John H. Baxter and Others, Trustees, etc., Appellants.
    Judgment and order affirmed, with costs.—
   Pratt, J.:

The case presents little but questions of fact which were fairly presented to the jury and upon which their verdict must be decisive. It cannot be said that there is a failure of evidence in its support. No exceptions require attention. Judgment affirmed, with costs.

Brown, P. J., and Dykman, J., concurred.


text:
    The People of the State of New York ex rel. Daniel Dougherty, Relator, v. Frederick W. Wurster, Fire Commissioner, etc., Respondent.
    Determination confirmed, without costs.—
   Pratt, J.:

Relator cannot be properly said to be a member of the force for extinguishment of fires, hut was employed as his appointment shows as a laborer. Taking the case of People ex rel. Crafts v. The Fire Commissioners (28 Hun, 495) as the true interpretation of the law, the relator cannot be said to be a member of the fire force, but comes under the designation of those who can he removed with charge and a trial. Writ quashed.

Brown, P. J. and Dykman, J., concurred.


text:
    The People of the State of New York ex rel. John J. Donlon, Relator, v. Frederick W. Wurster, Fire Commissioner, etc., Respondent.
    Determination confirmed, without costs.—
   Pratt, J.:

Whatever may have been the status of the relator prior to January 10, 1893, it appears in the record of the fire department that upon that day he resigned, ana that upon the next day he was appointed as a coal passer. This is a position as laborer and is not within the class of persons under the statute entitled to trial before they can be discharged. It also appears upon the minutes of the fire department that his original appointment was temporarily as a laborer” in the department. I, therefore, find he was not at any time a member of the force for extinguishing fires. Writ quashed, without costs.

Brown, P. J., and Dykman, J., concurred.


author: Brown, P. J.:

text:
    Leonard Knox, Respondent, v. The Town of Gravesend, Appellant.
    Judgment reduced to $180, and as reduced affirmed, without costs.—
   Brown, P. J.:

This action is of the same character as that of Morson against the same defendant (ante, p. 52). Following the view there expressed we should reverse the ¡judgment and dismiss the complaint. But the appellant concedes an indebtedness to the plaintiff of $180 and a liability upon the part of the defendant therefor. The judgment must, therefore, be reduced to that amount, and so modified is affirmed, without costs.

Pratt and Dykman, JJ., concurred.


text:
    The People of the State of New York ex rel. Patrick O’Connor, Appellant, v. Leonard R. Welles, Commissioner of Police, etc., Respondent.
   Determination confirmed, without costs. No opinion.

All concur.


text:
    The People of the State of New York ex rel. William J. Roberts and Others, Appellants, v. Leonard R. Welles, as Police Commissioner, etc., Respondent.
   Determination confirmed, without costs.

All concur.


text:
    In the Matter of the Judicial Settlement of the Accounts of Alfred B. Smith and Another, Executors, etc., of Margaret J. Myers.
   Decree affirmed, without costs. No opinion.

All concur.


text:
    The People of the State of New York ex rel. Patrick Hughes v. Mayor Horatio S. Sandford, Commissioner of Public Works, etc., and Others.
    Determination annulled, and relator restored to his position, with fifty dollars costs.—
   Brown, P. J.:

This proceeding is a certiorari to review the determination of the respondents dismissing the relator from the position of fireman in the fire department. The respondents were empowered to remove employees for incapacity, neglect of duty or misconduct.” The relator was charged with neglecting to feed or water horses left in his charge from nine o’clock p. m. on July twentieth, to three-thirty p. ar. on July 21, 1898. It appears that at twelve-thirty a. ar., July twenty-first, an alai'm summoned the relator and h:s company to a large fire, and he was on duty there the balance of that night and part of the next day. The only witness called to substantiate the charge was Alexander Grady, the company’s foreman. He knew nothing of the matter himself, but testified that he believed the charge was true. He swore to a conversation with Hughes which, it was claimed, amounted to an admission of the charge of neglect. Hughes denied on the witness stand that he admitted to Grady that the horses were not fed or watered until the aftern,oon of the twenty-first, and it appeared by uncontradicted evidence that they were fed about nine o’clock in the morning, and were watered about eleven o’clock. The charge of neglect was not proved, and the commissioners were not authorized to dismiss the relator. The order must be reversed and the relator restored to his position, with fifty dollars costs.

Pratt and Dykman, JJ., concurred.


text:
    In the Matter of the Judicial Settlement of the Accounts of Mary C. Rogers, as Administratrix, etc., of Guy C. Goss, Deceased.
    Decree affirmed, with costs to be paid by appellant.—
   Pratt, J.:

The petitioner called as a witness Mary R. Goss, and her testimony established a transfer to her of the $500 claim, by Guy O. Goss in his lifetime. The witness says: “I don’t remember his words; I supposed he gave me the $500; I had no doubt about it; * * * he spoke of giving it to me; he spoke of having given it tó me; he spoke of it as mine the last time he was down stairs.” It is not disputed that he gave the paper which evidenced the debt to his wife, nor that he was in her debt. The appellant relies upon the statement of Mary R. Goss that her husband suggested that she use the proceeds of the claim to pay the premiums on life insurance policies, to show that he intended to retain the title to the claim in himself, and not to vest it in his wife. His intention obviously was that his wife should benefit by the $500. To retain the title in himself and direct her as his agent to pay the insurance would not carry out that intention, but would be liable to defeat it, as this proceeding shows. His suggestion as to the use was chiefly significant as showing his interest in the future of his family. He had a right to pay the $500 to his wife. He tried to do it. We think he succeeded. The appellant argues that an error was made in admitting the testimony. As defendant’s contention is fully sustained by other witnesses, that question need not be considered. Order appealed from affirmed, with costs.

Brown, P. J., and Dykman, J., concurred.


author: Pratt, J.: Brown, P. J.

text:
    Mary E. Burns, Respondent, v. The City of Yonkers, Appellant.
    Judgment and order affirmed, with costs.—
   Pratt, J.:

We do not find that the facts on the present trial vary in any important particular from those shown on the previous trial, discussed in 83 Hun, 211. That case determined that the plaintiff had a right to go to the jury on the question of defendant’s negligence. The verdict establishes the liability of the city. It is entirely clear that the accident resulted from the absence of a fence between the traveled road and the declivity down which the plaintiff went. In the light of the event it is easy to see that a fence should have been provided. We cannot say the jury are wrong in finding that the necessity of a fence should have been apparent before the accident. There were no errors in the admission of evidence or in the charge, and the judgment must be affirmed, with costs.

Brown, P. J.

(concuring): This action was first tried at a Circuit at which I presided, and the complaint was dismissed. Upon an appeal to a General Term composed of Justices Dykman and- Cullen, the judgment entered upon the order dismissing the com-Slaint was reversed and a new trial ordered. 'pon the second trial the plaintiff recovered a judgment from which the present appeal is taken. The court should adhere to its former decision unless the facts are essentially different from what they were on the first trial. I do not think they differ to such an extent as to make inapplicable the rule applied by the opinion of Justice Cullen (83 Hun, 211), and I, therefore, vote to affirm.

Dykman, J.., dissented.


text:
    In the Matter of the Accounting of John H. Smith, as Executor, etc., of John T. Smith, Deceased.
    Decree affirmed, with costs to respondent, to be paid put of the estate.—
   Dykman, J.:

This proceeding was instituted in the Surrogate’s Court of the county of Rockland, by John H. Smith, one of the executors of the estate of John T. Smith, deceased, for ah accounting of his proceedings as such executor, based upon a petition filed in the Surrogate’s Court on the 26th day of June, 1891, before George ‘W. Wirant, then surrogate of Rockland county. All the parties interested were duly cited. Testimony was introduced and taken before Surrogate Wirant, and before anything further was done he became ill, and William McCauley, district attorney of Rockland county, became acting surrogate, and a few days before .the close of his office as district attorney, he signed a decree in this proceeding. A. S. Tompkins, who had been counsel for the executor, then became surrogate, and a motion was made before him to set aside or resettle the decree of District Attorney McCauley, on the ground that it did not conform to tho facts as disclosed by the testimony. That motion was certified to Prank Comesky, then district attorney of Rockland county, hy reason of the disability of TompLins on account of his connection with the case as counsel. Comesky vacated the previous decree and signed a decree in conformity to the findings previously made by him, and from that decree the present appeal was taken. The last decree allows the executor several payments which he had made which were disallowed by the first decree. In other respects the two decrees are practically the same. The disbursements allowed to the executor were all actually made, and there is no sufficient reason why they should not be allowed. The largest claim is the sum paid to the widow for her right of dower. Both the executors charge themselves with the whole sum received for the real property sold, and as they were obliged to pay the widow, who had a right of dower in the premises, it follows that the sum so paid to her must be deducted from the amount they received. The power to open and modify the first decree is expressly conferred by subdivision 6 of section 2481 of the Code of Civil Procedure. The decree should be affirmed, with costs to the respondents, to be paid from the estate.

Brown, P. J., and Pratt, J., concurred.


text:
    Squire Hill, Respondent, v. Robert S. Westcott, Appellant.
    Judgment affirmed, with costs.
   Pratt, J.:

It seems clear that the contract in question, herein was a specific contract between Westcott on the one side and Hill and Harrison on the other, wherein Westcott agreed to pay 1-Iill and Harrison ten cents per can carfcitge on milk carted by them from their creamery at Sidney to the station at the same place and shipped over certain specified lines of railroad. The milk was shipped as per this agreement. We are, therefore, of the opinion that the judgment should be affirmed, with costs.

Brown, P. J., and Dykman, J., concurred.


text:
    Kate Foley, Appellant, v. The Manhattan Elevated Railroad Company, Respondent.
    Judgment affirmed, with costs.
   Dykman, J.:

This is an action for damages for injuries sustained hy the plaintiff upon a stairway leading to the elevated railroad station of the defendant. At the close of the testimony the complaint of the plaintiff was dismissed, and she has appealed from the judgment of dismissal. The testimony on the part of the plaintiff is very unsatisfactory in respect to the precise cause of her injury. She says that she entered the car at Twenty-third street and Third avenue, and left at Sixty-seventh street. She started down stairs, and after descending about five steps, her feet were held fast in the rubber, and she was thrown down stairs. She says her feet were caught in the rubber which was on the stairs. She says both of her feet were caught in the rubber, and she fell down. She could not say how she came to fall all the way down, but that her feet were held fast. She says her niece had preceded her and returned, took her by the hand and turned her over and then she tell to the bottom; then her feet got loose, and she rolled down to the platform. On her cross-examination she said she put both feet on the same step at the same time. The niece of the plaintiff, who was with her at the time, was called and she testified, after she missed, her aunt, she went hack and took her by the shoulders and turned her, and she loosened her from the rubber and then she slipped down the remainder of the stairs to the bottom. The plaintiff fell to the bottom of the stairs when she loosened her from the rubber. Then she said that, after she loosened her from-the rubber, she fell about two steps and then rested on the platform. After she had fallen two steps she went to the bottom, and then the ticket man came down and took her up stairs in the waiting room and she stayed there. Then the station agent of' the defendant at Sixty-seventh street was called as a witness, and he said there were two flights down the stairway, seventeen steps at the top flight and twelve on tho bottom" and that the top flight was the one upon which the plaintiff fell. He says that before tbe plaintiff fell, he went up the stairs and down the stairs and examined them, and they were in a good condition at that time and there were no holes in the rubbers. The following question was asked him: Q. Was there any-» tiling the matter, holes worn, frayed, cut or torn? A. Nothing whatever, sir.” Then he went on to say that he examined every step of the Stairs after the accident and found everything in good order, about two or three minutes after the accident, as soon as he could do it. Then the porter of the defendant at Sixty-ninth street was called and he said that he knew the condition of the stairs on that day, and found them in good order, and the rubbers nailed on and there was nothing loose, and no nails sticking out. He put his hand on the staffs where the lady was and found nothing loose, neither nails nor screws. It thus appears that the testimony respecting- the accident was so unsatisfactory and uncertain that it was insufficient to charge the defendant with negligence. The plaintiff says that both her feet were on the same step at the same time, and that they were both caught in the rubber. She says further, that the heels of both her shoes were torn off. This state of affairs would seem to be impossible from the testimony of tho employees of the defendant, but even if it should be assumed that the stairs were at that time out of order so that the plaintiff’s shoes would be caught under the rubber, that state of affairs could not have existed for a sufficient length of time to justify a charge of negligence against the defendant for their condition. If they were out of order it was for a very few moments, during which time the defendant had no notice of their condition and no timo or opportunity for their reparation. The law would not justify an inference of negligence against the defendant for a defect in these stairs, or tho rubber upon them which had existed hut for a very few moments, and of which the defendant had no notice. Our conclusion is that the complaint was properly dismissed, and the judgment must he affirmed, with costs.

Brown, P, J., and Pratt, J., concurred.


text:
    Abram Travis, Appellant, v. Robert Post, Respondent.
    Judgment and order affirmed, with costs.
   Pratt, J.:

This action was brought, apparently, and tried under those provisions of the Code relating to actions to compel the determination of claims to real estate. The parties own adjoining farms and the only claim litigated was as to the precise line on which the division fence ought to be located. The defendant denied that he made any unjust claim to any of the plaintiff’s farm, and that was the issue submitted to the jury as was proper in this form of action. It seems the plaintiff had put up a fence and that the defendant took it down, claiming it encroached upon his land. Trespass would have been a better form of action, but the case having been tried under another form it must be determined as it is presented at the present time. The complaint did not describe the property which was said to be claimed by the defendant as prescribed in this form of action (Code, § 1511), but it really alleged acts of trespass. The case was submitted to the jury, as I have before stated, under a charge which was not excepted to, and the verdict must stand unless it appears that some error was committed upon the trial. The deeds of both parties coincided in their descriptions, but two surveyors, one on each side, disagreed as to a proper location of the lines according to the courses and distances stated in the deeds, and the jury had to grope their way through the fog of expert testimony. The plaintiff insists that the verdict is against the undisputed facts. This claim cannot avail him, as the defendant testified that he made no claim except that the fence was not located on the right line, and until the plaintiff established the fact that it was not located over upon the defendant’s land it could not be said that defendant claimed any of the land of the plaintiff. The plaintiff makes no points m his brief upon any exception taken upon the trial, and I assume they are abandoned. Judgment affirmed, with costs.

Brown, P. J., concurred; Dykman, J., not sitting.


text:
    John W. Hasbrouck and Another, Appellants, v. Silas H. Dickinson and Another, Respondents.
    Judgment and order affirmed, with costs.—
   Pratt, J.:

"We think this judgment should be affirmed. The appellants’ points present simply the question whether or not the verdict was against the evidence or the weight of evidence. No other exception is pressed. We have examined the case carefully and are satisfied that the case was properly submitted to the jury because of .conflicting evidence as to the location of the Wallace line — the starting point for the determination of the location of the strip claimed by plaintiffs. The issues were fairly put to the jury and the points of conflict of evidence so lucidly set forth in the charge that we entertain no doubt that the verdict was an intelligent finding upon the facts. Judgment and order denying motion for a new trial affirmed, with costs.

Dykman, J., concurred; Brown, P. J., not voting.


text:
    Orazio Valenti and Another, Composing the Firm of Valenti & Priore, Respondents, v. Richard B. Constantine and Another, Appellants.
    Judgment affirmed, with costs.—
   Pratt, J.:

We are of opinion that the referee’s conclusions are sustained by the testimony. Not only was there considerable evidence that Constantine had personal notice of the work done by the plaintiffs, but it seems pretty well established that the tenant had authority to make repairs. He made them for some years, and until the present instance his authority was never questioned. There are no exceptions that require notice, and judgment is affirmed, with costs.

Brown, P. J., and Dykman, J., concurred.


text:
    Charles L. Littlewood, Appellant, v. W. H. Riley and Another, Respondents.
    Judgment affirmed, with costs.—
   Pratt, J.:

The plaintiff’s case depends entirely upon his own testimony. lie is contradicted by two witnesses and the written instruments. Giving to his testimony full faith all that it established is that the minds of the parties did not meet. At most that would only authorize a rescission of the contract. That would not benefit the plaintiff. Judgment affirmed, with costs.

Brown, P. J., and Dykman, J. concurred.


text:
    Frances J. Romaine v. Annie Decker.
   Re-argument ordered.


text:
    Alexander M. Conway, Respondent, v. Edward O. Carpenter, Appellant.
    Judgment and order affirmed, with costs.—
   Dykman, J.:

This is an appeal from a judgment entered upon a verdict in favor of the plaintiff after a trial at the Circuit, and from an order denying a motion for a new trial. The action has been tried three times with various results. On the first trial the complaint was dismissed, and upon the plaintiff’s appeal judgment was reversed, and a new trial was granted. The second trial of the action was had in March, 1894, when the plaintiff obtained a verdict for $2,500. Upon the defendant’s appeal to the General Term that judgment was reversed, and a new trial granted. The third trial or the action was had at the Westchester Circuit in September, 1894. A verdict was rendered in favor of the plaintiff, and judgment was thereupon entered, from which this appeal is taken. The plaintiff was a minister of the gospel, and while engaged in the performance of services in a church at Yonkers in March, 1882, it is alleged in the complaint that he v as violently seized and taken from the pulpit with force and violence, and was thrown upon his back and dragged from the vestibule of the church into one of the public streets of Yonkers, by order and direction of the defendant. Upon tho last trial, which resulted in a verdict for the plaintiff, the only question submitted to the jury was whether more force or violence was used against him than was necessary under the circumstancas, the jury being charged that the defendant had the right to cause the removal of the plaintiff from the church in which he was engaged in holding services at the time. The charge of the trial judge to the jury was within the ruleof law laid down by the General Term when the case was before it on the last occasion, and we are, therefore, concluded by the law as so laid down. The question of excessive force was plainly one for the jury. Whereas in this case there was testimony from which the jury mjght find that the force used was excessive, the question being thus properly submitted to the jury, and the verdict being in favor of the plaintiff, the rules of law applicable to the case having been heretofore settled, we find no cause for interference with the verdict, and the judgment should be affirmed, with costs.

Pratt, J., concurred; Dykman, not voting.


text:
    Jeremiah Mead, Appellant, v. George W. Chase, Respondent.
    Judgment affirmed, with costs.—
   Dykman, J.:

The plaintiff in this action alleges in his complaint that he made his promissory note for $6,400, payable on demand to the order of the defendant, who was cashier of the Pawling National Bank; that the defendant promised and agreed to use the note for the purpose of paying and taking up three promissory notes of the plaintiff which were then lying in the bank overdue; that relying upon that promise ho delivered the note to the defendant, who fraudulently diverted the note from the purpose for which it was so delivered, and procured it to be discounted, and used the proceeds thereof for his own benefit; that by reason of the false and fraudulent representations so made by the defendant, and the diversion of the note for $6,400, the plaintiff has been damaged in that amount, for which he claims judgment. The defendant in his answer denied that the note was made or delivered to him to pay or take up the three notes mentioned, or any other notes, and also denied that he promised or agreed to use the said note to pay or take up such notes. On the contrary, the defendant alleged that the plaintiff made and delivered the $6,400 note to the bank, and that the plaintiff was at that time indebted to the bank in the amount for which that note was given, for checks paid by the bank for him, for money loaned to him, and for interest thereon, and that the said $6,400 note was delivered by the plaintiff to the bank for said indebtedness, and was duly credited to the plaintiff on the books of the bank as it was agreed with the plaintiff that it should he at the time when that note was delivered. The defendant also denied that he ever made any false or fraudulent representations to the plaintiff or that he fraudulently or otherwise used tho proceeds of the said note, or diverted it from the uses and purposes for which it was given. The case came on for trial at the Circuit, and at the close of the plaintiff's testimony, a motion was made in behalf of the defendant to dismiss the complaint, on the ground that the plaintiff had proved no cause of action against the defendant. The motion was granted, and the complaint was dismissed, and from the judgment of dismissal the plaintiff has appealed to this court. The only issue which was presented by the pleadings was, whether the plaintiff delivered the $6,400 note to the defendant to take up the notes then held by the bank, and whether the defendant fraudulently diverted it from that purpose, and had it discounted and used the proceeds thereof for his own use and benefit. The record contains no evidence to show that the note was ever delivered by the plaintiff to the defendant, but, on the contrary, the plaintiff himself stated that ho delivered the note to either Mr. Haight, the teller, or Mr. Tabor, the bookkeeper, of the bank, and as it was so delivered, either to the teller or the bookkeeper, it was in the eye of the law delivered to the bank. It was, therefore, to the bank and not to the defendant that the plaintiff delivered his note. It does not appear in any way that the defendant ever took it from the possession of the bank, or ever had it in his possession. There is sufficient in the case to show that the note was given by the plaintiff for his indebtedness to the bank upon his overdue paper and interest thereon, which was then lying in the hank The note shows on its face that certain stocks were given as collateral security for its payment and the day after the note was delivered to the bank, plaintiff gave his mortgage on property he owned in Connecticut to secure the payment of his note and other notes, which he admits and states in the mortgage he owes to the hank. It is entirely plain that the plaintiff proved no cause of action against the defendant, and the complaint was properly dismissed. Judgment should he affirmed, with costs.

Brown, P. J., and Pratt, J., concurred.


text:
    Julia Kammerer, Respondent, v. The Brooklyn Elevated Railroad Company, Appellant.
   —Judgment affirmed, with costs. No opinion.

All concur.


text:
    George Waldie, Respondent, v. The Brooklyn Elevated Railroad Company, Appellant.
    Judgment affirmed, with costs.—
   Pratt, J.:

This is a land damage suit or action for loss of fee and rental value, in respect of premises on Adams street, in the city of Brooklyn. The defendant’s railroad was constructed and commenced to be operated in 1888. The premises consisted of a three-story and basement brick building, with brownstone trimmings, thirty-five feet deep by twenty and one-half feet front; lot fifty feet deep. The motions made in this case, to send it to the Circuit for trial, or to stay the suit until the damages were ascertained by commissioners, were properly overruled. (Bee opinion in the case of Hart and others against the same defendants, decided at this General Term, ante, p. 259.) There is no-merit in the exception to the answer of tho witness, who testified that the cinders and dust turned the house black. It was more a fact than an opinion; at any rate the court could not havebeen misled to the prejudice of the defendant; such matters are largely in thhe discretion of the court, and where the case is tried before the court without a jury, there is less chance of a decision being made erroneous by the testimony, whether it comes in the form of an opinion or conclusion, or stated as a mere fact. As to the-amount of damages, we think there is evidence sufficient to support the conclusion arrived at by the judge who tried the case, and even if the damages were more we should find we would not be justified in reversing the judgment, which was based upon a trial by a judge who-saw the witnesses, and heard them testify, and could better judge of their truthfulness, fairness and judgment than we can. We cannot see that there can he any objection as to the form of the judgment. It appears plainly enough that the court has assessed the damages upon the evidence. What it decided was the extent to which the property was depreciated by interference with the light and air and access to the premises. The amount of damages was a mere fact, which the court has found. We think the judgment should be affirmed, with costs.

Brown, P. J., and Dykman, J., concurred.


text:
    Hester A. Tompkins, Respondent, v. William A. Tompkins and Another, Appellants.
    Judgment affirmed, with costs.—
   Dykman, J.:

This is an appeal from a judgment entered upon the verdict of a jury, and from an order denying a motion for a new trial upon the minutes of the court. The action was tried at the Circuit before a jury, and a verdict rendered in favor of the plaintiff for $500. The defendants are the son and daughter-in-law of the plaintiff. Upon the cross-examination of the plaintiff the fact was disclosed that the defendants had executed two promissory notes to the plaintiff ‘ for the indebtedness upon which this action is based, one note for $500 and one note for $450, and that sometime afterward, when the plaintiff was sick, she delivered the notes to her son, one of the defendants, for safe-keeping. After her recovery the plaintiff demanded the notes of the defendants, hut they were not returned. They were subsequently destroyed in a fire at the dwelling house of the defendants, to their knowledge. Bo the ground upon which the motion to dismiss the complaint was based had slid from beneath the feet of the defendants before the motion was made, and it was properly denied. The notes were overdue at the time of the commencement of this action, and as they were in the possession of the defendants when they were destroyed, they encounter no danger by a recovery in this action, based upon the .original indebtedness for which the notes were given. The defendants did not deny the reception of the money, but they say the wife took it. The theory of the defense was that the money was received upon an understanding that the defendants were to keep the plaintiff and her sister, and care for them while they lived. Both the defendants testified that the money was received by the daughter-in-law under that agreement, and the whole case was fairly submitted to the jury in a charge to which there was no exception taken. The jury found a verdict for the plaintiff for $655. It must be assumed now, therefore, that the jury received the testimony of the plaintiff as the truth of the case, and upon that assumption the verdict is fully sustained. In fact it is difficult to believe that the defendants would have given their promissory notes to the plaintiff for the money delivered to them unless they received it as a loan. If the money was an advance payment for board and care to be furnished to the plaintiff and her sister it would have been unnatural for them to give their notes therefor because in that view they would have been under no obligation to repay the money. They would then give the plaintiff no evidence of a debt, because there was none. The record discloses no error and the judgment should be affirmed, with costs.

Brown, P. J., and Pratt, J., concurred.


text:
    Barbara Lauber, Respondent, v. The Jamaica and Brooklyn Road Company, Appellant.
   Judgment and order affirmed, with costs. No opinion.

All concur.


text:
    Mary Ann Wright, Respondent, v. The Brooklyn Elevated Railroad Company and Another, Appellants.
   Judgment affirmed, with costs. No opinion.

All concur.


text:
    George W. Burrows, Appellant, v. James McMurray, as President of the Fifteenth Ward Republican Association and Another, Respondents.
    Judgment affirmed, with costs.—
   Pratt, J.:

This complaint was held insufficient, on motion to dismiss at the trial, on the ground that it failed to state facts sufficient to constitute a cause of action. It sought to vacate the credentials of four out of five delegates chosen by the Fifteenth Ward Republican Association of Brooklyn to the Republican general committee of Kings county, Neither the association, the general committee, nor any individual representing it, nor either of the four individuals whose credentials are attacked are parties. The only ground alleged against the four delegates or their credentials is that “under the constitution and by-laws they are incompetent and disqualified from occupying the position. ’’ The provisions of the constitution and by-laws bearing upon competency or qualifications are not stated nor is it alleged that any such provisions exist. Other difficulties might be stated without going into detail. It is plain that the conclusion of the learned trial judge was correct. Judgment affirmed, with costs.

Brown, P. J., and Dykman, J., concurred.


text:
    De Witt C. Bouker, Jr., v. The Long Island Railroad Company.
    No. 2.
   Judgment affirmed, with costs. No opinion.

All concur.


text:
    Jane Hussey, Respondent, v. The New York Recorder Company, Appellant.
    Judgment affirmed,with costs,with leave to defendant to answer in twenty days on payment of costs.
   Pratt, J.:

I entertain no doubt of the propriety of the action of the learned trial judge in overruling this demurrer. The case of Moore v. Francis (121 N. Y. 199), so much relied on by appellant, is an authority against it. We think the complaint states a plain cause of action for libel. We fail to find in the opinion in that case the words,apparently quoted in defendant’s points. Judgment affirmed, with costs, with leave to defendant to answer within twenty days on payment of costs.

Brown, P. J., and Dykman, J., concurred.


text:
    Catharine Wimmer, Respondent, v. Patrick Cleary and Others, Appellants.
   Judgment affirmed, with costs. No opinion.

All concur. Dykman, J., not sitting.


text:
    Ellen O'Connor, Respondent, v. The Sea Side and Brooklyn Bridge Railroad Company and Others, Appellants.
   Judgment affirmed, with costs. No opinion.

All concur.


text:
    James L. Reynolds, Respondent, v. The New York Building Loan Banking Co., Appellant.
    —Judgment and order affirmed, with costs.
   Pratt, J.:

There is no dispute that the secretary was the proper person to receive notices of withdrawal of funds. The power to receive notices implied the power to reject them if irregular, and the duty to inform the applicant of the action taken. Any other rule would give a corporation a license to commit fraud. Had the secretary, when the notice was given, announced to plaintiff that the transfer of shares to him must be entered on the corporation books, that would have been promptly done. That obligation was for the benefit of the company. Once waived, it cannot now be insisted upon. Judgment affirmed, with costs.

Dykman, J., concurred; Brown, P. J., not voting.


text:
    William N. Coler and Others, Appellants, v. The South St. Paul Belt Railroad Company, Respondent.
   Judgment affirmed, with costs, with leave to plaintiff to amend his complaint in twenty days on payment o£ costs. No opinion.

All concur.


text:
    John L. Merritt v. John B. Pierano.
   Reargument ordered.

       See ante, page 207.


text:
    Benjamin Tuthill, Appellant, v. Mary R. Goss and Another, Respondents.
    Judgment affirmed, with costs, with leave to defendant to answer in twenty days on payment of costs.—
   Pratt, J.:

The opinion at Special Term covers the question so fully that further discussion is unnecessary. The statements m the 8th subdivision of the defendant’s pleading are appropriate for an answer but out of place in a demurrer. They were, therefore, properly disregarded at Special Term as not being properly before the court. The judgment must be affirmed, with costs, with leave to answer on payment of costs.

Brown, P. J., and Dykman, J., concurred.


text:
    Wilhelm Stabenau, Respondent, v. Atlantic Avenue Railroad Company, Appellant.
   Judgment and order affirmed, with costs. No opinion.

All concur.