author: Merwot, J.:

text:
    Thomas Quinn, Appellant, v. Frank B. Jenks and Others, Respondents.

      HguiiaMe relief— an issue tried in a former action, not considered again — when a judgment will not be set aside for fraud— ignorance of facts, when not mailable as a defense —purchasers in good faith protected — liability of one purchasing apart of premises and promising to pay a mortgage upon the whole, to one purchasing (mother pmt —• one who seelcs to enforce the liability must hare paid the debt.

    In an action brought to set aside a sale in foreclosure, to obtain an order for a resale, to set aside a judgment recovered in a former action brought by the defendant against the plaintiff upon a warranty of title and to recover damages as for fraud, it appeared that at t-he time of the trial of the former action all the facts set forth in the present complaint would have been available as a defense to the former action; that the present plaintiff knew or might by diligence have learned at that time all the material facts; that instead of attacking a sale made under a loan commissioners’ mortgage (which sale he claimed was illegal because the equitable principle as to sales in the inverse . order of alienation had been violated) he elected to defend upon other grounds, carried his appeal to the Court of Appeals, and did not attempt to enforce his equities specifically against the land in question until the rights of bona fide purchasers had attached; there was no nroof of fraud.

      Held, that he was not entitled to equitable relief ;
    That the present plaintiff having in the former action fully raised an issue and having had an opportunity to try it, that issue could not be tried again;
    That the court had no authority to vacate a judgment of a court of co-ordinate jurisdiction for fraud, where there was no proof that the defendant in the former action was prevented by any act or contrivance of the plaintiff in tne former action, nor by any accident, not involving his own negligence or that of his agents, from prosecuting his defense in the former action;
    That ignorance of facts constituting a defense does not excuse a party from omitting to make the defense, unless it can be shown that he could not have acquired the information by diligence;
    That as it appeared that purchasers in good faith of the premises had gained rights, the situation being changed, the plaintiff was not entitled to equitable relief affecting the premises themselves.
    In 1871 Daniel Curtin and John Curtin were the owners of 185 acres of land which were subject to a loan commissioners’ mortgage. At that date Daniel Curtin conveyed to John Curtin about fifty-six acres 01 this land, and covenanted to save John harmless from the loan commissioners’ mortgage; at the same time John Curtin conveyed to Daniel Curtin about seventy-nine acres of this land, and no mention was made in this deed of the loan commissioners’ mortgage. John Cur ■ tin conveyed the fifty-six acres to Thomas Quinn, and agreed to save him harmless from the loan commissioners’ mortgage. Frank JB. Jenks, mesne grantee from Quinn of the fifty-six acres, was ousted from possession by a sale upon a foreclosure of the loan commissioners’ mortgage had in 1888. At this sale the fifty-six acres were sold first, and realizing the amount of the mortgage, exonerated the seventy-nine acres.
    In an action brought by Jenks against Quinn on his covenant of warranty, in which Quinn answered that the sale was inequitable, and that the seventy-nine acres should have been first sold, Jenks recovered a Judgment against Quinn, which Quinn has not paid.
    At the time of the foreclosure the seventy-nine acres were owned by "William D. Hunt, who had purchased the same upon the foreclosure of a mortgage (given after the loan commissioners’ mortgage and in renewal thereof), which covered part of the land and secured part of the amount secured by a mortgage covering the whole tract, and given before the loan commissioners’ mortgage, and before the Curtins got title, and had given no express covenant binding him to pay the loan commissioners' mortgage.
    The present action, to which Hunt was made a party, but Daniel Curtin was not, was brought by Quinn to set aside the sale upon the foreclosure of the loan office mortgage, and also the judgment in JenJcs v. Quinn.

      Held, that the plaintiff could not recover against Hunt;
    That the rule that where a purchaser of a portion of mortgaged premises agrees to pajr the whole mortgage he is liable to the purchaser of the remainder for the damages resulting from a failure to pay the mortgage and the consequent sale of the whole property, and that grantees of the purchasers who have assumed his obligations will also be so liable, did not apply;
    That Hunt had not agreed to pay the loan office mortgage, and that Quinn had paid nothing as yet upon the liability which he was now attempting to enforce.
    Appeal by the plaintiff, Thomas Quinn, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Cortland on the 8th day of January, 1895, upon the decision of the court rendered after a trial at the Cortland Special Term dismissing the complaint upon the merits.

      A. P. Smith, for the appellant.
    "FT. G. Grombie, for the respondents.
   Merwot, J.:

On the 20th of June, 1837, Jonathan and Hansom Scott, being then the owners of 150 acres of land in the town of Scott in the county of Cortland, gave a mortgage thereon to the loan commissioners of Cortland county for the sum of $496. The foreclosure of this mortgage and the sale thereon on the 7th of February, 1888, of fifty-six acres, a portion of the mortgaged premises then owned by the defendant Frank B. Jenks, have given occasion to this litigation. The purchaser at the sale was the defendant Frank L. Cud-debacle, who thereupon took possession of the property, dispossessing Jenks. The latter thereafter, and on or about April 9, 1888, commenced an action in the Supreme Court against Thomas Quinn, the plaintiff in the present action, upon his warranty of title to "William S. Jenks, the grantor of Frank P. Jenks. That action was tried in October, 1890, at the Cortland Circuit before the court without a jury, and a decision was rendered in favor of the plaintiff therein for the sum of $1,906.19, the value of the premises at the time of the eviction, with interest and costs. Judgment in accordance with the decision was entered on January 13, 1891. The defendant therein appealed to the General Term, where the judgment ivas affirmed in November 1891 (61 ITun, 427), and judgment of affirmance was entered on December 4, 1891. An appeal was taken to the Court of Appeals on the 21st of January, 1892, the return being filed March 7, 1892. The Court of Appeals affirmed the judgment (137 N. Y. 223) and judgment of affirmance was entered on the 13th of March, 1893.

On or about the 16th of March, 1892, the present action was commenced, a notice of pendency being filed on the 21st of March, 1893. Its object, as indicated by an amended complaint, verified July 19, 1893, is to set aside the foreclosure sale, and obtain an order for a resale; set aside the judgments in the case of Jenks v. Quinn, and in the mean time restrain their collection, and recover damages of certain of the defendants. The gravamen of the complaint is fraud and conspiracy in bringing about the sale on the foreclosure of the fifty-six acres, when in fact as the plaintiff claims another portion should have been -first sold.

On the 12th of March, 1867, Hansom Scott, assuming to be the entire owner of the 150 acres covered by the loan mortgage, conveyed the same to Charles Pardee, subject to the mortgage which Pardee assumed as part of the purchase price. On April 1, 1868, Pardee conveyed about 1354- acres to John Curtin and Daniel Curtin, subject to the mortgage which the Curtins covenanted to pay. At the same date Pardee, by warranty deed, conveyed to George W. Hunt about sixteen acres, being the balance of the 150. acres, except about two acres. Nothing was said in this deed about the loan mortgage. The Curtin’s gave back to Pardee on the property conveyed to them a mortgage dated April 1, 1868, and recorded May 3, 1872, for $2,986.41, part of tlie purchase money. On October 2, 1871, Daniel Curtin gave to John Curtin a quit-claim deed of fifty-six and one-half acres, being that part of the farm on the west side of the highway, and John Curtin deeded to Daniel seventy-nine acres, being that part of the farm on the east side of the highway. These deeds were both. recorded on December 11, 1871. In the deed from Daniel to John there was the following clause: “ And the party of the first part herein covenants and agrees to save the party of the second part harmless from and pay off and liquidate a certain loan mortgage of four hundred and ninety-six dollars upon the premises herein described.” The party of the first part also covenanted to pay the sum of $1,535.35 on the mortgage to Pardee. In the deed from John to Daniel the party of the first part covenanted to pay on the Pardee mortgage the sum of $1,452.95, and nothing appears-to be said about the loan mortgage.

On December 8, 1871, by warranty deed recorded December 11, 1871, John Curtin conveyed to Thomas Quinn, the present plaintiff, the fifty-six acres, and in this deed the party of the first part covenanted to save the party of the second part harmless from the loan commissioners’ mortgage, and the party of the second part agreed to pay on the Pardee mortgage the sum of $1,334.38. On March 8, 1873, Quinn, by warranty deed recorded February 1, 1874, conveyed the fifty-six acres to the defendant William S. Jenks for the consideration as therein expressed of $2,200, and the party of the second part agreed to assume and pay on the Pardee mortgage the sum of $1,3S4.32. On the 9th of February, 1874, William S. Jenks gave to Pardee a mortgage on the fifty-six acres for the sum of $1,270.43, and at the same date Daniel Curtin gave to Pardee a mortgage on the seventy-nine "acres for the sum of $1,321.57. These two mortgages were given to take up the mortgage given to Pardee in 1868, and covering both jueces, and that was discharged of record on February 25, 1874. The mortgage given by Daniel Curtin was assigned to the defendant William D. Hunt, and foreclosed, and upon the sale on August 9, 1878, Hunt became the purchaser and went into possession and so continued until he conveyed to the defendant Childs after the sale on the loan mortgage.

On February 24, 1881, William S. Jenks by warranty deed conveyed the fifty-six acres to the defendant Frank B. Jenks subject to the mortgage given in 1814: to Pardee, and then held by the defendant Isaiah Cuddeback, which Frank B. Jenks assumed and agreed to pay. This mortgage on the 7th of February, 1888, was held by the defendant Frank L. Cuddeback.

Upon the sale on the 7th of February, 1888, under the loan commissioners’ mortgage, the fifty-six acre piece was first put up and was bid off by Frank L. Cuddeback for just the amount of the mortgage, interest and costs, thus releasing entirely the seventy-nine acres. After the sale and on the same day William D. Hunt, by warranty deed dated and recorded that day, conveyed to the defendant E. W. Childs the seventy-nine acres with other property for the consideration of $3,000, and April 1, 1890, Childs, by warranty deed recorded May 27, 1890, conveyed the seventy-nine acres to the defendants Sweeney, who now own the same. Frank L. Cudde-back, the purchaser on the sale, conveyed the fifty-six acres to defendant Isaiah Cuddeback by deed dated June 6, 1890, and recorded June 10, 1890, and he, by warranty deed dated the 7th of March, 1892, and recorded June 3, 1892, conveyed the same to the defendant Anderson, who now owns the same.

In the action against Qui»n on the warranty, the defendant therein alleged, among other things,' that by the covenant in the deed from Daniel to John Curtin, .the seventy-nine acres became primarily charged with the whole of the loan mortgage; that the charge continued down to the time of the sale and was known to Frank B. Jenks as well as to Hunt, the owner of the seventy-rpne acres; that Jenks was present and took part in the sale ; that the holders of the loan mortgage sold the fifty-six acres first at the request of Hunt and with the consent of Jenks, and without any objection from him or demand that the seventy-nine acres should be first sold, and that Jenks is estopped from claiming on the warranty. It appeared on the trial that Quinn was duly notified of the sale and promised Jenks to be present and protect him as to the fifty-six acres; that he failed to be present on account of sickness ; that the loan commissioners sold the fifty-six acre piece first, under the mistaken idea that it was first liable. It was held that the failure to sell the piece primarily liable did not make the sale void and that, the purchaser acquired a valid title, and that the failure of Jenks to. object at the time of the sale did not estop him from claiming on the covenant, although, if he had objected, the result would have been different. In the Court of Appeals, upon the affirmance of the judgment, importance was given to the circumstance that it was not found that Jenks had any actual knowledge of the covenant in the deed from Daniel Curtin or its legal effect, and it was held that Jenks was not charged wffth constructive notice from the record of Daniel’s deed of the covenant herein.

The present action is against the owners of both pieces at the time of the sale, and those to whom conveyances of either part have been made since. The loan commissioners are also parties. It was held by the Special Term : “ (1) That, upon the evidence and proofs in this case, the plaintiff is not entitled to any equitable relief in this action; (2) that, at the time of the trial of the action of Frank B. Jenks against the plaintiff, Thomas Quinn, and the procurement of the judgment sought to be set aside by the plaintiff by this action, all the facts set forth by the plaintiff in his complaint herein would have been available and admissible as a defense in said action ; that the plaintiff knew all of said facts at the time, or could have acquired the information by diligent and careful labor in the preparation of said case for trial, but negligently omitted to do so, and persisted upon the defense interposed by him in said action, and prosecuted appeals from the decision rendered therein to the Court of Appeals., and took no action to enforce his claimed equities until after the title to both parcels of land covered by the loan mortgage had passed by sale and conveyance to other parties, who became purchasers thereof in good faith and for value, without notice of the equities which plaintiff .asserts; (3) that the matters presented by the plaintiff’s complaint in this action were passed upon, or might have been passed upon, presented and considered in said action; (4) that there was no fraud practiced on the trial of said action by the plaintiff, Frank B. Jenks, or any other person on his behalf, or for him in the procurement of the said judgments by which the said Thomas Quinn, defendant, was prevented from interposing or availing himself of the facts set forth in the complaint herein as a defense in said action; (5) that there are no facts proven in this action upon which the foreclosure sale under the loan mortgage should be set aside; (6) there are no facts proven in this action upon which the judgment of Frank B. Jenks v. Thomas Quinn, or the foreclosure of the loan mortgage, ought to be set aside; (7) that this action, being an action in equity, and Jenks being free from any fraud or intentional injury to the plaintiff, this action cannot lie against any of the defendants herein; (8) that the judgments recovered by Frank B. Jenks against the said plaintiff are valid and legal judgments, and the said Frank B. Jenks, plaintiff, is entitled to enforce and collect the same.”

There is evidence tending to show that, before the sale, the defendant Hunt claimed that the fifty-six acre piece was chargeable with its proportion of the loan mortgage, and that Quinn, representing that piece, had agreed with Hunt to be present at the sale and contribute its share toward the payment of the mortgage. At the time of the sale Quinn was not present. The defendant Hunt, together with Charles I. Hunt, who acted for the owners of the sixteen acres deeded to. George ~W. Hunt in 1868, and defendant Frank L. Cuddeback, who held a subsequent mortgage on the fifty-six acres, raised the money, which was paid to the loan commissioners on the sale, each contributing according to the valuation of their respective parcels. There was evidence tending to show that the sale of the fifty-six acres first was not by the request of the defendant Hunt, hut at the instance of one of the commissioners, he being misled by an error in a search.

It is in effect found that there was no fraud or conspiracy on the part of any of the defendants, and there is evidence sufficient to sustain this view of the case. So far, therefore, as the plaintiff seeks to overturn the judgment in the case of Jenks v. Quinn, by reason of such alleged fraud or conspiracy, the present action has no basis.

But the plaintiff claims that an essential circumstance in the determination of the case of Jenks v. Quinn was the absence of a finding that Frank B. Jenks had actual notice of the covenant in the deed from Daniel to John Curtin, and that in the present case he has shown the fact of such actual notice. The evidence, however, on that subject is contradictory, for Jenks testifies that he never had any actual notice of the covenant of Daniel Curtin. Be that as it may, the issue as to such notice was fully raised in the former case, and Quinn had full opportunity to try that issue. No good reason is presented for trying it oyer again in this case, within the well-settled rule on that subject. In Mayor, etc., of N. Y. v. Brady (115 N. Y. 599) it was held, as summarized in the head note, that “No court has authority to vacate and set aside a judgment of a court of co-ordinate jurisdiction upon the ground that the contract upon which it was based was fraudulently obtained, or that there had not been an honest and fair performance thereof, in the absence of proof that the defendant in the action wherein the judgment was obtained was prevented by some act or contrivance of the plaintiff, or by some accident unmixed with negligence of himself or his agents, from prosecuting his defense therein.

“ The fraud’ which will authorize one court in a collateral'proceeding to revise the judgment of another court is a fraud practiced in the procurement or concoction of the judgment, by which the defendant was prevented from availing himself of some defense.

“ Ignorance of facts constituting a defense does not excuse the omission of a party to make it, or entitle him to the aid of equity, unless it can be shown he could not have acquired the information by diligent and careful labor in preparing the cause for trial.”

In view of the law as thus laid down, we are of the opinion that the trial court did not err in holding that no sufficient reason existed for setting aside the judgments in Jenks v. Quinn as invalid.

Assuming those judgments to be valid, is it shown that the court erred in refusing to set aside the foreclosure sale ? The plaintiff, by reason of sickness, was unable to attend the sale, but he took no steps to have any one else appear for him. He knew immediately thereafter that the fifty-six acres had been sold, and that his liability on the warranty would be enforced, and still he took no steps to set aside the sale until four years afterwards, and until, as the'trial court finds, the title to both parcels had passed to purchasers in good faith for value, without notice of plaintiff’s equities. The plaintiff says that he did not know, until just before the commencement of this suit, in March, 1892, that the funds to pay the bid on the sale were raised by contribution from' the owners of the other pieces in association with the purchaser Cuddeback. Still, for aught that appears, he might readily at any time after the sale, by reasonable inquiry, have found out all about it. He knew from the start the main fact, which was that the fifty-six acres had been sold, without right as he claimed. Instead of attacking the sale he elected to defend the suit on his warranty.

But the plaintiff claims that the purchasers under William D. Hunt are chargeable with knowledge of the existence of the loan mortgage and of the covenant of Daniel Curtin. To this it is replied that Hunt held under a sale upon the mortgage given to Pardee, which was in renewal or substitution for a purchase-money mortgage that was prior to Daniel Curtin’s covenant, and that equitably, therefore, Hunt’s title was not subject to that covenant. It is also suggested that the deed from Daniel to John Curtin, in which was the covenant ref erred to, was not a link in the title of the seventy-nine acres, and so the doctrine of constructive notice does not apply. (Acer v. Westcott, 46 N. Y. 384.) The covenant was not referred to in the deed from John to Daniel. There was proof that the purchaser from Hunt, the defendant Childs, had no actual notice of the covenant of Daniel. If there was constructive notice, still he had a right to believe that the sale was legal, as it was finally decided to be, and that it operated to discharge the mortgage. He -knew that his grantor advanced his proportion, and he was informed that the other owners had agreed to pay the balance. The trial court was, we think, justified in its conclusion that Childs and his subsequent grantees, the defendants Sweeney, were purchasers in good faith for value and without notice of plaintiff’s equities. There is also evidence tending to show that the present owner of the fifty-six acres, the defendant Anderson, purchased in good faith without any knowledge or information that the jfiaintiff claimed that the sale was, as to the purchaser, invalid.

As the case stands we cannot properly say that the court erred in holding that the plaintiff was not entitled to equitable relief. It is not a case where there has been no change in the situation as in the case cited of Vilas v. P. & M. R. R. Co. (123 N. Y. 440).

It is argued on the part of the appellant that the amount of the recovery in the warranty suit was inequitably large, and that relief should be given here. On the contrary, we must assume that the amount there allowed was correct. All the facts in regard to that subject were before the court, or the defendant there had full opportunity to present them. In fact, practically all the material facts did appear, and tbe conclusion there arrived at cannot be reviewed here.

But the plaintiff claims that in this action he should recover against some of the defendants damages for the improper sale of the fifty-six acres, either on the ground of fraud and conspiracy or in accordance with a suggestion to be found in the opinion delivered in Jenks v. Quinn in the Court of Appeals (137 N. Y. 223). As no fraud or conspiracy is found, relief cannot be given on that basis. In the opinion in the Court of Appeals it is said: “ The covenant of Daniel Curtin to pay the mortgage charged him and his land with its payment. If the same obligation devolved upon his grantee and the benefit of it passed to the defendant, then these grantees may be liable to him upon the facts adjudged,” citing the case of Wilcox v. Campbell (106 N. Y. 325). In that case a purchaser of a portion of mortgaged premises, who assumed and agreed to pay as a part of the purchase price the whole mortgage, was held liable to respond in damages to the grantee of the balance of the premises for his failure to pay the mortgage and the consequent sale of the whole property. The doctrine of principal and surety was applied.

Daniel Curtin is not a party to this action. In the transfer .to "William D. Hunt no personal liability was imposed upon him to pay the mortgage in question, nor was there upon his grantees. So that the rule laid down in the Wilcox case and the suggestion in Jenks v. Quinn would not seem to apply. Besides, the plaintiff has not yet paid anything on his liability. (Halsey v. Reed, 9 Paige, 445.) The judgment against him is not proof that the debt is paid or will be. (2 Sedgwick on Dam. [8th ed.] § 802.)

We have thus considered the main questions in the case, and all that seem to call for discussion, and we find no ground upon which we can properly base a reversal. It follows that the judgment must be affirmed.

HaediN, P. J., and MaetiN, J., concurred.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: MebwiN, J.:

license: Public Domain

text:
    John Wells, Respondent, v. Rial Tolman, Appellant.

      Reservation of a right of way — available to a subsequent grantee, although not mentioned in his deed — the intention ofthepcvrties governs — costs.

    Daniel H. Huntington, who owned a farm of 100 acres, which included a wood lot of twenty acres, on the 1st of April, 1869, conveyed to William L. and Mathew P. Skellinger premises consisting- of thirty-five acres, and which included the north half of the wood lot. This plot, to which the defendant Tolman acquired title from the Skellingers, was so situated as to cut off the south half of the wood lot from the rest of the Huntington farm.
    Over a definite part of the premises so conveyed, known as the “east lot.,’’ Huntington had for some time maintained a private road which extended from the south half of the wood lot to the other portion of the farm of Huntington. In the deed to the Skellingers there was the following clause: “ Beserving the right of way over the east lot to and from the wood lot at all times when said lot is not sown with grain, and at all times when there is sleighing.
    On the same day Huntington conveyed the whole farm to John Wells, excepting * ‘ that portion thereof this day deeded ” to the Skellingers, hut made no reservation in this deed of a right of way over the east lot. The defendant Tolman, a grantee of the Skellingers, ky mense conveyances, shut up the private road, whereupon John Wells brought this action to establish the existence of the road.

      Held, that both deeds must be construed together, and that it was clearly the intention of the parties that the reservation of a right of way over the east lot should exist for the benefit of the plaintiff;
    That, as the owner of the dominant tenement, the plaintiff had a right to enter upon the road and make such repairs as were necessary for its reasonable use; That the true construction of the reservation was that the plaintiff had a right to pass and repass over the road with teams, transporting products of the wood lot, at all times when the intervening land was not, in good faith, so sown with grain that its use for a roadway would result in substantial damages to the owner of the fee; and at all times when there was sleighing, whether or not the “ east lot” was sown with grain;
    That as the defendant had compelled the plaintiff to resort to litigation in order to secure his rights, the defendant was properly .charged with costs.

      Semble, that the defendant had no right to plow up the road and sow grain thereon.
    Appeal by tbe defendant, Bial Tolman, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Onondaga on the 3d day of April, 1893, upon the decision of the court rendered after a trial at the Onondaga Special Term.
    Wilson, Kellogg dé Wells, for the appellant.

      Eckowd H. Burdick, for the respondent.
   MebwiN, J.:

This action was brought to establish the existence and determine the extent and character of a private road, across defendant’s premises, leading from one portion of plaintiff’s farm to another portion entirely disconnected. The premises of both parties were on the 1st of April, 1869, owned by and in possession of Daniel Ii. Huntington, and consisted of a farm of something over 100 acres, including a .wood lot of about twenty acres. On the date named Huntington conveyed to William L. and Mathew P. Skellinger the premises now owned by defendant, being thirty-five acres, including the north half of the wood lot. This thirty-five acres was so situated as to cut off the south half of the wood lot from the remaining portion of the farm. In this deed was the following clause : “ Reserving the right of way over’ the east lot to and from the wood lot at all times when said lot is not sown with grain, and at all times when there is sleighing.” Huntington, on the same day, conveyed the balance of the farm, including the south half of the wood lot, to the plaintiff. In the deed to plaintiff the whole farm and wood lot were described, and then there was excepted therefrom that portion thereof this day deeded ” to the Skellingers. The south half of the wood lot so conveyed to the plaintiff was entirely surrounded by the land of others so that plaintiff could' have no access to it except by passing over property that did not belong to him. ' The “ east lot,” referred to in the reservation in the deed to the Skellingers, was at that time a definite portion of the cleared land conveyed by the deed, and was separated from the balance of the cleared land by a fence, and was the lot directly between the plaintiff’s cleared land and his half of the wood lot. Prior to these conveyances Huntington had for some time maintained a private road wholly upon his own premises, extending from the south half of the wood lot across the east lot to a portion of the land so conveyed to plaintiff where it connected through a barway with a lane on plaintiff’s portion of the premises running to a public highway. This road had been used by Huntington, for some years prior to the deeds, for the purpose of drawing wood and stone from the wood lot. The south half of the wood lot was covered with timber, and there was also upon it a stone quarry that had been opened in 1846, and to which the road ran, and this quarry the plaintiff has operated and taken out and drawn stone therefrom. The road ran from the wood lot in the most direct practicable route to the bar-way near the head of the lane.

It has continued to exist ever since the conveyances from Huntington, in the same location, connecting the same points, clearly defined and easy to be followed, and has been used by plaintiff whenever he had occasion to drive or pass back and forth between the lane and wood lot without let or hindrance, until in May or June, 1892, when the defendant, having sown a portion of the east lot to grain, built a fence across it that intersected the road, hut left no gate or barway in the fence where it crossed the road. The defendant neglected and refused to take down the fence or remove the obstruction, after notice and request from the plaintiff so to do, and refused to recognize the right of the plaintiff to the roadway as used by him and his grantors for over forty years. This road was located and open and visible at the- time of the conveyances by Huntington, and the same way with the identical track has been used by the plaintiff ever since. It. is, as it runs, about forty-seven rods long and about eight feet wide.

The foregoing facts are substantially as found by the court upon sufficient evidence. '

Yery clearly the court did not err in holding' that the plaintiff was entitled to the benefit- of the reservation in the deed to the Skellingers, although it was not expressly mentioned in the’deed to him. (Washb. on Easem. & Serv. [4th ed.] 40.) That was clearly the intention of the parties, and both deeds are to be construed together. (Hills v. Miller, 3 Paige, 254.) Although the language of the reservation was somewhat indefinite, there was a practical location that hinds the parties. (Onthank v. L. S. & M. S. R. R. Co., 71 N. Y. 194, 198.) The surrounding circumstances and the use before and after the deeds leave no doubt on the subject. .

The court held that the plaintiff, as the owner of the dominant tenement, has the right to enter upon the roadway for the purpose of making and to make such repairs as, in view of the nature of the roadway and the surrounding circumstances, are necessary for the reasonable and convenient use thereof, and to keep the same in good condition for the convenient and practicable use of the same, doing no unnecessary injury to the defendant’s surrounding lands or whatever may be growing tbereon. There is no doubt about the general rule as to the right of repair. (Herman v. Roberts, 119 N. Y. 42; Washb. on Easern. 293.) We see no good reason why the general rule should not be apjalied to this case substantially as it has been done by the trial court. The road was intended to be permanent; its plain object would not otherwise be accomplished. Yery evidently it needed repairs from time to time. The defendant claims that whenever he desired to sow to grain any portion of the east lot that included any part of the road he had a right to plow up the road. This had not been done until defendant did it in 1892, and a reasonable construction of the reservation would not allow it. If the design was to have a definite route and a permanent road that could be safely used at any time allowed under the grant, it would be inconsistent with such design to give the defendant the right, at any time he chose, to materially injure its usefulness. The use of the owner must be consistent with the easement. (Herman v. Roberts, 119 N. Y. 43.)

The defendant claims that the court improperly construed the reservation. Several findings of law on the subject are excepted to, the most important of which and the only one that need be particularly discussed, is the sixth, which is as follows: “ That the true construction and meaning of the words of said reservation are, that the plaintiff has the right to pass and repass upon said roadway between the wood lot over the east lot ’ to the barway at the head of the said lane, with teams, and to transport wood, stone and the products obtained from said wood lot, at all times when the intervening land is not in good faith so sown with grain that the use thereof for a roadway would result in substantial injury to the owner of the fee, and at all times when there is sleighing whether or not said £ east lot ’ is sown with grain.” It apparently was contended by the defendant at the trial that whenever he sowed to grain any part of the east lot that included any part of the road, he could entirely close the road until the crop was off. The plaintiff claimed that by reason of his long user of the road at all times without let or hindrance, although on some occasions the land was sown to grain, he had a right to pass over the route although the lot was sown to grain. A construction of the reservation was sought on the one hand that would put it in the power of the owner of the lot at his will, by tlie use for. grain of an insignificant part of tlie lot, to block tbe use of tlie entire road, and evidence was given tending to show that the sowing in 1892 was not in good faith, but for the purpose of stopping the drawing of stone by plaintiff from his quarry on the wood lot. On the other hand, a construction was sought that might in effect do away with the evident design of the reservation to give protection to the owner when the lot was used in a particular way. At the time of the deed the east lot ” was a definite inclosure, the road was entirely on it, and there was no fence that crossed it. The. defendant in 1892 divided the lot with a fence that crossed the road, and used for grain the portion next the wood lot. It is not to be supposed that the parties intended that the owner of the lot, by the use of only a portion and for ulterior purposes, could get the benefit of the reservation when in no substantial need of it for the protection of his grain. The easement ran ivith the land and was perpetual, and its future usefulness must be supposed to have been in contemplation of the parties. Having this situation in view and the practical use that had without objection been given to the road up to 1892, we fail to find any good reason for the defendant to complain of the construction given by the court to the reservation. Provision was made that any fence across the roadway erected by defendant to protect his crops should have a convenient gate or bar-way at the crossing, and that plaintiff should close such gate or bars promptly after using the same.

It is further claimed by the defendant that costs should not have been given against him. They were given upon the ground that the action of the defendant made litigation necessary in order to protect the rights of the plaintiff. Upon the trial, as appeal’s from the record, the defendant claimed that the plaintiff had no right of way at all.

It also appeared that defendant claimed that the plaintiff had no right to draw stone over the road. lie claimed the right to plow it up whenever he sowed with grain. The costs were in the discretion of the court. The character of the litigation was within the particular observation of the trial court. We find no sufficient ground for saying that the discretion of the court on the subject was improperly exercised.

HaediN, P. J., and MaetiN, J., concurred.

Judgment affirmed, with costs.


author:
      MaktiN, J.:
      Merwiet, J.

text:
    In the Matter of the Judicial Settlement of the Accounts of Jacob A. Nottingham and Maurice A. Graves, as Executors, etc., of Daniel Edgar Crouse, Deceased. George N. Crouse and Others, Appellants; Jacob A. Nottingham and Another, Executors, Respondents.

      Res adjudiaata— what orders are not appealable — executors may not expend money to investigate whether a person judicially declared to be dead is alive.

    A judgment of a court of competent jurisdiction, upon an issue litigated therein "between the same parties, is conclusive in all subsequent controversies where the matter comes directly in question.
    Where the Supreme Court has decided in an action that a certain person has died without issue, and subsequently, upon an accounting by certain executors, the same persons who were parties to such prior action are parties to the accounting, the Surrogate’s Court need not strike frbm the citation the name of the deceased person. Its presence in the citation does not affect the rights of any one, and an order refusing to strike out such name is not appealable.
    An order denying a motion made by one Of the parties to an accounting (and not opposed by any other party thereto), that the court proceed forthwith to distribute the pérsonal estate, is not appealable.
    The controversy in such a caséis between the court and the parties, and the remedy, if any, is by mandamus to compel the court to perform its duty.
    Where the fact of the death of a person has been established by the Supreme Court and the same persons who were parties to the action in which such decision was made subsequently become parties to an accounting, the fact of death is, by the prior adjudication, established in the latter proceeding, and any expenditure of money by the executors to conduct further investigations to determine whether the person is dead are unnecessary and improper and will not be authorized or directed by the Surrogate’s Court.
    Merwot, J., dissenting.
    Appeal by George N. Crouse and others from a decree of the Surrogate’s Court of the county of Onondaga, entered in said court on the 12th day of March, 1895 : (1) Denying the appellants’ motion to amend the proceedings for an accounting pending in that court by striking out the name of Ansel White, Jr., and his heirs wherever the same occurred as parties to that proceeding, upon the ground that the Supreme Court, in an action where all the parties to that proceeding were parties to the action, had judicially determined that Ansel "White, Jr., died prior to the death of the testator and left no lawful issue. (2) Denying the appellants’ motion to forthwith make and enter a decree for the distribution of the residuary personal estate to and among the several persons named in said judgment as being entitled thereto. (3) Ordering the executors to take further steps to ascertain whether or not Ansel White, Jr., was actually dead, and, if dead, the time of his death and what children, if any, he left surviving him, and directing them to pay the expenses of such search out of the estate, to an amount not exceeding $5,000, unless otherwise ordered, and adjourning the proceeding from time to time to enable the executors to comply with the terms of such order.
    In an action in the Supreme Court between the same parties, relative to the will of the testator and its construction, the court found .as'follows:
    “ Sixth. That Catherine Crouse, the mother of said deceased, had a brother by the name of Ansel White, Jr.; that said Ansel White, Jr., died more than twenty-five years prior to the death of the said Daniel Edgar Crouse; that said Ansel White, Jr., left no widow, child, children or lawful issue him surviving.”
    The judgment adjudged, among other things, as follows: “ That the various legacies contained in the third, fourth, fifth, sixth, seventh, eighth, ninth and tenth clauses of the will of Daniel Edgar Crouse are, and each of them is, valid; that Ansel White, Jr., the maternal uncle of the said Daniel E. Crouse, deceased, died prior to the death of the said Daniel Edgar Crouse, leaving him surviving no widow, child, children, descendants or lawful issue ; * * * ” that certain persons therein named “ are the only persons entitled to any interest under the will of Daniel Edgar Crouse, deceased, in the residue of the personal property of the said deceasd, after the payment of debts, liabilities, expenses of administration, costs, allowances, commissions, annuity to Kate C. Ledlie under the will of John Crouse, deceased, succession tax, and such legacies as are held to be valid.”

      William Q. Tracy and Steele, De Friese & Dickson, for the appellants.

      WilUam Nottingham, for the respondents.

       Decided May 31, 1895.

   MaktiN, J.:

The first question presented is whether the Surrogate’s Court erred in refusing to strike out the name of Ansel White, Jr., and his heirs, wherever the same appeared as parties to the proceeding for an accounting before that court. If we assume that the judgment entered'in the Supreme Court was binding upon the parties to-this proceeding, and conclusive as to the death of Ansel White. Jr., without lawful issue, still it is not quite apparent how that fact required the Surrogate’s Court to eliminate from the proceedings before him the name of Ansel White, Jr., and his heirs. While the judgment of the Supreme Court was conclusive evidénce of.the death of Ansel White, Jr., without lawful issue, still the existence of that fact did not, we think, require the court to eliminate his name from the record in the proceedings before it. If, by reason of the introduction of such judgment in evidence, the Surrogate’s-Court is bound to find that Ansel White, Jr., died without issue, the other parties to the proceeding are entitled to the estate in the proportions stated in the judgment in the Supreme Court, and each of the appellants will receive his proper share as effectually as though the name of Ansel White, Jr., and his heirs had been stricken from the record. Hence, we think it follows that the denial of the appellants’ motion to strike his name and the names of his heirs from the record in the proceeding did not affect any substantial right of the appellants, and consequently the order denying such motion was not appealable. (Redf. Law & Prac. of Surr. Courts, [5th ed.] 902; Code Civ. Proc. § 2510; Accounting of Burnett, 15 N. Y. St. Repr. 116.)

We are also of the opinion that that portion of the order wdiich denied the appellants’ motion to forthwith proceed with the distribution of the personal estate is not appealable. None of the parties opposed the appellants’ motion. The court refused at that time to make the decree asked for. The controversy was between the court and the parties. If the court improperly refused to proceed in the matter and make the proper decree, the appellants’ remedy was not by appeal but by mandamus to compel the court to discharge its duty. If this portion of the order was reversed it wrould not compel the court to proceed in the matter of the accounting, and this court should not on this appeal attempt to make an order in the nature of a mandamus. (Hayes v. Consolidated Gas Company of New York, 143 N. Y. 641.)

This leaves for consideration the question whether that portion of the surrogate’s order which directed the executors to make further effort to ascertain whether Ansel White, Jr., was living, or if dead whether he left issue him surviving, and authorizing them to expend $5,000 in making such investigation, was authorized, and can be upheld. We are of the opinion that the Supreme Court had jurisdiction of the parties and the subject-matter of the action brought therein, and that as the questions whether Ansel White, Jr., was living or had died leaving issue, were made issues in that case and tried and determined therein, the judgment was conclusive upon all the parties to the proceeding in the Surrogate’s Court, and it was bound thereby. The rule that a judgment of a court of competent jurisdiction upon a point litigated'between the parties is conclusive in all subsequent controversies where the same matter comes directly in question, is elementary, and so well established in this State that no authorities need be cited to sustain it. Where two or more actions or proceedings are pending at the same time for the same cause, the judgment first entered becomes conclusive upon the parties, and is not controlled 'by priority in the commencement of the action or proceeding. (Herman on Estoppel, § 120.) Therefore, the fact that the proceeding before the Surrogate’s Court was first commenced, does not impair the effectiveness of the judgment of the Supreme Court.. As evidence it was conclusive as an adjudication of the same fact in an action between the same parties. (Krekeler v. Ritter, 62 N. Y. 372.)

The Supreme Court having found that Ansel White, Jr., died without issue before the testator,’s death, and the judgment adjudging that fact being conclusive evidence thei’eof, the surrogate was bound by the judgment, and there was, therefore, no necessity for that portion of the order which directed the expenditure of $5,000. of the estate in investigating a question which had already been conclusively settled by a court of competent jurisdiction. It follows, therefore, that the order appealed from, so far as it authorized the expenditure by the executors of $5,000 belonging to the estate, was unnecessary, unaizthorized, and should be reversed.

HaRdiN, P. J., concurred.

Merwiet, J.

(dissenting):

I think that the appeal should not in any respect prevail. Assuming that the Supreme Court judgment was an adjudication binding on the parties, the Surrogate’s Court, under the circumstances shown, had the right, under its power to control the conduct of the executors, to require them to make further investigation to a reasonable extent, to the end that if information was obtained that White or any descendants of his were alive, proper steps could be taken to obtain a modification of the judgment.

Order, so far as it authorized the expenditure of $5,000 to ascertain whether Ansel White, Jr., died before the testator, without issue, reversed, with ten dollars costs and disbursements to be paid out o* the estate.


author: EuesMAN, J.:

text:
    Jessie H. Bender, Respondent, v. Harry H. Bender, as Administrator, etc., of Franklin W. Bender, Deceased, Appellant.

      Bill of pa/rticula/i's— not ordered for the purpose of disclosing a possible defense — executed sealed instrument — estoppel as to the consideration thereof

    The ignorance of an administrator as to whether his intestate owed a debt evidenced by a written admission of such indebtedness by the deceased, does not entitle him in an action brought to collect the same to a bill of particulars of the circumstances out of which the indebtedness arose.
    The effect of a bill of particulars is either to enlarge or limit the scope of a complaint or counterclaim, and, in the absence of proof that there is a defense to the one or an answer to the other, a bill of particulars will not be ordered.
    Where a motion for a bill of particulars is evidently made for the purpose of ascertaining whether by means thereof some defense may not be discovered, of which at the time the moving party has neither knowledge nor information, a bill of particulars will not be ordered.
    Where an action is brought upon an executed sealed instrument, by which the defendant’s intestate was estopped from denying the consideration of the instrument sued upon, his personal representative is likewise estopped from denying the same.
    Appeal by the defendant, Harry II. Bender, as administrator, etc., of Franklin E. Bender, deceased, from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk of the county of Albany on the 20th day of April, 1895,, denying the defendant’s motion for a bill of particulars.

      Robert G. Scherer, for the appellant.

      Marcus T. Hun, for the respondent.
   EuesMAN, J.:

This action is brought upon a sealed instrument, a. copy of which is fully set out in the complaint. The instrument is signed by the defendant’s intestate. In it he acknowledges an indebtedness of $1,000 to the plaintiff’s assignor, and assigns to him sufficient of the moneys or property to which he may be entitled out of his father’s estate at his death, to pay that sum, with interest, and directs the executors or administrators (as the case may be) to pay the same and charge such payment against his portion of such estate. The complaint avers the death of the father leaving a last will, and that the portion of his estate bequeathed to the maker of the instrument is more than sufficient to pay the claim represented thereby. The maker of this instrument is dead and the defendant is his administrator. Before answering, the defendant moved for a bill of particulars, which was denied, and this appeal is from the order denying such motion. The motion was made upon the complaint and upon an affidavit of the defendant which sets forth that he intends to defend the action, but is wholly ignorant of the particulars of the claim alleged in the complaint and has no means of acquiring knowledge thereof sufficient to enable him to answer. There is nothing whatever stated in this affidavit tending to show that the defendant supposes there is any defense to the cause of action set forth in the complaint. The paper upon which the action is brought is fully set forth in the complaint. It in terms confesses an indebtedness and is under seal. The mere ignorance of an administrator as to whether his intestate owed a debt .evidenced by a written admission of the deceased does not entitle him to a bill of particulars of the circumstances out of which the indebtedness arose. (Fry v. Manhattan Trust Company, 53 N. Y. St. Repr. 566; Husson v. Oppenheimer, 45 id. 618, opinion of Pratt, J.; Mertage v. Bennett, 39 id. 367.)

There is no pretense in these papers that there is any defense to the cause of action set out in the complaint. This motion is evidently an attempt on the part of the defendant to ascertain whether, by means of a bill of particulars, some defense may not be discovered of which, at this time, the defendant has neither knowledge nor information. This is not the office of a bill of particulars. The effect of a bill of particulars is either to enlarge or limit the scope of a complaint or counterclaim ; and, in the absence of proof that there is a defense to the one or an answer to the other, a bill of particulars is never compelled. Moreover, the defendant’s intestate was estopped by his seal to deny consideration of the instrument sued upon, and his personal representative is likewise estopped. (Talbert v. Storum, 50 N. Y. St. Repr. 267, see page 269.)

The order should be affirmed, with ten dollars costs and printing disbursements.

PutNAM, J., concurred; HeeeioK, J., not acting.

Order affirmed, with ten dollars costs and disbursements.


author: PutNAM, P. J.:

text:
    William W. Van Keuren, as Executor, etc., of Rachel Van Keuren, Deceased, Appellant, v. Peter E. Van Keuren, Respondent.

      Decision of the Special Term on conflicting affidavits, not disturbed on appeal.

    Upon a motion made by the plaintiff in an action to add to and correct the judgment roll therein, the plaintiff’s affidavit tended to show that the defendant, upon the granting of a nonsuit, in open court waived all claims except as provided in the will of the plaintiff’s testatrix. The minutes of the court and extracts from the stenographer’s minutes also tended to show such a waiver.
    The defendant’s affidavit alleged that the minutes of the court did not contain all that took place at the trial; that the waiver he made was only of the demands set up in the answer, and not of the cause of action for the enforcement of which a prior suit of his against the plaintiff’s testatrix and another had been brought. The motion was denied.

      Held, that the General Term would not disturb the conclusion reached by the Special Term on conflicting affidavits.
    Appeal by the plaintiff, "William W. Yan Keuren, as executor, etc., of Rachel Yan Keuren, deceased, from an order of the Supreme Court, made at the Ulster Special Term and entered in the office of the clerk of the county of Ulster on the 11th day of March, 1895, denying the plaintiff’s motion to correct the judgment roll in the action.

      0. P. Garpenter and P. M. De Witt, for tlie appellant.

      G. P. Adams, for tlió respondent.
   PutNAM, P. J.:

The affidavits submitted to the court below were conflicting. Those read by tlie plaintiff tended to show that defendant, on the trial in the County Court, on the motion for a nonsuit being granted, in open court, waived all claims except as provided in the will of deceased. The minutes of the court and extracts from the stenographer’s minutes also tended to show such a waiver.

But defendant claimed that the minutes of the court did not contain all that took place on the trial. That the waiver he made was only of the demands set up in the ansvier, and not of the cause of action for which the suit- of Peter E. Yan Keuren against Rachel Yan Keuren and another had been brought. In his affidavit for defendant Mr. Adams says, in reference to the waiver made at the time the motion for a nonsuit was granted : That deponent expressly stated to the court, when the nonsuit was granted, that the defendant, by asking for the nonsuit, did waive the claims in the answer in the action, and the nonsuit would have the effect of a waiver, as there was & bar by Statute of Limitations for the commencement of a new action thereon.

“ That deponent did not, by word or act, consent or say that the defendant waived anything, or claims further than as above stated, and did not intend to waive any other cause of action.”

The court below probably relied upon the statement of the transaction in court, when the complaint ivas dismissed, made by Mr. Adams. Such statement was the more probable one. It was probable that on granting the motion for a nonsuit the learned county judge should suggest a waiver by defendant of his counterclaims set up in the. answer. It would have been an unusual proceeding for the judge, as a condition of dismissing the complaint, to require the defendant to waive claims not set up in the pleadings.

We see no reason for overruling the conclusion reached by the court below on the conflicting affidavits.

The order should be affirmed, with ten dollars costs and disbursements.

HbeRIOk, J., concurred; Matham, P. J., not acting.

Order affirmed, with ten dollars costs and disbursements.


author: PüTNAM, J.:

text:
    Joseph Van Olinda, Respondent, v. Mary B. Hall, Appellant.

      Husband and wife — dunnages for the alienation of a husband’s affections, when excessive — effect of testimony as to conversations not denied.

    An action may be maintained by a married woman to recover damages against another woman for alienating the affections of the plaintiff’s husband, enticing him away and depriving the plaintiff of his society. Such an action may be maintained, although the husband has continued to live with the plaintiff.
    To maintain the action the plaintiff must show a wrongful and willful attempt on the part of the defendant to alienate the affections of the plaintiff’s husband, or to entice him from her and deprive her of his society; that such attempt was successful, and that the plaintiff was not a consenting party thereto.
    It is not enough to show that such an attempt was made by the defendant; it must also be shown that it was successful.
    The basis of such an action is the loss of consortium, or the right of a wife to the conjugal society of her husband, but if it appear that the plaintiff did not desire the conjugal society of her husband, a verdict for the plaintiff for $2,000 for the loss thereof is excessive.
    Where, upon the trial of an action, a witness testifies as to conversations had between the adverse party and another person, and such adverse party fails to contradict such testimony when called as a witness, it must be assumed that such witness stated such conversations correctly.
    Appeal by tlie defendant, Mary B. Hall, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 15th day of February, 1895, upon the verdict of a jury, rendered after a trial at the Sara-toga Circuit, and also from an order entered in said clerk’s office on the 14th day of February, 1895, denying the defendant’s motion for a new trial made upon the minutes.

      WiU W. Smith and Winsor B. French, for the appellant.

      George A. Swart and L. Varney, for the respondent.
   PüTNAM, J.:

This action was commenced on March 1, 1894, to recover damages against defendant for alienating the affections of the husband of the plaintiff, enticing him away, and depriving plaintiff of his society. The plaintiff recovered a judgment of $2,000 and defendant appeals.

That such an action may be maintained by a married woman is now well settled.(Eldredge v. Eldredge, 79 Hun, 511; Manwarren v. Mason, id. 592; Bennett v. Bennett, 116 N. Y. 584.)

It is held that sucli an action may be maintained for alienating the affections of the consort of a plaintiff, although such consort has continued to live with the party. (Heermance v. James, 47 Darb. 120.)

To maintain the action plaintiff was compelled on the trial to show a wrongful and willful attempt on the part of the defendant to alienate the affections of her husband, or to entice him from her, and deprive her of his society; that such attempt was successful, and that plaintiff was not a consenting party.

We will not attempt any extended discussion of the evidence, but we have examined and considered it carefully, and we are of opinion that it was insufficient to support the verdict.

There is no proof whatever that when Mr. Yan Olinda came to defendant’s house in December, 1893, he came at her solicitation or request. Whatever evidence there is in the case on the subject shows that he came in search of employment, and that she gave him work at his solicitation. Nor is there any satisfactory evidence that while he was there she used any improper or other influence to keep him at her house, or to alienate him from his wife, or that there was any improper or wrongful relations between them. All the evidence in the case on that subject seems rather to show a contrary state of facts. It is shown that on February 14,1894, the last day that Yan Olinda lived in defendant’s house while she remained at home, plaintiff called there and saw her husband and defendant; that the interview was friendly; plaintiff made no complaint of her husband’s absence from home, or his relations with defendant.

Hp to the time that defendant left her home in Saratoga Springs and went to St. Paul, Minn., there is no testimony in the case showing any wrongful act on the part of the defendant — any wrongful intercourse between her and Mr. Yan Olinda, or any attempt on her part to entice him from his wife. After she left for St. Paul, it does not appear that she and Mr. Yan Olinda ever met again except two or three times in Schenectady; where she saw him, as far as the evidence discloses, upon business and in the presence of the family with whom she was living.

"While defendant was at St. Paul and other places in the west, and afterwards at North Adams, Mass., siie wrote a number of letters to Mr. Van Olinda, and it is claimed that the admissions and statements contained in those letters are sufficient to uphold the verdict rendered by the jury. /

The letters show a considerable intimacy between the parties ; a strong desire on her parr that Mr. Van Olinda should join her in the west and afterwards at North Adams, and one of the letters seems to suggest a proceeding for a divorce to be undertaken by him.

It regard to those letters, it should be remembered that defendant and Mr. Van Olinda were connected by marriage; that she was among strangers, in a western State, and might naturally desire the presence of Mr. Van Olinda, who was to be accompanied by her adopted daughter.

But assuming that the letters evince an intent on her part to entice Van Olinda from his wife or to alienate his affections, the evidence fails to show that defendant succeeded in her attempt. Van Olinda did not go west; he did not go to North Adams; he did not undertake any proceedings against his wife for a divorce ; lie never, after the letters, as far as the evidence discloses, met the defendant except on two or three occasions upon business and in the presence of the family with whom she was boarding. Therefore, there is no satisfactory evidence that by the letters in question defendant enticed Van Olinda from his wife.

Nor does the testimony sustain the contention of the plaintiff that the defendant alienated the affections of Van Olinda from the plaintiff. As we have seen, while Van Olinda and defendant were living in her house at Saratoga Springs, ther;e is no evidence indicating any improper attempt on her part to estrange him .from his wife or to show that she had succeeded in such attempt, if made. If her letters from the west and from North Adams indicated an attempt to alienate the husband from his wife, the evidence does not show that the attempt succeeded. We have no letters from Mr. Van Olinda to the defendant in evidence. We are not shown the state of his feelings towards the defendant or his wife. It does not appear that there was any change in his feelings in regard to the plaintiff. The evidence in the case hereinafter referred to indicates that prior to this time the relations between the plaintiff and her husband were not what they should have been. Whether those relations were at all changed in consequence of the letters of defendant or her influence the evidence does not disclose. As we have seen, plaintiff was bound not only’ to show the wrongful attempt of defendant to alienate Yan Olinda and entice him from the plaintiff, but that such attempt had succeeded. The letters of defendant may show the unlawful attempt on her part to influence Yan Olinda,. but plaintiff fails to show by satisfactory evidence that defendant was successful in such attempt.

We are also of the opinion that the court should have granted defendant’s motion for a new trial on the ground that the damages were excessive.

As above mentioned, when the plaintiff called at defendant’s house on February 14, 1894, and found her husband there with defendant, it is not claimed that she made any complaint whatever. Nor is there any evidence that at any time before the commencement of the action she complained of her husband’s absence or requested him to return home, or to leave the house of Mrs. Hall, or that she remonstrated with defendant. The witness Goodrich testified that in a conversation with the plaintiff in 1893 the latter said she “ expected to get some money from her brother, and that she expected to buy a home and settle down and make Mr. Yan shift for himself, as she would not support him any longer. Q. Did she say anything at the time about whether he provided for -her ? A. She always found fault about that; that has been the principal thing all through.” The witness Stephenson testified that she had a conversation'with the plaintiff when Mr. Yan Olinda was at Sara-toga. “ She said she would just as soon he would be away as at home.” “That lie didn’t provide for the family.” After these witnesses had been sworn plaintiff was called to testify, and did not contradict their evidence, and hence we must assume that they stated the conversations correctly.

The testimony above quoted and the other evidence in the case indicates that Mr. Yan Olinda did not provide for his family. That the plaintiff was not anxious for his presence at home. It is held that the basis of such an action as this is the loss of consortium, or the right of the wife to the conjugal society of her husband. (Bennett v. Bennett, supra, 587.)

Ve think, therefore, that a verdict for $2,000 for the loss of the conjugal society of Mr. Yan Olinda, which the evidence in the case shows plaintiff did not desire, was excessive in amount.

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

Mayham, P. J., and HebeioK, J., concurred.

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


author: EursmaN, J.:

text:
    David Johnson, Respondent, v. Orange E. Kathan, Appellant.

      Trespass ■ — • measure of damages for carrying away growing trees —proof as to time and, place required.

    Where there is no proof in an action brought to recover damages for an alleged trespass'of the defendant in entering upon the plaintiff’s land and carrying away and converting to his own use a quantity of trees growing thereon, which would authorize a recovery for injuries to the land, the recovery, if any, must he for the value of the property at the time and place of its removal, and a jury is not permitted to guess at what was the value of the trees at the time they were taken, from evidence given as to their value at another time and place.
    Appeal by the defendant, Orange E. Nathan, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 17th day of October, 1894, upon the verdict of a jury rendered after a trial at the Sara-toga Circuit, and also from an order made at the Saratoga Circuit on the 15th day of October, 1894, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes, and also from an order made at the Saratoga Circuit on the 15th day of October, 1894, and entered in said clerk’s office granting the plaintiff’s motion to treble the damages allowed by the jury.

      J\ 8. JuAmoreaux, for the appellant.

      James W. Verbeclc, for the respondent.
   EursmaN, J.:

This action was brought to recover damages for an alleged trespass of the defendant in entering upon the plaintiff’s lands and cutting and carrying away and converting to his own use a quantity of trees growing thereon. The plaintiff claims treble damages, and the jury having rendered a verdict for $250 actual damages, judgment was entered thereon for $780, besides costs. On the coming in of the verdict a motion was made to set it aside on the grounds, among others, that the damages awarded were excessive, and that thé evidence did not authorize the verdict rendered. This motion was denied and an exception duly taken. There is no proof in the case authorizing a recovery for injuries to the land, and the learned trial judge correctly held that the recovery, if any, must be for the value of the property at the place where it was taken. (Dwight v. E., C. & N. R. R., 132 N. Y. 199.)

The trees were cut down and taken from premises belonging to and in possession of the plaintiff, situate on a mountain in the town of Day. Their removal from that place constituted the conversion, and them value at that place at the time of the conversion is the measure of damages. There is no proof whatever of the value of the property at that place. The trees were cut and carried away from a lot on "Wait Mountain. There is evidence of the value of the logs on skids at the roadside at the foot of the mountain, but there is no evidence of the cost of removing them from the place where they were converted to the roadside. Each witness who testified upon the subject refused to give an opinion as to their value at the place of conversion, and gave as a reason that he didn’t know the cost of removal to the skids, or to the mill where they were to be manufactured into lumber. It is thus made apparent that the value of the property on the lot is its value on the skids by the roadside, or at the mill, less the cost of getting it there, of which there is no proof. It is true, and the learned judge correctly charged, that the plaintiff was entitled to recover at least six cents damages, because the property is presumed to have some value, but the verdict was substantial, and there is no evidence to justify it. The action was tried and submitted to the jury upon the theory that the plaintiff was entitled to recover the value of the property taken away, and the right of recovery for injury to the land occasioned by tlie trespass was abandoned. The measure of damages, therefore, was the value of the property taken at the time and place oi the conversion. As to this there is no evidence and the jury were permitted to guess what the value might be at such tipae and place from evidence of the value at another time and place. ■ This we think was error. (Kennedy v. Strong, 14 Johns. 128; Dillenback v. Jerome, 7 Cow. 294; Field on Damages, §§ 781-795.)

Objections which seem to have some force are made also to evidence received notwithstanding defendant’s objections and exceptions, but it is not necessary now to consider' them.

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

PutNAM and IIereioe, JJ., concurred.

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


text:
    Susan Baker, Appellant, v. William Moore, as Executor, etc., of Abel Scripture, Deceased, Respondent.

      liefer ence of a disputed claim-— a decision of the referee, hot stating the grounds of the decision — a judgment entered thereon cannot be reviewed — power of the General Term on appeal to send bach the case to the referee.

    Upon a reference of a disputed claim against an estate under the statute, at the close of the plaintiff's evidence a motion was made on behalf of the defendant to dismiss the claim and nonsuit the plaintiff on the merits on specific grounds. The motion was granted and the referee filed his decision, after the usual formal statements, in the following words: ‘'I do order, decide and direct'that the said motion be granted, and that the plaintiff’s complaint or claim * * * be dismissed on the merits, and that the defendant have judgment dismissing the same, with costs, and I order accordingly.” No other decision was rendered, and the above was confirmed at Special Term.

      Held, that the decision was not a compliance with the provisions of section 1022 of the Code of Civil Procedure, in that it contained no statement of any findings of fact or conclusions of law, and that a judgment entered thereon could not be reviewed on appeal.
    The General Term of the Supreme Court has the same power as the Special Term thereof to send a case back to a referee, to whom a disputed claim against an estate has been referred under the statute, to have him state the grounds of his decision as required by section 1022 of the Code of Civil Procedure.

      Appeal by tlie plaintiff, Snsan Baker, from a judgment of the Supreme Oourt in favor of the defendant, entered in tlie office of tlie clerk of tlie county of "Warren on the 28th. day of December, 1894, upon the report of a referee dismissing the plaintiff’s complaint upon the merits.

      J. M. Whitman, for the appellant.

      King <& Ashley, for the respondent.
   EuesMAN, J.:

In June, 1890, a claim against the estate of Abel Scripture,, deceased, was presented by the plaintiff to the executor of his last will and by him rejected. Thereafter in due course the matter was referred by the surrogate. The plaintiff presented her evidence in full before the referee, and at the close thereof a motion was made on behalf of the executor to “dismiss claim and nonsuit plaintiff on the merits” on five several grounds. Thereupon the-referee granted the motion, and made and filed his decision as follows jafter the usual formal statements): “ I do order, decide and direct that the said motion be granted, and that the plaintiff’s complaint or claim * * * be dismissed on the merits, and that the. defendant have judgment dismissing the same, with costs, and I order judgment accordingly.” Afterwards, on motion, this decision was confirmed at Special Term. No other report or decision Was made. This decision is not a compliance with section 1022 of the Code of Civil Procedure. There is no fact found, nor any conclusion of law stated, nor are any grounds of the decision set forth as-, required by this section.

A considerable amount of evidence was given which upon such a motion must be taken to be true. The referee gives no basis for his decision, and it is impossible to discover on which ground set forth in the motion the decision was made, or whether on all of' them. It has been repeatedly held by the Oourt of Appeals that in such case the judgment cannot be reviewed. In Wood v. Lary (124 N. Y. 83) this was distinctly decided, and at page 87 the court says: “ But w, any and every ease triable before a court without a jury or heard by a referee, if any evidence he presented, a decision stating separately the facts found and the conclusions of law based thereon, must be made. If it be not done the judgment cannot be reviewed.” It is true that this decision was prior to the amendment to section 1022 allowing a decision stating concisely the grounds ” upon which it is made to be substituted for separate findings of fact and conclusions of law, but it is clear that the same rule must apply in either case. The latter portion of the section is only made to apply to cases where there are no separate findings, and entirely omits airy reference to decisions which do not state the grounds on which they are based. In this case there was an unmistakable decision, and no grounds thereof are stated. The case, therefore, falls within the rule above stated. (MacNaughton v. Osgood, 114 N. Y. 574; Gilman v. Prentice, 132 id. 488, see 491.) The same rule prevails in the Supreme Court. (Nobis v. Pollock, 53 Hun, 441; People ex rel. Colton v. Ranson, 2 N. Y. St. Repr. 78; Drury v. Wigg, 19 Wkly. Dig. 417.)

An examination of this case discloses some important questions, however, which we think ought to be reviewed. It is possible that to refuse such review for the reason above given might work an injustice to, the plaintiff. A motion might have been made at Special Term to send the case back to the referee to have the grounds of his decision stated as required by section 1022, but this court undoubtedly lias the same power and we think ought to exercise it in the present case.

This course was pursued in Nobis v. Pollock, above cited, and may properly be followed here. Without expressing any opinion upon the other questions raised on this appeal this case is, therefore, sent back to the referee to have his decision amended in accordance with this opinion.

PutNAm and HbeRIOK, JJ., concurred.

Case remitted to referee to amend his decision in accordance with opinion.


author: FursmaN, J.:

text:
    William Henry Allen, Appellant, v. The St. Lawrence County Farmers’ Insurance Company, Respondent.

      Hire insurance policy — declarations of an agent, when not binding upon the principal.

    Upon the trial of an action brought to recover the amount of a loss under a Are insurance agreement it appeared that the application signed by the insured stated that the insurer would not be bound until some director or agent thereof had approved of the application, and it had been received at its office in a specified city; that the application was not approved by a director of the insurer, although the agent, through whom the insurance was effected, informed the insured, upon his signing the application and paying the fee, that the insurance commenced from that time; no policy was delivered to the insured.

      Held, that in the absence of proof that the agent of the insurer had authority to make another or different agreement than that provided for in the by-laws and requirements of the company, the plaintiff could not recover.
    Where the power of an agent is apparently limited, a person dealing with him is bound to inquire concerning the extent of his authority before acting upon the faith of its existence; and a principal who has not clothed an agent with either real or seeming authority is not bound by the simple declaration of such agent that the principal is bound by his acts or statements.
    Appeal by the plaintiff, William Henry Allen, from a judgment of the Supreme (jourt in favor of the defendant, entered in the office of the clerk of the county of St. Lawrence on the 4th day of January, 1894, upon the dismissal of the complaint directed by the court after a trial before the court and a jury at the St. Lawrence Circuit.

      John G. Keeler, for the appellant.

      Thomas Sjpratt, for the respondent.
   FursmaN, J.:

The defendant is a co-operative insurance company organized under chapter 573 of the Laws of 1886. The 1st section of this act requires that every person insured in any company organized thereunder shall sign a written application for such insurance as required by the articles of the association and"by-laws of the company, and thereby become a member thereof.” The company, at its annual meeting in January, 1891, resolved that there should be placed on every application a notice that such application would not be binding on tlie company until signed by an agent or director and received by the secretary at Ogdensburg. On May 9, 1892, the plaintiff applied to one Crandall, a solicitor for defendant, for insurance' on his dwelling house and household furniture, etc., and thereupon, in pursuance of the requirements of the statute and the resolution above cited, signed a written application containing a statement that the application must be submitted to some director of the company and approved by him and the approval signed by him. This application contained also a distinct notice in these words: Notice. This application will not be binding upon -the company until signed by an agent or director and' received by the secretary at Ogdensburg, N. Y.” On signing the application plaintiff paid the solicitor one dollar and fifty cents, and upon inquiry as to when his insurance commenced he was answered “Now.” The fire occurred the same night, before the application had been approved by any director of the company or received by the secretary. Of course no policy was ever issued to the plaintiff, but he now seeks to recover the amount of insurance agreed upon between him and Crandall (the solicitor) on the ground that the answer of Crandall, above quoted, that the insurance began immediately on plaintiff’s signing the application, amounted to an actual insurance by the company The application signed by the plaintiff informed him that the company would not be bound until some director or agent of the company had approved it and it was received at the office in Ogdensburg. There is no proof that Crandall had any authority to make any other or different agreement than that provided for in the by-laws and requirements of the company. Indeed, there is no proof that he had any authority to make any agreement whatever for insurance, or to do anything beyond soliciting and receiving applications for insurance. He did not appear to be clothed with authority to contract for the company. He was not provided with policies and-did not deliver any. The plaintiff must have understood that the policies were only issued by the company from its office in Ogdensburg, and that an insurance was not effected until his application reached there and was acted upon.

The mere declaration of Crandall that the insurance began at once was ineffectual to bind the company. It was wholly unauthorized, and the plaintiff had no right to accept or rely upon it in the face of the declaration contained in the application that the company would not be bound until the receipt of the application at the office in Ogdensburg. The power of the agent being apparently limited, the plaintiff was bound to inquire concerning the extent of it before trusting to it. (Alexander v. Cauldwell, 83 N. Y. 480. See especially p. 485.) Crandall had only power to receive proposals for insurance. He could not create insurance nor in any way designate the time when insurance should begin. (Bush v. Westchester Fire Ins. Co., 63 N. Y. 531.)

The case is quite different from Ellis v. Albany City Fire Ins. Co. (50 N. Y. 402) and kindred cases cited by counsel for plaintiff. In those cases there was an unrestricted right in the agent to issue policies which to that end were furnished him by the company already signed by its officers, and the agent had authority to effect an immediate insurance by filling out and delivering a policy already duly executed by the officers of the company. Here the agent was a mere solicitor for insurance, and wholly unauthorized to contract for the company. The case of Van Loan v. The Farmers’, etc., Ins. Association of Catskill (90 N. Y. 280) is not applicable. There the company was organized under the act of 1851 (Chap. 139), as amended in 1858 and 1861. Those acts did not require a written application to be signed by the party seeking insurance, nor was there any notice to the applicant that the insurance would not begin until the application was approved by some authorized agent of the company. The plaintiff applied for insurance to one of the directors of the company. A survey was made and taken to the secretary of the company, who found it satisfactory and entered it on the books of the company. The policy was not issued solely because plaintiff’s first name was unknown, though the company was immediately ready to issue it and only waiting to learn the full name of the party insured. The action was to compel the company to issue a policy after a fire had occurred. There was an application for a policy and a clear acceptance thereof, not by an unauthorized agent, but by the company itself. The opinion at General Term (approved by the Court of' Appeals) puts the decision expressly upon the ground that the company had accepted the application for insurance. In the present case the only authority of Crandall was to solicit insurance, and the application informed the plaintiff, in terms, that the company would not be bound until it was approved by tlie director and received at the home office. The mere declaration of an agent having such limited authority, that the insurance began at the moment the application was signed, cannot bind the company having no knowledge of the application nor of the risk proposed. It cannot be that a party who has not clothed an agent with either a real or seeming authority can be bound by the simple declaration of such agent that it is bound. "We, therefore, think that the learned trial judge was right in granting the motion for a nonsuit, and this renders it unnecessary to examine the several rulings as to the admission or exclusion of evidence.

The jtidgment should be affirmed, with costs.

PutNAm and TIbebioK, JJ., concurred.

Judgment affirmed, with costs.


author: PutNam, J.: Mayham, P. J.

text:
    William Francisco, Appellant, v. The Troy and Lansingburgh Railroad Company, Respondent.

      Personal injuries — street raiU'oad — it is not negligence per se to stand upon the platform of a car when directed to do so.

    In an action brought to recover damages resulting from personal injuries sustained, as alleged, from the negligence of a railroad corporation, it appeared, that when the plaintiff got upon the car in question he was smoking; that he was directed by the conductor to go upon the front platform; that he did so, and stood there with both hands behind him, holding on to an iron railing in front of a window; that the car was proceeding rapidly, when it reached a. sharp curve, where, the speed not being reduced, tlie plaintiff was thrown from the car; that several other persons in the car were thrown upon their knees by the sudden jerk. There was some evidence of contributory negligence.

      Held, that the questions of negligence and contributory negligence were for the-jury;
    That it was not negligence per se that the plaintiff, after having been directed by the conductor to do so, stood upon the front platform instead of remaining-inside the car.
    Mayham, P. J., dissenting.
    Appeal by the plaintiff, William Francisco, from a judgment of the Supreme Court in favor of the defendant, entered in the office of tbe clerk of tbe county of Saratoga on tbe 24th day of October, 1894, upon tbe dismissal of tbe complaint directed by tbe court after a trial at tbe Saratoga Circuit before tbe court and a jury.
    The case was before tbe General Term on a former appeal, tbe opinion delivered on which is reported in 78 Hun, 13.

      Isaiah Fellows, Jr., for tbe appellant.

      Thomas S. Fagan, for tbe respondent.
   PutNam, J.:

This is an appeal by tbe. plaintiff from a judgment of nonsuit. Evidence was given upon tbe trial from which tbe jury, if allowed to pass upon tbe questions involved in tbe case, could have found tbe following facts : Plaintiff, .about eight o’clock on tbe evening of January 31, 1892, at Waterford, boarded defendant’s car running between that place and Cohoes. He was smoking at tbe time, and was directed to go upon tbe front platform by tbe conductor; be did so, and, at tbe time of tbe accident below mentioned, was standing on said platform with both bands behind him, bolding on to an iron railing in front of tbe window. There were several curves between Waterford and Cohoes, one of which, known as “ Bus^i Curtis corner,” was described as a sharp ourve, turning from one street to another. Tbe evidence showed that tbe night was dark. As tbe car of defendant in which plaintiff was riding approached tbe Bush Curtis corner it was going at a high rate of speed, and did not slow up. As tbe car rounded tbe corner, going rapidly, it gave a jerk, throwing plaintiff off on to tbe ground and injuring him. For this injury the action was brought.

Tbe trial court, after tbe plaintiff bad rested, granted a nonsuit for tbe alleged reason that be bad failed to show negligence on tbe part of tbe defendant, and tbe absence of contributory negligence on tbe part of himself.

On tbe first trial of tbe case it was submitted to tbe jury, and plaintiff bad a verdict. Evidence was offered by defendant, and a different state of facts appeared from what was shown on tbe trial now being reviewed by us. • On tbe first trial defendant proved that plaintiff at tbe time of tbe accident was standing on tbe step on the forward end of the car, on the right-hand side; that he had both feet on the step. We thought that it was contributory negligence for a passenger, while a car was in rapid motion at a place where lie knew there were sudden curves, to stand on the steps of a car, especially as there was room for him on the inside. But on this trial we have a different state of facts. The plaintiff’s witnesses only have been sworn, and it now appears that plaintiff at the time of the accident was standing on the platform, instead of the step. He had been directed to that place by defendant’s conductor. At the time of the accident he stood on the said platform, as directed, with his two hands firmly grasping an iron railing behind him. Under the facts appearing on the present trial, that the act of plaintiff in standing on the platform ivas not negligence per se is well settled. (Nolan v. Brooklyn City & Newtown R. R. Co., 87 N. Y. 63; Meesel v. Lynn & Boston R. R. Co., 8 Allen, 234; Germantown Passenger R. Co. v. Walling, 97 Penn. St. 55.)

It was a question of fact for the jury, under all the circumstances, whether or not the plaintiff was free from contributory negligence. (Nolan v. B. C. & N. R. R. Co., supra; Hart v. H. R. Bridge Co., 80 N. Y. 622; Chisholm v. State of New York, 141 id. 246; Massoth v. D. & H. C. Co., 64 id. 524-529.)

There are circumstances appearing from the testimony referred to in the brief of the learned counsel for the respondent from which the jury might have found contributory negligence on the part of plaintiff. But the facts so commented upon should have been sub-, mitted to and discussed before the jury. We are unable to determine as matter of law, from the testimony produced by plaintiff, that he was guilty of contributory negligence. It was a case where the inferences from the facts should have been passed upon by a jury.

It remains, therefore, to consider whether .there was testimony in the case indicating negligence on the part of the defendant that should have been submitted to the jury.

It was satisfactorily shown that the car was going at a high rate of speed, and that such speed was not decreased while turning the Bush Curtis corner. At the turn the car gave a sudden jerk and threw the plaintiff to the ground. The witness Spodden testified that the- lurch of the car threw him on his knees. Wolf said it threw him against the door, his head striking it. Martin testified that when the ear went around the corner there was a sudden jerk, and it threw him over on his knees against the people on the other side. Dunwoodie testified that he was sitting down and that the lurch of the car at the time in question did not throw him very far, but it threw him upon his knees, so that his knees struck against the side of the car. Lewis said: I fell forward, and when I fell forward I hung still tighter and came back to where I was,” etc.

We think the evidence of these witnesses we have referred to and also the other evidence in the case indicated that the defendant’s car went around a sharp curve without at all slowing up and at a high and dangerous rate of speed, and hence that there was evidence tending to show negligence on the part of the defendant which the trial court should have submitted to -the jury. (Werle v. Long Island R. R. Co., 98 N. Y. 650.)

Coleman v. Second Avenue R. R. Co. (114 N. Y. 609), cited by the learned counsel for respondent, is not a parallel case. In that action the plaintiff recovered a judgment. The accident to Coleman was caused by his leaving a seat on the car of the defendant, having platforms on each side of the seats, and going on to one of said platforms, and while there coming in contact with a column of the elevated road near which the defendant’s tracks ran. On the trial defendant requested the court to charge the jury that if they believed “ that the plaintiff left his seat unnecessarily and voluntarily, and while the car was in motion, and without requesting the driver or conductor to stop the same, and when upon the step of tho car he swung himself outside the line of the step of the car, and while so doing came in contact with the column of the elevated railway, the defendant was entitled to a verdict.” The court declined to so charge, and for that error the judgment was reversed; It was properly held that if without reasonable cause the plaintiff left his seat where he was safe and went on to a platform on the side of the car and came in contact with a permanent structure near defendant’s road, he could no.t recover. In that case he voluntarily and without sufficient cause took upon himself the risk of the accident. It will be seen that in the case referred to the facts were not at all like those in the one under consideration. •

On the whole we think this case presented questions of fact which should have been submitted to the jury, and hence that the judgment must be reversed aud a new trial granted, costs to abide the event.

Herrick:, J., concurred.

Mayham, P. J.

(dissenting):

On the former appeal we held that there was not sufficient evidence of the defendant’s negligence to authorize the submission of the case to the jury. I do not see that the evidence on that branch of the case has been changed on this trial, and cannot, therefore, concur in the granting of a new trial. Proof of defendant’s negligence in this class of .cases is always a necessary prerequisite to a recovery.

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


author: Mayham, P. J.:

text:
    Emma Smith, as Administratrix, etc., of John Smith, Deceased, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.

      Negligence of a felloio-senant — a railroad corporation protected by the promulgation of proper rules.

    Where a railroad corporation has established and promulgated rules relating to the movement of its trains and the government of its employees, and it appears that had the rules been followed no accident would have occurred, the administrator of an employee of the corporation, whose death was caused by a violation of its rules by a co-employee, cannot recover the damages resulting from such death.
    Appeal by the plaintiff, Emma Smith, as administratrix, etc., of John Smith, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Rensselaer on the 9th day of March, 1894, upon the dismissal of the complaint directed by the court after a trial at the Rensselaer Circuit before the court and jury, and also from an order made on the 27th day of February, 1894, directing a nonsuit..
    The action was brought to recover the damages caused by the death of the plaintiff’s intestate through the alleged negligence of the defendant. The deceased was killed by train No. 19, which on tbe 15th of December, 1891, was scheduled to leave New York at 4.50 p. m., and to reach Albany, a distance of 144 miles at 8.05 p. m. It was dne according to the schedule at Dutchess Junction at 6.11 p. M. and at Fishkill at 6.12 p. m. The distance between the latter places was between a mile and a half and a mile and three-quarters.

      L. E. Griffith and T. F. Hamilton, for the appellant. .

      It. A. JParmenter, for the respondent.
   Mayham, P. J.:

This action was- prosecuted by the plaintiff, as administratrix of John Smith, deceased, an employee on a passenger train of the defendant’s railroad, who was killed by a collision between the train on which he was employed and another train on the defendant’s road. The plaintiff’s intestate was a fireman on a locomotive engine of the defendant, attached to a passenger train required by the defendant’s time schedule to run from Dutchess Junction to Fishkill, two stations on the defendant’s railroad, at about the rate of 103 miles an hour.

This time schedule was in the possession both of the engineer and fireman on that locomotive, who were co-employees of the defendant. The defendant had established and promulgated rules for the government of its train hands, which were known to these employees, and to all persons in the management of its trains, which, if observed by those employed in running the trains, would have rendered the accident improbable, if not impossible.

The accident occurred by reason of the accidental stopping of a train going in the same direction and in advance of the one on which intestate was employed.

The rules of the defendant, among other things, provided that when any train was stopped on the road, or impeded, or able only to proceed at a slow rate, the rear brakeman or trainman must go back instantly with a red signal at least half a mile.

Had this rule been observed sufficient warning would have been given to have stopped the train on which intestate was employed and thus averted the injury. To this rule there is an exception, that when the train is guarded by a distance signal or flagman displaying a red or danger signal at a sufficient distance to protect from injury, which the trainman must see and know, he may, instead of going back half a mile, rely upon such signal. The case shows that a semaphore, displaying a danger signal, was set, and that the signalman, on seeing that, took took up his torpedoes and returned, and that the intestate’s train passed the semaphore without heeding its warning and thus collided with the engine engaged in helping the disabled train. The rules also require that all trains approaching a station, junction or point where a signal is located must do so expecting to find them at danger, and must joe prepared to stop. Had this rule been observed by the engineer and intestate the collision could not have occurred and the serious consequence to intestate would not have followed.

It is urged by the appellant that the proof shows that other railroads have different rules from those adopted by the defendant, and that from that proof the jury might have found that the rules of the defendant were defective to such an extent that the jury might have found it guilty of negligence, but we find no proof that the rules of the defendant were so defective that if strictly followed by the employees they would not have afforded adequate protection to all employees acting under them.

We think the learned judge was right in holding that there was an entire failure of proof to establish any negligence of the defendant, and if the accident was caused by negligence it was the negligence of the intestate’s co-employees, which was a risk he took when he engaged in the service of the defendant, and for which his personal representative cannot recover in this action.

We find no error in the rulings or decision of the learned trial judge for which this judgment can be reversed.

The judgment must be affirmed, with costs.

PutNam and HeRRICK, JJ., concurred.

Judgment affirmed, with costs.