text:
    William H. Thomas, Respondent, v. De Forest Snyder, Appellant.

      Action on a judgment — when the complaint alleges fra/ud — sale of goods — when, induced by fraud the title remains in the vendor— Oode of Oivil Procedure. § 264 — presumption, from the omission of the names of witnesses from the clerPs. minutes

    The complaint, in an action brought upon a judgment, alleged that the former judgment was entered upon a verdict “for damages sustained by plaintiff by reason of the fraud and deceit of defendant alleged in the complaint.”

      Held, that such allegation, even if not controverted by the answer, would not operate as an admission by the defendant that the former judgment was based upon fraud unless such in fact was the gravamen of the action in which it was recovered.
    The complaint in an action alleged the co-partnership of the defendants ; that they, with intent to defraud the plaintiff and deprive him of his property, falsely represented that they were in need of a quantity of .tallow for immediate use in their soap factory, and requested the plaintiff to send a quantity, and promised to pay therefor a certain rate per pound on delivery; that in pur* suance of such request the plaintiff sent the specified amount of tallow; that the defendants were insolvent, and ' fraudulently concealed their insolvency from the plaintiff; that they had ceased manufacturing soap, and did not require such tallow in their business, and falsely made such statement to induce the plaintiff to think they were in good circumstances, solvent and Car-Tying on a good business; that the defendants deceived the plaintiff, and did not intend to pay for the said tallow when they ordered it; that they converted it to their own use, and sold it as soon as they acquired possession thereof ; that they concealed the sale from the plaintiff to deprive him of his property ; that the plaintiff believed the defendants’ representations that they needed the tallow for immediate use, and otherwise would not have sold the defendants such property, or intrusted them with the possession thereof; that the plaintiff believed the defendants’ representation that they were carrying on their business ■and continuing the manufacture of soap, and would not have sold the tallow to them, or intrusted them with the possession of it, if he had not been deceived by such false representation; that the plaintiff, by reason of such fraud, deceit and conversion, had suffered damage to a specified amount, for which judgment was demanded

      Meld, that such allegations were not sufficient to constitute a cause of action for fraud, based upon the ground of the representation as to the need of tallow for immediate use in the defendants’ soap factory; that there was nothing in the complaint to show that at the time the defendants made such representation they knew or believed the same to be false;
    That such action was for a debt created by the fraud of the defendants in not intending to pay for the tallow when they ordered the same, and that the judgment rendered therein would not be discharged by subsequent proceedings in bankruptcy on the part of the person against whom such judgment was rendered.
    "The elements requisite to sustain an action for false pretenses are representation, falsity, scienter, deception and injury. There must be a false representation known to be such, made by the defendant, calculated and intended to influence the plaintiff, and which came to his knowledge, and in reliance upon which he, in good faith, parted with property or incurred the obligation which occasioned the injury of which he complains. All of these circumstances must be found to exist, and the absence of any one of them is fatal to a recovery.
    If a purchaser, who is insolvent, concealing the fact of his insolvency from the vendor, obtains goods from him without intending to pay for them, it is a fraud upon the vendor, and the property in the goods will not be changed, and they may be reclaimed by the vendor.
    .Section 264 of the Oode of Civil Procedure makes it the duty of the clerk of the court to enter in his minutes the names of the jurors before whom the action is tried, as well as the names of the witnesses sworn on such trial, and the fact that both the names of witnesses and jurors were omitted from the clerk’s minutes renders the omission of the names of the witnesses slight evidence, if any, that no witnesses were called on the trial, and testified to the facts necessary to uphold the judgment rendered therein, and is insufficient to overcome the presumption that a court of superior jurisdiction has acted in accordanee with the forms of law and rules of practice governing it, and such presumption continues until every prerequisite prescribed by law has been complied with, unless the contrary appears on the face of the record.
    Appeal by the defendant, De Forest Snyder, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Herkimer on the 31st day of July, 1893, upon the decision of the court rendered after a trial at the Herkimer Circuit.

      Charles A. Fuller, for the appellant.

      Eugene E. Sheldon, for the respondent.
   Martin, J.:

This action was upon a judgment in an action brought in this court by the plaintiff against the defendant, and entered in Herkimer county February 21, 1876, for $245.55 damages and costs.

The complaint herein alleged the recovery of such judgment and set out the pleadings and judgment in the former action. It was then alleged that the action was tried at a Circuit held in Herkimer county by a jury which rendered a verdict for damages sustained by plaintiff by reason of the fraud and deceit of defendant, alleged in the complaint, in the sum of one hundred sixty-one dollars and sixty-two cents.” It was also alleged that judgment was entered upon such verdict for the amount named; that no part thereof had been paid; that it had not been in any manner discharged, but was a valid and subsisting judgment against the defendant.

The defendant alleged in his answer that there was no order of arrest served or granted in the former action, then set up a discharge in bankruptcy, and alleged that the cause of action upon which the former action was brought was upon a contract for the purchase of goods, and that there was no fraud in the transaction on the part of the defendant, nor on the part of any one to his knowledge; that the judgment and cause of action upon which it was founded were provable against the bankrupt’s estate and barred and discharged by such discharge in bankruptcy, and that he had never done any act to restore the same to a valid indebtedness. The defendant also set up the Statute of Limitations, and demanded judgment that the complaint be dismissed.

Tlie question involved on this appeal is, whether the judgment upon which this action was based was discharged by the defendant’s discharge in bankruptcy. It seems to be admitted that it was so discharged, unless the debt was one which fell within the provisions of section 511Y of the United States Bevised Statutes, which provides : “No debt created by the fraud * * * of the bankrupt * * * shall be discharged by proceedings in bankruptcy.”

The plaintiff contends that the action was for fraud, and, hence, within the provisions of section 511Y, while the defendant claims that the action was upon contract, and not within its provisions. The plaintiff insists that the fact that his judgment was for the fraud of the defendant in creating the debt for which it was rendered, is conclusively established by the pleadings in this action, and that the judgment roll in the former action also establishes that fact.

The first proposition is based upon the allegation in the plaintiff’s complaint that the former judgment was entered upon a verdict “for damages sustained by plaintiff by reason of the fraud and deceit of defendant, alleged in the complaint,” which it is claimed is not denied by the defendant’s answer, and, hence, must be regarded as admitted. We find in the defendant’s answer no denial of this allegation. It does, however, contain an allegation “ that the cause of action sued on in 18Y5 was a contract for the purchase of goods, and there was no fraud in the transaction on the part of this defendant.” Thus, at the outset, we are presented with the questions : (1) Whether the allegation of the complaint in this action, if admitted, was sufficient to justify the court in rendering the judgment appealed from; and (2) if sufficient, did the answer so far controvert that allegation as not to require it to be taken as true ?

As to the first question, it will be seen by an .examination of the-complaint herein that the allegation was not an absolute one; that the verdict upon which the judgment was entered was for damages sustained by reason of the fraud and deceit of the defendant, but it was qualified and limited to the fraud and deceit alleged in the complaint in the first action. So, that if no fraud or deceit was alleged in that complaint, then there is no allegation of fraud or deceit in the-complaint in this action, and, hence, if it were conceded that this allegation was not controverted by the answer, it would not operate as an admission by the defendant that the former judgment was. based upon, fraud, unless such, in fact, was the gravamen of that action, and it becomes necessary to determine whether this allegation of the complaint was controverted by the defendant’s answer.

.As the character of that action is to be determined by the complaint therein, especially as there was no other proof on the subject ( Welsh v. Darragh, 52 N. Y. 590; Untermyer v. Beinhauer, 105 id. 521. 524; Cassidy v. McFarland, 139 id. 201, 205), the real question is whether that complaint was upon contract or whether it was for fraud. It was alleged therein that on May 17, 1872, the defendants were co-partners : that they, with intent to defraud the plaintiff and deprive him of his property, falsely represented that they were in need of a quantity of tallow for immediate use in their' soap factory, and requested the plaintiff to send a quantity, and promised to pay therefor eight and three-fourths cents per pound on delivery; that in pursuance of such request the plaintiff sent 1,483 pounds of tallow: that the defendants were insolvent and fraudulently concealed their insolvency from the plaintiff; had about ceased manufacturing soap; did not require such tallow in their business, and falsely made such statement to induce the plaintiff to think they were in good circumstances, solvent and carrying on a good business ; that the defendants deceived the plaintiff, and did not intend to pay for said tallow when they ordered it; that they converted it to their own use, and sold it as soon as they acquired possession thereof; that they concealed the sale from the plaintiff to deprive him of his property; that the plaintiff believed the defendants’ representation that they needed the tallow for immediate use, and would not have otherwise sold the defendants such property, or intrusted them with the possession of it; that the plaintiff believed the defendants’ representation that they were carrying on their business, and continuing the manufacture of soap, and would not have sold it to them, or intrusted them with the possession of it, if he had not been deceived by such false representation; that the tallow was of the value of $129.77: that the defendants have not paid for it, or any part thereof; that the plaintiff, by reason of such fraud, deceit and conversion, has suffered damage to the amount of $129.77, with interest from May 17,1872, and demanded judgment for that amount besides costs.

The only false representation alleged to have been made by the defendants was that they were in need of a quantity of tallow for immediate use in their soap factory. The plaintiff then alleged that the defendants did not require such tallow in their business; that he was deceived by such representation, and delivered the property relying thereon.

These allegations were not, we think, sufficient to constitute a -cause of action for fraud based upon the ground of such representation. It will be observed that while the plaintiff has alleged that the defendants represented that they were in need of a quantity of tallow for immediate use in their soap factory, and that they did not require it for that purpose, there is nothing whatever in the complaint to show that the defendants at the time they made such representation either knew or believed it to be false. Notwithstanding all that appears in the complaint, the defendants may have supposed and in good faith believed that they needed such tallow for immediate use, and may have intended at that time to use it in their soap factory. If such was the case, then clearly the defendants were not liable for fraud in making the representation alleged. The rule applicable to this class of cases is clearly and distinctly stated by Andrews, J., in Brackett v. Griswold (112 N. Y. 454, 467), where lie says: “ There is no doubt or question as to what elements are requisite to sustain an action for false pretenses. The essential constituents of such an action have been understood from the time such actions were first maintained. They were tersely stated by Church, Ch. J., in Arthur v. Griswold (55 N. Y. 400), viz.: Representation, falsity, scienter, deception and injury.’ There must have been a false representation, known to be such, made by the defendant, ■calculated and intended to influence the plaintiff, and which came to his knowledge, and in reliance upon which he, in good faith, parted with property or incurred the obligation which occasioned the injury of which he complains. All these circumstances must be found to ■exist, and the absence of any one of them is fatal to a recovery.” (See, also, Coffin v. Hollister, 124 N. Y. 644.) "We think in this case there was an absence of scienter, and that the complaint failed to state a cause of action for fraud in making such representation.

The only remaining theory upon which it can be claimed that a cause of action for fraud was- alleged in the complaint in the first action, is that it set up a cause of action for purchasing property with a fraudulent intent not to pay for the same. In addition to the allegations as to the representation made by the defendants and their falsity, it was alleged “ that defendants deceived plaintiff and did not intend to pay for said tallow when they ordered the same; ” that when the property was purchased the defendants were insolvent and fraudulently concealed their insolvency from the plaintiff, and that they subsequently sold the tallow and concealed such sale from the plaintiff to deprive him of his property. If a purchaser who is insolvent, concealing his insolvency from the vendor, obtains goods from him without intending to pay for them, it is a fraud upon the vendor, and the property in the goods will not be changed. (Durell v. Haley, 1 Paige, 492; Cary v. Hotailing, 1 Hill, 311; Ash v. Putnam, Id. 302; Devoe v. Brandt, 53 N. Y. 462; Wright v. Brown, 67 id. 1; Morris v. Talcott, 96 id. 107.) In Hotchkin v. The Third Nat. Bank of Malone (127 N. Y. 329) it was held that if a purchaser, who was insolvent, conceals that fact from the vendor for the purpose of defrauding him, and thus obtains goods on credit without intending to pay for them, the title of the property is not changed, and it may be reclaimed by the vendor.

While the question whether the former action was for a debt created by the fraud of the defendant may not, perhaps, be wholly free from doubt, still, we are of the opinion that such was the nature of the action that the debt for which such judgment was rendered was not discharged by the defendants’ proceedings in bankruptcy, and that the judgment upon which this action was brought was not discharged thereby. [In re Patterson, 2 Ben. [U. S.] 155.)

The appellant claims that the judgment roll in the first action shows that no witnesses were sworn upon the trial, and that the court ordered judgment upon the admission of indebtedness contained in the defendant’s answer. This claim is not sustained by the facts before us. The judgment roll does not show that no witnesses were sworn and examined. It contains nothing to show whether they were or were not. The only pretense for this claim rests in the fact that the clerk’s minutes, as printed in the appeal book, do not contain the names of witnesses sworn upon the trial. This falls far short of showing that no witnesses were sworn, especially when we consider the fact that the names of the jurors before whom the action was tried, were also omitted. Section. 26é of the Code of Procedure made it the duty of the clerk to enter in his minutes the names of the jurors as well as of the witnesses, and the fact that both were omitted renders the omission of the names of the witnesses as slight, if any, evidence that no witnesses were called and testified to the facts necessary to uphold the plaintiff’s judgment. This was certainly insufficient to overcome the presumption that a court of superior jurisdiction has acted in accordance with the forms of law and rules of practice governinglt, and not until every prerequisite prescribed by law had been complied with, unless the contrary appears on the face of the record. (Aldridge v. Walker, 73 Hun, 281, and cases cited in opinion.)

These considerations lead to an affirmance of the judgment.

Hardin, P. J., and jVIerwin, J., concurred.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Martin, J.:

license: Public Domain

text:
    The People of the State of New York ex rel. Perrin A. Strough, Respondent, v. The Board of County Canvassers of Jefferson County, Appellant.

      When a statute is repealed by implication — chapter 414 of the Laws of 1883 is a valid provision of law — when an act amending a statute repealed by implication is valid.

    Repeals by implication are not favored in tbe law, and tbe inconsistency or repugnancy of two statutes must be sucb as to be impossible of reconciliation or tbe former will not be beld tobe repealed by tbe later act. Tet, when sucb repugnancy exists, or the later statute, not purporting to amend a former one upon tbe same subject, covers the whole subject, and is plainly intended to furnish tbe whole law thereon, tbe former statute will be beld to be repealed by implication, except that a general statute will not repeal a former one upon tbe same subject which is limited in its application to particular localities, unless the two statutes are so inconsistent that they cannot both stand, or unless tbe intent to repeal is clearly manifest in tbe general act.
    Chapter 555 of tbe Laws of 1864 did not effect a repeal by implication of section 16 of chapter 179 of tbe Laws of 1856, and chapter 414 of tbe Laws of 1883 is a valid provision of law.
    Where there is a positive re-enactment of a former statute, with sucb changes as tbe Legislature sees fit to make, and it is manifest from tbe act itself that it was the intention of the Legislature that the act as thus passed should become the law of the State, such an act will be valid although the act whioh it purported to amend might otherwise have been regarded as repealed by implication.
    Appeal by the defendant. The Board of County Canvassers of Jefferson County, from an order of the Supreme Court, made at the Jefferson Special Term and entered in the office of the clerk of the county of Jefferson on the 11th day of December, 1893, directing that a peremptory writ of mandamus issue, requiring the defendant to recanvass the votes cast at a certain election for school commissioner in the third school commissioners district of the county of Jefferson.

      Watson M. Rogers and Charles W. Thompson, for the appellant.

      John IT. Carlisle, James A. Wcvrd and Lem H. Brown, for the respondent.
   Martin, J.:

Prior to 1892 the third commissioner’s district of Jefferson county comprised the towns of Alexandria, Cape Vincent, Clayton, Lyme, Orleans, Pamelia and Theresa. At its annual meeting in 1892 the board of supervisors of that county, in pursuance of the provisions of chapter 111 of the Laws of 1883, divided the county, exclusive of the city of Watertown, into three school commissioners’ districts'. By such division the third district was made to consist of the towns of Brownville, Cape Vincent, Clayton, Henderson, Houndsfield, Lyme and Orleans.

The only question involved in this case as to the rights of the relator to the office of school commissioner is whether the board of supervisors had power to make the division of 1892. This question is dependent for its solution upon the validity of the statute of 1883, as it is practically admitted by the respondent that if that statute is valid the order appealed from cannot be upheld.

Chapter 179 of the Laws of 1856, which was an act to provide for a more thorough supervision and inspection of common schools, and further to amend the statutes relating to public instruction in this State, by its first two sections provided that the boards of supervisors of the several counties in the State, composing each one Assembly district, the boards of supervisors of each of the counties of Fulton and Hamilton, and the boards of supervisors of the several counties in the State having more than one Assembly district, except the counties of New York and Kings, should meet on the third day of June, and elect by ballot an officer to be called school commissioner for each county where there was but one Assembly district, and one for each of the counties of Fulton and Hamilton, and one for each Assembly district where there were more than one in a county, such commissioners to hold their office until the 1st day of January, 1858. It then provided for the election of a school commissioner in the several Assembly districts at the annual election m 1857 and every three years thereafter. It also contained the following section: “ § 16. The several cities in this State which, under special acts, already elect superintendents of common schools, or whose boards of education choose cierks doing the duty of supervision under the direction of the board of education, shall not be included in any commissioner’s district created by this act or authorized to be formed by the board of supervisors; and the several boards of supervisors in counties in which such cities are joined to towns in the formation of an Assembly district may divide the county, exclusive of such cities, into school commissioners’ districts as they may deem advisable, but no town shall be divided in forming such districts.”

In 1864 the Legislature passed an act entitled, “ An act to revise and consolidate the general acts relating to Public Instruction.” (Laws 1864, chap. 555.) Title 2 of that act is entitled: “ Of the school commissioners, their election, powers and duties,” and section 2 of that title is as follows: “The districts as organized under existing laws, and as recognized in the election of school commissioners at the annual election in eighteen hundred and sixty-three, shall continue to be held and regarded as the school commissioner districts in this State, except as the same shall be altered or modified by the Legislature.”

Section 14 of title 13 of that act provides: “ All provisions of law repugnant to or inconsistent with the provisions of this act are hereby repealed, saving always all rights of action vested under such prior provisions, and proceedings commenced for the assertion thereof; but nothing herein contained, unless it be so expressed, shall be construed, unless by inevitable implication, to revive any act or portion of any act heretofore repealed; nor to impair or in any manner affect or change any special law touching the schools or school system of any city or incorporated village of the State.”

Chapter 414, Laws of 1883, which was an act entitled: An act to. amend section sixteen of chajfier one hundred and seventy-nine of the Laws of eighteen hundred and fifty-six, entitled ‘ An act to provide for a more thorough supervision and inspection of common, schools, and further to amend the statutes relating to public instruction in the State,5 ” was as follows: “ Section 1. Section sixteen of chapter one hundred and seventy-nine of the Laws of eighteen hundred and fifty-six is hereby amended so as to read as follows :

“ § 16. The several cities which already or which shall hereafter, under special acts, elect superintendents of common schools, or whose board of education choose clerks doing the duty of supervision under direction of the board of education, shall not be included in any commissioner’s district created by this act or authorized to be formed by the board of supervisors; and the several boards of supervisors in counties in which such cities are joined to towns in the formation of an Assembly district may divide the county, exclusive of such cities, into school commissioners’ districts as they may deem advisable, but no town shall be divided in forming such districts.”

The theory upon which the respondent seeks to uphold the order appealed from is that section 16 of the Laws of 1856, providing for the division of counties into school commissioners’ districts by the board of supervisors where cities therein are joined to towns in the formation of an Assembly district, was repealed by chapter 555 of the Laws of 1864 both by implication and by the provisions of section 14 of title 13 of that act, and .that as section 16 was thus repealed, the statute of 1883 -which purported to amend that section was a nullity.

Thus, at the outset, we are presented with the question whether section 16 was repealed by implication. Repeals by implication are not favored in the law, and the inconsistency or repugnancy of two statutes must be such as to be impossible of reconciliation, or the former will not be held to be thus repealed. (People v. Smith, 69 N. Y. 175; Matter of Curser, 89 id. 401; People ex rel. Woods v. Crissey, 91 id. 616; Mark v. The State, 97 id. 572.) Yet, when such repugnancy exists, or the later statute, not purporting to amend a former one upon the same subject, covers the whole subject, and was plainly intended to furnish the whoie law thereon, the former statute will be held to be repealed by necessary implication. (The People v. The Gold & Stock Tel. Co., 98 N. Y. 67, Heckmann v. Pinkney, 81 id. 211.)

There is another rule, however, that modifies this, which is, that a general statute does not repeal a former one upon the same subject which is limited in its application to particular localities, unless the two statutes are so inconsistent that they cannot both stand, or unless the intent to repeal is clearly manifested in the general act. (Matter of Commissioners of Central Park, 50 N. Y. 493; McKenna v. Edmundstone, 91 id. 231; People v. Quigg, 59 id. 83, 88.)

By reference to the statute of 1856, it is seen that there were in that act two distinct and separate provisions in relation to school commissioners’ districts; one, general, applying to all the State, except the counties of New York and Kings, making each Assembly district a school commissioner’s district; the other, special, and applicable only to such Assembly districts as included a city, which had a superintendent of common schools or chose a clerk doing the duty of supervision under the direction of its board of education, which was joined to other towns. While the language of the statute of 1864 was, perhaps, sufficiently broad to include both, still, we are inclined to think that under the rule applicable to a general statute, where there is another upon the same subject which is limited in its application to particular localities, it did not effect a repeal by implication of section 16 of the Laws of 1856.

If'that section was not repealed by implication, it is quite manifest, we think, that it was not repealed by section 14 of title 13, Laws of 1864, as it was only such provisions of law as were repugnant to, or inconsistent with, the provisions of that act that were repealed, and besides, that section expressly provided that nothing in that act contained should be construed to impair or change any special law touching the schools or school system of any city or incorporated village of the State.

Moreover, we think the fact that the Legislature in 1883 amended section 16 of the Laws of 1856 was a clear indication that it regarded tliat section as still in force and applicable to tbe special cases mentioned therein. (People ex rel. Stiner v. Morrison, 78 N. Y. 84, 89; Smith v. The People, 47 id. 330, 339; Whipple v. Christian, 80 id. 523, 526; Van Vranken v. City of Schenectady, 31 Hun, 516, 518.) We are inclined to the opinion tliat section 16 was not repealed by the act of 1864.

If, however, this conclusion is incorrect, it does not follow that the statute of 1883 was invalid. It is claimed by the respondent, and the court at Special Term held, that as the statute of 1883 purported to amend section 16 of the act of 1856, which was repealed by implication, the act of 1883 was invalid, and the case of The People v. Wilmerding (136 N. Y. 363) was cited as sustaining that doctrine. We have carefully examined the Wilmerding case, but are unable to find anything in it which sustains that claim. We think that case is clearly distinguishable from the one before us, and that instead of being an authority to- sustain the respondent’s contention, it is to some extent an authority against it. That case merely decided what had been previously held (People v. Supervisors, 67 N. Y. 109), that where a statute was amended so as to read as prescribed in the amendatory act, it did not repeal the original statute, but that from the time of the passage of the amendatory act it was the only enactment on the subject as to future transactions; that as to them the. former statute was wholly annulled, and lost all separate existence, and that a repeal of the amendatory act did not revive the original one. It was also held in that case that a legislative act upon a separate subject, based upon an assumed existence of an original act, would not revive it, in the absence of language equivalent to a re-enactment. In other words, it was held that mere legislative intent would not revive an act without something in the nature of an enactment to that effect; that intent, without action, was insufficient.

In White v. The Inebriates’ Home, etc. (141 N. Y. 123, 127), the Wibmerding case was considered, and it was there said that all that was held in the Wilnnerding case was that the repeal of a statute, which had incorporated by amendment .an earlier enactment, did not operate to revive the earlier or original act, and the court adds: “ There is good reason for holding, as we did in' the Wilmerding case, against an indirect revival of a statute once repealed, by a repeal of the repealing act; but none for holding that an enactment, however amended in its provisions, and however incorporated in the amendments, may not be further amended by reference to' the statute in which it originally appeared.” And in that case, where a statute passed in 1872 was amended and re-enacted in 1875, so as to read as prescribed in the latter statute, and the Legislature in 1877 amended the statute of 1872 without any reference whatever to the act of 1875, it was held that the statute of 1877 was valid and an amendment of the statute of 1872.

In The Matter of Rochester Water Commissioners (66 N. Y. 413, 421) it is said: “ Ordinarily, and in the absence of any evidence of a legislative intent to the contrary, a substitution of one section for another by an amendment in the form in which this amendment was accomplished, would work a repeal of the original section from the time of the amendment, and as affecting all cases thereafter arising. But when, from the language of the statute and of the amendment, a different intent is apparent, such effect will not be given to it; and where other acts of the Legislature, passed at or about the same time, corroborate the evidence of intent, as gathered from the statutes under review, the duty of the courts is to give effect to the intent rather than to the literal terms of the act. The intent must not be conjectured, but must be apparent from all the statutes taken together, and consistent with the whole purpose and object as well of the original statute as of the amendment. This rule of interpretation is of frequent application, and is one of the most important and familiar canons of construction. It is not unfrequently necessary to resort to this rule of interpretation to prevent a miscarriage of the legislative intent and detriment to public interest. (People v. Clute, 50 N. Y. 451; Smith v. The People, 47 id. 330, and the authorities cited.) ” (See, also, Matter of Will of Kavanagh, 125 N. Y. 418.) While, perhaps, there may be some difference between a statute which has been expressly repealed, and one that has been so amended as to read as prescribed in the amendatory act, yet, we are unaware of any principle of law which would prevent the Legislature from amending, by positive enactment, a statute repealed by implication, and still permit it to amend one that was annulled and had lost all separate existence by previous amendment.

We are of the opinion that where, as in this case, there is a positive re-enactment of a former statute, with such changes as the legislature sees fit to make, and it is manifest from the act itself that it was the intent of the Legislature that the act as thus passed should become the law of the State, such an act would be valid, although the act which it purported to amend might otherwise have been regarded as repealed by implication. It seems to us quite clear that the intent of the Legislature to amend and re-enact as amended section 16 of Laws of 1856, is so apparent from the statute itself that the act of 1883 must be regarded as an enactment or re-enactment of a law containing the provisions included therein; and that, even if the statute which it purported to amend, would otherwise be regarded as repealed by implication, yet, the intent to re-enact such a law was manifest, and should be given effect. The statute of 1883, as it now stands, contains every provision which the Legislature sought to establish, and the only - claimed defect is that it referred to a statute that may have been repealed by implication. Whether such statute was thus repealed, or whether it was not, in no way affects or changes the clear intent of the Legislature, as manifested by the act itself. In Van Clief v. Van Vechten (55 Hun, 467) it was held that the Legislature, by amendment, might revive a repealed statute. That case was subsequently taken to the Court of Appeals, but the question whether an act which purported to amend an act that had already been repealed, has the effect of an original enactment, was not decided. (130 N. Y. 571.)

These considerations have led us to the conclusion that the statute of 1883 was valid, and that, as the city of Watertown, whose board of education chooses clerks to perform the duty of supervision of the common schools of the city under its direction, was joined with other towns of the county in the ’Assembly district which is'composed of the -county of Jefferson, the board of supervisors of that county had power, by virtue of that statute, to divide the county, exclusive, of the city of Watertown, into such school commissioners’ districts as they deemed advisable, so long as they divided no town in forming such districts; and, hence, that the board of canvassers of the county was justified in canvassing the votes of the third school commissioner’s district as it was established by the action of the board of supervisors in 1892, and tbe Special Term erred in- granting tbe order appealed from.

This conclusion renders it unnecessary to examine the other questions presented by the appellant on tbe argument, as the order must be reversed on tbe ground already stated.

Hardin, P. J., and Merwin, J., concurred.

Order reversed, with costs, and motion for peremptory writ of mandamus denied, without costs.


text:
    George G. French, Respondent, v. Susan Row and Another, Appellants.

      Mortgage — provision that the principal sum shall become due on non-payment of interest — mortgagoi’ relieved therefrom — waiver of the forfeiture — answer improperly stricken out — effect of the dismissal of an appeal — second appeal — specification of order appealed from — a denial of a motion to settle the issues is disaretiona/ry.

    The general rule, relating to mortgages containing a provision, that in. case of default in payment of part of the amount secured to he paid thereby, the whole amount thereby secured shall become due at the option of the mortgagee, is, that the provision is a valid one, and the courts will grant no relief to a mortgagor from the effect of his default, in the absence of fraud or improper conduct on the part of the mortgagee, which renders it unconscionable that he should avail himself of this provision.
    When the mortgagor, in paying interest due on a bond and mortgage, follows the course of dealing which has existed between him and the mortgagee from the beginning, and is entitled to suppose that he has wholly discharged his obligations under tbe contract, and the mortgagee’s purpose in enforcing the covenant making the wkole amount due is an ulterior one, the mortgagor will he relieved from the effect of his failure to pay the interest due on such mortgage within the time specified by the terms thereof,
    The right to enforce a forfeiture may he waived by express language, by acts importing an intention to waive the right, or by acts amounting to an estoppel.
    The defendants in a foreclosure suit served an amended answer which alleged facts showing that one of the defendants had no interest whatever in the mortgaged premises; that he was induced by the representations of the mortgagee to sign the bond and mortgage in order to cut off his right as tenant by the curtesy, although he had no such right; that he signed the same upon the statement of the plaintiff that it was necessary for him to do so as he was the husband of one of the mortgagors, and that there was no consideration'for his signing such bond and mortgage. Upon the plaintiff’s motion, such amended answer was stricken out.

      Held, that the defendants were entitled to have the benefit of their answer, and that it should have been allowed to stand.
    The effect of the dismissal of an appeal is, -as a general rule, to leave the case in the same condition as if there had been no appeal, and an order of dismissal does not preclude a second appeal; the dismissal of an appeal for want of prosecution is not in judgment of law an affirmance of the judgment appealed from.
    After judgment against them in an action brought to foreclose a mortgage, the defendants served a notice of appeal to the effect that the defendants appealed from the judgment, and that they intended to bring up for review the order dated- the 18th- day of July, 1893, and the order dated the 18th day of July, 1893, denying the defendants’ motion to settle the issues.
    Two orders were made in the action on July 18, 1893, one striking out the defendants’ answer and the other denying the defendants’ motion to settle the issues.

      Held, that the notice of appeal was sufficient to bring up for review the order striking out the defendants’ amended answer.
    An order denying the defendants’ motion to settle the issues in an action brought to foreclose a mortgage, and to direct a trial thereof by jury, rests in the discretion of the court.
    Appeal by tbe defendants, Snsan Row and another, from a judgment of the County Court of Oswego county in favor of the plaintiff, entered in the office of the clerk of the county of Oswego on the 5th day of August, 1893, upon the decision of the court, with notice of an intention to bring up for review two orders made the 18th day of July, 1893, and entered in said clerk’s office, one of which denied the defendants’ motion to settle the issues, and the other struck out the defendants’ amended answer; the statement as made in such notice of appeal béing that “ appellant intends to bring up for review upon such appeal the order herein dated the 18th day of July, 1893, and the order dated the 18th day of July, 1893, denying defendants’ motion to settle issues.”

      J. W. Shea, for the appellants.

      W. II. Kenyon, for the respondent. •
   Martin, J.:

This action was brought in the Oswego County Court to foreclose a mortgage made by the defendants April 1, 1890, given to secure the payment of $5,000, with interest at the rate of five per cent per annum, payable semi-annually, the principal to be paid at the expiration of ten years.

The mortgage contained a provision that if default should be made in the payment of any sum on the day it became due, and it should remain unpaid for the space' of ten days, the whole debt should thereupon, at the option of the mortgagee, become due and payable immediately thereafter.

The plaintiff claimed, and the proof introduced by him tended to show, that the interest which became due April 1, 1893, remained unpaid for the period of at least ten days before the commencement of this action, while the evidence of the defendants was to the effect that the whole of the interest that became due before the commencement of the action had been paid Whether the interest had been paid was the question chiefly litigated on the trial. The evidence disclosed that the plaintiff not only held the mortgage in suit against the defendants, but that he also had a chattel mortgage upon the property of the defendant Gould P. Row, to secure the payment of the sum of $200, together with some portion of the interest upon the mortgage in suit. If all the payments made by the defendants were to apply on this mortgage, then no portion of the interest remained unpaid..

The court found that the interest upon this mortgage had been paid up to, but not including the whole of, the installment due on October 1, 1892, and that, by reason of the omission of the defendants to pay the installment which became due April 1, 1893, and a part of the installment which became due October 1, 1892, which remained in arrears for the space of more than ten days before the •commencement of this action, the whole principal sum of $5,000 and all arrears of interest thereon became due and payable on April 12, 1893.

As we have seen, there was a conflict in the evidence upon the question whether the interest was paid upon the mortgage in suit to April 1, 1893. If the defendants’ version of the transaction is correct all the interest was paid, and the plaintiff was not entitled to maintain this action. On the .other hand, the plaintiff’s evidence was perhaps sufficient, if believed, to justify the court in finding that the payments made were not to apply upon the interest on this mortgage, but upon tbe other claim held by the plaintiff against one of the defendants. A careful reading of the evidence tends strongly to substantiate the claim of the defendants, and the credibility of the plaintiff was seriously impaired by his own written declaration indorsed upon the chattel mortgage held by him against one of the defendants, so that, upon the whole evidence, we are led almost irresistibly to the conclusion that the interest upon this mortgage had been fully paid when the action was commenced.

The general rule relating to mortgages containing a provision that, in case of default in payment of part' of the amount secured, the whole shall become due at the option of the mortgagee, is that the provision is a valid one and courts will grant no relief to a mortgagor from the effect of his default, in the absence of fraud or improper conduct on the part of the mortgagee, or anything to render it unconscionable to avail himself of the provision in it. (Bennett v. Stevenson, 53 N. Y. 508; Malcolm v. Allen, 49 id. 448; Hale v. Gouverneur, 4 Edw. Ch., 207; Ferris v. Ferris, 28 Barb. 29; Noyes v. Anderson, 124 N. Y. 180; Valentine v. Van Wagner, 37 Barb. 60.)

Thus the question is presented whether, under the circumstances shown to exist in this case, the conduct of the plaintiff and the course of dealing between the parties had been such as to render it unconscionable for the'plaintiff to avail himself of this provision in the mortgage. As we have seen, the evidence is very persuasive that the interest had in fact been paid, so that the defendants might well have supposed that it was paid. We also find that from the time the first installment of interest became due in 1890 until the payment of April 1, 1893, became due, the defendants had paid and the plaintiff had received the interest at periods varying from one to six months after it became due without in any way mentioning or claiming the right to avail himself of that provision, and without intimating to the defendants prior to April 10, 1893. that prompt payment of the interest would be required. Again, the proof indicates quite plainly that the plaintiff’s purpose in declaring and claiming the whole amount to be due under- this provision in the mortgage was not to secure the payment of his interest promptly when it became due, but to employ that provision as a means to compel the defendants either to deed him the whole mortgaged property, or reduce the amount of the principal debt secured by the mortgage. That the defendants supposed the interest paid, and if it was not, they were mistaken in that respect, and that the course of action adopted by the plaintiff was improper, inequitable and unconscionable, seems quite clear. And that he should not be permitted to avail himself of that provision in his mortgage for the purpose of acquiring the defendants’ property, or depriving them of the benefit of their contract for the loan made for the time and at the rate of interest mentioned without apprising them that the course of dealing which’ had existed between the parties from the beginning was to be changed, is equally clear. It has been said that such a condition is not in the nature of a forfeiture. If by this is meant that it is not in the nature of a penalty for a wrong, it is doubtless correct, still, a breach of such a condition involves a loss of a right or benefit as a penalty for omitting to perform a required act, and to that extent at least is in the nature of a forfeiture. And when, as in this case, the mortgagors follow the course of dealing which has existed between them and the mortgagee from the beginning, and when, as here, the mortgagors might well have supposed that they had wholly discharged their obligations under this contract, and the mortgagee’s purpose is an ulterior one, we think the mortgagors are entitled to be relieved from the effect of such an omission.

It has been held quite uniformly in this State, in regard to insurance policies, that any agreement, declaration or course of action on the part of the company, which leads a party insured honestly to believe that by conforming thereto a forfeiture of his policy will not be incurred, followed by due conformity on his part, will estop the company from insisting upon the forfeiture, though it might be claimed under the express letter of the contract. (Kenyon v. K. T. & M. M. A. Assn., 122 N. Y. 241.)

In De Frece v. N. L. Ins. Co. (136 N. Y. 144) the defendant insured the life of the plaintiff’s intestate upon what is known as “ the installment bond plan,” the premium to be paid in twenty annual installments, and the bond to be forfeited in case of non-payment at the date specified. An action was brought upon the bond, and the defendant alleged in its answer a subsequent agreement that the installments should be paid quarterly instead of annually, and that the bond was forfeited by reason of the failure of the deceased to pay a quarterly payment which fell due twenty-three days before his death. The only proof as to the new agreement was evidence showing that from October, 1883, to October, 1888, the insured paid the premiums quarterly; that they had been received and accepted by the defendant, and receipts given reciting that they were for premiums falling due quarterly. The evidence showed that all these payments, except three, were made by note and at intervals from twenty days to five months after they became due. The court, in delivering the opinion in that case, said: It was entirely competent for the parties to modify the terms of the original contract with respect to the time of payment, and the effect of a failure to make punctual payment, and the evidence is sufficient to support a finding that the defendant agreed subsequently to the execution of the contract to accept payment of the premiums quarterly or within a reasonable time thereafter, and that the policy should continue in force until such payments were made, providing they were not unreasonably deferred. It has been repeatedly held both in the State and Federal courts that such an agreement may be inferred from the course of dealing between the parties. (Leslie v. Knickerbocker Life Ins. Co., 63 N. Y. 34; Meyer v. Knickerbocker Life Ins. Co., 73 id. 516; Wyman v. Phœnix Ins. Co., 119 id. 274; Kenyon v. K. T. & M. M. A. Assn., 122 id. 247; Atty. Genl. v. Continental Life Ins. Co., 33 Hun, 141; Ins. Co. v. Wolff, 95 U. S. 326; Ins. Co. v. Eggleston, 96 id. 577; Ins. Co. v. Doster, 106 id. 37; Helme v. Philadelphia Life Ins. Co., 61 Penn. St. 107.) ”

Again, where by the terms of a contract for the sale of land, the purchase money is to be paid in installments with annual interest, and the vendor reserves to himself the right to forfeit the contract if the vendee makes default in any of the payments, and after default the vendor continues to receive parts of the purchase money, it has been uniformly held in this State that such a vendor, by receiving payments after default, had so far waived the forfeiture that he could not insist upon it, without giving the purchaser notice to pay the arrears or he would exercise the right of forfeiture, and that a vendor who has waived a forfeiture for non-payment by receiving partial payments from the vendee, after the time of payment prescribed in the contract, cannot suddenly stop short, and insist on a forfeiture for the non-payment of the arrears, without previous notice of his intention to do so if the arrears are not paid. (Harris v. Troup, 8 Paige, 423; Richmond v. Foote, 3 Lans. 244; Cythe v. La Fontain, 51 Barb. 186, 191; McCarty v. Myers, 5 Hun, 83, 85.)

So, too, where upon the conditional sale of a chattel it is agreed that the vendee is to have possession, and pay the price within the time fixed, if after the purchase money has become' due and remains unpaid, the vendee is still permitted to retain possession, and the vendor .receives part payment, this, is an assent by the iatter to delay and a waiver of any forfeiture and a recognition of the right of the vendee to acquire title by payment of the residue of the purchase money, which right would continue until a request by the vendor for such payment, and a refusal by the vendee. (Hutchings v. Munger, 41 N. Y. 155; O’Rourke v. Hadcock, 114 id. 541, 550; Cushman v. Jewell, 7 Hun, 525.)

In Bell v. Romaine (30 N. J. Eq. 25) where a bond, secured by a mortgage, provided that on default in the payment of the interest thereon for thirty days after the same had become due, the principal should, at the option of the obligee, become payable, it was held that after the obligee had ratified several parol extensions of time for paying the interest, made by her agent, a subsequent similar extension would be deemed a waiver of the forfeiture, and a suit at law to enforce the bond on the ground of such forfeiture would be enjoined.

The right to enforce a forfeiture may be waived by express language, by acts importing an intention to waive the right, or by acts amounting to an estoppel. (2 Beach on Mod. Eq. Juris. § 1021.)

While, perhaps, there is no case in which the precise question here involved has been decided, yet, we think the principle of the authorities cited fully sustains our conclusion that, under the circumstances disclosed in this case, it was improper and unconscionable for the plaintiff to avail himself of the provision in the mortgage by which he might declare the whole amount due for the non-payment of the interest, and that he could not avail himself of that provision without notice to the defendants that the course of dealing which had existed between them from the beginning was to be changed, and prompt payment required. These considerations lead us to the conclusion that the judgment was wrong, and should be reversed.

This brings us to the consideration of the appeal from the order striking out the defendants’ amended answer. The original answer in the case specifically denied certain allegations of the complaint, and alleged that the whole of the interest mentioned therein had been fully paid when it became due. The amended answer contained a general denial of the allegations of the complaint, except certain allegations which were expressly admitted, set up payment, and also alleged facts showing that the defendant Gould P. Row, the husband ■of Susan Row, by whom and Gould P. Row the bond and mortgage in suit was executed, had no interest whatever in the mortgaged premises; that he was induced by the representations of the plaintiff to sign the bond and mortgage to cut off his right as tenant by the curtesy, although he had no such right; that he signed the same upon the statement of the plaintiff that it was necessary for him to ■do so as he was the husband of the other defendant, and that there was no consideration for his signing such bond and mortgage. Thus we find that* in the amended answer it was in effect alleged that the execution of the mortgage by Gould P. Row was procured by the false representations of the plaintiff, and that it was without consideration as to him. We think the defendants had the right to have the benefit of this answer, and as it was served in time it should have been permitted to stand, especially as the plaintiff had sufficient time after its service to re-notice the case for the term at which it was tried. If this answer had been permitted to stand, and the defendants had established the additional facts alleged, it is quite probable that no judgment for deficiency would have been awarded against the defendant Gould P. Row. "We think the court erred in striking out the defendants’ amended answer, and that this order -should be reversed.

The respondent’s claim that this order cannot be reviewed on this appeal because a former appeal was taken, and dismissed by this court, cannot, we think, be sustained. In Elliott’s Appellate Procedure (§ 535) it is said : The effect of the dismissal of an appeal is, as a general rule, to leave the case as if there had been no appeal. An order of dismissal does not preclude a second appeal.” The dismissal of an appeal for want of prosecution is not, in judgment of law, an affirmance of the judgment appealed from. (Watson v. Husson, 1 Duer, 242.) In that case it was in substance held that the only effect of such a dismissal was to replace the judgment in its former condition, leaving its merits still open for examination upon a second or further appeal. That case was affirmed in Drummond v. Husson (14 N. Y. 60), where the court said : “A dismissal of the appeal for want of prosecution is clearly not an affirmance of the [judgment. This court has decided nothing whatever- in respect to the validity of the judgment.” The principle of this case was reaffirmed in Palmer v. Foley (71 N. Y. 106, 109). (See, also, Kelsey v. Campbell, 38 Barb. 238; Blake v. Lyon & Fellows Manufacturing Co., 75 N. Y. 611; Culliford v. Gadd, 135 id. 632.) These authorities are adverse to the claim of the plaintiff, and we find nothing in the case of Wiener v. Morange (7 Daly, 446) which aids him, as in that case the intermediate order which was sought to be reviewed on an appeal from a final judgment had already been reviewed on the merits by the court to which the appeal was taken, and, hence, that case was clearly within the provisions of section 1316 of the Code of Civil Procedure.

Nor do we think the claim of the plaintiff, that this order cannot be reviewed because the notice of appeal does not distinctly specify it, can be upheld. The purpose of this provision was to apprise the respondent of the fact that an appeal was taken from the order, and when the notice of appeal accomplishes that purpose it must, we think, be regarded as sufficient. The notice of appeal in this, case was to the effect that the defendants appeal from the judgment and that they also intended to bring up for review the order herein dated the 18th day of July, Í893, and the order dated the 18th of July, 1893, denying the defendants’ motion to settle the issues. That the appellants intended to appeal from two orders that were made on the 18th of July, 1893, is manifest. One of the orders is described, and, hence, the respondent must have clearly understood that the other order intended to be brought up for review was the order striking out the defendants’ amended answer. We think the notice of appeal was sufficient. It follows that this order should be reversed.

The order denying the defendants’.motion to settle the issues in. this action and direct a trial thereof by a jury rested, we think, in the discretion of the court below, and while it would doubtless have been more satisfactory to try the issues by a jury, yet, we think we should not disturb that order, and that it should be affirmed.

Hardin, P. J., concurred ; Merwin, J., concurred in the result.

Judgment reversed and a new trial ordered, with costs to abide the event. The order striking out the defendants’ amended answer reversed, without costs. The order denying the defendants’ motion to settle the issues in the action affirmed, without costs.


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    Christina Kuhn, as Administratrix, etc., of Joseph Kuhn, Deceased, Appellant, v. The Delaware, Lackawanna and Western Railroad Company, Respondent.

      Muster and servant — risk of employment — what duties the master may not delegate -r-negligence of the master — review of a judgment of nonsuit — evidence.

    A master owes to his servant the duty of furnishing suitable tools and implements for his use, a safe and proper place in which to prosecute his work, and, when they are needed, the employment of skillful and competent workmen to direct his labor and assist in the performance of his work. No one of these duties can be delegated by the master to a servant of any grade so as to exonerate the master from responsibility to another servant who has been injured by its non-performance. '
    The rule, that a servant takes the risk of the service, presupposes that the master has performed the duties of care and vigilance which the law casts upon him, and it only excuses the master where the injury results to the servant from a hazard'incident to the nature of the employment, and not from a cause which could have been foreseen and guarded against by the exercise of proper care and prudence on the part of the master.
    The duty of a master to furnish to his servants suitable tools and a safe place in which to work is not an absolute one, but is fulfilled by the exercise of reasonable care and prudence on his part in supplying such tools and furnishing such place, that is, such care and caution as a prudent man would take for the safety and protection of his own person.
    It is the duty of a master, when directing the performance of work by his servant in a place which may become dangerous, where such danger may be foreseen and guarded against by the exercise of reasonable care and prudence on the part of the master, to exercise such care and adopt such precautions as will protect the servant from avoidable danger, and however he may choose to exercise such duty, whether through the supervision of a superintendent or of some employee of a lower grade, it still continues to be tbe master’s duty, and not until be shows that it has been properly performed can he claim exemption from liability for injuries occasioned by reason of the danger connected with the place of performance of the work.
    When a master orders a servant to perform his work in a place prepared for him, the servant has a right to assume that the place has been made reasonably safe by tbe master through other and competent servants.
    The risks of the service, which a servant assumes in entering the employment of a master, are those only which occur after the due performance by the employer of those duties which the law enjoins upon him, and the negligence of the master, co-operating with that of a servant, in producing injury to a co-servant, renders the master liable.
    A master is chargeable ordinarily with knowledge of the means necessary to be employed in performing the work, and when their procurement and selection is delegated to a servant such servant stands in the place of the master in his discharge of those duties, and his neglect in that office is chargeable to the master as an omission of duty enjoined upon him.
    When the question before an appellate court is whether a nonsuit was properly granted, the plaintiff is entitled to the benefit of all the conclusions that the jury would have been warranted in drawing from the facts and circumstances proved.
    Appeal by the plaintiff, Christina Kuhn, as administratrix, etc., of Joseph Kuhn, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Oneida on the 14th day of December, 1893, upon the dismissal of the complaint after a trial at the Oneida Circuit, with notice of an intention to bring up for review on such appeal an order entered in said clerk’s office on the 14th day of December, 1893, denying the plaintiff’s motion for a new trial made upon the minutes.

      Charles II. Sewrle, for the appellant.

      William Hernán, for the respondent.
   Martin, J.:

On the trial of this action the plaintiff was nonsuited. The action was to recover damages sustained by the plaintiff by reason of the death of her intestate, which was alleged to have been caused by the defendant’s negligence.

The intestate, at the time of his injury, was at work upon a scaffold which had been erected by the defendant for the purpose of reslating the roof upon its engine house in the city of Utica. The work of restating was commenced about tbe 1st of September, 1891, Two of tbe defendant’s employees, Cole and Warner, who had had some experience as siaters, were directed to do the work. The defendant’s superintendent of repairs directed the foreman of the defendant’s carpenter shop to construct “ some horses that would be sufficient for men to work on and slate the roof,” without giving any directions or information whatever as to the material to be used, the number of men that were to work upon the scaffold, or whether the old slate was to be used. The carpenter had had no- experience in making horses or scaffolds for the purpose for which this scaffold was to be used. The scaffold as constructed was sixteen feet above the ground, about twenty-five feet in length, and was supported by three horses, one at each end and one in the center. The horses upon which the floor of the scaffold was placed were constructed by taking four hemlock boards, one inch in thickness, six inches in width and sixteen feet in length, and nailing them- to a head piece or ledger, which was about four feet long; then strips of the same material, four inches in width and one inch in thickness, were used for stays, running crosswise inside of the legs, and five inch boards of the same kind were nailed on laterally as braces or cleats. There were six rows of cleats on the horses first constructed, and upon the others there were but four. The material of which they were constructed was not tested to ascertain whether it was defective or otherwise. They were set up next to the building, and planks about twelve inches in width placed on top of them, two being placed side by side from the center horse each way to the other. At first braces ran up from near the foot of the horses to the middle of the plank which formed the floor, but the passing of engines required these to be taken off from time to time, and after a few days they were not put on again. One of the horses was broken by an engine before the time of the accident, and the' carpenter then erected a staging on one side of a box car to take its place.

The plaintiff’s intestate was a common laborer in the employ of' the defendant, doing such work around its shops and elsewhere as he was directed. The defendant’s superintendent of repairs directed the intestate to go to work upon this platform.or scaffold, assisting the men who were reslating this roof. On September 15, 1891, which was the day of the accident, the scaffold had been moved; tlie old slate removed from a portion of the roof, a part of which was left upon the roof, and the remainder placed upon the scaffold. At the time of the accident the decedent was engaged in laying felt on the roof where the slate was to be placed. While thus engaged, the scaffold gave way, precipitating the decedent to the ground, where he struck his back on one of the rails in the defendant’s road, and received injuries from which he died November 3, 1892. None of the persons engaged in constructing this scaffold had had any experience in building scaffolds of that kind, and none of them had seen scaffolds for any purpose of the height of this built in the manner this was constructed. It was found after the accident that the horses were badly broken, were torn apart, were in pieces, and the lumber of which they were constructed was season cracked, shaky and cross-grained.

It was proved that hemlock boards were not a proper or substantial material of which to construct the uprights or legs for such horses or scaffold; that hemlock lumber is usually of loose fiber, brittle and cross-grained; that such boards do not hold nails well; that they split and are weakened by nailing on braces, and that where hemlock 'is used as supports for scaffolds, two by fours or three by fours are ordinarily used. The evidence was sufficient to have justified the jury in finding that the scaffold was used in the manner contemplated when it was constructed-; that the use was reasonable if the scaffold had been properly constructed, and that the defendant’s superintendent knew of the manner in which it was used and how it was constructed before he sent the plaintiff’s intestate to work upon it. The evidence also tended to show that the accident was occasioned by the giving way of one or more of the horses upon which the planks for the platform were placed, and that after the accident the condition of these horses was such as to indicate quite plainly that such was the cause of the accident.

• We think it is quite manifest from the evidence that the jury would have been warranted in finding that the fall of the scaffold and consequent injury of the plaintiff’s intestate were due to the structural weakness of the scaffold, which originated from the use of insufficient and improper materials, and from being constructed in an insubstantial and improper manner.

A master owes the duties to his servant of furnishing adequate and suitable tools and implements for his use, a safe-and proper place in which to prosecute his work, and, when they are needed, the employment of skillful and competent workmen to direct his labor and assist in the performance of his work. No one of these duties can be delegated by the master to a servant of any grade so as to exonerate the master from' responsibility to another servant who has been injured by its non-performance. The rule that the servant takes the risk of the service presupposes that the master has performed the duties of care and vigilance which the law casts upon him. It only excuses where injury results to the servant from a hazard incident to the nature of the employment, and not from a cause which the-exercise of proper care and prudence on the part of the master would have foreseen and guarded against.” (Pantzar v. Tilly Foster Iron Mining Co., 99 N. Y. 368; Davidson v. Cornell, 132 id. 228, 234.) The rule as to the duty of the master is not quite correctly stated in the Pantzar case, in that the duty to furnish suitable tools and a safe place in which to work is not an absolute one, but is satisfied by the exercise of reasonable care and prudence on the part of the master to supply such tools and furnish such place, that is, such care and caution as a prudent man would take for the safety and protection of his own person. (Probst v. Delamater, 100 N. Y. 266; Stringham v. Hilton, 111 id 188.) The doctrine of the Pantzar case was re-asserted in McGovern v. C. V. R. R. Co. (123 N. Y. 280, 288), and the court then added: “ When directing the performance of work by the servant in a place which may become dangerous, and such danger may be foreseen and guarded against by the exercise of reasonable care and prudence on the part of the master, it is his duty to exercise such care and adopt such precautions as will protect the servant from avoidable danger. This is thq master’s duty, and however he may choose to exercise it, whether through the supervision of a superintendent or some lower grade of employment, it still continues his duty, and not until he shows that it has been properly performed can he claim exemption from liability for injuries occasioned by its non-performance. (Laning v. N. Y. C. R. R. Co., 49 N. Y. 521, 532; Corcoran v. Holbrook, 59 id. 517.) ” When the master orders a servant to perform his work in a place prepared for him the servant has a right to assume that the place has been made reasonably safe by the master through other and competent servants. (Kranz v. L. I. R. Co., 123 N. Y. 1, 4.) In Benzing v. Steinway (101 id. 547, 551) it was said: It has been repeatedly held that the risks of the service which a servant assumes, in entering the employment of a. master, are those only which occur after the due performance by the employer of those duties which the law enjoins upon him, and that the negligence of the master, co-operating with that of a servant in producing injury to a co-servant, renders the master liable. (Stringham v. Stewart, 100 N. Y. 516, and cases cited.) * * *' The master is chargeable ordinarily with knowledge of the means-necessary to be employed in performing his work, and when their procurement and selection is delegated to a servant, he stands in the place of the master in discharging those duties; and the servant’s neglect in that office is chargeable to the employer as an omission of duty enjoined upon him. (Ellis v. N. Y. C. R. R. Co., 95 N. Y. 546; Slater v. Jewett, 85 id. 61.) ”

The trial court, in effect, held that the question of the contributory negligence of the plaintiff’s intestate was, under the evidence, a question of fact for the jury. In this conclusion we concur. But it held that the evidence was insufficient to justify it in' submitting to the jury the question of the defendant’s negligence. Thus the question to be determined is, whether there was sufficient evidence of the defendant’s negligence to require, the court to submit that question to the jury.

The question before us being the propriety of a nonsuit, the plaintiff is entitled to the benefit of all the conclusions that the jury would have been warranted in drawing from the facts and circumstances proved.. That the defendant owed the plaintiff’s intestate the duty to exercise reasonable care and prudence to furnish him a safe and proper place in which to prosecute his work, and if it became dangerous, and the danger could be foreseen and guarded against by the exercise of reasonable care, to exercise such care and adopt such precautions as would juotect the intestate, is abundantly established by the authorities cited. That this duty could not be delegated by the defendant to any of its servants so as to exonerate it from responsibility to the plaintiff or her intestate is equally well settled. Such being the duty of the defendant, a careful examination of the evidence renders it quite obvious that the question whether this duty had been performed, and, if not, whether its-omission occasioned the injury to the plaintiff’s intestate which resulted in his death, were questions of fact for the jury, and not questions of law to be determined by the court. ■

"We are of the opinion that the evidence was sufficient to require the submission to the jury of the questions of the defendant’s negligence and whether the injury complained of was occasioned thereby, and that the court erred in holding, as a matter of law, that the evidence was insufficient to justify it in submitting those questions to the jury, and for this error the judgment should be reversed.

Hardin, P. J., and Merwin, J., concurred.

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


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    John R. Young and Another, Respondents, v. Winfield B. Stone, as Sheriff of Broome County, Appellant.

      New trial granted oil payment of costs — pi'esumption as to the ground upon which, it was granted —foi'm of the oi'der.

    Where, upon a motion for a new trial, based upon exceptions and the insufficiency of evidence, an order is made granting a new trial upon condition of the payment of costs, it will be presumed that the order was made upon the latter ground.
    A trial judge is invested with power to set aside a verdict and to grant a new trial on the ground that the verdict is against the weight of evidence, or because! the damages are excessive or insufficient, or when for any other reason sub- * stantial justice will be promoted thereby.
    An order setting aside a verdict in favor of the defendant and granting a new trial in an action, on payment by the plaintiffs of all the costs of the action, after notice of trial, to be taxed within thirty days from the service of a copy of such order and notice of the granting and entry thereof, should contain the further provision that, if such costs are not so paid, the motion to set aside the verdict and for a new trial is denied.
    Appeal by the defendant, "Winfield S. Stone, as sheriff of Broome county, from an order of the Supreme Court, made at the Chenango Special Term and entered in the oifice of the clerk of the county of Broome on the 18th day of November, 1893, granting the plaintiffs’ motion for a new trial made upon a case and exceptions, and setting aside the Yerdict and granting a new trial in the action.

      G-eorge F. I/yon, for the appellant.

      T. B. & L. M. Merchant, for the respondents.
   Martin, J.:

An examination of the order appealed from renders it quite manifest that the verdict was set aside and a new trial granted upon the ground that .the verdict of the jury was against the weight of evidence, as it was granted upon the condition that the respondents should pay the costs of the trial. On a motion for a new trial upon exceptions and the insufficiency of the evidence, an order granting it upon condition of payment of costs will be presumed to have been made on the latter ground. (Henderson v. Henderson, 2 Abb. N. C. 102.) We think the same presumption exists in this case.

In McKeever v. Weyer (11 N. Y. Wkly. Dig. 258) it was said: “ The granting or refusing a new trial on the minutes is largely a matter resting in the discretion of the judge who presides at the trial. Such an order is appealable. (§ 1342, Code Civ. Proc.; 4 Wait’s Pr. 342.) But on review the appellate court would not be justified in reversing the action of an inferior court unless it appeared that the discretion vested in the latter court had been abused.”

In Oberlie v. The Bushwick Ave. R. R. Co. (6 N. Y. St. Repr. 771) it was held that the question whether a verdict ought to be set aside as against the weight of evidence is one not governed by any well-defined rules, but depends in a great degree upon the peculiar circumstances of each case.

In Bannon v. McGrane (45 N. Y. Super. Ct. [13 J. & S.] 517, 520) Judge Freedman said: It is at all times a grave question for an appellate court to reverse, on the ground of error, an order made by the trial judge setting aside the verdict as against the weight of evidence. Motions to set aside verdicts, as against the weight of evidence, are not governed by any well-defined rules, but depend in a great degree upon the peculiar circumstances of each case. They are addressed to the sound discretion of the court, and whether they should be granted or refused involves the inquiry, in each particular case, whether substantial justice has been done, the court having in view solely the attainment of that end.”

In Macy v. Wheeler (30 N. Y. 231) it was held that the Supreme Court has the undoubted power and right to examine the evidence at large, and upon the whole case, including the law and the facts, to set aside a .verdict and grant .a new trial; that that court can, from the evidence, reach different conclusions of fact from those found by the jury, and that in reviewing trials it has power to pass upon questions of fact as well as law.

In Barrett v. The Third Ave. R. R. Co. (45 N. Y. 628, 632) Allen, J., said: “ Motions to set aside verdicts as contrary to evidence, as well as motions for a new trial upon the ground of newly discovered evidence, are not governed by any well-defined rules, but depend .in a great degree upon the peculiar circumstances of each case. They are addressed to the sound discretion of the court, and whether they should be granted or refused involves the inquiry whether substantial justice has been done, the court having in view solely the attainment of that end. * * * The exercise of this discretion is not reviewable on error.”

In The Standard Oil Co. v. The Amazon Ins. Co. (79 N. Y. 506) it was held that where the verdict was perverse, or contrary to the law and the evidence, the Supreme Court had ample power to grant new trials in the exercise of its discretion.

In Houghkirk v. President, etc., D. & H. C. Co. (92 N. Y. 219), where the General Term had declined to set aside a verdict as excessive, assigning as a reason that the doctrine of the opinions of the Court of Appeals left it impossible in any instance to say that damages were excessive, the court held that the Supreme Court possessed the power to grant a new trial for excessive damages even in an action for injuries resulting in the death of a person occasioned by the defendant’s negligence.

Assuming, as we think we should, that the motion in this case was granted upon the ground that the verdict was against the weight of the evidence, and applying the doctrine of the cases cited, we are unable to say that there has been any abuse of that sound discretion within which the trial court has a right to grant or refuse a. new trial in such a case, but, on the contrary, are of the opinion that the trial court was. justified in granting the order appealed from. We think a trial' judge is invested with power to set aside a verdict and grant a new trial on the ground that the verdict is against the weight of evidence, or because the damages are excessive or insufficient, or when, for any other reason, substantial justice would be promoted thereby. This power we think an important one, and one that ought perhaps to be more often exercised by trial courts for the proper protection of the rights and interests of litigants.

The appellant contends that even if a new trial was properly granted, the order should be modified so as to provide for the payment by the respondents of all costs of the action after notice of trial, to be paid within a fixed time after the service of a copy of such order with notice of entry. The order is, That the verdict herein be set aside, and a new trial of this action be, and the same is hereby, granted on payment by plaintiffs of all costs of the action, after notice of trial, to be taxed within thirty days from the service of a copy hereof and notice of the granting and entry hereof.” It is manifest from a reading of this order that the trial court intended to set aside the verdict and grant a. new trial' only upon the condition that the plaintiffs should pay the costs referred to in the order. The order, however, failed to provide that in the event of the plaintiffs not paying such costs, the motion to set aside the verdict and for a new trial should be denied. Perhaps this was unnecessary, and yet, we think, the order should contain such a provision, as in the absence of it the plaintiffs may be led to suppose that they need not pay the costs and omit to do so, thereby suspending the action or compelling the defendant to take proceedings to collect them. Therefore, we think it would be better that the order should be amended so as to provide that the verdict be set aside, and a new trial granted upon the condition that the plaintiffs pay the defendant all the costs of the action after notice of trial, within twenty days after the same shall have been adjusted and notice thereof served upon them, and with the further provision that if such costs are not so paid, the motion is denied, with costs.

Hardin, P. J., and Merwin, J., concurred.

Order modified so as to read as follows : Ordered, that the verdict herein be set aside and a new trial granted, on condition that the plaintiffs pay to the defendant all costs of the action after notice of trial, within twenty days after the costs shall have been adjusted by the clerk of Broome county, and notice thereof served upon the plaintiffs. It such costs shan not be paid by the plaintiffs as herein provided, the motion to set aside the verdict and for a new trial is denied, with costs,” and as modified, the order appealed from is affirmed, with costs to the respondent.


author: Merwin, J.:

text:
    Irvin Van Wie and Another, Respondents, v. Edwin L. Loomis and Others, Appellants.
    “ Time cards” — when properly received, in evidence.

    Where entries on “ time cards ” were made by a witness in the ordinary course of business, the fact that such entries were in the first instance made upon slips of paper, which were afterwards destroyed, does not render the cards inadmissible in evidence.
    Upon the trial of an action it was shown that the bookkeeper of the plaintifEs personally saw certain of their workmen each day and obtained from them their time and correctly entered it on certain “ time cards;” such workmen testified that in each instance they gave the time correctly to such bookkeeper, and that they had no definite recollection of the amount thereof.

      JTeld, that such “timecards” were properly received in evidence.
    Appeal by tire defendants, Edwin L. Loomis and others, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Onondaga on the 3d day •of May, 1893, upon the report of a referee, with notice of an intention to bring up for review on such appeal the rulings of the said referee upon the trial, his findings of fact and conclusions of law.
    In the complaint it is alleged that the defendants are indebted to the plaintiffs in the sum of $509.40 for work, labor and services performed and materials furnished by the plaintiffs to and for the defendants at sundry times between the 10th of August, 1891, and the 10th of October, 1891, at the request of the defendants, in the construction and manufacture for them of a certain machine or device. The defendants Loomis and Miller set up in their answers, in substance, a general denial. The defendant Hess admitted that he ordered of the plaintiffs a machine, but alleges that the price was agreed upon at $150, and that it was not made according to instructions. The referee found that at the dates alleged the plaintiffs, at the request of the three named defendants, performed services and furnished materials to the amount and value as alleged in the complaint and that there was no agreement as- to the price.

      Charles 8. Kent, for the appellants.
    £r. IF. O’Brien, for the resjDondents.
   Merwin, J.:

The main issue at the trial was whether the defendants Loomis and Miller participated with the defendant Hess in the ordering of the services and materials referred to in the complaint. There was evidence tending to show that they were interested with Hess in getting up the machine, and that it was made by plaintiffs at their request. A careful consideration of the evidence leads us to the conclusion that we cannot properly say that the finding of the referee on this subject is against the weight of the evidence. Nor can we say that the finding of the referee, that there was no agreement as to price, is not sustained by the evidence.

The appellants claim that the referee erred in the admission in evidence of certain time cards, upon which was entered the time that each workman spent each day upon the machine. Of these cards there were two classes, one of which, being the larger portion, consisted of those made by the foreman Howling, and the other of those made by the bookkeeper Peet after Howling left the employ of plaintiffs. Prior to the admission of those made by Howling he testified that they were in his handwriting; that he was the foreman of plaintiffs during the time covered by the cards, and that it was a part of his duty to keep the time of the workmen as well as his own, and he allotted to each man his work upon this and other jobs; that when he gave a workman a piece of work to do, or commenced a piece of work .himself, he noted on a slip of paper kept for that purpose the time the work was commenced, and when the work was ended he noted the time on the same slip, keeping a separate slip of paper for each man for each day; that on the following day, before nine o’clock in the morning, he transcribed the time from these slips on to the cards in question, and then destroyed the slips; that the time as entered by him on the slips was correct, and was by him correctly transcribed upon the cards; that he could not tell tlie time that lie or any of the men spent on this particular job or any particular day, except from what he saw on the cards.

Upon this state of facts the cards were admissible in evidence within the rule laid down in Mayor, etc., v. Second Ave. R. R. Co. (102 N. Y. 573). They were made by the witness in the ordinary course of the business, and the fact that the entries were in the first instance made on slips of paper, which were afterward destroyed, would not render the cards inadmissible, any more than in case of the first entries being upon a slate. (In the Matter of McGoldrick v. Traphagen, 88 N. Y. 334, 338.) The cards were delivered by the foreman to the bookkeeper and the entries then carried, correctly, as the bookkeeper swears, to the day book and ledger, and the proper prices carried out. The day book and ledger were put in evidence as to such entries, and no point seems to be now made as to the admissibility of the books.

It is suggested that the witness did not testify that after looking at the cards he had no recollection of the facts there stated. The purport of his evidence was, however, very clearly to that effect, and no specific objection was taken on that ground. It is also suggested that the witness could not, by reason of occasional absences from the workshop, speak of his own knowledge as to the exact time the workmen were engaged in all cases. .Whatever uncertainty there was on this subject appeared in the cross-examination of the witness after the admission in evidence of the cards. No motion was made to strike out his evidence. Failure to raise the question by specific objection was, in a case somewhat similar, deemed important in the case above cited from 102 N. Y., at page 582. The ruling, when made, was proper, and no further ruling on the subject, being asked, it became a question of fact whether, upon the evidence of the witness, and all the other evidence in the case, the= amount of time as charged was sufficiently proved. The conclusion of the referee on this subject should not be disturbed. In the class, of cards made by the bookkeeper it was shown that she personally, each day, saw the workmen and obtained from them their time, and correctly entered it on the cards. The workmen also were sworn, and testified that in each instance they gave the time correctly to-the bookkeeper, and, in substance, that they had no definite recollection themselves of the amount. These cards were in the same form as the others, but there were no preliminary slips. We think they were properly admitted in evidence.

There is no other question in the case that need be considered. It follows that the judgment should be affirmed.

Hardin, P. J., and Martin, J., concurred.

Judgment affirmed, with costs.