author: Eollett, J. ?

text:
    In the Matter of the Application of The Manhattan Railway Company, Respondent, v. Henry M. Taber and Others, Appellants.

      Condemnation proceedings — costs allowable — Gode of Oiiril Procedure, §§ 3372, 3379 —possession of condemned property.

    The fact that a plaintiff in proceedings to acquire the title to real estate became entitled to the cost of the trial of the issue made by the pleadings, under the provisions of section 3372 of the Code of Civil Procedure, does not deprive the defendants of their right to other taxable costs in the proceedings; the provisions of such section give to a defendant in such proceedings, in case an award is obtained greater than the oiler made, an absolute right to taxable costs of which he cannot be deprived by the court.
    The purpose of section 3379 of the Code of Civil Procedure is to provide for the protection of a plaintiff’s possession of property sought to be condemned, during the pendency of the proceedings taken for that purpose; it does not authorize the court to grant, after an order confirming an award has been entered, an order forever restraining the defendants in such proceedings from maintaining actions in respect to the property.
    When the final order has been entered and the award has been made or deposited, the plaintiff is entitled to the possession of the property condemned, and the defendants, in case they appeal, are required to stipulate not to disturb the plaintiff’s possession during the pendency of the appeal.
    Appeal by the defendants, Henry M. Taber and others, from that portion of an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 28th day of November, 1893, which enjoined and restrained the- defendants from prosecuting certain actions or proceedings interfering with the possession by the plaintiff of the property sought to be acquired by it, and also from an order of the Supreme Court, made at the New York Special Term and entered in said clerk’s office on the 2'Tth day of November, 1893, in so far as the same failed to direct that the defendants recover costs, less the costs of the trial of the issues, and also from an order of the Supreme Court, made at the New York Special Term and entered in said clerk’s office on the 23d day of December, 1893, denying the defendants’ motion to modify the final order so as to award costs and an additional allowance to the defendants.
    The defendants Taber in the proceeding are the owners of the fee and the defendant, The Orphan Asylum Society, is a mortgagee of Nos. 137, 139 and 111 Pearl street, through which a predecessor of the petitioner, in 1878, constructed an elevated railroad in front of said premises, which said petitioner and its predecessors have since maintained and operated. In 1889 the defendants in this proceeding, except the mortgagee, began an action in the Superior Court to recover their damages for trespasses on the street easements appurtenant to their premises, and for an injunction restraining the further operation of the road. An issue was joined in the action, which was tried at an equity term begun on the first Monday of May, 1893, and resulted in a judgment entered August 29, 1893, in favor of the plaintiffs in that action, the defendants in this proceeding, for the sum of $20,100 damages for the trespasses, with $1,159.61 interest and costs, in which action it was adjudged that the plaintiffs have a judgment restraining the further operation of the road, unless the defendants paid within sixty days $15,000 for a conveyance and release of the easements taken. On the 16th of March, 1893, the Manhattan Railway Company began proceedings to condemn the street easements appurtenant to said premises, which resulted in a final order confirming the report of the'commissioners appointed to appraise the damages, entered November 21, 1893, assessing the damages to be paid by the railroad to the owners of the property at $30,250.
    The order directed the payment of the damages assessed to the owners of the premises, and in case they refused to accept it, that the sum should be deposited with the New York Life Insurance and Trust Company to the credit of the proceeding, and that upon payment or deposit being made the railroad should be entitled to the possession of the easements condemned. This order gave no costs to either party. Subsequently the landowners moved at Special Term that the final order be modified by inserting therein a provision allowing them costs to. be taxed and an additional allowance. The landowners appeal from that part of the order of confirmation which refuses them costs, but not from the other part of it. The landowners have’ also appealed from the order of the Special Term denying their motion to modify the final order as to costs. The corporation, fearing that the judgment of the Superior Court awarding an injunction might be enforced, on the 6th of November, 1893, obtained from a justice of this court an order requiring the landowners to show cause, on the 8th of November, 1893, why they and each of them should not be restrained from doing, suffering or procuring to be done any act or acts interfering or tending to interfere with the possession by the railroad of the easements sought to he condemned in the proceeding, and why actions against the railroad should not be enjoined and restrained, pursuant to section 3379 of the Code of Civil Procedure, upon the railroad making a deposit, as specified in that section. The order contained a stay restraining action of the landowners until the hearing and decision of the motion. The motion instituted by this order to show cause, and the motion to confirm the report of the commissioners, were heard on the same day, before the same court, and both were decided by orders entered on the twenty-fourth of November. The following are the, provisions of the order entered upon the show-cause order:
    “ Ordered that, upon compliance by the plaintiff with the terms and provisions contained in the final order duly made and entered herein, confirming the report of said commissioners of appraisal, the plaintiff be, and it hereby is, authorized to continue in possession of the property sought to be condemned herein, as described in the petition, and the defendants, and each of them, their attorneys, agents and servants be, and they hereby are, enjoined and restrained from doing, suffering or procuring to be done, any act or acts interfering or tending to interfere with the possession by the plaintiff of the property, easements or other interests, title to which is sought to be acquired by this proceeding, and that all actions and proceedings by these defendants, or any of them, against plaintiff, or any other person on account of, or arising out of such possession by plaintiff as aforesaid be, and the same hereby are, enjoined and restrained; and that said defendants, and each of them, their attorneys, agents or servants he, and they hereby are, enjoined and restrained from taking any steps in any action or proceeding which shall interfere, or tend to interfere, with the plaintiff’s possession of the property aforesaid, or which shall hinder, delay or check the regular transaction of its business on account of such possession.”
    The landowners appealed “ from the whole of such order, except so much thereof as authorizes the plaintiff to continue in possession of the property of the defendants described in the petition herein, after the entry of the final order confirming the report of the commissioners of appraisal herein and the payment or deposit to the credit of, or payable to the order of, the owners of the amount of the compensation fixed by said order.”

      John E. Parsons, for the appellants.

      Echoard G. James, for the respondent.
   Eollett, J. ?

The order confirming the report of the commissioners awarding $30,250 damages for taking the street easements appurtenant to the abutting lands contains no provision in respect to costs, and after it was entered the defendants moved that it be modified so as to grant them taxable costs and an additional allowance, which was denied. The defendants have appealed from the final order of confirmation “ in so far only as the same fails to direct that the defendants recover of the plaintiff the costs of the proceeding, less the costs of the trial of the issues raised by the answer herein,” and they have also appealed from the order of the Special Term denying their motion to have the order of confirmation modified so as to allow them costs and an additional allowance.

Section 3372 of the Code of Civil Procedure provides: If the compensation awarded shall exceed the amount of the offer with interest from the time it was made, or if no offer was made, the court shall, in the final order, direct that the defendant recover of the plaintiff the costs of the proceeding,-to be taxed by the clerk at the same rate as is allowed, of course, to the defendant when he is the prevailing party in an action in the Supreme Court, including the allowances for proceedings before and after notice of trial; and the court may also grant an additional allowance of costs, not exceeding five per centum upon the amount awarded. * * * If a

trial has been had, and all the issues determined in favor of the plaintiff, costs of the trial shall not be allowed to the defendant, but the plaintiff shall recover of any defendant answering the costs of such trial, caused by the interposition of the unsuccessful defense, to be taxed by the clerk at the same rate as is allowed to the prevailing party for the trial of an action in the Supreme Court.”

Under tliis section the plaintiff became entitled to and has been awarded the costs of the trial of the issue joined by the pleadings, but the fact that it became entitled to the costs of the trial does not deprive the defendants of their right to the other taxable costs of the proceeding. The last clause of the section quoted is not intended to deprive the defendants of their costs of the proceeding in case an unsuccessful defense is interposed to the right of the plaintiff to condemn the land, but to charge them with the costs of that issue. The question as to what costs the defendants may be entitled to recover, or whether disbursements may be taxed under the section, is not a question now before the court, but the statute gives to defendants, in ease the award is greater than the offer, an absolute right to taxable costs, of which they cannot be deprived by the court. We think the final order should have provided that the landowners recover their taxable costs, which would have enabled them to have presented to the clerk a bill of the items claimed for taxation.

The record not disclosing whether the Special Term denied the motion for an additional allowance on the ground that the defendants, not being entitled to taxable costs, were, therefore, not entitled to an allowance, or on the ground that on the merits they were not entitled to such an allowance, this question must be remitted to the Special Term to be determined.

Section 3379 provides: “At any stage of the proceeding the court may authorize the plaintiff, if in possession of the property sought to be condemned, to continue in possession, and may stay all actions or proceedings against him on account thereof, upon giving security, or depositing such sum of money as the court may direct to be held as security, for the payment of the compensation which may be finally awarded to the owner therefor and the costs of the proceeding, and in every such case the owner may conduct the proceeding to a conclusion, if the plaintiff delays or neglects to prose- ■ elite the same.”

The purpose of this section is to provide a remedy for the protection of the plaintiff’s possession of the property sought to be condemned during the pendency of the proceedings, but it is not designed to authorize the court to grant, after the order of confirmation has been entered, an order forever restraining the defendants from maintaining actions in respect to the property. When the final order has been entered, and the award has been paid or deposited, the plaintiff is entitled to the possession of the property condemned, and the defendants, in case they appeal, are required to stipulate not to disturb the plaintiff’s possession during the pendency of the appeal.

This restraining order is not authorized by section 3379, and it should he reversed.

The order denying defendants’ motion for an amendment of the final order is reversed, which final order should be amended so as to award the defendants their taxable costs, less the costs taxed against them upon the, trial of the issue formed by the pleadings, and they should be given leave to apply at Special Term for an additional allowance, and the restraining order should be reversed.

The appellants are entitled to ten dollars costs and their disbursements on this appeal.

Van Brunt, P. J., and Parker, J., concurred.

Order denying motion for additional allowance reversed, with ten dollars costs and disbursements, and remitted to Special Term for determination. Restraining order reversed, with ten dollars costs and disbursements. Order denying motion for amendment of final order reversed, with ten dollars costs and disbursements, and order amended as directed in opinion.


source: Caselaw Access Project

author: Eollett, J.:

license: Public Domain

text:
    Sarah B. Tucker and Another, by Victoria A. Johnson, their Guardian ad Litem, and Another, Respondents, v. The Manhattan Railway Company and Another, Appellants.

      Equitable action■ — waiver of a defense of adequate remedy at la/w ; that causes of action are improperly united, and of misjoinder or defect of parties plaintiff— objection must be by answer or demurrer — damages to real estate by an elevated railroad —form of judgment.

    A defendant in an equitable action cannot avail himself of the defense that the plaintiff has an adequate remedy at law, unless it is pleaded in the answer.
    When a defendant does not object by demurrer or answer, that the causes of action, stated in the complaint, are improperly united, or that there is a misjoinder or defect of parties plaintiff, such objections are deemed waived.

      It is the usual rule that in equitable actions all persons having interests in the controversy should be made plaintiffs or defendants and their interests be determined.
    In an action brought to recover the damage to real estate caused by the construction, maintenance and operation of an elevated railroad upon the street on which such real estate is situated, and to enjoin the further operation of the railroad, where one of the plaintiffs is an infant, who owns an undivided interest in the premises in question, it is an error requiring a reversal of the judgment, rendered in such action in favor of the plaintiffs, that such judgment awards an injunction unless the defendants pay a specified sum upon receiving a conveyance of certain easements of the plaintiffs appurtenant to such premises, appoints a special guardian of such infant, and authorizes and directs him to convey the interest of such infant in the premises to the defendant.
    Appeal by the defendants, The Manhattan Railway Company and another, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on tlie 23d day of January, 1894, upon the decision of the court rendered after a trial at the New York Special Term.
    In 1878 Sarah B. Tucker, Isabella Tucker Newell and Ella Y. A. Dayton acquired the fee of Nos. 123 and 125 West Broadway, each having an undivided one-third interest, and, on the 9th of May, 1890, Ella Y. A. Dayton conveyed her interest to Sarah B. Tucker and Isabella Tucker Newell. At the date of this conveyance both of the grantees were infants. October 15, 1892, Isabella Tucker Newell became twenty-one years of age, and Sarah B. Tucker will become twenty-one years of age July 3, 1897. This lot is situate on the east side of the street and has a frontage thereon of thirty-seven feet and eight inches, and is bounded on the west by the east line of the street, the fee of which is not in the plaintiffs. Prior to May 1, 1885, the lot was covered by two brick and frame buildings two stories in height, the first floors of which were used for business purposes and the upper floors for dwellings. In 1885 those buildings were removed and the present building, which is six stories high and constructed of brick and stone and is adapted and used for business purposes, was erected and was ready for occupancy February 1, 1886. The construction of the elevated road in West Broadway was begun in 1876, and was completed and put in operation in 1878. There is a station of defendants’ road at West Broadway and Franklin street, about 300 feet south of plaintiffs’ premises, which, largely increases the number of persons passing up and down the street in front of said premises.
    This action was begun August 11, 1890, to recover damages for the trespasses on the street easements from August 11, 1884, to the date of the trial, and to restrain the maintenance and operation of the road in front of the plaintiffs’ premises. The court found that the damages occasioned by the trespasses from August 11, 1884, to May 9, 1890, when Ella Y. A. Dayton conveyed her interest to her sisters, were $3,430.56, one-third of which belongs to Mrs. Dayton, and that the damages for the trespasses committed between May 9, 1890, and December 9, 1893, the date of the decision, amounted to $2,364.82. Tlie judgment also provides that the plaintiffs, upon being paid $7,500, should convey their interest in the easements to the defendants, in which case the injunction was not to issue. It also provides that the guardian ad litem of the infant plaintiff, who, by the judgment, was appointed special guardian, should receive one-half of the said sum, $3,750, and hold it, with all the accumulations thereon, until the infant becomes twenty-one years of age, when it should be paid over to her. The guardian was required to file a bond in the sum of $7,500, with two sufficient sureties, conditioned that she should safely keep such sum.
    The damages for trespasses committed between August 1, 1884, six years before this action was begun, and May 1, 1885, the date when the old buildings were removed from the lot, were assessed at seventy-two dollars and eighteen cents, which is at the rate of $100 per year. No damages were awrarded for trespasses committed between May 1, 1885, and February 1, 1886, when the new building was ready for occupancy, and for the trespasses committed since the latter date the damages were assessed at the rate of $600 per year.

      Ezra A. Tuttle, for the appellants.
    . Elijphalet IF. Tyler, for the respondents.
   Eollett, J.:

On the trial a joint equitable cause of action in favor of Sarah B. Tucker and Isabella Tucker Newell, two of the plaintiffs, and a joint legal cause of action in favor of all three plaintiffs were established. Both causes of action arose out of injuries to real property. The defendants, not having objected by demurrer or by answer that there was a misjoinder or defect of parties plaintiff, or that causes of action were improperly united, have waived these objections. (CodeCiv. Proc. § 499.) A defendant in an equitable action cannot avail himself of the defense that the plaintiff has an adequate remedy at law, unless it is pleaded in the answer. (Truscott v. King, 6 N. Y. 147; Cox v. James, 45 id. 557, 562; Town of Mentz v. Cook, 108 id. 504; Ostrander v. Weber, 114 id. 95 ; Hyatt v. Ingalls, 124-id. 93, 105; Buffalo S. & C. Co. v. D., L. & W. R. R. Co., 130 id. 152; Watts v. Adler, Id. 646.) De Bussierre v. Holladay (4 Abb. N. C. 111; 55 How. Pr. 210), so far as it conflicts with the cases, cited, is overruled. Sarah B. Tucker and Isabella Tucker Newell, being the owners of the fee, had the right to maintain this action in equity to restrain the defendants from maintaining their road, and incidentally to recover such damages as they had sustained by the past trespasses, and it is the usual rule that in equitable actions all persons having interests in the controversy should be made plaintiffs or defendants and their interests determined. The presence of Mrs. Dayton as a plaintiff in this action does not harm the defendants, but prevents the necessity of another action, and the defendants, should not now or hereafter be permitted to raise this defense.

The appellants urge that the conveyance by Mrs. Dayton of her one-third interest in the premises to her sisters having been made, while the grantees were infants, they may evade the grant when they reach their majority, and thus expose the defendants to an action in behalf of Mrs. Dayton. Isabella Tucker Newell became twenty-one years of age October 15, 1892, since which date she has prosecuted this action to judgment, and it is now too late for her to repudiate the conveyance. Should Sarah B. Tucker, on becoming of full age, repudiate the grant to her, a one-sixtli interest would revert to Mrs. Dayton, who is a party plaintiff in this action, and she would be estopped by the judgment herein, which she has aided to secure, from prosecuting another action on the claim enforced by her in this suit. The presence of Mrs. -Dayton as a party plaintiff is a protection to the defendants’ present and future interests.

The part of the judgment awarding an injunction, unless the defendants pay $7,500 upon receiving a conveyance of the easements, rests on tbe theory that the court had power to appoint in this action a special guardian for the infant plaintiff, and authorize the guardian to convey the ward’s interest to the defendants. This is not a proceeding to sell an infant’s real estate, nor is it an action of partition, nor was it brought for the purpose of divesting the infant’s title; no such relief is asked for in the complaint, nor are the allegations therein sufficient to warrant such relief, and the Special Term erred in appointing a special guardian and directing her to convey the infant’s title. Hnder such a conveyance the defendants would not acquire a legal title to the interest of the infant in the easements, and for this error the judgment should be reversed and a new trial granted, with costs to the appellants to abide the event.

Yan Brunt, P. J., and Parker, J., concurred.

Judgment reversed, new trial ordered, costs to appellants to abide the event.


author: O’Brien, J.:

text:
    H. Koehler & Co., Appellants, v. James W. Brady, Respondent.

      Lease — waiter of a covenant not to assign — re-entry by the landlord — the pi’ayer for relief need not, in direct terms, ask for lea/oe to redeem.

    Where a lease contains a covenant on the part of the lessee not to assign the same, and also a condition of forfeiture of the lease iu case of a breach of that covenant, the acceptance by tbe lessor of rent accruing after an assignment of the lease, with knowledge thereof, is a waiver of the forfeiture, and the condition, once dispensed with, is dispensed with forever, so that the assignee can thereafter assign and can transfer a good title to the lease without the consent of the landlord.
    A re-entry by a landlord, under the terms of a forfeiture clause contained in a lease, cannot be made, except on his compliance with the provisions of law which in certain cases authorize the retaking of possession of the premises.
    The fact that the complaint in its prayer for relief does not in direct terms ask for leave to redeem premises, taken by a landlord under a forfeiture clause contained in tbe lease thereof, is not conclusive upon the plaintiff’s rights, because the court upon the trial can give such relief as, upon the proof, it may appear that the plaintiff is entitled to.
    Appeal by the plaintiffs, H. Koehler & Oo., from an order of the Supreme Court, made at the New York Special Term and entered in tlxe office of the clerk of the comity of New York on the 20th day of April, 1894, vacating a temporary injunction which restrained the defendant from moving certain chattels from certain premises, and denied the plaintiffs’ motion to continue the same until final judgment.

      E/numuel J. Myers, for the appellants.

      Willimn E. Wyatt, for the respondent.
   O’Brien, J.:

The complaint in its prayer for relief is susceptible of the view, either that the action is brought upon the theory that one McCabe, .as a tenant at will, being in possession of the premises, after notice from plaintiffs, should remove, or, as contended by plaintiffs, that it is to redeem from the summary proceedings and to compel defendant to receive from them, as mortgagees and assignees of the lease made by the defendant landlord to one Daniel J. Foley, certain alleged arrears of rent and charges and expenses incurred in summary proceedings.

The facts are fully set forth in the complaint, showing that the plaintiffs advanced the sum of $1,800 to one McGin for the purpose of enabling him to pay for the lease and fixtures of a store which McGin had purchased from Wiseman, the assignee of the original tenant Foley, and that as security for the sum so advanced plaintiffs received an assignment of the lease and a mortgage on the fixtures. Subsequently, McGin, without notice to plaintiffs, transferred whatever interest he had in the property to McCabe, who, having neglected to pay the rent, was ousted in summary proceedings brought by the defendant as landlord. Prior thereto written notice of the interest which plaintiffs claim in the premises was given to the defendant, which notice contained a request that if any arrearage of rent should ensue, they should be notified so that they might pay the same. And before the bringing of this action, they again notified the defendant of their willingness to pay the arrearages of rent and expenses of the summary proceedings, and demanded possession of the premises.

The grounds upon which such demand was resisted were, first, -that the lease contained a covenant that an assignment thereof should . not be made without the consent of the landlord, and that an assignment without such consent had worked a forfeiture-; and, second, that the defendant, having got possession of the premises for failure of the tenant in possession to pay the rent, cannot have such possession disturbed.

The answer to the first, upon the facts appearing, would seem to be furnished by the case of Murray v. Harway (56 N. Y. 337), wherein it was held (lieadnote) that “ where a lease contains a covenant on the part of the lessee not to assign, with a forfeiture of the lease in case of breach, acceptance of rent by the lessor accruing after an assignment, with knowledge thereof, is a waiver of the forfeiture ; and the condition once dispensed with is dispensed with forever, so that the assignee can thereafter assign and can transfer a good title to the lease ” ■ — ■ even without the consent of the landlord. It is conceded that the defendant as landlord knew that Eoley had assigned and that such assignee subsequently had delivered over possession of the premises to McG-in; but he seeks to evade the force of the waiver which resulted from his acceptance of the rent by saying that he notified him that he would regard him merely as a monthly tenant. This, however, is no answer, because the re-entry under the forfeiture clause could not be made except upon compliance by the landlord with the provisions of law which in such case authorize the retaking of the premises.

The acceptance of rent, therefore, from an assignee of the lease having been a waiver of the condition of forfeiture, which was thus gone forever, it remains to determine what force there is in the other position taken by the defendant, that, having obtained possession through summary proceedings, such possession cannot be disturbed.

In view of the notice which the defendant had of the plaintiffs* interest in the premises, good faith, it seems to us, should- have induced him to give plaintiffs the opportunity of paying the rent as it accrued. But apart from this, if the action can be regarded as one to redeem, then, the unexpired term of the lease exceeding five years, the plaintiffs could at any time within one year after the execution of the warrant pay or tender * * * all rent in arrear,” together with Interest, costs and charges incurred by the landlord,, which would entitle the plaintiffs to possession. (Code Civ. Proc. § 2256.) Both by the notice and in the complaint it is shown that-such tender was made, and it is still open for tl-ie defendant to accept sncli amounts and to place tlie plaintiffs in possession.

Tbe fact that the complaint in its prayer for relief does not in direct terms ask for leave to redeem is not conclusive upon the plaintiffs’ rights, because the court upon the trial can give such relief as upon the proof it may be shown that the plaintiffs are entitled to. It may be that upon such trial the facts may to some extent be varied and that the defendant may be able to maintain his possession; but we think that sufficient was shown upon the motion to have justified the court in continuing the temporary injunction until the action could be tried, because the undertaking which the plaintiffs would be required to give would amply protect the defendant.

Our conclusion, therefore, is that the order appealed from should be reversed, with ten dollars costs and disbursements, and the motion for preliminary injunction granted upon the plaintiffs giving the usual undertaking in the sum of $500.

Follett and Parker, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion for injunction granted on conditions stated in opinion.


author: Follett, J.:

text:
    The Employers’ Liability Assurance Corporation (Limited), Appellant, v. The Employers’ Liability Insurance Company of the United States and Others, Respondents.

      Injunction — restraining the use of a corporate name — defense to such an action — . chapter 211 of 1877 does not relate to foreign corporations — powers of the Insur~ anee Superintendent under chapter 593 of 1873.
    In an action brought to restrain an insurance company from using the words “Employers’ Liability” as part of its corporate name or in its business, proof that the defendant corporation did not issue a policy until nearly a month after the commencement of such action is a defense thereto where the plaintiff fails to show that it had sustained any special injury prior to the commencement of such suit.
    Where the defendant was entitled to use such words as part of its corporate name and in its business, 'a similarity between the names of the plaintiff and defendant ceases to be a factor or ground for recovery, and the rights oE the litigants are the same as though their corporate names were dissimilar.

      Before one insurance company can recover in an action brought against another insurance company to restrain the use of certain words as a part of its corporate name by the latter company or in its business, the plaintiff must show that the defendant was issuing policies in violation of the law of the State, and that its acts had actually caused some special injury, or would necessarily cause injury, to the plaintiff’s business.
    Chapter 211 of the Laws of 1877 does not relate to foreign insurance corporations, but to companies to be thereafter organized under the laws of the State of New York, and it does not vest the insurance department with the right to prescribe what name or title foreign corporations shall take.
    Under the provisions of chapter 593 of the Laws of 1873 the Superintendent of Insurance had the right to refuse to permit any foreign corporation to transact business in the State of New York, whenever, in his judgment, such refusal to admit it would best promote the interests of the people of the State. Under that act such a similarity of name as would be likely to lead to confusion between the business of such foreign corporation and that of another company would be a sufficient ground for such refusal.
    Appeal by the plaintiff, The Employers’ Liability Assurance Corporation (Limited), from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 26th day of June, 1893, upon the decision of the court rendered on a trial at the New York Special Term dismissing the jffaintiff’s complaint upon the merits.
    This action was brought to restrain the defendant corporation from using the words “ Employers’ Liability ” as a part of its corporate name or in its business. The plaintiff is a corporation organized in 1881, under the laws of the Kingdom of Great Britain and Ireland, for the purpose of insuring employers against liabilities for accidents happening to their employees while engaged in the service of employers. The plaintiff’s principal office is in London, England, and it has agencies and is engaged in business in every State in the United States, except Ohio, Virginia and Arkansas. Since 1886 it has been authorized to insure, and has been engaged in insuring, in this State, having its office at No. 51 Cedar street, in the city of New York. In 1890 the premiums received on its business in this State exceeded $90,000, and on its business in the United States more than $800,000. On the 11th of February, 1890, the defendr ant corporation was organized by the individual defendants, under the laws of the State of New Jersey, for the purpose of insuring employers against liabilities for accidents happening to their employees. Immediately after tlie defendant was incorporated, it hired an office at No. 9 Pine street, in the city of New York, painted its name on the front window of the office, printed blanks and began to advertise for insurance. It procured to be printed conspicuously on its bills and office paper the words “ The Employers’ Liability Insurance Company, No. 9 Pine street,” and the words “ of the United States ” were inserted by type writing in smaller letters. It also printed blank applications and policies substantially of the form of those issued by the plaintiff, but prior to February 18, 1890, when this action was begun, it had issued no policies, the first being issued after April 7, 1890. On the 22d of April, 1890, the defendant’s application for leave to do business in this State was denied, pursuant to chapter 211, Laws of 1877, by the insurance department, on the ground of the similarity of its corporate name to the coiporate name of another company doing business in this State. On the 30th of April, 1890, the name of the defendant corporation was changed from “ The Employers’ Liability Insurance Company of the United States ” to “ American Employers’ Liability Insurance Company.” Between April 7 and April 30, 1890, it issued forty-three policies under its original name, but after the latter date its policies were issued and its business conducted under its new name.

      William Allen Butler, for the appellant.

      Willia/m 6r. Wilson, for the respondents.
   Follett, J.:

Upon the appeal from the first judgment entered in this action it was held that the plaintiff is not entitled to the exclusive use of the term “ Employers’ Liability ” as part of its corporate name, and that its use by the defendant could not be restrained, though such issue might mislead or deceive persons intending to insure with the plaintiff. (61 Hun, 552.) But it was held that if the defendant corporation was doing business in this State without permission of the insurance department, the plaintiff might be entitled to a judgment restraining it from doing business in this State if it could show that it had sustained special damages by reason of defendant’s illegal action. Upon the present trial it appeared that the defendant corporation did not issue a policy until nearly a month, after- this action was begun, and the plaintiff failed to show that it had sustained any special damage before this suit was brought. This seems to be a perfect defense to this action. The defendant corporation having the right to use the words “ Employers’ Liability ” as part of its corporate name and in its business, the similarity of names ceases to be a factor or ground for recovery, and the rights of the litigants are the same as though their corporate names were dissimilar. The plaintiff has not made out a cause of action based on the fact that the defendant corporation has issued policies without having been authorized by the insurance department. The learned counsel for the plaintiff in his seventh point admits that the illegal acts of the defendant in taking insurance risks in this State contrary to law do not of themselves give any right to the injunction sought by this action, but argues that the change of defendant’s corporate name at the suggestion of the insurance department is an admission that its name was so similar to the plaintiff’s as to produce confusion and uncertainty, and that on this admission the plaintiff is entitled to the relief sought. The defendants have made no such admission. The defendant corporation has not abandoned the use of the words “ Employers’ Liability,” but has simply prefixed the word American ” to its title and omitted the words “ of the United States.” The insurance department has not denied the right of the defendant corporation to use these words in its corporate name, but, on the contrary, expressly asserted in its letter of April 22, 1890, that it had a right to use these words. Before the plaintiff can recover under the rule laid down in 61 Hun, 652, it will have to show that the defendants were issuing policies in violation of the law of this State, and that their -acts had actually caused some special injury or would necessarily cause such injury to the plaintiff’s business. This it has failed to do although it has shown that the defendant corporation has used, and asserts its right to use, the words “ Employers’ Liability ” as part of its corporate name, which this court has held it has a right to do. The mere fact than an unlicensed person should begin the practice of medicine would not authorize a licensed practitioner to maintain an action to restrain the unlicensed person from practicing.

The conclusion reached, that no cause of action is stated in the complaint and that none was proved on the trial, renders it unnecessary to consider the third conclusion of law contained in the decision of the Special Term. The statute referred to (Chap. 211, Laws of 1877) does not relate to foreign insurance corporations, but to companies to be thereafter organized under the laws of this State, and it does not seem to vest the insurance department with the right to prescribe what name or title foreign corporations shall take. Under the statutes existing at the time this controversy arose the superintendent, however, liad the right to refuse to permit any foreign corporation to transact business in this State “whenever, in his judgment, such refusal to admit shall best promote the interests of the people of this State.” (Chap. 593, Laws of 1873, § 2.) Such a similarity of name as would he likely to lead to confusion would seem to he under this act a sufficient ground for refusal.

The judgment should he affirmed, with costs.

Van Brunt, P. J., and Parker, J., concurred.

Judgment affirmed, with costs.


author: Eollett, J.

text:
    John Dunbar Wright and Others, Respondents, v. The New York Elevated Railroad Company and Others, Appellants.

      Measure of damages to real estate caused by an elevated rail/road — finding against evidence — foi'm of judgment.

    The measure of damages which abutting owners on the street of a city are entitled to recover for trespasses committed by an elevated railway on street easements is the diminished rental value of the abutting premises caused by the trespasses. The amount of rent received before the trespasses were committed and while they were being committed, is competent evidence upon the issue as to the amount of damages sustained; but the difference between these sums is not conclusive proof of the extent of the injury sustained.
    The real issue is not how much less has the abutting owner actually received for the rent of the premises, hut how much has the rental value of the property been diminished by the trespasses, and in determining this question the benefits, if any, to the premises, occasioned by the construction and operation of the road, must be taken into account.
    Upon the trial of an action brought to recover past and fee damages to real estate caused by the construction, maintenance and operation of an elevated railroad upon the street on which the plaintiffs’ premises abutted, it was shown that the rent received from the premises prior to, and after, the construction and operation of the elevated railroad was practically the same. One of the occupants of such premises testified that they were annoyed by the dust, cinders and smoko that came from the road, and that the light was interrupted by the structure and by the moving trains.
    The court found that the damage for past trespasses amounted to $300 per annum.

      Sold, that such finding was contrary to the weight of evidence.
    The judgment provided that an injunction restraining the operation of the road should issue within sixty days after the entry of the judgment, unless the defendants should pay §6,000 on receiving a conveyance from the plaintiffs of the easements in question One-fourth of the title of the property in question was owned by infants.

      Held, that such provision was inequitable; that the judgment might properly have provided that an injunction issue unless the defendants either paid the sum fixed, on being tendered a valid conveyance of the title, within the time mentioned, or acquired the title by condemnation proceedings within that time.
    Appeal by tlie defendants, Tlie New York Elevated Railroad Company and others, from a judgment of tlie Supreme Court in favor of tlie plaintiffs, entered in tlie office of tlie clerk of the county of New York on the 10th day of October, 1893, upon the decision of the court rendered after a trial at the New York Special Term.
    Eor more than thirty years prior to March 20, 1819, James B. Wright was the owner in fee of No. 304 Pearl street, on which date he died, having devised the premises in f»e to Mary D. Corlies, Carrie L. Coolidge, Annie A. Mason and John Dunbar Wright, each taking an undivided one-fourtli interest. On May 8, 1889, Carrie L. Coolidge died intestate leaving her surviving Henry Coolidge, her husband, and three children, Howard K. Coolidge, Sallie Coolidge and George G. Coolidge, her only heirs, who are minors. No administrator has been appointed for her estate. The lot is situate on the east side of Pearl street, is twenty-two feet and five inches wide on the street and a little more than ninety-five feet in depth. It is bounded on the west by Pearl street, the fee of which street is not in the plaintiffs. The lot is occupied by a four-story brick building fifty-one feet deep, which was erected about ninety years ago, and a one-story extension covering the rear of the lot. These premises are subject to two mortgages, one for $3,166.66 owned by Caroline E. Weaver, and one for $600 owned by Phoebe C. Wright.

      The construction of the elevated road in Pearl street was begun in 1877, and was completed and put in operation in August, 1878.
    This action was brought to recover. damages for the trespasses upon the street easements since January 9,1885, and for a judgment' restraining future trespasses. The damages for the past trespasses were assessed at $300 per year from January 9, 1885, to June 6, 1893, the date of the trial, amounting to $2,580, and the value ot the easements taken was assessed at $6,000, and the qsual alternative judgment was entered.

      Dames, Short <& Townsend, for the appellants.

      George Zabrishie, for the respondents.
   Eollett, J.

The plaintiffs are simply abutting owners, having no title to or interest in the bed of the street, nor any private rights therein except such as are incident to a lot abutting on a public street. The defendants insist that there is no evidence tending to sustain the finding (thirteenth) that the trespasses committed by the defendants before the trial damaged the plaintiffs to the amount of $300 per year, and they also insist that if there is any evidence tending to sustain this finding it is altogether against the weight of the evidence. The measure or rule for ascertaining the amount which abutting owners are entitled to recover for trespasses committed by the elevated roads on street easements has been held in many cases to be the diminished rental value of the abutting premises caused by the trespasses. The amount of rent received before the trespasses were committed, and while they were being committed, is competent and persuasive evidence upon the issue of the amount of damages sustained, but the difference between these sums is not conclusive or proof of the extent of the injury sustained. It may be that during the time when the acts complained of were committed the premises were not rented, or they may have been let for a nominal sum, or for a sum much more or much less than their actual rental value. The real issue is not how much less the abutting owner has actually received for the rent of the premises, but it is how much has the rental value of the property been diminished by the trespasses. In determining this question the benefits, if any, to the premises occasioned by the construction and operation of the road must be taken into account. In the case at bar the plaintiffs’ premises have been continually leased to the Hale Chair Company for twenty-five or thirty years before the trial of this action, and were occupied by that corporation as a chair store. During the fifteen years immediately preceding .the trial —1878 to 1893- — ’the corporation (the lessee) paid an annual rental of $1,200 to $1,400. From 1878 to 1881 the annual rent was $1,200. The rent for 1882 is not stated, but it appears that it was not less than $1,200 nor more than $1,400. Since 1882 the rent has been $1,400 per year, so it appears that the plaintiffs have not received a less rent since the road was put in operation than before. The learned counsel for the defendants urges that this is proof that the plaintiffs were not injured by the trespasses complained of, and that at most they are entitled to but nominal damages. We do not think that this conclusion necessarily follows from the evidence. It may be that had the road not been built and operated in front of the plaintiff’s premises their rental value would have been more than $1,400 per year. One of the occupants of the premises testified that they were annoyed by the dust, cinders and smoke that came from the road, and that the light was interrupted by the structure and by the moving trains. Rut aside from this evidence we find none in the record which shows or tends to show how much the real rental value of these premises was diminished between January 9, 1885, and June 6, 1893, by the trespasses of the defendants. No witness testified that the rental value of these premises was diminished by the operation of the road, and we think that the thirteenth finding is contrary to the weight of the evidence.

The judgment provides that an injunction restraining the operation of the road shall issue within sixty days after the entry of the judgment, unless the defendants should pay $6,000 on receiving a conveyance from the plaintiffs of the easements. It is true that the defendants are not bound to pay the sum fixed, but may acquire the property by condemnation, yet this provision should be formulated and founded on equitable principles. (American Bank Note Co. v. N Y. Elevated R. R. Co., 129 N. Y. 252; Blumenthal v. N Y. Elevated R. R. Co., 28 J. & S. 95.) One-fourth of the title is held by infants which cannot be conveyed, except by a special guardian, duly authorized by the court in a special proceeding instituted for .that purpose. This provision in its present form is inequitable. It might have been provided that an injunction issue unless the defendants pay the sum fixed on being tendered a valid conveyance of the title, within the time mentioned, or that an injunction issue unless the defendants acquired the title by condemnation within the time mentioned.

The point is urged that the plaintiffs are not entitled to recover more than three-fourths of the damages which accrued prior to May 8, 1889, the date of the death of Mrs. Ooolidge, but it was not then taken on the trial and need not be considered, as it will undoubtedly be obviated on the retrial.

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

Yan Brunt, P. J., and Parker, J., concurred.

Judgment reversed, new trial granted, costs to appellants to abide event.


author: Foixett, J.:

text:
    Antonio Bernardi, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.

      Duty of a master to 7iis employees — delegation of — explosion of dynamite transported by a railroad eonvpany.

    A master owes to Ms employees the duty of exercising proper care in furnisMng suitable machinery for doing the work in which his employees are engaged, and the care required depends on the exigencies of the case and the dangers incident to the business.
    It is the duty of a railroad corporation to exercise due care to provide proper cars for the transportation of powerful explosives over its road, and it cannot escape liability for damages caused by its failure to exercise such care by delegating its duties to an employee of inferior grade who happens to be a co-laborer with a person injured.
    Appeal by the plaintiff, Antonio Bernardi, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of New York on the 1st day of February, 1891, upon the dismissal of the plaintiff’s complaint directed by the court after a trial at the New York Circuit before the court and a jury.

      Arthur Furber, for the appellant.

      D. W. Tears, for the respondent.
   Foixett, J.:

This action was brought to recover damages for personal injuries caused by an explosion of dynamite on one of defendant’s cars near Tarrytown, on the 19th of May, 1891. The cause of action alleged in the complaint is that the defendant negligently loaded and carried on a car in its train near the locomotive, a large quantity of .some highly explosive material which was wholly unprotected and by reason thereof exploded, causing the injuries complained of. It is not alleged that' the defendant neglected to furnish a suitable car for the transportation of this explosive, or that it neglected to prescribe and enforce some particularly necessary rule regulating the time and mode of transporting it. However, the record does not show that any question was raised over the sufficiency of the complaint to permit a recovery for the defendant’s neglect to discharge duties which a master owes to his employees. The defendant, by its answer, admits that an explosion of blasting material occurred on one of its cars on the date alleged while being drawn by a locomotive over its road, but denies that it was negligent, and alleges that the accident was caused by the negligence of the plaintiff’s competent fellow-servants and by his own negligence, or by the concurrent negligence of the plaintiff and of his fellow-servants. When the plaintiff rested the defendant moved that the complaint be dismissed on four grounds: (1) That no cause of action had been made out; (2) that no negligence on the part of the defendant had been shown; (3) that the negligence, if any, was that of the plaintiff’s fellow-servants ; (4) that the plaintiff had not shown that he was free from contributory negligence. The motion was granted, the plaintiff excepted and also requested that the case be submitted to the jury on the issues of fact presented by the evidence, which was denied and an exception taken.

It is well settled that there are certain duties which a master owes to his employees,.and among them is the duty to exercise proper care to furnish suitable machinery for doing the work in which employees are engaged. It was the duty of this defendant to exercise due care to provide proper cars and means for transporting this powerful explosive over its road, and it cannot escape liability for damages caused by the failure to exercise such care by delegating its, the master’s, duties to an employee of inferior grade who happened to be a co-laborer with the person injured. This rule is settled by Flike v. Boston & Albany R. R. Co. (53 N. Y. 549); Crispin v. Babbitt (81 id. 516); Benzing v. Steinway & Sons (101 id. 547); Hough v. Railroad Co. (100 U. S. 213); Wilson v. Merry (1 H. L. Ser. 326), and does not need to be elaborated. This brings us to the question whether the evidence was sufficient to have authorized the juiy to have found that the defendant neglected to provide a safe car for transporting this explosive. The nature of the explosive was described by the manufacturer who was called as a witness and testified: Nitro-glycerine is the basis of it

(Ajax powder), with other things as an absorbant; its commercial name is dynamite; it is put up in cartridges; I think these cartridges were eight inches long by about one and one-quarter in diameter. The cartridges are made of paper submerged in paraffine, and then filled with this dynamite and the ends closed up ; it is a very explosive substance; it is discharged by a cap ; heat will sometimes discharge it and sometimes not; concussion discharges it; the explosion of the cap is a concussion, and it is exploded by a cap; we do not allow smoking around where dynamite is kept; we prohibit it; we prohibit men carrying matches, and all that sort of thing; we prohibit anything that is apt to ignite from being around where dynamite is. Q. The Court: "Would it (dynamite) explode from contact with live sparks — coal sparks? A. No, I think not. If dynamite got on fire it might explode from the heat of the fire after a time; at first it would burn. We have had explosions in our works; that is, they have had the powder burn up, and the people got away without having an explosion. The powder was in cartridges. I cannot say what degree of heat you can apply to cartridges before they will explode. We have known a whole carload to burn up withouij exploding — twenty thousand pounds ; that would be where there was plenty of space in the open air; but if you should confine it in this room and set it afire, where it would not get plenty of air, the oxygen would soon be exhausted and it would go up. It would explode; and if there were detonators or caps there they would explode by the heat of the fire, and they would explode the dynamite if they were in direct contact with it. * * * This Ajax powder was harder to explode than nine-tenths of the powder we made. It was made especially for the New York Central & Hudson River Railroad Co., under instructions from them to have it made with as great care as possible.”

Such was the character of the explosive used as described by the person who made it for the defendant.

At the time of the accident the defendant was, and for some months before had been, engaged in constructing a third track between Spuyten Duyvil and Sing Sing, and in the work it used the explosive above described which was manufactured for its use.

For some months before the accident tire plaintiff had been employed by defendant on its tracks, but his work had no connection with blasting or with the employees engaged in that work, or in running the work train. Prior to May 19, 1891, about thirty workmen had been engaged in blasting and removing rock at Dudley’s Grove, which is about seven miles south of Tarrytown. At this place there was a powder shanty in which dynamite was stored, which was near the track, but how near does not appear. These employees, known as Finnegan’s gang,” on the morning of May nineteenth began work just south of the village of Tarrytown and between six and seven miles north of Dudley’s Grove. After working two or three hours they were directed to get on board the work train, consisting of a locomotive and one open flat car, on which they were carried to Dudley’s Grove, where they loaded upon this flat ear the dynamite stored in the powder shanty, together with the tools and materials which they had used at that place. The undisputed evidence is that between twenty and thirty boxes of dynamite cartridges were loaded on the car. Every one of the boxes was about twelve by twenty-four inches in size, containing cartridges eight inches long by about one and one-fourtli inches in diameter. There were also twenty-three or twenty-four packages of caps, detonators or exploders, which were used for exploding the cartridges. These exploders wrere loaded on the front end of the car, on top of the dynamite, some of them being covered and others not. After the car was loaded the workmen got on to it and the train started for Tarrytown. Two witnesses, who were uncontradicted, described what occurred on the trip: The car went about three miles and a half before anything particular happened. Then the powder took fire and they exploded. I saw what caused the powder to take fire. The particles of coal coming from the smokestack of the engine lighted the powder and caused the explosion of the other boxes. * * * I saw the sparks fiy from the engine and light upon parts of the load upon the car. They all put the collars of their jackets up to prevent the sparks from striking them. The particles of coal fell all over the load. I was riding about in the middle of the car. The front part near the engine took fire.”

Another witness testified: “. The explosion took place a quarter of a mile before getting to Tarrytown. Just before the explosion I saw particles of coal coming from the smokestack of the engine and they burned our clothes. Particles of coal fell upon our coats, and one of my companions told me it was burning his coat, and he was just taking it off when the explosion took place. I did not see any fire upon the car before the explosion. I did not see any sparks from the engine fall on the boxes.” Plaintiff’s counsel, addressing defendant’s counsel: “ Will you admit that the explosion took place from the sparks of the engine ? A. I have not any doubt that the explosion took place after the sparks came from the engine and lit upon the contents of the car. I am not prepared to dispute that, and there is no use piling up evidence of that fact.”

From this evidence the jury might have well found that the explosion was caused by the sparks from the locomotive, and they might have found that the defendant did not exercise due care to furnish safe means for the transportation of this explosive. It cannot be held upon the evidence, as matter of law, that this plaintiff contracted to incur the risks incident to the transportation of this quantity of dynamite over the road on which he was employed, in the manner described, and if it shall be found as a fact that the car used was unsafe and unfit for the transportation of this explosive, and that the defendant negligently permitted it to be used for that purpose, the plaintiff will be entitled to a verdict. The care, and diligence required of a master to furnish safe machinery and materials for the services in which it is used depend on the exigency of the case and the dangers incident to the business. It is apparent, we think, to all, that employees and inhabitants on the line of the railroad, and passengers on its trains would be exposed to great perils by tbe explosion of such a quantity of dynamite, and the care which defendant was required to exercise to prevent such an occurrence should have been commensurate to the liability of the article to explode and the dangers to be apprehended from an explosion. Upon principle and authority it was a master’s duty —- the defendant’s duty —• to exercise great care in furnishing safe means for the transportation of this explosive, and, under the evidence, it was a question of fact whether it used such care on that occasion. There is no evidence that the plaintiff in any way contributed to the acci, dent or its results by any act or omission of his own.

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

Yan Brunt, P. J., and Parker, J., concurred.

Judgment reversed and new trial granted, with costs to appellant to abide event.


author: Parker, J.:

text:
    Robert J. Hoguet and Others, Appellants, v. Ewald Mommer and Others, Respondents.

      Action for goods sold, and delivered — proof of delivery — when a question for the jury.

    & an action brought to recover the value of goods alleged to have been sold and delivered to the defendants, it appeared that the delivery of the goods was made in the same way as that of other goods which had been at prior times delivered and had been subsequently paid for by the defendants.

      Held, that, in the absence of evidence on the part of the defendants that the goods in controversy did not come into their possession, the plaintiffs were entitled to go to the jury on the question whether or not the goods were in fact delivered to the defendants.
    Appeal by the plaintiffs, Robert J. Hoguet and others, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 25th day of November, 1893, upon the dismissal of the complaint directed by the court after a trial at the New York Circuit before the court and a jury.

      John II. Mann, for the appellants.

      8. B. Stiles, for the respondents.
   Parker, J.:

Two causes of action are alleged in tlie complaint, the first for the ' recovery of $207.70 for goods sold and delivered, and the second for the recovery of $1,381.50 for goods sold and delivered.

At the close of plaintiffs’ case the court dismissed the complaint, and on this appeal the plaintiffs seek only to reverse so much of the judgment as relates to the second cause of action.

The plaintiffs’ contention on the trial was that their selling agent, Charles B. Boell, sold to one August Mahler, representing the defendants, certain goods which were in part delivered to Mahler for the defendants, and the residue to the defendants at their place of business. The learned trial judge reached the conclusion that the plaintiffs had not only failed to establish the agency of Mahler, but in addition that they had not succeeded in proving that any portion of the goods was delivered to the defendants. We agree with him in so far as he determined that the plaintiffs had failed to furnish any such evidence of the agency as would entitle them to recover on proof merely that they had sold and delivered goods to Mahler. But as to a portion of the goods we think there was such proof of delivery as to entitle the plaintiffs, in the absence of . a denial of their receipt by the defendants, to go to the jury on that question. Mahler was described by plaintiffs’ selling agent as a broker, who, finding a purchaser for certain goods, would buy them in the name of the customer to whom the goods would be delivered by the seller, accompanied by a bill. There was evidence that Mahler’s brother was a member of defendants’ firm, and that Mahler had or pretended to have an office at their place of business. On several prior occasions he ordered of plaintiffs’ selling agent small quantities of goods for the defendants, which were delivered, not to him, . but to them, and in due course paid for them by their check. Plaintiffs’ selling agent knew that Mahler was not in the employ of the defendants; and his general course of dealing with him makes it apparent that he well understood the necessity of a delivery to the defendants in order that their liability to respond should become assured. In the absence of the selling agent, however, Mahler succeeded in obtaining a delivery to himself of some portion of the goods which were the subject of the second cause of action, and as to them it was rightly held that there was no basis for a recovery. But we think the court assumed that all of these goods were delivered to Mahler, and overlooked the fact that there was evidence tending to show that some portions of them were actually delivered to the defendants. April 29, 1891, the plaintiffs’ agent claims to have delivered to the defendants some goods in the same manner as on previous occasions, which had resulted in checks from the defendants for the value of the goods delivered as per bill accompanying them. Touching the delivery, James Campbell, plaintiffs’ truckman, who had delivered other goods to the defendants for plaintiffs purchased under similar circumstances, testified: “ A. In the first place I went to Boell’s; I called up the hatch to the porter if he had anything to go out; he said ‘ Tes, I have a case to deliver to E. Mommer & Co.’ ‘ All right; send it down.’ It comes down in the elevator and I take it down. I drive around to Mommer’s place; sing up the hatch, ‘ E. Mommer & Co.’ The elevator comes down with a man on it; takes the case; I helped put it on the elevator; takes the case and book upstairs; leaves the case there, and comes down with the book; I drive away. I do not know Augustus Mahler. Q. Do you know the elevator man down there? A. NT ell, now, I couldn’t tell; sometimes there is one man . on an elevator, and the next time you go there is another man— in all buildings as a general thing ; elevator man may be off; may be called away; you sing out, and somebody who is in the habit of running it will come down and take up your goods. Q. You have already testified this morning to the delivery of some goods on April 29th, and I ask you whether those goods of April 3d were delivered by you in the same way as such goods testified about this morning ? A. Yes, sir ; I have never had a receipt signed at the, door in Mommer’s place. The book lias always went up. Q. Always went up, and came back again signed? A. Yes, sir. Q. Have you frequently delivered goods to Mpmmer ? A. Quite often. Q. Know the place well? A. Yes, sir; know the place well.”

Plaintiffs put said receipt in evidence as Exhibit N as follows, the italics signifying the writing on a printed form:

“ New York, April Zd, 1891.

“ Received from Ch. P. Boell, in good order, marked Mess. E. Mommer & Co., 96 Grand street, the following packages, One (1) Case No. 242. Delivered by Campbell. Signed AT.”

The signature, so-called, wliicli was subscribed to the receipt on the book while it was upstairs was not intelligible, and neither counsel' was able to make it out. But as the truckman had ’ eoncededly made deliveries for the plaintiffs before to these defendants in the same way, we think that, in the absence of evidence on their part that the goods in controversy did not come into their possession, the plaintiffs were at least entitled to have the jury say whether they were in fact delivered.

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

Pollett, J., concurred; Yan Brunt, P. J., dissented.

Judgment reversed, new trial ordered, costs to appellants to abide event.


text:
    The Christopher and Tenth Street Railroad Company and Another, Appellants, v. The Twenty-third Street Railway Company and Another, Respondents.

      Agreement — when reformed — burden of proof — when a judgment will not be reversal as against evidence — decision admitting evidence, when reviewable on appeal — denial, for alleged want of power, of a motion resting in discretion.

    When an instrument is plain and unambiguous a court has not the right to read into it other words and phrases, in order to make a different agreement for the parties, although the court may conclude that the facts and circumstances surrounding the parties or connected with the execution of the contract were of such a character as that the imported language would make the agreement more in accordance with exact justice, or more nearly what may seem to the court to have been the probable intention of the parties.
    Although, when it is shown that the parties intended to make another and different agreement from the one actually made, a court of equity has the power to reform it, yet a contract wilfnot be reformed on loose, contradictory or unsatisfactory evidence; and in an action brought to reform a written contract the burden rests upon the plaintiff of establishing his position by a greater pre- . ponderance of evidence than is ordinarily required in civil actions. The reformation of a written instrument will be granted ■ only when there is a plain mistake clearly made out by satisfactory proof.
    A judgment will not be reversed by an appellate court simply because it concludes that it would have found the facts otherwise than the jury, referee or trial court found them, allowance • being properly made for the more advantageous position occupied by one who listens to the testimony of the witnesses, observes their conduct on the stand, hears their voices and notes the accentuation accompanying ¿their testimony.
    When the reformation of a written instrument is sought, it must be made to appear that the error therein was due either to the mutual mistake of the parties or a mistake by the one and fraud on the part of the other.
    Belief can only be granted in an action brought to reform a written instrument in case the plaintiff establishes a common agreement of all the parties other than that expressed in the executed agreement, and that the insertion of the provision therein not agreed to was without the knowledge of any of the parties to it or without the knowlege of one of the parties, the other having knowledge of that fact and concealing it. Allegations to that effect may be stated by the pleader in the alternative.
    An appellate court cannot, in the absence of a motion to strike out the same, review the decision of a trial court admitting evidence, when there was no objection taken to the admission thereof upon the trial, although an exception was taken thereto after its admission.
    The denial, by the trial court, of a motion resting in its discretion, on the ground that it has not power to grant the same, is a mistake sufficient to call for a reversal of a judgment, unless it clearly appears, beyond controversy, that the result could not have been affected by such error of the court as to its power in the premises.
    Appeal by the plaintiffs, The Christopher and Tenth .Street Eailroad Company and another, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 1st day of February, 1893, upon the decision of the court rendered after a tidal at the New York Special Term.

      Frederick R. Goudert, Thomas G. Shecvrmcm and Everett P. Wheeler, for the appellants.

      Edmwnd Randolph Robinson, for the respondents.
   Parker, J.:

The issues involved in this suit were so fully discussed in the opinion of the trial court as to render it unnecessary for this court to do mpre than briefly call attention to the several propositions involved in the decision now to be made.

The plaintiffs, as lessee and sub-lessee from the defendant, the Twenty-third Street Eailway Company, of certain of its street railroad property situated on Fourteenth street in the city of New York, seek to restrain the defendants from running any cars on the tracks thus leased to plaintiffs. If tlie writing between the lessor and lessee, to which the agreement of the parties was finally reduced and formally executed about May 20, 1884, provided that the lessee should have the exclusive right to use the property leased, the plaintiffs’ demand for injunctive relief could not be cpiestioned.

But while the agreement gave to the Christopher and Tenth Street Railroad Company the right to run and operate its cars upon and over a portion of the railroad property and routes owned by the Twenty-third Street Railway Company, including its Fourteenth street property, it expressly reserved to the lessor the same right as to the last-named route.

The plaintiffs insist that, notwithstanding the lease purported to reserve to the lessor the right to run its cars over so much of the property described in the agreement to lease as was situated on Fourteenth street, kich was not the intention of the parties, and its insertion in the written contract was owing to a mutual mistake of the parties, and the relief prayed for in their complaint was, in part, that the court so reform the writing that it should conform to the agreement upon which the minds of the authorized representatives of the parties originally met.

The defendants, by their answer, denied this contention of the plaintiffs, and nearly all the evidence presented on the trial bore upon that issue. When the controversy was submitted to the trial court for decision, the plaintiffs contended, as they do now, that the language of the reservation, in the light of the evidence given upon the trial, was ambiguous, and, therefore,'in its construction regard should be had to the situation of the parties and the surrounding circumstances; that, if so construed, it would necessarily and properly follow that the reservation of rights to the lessor would be limited to such part of its Fourteenth street property as lay between Ninth and Eleventh avenues.

At the time the lease was executed there were two independent routes ■ on Fourteenth street, one extending from Eleventh to Ninth avenues, and the other from Ninth to Fourth avenues. Evidence was introduced tending to show that at and prior to the making of the lease it was thought by some of thoBe interested in the corporations which were parties to it, that the route between Ninth and Eleventh avenues might become important to the lessor at some future period in the operation of such of its surface railroads as it did not lease to the Christopher Street Eailroad Company.

Other evidence was presented for the purpose of causing it to appear to the court that what the lessor intended to do was to reserve the right to run its cars over that portion of Fourteenth street extending from Ninth to Eleventh avenues. Heading the reservation in the light of such evidence, the appellants urge that it is not only within the province of the court, but is its duty as well, to so read it as to limit its operation to that portion of Fourteenth street.

Turning to the agreement, we find that it demises and leases the right to operate a railroad upon and through the following routes in the city of New York, that is to say: Commencing at the intersection of Fourteenth street and Fourth avenue; thence through and along Fourteenth street, with double tracks, to Eleventh avenue, and from Fourteenth street through and along Tenth avenue, with double tracks, to Little Twelfth street; thence through and along Little Twelfth street, with single track, to Washington street; thence through and along Washington street, with single tracks, to Christopher street to connect with the present tracks of the party of the second part; also from the aforesaid tracks at Little Twelfth street and Tenth avenue through and along Tenth avenue to West street, with single tracks; thence through and along West street to Christopher Street Ferry, and thence through and along Christopher street, with double tracks, to Washington street. It being understood and agreed that the party of the first part shall also have the right to run and operate its cars upon and over the above-mentioned railroad and route in and along Fourteenth street.”

It will be observed that the description thus given of. the property leased does not designate a route from Fourth to Ninth avenues, and another from Ninth to Tenth avenues, but instead a property situated on Fourteenth street, extending from Fourth to Eleventh avenues. The reservation in terms refers to and includes the railroad property thus described. It provides distinctly and positively that the lessor “ shall also have the right to run and operate its cars upon and over the above-mentioned railroad and route in and along Fourteenth street.” .Clearly, there is no ambiguity here; no room to question what the draughtsman intended. And in case an instrument is jDlain and unambiguous the court has not the right to read into it other words and phrases in order to make a new and different agreement for the parties, notwithstanding the facts and circumstances surrounding them or connected with the execution of the contract may have been of such a character as to induce a conclusion that the imported language would make the agreement more in accordance with exact justice, or more nearly •what to the court may seem to have been the probable intention of the parties. While nothing is peeded beyond a reading of the description of the projierty leased, and the reservation which is contained in the sentence next following it to support a determination that the reservation is not ambiguous, and, therefore, not to be cut down by the court, because it may, perhaps, be of the opinion that the provision ought to have been otherwise, still it may not be out of place to observe that if the contention of the appellants touching the authority of the court in the premises be sound, and its construction could be adopted, there would result not only a different contract than that executed by the parties, but one differing from that which the trial court, in passing upon another question, has found the parties intended to make. After hearing and weighing all the evidence bearing upon the principal issue presented, and which the plaintiffs insisted should lead to a reformation of the lease, the court found that, The parties to said lease never at any time mutually agreed, in terms or in substance, upon a provision that the use of the route in Fourteenth street by the Twenty-third Street Railway Company should be restricted to that portion of the route west of Ninth avenue ; but, on the contrary, the said parties did mutually agree upon the said lease of May 20, 1884, sought to be reformed in this action.”

While the plaintiffs have made the point with some appearance of seriousness that the contract should be treated as something entirely different from that which its language expresses, their efforts on the trial were principally directed to the introduction of testimony tending to show that another and different agreement than that which is expressed in the lease was contemplated by the parties.

The main purpose of its introduction was, of course, to show such a situation as should entitle plaintiffs to invoke the aid of a court of equity, to the end. that the contract should be so reformed as to make it represent the real intent of the parties to it. The power of the court in such case is undoubted, and its exercise has, in many instances, promoted the ends of justice. Many cases have been considered under this head of equity, and they have resulted in the establishment of a rule that a contract shall not be reformed on loose, contradictory or unsatisfactory evidence. Upon the plaintiff in such cases rests the burden of establishing his position by a greater preponderance of evidence • than is ordinarily required in civil actions. Some of the authorities have gone so far in that direction as to hold that the burden resting upon the plaintiff is precisely like that rule of the criminal law which requires that the guilt of the accused must be fully proved ; that neither the preponderance of evidence nor any weight of preponderant evidence is sufficient for the purpose, unless it generates full belief of the fact, to the exclusion of all reasonable doubt.

In Southard v. Curley (134 N. Y. 148) a divided court held that the authorities which received some examination at its hands did not require it to hold that this strong rule of criminal procedure had become a part of the practice in civil actions. But thoroughly well established is it that reformation of written instruments will be granted only when there is a plain mistake clearly made out by satisfactory proofs.

The purpose in part of referring to the doctrine of the cases on this subject is, that it may be appreciated that the rule, which ordinarily governs this court in reviewing the evidence upon which a trial court lias predicated its findings, should certainly be not less rigorously enforced than is required in actions generally — a rule which denies the right of this court to reverse a judgment simply because it concludes that it would have found the facts otherwise than the jury, referee or trial court found them, allowance being properly made for the more, advantageous position occupied by him who listens to the testimony of the witnesses, observes their conduct on the stand, hears their voices and notes the accentuation accompanying their testimony. The trial judge has found that there never was any such agreement made between the parties as would have resulted had the court reformed the contract as requested by the plaintiffs. Yet the very first step which the plaintiffs were bound to take in order to entitle them to the relief sought was to establish that the actual agreement of all the parties to the instrument was as alleged in the complaint.

The trial court, not content with finding that the plaintiffs failed to establish that the common agreement did not become a part of the written instrument, proceeded still further and found as a fact that the lease correctly expressed the real agreement between the parties. That finding reads as follows:

“ The said lease of May 20, 1884, between the Christopher and Tenth Street Railroad Company and the Twenty-third Street Railway Company and the Bleecker Street and Fulton Eerry Railroad Company, set forth in the complaint as Exhibit No. 3, fully embodies and correctly expresses the real agreement made between the said parties to the lease in question.”

The findings alluded to not only justify but require the judgment dismissing the complaint, and they have such support in the evidence as denies to this court the right to reverse them. A discussion of the evidence, which, after examination, we regard as amply sufficient to support the findings of fact made, will not be profitable, especially in view of the fact that they were considered at considerable length and with much care in the opinion of the court at Special Term.

The first exception to the admission of evidence, to which our attention is called by the appellants’ brief, it is urged presents the question whether the court properly received in evidence a complaint in a p2-ior action between these pai’ties, Í21 which these defendants we2’e the plaintiffs, and the plaintiffs in the pending action were the defendants. It was offered by the defendants for the purpose, among other’s, of bringing to the attention of the court the fact that such complaint alleged, among other things, that the lease of May 20,1884, reserved to the Twenty-third Street Railway Company the right to operate cars on Fourteenth street from Fourtli to Eleventh avenues, and that such allegation was not traversed. The merits of the,proposition suggested we are prevented from considei’ing, because, while there was air exception taken, there was no objection made to the admission of the evidence.

The record shows that when the defendants offered the complaint in evidence, the court inquired the purpose of it, to which defendants’ counsel replied, and then it was admitted, the plaintiffs thereafter excepting. But plaintiffs had not objected in any form whatever to its admission. Their counsel was silent from the moment when the complaint was offered in evidence until after its admission. Nor did they afterwards move to strike it out.

George N. Curtis, who was elected a director of the Christopher and Tenth Street Railroad Company in June, 1881, testified that he was present at a meeting in October following, when the minutes were read of the previous meeting which contained a resolution ratifying the lease. He was permitted to testify to the discussion which took place on the motion to adopt the minutes as read. He said that one of the directors objected that the lease did not explicitly define the rights of the companies as to Fourteenth street, and that the president replied fhat he had a great deal of trouble to get the lease; that it was the best he could get, but it was not intended that the Twenty-third Street Railway Company should run east of Ninth avenue. He was then asked the following question: State whether or not it was your understanding in voting for that resolution that the lease would give to the Twenty-third Street Railway Company the right to run cars in Fourteenth street east to Fourth avenue.” The question was excluded on defendants’ objection, plaintiffs excepting. Had the question been a proper one, its refusal would not call for a reversal of the judgment because of the finding of fact which the answer could not have affected, that the written lease fairly stated the common agreement arrived at by the parties before any attempt was made to reduce it to writing. But it was properly excluded for the reason that it had already been made to appear from the testimony of the witness that the 'reservation was considered and discussed, the fact being commented on that it did not define the rights of the respective companies in Fourteenth street.

The president gave his personal assurance merety that it was not intended that the Twenty-third Street Railway Company should run east of Ninth avenue. He did not pretend to say that the lease so restricted it. And the witness having full knowledge of the fact of the existence of the reservation clause in the lease and its failure to define the rights of the lessor and lessee in Fourteenth street, whether he had the capacity to comprehend or understand it was not material to any question before the court.

The exception taken to the ruling of the court, that it was without power to amend the complaint as requested, presents a more interesting question.

The complaint alleged that the written lease did not truly express the common agreement upon which the minds of all the persons representing the parties to it met, and that its failure to do so was owing to their mutual mistake.

When reformation of a written instrument is sought, it must, of course, be made to appear that the error was due either to the mutual mistake of the parties or mistake by the one and fraud on the part of the other.

The complaint did not mention the second ground, and it was not the plaintiffs’ theory that the representatives of the lessor had been guilty of fraud.

After plaintiffs had rested their case and during the examination of defendants’ witnesses, evidence was elicited tending to show that the officers bf the lessor had intended precisely such a lease as had been executed. Upon being confronted with such testimony plaintiffs’ counsel moved the court that the complaint be amended by adding, on page 11, folio 33, after the words by accident and mistake which was mutual,” the following: Or by mistake on the part of the Christopher and Tenth Street Railroad Company, and by fraud on the part of the Twenty-third Street Railway Company.”

The court denied the motion on the ground that it had no power on the trial to make the amendment proposed, and plaintiffs excepted.

Whether the court was mistaken in the position taken by it we are not agreed. One view is that by the proposed amendment it was sought to bring in a new cause of action, while the other is that, although at first blush it may have that appearance, such would not have been its effect.

The purpose of the suit was to reform a written instrument. Relief could only be granted in case the plaintiffs should prove : (1) A common agreement of all the parties other than that expressed in the instrument; (2) the executed agreement; (3) that the insertion of the provision not agreed to was without the knowledge of any of the parties to it, or without the knowledge of one of the parties, the other having- the knowledge but concealing it.

It was long ago determined that these allegations might be stated by the pleader in the alternative, and the practice thus established has been steadily followed, so if the plaintiffs had stated in their complaint in the first instance that the insertion of a different provision than that upon which the minds of the parties met, was owing to the mutual mistake of the parties, or to the mistake of the one party and the fraud of the other, the point could not have been successfully made that the complaint, while pretending to allege one cause of action, in fact joined together two inconsistent causes of action.

As they may stand together when pleaded in the alternative, because forming a part of the appropriate allegations of a complaint setting up a cause of action to reform a contract, it necessarily follows that an amendment which states them in the alternative, where one is already expressed, cannot operate to change the cause of action.

Again, if we apply the rule adopted by the Court of Appeals in Davis v. Lake Erie & W. R. R. Co. (110 N. Y. 646) it will be at once apparent that the proposed amendment would not have resulted in alleging a new cause of action.

The court said: It is a fair test to determine whether a new cause of action is alleged in the amended complaint that a recovery had upon the original complaint would have been a bar to any recovery under the amended complaint.”

It is obvious that a recovery had upon the complaint in this action would have been a bar to any recovery on the complaint as it would have been if amended as requested.

As I view it, therefore, whether the court should have granted the motion and upon what terms, at that stage of the trial rested in its discretion, and had it denied the motion on that ground its decision would not have been called in question.

Now, the discretion of the court was not exercised, because of the erroneous conclusion that it was without power to grant it. Is this mistake of such a character as calls for a reversal of the judgment ? Clearly it is unless it appears beyond controversy that the result could not have been affected by such denial, for we cannot possibly know how the court would have decided the question had it passed upon the merits of the application.

The motion, not in terms but in effect, was one to conform the complaint to the facts proved. Its purpose was not to secure the admission of evidence which otherwise would have been excluded. Plaintiff’s testimony was all in. Thereafter he could only rebut that offered by the defendant. For that purpose no amendment was needed. Indeed, the fact appears that none of the evidence offered was excluded on the ground that it was not within the issues presented by the pleadings.

The evidence which plaintiffs’ counsel regarded as indicating fraud on the part of the officers of the lessor was introduced by the defendants. Plaintiffs’ counsel quickly attempted to so change this complaint as to enable their clients to reap the advantage, if any, which should accrue from such testimony. It seems to be clear that the motion made was in effect, and should be treated as, one to amend the complaint to conform to what the plaintiffs may have regarded as the facts proved.

• The denial of the motion, although upon untenable ground, should not bring aoout a reversal if it be certain that the same judgment would have followed.

And how would it have been possible for the proposed amendment to have occasioned the working out of a different result? Before reaching the question whether the reservation clause was inserted in the lease through mutual mistake, or mistake by one party and fraud by the other, the court had to determine whether the common agreement of all the parties was as alleged .in the complaint.

This question lay at the very foundation of the plaintiffs’ alleged cause of action. With that fact established they would be entitled to have the court find how it came that the lease stated differently. But without it there could be no favorable finding on that subject.

Now, the trial court found: First, that there never was such an agreement between the parties as the complaint alleged; and, second, that the lease truly expressed the common agreement of all the parties.

Necessarily then the court could not have found that the reservation clause was inserted through the mistake of one party and the fraud of the other.

And the right to have the court refuse to make such a finding measures all the advantage that could have accrued to the plaintiffs had the motion been granted.

It follows that no harm resulted from the mistake, and, therefore, it does not justify a reversal of the judgment.

The judgment should be affirmed, with costs.

Yan Brunt, P. J., and Follett, J., concurred.

Judgment affirmed, with costs.