text:
    SAMUEL T. WILBUR, Respondent, v. THE GOLD & STOCK TELEGRAPH CO., Appellant.

      Equity.—Specific performance.—Pleading.—Supplemental answer.

    In an action for specific performance of a contract,—e. g., to furnish certain telegraphic information,—where it appears that the defendant is unable to specifically perform, the usual practice is to withhold the relief prayed for.
    Where the alleged inability arises after the beginning of the action, the defendant should be allowed to plead the facts tending to show such inability, by supplemental answer.
    Accordingly, where by the contract sought to be enforced, the defendant agreed to furnish plaintiff with information concerning the daily transactions of a certain Board of Trade, and after this action was brought, said Board of Trade refused to allow reports to be taken by the agents of the Western Union Telegraph Co., from whom alone defendant was able to obtain such information, and said board thereafter furnished such information to the Western Union Telegraph Co., only for transmission to certain specified persons, viz., subscribers approved by the board aforesaid, of whom plaintiff was not one. Held, that defendant should be allowed to set up said facts by supplemental answer.
    Before Sedgwick, Oh. J., and Freedman, J.

      Decided June 1, 1885.
    Appeal by defendant from order denying its motion for leave to serve a supplemental answer.
    The complaint contained, among other averments, the following:
    “I. That at all times herein mentioned, the plaintiff was, and still is, a dealer in grain, provisions and produce, having his office in the city of Hew York, and having a large number of customers dealing with him in his said business.
    “II. That the defendant is a corporation, organized as plaintiff is informed and believes, under the laws of the state of Hew York, for the purpose of furnishing to such person or persons as may pay the regular price or sum asked by defendant therefor, the market quotations of grain, provisions and produce dealt in at the Produce Exchange, in the city of Hew York, and at the Board of Trade, in the city of Chicago, and elsewhere.
    “III. That the said quotations and information are furnished and supplied to the persons so paying therefor by means of a recording instrument or machine, commonly called a ‘ticker,’ placed in the office or store of the person so paying, which machine or instrument is connected by telegraphic or electrical wires with the main circuit of the defendant’s lines.
    “ IV. That in or about the month of April, 1883, the defendant placed in the office of the plaintiff, at 18 Broadway, Hew York city, two of said ‘tickers,’ so called, the plaintiff agreeing to pay therefor, at the end of each and every month, the regular charge or fee therefor for the use thereof, and for all the quotations and information regularly recorded thereon; the said machines and instruments to be and remain with the plaintiff so long as he should well and truly pay therefor ; and the said plaintiff thereupon paid unto the defendant the sum of $100 by way of deposit to cover any deficiency that might at any time exist in said payments. That thereafter the said ‘tickers ’ remained in and upon said premises, but the defendant, without default of any kind on the part of the plaintiff, by its agents or servants, now threaten and are about to enter into and upon the premises of the plaintiff, and by force and violence to disconnect said machines and instruments, and remove them from the said place, and likewise to disconnect the wires connecting the said machines or instruments with the regular circuits of information of the defendant, and deprive him of all and all manner of quotation or information so agreed to be furnished him, in violation of its agreement and of its obligation and duty imposed by law, and to the ruin of his business and his irreparable damage and injury.”
    The complaint demanded as relief judgment that so long as plaintiff complied with the conditions of the contract on his part, the defendant be enjoined from removing said instruments, dec.
    The defendants moved for leave to file a supplemental answer, which contained the following averments :
    “First. The defendant alleges that at the time of the making of the contracts mentioned in the complaint, and in the original answer of this defendant herein, and thereafter until April 30, 1881-, the Chicago Board of Trade permitted the agents of the Western Union Telegraph Company to attend its daily sessions and to collect and transmit reports of prices and of transactions on the said Board of Trade, and during said period, to wit, until the said 30th day of April, 1881-, the said Western Union Telegraph Company furnished said reports to defendant, which was thus, and thus only, enabled to furnish the same to plaintiff by means of the reporting instruments mentioned in the complaint and answer herein as aforesaid.

      “ Second. Defendant further alleges that on or about May 1, 1884, the reporters and agents of the Western Union Telegraph Company were, and ever since have been, excluded by said Chicago Board of Trade from its sessions and from the floor of the Exchange, and since said last mentioned date the reports of prices and transactions on the floor of said Exchange, and all other information as to matters connected with the business of said Chicago Board of Trade, have been collected and compiled by the agents of said Board of Trade exclusively. That said reports so collected and compiled have since said 30th day of April, 1884, been delivered by said Chicago Board of Trade to said Western Union Telegraph Company for transmission to such persons, and to such persons only, as have been designated by said Chicago Board of Trade ; and said Western Union Telegraph Company and this defendant have been expressly forbidden to deliver said reports to any persons not so designated. That no persons have been so designated as entitled to receive said reports except such as by special contract have become subscribers therefor to said Board of Trade upon a regular application duly approved by said Board of Trade, and made pursuant to the terms of a circular letter, a copy of which is hereto annexed, marked (A.’ ”
    There were other averments tending to show that the defendants were unable to comply specifically with theircontract.
    The judge denied the motion, on the ground that the right of the parties to the contract must be determined by the contract, and that the directions given by the Board of Trade cannot excuse the defendant from performing their agreement with the plaintiff.

      Dillon & Swayne, and Melville Eglestone, for appellant.
    The proposed answer is conclusive. It states that, whatever may have been true some months ago, the defendant has now no right whatever, and can obtain no right to the desired quotations ; that they are the exclusive property of the Chicago Board of Trade, which delivers them to the Western Union Telegraph Co., for the special purpose of transmission only to certain designated persons, and expressly forbids that company to disclose them to plaintiff ; that the defendant receives them from the Western Union Telegraph Co., if at all, for the same special purpose only, and under the same restrictions as those under which they are received by that company. (a) The statute prescribing the duty of defendant and limiting its control, is explicit. “Any person connected with any telegraph company in this state, either as clerk, operator, messenger, or in any other capacity, who shall willfully divulge the contents, or the nature of the contents, of any private communication entrusted to him for transmission or delivery. . . shall, on conviction before any court, be adjudged guilty of a misdemeanor, and shall suffer imprisonment in the county jail or workhouse, in the county where such conviction" shall be had, for a term of not more than three months, or shall pay a fine not to exceed five hundred dollars, in the discretion of the court ” (3 R. S. [Edm. 2d Ed. ] 722 ; see Penal Code, § 641). (b) The settled practice of courts of equity is opposed to the demand of plaintiff. “ When defendant enters into a contract, the execution of which depends upon the voluntary consent of a third person, and such consent is refused, as there are no legal means of compelling it to be so given, the performance becomes an impossibility, and will not be decreed” (Pomeroy Spec. Perf. § 295). In .the cases of Kelly v. G. & S. Tel. Co., and Todd v. Same (mentioned 17 Hun, 551), it was long ago held that the Exchanges had a right to restrict defendant’s use of the information obtained from them. The federal courts have taken the same view. Blodgett, Circuit J.: “As the Telegraph Company enjoyed the privilege only at the will and sufferance of the Board, there can be no doubt of the power of the Board to close its doors against the employees of the Telegraph Company whenever it sees fit to do so ; and it necessarily follows that when the Board excludes the Telegraph Company from the Exchange, the company must cease to send reports of prices to complainant ” (Metrop. Grain & S. Exchange v. Board of Trade, 15 Fed. Rep. 847; Marine, Grain and Stock Exchange v. W. U. Tel. Co., 22 Ib. 23).
    II. The defendant is excused from performance by the provisions of the very contracts themselves under the state of facts now presented. The language of the contracts is : “ The Gold and Stock Telegraph Company will furnish to its subscribers as correct. . . produce. . . quotations. . . as it can obtain by the employment of experienced reporters ; but in view of the difficulties inherent in the business, the company will not be pecuniarily responsible for the accuracy of such quotations and reports, nor for errors, delays or omissions in the service.”
    III. The defendant, under the statute, has a clear right to set up the facts. Generally, a defendant has a right to set up, by supplemental answer, matter of defense which has occurred or come to his knowledge subsequently to the putting in of the first answer (Code, § 544; Holyoke v. Adams, 59 N. Y. 233 ; Spears v. Mayor, &c., 72 Ib. 443 ; Lyon v. Isett, 11 Abb. Pr. N. S. 355 ; Hoyt v. Sheldon, 4 Abb. Pr. 59 ; Palmer v. Murray, 18 How. Pr. 545 ; Morrell v. Carelly, 16 Abb. Pr. 269 ; Stewart v. Isidor, 5 Abb. Pr. N. S. 68).

      Simpson & Werner and Richard S. Newcombe, for respondent.
    I. The proposed supplemental pleading fails to disclose any defense. It seeks to set up matters between the Board of Trade and the" Western Union Co. This same attempt was made in a suit brought by the Public Grain & Stock Exchange against the telegraph Co., m the circuit court of Cook county, Illinois, but judge Tuley delivering the opinion (Oct. 25, 1884), struck the supplemental answer from the files, and disallowed the same. A similar effort was made in the N. Y. court of common pleas in a cause exactly like the present one, and resulted in an opinion by the court. • Allen, J.: . . “ The rights of the parties must be determined by their contract. The directions by the Board of Trade of Chicago cannot excuse o the defendants from a performance of their agreement with the plaintiff” (Hammond v. Gold & Stock Tel. Co., N. Y. Daily Reg., March 19, 1885). Leave is never granted where the proposed answer fails to set up a good defense (Jagger v. Littlefield, 3 Week. Dig. 317; Morel v. Garelly, 16 Abb. Pr. 269 ; Goddard v. Benson, 15 Ib. 191).
   By the Court.—Sedgwick, Ch. J.

The present action is not for damages for a breach of the contract. It is, in substance, an action for specific performance of the contract. This is not matter of absolute right. Equity does not always compel specific performance. Circumstances may exist that will justify the court in using its discretion by denying an application for such a judgment. A leading inquiry always is, whether or not the plaintiff can obtain full satisfaction by an award of damages at law. Another, relates to the disposition of a case where the defendants are unable to specifically perform. The usual practice, at least, is not to give such relief. Where the inability arises after the beginning of the action, it must ■ be pleaded, if at all, by a supplementary answer. In a general sense, the defendant appeals to the' discretion of the court. As the canse of action is an appeal to discretion, the counter appeal by the other party is, in its nature, a defense, which, upon a hearing, may be maintained by the court. The proposed supplemental answer contains averments of facts which a court would be bound to hear before giving the judgment demanded by the plaintiff. It is not necessary now to say absolutely, that if the facts referred to are proved, the court would be bound to dismiss the complaint. It is enough to say that the defendant has a right to prove facts that tend to show that it would not be equitable to maintain the contract perpetually or that the defendant is unable to perform.

The order is reversed with $10 costs and disbursements to be taxed, and the motion below is granted, with $10 costs to abide event.

Freedman, J., concurred.


source: Caselaw Access Project

author: By the Court.—Truax, J.

license: Public Domain

text:
    SAMUEL CASSON, Respondent, v. AARON FIELD, et al., Appellants.

      .Factor, as to right to sell.—Requests and exceptions to charge, effect of omissions to malee.

    A factor, as to right to sell, has no right to sell for advances until the principal fails to pay after reasonable notice.
    Where there is a disputed question of fact, and an omission to request submission of it to the jury, the parties are considered as having left it to the decision of the court, and to have submitted to his decision; and on appeal, his decision must be assumed to be such as will support the verdict.
    An omission to take an exception to a charge as to a fact, is an admission, that the fact is as charged.
    This was an action of trover against brokers, founded on an alleged sale by them against instructions, and a demand and refusal; the defense was two-fold (1st) that the goods were sold by plaintiff’s order. This was disputed by the plaintiff, and there was no request to submit the disputed question of facts to the jury; (2d) that the goods were sold for the payment of a general balance due for advances. The court charged there was no general balance due, and this was not excepted to. The jury found for the plaintiff. Reid, that the judgment entered on the verdict should be affirmed.
    Before Sedgwick, Oh. J., Truax and O’Gorman, JJ.

      Decided June 1, 1885.
    Appeal by defendants from judgment entered on verdict of jury, and from an order denying motion for new trial on the minutes.
    Action of trover against brokers for an alleged sale-against instructions. The defense was (1st) that the goods were sold by plaintiff’s order, and (2d) that they were sold for a general balance due for advances.
    Further facts appear in the opinion.

      Edward S. Field, attorney, and A. Blumenstiel, of counsel for appellants.

      David Tim, attorney, and of counsel for respondent.
   By the Court.—Truax, J.

It is not necessary for us to determine in this case whether the defendants had or had not a general lien for advances to plaintiff on the particular goods that are the subject of controversy in this action. It is well settled that a factor must obey the instructions of his principal as to the sale of the goods consigned to him, although he has made advances, unless the principal, after reasonable notice, fail to pay such advances'(Hilton v. Vanderbilt, 82 N. Y. 591; Manfield v. Goodhue, 3 Ib. 62). The evidence shows that plaintiff consigned certain goods to defendants to be sold by them at a certain price, and that the defendants sold them under that price. It is true that one of the defendants, Field, testified that he sold the goods below the price limited, because the plaintiff told him to sell them at auction for what they would bring, but this evidence was contradicted by plaintiff, and the disputed question of fact was not submitted to the jury. ' By not requesting the court to submit this question to the jury, and by not excepting to the charge of the court that there was no general balance due from .plaintiff to defendants, the defendants admitted that there was no general balance due from plaintiff to defendants, and if there was no such balance due them, they could have no lien on the goods mentioned in the complaint. -

Therefore, it was their duty to deliver the goods to plaintiff on demand.

The judgment and order appealed from are affirmed, with costs.

O’Gorhan, J., concurred ; Sedgwick, Oh, J., agreed to affirm.


author: By the Court. —Truax, J.

text:
    WALTER M. HUNT v. THE MAYOR, &c., OF THE CITY OF NEW YORK.

      Municipal corporation, e. g. city of New Yorh—Negligence, when not imputable to—Constructive notice to—Latent defect, notice of not presumed. —The American Heating and Power Company.

    Negligence is not imputable to a municipal corporation, on account of those defects in its streets which do not arise from their original construction, or are not caused by it or its duly authorized agents, nor on account of an obstruction placed therein by a wrong-doer, without express or constructive notice thereof.
    To constitute constructive notice, the defect or obstruction must be so patent that it can be found out by the corporation by the use of reasonable care and diligence. The law does not presume notice to a municipal corporation, of a latent defect.
    The American Heating and Power Company is not the authorized agent of the city of New York.
    Upon these principles, held, that the city of New York was not liable for an injury resulting from an explosion caused by the ignition of gas which had accumulated and filled a man-hole in one of its streets, which was constructed and owned by the American Heating and Power Company, there being no evidence that it knew, or ought to have known that the street was, or was likely to get, out of repair.
    Before Sedgwick, Ch. J., Freedman and Truax, JJ.

      Decided June 1, 1885.
    Exception to a dismissal of the complaint ordered to be heard at general term.
    This action was brought to recover compensation for damages which the plaintiff alleges he sustained through the negligence of the defendant. The facts are these : As the plaintiff was passing along Broadway near Maiden Lane, there was an explosion in and under the surface of the street in said Broadway. The explosion was caused by the ignition of gas which had accumulated and filled a “ man-hole,” which was constructed and owned by The American Heating & Power Company, a company authorized to “lay pipes in the city of New York, with the consent of the city and under such reasonable regulations and conditions as it may prescribe” (ch. 317, Laws 1879). This consent was given by the city.
    On the trial, the court dismissed the complaint, and the plaintiff excepting, the court ordered the exception to be heard in the first instance at general term.

      E. H. Benn, attorney, and of counsel for plaintiff, on the questions considered in the opinion, argued:
    I. It is the duty of the city to have the streets at all times in a safe condition for travelers (Ehrgott v. Mayor, 96 N. Y. 271 ; Hume v. Mayor, 74 Ib. 264). The steam company could not have laid its pipes in the streets without permission of the city. That permission was given, and the city stipulated for a compensation or' profit therefor. The very fact that the city was to derive a profit from the work made the city hable, the same as if the work had been done by the city itself.
    II. Besides, by the act of 1879, the city was required to prescribe reasonable regulations and conditions under which the work was to be done. Yet, the city did nothing of the kind, and the work was improperly done. Ho regulations or conditions in relation to laying the pipes or doing the work were prescribed by the municipal authorities ; the conditions were simply that the company should furnish a map, give the city a bond to protect the city, and to replace the pavement, allow the city to change the positions of the pipes, furnish the city with steam at its (the city’s) own price, make an annual report, and pay the city three cents for each lineal foot of mains laid, and two per cent, of the net profits. That is not what the statute required, and by this neglect and omission of duty by the municipal authorities the company was allowed to lay the pipes as it pleased, without any restraint or restrictions in regard to the manner, or execution of the work, and the explosion was the consequence. The city is hable for that reason (Wendell v. Mayor, 4 Keyes, 261; Hume v. Mayor, &c., 74 N. Y. 274; Wilson v. City of Watertown, 3 Hun, 508 ; Deyoe v. Village of Saratoga Springs, 3 T. & C. 504 ; Hutson v. Mayor, 9 N. Y. 163).

      E. Henry Lacombe, counsel to the corporation, and John J. Townsend, Jr., of counsel for defendants, on the questions considered in the opinion, argued:
    I. No doubt the steam pipes could only be laid in the streets with the consent of the city authorities and “ under such reasonable regulations and conditions as they may prescribe.” Even if the common council did not exercise that legislative discretion in a proper manner, that the city, for such failure, would not be hable, is elementary (Griffin v. Mayor, 9 N. Y. 456).
    II. The laying of the steam pipes was made lawful by the legislature, so that even if the pipes developed into á nuisance, the city would not be hable until it had notice, actual or constructive, of the nuisance. Then again, the cause of this accident, even if strictly speaking, it can be classed as a “ defect in the highway,” was from its subterranean nature singularly “ latent,” and difficult to be anticipated ; and in such case a municipal corporation is not hable without actual or constructive notice (Hart v. City of Brooklyn, 36 Barb. 226 ; McKenna v. Mayor, 47 Super. Ct. 541; Masterson v. Mt. Vernon, 58 N. Y. 391). The plaintiff, however, contends that the city’s habihty is extended beyond the rule laid down above, by reason of the provision of chapter 317 of the laws of 1879. (The counsel here commented on and distinguished the cases of Wendell v. City of Troy, 4 Keyes, 261; Wilson v. City of Watertown, 3 Hun, 508.)
    But the city does not concede that the statute imposed upon it any duty to supervise the actual construction of the steam heating pipes, except so far as to see that the highway was properly cared for." And that this duty was not performed there is no pretense. A mere perusal of the statute fortifies this view of the limited extent of the duty imposed. The statute gives an absolute power to the company to lay the pipes upon obtaining the consent of the municipal authorities, and if it had been intended by the legislature to require the latter to supervise the engineering of the scheme—a novel duty—some such provision would have appeared in the act. That such a duty is novel, see Hume v. Mayor (47 N. Y. 639); McDermott v. City of Kingston (19 Hun, 198).
   By the Court. —Truax, J.

The defendant owes to the public the duty of keeping its streets in a safe condition for the use of travelers, and is liable in a civil action for special injury resulting to one using its streets in the usual manner, from neglect to perform this duty (Ehrgott v. Mayor, 96 N. Y. 264). But before the city can be held to be negligent, on account of a defect in its streets (not arising from their original construction, and not caused by the city, or by its duly authorized agents), or on account of an obstruction placed in its streets by a wrong-doer, either express notice of the existence óf the defect or obstruction that was the cause of the injury, must be brought home to the defendant, or such defect or obstruction must be so patent that the defendant could have found it out if he had used reasonable care and diligence (Mayor, &c. v. Sheffield, 3 Wall. 195 ; Griffin v. Mayor, 9 N. Y. 456; McGinity v. Mayor, 5 Duer, 674 ; Smith v. Mayor, 66 N. Y. 295). It therefore follows that the defendant can be held only for the damage sustained by the plaintiff through the neglect of the defendant, either in laying the pipes, or in keeping the street in proper repair after the pipes had been laid. The defendant was not negligent for the manner in which the pipes were laid, because they were not laid by the defendant or its authorized agents (Griffin v. Mayor, 9 N. Y. 461); nor was it negligent for not keeping its streets in repair, because there is no evidence that the defendant knew, or ought to have known, that the street was out of repair, or was likely to get out of repair (McKenna v. Mayor, 49 Super. Ct. 541; Masterton v. Mt. Vernon, 58 N. Y. 391). We cannot presume that the defendant had notice of a latent defect in the street, when the defect was not made by it or under its direction, for the law does not require the authorities of the city to be experts, skilled in mechanics and architecture, but requires of them only reasonable intelligence and ordinary care and prudence (Hart v. City of Brooklyn, 36 Barb. 226 ; Hume v. Mayor, 47 N. Y. 639 ; S. C., 74 N. Y. 264).

The plaintiff’s exception is overruled, and judgment is ordered for the defendants, with costs.

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


author: Per Curiam.

text:
    JOHN NEWMAN, Appellant, v. EDMUND C. MARSHALL, Respondent.

      Assault and battery, instigator present—justification, claim of right to possession. when not.—Tenant-at-will, notice to quit.—Submission to jury, right to.

    One who is present and instigates and encourages those who actually use physical violence is liable for assault and cattery.
    A tenant-at-will is entitled to at least reasonable notice to quit. A notice to leave forthwith is not sufficient, especially when accompanied with a notice to get his personal property together and remove it.
    Parties committing an assault and battery and expelling from possession by force, one asserting by re-entry his right to possession after his rightful prior possession had been by them wrongfully entered upon, cannot justify their action under a claim of right to possession.
    The plaintiff being in possession of premises, having been allowed by the defendant, under an agreement with him, to go into possession for the purpose of doing business there, and having therein considerable personal property, upon a demand being made by defendant (who claimed the right to immediate possession) to forthwith give up possession and get his personal property together and remove it, asserted his right to remain, and went to the front door for the purpose of giving a message to a boy to take to his lawyer, and then the defendant and those acting with him shut the door and barred him out, whereupon he went to a back door, broke it open and entered, and thereupon the defendant and those with him, or those with him, instigated and encouraged by him, he being present, assaulted the plaintiff and put him out by force; for which assault and battery the action was brought.

      Held, that the complaint was improperly dismissed, that as these facts did not incontrovertibly show that the plaintiff had voluntarily abandoned possession to the defendant, and as there was evidence to the effect that defendant pushed plaintiff, and also to the effect that he was present and instigated the assault and battery by others, the plaintiff was entitled to a verdict of the jury as to whether he had abandoned possession before he attempted to re-enter through the back door, and as to whether the defendant was guilty of assault and battery.
    Before Sedgwick, Oh. J. and O’Gorman, J.

      Decided June 1, 1885.
    Appeal by plaintiff from judgment for defendant, dismissing complaint, entered upon a direction at trial term.
    The action was for assault and battery. The facts sufficiently appear in the opinion.

      William J. Hardy, attorney, and of counsel for appellant, as affecting the questions considered in the opinion argued:
    I. Where several unite in an assault and battery, all are equally responsible for the entire damages ; one cannot excuse himself by showing the insignificance of his participation, as, compared with that of the others ; and the person injured can elect which particular one of the number he will sue to the exclusion of the others ; he may sue any or all (Cooley on Torts, 134 ; 2 Greenl. Ev. § 621; Bishop v. Ely, 9 Johns. 294 ; Hume v. Oldacre, 1 Stark. 351; Bell v. Morrison, 27 Miss. 68).
    II. It was assault and battery to lay hands upon the plaintiff with intent to eject, him from his tavern. He was at least tenant at will, and the defendant, lessee, could not repossess himself of the premises as against such a tenant, either by force or otherwise, until the expiration of at least thirty days’ notice to quit, under the statute (3 R. S. [7 ed.] p. 2201, P. II., C. I., T. IV., §7 ; Jackson ex d. Livingston v. Bryan, 1 Johns. 322 ; Larned v. Hudson, 60 N. Y. 104). But the 1st May, 1883, having passed without the duration of plaintiff’s occupancy of said premises after said date, being specified between the parties, the defendant became a tenant for one year to May 1, 1884 (2 R. S. [7 ed.] p. 2200, § 1; McAdam Landlord & Tenant, 32-36; Tuomey v. Dunn, 42 Super. Ct. 291; Washburn Real Prop. 512 ; Jackson ex dem. Livingston v. Bryan, supra). The entry by defendant with intent to deforce plaintiff, was trespass (Littlejohn v. Attrill, 94 N. Y. 619 ; Cooley on Torts, 316, and cases ; Six Carpenter’s Case, 8 Co. 290 ; S. C., 1 Smith’s L. C. 216 ; 2 Bl. Com. 212, 213). When plaintiff was locked out of his front door he did not lose his possession ; for his absence was temporary, and he left his goods and servants upon the premises, and his entry at the side door was rightful (Cooley on Torts, 322, 324, and cases ; Littlejohn v. Attrill, supra; 1 Phillips Ev. 201; Greenl. Ev. § 108). Whether he had once lost his possession or not, when the plaintiff had again promptly effected actual entrance into his premises, his presence there was lawful and of right, and his use of force to get in could not qualify his legal right to remain there (Hyatt v. Wood, 4 Johns. 150 ; Estes v. Kelsey, 8 Wend. 555 ; Filkins v. People, 69 N. Y. 101, 105 ; 1 Washburn Real Prop. 530, §§ 30, 537, 539 ; Jackson ex dem. Stansbury v. Farmer, 9 Wend. 201 ; Ives v. Ives, 13 Johns. 235 ; Wilde v. Cantillon, 1 Johns. Cas. 123 ; Wood v. Phillips, 43 N. Y. 157). There can be no forcible entry as against a mere trespasser, for where the rightful occupant asserts his rights promptly, the trespasser cannot acquire even naked possession (Cooley on Torts, 322, 324, cases cited, and authorities, supra). And, as a question of civil rights (as distinguished from the rights of the people), at issue in a civil court in a civil action, the plaintiff would have been fully justified in using force to defend his possession and his goods, and even to put the defendant and his party out of the place (Bliss v. Johnson, N. Y. 534 ; Cooley on Torts, 322, 324, cases and authorities, supra). And the plaintiff, when he had entered his side door, being in actual possession of premises to which he had the right of possession, the act of the defendant and his confederates in thrusting him out, was an assault and battery (Woods v. Phillips, 43 N. Y. 157).

      George W. Savage, attorney, and John D. Townsend, of counsel for respondent, as bearing on the questions considered in the opinion, argued:
    I. The plaintiff, upon the evidence, was a tenant at will, and, had he required it, would have been entitled to a month’s notice in writing before he could have been deprived of possession (Larned v. Hudson, 60 N. Y. 104; 3 R. S. 2201, § 7, Banks’ 7th ed).
    II. The plaintiff was not forcibly evicted. He left the premises of his own volition, after full knowledge that the defendant had sold them to another party, and had demanded possession.
    HI. Being thus out of possession the plaintiff had no right to use force in attempting to regain possession of the premises (Pollen v. Brewer, 7 C. B. [N. S] 371; Parsons v. Brown, 15 Barb. 590 ; Sampson v. Henry, 11 Pick. 387).
    IV. As matter of fact, the defendant himself neither assaulted the plaintiff nor aided or abetted any one else in doing so.
   Per Curiam.

The learned judge below, on all the testimony, dismissed the complaint. So far as this was done on the ground that there was no evidence that the defendant made either an assault or battery upon the plaintiff, two things are to be said. First, there was some testimony that the defendant pushed the plaintiff. Second, although the greater part of the violence done to the plaintiff, as he testified, was done by others than the defendant, there was testimony enough to take the verdict of the jury as to whether the defendant, being present, did not instigate and encourage those who actually used physical violence upon the plaintiff. If he did, in legal effect he was guilty of assault and battery.

The important question is whether the persons who used the force upon the plaintiff, were justified in that, upon the ground that there was no more force used than was necessary to prevent the plaintiff entering into possession of premises, of which the defendant or his vendee were rightfully in possession, while the plaintiff had no right of possession. The premises referred to were a barroom, which had fixtures belonging to plaintiff, and another room opening into the bar-room. There was there other property belonging to the plaintiff. The defendant was a lessee of the premises. By an agreement it clearly appeared that the defendant had allowed the plaintiff to go into possession of the premises for the purpose of doing business there. The plaintiff was in possession in his own right, and not as servant or agent of the defendant. On a day in February, the defendant, without any former notice to the plaintiff to remove from the premises, entered them in company with several others and told the plaintiff that he must leave at once, he the defendant having sold the place to one of the persons. The plaintiff asserted that the place was his, and he had a right to remain. He in no way yielded or acquiesced in the demand made by the defendant, unless he did so by the following conduct on his part:—For the purpose of giving a message to a boy, to be taken to his lawyer, he went to the front door and stood near it for a moment, when those on the inside shut the door and locked it. These facts do not incontrovertibly show that the plaintiff voluntarily abandoned possession to the defendant. There are some strong indications to the contrary. At least the verdict of the jury have been taken on this point. If the plaintiff did not voluntarily abandon or surrender the possession of the premises, the defendant or his vendee did not go into possession.

On the facts, that in this case show the rights of the opposing parties, it would seem that the plaintiff’s right to possession had not been ended by the notice to leave at once, but could be ended only upon giving a reasonable time within which to remove. If other facts were known, it might be possible to say whether the law had fixed the time of notice. It is only necessary now to say that notice to leave forthwith was not enough, the plaintiff being in by consent of defendant, and not therefore, a trespasser or anything of that nature.

On the notice that was given, as it was accompanied by a notice to the plaintiff to get his property together, he would be rightfully in possession until a time proper for such a transaction should pass. But it' seem clear from any point of view that he had not left the possession.

On the front door being locked, he went to a back door to the rooms, broke it open and entered. Forthwith, the parties inside attacked him, used the violence that has been referred to, and forced him outside of the door, and the vendee of the defendant has remained since then in occupation. As it has been determined that the plaintiff had not gone out of possession and the defendant or his vendee had not entered into it, or that it does not appear so uncontrovertibly, the defendant’s violence, if he were guilty of it, was used to put the plaintiff out of possession by force, and this was illegal, and the force was not used to prevent the plaintiff entering forcibly upon the defendant’s possession.

There were facts that entitled the plaintiff at least to a verdict of the jury as to whether he had left or abandoned possession, before he attempted to re-enter through the back door, and as to whether the defendant was guilty of assault and battery.

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


text:
    BERTHA WUESTHOFF, et al., by Guardian ad litem, and EMMA WUESTHOFF, Appellants, v. GERMANIA LIFE INSURANCE COMPANY, Respondent.

      Life insurance—notice and proof of death by or on behalf of those entitled to receive payment.—Estoppel in pais.—One who tabees a benefit or advantage of an act of another is estopped against questioning consequences. —Infancy.

    Under an insurance policy upon the life of one Frederick Wuesthoff, payable on the death of his wife Amalia, before him, to “ her children ” (the plaintiffs herein), or to their guardian if under age, payment to be made in sixty days after due notice and proof of the death of said Frederick, Eliza Fredericka, the second wife of said Frederick, served on defendant a notice and proof of death, signing them “ as guardian of the children of the deceased Amalia,” and claiming the ownership of the policy as such guardian, and thereupon defendant paid to her the amount of the policy. No other notice and proof of death was served.

      Held, in this action to recover the amount of the policy:
    (1) That if it was claimed by plaintiffs that the notice given was not given on behalf of them, then the notice intended by the policy had not been given, for the defendant was entitled to notice given by, or on behalf of, those entitled to receive payment; and it not having been given on behalf of plaintiffs, they could not ratify.
    (2) That if the plaintiffs take advantage of the notice, thus affirming the exercise by Eliza Fredericka of authority over the policy as owner, the consequence, to wit; its payment to her, must also be affirmed.
    (3) That the.complaint was therefore properly dismissed.
    Before.Sedgwick, Oh. J., Teuax and O’Gorman, JJ.

      Decided June 1, 1885.
    Appeal by plaintiffs from judgment dismissing complaint entered upon findings and conclusions by a judge trying, by consent, the issues without a jury.
    The plaintiffs were the children of Frederick Wuesthoff and his wife Amalia. The action was upon a policy of insurance upon the life of the said Frederick Wuesthoff, in the sum of $5,000. It provided that “in case of the death of the said Amalia, before the decease of the said Frederick Wuesthoff, the amount of the said insurance shall be payable, after her death, to her children, for their use, or to their guardian if under age, payment to be made in sixty days after due notice and proof of the death of the said Frederick as aforesaid.” The wife Amalia, died before her husband Frederick, died. At the time of his death, he was a resident of the state of New Jersey. He left a will, afterwards duly proved, by which he made his second wife, Eliza Fredericka Wuesthoff, the guardian of the persons and of the property of the persons who are now the plaintiffs. The statutes of New Jersey enact that “every guardian appointed by last will and testament, which shall be legally proved and recorded, shall, before he exercises any authority over the minor or his estate, appear before the orphans’ court and declare his acceptance of the guardianship, which shall be recorded, and shall give bond, with such sureties and in such sum as the said court may approve of and order, for the faithful execution of his office, unless it is otherwise directed by the testator’s will.” The will contained no direction on the subject. Eliza, the guardian named in the will, did not declare the acceptance of the guardianship or give bond under the statute. After the proof of the will, she served upon the defendant notice and proof of death of said Frederick, signing them as “guardian of the children of the deceased.” In the notice, &c., was the question: “By what right do you claim the ownership of the policy ?” Her answer was as written, ‘c as guardian of the children of the deceased.” The defendants thereupon paid to her the amount of the policy, she then surrendering to them the policy itself, of which she had possession. No other notice and proof of death or demand for payment was given or made to the defendants before action brought, and such fact was set up as a defense in the answer. The plaintiffs claimed that the payment to Eliza, as guardian, was not a payment according to the terms of the policy, for the reason that she had not complied with the statute that has been cited.
    The judge below dismissed the complaint.

      Beaman, Mayer & Walrath, attorneys, Charles B. Mayer and Frederick B. Walrath, of counsel for appellants, argued:
    I. (On the point on which the general term decided.) Due notice and proof of death, as required by the policy, was given to the defendant. There is no requirement in the policy that notice of death shall be given by any particular person. The essential thing is that the insurer shall receive due notice of the death, and it can in nowise be essential by whom that notice is given, or how its information is obtained. The notice may be given by an entire stranger. And when the information has been seasonably communicated, the requirement of the policy has been fulfilled, to wit: “Due notice. . . . of death has been given to the company” (May on Insurance, §§ 465, 466, 512 ; Guardian Life Assu. & Trust Co., 9 Weekly Notes of Cases, 425 ; Eclipse Insurance Co. v. Schoener, 2 Cin. Supr. Ct. 414 ; Taylor v. Selna Life Ins. Co., 13 Gray, 434; Day v. Mutual Ben. Life Ins. Co., 1 McArthur, 600 ; Hincken v. Mutual Ben. Life Ins. Co., 6 Sand. 24 ; Northwestern Ins. Co. v. Atkins, 3 Bush, 333). If the death occur in the presence of the board of directors, or of an officer of the company competent to receive proof, or if the company of its own motion obtain the information, that fact alone operates as due notice to the company (Kennedy v. Home Ins. Co., 9 Ins. L. J. 359). The law is reasonable, and does not require that to be done which is unnecessary. Eliza F. Wuesthoff, being the widow of the deceased, and the stepmother of the beneficiaries, was a proper party to give notice of such death, under any and all circumstances. If it could by any possibility be construed as an obligation on the part of the beneficiaries to give the notice,- then it was proper to communicate the information through an agent. Such agent was their stepmother, whose act, in giving notice, they have ratified (Sims v. State Ins. Co., 47 Mo. 60). The case of Bliss v. Cottle (32 Barb. 322), with others cited by defendant’s counsel, was an action in tort for conversion, and refers to demand, -not notice. The plaintiffs were not required to make a demand in this case, hence do not ratify any demand of their stepmother—if she made such. And even in the extreme cases where, by the terms of the policy, personal notice by the insured was required to be given, the acceptance of the notice and proofs of loss from another, without objection, has been held to he a waiver of the right to require personal notice from the insured (Reilly v. Guardian Hut. L. Ins. Co., 60 N. Y. 172 ; Sims v. State Ins. Co., 47 Mo. 60 ; Farmers’ Hut. Ins. Co. v. Graybill, 74 Pa. St. 17 ; Kernochan v. Bowery F. Ins. Co., 17 N. Y. 433; Pratt v. N. Y. Cent. Ins. Co., 55 Ib. 506 ; Bodle v. Chenango Co. Ins. Co., 2 Ib. 58). The payment of the amount of the policy (notwithstanding it was made to the wrong person) was a waiver of the right to raise any objection to the manner of giving the notice and proof of death. It was held, that the sufficiency of preliminary proof was admitted by the mere act of bringing the money due upon the policy into court (Johnson v. Columbia Ins. Co., 7 John. 315).
    II. (On the point on which the special term decided.) This suit was properly brought by the plaintiffs, they, as infants, being represented by their guardian ad litem (Segelken v. Meyer, 94 N. Y. 473). The appointment of a general guardian was not a condition precedent to the cause of action arising in favor of the plaintiffs. The contract, as evidenced by the policy, was to pay them, and the addition of the words “their guardian if under age,” did not make it obligatory upon them to have a guardian as a condition precedent to recovery. These words did not modify the contract, but were simply surplusage. The policy was for their benefit, and the guardian is their representative and not a principal in the contract. The infants should sue as beneficiaries by their nest friend, or guardian ad litem, and the judgment, in the event of recovery, will be entered in their favor (Higgins v. Hannibal & St. Jo. R. R. Co., 36 Mo. 418 ; Balto. & Ohio R. R. Co. v. Fitzpatrick, 36 Md. 619). Under a policy of fife insurance, payable “ to their children, for their use, or to their guardian if under age,” which is the same language as that contained in the policies in this case, it was held notwithstanding the objection that the cause of action was in the general guardian, that the children were the real parties in interest, and that the suit was properly brought in their names by their guardian ad litem (Price v. Phoenix M. L. Ins. Co., 17 Minn. 500). The interest in- the policy vested in the infants immediately upon the death of their father. So held, under a policy of the N. Y. Life Ins. Co. identical in form with the policy in evidence (Clemmitt v. N. Y. Life Ins. Co., 76 Va. 360). And it is apparent that in neither of these cases had a general guardian been appointed. The same doctrine was held in cases where obligations to pay ran to other representative parties, as, for example, an agreement “to pay to the treasurer of the commissioners ” was held to be a contract to pay the commissioners which must be declared upon by them and not the treasurer (Piggott v. Thompson, 3 Bos. & P. 149). So also on a contract to pay A. B., agent of the proprietors, etc. (Gilmore v. Pope, 5 Mass. 491). To the same effect (Taunton Co. v. Whiting (10 Mass. 327). So also on an agreement to pay to directors, their successors or assigns (Bayley v. Onondaga Ins. Co., 6 Hill, 477, and cases cited). So also on a “ policy for loss, if any, payable to (the broker) only ” (Lane v. Columbus Ins. Co., 2 Code R. 65). If the contract was not with the guardian as beneficiary, then there was no necessity for the appointment of a guardian in order to give the real beneficiaries a cause of action. The only purpose then of the appointment of a guardian, is that he may receive property belonging to the infant, and take the custody and management thereof. If there be no property to receive into his custody, there is no occasion for the appointment of a guardian. If an infant simply has a claim which is disputed, when that claim is perfected by a judgment, and about to be paid, it will be in sufficient season to procure the appointment of a general guardian to receive the money into his custody and management. And rather than that the action by the infant should fail, the courts could appoint a general guardian during the pendency of the action. The guardian ad litem may become such by filing security (Code, % 474 ; Rule, 51).

      Salomon & Dulon, attorneys, and Edward Salomon, of counsel for respondent, argued:
    I. (On the point on which the general term decided.) The complaint was properly dismissed, because no notice and proof of death were ever given to the defendant by the plaintiffs, or in their behalf, except those of Eliza F. Wuesthoff, as their guardian, whose action as such they seek to repudiate (Paley Agency, by Lloyd, 171, 172 [343 to 346] ; Right ex dem. Fisher v. Cuthell, 5 East, 49 ; Cole v. Ball, 1 Camp. 478 ; Coore v. Calaway, 1 Esp. 115 ; Freeman v. Boynton, 7 Mass. 483 ; Bank of Utica v. Smith, 18 Johns. 230). The rule of law that “ omnis ratihabitio retro tráhitur et mandato priori cequiparatur,n seems only applicable to cases where the conduct of the parties on whom it is to operate cannot, in the meantime, depend upon whether there be a subsequent ratification (Bliss v. Cottle, 32 Barb. 322, and cases there cited; Story Agency, §§ 244, 245). In the case at bar the object and effect of the notice and proof of death under the policy is to fix the time of payment, and to subject the company to damages by way of interest, if payment is not made accordingly. Service of such notice and proof comes clearly within the rule of the above authorities. If Mrs. Wuesthoff was not the plaintiffs’ guardian, her notice and claim was unauthorized, and cannot inure to the plaintiffs’ benefit and the defendant’s injury.
    The notice and proof of death were given by Mrs. Wuesthoff as guardian for the plaintiffs, and she therein expressly states: “that the undersigned is the legal owner of said policy, and has a good and valid interest to the amount assured in the Ufe of said deceased.” It was acted upon in good faith by the defendant, who paid the money accordingly to her as guardian, and has spent its force. It was made and served by and for her benefit as guardian, and has served its purpose. It is functus officio. It would be contrary to all justice and weU-known rules of law to allow the plaintiffs to repudiate her act as guardian, and at the same time base upon it a right of action. Such a thing would be a novelty in the jurisprudence of this country. The plaintiffs cannot be permitted to adopt this notice in part and repudiate it in part; they cannot in the same breath adopt and repudiate the guardianship of Mrs. Wuesthoff.
    None of the authorities cited by plaintiffs’ counsel in the court below support the proposition that no notice from the plaintiffs to the defendant was necessary, or that the plaintiffs, while repudiating Mrs. Wuesthoff’s authority as guardian, can claim under her notice a right of action, while the defendant has once acted upon that notice in good faith in paying the policy to her. The cases cited are cases of waiver not applicable here. But amongst the numerous authorities there cited against this point, the following strongly support the defendant’s position (May Insurance §§ 463, 465 ; Reilly v. Guardian Mutual Ins. Co., 60 N. Y. 172 ; Kernochan v. N. Y. Bowery Fire Ins. Co., 17 N. Y. 433). In the case at bar nothing has been done by the defendant to warrant the court to hold that they have waived “due notice.”
    II. (On the point on which the special term decided.) The complaint was properly dismissed, because, except Mrs. Wuesthoff, no general guardian of the plaintiffs, or any guardian authorized to receive payment of the policy, has ever existed, (a) The agreement of the defendant in its policy is, in case of death of Amalia Wuesthoff before that of her husband, to pay the amount of the insurance “to her children for their use, or to their guardian if under age.” Until the existence of such a guardian, therefore, authorized to receive the money, there can be ' no default in the defendant’s obligation. Assuming that the amount had become payable, for instance, that the notice and proof of death had been waived by the company in a given case, yet, so long as there is no guardian in existence authorized to receive payment, and until such guardian had made a demand, the company could not be held to be in default (Code Civ. Proc. §§ 2822, 2823, 2825, 2826, 282Y, 2838, 2839, 2840). (6) Price v. Phoenix Mut. Life Ins. Co. (17 Minn. 497), cited by plaintiffs5 counsel in the court below, is to the effect that where a right of action exists in the general guardian, i. e., where a general guardian is in existence, and a company in default in not paying him, the action may be brought by the infant as the real party in interest, appearing by guardian ad litem. The same rule exists in this state (Segelken v. Meyer, 94 N. Y. 473). But it is nowhere held that where no general guardian is or has been in existence, to whom payment could be made, an action could be maintained by the infant. Williams v. Storrs (6 Johns. Ch. 353), and Wangler v. Swift (90 N. Y. 38), are direct authorities in support of the position that the existence of a general guardian, and notice thereof to the defendant, was a condition precedent to the defendant’s liability, and clearly sustain the judgment of dismissal, (c) This point of the non-existence of a general guardian for the infant plaintiffs, affects equally the adult plaintiff ; because, 1st, The action is a joint action ; 2d, The promise or covenant in the policy is to the adult and the guardian of the infant children jointly (1 Bliss Code, 220, 234 ; Pearce v. Hitchcock, 2 N. Y. 388 ; Tinslar v. Malkin, 12 Week. Dig. 530 ; Jones v. Belch, 3 Bosw. 63 ; Code, §§ 446, 448).
    Counsel on both sides, and also Chamberlain, Carter & Hornblowér, of counsel for the New York Life Insurance Company, by leave of the court, argued at general term, as to the effect of the will of Fredericka Wuesthoff, deceased, of the laws of New Jersey, and of the non-compliance of Eliza Fredericka therewith.

        Guardian of infants, contract to pay to—existence of a general guardian necessary to maintain action on behalf of inf ant plaintiffs.—Joint promise to infant and adult plaintiffs—action on cannot be maintained where there is no general guardian for the infant plaintiff.

      At special term, the complaint was dismissed, on the ground that there was no general guardian in existence who was entitled, to receive payments for the infant plaintiffs, Ingraham, J., writing as follows :—
      “The first question to determine in disposing of this action is, what contract did the defendant make ? what did it agree to do ?
      “By a policy of insurance, the defendant, in consideration of $164.25 to it in hand paid hy Amalia Wuesthoff, wife of Frederick Wuesthoff, and of further annual premiums to be paid, assured the life of Frederick Wuesthoff, for the sole use of the said Amalia Wuesthoff, in the amount of $5,000, and agreed with said Amalia Wuesthoff, to pay the said sum to Amalia Wuesthoff within sixty days after due notice and proof of death, 1 and in case of the death of the said Amalia Wuesthoff, before the decease of said Frederick Wuesthoff, the amount of the said insurance shall he payable after her death to her children for their use, or to their guardian if under age.’ Amalia Wuesthoff having died before Frederick, the amount of the insurance on his death was payable to her children. The children being minors at the time of the death of the insured, to whom, under the policy, was the company bound to pay ? Not the children, for they were incapable of receiving the money or releasing the company from its obligations, and in express terms the policy provided that in such a case the payment was to be *1 to their guardian. ’ In Price v. Phoenix Insurance Co. (17 Minn. 498), cited by plaintiff, the court says that the words ‘ payable to the guardian ’ give the defendant the privilege, and make it its duty, to pay the sum assured to such guardian. A payment, therefore, under this policy, to any one but their guardian would not have satisfied the obligation of the policy, and discharged the defendant on the policy. It appeared on the trial, that Frederick Wuesthoff died in 1877, leaving a last will, whereby he appointed Eliza F. Wuesthoff, guardian of bis children. The will was duly admitted to probate as required by the statute of New Jersey, where Frederick and his children resided. And under the statute of New Jersey such appointment was valid, and constituted the said Eliza F. Wuesthoff the guardian of the children, and such guardian was authorized by the statute to take into her hands, "for the use of such child or children, the goods, chattels and personal estate of such children (Revised Statutes of New Jersey, § 1, p. 464). A subsequent section of the statute (§ 48, p. 762), provides, however, that every guardian appointed

        by last will and testament, shall, before he exercises any authority over the minor or his estate, appear before the orphans’ court and declare his acceptance of the guardianship, which shall be recorded, and give bonds, etc., unless it is otherwise directed by the testator’s will. This was not done, and it is claimed by plaintiffs that in consequence of such omission, the defendant was not authorized to pay the amount of the policy to the person appointed guardian by the will of the deceased.
      “ But if defendant was not authorized to pay to such guardian, to whom was it authorized or required to pay ? The agreement was to pay to the children’s guardian; and a guardian was appointed in the manner . required by law, but according to plaintiffs’ theory was not qualified to receive the infants’ estate. No statute of New Jersey was proved which authorized the defendant to apply for the appointment of a guardian of the children, and I know of no rule of law that requires it to provide a person qualified to receive the money, as well as to pay it to such persons when qualified to receive it, and until such guardian had been appointed and qualified, I do not see how the defendant can be said to be in default. If there had been a guardian duly appointed and authorized to receive the fund, and the company had refused to pay, it is now settled in this state that the infants could sue by their guardian ad litem (Segelken ®. Meyer, 9 I 473); but that does not dispense with the necessity of there being a person in existence to whom the obligor would be by the terms of the obligation authorized to pay before it could be said to be in default. In Wangler v. Swift (90 W. Y. 88), it was held that where a thing to be done lies more properly within the cognizance of the plaintiff than of the defendant, notice that such thing had been done ought to be given to the defendant, and such notice was a condition precedent to the defendant’s liability. In that case, the person to whom the payment was to have been made was determined, but the amount to be paid was in doubt; in this case the amount is fixed, but the person to whom it is to be paid is uncertain, and until such person is appointed, notice thereof given to the defendant; and a demand made on it, there could be no breach, and consequently, no right of action.
      “The obligation sued on is joint. The action is at law to recover the amount of the policy, and I think, for the reasons above given, that no cause of action has been shown against the defendant, and the complaint must be dismissed, with costs.”

   Per Curiam.

The learned counsel for the appellant claims that by virtue of the statute of New Jersey that has been cited, Eliza F. Wuesthoff had no power to exercise any authority over the estate of the minors. On the assumptions made in this action on behalf of the minors, they had an interest in the policy, and the policy was part of their estate. Eliza F. Wuesthoff exercised authority over the policy, claiming to be the owner of it, and giving ' in the course of making that claim, the only notice and proof of death that have been given to the defendants. Under the terms of the policy, the plaintiff, to recover, was bound to prove that there had been made the notice and proof of death intended by the policy to be a condition precedent to the obligation of the company to pay.

The plaintiffs take the position that the proof and notice of death that were given, inure to their benefit in this action. Without this, there would be no proof of the performance of the condition precedent referred to. If, however, they take the advantage of the notice, they must take it as it was in fact, by affirming the relations in which it was given, viz.: as a notice given by Eliza, as guardian under the will, exercising authority over the minors’ estate. When this exercise of authority over the policy as owner is affirmed, the consequence in its payment must also be affirmed (The Farmers Loan & Trust Co. v. Walworth, 1 N. Y. 433, and cases cited). The principle is like that that prevents a partial ratification of an agent’s acts (Story Agency, § 250).

If the notice given was not given in behalf of the plaintiffs, then, in favor of the defendants, who were entitled to notice given by or on behalf of those who were entitled to receive payment of the policy, the notice intended by the policy has not been given, for the plaintiffs cannot ratify a notice not given in their behalf (Hamlin v. Sears, 82 N. Y. 331 ; Story Agency, §§ 251 a, 246, 241).

Judgment affirmed, with costs.


author: “ Freedman, J. Per Curiam.

text:
    PETER BORN, Appellant, v. HENRY SCHRENKEISEN, et al., Respondents.

      Vacating judgment and allowing answer to be amended to present new issues—power of court—proper exercise of discretion—terms.

    The complaint alleged the making in writing by defendants of two certain agreements, whereby they promised to pay certain royalties, to amount to not less than $600 per year on chairs to be manufactured under a patent, and prayed for an account. The answer was in effect a general denial. On the trial, plaintiff put in evidence said agreements, and the defendants offered evidence to show that the writings did not express the true agreement, and to show that the true agreement was that if they did not manufacture at least 600 chairs a year, the promise to pay royalties should be null and void, which was excluded. The case then turned on the construction to be given to the instruments upon their face.. The court held at special term that the proper construction was that defendants were bound at all events, to pay $600; and that the agreement to pay royalties was to be null and void only at plaintiff’s option. The decision was affirmed at general term. Thereupon the defendants moved, among other things, to vacate the judgment, and for leave to amend their answer so as to present new issues. The moving papers detailed the transactions between the parties as defendants understood them, which substantiated their claim as to the agreement, and also showed that the defendant who wrote the modification (and that there was some modification agreed on is beyond controversy), of the original agreement which it was held bound the defendants to pay $600, at all events, was a foreigner, and not thoroughly master of the idioms of the English language; and also showed that plaintiff had acquiesced in the abandonment of the enterprise for six years; that defendants had forgotten the particulars of the transaction, and could find no papers relating tó it except a rough copy of the modification; that their attorneys, from the scanty information they could give, believed that at the trial the real arrangement would have to be shown by parol; that the production by plaintiff at the trial of the writings was a surprise to them and their attorneys, and there was then no time to study and ascertain their precise bearing on the case, nor their relation to each other; and that even then defendants’ attorney believed that parol testimony could be given to explain the papers, but that when the attempt to give it was made, it was excluded.

      Held, on an appeal from an order granting the motion,
    (1) That the court had power to vacate the judgment and permit an amendment of the answer, the exercise of which power was in its discretion.

      (2) That in view of the matters stated in the moving papers, and considering that in all probability the parties did not in fact intend the contract to be as the court, upon unexplained proof found it to be, whereby the real merits were not tried, and that possibly the judgment, unless vacated, might be relied on by the plaintiff as a bar to an action for reformation, and as a conclusive adjudication as to the true construction of the contract in all actions that might be brought from year to year during the life o.f the patent,—the discretion of the court below was properly exercised in vacating the judgment, and permitting an amendment of the answer.
    (3) That the terms imposed, viz: the payment of the costs of the action, including the allowance, and of $10 costs of motion, and, it appearing that defendants had brought an action for reformation of the contract, in which a demurrer had been interposed, that such action be discontinued, and the costs thereof (to be taxed as if the demurrer had been sustained), be paid,—were proper, with the modification that the amendment should be restricted to setting up only the defense relating to the right of defendants to have the contract that was written reformed, so as to express the actual intention of the parties as to what it should contain, so as to prevent a re-trial of the old issues; and that, as thus modified, the order should be affirmed.
    Before Sedgwick, Oh. J., and Tritax, J.

      Decided June 1, 1885.
    Appeal by plaintiff from order granting defendants’ motion that the judgment be opened and defendants allowed to amend their answer and have a new trial on the issues so to be formed.
    The motion was made at special term, where the following opinion was delivered, March 11, 1885, the action therein referred to as the first entitled action, being the present action ; and that referred as the second action, being one brought by the defendants here, against the plaintiff for reformation of the contracts in question :—
   “ Freedman, J.

Upon affidavits and all the papers and proceedings in the first entitled action, and the summons and complaint and certain affidavits entitled in the second action, and upon a case settled and printed in the first entitled action, Henry and Martin Schrenkeisen now move at special term : 1. That the judgment in the first entitled action, though affirmed by the general term, be vacated and set aside, and that the case be referred back to the special term for re-trial; 2. That all proceedings on the part of Peter Bom in the first entitled action be stayed until after the trial of the second action; and, 3„ That they have such other and further relief as may be just and equitable.

“ At the same time, Peter Born, besides opposing the motions by counter-affidavits, demurs to the complaint in the second action upon the ground that it appears upon the face of the.complaint, 1. That there is another action pending between the same parties for the same cause; and, 2. That the complaint does not state facts sufficient to constitute a cause of action.

“ The most material facts, briefly stated, are as follows : In 1816, Peter Born obtained a patent for an improvement in folding chairs, and thereafter Henry and Martin Schrenkeisen agreed with him to take an assignment of his patent, to try to introduce the chair, to pay him a royalty of 75 cents on each chair made and sold, to give him a license to make and sell the chair at his own store in the city of New York, and to refrain on their part from selling in the city of New York or the city of Brooklyn so long as he made use of the license. This agreement was perfectly expressed in the assignment. The license, with two papers, were carefully prepared under the direction of Henry and Martin Schrenkeisen. When, however, the parties came together to execute the papers, Born wanted something different, namely a royalty on 600 chairs a year, irrespective of the number actually manufactured and sold, in addition to the $1,200 agreed upon for the assignment of the patent. According to the claim of Martin and Henry Schrenkeisen, it was then said in their behalf, that, if they hi the course of their extensive business as manufacturers of furniture could not sell 600 of the chairs in a year, they preferred to sell none at all, and that consequently they would agree to the proposed modification, if Born would agree that if they should not be able to sell that number a year, the whole arrangement between them should be null and void. These were not the precise words, but the substance of what was said, and Henry and Martin Schrenkeisen claim, though Born denies it, that the latter agreed to that. It is beyond controversy, however, that some modification was then and there agreed upon, and that, whatever it was, Martin Schrenkeisen undertook to make a memorandum of it, and that he did so on the spot, and without legal advice. The modification should have been inserted as a proviso in the assignment, but Martin Schrenkeisen, who is a German, and not thorougly master of the idioms of the English language, put it upon the back of Born’s license and in the following words, viz.: 1 We agree to number the chairs in rotation, pay royalty every month if desired, and show our sales books for the number sold. We further agree to pay royalty on not less than 600 chairs a year, and should we fail in this the agreement shall be null and void. Signed by M. & H. Schrenkeisen, by M. Schrenkeisen.’

“After this, as further claimed by the Schrenkeisens, a considerable sum of money was spent by them in the effort to successfully introduce the chair, but the chair did not work well in use,- and would not sell. They could only sell 209 chairs, and they paid to Born for royalties for the same $88.50 in February, 18!% and $86.25 on January 8, 18J8. Born was then told that that was the end of the matter ; that the invention was a failure, and that it was useless to proceed further. Born acquiesced, from that time until the year 1884 he made no further claim for royalties.

“The action first above entitled, was commenced in May, 1884. It was commenced to compel H. & M. Schrenkeisen to render an account to Born of the number of chairs manufactured and sold and to obtain a judgment for the amount due. The answer of H. & M. Schrenkeisen consisted of a general denial of the agreement, as set forth in the complaint, and a plea of failure of consideration. Upon the trial, all parol testimony which they sought to give to show the real character of the arrangement as claimed by them, was excluded, and it was held that the three writings, viz.: The assignment, the license and the memorandum on the back of the license, together constituted the contract between the parties, and that the contract, as thus appearing, was so clear that no parol evidence could be admitted to vary or modify it. It was further held that the words ‘null and void5 in the memorandum, should be construed to mean ‘ voidable at the option of Born/ and under this construction the trial finally resulted in a judgment in favor of Born for $4,401.92. From that judgment H. & M. Schrenkeisen appealed to the general term, where the judgment was affirmed. Thereupon they brought the second action above referred to, for the purpose of obtaining a reformation of the contract so that it should express the true intent and meaning of the parties, which, as claimed by them, were as above stated. To the complaint in this action, Born demurred upon the grounds stated.

“ Upon an examination of that complaint, which contains a great deal more than I have so far stated, I arrived at the conclusion that, upon its face, it does set forth a sufficient cause of action for a reformation of the contract, so far as the objections specifically urged against it are concerned, and' that the objection of the pendency of another action for the same cause, is not tenable because the causes of actions are not the same. If, therefore, I were to pass upon the sufficiency of the demurrer alone, H. & M. Schrenkeisen should have judgment upon the demurrer, with leave to Born to answer.

“But the action, to the complaint of which the said demurrer was interposed, is itself only one of several measures adopted by H. & M. Schrenkeisen to obtain the same end, namely, relief against the alleged unjust judgment in the first entitled action, and this makes it necessary that the relations between the two actions should be still further and more accurately determined. When that is attempted, it appears at once that, although the complaint in the second action is not demurrable upon either of the grounds specifically assigned, H. & M. Schrenkeisen may in the end be defeated in the action brought by them by proof that the contract sought to be reformed was the subject of a former adjudication, by which a certain construction was conclusively established. In other words, the former adjudication as to what the contract was, standing unreversed and unvacated, may be invoked as a bar to a reformation.

“ Under these circumstances, it becomes apparent that, whatever relief can be extended to H. & M. Schrenkeisen, must be granted in the first entitled action. As to the power of the court to vacate the judgment and grant a new trial as a matter of favor and upon terms, there can be no doubt, since the decision of the court of appeals in Hatch v. Central National Bank (18 N. Y. 487). In that case an order was sustained which, after the payment and satisfaction of the judgment in favor of the plaintiff, vacated the judgment and allowed an amendment of the complaint by the addition of new causes of action, which otherwise would have been barred by the statute of limitation. It is a power inherent in the court and not limited in matters of substance by the provisions of the Code of Civil Procedure. Morever, section 124 of said Code is, of itself, quite sufficient for the purposes of the present case. The question, therefore, remains whether, upon all the facts presented, a case has been made out which calls for the exercise of the power.

“In the determination of that question it must be assumed that the issues raised by the pleadings in the first action, so far as they went, were correctly disposed of. It must also be borne in mind that ordinarily a defendant will not be permitted to experiment with his defenses. As a general rule, he must be held to his election. Change of counsel and the substitution of a new theory, are never of themselves sufficient.

“ But H. & M. Schrenkeisen have shown, in addition to what has already been pointed out, that, when this action was commenced in May, 1884, no papers relating to it could be found, except a rough copy of the memorandum which had been indorsed on the license ; that they did not, at the time, remember the other papers; that owing to the lapse of time and Born’s acquiescence in the abandonment of the enterprise for about six years, they had forgotten the particulars of the original transaction; that from the scanty information they were able to give to their attorneys, the said attorneys believed that at the trial the real arrangement would have to be established by parol testimony; that the production, by Born’s counsel, of the assignment, the license and the memorandum was a surprise to them and to their attorneys ; that then there was no time left to study and ascertain the precise bearing of these three papers upon the case, nor the relation of the papers to each other ; and that even then their attorneys remained under the impression that parol testimony could be given to explain the papers, but that, when the attempt was made to give it, all parol testimony was excluded.

“Upon the whole case, I think it may be fairly held that, even if it could be said that H. & M. Schrenkeisen had no business to be surprised as stated, they still have made out a case of excusable neglect; and when to this is added the consideration that in all probability the parties did not in fact intend the contract to be as the court, upon unexplained proof, found it was, and that consequently the real merits were not tried, and that the judgment, unless vacated, would be a conclusive adjudication as to the true construction of the contract in all actions ' which may be brought from year to year during the life of the patent, a case is presented which calls for the exercise of the equitable powers of the court.

“In conclusion, acknowledgment should be made that Born denies many of the statements contained in the moving papers, and especially the principal statements relied upon for a reformation of the contract, though he concedes that the memorandum is in the handwriting of Martin Schrenkeisen, and that it was made by the latter without legal assistance, and at the time and place as stated by the latter. But in my judgment Born’s denials are not sufficient to overcome the case of excusable neglect as made out by H. & M. Schrenkeisen, resting, as that does, largely upon his own inaction and acquiescence for six years ; and his denials of the matters relied upon as ground for reformation, create an issue which ought not to determined upon affidavits. As the case stands, there is a probability at least that H. & M. Schrenkeisen may succeed in establishing their version of the contract, and as the contract, when once fully determined, will govern in future litigations, they ought to have an opportunity to fairly litigate the question. I, for one, cannot believe, upon what now appears, that the parties, in point of fact, intended that Born only should have the option to declare the contract null and void. What H. & M. Schrenkeisen intended to provide against, was a failure of the enterprise, notwithstanding their most faithful efforts to insure success. In that event, they wanted to have the privilege of saying that they would go no farther. But under the construction adopted by this court, under the circumstances hereinbefore stated, Born only was to have that privilege, although, in case of a failure of the enterprise, notwithstanding the best endeavors of H. & M. Schrenkeisen, his interest would prevent him from ever claiming the privilege.

“ My final conclusion is, that the judgment in the first entitled action should be vacated and set aside, and a new trial granted, and that H. & M. Schrenkeisen should have leave to amend their answer in said action, as they may be advised ; but that this relief should be granted only upon the following conditions, viz.: 1. That they pay the costs of said action as taxed, inclusive of the allowance contained in said costs ; 2. That they discontinue the action brought by them for a reformation, and pay the costs thereof to be taxed as if the demurrer to the complaint had been sustained; and, 3. That they pay ten dollars costs of motion.”

Wehle & Jordan, attorneys, and Henry Wehle, of counsel for appellant, on the questions considered in the opinion, argued:

I. The court had no jurisdiction to

make the order appealed from. The Code authorizes the court to relieve a party from a judgment taken against him through his mistake, inadvertence, surprise, or excusable neglect {Code, § 724). That this power is not unlimited, and that the court .cannot grant orders in the exercise of this power which are prohibited by other provisions of law, has been well established (McFarren v. St. John, 14 Hun, 387; Riggs v. Waydell, 17 Ib. 515 ; Werboloski v. Greenwich Ins. Co., 14 Abb. N. C. 98). From the very nature of this provision it follows that it can only be invoked in a case where no other relief has been invoked. The defendants could not, after having taken their appeal, after seeking the remedial power of the appellate tribunal, return to the special term and ask its interference (Fischer v. Corwin, 21 Week. Dig. 7). The case of Hatch v. Central National Bank (78 N. Y. 481), cited by the court below, is not in point. The judgment which was vacated in that case had not been appealed from. In Hubbard v. Copcutt (9 Abb. N. S. 290), the special term modified a judgment, after it had been affirmed at general term, by deducting an item from the recovery. The court of appeals held that the special term had no jurisdiction so to interfere with the judgment, although the appeal was dismissed on another ground. In McKelvey v. Lewis (44 Super. Ct. 561), which is cited by defendants’ counsel, the special term merely amended the judgment at the application of the successful respondent, so that the original adjudication could be executed completely, and this order was properly affirmed at general term. But of course this decision could not sanction the setting aside, the overriding, of a judgment of the general term.

II. If the application had been made to the proper tribunal, it should have been denied, (a) Because the defendants had been guilty of gross laches, (b) The ground of their motion, as contained in their moving papers, amounts to this, that they were mistaken about the law. (c) If the order appealed from can stand, almost every judgment rendered at the special term, and every verdict recovered at the trial term could be set aside on similar grounds (Price v. Price, 83 Hun, 432).

III. The application should have been denied also on the ground that, to grant it, would be a premium upon feckless swearing.

IV. The application should have been denied on the ground of defendants’ gross negligence. Defendants should be taught that, after interposing an answer, amending it under the rules of the court, and amending it again by the favor of the court on the trial, and inviting the decision of the court upon that answer, and after seeing the judgment of the court and the grounds thereof, he will not be permitted to tempt fortune on another answer, when it plainly appears that by any reasonable care and circumspection he would have discovered the grounds upon which he now claims that that new answer could be interposed. The case of Price v. Price (supra), was a case much more meritorious than the defendants’ case. If the defendants had answered truthfully the complaint, they would have been bound to admit each and every fact set out in the complaint, and then they might have pleaded whatever claim he might have made upon a reformation of the contract. At that time, however, the defendants acted upon advice which held that plaintiff cannot recover on the contract as written. Under such advice, a reformation of the contract was not necessary. Defendants relied upon that advice ; but now, after seeing the judgment of the court, they have become wiser ; they retained other counsel, who gave different advice. It is not to be wondered at that defendants seek an opportunity to try the case again in order to profit from the new Hght that has come to them. Every suitor who lost a cause has undoubtedly the same desire. But the policy of the law is immutably opposed to it.

V. The motion should have been denied on the further ground that the affidavits of both parties in respect to the contract do not show a cause for reforming the contract. Upon a motion of this character, the courts ought to exact at least a fair preponderance of evidence on the question as to whether the defendant is entitled to demand a reformation oft the contract. And' if the tests which have been established upon motions for a new trial on the grounds of newly discovered evidence, are to be applied to a motion of this character, then the motion must have failed, because there is no such preponderance in favor of defendants’ claim (People v. Super. Ct., 10 Wend. 285 ; Peck v. Holer, 30 Barb. 655 ; Sheldon v. Stryker, 27 How. 387).

VI. The motion should have been denied, even if the court had concluded that the agreement was made as claimed by defendants.

VII. The terms upon which this judgment was set aside, assuming that the court below had jurisdiction to vacate it upon any terms, were inadequate. The defendants should have been required to pay at least all the royalties which were earned up to the date of the order. As the defendants cannot have the patent and withhold the royalties, they should be compelled to pay royalties up to the time of returning the patent (Marston v. Swett, 66 N. Y. 207 ; Hilton v. Libby, 44 Super. Ct. 12).

Porter & Kilvert, attorneys, and W. W. MacFarland, of counsel for respondents, on the questions considered in the opinion, argued:

I. The court had power to make the order vacating the judgment. This proposition is too well settled to admit of discussion ; nor does the learned opinion at special term leave anything further to be said on this point (Hatch v. Cent. Nat. Bank, 78 N. Y. 487 ; Code, § 724). In England, the courts have always exercised this power as part of their inherent authority (Cannon v. Reynolds, 5 El. & Bl. 301; Delafield v. Tanner, 1 Marsh. 391; 5 Taunt. 856 ; Evans v. Grill, 1 B. & P. 52 ; Waters v. Waters, 2 De Gex & 8. 591 ; Lancaster Bk’g Co. v. Cooper, 9 Ch. D. 594).

II. It was a proper exercise of discretion. The merits of the case had not been fairly investigated, nor at all (Waters v. Waters, 2 De Gex & S. 591). The miscarriage of the case on defendants’ part, was due to the antiquity of an affair begun, ended and forgotten years before, and the loss of the papers relating to it, and all memory of details ; hence the attorneys were not and could not be properly instructed. The answer failed to present the defense. The judge obtained no accurate knowledge of the case. The result was, that the case was not properly developed, presented or tried, though without its being possible to say with justice, that any particular fault attached to any one. It was simply one of those miscarriages that will sometimes happen, and when they do, ought to be put right.

III. That the real intention of the parties was as defendants claim, admits of no doubt, and is, indeed, made quite conclusive by the following considerations : 1. In the first place it is incredible that men of long and extensive business experience like the defendants, should agree, off-hand, and unconditionally, to pay the plaintiff an annuity of $450 a year, for the whole life of such a patent, just issued, untried and without any knowledge as to its validity or value. 2. The proofs now presented make it entirely clear that the plaintiff himself never so understood the arrangement. He made a final settlement in respect of royalty in January, 1878, being then told that as the chair was a failure the defendants would make no more. He received what was due to him at the rate of 75 cents for each chair made and sold, and was content, and remained so for over six years after that payment, and would never have dreamed of any other construction if some attorney had not put the idea into his head.

IV. The motion papers present a case entirely free from negligence or any fault on the part of the defendants Or their attorneys, if fair allowance be made for the difficulties under which they labored in the preparation and trial of the case.

Per Curiam.

The opinion of the learned judge below, shows that justice required that the defendants should have the relief that was granted by the order appealed from. It is best, however, that certain modifications be made, which will obviate certain consequences, generally relied upon as the ground of denying applications for new trials. The order should be modified so as to prevent a re-trial of the old issues. This will be accomplished by permitting the defendants to amend the old answer by setting up in the amended answer only the defense which was made the ground of the application below. This defense relates to the right of the defendant to have the contract that was written reformed, so as to express the actual intention of the parties, as to what it should contain. The leave to amend should be as exact as possible as to the contemplated amendment, and the time within which it is to be served should be specified. The order will be settled upon notice.

The order below, modified as suggested, is affirmed, without costs to either party.


author: Ingraham, J. Per Curiam.

text:
    WILLIAM H. MACPHERSON, Appellant, v. THE WESTERN UNION TELEGRAPH CO., Respondent.

      Telegraph company—liability for failure to transmit.—Pleading'.

    A telegraph company is not a common earner.
    A condition precedent to its duty to transmit a message (there being no contract), is payment of the usual charges.
    A complaint against a telegraph company for damages for failure to deliver a message, is insufficient on demurrer, when it neither alleges payment of the usual charges, nor tender thereof, nor any fact showing a waiver thereof, nor any contract between the parties.
    Before Sedgwick, Ch. J., Freedman and Truax, JJ.

      Decided June 1, 1885.
    Appeal by plaintiff, from judgment dismissing the complaint, entered upon the complaint and the demurrer to it.
    Action for damages for failure to deliver a telegraphic message given to defendant for transmission.
    Plaintiff’s counsel laid much stress on the following allegation in the complaint: “V.—That, as this plaintiff is informed and believes, the defendant did dispatch said message as aforesaid over its wires, from its office in Troy to its office in the city of New York, but on the arrival of the message in the office of defendant in the city of New York, defendant negligently failed to deliver the message as aforesaid to the plaintiff herein, the successor of the firm of Gerruti & Macpherson or to -the aforesaid Pietro Cerruti.”
   The following opinion was delivered at special term :

Ingraham, J.

“ The breach of duty by the defendant, on which this action is founded, is the failure to deliver to plaintiff a telegram addressed to a firm, of which plaintiff was a member, and of which he is the successor in business.

Conceding that the defendant is subject to tne obligations of a common carrier, in order to sustain the action, the complaint must allege facts which made it the duty of the defendant to receive and transmit the despatch.

Frank Keck, attorney, and of counsel, and JR. V. W. Dubois, of counsel for appellant, as bearing on the point on which the demurrer was decided, argued:

I. Section 11, chapter 265, of the laws 1848, upon which the opinion sustaining the demurrer is based, is as follows :

“It shall be the duty of the owner or the association owning any telegraph line doing business within the state to receive despatches from and for other telegraph lines and associations, and from and for any individual, and on payment of their usual fixed charges for individuals for transmitting despatches as established by the rules and regulations of such telegraph line, to transmit the same with impartiality and good faith, under the penalty of one hundred dollars for every neglect or refusal so to do, to be recovered, with costs of suit, in the name and for the benefit of the person or persons sending or desiring to send such despatch.” The statute only refers to the right of the individual who has suffered through the neglect of the company to deliver his message, after payment of their fixed rates or charges, to recover the penalty prescribed by the statute, and does not refer to or restrict the right of such individual to bring suit for any pecuniary damage he may have suffered by reason of such neglect to deliver his message, where the usual charges have or have not been paid. This action is not brought under the section referred to, to recover the penalty thereunder, and not on contract, but is an action sounding in’ • tort.

“ Section 11 of chapter 265 of the laws 1848, makes it the duty of a telegraph company doing business "within this state, to receive despatches, and on payment of its usual charge for the transmitting despatches, as established by the rules and regulations of such telegraph company, to transmit the same with impartiality and good faith. The duty to transmit the despatch is on payment of its usual charges; until such payment, or tender of payment, the telegraph company is under no duty to transmit the despatch, and as there was no contract between the parties the defendant is not hable, except for a breach of some duty.

“ The complaint does not allege that the usual charge for transmitting the message was paid or tendered to the defendant, nor does it allege any fact to show a waiver of such payment by the defendant.-

“ The general term of the supreme court has held that a telegraph campany is not a common carrier, and is not subject to the peculiar liabihty of a common carrier (Schwartz v. Atlantic & P. Telegraph Co., 18 Hun, 157).

“It does not appear from the complaint that defendant was under any duty to plaintiff to transmit the despatch, and its failure to deliver it imposed no liability.”

“The demurrer must be sustained, and judgment ordered for defendant thereon with costs, with leave to plaintiff to amend the complaint within twenty days on payment of costs.”

II. The plaintiff and defendant, as between themselves, entered into no contract, but the defendant undertook, at the request of Sherman & McDonough, to transmit the message from Troy to the plaintiff in this city, and having executed the undertaking so far as to transmit the message over their wires to their office in this city, were in duty bound to deliver the same (Baldwin v. U. S. Tel. Co., 6 Abb. Pr. N. S. 426 ; Bryant v. Am. Tel. Co., 1 Daly, 575).

III. The message having been correctly transmitted and the same correctly transcribed, the mere manual delivery of the message remaining, the common carrier liability has arisen, and the rule analogous to that giving a consignee a right of action against a common carrier for goods lost in transitu applies (DeRutte v. L. Valley & Buffalo Tel. Co., 1 Daly, 547 : S. C., 30 How. 403).

IV. The common carrier liability being established as between the defendant and plaintiff, respecting the message, the defendant was bound to make due effort and use due diligence to find the address in order to make personal delivery of the message transmitted, and in faffing to do so and the message being lost while in its hands, it is responsible (Western Union Tel. Co. v. Fenton, 52 Ind. 1 ; Whitbeck v. Holland, 45 N. Y. 13 ; aff’g 55 Barb. 443 ; West. Union Tel. Co. v. Lindley, 62 Ind. 371; Hibbard v. West. Union Tel. Co., 33 Wis. 358, 14:Bradw. [Ill.] 531).

Dillon & Swayne, attorneys, and Melville Egleston, of counsel for respondent, on the point on which the demurrer was decided, argued:

I. There was no contract with plaintiff, nor even one made for his benefit. There was no privity between him and defendant. The settled doctrine of English courts is that the receiver cannot maintain an action unless the sender, in filing the message, . acted as his agent (Playford v. United Kingdom Telegraph Co., L. R. 4 Q. B. 706). Nothing of the kind is alleged. The rule is the same in this country so far as any obligation of contract is concerned. The plaintiff can therefore sue, if at all, only upon the ground of tort, even if he be considered as standing in the place of the receiver or addressee of a message (Tel. Co. v. Dryburgh, 35 Pa. St. 303; Rose v. U. S. Tel. Co., 3 Abb. Pr. N. S. 459; 2 Thompson on Negl. 847).

II. The wrong complained of is a non-feasance. But the obligations of a telegraph company as to sending and delivering messages are defined by law, and are dependent upon compliance with its reasonable rules and regulations and the payment of the usual compensation, as to all of which nothing is alleged in the complaint, (a) The defendant is not a common carrier (Breese v. U. S. Tel. Co., 48 N. Y. 132; Schwartz v. A. & P. Tel. Co., 18 Hun, 158). (b) Its whole duty is defined by the laws of this state relating to telegraph companies (Breese v. U. S. Tel. Co., supra; Childs v. Smith, 55 Barb. 45). The statute requires telegraph companies to receive and transmit despatches only on payment of their usual charges ” (3 R. S. [Edm. 2d ed.] 722). It was upon the ground that the complaint failed to show that the usual charges had been paid in this case, that the demurrer was sustained at the special term.

Per Curiam.

Judgment affirmed upon the opinion delivered at special term, with costs.