text:
    The German-American Bank of Tonawanda, N. Y., Respondent, v. P. W. Scribner Lumber Company and Another, Appellants.

      Action on promissory notes — payment secured hy a mortgage — payment, how far presumed from the talcing possession of the proceeds of the mortgaged property— direction of a verdict.

    Upon the trial of an action brought upon certain promissory notes, it appeared that the P. W. Scribner Lumber Company, to secure the payment of certain of its promissory notes, made a chattel mortgage to the holders of such notes, upon certain lumber, and that the notes on which such action was brought were made in renewal of certain of the notes to secure which such mortgage was given, and that in actions brought by-certain creditors of the defendant Scribner, attachments had been issued to the sheriff and had by him been levied upon such lumber.
    An action of replevin was thereafter brought against the sheriff to recover possession of the lumber, in the name of the mortgagees, who founded their alleged title on the mortgage, and, the requisite bond being given, the property was delivered to the plaintiffs therein and a portion of it was sold by their agent.

      Held, that unless there was some special reason why the mortgagees were not required to make an application of the proceeds (resulting from the sale of such lumber) on the notes, the fact of the taking possession of the lumber and the sale of it by their agent, operated as a payment on the notes held by them.
    At the time of the trial of the action brought upon the promissory notes the action brought against the sheriff had not been determined, and it was then an open question whether the mortgagees would succeed in supporting their title to the lumber, and the proceeds resulting from the sale thereof, under the mortgage. The mortgagor was not a party to such action, and the plaintiff’s agent held the proceeds of the sale of such lumber during the pendency of the litigation against the sheriff, in order to dispose of the lumber and the proceeds resulting from the sale thereof, as the result of such action should require.

      Held, that the mortgagees were not required, during the pendency of the replevin suit, to apply the proceeds of the lumber towards the payment of such notes, and that there was no legal objection to the maintenance by them of an action upon such notes.
    Where, upon the trial of an action, the direction of a verdict was requested by each of the parties to the action, and no request was made by the party against whom the verdict was rendered for the submission of any question to the jury, a verdict directed by the court in favor of the other party will not be set aside if there is evidence to support the same.
    Appeal by tlie defendants, the P. ~W. Scribner Lumber Company and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 30th day of November, 1892, upon the verdict of a jury rendered by direction of the court after a trial at the Erie Circuit, and also from an order entered in said clerk’s office on the 24th day of December, 1892, denying the defendant’s motion for a new trial made upon the ground of newly discovered evidence, with notice of an intention to bring up for review on such appeal said order.
    The action was brought upon thirteen promissory notes made by the defendant company, a domestic corporation, and indorsed by the other defendant.
    The alleged defense is payment. A verdict was directed for the plaintiff for $18,601.53.

      W. B. Bimson, for the appellants.

      Tracy G. Becker, for the respondent.
   Bradley, J.:

On October 30, 1891, the plaintiff held thirteen notes of the defendant corporation, amounting to $18,300; a like number of its notes, amounting to $24,783.44,' were held by the Lumber Exchange Bank of North Tonawanda ; twelve of its notes, amounting to $9,517.62, were held by the State Bank of Tonawanda, and George F. Rand held two of its notes, amounting to $4,000. Toseeusre the payment of those notes, and any. renewals thereof, the-defendant on that day made to those holders of its notes a chattel mortgage in the usual form upon upwards of 5,000,000 feet of lumber. The promissory notes in question were made in renewal of those mentioned in the mortgage as held by the plaintiff. In December, 1891, all the mortgagees, except the State Bank, joined in a power of attorney to Benjamin L. Rand to do whatever was. requisite to enforce the mortgage and conduct all actions and proceedings necessary to accomplish the purpose in view. In actions, brought by creditors of defendant Scribner for alleged claims, amounting to $59,000, attachments had been issued to the sheriff and by him levied upon the lumber. After the power of attorney was delivered-to Rand, an action was brought .in the name of the-mortgagees against the sheriff to recover the possession of the lumber, founding their alleged title on the mortgage, and, the requisite bond being given, the property was delivered to the plaintiffs and the possession of it was taken by Rand in their behalf and he sold sufficient of it to produce $56,000, which he deposited in the State Bank to his credit as trustee, and by his checks, as trustee, he transferred $12,000 to the plaintiff hank and took, as trustee, its certificate of deposit by which the bank promised to pay interest at the rate of four per cent per annum if that sum was left there three months. On the part of the defendants it is insisted that the taking possession of the lumber, and selling it by the plaintiff’s agent, operated as payment of the notes. Such is the apparent effect of the transaction, and it must be so treated, unless there is some special reason why the plaintiff was not required to make the application on the notes. (Case v. Boughton, 11 Wend. 106; Charter v. Stevens, 3 Den. 33.)

At the time of the trial the action brought against the sheriff had not been determined in favor of the plaintiffs therein. The question then was at least an open one whether they would succeed in .supporting title under the mortgage. It is true that the mortgagor was not a party to that action, and, therefore, might not be concluded by its result, nor was he a party to the attachment actions. But in the former, as between the parties to it, the question whether, as .■against the attaching creditors, the title, when the mortgage was made, was in the mortgagor or in Scribner could be determined; .and if the final determination should be that the plaintiff and its •associates took no title by the mortgage none of them would have received payment of their notes from the mortgaged property, •although they had sought to do so by means of their action in replevin. The defendant corporation could not, although not bound by the determination, effectually for that reason assert in such event payment of the plaintiff’s claim founded upon the taking and sale ■of the property. By virtue of the attachment levies the sheriff had taken it from the mortgagor and had the custody of it. The action .against the sheriff is, in effect, an attempt to follow the property taken from the mortgagor, and whether the mortgagees will succeed in reclaiming it will depend upon the result of their action. Unless they do recover in their contest with the sheriff for the possession of the property the lumber company cannot charge them for the property or its proceeds. When their action was instituted by Rand he procured sureties for the undertaking upon which the property was delivered to the plaintiffs in the action. And it was then understood that he would take charge of the property and the proceeds to await the determination of the suit. In that view he, with the assent of the plaintiffs in it, assumed" the relation of trustee to hold the proceeds of the sale during the pendency of that litigation, and to dispose of them as the result of it should require. At all events that conclusion is warranted by the evidence. If the sheriff should recover, the plaintiffs in that action would have to account to him for the property. It seems clear that in the meantime the plaintiff is not required to apply the proceeds of the property upon the debt in question, and, therefore, there is no legal objection to the maintenance of this action.

There were exceptions taken to evidence relating to some of the proceedings in the action against the sheriff. They could properly be proved only by the records or papers in the action if the question were raised by objection. But the facts that the actions were brought by the creditors of Scribner in which attachments were issued to and levied by the sheriff upon the property, and that the .action was brought against him by the mortgagees, its nature and purpose, were proved without objection requiring the production of the papers or records. And when the pendency of the latter action appeared, relief from it by a result favorable to the plaintiff became essential to require it to apply the proceeds of the property upon the notes. The evidence relating to the trial and verdict added to the facts, as they then appeared, nothing prejudicial to the defendants, and, therefore, the defendants were not in any manner prejudiced by the error of its reception. It may have been in view of the pendency of the replevin action that the defendants made and indorsed or guaranteed the notes mentioned in the complaint in renewal of those mentioned in the mortgage, after that action had been commenced and the property taken into the possession of the plaintiffs in it as before mentioned. "While any judgment in that action may not preclude the lumber company from asserting title to the property, and as against it may constitute no evidence in that respect, the liability of the plaintiff to be charged by that company with the property or its proceeds is dependent upon the fight of the mortgagees to take and retain the property, as they have sought to do by their action. It is sufficient for the purposes of the present action that such right at the time of the trial was in litigation and undetermined. There were no errors in the rulings at the trial to the prejudice of the defendants. And as the direction of a verdict was requested by each of the parties, and no request by the defendants for the submission of any question to the jury, there was- no error in the direction given by the court, as there was evidence to support a verdict for the plaintiff. (Kirtz v. Peck, 113 N. Y. 222.) No other question arising upon the appeal from the order denying motion for a new trial requires consideration.

The judgment and order should be affirmed.

Dwight, P. J., Lewis and Haight, JJ., concurred.

Judgment and order appealed from affirmed.


source: Caselaw Access Project

author: Bradley, J.:

license: Public Domain

text:
    David Drew, Appellant, v. Randall Longwell and Others, Respondents.

      Corporation — its directors are not personally liable to am, attorney for his services . in proceedings for its dissolution — amendment of an answer by one jointly Viable, by lea/oe of a refe/i'ee — evidence as to whose credit was relied on in rendering services, inadmissible.

    Where the directors of a corporation, at a meeting thereof, take proceedings for the voluntary dissolution of the corporation, and an attorney is employed to conduct them, who prepares the petition therefor, and takes the requisite action to accomplish such dissolution, the proceeding thus set in motion by the action of the directors is the proceeding of the corporation as such, and the directors are not personally liable to the attorney for his services in regard to such proceeding, unless by some special promise they undertook to pay him therefor.
    The life of a corporation continues until the final order is made dissolving the same, whereupon the receiver appointed becomes in practical effect the representative of such corporation for certain purposes.
    Where the complaint in an action alleged facts sufficient to charge the defendants with liability on an alleged contract made by them, such contract must be treated as a joint contract of all the defendants if nothing appears in the allegations of the complaint to show the contrary.
    Although the rule has been so modified by statute as not to render a misjoinder of parties fatal, where the joint liability of all the defendants in an action is not established, and the several liability of some of them is made to appear, by the evidence, yet if, upon the trial, nothing appears in the evidence to distinguish the relation of one defendant to the subject-matter from that of another, the referee to whom the action is referred has power to permit a defendant to amend his answer (which denied knowledge or information sufficient to form a belief that the services, alleged in the complaint in such action to have been rendered, were in fact so rendered) in such wise as to deny the making of the contract by such defendant where his co-defendants have by their answer denied the making of the same.
    In an action brought to recover the value of the services rendered by an attorney, the testimony of the attorney as to whose credit he relied on in performing the services is inadmissible in evidence, as it calls for the conclusion of the witness and not for the facts upon which its determination depends. •
    Appeal by tbe plaintiff, David Drew, from two judgments of tbe Supreme Court, one in favor of tbe defendant Hoover and tbe other in favor of tbe defendants Keufer and Karle, entered in tbe office of tbe clerk of tbe county of Steuben on the ljth and 22d days of January, 1894, respectively, upon tbe report of a referee dismissing tbe plaintiff’s complaint upon tbe merits and for costs.
    Tbe plaintiff by bis complaint alleges that tbe defendants were directors of tbe Pleasant Yalley Yintage Company, a domestic corporation duly created, and that at a meeting of the defendants it was deemed advisable for them to apply for a voluntary dissolution, of tbe company, and thereupon James O. Sebring was duly authorized and directed by them to institute such proceedings; that be did so by preparing a petition, which was signed and verified by tbe defendants, and proceedings conducted by Sebring were thereupon bad pursuant to tbe statute for such dissolution of the corporation for and at tbe request of tbe defendants. The respondents only were served, and they alone appeared. Tbe alleged claim of Sebring for bis services in tbe matter was assigned to tbe plaintiff. .

      Walter 8. Drew and James O. Sebring, for tbe appellant.

      Q-eorge W. Hall, for respondents Keufer and Karle.

      Briggs c& 8-underlin, for respondent Hoover.
   Bradley, J.:

The facts found by tbe referee are to the effect that at a meeting of a majority of tbe board of directors proceedings were directed and taken pursuant to tbe statute for the voluntary dissolution of the corporation, and Mr. Sebring was employed as attorney to conduct them, and that be prepared their petition, which was presented, and the requisite proceedings were had to accomplish the purpose. (Code Civ. Proc. §§ 2419-2429.)

This proceeding was set in motion by the action of the defendants in their relation as directors of the corporation, and as such they made the jjetition and caused the proceedings to be had. They were, therefore, not personally liable to the attorney, unless they, by some special promise, undertook to pay him for his services. The referee found that they assumed no such personal relation to him by any individual promise to compensate him in the premises, and such finding is supported by the evidence. Iiis conclusion that there was no personal liability of the defendants necessarily followed. The proceedings were those of the corporation by its constituted agencies. (Skinner v. Smith, 56 Hun, 437.) The life of the corporation continued until the final order was made dissolving it. (Code Civ. Proc. § 2429; New York Marbled Iron Works v. Smith, 4 Duer, 362.) And then the receiver appointed was in practical effect its representative for certain purposes.

The defendants Keufer and Karle, by their answer, put in issue the allegations of the complaint, other than that the defendants were directors of the corporation.

The defendant Hoover by his answer denied any knowledge or information sufficient to form a belief that Sebring performed all the services mentioned in the complaint, and alleged that his services were of little or no value to the corporation.

Hpou the trial a motion in behalf of the defendant Hoover, made to amend his answer by alleging denial of the employment of Sebring by the defendants as their attorney, was granted. ’ This was opposed and exception taken by the plaintiff’s counsel, and it is insisted that it was not within the power of the referee to grant it. Although his power to allow amendments is limited by the statute (Code Civ. Proc. §§ 723,1018), we think the exception was not well taken. Treating the facts alleged in the complaint as sufficient to charge the defendants personally, their alleged contract, according to the rule at common law, must be treated as the joint contract of all the defendants, as nothing appears in the allegations to the contrary. And although the rule has been so modified by statute as not to render the misjoinder fatal when the joint liability of all the defendants is not established, and the several liability of some, of them is made to appear by evidence, the apparent liability alleged is that of all the defendants upon their joint promise. And nothing appeared in the evidence to distinguish the relation of the defendant Hoover to the alleged promise from that of the other defendants to it. The promise was alleged to have been made by the defendants jointly, and no attempt by evidence was made to show that it was otherwise. In that view the amendment of his answer, made by defendant Hoover, in denying that the defendants promised as alleged, was not a substantial change of the defense, as the same had already been alleged by other defendants. Beyond that the amendment was immaterial.

The answer of witness Sebring to the question, on whose credit he relied in performing the services, was properly éxcluded upon the ■defendants’ objection. It called for the conclusion of the witness rather than the facts upon which its determination depended. And it was quite immaterial whose credit he relied upon unless his contract with the defendants, or their promise, permitted him to rely on their credit. That was a question for the referee to determine. (Merritt v. Briggs, 57 N. Y. 651; Pope v. McGill, 58 Hun, 294.)

There was no error in the rulings on the trial or the determination of the merits.

The judgment should be affirmed.

Dwight, P. J., Lewis and Haight, «JJ., concurred.

Judgment appealed from affirmed.


author: Dwight, P. J.:

text:
    The Trustees of the Village of Canandaigua, Respondent, v. William L. Foster, Appellant.

      Defect in a sidewalk — duty of a property owner as to the public — the municipality may recover over against him damages paid by it because of such defect • — ■ exceptions to the rule denying indemnity to joint wwngdoers.

      A delect consisting of a loose grating existed in a sidewalk of a village over an opening into a vault beneath, which grating was set by the property owner, with the acquiescence and consent, actual or implied, of the village authorities many years before the happening of an accident, caused by the same, which resulted in the personal injuries for which the person injured recovered damages against the village.

      Meld, that the village could not recover over against the property owner because of the original construction of the grating, whether it was good or bad.
    Where, however, the opening into the vault was reconstructed and the grating was reset, without the consent or acquiescence of the village authorities, and, by reason of the improper manner in which such work was performed, the reconstructed opening and grating became a nuisance, the property owner and not the village is primarily liable for injuries to third persons resulting therefrom.
    The general rule which denies indemnity or contribution to joint wrongdoers is elementary, and the cases in which recovery over is permitted in favor of one who has been compelled to respond to the party injured are exceptions to the general rule, and are based upon principles of equity.. Such exceptions obtain in two classes of cases, viz., where the party claiming indemnity has not been guilty of any fault except technically or constructively, and where both parties have been in fault, but not in the same fault, towards the person inj ured, and the fault of the party from whom indemnity is claimed is the primary and efficient cause of the injury.
    Where a property owner avails himself of a license by implication to make an opening in the sidewalk of a village, he does so under an implied contract not only to do the work in a safe and proper manner, but also to keep the structure in a safe condition by repairs, as the same may become necessary, and if he negligently permits the structure to fall into disrepair and to become dangerous to passengers on the sidewalk, and an accident results therefrom, the village, being subjected to the payment of damages thereby, is entitled to recover the same from the property owner.
    Appeal by the defendant, William L. Foster, from so much of an order of the Supreme Court, made at the Ontario Circuit and entered in the office of the clerk of the county of Ontario on the 17th day of January, 1894, as denies the motion made by the defendant upon the minutes of the court to set aside the verdict, and for a new trial of the action.

      G. A. Fiehcurdson and John Gillette, for the appellant.

      John Oabney and Frcuhle Fice, for the respondent.
   Dwight, P. J.:

. One McSherry, in 1889, brought an action against the village of Canandaigua for injuries sustained by him in falling on a defective sidewalk, in front of premises of defendant, on one of the streets of that village. The plaintiffs in the present action, the defendants in the action brought by McSherry, gave the defendant Foster notice to defend the action and he undertook to do so. Judgment, however, went against the village, which the plaintiffs paid, and now bring their action over to recover of the defendant the amount so paid.

The defect in the sidewalk was a loose grating, covering the opening into a vault beneath. The vault was excaváted and the grating set by the defendant many years before, with the ■ acquiescence and consent, actual or implied, of the village authorities. (Babbage v. Powers, 130 N. Y. 281.) It was, therefore, out of the question that the plaintiffs should recover over against the defendant for the original construction, good or bad, of the vault and grating (Trustees of Geneva v. Brush Electric Co., 50 Hun, 581; affd., 130 N. Y. 670), and so the court held at the Circuit.- But the defendant reconstructed the opening and reset the grating in the summer of 1888, ,and the evidence on the part of the plaintiffs tends to show that this work was done in an improper manner, and that, in consequence of it, the grating soon after came to be in an unsafe condition, and that the accident to HcSherry resulted therefrom. This evidence presented the main question which was submitted to the jury — and properly submitted, as we think. There was no evidence of consent, on the part of the village, to the reconstruction, nor lapse of time from which acquiescence could be inferred. If, therefore, the reconstructed opening and grating were a nuisance the defendant and not the village was primarily liable for injuries tp third persons resulting therefrom. As we had occasion to say in the case of The Village of Geneva {supra): The general rule which denies indemnity or contribution to joint wrongdoers is elementary. The cases in which recovery over is permitted in favor of one who has been compelled to respond to the party injured, are exceptions to the general rule, and are based upon principles of equity. Such exceptions' obtain in two classes of cases: First, where the party claiming indemnity has not been guilty of any fault except technically or constructively, as where an innocent master is held to respond for the tort of his servant, acting within the scope of his employment; or, second, where both parties have been in fault, but not in the same fault, towards the persons injured, and the fault of the party from whom indemnity is claimed was the primary and efficient cause of the injury.” ' Illustrations of the second class were found in cases like the present, “ of recovery against municipalities for obstructions to the highways caused by private persons. The fault of the latter is the creation of the nuisance; that of the former the failure to remove it in the exercise of its duty to care for the safety of the public streets. Tbe first was a positive tort and tbe efficient cause of the injury complained of ; the latter the negative tort of neglect to act upon notice, express or implied.” The cases here cited, of Village of Port Jervis v. First National Bank (96 N. Y. 550); Village of Seneca Falls v. Zalinski (8 Hun, 575); City of Rochester v. Montgomery (72 N. Y. 65), and many others of like character, are cases of the second class above -described, and they clearly support the submission of this case to the jury with the instruction, in effect, that if they should find that in the reconstruction of the grating the defendant did the work improperly, and in such a manner as to make the use of the sidewalk dangerous, and that the accident in question resulted therefrom, then the plaintiffs might maintain their action over against the defendant.

The next following instruction of the court to the jury in this case related to the question of the defendant’s neglect to keep- the opening in the sidewalk and its covering in repair, without reference to that which was done by way of reconstruction in 1888. The instruction was, in effect, that if the defendant negligently permitted the structure in question to fall into disrepair, and thus to become dangerous to passengers on the sidewalk, and the accident in question resulted therefrom, the village, being subjected to the payment of damages thereby, was entitled to recover the same from the defendant.

This instruction was, also, we think, correct, on the principle that the defendant, when he availed himself of the license by implication to make the opening in the sidewalk, did so under the implied contract not only to do the woi’k in a safe and proper manner, but also to keep the structure in a safe condition by repairs, as the same should become necessary. (Babbage v. Powers, 130 N. Y. 281, 286, and the cases cited.) In Babbage v. Powers the defendant was held not liable as an original trespasser because of the implied license, as in this case, to make the opening, and the question of his neglect to keep it in repair was not considered, because, as is premised in the outset of the opinion of the court, no charge of negligence was made by the plaintiff. Nor do we find this instruction to'be in contravention of the principles established by the case of The City of Rochester v. Campbell (123 N. Y. 405), which arose on demurrer to the complaint, because the court there says: “ It will be observed that the complaint does not charge the defendant’s testator with negligence, or the breach of any contract duty, but his liability is predicated wholly upon the statutory duty to repair, and the assumption that an omission to perform it imposes a liability in favor of all persons who may be injured by such omission.”

It appeared in evidence that at the time of the accident to McSherry the premises to which the vault or coal hole was attached, being one store in a block owned by the defendant, was under lease to a man by the name of Parsons, for the term of three years from the 1st day of April, 1886; that the tenant was in possession from that date to and including the date of the accident, and that the lease contained no covenant on the part of the lessor to repair. At the close of the evidence, counsel for the defendant moved for the direction of a verdict on the ground, among others, that the defendant was not in possession or control of the premises at the time of the accident. The defendant also requested the court to charge the jury that if the grating was in proper position at the time the store was leased to Parsons, there could be no recovery against the defendant after that time. It is apparent that both the motion, on the ground stated, and the request to charge, were properly denied. Both ignored the facts which constituted one of the principal grounds upon which the plaintiffs claimed to recover, viz., those which related to the reconstruction of the opening and its cover in 1888.' That was during the term of the lease, but the defendant as owner of the premises then assumed sufficient control to make the change in the structure complained of, and we have approved the submission to the jury of the question whether that new construction was made in an improper manner, which rendered the sidewalk unsafe for passengers and was the cause of the accident in question. This question was plainly unaffected by the lease to Parsons, and to have granted either the motion or the request above stated would have withdrawn that question from the jury.

We find no question in the case beyond those already considered which seems to require discussion.

The order appealed from should be affirmed.

Lewis, Haight and Bradley, JL, concurred.

Order appealed from affirmed, with costs.


author: Beadley, J.:

text:
    Sophia A. Miller and Another, as Administrators, etc., of John H. Miller, Deceased, Respondents, v. The New York Central and Hudson River Railroad Company, Appellant.

      Death resulting from negligence — proof of the defendant’s negligence affords no inferenceofthe absence of contributory negligence by the plaintiff — what is not contributory negligence.

    Although it be shown, upon, the trial of an action brought to recover damages resulting from the death of the plaintiffs’ intestate, that his death was caused by reason of a collision with a railway train operated by the defendant at a highway crossing, and that the defendant was guilty of negligence in failing to give a sufficient signal to warn persons on the highway crossing of the approach of the train, no inference arises therefrom that the deceased was free from contributory negligence, and to support the action the plaintiffs have the burden of showing that the negligence of the deceased did not contribute to ■the calamity.
    If by the exercise of reasonable care the deceased could have avoided the collision and its consequences, the plaintiffs are not entitled to recover.
    If a person is suddenly placed in a position of danger by the negligence of another, which compels him to act suddenly to extricate himself, he may not be chargeable with negligence if he fails to avail himself of the very best means to accomplish his escape, and in consequence suffers an injury.
    Where a team, driven by a person along a highway, becomes unmanageable or the driver loses control over them, and in consequence they enter upon the tracks of a steam railroad company at a highway crossing, against the will of the driver, and are run down by a passing railroad train, and the driver killed, the driver is not chargeable with negligence contributing to the accident.
    .Appeal by the defendant, Tlie New York Central and Hudson River Railroad Company, from a judgment- of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Niagara on the 21st day of September, 1893, upon the verdict of a jury, rendered after a trial at the Niagara Circuit, and also from an order entered in said clerk’s office on the 12th day of September, 1893, denying the defendant’s motion for a new trial made upon the minutes.

      Charles A. Pooley, for the appellant.

      F. M. de F. M. Ashley, for the respondents.
   Beadley, J.:

The death of the plaintiffs’ intestate occurred at a highway crossing of the Rome, Watertown and Ogdensburg railroad, operated by the defendant, in June, 1892. He was riding in a wagon drawn by a pair of horses driven by him going east upon what is known as the Braley road, which crosses at right angles a highway known as the Randall road, in the town of Wilson, county of Niagara. His team went upon the track of the railroad, which crosses the intersection of the two roads in a northeasterly and southwesterly direction. His wagon was struck and he was killed by a train from the southwest. The accident took place about six o’clock in the afternoon, and the plaintiffs allege that it was occasioned solely by the negligence of the defendant. It appears that at a point 335 feet west of the crossing a willow hedge extended from the Braley road south to the railroad right of wayj and on a line at the center of the track 490 feet from the crossing, and that along the east side of the hedge was an orchard. The situation was then such that on passing the hedge going east on the Braley road the view of a train approaching from the southwest was shut off by it and the trees for some distance, so that when a point 95 feet from the center of the crossing was reached an object on the track could be seen at the distance of only 497 feet, increased to 665 feet when 77 feet from the crossing, and to upwards of a mile when 63 feet from it. The train was running fast. The ringing post was 1,467 feet from the crossing. The train passed that without ringing the bell or blowing the whistle. The whistle, however, was sounded 500 or 600 feet from the crossing, described by witnesses as two short, sharp toots. No other signal of the approaching train was given. In view of the situation and circumstances the conclusion was warranted that it was inadequate, and that by the omission to give a more suitable signal to warn persons on the highway leading to the crossing of the approach of the train, the defendant was chargeable with negligence.

But from that fact alone no inference arises that the deceased was free from contributory negligence, and to support the action the plaintiffs have the affirmative of that question, and the burden pf showing that his negligence did not contribute to the calamity. (Weston v. City of Troy, 139 N. Y. 281.)

If, therefore, by the exercise of reasonable care he would have avoided the collision and its consequences, the plaintiffs were not entitled to recover. "What is reasonable care is dependent upon the circumstances as they existed at the time in question. When a person is suddenly placed in a position of danger by the negligence of another, which compels him to act suddenly to extricate himself, he may not be chargeable with negligence if he fails to avail himself of the very best means to accomplish his escape and in consequence suffers an injury. (Twomley v. Central Park, N. & E. R. R. R. Co., 69 N. Y. 158; Dyer v. Erie Ry. Co., 71 id. 228; Salter v. U. & B. R. R. R. Co., 88 id. 42.)

It is urged on the part of the plaintiffs that the emergency when the approaching train came within the view of the intestate was such as to relieve him from the imputation of negligence. The facts are that when he had passed the willow hedge, his horses proceeded on a trot, and when about seventy-seven feet from the crossing, the off-side horse pranced and, as some of the evidence tended to prove, lunged ahead, while the other horse continued to trot. It quite satisfactorily appears from the evidence that when that point in the highway was reached, the train was in view, and the horses may have seen it before the deceased could, as he was about seventeen feet in the rear of their heads. But in a moment later it must have been seen by him if he looked in the direction from which it was approaching. There was then, so far as appears, up to the time the horses went upon the track, ample room to turn his team around or to turn to the left into the Randall road on the west side of the railroad. And it is difficult to see why he did not do so, unless he failed to observe the train, or concluded that he could cross the track ahead of it. If, however, his horses became unmanageable, or he lost control of them, and they in consequence entered upon the track at the crossing against his will, he would not be responsible for it. (Cosgrove v. Railroad Co., 87 N. Y. 88.)

It is urged by the plaintiffs’ counsel that the jury were permitted by the evidence to so find the fact. The court charged the jury that if Miller’s horses became unmanageable and carried him upon the railroad track in spite of his efforts to prevent it, then the plaintiffs might recover if they also found that the defendant was negligent. The defendant’s counsel excepted. The evidence does not fairly justify sucli inference. It does not appear by the testimony of those who saw the deceased approaching the track, that he made any attempt to turn his horses from it, and none of the witnesses were able to say that the team was beyond his control. The witnesses say that he sat straight up in the wagon, looking ahead, holding the lines in his hands. One of the plaintiffs’ witnesses, who first saw the team when it was about twenty-five feet from the track, testified that the horses did not appear to be out of the control of the deceased; that one of them was then trotting; and another of them testified that Miller did not indicate by his actions any purpose to turn into the Randall road, although there was no reason why a person driving east on the Braley road could not have turned into it before getting to the railroad track. The view taken of the evidence is that it does not support the proposition so submitted to the jury, and that the exception was well taken.

The fact that the train was in view of the plaintiffs’ intestate, or may have been seen by him from the time he was about four rods from the crossing, with ample room to turn from the track if he had chosen so to do, makes it appear that he may have misjudged the speed of the train and thought he could cross the track ahead of it. In view of the distance he was from the track when the train came in his view, and of the opportunity he had of avoiding the crossing by turning to the left, it does not seem that the exigency was such as to excuse his going on the track in front of the train.

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

Dwight, P. J., Lewis and Haight, JJ., concurred.

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


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    Catherine Dempsey, as Administratrix, etc., of John J. Dempsey, Deceased, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.

      Death resulting from negligence — duty of a railroad company to use ea/re for the safety of a person employed by its contractor and necessarily crossing its tracks.

    TJpon the trial of an action brought to recover damages resulting from the death of the plaintiff’s intestate, alleged to have been caused by reason of the defendant’s negligence, it was shown that the deceased, who was crushed to death by the coming together of two cars upon the defendant’s tracks, was not a mere volunteer on the tracks of the railroad corporation, but that bis relations to certain work which his employer had contracted with the railroad company to do required him to go to and from the work over the railroad tracks.

      JELeld, that in doing so he had rights which it was the duty of the railroad company to recognize;
    That if the company was advised that the plaintiff’s intestate, while engaged in the work of performing the contract made between it and his employer, was' for that purpose passing over its tracks, through an opening between its cars, the company owed to him the duty of using reasonable care for his protection, and of providing that he should not, while so engaged, suffer injury by its negligence.
    Appeal by the defendant, Tbe New York Central and Hudson River Railroad Company, from a judgment of tbe Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 5th day of June, 1804, upon the verdict of a jury rendered after a trial at the Erie Circuit, and also from an order entered in -said clerk’s office on the 4th day of June, 1894, denying the defendant’s motion for a new trial made upon a case containing exceptions.

      James F. Oluoh, for the appellant.

      Oha/rles Oishei, for the respondent.
   Bradley, J.:

The death of the plaintiff’s intestate was caused by cars suddenly •coming together while he was between them upon the track in the defendant’s yard at Buffalo, on December 13, 1892. The question is whether the charge that the death was the result of the negligence of the defendant is supported by evidence.

On October 6, 1892, the defendant entered into a contract with "W. J. Gillette, whereby the latter agreed to repair, in the manner specified, tlie roof of the trainshed of the Exchange street passenger station of the defendant, at the city of Buffalo, and to commence the work within five days. Gillette sublet the work to one Talbut, who proceeded to perform it. He employed Dempsey as. foreman, who acted in that capacity until his death. In the rear, i. e., the south side of the building, and between it and Green street, were two parallel tracks running east and west. And south of Green street was also a track upon which the defendant placed a car for the use of the contractor. It was designated as a tool car. In that car much of the material for the work was kept and prepared for use, and was taken from there to the building from time to time,, as wanted for use in the work upon the roof, and the workmen, in number from twelve to eighteen, deposited their lunch pails in the car, and there ate their lunches. The material for the work was taken from the tool car across the railroad tracks of the defendant to the depot building and hoisted on to the roof.

The track next to the building was mainly appropriated to the use of the switch engine in switching cars; none were left upon it. That track was generally clear. The next track south of it was, occupied by passenger, mail and baggage cars placed there and taken from it as the business of the company required. And for the convenience of crossing that track in going from and to the tool car the-evidence on the part of the plaintiff tended to prove that in the outset of the work the defendant’s head switchman or switch conductor, as he is sometimes called, was requested by Dempsey and promised to make and leave an opening for the workmen to pass through between the-cars; that the opening was so made and used; that it continued substantially all the time up to the time of Dempsey’s death, and that being found closed on one occasion about two weeks before the accident,, it was on a like request opened, and so remained up to that time; This is contradicted by the head switchman, who testified that no such request or promise was made, that no arrangement was made to that effect, and that he knew of no opening being kept there prior to the accident. And the defendant gave evidence tending to prove that the switch conductor had no authority to effectually make such an arrangement.

The defendant, through its agencies, was advised that the tool car • was used by the contractor in connection with the work, and that be, by bis employees, was engaged, in tbe performance of tbe contract. And the jury were permitted by the evidence to find that tbe workmen frequently each day carried materials for tbe work from tbe car to tbe building, and in going back and forth for such purpose passed over tbe defendant’s track through an opening between tbe cars standing upon it, and that this was known to tbe company through those conducting its business in and about tbe premises.

In view of such facts 'the deceased and his co-employees were not mere volunteers upon the defendant’s tracks. Their relation to the work required them to go to and from it, and in doing so they bad rights which it was the duty of the defendant to recognize, and assuming (as we may, upon the finding of the jury) that the defendant was advised that the persons engaged in the work of performing the contract were for that purpose passing over its tracks through an opening or at the place in question, the defendant owed to them some duty to use reasonable care for their protection, and that they should not while so engaged suffer injury by its negligence. (Indermaur v. Dames, 2 L. R. [C. P.] 311; Smith v. Dock Co., 3 id. 326; Newson v. N. Y. C. R. R. Co., 29 N. Y. 383; Driscoll v. Lime & Cement Co., 37 id. 637; Stinson v. Railroad Co., 32 id. 333; Murphy v. Railroad Co., 118 id. 527; Young v. R. R. Co., 30 Barb. 229; McDermott v. R. R. Co., 28 Hun, 325; Goodfellow v. R. R. Co., 106 Mass. 461.)

The question of negligence on the part of the defendant was submitted to the jury, and it had for its support the facts that the switchman shoved some cars down an incline against the west end of the cars on the track with such force that the gap, in which the deceased was at that moment, was suddenly closed, causing his death.

This was done without any signal or warning to apprise him of the danger. And there is evidence tending to prove that he was chargeable with no contributory negligence. He left the tool car and was proceeding towards the building where the work was being done under his direction, and the evidence is to the effect that he looked in the westerly direction as he approached the track; that the cars which were run in on to the track there came on a curve around the west end of the depot and could not be seen by him, and that there was a dirt car on a spur of tbe track at tbe west end wbicb was also some obstruction to his view of the cars so brought on the track. The witnesses testify that they heard the crash, and then saw that the deceased was pinned or crushed in between the cars where the opening was through which he attempted to pass. The conclusion is permitted that the cars might have been put on to the track at the west end of the standing cars in such manner as not to move the one at the place of the injury, and that a notice or signal could, in some manner, have been given ■ to warn the workmen of the danger which might arise from the sudden movement of the cars standing there.

It is urged by the learned counsel for the defendant that it was practically impossible to provide for or maintain an opening for the workmen to pass through upon this track, because the defendant was constantly putting cars upon it, and, as they were wanted for use, taking cars from the track, and that in doing so necessarily had to move more or less the cars upon it, and that the deceased must have known that this was being done. While there is much force in that suggestion, founded upon the evidence, the facts before mentioned which the jury could find still remain, that the workmen, for the purposes of the business in which they were engaged, were, with the knowledge of the defendant, frequently crossing the track, and the use which was made of the track by the company did not necessarily deny to its servants the opportunity to use such care as was reasonable under the circmnstances for the protection of those workmen against injury by the movement of its cars.

The case may be a close one. But the facts were fully and fairly submitted to the jury. The conclusion is that the verdict is supported by the evidence.

The judgment and order should be affirmed.

Dwight, P. J., Lewis and Haight, JJ., concurred.

Judgment and order appealed from affirmed.


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    George D. Woodward and Others, Respondents, v. Herman E. Remington, Appellant.

      Action for goods sold, and, delivered to a third person — proof of an account and its mailing to the person on whose credit the goods were sold — statement of a conclusion.

    Upon the trial of an action brought to recover the value of goods sold and delivered by the plaintiffs to a third person, where the question as to whether the defendant authorized the plaintiffs to deliver the goods to the third person was in issue, evidence was given, on behalf of the plaintiffs, tending to prove that they were authorized to furnish the goods to such third person upon the credit of the defendant.

      Held, that it was competent for the plaintiffs, in order to prove that they were so authorized, to show that the account, as entered in the plaintiffs’ books of account, was charged to the defendant, and that statements of the account mailed to him were made out in like manner, the defendant having testified that lie never received or had any such statements, so that a notice to him to produce them would have been futile;
    That it was incompetent for one of the plaintiffs, who stated that the defendant had requested the plaintiffs to furnish the goods, to testify, upon the trial of such action, that the goods were furnished to such third person by reason of a conversation had between the witness and defendant, in which the defendant requested the plaintiffs to furnish the goods to such third person — that being a question to be decided by the court.
    Appeal by the defendant, Herman E. Remington, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Cattaraugus on the 15th day of March, 1893, upon, the report of a referee.

      Carey II. Davie, for the appellant.

      Hudson Ansl&y, for the respondents.
   Bradley, J.:

The action was brought to recover for goods delivered by the plaintiffs at their store at Red House, in the county of Cattaraugus, to Erank Phillips, and alleged to have been sold to the defendant. There is no controversy about the fact that the goods were furnished to Phillips, but the facts upon which the plaintiffs seek to charge the defendant with liability to pay for them are controverted. The goods in question were furnished to Phillips after he had undertaken to perform a job of work for the defendant. And the evidence on the part of tlie plaintiffs is to the effect that the defendant called at plaintiffs’ store and there in an interview with one of them said that Phillips was jobbing for him, and requested them to let him have what goods he -wanted and he (defendant) would pay for them at the end of each month, and requested that monthly statements be sent to him. The defendant, by his testimony, denies that he gave any such order or made such promise or request. The question was one of fact for the referee, and his finding in that respect is supported by evidence.

The plaintiffs’ clerk, who kept the books and entered the account, produced the books, and one page of the ledger was offered in evidence to show that the account was charged to the defendant. This was received, after objection, and exception taken. The same witness, after testifying that he mailed to the defendant statements of the account, was asked how those statements were made out, and, after exception taken to the reception of the evidence, he answered that they were made out to the defendant. After the evidence tending to prove that the plaintiffs were authorized to furnish goods to Phillips upon the credit of the defendant, it was competent for them to prove that they did so, and this might be made to appear by the fact that the account as entered was debited to him, and that the statements were made out in like manner. The defendant testified that he never received or had any such statements, so that a notice to him to produce them would have been futile. The evidence of the book and statements was not offered to prove the account, but only to show that it was opened upon the credit of the defendant. In that view the evidence was competent, and there was no error in its reception. The plaintiff who testified that the defendant requested them to furnish goods to Phillips, as before mentioned, was asked whether the goods were furnished to Phillips by reason of that conversation, and, after exception was taken to the ruling permitting it, the witness answered in the affirmative. This was a question for the referee to determine upon the facts, and was not properly the subject for the expression by the witness of his conclusion. (Merritt v. Briggs, 51 N. Y. 651; Pope v. McGill, 58 Hun, 294.)

But the defendant could not have been prejudiced by that evidence. If the referee believed the evidence on the part of theplaintiffs that the request and promise of the defendant were made, as their witnesses testified, in view of the fact that the account was entered in the book as upon the order of 'the defendant, the conclusion would necessarily follow that the goods were furnished pursuant to such request and promise.

■ The referee did treat the fact as truly represented by that evidence, and found accordingly.

There seems to have been no error in the rulings at the trial to the prejudice of the defendant.

The judgment should be affirmed.

Dwight, P. J., Lewis and Haight, JJ., concurred.

Judgment appealed from affirmed.


author: Beadlby, J.:

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    Fredericka Bantleon, Respondent, v. Elizabeth Meier, Appellant, Impleaded with Another.

      Appeal from an order of a Gounty Gourt granting a motion for a new trial — discretionary power — when the questions of fact will not he remewed — Gode of Oiril Procedure, §§ 999 and 997 — new trial not granted unless a case has been made and settled.

    Where the motion for a new trial of an action, made in a County Court before which the trial took place, is made on the ground of newly discovered evidence, and not on any of the grounds sxiecified in section 999 of the Code of Civil Procedure, the questions of fact presented on the trial are not before the ■ General Term of the Supreme Court upon an appeal from an order granting the .• new trial on the ground of newly discovered evidence, and the power of the County Court in that respect being discretionary, its exercise is not reviewable upon appeal.
    Section 997 of the Code of Civil Procedure, in its application to a motion made for a new trial of an action upon the ground of newly discovered evidence, is declaratory of the practice as it existed before the enactment thereof, and a motion for a new trial on such ground cannot be granted if the person moving for the same has not made a case and procured the same to be settled.
    Unless objection is taken'to the granting of such an order, upon the hearing of the motion therefor, on the ground that the party moving for the same has not made a ease and procured the settlement thereof, such objection is waived and is not available upon an appeal from the order granting such motion.
    Appeal by tbe defendant, Elizabeth Meier, from an order of tbe County Court of Monroe county, entered in tbe office of tbe clerk of tbe county of Monroe on tbe 15tb day of May, 1894, granting the plaintiff’s motion for a new trial of the action on the ground of newly discovered evidence.

      H. G. Pierce, for the appellant.

      J. P. Yarnum, for the respondent.
   Beadlby, J.:

The motion was heard by the County Court, and upon the decision judgment was entered dismissing the complaint, with costs against the plaintiff. Afterwards the plaintiff, upon affidavits, depositions taken pursuant to order of the court before a referee, the judgment roll and proceedings in the action, moved for a new trial upon the ground of newly discovered evidence, and the motion was granted.

"When the motion came to hearing the defendant made preliminarily the objection to its being heard that no case had been served. The objection was overruled and exception taken.

As the motion for the new trial was not within those mentioned in section 999 of the Code of Civil Procedure, the questions of fact presented on the hearing are not here for consideration (Id. § 1340), and the power of the County Court in that respect is discretionary and its exercise not reviewable upon this appeal. (Tucker v. Pfau, 70 Hun, 59.) The question is whether the court erred in entertaining- and determining the motion on the merits without a case.

The statute provides that where a party intends to move for a new trial of an issue of fact “ he must, except as otherwise prescribed by law, make a caáe and procure the same to be settled.” (Code Civ. Proc. § 991.) Our attention is called to no law which relieves a motion like the one in question from the operation of that rule. It was so held by this court in Russell v. Randall (30 N. Y. St. Repr. 453). The statute in its application to such a motion is declaratory of the practice as it before then existed. (Anon., 7 Wend. 331; Warner v. Western T. Co., 5 Robt. 499.) And the statute is founded upon a substantial reason having relation to the consideration of such motions on the merits.

In reviewing the decision of the court in Russell v. Randall (123 N. Y. 436) the Court of Appeals, recognizing the rule to be as above stated, held that, by the omission to raise the question on the hearing of the motion, the objection was waived and not available on review. The objection was distinctly and in due time taken in the present case, and it was not obviated or waived by the fact that the defendant contested the motion on the merits without further objection taken in the later stage of the hearing of it.

In Michel v. Colegrove (46 N. Y. St. Repr. 899) the motion upon the like ground was denied with leave to renew. 'Whether the .plaintiff may have such opportunity is a question for consideration in the County Court only.

The order should be reversed, without prejudice, etc.

Dwight, P. J., Lewis and Haight, JJ., concurred.

Order of the County Court of Monroe county appealed from reversed, with ten dollars costs and disbursements, without prejudice to a renewal of motion in the County Court.


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    Charles K. Bryant, Plaintiff, v. The New York Central and Hudson River Railroad Company, Defendant.

      Rctifo’oad company — its duty and liability as to rules and their enforcement.

    "Where a railroad company has, "by its rules, done all that could he reasonably required of it for the safety of its employees, in the operation of trains upoi its road, the execution of the rules is a matter of detail to be observed by the employees, and no liability of the company results, in favor of one of the employees, from the consequences of the fault of another employee in failing lx obey such rules.
    The serious consequences liable to result from the collision of one running trail with another impose upon a railroad company the duty of using all reasonabh and practicable precautionary means to avoid such an accident.
    Although an'accident and injury to an employee may be attributable to the neg ligence of an employee of a railroad corporation in not observing the rules o. the company while running a train, if negligence on the part of the company to any material extent co-operates with that of such employee in producing the accident, the company may be chargeable in damages. ,
    Motion by the plaintiff, Charles K. Bryant, for a new trial on í case containing exceptions, ordered to be heard at the General Tern in the first instance, upon a nonsuit granted by the court after a tria at the Monroe Circuit, before the court and a jury, on the 23d da; of February, 1894.

      The action was brought to recover damages for personal injuries alleged to have been occasioned by the negligence of the defendant. The plaintiff was a locomotive engineer in the service of the defendant. On the evening of April 4, 1893, he received from the division superintendent of the defendant a telegraphic order to run engine 565 extra from East Rochester to Canandaigua. The order was addressed to the conductor and engineer having charge of that engine and a freight train of twenty of thirty cars. That line of the road was a single track. The plaintiff’s train left East Rochester at five minutes past ten. On arrival at Brighton he received another telegraphic order to meet No. 45 at Pittsford, a regular train bound west due there at twenty minutes past ten. The train was met at Pittsford. ELe then proceeded to Eishers. There the engineer of 23, a regular train going west, delivered to the plaintiff a telegraphic order as follows :
    “Eor Yictor. To O. & E. of No. 69 Yictor Eng. 565, Care of C. & E. No. 23.
    “Extra Eng. 565 East has right of track against No. 69 Pittsford to Yictor. EL. G. Time received 11.35 p. m. O. IL Given at 11.36 p. m. by M.”
    No. 69 was a regular freight train going west. Its leaving time at Canandaigua was forty minutes past eleven. It left there about forty minutes late. The plaintiff, with his train, proceeded east, and was delayed on the way by the breaking of the injector of his engine. Arrived at Yictor at half-past twelve and stopped his engine about 300 feet west of the depot. The water was then low in the boiler, and he cut it from the train, ran it to a tank about 200 feet east of the station, sent flag forward, took supply of water and returned to train, coupled on the engine, and was about proceeding to draw the train on to the side track when the headlight of engine 69 came in sight, and not having time to get his train from the main track, proceeded to jump from his engine as that of No. 69 collided with it, and he was injured. The further facts appear in the opinion. The plaintiff was nonsuited.

      Eugene Van Voorhis, for the plaintiff.

      Edward Harris, for the defendant.
   Bradley, J.:

The main question is whether or not there was any support in the evidence for the charge of negligence against the defendant as a contributing cause of the injury suffered by the plaintiff. The train drawn by engine 505, run by the plaintiff, was an extra one, and was run upon special orders. The conductor and engineer were advised by the time table when regular trains were due at stations, and unless directed to run upon the time of such trains, they had to keep out of the way of them. When they received at Fisher’s Station the telegraphic order addressed to the conductor and engineer of train 69, that the plaintiff’s train had the right of track against No. 69 from Pittsford to Victor, neither the plaintiff or his conductor observed that it was addressed to 69 at Victor. They, therefore, did not learn from it that the engineer of 69 was to receive the order at that place. But that fact does not seem very important. The effect of the order was that the plaintiff’s train and 69 would meet at Victor. And it was his business to proceed with his train to that place. If he had noticed that the order was addressed to those upon train 69 at Victor the plaintiff might have had reason to suppose that the engineer of that train would not receive it until he reached there. In fact neither the conductor or engineer of train 69 had any information that it would meet the extra 565 at Victor before the collision occurred, and it may be assumed that if they had been advised of the order at any station before they reached there their train would have been under control and the accident avoided. The omission to give timely information of the order to the conductor or engineer of 69 is the fact upon which the plaintiff seeks to [medicate the charge of negligence of the defendant, and such may be the reasonable inference unless by the force of a system of rules and regulations, then existing for the guidance of those running trains, the defendant is necessarily relieved from that imputation. Victor was a signal and water station, and was known to the railroad men as an order board station. By rule 61 of the company it was provided that “all trains or engines approaching stations * * * where signals are located must do so expecting to find them at danger, and must be prepared to stop in accordance with instructions governing them.” By another rule it was declared that “ red signifies danger and is a signal to stop.” And by rule 125 it was further provided that “ all trains must approach the stations with care, and freight trains must approach water stations slowly and cautiously, always expecting to find a preceding train there.” It is provided by rule 121 that no regular freight train must exceed the table time.” The distance from Canandaigua to Yictor is nine miles, and, as appears from the company’s time card, the time to be occupied by freight train No. 69 in running it was thirty-five minutes. This would give the average speed of about fifteen and one-half miles per hour. If the engineer of the train had complied with the rules of the defendant it is quite evident that the accident would not have happened. He saw the flagman’s signal 1,400 feet east of the station, and about the same time he was also able to see the red light signal at the station, which required him to stop there. But then his train was running at the rate of twenty or twenty-five miles per hour, down grade.The consequence was that with all the means he was able to apply to slack the speed of the train it was reduced only to the rate of fifteen miles per hour when it struck the plaintiff’s engine.

To approach the station at such speed was a violation of the rules of the company before mentioned which required the engineer to have his train under his control. Not apprehending any signal to stop at Yictor, and not being aware of any business requiring it, the engineer did not intend to stop there.

The train 69 left Canandaigua forty minutes late and was behind time at Yictor. But, as this was an order and signal station, it was the duty of the engineer to have the train under his control when it approached there, and be prepared to observe and obey the order to stop as the signal there required. The proposition of the defense is that while the injury may have been the consequence of the negligence of the engineer of train 69, there was no fault on the part of, the defendant contributing to it because it had furnished by rules a system which if observed by those running the moving train the calamity' would have been avoided. That, if sustained, by the evidence, is an answer to the charge against the defendant. If it had by its rules done all that was reasonably required of it for the safety of the employees in the operation of trains upon the road, having in view also the circumstances appearing in the case at bar, then the execution of the regulations was a matter of detail to be observed by them, and there is no liability of the company in behalf of one of the employees for' the consequences of the fault of another .of them in failing to obey them. (Slater v. Jewett, 85 N. Y. 61; Byrnes v. Railroad Co., 113 id. 251.)

An extra (such was the plaintiff’s train) is not upon the time card. It is inferior in class to all regular trains and must, at places of meeting them, take the branch or side track. The plaintiff’s engine reached the point of divergence from the main to the side track about 300 feet west of the station, and but for the want of water in the boiler would have passed on to it in time to have escaped the accident. The conductor and engineer received telegraphic orders to run from one station to another. The last order received by them was that their train had the right of track against 69 from Pittsford to Yictor. It seems that no order to that effect was sent to the conductor or engineer of 69, although it might conveniently have been, as that train was some time at Canandaigua and did not leave there until twelve-twenty. But the purpose was to give them the order at the station where the trains were to meet, and until then they were not advised that the order was awaiting their arrival at that place.

The serious consequences liable to result from collision of one running train with another impose upon the company the duty of using all precautionary means reasonably practicable to avoid it. While there is some evidence indicating that there were rules of the company relating to the subject of running trains under telegraphic orders, it does not appear by the evidence what they were. It may here be assumed, therefore, that the matter of furnishing special orders for the running of extra trains is left to the telegraphic dispatcher under the general direction of the superintendent. And for the consequences of any want of due care on his part in that respect the company may be responsible. (Hankins v. Railroad Co., 142 N. Y. 416.) While the collision may be deemed attributable to the.negligence of the engineer in not observing the rules of the.company in running train 69 into Yictor, if the defendant’s negligence to any material extent was co-operative with that of the employee in producing the result complained of, the defendant may be chargeable for it. (Ellis v. Railroad Co., 95 N. Y. 546; O'Laughlin v. Railroad Co., 9 N. Y. St. Repr. 384; 113 N. Y. 623.)

It would have been a precautionary act, neither unwise nor unreasonable, for the dispatcher to have sent a copy of- the order to the conductor or engineer of train 69 at some station east of Yictor. But if the rules of the company were reasonable and adequate for the purpose of preventing the calamity in question, and it was occasioned solely by the failure to observe and execute them, it is difficult to see that anything further was required of the company in the matter, and the effect of sending fhe order to the persons in charge of the running train would have been to advise them to observe the existing rule which required the engineer to have the train under his control in approaching the Yictor station. There is evidence tending to prove that it was the custom or practice of freight trains on the road when behind time not to stop at stations where they had nothing to do. This fact is urged as a reason why the officers of the company had some reason for apprehension that an earlier receipt of the order by the engineer of the approaching train was but a reasonable precaution, and that it might be essential to the protection of those having charge of the trains.

This would be so if it had been the custom to run such trains into and past stations otherwise than at such reduced speed as to have them under control as provided by the rule before mentioned. But, so far as appears, there is nothing in the rules requiring freight trains to stop at stations where there is no service for them, unless signaled to do so. Nor is the fact that such custom or practice existed, inconsistent with the requirement of the rule, that when approaching stations where signals are located, they must do so expecting to find them at danger, and must be prepared to stop in accordance with instructions governing them. The engineer was advised of that and the other rule before mentioned. And the collision was the consequence of his violation of them, and his negligence the cause of the plaintiff’s injury. Nothing appears to warrant the inference that there was any occasion for apprehension on the part of the defendant that the rules of the company might not be effectually observed in running train 69 into Yictor. If they had been obeyed, no injury would have been done. The conclusion logically follows that it was caused by the negligence of the plaintiffs co-employee, without any negligence on the part of the defendant.

Tbe motion, for a new trial should, therefore, be denied and judgment upon the nonsuit directed for the defendant.

Dwight, P. J., Lewis and Haight, JJ., concurred.

Plaintiffs motion for a new trial denied, with costs, and judgment ordered for the defendant on the nonsuit.


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    Jackson W. Bowdish, as Assignee, etc., of Mortemore Allison and Another, Respondent, v. Esek Page and Others, Appellants.

      Chattel mortgage, when void as to creditors — its invalidity, how questioned— mortgagee in possession — assignee for the benefit of creditors —■ election of remedies — transfer of property as security — redemption thereof — a sale, evidence of the value of chattels.

    A chattel mortgage, if not refiled within thirty days next preceding the expiration of a year from the time it was filed, ceases to be valid as against creditors of the mortgagor, under the provisions of chapter 418 of the Laws of 1879, but its validity cannot be questioned by the creditors of the mortgagor until after they have recovered a judgment upon their claim against the mortgagor and an execution has been issued upon the same.
    The possession of personal property taken by a mortgagee pursuant to a chattel mortgage, void as against the creditors of the mortgagor, is not effectual to support title as against an existing creditor of the mortgagor, although his process by execution is issued after the possession has been so taken by the ■ mortgagee, where the infirmity of the mortgage as against the creditors of the mortgagor existed at the time it was made and delivered.
    The rights acquired in chattels by an assignee for the benefit of creditors (holding a chattel mortgage thereon), who takes from the debtor a delivery of the chattels to secure the claim made by him, agreeing to sell the goods and apply the proceeds on the debt, no mention being made of the mortgage, considered.
    Since the enactment of chapter 466 of the Laws of 1877 an assignee for the benefit of creditors is something more than the hand of the assignor; he is a trustee for the creditors, and his transactions in respect to the assigned property may be deemed to have been conducted by hiih as such trustee in behalf of such creditors.
    Where there is a transfer of property as security, a right of redemption may exist consistently with the transfer, notwithstanding the default of the person making it, and may be foreclosed by a sale of the property; if it be a mere equity of redemption, not salable upon execution, there is no remedy in a proceeding taken to make a sale of the same in that manner.

      When a party has pursued one of two inconsistent remedies he is not afterwards permitted to make the other available.
    An assignee for the benefit of creditors cannot by pursuing a futile remedy produce a forfeiture of the vested rights of his cestuis que trust to have the property, held by him in that relation, made available for their benefit, nor can he voluntarily relinquish their rights in that respect. His power and duty, in the execution of the trust, are in harmony and he cannot effectually proceed in contravention of either.
    Although a sale of chattels was not made at public auction, but at a private sale, the price for which such chattels were sold is competent evidence on the question as to the value of the goods.
    Appeal by the defendants, Esek Page and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Steuben on the 3d day of June, 1892, upon the report of a referee.

      George JV. Oroutt and James H. Stevens, for the appellants.

      Gabriel L. Smith, for the respondent.
   Beadley, J.:

The plaintiff, as assignee for the benefit of creditors of Mortemore Allison and Lawrence Allison, brought an action against the defendants to recover for the alleged conversion of a quantity of boots, and shoes. The defendants allege, by way of justification, that the property was taken by virtue of an execution issued upon a judgment in favor of the defendant bank against Isaac Allison, and that the title was then in him.

It appears that Isaac Allison was engaged in the business of manufacturing boots and shoes at Canisteo, N. Y.; that he became indebted to Mortemore and Lawrence Allison, who were in the business of banking in the name of “ The Bank of Canisteo,” and they had assumed some liabilities for him as accommodation indorsers; that on the 1st of October, 1883, to secure payment of such indebtedness and to indemnify them against liability as such indorsers, Isaac Allison, by an instrument in writing, sold and transferred to them all the boots and shoes, finished and unfinished, all the leather, stock and other materials on hand in and about the factory occupied by him, and certain other property, giving them power to take possession of the property. The instrument was filed with the clerk of the town, of Oanisteo (where tlie mortgagor resided) on October 3, 1883. Afterwards, on July 21, 1884, IVIortemore Allison and Lawrence Allison made to the plaintiff a general assignment for the benefit of their creditors.

The referee found that, on July 22,1884, the plaintiff went to the factory where the goods were, with one of his assignors, who turned them over to him, and that on the next day (July twenty-third) they went there again, and, at the request of the plaintiff, Isaac Allison went with them; that the plaintiff there insisted that Isaac turn over to him his interest in the stock of goods and give him immediate possession of them, which Isaac at first declined to do ; that the plaintiff promised him that if he surrendered the possession to him he would credit the proceeds of the property as fast as sold upon his, Isaac’s, account, and thereupon Isaac delivered the possession of the goods to the plaintiff, who took possession of them and took from Isaac the keys of the building in which the goods were, locked the door when they left it and kept the keys ; that the plaintiff th$n became and was vested with the entire title and possession of the goods, and that from that time thereafter until dispossessed by the defendants, the plaintiff, as assignee, had the actual and complete possession of the goods in question for the benefit of the creditors of IVIortemore and Lawrence Allison.

On April 30,1884, the defendant bank recovered a judgment for $12,785.03 against Isaac Allison upon his liability as indorser of notes made prior to the date of the mortgage before mentioned. Execution upon the judgment was issued July 29, 1884, to the defendant Page as sheriff, and by his deputy, the .defendant Murray, was levied upon the property August 1, 1884. It was by virtue of the levy taken away March 21, 1885, and sold in April, 1885.

The referee found that the bill of sale or chattel mortgage was made, delivered and taken in good faith, for a good consideration and without any intent of any of the parties to defraud the creditors of the mortgagor.

He also found that on October 31, 1883, the mortgagees took possession of the property with the consent of the mortgagor, that the latter continued to have access to the factory building, proceeded to sell some of the goods for the mortgagees, and paid a portion of the proceeds to them up to July 21, 1884, and that such con-tinned access of Isaac, together with the dealings between him and them previous to that day rendered the sale by such chattel mortgage and delivery from him to them void as to his creditors.

The chattel mortgage was not refiled within thirty days next preceding the expiration of the year from the time it was filed. It, therefore, ceased to be valid as against the creditors of the mortgagor. (Laws 1879, chap. 418.) But the defendants were in no position to question the validity of the mortgage until the bank judgment was recovered and execution issued upon it. (Button v. Rathbone, Sard & Co., 126 N. Y. 187.)

The finding of the referee, that the mortgage in its inception was valid as against the creditors of the mortgagor, has the support of evidence, and it is so treated. The plaintiff claims that on the 23d day of July, 1884, he acquired, and thereafter had, the actual and continued ¡possession of the goods until they were taken by defendants in March, 1885, and that during that time he had title to them. If that proposition of fact as found by the referee is sustained by the evidence, the omission to refile the mortgage is not available to the defendants, as such taking possession by the plaintiff preceded in point of time the issuing of the execution upon the judgment of the defendant bank. (Kitchen v. Lowery, 127 N. Y. 55; Tremaine v. Mortimer, 128 id. 1; Stephens v. Perrine, 69 Hun, 578.)

The mortgage was valid between the parties to it, and although it. was valid in its inception it must, in view of the finding of the referee, be assumed that by the dealings between them the mortgage-had, at the time of the assignment to the plaintiff, become void as against creditors of the mortgagor. It has been held that possession of property taken pursuant to a chattel mortgage, void as against the creditors of the mortgagor, is not effectual to support title as against an existing creditor of the mortgagor, although his process by execution is issued after the possession has been so taken by the mortgagee. (Dutcher v. Swartwood, 15 Hun, 31; Stimson v. Wrigley, 86 N. Y. 332, 339; Quinn & Co. v. Hart, 48 Hun, 393; Mandeville v. Avery, 124 N. Y. 376.)

In the cases where it was so held the infirmity of the mortgage as against the creditors of the mortgagor existed at the time it was made and delivered. In that respect they are distinguished from. the present case. But, assuming that by reason of the fact so found by the referee tbe plaintiff’s claim of title as against the defendants cannot rest solely upon that derived from his assignors of the general assignment, it may nevertheless be sustained if supported by some transfer from Isaac Allison other than that expressed in the mortgage. (Brown v. Platt, 8 Bosw. 324; Hauselt v. Harrison, 105 U. S. 401; Stanley v. National Union Bank, 115 N. Y. 123.)

The referee did not in express terms find that the possession was or was not so taken by the plaintiff by virtue of the chattel mortgage. By reference to the evidence upon the subject of the transaction of July 23, 1884, at the factory building, it is seen that the plaintiff testified that he told Isaac that he, as assignee, had some claims against him, consisting of notes and book accounts for overdraft, and called his attention to four notes of $2,000 each, and to his overdraft of $6,800, as his indebtedness, exclusive of interest, and asked him if he could pay. On receiving his answer that he could not, the plaintiff demanded of him that he turn over to him his interest in the stock of goods in the building; that Isaac, claiming that he had been receiving some commission from L. &. JVC. Allison, insisted that if he turned over the goods to the plaintiff the arrangement should be continued; that the plaintiff refused to do so, stating that he knew nothing of their arrangement, and that he wanted the title to the goods absolutely, and as fast as they were sold he would apply the proceeds in payment of his indebtedness; that Isaac said he would turn the goods over to the plaintiff, and then went through the building singling out the goods belonging to him or those in which he claimed to have an interest. He then, stating that he surrendered the possession of the goods to the plaintiff, gave him the keys, and the plaintiff then said that he accepted the goods and claimed them from that time as assignee, etc. These included the goods in question. It appears that some of the boots and shoes and stock in the factory building had been turned out to one Orandall prior to the time of the general assignment to the plaintiffs, and that the Crandall goods, or so much of them as were not in the meantime sold, remained in the building as long as those in question continued there. The indebtedness of Isaac Allison to the plaintiff as such assignee was as so stated by the latter.

In the interview between him and Isaac Allison on the 23d of July, 1884, when the possession of the property was so delivered to and taken by the plaintiff, the chattel mortgage was not mentioned, and the inference from the evidence is permitted that the plaintiff was then seeking payment or security for the debt then referred to against Isaac, and that the transfer and possession then made to and taken by him were not dependent upon the mortgage. In support of the finding of the referee to that effect there is evidence tending to prove that the possession of the property taken by the plaintiff on July 23, 1884, was continued until it was taken away by the defendants by virtue of the execution issued upon the judgment recovered by the defendant bank against Isaac Allison.

In Bullis v. Montgomery (50 N. Y. 352) and Steele v. Benham (84 id. 634) no circumstances appeared tending to show an actual change of possession of the property. Here the plaintiff went into the building, and not only were words used to the effect that the possession of the property was surrendered and taken, but in that connection the parcels of property were pointed and singled out and all was done that could well be accomplished for the purpose-other than actually taking the goods from the building, and by giving him the keys the property was placed in the exclusive control of the plaintiff. In view of the character of the property this was sufficient.

And the fact that Isaac Allison, having charge of the Crandall goods there, had from time to time access to the building, and occasionally was authorized by the plaintiff to sell for the latter goods from the stock, did not necessarily have the effect to deny to the plaintiff the continued possession of the goods. This, upon the evidence, was a question of fact for the referee. (Stanley v. Mational Union Bank, 115 N. Y. 122.)

It may be observed that since the statute upon the subject of assignments for the benefit of creditors was enacted, the assignee is something more than the hand of his assignor. He is a trustee for the creditors. (Laws of 1877, chap. 466.) And his transaction in respect to the property in question may be deemed to have been conducted by him as such trustee in behalf of such creditors.

It is further urged on the part of the defense that the plaintiff, by a proceeding taken somewhat inconsistently with his claim of title to the property, denied to himself the right to effectually assert reliance upon such title in this action. It appears that on December 4, 1884, a judgment in Ms favor upon confession was entered upon the notes so held by Mm against Isaac Allison ; that upon it was then issued an execution by virtue of which Isaac’s.interest in the property was advertised for sale, sold and bid in by him for the sum of $151. This levy and sale were afterwards set aside by the court. He was at liberty to take a judgment. But it is contended that the issue of the execution, levy and sale constituted a proceeding inconsistent with Ms right to retain the property under any claim of previous transfer to him, and, therefore, it was an election upon the principle that when a party has pursued one of two inconsistent remedies he is not afterwards permitted to make the other available. That doctrine may not be applicable to the situation in the present case. Where there is a transfer of property as security a right of redemption may exist consistently with the transfer, notwithstanding the default of the person making it, and may be foreclosed by sale of the property. (Bragelman v. Daue, 69 N. Y. 69.) And if it be a mere equity of redemption, not salable upon execution, there can be no remedy in the proceeding to make a sale in that manner. (Leadbetter v. Leadbetter, 125 N. Y. 290.)

There is a further reason why the doctrine of election is not applicable to this case. As has been remarked, the plaintiff is a trustee for the creditors of his assignors, and he cannot, by pursuing a futile remedy, produce a forfeiture of the vested rights of Ms eestuis que trust to have the property held by him in that relation made available for their benefit, nor can he voluntarily relinquish their rights in that respect. His power and duty in the execution of. the trust are in harmony, and he cannot effectually proceed in contravention of either, (Shepherd v. McEvers, 4 Johns. Ch. 136; Russell v. Russell, 36 N. Y. 581; Fitzgerald v. Topping, 48 id. 438.)

The question of value of the goods was contested at the trial. The evidence on the part of the plaintiff was to the effect that their value was upwards of $10,000. They were bid in at the sheriff’s sale for the defendant bank. And it employed persons who were competent for the purpose to examine the goods, make an inventory of them and their value. Those persons were called as witnesses by the defendants, and by their evidence it appeared that they did so, and that they estimated the aggregate value of the goods to be $4,542.80. And the defendants called another witness, who was sent to examine the goods by the person who contemplated purchasing, and afterwards purchased them, and he, after his examination* put the value at $5,100. His evidence is that he arrived at the price he was willing to pay, and that such sum mentioned by him was the fair market value. Another witness called by the defendants made an estimate of the value below that of any of the other witnesses, but his examination was made of a portion of the stock only. And the lowest sum which the referee, upon the evidence, could fairly adopt as the value was $4,542.80. He, however, found that the value was $8,691.25. This was within the evidence of value on the part of the plaintiff. But the difficulty in sustaining the recovery arises upon the exception to the exclusion of the evidence offered by the defendants to prove the price for which the sale of the goods was made by the Citizens’ National Bank to Ingalls, who made the purchase. In connection with the offer the defendants proposed to prove that the goods were placed upon the market in charge of a competent person, that a proper effort was made to sell them at the best obtainable price, and that the' price paid by Ingalls was the highest that the bank could obtain for them. The evidence was excluded and the defendants excepted. The rule seems to be well settled that although the sale was not made at public auction, but at a private sale, the evidence of the price for which it was made was competent and its exclusion error. (Wells v. Kelsey, 37 N. Y. 143; Hoffman v. Conner, 76 id. 121; Hangen v. Hachemeister, 114 id. 566.)

The weight which the evidence would have had, or whether it would have had any, with the referee, is a question which cannot be determined on this review, but in view of the evidence introduced, including that of the person who, in making an estimate of the value, represented the purchaser, it would seem that the defendants will not be prejudiced by the error in the exclusion of the evidence by the adoption of the lowest price before mentioned, if the plaintiff is disposed to do so to avoid the necessity of another trial. In the view taken no other question requires consideration.

The judgment, therefore, must be reversed and a new trial granted, costs to abide the event, unless the plaintiff stipulates to reduce the recovery of damages to $4,542.80 and interest thereon from the 21st day of March, 1885, and in that event the judgment be so modified, and as modified affirmed, without costs of this appeal to either party.

Dwight, P. L, Lewis and Haight, JJ., concurred.

Judgment appealed from reversed and new trial granted, with costs to abide the event, unless within twenty days the plaintiff stipulates to reduce the recovery of damages to the sum of $4,542.80 and interest thereon from March 21, 1885. If such stipulation is given the judgment is modified accordingly • and as so modified affirmed, without costs of this appeal to either party.