author: Hakdin, P. J.:

text:
    John Schulte, Appellant, v. Lestershire Boot and Shoe Company and Others, Respondents.

      Mechanic's lien — costs subsequent to an offer of judgment — interest, after offer, not considered — sections 14 and 19 of chapter 842 of 1885.
    Where the defendant in an action has offered to allow j udgment to he taken against him for a specified amount, the plaintiff is not entitled to add the accumulated interest from the time that the offer might have been accepted to the time of the recovery,- for the purpose of claiming that the recovery is more favorable than the offer.
    The general rule laid down in section 14 of chapter 342 of .the Laws of 1885 must be construed and applied in harmony with the rule which is prescribed in section 19 thereof.
    Where the plaintiff in an action brought to foreclose a mechanic’s lien does not recover a judgment more favorable than one that was offered him by the owner of the premises, he is not entitled to recover costs subsequent to the time when he might have accepted the offer, but, on the contrary, he must pay any costs in the action incurred by the owner subsequent to the time of the offer.
    Such an action was referred to a referee, and the referee ordered judgment in favor of the plaintiff for the amount, for which the owner offered to allow the plaintiff to take judgment, “with the costs of this action.”

      Held, that it must be assumed that the referee intended that the plaintiff should recover only such costs as he was entitled to under the statute.
    Appeal by the plaintiff, John Schulte, from that portion of an order of the Supreme Court, made at the Broome Special Term and entered in the office of the clerk of the county of Broome on the 7th day of March, 1895, which directs the clerk of Broome county upon the retaxation of costs to disallow and deduct from the plaintiff’s bill of costs all his costs and disbursements incurred after a specified date, and which further directs the clerk to tax against the plaintiff in favor of the defendants the defendants’ costs and disbursements incurred after such date.

      S. Mack /Smith, for the appellant.

      Carver, Deyo <& Jenkins, for the respondents.
   Hakdin, P. J.:

Pursuant to a contract entered into between the plaintiff and the Lestershire Boot and Shoe Company, the plaintiff performed work, labor and services and furnished materials necessary to erect a building upon the property of the company, and after the completion of the building, and on or about the 12th of July, 1892, the plaintiff filed a notice of lien, in writing, in the office of the clerk of the county of Broome, where said premises were situated, and thereafter commenced this action to enforce the lien. The Lestershire Boot and Shoe Company answered the complaint, and the issue joined was referred and tried, and the referee in his report finds that January 31, 1894, the defendant Lestershire Boot and Shoe Company served upon the plaintiff’s attorney an offer To pay into court the sum of one thousand (SI,000) dollars and interest thereon from the 12th day of July, 1892, in discharge of plaintiff’s lien.” The referee, as a conclusion of law, found, viz.: “ The defendant, the Lester-shire Boot and Shoe Company, is indebted to the plaintiff herein in the sum of one thousand dollars, with interest thereon from July 12th, 1892,. amounting altogether at this date to $1,128.33.” The referee ordered judgment in accordance with his findings with the costs of this action.” Plaintiff, having entered a judgment for full costs, was met by a motion to retax the costs and to disallow any costs to the plaintiff after the delivery of the offer, and by the claim of the defendant that it was entitled to costs after the refusal to accept the offer, inasmuch as the recovery had not been more favorable than the offer made by the Lestershire Boot and Shoe Company. If the plaintiff had accepted the offer he would have received $1,000 and interest from July twelfth. By the decision of the referee he received only $1,000 and interest from the twelfth of July, and the recovery, therefore, is not any more favorable than the offer. The plaintiff is not entitled to add the accumulated interest from the time that the offer might have been accepted to the time of the recovery for the purpose of claiming that the recovery is more favorable than the offer.

(2) In chapter 342 of the Laws of 1885 it is provided in section 14 that “ Costs and disbursements, except in courts not of record, in which they shall be the same as allowed in civil actions in such court’s, shall rest in the discretion of the court, and may be awarded to or against the plaintiff or plaintiffs, defendant or defendants, or any or either, of them as may be just and equitable except as provided in section 19 of this act, and shall be included in the judgment recovered therein. * * * When an action is brought in a court of record such direction shall be made, in the discretion of the court, as to the payment of costs as shall be just and equitable, and the judgment entered shall specify to whom and by whom the costs are to be paid.” The general rule laid down in section 14 is to be construed and applied in harmony with the rule which is prescribed in section 19. In turning to section 19, we find it authorizes the owner or owners in writing, to offer to pay into court any amount stated in the offer. It is further provided in this section: If the offer is accepted in writing within ten days thereafter, the court in which the action is pending may make an order that * * * the lien or liens be discharged. * * * In case the offer shall not be accepted within ten days, and the plaintiff fails to recover any more favorable judgment against the property, he shall pay any costs in the action incurred by the owner from the time of the offer.” Applying the rule laid down in section 19, we think it is apparent that, inasmuch as the plaintiff did not recover any more favorable judgment than such an one as was offered to him, he is not entitled to costs subsequent to the time when he might have accepted the offer, and, on the contrary, he should pay any costs in the action incurred by the owner from' the time of the offer.” (Hall v. Dennerlein, 39 N. Y. St. Repr. 67; Pfister v. Stumm, 7 Misc. Rep. 526; Mull v. Jones, 18 N. Y. Supp. 359; Budd v. Jackson, 26 How. Pr. 398; Johnston v. Catlin, 51 N. Y. 652.)

(3) We think that section 14, conferring discretion upon the court as to the costs,' must be construed with provisions in section 19. When so construed it must be assumed that the referee when he awarded the costs to the plaintiff only intended ptaintiff should receive such costs as he was entitled to under the statute. It was not within the discretion of the referee to assume power to overrule the intention of the statute.

Our attention is called to Woodford v. Bucklin, (14 Hun, 444). In that case it was held by this court that if the referee had exercised his discretion in an equity action the same could not be changed by the Special Term.

The doctrine of that case was approved in Rosa v. Jenkins (31 Hun, 384; Couch v. Millard (41 id. 215); Dilts v. Sweet (21 N. Y. Supp. 57).

In the case in hand the referee had no power to overrule the express provisions of the statute. (Chapin v. Churchill, 12 How. Pr. 361.) In the latter case it was held that the court had no right to disregard the statute relating to costs. It was said in Cythe v. La Fontain (51 Barb. 195) the court is not authorized to deal with the question of costs except in accordance with the provisions of the statute. We think the decision reached at the Special Term is correct and that the order should he affirmed, with ten dollars costs and disbursements.

MartiN and MerwiN, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.


source: Caselaw Access Project

author: HaediN, P. J.:

license: Public Domain

text:
    Hannah M. Van Epps, Respondent, v. Gilbert H. Harnes, Appellant.

      Verdict of a jury, when not set aside.

    An appellate court will not set aside the verdict of a jury rendered upon conflicting evidence, on the ground that improper testimony was admitted, unless it appears that the result would have been different had the testimony objected to been omitted.
    Appeal by the defendant, Gilbert II. Harnes, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Madison on the 6th day of March, 1894, upon the decision of the court rendered after a trial at the Madison Special Term, assisted by the verdict of a jury upon special questions of fact rendered at the Madison Circuit, adjudging that a certain mortgage executed by the plaintiff to tlie defendant bad been fully paid and satisfied, and also from an order made at the Madison Special Term on the 3d day of November, 1894, and entered in said clerk’s office denying the defendant’s motion for a new trial made upon a case containing exceptions.
    In this case, after the verdict was rendered answering two specific questions, the judge holding the Circuit found the facts in accordance with the verdict of the jury. The following questions were submitted to the jury : “1. Has the mortgage executed by plaintiff to defendant in the sum of $200, bearing date the first day of June, 1887, and becoming due and payable on the first day of September, 1890, described and referred to in the complaint and answer herein, been paid and satisfied ? ” The j nry answered this question by finding “ yes.” The second question was as follows : “ 2. If the said mortgage has not been fully paid and satisfied, how much remains due and unpaid thereon at the time of the trial of this action?” The jury answered this question by finding “ nothing.”
    Prior to the commencement of this action the plaintiff caused to be prepared a satisfaction piece of the mortgage, and waited upon the defendant with an officer capable of taking acknowledgements and asked him to execute and certify that the mortgage was paid, and he refused. Thereupon this action was commenced, and the issues of fact were brought to trial at a Circuit Court in Madison county.

      Lyman c& Hitehoook, for the appellant.

      8. M. Wing, for the respondent.
   HaediN, P. J.:

Upon conflicting evidence the jury have found that the mortgage in question was paid. Plaintiff testified it was paid. Her husband supported her, and to some extent she was corroborated by her sister, Mrs. Devoe. On the other hand, the defendant testified the mortgage was not paid, and called his sister, Lizzie Harnes, who gave some testimony tending to corroborate some of the facts and circumstances stated by the defendant in regard to one of the payments. If the jury had believed the testimony of the defendant and discredited the testimony of the plaintiff herself, the verdict would have been for the defendant. If, on the other hand, the jury had believed the testimony of the plaintiff herself and discredited the testimony of the defendant alone, their verdict might have been for the plaintiff. In determining where the weight of the evidence was the jury liad a right to consider the testimony of the plaintiff and of the defendant in connection with the supporting evidence given in behalf of the plaintiff found in the testimony of Yan Epps, the husband, and Mrs. Devoe, the sister, whose testimony related more particularly to the alleged payment of the $100, which was the pivotal question of fact at the trial. We think the weight of the evidence Supports the verdict of the jury.

(2) It is insisted in behalf of the appellant that an error was committed in allowing the witness Jane Devoe to answer questions propounded to her upon the occasion of the plaintiff visiting her brother when she alleges the $100 was paid. 'When the question was propounded to her which called for what she saw between the plaintiff and defendant “ concerning the payment of this money on the mortgage,” she replied, “ Can I commence at the beginning and tell?” Thereupon the court remarked, “Yes, and that is the better way.” The witness then stated, “Well, as we drove up they were nearly ready to go home, I think, to their own house, Mrs. Yan Epps and her husband, and we asked them why they need hurry, as we had just come they could stay a little longer, so Mr. Yan Epps went to the barn with Gilbert and she went in, and'says, c I have come to see Gilbert about the mortgage.’ ” After this answer was delivered, according to the case, the defendant’s counsel objected. Thereupon the court interrupted, “'Was that in Gilbert’s presence ? ” The witness answered, “ Oh no; it was while he was at the barn.” Then it seems the defendant’s counsel again objected and moved to strike it out as being incompetent and hearsay and not in the presence of the defendant. Thereupon the court stated, viz.: “ The conversation is incompetent in that form; you may state instead of that that she spoke about paying Gilbert money, just the fact.” The witness answered, “ Well, she did.” Thereupon the defendant’s counsel objected to and moved to strike out the answer upon the ground that it is incompetent and immaterial and not in the presence of the defendant. To that objection and motion the court replied, “I will rule and hold that she may say as a fact that the subject of paying Gilbert money was mentioned by Mrs. Van Epps, tlie plaintiff, there 'at that time, simply as a circumstance while the defendant was at the barn.” To that ruling an exception was taken, and thereupon the court observed: “Now the question is, what followed. I will admit it, for the purpose of seeing whether it had connection with something else that she sawr. Go on, except do not mention any conversation not in Gilbert’s presence. Tell what else occurred after she spoke about the money.” The witness answered: “ She said-” thereupon the court interrupted her and said, “No. Not what she said. Did she speak about seeing Gilbert with reference to the mortgage and some money í ” She answered, “ She did,” and thereafter there was an objection, a ruling and an exception. It is now insisted that hearsay evidence was taken to the prejudice of the defendant. Evidently the court intended to limit, in its ruling, the witness to the introductory fact, with a view of seeing why the witness was able to remember what occurred subsequently. Prior to this ruling the plaintiff-had been cross-examined by the defendant, and during that examination she had testified, viz.: “ I went to the defendant’s that day to pay the mortgage. That is how I happened to go. That was my sole business there. I did not go there to inquire about the funeral, for I didn’t know it until I got there.” It seems that this testimony was drawn from the plaintiff as a witness by the defendant’s counsel. Subseq'uently the husband of the plaintiff was cross-examined by the defendant’s counsel, and during the examination he testified as follows: “ My wife “went there that day to pay him $100. * * * After supper my wife told defendant she came to pay the mortgage, and he said, all right, and she gave him the money and he counted it. In the dining room she gave him the money.” It is thus seen that it was proven by two witnesses that the object of the plaintiff’s visit on the occasion spoken of was to pay the $100 upon the mortgage, and apparently the defendant drew from the plaintiff and from her husband the fact that such was the object of the visit. No evidence was given in the progress of the trial tending to indicate any other purpose in making the visit to the defendant’s house, and if the remarks made by Mrs. Devoe, as to the object of her visit, were stricken from the ease, still there would remain the testimony to the effect that the plaintiff visited tlie defendant on tlie occasion spoken of for tlie purpose of paying tlie $100 on tlie mortgage. It is, therefore, difficult to see how the defendant suffered by the remark made by Mrs. Devoe, that she had reached tlie house for the purpose of paying tlie money, even if it were assumed to be inadmissible. Under such circumstances we are inclined to say that the exceptions taken dur-iug tlie progress of the testimony of Mrs. Devoe do not present prejudicial error which should lead us to disturb tlie verdict of the jury. We feel justified in saying that the result” would not have been different had the remark made by Mrs. Devoe been omitted. The rule laid down in Root v. Borst (142 N. Y. 69), near the close of the opinion, does not apply. The rulings were much discussed in an opinion delivered by the Special Term when the motiou for a new trial on a case and exceptions was heard, and that court seems to have been of the opinion “ that substantial justice does not require that a new trial should be granted.” (Code Civ. Proc.. § 1003.) Under that section it has been said the court may disregard errors in the admission of evidence where substantial justice has been done. (Henderson v. Fullerton, 54 How. Pr. 422.)

A careful study of the case found in the appeal book has led us to the conclusion that the verdict and decision are in accordance with the weight of the evidence and the apparent equity and justice of the case.

The judgment and order should be affirmed, with costs.

Martin and Merwin, JJ., concurred.

Judgment and order affirmed, with costs.


author: MARTIN, J. :

text:
    Gardner H. Wheeler, as Receiver, etc., of Alfred E. Crane, Appellant, v. Jewell Vanderveer, Respondent.

      Replevin — tight to possession essential — presumption of ownership from possession.

    The action, of replevin is a possessory action partly in reto, and in order to maintain it the plaintiff must show that he was entitled to the possession of the property at the time of the commencement of the action. The possession of personal property is presumptive evidence of ownership.

      Appeal by the plaintiff, Gardner H. Wheeler, as receiver, etc., of Alfred E. Crane, from a judgment of the Onondaga County Court in favor of the defendant, entered in the clerk’s office of said county on the 9th day of April, 1895, affirming a judgment of nonsuit rendered by the Municipal Court of the city of Syracuse, with notice of an intention to bring up for review upon such appeal an order of said Onondaga County Court for judgment affirming the judgment of the Municipal Court of the city of Syracuse.

      II. E. Miller, for the appellant.

      Giles B. Everson, for the respondent.
   MARTIN, J. :

Upon the trial the plaintiff was nonsuited. The grounds upon which the plaintiff now seeks to reverse the judgment herein are twofold : 1. That the court erred in rejecting evidence offered by him as to the price paid for the property in question; and, 2. That the court erred in granting the defendant’s motion for a nonsuit.

As evidence of the price paid for the property could have been material only upon the question of damages, the rulings of the court in rejecting it, if erroneous, were harmless, if the defendant’s motion for a nonsuit was properly granted. If the nonsuit was improperly granted, the judgment must be reversed for that reason, and, consequently, it is unnecessary to discuss or determine the question of the propriety of the rulings of the trial court in rejecting that evidence.

The action was replevin, and was to recover certain personal property which it is claimed belonged to Alfred E. Crane and to which the plaintiff claimed to have acquired title as receiver appointed in proceedings supplementary to execution, under a judgment recovered against the judgment debtor, Alfred E. Crane. That the plaintiff was duly appointed as such receiver there is no doubt. That the judgment debtor was once the owner of the property in question is equally clear. But that he was such owner at the time when the proceedings supplementary to execution were commenced was not proved.

The most that can be said of the plaintiff’s proof is that it tended to show that at least six months before the proceedings, which resulted in his appointment, were instituted, the judgment debtor was the owner of at least a portion of the property in question. On the other hand, the evidence drawn out on the cross-examination of the plaintiff’s witaesses tended to show that, at the time such proceedings were instituted, and when the plaintiff was appointed receiver, the judgment debtor did not have the title to, the possession of, or the right to the possession of such property. A careful reading of all the evidence given upon the trial has led us to the conclusion that it was insufficient to sustain the plaintiff’s cause of action, and that the trial court was justified in nonsuiting him.

The purpose of the action of replevin is the recovery of specific personal property. While the action is of the same general class as trespass and trover, it is a possessory action, is partly in rem, and is unlike either. To maintain the action, the plaintiff must show that he is entitled to the possession of the property at the commencement of the action. (Austin v. Wauful, 13 N. Y. Supp. 184; Wood v. Orser, 25 N. Y. 348; Redman v. Hendricks, 3 N. Y. Super. Ct. [1 Sandf.] 32; Duncan v. Brennan, 83 N. Y. 487; Thompson v. St. Nicholas Nat. Bank, 113 id. 325, 333.) This the plaintiff in this action failed to do. It is obvious that the defendant had possession of the property when this action was commenced. This was presumptive evidence of his ownership. (Wickes v. The Adirondack Co., 2 Hun, 112; Fish v. Skut, 21 Barb. 333; 1 Greenl. on Ev. § 34, and cases cited in note.) This presumption was not overcome by the plaintiff’s evidence. Moreover, the proof tended to show that the defendant’s title had been transferred long before the judgment creditor had obtained his judgment.

The judgment of the County Court should be affirmed, with costs.

HaRDIN, P. J., and MerwiN, J., concurred.

Judgment of the County Court affirmed, with costs.


author: MaetiN, J.: MerwiN, J".:

text:
    Edward P. Bates and Others, Respondents, v. Salt Springs National Bank of Syracuse and Others, Appellants, Impleaded with Others.

      Mechanic’s lien — a contract providing that no payment should he made until proof is f urnished that no liens exist — effect thereof, on the rights of lienors.

    On December 5, 1890, tlie trustees of tlie Masonic Hall and Asylum Fund entered into an agreement with tlie firm of Dickison & Allen, whereby the latter agreed to erect a Masonic home for §189,500, payable in twelve installments, eleven to be paid as the work progressed, and the twelfth (which was the sum of §28,500) to be paid when the building was finished and accepted. The contract contained tlie following provision: “It is also agreed that no payment shall be made hereunder until the said parties of the second part (the contractors) shall have obtained a certificate from the clerk of Oneida county showing that at the date of such payment no liens or claims have been recorded or filed against said premises or building which are then unsatisfied of record.”
    On February 14, 1891, the contractors assigned to the Salt Springs National Bank of Syracuse the final payment contemplated by the contract as collateral security for present and future indebtedness; notice of which assignment was given to tlie trustees of the Masonic Hall and Asylum Fund on April 28, 1892.
    On May 81, 1892, and at various times between that date and July 17, 1892 materialmen filed liens against the property under chapter 342 of the Laws of 1885.
    On June 4, 1892, the contractors assigned to the bank as collateral security all payments due or to become due them, including all claims for extra work; of which assignment the trustees received notice on June 6,1892, upon which day the contractors abandoned the work, and requested the trustees to finish it, which they did, at a total expense, including §800 allowed as damages for a breach of the contract, of §9,278.82. After allowing this sum there remained due the contractors from the trustees §28,788.49.
    ‘On the 6th and 9th days of June, 1892, the bank recovered large judgments against the contractors, and a receiver of their property was appointed.
    In an action brought by the lienors to enforce their liens against the funds due the contractors,

      Held, that the provision in the contract forbidding any payment by the trustees, except on proof furnished by the contractors that no liens existed against the promises, was one intended by the parties to it not only for the protection of the trustees, but also for that of the lienors;
    That the rights of the lienors were superior to those of the bank, and that they were entitled to be paid first in the order in which their liens were filed.
    Appeal by tlie defendants, the Salt Springs National Bank of Syracuse and others, from a judgment' of tlie Supreme Court in. favor of the plaintiffs, entered in the office of the clerk of the county of Oneida on the 28th day of May, 1894, upon the decision of the court rendered after a trial at the Oneida Special Term.
    It appeared from the findings of the court that there were originally two actions, one brought by the plaintiff Bates, whose lien was filed on June 6, 1892, and the other by ITenry "W. Millar and John L. Murray, who claimed to be the assignees of a lien, notice of which was filed by Cahill Brothers May 31,1892, both being against substantially the same defendants. These actions were consolidated by an order of the court and tried as one action.

      J. William Wilson, for appellant Salt Springs National Bank.

      William M. Boss, attorney in person, as receiver and appellant.

      W. 8. Andrews, for appellant Catharine Dickison.

      Itisley d¡ liobinson, for respondent Bates.

      William Kernan, for respondents Millar & Murray.

      8. M. Lindsley, for respondent Utica Planing Mill.
   MaetiN, J.:

On December 5, 1890, the firm of Dickison & Allen entered into-a contract with the trustees of the Masonic Hall and Asylum Fund for the erection of a Masonic home near Htica. The contract price was $139,500, to be paid in twelve installments, eleven of which were to be made during the progress of the work, and the twelfth,, which was the suni of $28,500, was to be paid when the buildings, were completely finished and accepted.

The contract between the parties also contained the following provision : “ It is also agreed that no payment shall be made hereunder until the said parties of the second part [the contractors] shall have obtained a certificate from the clerk of Oueida county showing-that at the date.of such payment no liens or claims have been recorded or filed against said premises or building which are then unsatisfied of record.”

On February 14, 1891, the contractors, Dickison & Allen, by an assignment in writing, which recited, among other things, that by tbe contract between tlie trustees and Dickison & Allen tbe trustees were to retain out of tbe moneys which became due from time to time the sum of twenty per cent until tbe final completion of tbe contract, at which time tbe entire sum so retained was to become due and payable, sold, transferred and set over to tbe Salt Springs National Bank all their right, title and interest in and to tbe aforesaid “ last payment of twenty per cent, pursuant to tbe terms of the contract,” as collateral security for their existing and future -indebtedness to tbe bank. Notice of this assignment was given to tbe trustees on tbe 28th of April, 1892. On May 31,1892, Patrick and 'William II. Cahill, who were sub-contractors of Dickison & Allen and assignors of Millar & Murray, filed a mechanic’s lien upon tbe building. On June 4, 1892, tbe Utica Planing Mill also filed a mechanic’s lien upon tbe building and premises. On tbe same day Dickison & Allen assigned to tbe bank as collateral security all payments now and which hereafter may become due and payable upon said contract, including payments due and to become due from time to time during tbe progress of tbe erection •of said building, and said twenty per cent * * * and also ail ■sums and moneys due, or wbicb may become due, for extras, including labor and materials furnished in tbe erection of said building.” Notice of this assignment was received by the trustees on June sixth. Thereupon Dickison & Allen, finding themselves insolvent, abandoned tbe work, and requested the trustees to finish the building.

Subsequently, and between June 5 and July IT, 1892, tbe other liens of the parties, aggregating over $18,000, were filed by tbe creditors of Dickison & Allen. If tbe home had been finished on June sixth there would have been due the contractors, including ■$1,6T2.92 for extra work, tbe sum of $33,06T.31.

In completing tbe work upon tbe building, as tbe contract permitted them to do, tbe trustees expended $8,4T8.82, and it was conceded that they were entitled to $800 as damages for a breach of tbe contract, thus leaving unpaid thereon the sum of $23,T88.49.

A judgment for $2T,494.24 in favor of the bank and against Dickison & Allen was recovered and entered in Onondaga county on the 6th of June, 1892. Subsequently, and on the same day, in proceedings supplementary to execution, the defendant Ross was appointed receiver of tlie joint and several property of Dickison & Allen, and be duly qualified as sucb as provided by the order of his appointment.

On the 9th day of June, 1892, another judgment for $10,585.42 in favor of the bank and against Dickison & Allen was entered in Onondaga county, and on the following day the receivership of the defendant Ross was extended to this judgment.

This case was tried before the court without a jury, and it was held that the parties who were lienors by virtue of mechanics’ liens filed by them were entitled to be first paid the amount of their respective liens, with costs, and that the bank was entitled only to the balance. The correctness of this decision is challenged by the appellants, who persistently contend that it cannot be upheld either upon principle or authority. This question is the .most important one in the case, and if the decision of the trial court was correct, practically the only one that need be considered on this appeal.

The respondents seek to uphold the judgment upon the ground that the amount unpaid upon the contract was not duo by reason of the clause in it which provided that no payment should be made until the contractors produced the certificate of the clerk of Oneida county that no liens were unsatisfied. We do not think the judgment can be sustained upon that ground. It may be assumed that, as between the trustees and the contractors, nothing became due until the clerk gave the required certificate,' but that in no way aids in solving the question here.

Under the Mechanics’ Lien Law (Laws 1885, chap. 342) the filing of the prescribed notice originates the lien, and until this is done the laborer and materialman has no preferential right to be paid out of the sum due the contractor from the owner of the building. If the contract contains no provision to the contrary, and before notice is filed the contractor assigns to a creditor in payment of his debt the whole or any portion of the moneys due or to become due to him on his contract, the assignee is entitled to the same in preference to the lienor. The court cannot extend purely statutory rights, such as are given by that act, beyond the terms of the statute. There is no provision in the statute of 1885 which in any way prevents a contractor from paying his creditors out of the money due or to become due upon his contract to the exclusion of laborers or materialmen who have not filed liens. (Stevens v. Ogden, 130 N. Y. 182.)

Tlie question to be determined in this case is whether tlie amount unpaid on the contract belongs to the bank by virtue of its assignments, or whether it belongs to the lienholders to the extent of their liens. If it belonged to the former, then it was clearly the duty of the court to set aside the liens, so that the bank could procure the proper certificate, and thus obtain the fund to which it was in fact entitled. To say that the bank was not entitled to this fund because it could not procure the proper certificate, in no way established the fact that the fund belonged to the lienholders. It may be, if this action had .not been brought, that before the bank could have recovered this fund, it would have been compelled to bring an action against the lienors to have their liens set aside as invalid, upon the ground that there was no fund or property to which their liens attached, and that the existence of such liens was an obstacle to its recovery of the fund to which it had title, which should be removed. But, if so, it has no bearing whatever upon the question in whom the title to this fund rested.

If the judgment in this case can be sustained it must.be upon the ground that it was the intention of the parties to the original contract that persons who labored or furnished materials in the performance of the contract should be protected, and that such was the purpose of the provision quoted.

The learned trial judge found : That the provision above quoted was inserted in the contract to protect the trustees of the Masonic Plall and Asylum Fund in making payments, and was intended for the benefit and protection of all persons, including the parties to this action, who should file in the proper clerk’s office lawful liens or claims upon said building and premises against the interests and rights of Dickison & Allen under said contract, and the payments to be made thereunder to them by the said defendant, the Trustees of the Masonic Hall and Asylum Fund.” If this finding can be sustained it must be upon the ground that that was a proper construction of the contract. An examination of the provision upon which the court based its decision discloses that the agreement was that no payment should be made until the required certificate was obtained. The provision seems to be one absolutely prohibiting payment until such certificate is furnished. From this provision can it be properly said that its purpose was the protection of those having liens or claims upon the property as well as the protection of the trustees ?

In Mechanics & Traders' Nat. Bank v. The Mayor (58 How. Pr. 207), where the contractor had assigned to the plaintiff all moneys due or to grow due thereon, the contract contained the following clause: And the said party of the second part hereby further agrees that he will furnish said commissioner with satisfactory evidence that all persons who have done work or furnished materials under this agreement, and who may have given written notice to the said commissioner, before or within ten days after the completion of the work aforesaid, that any balance for such work or materials is still due and unpaid, have been fully paid or secured 'such balance. And in case such evidence be not furnished as aforesaid, such amount as may be necessary to meet the claims of the persons aforesaid shall be retained from any moneys due the said party of the second part, under this agreement, until the liabilities aforesaid shall be fully discharged, .or such notice withdrawn.” In that case it was held that the purpose of this provision was to protect those who had performed labor or furnished materials in the execution of the contract; that the lienors who had filed their claims in accordance with the terms of the contract were entitled to be paid in the order in which their claims were filed, and that the plaintiff, as assignee of the contractor, took subject to the equities existing between the contractor and the parties doing the work and furnishing the materials under the contract, or which, under the contract, the lienors might enforce against him. That case was affirmed by the General Term of the first department (27 Hun, 467).

In Murphy v. Bowery Nat. Bank (30 Hun, 40), where substantially the same provision was contained in the contract, the same doctrine was held, and persons performing labor and furnishing materials were allowed to recover in preference to the contractor’s assignee.

Again, in Merchants & Traders' Nat. Bank v. Winant (16 N. Y. St. Repr. 902), where the contract contained practically the same provision, the contractor Gavin assigned to the plaintiff the moneys due and to grow due under such contract, in November, 1875. In July, 1887, the defendant filed notice of lien with the comptroller for the amount due him from Gavin. The plaintiff subsequently brought suit for the balance due upon Gavin’s contract, and the defendant was made a party because of the notice he filed with the comptroller, and the principal controversy between the parties was whether the defendant had a lien upon the moneys. It was held by the General Term that under the provisions of the contract, if the defendant had served the notice required, he would be entitled to be protected against the assignment to the plaintiff made before the moneys were earned by the contractor. That court, however, held that the notice was not filed with the proper officer. Upon appeal to the Court of Appeals in that case (123 N. Y. 2G5), it was held that it was to be assumed that the plaintiff, in-advancing moneys to the contractor 'under the security of the assignment, did so in the belief that the contractor’s compensation, over and above his outlays, would reimburse such advances, and that it contemplated only such sums as would belong to the contractor after the discharge of his indebtedness to those engaged under him in doing the work, and that the plaintiff was only entitled to be paid whatever moneys the contractor himself could legally demand of the city under the contract. In delivering the opinion in that case, Gbay, J., said: Plaintiff must be deemed to have contemplated only such receipts of moneys, from the payments by the city, as would belong to the contractor after the discharge of his indebtedness to employees and others engaged under him in the doing of the work called for. Certainly, any other view of the situation, at the time of the assignment to plaintiff, would seem to involve some expectation by plaintiff of gain through technically defeating the payment of its assignor’s just contractual debts. That is not a very moral attitude for it to take; nor is it one which appeals to the consideration of the court; and, yet, it would come to that if it should be held that the appellant’s claim is not to be paid, for the alleged want of a strict compliance with the contract requisites as to. notices of claim. The plaintiff cannot occupy any better position than the contractor would occupy, if he was now demanding payment from the city.”

An examination of the case of Merchants & Traders' Nat. Bank v. The Mayor (97 N. Y. 355) discloses the fact that the provision in the contracts to which we have already referred was required by an ordinance of the city of New York to be inserted in every contract for work for the city, and in that case it was held that the jrarpose of the ordinance was to secure to persons furnishing labor and materials some of the advantages given by the Mechanics’ Lien Law; that where notice nad been given the city held the money as trustee for the benefit of the persons giving such notice, and while, the city assumed no express liability to them, there was an implied obligation which could be enforced by the court.

Thus the only distinction between the cases cited and the case at bar, exeejDt so far as the language emjfioyed in the contracts is different, is that the contracts in the cases cited were made in pursuance of an ordinance which required such a clause to be inserted, while in this case the contract was a voluntary one made by the parties without any provision of law requiring it to be made in any given form or to contain any such provision. The apjaellants contend that as the contracts in the New York cases were made in pursuance of an ordinance of the city which has the force of a statute, and provides for the actual payment to the sub-contractor who entered upon the work with the ordinance in force, it creates a trust fund in the hands of the commissioner and makes him an equitable assignee of the fund for the jrarpose of paying the debt due the sub-contractor. It maybe that such was the effect of the ordinance and contracts in those cases, but the error in the appellants’ claim is that they assert that the ordinance provides for the actual payment to the sub-contractor, when in fact neither the ordinance nor the contracts contain any such jirevision. It only provides for the retention in the hands of the commissioner of a sufficient sum to pay such lienors until their claims are discharged The distinction contended for by the appellants between those cases and the case at bar is not quite apjjarent. If the ordinance and contract in those cases are to be construed as' making a provision for the protection of the lienors we' can see no' good reason why a contract voluntarily made between individuals containing the same m-o vision should not be construed in the same way. We are aware < ' ><> rule of construction which would justify a court in holding that the provisions in the New York contracts were to protect the lienors, and at the same time in holding that in a similar contract between individuals such a provision was not for the protection of the lienors.

When we compare the contracts we find that in those considered in the cases cited the provision was that the contractor should furnish the commissioner with satisfactory evidence that all persons who had done work or furnished materials and given notice had been fully paid or secured, and in case such evidence was not furnished the amount necessary to meet the claims should be retained until the liabilities were discharged or the notice withdrawn. In the case at bar the agreement was that no payment should be made until the required certificate had been furnished showing that there wrere no liens or claims unsatisfied of record. If it was properly held that the purpose of the ordinance of the city and the contract under it was to protect the interest of the laborers and materialmen it would seem that the provision in the contract in this case might well be construed as having for its purpose the protection of the lienors and materialmen, as well as the protection of the trustees. If such was its purpose, then clearly the judgment in this case was right and should be affirmed.

In Lauer v. Dunn (115 N. Y. 405) by the terms of the contract eighty per cent of the estimated value of the labor and materials, furnished was to be paid as the work progressed, and the remaining twenty per cent within thirty days after its completion. The contract also provided that, “ In ease any lien or liens * * * shall exist upon the property * * * at the time or times when. * * "" any payment is to be made, such payment, or such part thereof as shall be equal to not less than double the amount of or for which such lien or liens shall or can exist, shall not be payable at the said stipulated times, notwithstanding anything in this agreement to the contrary contained.” In that case it was held that the provisions quoted were for the protection of the owner, and meant simply that if when the moneys were payable to the contractor liens, existed, the owner might reserve from the fund in his hands double' the amount claimed under the liens, and also held that after notice of the assignment of the contractor’s interest in the moneys in the owner’s hands -the owner was bound to apply the fund to the payment of the claim assigned, and that it could not be paid to the lienors.

"While it must be admitted that it is somewhat difficult to distinguish clearly the case last cited from the case at bar, yet it is equally difficult to harmonize the decision in that case with the decisions in the cases previously cited. It is, therefore, not easy to determine whether the case at bar is controlled by the last decision, or by those previously cited. In this case the provision in the contract is different from that' in the contract in the case last cited, as in that double the amount was to be retained, thus perhaps showing that its only purpose was to compel the contractor to relieve the owner from any liens that might exist, and in case of their existence it was not to become payable as stipulated, while in the contract in the case at bar the provision was an absolute one that no payment should be made until the proper certifícate that there were no liens had been furnished. While the question is a border one, and by no means free from doubt, still we are disposed to hold that the construction placed upon this provision of the agreement by the trial judge was the correct one and that the judgment should be sustained.

As there are no other questions raised by the appellants which need be discussed, we think the judgment should be affirmed.

TIabdiN, P. J., concurred.

MerwiN, J".:

I think this judgment should be affirmed, not only upon the ground stated in the opinion of brother Martin, but also on the ground that, aside from the clause referred to in the contract, the equities of the lienors are superior to those of the bank or of the receiver. The liens were filed before the contract was completed and before the moneys were due.

Judgment affirmed, with costs.


author: JVIaetiN, J.:

text:
    The P. J. Sorg Company, Appellant, v. Charles E. Crouse and Daniel Ackerman, Respondents.

      Sales — implied •wa/n'anty — reasonable time to inspect — exouse for delap in inspection — faihire of consideration — partial rescission.

    Where a contract of sale is executory, and the article or merchandise is after-wards to be procured or to be manufactured by the vendor, there is an implied warranty that it shall be merchantable.
    If it is not merchantable the vendee may rescind the contract and return the merchandise, after lie has had a reasonable time within which to inspect it.
    The question of what is a reasonable time is usually one for the jury upon all the circumstances, including the situation of the parties, the liability of injury to the vendor by delay and the convenience and necessities of the vendee. When from the terms of the contract or the nature of the property the examination of it can only be made when the merchandise is used, and such is the mode of examination contemplated by the parties, the vendee is not in default until such test is made.
    Where the consideration of a contract of sale fails the vendee is entitled to recover moneys paid upon the contract.
    Where a vendee purchases merchandise under an agreement that he may return any part which proves unfit for use, he may rescind the contract and recover as to that part which proves to be unfit for use without rescinding as to the part which complies with the terms of the contract or returning it.
    Appeal by the plaintiff, Tbe P. J. Sorg Company, from a judgment of tbe Supreme Court in favor of the plaintiff, entered in tbe office of tbe clerk of tbe county of Onondaga on tbe 24th day of November, 1893, upon tbe verdict of a jury rendered after a trial at tbe Onondaga Circuit; also from a judgment in favor of tbe defendants for costs, entered in said clerk’s office on tbe 6tli day of December, 1893, and also from an order entered in said clerk’s office on tbe'21st day of December, 1893, denying tbe plaintiff’s motion for a new trial made upon tbe minutes.

      Charles 8. Kent, for tbe appellant.

      Thomas Ilogcm, for respondents.
   JVIaetiN, J.:

This action was to recover tbe price of a shipment of tobacco made November 30, 1892, amounting to $178.32, and for an alleged balance of $7.97 due upon a shipment made August 17, 1892.

Tlie principal controversy between tlie parties arose over the defendants’ counterclaim of $108 for twenty-four caddies of tobacco received and paid for by them and returned to the plaintiff, for the reason that the tobacco was mouldy and unmerchantable. This amount, with three dollars and forty-seven cents discount upon one of the bills of tobacco by reason of its having been paid for within ten days, was allowed the defendants and deducted from tlie amount of the plaintiff’s bills, leaving a balance due it which, with interest, amounted to the sum of seventy-seven dollars and forty cents, for which the jury rendered a verdict.

The evidence of the defendant Ackerman was to the effect that when tlie first arrangement was made between the plaintiff and the defendants, in pursuance of which the dealings between them commenced and under which all the tobacco received by the defendants was delivered, the representative of the plaintiff with whom such arrangement was made agreed with the defendants that the plaintiff would stand back of all the tobacco it sold the defendants, and if it was not satisfactory in every’ way, shape and manner, they could return it whenever they chose. Tlie defendant Crouse’s testimony as to this transaction was in substance that the plaintiff’s representative said to them that at any time any tobacco was bad, no matter how long they had it, they might return it. Under this arrangement with the plaintiff the defendants purchased and paid for a large quantity of tobacco. The tobacco so purchased and paid for included the twenty-four caddies in question, which were purchased a year or a year and a half before they were returned to the plaintiff. After the defendants had discovered that one caddy of this tobacco was musty, and, consequently, valueless, they offered to return it to the plaintiff, who refused to accept it, although an agent of the plaintiff directed them to set it one side and charge it to the plaintiff. When afterwards it was discovered that the remaining twenty-three caddies were also defective, the defendants had a conversation with the manager of the plaintiff in regard to them, who directed the defendants to do nothing with them until he returned to the factory, and stated that everything would be arranged to the defendants’ entire satisfaction. The plaintiff afterwards refused to allow the defendants for this tobacco or any portion of it. They thereupon shipped it to the plaintiff at its place of business, but it refused to accept such tobacco, and it still remains in the warehouse of the carrier who transported it.

The proof tended to show that, without practically destroying the value of this tobacco, no inspection of it could be made, nor its condition ascertained until it was placed in the hands of the retail dealer and was opened for use. That the tobacco in question was mouldy and worthless was proved and practically undisputed. The defendants’ proof was also to the effect that this kind of tobacco, when kept in a place like that in which the defendants kept this, would suffer no injury for five to ten years, and that it was the custom of the trade not to inspect such tobacco until it was opened for use.

Upon this evidence the court submitted to the jury the question whether the tobacco was unmerchantable when sold, whether the defendants could have properly inspected it when received by them, or before the time when its unmerchantable condition was discovered, and charged the jury that if it was examined in a proper way within a reasonable time to ascertain its condition, and it was unmerchantable when received by the defendants, they had a right to return the tobacco and receive credit for its value. Upon all these questions the jury found for the defendants.

The court held and submitted the caseto the jury upon the theory that, as this tobacco was manufactured by the plaintiff and purchased by the defendants in the regular course of trade, there was an implied warranty that it was merchantable. The rule seems to be well settled that where a contract is executory, and the article or merchandise is afterward to be procured or manufactured, the contract carries with it an obligation that the article shall be merchantable, and, if it is not, the vendee may rescind the contract and return it after he has had a reasonable time to inspect it. (Gallagher v. Waring, 9 Wend. 20; Hargous v. Stone, 5 N. Y. 86; Wood Mower & Reaper Co. v. Thayer, 50 Hun, 516, 521; 2 Benjamin on Sales, 865, § 989; Hoe v. Sanborn, 21 N. Y. 555, 562; Howard v. Hoey, 23 Wend. 350; Cleu v. McPherson, 14 N. Y. Super. Ct. [1 Bosw.] 480; Peck, v. Armstrong, 38 Barb. 215; Newbery v. Wall, 35 N. Y. Super. Ct. [3 J. & S.] 106.)

The appellant, however,- contends that the defendants did not inspect this tobacco within a reasonable time, and, therefore, it was accepted by tliem, and they could not sustain the counterclaim in this action. It is clearly the duty of a purchaser to act promptly in examining goods sent upon his order and thus determine whether they comply with it. He must also give prompt notice to the vendor of their rejection, if defective, or he cannot avail himself of his right to return them. The vendee has, however, a reasonable time in which to make such an examination, and what is a reasonable time is generally a question of fact to be determined by a jury upon all the circumstances, including the situation and liability of injury to the vendor by delay, and the convenience and necessities of the vendee. (Pierson v. Crooks, 115 N. Y. 539.) But when, from the terms of the contract or the nature of the property, the examination can be made only when it is used, and such was, therefore, the mode of examination contemplated, the vendee is not foreclosed until the test is made. (Gurney v. Atlan. &. G. W. Ry. Co., 58 N. Y. 358, 364.) Applying these rules to the facts in this case, we are of the opinion that the question whether the defendants examined this tobacco within a reasonable time was a question of fact for the jury, and that its finding upon that question must be regarded as conclusive, especially in view of the fact that it was agreed between the parties that the defendants might return any portion of the property that was not satisfactory whenever they chose, or at any time, no matter how long after they received it, if it was bad.. This agreement shows quite clearly that the plaintiff understood and recognized the fact that this kind of tobacco could not be inspected until it was sold to the retailer for use, and that that rule was to be applied in this case.

The plaintiff’s claim that the defendants could not recover for the tobacco thus returned after they had paid for it, cannot, we think, be sustained. The payments were -to be made in ten or sixty days. If made in the- former time, it was doubtless before the property readied the defendants, or they had any opportunity whatever to inspect it. It was thus paid to save the two per cent discount. Having the right under their agreement to return any portion of the tobacco purchased by them when found to be bad, it is quite manifest, we think, that upon such return they had the right to recover the money they had paid for the property returned, or have credit for it upon their account with the plaintiff. As was said in Pierson v. Crooks (supra, 554), the consideration upon which they paid the money failed and they were entitled to recover it back.

Nor do we think the plaintiff’s claim, that the defendants could not rescind their contract for the purchase of the tobacco in question, without also rescinding it as to the other tobacco which was purchased at the same time and returning that as well, can be sustained. (McKnight v. Devlin, 52 N. Y. 399.) By the express terms of the contract between the parties, it was agreed that they might return any of the tobacco that was bad, no matter how long they had had it.

Moreover, it may be said that if the evidence was not sufficient to justify the jury in finding that the tobacco in question was in the same condition when delivered by the plaintiff as when returned by the defendants, yet, under the contract by which the plaintiff agreed that the defendants might at any time return any tobacco that was bad, no matter how long they had had it, the defendants had the right to return the tobacco in question and to receive credit for its amount.

Having carefully examined ail the evidence given upon the trial, the judge’s charge and the exceptions and rulings by the trial court, we are of the opinion that there are no exceptions which would justify a reversal of the judgment; that the verdict is sustained by the evidence, and that the judgments should be affirmed.

IÍARDiN, P. J., and Meewin, J., concurred.

Judgments and order affirmed, with costs.


author: HabdiN, P. J.:

text:
    Benjamin N. Payne and Others, Appellants, v. Eureka Electric Company, Respondent.

      Change of venue —county in which the transactions took place, favored —decision of the Special Term, not disturbed upon appeal.

    On a motion made to change the place oí trial of an action it is proper for the Special Term to give weight and force to the circumstance that the cause of action arose in the county to which the venue is sought to ho changed and that the principal transactions involved in the issue of fact took place in such county.
    The exercise of the discretion vested in the Special Term to change the place of trial of an action for the convenience of witnesses will not be disturbed upon, appeal unless it clearly appears that such discretion was exercised improperly.

      Appeal by. the plaintiffs, Benjamin N. Payne and others, from an order of tlie Supreme Court, made at the Chemung Circuit and Special Term and entered in the office of the clerk of the county of Chemung on the 31st day of January, 1895, granting the defendant’s motion to change the place of trial of the action from the county of Chemung to the county of New York.
    Plaintiffs’ complaint alleges that on the twenty-ninth day of' October they sold and delivered to defendant one vertical engine at the agreed price and value of $270, and that on the 6th day of February, 1883, they sold and delivered to the defendant another vertical engine at the agreed price and of the value of $270, and that this action is brought to recover the purchase price of the two engines, to wit, the sum of $540.
    The answer consists of an admission that the defendant is a domestic corporation and that the plaintiff’s are co-partners as alleged, and admits the delivery to the defendant of two vertical engines and alleges that they were delivered under a contract, with the defendant, wherein it wTas stipulated that they were not to be paid for until thirty days after the same had been duly delivered, erected and found satisfactory to and accepted by the defendant and by the Southern Pacific Company under the terms and conditions of the contract or agreement between the defendant and the said Southern Pacific Company for the installation by the defendant of an electric light plant on said Southern Pacific Company’s steamers. The answer also alleges, that neither of the said engines was satisfactory to defendant or to-the Southern Pacific Company, and neither of them was accepted by the defendant or the Southern Pacific Company, and avers they were rejected. The answer contains some denials of the allegations, of the complaint and also sets up a counterclaim growing out of the circumstance that the defendant entered into a contract with the Southern Pacific Company wherein it agreed to furnish and install the electric light plant on each of ten steamers belonging to-the Southern Pacific Company, and that by reason of the failure of' the plaintiffs the defendant sustained damages. It is also averred that the defendant performed work, labor and services, and furnished materials in and about the erection, repair and removal of' the said engines at the recpest and for the use and benefit of the-plaintiffs of tlie value of fifty-six dollars and forty-three cents, and seeks to recover as a counterclaim therefor. Defendant’s principal place of business is in the city of New York. In August, 1892, at No. 41 Dey street, the plaintiffs had an office for the transaction of business, and at that date and from that place made the proposal to the defendant, whose principal office was at No. 18 Broadway, to furnish the defendant with vertical automatic engines to be delivered as called for F. O. B., dock New York, and to furnish an engineer to operate each engine for three hours after it was erected; that proposition led toi further correspondence and negotiations between the parties and to a contract for the two engines mentioned in the complaint.

      Baldwin <& Baldwin, for the appellants.

      Edwin O. Ward, for the respondent.
   HabdiN, P. J.:

It is very clear from the appeal book that the- contract entered into between the parties in respect to the two engines mentioned in the complaint was made in the city of New York, and it is apparent that the principal transactions, whicli are made the subject of inquiry by the issues of fact joined, occurred in the city of New York.

In Goodrich v. Vanderbilt (7 How. Pr. 467) it was held that the* place of trial of a transitory action should be in the county where the principal transactions between the parties occurred, unless the preponderance of witnesses is so great as to warrant the court to retain the place of the trial in another county.

Rule 48 of the General Rules of Practice authorizes a party who ■seeks to change the place of trial to state the nature of the controversy and to show how his witnesses are material, and to show where the cause of action or the defense or both of them arose ; ” and it then provides that those facts will be taken into consideration by the court in fixing the place of trial.” We think the Special Term properly gave weight and force to the circumstance that tire cause of action accrued in the city of New York, and that the principal transactions which are involved in the issue of fact arose in that city and county.

(2) Upon an inspection of the pleadings and the affidavits used at the Special Term we see there was a substantial conflict in respect to the issues of fact presented.by the papers to the Special Term, and that the Special Term was called upon to exercise its judgment, as well as its discretion, in determining whether the convenience of witnesses would’ bo best subserved by a trial in’ the county of Chemung or in the county of New York. "We are not. prepared to say that the discretion of the Special Term, -upon all the papers produced there, was abused or improperly exercised. It has been held in numerous cases that the discretion, when exercised,, will not be disturbed “ unless it clearly appears that it was improperly exercised.”

In Gilbert v. Shortsville Cart Company (39 N. Y. St. Repr. 763) this court held that the discretion of the Special Term, granting or refusing a motion, would not be disturbed unless it clearly appears, that it was improperly exercised. And in Reuben v. Andorsky (39 N. Y. St. Repr. 764) we applied the same rule. That rule was. also approved in the following cases: Schmidt v. Rochester Lithographic & Printing Co. (31 N. Y. St. Repr. 258); Carpenter v. Continental Ins. Co. (31 Hun, 78); McConihe v. Palmer (76 id. 116); Cromwell v. Romer (18 Wkly. Dig. 440); Fitzgerald v. Payn (78 Hun, 38).

In Lane v. Town of Hancock (29 N. Y. St. Repr. 635) it was. said: “ Unless there has been a plain and evident misuse of such discretion the decision of the Special Term must stand.” That, rule was quoted and approved in Nelson v. Nelson (50 N. Y. St. Repr. 446).

¥e have carefully looked into the affidavits and attended to the. criticisms made thereon by the appellants, and we are of the opinion that, notwithstanding the criticisms made thereon, the Special Term was called upon to exercise its discretion and judgment in respect, to the convenience of witnesses, and that the result reached at the Special Term does not indicate any impropriety in the action of the Special Term or any abuse of its discretion; we, therefore, should affirm its order.

MaetiN and IVIeewiN, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.


text:
    Novelty Manufacturing Company, Respondent, v. Lansing W. Connell and Bruce S. Aldrich, Appellants.

      Foreign corporation — what constitutes the transaction of business in the State of New York under § 15 of chap. 687 o/1892 — nature of the liability for a failure to file an annual report — rm'ification thereof — talcing a promissory note does not extinguish a debt.

    Where an order for goods was given to a foreign corporation outside the State of New York, and a portion of such goods was shipped on January 4, 1893, to the State of New York hy such corporation, the corporation cannot he said hy reason thereof to have heen doing business in the State of New York within the meaning- of section 15 of chapter 687 of the Laws of 1892.
    ’The restriction contained in section 15 of chapter 687 of the Laws of 1892 prohibiting a foreign corporation, doing business within the State of New York without a certificate, from maintaining any action in the State upon any contract made hy it in the State until it shall have procured such certificate, relates only to contracts made within the State of New York.
    The taking of a promissory note by .a creditor does not extinguish the debt. Where there is a failure to pay the note the creditor has the right to bring an action on the original obligation and produce the note on the trial to be delivered up.
    The liability imposed upon the .directors of a corporation for a failure to file the annual report, required by section 30 of chapter 688 of the Laws of 1892 is a liability created by the statute in the form of a penalty for specific acts of disobedience.
    Where an annual report of a corporation, made in pursuance of the provisions of chapter 688 of the Laws of 1892, is verified by a person who is both the vice-president and treasurer of the corporation, the verification is not irregular under section 30 of such act because the person verifying the same did not make separate oaths as vice-president and as treasurer.
    Appeal by the defendants, Lansing W. Connell and another, ■from a judgment of the Supremo Court in favor of the plaintiff, entered-in the office of the clerk of the county of Onondaga on the 11th day of February, 1895, upon the verdict of a jury rendered h>y direction of the court after a trial at the Onondaga Circuit.
    The plaintiff is a foreign corporation organized under the laws •of the State of Connecticut.

      IPmcodc, Beach, Pede <& Devine, for the appellants.

      George II. Bears, for the respondent.
   HaediN, P. J.:

Plaintiffs complaint states a sale of goods to, and thereby the creation of a debt in its favor against, the Syracuse Bamboo Furniture Company, a stock corporation organized under the laws of this State and having its principal place of business at Baldwinsville, in the county of Onondaga. The complaint also states that a judgment was recovered against the furniture company, and an execution on the judgment issued and returned wholly unsatisfied prior to the commencement of this action, and that the company is wholly insolvent. Defendants were directors of the company in 1892 and 1898, and this action is brought to collect plaintiff’s debt of them by reason of their alleged statutory liability arising from a non-compliance with the statute as to annual reports of the officers of the company. Defendants’ answer admits the incorporation of the plaintiff and the incorporation of the Syracuse Bamboo Furniture Company, and that it was a stock corporation, and that, at the times mentioned in the complaint, the defendants were directors of the furniture company. It also admits that said furniture company “ did not within the month of January; 1892, or at any other time prior to the 30th day of January, 1893, make a report and file the same in the office of the Secretary of State or in the office of the clerk of the county where its principal business office was located; that said company neglected to file any annual report required by law previous to the 31st day of January, 1893; that the defendants did not make and file a report with the Secretary of State within thirty days after 1st day of January, 1892, or the 1st day of April, 1892, or at any other time, a verified certificate stating they, or either of them, had endeavored to have such annual report made and filed, and that the officers or majority of the directors had refused and neglected to make and file the same.” They also admit the recovery of a judgment by plaintiff on account of said sale against the company for $534.13 and the docketing of the judgment, and that an execution was issued to the sheriff of Onondaga county before the commencement of this action and that it was returned wholly unsatisfied. When the proofs were all before the court a verdict was directed for the plaintiff for $566.94, being $514 debt and $52.94 interest thereon. Defendants challenge plaintiff’s right to recover $90.38 of the debt which was for goods sold and delivered January 4, 1893, and insist that tlie plaintiff bad not complied with chapter 687 of the Laws of 1892. That chapter was approved May 18, 1892. In its section 15 it is provided that “No such corporation now doing business in this State shall do business herein after December 31, 1892, without having procured such certificate from the Secretary of State, but any lawful contract previously made by the corporation may be performed and enforced within the State subsequent to such date.” The principal order for goods given to the plaintiff was November 1, 1892. It was delivered to plaintiff at Waterbury, Connecticut, and the goods were shipped from that State to the furniture company. The plaintiff was not thereby doing business within this State within the terms of the act, by malí in g the shipment of January 4, 1893. (Murphy Varnish Co. v. Connell et al., 10 Misc. Rep. 553.) We think the objection is unavailing to the defendants. (Lancaster v. A. I. Co., 140 N. Y. 576; Demarest v. Flack, 128 id. 205; Providence Steam & Gas Pipe Co. v. Connell, 86 Hun, 319; S. C., 33 N. Y. Supp. 482.) It is provided further in section 15 : “No foreign stock corporation doing business in this State without such certificate shall maintain any action in this State upon any contract made by it in this State until it shall have procured such certificate.” That restriction seems to relate to contracts made in this State. However, the Secretary of State issued to plaintiff the certificate required by the statute January 10, 1893. This action was not brought until the 23d of January, 1894. We think the objection to the item of ninety dollars and sixty-eight cents was properly overruled by the trial court. (Bertha Zinc & Mineral Co. v. Clute, 7 Misc. Rep. 123.)

(2) No error was committed in refusing to treat the unpaid promissory note of the bamboo company as a payment upon the indebtedness held by the plaintiff against it. The note was long past due and unpaid when this action was commenced, and could not be used to relieve the deféndants of their liability for the indebtedness which accrued in favor of the plaintiff while such neglect existed. (Providence Steam & Gas Pipe Co. v. Connell, supra.) The note did not merge or extinguish the debt. (Parrott v. Colby, 6 Hun, 55.) The liability of defendants here is in the nature of a penalty for failure to file a report required by the statute. (Gadsden v. Woodward, 103 N. Y. 244; Rogers v. Decker, 131 id. 492.)

It is a liability “ created anew by tbe statute in tbe form of a penalty for specific acts of disobedience.” (Finch, J., in Rogers v. Decker, supra.)

The taking of the note by tbe plaintiff did not extinguish tbe debt; when there was a failure to pay it tbe creditor bad a right to bring an action upon tbe original debt and produce tbe note upon tbe trial to be delivered up. (Jagger Iron Company v. Walker, 76 N. Y. 521; Lackawanna Mills v. Weil, 78 Hun, 348; S. C., 29 N. Y. Supp. 114.)

(3) Tbe proof shows an item of indebtedness created for thirteen dollars and eiglity-one cents, February 8, 1893. There was a report made by tbe directors bearing date January 30,1893, acknowledged that day, signed by Kenyon, Chapin and Crum, and verified by Kenyon on the same day. It was filed January 31, 1893. Tbe oath of Kenyon stated that be “is vice-president and treasurer of tbe Syracuse Bamboo Furniture Company, and that tbe foregoing certificate by him subscribed is true.” Section 30 of chapter 688 of tbe Laws of 1892 provides: “ Such report shall be signed by a majority of its directors, and verified by tbe oath of tbe president or vice-president and treasurer or secretary, and filed in tbe office of tbe Secretary of State and in tbe office of tbe county clerk of tbe county where its principal business office may be located. If such report is not so made and filed all -the directors of tbe corporation shall jointly and severally be personally liable for all the debts of tbe corporation then existing, and for all contracted before such report shall be made.” No question was made at tbe trial as to tbe fact that Kenyon, when he verified the report, was vice-president and treasurer of tbe company. Tbe language of the statute is that the report shall be verified “ by the oath of tbe president or vice-president and treasurer, or secretary,” and tbe verification is-a literal compliance with tbe terms, inasmuch as Kenyon was both vice-president and treasurer It would have added nothing to tbe essential evidence of tbe truth of tbe report if Kenyon bad made two. oaths, one as vice-president and tbe other as treasurer. The object, of tbe statute seems to have been answered by the report and verification of January 30, 1893, and we are not inclined to bold that-the report and verification thereof were irregular, or that there was. a failure to comply with tbe essential requirements of tbe statute in that regard. (Jones v. Butler, 40 N. E. Rep. 633.) We think the debt contracted on the 8th of February, 1893, after the report was filed, is not one for which the defendants are liable. The verdict and judgment should be reduced by striking therefrom thirteen dollars and eighty-one cents, and the interest allowed thereon.

(4) The proof failed to establish a counterclaim for the tools mentioned! in the answer and in the proofs. The evidence did not establish that they had been purchased by the plaintiff, or that the plaintiff had agreed to apply the value thereof upon its claim, nor that the plaintiff had converted them to its use. The trial judge properly refused to apply the value of the tools in reduction of the defendants’ liability. (Code, § 501; Clapp v. Wright, 21 Hun, 240.)

The foregoing views lead to the conclusion that the verdict was properly directed for the plaintiff, except as to the item of thirteen dollars and eiglity-one cents. The plaintiff will have an opportunity to stipulate to deduct that item and the interest on the same (from the 8th of March, 1893) from the verdict and judgment.

MartiN and MeewiN, JJ., concurred.

Judgment reversed and a new trial ordered, with costs to abide the event, unless plaintiff shall stipulate to deduct from the verdict and judgment thirteen dollars and eighty-one cents, and interest from the 8th of March, 1893, in which event the judgment, as so modified, is affirmed, without costs of the appeal to either party.


author:
HaRdiN, P. J.: MaiotN, J.:
      Merwin, J.:

text:
    The People of the State of New York ex rel. James McLoughlin, Respondent, v. Sylvester Wilson, Sheriff of Herkimer County, Appellant. Mary Haley, Appellant.

      Habeas corpus — a prisoner held under a final judgment will be remanded.

    Where it appears upon the return to a writ of habeas corpus that a prisoner is detained in custody by virtue of the final judgment or decree of a competent tribunal of civil or criminal jurisdiction, it is the duty of the judge, under section 3032 of the Code of Civil Procedure, to make an order remanding the prisoner to custody.

      Appeal by tlie defendant, Sylvester Wilson, personally and as sheriff of Herkimer county, and Mary Haley, a party to these proceedings, from an order of the County Court of Herkimer county, entered in the office of the clerk of the county of Herkimer on the 12th day of December, 1891, discharging the relator from the custody of the sheriff of Herkimer county upon the return to a writ of habeas corpus.
    On the 28th day of November, 1894, the county judge of Herki-mer county granted an order discharging the relator, James McLonghlin, from custody, which order contained the following language: “Ordered, that the said James McLonghlin be and he is forthwith discharged from the custody of the said Sylvester Wilson as such sheriff, and from further imprisonment, under and by virtue of said execution against the person, by which he was held and restrained by said sheriff.” The order was filed and entered in the’ Herkimer county clerk’s office December 12, 1894. The relator applied to the county judge on a petition dated November twenty-seventh, and verified on that day. The sheriff made a return to the writ of habeas corpus allowed by the county judge on the petition, in which return the sheriff stated that on the 27th day of November, 1894, and before said writ came to him, James McLonghlin was in his custody and detained by him in the county jail of Herkimer county under and by virtue of a commitment, a copy of which was returned, “ Issued by H. C. Brown, Escp, police justice of the village of Little Falls, in said county; that the said James McLoughlin is still in my custody under said commitment.” Notice of the issuance of the habeas corpus was given to Mary Haley. Annexed to the return was the execution given by the police justice upon a judgment rendered on the 31st of October, 1894, for the sum of forty dollars damages and one dollar and ninety cents costs. The execution contained the following recital: “ And, whereas, this action was brought to recover fpr damages to house and premises occupied by the defendant, and an order of arrest was granted and duly executed herein and not vacated.” The execution then proceeded to state in the usual form that the constable was required to satisfy the same out of the property of the defendant McLoughlin, and then it contained the following clause: “ And you are also commanded, if sufficient personal property cannot be found to satisfy the judgment, to arrest the said Janies McLoughlin and convey him to jail of the said county, there to remain until he pays the judgment or is discharged according to law, and do you return this execution within sixty days from the date hereof. Dated Nov. 20th, 1894. (Signed) H. C. BnowN, Police Justice.” Upon the return of the writ the relator traversed the return by stating, first, that said police justice, H. 0. Brown, Esq., had no authority and jurisdiction to issue said mandate or said execution against the person of this relator. And, second, the said execution issued by the police justice was “upon a judgment on contract and not in tort nor in any manner sounding in tort, nor for a penalty; that the complaint filed with the plaintiff in the action before the said police justice or in his court in which said judgment was rendered, and the evidence given before said police justice neither alleged or established, or tended to establish, any wrong or tort * * * and your relator further alleges that no order of arrest or any other process except a summons was issued or served therein, except the ordinary summons to commence the action.” In the complaint filed in the Justice’s Court in the suit of Mary Iialey against James McLoughlin it was averred: “That on or about the 1st of March, 1891, plaintiff rented her said premises to defendant, and defendant occupied said premises of plaintiff for about three years, and during such occupancy of defendant he damaged the said premises and house of this plaintiff to the amount of $40, of which amount he never paid any part, nor repaired any part of such damage, and is now owing this plaintiff, therefore, the sum of $40.00.”
    It appears by the minutes taken before the county judge upon the hearing before him that the papers already referred to were presented, “ and no other evidence was given,” and that, after hearing counsel for the parties, he made the order which is the subject of this appeal.

      G. J. Palmer, for the appellants.

      J. D. Peclcioith, for the respondent.
   HaRdiN, P. J.:

Section 2015 of the Code contains a general provision for the allowance of a writ of habeas corpus to be made, “ except in one of the eases specified in tbe next section.” Tbe next section, to wit, section 2016, prescribes expressly as follows: “ A person is not entitled to either of the writs specified in the last section in either of the following cases: * * * 2. Where he has been committed or is detained by virtue of the final judgment or decree of a competent tribunal of civil or criminal jurisdiction. * * * ” Section 2032 of the Code provides as follows : “ The court or judge must forthwith make a final order to remand the prisoner, if it appears that he is detained in custody for either of the following causes, and that the time for which he may legally be so detained has not expired. * * * 2. By virtue of the final judgment or decree of a competent tribunal of civil or criminal jurisdiction. * * *” Chapter 602 of the Laws of 1886 conferred upon the police justice of Little Palls “All the jurisdiction, power and authority * * * in all respects as are or may by law be vested in or required from justices of the peace of the town of Little Palls.” In People ex rel. Danziger v. P. E. House of Mercy (128 N. Y. 185) Ruger, Ch. J., says : “ The Code of Civil Procedure provides that when it appears among other things that the prisoner is detained in custody by virtue of the final judgment or decree of a competent tribunal of civil or criminal jurisdiction,’ and the time for which he is required to be retained has not expired, the court must remand him. (§ 2032.) Section 2034 of the same Code enacts that the court or judge is prohibited in such case, on a return to the writ, from inquiring into the legality of any mandate, judgment, decree or final order.” In a later part of the opinion the learned chief judge says : “We are of the opinion that the order of the judge was erroneous, and that it having been established by the conceded facts that the prisoner was held under the final judgment of a competent tribunal of criminal jurisdiction under the express provisions of the Code, she should have been remanded.” Nothing appeared before the county judge to indicate that Brown, the police justice, did not have jurisdiction of the parties, and especially of the defendant, in the suit before him, nor did anything appear to indicate that the police justice did not have jurisdiction of the subject-matter.

In section 2894 of the Code authority is given to a justice to grant an order for the arrest of the defendant. In the second subdivision of section 2895 of the Code it is provided that an order of arrest shall not be granted except where the action is brought to “recover damages for a personal injury of which a justice of the peace has jurisdiction; an injury to property, including the wrongful taking, detention or conversion of personal property.”

In People ex rel. Lotz v. Norton (“76 Hun, 7) it was said to be irregular to go into proof before a county judge upon the return to a writ of habeas corpus except to traverse the return, and that it is a general rule that a habeas corpus cannot be used to review trials before magistrates. If it appears that the magistrate had jurisdiction of the person and the subject-matter, and the mittimus shows upon its face those two facts, the writ will be dismissed.”

In Matter of Donohue (1 Abb. N. C. 10) it was said : “ It is safe and better, when a judgment has been rendered, which an express statute authorizes, to leave its review to the regular and more deliberate process of the higher courts than to make of every court and officer authorized to issue this writ a tribunal summarily to decide such grave and momentous questions. (People ex rel. Phelps v. Fancher, 2 Hun, 226.)”

We are inclined to the opinion that it was the duty of the county judge, by virtue of section 2032 of the Code of Civil Procedure, to make an order remanding the prisoner, as it appeared that he was detained in custody by virtue of the final judgment or decree of a competent tribunal of civil or criminal jurisdiction,” and that it is not necessary upon this appeal to consider the questions urged by the learned counsel for the respondent as to the nature and character of the complaint filed in the Justice’s Court. In respect to that, however, it may be suggested that great liberality is allowed in Justices’ Courts, and that the cases cited by him (Goodwin, v. Griffis, 88 N. Y. 629; Wood v. Henry, 40 id. 124; Austin v. Rawdon, 44 id. 63) differ from the case in hand.

The foregoing views lead to the conclusion that an order should be made in this case similar to the one pronounced in People ex rel. Danziger v. House of Mercy (supra).

The order should be reversed and the defendant remanded to the custody of the sheriff of Herkimer county.

MaiotN, J.:

I am of the opinion that the action was for injury to property, and an execution against the person was authorized. I, therefore, concur in the result.

Merwin, J.:

I think it was a case for a body execution and that the order should be reversed.

Order reversed and the defendant remanded to the custody of the sheriff of Herkimer county.


text:
    Theodore L. Wilcox, Respondent, v. The New York, Lake Erie and Western Railroad Company, Appellant.

      Railroad — personal injuries- — -failure to see an approaching train — ■ does not-discharge the railroad company from liability for its negligence in omitting signals — a nonsuit, when sustained.

    Although a person approaching a railroad crossing is hound to make all reasonable efforts to see, that a careful, prudent man would make under like circumstances, his failure to see an approaching train does not of itself discharge the railroad company from liability for negligence in omitting the statutory signals.
    Upon the trial of an action brought to recover damages for personal injuries sustained by reason of the defendant's alleged negligence a nonsuit should not be granted if in any view of the facts proved a cause of action exists; it is only where the contributory negligence of the person injured is conclusively established that a nonsuit will be upheld.
    Appeal by the defendant, The New York, Lake Erie and Western Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chemung on the 11th day of November, 1889, upon the verdict of a jury rendered after a trial at the Chemung Circuit, and also from an order entered in said clerk’s office on the 20th day of December, 1894, denying the defendant’s motion for a new trial made upon a case containing exceptions.
    Plaintiff alleged in the complaint that on the 9th of June, 1888, in the city of Elmira, while he was upon Water street, he received injuries occasioned by the negligence of defendant in operating its train of cars, and that he was free from contributory negligence at the time of receiving the injuries, and it is alleged in the complaint, that “ On the morning of the said 9th of June, the defendant, in violation of its duties, negligently failed and omitted to guard the said Water street crossing in any proper manner, and negligently failed and omitted to warn travelers upon said street of the approach of the passenger and express train above referred to.” And it is specifically alleged that the defendant failed and omitted to ring the bell on the locomotive of the passenger and express train at the proper distance from the said Water street crossing and to keep the same ringing, and neglected to sound the whistle attached to the locomotive of said passenger and express train upon crossing Water street. It is also alleged that the plaintiff was a driver upon an omnibus connected with one of the hotels in the city, and that while in the line of such employment he was engaged in driving the omnibus down Water street and was obliged to pass over the tracks of defendant’s railroad where the same crossed Water street, and that while he was attempting to cross defendant’s tracks the omnibus which’he was driving was struck by the defendant’s passenger and express train and the plaintiff was violently thrown therefrom and received the injuries particularly detailed in the complaint and in the evidence given at the trial. The answer of the defendant consists simply of denials of certain allegations of the complaint. When the plaintiff rested no motion for a nonsuit was made, but after the defendant’s evidence was in a motion for a non-suit was made on the grounds: “ First, that no evidence of negligence has been shown on the part of the defendant. Second, that the plaintiff was guilty of negligence which contributed to the accident.” The motion was denied and an exception was taken.

      Z>. O. Robinson, for the appellant.

      Bacon <& Aldridge, for the respondent.
   HaediN, P. J.:

Appellant’s learned counsel contends that the evidence was insufficient to warrant the submission of the question of the defendant’s negligence to the jury. Plaintiff when injured was driving an omnibus from the depot towards the hotel about six o’clock in the ■ morning of the 9th of June, 1888, and while crossing the tracks of the defendant, where they intersect Water street in the city of Elmira, the approaching train of the defendant collided with the omnibus and caused tlie plaintiff to receive tbe injuries of which lie complains. There are some buildings which obstruct a person’s view while passing down Water street from the west until within about fifteen feet of the east-bound track, and the defendant has a bridge built in spans with iron girders over the river, through which bridge the- trains of the defendant pass on approaching Water street, and a person in order to observe an approaching train from the east is required to be very near the tracks of the defendant At the time the injury occurred there was no flagman at the crossing nor were the gates operated. It appears by the evidence that the plaintiff stopped his team and looked and listened and did not discover any train and he started on and was struck by the train approaching on the west-bound track. There was some evidencó tending to indicate that the train was running at a high rate of speed. The witness Parker says, in speaking of the speed, that it was “between forty-five and fifty miles an hour” when it passed him, and that he stood in the lane between Henry and Hudson streets about 100 feet from the railroad track. Chalker, who was with the plaintiff at the time of the collision, riding on the steps of the Rathbun omnibus, says: “ The train was running rapidly.” The witness Tubbs, who saw the accident, says the train was “ running rapidly.” The witness Rancher, who was near the corner of Main and Water streets when the accident occurred, testified that the train was going very rapidly; * * * when I say the train was running very rapidly I mean very fast. I mean I don’t know how many miles an hour, but more rapidly than I have seen trains run through that crossing.” The policeman, Powell, testified that the train was moving very rapidly. The witness Fitch testified that he saw the accident, and that the train was going so fast it could not stop quick.” There was evidence given tending to show that at the time, and prior to the accident, the bell was not rung or the whistle sounded. The plaintiff testified: “ I didn't hear the bell ringing. All I mean to say is that I didn’t hear any bell. I didn’t hear any train at all until it came out the end of the bridge, and I saw it, and no whistle.” The witness Houts, who had turned down Water street and who saw the train strike the plaintiff’s omnibus, says : “ I didn’t hear the train coming up to the time that it struck him. * * * Then they rang the Dell. I heard no whistle blown. I saw the train strike the bus. I should say the train was running very rapidily. It struck the bus in the rear.” The witness Parker says he heard the train below Henry street, and adds: ‘‘ What I mean to say is the bell was not ringing when it passed me. I was two blocks from the railroad bridge at the time the train passed me, over twelve hundred feet south of the bridge. I was going in the direction of the train.” The witness Clialker testified: “ I didn’t hear a bell or anything else.” The witness HeGroat testified that he was on the east side of the railroad near the space going down under the bridge in front of Tucli & Taylor’s store, and that he saw the bus coming down Water street and that he stopped there arid looked on the bridge. The witness adds: I heard no bell rung or whistle blown on the train as it came along over the bridge. I stood there listening. There vTas no bell rung on the bridge.” The witness Tubbs testified that he saw the plaintiff drive down to the crossing, within a short distance of the track, and that he stopped and looked both ways to see if he could see a train, and not seeing any he started on, and the horse had got on the west-bound track. The witness adds : “ And I saw the train coming out of the bridge. * * When I stood there looking at the bus I didn’t hear any train of cars coming or see any. * * * It was very foggy on the bridge that morning. The fog hid the approach of the train coming over the bridge from my view about half-way across the bridge, I should think.” The police officer, Powell, testified : “I heard nothing but the crash of the bus; didn’t hear any bell rung or whistle blown and this witness adds that it was very foggy on the bridge. The witness Fitch, who saw the crash, testified: “• I heard no whistle blown or bell rung.” In contradiction of the evidence offered by the plaintiff on the subject of the ringing of the bell or sounding of -the whistle, the defendant called its engineer and Clark, the fireman, who testified that he himself rang the bell, and also produced the testimony of Mosher, the brakeman, who testified he heard the bell ringing, and also the testimony of Shirley and of Shepard and of Buckley, and when their evidence is looked into it is found to be in opposition to, and in contradiction of, the testimony offered by the plaintiff on the subject of whether the bell was rung or the whistle sounded. The rule laid down in Culhane v. The N. Y. C. & H. R. R. R. Co. (60 N. Y. 133) was reviewed and explained in Greany v. The Long Island Railroad, Company (101 id. 419). According to tlie doctrine laid down in the Greany case we think the trial judge was correct in receiving the evidence produced by the plaintiff: tending to show that the bell was not rung or the whistle sounded, and that after the evidence contradicting the testimony of the plaintiffs witnesses was received, the trial judge committed no error in holding that a question of fact, was presented for the consideration of the jury in respect to whether the bell was rung or whistle sounded, and reasonable precaution taken by the defendant on the occasion of the injuries occurring.. Where similar conflicting evidence was made the subject of review in Greany v. L. I. R. R. Co. (101 N. Y. 423), in the course of the. opinion therein delivered by DaNforth, J., it was said: “ A jury must ascertain. An appellate court cannot say that the testimony of either should be rejected. Nor should a trial judge be required to determine its weight, or the fact which it did or did not ascertain, if it has any legal effect.” In the course of the charge the trial judge carefully presented the questions of fact, as they were-developed by the evidence in respect to the defendant’s negligence,, to the jury in as favorable language as, in our ojpinion, the. defendant was entitled to have employed.

(2) It is contended by the appellant that there is certainly sufficient proof of the plaintiffs contributory negligence to bar his. recovery as matter of law.” It is apparent from the evidence that he was “ very thoroughly familiar with all the dangers and circumstances of this crossing and of the manner in which it was operated.” However, upon looking into his testimony and the testimony of the witnesses who detailed the facts and circumstances, attending the collision, we are of the opinion that the question of whether the plaintiff exercised reasonable care and caution in approaching the tracks at the time of the injuries was a question for the jury to determine. In the case of Greany v. L. I. R. R. Co. (supra) it was held that, although a party is bound to make all reasonable efforts to see, when approaching a crossing, that a careful,, prudent man would make in like circumstances, “ his failure to-see an approaching train does not of itself discharge the company from liability for negligence on its part in omitting the statutory signal.” And in the course of the opinion it was said : “ It would be error for a trial court to grant a' nonsuit if by any allowable deduction from the facts proved a cause of action might be sustained by the plaintiff, and when such ruling has been upheld by reason of the contributory negligence of the person injured, it appeared that such negligence was conclusively established by evidence which left nothing either of inference or of fact in doubt or to be settled by a jury.” Citing Massoth v. D. & H. C. Co. (64 N. Y. 524). (See, also, Chisholm v. The State, 141 id. 246; Mills v. The Brooklyn City Railroad Company, 10 Misc. Rep. 1; McPeak v. N. Y. C. & H. R. R. R. Co., 85 Hun, 107; S. C., 32 N. Y. Supp. 651, and cases cited.)

• Perhaps if the jury had followed implicitly all the facts and circumstances disclosed in the testimony of Tanner and Shepard, a different result might have been reached, but it must be borne in mind that it was the province of the jury to weigh and consider the facts and circumstances disclosed in the testimony of those witnesses in connection with the facts and circumstances disclosed in the testimony of the other witnesses. In fine, it was for the jury to determine whether the plaintiff had exercised reasonable care and caution under the circumstances disclosed by the whole evidence before them.

N o other questions are made by the learned counsel for the appellant, and it, therefore, follows from the views already expressed that the verdict should be sustained.

MARTIN and MeewiN, JJ., concurred.

Judgment and order affirmed, with costs.