text:
    Luther E. Mansfield, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.
    Where the obligation of performance by one party to a contract presupposes the doing of some act on the part of the other prior thereto, the neglect or refusal by the latter to perform such act not only dispenses with the obligation of performance by the former, but also entitles him ■ to rescind, or where rescission will not afford Mm an adequate remedy, to continue the work, and recover such damages against the defaulting party as the delinquency has occasioned.
    A party who is required by contract to give notice to another of the existence of a fact upon which important obligations depend, does not meet the requirement by giving notice which is, in fact, untrue; and such a notice is.insufficient to ptit the other party in default.
    When, from the language of a contract, either in the body of the instrument, or in its recitals or references, there is manifested a clear intention that a party shall do certain acts, a promise to do so will be implied, for non-performance of which an action will lie.
    G. & M. entered into a contract with defendant for the construction by the former of the superstructure of an elevator for the latter. The contractors agreed to commence the work within five days after notice from defendant’s engineer that the foundations were ready, and to complete the same ready for use within five months thereafter. Aside from the compensation specified, it was agreed that the contractors should receive the further sum of $500 for each day less, and they agreed to pay as stipulated damages $500 for each day more, than the time stipulated, occupied in the work. Defendants served the notice required, but at the time of such service the piers and foundation walls were not completed. In an action to recover damages by reason of increased expense in doing the work, and for losses arising from delay caused by the want of readiness on the part of the defendant, held, that it was an indispensable condition to the performance of the work that the foundations therefor should be prepared, and a covenant on the part of defendant to have them in a condition to enable the contractors to prosecute their work to the utmost advantage and economy before giving notice was clearly to be implied; that the notice was to be of an actually existing condition, not the expression of opinion on the part of the engineer that the foundations were sufficiently advanced to enable the contractors to prosecute the work advantageously; and that the action was maintainable.
    Upon receiving said notice, the contractors protested against it, because of the incompleteness of the foundations, but at the request of the defendant’s engineer, and with the statement that it was not to waive any rights secured to them by the contract, commenced the work. Held, that this was not a waiver by the contractors of the breach complained of; that the contractors had the option, upon receipt of the notice, either to refuse to commence their work, or to commence and prosecute it, relying upon the covenants in their contract to recover such damages- as the breach occasioned them.
    M., the plaintiff, alleged an assignment to him from G. of his interest in the claim. It was objected by defendant that the assignment was invalid. Held, that assuming this to be so, as the objection that G-. was a necessary party was not taken by answer, the invalidity of the assignment was not a bar to the action, as plaintiff had an interest in the contract which entitled him to bring the action.
    The assignment was of all G-.’s right, title and interest to any and all claims and demands which the firm of G. & M. “ have had or now have ” against defendant “ for or on account of and arising from any and all award or awards due said firm from said company,” under the contract in question, plaintiff agreeing “that all prosecutions of all claims shall be in his name individually.” Neither the contract nor evidence showed that any awards were contemplated by it, or had been or could be made under it. Held, that the assignment was sufficient, or at least so ambiguous on its face as to allow of paroi evidence to explain its meaning.
    Plaintiff gave in evidence a judgment-roll in an action brought by him against G. for a reformation of the assignment so as to make it conform to the intentions of the parties, and another assignment executed by Q-. in conformity with the judgment, transferring all causes of action growing out of the contract, which j udgment was rendered after the commencement of this action. Held, that the evidence was competent.
    (Argued March 22, 1886;
    decided April 13, 1886.)
    Appeal from judgment of the General Tenn of the Supreme Court, in the second judicial department, entered upon an order made May 16, 1884, which affirmed a judgment in favor of defendant, entered upon an order dismissing plaintiff’s complaint on trial.
    The nature of the action and the material facts are stated in the opinion.

      B. F. Tracy for appellant.
    The defendant was bound under the contract to have the foundations ready at the time of requiring the plaintiff’s firm to commence the work under the notice, so that said firm could proceed with the work without any substantial delay, hindrance or damage. (Peck v. Collins, 70 N. Y. 382; Booth v. Cleveland Mill. Co., 74 id. 21; Jones v. Kent, 80 id. 558 ; Allamon v. Mayor, etc., 43 Barb. 33 ; N. Eng. I. Co. v. Gilbert E. R. R. Co., 91 N. Y. 153 ; Lawson v. Hogan, 93 id. 39 ; DuBois v. D. & H. C. Co., 4 Wend. 285 ; Lawson v. Wallasy, L. R., 11 Q. B. 229 ; Kellogg B’dg Co. v. Hamilton, 110 U. S. 108.) A party injured by the breach of a contract is entitled to recover all his damages, including gains prevented as well as losses sustained, provided they are certain and such as might naturally be expected to follow the breach. (Griffin v. Colver, 16 N. Y. 489; Starbird v. Barrons, 38 id. 230; Messmore v. N. Y. S. & L. Co., 40 id. 422; White v. Miller, 71 id. 133; Allamon v. Mayor, etc., 43 Barb. 40 ; Lawson v. Wallasy, L. R., 11 Q. B. 229.) The fact that the plaintiff’s firm commenced and proceeded with the work did not constitute a waiver of their right to have the foundations ready as required by the contract, and of their right to damages caused by the defendant’s failure to have them thus ready. (Starbird v. Barrons, 38 N. Y. 231, 237; Esmond v. Benschoten, 12 Barb. 366 ; Taylor v. Mayor, etc.,
      83 N. Y. 625 ; Gross v. Beard, 26 id. 83.) Exceptions taken by a defendant, to whom a nonsuit was granted, cannot be considered upon an appeal from a judgment entered on such non-suit. (Blodgett v. U. & B. R. R. Co., 64 Barb. 580; Bridgford v. Crocker, 3 Sup. Ct. [T. & C.] 273.)

      John E. Burrill for respondent.
    The defect in the title of the plaintiff could not be remedied by any thing done after commencement of this action. (Wisner v. Ocumpaugh, 71 N. Y. 117; Erwin v. Oregon Co., 23 Hun, 269 ; Davis v. Mayor, etc., 14 N. Y. 506; Phillips v. Melville, 10 Hun, 211.) The engineer was the common agent, to determine when they were to commence' work and to give notice accordingly. (Del. Co. v. Dubois, 15 Wend. 87; Butler v. Tucker, 24 id. 447; Smith v. Brady, 17 N. Y. 173; Grube v. Schultheiss, 4 Daly, ; affirmed 57 N.Y. 669, and cases cited.) The fact that the contract does not fix the time when all the foundations should be ready,or fix the date when the contractors were to commence otherwise than by notice from the engineer, shows that it was a- matter which it was difficult or impossible to cover otherwise than or so well as by leaving the matter to the determination of the engineer. (Hudson Co. v. Penn. Co., 8 Wall. 289; Booth v. Cleveland Co., 75 N. Y. 23.) The contractors having, with full knowledge of the actual condition of the premises, begun work before they were obliged to by the contract, must be deemed to have aquiesced and waived any objection which might otherwise have been taken and have no claim against the defendant for damage resulting from doing what they ought not to have done and could not have been compelled to do. (Goebel v. Linn, 25 Alb. L. J. 378.) As the '$500 per day was to be paid only on performance by the contractors the plaintiff could not recover that sum in case of non-performance. (DuBois v. Del. Co., 4 Wend. 285.) As the claim for the bon us is the only cause or action in the complaint? it was properly dismissed. (Southwick v. Bank, 84 N. Y. 421; McMillan v. Arthur, 98 id. 169.) The offer to show a conversation with Hilton when Mansfield served the protest, and another conversation with Hilton after the service of the protest, was properly excluded. (Van Buren v. Wells, 19 Wend. 203; Trustees, etc., v. Brooklyn F. I. Co., 23 How. Pr. 448; Van Amringe v. Barnett, 8 Bosw. 357, 373.)
   Huger, Ch. J.

This action was brought to recover the damages arising from a breach by the defendant of a contract made by it on April 5, 1876, with Grill & Mansfield for the construction of an elevator. The complaint alleges as a breach that the defendants failed to have the foundations ready for the erection of the elevator, at the time notice was served upon them and they were required to commence work for its construction, and claim damages therefor by reason of increased expense in doing the work and supplying materials, and loss of gain or profits, arising from the delay occasioned by the want of readiness on the part of the owners. Upon the trial all proof on the part of the plaintiff tending to show the cause of action set out in the complaint, with the damages arising'therefrom, was objected to by the defendant and excluded by the court under the plaintiff’s exception.

The decision of the court seems to have been based upon the assumption that there was no covenant on the part of the defendant to have the foundations ready at the time of giving notice thereof, and such seems to have been the opinion of the General Term in affirming the judgment.

An examination of the terms of the contract is necessary to determine the correctness of the views taken by the court below. That instrument provided, among other things, that Gill & Mansfield should furnish the materials and perform the work in erecting the superstructure of an elevator, over the water, upon piers in the Hudson river between Sixtieth and Sixty-first streets in Hew York, and should finish the same within five months from the time of the commencement of the work, and should receive as their compensation therefor the sum of $331,500, and the further sum of $500 per day for each day less than that time occupied in its construction. It was further provided that they should pay the defendant as liquidated damages the sum of $500 per day for each day in excess of that time, during which the completion of the work should be prolonged.

With respect to the time of the commencement of the work it was provided: The said parties of the first part hereby further agree to commence the erection of the elevator within five days after notice from the engineer that the foundations are ready and to complete the same ready for the use of all the lofting elevators within five months thereafter.” “ Whenever the word 4 engineer ’ is used in the specifications reference is had to the engineer-in-chief in charge of the work for the party of the second part, to this contract.”

It seems to us that the courts below have mistaken the plain reading and import of this contract. It is true that there is no express provision in it requiring the foundations, or any part of them to be ready at any particular time. So neither is there any such provision requiring any foundations at all to be built by the owners; but the clearest implication arises from the language of the agreement, and its avowed object and intent, that the property of the owners upon which the building was to be erected, should be prepared for the superstructure by such owners, and that the contractors should have notice whenever that time arrived. It was the indispensable condition to the performance of any of the obligations incurred by the contractors that the foundations should be prepared, and unless they were to be so prepared, it rendered the whole contract motiveless and nugatory.

It is not denied by the respondent but that the duty of preparing the foundations was assumed by it, but it is urged that there is no provision in” the contract requiring it to have all of the foundations, or any particular portion of them, ready at the time of giving the notice of readiness stipulated for in the agreement. In this we think it is mistaken.

• It was made the duty of the owner not only to prepare the foundations for the reception of the work of the contractors, but also to notify them, through their agent, of the fact of such readiness. The terms of the contract plainly imply that the notice.was to be of an actually existing condition, and not the expression of an opinion on the part of the engineer that the foundations were sufficiently advanced to enable the contractors to prosecute their work advantageously. The contractors have not submitted any such question to the decision either of the owners or their engineer, and in view of the heavy obligations assumed by them it would have been unwise and hazardous to have done so. There is no rule of construction or principle of law which will justify a party who is required by contract to give notice to another of the existence of a fact upon which important obligations depend, to do so untruly, or in such a manner as to prejudice the contractual rights and privileges of the party entitled to notice. It was held by this court in the ease of Peck v. Collins (70 N. Y. 376), that notice of readiness to perform implies readiness on the part of the party giving such notice, and if he was not in fact'ready, neglect to perform on the part of the other party constitutes no default. It is a well-settled principle of law in the construction óf contracts that when the obligation of performance by one party presupposes the doing of some act on the part of the other prior thereto, that the neglect or refusal to perform such act not only dispenses with the obligation of performance by the other, but also entitles him to rescind, or when rescission will not afford him an adequate remedy, to continue the work and recover such damages as the delinquency has occasioned, against the defaulting party. (Cross v. Beard, 26 N. Y. 85, 88.)

The meaning of a contract is to be gathered from a consideration of all of its provisions, and the inferences naturally derivable therefrom, as to the intent and object of the parties in making it, and the result which they intended to accomplish by its performance. It was said by Allen, J., in Booth v. Cleveland Mill Co. (74 N. Y. 15, 21): “ There is no particular formula of words or technical phraseology necessary to the creation of an express obligation to do or forbear to do a particular thing or perform a specified act. If from the text of an agreement and the' language of the parties, either in the body of the instrument or in the recital or references, there is manifested a clear intention that the parties shall do certain acts, courts will infer a covenant in the case of a sealed instrument, or a promise if the instrument is unsealed, for non-performance, of which an action of covenant or assumpsit will lie.” It was said by Judge Danfoeth in New England Iron Co. v. Gilbert Elevated R. R. Co. (91 N. Y. 153, 165), that “ although the defendant does not in express terms undertake to. do the act, or give the notice which shall set the plaintiff in motion, a promise to do so ” “ is clearly to be implied from the covenants and stipulations which were [inserted.” There is manifested a clear intention on the part of the defendant to construct the railway, and for that purpose to do certain things, among others, raise the money, provide the masonry and give instructions to the plaintiff. These things, and others, on the part of the defendant, the plaintiff by the contract acquired an interest in having performed, and there is an obligation for their performance to be implied in its favor.” The language used in these authorities is peculiarly applicable to the case in hand, and furnishes a safe and just guide by which to determine their rights.

Looking at this contract in the light of decisions referred to, it would seem that the plainest principles of justice require the implication, of a covenant, on the part of the defendant to prepare the foundations in question so as to have them in a condition to enable the contractors to prosecute their work to the utmost advantage and economy, before giving the notice which set the time limited for their completion in motion. Any other construction would destroy the mutuality of the agreement, and put it practically in the power of one party to defeat performance by the qther.

It is quite obvious that the provisions of the contract in respect to time are of its essence, and were regarded by the parties as of primary importance, the contractors being stimulated to great diligence by the prospect of extraordinary compensation therefor, and deterred by the certainty of great pecuniary loss from dilatofiness or delay in the prosecution of their work. A construction which enabled the railroad company to retard the prosecution of the work by the contractors, or disabled them from employing all of the agencies or force which in their judgment could wisely and advantageously be used in its performance, would operate as a fraud upon them and render their covenant to complete the work in five months, a reckless and foolhardy undertaking. The very assumption of such a covenant on the part of the builders implies an understanding by all parties that they were to be unrestricted in the employment of means to perform it, and that nothing which it was the duty of the owner to do .to enable the contractor to perform, should be left undone. It is unreasonable to suppose that the parties intended to enter into obligations, providing for the performance of work by one party under a heavy penalty for non-perform-once within a given period, which yet left it optional with the other to facilitate or retard such work at its pleasure or discretion.

It is also claimed by the respondent that the act of the contractor in commencing the work within five days after'receipt of the notice in question constituted a waiver of the breach complained of.

The evidence establishes the fact that, immediately upon receipt of the notice, the contractors protested against it, and claimed that it was given in violation of the true meaning and spirit of the contract, and that the foundations were not only not ready, but were in such a condition that they could not commence or prosecute their work, except at increased expense and great disadvantage. Under the solicitations of the engineer, however, as they offered to prove, and without waiving any rights secured to them under the contract, they in fact commenced the prosecution of the work. There is nothing in the facts upon which an intention to waive the damages arising out of the breach complained of can Be predicated. When the breach occurred, the contractors undoubtedly had the option of refusing to commence their work until the foundations were actually ready, or to commence and prosecute it, relying upon the covenants of their contract to recover such damages as the breach occasioned them. (Starbird v. Barrons, 38 N. Y. 230, 231; Ruff v. Rinaldo, 55 id. 664; Cross v. Beard, supra.) After express notice to the defendants of their intention to hold them liable for the damages arising from the omission to complete the foundations they elected to commence the prosecution of the work. This they were entitled to do, and it constitutes no waiver of-their claim.

The further objection is taken that no valid assignment of the claim in suit, was made by his copartner in the work, to the plaintiff. The objection that Gill was a necessary party to the action is not taken by the answer, and assuming that-the assignment was invalid, it does not constitute a bar to the action because the plaintiff still had such an interest in the contract as entitled him to maintain an action for his damages thereon. Independent, however, of this objection, we are of the opinion that the assignment in question was sufficient in it.self, or so ambiguous on its face as to authorize paroi evidence to explain its meaning. The instrument in question purported to assign to the plaintiff all of Gill’s right, tifie and interest to any and all claims and demands which the late firm of Gill & Mansfield have had or now have against'the Eew York Central and Hudson Eiver Eailroad Company, “ for, on account of and arising from any and all award or awards due said firm from said company, under a certain contract for the erection of a grain elevator, at the foot of Sixtieth street in said city, by reason of said Gill & Mansfield having completed the construction of said elevator within a certain time specified in said contract, the said Luther E. Mansfield hereby agreeing that all prosecutions of all claims shall be in his name individually.”

It is manifest from the language of the instrument, that the parties intended to transfer some claim then in existence, arising under the contract in question, and that such claim required prosecution by action in order to enable the assignee to enjoy the benefit of the assignment. The only doubt as to the meaning of the*contract arises from the use of the words “ award or awards therein.” Eeither the contract nor the evidence shows that any awards were contemplated by the contract, ol that any had been or conld be made thereunder, and in the absence of explanation as to the application of such words, there does not appear any subject-matter for the assignment to operate upon.

It is a familiar rule that paroi proof of extrinsic circumstances may be given to apply a description to its subject-matter, and that if it appears that the description is in some parts erroneous, those parts may be rejected, and what is left, if sufficient of itself, alone be regarded. (Fish v. Hubbard, 21 Wend. 651; Burr v. Broadway Ins. Co., 16 N. Y. 267; Field v. Munson, 47 id. 221; Gardner v. Heyer, 2 Paige, 11.)

Upon the trial the plaintiff gave in evidence a judgment-roll in an action in the Supreme Court, wherein he was plaintiff and the said Grill was defendant, instituted to procure a reformation of the language of the said assignment, so as to make it conform to the real intentions of the parties when it was made, and also an assignment executed by Grill in conformity to such judgment, transferring to the plaintiff all causes of action" growing out of the contract between Grill & Mansfield and the defendant. This judgment was rendered after the commencement of the present action and after one trial thereof had been had. The defendant objected to the evidence.

We think the evidence was competent. As we have seen, it was proper for the plaintiff to give paroi evidence of the meaning of the language used in the assignment, and a judgment against Grill, the only party except the plaintiff who had an interest in the matter, determining that fact, was the highest evidence that could have been given upon the issue. The only interest that the defendant here, had in that question, was to be protected from any claim under the contract by other parties. ' This judgment bound the parties to it and effectually protected the defendant from any claim which could be made, by Grill. It establishes the rights of the plaintiff in the subject of the action as they existed at the time of its commencement, and did not in any respect change his relation with the plaintiff.

We have been invited by the appellant to express our opinion upon the question of the damages recoverable in this action, but we do not* think that question is before us in such a shape as to authorize an opinion thereon.

The judgments of the courts below should be reversed and a new trial ordered, with costs to abide the event.

All concur.

Judgments reversed.


source: Caselaw Access Project

author: Andrews, J.

license: Public Domain

text:
    Elizabeth Twogood, Appellant, v. The Mayor, Aldermen and Commonalty of the City of New York, Respondent.
    In an action against the city of Hew York for damages alleged to have been caused by its negligence in not causing an accumulation of ice upon a sidewalk to be removed, evidence was given that the. patrolman who was detailed for duty within the precinct and required to report any violation of city ordinances, on each day for seven days just prior to the injury complained of made reports in writing, in accordance with the usual custom, in substance that the snow and ice had not been removed from the sidewalk in question, also that it was the custom for the inspector to forward such reports to police head-quarters, and from there ' to the office of the corporation attorney. The court charged that the fact that the patrolman made such report was not sufficient to charge the city with notice. Held error.
    (Argued March 22,1886;
    decided April 13, 1886.)
    Appeal from judgment of the General Term of the Court of Common Pleas in and for the city and county of New York, entered upon an order made June 25, 1883, which affirmed a judgment in favor of plaintiff, entered upon a verdict, and affirmed an order denying a motion for a new trial.
    This action was brought to recover damages for injuries alleged to have been-caused by defendant’s,negligence in failing to remove an accumulation of ice and snow from a sidewalk of one of its streets.
    Plaintiff in passing over the. walk fell and broke her arm. The further facts material to the question discussed are stated in the opinion.

      George C. Lay for appellant.
    The department of police and bureau of street cleaning was the agent of the city in the performance of the duty of keeping this sidewalk in repair and free from obstructions under the charter of 1873, in force at the time of the accident. (Chap. 335 of the Laws of 1873, § 67; Maximillian v. Mayor, etc., 62 N. Y. 160; Hann v. Mayor, etc., 70 id. 459; Ehrgott v. Mayor, etc., 96 id. 264; Ordinances of the City, art. 25 [R. ed.], 1880, 234.) It was error to charge that there was not actual notice to the city. (Goodfellow v. Mayor, etc., 2 N. E. Rep’r, 462.)

      D. J. Hea/n for respondent.
    The park department is an executive branch of the municipal government. (Charter, § 83, chap. 335, Laws of 1873.) It represents and acts in behalf of the municipality in the performance of the duties devolved upon it. (Ehrgott v. Mayor, etc., 96 N. Y. 273.) The charge to the jury that if, in their opinion, the snow and ice had been upon the walk for such a length of time that it was negligent for the city not to have removed the same, the plaintiff was not entitled to recover, whether the, city had actual notice of the condition of the walk or not, did no injustice to the plaintiff, and even if it was erroneous, it will be disregarded. (Stoddard v. L. I. R. R. Co., 5 Sandf. 187; Lamb v. C. & A. R. R. Co., 2 Daly, 475; Forrest v. Forrest, 25 N. Y. 510; Heim v. Meyer, 61 id. 171; Townsend v. Narragansett Ins. Co., 36 J. & S. 170; City Bk. v. Dearborn, 20 N. Y. 244; Park v. Tilton, 15 Abb. 384; Shorter v. People, 2 N. Y. 193.)
   Andrews, J.

The defense was placed on two grounds, the negligence of the plaintiff and the absence of negligence on the part of the defendant. The trial judge submitted both questions to the jury, who found a general verdict for the defendant. It is impossible to say whether the jury found for the defendant on both issues, or only on the issue of the defendant’s negligence. It is claimed that upon the uncontroverted facts the plaintiff was negligent in venturing upon the walk in its icy condition, when she could have avoided all danger by going upon the walk upon the other side of the street, which was clear and safe. We think this question, under the decisions, was for the jury. (Todd v. City of Troy, 61 N. Y. 506; Evans v. City of Utica, 69 id. 166.) The plaintiff is entitled, therefore, to the benefit of any valid exceptions to the rulings of the court on the issue of the defendant’s negligence. The main charge of the judge was fair and discriminating, and except for a ruling at the request of the defendant, bearing upon a question of notice, made after the conclusion of the principal charge, we should affirm the judgment. The accident occurred on the 20th day of January, 1881, and the locality was a sidewalk on the south side of a public park on Christopher street. This territory was within the precinct of Patrolman Pitcairn, who, in January, 1881, was detailed for duty by the police department within this precinct, and to report any violation of city ordinances. On the tenth, twelfth, thirteenth, fifteenth, seventeenth, eighteenth, nineteenth and twentieth days of that month, he made reports in writing substantially as follows: “ Snow and ice not removed from around public park bounded by West Fourth, Grove and Christopher,” and left them at the station-house. This was according to the usual custom, and it is the practice for the inspector to forward reports lodged there, to police head-quarters, and from there they are sent to the office of the corporation attorney. The trial judge, on the request of the defendant’s counsel, charged “ that the fact that officer Pitcairn observed the snow and ice on the twelfth, thirteenth, fifteenth, seventeenth, eighteenth, nineteenth and twentieth of January, and made the entry in his book, as he testified he did, and the further facts that he reported the facts as he testified; such facts are not in themselves sufficient to charge the city with notice.” The plaintiff excepted to this charge. The judge in his main charge pointed out that notice, to charge the city, might be either actual or constructive, and charged that the city was liable for injuries from an obstruction on a sidewalk only where the proper authorities had actual notice of its existence and neglected to remove it within a reasonable time thereafter, or where, although not having actual notice, nevertheless the ohstruction had existed for such a length of time that its existence ought to have been known to the public authorities, and they thereafter negligently omitted to remove it. The point of the request was that the reports of Pitcairn to his superior officer, made in the usual course, was not notice to the defendant. We think the court erred in charging this proposition (Rehberg v. Mayor, etc., 91 N. Y. 137, 138), and we cannot say that the error was harmless. It left the negligence of the defendant to rest upon the question of constructive notice, assuming that the jury should find that the sidewalk was in a dangerous condition, and upon the further question whether this condition had existed for such a length of time that actual notice ought to be imputed. We feel constrained to reverse the judgment on this exception, although it is by no means certain that the error affected the verdict.

The judgment should, therefore, be reversed and anew trial ordered.

All concur.

Judgment reversed.


author: Miller, J.

text:
    James V. G. Dubois, Respondent, v. The City of Kingston, Appellant.
    The placing of a stepping-stone, of ordinary size and proper construction, in a convenient place at the edge of the sidewalk in front of a public building in a city, as an accommodation to the public in alighting from and getting into vehicles, is not such an obstruction of the streets as will charge the municipal corporation with negligence for allowing it to remain.
    In an action against such a corporation for injuries caused by plaintiff’s falling over such a stepping-stone, held, the fact that other persons had been injured by falling over the same stone did not, of itself, establish that it was improperly placed, or that it was necessarily of such a dangerous character as to require the interposition of the city authorities to remove it.
    It appeared that the stepping-stone, which was of ordinary size, lay in front of the city post-office, lengthwise of and just inside the curb of the sidewalk. At the north end of the stone was a lamp-post; at the south end a crosswalk. At the time of the accident plaintiff was running to a fire; gas-lights were burning in the post-office, and the street lamp was lighted. There was abundant room for plaintiff to pass on the sidewalk; he was well acquainted with the locality, and the stone had been there several years. Held, that plaintiff himself was chargeable with negligence.
    (Argued March 22,1886;
    decided April 13, 1886.)
    Appeal from judgment of the General Term of the Supreme Court, in the third judicial department, entered upon an order made May 6, 1884, which affirmed a judgment in favor of plaintiff, entered upon a verdict.
    This action was brought to recover damages for injuries alleged to have been caused by defendant’s negligence.
    ■ The material facts are stated in the opinion.

      John J. IAnson for appellant.
    Before a municipal corporation can be made liable for injuries caused by a defect in a highway, not arising from its construction or from any act authorized by the corporation, either express notice of the existence of the nuisance must be brought home to it, or the defect must be so notorious as to be observable by all for a sufficient time to enable the corporation to repair it, in which case the corporation is charged with constructive notice, being in fault for not knowing the fact. (Shearm. & Redf. on Neg., § 407; Masterton v. Mt. Vernon, 58 N. Y. 394; Smith v. New York, 66 id. 295 ; McCarthy v. Syracuse, 46 id. 197; Hart v. City of Brooklyn, 36 Barb. 226; Hume v. New York, 47 N. Y. 639; Gorham v. Cooperstown, 59 id. 660.) On plaintiff’s own showing he was guilty of contributory negligence and should have been nonsuited. ( Weber v. R. R. Co., 58 N. Y. 455; Davenport v. Brooklyn City R. R. Co., 2 E. R. 826; Cummins v. Syracuse, 3 id. 198 ; Griffin v. Mayor, etc., 9 N. Y. 456; Durkin v. Troy, 61 Barb. 437; Butterfield v. Forrister, 11 East, 60; Flower v. Adam, 2 Taunt. 314; Smith v. Smith, 2 Pick. 621; Wood v. Village of Andes, 11 Hun, 543 ; Belton v. Baxter, 54 N. Y. 245; Barker v. Savage, .45 id. 191.)

      John E. Van Etten for respondent.
    Whether or not the rock in question was an obstruction was a question of fact, depending upon its size, the place where it lay, the width of the sidewalk, the unguarded and exposed situation of the rock, the throngs which gathered and traveled there, and a variety of circumstances and considerations. (Ploedterll v. New York, 55 N. Y. 666; 10 Alb. Law Jour. 186; Mayor, etc., v. Sheffield, 4 Wall. 189.) Actual notice of the defect or obstruction need not be shown. If it has continued for such a length of time as to become notorious and to justify the presumption that its existence was known to the agents of the corporation charged with the duty of keeping the streets in repair, notice will be presumed. ( Weed v. Ballston Spa, 76 N. Y. 329, 336 ; Ploedterll v. New York, 55 id. 666 ; Mayor v. Sheffield, 4 Wall. 189; Rehberg v. New York, 91 N. Y. 137; Laws of 1872, chap. 150, § 33 ; subd. 20, 21, 30, 33, 42, §§ 69, 91; In re Burmeister, 76 N. Y. 174; Todd v. Troy, 61 id. 506, 509; Bostwiok v. Barlow, 14 Hun, 177; Hines v. Lockport, 50 N. Y. 239; S. C., 60 Barb. 384; Masterton v. Mt. Vernon, 58 N. Y. 394; Walker v. Lockport, 43 How. 336; Huston v. New York, 9 N. Y. 168; Weed v. Ballston Spa, 76 id. 333.) It would be no defense that the city did not know that the obstruction was dangerous. ( Quinlan v. TJtica, 11 Hun, 217.) One passing along the sidewalk has a right to presume it to be safe. He is bound to no special care and cannot be charged with negligence for not being on his guard against an unlawful obstruction, or for not looking for it, although it is visible. (McGuire v. Spencer, 91 N. Y. 303 ; Weed v. Ballston Spa, 76 id. 329, 333; Bullock v. New York, 1 E. R. 170; Diveny v. Elmira, 51 N. Y. 512.) The questions presented were questions of fact, and there was no error in denying the motion for a nonsuit. (Hume v. New York, 47 N. Y. 636; S. C., 74 id. 264; Rehberg v. New York, 91 id. 137, 144.)
   Miller, J.

The plaintiff was injured on the evening of ITovember 23, 1872, while running to a fire, which appeared to be in the direction of Ms own house, in the city of Kingston, by falling over a stepping-stone lying on the sidewalk in one of the streets of sai'd city. The stone was three feet fonr inches in length, twenty inches wide and fourteen inches high. It lay lengthwise with the curb and on the inside thereof, in front of the building containing the post-office, a music hall and several stores. Across from the stone diagonally on the inner side of the walk was a railing guarding and running along an area way which led to the basement of the building. This area way occupied three feet and seven inches of the sidewalk, leaving a passage-way at its most narrow point between the railing and the stone at from four feet and ten inches to six feet. At the north end of the stone over which the plaintiff stumbled, was a lamp-post, which covered about one-half the width of the stone. At the south end of the stone was a crosswalk.

The stone was placed there some three years previously as an accommodation to the public in alighting from and getting into vehicles, and without the knowledge or consent of the defendant, and no proof was given showing any express notice thereof to the defendant.

There was evidence upon the trial that some five different persons had fallen over the stone and been injured thereby. At the time of the accident in question gas-lights were burning in the post-office and the street lamp was lighted. Actions against municipal corporations for injuries sustained by individuals "while using or passing along its streets, are founded upon the ground of negligence of its officers in the performance of their official duties and cannot be maintained without evidence showing that they have been derelict in this respect, by means of which the injury has been sustained. We think there was no such proof upon the trial of this action. The stepping-stone over which the plaintiff fell and was injured was not of unusual size or of an improper construction, nor was it located at an improper place. It was placed in a position on the sidewalk most convenient for persons who should alight from a wagon or carriage or get into the same from the sidewalk, and thus it was a means of accommodation to those who had business at the post-office or] in the building in front of which it. was located. It was not any more exposed than was essential for its proper and useful location. The passage-way between the store and along the area way of the building was ample for the accommodation of individuals who were going along the sidewalk, and any person who exercised ordinary care and caution could, under the circumstances presented, have passed along by this stepping-stone without coming in contact with it. The gas was lighted in the post-office and in the lamp near by, and hence it was easy to see the stone and to avoid it by a proper use of the faculties. The fact that the plaintiff was running in the direction of his own house, with the apprehension that it might be on fire, should not excuse him for not avoiding a stone of this kind placed on the sidewalk. It was not necessarily in his way. In fact it was on one side of the walk and on the side near the street curb. There was no difficulty in passing along the open space without coming in contact with it. The stepping-stone could have been placed in no position in which it could have been more useful and convenient in front of the post-office, and there is no ground for claiming that it should have been guarded and protected so as to prevent people from running against it. Such caution is not required in placing such a necessary and convenient appendage in front of a building in the public street, and it cannot be said, we think, that it is dangerous necessarily when occupying such a position.

The fact that other persons had been injured by falling over the stone does not, of itself, establish that it was improperly placed in the location it occupied, or that it was necessarily of such a dangerous character as to require the interposition of the city authorities to remove it. Such an accident might well take place in reference to any necessary structure connected with the sidewalk or a building thereon, which might possibly interfere with persons using the same.

It would be extending the rule of the liability of municipal corporations far greater than has yet been done in any decided case, to hold that they are hable for assenting to the placing of stepping-stones on the edge of sidewalks in front of hotels, stores, public buildings and private residences. The courts have gone quite far in holding such corporations to a very strict responsibility in reference to accidents caused by a failure of their officers to keep the streets and sidewalks in a proper and safe condition, but it would be adding to the corporate liability beyond reasonable limits to hold' that steppingstones, which are almost a necessity in providing for the interest, comfort and convenience of the public in the maintenance of walks, avenues and streets, constitute a nuisance or obstruction, and that corporations are liable for damages by reason of accidents caused thereby.

As this case is presented there is no evidence which justifies the conclusion that the stepping-stone in question was dangerous to travelers passing along the street, or that the city authorities were chargeable with negligence in allowing it to remain where it was located.

It may also be remarked that the evidence of the plaintiff tended strictly to show that he was chargeable with negligence which contributed to the injury. There was abundant room for him to pass by the stepping-stone without running against it. A very small portion of the end of the stone upon which he fell obstructed the sidewalk, and being well acquainted with the locality, had he been careful in exercising his faculties he could have avoided the accident. In not doing so he was clearly negligent.

For the reasons stated the court erred upon the trial in denying the motion to nonsuit the plaintiff, as well as the motion to dismiss the complaint.

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

All concur.

Judgment reversed.


text:
    Henry J. Goodwin et al., Respondents, v. Julius Bunzl et al., Apellants.
    An undertaking given on appeal from a judgment, in replevin to the General Term, instead of being in the form of an undertaking to stay proceedings on appeal in such, an action (Code of Civ. Pro., § 1329), was in the form prescribed to stay (§ 1327) execution on a money judgment. It was properly served, acknowledged, approved, filed, and a copy served on plaintiffs’ attorneys. The attorneys on both sides treated the undertaking as appropriate and effectual to stay proceedings. Plaintiffs’ attorneys excepted to the sufficiency of the sureties, but at the request of defendants’ attorneys withdrew the exception and took no steps to enforce the judgment until the decision of the appeal. In an action upon the undertaking, held, that as no undertaking was requisite upon the appeal except to stay proceedings, the giving of it was an idle ceremony, unless it was intended to secure that object; that the transaction was in legal effect a forbearance at the request of defendants on consideration of the undertaking—that it was not illegal or taken colore officii, and was founded on a good consideration, and so should be held to inure as a good common-law agreement, enforceable according to its terms.

      Post v. Poremus (60 N. Y. 371), distinguished.
    The judgment in the replevin suit was against three defendants; it was affirmed as to two and a new trial granted as to the third; on such new trial a j udgment was found in his favor. Held, that this did not discharge the sureties.
    (Argued March 24, 1886 ;
    decided April 13, 1886.)
    Appeal from judgment of the Superior Court of the city of Bew York, entered upon an order made May 9,1884, which affirmed a judgment in favor of plaintiffs, entered noon a verdict.
    This action was upon an undertaking given on appeal to the General Term.
    The material facts are stated in the opinion.

      Melville H. Regensburger for appellants.
    Where an appeal is taken from a judgment for the recovery of a chattel it does not stay the execution of the judgment, until the appellant gives a written undertaking in a sum fixed by the court below, or a judge thereof, to the effect that the appellant will obey the' direction of the appellate court upon the appeal. (Code, § 1329.) BTo greater force or effect will ever be given to a statutory obligation than is contemplated by the statute. (Hinckley v. Kreitze, 58 N. Y. 583; Post v. Doremus, 60 id. 371.) The failure of the sureties to justify has the same effect as though no undertaking had been given. (Manning v. Gould, 90 N. Y. 476.)

      Wm. F. MacRae for respondents.
    The undertaking having been approved by the court, and its sufficiency allowed, and all parties having considered and treated it as fulfilling all the requirements necessary to perfect a stay, defendants are estopped from questioning or denying its force and obligation. (Harrison v. Wilkins, 69 N. Y. 412; Hill v. Burke, 62 id. 111; Wheaton v. Fay, id. 275; Coleman v. Bean, 3 Keyes, 94 ; Becker v. Judson, 16 N. Y. 439; 2 R. S. 286, § 59 ; Toles v. Adee, 84 N. Y. 234.) But, as between the parties, they can validly agree on any kind of agreement or security. (Toles v. Adee, supra; Winter v. Kenney, 1 N. Y. 365; U. S. v. Hodgson, 10 Wall. 395.) Judgment was affirmed as against defendants Goldsmiths, and the undertaking being on behalf of them, as well as on behalf of Wertheimer, one of the conditions fixing liability was incurred against defendants, as the execution against the Goldsmiths was returned unsatisfied, and the judgment unpaid. (Seacord v. Morgan, 3 Keyes, 636 ; Auerbach v. Marks, 10 Daly, 171; Imbush v. Farwell, 1 Black, 566; Gardner v. Barney, 24 How. 467.) The judgment being in the alternative for a delivery of the chattels, or to pay their value as fixed in the judgment, the undertaking was expressly within the provisions of section 1327 of the Code, and was valid under that section. (Code, § 1327.) All that is required in any case is that “ it conforms substantially to the form prescribed by the statute.” (Code, § 729 ; Cook v. Freudenthall, 80 N. Y. 211; Claflin v. Ball, 43 id. 401; Burrill’s Law Dic., citing 1 Cush. 76.)
   Andrews, J.

Under the Code no security is required to perfect an appeal to the General Term from a judgment. It is necessary only when the appellant desires a stay of proceedings pending the appeal. (Code, § 1351.) The giving of the undertaking in this case was, therefore, an idle ceremony, unless it was intended to secure tills object. The attorneys on both sides treated the undertaking as appropriate and effectual for that purpose. It was signed and acknowledged by the sureties, was approved by a judge, and filed in the office of the clerk, and a copy was served on the plaintiffs’ attorneys, accomponied with a written notice by the defendants’ attorney. The plaintiffs’ attorneys at first excepted to the sufficiency of the sureties, but afterward, upon the request of the attorney for the defendants, and upon his assurance that the sureties were responsible, withdrew the objection and consented to accept the undertaking, and they took no proceedings to enforce the judgment until after the determination of the appeal. The transaction was in legal effect a forbearance on the part of the plaintiffs, at the request of the defendants, to pursue their legal remedy against the defendants, pending the appeal, in consideration of the undertaking. The undertaking was in the form prescribed by section 1327 of the Code for undertakings to stay execution on money judgments. It was not in the form of the statutory undertaking prescribed for undertakings to stay proceedings on an appeal from a judgment for the recovery of chattels. (Code, § 1329.) But the undertaking was not illegal; it was not taken colore officii (Cook v. Freudenthal, 80 N. Y. 202), and it is founded on a good consideration. It should be held, we think, to inure as a good common-law agreement, enforceable according to its terms. (Decker v. Judson, 16 N. Y. 439.) This conclusion accords with the sense of justice, and is not precluded by the authorities. The case of Post v. Doremus (60 N. Y. 371) was put upon two grounds : first, that there was no consideration for the defendants’ promise, and, second, that the event upon which the liability depended, had not happened. In this case there was ample consideration, and the liability of the sureties, according to the terms of the contract, was established by proof that the judgment was affirmed on the appeal as to two of the defendants (Seacord v. Morgan, 3 Keyes, 636), and that execution against them had been returned unsatisfied, and that the property had never been delivered to the plaintiffs. The point that the subsequent proceedings on the new trial, in which judgment found in favor of Wertheimer, discharged the defendants, is, we think, untenable.

The judgment should, therefore, be affirmed.

All concur.

Judgment affirmed.


text:
    John Fallon, Appellant, v. Rosanna Lawler, Respondent.
    By an oral contract between the parties, plaintiff agreed to erect a building for defendant in accordance with certain plans and specifications. When the building was partially erected the work was stopped by defendant, because of failure to perform it in accordance with the plans and specifications. Defendant selected an architect to examine the work, who made a memorandum of the defects and of the work to be performed by plaintiff to remedy them; this was accepted and agreed to by the parties, and plaintiff began the work under the new agreement. Plaintiff asked to be permitted to finish the work as required by the architect, and offered so to do, but defendant refused to permit it, and the work was stopped. In an action to recover for the work done, Jielcl, that the new agreement was for a sufficient consideration and was a waiver of forfeiture, because of non-performance of the old agreement; and that plaintiff was entitled to recover. Also that, as the time for the performance of the original contract had not expired at the time the work was finally stopped, and as the defects had been pointed out and agreed upon, plaintiff was entitled to supply those defects and complete the performance, and as he was prevented from so doing by defendant’s interference, the latter was estopped from claiming non-performance.
    The new contract was not set forth and no issue respecting it was presented by the pleadings. The evidence, however, relating to it was given without objection on the trial, and it was one of the main issues tried. Held, that the objection that the issue was not presented by the pleadings was not tenable on appeal.

      Also held, that "after accepting and agreeing to the architect’s memorandum, defendant could not claim that other defects not specified therein existed which authorized her to repudiate the contract.
    (Argued March 24, 1886;
    decided April 13, 1886.)
    Appeal from order of the General Term of the Supreme Court, in the second judicial department, made September 11, 1883, which reversed a judgment in favor of plaintiff, entered upon an order confirming the report of a referee and directing judgment in accordance therewith.
    This action was brought to foreclose a mechanics’ Hen for work and materials furnished by plaintiff in building a house on defendant’s premises.
    The facts sufficiently appear in the opinion.

      Calvin Frost for appellant.
    Although the new contract is not at issue in the pleadings it and all the attending circumstances having been proved on the trial, without objection, and being one of the main issues tried before the court, it is too late to raise that objection on appeal. (Knapp v. Simon, 96 N. Y. 284; id. 31.) Any variation or defect in the work under the prior contract, and any liability incurred by the plaintiff therefor up to the time of the new contract, were by its force and legal effect discharged and waived. (DeLa Croix v. Buckley, 13 Wend. 75-76; Fleming v. Gilbert, 3 Johns. 530-531; 14 id. 330; 7 Cow. 47 ; 6 Duer, 208; 10 N. Y. 465; 58 id. 621; 36 id. 388; 21 Wend. 630, 632.) One who waives or prevents a literal performance, which the other is ready and offers to fulfill, caynot avail himself of a non-performance to relieve himself from payment. (Young v. Hunter, 2 Seld. 204; Holmes v. Holmes, 5 id. 527; Carman v. Pultz, 21 N. Y. 549 ; 31 id. 464; 58 id. 621; 53 id. 272; 61 id. 171; 42 id. 246 ; 78 id. 216.) The tender to do all that is required by the contract, and refusal to permit it, is equivalent to an actual performance. (2 Hall, 482; 3 Johns. 531; 31 N. Y. 462. Assiiming that no new bargain had been made; that there had been no waiver or prevention, and that the contract, with these defects, had been completed, till a payment due, these defects would not bar plaintiff of all recovery. ( Woodward v. Fuller, 80 N. Y. 312; Heckman v. Pinckney, 81 id. 211.) The agreement to modify the contract was valid and needed no other consideration than the mutuality of the promises. (Story on Cont., § 447.)

      Frederic A. Ward for respondent.
    Defendant cannot be held to have assented to the manner in which the work was done. (Smith v. Brady, 17 N. Y. 180.) The alleged new agreement was wholly without consideration. (Vanderbilt v. Schreyer, 91 N. Y. 401; Seybolt v. N. Y., L. E. & W. R. R. Co., 95 id. 575.) The evidence offered was incompetent even to prove the lien much less the notice of suit, which is not matter of record. (Sampson v. R. R. Co., 4 T. & C. 600; S. C., 2 Hun, 512; Bissell v. Pierce, 28 N. Y. 252, 256;
      Baldwin v. Ryan, 3 T. & C. 353.) The original memorandum of Leggett was not original or primary evidence to charge the defendant. It was not a writing inter partes, nor one creating rights, or of which rights could be predicated as a will, contract or deed, nor was it a record of transactions in the ordinary course of business, as books of account, nor a paper made by the defendant, to which he was. in any way privy. (Flood v. Mitchell, 68 N. Y. 507; Kennedy v. Oswego R. R. Co., 67 Barb. 169 ; Clute v. Small, 17 Wend. 238.)
   Miller, J.

As the judgment in this case was reversed by the General Term upon the facts as well as the law, we are called upon to determine not only whether there was any error of law, but whether the decision of the trial court was clearly contrary to the evidence.

The testimony on the trial shows that the parties entered into an oral contract by which the plaintiff agreed to remove a building to the rear of a certain lot, put a cellar under it, and a roof on it, and build a three-story brick building on the front of the lot. The terms of the contract were expressed in plans and specifications which were not signed by either party. After the building was removed and the contract partially performed as to the brick building the work was stopped by defendant’s order.

We think it must be assumed that when the defendant refused to permit the plaintiff to proceed with the work on the 2d of October, 1876, the plaintiff had failed-in several particulars to perform the contract made by him with the defendant according to the plans and specifications. As matters then stood by reason of plaintiff's failure to fulfill the contract, he could not have recovered of the defendant the value of the work which had already been done, and it was a good defense to his action up to that time that he had failed to perform the contract according to the agreement as required by the plans and specifications.

Immediately after this the defendant selected an architect to examine the work, who found the contract unperformed in several respects, and made a memorandum of the defects and a list of the work which was to be performed by the plaintiff to remedy the defects, which was accepted and agreed to by the parties. The plaintiff then undertook to do this work and was again stopped by the defendant.

The question then arises whether the new arrangement which was entered into, and which the plaintiff desired to perform, was a waiver by the defendant of performance by the plaintiff of the original contract. This agreement conceded the defects therein mentioned, and had it been carried out would have operated no doubt as a waiver of any claim arising by reason of such defects. It would reinstate the original contract with the modifications which had been agreed upon.

The evidence shows that the work had barely been commenced under the new agreement when the plaintiff and his men were ordered therefrom by the defendant, who insisted that the contract price should be reduced $500, and a disputed claim of the defendant’s paid before the work should proceed. This demand was refused by the plaintiff and the work stopped. The plaintiff afterward again and again asked to be permitted to finish the work, as the architect had said it should be done and he offered to do so, but the defendant refused to allow him to go on. It was, therefore, the fault of the defendant that the plaintiff did not proceed in accordance with the new arrangement and complete the work, and if_ the agreement made was obligatory upon the parties, no reason exists why the plaintiff should not recover for the value of the work which he actually performed.

The defendant claims that the new' agreement was without consideration, and the court at General Term holds, in its opinion, that an agreement that certain omissions should be supplied, and that upon this being done, it should be deemed a full performance, after default as an executory contract, would rest upon no valid consideration. There was evidence upon the trial showing that the plaintiff had set men at work to perform what was required under the agreement to remedy the defects, and several of them were at work for that purpose when they were stopped 'by the defendant. Such being the fact, it is fairly to be implied that the plaintiff may have given np other work to fulfill the engagement he had entered into with the defendant. He had thus expended some money in the performance of the work, and the contract was in the course of being executed. The original contract, as well as the new agreement, was by paroi, and the latter being founded on the former, and having been to some extent at least performed, there was, under the circumstances, a sufficient consideration for the last named contract.

It should not be overlooked that by the last contract the time of performance of the first contract would necessarily be extended. The work had been stopped some weeks, and it would require, as a matter of course, some additional time to complete the same. The new agreement, therefore, may well be regarded as relating to the time of performance, and it is a well-settled rule that the extension of time for the performance of a contract need not necessarily be in writing and may be by paroi, and that no express consideration is required to make it valid. In this view of the case it cannot be claimed that the entire contract was invalid for want of consideration. Independent, however, of the views already expressed, as the time for the performance of the contract had not expired, and conceding the plaintiff had failed to perform the same as the defects had been pointed out and agreed upon, it is not apparent why he had not the right to perform and to supply such defects within the period of time fixed by the contract. He offered to do so and was ordered to stop, and was prevented by the interference of the defendant. As the fault of the defendant operated to produce the failure to fulfill, on the part of the plaintiff, the terms and conditions in the contract, she is estopped from claiming that it was not performed.

Some stress is laid upon the fact that the plaintiff commenced work at the top of the building instead of at the bottom, as directed by the architect. This objection would seem to be too trivial to avoid the effect to be given to the fact that the plaintiff had offered and attempted to perform the work in accordance with the terms of the "new agreement and as directed by the architect, and at most had made a very trifling mistake in selecting the portion which should first be‘done.

It is objected that no new contract was alleged in the complaint, and that there was no issue respecting it in the pleadings, and it is said that the finding of the referee that the parties made a new agreement does not express the issue tried by the parties. It is, no doubt, true that the new contract is not within the" issue made by the pleadings. The evidence relating thereto was, however, introduced upon the trial without any objection being made to the same, and it was one of the main issues tried before the referee. If the objection had been urged upon the trial, the complaint could have been amended upon application so as to meet the changes made by the evidence introduced, or at the close of the case, upon motion, an order could have been entered that the complaint be regarded as amended in accordance with the facts proved. Upon appeal this may be regarded as having been done, and it is too late now to raise the objection urged. -

The finding of the referée, that the plaintiff performed the work according to the agreement of the parties; that the work was done, and the materials furnished were in accordance with the plans and specifications except as the same were modified or changed by the parties during the progress of the work, is not, perhaps, standing alone, strictly accurate, but this-finding is not sufficient to authorize a reversal of the judgment. It may be taken in connection with the finding that by the subsequent agreement the plaintiff and defendant agreed to the modification of the plans and specifications, and it was then agreed that the contract, as thus modified, should be completed under the supervision of the architect, as well as some other findings of the referee sustaining the plaintiffs’ right to recover, and as thus considered, the whole may be regarded as sufficient to sustain the judgment.

Some objections are urged as to other defects not enumerated in the memorandum made by the architect. The testimony in regard to these was conflicting, and it cannot be said that there was such a preponderance in favor of the defendant as to authorizejthe conclusion that the referee erred in his findings that the plaintiff had fulfilled the contract as modified. In fact after the parties had entered into an agreement that the defects mentioned in the architect’s memorandum, as already stated, should be remedied, it was too late to urge that others existed sufficient to authorize a repudiation of the contract by the defendant.

A careful perusal of the testimony, and an examination of the case leads to the conclusion that the findings of the referee were, upon the whole, fully sustained by the weight of the evidence.

Some questions are made as to the admissibility of evidence upon the trial, but we are unable to discover any error in the rulings in this respect.

The order of the General Term should be reversed, and the judgment of the Special Term affirmed, with costs.

All concur.

Order reversed and judgment affirmed.


author: Dahfobth, J.

text:
    The People of the State of New York, Respondent, v. David H. Crowley, Appellant.
    In order to establish, the crime of rape under the statute (Penal Code, §§ 278, 280), it is sufficient to prove penetration of the private parts of the man into the person of the woman ‘' against her will or without her consent; ” no inquiry is necessary as to the extent of the penetration, or the particular part of the female internal organs reached.
    Bach of two persons called as jurors upon a criminal trial testified that he had formed an opinion as to to the guilt or innocence of the defendant from reading a newspaper account of the occurrence; one testified that such opinion would not influence his verdict, but that the evidence alone would determine it; the other testified that he could give a fair, impartial and conscientious verdict upon the evidence, "should be governed by it entirely.” Held, the testimony justified the conclusion of the court that neither entertained a present opinion which would influence his verdict, and that a challenge for bias was property overruled.
    Upon the trial of an indictment for rape, the prisoner testified in his own behalf; the court charged that “while his evidence is to be considered as that of any other witness, they should in determining his credibility, consider the fact that he stood charged with the commission of a serious criminal offense.” Held no error.
    (Argued March 25, 1886 ;
    decided April 13, 1886.)
    Appeal from judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made January 8,1886, which affirmed a judgment of the Court of General Sessions in and for the city and county of New York, entered upon a verdict convicting the defendant of the crime of rape.
    The material facts are stated in the opinion.

      George Bliss for appellant.
    The jurors George S. Squire and Bernard A. Schmidt having each formed opinions which they severally swore would require evidence to remove, were disqualified as jurors, and the court erred in overruling the challenge of each for actual bias. (Code of Crim. Pro., § 376; chap. 475 of Laws of 1872, § 1; People v. Casey, 96 N. Y. 115, 119, 122; Greenfield v. People, 74 id. 277, 281, 287; Balbo v. People, 80 id. 484; Cox v. People, id. 500; People v. Cornetti, 92 id. 185 ; People v. Mather, 4 Wend. 229, 244; People v. Tyrrell, N. Y. Week. Dig. 493.) “ Sexual penetration ” can mean nothing but the piercing into the distinctive organ of sex. (Commissioners on Revision [ed. of 1865], '§ 321; Penal Code, § 280; 2 R. S. 735.) There was in the case at bar no proof of “sexual penetration” of a rape accomplished, at most there was only proof of an attempt. (Guy’s Principles of Forensic Medicine [1st Am. ed.], with notes by Lee, 65; Regina v. McRue, 8 C. &, P. 641; Roscoe’s Crim. Ev. [10th ed.] 902; Beck’s Med. Jur. 53.)

      JDelcmeey Nieoll for respondent.
    The challenge for actual bias of the jurors George S. Squire and Bernard A. Schmidt, respectively, were properly overruled by the court. (People v. Casey, 2 N. Y. 197.) The penetration necessary to complete the crime of rape, as required by section 280 of the- Penal Code, was fully and clearly established. (1 Hale’s P. C. 628; Hex v. Jennings, 8 C. & P. 249; Reg. v. Allen, 9 id. 31; Reg. v. Jordan, id. 118; Reg. v. Hughes,id. 752; Reg. v. Stanton,1 C. & K. 415.) In the United States proof of the slightest penetration without emission has always been regarded as sufficient. (1 Hale’s P. C. 628 and note; State v. Hargrave, 65 N. C. 466; Waller v. State, 40 Ala. 342; 1 Thom. Vir. Cas. 307; Addis. [Penn.] 143; 1 Swin. Jud. Reg. 98 ; Taylor’s Med. Jur. [7th Am. ed.] 701; Ogston’s Lect. Med. Jur. 90 ; Beck’s Med. Jur. 229, 233.) The essence of the crime is not the begetting of a child, nor the physical injury inflicted, but the" violence done to the feelings and person of the sufferer and to her sense of honor and virtue. (3 Greenl. Ev., § 209; 1 "Whart. Crim. Law, 555; 1 Barb. Crim. L. [3d ed.] 77; Addis. [Penn.] 143; 1 Swin. Jud. Reg. 98.) Ho form of words is necessary to prove penetration, the proof, therefore, can be inferred from. circumstances apart from the statement of the party injured. (Whart. Crim. L., § 555.) When the instructions of the court are unexceptionable as to the offense charged, and for which the prisoner is on trial, and such instructions cover every element of the crime, and correct rules for the proper application of the evidence, it is not strictly the right of the prisoner to ask instructions upon a hypothetical case based upon other facts. (Slatterly v. People, 58 N. Y. 357; People v. Rogers, 13 Abb. [N. S.] 370.) Where a court properly submits to a jury a proposition covering the whole issue, and instructs them that they must find it beyond a reasonable doubt, he cannot be required to subdivide it and charge separately as to each of the elements necessary to constitute the crime that it must be established beyond a reasonable doubt.
   Dahfobth, J.

The appellant was convicted of the crime of rape, at the Oourt of General Sessions of the Peace, in and for the city and county of Hew York; the judgment following that conviction has been affirmed by the General Term of the Supreme Oourt, and we find no reason to differ from the conclusion there reached : That the accused provided the opportunity and formed the intention to commit the crime, was upon the evidence too plain to admit of doubt, and whether he in fact completed it within the meaning of the statute (Penal Code, §§ 278, 280), was a question for the jury and was properly submitted to their consideration. If the complainant’s statement was credible, there was “ sexual penetration,” and the physician by whom she was examined found injuries upon her person which such an act might have occasioned. There was, therefore, positive proof of the highest character and corroboration of the witness. Indeed the argument of the appellant concedes this. The contention of his counsel only leads to an inquiry as to the extent of the penetration, and the particular part of the female internal organs which must be reached to constitute the offense. The statute (§§ 278 and 280, supra) answers the argument. By the first (§ 278) “ Bape is an act of sexual intercourse with a female not the wife of the perpetrator, committed against her will or without her consent,” and by the other (§ 280), “any sexual penetration, however slight, is sufficient to complete the crime.” This means nothing more than penetration of the private parts of the man into the person of the woman, and no discussion is necessary or proper as to how far they entered. (Rex v. Allen, 9 C. & P. 31 ; Rex v. Hughes, id. 752.)

Nor were the persons objected to disqualified to sit as jurors. Each from reading a newspaper account of the alleged transaction, had formed an opinion as to the guilt or innocence of the defendant, but one (Squire) declared on oath that such opinion would not influence his verdict, and that the evidence alone would determine it. The other (Schmidt) said he could give a fair, impartial and conscientious verdict upon the evidence, if impaneled as a juror, and “ he should be governed by it entirely,” notwithstanding the opinion before formed; and in regard to both, the trial court was satisfied that neither entertained any present opinions which would influence his verdict. The examination of the proposed jurors justified that determination, and the challenge for bias was properly overruled (Code of Criminal Procdure, § 376.)

The accused testified in his own behalf, and it was not improper for the trial judge to charge the jury that “while his evidence is to be considered as that of any other witness, they should, in determining his credibility, consider the fact that he stood charged with the commission of a serious criminal offense.” The credibility of any witness may be affected by his interest in the result of an issue, or his relation to the case on trial, and a court does not exceed its duty when it reminds a jury of such a circumstance, leaving its weight for their consideration. It is also urged by the appellant that the complainant was not corroborated. The question does not appear to have been raised at the trial, nor any objection made that the evidence was insufficient for submission to the jury. Clearly it was sufficient. Every step that led up to the offense was proven by the prisoner, or by persons other than those concerned ; the condition of the complainant’s person after the alleged commission of the crime has been referred to, and her conduct and that of the prisoner when they were separated, with other circumstances in evidence, fully sustain the statement of the learned judge upon whose opinion the conviction was affirmed, “that it rarely happens that a prosecution for rape is so abundantly sustained in all its essential features as this was.”

The record discloses no error, and we think the judgment appealed from should be affirmed.

All concur.

Judgment affirmed.