author: Lewis, J.: Ward, J.

text:
    The People of the State of New York ex rel. John Ryan, Respondent, v. Charles A. Webster, as Superintendent of the Penitentiary of Monroe County, Appellant.

      Courts of Special Sessions — sufficiency of a commitment — Penal Code, § 316 — Code of Criminal Procedure, § 721.
    Courts of limited criminal jurisdiction are not to be held to great strictness in matters of procedure.
    A commitment in a Court, of Special Sessions which, states that a prisoner was charged with “ indecent exposure of the person and intoxication,” under section 316 of the Penal Code, is sufficient although it does not state that the exposure was willful and lewd or in a public place.

      Such, a commitment complies with section 721 of tlic Code of Criminal Procedure, requiring that in a certificate of conviction in a Court of Special Sessions, the offense of which the prisoner is convicted shall he briefly designated.
    Ward, J., dissenting.
    Appeal by George D. Eorsytli, district attorney, and attorney ’ for the defendant, Charles A. Webster, superintendent, and in the name of the People of the State of New York, from an order of the county judge of Monroe county, entered in the office of the clerk of said county on the 29th day of September, 1894, discharging the relator, John Ryan, from the custody of the defendant, as superintendent of the penitentiary of the county of Monroe.
    The commitment under which the relator was held in custody is set forth in the dissenting opinion of Judge Ward.

      Howard H Widener, Assistant District Attorney, for the appellant.
    No appearance for the respondent.
   Lewis, J.:

The relator was committed to the Monroe County Penitentiary by a justice of the peace of Monroe county.

TJpon his -petition a writ of habeas corpus was issued by the county judge of Monroe county directed to the appellant as superintendent, requiring him to produce the relator with the cause of his imprisonment and detention. He was produced in pbedience to the writ and the keeper made his return to the effect that he held him under a •certificate of conviction which he produced* from which it appeared that the relator was brought before the committing magistrate and was there charged with “indecent exposure of the person and intoxication; ” that he thereupon requested to be tried by a Court ■of Special Sessions, and then pleaded guilty ; that he was duly convicted and adjudged to be imprisoned in the Monroe County Penitentiary for the term of ninety days. The order appealed from was made, discharging the relator from further imprisonment. The ground assigned for the order was that the commitment wras fatally defective.

In what respect it was defective was nob stated, but we assume it to have been that the offense was not designated with sufficient -particularity. A form for a certificate of conviction to be made by a Court of Special Sessions is provided by section 721 of the Code of Criminal Procedure. Among other things, it provides that the offense of which the defendant is convicted shall be “ briefly designated.” It "was the judgment of the court which authorized the commitment and detention of the relator, that the certificate was evidence to the superintendent of his right to receive and detain him in the penitentiary.

It is the contention of the district attorney that the relator was convicted of violating section 310 of the Penal Code, which reads as follows: “ Exposure of the person. — A person who willfully and lewdly exposes his person or the private parts thereof in any public place, or in any place where others are present, * * * is guilty of a misdemeanor.”

The county judge evidently concluded that the certificate was void for the reason that it failed to state that the exposure was willful and lewd and was in a public place or in a place where others were present. While the proceedings of Courts of Special Sessions should be construed with sufficient strictness to protect the rights of persons charged with crime before those tribunals, too technical rules of construction should not be applied. Such courts are presided over as a rule by men who are not familiar with legal proceedings.

Trials therein are conducted generally quite informally. If the offense of which the person tried is required to be stated in the mittimus with the particularity that is required in an indictment, a very large percentage of the certificates of conviction will prove to be defective.

Such a construction would have the effect to liberate probably most of the persons convicted in these courts. All that the statute requires is a brief designation of the offense, that is, that it shall be pointed out, indicated or named so that the defendant and others shall know of what crime he was convicted and imprisoned. If every constituent which goes to constitute the crime is required to be stated in the certificate, it would not be a brief designation of the offense. All understand when a person is charged with indecent exposure of his person what offense is meant. The relator, we must assume, knew that he was charged with the lewd exposure of his person in a public place, or in a place where others were present. He was well aware that he was not charged with exposing his person in the privacy of his bedroom. There would be nothing indecent or immodest in such an exposure. The charge of indecent exposure of one’s person implies that it was willfully and lewdly done in the presence of others, or where he was likely to be seen by others. Had the certificate recited that the relator was convicted of “ assault and battery,” all would have perfectly well understood what the crime charged was, and yet such a designation of the offense would have come far short of stating all the elements of the offense of assault and battery.

The case of The People ex rel. Trainor v. Baker (89 N. Y. 460) sustains our construction of this statute. Trainor was imprisoned in the Erie County Penitentiary under a mittimus issued out of the Court of Sessions of Genesee county. It recited that he was indicted and convicted “ for an assault and resisting an officer.” It appeared upon the return of the keeper to a writ of habeas corpus that the relator was convicted of the crime of resisting a sheriff in the execution of a process under section 17, chapter 69 of the Laws of 1845, which provided as follows : “Every person who shall resist, or enter into a combination * * * to resist the execution of process, shall be guilty,” etc. It was held, after hearing the relator and the keeper, that the relator was not entitled to his discharge because of any imperfection in the mittimus. The relator appealed to the Court of Appeals where the decisions below were affirmed. Judge Earl, writing the opinion of the court, stated that if need be the mittimus could have been amended, and that if the court was required to hold that the relator was convicted of a simple assault and battery, he would not have been entitled to his discharge because of any informality in the mittimus. The mittimus in that case was quite as informal as was the certificate here.

¥e are not called upon here to review the judgment of the Court of Special Sessions to ascertain whether, when the relator was arraigned, a complete statement of the offense was stated to him, but if we were reviewing the judgment and it was made to appear that the relator was simply charged when arraigned with having indecently exposed' his person, he having, pleaded guilty, and not requested a more particular statement of that which constituted the offense, the judgment convicting him of a violation of the section mentioned would, we think, have been good.

All that is required is that the judgment shall sufficiently specify the offense, so as to protect the defendant from again being tried for the same offense, but whether our construction of the form of the judgment be correct or not, we think the intention of the Legislature was that the certificate of conviction should simply mention or designate the offense by the name by which it is popularly and commonly known.

The order appealed from should be reversed.

Dwight, P. J., concurred ; Bradley, J., not voting.

Ward, J.

(dissenting):

On the 4th of September, 1894, John Ryan was convicted as appears by the following certificate of conviction:

Court oe Special Sessions, 1
“ County oe Monroe, Town of Perinton, )
The People of the State of New York against John By an:
“The above-named John Ryan having been brought before me, Isaac S. Ilobbie, justice of the peace of the town of Perinton, charged with indecent exposure of the person and intoxication, and having requested to be tried by a Court of Special Sessions, and the above-named John Ryan having thereupon pleaded guilty, and having been thereupon duly convicted, we have adjudged that he be imprisoned in the Monroe County Penitentiary for the term of ninety days.
“ Dated at the town of Perinton, in said county, the 4th day of September, 1894.
“I. S. IIOBBIE,
Justice of the Peace J

Upon a certified copy of this judgment the relator was confined in the penitentiary. Upon application to the county judge a writ of habeas corpus was issued by him, directed to the superintendent of this penitentiary, inquiring into the cause of the imprisonment.

The superintendent returned to the writ that the relator was held by him by virtue of the, judgment above set forth. Upon such return the learned county judge made an order that the relator be discharged on the ground that “the commitment was fatally defective,” and tlie question here is whether this discharge can be sustained.

The appellant claims that the discharge was erroneous; that the judgment being valid is conclusive, and the relator could not be discharged upon habeas corpus. There is no appearance here for the respondent or brief submitted'. TIis attorney filed a stipulation that the case might be submitted on the part of the appellant.

It is, nevertheless, the duty of the court to examine the case and dispose of it upon legal principles.

The only inquiry which the county judge could make upon the, return of the writ was whether it appeared from the judgment itself that the Court of Special Sessions had jurisdiction. (The People ex rel. Danziger v. The Protestant E. House of Mercy, 128 N. Y. 185, 186 ; The People ex rel. Catlin v. Neilson, 16 Hun, 214.)

By section 2031 of the Code of Civil Procedure the imprisoned party must be discharged “ if no lawful cause for the imprisonment or restraint, or for the continuance thereof, is shown.”

We assume that, the county judge discharged the prisoner, because it did not appear from the judgment that he was held for any crime that the court had jurisdiction to try.

While it is no longer necessary for the judgment of the Court of Special Sessions to recite the facts giving jurisdiction — and it is only necessary to state that the prisoner is charged with some crime that the court has jurisdiction to try, “ briefly designating the offense ” (Code Crim. Proc. § 721)- — -still it must affirmatively appear that some offense has been committed by the party charged that is prescribed by the Penal Code or some statute not repealed by it (§ 2), and which “ defines the nature of the various crimes.” (§ 7.)

The record of conviction states that the relator was brought before the court “ charged with indecent exposure of the person and intoxication ; ” that the relator thereupon pleaded guilty, and having been duly convicted, was imprisoned, etc.

A Court of Special Sessions is a court of limited jurisdiction, and has no jurisdiction but what is given it by statute, and no presump-' tion will be indulged in in support of such jurisdiction. (People v. Mallon, 39 How. Pr. 454; In the Matter of Emma Travis, 55 id. 347 ; Cases of Lynch and Burns, 9 Abb. N. C. 69.)

And the jurisdiction must appear by the judgment. (Powers v. The People, 4 Johns. 292; Matter of Travis, supra ; Thomas v. The People, 19 Wend. 480.)

In People v. Maschke (2 N. Y. Crim. Rep. 168) the record of conviction stated that the defendant was convicted of “the misdemeanor of assault and battery.” The court held that a sufficient statement of an offense triable by a Court of Special Sessions in the record. This is undoubtedly so, as the court has power to try assault in the third degree, and that, by the Code, is made a “ misdemeanor.”

The other degrees of assaults are felonies.

Assuming that the above statement is a statement that the relator was convicted of the offense charged, the question is, of what offense, if any ? It was an offense at common law for a person in a public place to willfully expose his person; and in the shameful reign of Charles II Sir Charles Sedley was punished by imprisonment and a heavy fine for standing naked in a balcony in a public park in the city of London. We do not find that any offense of this nature was recognized in any of the statutes of this State until the adoption of the Penal Code, section 316 of which provides that “ a person who willfully and lewdly exposes his person, or the private parts thereof, in any public place, or any place where others are present, or procures another to expose himself, is guilty of a misdemeanor.”

In 1893 Courts of Special Sessions were given jurisdiction to try the crime of “ exposure of the person contrary to law.”

This was, undoubtedly, the offense of which it was sought to convict the relator. In the books, to some extent, and in common parlance, the offense has been designated “ indecent exposure of person,” but in order to convict of the statutory offense three things must concur; the exposure must be in a public place or where others are present; it must be a willful exposure and a lewd one. If any one of these important elements are lacking the crime is not committed. The exposure must be intentional. (Mills v. The People, 5 Barb. 203.)

„ It is elementary that, in proceedings to punish all crimes where, the intent is material, intent must be alleged and proved.

It may be an exposure of the person that is indecent, but does not indicate a lewd purpose. It may be an exposure that is indecent, but not public in the sense in which that term is understood in this connection. Judged by this standard, what becomes; of the charge upon which this man is convicted ? No importance' is attached by the appellant to the statement in the record as to the relator’s-intoxication, and none can be, as it is not a crime to be intoxicated except in a public place. (§ 35, chap. 401, Laws of 1892.)

Eliminating this element from the case— and we have simply the. statement that the relator had been guilty and was convicted of indecent exposure of the person ” — that bare statement does not-allege any crime known to the law of this State.

The order of the county judge discharging the relator should be; affirmed.

Order reversed.


source: Caselaw Access Project

author: Memorandum, Ward, J. :

license: Public Domain

text:
    Ella Pryor, Respondent, v. John Chadwick, Appellant.

      Personal injuries — excessive damages.

    A verdict for 81,500, rendered upon the trial of an action brought to recover damages for serious personal injuries, will not be set aside as excessive where the judge’s charge was fair and no exception was taken, and where no requests to charge were made by the defendant.
    Appeal by the defendant, John Chadwick, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Niagara on the 10th day of February, 1894, upon the verdict of a jury rendered after a trial at the Niagara Circuit, with notice of an intention to bring up for review upon such appeal an order dated the 19th day of February, 1894, denying the defendant’s motion for a new trial made upon the minutes.

      Swnson, Hct/rrington & Hol/rnan, for the appellant.

      G. V. Siclcmon, for the respondent.
   Memorandum, Ward, J. :

Appeal from a judgment obtained upon a verdict in favor of the plaintiff for personal injuries, and from an order denying a motion for a new trial. The verdict for the respondent was $1,500 for injuries caused by the defendant’s assault, producing a miscarriage and serious personal injury and suffering.

There was no exception taken in the course of the trial nor any to the judge’s charge nor any request to charge.

The appellant now complains of certain portions of the charge, and that the verdict is excessive. Neither contention is sustained.

There was proof justifying the jury in finding the verdict and it cannot be interfered with here ; the judge’s charge was unobjectionable.

The judgment and order denying a new trial should be affirmed, with costs.

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

Judgment and order affirmed.


author:
Bradley, J. :
     Ward, J.

text:
    The City of Buffalo, Plaintiff, v. Alfred H. Neal, Defendant.

      Statutes — repeal by .implication — repugnancy — payment of fines to county treasurers— Laws o/1891, chap. 105, § 385; 1893, chap. 686, § 333.
    A repeal of a statute by implication is not favored, and the provisions of a local or special act will not be deemed repealed by a later general enactment, unless it is manifest that such is the legislative intent, although the provisions of the latter are in terms sufficiently comprehensive to embrace the subject of the special or local one, and in its absence would do so.
    To effect the repeal by implication of the provisions of a statute by those of a subsequent one, it is sufficient that they are necessarily repugnant. This does not follow merely because they cover the same subject, and in the absence of either the other would be operative upon it. The repugnancy which has the effect to repeal provisions of a former statute is dependent upon the intent of the latter one as manifested in its purpose.
    The provisions of the Buffalo city charter (Laws of 1891, chap. 105, § 385), directing the keeper of the Erie County Penitentiary to pay over such fines as he should collect to the city treasurer of Buffalo, was repealed by implication by section 333 of chapter 686 of the Laws of 1893, a general act known as “the County Law,” which directs any county officer who shall receive any such fines to pay them to the county treasurer.
    Ward, J., dissenting.
    Submission of a controversy upon the following agreed statement ■of facts, under section 12Y9 of tlie Code of Civil Procedure.

      “Whereas, a controversy exists between the City of Buffalo of the one part, and Alfred H. Neal of the other part, as follows:
    The City of Buffalo claims that said Alfred H. Neal is indebted unto it in the sum of $5,546.05, being the amount of fines and penalties collected by him from prisoners duly sentenced to the Erie County Penitentiary, of which ho is keeper, for violation of ordinances of the City ox Buffalo, which he has failed and neglected to pay over unto said city; and
    “ Whereas, upon his part, the said Alfred H. Neal claims that he is not liable to pay said fines and penalties, or any of them, over unto the said city; and
    “ Whereas, the said parties have agreed to submit the said controversy to the Supreme Court of the State of New York, Fifth Department, under the provisions of Art. 2 of title II of Chap. II of the Code of Civil Procedure.
    “Now, therefore, the following facts are conceded and stipulated by said parties for the purpose of such admission, to wit:
    “ First. That the plaintiff, the City of Buffalo, is a domestic corporation, duly incorporated by and under the laws of the State of New York, being Chapter 105 of the Laws of 1891.
    “ Second. That the defendant, Alfred H. Neal, is and at all the times hereinafter mentioned was keeper of the Erie County Penitentiary, duly elected, qualified and acting as such, which penitentiary is located in the city of Buffalo aforesaid.
    “ Third. That from the tenth day of April, 1894, to the first day of January, 1895, inclusive, the defendant, Alfred II. Neal, as such keeper of the Erie County Penitentiary, collected and received from prisoners duly committed to said Erie County Penitentiary on executions duly issued upon judgments for fines, duly imposed and entered against such prisoners, within the city of Buffalo, by justices of the police of the city of Buffalo, fines and penalties theretofore duly imposed by such justices to the extent and amount of $5,546.05, such prisoners having been delivered to said keeper upon such executions and upon the failure of the prisoners to pay the judgment and fines, and said defendant has not paid over said sum or any part thereof to the treasurer of the city of Buffalo, but retains the same in his possession.
    “ Fourth. The questions submitted to this court upon this case .are as follows: Was it and is it the duty of the defendant, Alfred H. Neal, as sueli keeper of the Erie County Penitentiary, to pay over ;said fines and penalties to the treasurer of the city of Buffalo, every week, pursuant to the provisions of section 385 of the charter of the city of Buffalo., which provides as follows : ‘ All fines and penalties imposed by any or either of the justices to the police, collected by .them or the keeper of the Erie County Penitentiary, or otherwise, shall be paid over every week by the person receiving the same to -the treasurer of •the city of Buffalo, and be by said treasurer credited ■to the police fund of -said city for the use and benefit thereof.’
    “ Or was it and is it his duty to pay said moneys over to the treasurer of Erie county, pursuant to the provisions of sections 233 and 234:, chap. 686of the Laws of 1892, which became of force May 18th, 1892, and which -are as follows:
    “ ‘ Sec. 233. Annual report of county officers.— Each county ■officer who shall receive, or is authorized by law to receive, any money on account of fines or penalties, or other matter in which his ■county or any town or .city therein shall have an interest, shall -annually make a written report to the board of supervisors of his county, verified to be true, bearing date the first day of November, .stating the time when and the name of every person from whom such money has been received, the amount thereof, on what account received, and the sums remaining due and unpaid, and if no such money has been received his report shall so state. Such report ■shall be filed with the clerk of the board on or before the fifth day of November, and no such officer shall be entitled to receive payment for his services unless he shall file with the supervisors, or ■other officers performing their duties, his affidavit that he has made .such report and paid over all moneys which he is required to pay over; within ninety days after receiving any such money, such officer shall pay the same, without any deduction, to the treasurer of his county, who shall execute duplicate receipts thereof, one of which he shall deliver to the person paying the money, and attach the other to his annual report herein required; but nothing herein ■shall be construed to apply to moneys received by any town or city •officer in his official capacity as -such, specially appropriated for any town or city purpose.

      “ ‘ Sec. 234. Recovery and disposition of moneys.— The district attorney shall sue for and recover in behalf of and in the name of his county the money received by any officer for or on account of his county or any town or city therein, and not paid to the county treasurer, as herein required.
    “ ‘ All moneys belonging to any town or city in such county which shall be received by the county treasurer shall be distributed to the several towns or cities entitled to the same by resolution of the board of supervisors, which shall be entered in the minutes of its proceedings.’

      “ Fifth. The plaintiff claims and contends that it was and is the duty of the defendant to pay said moneys over to the treasurer of the plaintiff pursuant to the provisions of its charter above quoted, and the defendant claims and contends that it was and is his duty to pay said moneys over to the treasurer of the county of Erie pursuant to the provisions of law above quoted.
    “ Sixth. If the court decides that it was the duty of the defendant to pay said moneys over to the treasurer of the plaintiff, then judgment is to be rendered in favor of the plaintiff and against the defendant for said sum without costs ; and if the court decides that it was not the duty of- the defendant to pay said moneys over to the treasurer of the plaintiff, then judgment is to be rendered in favor of the defendant without costs.
    “ Seventh. It is expressly understood and agreed that the plaintiff, by consenting to stipulate this case, does not waive any right or cause of action it may have against the defendant to recover fines or penalties previously collected and received by the defendant, nor shall the bringing of this action or the judgment or determination hereof be treated as a defense or bar to any action that may be brought against the defendant by plaintiff on account of such previously collected fines and penalties.

      “ In testimony whereof, the city of Buffalo has caused these presents to be subscribed by its corporation counsel, Frank 0. Laughlin, pursuant to a resolution of the common council, and the defendant has hereunto set his hand this fourth day of January, 1895.
    “ CITY OF BUFFALO,
    By Frank 0. Lau&hlin, its Corporation Counsel, “A, IT. NEAL.”

      The submission was accompanied by the required affidavit of one of the parties, and was duly acknowledged.

      Fra/nk G. Icmghlin, for the plaintiff.

      James L. QuaoJcenbush, for the defendant.

      -So -in original.

   Bradley, J. :

The defendant, as keeper of the Erie County Penitentiary, received during a specified period $5,546.05 from prisoners committed to that institution by virtue of executions issued on judgments for fines imposed and entered against them within the city of Buffalo by justices of the police of that city on the failure of the prisoners to pay the judgments.

The defendant retains that money in his possession. ’Whether or not it is the duty of the defendant to pay that .money to the treasurer of the city of Buffalo is the question to lie determined. By the charter of the city it is provided that “all fines and penalties imposed by any or either of said justices, collected by them or the keeper of the Erie County Penitentiary, or otherwise, shall be paid over every week by the person receiving the same to the treasurer' of the city of Buffalo, and be by said treasurer credited to the police fund of said city for the use and benefit thereof.” (Laws 1891, chap. 105, § 385.) ‘

The duty of the defendant to pay the money to the treasurer of the plaintiff would not be questioned if it were not for a later statute which provides that “ each county officer who shall receive or is. authorized by law to receive any money on account of fines or penalties or other matter in which his county or any town or city therein shall have an interest, shall annually make a written report to the-board of supervisors of his county, verified > to be true, bearing date the first day of November, stating the time when and the name of every person from whom such money has been received. * * * Such report shall be filed with the clerk of the board on or before the fifth day of November, and -no officer shall be entitled to receive payment for his services, unless he shall file with the supervisors, or other officers performing their duties, his affidavit that he has made such report, and paid over all moneys which he is required to pay over; within ninety days after receiving any such money, such officers shall pay the same without any deduction to the treasurer of his county, * * * but nothing herein shall be construed to apply to moneys received by any town or city officer in his official capacity, as such, specially appropriated for any town or city purpose.” (Laws 1892, chap. 686, § 233.)

Also “ The district attorney shall sue for and recover, in behalf of and in the name of his county the money received by any officer for or on account of his county, or any town or city therein, and not paid to the county treasurer as herein required. All moneys belonging to any town or city in such county, which shall be received by the county treasurer, shall be distributed to the several towns or cities entitled to the same by resolution of the board of supervisors which shall be entered in the minutes of its proceedings.” (Id. § 234)

The keeper of the Erie County Penitentiary is a county officer, and if the provisions of the last-mentioned act are applicable to him in respect to the fund in question his duty is to pay it to the treasurer of that county. This cannot be so unless these provisions of the charter before mentioned, so far as relate to the manner of receiving the money, were rendered inoperative by force of those of the later act. It is the well-settled and prevailing rule applicable to the construction and effect of statutes in their relation to each other that repeal by implication is not favored, and that the provisions of a local or special act will not be deemed repealed by a later general enactment unless it is manifest that such is the legislative intent, although the provisions of the latter are in terms sufficiently comprehensive to embrace the subject of the special or local one, and in its absence would do so. (In Matter of the Evergreens, 47 N. Y. 216 ; Matter of Comrs. of Central Park, 50 id. 493 ; People v. Quigg, 59 id. 83; Whipple v. Christian, 80 id. 523 ; Buffalo Cemetery Assn. v. City of Buffalo, 118 id. 62.)

The act of 1892 is known as the County Law.” It was intended as a codification of the laws on the subject to which it relates, and thus to embrace the entire statutory system, governmental and otherwise, of the counties of the State other than the county of New York, in a single chapter. And by its provisions in question the purpose evidently was to render the action of this class of officers of the several counties subject to the supervision of the board of supervisors so far as relates to moneys which, should come into their hands whatever should be the ultimate disposition of the funds. By their terms those provisions appear to be no less applicable to Erie county than to other parts of the State. There -is, therefore, an apparent repugnancy. The plaintiff's charter provides that such money so received by the keeper of the Erie County Penitentiary shall be paid by him to the city treasurer weekly, while the later general act provides that he shall pay such moneys to the county treasurer. There is nothing in the act of 1892 other than in its general scope and purpose bearing upon the question whether it has superseded the provisions in question of the city charter.

But to effect the repeal by implication of provisions of a statute by those of a subsequent one, it is sufficient that they are necessarily repugnant. This does not follow merely because they cover the same subject and in the absence of either the other would be operative upon it. The repugnancy which has the effect to retire provisions of the former statute, is dependent upon the intent of the later one as manifested in its purpose.

In determining the question of the comprehensive effect intended by the act of 1892, the fact that it was designed as a code of statutory law relating to the counties of the State is entitled to some consideration. In Harrington v. Trustees of Rochester (10 Wend. 547) the question whether the Revised Statutes upon the subject of excise operated to repeal a provision upon the same subject in the prior act incorporating the village of Rochester, the court, by Hr. Chief Justice Savage, there said : “ The repugnancy is apparent, and the consequence of that repugnancy is palpable; ” that the Revised Statutes are a new code of laws and were intended by the Legislature to supersede existing laws which were repugnant to them.” Anddt was held that such was the effect of the provisions there in question.

In People v. Supervisors (73 N. Y. 173) it was held that a general act limiting the compensation to which county treasurers should be entitled on account of moneys derived from State taxes operated to repeal local acts upon the subject because it was intended to be applicable to the entire State; and it was there said, “ it is a rule that where there are no words of explicit repeal in a later act it does not repeal by implication a former act unless the later enactment is so repugnant to the former as that they both cannot exist together. This rule applies in an especial manner where the former enactment is local and the later one is general. Yet if it is plain that the Legislature meant to make a new and exclusive rule for the whole State and for all cases, the local act must yield to the later general act.” This proposition, in substance and effect, has the sanction of repeated judicial authority. (People ex rel. Killeen v. Angle, 109 N. Y. 564, 575 ; Anderson v. Anderson, 112 id. 104; Matter of Washington St., A. & P. R. R. Co., 115 id. 442; Matter of N. Y. Institution, 121 id. 234; Cromwell v. MacLean, 123 id. 474, 485.) The act of 1892 was designed as a consolidation and revision of all the statute law relating to the entire State except the county of New York, and to provide a system comprehensive and complete in relation to all the counties embraced within its provisions. And in respect to the subject-matter in question, those and the provisions in question of the charter of the city of Buffalo cannot stand together.

While those of the later act do not affect any substantial right of the city in respect to the money in question, it does provide a different method of transmission of it from the county officer to the ■ city treasury. It may possibly be attended with more delay than formerly, and the change of method may be unimportant in its reason and purpose. But the view here taken is that the county of Erie is not excepted from the operation of the later statute in any respect, and that such provision of the city charter is superseded by it.

The defendant is, therefore, entitled to judgment, without costs.

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

Ward, J.

(dissenting):

The fines and penalties specified in this submission belong to the city of Buffalo, whether paid into the city treasury by the keeper of the Erie County Penitentiary in the manner required by the charter of the city, or whether they come to the city through the circumlocution of chapter 686 of the Laws of 1892. The most natural and reasonable way would be as provided by the charter, that being a direct way, and the money is paid over, substantially, as soon as it is received by the keeper. By the other process the keeper must pay over the money to the county treasurer within ninety days after its receipt, keep an account of it and make an annual report to tbe supervisors of the county, and then they, by a resolution, shall turn it over to the city. It is claimed by the defendant that chapter 686 became a law after the adoption of the Buffalo charter, and consequently was the latest declaration of the legislative will upon the subject, and is controlling, it being an implied repeal of the provision of the charter as to the manner of the payment of this money by the keeper. Chapter 686 is a general statute affecting the whole State, and is entitled “ An act in relation to counties, constituting chapter 18 of the general laws.” It is what is generally known as The County Law,” and its purpose was to embrace statutes of the State affecting the government of counties, as such, and does not assume to be a revising statute, otherwise, nor does it assume to repeal any laws affecting the government of cities or otherwise, except as set forth in “ the schedule of laws repealed ” appended to said County Law, and made a part thereof, and in subh schedule we do not find the repeal of this provision of the Buffalo charter. We must assume, therefore, that as this County Law specially designates the statutes which it is intended to repeal, that the Legislature, in enacting it, did not intend to repeal, by implication, the section of the charter under which the plaintiff claims.

Repeals by implication are not favored.

And it is well settled that a special and local statute providing for a particular case, or class of cases, is not repealed or amended as to some of its provisions by a statute general in its terms, provisions and applications, unless the intent to repeal or alter is manifest, although the terms of the general act would, but for the special law, include the cases provided for by the latter. (In the Matter of the Application of Commissioners, etc., Relative to Opening Avenues in New York City, 50 N. Y. 493; People v. Quigg, 59 id. 83; Buffalo Cemetery Association v. City of Buffalo, 118 id. 61; James v. Sammis, 132 id. 239; Aldinger v. Pugh, 57 Hun, 181; In the Matter of the Application of Brown v. The Board of Aqueduct Commissioners of New York, 60 Hun, 98 ; Harrington v. Trustees of Village of Rochester, 10 Wend. 552; Van Denburgh v. The Village of Greenbush, 66 N. Y. 1; Whipple v. Christian, 80 id. 523.)

In the last two cases it was held that the lien laws affecting special localities and counties were not repealed by a general lien law of the State subsequently passed, in the absence of repealing clauses to that effect.

The learned counsel for the defendant cites several cases, which mainly relate to the effect of subsequent general statutes upon prior general ones, and where the courts hold that when the Legislature manifests a design to embrace the subject-matter of the former statute in the latter, the former is repealed by implication. These cases do not aid us.

Section 385 of the Buffalo charter was, therefore, in full force at the time that the moneys sought to be recovered from the defendant were received by him, and constitutes the guide of his action.

It is true that section 234 of chapter 686 (the County Law) requires that the county treasurer shall distribute all moneys belonging to any town or city in such county received by him as the board of supervisors shall direct.

This can only refer to such moneys as the treasurer is entitled to receive under the County Law, and as by the charter this money does not go into the hands of the county treasurer at all, the provision of the act of 1892 has no application.

There is no such incongruity between the provisions of the city charter and that of the provisions of the general County Law as prevents their standing and being enforced together.

As to this particular police fund the charter prevails and the money must be paid to the city treasurer according to its provisions.

It follows from these views that the plaintiff should have judgment under the stipulation for the sum of $5,546.05, but, under the stipulation, without interest or costs. Costs are not to be awarded to either party.

Judgment directed for defendant, without costs.


author: P. M. French, Referee:

text:
    New York Central and Hudson River Railroad Company, Respondent, v. Andrew J. Davis, Appellant, Impleaded with Others.

      Implied promise to pay for services — undisclosed principal — waiver of a lien of a common carrier — -effect of a partial delivery — what does not constitute delivery so-as to waive a lien.

    Immediately, upon a request being made that services be performed and tbe performance of the services, the law implies a promise upon the part of the person requesting such performance to pay the person who renders the same at liis. request whatever the services are reasonably worth, and the fact that the person performing such services, at the time of the performance thereof, did not know the name of the person requesting such performance and had no personal dealings with him concerning the transaction, in no way affects the liability of the person requesting that the services be rendered.
    Where a person deals with the agent of an undisclosed principal, it is the undoubted right of such person as soon as the principal is discovered to look to him for the fulfillment of the contract made by such agent pursuant to his authority.
    To constitute a waiver of its lien by a common carrier, delivery must be made with such intent, or it must be made under such circumstances that the law will presume the intent to have existed, and nothing1 must remain to be done by the carrier in order to fully perform its contract.
    A delivery may be complete for one purpose and not for another. A delivery of a part of merchandise transported by a common carrier does not discharge the-carrier’s lien upon the undelivered portion thereof. If the lien is not waived, it remains attached to whatever portion of the property may remain in the possession of the carrier.
    A railroad company placed certain cars containing coal, which had been transported by it, upon " a stub track,” so called, which was built upon land owned by the consignee, the land and railroad ties having- been furnished by such consignee, and the iron by the railroad company. The track was operated solely by the railroad company, and in order to place the cars in a position where the coal could be unloaded by the consignee, it was necessary to draw the cars off from the stub track on to the track of the railroad company and then upon another track, for which service the railroad charged the consignee.

      Held, in an action brought to establish a lien for freight' charges upon the coal contained in the cars, that as the coal could not be unloaded without the railroad company’s further intervention, nor without the use of its engine and crew, the merchandise was still, for the purposes of the railroad company’s lien, in the possession of the railroad company.
    Appeal by tbe defendant, Andrew J. Davis, from a portion of a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 20th day of April, 1894, upon the report'of a referee.

      J. B. M. Stephens, for the appellant.

      Albert U. Harris, for the respondent.
    Present — Dwight, P. J., Lewis and Bradley, JJ.
    Judgment affirmed on the opinion of the referee.
   The opinion of the referee was as follows:

P. M. French, Referee:

The plaintiff is a common carrier of goods, among other places between Lyons and Charlotte Docks, in the State of New York. The defendant Andrew J. Davis is a producer, a miner and shipper of coal, owning the mines known as the 'Warrior Run Colliery, near "Wilkesbarre, in the State of Pennsylvania. In the months of March and April, 1893, the defendant Davis shipped from his said mines to Charlotte Docks two thousand four hundred and' twenty tons (2,420) and twelve hundred weight (12 cwt.) of coal, which was consigned to the defendant Arthur G. Yates. Although Mr. Yates was the consignee, he was not the owner of the coal, and had no interest in it. It was sent to him by the owner, Mr. Davis, as had been done for several years before for what was known between them as “stocking purposes,” i. e., to be retained by Mr. Yates until Mr. Davis should sell it, when it was to be forwarded in vessels loaded from Mr. Yates’ docks, and for which service Mr. Yates was to be paid by Mr. Davis a handling charge of thirty cents ($.30) per ton, and the question presented is precisely the same as though the coal had been consigned by the defendant Davis to himself. The coal in question was by the defendant Davis at his said mine delivered to the Lehigh Valley Railroad Company, which is also a common carrier of goods, having a line connecting with the plaintiff’s line at Lyons, and, upon the delivery of such coal, he received from the Lehigh Valley Railroad Company a manifest, dated at the 'Warrior Run Colliery, in the following language: “ Shipped by A. J. Davis, per Lyons and N. Y. C. Railroads, the following cars of coal to be delivered to A. G. Yates, at Charlotte Docks,” and then follow the car numbers wicli the total tonnage. The Lehigh Valley Railroad Company transported the coal in question to Lyons and there delivered it to the plaintiff, with the request that it be carried thence to Charlotte Docks, which service was performed and1 for which the plaintiff has received no compensation. Although nearly 200 type-written pages of evidence have been taken and exhibits by way of manifests and way bills have been offered in evidence until, in 'their marking, the alphabet has been more than exhausted, the question, so far as this branch of the case is concerned, seems to me to be elementary and very simple. It is evident from the manifests that the defendant Davis requested the Lehigh Valley railroad to transport this coal to Lyons, and to request the plaintiff to transport it from there to Charlotte Docks, and the service so requested has been performed. For the purpose of delivering the coal to the plaintiff at Lyons and requesting its transportation to Charlotte Docks, the Lehigh Valley Railroad Company was the owner’s agent, and the situation is the same in that respect as though the owner had personally delivered the coal to the plaintiff and requested the plaintiff to carry it. The law at once, upon such request and service, implies a promise upon the part of the shipper, the defendant Davis, who was the owner of the coal, to pay to the plaintiff whatever such service is reasonably worth, which the evidence shows to be forty cents ($.40) per ton, making for the coal so transported the sum of nine hundred sixty-eight dollars and twenty-four cents ($968.24), a demand for which was made upon the defendant Davis before the 1st of May, 1893, and for which sum, with interest from May 1, 1893, the plaintiff is entitled to judgment against him. The fact that the plaintiff at the time of performance did not know the owner’s name and had no personal dealings with him concerning the transaction, in no way affects the question. It dealt with the agent of an undisclosed principal and as soon as the identity of the principal was discovered it was the plaintiff’s undoubted right to look to him for a fulfillment of the contract so made pursuant to his authority.

The other branch of this case presents a question which to my mind is much more difficult of solution. The plaintiff seeks in this action also to enforce its lien for 'carriage upon the coal so carried; no question has been raised concerning the misjoinder of causes of action, but the parties have tried both causes of action together. Tlie difficulty occurs in determining whether the coal has been delivered to the consignee, Mr. Yates. At the time of this transaction Mr. Yates was the owner of property known as Charlotte Docks, situate near the village of Charlotte, upon the left bank of the Genesee river, and comprising between eight and nine acres of land, adjoining the plaintiff’s right of way. At that point the river bank is about twelve hundred feet (1,200) easterly from the main track of the plaintiff leading from Rochester to Charlotte. Mr. Yates was, and for many years had been, a very large dealer in coal, and for the purpose of handling it it was found necessary to build certain spurs, or, as they have been called in the evidence, “ stub tracks,” leading from the plaintiff’s main line on to the said real estate owned by Mr. Yates, upon which tracks the coal in question was placed by the plaintiff and there remained up to the time of the commencement of this action. The tracks are seven (7) in number, and were built upon land owned by Mr.- Yates; the land and ties were furnished by him and the iron was furnished by the plaintiff. The tracks were to be maintained from time to time by the furnishing of ties by Mr. Yates and the furnishing of the iron by the plaintiff. They were operated solely by the plaintiff, and a part of the charge of forty cents ($.40) for transporting the coal from Lyons to Charlotte Docks, included not only the placing the coal upon these tracks, but also from time to time, as it "was needed at the docks, transporting it from these tracks to the docks proper. The stub tracks connected with the main line of the plaintiff’s road at their northerly end, and led thence southerly and easterly, and terminated before reaching the coal docks, and the only way that the coal could be transported from them to the coal docks was by drawing the cars northerly upon the right of way of the plaintiff, and thence transporting them southerly and easterly upon another track which led directly to the docks. From time to time as this coal was wanted at the docks'Mr. Yates or his superintendent would so inform the plaintiff’s agent, and the plaintiff’s engine and crew would draw the cars from the stub tracks on to the plaintiff’s right of way, and thence to and on to the tracks leading to the coal docks at the river bank. Of course, if placing the coal upon these stub tracks amounted to a delivery to Mr. Yates it was tbe same as a delivery to the defendant Davis, and the lien for carrying the coal would at once be lost.

To constitute a waiver of lien the delivery must be made with such intent, or it must be made under such circumstances that the law will presume the intent to have existed and nothing must, remain to be done by the carrier in order to fully perforin its contract. This coal was transjiorted to the point of destination and the cars containing it were disconnected from the engine which had drawn them. It stood on the stub tracks ready for delivery, just as other property more easily unloaded from the cars might have been stored in tho railroad warehouse until the consignee should be ready to receive it. It thus stood ready for delivery within sight of the consignee’s superintendent of the dock property, ready to be drawn on to the coal dock track when it was wanted there. I am unable ' to discover the act on the part of the plaintiff which shows an intent to waive its lien. *Tlie coal could not be unloaded at the docks, its final destination, without plaintiff’s further intervention, nor without tiie use of its engine and crew ; something more for it to do still remained. I think, for the purposes of its lien, it must be held that the coal was still in the plaintiff’s possession. A delivery may be complete for one purpose and not for another. (Lane v. Old Colony & Fall River R. R. Co., 14 Gray, 143.) All of this coal except seven hundred twenty-six tons (126) and twelve hundred weight (12 cwt.) had, before the commencement of this action, been actually delivered to Mr. Yates and dumped from the cars at the river bank upon the coal docks, and as to the coal so delivered no claim for a lien could be sustained or is made, but a delivery of a part of the coal does not discharge the lien on the portion retained. If not waived, it remains attached to whatever part of the property carried may remain in possession of the carrier. (Potts v. N. Y. & N. E. R. R. Co., 131 Mass. 456; Barker v. Brown, 138 id. 340-344.), The plaintiff claims a lien upon this coal so upon the stub tracks, amounting to seven hundred and twenty-six tons (126) and twelve hundred weight (12 cwt.), only for its carriage and not for the carriage of any other portion of the coal, and it is, therefore,, unnecessary to determine what particular cars were included in each particular consignment.

The defendant Davis insists that the plaintiff’s lien for carrying this coal was lost because it extended credit to Mr. Yates. I am unable to find from the testimony any agreement for such extension of credit. The business was conducted, the coal delivered and the freight collected as such transactions are usually conducted when bulky articles are transported, and a little time must necessarily intervene between delivery and payment. Under such circumstances delivery and payment could only be practically concurrent; they could not be actually so. The evidence shows it was the habit of the station agent in charge of the Charlotte Station to present at Mr. Yates’ general office in the city of Eochester, on the seventh,' fourteenth, twenty-first and last days of each month, bills for freight for the coal delivered during the then preceding week. That seems to have been the custom in the transaction of this business, adopted for the convenience of all parties concerned. I find from the testimony no agreement that the plaintiff should wait any length of time after delivery of coal before collecting its freight.

If the defendant Davis is correct in his version of his conversations with the assistant general freight agent of the plaintiff at New York there is no estoppel, for the reason that defendant Davis has done nothing and has lost no rights, which lie had before, in reliance upon anything which he says was told him or which was written to him by the assistant general freight agent.

Eor the reasons stated above, it seems to me that the defendant Davis has failed to establish a defense to either cause of action, and the plaintiff is entitled to the relief asked for in. the complaint.


author: Rumsey, J.:

text:
    John Eastwood, as Administrator, etc., of Jay W. Eastwood, Deceased, Respondent, v. The Retsof Mining Company, Appellant.

      Motion foi' a new trial — proof of facts not pleaded — negligence in an action for injury must be proved — questions for the jury — employees duty as to rules — contributory negligence, no presumption in regard thereto —plaintiff must prove its absence —presumption as to desire to preserve life.

    Upon a motion for a new trial made upon tlie minutes of the court, it must be assumed that the jury found jn favor of the successful party on all conflicting evidence.
    When one seeks to enforce the rule that facts proven in a case are not available unless they are pleaded, he must take that objection upon that ground on the trial, and if the objection to the proof of the facts is not put upon that precise ground at the trial, it cannot be taken advantage of at any later time.
    In an action brought to recover damages resulting from the death of the plaintiffs intestate through the defendant’s negligence, the negligence of the defendant must be proved, and the jury in the absence of proof cannot be allowed to base its verdict upon any inference or guess that there was negligence on the part of the defendant which might have tended to do the mischief, and ordinarily no presumption of negligence arises from tile mere fact that an accident has occurred.
    It cannot be said that a claim of negligence is to be decided in such case as a question of law, simply because the material facts of the case are not in dispute. The court may only take the case from the jury where not only the facts are undisputed, but where only one set of inferences can he drawn from those facts and those inferences lead to only one conclusion.
    It is the duty of all persons and corporations having many men in their employ in the same business to make and promulgate rules which, if observed, will afford protection to the employees. This is more necessary where the manner of doing business is such, that the danger or safetjr of an employee at any given time depends upon the way in which some other employee is engaged at the same time. In such a case as that, where the action of one employee may make that dangerous, which, if he took no action, would be safe, it is the duty of the common employer to make such rules as will enable the person whose safety is put at risk to he advised of the danger and to avoid it.
    The employer is, however, only required to make rules to guard against such accidents and casualties as may reasonably he foreseen, and is not bound to use more than reasonable care in deciding whether rules are necessary.
    In every case his duty is performed by the exercise of reasonable care in deciding in the first place whether rules are necessary, and in the second place in making such rules as appear to he sufficient, and the question in either ease may be one for the jury.
    When the question is whether the case was one in which rules ought to have been made, the fact that other people or corporations engaged in the same lousiness had or had not found it necessary to make rules upon that subject, is one which may well he considered, but the fact that no such rules had been made by others is not conclusive against the necessity of making them in the particular case. It is merely a fact to be considered.
    Where the business is complicated, the circumstances are those which do not often occur and the danger is not serious, it may well be that the fact that other people engaged in the same business have found no necessity for making Tules, in a particular case, may be almost conclusive that such rules are not necessary, hut where the circumstances are such that any person can see what might happen in a given case, and the danger is plain and obvious, the jurors are at liberty to infer that rules to protect the employee are necessary although the jurors have no experience in tile particular business and although there is no evidence that other corporations in the same business have made rules for such cases.
    In an action brought to recover damages resulting from the death of the plaintiffs intestate by reason of the alleged negligence of the defendant, there is no presumption one way or the other as to the absence of contributory negligence on the part of the deceased; the plaintiff is bound to prove the absence of contributory negligence on the part of the decedent or he fails in his case. The care which is required of a person in each case is that which might reasonably be expected 'from a person of his age and experience under the same circumstances and with the knowledge which he has on the particular subject.
    There can be no presumption in the absence of evidence that the deceased did anything ho ought not to have done,- and it may fairly be presumed that he took such reasonable care for his safety as one of his age would under the circumstances be likely to do, and the presumption may always be indulged in in such cases that every man is desirous of preserving his life and keeping his body from harm.
    Appeal by the defendant, The Retsof Mining Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Livingston on the 26th day of March, 1894, upon the verdict of a jury, rendered after a trial at the Livingston Circuit, and also from an order entered in said clerk’s office on the 26th day of March, 1894, denying the defendant’s motion for a new trial made upon the minutes.

      Satterlee do Taylor and Strang do Doty, for the appellant.

      F. A. Mcmn, for the respondent.
    Present — Dwight, P. J., Lewis and Bradley, JJ.
    Judgment and order affirmed on opinion of Rumsey, J., at Circuit.
   The opinion was as follows:

Rumsey, J.:

The plaintiff’s intestate was a boy about fifteen years old, and at the time of his death was in the employ of the defendant, in a room known as the screening room. The business of the defendant was mining salt and preparing it for market.

Just off the room in which the plaintiff’s intestate was at work was a large bin, holding many tons of salt, into which the salt of a certain grade was delivered from the machinery of the works. At certain times when the bin became nearly full it was necessary that some one should go into it for the purpose of freeing the mouth of the chute, through which the salt was delivered into the bin. To do this it was necessary to shovel avray the salt which was accumulated at tbe month of the chute leading into the bin. When the bin became full, the salt was drawn off by three chutes in the bottom of it. The drawing off of the salt through these chutes caused the salt ■on the top to settle with more or less rapidity, depending entirely upon the manner in which it was drawn off. It appeared from the 'testimony, and was not disputed, that if one was in the bin at the time the salt was drawn off and 'his feet became entangled in the salt which was running down to the lower chutes, it was very difS■cult for him to free himself, and if he got into the salt above his lcnees it was almost inrpossible for him to get out unassisted. The ■chutes through which the salt was delivered out of the bin were ■situated in a row along one side of it at the bottom. Hanging from the top of the bin were ropes which, one standing in the bin might ■seize if he was in danger of being engulfed in the salt, and thereby drag himself out. On two or three sides of the bin, and at a height at which it would be necessary for a man to stand in shoveling the ■salt, was a narrow platform of one plank a foot or so wide, upon which a man might stand when he shoveled the salt away from the mouth of the chute. It appeared in the evidence, however, that the men who were engaged in shoveling in the bin were- not accustomed to stand upon this plank, which was not in every respect convenient for that purpose, but stood upon the salt, and that there was no rule of the corporation forbidding them to do so if they saw fit. On the day on which the plaintiff’s intestate met his death, so- much salt was in the bin that the delivery from the chute into, the bin was impeded by the accumulation of salt at its mouth, and the plaintiff’s intestate, at his own request, was sent into the bin for the purpose of shoveling it away.

It appears that he had never been there before for that purpose. He went into the bin, remained there a few minutes, came out for some purpose, went back and went to work.

Shortly after he went back the second time directions were given by the proper person that the salt should be drawn off from the bin, and one or more chutes at the bottom of the bin were opened for that purpose. After this had been going on for a few moments the plaintiff’s intestate was missed. Search was made for him, but he' was nowhere to be found in the building. It was then surmised that perhaps he might have been engulfed in the salt, which was rapidly drawn off, and, after a large portion of the salt in the bin had been drawn off, the plaintiff’s body made its appearance at one of the chutes and he was taken out dead. The position in which the body appeared will be considered later.

There was some dispute upon the evidence whether the bin was sufficiently light for a person inside to see conveniently about it. It appears upon the testimony offered by the plaintiff that the bin was quite dark, while the testimony of the defendant tended to show that "one standing in the bottom of the bin, on an ordinarily clear day, could read ordinary handwriting without difficulty. In discussing the case, however, it must be assumed that the jury might have found the fact in this regard to be as claimed by the plaintiff. It is thought, however, that the fact itself is not of much importance.

The foregoing are all the facts which it is thought necessary to advert to or which were material upon the claim of negligence of the defendant.

It is claimed by the plaintiff that this negligence consisted in the failure to make rules on the part of the corporation-which would regulate the drawing off of the salt when the men were in the bin, or which would provide for the safety of men -who had occasion to be there when that process took place.

The question was submitted to the jury whether the defendant was negligent in failing to provide rules upon that subject, which should protect the men who were in its employ. The defendant excepted to the submission of that question to the jury, but took no exception to the manner in which the submission was made.

It is objected upon this motion that no such ground of negligence was stated in the pleadings, and for that reason it was'improper to submit it to the jury. But no such position was taken upon the trial. The evidence upon that subject was admitted without objection, and it was not claimed at all during the trial that such evidence was not within the pleadings, or that the claim submitted was not properly presented by the complaint. It is settled that when one seeks to enforce the rule that facts proven in the case are not available unless they are pleaded, he must take this position at the trial, and, if the objection to the proof of the facts is not put upon that precise ground at the trial, it cannot be taken advantage of at any later time. (Voorhees v. Burchard, 55 N. Y. 98.) In that ease the facts which it was claimed were not pleaded were offered in evidence, but were objected to as immaterial. The referee overruled the objection and received the facts, and the case was decided upon these facts. The defense proved by them was not pleaded in the answer. But nevertheless, upon an appeal, both the General Term and the Court of Appeals held that the plaintiff could not avail himself of the point that the facts were not pleaded, unless he could put his objection to their admission upon the precise ground.

In this case there was no objection to the proof of the facts which are now claimed as constituting negligence, and the defendant, having allowed them to be proved without objection, cannot now insist that they shall be discarded from the case.

There is no doubt of the rule that in an action for damages on account of negligence the negligence of the defendant must be proved, and that the jury, in the absence of proof, cannot be allowed to base its verdict upon any guess or inference that there was negligence on the part of the defendant which might have tended to do the mischief. (Pauley v. The S. G. & L. Co., 131 N. Y. 90, 98.) It is also the fact that ordinarily no presumption of negligence arises from the mere fact that an accident has occurred. (Weston v. City of Troy, 139 N. Y. 281, 282.) There is a class of cases, to be sure, in which the fact of negligence may be inferred from the mere happening of the accident, but the case at bar is not one of those.

It cannot be said that the claim of negligence is to be decided in this case as a question of law simply because the material facts of the case are not disputed. The question of negligence is to be submitted to the jury, not only when the facts are disputed, but when the undisputed facts are such that reasonable men may draw different inferences from them upon the question involved. The court can only take the case from the jury where not only the facts are undisputed, but where only one set of inferences can be drawn from those facts, and those inferences lead to only one conclusion. (Gardner v. Mich. Cent. R. R. Co., 150 U. S. 349, 361.)

It is quite clear in this case that the question whether or not the case was a proper one for requiring the defendant to establish rules for tlie government of its employees in drawing salt from this bin when men were engaged inside of it, was one as to which reasonable men might differ. The rule is well settled that it is the duty of all persons and corporations having many men in their employ in the same business, to make and promulgate rules which, if observed, will afford protection to the employees. This is the more necessary where the manner of doing business is such that the danger or safety of an employee at any given time depends upon the way in which some other employee is engaged at the same time. In such a case, where the action of one employee may make that dangerous, which, if he took no action, would be safe, it is undoubtedly the duty of the common employer to make such rules as will enable the person whose safety is put at risk, to be advised of the danger and to avoid it. (Abel v. D. & H. C. Co., 103 N. Y. 581; Slater v. Jewett, 85 id. 61; McGovern v. C. V. R. R. Co., 123 id. 281, 289.) To be sure the company is only required to make rules to guard against such accidents and casualties as may reasonably be foreseen, and it is not bound to use more than reasonable care in deciding whether rules are necessary. (Berrigan v. N. Y., L. E. & W. R. R. Co., 131 N. Y. 582.) In every case its duty is performed by the exercise of reasonable care in deciding in the first place whether rules are necessary, and, in the second place, in making such rules as appear to be sufficient. But the question in either case may be for the jury, whether, in the first place, the company took reasonable care to conclude whether rules were necessary, or, in the second place, if they were, whether the rules thus u,made were proper for the purpose for which they were intended. When the question is whether the case was one in which rules ought to have been made, the fact that other people or corporations engaged in the same business had or had not found it necessary to make rules upon that subject, is one which might well be considered. But the fact that no such rules had been made is not conclusive against the necessity of making them. It is simply a fact to be considered. Where the business is complicated, the circumstances are those which do not occur often and the danger is not serious, it may well be that the fact that other people engaged in the same business have found no necessity for making rules for the particular case may be almost conclusive that such rules are not necessary, But where the circumstances are such that any person can see what might happen in a given case, and the danger is plain and obvious, the jurors might be at liberty to infer that rules to protect the employee were necessary, although they had no experience in the particular business, and although there was no evidence that other corporations in the same business had made "rules for such cases. (Morgan v. H. R. O. & I. Co., 133 N. Y. 666.)

In the case at bar, it is evident that if a man were in the bin at work, standing upon the salt, he might very easily be engulfed so as to be unable to extricate himself, if the chutes below were suddenly opened. Starting from that fact, which is undisputed, the inference might very well be drawn that a well-devised set of rules, giving warning to the men who were in the bin, or forbidding the drawing off of salt when any one was in the bin, would conduce greatly to the safety of the men who had occasion to be there. There is nothing in the evidence which would lead the jury to believe that such a rule was impossible or even difficult to enforce, and it is quite clear that such a rule might be of great use in insuring the safety of the men who had occasion to be in the bin. For these reasons I think that it wa.s proper for the jury to consider upon the question of the defendant’s negligence, the failure to make rules for the government of its employees in this regard.

The question of the contributory negligence of the plaintiff’s intestate is a very serious one. There was absolutely no evidence as to what occurred after the boy went into the bin the second time. All that is positively known is that the salt was set in motion after that time by drawing it off from the bottom, and that, in process of time, his dead body made its appearance at one of the lower chutes. It was presented head first. The arms were crossed under the forehead, and the eyes were closed. There were upon the body a few abrasions, but nothing very serious. It appeared from the testimony of certain witnesses that the salt was so heavy that a body going into the salt in a certain position could not be turned, but must come out of the bin in the same position. That is, if a man went into the salt with his feet down, he necessarily would come to the bottom chute in the same position, and so, if he went into the salt with head downwards, his head wojuld first make its appearance at the lower chute. The defendant argues from this that it must necessarily have been the case that the plaintiff’s intestate lay down upon the salt and went to sleep with his head toward the place from which the salt discharged and so was drawn head first into the chute. If that fact appeared, it would be necessarily established that he was guilty of contributory negligence, but I cannot see that any such fact can fairly be inferred from the testimony. It appeared in the evidence that across the bin, at some distance below the top of the salt, were heavy timbers extending from one side to the other with narrow spaces between them. It might very well be that the body of the boy, caught upon one of these timbers, was turned so as to come head first to the chute. It might be that he fell in some way in the bin and thus> was drawn into the chute head first. All that can surely be said is, that having been in the bin his body was presented head downwards at the bottom of the chute.

Can- it be said from that fact alone that the intestate was guilty of contributory negligence or that there was a failure to prove his freedom from it ? Of course there is no presumption one way or the other, but the plaintiff is bound to prove the absence of contributory negligence or he fails in his case, (Weston v. The City of Troy, supra) The care which is required of a person in each ease is that which might reasonably be expected from a person of his age and experience under the same circumstances, and with the knowledge which he had upon the particular subject. In this case the boy who was killed was between fourteen and fifteen years old. lie was mature for his age. lie was wholly unacquainted, so far as appears, with the duty which he was set to do in this bin, and he had not been informed as to the extent or nature of the dangers which he might incur therein, if indeed it can be said that he knew there was any danger'there. There can be no presumption, in the absence of evidence, that he did anything that he ought not to have done, and it may fairly be presumed that lie took such reasonable care for his safety as one of his age, under those circumstances, would be likely to do. In all these cases the presumption may be made that every man is desirous of preserving his life and keeping his body from harm. (Morrison v. N. Y. C., etc., R. R. Co., 63 N. Y. 643.) "Whether he went to sleep or not was a matter which was to be inferred, if at all, by the jury. They might take into consideration all the presumptions, as well as what appeared from the facts, and then it was for them to say upon the whole case, I think, whether the plaintiff had shown that the intestate had used proper care in looking out for his own safety.

For these reasons I am of the opinion that upon the whole it was not error to submit the case to the jury, and that a new trial must be denied.'


author: Kumsey, J.:

text:
    The National Bank of Auburn, Respondent, v. Edwin R. Dillingham, Appellant, Impleaded with Others.

      Liability of directors of corporations under section 24 of chapter 688 of 1892 — limitation thereof — parties to an action brought thereunder.

    The liability created by section 24 of chapter 688 of the Laws of 1892 is a contract and not a penal liability. Such liability is confined to the directors of corporations who created or consented to the creation of the debt therein prohibited. 'The directors are personally liable for such debt, but their liability is limited to the particular debt and does not extend any further.
    The language of the statute, stating that the liability is to the creditors of the corporation, cannot be so construed as to extend the liability of the directors to all the creditors of the corporation. Their responsibility is for the debt incurred by them and for nothing more, and the words “ to the creditors of the • corporation ” can only be construed as descriptive of the persons to whom the particular debt is owing.
    Where an action is brought under section 24 of chapter 688 of the Laws of 1892 (the Stock Corporation Law) to enforce the liability created by that section, it is not necessary that all the creditors of the corporation should be made parties thereto.
    Appeal by the defendant, Edwin R. Dillingham, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Cayuga on the 5th day of October, 1894, upon the decision of the court rendered at the Cayuga Special Term, overruling the said defendant’s demurrer to the plaintiff’s amended complaint, with notice of an intention to bring up for review upon such appeal the decision upon which said judgment was entered.

      Nelson Sjpencer, for the appellant.

      Oha/rles I. Avery, for the respondent.
    Present — Lewis and Bradley, JJ.

      Interlocutory judgment affirmed on opinion of Kumsey, J., at Special Term, with leave to the defendant to answer within twenty days on payment of the costs of the demurrer and of this appeal.
    Certificate allowed for appeal to the Court of Appeals.
   The opinion of the Special Term was as follows:

Kumsey, J.:

This is an action brought under section 21 of the Stock Corporation Law (Chap. -688, Laws of 1892) to enforce against the defendants the liability created by that section. The complaint alleges, substantially, that the Auburn Woolen Company was a corporation organized under the laws of the State of New York, of which the defendants were some of the directors, and that the company was organized under the Manufacturing Corporations Act, passed the llth of February, 1818. The complaint further alleges that at certain times, therein more particularly stated, the Auburn Woolen Company borrowed from the plaintiff, upon its promissory notes, the sum of §20,000, and that at the time of making the several loans stated in the complaint, the total indebtedness of the Auburn Woolen Company, not secured by mortgage, exceeded the amount of the paid-up capital stock of the company. It is further alleged in the complaint that each of the defendants consented to the creation of the said debt to the plaintiff, and judgment is demanded against the defendants for the sum of §20,000.

The defendant Dillingham demurs to the complaint upon the ground, among others, that there is a defect of parties plaintiff and defendant in that the creditors of the Auburn Woolen Company, other than tlie plaintiff, are not made either parties defendant or parties plaintiff.

Upon the argument some technical defects were suggested, by reason of which it was claimed that the demurrer should be overruled ; but as the conclusion has been reached, upon the merits of the case, that the demurrer is not well taken, those technical defects will not be considered.

As stated, the action is brought under section 21 of the Stock Corporation Law. That part of the section relied on reads as follows: “No stock corporation * * * shall create any debt, if thereby its total indebtedness not secured by mortgage shall exceed the amount of its paid-up capital stock, and the directors creating or consenting to the creation of any such debt shall be personally liable therefor to the creditors of the corporation.” The law created by this statute is unquestionably a contract and not a penal liability. (Patterson v. Robinson, 36 Hun, 622; 37 id. 341.) The liability is created by this section, and the extent and nature of it must be found by considering the words of the section. It is confined, as is quite clear, to the directors who create or consent to the creation of the prohibited debt. Such directors are made personally liable “therefor.” The word “therefor” refers necessarily to the previous words, “ any such debt,” and the liability is necessarily only for the particular debt and not for anything more. This seems to be perfectly clear from the reading of the statute. The statute says that the liability is to the creditors of the corporation, and it is claimed by the defendant that thesq words of the statute have the effect to add to the security of all the creditors of the corporation the amount of the particular debt for which the particular directors who consent to its creation are personally liable. I do not think that these words can be construed to extend the liability of the directors so far. Their responsibility is for the debt and for nothing more, and the words “ to the creditors of the corporation ” can only be construed as descriptive of the person to whom the particular debt is owing. In the case of Patterson v. Robinson (supra) the same question was presented under the law of 1848, and the court, in that case, held that the section should be construed .as though it had read : “ To the creditors of the company to whom such excess is owing P While that section reads differently from the section under consideration, the nature of the liability is the same substantially, and that case should be deemed a controlling authority upon that point.

The defendant, in support of his demurrer, cites the case of Anderson v. Speers (21 Hun, 568). That case was under consideration in the case of Patterson v. Robinson (supra), and it was urged upon the General Term as a controlling authority upon the point here presented, but the General Term of the third department declined to follow it. Subsequently, in the case of Lovelace v. Doran and Lovelace v. Doran & Wright Company, the same questions presented here were presented to the court. Judge Churchill decided those cases at Special Term, and held that the case of Anderson v. Speers was practically overruled by the case of Patterson v. Robinson, and, following the latter case, decided that, in these actions, it was not necessary that all the creditors of the corporation should be made parties. Those two cases were subsequently affirmed by the General Term of the fourth department (39 N. Y. St. Repr. 679; 40 id. 53) upon the authority of Patterson v. Robinson (37 Hun, 341). By the concurrence of authority of the two General Terms, I feel that the court here is bound and that the demurrer must be overruled.

Judgment is accordingly ordered for the plaintiff, upon the demurrer, with leave to the defendant to withdraw' his demurrer and answer on payment of costs.


author: Yeoman, J.:

text:
    Clara Whiteman Gibbs, as Administratrix, etc., of Reuben Whiteman, Deceased, Appellant, v. The Flour City National Bank of Rochester, and Another, Respondents, Impleaded with Others.

      Insurance policy — transfer of, by an executor — application of the consideration therefor — when the transfer cannot be set aside for fraud — extension of credit, a good consideration.

    ■Wien an insurance policy on the life of another forms part of the assets of the estate of a decedent, the executors have the right to sell and assign the same. The sale thereof, when not in contravention of the trust which they hold, is a step in its execution, and it does not devolve upon the purchaser to see to it that the consideration is applied to the purposes of the trust; neither is it incumbent upon the company issuing such policy of insurance to inquire as to whether or not the executors are doing their duty in reference to the consideration when they make the transfer of the policy.
    "When a proper formal assignment from the executors is presented to the insurance company, and there are no facts to create suspicion and put it upon inquiry, the company has the right to rely upon the apparent legality of that document, and the executors and all persons represented by them are estopped from questioning it to the prejudice of the insurance company.
    The transfer of a policy of life insurance cannot be set aside because of a fraud committed against the estate of the person who owned it, in its transfer by his executors without a good consideration, as against one who has acquired the policy in good faith from the owner.
    An extension of the term of credit on a past due debt is a good consideration to support a new contract.

      Appeal by the plaintiff, Clara ’Whiteman Gibbs, as administratrix, etc., of Reuben Whiteman, deceased, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Livingston on the 22d day of August, 1894, upon the decision of the court rendered at the Livingston Special Term, dismissing the plaintiff’s complaint upon the merits.

      Scott c& Reed, for the appellant.

      Joseph S. Uunn, for The Flour City National Bank, respondent.

      John R. Strang, for The Equitable Life Assurance Society, resjiondent.
    Present- — -Dwight, P. J., Lewis and Bradley, JJ.
    Judgment affirmed on ojfinion of Yeoman, J., at Special Term.
   The opinion of the Special Term was as follows :

Yeoman, J.:

Among the assets of the estate of Reuben Whiteman, deceased, was a policy of insurance issued by the defendant, The Equitable Life Assurance Society of the United States, upon the life of his wife, payable to him. His widow and son were appointed his executors. While holding this office the widow, as executrix, made a formal assignment of this policy to the wife of the son. Thereafter the assignee surrendered the policy to the company and received in return a like policy on the same life, payable to herself. At that time she was indebted to the defendant, The Flour City National Bank of Rochester, upon her note indorsed by her husband. The note became due and the bank declined to renew it without further security. She then, to procure the renewal, offered to assign this policy as collateral for that debt, which offer was accepted. The note was renewed, and shortly thereafter the policy was assigned as collateral. Thereafter the note was renewed several times, relying upon such collateral. After these transactions the executors were removed and this plaintiff appointed administratrix with the will annexed. She asks for a judgment canceling the second policy, reinstating the first one and adjudging that she owns it as part of the assets of the estate which she represents. Whether or not anything was paid to the executors for the assignment is a disputed question in this case. Let us assume that no consideration was paid.

It is not claimed that the insurance company is chargeable with any actual notice of any defect in the title of the assignee of the executors, nor that the bank had actual knowledge that there was any defect in her title to the policy which it received, or that its ownership by her was in any maiiner connected with the estate of the deceased. The plaintiff claims that she has a right to have the first policy reinstated, even if there is no right to cancel the second policy. She attempts to invoke the rules of law which govern the grantees of trust property when the grant is in contravention of the trust and the grantee lists knowledge of the trust. These rules are not applicable here. It is true that the insurance company knew that the policy was a part of the assets in the hands of these executors. It was, however, their right to sell and assign it. The sale -was not in contravention of the trust which they held, but a step in its execution. It did not devolve upon even the purchaser to see to it that the consideration was applied to the purposes of the trust, much less was it incumbent upon this company to inquire as to whether or not the executors were- doing their duty with reference to the consideration when they mad'a the transfer. When a proper formal assignment from them ivas .presented to the insurance company, and there were no facts to create suspicion and so put it upon inquiry, it had a right to rely upon the legality of that document, and the executors and all persons represented by them are estopped from questioning it to the prejudice of the insurance company. The plaintiff, therefore, can get no relief as against that company, unless she can cancel the second policy. It is not claimed by the insurance company that it will be prejudiced by reinstating the first policy if the second is canceled.

If no consideration was paid for the assignment from the éxecutors their assignee cannot hold the second policy as against their successor. Does the’ bank stand in any better position than she does ? There was nothing to put the bank upon inquiry as to the character of the title of its assignor. That she had title is of course not questioned. The plaintiff claims the right to set that title aside because of the fraud-on the estate iu transferring the policy (as she claims) without a consideration. This she cannot do against one who acquired the property bona fide from the owner. In Voorhis v. Olmstead (66 N. Y. 116) the New York Warehouse and Security Company, one of the defendants, loaned money to Biddle & Co. upon their agreement to deliver as security warehouse receipts for cotton, for which they had contracted, but which they did not then own. Thereafter, the receipts were delivered. Biddle & Co. had not, in fact, acquired a valid title to the cotton and became insolvent in a few days. It was held that the pledgee could not support -its lien against the real owner, because, “had not the company obtained the warehouse receipts, they might have resorted to some process for the recovery of their loan or other indemnity against the loss. It was not necessary, in the present instance, for the pledgee of the property to show that a demand of the money loaned would certainly have resulted in its recovery. It is enough that its position was altered by relying on the evidence of title furnished to Biddle & Co. by the plaintiffs and abstaining from action.” It has often been held that an extension of the term of credit upon a past due debt is a good consideration to support a new contract. I am of the opinion that the bank has a right to hold the policy. The complaint should be dismissed)upon the merits.