author: By the Court.—Spencer, J.

text:
    ANTHONY DOYLE and J. ANTHONY DOYLE, Plaintiffs and Appellants, v. WILLIAM HALPIN, Defendant.
    Where a building contract provides that a certificate of the performance of the work must be obtained from the architects, before payment could be required, and the facts were, that the contractors applied for, and were refused such a certificate by the architects, without the architects pointing out to, or claiming of the contractors, that any material defect or incompleteness in the work existed,—Held, that the sensible and legal ■ interpretation of that clause must be, that an approval of their work, based upon the requirements and specifications of the contract, was required and meant. That the expression or non-expression, of the approval or non-approval, of the architects, or of their mere will or determination, without reference to the contract, was not the object or subject of this clause, nor within its letter or spirit. Their refusal to certify must be based upon, and supported by, some real and substantial failure on the part of contractors to fulfill their duties under the contract, and such failure should be pointed out and protested against by the architects under whose direction the work progressed. It must appear that the work was not performed as provided in the contract, and that the contractors were not really entitled to the certificate, if a party relies upon the absence of such certificate, or the refusal to give it by his architects, to defeat an action to recover for the work under the contract. If it appears that the work was well and properly performed, according to the contract, the refusal of the architects to give the certificate does not affect the case.
    In the case of a contract to do and perform certain work by a day named, and the parties afterwards vary the terms of the contract, by a change of, or an addition to, the work that required more time to perform, and the contractors went on with their work, with the consent of their employer, beyond the time named in the contract, and the work was finally performed, substantially, as provided in the contract, except as to the time named therein, within which it was to be finished.—Held, that this extension and addition to the work described in the contract, and the assent of the party requiring the same, that the contractors should go on beyond the time mentioned in the contract, to finish the same, operated as a deviation and change in the terms of the contract, so far as the same related to the time of the completion of the work, and estopped and precluded the party from setting up or claiming to recover against the contractors, damages for the non-completion of the whole work within the time appointed in the contract.
    Before Barbour, Ch. J., McCunn and Spencer, JJ.

      Decided June 3, 1871.
    Appeal from a judgment.
    The facts in the case fully appear in the opinion of the court.

      Francis Byrne, for appellants.

      C. Fine, for respondents.
   By the Court.—Spencer, J.

This was an action brought to recover the amount due upon a building contract. The complaint alleges that plaintiffs performed all the work and furnished the materials as provided in the contract, and thereby became entitled to the last installment of one thousand three hundred and fifty dollars. The complaint also sets up a claim to recover the sum of one thousand one hundred and twenty dollars and nineteen cents, for extra work done and materials furnished under the said contract, of which- the following is a copy:

“Articles of agreement, made the twentieth day of August, in the year one thousand eight hundred and sixty-six, between William Halpin, of the city of New York, of the first part, and Anthony Doyle & Son, of the said city, builders, of the second part.

“First. The said parties of the second part do hereby for themselves, their heirs, executors, and administrators, covenant, promise and agree to and with the said party of the first part, his executors, administrators, or assigns, that they, the said parties of the second part, their executors or administrators, shall and will, for the consideration hereinafter mentioned, on or before the first day of November next, well and sufficiently erect and finish the carpenter’s work of the new building on land belong to the party of the first part, situated on the north side of Nineteenth-street, between Seventh and Eighth-avenues, in the city of New York, agreeably to the drawings and specifications made by Rogers & Browne, architects, and signed by the said parties, and hereunto annexed, within the time aforesaid, in a good, workmanlike, and substantial manner, to the satisfaction, and under the direction of the said Rogers & Browne, architects, to be testified by a writing or-certificate under the hand of the said Rogers & Browne, architects; and also, shall and will find and provide such good, proper, and sufficient materials, of all kinds whatsoever, as shall be proper and sufficient for the completing and finishing all the carpenter’s work of the said building, mentioned in the carpenter’s specifications, for the sum of four thousand nine hundred and fifty dollars ($4,950). And the said party of the first part, doth hereby, for himself, his heirs, executors, and administrators, covenant, promise, and agree, to and with the said parties of the second part, their executors and administrators, that he, the said party of the first part, his executors or administrators, shall and will, in consideration of the covenants and agreements being strictly performed and kept by the said parties of the second part, as specified, well and truly pay, or cause to be paid, unto the said parties of the second part, their executors, administrators, or assigns, the sum of four thousand nine hundred and fifty dollars ($4,950), lawful money of the United States of America, in manner following:

$250 Two hundred and fifty dollars when the second tier of beams are put on.

250 Two hundred and fifty dollars when the fourth tier of beams are put on.

300 Three hundred dollars when the roof is on, and planked, and rear cornice up.

600 Six hundred dollars when the sleepers are put in, and all the floors laid.

■ 500 Five hundred dollars when all the partitions are set, ready for plastering, and sashes in.

600 Six hundred dollars when all the stairs are stepped up, and the building trimmed throughout.

500 Five hundred dollars when all the doors and windows are hung.

600 Six hundred dollars when the first story front sash is glazed, and blinds hung throughout, and the woodwork painted two coats.

I 350 Thirteen hundred and fifty dollars when the

--works are finished complete.

$4,950

“Provided, That in each of the said cases, a certificate shall be obtained from, and signed by the said Rogers & Brown, architects, whose final certificate shall alone be considered as an acceptance of the works.

£ ‘And it is hereby further agreed by and between the said parties:

“First. The specifications and the drawings are intended to cooperate, so that any works exhibited in the drawings, and not mentioned in the specifications, or rice versa, are to be executed the same as if it were mentioned in the specifications and set (forth in the drawings, to the true meaning and intention of the said drawings and specifications, without any extra charge whatsoever.

“Second. The contractor, at his own proper cost and charges, is to provide all manner of materials' and labor, scaffolding, implements, moulds, models, and cartage of every description, for the due performance of the several erections.

Third. Should the owner, at any time during the progress of the said building, request any alteration, deviations, additions, or omissions, from the said contract, he shall be at liberty to do so, and the same shall in no way affect or make void the contract, but will be added or deducted from the amount of the contract, as the case may be, by a fair and reasonable valuation.

“Fourth. Should the contractor, at any time during the progress of the said works, refuse or neglect to supply a sufficiency of materials or workmen, the owner shall have the power to provide the materials and workmen, after three days’ notice in writing being given, to finish the said works, and the expense shall be deducted from the amount of the contract.

'•Fifth. Should any dispute arise respecting the true construction or meaning of the drawings or specifications, the same shall be decided by Rogers & Browne, and their decision shall be final and conclusive ; but should any dispute arise respecting the true value of the extra work, or of the works omitted, the same shall be valued by two competent persons—one employed by the owner, and the other by the contractor—and those two shall have power to name an umpire, whose decision shall be binding on the parties.

“Sixth. The owner shall not, in any manner, be answerable or accountable for any loss or damage that shall or may happen to the said works, or any part or parts thereof respectively, or for any of the materials or other things used and employed in finishing and completing the same (loss or damage by fire excepted).

“Seventh. Should the parties of the second part fail to complete and finish the several works and things enumerated in the carpenter’s specification aforesaid, it is mutually agreed between the parties to this agreement, that the party of the first part shall deduct as liquidated damages, from any moneys due to the parties of the second part, on this contract, the sum of ten dollars ($10) per day, for each and every day the said works remain incomplete and unfinished after the first day of November next ensuing.

“ In witness whereof, the said parties to these presents have hereunto set their hands and seals, the day and year above written.

(Signed) “Wat. Halpin, [l. s.]

“Anthony Doyle & Son, [l. s.] (Signed) “E. H. Browne.”

The answer denies the fulfillment of the contract by the plaintiffs, so as to entitle them to the payment of the last installment, and also denies the claim for extra work and materials, and sets up a counter-claim for damages caused to defendant by reason of the non-fulfillment of the contract, for injury to the building by plaintiff in the performance of the work, and loss of rents and use of premises because not finished, &o., claiming three thousand dollars for such damages.

Defendant also alleges that a part of the extra work claimed was work included in the contract; that another part became necessary because of the failure of the plaintiff to fulfill the contract; and that all other extra work and materials did not exceed in value the sum of four hundred and fifty dollars, and that the damage complained of by the defendant far exceeded that amount ; concluding by demanding judgment against plaintiffs for three thousand dollars and costs.

The reply takes issue upon the counter-claim set forth in the-answer.

On the trial before the referee, a large amount of testimony was taken, most of which related to the value and character of the extra work and materials ; but the following facts were established beyond reasonable question, and may be held as admitted facts in the case, and sufficient for the consideration of the court in its decision.

That plaintiffs commenced work under the contract in the latter part of the summer of 1866, and continued the same until finished (as they claim) in March, 1867, and the defendant testifies to work being done in upper portion of house by plaintiffs as late as the middle of April, 1867, after he had taken possession of the premises. That during this time defendant gave directions himself about the work verbally, and by his architects verbally and in writing, the latest letter of his architects on the subject being dated March 27, 1867. That at no time did defendant check nor interfere with the prosecution and completion of the work as provided in the contract, except in changing the specifications relating to the character and style of the work, and in calling for the performence of work not specified in the contract. Although the defendant complained that plaintiffs did not prosecute the work so fast as he wished, and complained of the manner in which some of the work was being done, and insisted upon plaintiffs proceeding faster, and in making some parts of the work more satisfactory by alterations so as to conform to his ideas of the terms and specifications of the contract, at no time did the defendant claim or insist upon the contract being performed as stipulated, so far as the time of performance was concerned; nor did he claim any breach of the contract in that respect, and made no formal protest, nor gave any notice to plaintiffs that he considered there was any material breach of the contract, and he paid each and every installment specified in the contract to plaintiffs upon the certificate of the architect that the sum was due and accepted nnder the contract, except the last installment, for which the architect refused to certify on the application of the plaintiffs, and defendant refused to pay without stating any reason for such refusal.

The testimony on the part of the plaintiffs would establish the fulfillment of the contract, and that the last payment thereon was due (without reference to the question of the architect’s certificate), and that extra work was ordered and performed, and reasonably worth the sum of one thousand one hundred and twenty dollars and nineteen cents.

The testimony on the part of the defendant, on the contrary, only tended to show that the work provided for in the contract, to entitle the plaintiff to-the last installment, was not fully nor well done ; that the value of the extra work was not so much in amount as estimated and claimed by the plaintiffs ; yet in these two respects the testimony was not of great strength nor reliability, and giving it all the weight it deserves, it cannot be claimed but that the material and work under the contract was finished and completed, and defendant took possession thereof in March or April, 1867; and that the value of the extra work done and materials furnished amounted to a large sum, equal at least to the amount of four hundred and fifty dollars, which was (substantially) admitted by the answer.

No architect’s certificate was given for the last installment or the extra work, but'refused, as was also the payment of the same, and neither party ever offered to arbitrate the question of the amount or value of the extra work prior to the commencement of this action, and no request, offer, or notice upon the subject of an arbitrament appears to have been made by either party to the other. The defendant refused absolutely to pay the last installment or for the extra work.

The referee reported in favor of the defendant. - His statements or conclusions of fact, and law, or the material portion thereof, sufficient for the examination of the case, may be stated as follows :

■ After stating the copartnership of the plaintiff’s, the execution of the contract, and that plaintiffs proceeded to the execution of the work under the direction of the architects of the defendant, the referee further stated :

That by the terms of the said contractor agreement, the said plaintiffs covenanted and agreed, well and sufficiently to erect the carpenter work of a building, then about to be erected by the defendant, in the city, of Hew York, agreeably to the drawings and specifications made by the architects therein named, in a good and workmanlike manner, to the satisfaction of the said architects, to be testified by a writing or certificate, under their hands and seals.

‘ ‘ It was likewise provided by the said agreement, that in each case of payment thereunder, a certificate should be obtained from, and signed by, the said architects, and that the final certificate of the said architects should alone be considered an acceptance of the said work.

“That no certificate was ever obtained from said architects, so as to entitle the plaintiffs to the final payment mentioned in the said contfact, for the recovery of which this action was, among other things, brought, nor was the final certificate of their acceptance of the work, under contract, ever given, but, on the contrary, the said architects, on the application of the said plaintiffs, refused and declined to give any such certificate, alleging that the said work had not been completed nor performed to their satisfaction, so as to entitle said plaintiffs to a final payment.

“That the work done by the plaintiffs on the said building was not performed, nor were the materials furnished to the satisfaction of said architects, nor was the certificate of said architects, fraudulently or wrongfully withheld, from the said plaintiffs, or by the directions or the instigation of the defendant.”

Irrespective of the work not being done to the satisfaction of the architects, I find no breach of the contract found, except that one relating to time contained in the following statements in report:

“ That the plaintiffs have wholly and entirely failed to complete the said building within the time required by the terms of said contract, and wholly failed to finish and complete the said buildings as required by said contract, and had not completed or finished the said carpenter work, on the said building, on the 24ih day of April, 1867, when the same was takenpossession of by the said defendant, and in an unfinished condition.

“That by the terms of said contract, in case the said plaintiffs should fail to complete and finish the said carpenter work, it was mutually agreed between the plaintiffs and the defendant, that the said defendant should deduct, as liquidated damages, from any moneys becoming due to the plaintiffs by reason of said contract, the sum of ten dollars per day for each and every day the said work should remain incomplete and unfinished after the aforesaid 1st day of ¡November, 1866.

“That the said plaintiffs did fail to complete and finish said several works on the 1st day of November, 1866.

“ That the said plaintiffs did fail to complete and finish said several works on the 1st day of November, 1866, and that the same remained incomplete and unfinished after the aforesaid 1st day of November, 1866, till the 24th day of April, 1867, and that the sum which the said defendant was justly entitled to deduct from any moneys which might be due the plaintiffs, under said agreement, far exceeded in amount the sum of money which, under any circumstances,' the plaintiffs could claim by reason of the aforesaid extra work.”

In the last two or three lines the referee disposes or seeks to dispose of all claims of the plaintiffs to recover from defendants anything for or on account of any extra work (the facts in relation to which he had stated before). The referee made an off-set of the ten dollars per day, loss for a delay in time, &c., in not completing the building before November 1, 1866. His statement in regard to the extra work was as follows :

6 That at different times, between the 30th day of August, 1866, and the 34th day of April, 1867, the said plaintiffs performed other work and furnished other materials about the said house, beyond such as were required to be furnished in pursuance of said agreement.

“That a portion of said extra work rendered, and materials furnished, were made necessary by the failure of the plaintiffs properly to perform the work and furnish materials required by said contract, and more thereof was performed and rendered in lieu, and in the stead of portions of the work required to be performed, and materials required to be furnished by said contract.

“ That by the terms of said contract, it was likewise agreed and provided that if any dispute should arise respecting the true value of any extra work, or any work omitted, the same should be valued by two competent persons, one employed by the plaintiffs and the other by the defendant; and that these two should have power to name an umpire, whose decision should be binding on all the parties, but that the plaintiffs failed to make any effort to comply with the said last-mentioned condition and agreement, and have never taken any steps nor made any offer to submit the dispute in regard to said extra work, as provided by that portion of said contract.”

I notice this part of the report does not account for the four hundred and fifty dollars in value of extra work exceeding that required to properly fulfill the contract, and that (more thereof) performed in lieu and in the stead of the contract work, as does the answer of the defendant. The report concludes as follows:

“ And as to the defense set up by way of counterclaim, I find as matters of fact—

“ That the said plaintiffs failed and neglected to erect and finish the work to be done and performed by them under said agreement on said building, according to the terms and conditions of said contract, within the time set forth in said contract, for that purpose, to wit, the 1st day of November, 1866.

“ That, by reason of such failure and neglect on the part of said plaintiffs, the said defendant suffered damage by loss of occupation, rents, and profits of said building to the amount of eight hundred and thirty-three dollars.

“ And I find as conclusions of law—

“ That the defendant is not indebted to the plaintiffs, as alleged in this action, but the defendant is entitled to judgment against said plaintiffs for said sum of eight hundred and thirty-three dollars, and costs.”

I have no doubt nor hesitation in expressing the opinion that this judgment should be reversed, the report set aside, and a new trial ordered. The report cannot be sustained upon the evidence, by any precedents known to me.

There was no' certificate of the architects that the work which entitled plaintiffs to the last installment, had been done and performed to their satisfaction. They refused to give one, and their testimony on the trial, shows clearly how groundless was their refusal. They never told nor pointed out to plaintiffs a particle of the work done or materials furnished (since their certificate given for the previous work), that were defective or incomplete, nor do they, in their testimony, e'xcept in some very trifling matters, show any material defect, but rather, the desire and action of the plaintiffs to perform their work to the full satisfaction of the contract, and the defendant and his architects.

It is true that the contract provided that the work was to be done to the satisfaction of the architects, but the sensible and legal interpretation of that clause, must be, that only a reasonable and practical approval of the work, based upon the requirements and specifications of the contract, was required and meant. The expression or non-expression of the mere will or determination of the architects, without reference to the contract, was not the object or subject, nor within the letter or spirit of this clause. Their refusal to give the certificate, or its absence, must be based upon some real and substantial failure on the part of the plaintiffs to fulfill their duties under the contract, and such a failure should be pointed out and protested against, as the work progressed under their direction, and I fail to discover in their testimony, that any such failure occurred. This is my conclusion, upon the construction and meaning of this clause in the contract.

But assuming that there was enough in the testimony to authorize their refusal, and that the letter of the contract was not fulfilled, this clause did not refer to the furnishing of the materials, it only applied to the work mentioned in the specifications. In regard to the materials furnished, no certificate was necessary; the contract only required that the materials should be good, proper, and sufficient, and the referee should have judged upon the evidence, as to whether such were furnished without reference to the approval or certificate of the architects. Upon the whole, I conclude that the referee has not found a breach of this contract, when he merely states, that no certificate was obtained, but refused, &c. He should have found that the work was not so performed as to entitle the plaintiffs to the certificate, and thus form a proper basis for the refusal, or its absence. Any other construction of these building contracts would, in my opinion, lead to endless confusion, mischief, and wrong.

The only breach ofthe contract that is actually passed upon, or found by the referee, was, “that plaintiffs failed to complete and finish the several works, on the 1st day of November, 1866,” and I think the evidence in the case does not authorize the conclusiou of the referee, that this was a breach. I hold that the time for the completion of the work was enlarged and extended by the acts of defendant and his agents, the architects, that amounted to a complete abandonment of this covenant, in the contract, or that estopped the defendant from setting up this fact as a breach of the contract. I think the time was extended to, and included the whole time that defendant allowed the plaintiffs to continue their work of completing and finishing the job, in accordance with the contract, as they construed its specifications and covenants, and I construe the acts of the defendant to that extent, that they precluded Mm from setting up and claiming to recover ,anything under the contract, as liquidated or unliquidated damages, based upon the failure of plaintiffs to finish the work on or before November 1, 1866.

The contract to finish by the last mentioned date, and the penalty of ten dollars per day, &c., for non-fulfillment, is based upon the work being done according to the specifications set forth, and was liable to be defeated and annulled, by the defendant exercising his right to alter, deviate from, or add to said work, as provided in the contract. He did exercise that right, and additional and other work was performed, agreeably to his written instructions. I hold that this deviation, or change, on his part, substantially changed the terms of the contract, in regard to the specific time of completion, from 1st of November, 1866, to the obligation on the part of plaintiffs, to complete the work in a reasonable time, or within such time as the parties might thereafter consent or assent to, and if the parties did afterwards, by consent or assent, continue the term indefinitely, or until plaintiffs finished their work, the defendant cannot recoup damages for the delay. I am aware of the cases that hold that such consent or assent only extends the time, and does not relieve the defaulting party from paying damages, &c., but those cases are not in point, I think, where there has been a deviation or change in the contract, by the defendant, that requires more time to complete the work.

A man cannot vary and change and add to work and materials in a contract, which under its original form specified a certain date when the work should be completed, as in this case, and which, under its modified terms or specifications, required more work and time to complete, and then without protest or interference on his part (but with unquestioned assent on his part), allow his contractors to go on and complete their work as he directs, and in accordance with the contract as modified by him, until and long after the time specified in the original contract has elapsed, and when the work is finished and his contractors ask for their pay, say to them, “ I will not pay for this work, because you did not complete the same within the time specified in the contract,” or, “I will not pay for the work at the specified price, unless there is deducted therefrom, in the way of damages for delay, ten dollars for each day that the work remained unfinished after the specified time,” or, “I will only pay the specified price upon a proper allowance being made to me for loss of rent and use of the premises, after the specified time, at which under the contract the work was to have been finished. Such action will not be tolerated, recognized nor encouraged by any court of law or equity, and should be expressly condemned in this case, as I believe it has been done in many other like cases in the courts of this State. I cite a few only that I deem to be in point upon the foregoing views expressed by me (Green v. Haines, 1 Hilton, 254 ; Jewell v. Schroeppel, 4 Cow. 564 ; Ladue v. Seymour Wood, 24 Wend. 60 ; Fleming v. Gilbert, 3 Johns. 528 ; Smith v. Gugerty, 4 Barb. 614).

The latter case arose in this court, and on appeal went to the supreme court, and was argued by the late James T. Brady, for the owner of the building, and Charles O’Conor, for the builder. The case was similar to this in many respects. The opinion of the court, by Judge Strong, is a correct exposition of the rules that should govern these cases arising from a difference of views between parties in their building contracts, and meets with my hearty approval.

The only breach (if any) upon which defendant can claim a judgment for costs, a recoupment, or a recovery by way of counter-claim, is upon the basis that plaintiffs did not fulfill the contract as regard s furnishing good material and doing the work well and completely. It is possible that the evidence in the case might have justified the referee in finding for the defendant, on this point, although I do not think so; but there is certainly no evidence of such a conclusion in the referee’s report. In that document he runs on time continually, and finds damages for defendant for loss of rents, &c., by the failure of plaintiffs to finish their contract work within the time named in the contract. This conclusion is wrong. Time, as an essential covenant in this contract, was waived, and completely removed therefrom by the acts of the defendant; and I hold that the covenant for work and material was substantially fulfilled by plaintiffs, and that they are entitled to recover for the last installment. I also think that the conclusions of the referee in regard to the extra work were erroneous and cannot be supported by the evidence.

By the pleadings, the evidence, and the report itself, there can be no question but a large amount of ex-, tra work was done, and extra materials were furnished. The amount claimed by, and testified to by plaintiffs, was $1120. The amount substantially admitted by the answer (over and above all deductions claimed by defendant, to be applied on other work and - materials, embodied in the contract), was $450. The testimony of the defendant and his witnesses, tends to decrease the amount claimed by plaintiffs, but not materially. The referee should have found, as a conclusion of fact:

First, the amount in value, of all this extra work and materials.

Second, the several amounts he allowed or set off against (as necessary to fulfill the contract,- &c.), the work not performed, and the materials not furnished, and in lieu and in the stead of other worlc and materials provided for in the contract.

• Third, the amount in value that he estimated was overbalanced by the defendant’s claim (the ten dollars per day, for delay after the 1st November).

Fourth, the amount he allowed to the defendant for delay, &c., after the 1st November, at the rate of ten dollars per day, &c.

It seems the referee allowed the defendants’ claim for damages twice; first, for an off set to or recoupment against the extra work; second, as a counter-claim, for which he found judgment, &c.

I am of the opinion, that all these conclusions of the referee, which are intended to dispose of the extra work and materials, are erroneous.

The claim of ten dollars per day, by defendant, under the contract, was made a counter-claim only, against the value of the work and material set forth in the contract; and its specifications, as originally made, included none of this extra work and material which the referee disposes of so summarily.

Upon the finding of the referee, in regard to the neglect or refusal to arbitrate, as provided in the contract (upon a dispute about the value of the extra work and material), I would say: First, there was no evidence of a dispute about the value of the extra work and ipaterial. The defendant ignored the existence, and refused the payment of any sum for the extra work. Second, such an agreement has no validity or power, and is no bar or obstacle to an action. It has been so expressly adjudicated in the court of appeals (5 N. Y. 422 ; 39 Id. 377).

The report of the referee should, no doubt, have been made in favor of plaintiff for some amount, on the admitted facts in the case.

The judgment must be reversed, the report and the order of reference vacated, and a new trial ordered, with costs to the plaintiffs.


source: Caselaw Access Project

author: By the Court.—Barbour, Ch. J.

license: Public Domain

text:
    WILLIAM KNOWLTON and others, Plaintiffs, v. THE PROVIDENCE & NEW YORK STEAMSHIP COMPANY, Defendants.
    Vessels navigating Long Island Sound, and constructed for ocean or coastwise navigation, are within the provisions of the act of Congress of March 8, 1871 (9 Btat. at Large, 635), and the owners thereof are not liable to answer for loss or damage by Are to any merchandise shipped in the same, unless such Are was caused by the design or neglect of such owner or owners.
    The fact that such a vessel, in her voyage, entered and passed through or into any bays or rivers, does not bring the same within the exception in same act, of vessels “ used in rivers, or inland navigation.”
    Before Barbour, Ch. J., McCunn and Spencer, JJ.

      Decided June 3, 1871.
    On exceptions ordered to be heard at the general term in the first instance.
    The defendant was owner of the steam propeller Oceanus, running between Providence and New York, and on May 23, 1868, received on board that vessel, at Providence, certain goods to be carried to New York, and there delivered to the plaintiffs. The steamer safely prosecuted her voyage to .New York, and arriving there on the next day, Sunday, at an early hour in the morning, made fast to her usual pier, and discharged her passengers and their baggage, but it being Sunday, no freight was landed. Shortly before noon, on the same day, a fire broke out in the office at the head of the pier, and there being a strong wind blowing down the pier, the fire spread rapidly along the roof of the pier, and communicated to the Oceanus, which lay some thirty or forty feet from the bulkhead, and in spite of all efforts to check it, the vessel was soon wrapped in flames, and with her contents, including the goods of the plaintiff, was entirely destroyed. Everything was done that could be done to save the vessel and cargo, from the first discovery of the fire.
    Upon this state of proofs, the defendant moved to dismiss the complaint, upon the ground, that by the act of Congress, passed March 3, 1851, limiting the lia-, bility of shipowners, the defendant was not liable for the destruction of the goods by fire. But the learned court decided that the act was not applicable to the case, on the ground, and for the reason, that the vessel was engaged in inland navigation, and was within the exception contained in the seventh section of the act, which section declares that the act shall not apply to the owners of vessels used in inland navigation, and that, therefore, under the facts established, the defendants were liable as common carriers, the loss having occurred otherwise than by the act of Gk>d, or the public enemy, and denying the motion, ordered a verdict for the plaintiff, for the value of the goods—to which denial and order the defendants excepted. The court also refused to receive any evidence on the question of negligence on the part of the defendants, or of their servants, as causing the fire, and also refused to submit any question of fact to the jury, to which the defendants also excepted.

      Edward D. McCarthy, for plaintiffs.
    I. The act of Congress does not apply to the case, the vessel burned having fully completed her voyage, and been fastened to a pier in the city of E"ew York, where sire had been for several hours before the fire. (1.) This consideration is in no wise different from that where the cargo had been landed on the wharf, though still under control of the carrier, the object being, in either case, to protect the carrier only while engaged in actual transportation. But it has been decided, that the act does not apply to the case of property on the wharf, and still under control of the carrier (Salmon Falls Manufacturing Company v. Tangler, 6 Am. Law Reg. 510 ; 2 Curt. C. Ct.). (2.) Nor is it different to the consideration of goods burned in a lighter, which was conveying them from the vessel to the wharf. Yet the vessel was held liable . in such case (Morewood v. Pollock, 18 Eng. L. & E. 341). In the last case, the act of George III., c. 86, from which our act is taken, was construed more strictly than we now ask. In that case, the “Barbara” had '.not fully completed her voyage. She had not reached her wharf. Her liability arose because of the destruction of the lighter, the property of other parties—her agents. She was held to the general "liability of the' carrier, because the goods destroyed were on board her agents’ vessel. She was held beyond "the second section of the act of George III., because, technically, the cotton was not beneath her own deck. Because the goods were on board a “lighter,” can make no difference between that case and ours, there being no such exception as to lighters, in the English act, as there is in section "7 .of our act. Morewood v. Pollock stands on the principle, that the act will not apply where the vessel is not engaged in actual transportation. In Hunter v. McGowan, 1 Bligh, 580, it was held, that the act of George III. did not apply to a lighter engaged in transporting merchandise upon the Clyde, between Glasgow and the sea, upon the same principle. (3.) As this act of Congress is drafted from the English act of George III., any variation in terms between the two is important. The English act excludes from its scope vessels solely employed in navigating rivers. Our act makes no distinction such as is suggested by the word solely. The omission of this word is significant, because our act is a copy of the English act. Constructively, it excludes vessels navigating, s'olely or partly, rivers. This vessel was used or employed in navigating the East River, a current wholly within the boundaries of this State. Obviously, this act has no application to vessels navigating the Mississippi, the St. Lawrence, the' Hudson, or any of the great rivers. Yet many of them are communicating lines between different States, or boundary lines of this country and a foreign State. And over all these rivers, the power of Congress to regulate commerce extends, and the jurisdiction of the federal courts, sitting in admiralty. The act has been applied to vessels navigating the great lakes, only because these waters, from their extent, from the vast commercial transactions upon them, and the community of interest of two nations in them, are oceans, and are not to be considered as inland waters (24 How. U. S. 1). The words, “used in rivers,” (section 7 of the act) are, of course, applied to vessels whose only carrying trade is upon, or through, rivers. The clear intention of the act, is to place our commercial marine on an even foothold with that of Great Britain. This intention is executed when the act is construed to apply to vessels engaged in navigating the ocean and the great lakes. When carried further, it becomes a mischievous and impertinent interference with the legislation and the judicial decisions of the several States. It counts for nothing, that appellants’ vessel plied 'between the ports of different States. This consideration would apply to vessels navigating the Mississippi river. Yet these are excluded from the operation of the act, by section 7. Therefore, the court was not in error, in deciding that this vessel was within section 7 of the act. Though the sound is not “inland water,” this vessel was used in river navigation.
    II. (1.) The defendants, as common carriers, are presumed guilty of negligence, if property, within their possession, is destroyed by fire. It rests upon them to remove .this presumption (Forward v. Pittare, 1 Term R. 27, 33 ; Murphy v. Stanton, 3 Munf. 239 ; Bell v. Reed, 4 Binn. 127 ; Colt v. McMeehen, 6 Johns. 160 ; Hall v. Cheney, 36 N. H. 27 ; The Emma Johnson, Sprague, 527 ; Hastings v. Pepper, 11 Pick. 41, 43 ; Shackleford v. Wilcox, 9 La. 38 ; Whitesides v. Russell, 8 Watts & S. 44 ; The Huntress, Daveis C. Ct. 82 ; King v. Shepherd, 3 Story, 356 ; Davidson v. Graham, 2 Ohio St. 131 ; Clark v. Barnvell, 12 Hew. 272 ; Alden v. Pearson, 3 Gray, 342). (2.) This they did not do, nor offer to do. On the contrary, the court stopped the cross-examination of the witness of defendants. Their exception, therefore, at fol. 64, is valueless, because it was directed to a ruling of the court, wholly immaterial as to them. Ho offer had been made —no evidence submitted by them, on this question. (3.) The act, section 1, excludes, expressly, carriers by whose “ design or neglect” loss of property shall occur.

      Joseph H. Choate, for defendants.
    I. The act of Congress is plainly applicable to the case. Act of March 3, 1851, 9 Slat. 635 : “Ho owner or owners of any ship or vessel shall be subject or liable to answer for, or make good to any one or more persons, any loss or damage, which may happen to any goods or merchandise whatsoever, which shall be shipped, taken in, or put on board any such ship or vessel, by reason or by means of any fire happening to, or on board of the said ship or vessel, unless such fire is caused by the design or neglect of such owner or owners—Provided, that nothing in this act contained shall prevent the parties from making such contract as they please, extending or limiting the liability of shipowners.” The history of the act is well known. By the common law, common carriers being deemed to be insurers of the goods carried, unless lost by the act of God or the public enemy, were held liable for the loss of goods by fire, however caused. On the occasion of the loss of the Lexington by fire, in Long Island Sound a striking case arose; which demonstrated the extreme harshness of the law. That vessel being engaged in making regu-' lar trips from New York to Stonington, was totally destroyed on her trip from New York, by fire, and the liability of the owner for such loss, in the absence of an express agreement restricting the liability, was fully-declared by the supreme court of the United States (New Jersey Steam Navigation Co. ». Merchants Bank, 6 How. 344). This. decision, ,and the public attention which it excited, led to the passage of the act. Judge Nelson, who delivered the opinion in the case of the Lexington, said, in a later case (Moore v. American Transportation Co., 24 How. 38), “ The decision, in the case of the Lexington, which was burned on Long Island Sound, led to this act of 1851. That case was' decided in 1848, subjecting the carrier in case of loss by fire.” The Oceanus, and the goods of the plaintiff on board, are strictly within the spirit and meaning of the act. The goods were destroyed by fire, and it is clear, upon the evidence, that the fire was not caused by the design or neglect of the owner, or owners. The fire communicated to the vessel from a neighboring building, and in spite of all efforts to stay its progress, destroyed the vessel and cargo. In Walker v. Transportation Co., 3 Wall. 150, the supreme court of the United States have made a careful exposition of the provisions of the act, and- go so far as to decide, that the act exempts owners, in case of fire, from liability, even for the negligence of their officers and agents, in which the owners have not directly participated, the liability of the owners being restricted in case of fire, to fires caused by their design or neglect, the burden of proving such design or neglect, fell upon the plaintiffs (New Jersey Steam Navigation Co. v. Merchants’ Bank, ut sup.). The court there said expressly, “ The' respondents having succeeded in restricting their liability as carriers, by the special agreement, the burden of proving that the loss was occasioned by want of due care, or by gross negligence, lies on the libellants, which would be otherwise in the absence of any such restriction.” But however the burden lay in this case,. the refusal of the court to receive any evidence on the point, or to submit any question to the jury, would entitle the defendant to have the verdict s.et aside, and to a new trial, if the court should be of opinion that the question of negligence arose. As the proofs stand, the fire is shown to have arisen without design or neglect on the part of the defendants. If it is not so shown, they should have been permitted to show it, had the burden rested with them.
    II. The case does not come within the exception of the seventh clause of the act. That clause is as follows: “ This act shall not apply to the owner or owners of any canal-boat, barge, or lighter, or to any vessel of any description whatever, used in rivers or’ inland navigation.” The construction of this clause, and the meaning of inland navigation, have been definitively settled by the supreme court, in Moore v. Transportation Co., 24 How. 1 ; and the term held not to apply to such waters as Long Island Sound, or to the great lakes. There the case was a loss by fire on Lake Erie, and the court lay great stress upon the history of the act already referred to, and, premising that it was designed to provide a remedy for such liability as was imposed in the case of the Lexington, employed in the navigation of Long Island Sound, draw from that the conclusion, that of course the exception not applying there, could not be deemed to apply to the still more extended waters and commerce of the lakes. That ca'se was very fully discussed and considered, and nothing can be .added to the wealth of the argument, or the clearness of the decision of the case as reported. The reason of' this rule applies equally to Long Island Sound, which is not inland, in any sense, but is an arm of the sea, a great highway of transatlantic commerce, as well as the medium of communication between different States. The voyage of the Oceanus was, from beginning to end, upon tide waters, and for forty miles or more—from Beaver Tail Light,, around Point Judith to Montauk Point—upon the open sea.
    III. The interpretation of the United. States statutes by the supreme court of the United States, is of binding authority upon the courts of the several States.
   By the Court.—Barbour, Ch. J.

This action was brought to recover the value of certain goods delivered by the plaintiffs at Providence, Rhode Island, to the defendants, as common carriers, to be transported by the latter on their steamer Oceanus, to the city of Hew York; and which goods were destroyed by fire together with the said vessel, while lying at a wharf in Hew York after the completion of the voyage, but before such goods were discharged or delivered to the consignees.

The defendants claimed that they were exempt from liability by the act of Congress of March 3, 1851 (9 Stat. at L. 635), which declares that “no owner or' owners of any ship or vessel shall be subject or liable to answer for or make good to any one person or persons, any loss or damage which may happen to any goods or merchandise whatsoever, which shall be shipped, taken in, or put on board any such ship or vessel, by reason or by means of any fire happening to or on board of the said ship or vessel, unless such fire is caused by the design or neglect of such owner or owners.” And, for the purpose of showing that the fire was not caused by their design or neglect, the defendants, upon the trial, presented evidence tending to prove that it was accidental, and was not caused by any fault or negligence on tlieir part. The court, however, stopped the cross-examination of the witness on that subject, upon the ground that the owners of the steamer were not exempted from liability for the loss by the act in question, inasmuch as such vessel, in the opinion of the court, was engaged in inland navigation,, and, for that reason, was such a vessel as was especially excluded" from the exemption by a further provision in the same statute, which is in the words following : “ This act shall not apply to the owner or owners of any canal-boat, barge, or lighter, or to any vessel of any description whatsoever, used in rivers or inland navigation.”

The court thereupon directed a verdict for the amount of the claim as proven, and further directed that the entry of the judgment be suspended, and the exceptions of the defendants heard at general term in the first instance.

The question as to what waters were included in the term “inland navigation,” was fully considered and •discussed by Judges Nelson and Catron in their opinions in the case of Moore v. Transportation Company, 2 How. U. S. Sup. Ct. 1, which was an action to recover the value of certain goods delivered to the defendants as common carriers by the plaintiff, for transportation across Lake Erie, and destroyed by an accidental fire during such transit. The principal question before the court was whether vessels navigating Lake Erie, were or were not to be considered as vessels engaged in “inland navigation,” within the meaning and intention of the statute. Judge Nelson, in delivering the prevailing opinion upon that question, stated that the immediate inducement to the passage of the act of 1851 by Co'ngress, was the then recent destruction by an accidental fire of the steamer Lexington with her cargo, upon Long Island, Sound, which entailed a ruinous loss upon the owners of the vessel, because of their liability as common carriers; and he assumed from that fact, as well as from the language of the act itself, that the. statutory exemption from liability was intended to apply to all vessels employed in navigating the sound; and, upon that assumption, he successfully reasoned, on comparison of the relative sizes of Lake Erie and Long Island Sound, the dangers of navigation upon each, the construction of their vessels, &c., that vessels running upon Lake Erie could not be considered as engaged in inland navigation, although its waters had no natural navigable connection with the sea, but were wholly interior or mediterranean. Judge Catkojt expressed the same opinion in regard to vessels navigating the sound, although he dissented from the ultimate conclusion of the court touching the waters of the great lakes. The judgment of the United States supreme court in that case, founded as it was upon the assumptions and reasoning above adverted to, must be considered as a decision by the highest appellate tribunal, in so far, at least, as concerns the construction of acts of Congress, that vessels employed in navigating Long Island Sound are not, because of that, vessels engaged in inland navigation.

It is true a voyage from Providence to Hew York embraces not only the sound, but a bay at the eastern end of the route and that portion or extension of the sound which is called. East River at its western terminus. It appears, too, from the evidence, that when the fire occurred, the steamer was lying at her pier on the Hudson River side, and, therefore, between the banks and on the water of that river. But those facts do not essentially change _ the question nor affect the result. For in the case above cited the court say, in effect, that a vessel constructed for ocean or coastwise navigation, and used for that purpose, does not come within the exceptions mentioned in the act, although portions of her trips may be upon bays or rivers, in the course of the same voyage. The court erred, therefore, in directing a verdict for the plaintiff.

The verdict should be set aside and a new trial ordered, with costs to abide the event.


author: By the Court.—Freedman, J.

text:
    GEORGE B. ROCKWELL, Plaintiff, v. WILLIAM BROWN, and others, Defendants.
    A deed showing upon its face that it is an assignment made by an insolvent in proceedings to obtain his discharge under the statute concerning voluntary assignments, is insufficient to support an action of ejectment by the assignee, unless accompanied by proof of the proceedings and assignee’s oath, as required by the statute.
    Before Barbour, Ch. J., and Freedman and Spencer, JJ.

      Decided July 1, 1871.
    The action was ejectment. The answer contained a general denial and a claim of adverse possession, under claim of title, for more than twenty years. On the trial, before the court and a jury, the plaintiff showed title in Isaac V. Paddock, and then offered in evidence the deed of Isaac V. Paddock, which contained a recital that it was made pursuant to an order of a county judge in the matter of the insolvency of the grantor, and then in consideration of one dollar conveyed to plaintiff the premises in suit. Defendant’s counsel objected that this deed could not be read until the proceedings in insolvency were proved.' The judge sustained the objection, and plaintiff excepted. No further proof being offered, the court dismissed the complaint, and ordered the exceptions to be heard in the first instance at general term.

      John Townshend, attorney for plaintiff.

      Thomas C. Browning, attorney for defendants.
   By the Court.—Freedman, J.

The deed in question showed upon its face that it was an assignment made by an insolvent under the statute concerning voluntary assignments, pursuant to the application of the insolvent and his creditors and in pursuance of an order of the county judge, who entertained the proceeding. In conducting such proceeding, the said officer exercised a special jurisdiction, acquired only in the mode prescribed by statute. Such jurisdiction is never presumed, but must, whenever questioned, be affirmatively proved. The plaintiff, therefore, in order to establish his right to recover, should have proved the proceeding and the assignment under the same (Best v. Strong, 2 Wend. 319, Salters, v. Tobias, 3 Paige, 338 ; 2 Phil, on Ev. 321).

The statute also contains a general provision requiring the assignee, before proceeding to the. discharge of any of his duties, to take and subscribe a certain oath, and to file the same with the officer or court that appointed him, and it is only after the taking of such oath that the assignee is to be deemed vested with all the estate, real and personal, of the insolvent (3 Rev. Stat. 5 ed. p. 115, § § 7, 8). Under this provision no estate vested in the assignee until he took the oath required ; and in the absence of proof upon this point, the title must be deemed to remain in the insolvent. Hoag v. Hoag, 35 N. Y. 744, 475, is an authority not only upon this very point, but also upon the question, that without evidence that the assignee entered upon the discharge of his duties, no presumption can be indulged in that he took the oath. I may add here that the doctrine, that presumptions will not be indulged in, except for the purpose of supporting a possession, applies with peculiar force to an action of ejectment, for in such action the plaintiff must wholly rely upon the strength of his own title, and cannot rely upon the weakness of that of his adversary.

The complaint, therefore, was properly dismissed, and plaintiff’s exceptions must be overruled and judgment rendered for the defendants, with costs.


text:
    MICHAEL FINNIN, Plantiff and Appellant, v. LUKE MALLOY, Defendant and Respondent.
    A receiver appointed under section 298 of the Code, in proceedings supplementary to execution, and whose order of appointment expresses no limitation of the powers of the receiver, over any class or kind of property of the judgment debtor, nor excepts or exempts any property from the effect of the order, does not take, by virtue of the order, any property of the judgment debtor that is exempt by law from levy'and sale by execution. Receivers appointed under, and by virtue of this section of the Code (298), must refrain from taking or interfering with this class of property, and if they do take it, it is at their peril, and the absence of a clause in the order of appointment, excepting this class of property from their receivership, or limiting their powers, will not protect nor relieve them from responsibility and liability for the seizure of the same.
    A man is not bound to seek the court for a modification of such an order, or to do anything whatever, to enable him to enjoy his statutory exemption.
    The order, however broad in its language, is limited in its operation by the statute, and can only affect the property of the debtor not exempt from execution.

      A judgment debtor has the right to claim exemption from levy and sale by execution of any portion or portions of his property that, fall within the class or character defined by the statute. If he has two teams working in his business, he may claim either as exempt, &c., &c. It is his right to make the choice and designation.
    A horse, or other animal, trained and used by the judgment debtor for his work or service, is “a working team,” under the statute, without its being associated with any harness or trappings, or other articles of property.
    Before Barbour, Ch. J., Freedman and Spencer, JJ.

      Decided July 1, 1871.
    Appeal from a judgment entered upon a verdict of a jury, found for the defendant under the direction of the court.
    This action was brought to recover two hundred and fifty dollars damages for the wrongful conversion by the defendant, of a horse, the property of the plaintiff. The defendant justified the taking, as being by and under the direction of one Felix V. B. Kennedy, who had been appointed a receiver of the property and effects of the plaintiff by the court of common pleas, in certain proceedings supplementary to execution in an action' pending in said last named court.
    On the trial, it was admitted: that the plaintiff was the owner of the horse in question, and its value was two hundred and fifty dollars. That the defendant took the said horse from the possession of the plaintiff, on the 11th day of August, 1867, by the direction of said Kennedy, who was receiver of the property and effects of the plaintiff, and had duly qualified as such under the order appointing him (introduced and marked as Exhibit A). That at the time, the plaintiff was a married man, and a householder, and had a family for which he provided. That he used the horse in question with, a harness and a cart in his business as cartman. That the cart and harness so used with the horse was worth fifty dollars. That plaintiff also owned necessary household furniture worth fifty dollars, and in use. as such. That the plaintiff also had another horse, cart and harness, which he used in his business, and which was also necessary in such business, but which, with the cart and harness used with the horse in question, were mortgaged by plaintiff to one Reynolds (mortgage introduced and marked Exhibit B). That the mortgage had been duly filed and renewed from time to time. That the' amount secured by this mortgage was past due, and the property described therein had been left in possession of the plaintiff, and Reynolds had never foreclosed nor taken possession of the same, and that the harness and cart used with the horse in suit, was included in and covered by that chattel mortgage. That when defendant told the plaintiff that he was about to take the horse, plaintiff said to him : “ l told Mm Tie had better not interfere with the horse, that it was mine, and I wanted it for a support, and it was exempt from law.”

    Kennedy, the receiver, was appointed such in supplemental proceedings, in accordance with section 298 of the Code, by a judge of the court of common pleas. The words used were as follows: ^I do hereby order, that Felix V. B. Kennedy, of the city of New Torlc, be, and he is hereby, appointed receiver of the property of the defendant” (meaning the plaintiff in this action). There was no clause nor provision in the order, exempting any of the plaintiffs property from its effects, and no exception made in favor of property of the judgment debtor, exempt by law from execution.
    The court directed a verdict for the defendant. Plaintiff excepted, and appealed from the judgment for costs entered upon said verdict against him.

      David McAdam, for the plaintiff and appellant.

      R. W. Townsend, and A. R. Dyett, for the defendant and respondent.
   By the Court.—Spencer, J.

The order appointing Kennedy receiver was made under section 298 of the Code of Procedure, and its language conforms thereto. The first paragraph of section 298 provides that “ The judge may also by order appoint a receiver of the property of the judgment debtor.” The words of appointment in the order in question are as follows : “I do hereby order that Felix Y. B. Kennedy, of the city of New York, be and he hereby is appointed a receiver of the property of the said defendant.” Neither in the order, nor throughout section 298, is there any clause or language that indicates any limitation of the powers of the Receiver over any kind or class of property owned by the judgment debtor, or that in any way provides that any of the property of the latter shall be excepted or exempted from the effect of the order.

The first question for consideration appears to be this : Does such, an order as this convey and transfer to the receiver therein named, all the property owned by the judgment debtor at the time, including any property owned by him, exempt from levy and sale by execution? This is an important question of law and practice for review and decision, as affecting a multitude of similar cases, arising daily in the courts of this State. Its answer in the affirmative would sustain the judgment and the ruling of the court below. But upon the examination of the statute and the cases bearing upon the same, I have concluded that an affirmative position is not tenable, and the order in question conveyed to the receiver no property of the judgment debtor that was exempt from execution.

The sections of the Code relating to proceedings supplementary to the execution, are included in chapter 2 of title 9 of the Code. The heading of the title is in these words: Of the Execution of the Judgment in Civil Actions.” Chapter 1 is entitled “ The Executionand one of the sections of this chapter provides that existing statutes relating to the property liable to sale on execution shall apply to executions prescribed by this chapter. Chapter 2 is entitled, ‘ ‘ Proceedings Supplementary to the Execution,” and sections 297 and 298 are the only portions of the chapter that require consideration. These sections seem to relate to the same subject matter, and I think they should be read and considered as one section, so far as they affect the case in review. Section 297 provides that “the judge may order any property of the judgment debtor, not exempt from execution,” to be applied towards the satisfaction of the judgment (excepting, however, certain earnings of the debtor necessary for his family', thus adding to other statute exemptions). Section 298 seems to provide the means or manner for the application of the debtor’s property named in section 297, for it commences with words that indicate a continuance from section 297, as “The judge may also by order appoint a receiver of the property of the judgment debtor.” This chapter 2 of title 9 of the Code was enacted as a substitute and a more summary remedy for the action and proceedings in the court of chancery known as the creditor’s bill (see 1st Report of Code Commissioners, 201 ; also 4 Sandf. 718 ; 2 Duer, 658 ; 2 Abb. Pr. 458, 476 ; 4 How. 190, and 11 Id. 528), and the decisions of the court of chancery, in proceedings under that practice, are applicable here, and I find one that I deem in point in this case.

In Hudson v. Plets, 11 Paige, 181, the complainant applied for an attachment against the judgment debtor, for an alleged violation of the usual injunction granted in the case, " The violation complained of was the bringing of an action against a third person, for a trespass upon lands (owned by judgment debtor), that occurred before the filing of the bill in the case; also, for bringing another suit against the same person, for a tort in seizing property of the judgment debtor, that was exempt from execution. The chancellor (Walworth) decided that there had been no breach of the injunction order, and denied the application, expressing his views on the last point as follows : ‘ ‘ The suit against a third person for a tort, in taking property which was exempt from execution, does not appear to be a breach of the injunction, even if the right of action accrued before the filing of complainant’s bill.”

“For the exemption of certain necessary articled from execution would be useless if the creditor could seize them on his execution, and could reach such claim, when a suit was brought against him or the sheriff for damages, and deprive the debtor of it by means of a creditor’s bill.”

The case last cited, was referred to and approved by Judge Grover, in giving the opinion of the general term of the supreme court, in Andrews v. Rowan, 28 How. 126. In this last case, the judgment creditor had sued Rowan for the coversion of exempt property, and had recovered judgment. Rowan claimed that the judgment had passed to Andrews, the receiver of the plaintiff in the execution, and that he, having paid Andrews, was entitled to have a satisfaction of the execution by the sheriff, and moved the court to direct the sheriff to return the same satisfied. The court refused, holding that this right of action and judgment, founded upon an injury to property which the creditor could not claim to have applied to his debt, did not pass to the receiver, and consequently, Rowan had no right to pay the same to the receiver, and such payment did not satisfy the judgment. This decision was affirmed at general term. Judge Grover, in delivering the opinion of the court, says: “I think it clear that this right of action did not pass to the receiver. ” “ The statute exempting certain property of the debtor from execution, should be fairly construed, to enable the debtor to enjoy such property. If, when such property is wrongfully taken from the debtor, against his will, and the law does not afford him adequate remedy for the injury, and protect him in its enforcement, this statute is, to the extent of such failure, rendered nugatory.” “If -the judgment rendered for the injury may be acquired by a judgment creditor in proceedings supplementary to "execution, there would be nothing to preovent the seizure of exempt property, selling it upon execution, and when the debtor had sued and recovered judgment therefor, compelling the application of such judgment to the payment of the debt for which the property was seized, thus entirely depriving the debtor of the exemption, and enabling the creditor, in this way, to collect his debt from property that the law has declared not liable for its payment”

I am convinced of the soundness and truth of the reasoning and conclusions of the court in each of these , cases, and I think the same is applicable to the facts of . the case on review.

If a cause of action or a judgment, based upon a recovery for the wrongful taking of exempt property, did not pass to a receiver appointed in proceedings in a creditor’s bill, and the action of the judgment debtor, in relation to such claim or judgment, was not affected by the injunction usually granted in those cases, or if such a claim or judgment does not pass to the receiver under section 298 of the Code, it is very clear that exempt property itself would not pass.

Therefore, I hold as a conclusion of law in this case, that an order like the one in question,.conveys and transfers no property of the judgment debtor, that by law was exempt from seizure and sale under the execution.

Receivers, and their servants and agents, like sheriffs and their deputies, must refrain from taking or interfering with this class of property. They take such property at their peril, and the absence of a clause or words in the order, excepting such property from their receivership, does not relieve them from responsibility and liability for the seizure of the same, for the debtor is entitled to its use and possession, and-he is not bound to seek the court for a modification of the order, or to do anything whatever to enable him to enjoy his statutory right of holding, owning, and enjoying this class of property.

This order, however broad in its language, must be held to be limited in its operation by the statute exempting certain property from execution. The law attaches to the order, becomes a part of it, and must be referred to and observed, in determining its effect.

This conclusion as to the effect of the order brings us to the decision of another question in the case, namely: Was this horse a working team of the plaintiff, and as such, exempt from execution under the statute ?

The points raised by respondent’s counsel, in regard to the mortgage being void and fraudulant as to the creditors of the judgment debtor, are hardly available, and do not attach in this case.

As between the judgment debtor and his mortgagee, the title and ownership of the mortgaged property had passed to, and vested in the mortgagee. The receiver might have tested its validity in regard to third persons (the creditors of the debtor), by taking the same as receiver, but the mortgagor had formally" conveyed and transferred all his legal interest and title in the mortgaged property, and could not contest the ownership with his mortgagee.

Any interest or claim to the same, founded upon the invalidity of the mortgage, as regards the creditors df the mortgagor, could only be maintained by a creditor, or his representative, like the respondent, and I think every interest of this kind had passed to the respondí ent as receiver, under and by virtue of this order, and in no view of the case can the judgment debtor be considered as having been the owner of the mortgaged property at this time. But my conclusions upon other points in this case, render it unnecessary to consider ány further this question of the ownership of the mortgaged property.

A judgment debtor has the right to claim exemption from execution, for any portion of his property that falls within the class or character defined by the statute. If he has two teams working in his business, he has the right to claim either as exempt. He may say to the sheriff, or receiver, in any words that plainly signify his meaning: “I claim this team as exempt by law from execution; ” and thereby, the property so designated, is protected by the statute from the claims of his creditors. It is the right of the debtor to make this designation, and that is a choice or election within the decisions. I hold that the plaintiff in this case, plainly designated this horse, and claimed the same to be exempt from execution. The words used by him were sufficient to designate, elect, or-choose this article of property from all others.

A judgment debtor owning several articles of property, or animals, falling within the description in the statute of exempt property, but greater in number, or exceeding in value, those exempted by the statute, may claim as exempt any number or portion of them to the extent or value specified in the statute, and where there are several articles used together, that answer to the descriptive words in the statute, as “working tools,” or “working team,” “ necessary household furniture,” &c., and the same exceed in value the sum stated in the statute, the debtor has the right to separate and divide the articles, and break up the combination, and retain any number or portion of the same, whose total value does not exceed the statutory sum.

As, for instance, if the debtor’s working team, consists of two horses, each valued at two hundred and fifty dollars, and a wagon valued at two hundred dollars, and harnesses valued at fifty dollars, he may claim as exempt any portion of the team not exceeding two hundred and fifty dollars in value. .He may take either horse, or he may take the wagon and harnesses.

In this latter conclusion of law my decision may extend beyond any precedent on the subject, although I think Judge Johnsost, in his opinion in Lockwood v. Younglove (27 Barb. 506), reaches the same conclusion in spirit, if not in words. I can realize, however, that unless the courts holds to such a construction, that this statute will oftentimes fail to protect and preserve the family from want, in accordance with the letter and spirit of its enactment. If in this review of the case and the statute of exemptions, my conclusions of law are tenable, it follows, as a matter of course, that this horse was exempt property as a team or part of a team, and perhaps no further consideration of the case is necessary. But there is another construction or interpretation of the words “ working team” that I think should be stated. ■ I hold that, under the evidence in this case, this horse is a “working team” as described in the statute, without any connection with the cart and harness in which he was worked by the plaintiff. The word “team,” as used in our language and in this country, has a broader and more extensive meaning than that given in our dictionaries, or in any of the cases that I have found which have dwelt upon its interpretation. A horse or other animal trained and used for labor and service, when it constitutes the motive power to accomplish such labor and service, is in my opinion a team, according to the popular and statutory meaning of the word. It may be trained and worked to carry burdens, without carriage, harness, or other appendage, and, as often is the case, it 'may be used (without trappings of any kind) to supply motive power to varieties of machinery, and in divers other ways made use of, as a colaborer with its owner. , I hold that the horse or animal that thus performs labor, and works for its owner, may be justly and properly designated as a “working team,” without its being associated or used with any other specified articles of property, and therefore I hold that the laboring horse is of itself a “working team,” within the popular and statutory definition of these words.

The judgment must "be reversed, and a new trial ordered, with costs to abide the event.


text:
    WILLIAM WARD, Plaintiff and Appellant, v. THE CENTRAL PARK, NORTH AND EAST RIVER RAILROAD COMPANY, Defendants and Respondents.
    It is the duty of. a passenger, upon getting on a city railroad car, to place himself in as safe a position thereon as he is able to obtain, and it is no excuse on his part for placing himself in an unsafe one, that the persons in charge know that he is unsafe and do not drive him therefrom, when the danger is equally well known to him.
    Although standing upon the platform of a car is not negligence per se, but open to explanation, yet, where a passenger stood upon the very edge of the platform, without holding on to anything, and with knowledge of the bad condition of the street and track caused by accumulations of ice and snow, and maintained such position after an opportunity had been given to him to exchange it for a place of comparative safety, until thown off by a jerk of the car occasioned by the said bad condition of such street and track,—Held, that he was guilty of negligence which contributed to the injury, and could not recover against the railroad company, notwithstanding the latter were also negligent.
    Before Barbour, Ch. J., and Freedman and Spencer, JJ.

      Decided July 1, 1871.
    Appeal from judgment.
    The action was brought to recover damages for injuries sustained by plaintiff, a printer by trade, while riding upon one of defendants’ cars, on the ground that such injuries resulted from the negligence of defendant’s servants.
    The defendants, by their answer, denied negligence on their part, and averred that the injuries sustained by plaintiff, if any, were caused wholly through his own carelessness and negligence, and not through the carelessness or negligence of the defendants, their agents or servants.
    Upon the trial the plaintiff testified that in the month of January 1867, at the corner of Lewis and Seventh-streets, in the city of ¡New York, he got on board of one of defendants’ cars, which was running south. The seats were all occupied, and in the centre of the car was a line of passengers holding on by the straps. While standing on the rear platform, the conductor came and collected the fare. Plaintiff thereupon, at the request of the conductor, stepped a little aside to allow the conductor to enter into the car. He stepped to the right, and found no place to stand .upon except on the edge of the platform. There was a passenger before him who held on to the iron rod which protected the window, and another behind him, resting against the back part of the platform, and plaintiff stood between them, without having hold of anything,- At the corner of Sixth-street the car stopped to take up two more passengers.' The rear platform was so crowded that there was no room for them to get up. At the request of the conductor plaintiff got off, and then stood on a block or chunk of ice, until the said two passengers had safely got aboard, and then got up again into the car, and stepped back into the same position between the two passengers first spoken of, which he had occupied before. The car drove on quite rapidly for about two blocks, when a jolt or jerk of the car threw the plaintiff off.
    It also appeared by plaintiff’s testimony, that it had been snowing three or four days before, that the snow had got frozen, that on the day in question there we;re large chunks of ice along- the track that had not been cleared off, and that the whole street, through which the track runs, was in a very bad condition in consequence of the accumulations of ice and snow.
    Upon the close of plaintiff’s case, defendants’ counsel moved for a nonsuit, upon the grounds,
    1. That the plaintiff had contributed, by his own negligence, to the accident, and

      2. That no negligence was shown on the part of the defendants.
    The court granted the motion, and plaintiff excepted.
    The defendants entered judgment, and plaintiff appealed therefrom.

      Henry L. Clinton, counsel for appellant.

      A. J. Vanderpoel, counsel for respondents.
   By the Court.—Freedman, J.

The only question of law . which is before us, arises upon the exception'of plaintiff to the nonsuit ordered by the court. There was no request to be permitted to go to the jury, and no motion has been made for a new trial. The evidence, which is uncontradicted, presents two questions:

First; Was the plaintiff free • from contributory negligence ?

Second: Were the defendants guilty of negligence on the occasion in question %

To justify the nonsuit, one of these questions must be held against the plaintiff, and so clearly, that there is no room for doubt. On a question of nonsuit, all disputed facts are to be decided in favor of the plaintiff, and all presumptions and inferences, which he had a right to ask from the jury, are to be conceded to him (Cook v. N. Y. Central R. R. Co., 3 Trans. App. 8).

In Clark v. Eighth-avenue R. R. Co., 36 N. Y. 135, the learned judge who delivered the opinion of the court, laid down the doctrine, that whenever it appears that a passenger is riding in a car in a place of hazard or danger, his negligence is jprima facie proved, and the onus is upon him to rebut the presumption. Although this proposition may not be regarded as an authoritative decision by the court of appeals, it has been expressly laid down as the law of this court, in Solomon v. The Central Park, N. & E. R. R. Co., 1 Sweeny, 298.

The presumption may be overcome by proof that the passenger could not get any safer place. Thus, in Hardencamp v. The Second-avenue E. E. Co., reported in the Transcript of March 22, 1870, it appeared by uncontradicted evidence, that both platforms and the inside of the car were so full, that the plaintiff, having got upon the front platform, could not get any safer place. In Clark v. The Eighth-avenue R. R. Co., 36 N. Y. 135, it seems to have been conceded, that there was no other room for plaintiff, except upon the steps, where the conductor called upon him for, and received from him his fare. In Sheridan v. The Brooklyn & Newtown R. R. Co., 36 N. Y. 39, the evidence showed that the conductor forced the boy, against his remonstrance, to give up an inside seat, and to occupy a place on the platform. In each of these cases, a recovery by plaintiff was upheld, but at the same time, the principle fully recognized, that it is the duty of a passenger, upon getting on board of a car, not only to use ordinary care and attention to protect himself while there, but also to place himself in as safe a position therein as he is able to obtain, and that it is ho excuse on his part for placing himself in an unsafe one, that the persons in charge know that he is unsafe, and do not drive him therefrom, when the danger is equally well known to such passenger.

The application of this rule to the uncontroverted facts of this case is fatal to the plaintiff, even if we assume, without inquiry, that the defendants, who are bound to use all the care and prudence which human sagacity and foresight can suggest, for the purpose of preventing injury to their passengers, carried in the way in which they undertake to carry them, were guilty of negligence in the performance of their duty towards the plaintiff. According to the latter’s own showing, there was no necessity for him to stand, as he did. He could have got inside in place of the conductor, and in point of fact, did get in, after the injury, without any one having left the car to make room for him. Again: he could have occupied part of the place which the two passengers assumed, who got upon the car after him, and for whom he stepped aside. He was under no obligation to do so. He seems to have been fully cognizant of the bad condition in which the street and the track were in, at that particular time and place, in consequence of the accumulations of snow and ice. To every passenger of his age, intelligence and experience, observing ordinary caution, that condition must have been suggestive, not only of the possi* bility, but the extreme probability of the car receiving just such a jolt-. or jerk, as that which subsequently occurred, and which resulted in plaintiff’s injuries. To stand, under such circumstances, upon the very edge of the platform, without holding on to anything, and to maintain such position after an opportunity had been had to exchange it for a place of comparative safety, was, therefore, negligence on the part of the plaintiff, which contributed to the injury, and debars him from a recovery, no matter how negligent the defendants may have been. The mere request by the conductor, to step aside for a moment and allow two other passengers to get on, is no sufficient excuse for the plaintiff under the circumstances.

The judgment should be affirmed, with costs.