text:
    Agnes Cameron, as Administratrix, etc., of Allan Cameron, Deceased, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.

      Master and servant — duty of an employer to hire competent servants — superintendence over -?• competency and incompetency defined — liability for their neglect of duty — constructive notice — a question of fact — proof of knowledge by co-employees.

    A competent servant is one who may be relied upon to execute the rules of his master unless prevented by causes beyond his control. The competency or incompetency of a servant is determined not alone by physical or mental attributes, but also by the disposition with which he performs his duties. If he habitually neglects those duties he becomes unreliable, and although he may be physically and mentally able to do well all that is required of him, his disposition towards his work and his fellow-servants makes him an incompetent man.
    It is the duty of an employer not only to hire competent servants, but also to see to it that they remain competent, and for that purpose he must maintain a vigilant watch and superintendence over them.
    When an employer procures competent and reliable men he is not answerable for the first lapse of duty by reason of their carelessness or negligence, but when such failure of duty becomes habitual or of frequent occurrence, he is chargeable with any damage resulting therefrom, if he has notice of such conduct on the part of his employees, or if, by a reasonable supervision of those employed in his service, he could have acquired notice or knowledge of such carelessness or neglect of duty.
    In an action brought by an employee against a corporation for injuries alleged to have resulted from its negligence, it is a proper question of fact to be submitted to the jury whether the accustomed violation of the rules of the corporation, and the habitual neglect of duty on the part of one of its employees had been so frequent and long continued as to satisfy the jury that a careful supervision would have brought the matter to the knowledge of the corporation.

      Proof of knowledge by co-employees of suck neglect of duty by a fellow-servant, while not evidence of notice to the master, is competent upon the question as to the master’s diligence in supervising bis employees.
    Appeal by the defendant, The New Torlc Central and Hudson River Railroad Company, from a.judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ulster on the 26th day of April, 1893, upon the verdict of a jury rendered after a trial at the Ulster Circuit, and also from an order entered in said clerk’s office on the 25 th day of April, 1893, denying the defendant’s motion for a new trial made upon the minutes.

      F L. Westbrooh and Ashbel Green, for the appellant.

      John M. Gardner, for the respondent.
   Herrick, J.:

The plaintiff’s intestate, Allan Cameron, was of about the age of twenty years, and had been in the employ of the defendant as a brakeman for about a year prior to his death by the accident in question.

The train upon which he was employed started from Kingston on defendant’s road on the morning of the Uh of May, 1891; on arriving at Marlborough, a station about twenty miles south of Kingston, it passed on to a switch or freight track and stopped in front of the freight depot. ^ .

•At this point on defendant’s road there are two main tracks, one known as the south-bound track and the other as the north-bound track; on the west of these two tracks is a side track for freight and a side track to a gravel pit, and on the east of the main tracks and between them and the Hudson river there is another side track.

At the time in question there was on the side track to the gravel pit a car to be taken out and put on the other track, and a car was to be taken from the freight train on which young Cameron was employed and left at Marlborough.

On the side track east of the main tracks were a number of cars, one of which was to be taken and' attached to this freight train and taken away as part of it.

.While the freight train was at this depot, an express train known as No. 11 passed by on the easterly or north-bound track, carrying signals indicating that it was followed by another train running on the same time schedule, and entitled to the same time-table rights as the train carrying the signals.

Before No. 11 had passed, the conductor of the freight train had told the brakeman what was to be done as to leaving and taking oh the cars already spoken of.

After train No. 11 had passed, the conductor of the freight train gave directions not to cross until the second section, which was following No. 11, had gone by; at this point there is what is called a crossover switch, by which cars may be switched from one track to the other; before the second section of train No. 11 had gone by, Cameron and a brakeman named Norton went across the main tracks to the switch east of the main tracks where Norton told Cameron which car was to be taken from it; they then started to go back; Norton opened the crossover switch at the north-bound track and left it open; he then went towards the westerly main track, that being towards the south-bound end of the switch, with the intention of opening that end of the switch, but before he got there, hearing the engine that was following train No. 11 coming up the track, he started to close the switch he had opened, but did not arrive there in time, and the engine passed' over the open switch on. the south-bound track and ran into the cars standing thereon; Cameron, the intestate, who was engaged with those cars, was jammed by the collision and was so injured that he subsequently died.

Rule 117 of the defendant’s rules and regulations provides that “ Whoever opens a switch shall remain at it until it is closed, unless relieved by some other competent employee.”

The brakeman Norton was familiar with these rules, and had a copy of the rules and regulations for the conduct of defendant’s employees in his possession.

Rule 4 reads: “ Every employee of this company whose duties in any way are prescribed by these rules must always have a copy of them at hand when on duty, and must be conversant with every rule. He must render all the assistance in his power in carrying them out, and immediately report any infringement of them to the head of his department.”

Norton had been in the employ of the defendant over a year and a half, and was promoted to brakeman, and had been employed as brakeman for some eight or nine months prior to the happening of this accident. He was a witness upon the trial and testified that he had been in the habit of opening switches in the manner in which he operated the one in question on the day of the accident for eight or nine months; that is, opening them and then going away and leaving them open; that he did it almost daily.

It is conceded that leaving the switch open was the cause of the accident.

At the close of the plaintiff’s case the trial court, in denying the motion for a nonsuit, announced that the only question to be determined was the incompetency of Norton, and that was the principal issue, and indeed the only issue, finally presented to the jury for their consideration in determining the liability of the defendant.

It is conceded that Norton was, at the time of his employment and at the time of his promotion to the position of brakeman, a competent man, and the question is, assuming his story to be true, whether the violation of the rule habitually indulged in by him rendered him an incompetent man, and whether the defendant had notice of his habitual disregard of the rule in question.

Norton’s own testimony shows him to have been an incompetent servant. A competent man is a reliable man; one who may be relied upon to execute the rules of the master, unless prevented by causes beyond his own control. Hence, incompetency exists not alone in physical or mental attributes, but in the disposition with which a servant performs his duties. If he habitually neglects these duties he becomes unreliable, and although he may be physically and mentally able to do well all that is required of him, his disposition toward his work and toward the general safety of the work of his employer and to his fellow-servants makes him an incompetent man.” (Coppins v. N. Y. C. & H. R. R. R. Co., 122 N. Y. 557-564.)

It is true that when Norton was hired, and when he was promoted to the position of brakeman, he was a competent man, but the duty of the defendant did not end there; not only is it its duty to secure competent men, but it must see to it that they remain competent, and for that purpose it must maintain a vigilant watch and super’intendence over its men, just as it does over its tracks, engines and cars.

Of course, baying procured competent and reliable men, it is not aiiswetable for the first lapse' of duty by reason of the carelessness or negligence of the men so hired, but when such failure of duty becomes habitual or of frequent occurrence then it is chargeable with any damages resulting therefrom, if it has notice of such conduct on the part of its employee, or if, by a reasonable supervision of those employed in its service, it could have acquired notice or knowledge of such carelessness or neglect of duty.

TJpon the trial the defendant produced the division superintendent having charge of that division of the road where the accident happened, and other officers or employees of the defendant, superior in rank to either Norton or Cameron, who all testified that they had no knowledge, and had never heard, of any neglect of duty by Norton, and had never heard of his alleged practice of leaving switches after he had opened them.

Eailroad corporations can only receive notice of the condition of their roads, and the conduct of those employed by them, through their officers; and for the purposes of this case it will be assumed that the defendant by the testimony produced upon the trial established the fact that it had no actual notice of the manner in which Norton discharged his duties, but that is not sufficient to relieve it from responsibility; if the careless discharge of his duty was continued for such a length of time that a careful and diligent supervision of its employees ought to have brought such lapse of duty to its notice, then it is chargeable with knowledge. (Whittaker v. D. & H. C. Co., 126 N. Y. 544.)

The jury having found, as it must have found, that Norton neglected his duty in the manner heretofore detailed, that he was accustomed to violate the rules of the defendant in that particular, it was a question of fact proper to be submitted to them, whether such violation of the rules and habitual neglect of duty had been so. frequent and long continued as to satisfy them that a careful supervision would have brought it to the knowledge of the defendant, which necessarily included in it the further question of fact, did the defendant so diligently supervise the work of its employees as to prevent their becoming negligent and careless in the discharge of their duties, and violating tlie rules of the defendant established for their guidance. '

These were questions of fact proper to be submitted to the jury, and I do not think that the trial court erred in refusing to nonsuit, and permitting the case to go to the jury.

No exceptions appear to have been taken to the manner in which the issues to be determined by them were submitted to the jury.

I do not think the court erred in admitting evidence that employees of the road knew Norton’s habit of violating the rule in question. "While knowledge by Norton’s co-employees of his violation of the rules was not necessarily notice to the defendant,' yet I think it was competent to prove that such violation was not secret, but was open and frequent; it was evidence that properly might be taken into consideration by the jury uj)on the question as to whether, if the defendant had diligently supervised its employees, it would not have discovered such neglect of duty.

Por these reasons the judgment, I think, should be affirmed, with costs.

Mayham, P. J., and PutNAm, J., concurred.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: HeeRICK, J.:

license: Public Domain

text:
    Zoe Neddo, Appellant, v. The Village of Ticonderoga, Respondent.

      Municipal corporation — damages caused by defects in its streets — •contributory negligence — burden of proof — presumption as to the safety of a street — point of danger, how approached.

    To maintain an action against a municipal corporation to recover damages, alleged to have been sustained by reason of a fall occasioned by the defective condition of a street, it is necessary for tlie plaintiff to prove the absence of contributory negligence on her part; she is not entitled to the benefit of any presumption to establish the absence of negligence on her part, and where the circumstances point as much to such negligence as to its absence she is not entitled to recover.
    The presumption, which a traveler may indulge, that the streets of a city are safe, and which excuses him from maintaining a vigilant outlook for dangers and defects, has no application where the danger is known and obvious.
    When a person approaches a point of danger it is his duty to do so with a care and caution commensurate with the dangers of the locality.

      Appeal by the plaintiff, Zoe Neddo, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Essex on the 6th day of June, 1893, upon the decision of the court rendered after a trial at the Essex Circuit, dismissing the plaintiff’s complaint upon the merits.

      Francis A. Smith, for the appellant.

      O. J3. MoLaughUn, for the respondent.
   HeeRICK, J.:

The sidewalk on Lake George avenue, a street in the village of Ticonderoga, was a plank walk about four feet wide, and at the point where the accident happened which gives rise to this action, a section of the said plank walk, some thirteen or fourteen feet in length, had been taken up to enable wagons to cross carrying stone and building materials for the erection of a building upon a lot in front of which the said plank walk had been removed.

From the top of the sidewalk to the earth where the plank walk had been removed there was a space of some eight or ten inches. The grade of the street at that point was descending, and it also sloped from the sidewalk towards the street; the soil was clay.

The crossing of loaded wagons over the sidewalk where the planks had been removed cut it into ruts.

Upon the day of the accident it had been raining, and the clay was wet and slippery.

The plaintiff had passed back and forth several times a day for a number of days prior to the accident, over the sidewalk where the planks had been removed.

On the afternoon of the fifteenth of August, the plaintiff, in company with several other females, was returning to her home from the place where she was employed, by way of the sidewalk in question ; she stepped from the plank sidewalk on to that portion of the sidewalk from which the planks had been removed, took one or two steps, slipped on the clay and fell to the ground, and sustained injuries for which she seeks to recover damages in this action.

At the close of the testimony the court granted a motion for a nonsuit, and from the judgment entered thereon the plaintiff appeals to this court.

To maintain ber action it is necessary for tlie plaintiff to show the absence of contributory negligence on her part. ( Weston v. City of Troy, 139 N. Y. 281.)

The burden of proof was upon her, and she is not entitled to the benefit of any presumption to establish lack of negligence on her part, and where the circumstances point as much to negligence as to its absence, she is not entitled to recover. ( Wiwirowski v. L. S. & M. S. R. R. Co., 124 N. Y. 420; McDonald v. L. I. R. R. Co., 116 id. 546-550.)

In this case there seems to be an entire absence of evidence of the lack of contributory negligence on the part of the plaintiff; she knew of the absence of the plank sidewalk; she had passed over it repeatedly several times a day for some days before the happening of the accident; at the time of the accident it was broad daylight, and yet she went upon this rough slippery ground the same as if it were an ordinary sidewalk. The presumption which a wayfarer may indulge that the streets of a city are safe, and which excuses him from maintaining a vigilant outlook for dangers and defects, has no application where the danger is known and obvious.” ( Weston v. City of Troy, 139 N. Y. 281-283.)

"When a person approaches a point of danger it is his duty to do so with a care and caution commensurate with the dangers of the locality.

There is no evidence in the case, either from the plaintiff herself, or from any other witness, to show that the plaintiff exercised any care or took any precaution, or in any way walked or attempted to walk over the place in question, in any different manner from what she did over the sidewalk that had not been removed. The only evidence that I have been able to find bearing upon the subject is the following, from Grace kioses, one of the plaintiff’s witnesses : “Q. How were you walking? A. We. were walking single file when she fell. Q. At what rate were you walking? A. We wasn’t walking very fast. Q. An ordinary walk? A. Yes, sir. Q. Describe how you were walking ? A. We were walking just as we naturally walk. We were coming home from our work, and we were walking as we would naturally walk. That is all.” And again upon the cross-examination: “ What discussion did you and the girls have, if any, in reference fo this place in going across it ? A. We knew the mud was slippery, and we went across very carefully. Q. "Was that talk between you and Miss Neddo and,the girls? A. No, sir; it was not talked, but I had it in my mind.”

The plaintiff, upon her examination, testified as follows: Q. How were you walking ? A. Single file. Q. How fast were you walking ? A. Not very fast, as usual. Q. An ordinary walk ? A. Yes, sir.”

From this testimony I fail to see that there is any evidence showing a lack of contributory negligence, or any fact disclosed from which the jury could infer a lack of contributory negligence on the part of the plaintiff, and a lack of such evidence is fatal to the plaintiff’s cause of action.

What the witness Moses had in her mind, as she expressed it, had nothing to do with the plaintiff, and has no bearing upon the question of plaintiff’s conduct.

The judgment should be affirmed, with costs.

MathaM, P. J., and PutNAM, J., concurred.

Judgment affirmed, with costs.


author: Hekrick, J.:

text:
    William J. Barrett, Appellant, v. Charles W. Johnson, Respondent.

      Statute of JPrauds— laches in taking advantage of it.

    “Where the Statute of Frauds is not pleaded as a defense to an action, and upon the trial thereof evidence which establishes the parol contract is received without objection, the defendant is not in a position at the close of the trial to take advantage of the statute.
    Appeal by the plaintiff, William J. Barrett, from a judgment of the Rensselaer County Court in favor of the defendant, entered in the office of the clerk of the county of Rensselaer on the 22d day of June, 1893, upon a decision of the court dismissing the plaintiff’s complaint, and also from an order made upon the minutes denying the plaintiff’s motion to dismiss the appeal upon the justice’s return, with notice of an intention to bring up for review on such appeal the decision, order and judgment of the court.

      T. F. Doherty and W. F. Hickey, for the.appellant.

      F. 8. Black, for the respondent.
   Hekrick, J.:

The plaintiff brought his action against the defendant in the Justice’s Court to recover the sum of forty-nine dollars, alleging in his complaint that on oi” about the 1st day of February, 1891, he was in the employ of the firm of Salisbury & Johnson; that at that time plaintiff was receiving from said firm a salary of twelve dollars per week; that he then notified defendant Johnson that he would no longer work for that amount, and that unless the said firm would increase his salary to fourteen dollars per week he would quit their employ; that said Johnson then informed him that he would increase his salary one dollar per week from said firm, and he, said Johnson, personally would pay to plaintiff one dollar per week additional, if he would remain in the employ of said firm during a period of six months from that time; that about the expiration of said six months plaintiff spoke to Johnson in regard to his salary, and Johnson said they would continue under the same arrangement for another six months; that the plaintiff continued in the employ of the defendant during the balance of said term, but that the defendant has never paid him the amount of one dollar per week, amounting to the sum of forty-nine dollars.

The plaintiff recovered judgment against the defendant in the Justice’s Court, and the defendant thereupon appealed for. a new trial in the County Court, he having pleaded a counterclaim for more than fifty dollars. '

At the close of the testimony in the case, the court nonsuited the plaintiff “upon the ground that from the testimony of the plaintiff it appears that the contract, if any, entered into between the plaintiff and defendant, was a contract to answer . for the debt or default of the co-partnership firm of Salisbury & Johnson, and that the same was not in writing, and, therefore, void by the Statute of Frauds.”

The complaint of the plaintiff and the answer of the defendant were both in writing; the defendant in his answer did not plead the Statute of Frauds as a defense, although, as will be seen from the substance of the complaint, as hereinbefore stated, he was fully apprised of the nature of tlie plaintiff’s claim; neither was there any objection made by the defendant upon the trial to the' reception of the evidence establishing the contract by parol. This was error. The statute not being pleaded as a defense, and the evidence which established the parol contract having been received without objection, the defendant was not in any position to take advantage of the statute at the close of the trial. (Crane v. Powell, 139 N. Y. 379.)

In addition, however, it may be stated that, if the plaintiff’s version of the contract, as given by him upon the trial, is correct, then the defendant did not agree to pay the debt of another, but entered into a contract of his own and for which he was personally responsible as the original contractor.

The judgment of the County Court should be reversed and a new trial ordered, costs to abide the event.

Mayham, P. J., and PutNAm, J., concurred.

Judgment reversed and a new trial granted, costs to abide the event.


author: Herrick, J.:

text:
    John H. Bame, Appellant, v. Anton Seykora, Respondent.

      Justice of the peace — action to recover a chattel or its value — it need not he replevied — what is necessary to establish a defense.

    An action to recover possession of a chattel may he maintained before a justice of the peace although no proceedings are taken to replevy the chattel before judgment.
    In an action brought to recover the possession of a chattel, if the plaintiff establishes a prima facie title and a right to the possession of the property, it is incumbent upon the defendant to show how he came into possession of the same.
    Appeal by the plaintiff, John H. Bame, from a judgment of the County Court of Schenectady county in favor of the defendant, entered in the office of the clerk of the county of Schenectady on the 15th day of September, 1893, dismissing the plaintiff’s complaint, and for costs.
    This action was brought to recover possession of a horse and wagon, or the value thereof, together with damages for the alleged wrongful detention of the same by the defendant.
    The defendant alleged in his answer that he purchased the horse and wagon at a public sale by virtue of an execution.
    Upon the trial of the action, after the conclusion of the plaintiff’s ■testimony, the defendant moved for a nonsuit, which was granted.

      Jacob W. Glute, for the appellant.

      Louis M. King, for flie respondent.
   Herrick, J.:

An action to recover the possession of a chattel may be brought before a justice of the peace without taking proceedings to require the replevining of the chattel before judgment. (§§ 2919, 2933, 3038, Code Civ. Proc.; Delin v. Stohl, 2 N. Y. Civ. Proc. Rep. [Browne], 222; Guyon v. Rooney, 25 N. Y. St. Repr. 326.)

The plaintiff established a prvma facie title and' a right to the possession of the property in question against every one, except a bona fide purchaser.

There is no evidence in the case to show how the defendant came into the possession of the property, whether he stole it, took it for debt or purchased it.

Plaintiff having established a prima facie title and right to the possession of the property, it is incumbent upon the defendant to ■show how he came into jiossession of it.

The judgment of the County Court should be reversed and a new trial ordered, costs to abide the event.

Mayham, P. J., and Putnam, J., concurred.

Judgment reversed, new trial granted, costs to abide the event.


text:
    Sigmund Asher, Respondent, v. Daniel H. Deyoe, as Sheriff of Saratoga County, Appellant.

      Sale induced by fraud — ownership of the property sold — who is a bona fide holder —property of one person taken on an attachment against another — remedy— objection to the form of an action — when too late.

    When a vendee obtains possession of the property sold, by fraud and misrepresentation, and with the intention of not paying for the same, but of cheating and defrauding the vendor out of his property therein, the title to the property is not changed, and the vendor can retake the same from any one not a bona fide purchaser; a bank which takes a.mortgage upon such property to secure a pre-existent indebtedness is not such a bona fide purchaser, and such mortgage gives it uo right to hold the property against the owner thereof, who has been deprived of the possession of the same by fraud.
    Where the property of a person is seized b3r virtue of a warrant of attachment against another, his remedy is by an action for conversion and not by a replevin suit.
    The defendant in an action, upon an appeal from a judgment rendered against him therein, should not be permitted, when the case has been tried upon another theory, to avail himself of an objection to the form of the action raised for the first time on the appeal, but must be considered to have waived such objection.
    Appeal by the defendant, Daniel H. Deyoe, as sheriff of the county of Saratoga, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga on the 30th day of January, 1893, upon the verdict of a jury rendered after a trial at the Saratoga Circuit, and also from an order entered in said clerk’s office on the 1st day of March, 1893, denying the defendant’s motion for a new trial made upon the minutes.

      T. F. Hamilton, for the appellant.

      J. L. Hemving, for the respondent.
   Herrick, J.:

This is an appeal from a judgment against the defendant awarding to the plaintiff possession of certain tobacco, and in case the same is not delivered to the plaintiff, directing that the plaintiff recover of the defendant the sum of $551.50, the value of said property, and also the sum of forty-four dollars and twenty cents damages for the detention thereof.

It appears that the plaintiff sold the tobacco in question to one Metzner, about the 1st of July,-1891, on a credit of four months. About September 23, 1891, certain creditors of Metzner, claiming that he was removing and disposing of his property with the intent to defraud his creditors, obtained an attachment against Metzner’s property; under such attachment, the defendant, as sheriff, levied upon the property of said Metzner, seizing as a part of the same the tobacco in question in this action.

The plaintiff brought his action in replevin against the sheriff to obtain possession of the tobacco, alleging that the same was obtained from him by false and fraudulent representations and statements made by Metzner as to his financial condition, and that the said tobacco was purchased by Metzner with the intent not to pay for the same, and with the intent to defraud and cheat the plaintiff out of his property; and that upon ■ the discovery of such fraud, he, the plaintiff, disaffirmed the sale, and made a demand upon the sheriff for said tobacco in the sheriff’s possession.

The property was replevined from the sheriff by the coroner; the plaintiffs, in the attachment proceedings, executed and delivered to the coroner a proper undertaking for that purpose, which was approved by the coroner, and the tobacco returned to the possession of the defendant in the present action, the sheriff.

Upon the trial, evidence was submitted by the plaintiff of the false and fraudulent representations made by Metzner at the time of the sale of the tobacco, and by which the plaintiff was induced to make such sale, and the jury, by their verdict, have found that issue in favor of the plaintiff, and there was evidence to justify such finding ; and for the purposes of this appeal it may be taken as established that Metzner, by false and fraudulent representations, induced the plaintiff to part with the possession of the tobacco in question, with the intent not to pay for the same, and with the intent to cheat and defraud the plaintiff out of his property therein.

The action was commenced on the 23d of September, 1891. On the 19th of September, 1891, Metzner gave a chattel mortgage on the tobacco in question to the First National Bank of Saratoga Springs, to secure the payment of certain notes then held by the ■ bank, to the amount of $1,237, Metzner being the maker of one of the.notes, and the indorser upon four others. There was no agreement that by the giving of the chattel mortgage such notes should be delivered up to Metzner, nor were they in fact delivered to him at that time; the next day, however, after the giving of the chattel mortgage, the bank gave Metzner such notes, and took Metzner’s own note in lieu thereof.

At the time of the giving of the chattel mortgage the bank did not advance or give anything to Metzner therefor, and in his testimony Metzner says, “ I gave the mortgage for the sole purpose of securing the notes then held by the bank, upon which I was liable as either maker or indorser.”

At the close of the plaintiff’s case the defendant moved for a dismissal of the complaint upon the ground that it “affirmatively appears by the proof that the legal title to the goods in question is in the First National- Bank of Saratoga Springs, and that upon plaintiff’s own proof he cannot recover in the action.”

This motion was denied, and again at the close of the whole case; “ the defendant’s counsel asked to go to the jury upon the question whether or not by the terms of the agreement under which the mortgage was received by the bank, the five notes surrendered and the note of Metzner taken therefor, were not transactions by which the bank surrendered valid security and became a bona fide holder of the mortgage for value.”

This request was denied. I can see no reason for a reversal of the judgment in this case.

Metzner having obtained possession of the property by fraud and misrepresention, and with the intent not to pay for the same, but with the intent to cheat and defrand the plaintiff out of his property therein, the title to the property was not changed, and the plaintiff could retake the same from any one not a bona fide purchaser. (Hotchkin v. T. N. Bank, 127 N. Y. 329-338; Devoe v. Brandt, 53 id. 462.)

The bank does not stand in the position of a bona fide purchaser; it did not give anything for the mortgage, and the debt that the mortgage was executed to secure was a pre-existing one, and the mortgage executed as security therefor gave it no right to hold the property as against the owner who had been deprived of the possession thereof by fraud. (Barnard v. Campbell, 58 N. Y. 73; Nat. B. & D. Bank v. Hubbell, 117 id. 384-398.)

No question is raised upon this appeal as to the fact that the plaintiff within a reasonable time after the discovery of the fraud upon him commenced proceedings to recover his property. Neither is there any question raised as to a proper demand having been made by him for the possession thereof. The appellant does, however, raise the question that such property having been seized under an attachment, the same was in the custody of the law, and that the plaintiff has mistaken his remedy; that his action, if any, should have been for conversion, and not for replevin, and cites the case of Wise v. Grant (140 N. Y. 593) to sustain his contention; the case cited is in point, and if it were not for other considerations I would feel constrained to hold that the judgment should be reversed, but the question so presented is raised for the first time in this case on appeal; it was not suggested in the court below; the case was there tried upon the question as to whether there had in fact been any fraudulent action on the part of Metzner towards the plaintiff, and as to whether the bank under this chattel mortgage had a title to the property, and, as we have seen, the only question raised by the defendant upon the motion for a nonsuit at the close of the plaintiff’s testimony was that arising under the chattel mortgage to the plaintiff, and the only question upon which the defendant requested to go to the jury was that arising out of the same chattel mortgage; under such circumstances, I do not think the defendant should be permitted to avail himself of an objection to the form of the action now raised for the first time. Having tried the case upon another theory he must be considered to have waived that objection; to hold to the contrary would be justifying a practice which is misleading to the trial courts and an injustice to the parties. (Salisbury v. Howe, 87 N. Y. 128; O'Neill v. N. Y., O. & W. R. Co., 115 id. 579-584.)

The judgment should be affirmed, with costs.

IVIayham, P. J., concurred; Putnam, J., not acting.

Judgment affirmed, with costs.


text:
    Thomas Slavin and Another, Appellants, v. William K. Mansfield, Respondent.

      Jurisdiction of a Justice’s Court— Code of Civil Procedure, § 2869, subd.

    Subdivision 3 of section 2869 of tbe Code of Civil Procedure is not a restriction or a limitation upon tbe jurisdiction of a justice of the peace, but is a grant of jurisdiction in addition to that given by the first part of the section; nor does it require that a non-resident be sued in the Justice’s Court of the town in which he is at the time the process is served upon him, the provision being permissive and not compulsory.
    A person may be sued in the Justice’s Court of a town, although the plaintiff does not live either in that town or in an adjoining one.
    A party has the right to bring an action in a Justice’s Court of the town adj oining the one in which he resides against any person found within the county.
    Appeal by tbe plaintiffs, Thomas Slavin and another, from a judgment of the County Court of Albany county in favor of the defendant, entered in the office of the clerk of the county of Albany on the 12th day of January, 1891, upon a decision of the court, reversing the judgment of a justice of the peace of the town of Watervliet.

      Henry J. McCormick, for the appellants.

      P. D. Hirer, for the respondent.
   Herrick, J.:

The plaintiffs reside in the city of Cohoes; the defendant resides in the county of Saratoga; the action was brought in the Justice’s Court in the town of Watervliet, which adjoins the city of Cohoes.

The defendant was served with a summons in the city of Cohoes.. The judgment was rendered in favor of the plaintiffs and against the defendant for the sum of thirty-eight dollars and twenty-nine cents damages and three dollars and eighty-five cents costs.

The defendant appealed to the County Court of Albany county; the County Court reversed the judgment of the Justice’s Court upon the ground that such court had no jurisdiction over the defendant. This I think was error. Section 2869 of the Code of Civil Procedure provides that “An action must be brought before a justice of a town or city wherein one of the parties resides, or a justice of an adjoining town or city in the same county, except in one of the following cases : Sub. 3. Where the defendant is a nonresident of the county it may be brought before a justice of the town or city in which he is at the time of the commencement of the action.’ ”

Subdivision 3 of section 2869 is not a restriction or a limitation of the jurisdiction of the justice, but is an addition to the jurisdiction given by the first part of the section. (Bennett v. Weaver, 50 Hun, 111.)

The plaintiffs brought their action in the town adjoining the one in which they resided ; they had the right to bring into such court any person over whom the court had jurisdiction. It had jurisdiction over the defendant, he being found in the county, unless there is something in the statute depriving him of jurisdiction.

Subdivision 3 of the section referred to is not a provision that a non-resident must be sued in the court in the town in which he is at the time the process is served upon him; the provision is permissive, not comjmlsory; he may be sued in such town, although the plaintiff does not live there nor in the adjoining town.

The Justice’s Court, therefore, had jurisdiction over the defendant, and the judgment of the County Court should be reversed and that of the Justice’s Court affirmed, with costs of this appeal and of the appeal to the County Court.

Mayham, P. J., and Putnam, J., concurred.

Judgment of County Court reversed and that of the Justice’s Court affirmed, with costs and disbursements of this appeal and of the appeal to the County Court.


author: Hejrriok, J.:

text:
    The Village of Sandy Hill, Appellant, v. Benjamin Akin and Another, as Administrators, etc., of Rebecca Miller, Deceased, Respondents.

      Assessment against the “ heirs ” of a decedent.

    An assessment for personal property against the “heirs” of a deceased person, without naming them, is void.
    Appeal by the plaintiff, The Village of Sandy Hill, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Washington on the 20th day of October, 1893, upon a decision of the court rendered after a trial at the Washington Circuit, dismissing the plaintiff’s complaint upon the merits and for costs.
    The complaint in this action alleged:

      “ II. That Rebecca Miller was at and immediately previous to her death a resident of the village of Sandy Hill aforesaid, and died on or about the 22d day of January, 1892, being at the time of her death the owner and possessor of a large amount of taxable personal property, and leaving a last will and testament which was, on or about June, 1892, duly admitted to probate by the Surrogate’s Court of Washington county, and that letters of administration with said will annexed were thereupon duly issued by said Surrogate’s Court to the defendants herein, and that said defendants thereupon duly qualified as such administrators and entered upon the duties of their said office.

      “ III. That during the whole of the year 1892 there were thr'ee duly qualified assessors of said village; that in or about May, 1892, said assessors duly assessed the personal property of said Rebecca Miller, deceased, at $82,992; * * *

      “IV. That on or about the 2d day of August, 1892, the board of trustees of said village duly prepared a tax roll for a special tax and annexed thereto a warrant as prescribed by law, and which was duly signed and countersigned; that said tax roll and warrant were, on or about August 2, 1892, duly delivered to the duly qualified collector of said village; that the taxes included in said tax roll were based on the assessment as made by the assessors as aforesaid; that the tax in said tax roll against said personal property of said Rebecca Miller, deceased, was $63.62; that said collector, on May 19, 1893, duly returned as wholly uncollected and unpaid the said tax of $63.62, and by said return it duly appeared that said collector was unable to collect said tax ; that no part of said tax has been paid.
    “ V. That thirty days have elapsed since the date of the return of each of said tax warrants.
    “ VI. That the defendant Allen resides, and since the death of said Miller has resided, in said village of Sandy Hill; that the said personal property of said Rebecca Miller, deceased, has continually since her death been in said village.”
    ’ On the trial plaintiff read in evidence plaintifE’s tax list and warrant dated August 2, 1892. So much thereof as is material was as follows:

    D. J. Sullivan, for the appellant.

      G. M. Ingalsbe and A. D. Wait, for the respondents.
   Hejrriok, J.:

The judgment in this case should be affirmed. The assessment for personal property against the heirs of a person deceased, without naming them, is void. It does not follow the statute. (Cruger v. Dougherty, 43 N. Y. 107; Trowbridge v. Horan, 78 id. 439; Cromwell v. MacLean, 123 id. 474.)

Mayham, P. J., and Putnam, J., concurred.

Judgment affirmed, with costs.


author: Herriok, J.:

text:
    Henrietta Childs, Respondent, v. The New York, Ontario and Western Railway Company, Appellant.

      Passenger left by mistake at a wrong station — liability of the railroad company— duty of the passenger to act prudently — contributory negligence.

    Where, through an error or mistake of an employee of a railroad company, a person has been left at a wrong station, such person has the right to recover all damages naturally resulting from the corporation’s fault and for any discomfort or inconvenience resulting to her therefrom; but there is a duty resting upon such person to conduct herself prudently in the situation in which she is placed, so that the discomforts and inconveniences shall not be unnecessarily increased, and to conduct herself so that no danger shall be unnecessarily run by her. If she acts imprudently, and as a result of such imprudence suffers injury, she is not entitled to recover for the injury resulting from her own imprudent action; the fact that the railroad company has placed her in a position where she has an opportunity to act imprudently does not justify her in • doing so.
    It is for the jury to determine what are the natural consequences of a railroad company’s fault in leaving a person at a wrong station, and whether such person acted prudently in the situation in which she was placed, or whether, by her own imprudence, she brought upon herself the injury from which she is suffering; but in reaching its conclusion there are limitations to its power, and while the jury has a right to determine whether the injury from which the person is suffering is the natural result of an accident, that is not necessarily sufficient; it must find that the accident is the immediate or proximate cause of the injury.
    Although the question of contributory negligence is one for the jury to pass upon, its decision is controlled by certain rules of law by which its action is governed.
    Where a person, who has suffered from physical disability at intervals for about fifteen years, and who knows that any undue exercise or exposure will bring on a recurrence of such difficulty, is left by a railroad company, through a mistake of one of its employees, in the evening and during a rain storm, at a station some two or three miles distant from her destination, as a matter of law it is her duty, before she undertakes to walk to her destination, to make some inquiries whether she can procure a conveyance, and if not, whether there is a convenient place in the vicinity where she can be cared for over night, and when, failing to make such inquiries, she blindly and heedlessly undergoes the fatigue of the journey by foot, and the exposure to the elements, when there are places near at hand where she can be cared for during the night, she is not entitled to recover damages from the railroad company for the injuries resulting from such exposure.
    Appeal by tbe defendant, Tbe New York, Ontario and Western Railway Company, from a judgment of tbe Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ulster on the 1st day of May, 1893, rendered upon the verdict of a jury after a trial at the Ulster Circuit, and also from an order made on the 20th day of April, 1893, and entered in said clerk’s office,,denying the defendant’s motion for a new trial made upon the minutes.

      William Vanamee, for the appellant.

      John J. linson, for the respondent.
   Herriok, J.:

On the 3d day of July, 1890, the plaintiff, a widow, in company with her father, her little child, and a friend named Miss Smith, started from Middletown, a station on the defendant’s railroad, to go to Purdys, another station on defendant’s road, there to spend the fourth of July with a relative of the plaintiff who lived in that' vicinity.

Miss Smith purchased the tickets for herself and the plaintiff. When the train reached Fair Oaks, a station about two miles distant from Purdys, the trainman, by some unexplained blunder, announced it as Purdys, and the plaintiff and her party, supposing it to be their destination, got out of the train ; almost immediately upon alighting her father discovered the mistake, and said to the trainman that that place was Fair Oaks, and that they should not be left there; the trainman said that they had moved the station, and that it was Purdys, and the train immediately moved on.

Fair Oaks, it seems, is what is called a milk station; there was a small building there, partially open at the sides, in which milk cans were deposited. About fifty feet distant is a feed store, and a short distance from the feed store, and next to it, is a building described as an office; the proprietor of the feed store seems to have acted as the agent of the defendant at that place, selling tickets for passage over defendant’s road, and his office being used as the waiting room.

At a distance of between 200 and 250 feet from the station there was a farm house, and at a distance of from 400 to 500 feet from the station was a hotel.

At the time that the plaintiff and her party alighted at the station there was present , a brother of the proprietor of the feed store, named Wallace, who had charge of it and the defendant’s business at that station in his brother’s absence, and the son of the hotel proprietor.

It was about seven o’clock in the evening when they alighted from the train, and it was raining, a thunder storm passing over the place at the time. After some little consultation the plaintiff and her party proceeded to walk to Purdys by way of the railroad tracks, and they arrived at her uncle’s house about nine o’clock in the evening.

The plaintiff had been afflicted for a number of years with some uterine difficulty, which, according to the testimony, affected her ankles, so that at intervals for a period of about fifteen years before this occurrence she had been compelled to' wear steel braces for her ankles, but had not been wearing them for about two years prior to the time in question.

The walk from Pair Oaks to Purdys and her exposure to the rain during such journey, prostrated the plaintiff for the time being and brought on a recurrence of her old difficulties, from which she had not recovered at the time of the trial.

Upon the trial defendant produced evidence to the effect that before plaintiff started to walk from Pair Oaks to Purdys, Wallace called the attention of the party to the fact that there was a hotel there where they could get accommodations for the night, which was declined, and that then he informed them that he had a team there and would take them to their destination, which was also-declined, and also evidence to the effect that as they started on their walk the proprietor of the farm house called to them and offered to take charge of them over night, and take them to their destination in the morning without charge.

The plaintiff denied that there was any offer to take her to her destination, denied that she was informed of the fact that there was-a hotel there where she could be accommodated, and denied that she heard the farmer offer to take charge of them over night.

Prom the manner in which the court submitted the case to the jury it must be assumed that the jury found in favor of the plaintiff upon those questions.

The plaintiff testified that she did not know of the existence of any hotel there or of any farm house, and that she made no inquiries and no effort to ascertain whether there was any place where she could be taken care of over night, but, without making any inquiries for or effort to secure lodgings for the night, started out on foot for Purdys.

The court charged the jury: “ In view of the fact that there was here at this station this hotel and this house, it is for you to say whether she did, and the party did, that which was prudent under the circumstances, if they made up their minds to go on to Purdys in that rain without stopping at least to inquire whether there was near at hand a place where they could be protected over night. That ■subject is one that the court has refused to pass upon as a matter of law, and one which he submits to the jury, and which you are to Carefully consider, and weigh and pass upon. And if you find that the plaintiff acted prudently in that which she did —■ if you find that she was not neglectful of herself and her condition in failing to make these inquiries touching a place of rest and shelter during the storm and the night — if you reach that conclusion — if you reach the conclusion that under all the information which she had and which was in her possession, and all the circumstances surrounding it, she was fully justified as a prudent person in taking the course which she did in going on to Purdys, then she is entitled to recover at your hands such a sum, if any, in damages as you think she may have suffered by reason of taking that trip.”

This portion of the chargé was excepted to by the defendant, and ■exceptions were also taken during the trial to the reception of evidence raising the same question,- that is, as to whether the plaintiff was entitled to recover damages for the injuries sustained by her by her walk from Pair Oaks to Purdys and her exposure to the rain ■during such walk.

The plaintiff relies upon the case of Ehrgott v. Mayor (96 N. Y. 264) to sustain the proposition contended for by her.

In that case “ the jury found that the diseases from which the plaintiff suffered were the direct result both of the accident (the breaking of the axle and his falling over the dashboard) and the ■subsequent exposure, and that the effect of the exposure was simply ■to increase and aggravate the injury received from the accident.

“ The jury found that the plaintiff was blameless for the subsequent exposure, and, therefore, so far as that operated in causing injury to the plaintiff, it was a cause for which, he was not responsible. There were, according to the finding of the jury, two causes operating to produce plaintiff’s injuries, each of which was essential to produce the results. The accident without the exposure, and the exposure without the accident, would not have caused them.” And the opinion proceeds : When several proximate causes contribute to an accident, and each is an efficient cause, without the operation of which the accident would not have happened, it may be attributed to all or any of the causes; but it cannot bo attributed to a cause unless, without its operation, the accident would not have happened. Here, as I understand the findings of the jury, the plaintiff’s injuries would not have been suffered but for the strain and shock of the accident. While both causes were proximate, that was the nearest and most direct. Still further. It was certainly impossible for the plaintiff to prove, or for the jury to find, how much of the injury Avas due to either cause alone. It was wholly impossible to apportion the damage between the two causes.”

In this case the plaintiff arrived at Fair Oaks station safe and sound; she suffered no physical injury in alighting at the wrong station. When she started on her walk from Fair Oaks to Purdys nothing had been done by the defendant which rendered her physical system unusually susceptible to injury, either from the walk or from exposure to the rain during the walk, wherein this case essentially differs from the Ehrgott case. Again, in that case there were two concurrent causes, the injuries received by the accident and the subsequent exposure, naturally under the circumstances resulting from that accident; in this case there is only one, and it seems to me that the only question that arises is as to Avhetlier the plaintiff’s walk and the exposure which caused her sickness were the natural consequences of defendant’s fault in leaving her at the wrong station.

The plaintiff undoubtedly has the right to recover all damages naturally resulting from the defendant’s fault, and for any discomfort or inconvenience suffered by her therefrom, .but there was also a duty resting upon her to conduct herself prudently in the situation in which she had been placed, so that those discomforts and inconveniences should not be unnecessarily increased, and to so conduct herself that no danger should be unnecessarily run by her. If she acted imprudently, and as a result of such imprudence suffered injury, then she is not entitled to recover for the injury resulting from her own imprudent action ; the fact that the defendant had placed her in a position where she had an opportunity to act imprudently does not justify her in so acting.

"While it is a question for the jury to determine what are the natural consequences of the defendant’s fault, and they are to determine whether the plaintiff acted prudently in the situation in which she was placed, or whether by her own imprudence she brought upon herself the injury from which she is suffering, still, in reaching their conclusions upon such questions, there are limitations to their power in that respect; while they have the right to determine whether the injury from which the person is suffering is the natural result of an accident, that is not necessarily sufficient; they must find that the accident is the immediate or proximate cause of such injury.

The question of contributory negligence is one for the jury to pass upon; still they are governed by certain rules of law in that respect to guide their action, as, for instance, a person approaching a railroad crossing must look and listen for approaching trains, and the jury are not at liberty to say that he is not guilty of contributory negligence in the absence of evidence that he has taken such precautions; so, in determining the question of prudence, it must not be a mere arbitrary determination on their part, but one limited and guided by law, and it seems to me that the court erred in refusing to find, as a matter of law, that it was the plaintiff’s duty under all the circumstances to inquire whether there was near at hand a place where she could be protected over night, before she started on what was to her a dangerous journey by foot, and in submitting the question of prudence, without limitation or restriction, to the jury.

The plaintiff, as we have seen, had been suffering from physical disability at intervals for about fifteen years; she knew that any undue exercise or exposure would bring on a recurrence of such difficulty. She is left at a station in the evening, during a rain storm, some two miles distant from her destination, and it seems to me that as a matter of law it was her duty, before she undertook to walk there, in her precarious condition of health and in a storm, to make some inquiries whether she could procure any conveyance there, and if not, whether there was any convenient place in the vicinity where she could be cared for over night, and that, failing to make such inquiries, and blindly and heedlessly undergoing’ -the fatigue of the journey by foot, and the exposure to the elements, when there were places near at hand where she could have been cared for during the night, she is not entitled to recover damages for the injuries resulting from such exposure.

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

Putnam, J., concurred; Mayham, P. J., concurred in result.

Judgment reversed, new trial granted, costs to abide the event.


text:
    Annie Rutherford, as Administratrix, etc., of James Rutherford, Deceased, Appellant, v. The Town of Madrid, Respondent.

      Code of Civil Procedure, § 3271 — order directing a plaintiff to file security for costs, discretiona/ry — when not reviewdble — when reversed.

    An order made under section 3271 of the Code of Civil Procedure, requiring a person suing in a representative capacity to give security for costs, is a discretionary order, and, excepting where it has been irregularly obtained, or where there has been an abuse of discretion, or an exercise of discretion in pursuance of erroneous principles or theories of law, the discretion will not be reviewed upon appeal.
    If a court is satisfied that an action has been brought in good faith, that it is not malicious or vexatious, and that the plaintiff has a prima facie case upon the merits, the plaintiff should not be required to file security for costs, and an order made at Special Term, under section 3271 of the Code of Civil Procedure, directing that the plaintiff give security for costs in an action, without the consideration of such facts, is not an exercise of the discretion of the Special Term, and will be reversed upon appeal and the proceedings remitted to the Special Term.
    Appeal by the plaintiff, Annie Rutherford, as administratrix, etc., of James Rutherford, deceased, from an order of the Supreme Court, made at the St. Lawrence Special Term and entered in the office of the clerk of the county of St. Lawrence on the 19th day of December, 1893, requiring the plaintiff to furnish security for costs.

      Louis MaslrouoTe, for tlie appellant.

      F. J. Merrimcm and O. A. Kellogg, for the respondent.
   Herrick, J.:

This is an appeal from an order of the Special Term requiring the plaintiff to give security for costs.

The action is one brought by the plaintiff, as administratrix of her deceased husband, against the town, for negligence causing the death of the intestate.

The order is made under section 3271 of the Code of Civil Procedure ; it is a discretionary order, and, excepting where it has been irregularly obtained, or there has been an abuse of discretion, or where the discretion has been exercised in pursuance of erroneous principles or theories of law, that discretion, will not be reviewed upon appeal.

With great respect for the very able and learned court which made the order, it seems to me that it was granted in pursuance of an erroneous theory and construction of the section of the Code referred to.

In arriving at its determination, it expressly refused to take into •consideration in any degree the merits of the plaintiff’s cause of action, and based the order upon the sole and only ground that the plaintiff was personally irresponsible, and the estate insolvent.

If this be the correct principle to apply in determining applications of this kind, it is obvious that in actions like this, brought for the death of the intestate by the negligence or wrongdoing of the defendant, it would in a very considerable number of cases put an. end to litigation without a hearing upon the merits.

A family whose only means of support has been the earnings of its head, and whose only asset is the cause of action which the law gives for the negligent and wrongful taking of the life of the head of the family, would be deprived of the means of prosecuting the right which the law gives.

Provision is made under our laws whereby a poor person having a cause of action in his own right may, upon application to the •courts, be permitted to prosecute such action without liability, or giving security for costs, but there is no such affirmative provision in our statutes which permits the court to grant the like immunity to persons, like tbe plaintiff, suing in a representative capacity, and it seems to me that a humane and rational principle upon which to exercise the discretion vested in the court, under section 3271, in cases like this, is to adopt practically the same principles upon which courts permit persons to bring suitsyn their own right as poor persons. That is, if the court is satisfied that the action is brought in good faith; that it is not malicious or vexatious, and that the plaintiff has a prima facie case upon the merits, then the plaintiff should not be required to file security for costs.

It seems to me that in this case the Special Term did not in fact exercise its discretion; the theory upon which it proceeded, if correct, entitles a defendant as a matter of right to have a plaintiff, suing in a representative capacity, file security for costs in all cases where he is personally irresponsible, and the estate has no appreciable assets except the cause of action which he seeks to prosecute, no matter how good that cause of action may be. A construction which, without any consideration of the merits of his case, excludes a suitor from the courts of justice because he is poor and without friends to. become his security, cannot be sustained.

The order appealed from should be reversed and the proceedings remitted to be heard at Special Term, that its discretion may be exercised upon the merits in consonance with the views herein expressed, with ten dollars costs and printing and other disbursements of this appeal to the appellant.

Mayham, P. J., and Putnam, J., concurred.

Order reversed, proceedings remitted to Special Term, with ten dollars costs and disbursements.


text:
    The People of the State of New York ex rel. Martin Vincent, Appellant, v. The Common Council of the City of Hudson and Others, Respondents.

      Trials of policemen — errors overlooked— common coumil of the city of Hudson — ■ rules for the government of its police force — delegation to a committee of the taking of testimony upon a trial — a committee both accuser and fudge — notice to the accused.

    Proceedings by boards of police commissioners or by a common council in the trials of policemen and other kindred officials, where the powers of such commissioners or boards are largely disciplinary, are not regulated by the same degree of formality that is required upon trials of criminal charges before ordinary tribunals of justice. Errors and irregularities that would be fatal in ordinary courts of justice are overlooked in such proceedings, so long as the court can see that the substantial rights of parties accused have not been violated, and that the requirements of the statute clothing such bodies with the power to try municipal servants have been substantially complied with.
    The common council of the city of Hudson has power to make rules and regulations for the government of the police force of that city, and to try offenders against such rules, and they may delegate the taking of testimony upon the trial of such charges to a committee of their body.
    It is a fundamental principle of law that no man or body of men can be at the same time accuser and judge.
    The police committee of the common council of the city of Hudson preferred charges against a member of the police force upon their own motion, and then proceeded to take testimony thereon, at which hearing the accused was present in person, and was represented by counsel; the committee thereafter reported to the common council upon such charge, and their report was acted upon, and such member of the police force, without any notice to him of a hearing before the common council, was dismissed on the day the report was presented to the common council.

      Held, that such person was not given a reasonable opportunity to be heard before the common council, and that the proceedings of the common council dismissing him from office should be reversed and set aside.
    Certiorari issued out of tbe Supreme Court, and attested ou the 29th day of August, 1893, directed to the common council of the city of Hudson, and to George G. Miller, mayor of said city, and a member thereof, Edwin C. Rowley, recorder of said city, and a member thereof, Thomas E. Hannon, Cornelius J. Brown, Dennis. J. Cuddy, Thomas D. Doland, Jacob Wronski, John E. Brennan, George C. Byrne, George H. Tator, Arthur Potts and Herbert Best, aldermen of said city and members thereof, commanding them. to certify and return their proceedings in relation to the trial, conviction and removal from office of one Martin Vincent, a member of the police force of the city of Hudson.

      Marie Duntz for the appellant.

      D. P. (Jollier, for the respondents.
   Herrick, J.:

By section 4 of chapter 468 of the Laws of 1872, as amended by chapter 563 of the Laws of 1873, the common council of the city of Hudson is authorized to appoint the chief of police and policemen, not to exceed eight in number.

By section 19 of said act, as so amended, it is provided that “ the chief of police and any one of the policemen may be removed by the common council on proof of charges preferred in writing of illegal, corrupt, improper conduct, neglect of duty, disobedience of orders or neglecting to comply with any rules or regulations prescribed or enacted by the common council for the government and discipline of such policemen of which he has had notice. The common council may prescribe the time, place and manner of service of the chief of police, and of each of the policemen, and make such rules and regulations for the government and discipline of such policemen as it may deem proper and expedient for the good government of the city.”

Section 40 of the same act, as amended by chapter 379 of the Laws of 1876, provides as follows: “The common council may remove from office, by a vote of a majority of the members thereof, any officer appointed by the common council. * * * But nothing herein contained shall authorize the removal of any chief of police or policeman now in office except in the manner and for the causes mentioned in section 19 of this act, and no chief of police or policeman shall be removed until he shall have had notice of the •charges preferred against him and a reasonable opportunity afforded him after such notice of being heard in his defense by counsel or •otherwise.”

The relator has been for a number of years a member of the .police force of the city of Hudson.

On the 19th day of March, 1893, a burglary was committed in the city of Hudson, and it was alleged that at such time the relator was. absent from his post of duty without leave.

What was known as the police committee of the common council of said city, hearing of said complaint against the relator, and having had presented to it one or more affidavits in relation thereto, preferred charges against the relator of gross neglect of duty as a police officer, of disobedience of, and want of attention to, the orders and directions of the chief of police ; specifications of such charges were attached thereto, which charges and specifications were served upon the relatoi’.

The relator appeared before the committee, and through his counsel made various objections to the jurisdiction and authority of the committee to investigate such charges, notwithstanding which the investigation proceeded and evidence was taken. The committee made a report of their proceedings to. the common council, upon the receipt of which tlie common council passed two resolutions, one that such report be received and placed on file and the action of said committee set forth in said report be fully indorsed and approved by the common council, and the other that the police committee be directed to proceed with the investigation of the charges against Chief Snyder and Officers Vincent and Shepard, and report the result of such investigation at a subsequent meeting of the common council, with such recommendations as the police committee shall deem advisable.”

Thereafter, on the fifth day of April, the said police committee had a hearing upon such charges, of which notice was duly given to the relator, who appeared thereat in person and by counsel.

On the twenty-ninth day of April said police committee submitted their report to the common council, with the evidence that had been taken before them, and their findings and recommendations thereon, wherein they found that the charges against the relator had been sustained, and recommended that he be dismissed from the police force, and thereupon by the vote of the common council the report of the committee was approved and adopted, and by a resolution of the common council the relator was dismissed from the police force of the city of Hudson.

The relator did not appear before the common council; neither does it appear that he was notified of any hearing by said common council, or notified or requested to be present before it upon the hearing of such charges.

Proceedings by boards of police commissioners or by a common council, in the trials of policemen and .other kindred officials, where the powers of such commissioners or boards are largely disciplinary, are not regulated by the same degree of formality that is required upon trials of criminal charges before ordinary tribunals of justice. (The People ex rel. Flanagan v. The Board of Police Commissioners, 93 N. Y. 97.)

Errors and irregularities that would be fatal in ordinary courts of justice are overlooked in proceedings of this kind, so long as the court can see that the substantial rights of j>arties accused have not been violated, and that the requirements of the statute clothing such bodies with the power to try municipal servants have been substantially complied with.

The common council of the city of Hudson had power to make rules and regulations for the government of the police force of the city, and had power to try offenders against such rules; they could delegate the taking of testimony upon the trial of such charges to a committee of their body. (The People ex rel. Flanagan v. The Board of Police Commissioners, 93 N. Y. 97; The People ex rel. McCarthy v. The Board of Police Commissioners, 98 id. 332.)

In that respect these proceedings were not irregular. The statute heretofore cited provides that no chief of. police or policeman shall be removed until he shall have had notice of the charges preferred against him, and a reasonable opportunity afforded him, after such notice, of being heard in his defense by counsel or otherwise.”

The relator had notice of the hearing before the committee and appeared thereat,, and if the proceedings before such committee are to be regarded as the hearing or trial that the relator is entitled to under the statute, then it seems to me that one of the substantial rights that every person is entitled to has been infringed upon, that is, he was tried by his accusers.

It is a fundamental principle of law, as I understand it; that no man, or body of men, can be at the same time accuser and judge; the committee preferred charges upon their own motion, and then proceeded to try them. I do not think, however, that these proceedings before the committee constituted the trial contemplated by the statute; that contemplates a trial by the common council.

As I have stated, the common council undoubtedly had the power to delegate to a committee the taking of testimony in the proceedings, which could be reported to the common council, and then the hearing or trial be had thereon before the whole common council or a quorum thereof, as was done by the police commissioners in the case of The People ex rel. Flanagan, above cited.

Assuming that the police committee in this case, notwithstanding they had made charges, could take evidence and report the same to the common council to be passed upon by them, still I do not think the statute has been complied with.

The relator, it appears, became a member of the police force about the 1st of January, ,1873, and the statute provides that no person then in office “ shall be removed until he shall have had notice of the charges preferred against him, and a reasonable opportunity afforded him, after such notice, of being heard in his defense by counsel or otherwise.”

Of course that hearing must be before the body that is to try him ; a hearing before a committee of the common council, consisting of a portion of its members, is not the common council that is to try him, and is not a hearing before the common council.

The report of the committee, with the evidence so presented to the meeting held April twenty-ninth, was acted upon, and the relator dismissed at the same meeting; that was not giving him a reasonable opportunity to be heard.

The proceedings of the common council should, therefore, be reversed and set aside, with fifty dollars costs and disbursements.

Mayhaji, P. J., and PutNAM, J., concurred.

Proceedings of the common council reversed and set aside, with fifty dollars costs and printing and other disbursements.


text:
    Katherine Van Rensselaer and Another, as Executrices, etc., of Catharine W. Van Rensselaer, Deceased, Respondents, v. Horatio D. Mould, Appellant.

      Damages for trespass — an incorrect measure of damages adopted at the appellant’s request, not a ground of reversal — the amount thereof is a question of fact.

    In an action to recover damages for trespass, when the rule adopted hy the referee for measuring the damage was adopted at the special request of the defendant, he cannot challenge the correctness thereof upon an appeal from the judgment rendered against him in such action, whether the rule laid down he correct or incorrect.
    In an action to recover damages, which are represented hy the value of the right of the plaintiff to sell to others the privilege of cutting and removing certain ice, the value of such right is a question of fact for the referee to determine from the evidence.
    Appeal by the defendant, Horatio D. Mould, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Rensselaer on the 1st day of February, 1893, upon the report of a referee.
    This action was commenced originally by the testatrix, Catharine "W. Van Rensselaer, and was brought to recover damages sustained by the plaintiff by reason of certain alleged trespasses committed by the defendant; the complaint alleged that the defendant at various times wrongfully and unlawfully entered upon the premises of the q>laintiffs, situated on the Hudson river, and wrongfully and unlawfully cut from such river 9,000 tons of ice to the plaintiffs’ damage in the amount of $2,250.

      FseJc Gowen, for the appellant.

      Richard V. Brass and WilUam F. Beutl&r, for the respondents.
   Herrick, J.:

There seems to be no question in this case but that the defendant for a series of years trespassed upon the property of the plaintiffs’ testatrix, and took and carried away ice therefrom, without permission, and against her repeated warnings and protests.

It is not seriously contested but that the plaintiffs are entitled to recover damages for sticb trespass; the only serious question in the case is as to the measure of damage adopted by the referee.

I do not see that appellant can justly complain of the ruling of the referee, for in response to his request the referee found, “ That, under the circumstances of this case, the true measure of damages is the value to the plaintiffs’ testatrix of the right to sell to others the privilege of cutting and removing the ice in question,’-’ and that was the rule adopted by the referee.

The rule for measuring the damage thus adopted, whether correct or incorrect, was adopted by the referee at the defendant’s special request, and he cannot now challenge its correctness.

What the value of that right was, was a question of fact for the referee to determine from all the evidence before him, and all the evidence bearing upon that question which from the nature of the case could be given seems to have been given, and from it the good sense of the referee had to be exercised to arrive at a proper conclusion. (Drucker v. Manhattan R. Co., 106 N. Y. 157-164.)

From the conclusion at which he arrived upon such question of fact, I can find nothing in the evidence that justifies me in concluding that he erred and found a value for the right in question not justified by the evidence.

Judgment, therefore, should be affirmed, with costs.

Mayham, P. J.,, and Putnam, J., concurred.

Judgment affirmed, with costs.


author: Herrick, J. :

text:
    Vilas National Bank of Plattsburgh, Respondent, v. Henry E. Barnard and Another, Appellants.

      Answer — aU facts should be clem'ly set forth —when properly overruled as frivolous.

    The answer to a complaint should clearly set forth all the facts which constitute . the defense relied upon ; none should be left for guess or inference.
    The answer in an action brought upon a promissory note alleged that the defendants were accommodation indorsers and received no benefit therefrom, as was well known to the plaintiff; that the note was made and delivered upon the express condition that the defendants were not to be called upon to pay it at maturity, provided there was delivered to the plaintiff certain good business paper to the amount of the note. There was nothing in the answer to show with whom such agreement was made.

      On appeal from an order overruling the answer as frivolous and directing judgment for the plaintiff,

      Held, that such order was proper;
    That the agreement was uncertain, and for that reason could not he enforced.
    Appeal by the defendants, Henry E. Barnard and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Clinton on the 2d day of October, 1893, upon the decision of the court rendered at Chambers, striking out the defendants’ answer as frivolous, with notice of an intention to bring up for review on such appeal the order made by a justice of the Supreme Oourt and entered in said clerk’s office on the 2d day of October, 1893, overruling the answer of the defendants as frivolous, and directing judgment for the plaintiff.

      Wallace T. Foote, for the appellants.
    Z. Z. Shedden, for the respondent.
   Herrick, J. :

The defendants allege that the note in question was for money loaned and advanced by the plaintiff to and for the benefit of a third person, and that said money was not loaned to the defendants or either of them, -and that they did not have the same, which facts the answer alleges the plaintiff well knew when said note was made, indorsed and delivered to it.

The answer then proceeds to allege as a defense that the note was made and delivered upon the express condition that the defendants were not to be called upon to pay the same at maturity, provided there was delivered to the plaintiff good business paper of such third party to the amount of the note, which good business paper was the paper received by such party for merchandise sold.

There is nothing in the answer to show with whom such agreement was made. "VYliile the answer carefully sets forth that the plaintiff knew that the defendants were accommodation indorsers and received no benefit from said note, it does not state that the agreement to replace such note at its maturity with good business paper belonging to the maker of the note, and received for merchan-, dise, was made with the plaintiff ; and if it was not made with the .plaintiff of course it would be no defense to this action.

The answer should plainly and clearly set forth all the facts which constitute the defense relied upon ; none should be left for guess or inference ; here the very important fact whether this agreement, or condition, was made with or known to the plaintiff, is not made known to the court.

The agreement itself is uncertain; the character of the paper is perhaps sufficiently described, but its terms, conditions and the length of time for which it was to run is uncertain, and the agreement could not be enforced for that reason. (Van Schaick v. Van Buren, 53 N. Y. St. Repr. 827; Milliman v. Huntington, 52 id. 275.)

Judgment should be affirmed, with costs.

Mayham, P. J., and Putnam, J., concurred.

Judgment affirmed, with costs.


text:
    Sarah A. McCluskey, Respondent, v. The National Life Association of Hartford, Conn., Appellant.

      Life insurance policy — payment of the premium by mail — selection of the agency for the transmission of money — contract by coi'respondence, when completed— objection to the sufficiency of a complodnt, when raised too late.

    Where a life insurance company directs a person insured therein to send his premium by mail, the sending of it by mail is sufficient to keep his policy in force, even though the money is never actually received by the company.
    Where the insurer has no agent in the town or village wherein the insured resides, the premium due on a policy of life insurance is paid on the date that the same is deposited by the insured in the post office, in conformity with the directions of the insurer.
    When a person directs money, or the evidence of money, to be transmitted or shipped to him by mail, or by a specified line of carriers, the responsibility of the sender ceases upon his delivering the articles to the specified carrier, and they are thereafter at the risk of the person who directs them to be sent to him by means of such carrier, he, by such direction, making the carrier his agent.
    A contract by correspondence is completed when the party to whom a proposition is made places a letter in the post office accepting the terms offered.
    Where a defendant makes no objections to the plaintiffs complaint, but proceeds to a trial upon the merits, and does not raise the question as to the sufficiency of the complaint either by motion, request to find or éxception, it is too late for the defendant to raise the question for the first time upon appeal.

      Appeal by tbe defendant, Tlie National Life Association of Hartford, Conn., from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of "Washington on the 19th day of December, 1893, upon the decision of the court, rendered after a trial at the "Washington Special Term.

      W. A. /Sutherland, for the appellant.

      O. A. Dennis, for the respondent.
   Herrick, J.:

The plaintiff was the beneficiary under a policy of life insurance issued to Thomas McCluskey.

The defendant is a foreign insurance company having its principal or home office at Hartford, Conn. It seems to have had no agent at "Whitehall, in this State, where the said Thomas McCluskey resided.

On the 10th day of September, 1892, the defendant mailed a notice from Hartford to the said McCluskey, notifying him that his bi-monthly premium of seven dollars and ninety cents was due and payable on or before the first day of October.

Inclosed in the notice was an envelope directed to the defendant,, which the assured was requested to use in sending his remittance; the notice also directed all checks and post office orders to be made payable to the National Life Association.

On the afternoon of the first day of October the assured inclosed said notice, together with a check for seven dollars and ninety cents, payable to the order of the defendant, in the envelope received by him from the defendant, and deposited it in the post office at "Whitehall; it was received at the Hartford post office on October 2, 1892, at eight p. m. October 1,1892, was Saturday.

On the 3d of October, 1892, the defendant mailed a notice to Thomas McCluskey, calling upon him to forward a certificate as to his health, and that upon doing so his policy would be reinstated.

The assured, in response thereto, informed the defendant that he could not truthfully sign the required certificate of health sent him by such company. On the 15th day of December, 1892, the assured, Thomas McCluskey, died.

The defendant, amongst other defenses to the claim made against it upon said policy, asserted that the policy was forfeited by the failure of the assured to pay the bi-monthly premium due October first.

The law does not favor forfeitures. The defendant directed the assured to send his premium by mail, and his sending it by mail by its direction would be sufficient even although the money had never -been actually received by it. (Palmer v. Phœnix Mutual Life Ins. Co., 84 N. Y. 63; Kenyon v. K. T. & M. M. A. Assn., 122 id. 247-260.)

"When a person directs money, or the evidence of money, as checks, notes or merchandise, to be transmitted or shipped to him by mail, or by a specified line of carriers, it has always been held that the responsibility of the sender ceases ujaon his delivering the articles to the specified carrier, and that they are thereafter at the risk of the person who directs them to be sent to him by means of such carrier; that he thereby makes the carrier, his agent. It may be said, therefore, in this case that the defendant made the .post office authorities at the place of residence of the assured its agent to receive from him the payment of the premium in question.

If it had had an agent stationed at that place and the assured had given him a check for the amount of the premium in question on the first day of October, although the defendant had not received it at its home office until the second or third, I assume that no question would be raised but that such payment was made in time.

If; instead of having a regularly appointed agent at such place to whom payments could be made, they directed in lieu thereof that they should be transmitted by mail, it seems to me that depositing a check in the post office, payable to the order of the defendant, properly enveloped and directed to it on the day of payment, is equally as good a payment as though the same check had been deposited on the day of payment with the local agent.

Payment was made at the time the money, or that which under the notice issued by the company could be given in lieu of money, was deposited with the company’s agent, which in this particular case was the United States postal authorities.

It has been held that a contract by correspondence is completed when the party to whom the promise is made places a letter in the post office accepting the terms. (Tayloe v. Merchants' Fire Insurance Co., 50 U. S. [9 How.] 390; Patrick v. Bowman, 149 id. 411-424.) Upon the same principle it seems to me that payment was made when the check was deposited in the post office.

The defendant upon this appeal raises the question that in cases of this kind the plaintiff must allege in his complaint and prove on the trial either that there is a sufficient fund on hand to meet the plaintiff’s claim, or some part thereof, or else that an assessment, duly issued, would produce a sufficient amount to meet his claim or some part thereof.

Without discussing the question as to whether the rule contended for and and supported by the case of O’Brien v. The Home Benefit Society (117 N. Y. 310) and kindred cases, is applicable to causes of action upon policies of the kind involved in this action, it is sufficient to say that the defendant made no objections to the plaintiff’s complaint upon the trial, but proceeded to trial upon the merits, and did not raise this question, so far as appears in the record before us, either by motion, request to find or exception, and having failed to raise the question before the trial court he cannot raise it here. ( Whitman v. Foley et al., 125 N. Y. 651.)

Judgment should be affirmed, with costs.

Mayham, P. J., and Putnam, J., concurred.

Judgment affirmed, with costs.


author: Herrick, J. :■

text:
    Agnes Mickee, as Administratrix, etc., of Charles Mickee, Deceased, Respondent, v. Walter A. Wood Mowing and Reaping Machine Company, Appellant.

      Independent contractor — owner not liable for Ms negligence — duty of a master to furnish a safe place for his servants — liability for injuries sustained, by his servant.

    "Wren an independent contractor is employed to construct a building, the owner of tbe land is not liable for any negligence on the part of such contractor, or for any injury resulting from the negligent construction of such building.
    A master is not bound to furnish an absolutely safe place for his servant to work in, but simply to use reasonable care and prudence in providing such a place.
    He is not an insurer of the safety of the place, or of his servant against injury, and his duty is discharged by furnishing a reasonably safe place and by the exercise of reasonable care and watchfulness in keeping it safe. To render him liable there must be some positive fault on his part either of commission or of omission.
    The liability of a master for injuries to his servant received in his service is based on his personal negligence, and the evidence must establish some personal fault or neglect of duty on his part, or what is equivalent thereto, in order to justify a verdict against him.
    He is entitled to the presumption that he has performed this duty until the contrary is made to appear ; it is culpable negligence which makes a master liable and not a mere error of judgment.
    Appeal by the defendant, the Walter A. Wood Mowing and Neaping Machine Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Nensselaer on the 16th day of November, 1893, upon the verdict of a jury rendered after a trial at the Nensselaer Circuit, and also from an order made on the 14th day of November, 1893, and entered in said cleric’s office, denying the defendant’s motion to set aside the verdict and for a new trial, made upon the minutes, with notice of an intention to bring up for review on such appeal the exceptions taken and the rulings of the trial judge against the defendant made on the trial; the motion to set aside the verdict and the grounds upon which such motion was made.

      Sinsdill Pa/rsons and G. B. Wellwigton, for the appellant.

      OlAm, A. Ma/rtm, for the respondent.
   Herrick, J. :■

At the time of the accident which gave rise to this action the defendant was engaged in laying some railway tracks upon its. premises; alongside of these tracks, and about four feet distant, therefrom, at the point where the accident happened, there was a building in process of erection for the defendant and upon its premises.

On the third floor of the building, on a beam or plate upon which the third floor was laid, were a number of upright posts of spruce timber, about ten inches square, and ten feet long and about fifteen feet distant from each other, which were to support, as I understand it, the fourth floor of such building.

While the plaintiff’s intestate was engaged in laying the railway tracks alongside of sucli building one of these posts fell upon him and caused his death.

This case has once before been to this court upon appeal. (70 Hun, 456.) Upon the former trial no evidence was offered upon the part of the defendant, but a judgment of nonsuit was granted at the close of the plaintiff’s case, and this court held that upon the facts as they then appeared the nonsuit was erroneously granted, and that the case should have been submitted to the jury.

The case as it now appears differs in essential particulars from that before the court upon the former appeal. It then appeared “ that this post had stood there three or four days before it fell ” (70 Hun, 457), and there was no evidence shown that the post had been guyed or secured, and as was then stated “it needed no evidence to show that a stick set up on end of the dimensions of the one 'by which the injury was inflicted, unless the same was well guyed and secured, was liable to fall.” (Id. 459.)

It now appears in the case that this building was being erected for the defendant in pursuance of a contract with one Charles A. Bussell, who employed the men who were at work thereon, and paid them; that said Bussell was a contractor and builder who had been engaged in such business for eighteen or twenty years; that the post in question was raised and placed in position Saturday afternoon; that it was stayed and secured in the following manner: “ There was a hard pine block nailed onto a stringer and the post was nailed onto that and nailed to the bottom and stayed both ways. The stay was an inch board about eight inches wide nailed on, and a stay lath nailed to a cleat that was nailed to the floor, and another one to the top of the post and the outside of the building.”

After the post was erected some of the men employed went up to the top of it by means of a ladder set up against it; one of the men testifies that he went up three different times.

As before stated, the post in question was erected Saturday afternoon, and the following Monday between eight and nine o’clock in the morning plaintiff’s intestate was killed by its falling upon him; the reason of its falling does not appear ; there is some testimony that there was a strong wind blowing at the time, and the assumption is that the post was blown over by such wind.

It will thus be seen that the case is presented in quite a different aspect from that which was shown upon the former appeal;

The defendant is not liable for any negligence in the erection of the post or for any injury resulting from such negligent construction, the building being in process of construction by an independent contractor. (Devlin v. Smith, 89 N. Y. 470; Butler v. Townsend, 126 id. 105; Wyllie v. Palmer, 137 id. 248.)

■ But it is said that the defendant failed to perform its duty to plaintiff’s intestate in not furnishing a safe place in which to work.

The duty of the master to furnish a safe place in which his servant may work is not an absolute duty. He is not bound to furnish them an absolutely safe place to work in, but is bound simply to use reasonable care and prudence in providing such a place.” (Harley v. B. C. M. Co., 142 N. Y. 34.) He is not an insurer of the safety of the place or an insurer of his servant against injury. As was said in Butler v. Townsend (126 N. Y. 105): “A place in its broad sense is never safe in which an accident happens, and an accident always happens in some place, and so the master might almost become an insurer.”

The duty of the master is discharged by furnishing not an absolutely, but a reasonably safe place, and by the exercise of reasonable care and watchfulness in keeping it safe. To render him liable there must be some positive fault on his part either of commission or omission.

“ The liability of the master for injuries to the servant received in the service is based upon his personal negligence, and the evidence must establish some personal fault or neglect of duty on his part, or what is equivalent thereto, in order to justify a verdict, and he is entitled to the presumption that he has performed this duty until the contrary is made to appear.” (Crown v. Orr, 140 N. Y. 450-453.) It is culpable negligence which makes the master liable, not a mere error of judgment. (Harley v. B. C. M. Co., 142 id. 31-35.)

The place where the plaintiff’s intestate was working appears to have been a safe place, except as it was made dangerous by the negligent erection, if it was negligently erected, of the post which fell, and for that, as we have seen, the defendant was not liable; neither can it be held liable for the dangerous condition in which such negligent erection placed the premises where plaintiff’s intestate was employed, unless it had notice of such danger, or by reasonable care and watchfulness could have acquired knowledge. It is not claimed) nor is there anything in the evidence to show, that the defendant had any actual notice of any negligent or improper erection of the post which fell; indeed, from the manner in which the post was secured, guyed and braced, and the tests to which it was subjected after it was erected, by persons repeatedly climbing up upon it, it appears to have been reasonably well secured; it was done under the supervision of a man who had been engaged from eighteen to twenty years in the erection of buildings.

But, assuming it to have been negligently placed, and insufficiently stayed, in the absence of actual knowledge of that fact on the part of the defendant, I do not think that there is anything in the evidence by which we are entitled to say that it had constructive •notice, or that there has been an omission of duty on its part in not ascertaining the negligent placing of the post.

It was placed in position Saturday afternoon, and then was so securely in position that men could climb up upon it, and the following Monday between eight and nine o’clock in the morning it fell.

These facts being uneontradicted, it does not seem to me that there is anything in them from which we can hold that the defendant, by inspection, could have acquired knowledge of any defect or unsafe condition, or that sufficient time had elapsed within which we can say that it ought to have acquired knowledge, and, hence, had constructive notice.

For these reasons, the judgment should be reversed and a new trial granted, costs to abide the event.

Putnam, J., concurred; Mayham, P. J., concurred in the result.

Judgment reversed, new trial granted, costs to abide the event.