text:
    WILLIAM D. BAILEY, Respondent, v. THE ROME, WATERTOWN AND OGDENSBURGH RAILROAD COMPANY, Appellant.

      Defective brake-rod on a railroad — the opinion of a witness in respect to what would put it out of order is improper.

    In an action brought to recover damages for injuries sustained by a brakeman, by reason of the giving away of a brake-rod which he was operating on one of the-defendant’s cars, it appeared that the brake had a rod which went down through the car, in the bottom of which was a stirrup of flat iron, through which the brake went into a hole. In the rod under the stirrup was a hole in which was placed a pin or ring to hold the rod from lifting out of the stirrup iron. The accident was occasioned by the brake-rod rising up by reason of the pin having come out of its place.
    The plaintiff was examined as a witness and was asked the following question: “ If the key or ring was in the brake-staff at the time you commenced using and operating it, could you have pulled it out, or caused it to fall out, with the force-that you applied?” this was objected to; the objection was overruled and the witness allowed to answer. He was also asked: “Assuming that the key, or ring or pin, made of iron, as you have described in your direct-examination, was properly in the brake-standard when the train left Norwood, and that no accident occurred to the train on the trip from Norwood, and the brake was not. used during that time, in your judgment could the ring or pin have worked out- or fallen out on the trip?” This question the witness, after objection, was allowed to answer.

      Held, that none of the subjects presented by the questions embraced questions of science or skill, and that the subject of inquiry was not such as to require or authorize the opinions of the witnesses; which it was error to receive in this case.
    Appeal by tbe defendant from a judgment, entered in the office of the clerk of the county of Oneida on the 26th day of January,. 1889; and also from an order denying a motion for a new trial made upon the minutes of the court, entered in said clerk’s office on February 14, 1889.
    The action was tried at a Circuit Court, held in and for the county ■of Oneida, at which a verdict was rendered in favor of the plaintiff for the sum of $8,000.
    The action was brought to recover damages for the alleged neglir gence of the defendant resulting in an injury to the plaintiff, who was a brakeman in its employ at the time of the accident.
    On the 3d day of August, 1886, the plaintiff was employed by the defendant in the capacity of brakeman. "While in the discharge •of his duties as brakeman on train No. 60, at De Kalb, he received the injuries to recover the damages resulting from which this action was brought.
    In describing the manner in which he received the injuries, he tes-tified as follows, viz.: “ It was a brake eighteen inches high, perhaps, from the floor of the car up to the top of the car brake where you take hold. I set it as tight as I could get it with the muscles of my arms. I gave the wheel but one or two turns, probably a couple of twists, then I swayed on the brake with the rest of my body. Immediately, when I did that, the brake came up with me perfectly •easy and I tipped 'off, head first, down between the cars. The brake- • staff tipped over and I went under the train, head first. I pitched right off at the side, right at the end of the two cars at the side, and struck the platform of the station that runs along side the cars, and I struck that with my leg and rolled back under the wheels, and I was ■dragged, perhaps, one hundred or one hundred and fifty feet. My coat was pitched over my head so I could not see anything. I didn’t know what minute they might cut my head off. The first thing I knew somebody grabbed hold of me and pulled me out. * * * This brake has a rod which goes down through the car, and in the bottom of the car is a stirrup of flat iron through which the brake goes in a hole. In the rod under the stirrup is a hole in which goes a pin or ring to hold rod from lifting out of that stirrup iron. On top of rod is a wheel, with spokes in, and a nut on it. The wheel is for the purpose of taking hold to set the brake. From the bottom of the car to the stirrup is a space for -the chain attached to the brake which works on the rod. The chain is inside of the stirrup. They have two different kinds of pins; one is the size of a lead pencil, split in the end, drawn through the hole and bent back so it can’t pull out; both ends are bent back. The other kind is a round ring of iron, about the size of a lead pencil, which is bent round and lapped like the weld of a piece of iron. When I took hold of brake there was nothing, from where I stood, to indicate there was anything wrong about it. It appeared all right as I set it until I swayed on it. I could not see the bottom of the brake-staff from where I stood. That is under the ear. There is no difficulty in seeing it from the ground if one is examining the brakes. The brake-rod was about an inch and a quarter at the lower end, and the hole through which the ring or pin goes is about the size of a lead pencil, so that the ring in there twists.”
    Plaintiff was asked the following question, viz.: “ If the key or ring was in the brake-staff at the time you commenced using and operating it, could you have pulled it out, or caused it to fall out, with the force that you applied.” To this question the counsel for the defendant objected that “this is not a question for an expert.” The objection was overruled and an exception taken. The witness .answered, “ It could not.”
    When the witness Sweeney was upon the stand he was asked, viz.: “ Assuming that such a pin or key as you have described was in the brake at the time it was used, in your judgment could any forcé that a brakeman could have applied in using a brake have caused that key or pin to come out or fall out ? ” Defendant’s counsel objected to the question as “incompetent, immaterial, and not a question for an expert, and he cannot possibly know the force which any brakeman could use.” Thereupon the court made a ruling sustaining the objection. Some discussion took place, and the court intimated its intention to allow the question, and the defendant’s counsel further stated as a ground of objection: “ That it was not a question for an expert, and not embracing the facts of the case, and a supposition.” Thereupon the court overruled the objections, and the defendant’s counsel took an exception, and the following question was put, to wit: “ Q. Assuming that a pin, key or ring, such aé you have described, was in the brake-standard ■at the time it was operated or commenced to be operated by Bailey, in your judgment, could he by the use of such brake, in braking, have broken, or pulled out, or caused to come out, the ring or pin,, without injuring the brake-standard or displacing the stirrup ? ” The objections were again repeated and overruled and an exception taken, and the witness answered, viz.: “ He could not; ” thereupon another question was propounded, viz.:. “ Q. In your judgment could he by any use of the brake with his hands have broken or .pulled that pin out ? ” This was objected to and an exception taken, and the witness answered, “No sir.” -•
    The plaintiff was recalled as a witness and the following question propounded to him: “ Q. Assuming that the key, or ring or pin,, made of iron, as you have described in your direct-examination, was properly in the brake-standard when the train left Norwood, and that no accident occurred to the train on the trip from Norwood, and the brake was not used during that time, in your judgment could the ring or pin have Worked out or fallen out on the trip ? ” This question was objected to by the defendant on the ground that it was “incompetent and immaterial. Not a question for an expert. No proof in the case as to the character of the pin which was in this brake-standard.” The objections were overruled and an exception taken, and the witness answered, “ No sir ; it could not.” A motion was made for a nonsuit and denied and an exception taken.

      A. 2f. Beardsley, for the appellant.

      William E. Seriplm'e and Oswald P. Baekus, for the respondent.
   Hardin, P. J.:

When this case was before us on a former appeal (49 Hun, 377), we stated the principles of law applicable to the case, with numerous citations of authority upholding them, and reached the conclusion that “the plaintiff’s evidence was insufficient to justify the submission to the jury of the question of the defendant’s negligence, and that the court erred in refusing to grant the defendant’s motion for a nonsuit.” We adhere to the principles of law found in the opinion of the court delivered on that occasion. We think the learned trial judge fell into an error in receiving the testimony of witnesses upon the subject of the capacity of a brakeman to displace the rod in case the pin had remained therein, and also upon the subject of whether or not a “pin or ring could be lost out on the road between Norwood and D.e Kalb in the absence of the use of the brake and in the absence of any accident.” We think neither of the subjects of the opinions received embrace questions of science or skill. (Teall v. Barton, 40 Barb., 137.)

We think the language of Miller, J., in Hart v. Hudson River Railroad Company (84 N. Y., 60), is applicable to the rulings made. He there says: It was entirely a matter of opinion, not properly within the rule which allows the testimony of experts, and, in regard to which, one individual could form a judgment as well as an,other, both having equal knowledge of the circumstances. It did not relate to anything connected with the safety or the strength of the construction, but to a question of fact, which properly belonged to the jury to pass upon, and which could not be disposed of upon the opinions of witnesses.”

In Ferguson v. Hubbell (97 N. Y., 513) the subject of the opinion of witnesses is considered, and it is there said: “ Where the facts can be placed before a jury, and they are of such a nature that jurors generally are just as competent to form opinions in reference to them and draw inferences from them as witnesses, then there is no occasion to resort to expert or opinion evidence. To require the exclusion of such evidence it is not needed that the jurors should be able to see the facts as they appear to eye-witnesses, or to be as capable to draw conclusions from them as some witnesses might be, but it is sufficient that the facts can be presented in such a manner that jurors of ordinary intelligence and experience in the affairs of life can appreciate them, can base intelligent judgments upon them and comprehend them sufficiently for the ordinary adminis-tration of justice.” We think the subjects of inquiry were not such as to require or authorize the opinion of the witnesses, and that it was error to receive such opinions.

In Vosburgh v. Lake Shore and Michigan Southern Railroad Company (14 Week. Dig., 514), where the construction of the Ashtabula bridge was the subject of inquiry, I prepared an opinion which upheld a ruling allowing an engineer to state that the bridge fell because of “ the bad design of the work as built, and also the defective manner of constructing the work.” That case was after-wards affirmed by the Court of Appeals (94 N. Y., 374).

We think the case is distinguishable from the one before us, and nothing is stated in either the opinion delivered in this court or in the Court of Appeals tending to support the rulings in the case in hand.

In Schwander v. Birge (46 Hun, 66) the question was whether the means of egress from a building “ were reasonably sufficient and .all that due care required of the defendant to provide for his employees,” and it was held that the opinion of witnesses upon that .subject could not properly be received. The question was one of fact for the jury, and the decision is put upon the authority of Ferguson v. Hubbell (supra). The evidence upon the subject of the alleged negligence of the defendant is so meagre that we do not feel warranted in saying that the evidence which was received of the opinions of witnesses was not prejudicial to the defendant.

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

Martin and Merwin, JJ., concurred.

Judgment and order reversed on the exceptions and a new trial ordered, with costs to abide the event.


source: Caselaw Access Project

author: Hardin, P. J.:

license: Public Domain

text:
    HIRAM GILMORE, Respondent, v. THE CITY OF UTICA, THE COMMON COUNCIL OF THE CITY OF UTICA, WILLIAM F. HOERLEIN, as Treasurer of the City of Utica, and the WARREN-SCHARF ASPHALT PAVING COMPANY, Appellants.

      Hepamng of Genesee street in Utica — obligation of the horse railroad to pay iherefor — 1870, chap. 28.
    The common council of the city of Utica, on October 24, 1862, gave permission to the Utica City Railroad Company to construct a horse railroad, with a double or single track, along or near the center of Genesee street, in that city, upon condition that the railroad would replace and keep in good repair the pavement between and at least two feet in width on each outer side of the tracks. In December, 1886, tbe Utica City Railroad was leased to tbe Utica Belt Line Street Railroad Company, and the lessee undertook to pay, bear and discharge all taxes and assessments, ordinary and extraordinary, of every description, lawfully assessed, imposed, levied and accruing upon the said street surface railroads, etc.; to do any and all paving required by law, on the streets upon which the said street surface railroads thereby leased were or might be operated, as might be legally imposed during such lease.
    JBy chapter 28 of the Laws of 1870 it was provided that “ the common council is hereby authorized to require all railroad companies operating street railroads in any of the streets of the city to repave between their tracks, and at least two feet in width on each side thereof, whenever the common council shall deem such repavement necessary.”
    ■Subsequently, and in March, 1888, the common council determined to repave Genesee street and entered into a contract for the work, and thereafter the expense thereof was by the city authorities assessed one-third thereof upon the city at large and two-thirds thereof upon the adjacent property.
    In an action, brought by a taxpayer and an owner, so assessed upon property upon Genesee street, to have said assessment declared void:

      -Held, that when the common council determined that the repavement was necessary it became the imperative duty of the street railway to repave between its tracks, and at least two feet in width on each side thereof.
    That the provision of the statute was mandatory, and that it was the duty of the common council to enforce compliance therewith on the part of the street railway. That a taxpayer at large had a right to have that provision of the law enforced, and as an adjacent owner he was also entitled to have the common council exact a performance thereof from the street railway.
    That the provision in chapter 426 of 1887, that “ the common council shall then determine the expense of the whole work,” applied only to the work on that part of the street not occupied by the railroad company.
    Appeal by tbe defendants, upon questions of fact and law, from a judgment, entered in tbe office of tbe clerk of Oneida county on tbe 23d day of October, 1889, after a trial at a Special Term beld in' tbe county of Oneida on tbe 26tb day of February, 1889.
    Tbe action was brought to bave an assessment imposed by tbe .city authorities of tbe city of Utica declared to be illegal, fraudulent and void; and that no part of tbe expense of a repavement, to provide for the payment of which said assessment was laid, was a legal charge, whether by assessment or otherwise, upon tbe property of the plaintiff, or ripon any other of tbe real estate fronting upon that portion of Genesee street, in tbe city of Utica, from tbe north line of Eagle street to tbe southerly line of tbe city, and that no part of tbe said expense was chargeable to the city.
    Plaintiff is a resident of tbe city of Utica and a taxpayer therein, and owner in fee of a house and lot on tlie easterly side of that portion of Genesee street between the northerly line of Eagle-street and the southerly line of said city, fronting on Genesee -street,, and has paid for many years the general tax assessed and the local assessments made against his property by the officers and agents of the city. Under the general railroad act of 1850, a street railway was organized in 1862, and laid its track in said street, and the saméis now being operated therein.
    October 24, 1862, the common council of the city of Utica, adopted a resolution giving permission “ to the Utica City Railroad Company to construct, maintain and operate a horse railroad, with a double or single track, along or near the center of Genesee street,, from the New York Central depot (or Bagg’s Square) to the-southerly line of the city (or to Oneida Square), and thence to the-southerly line of the city by tlie most practicable street or avenue. * * * Upon condition, nevertheless, that the said railroad company shall and doth construct the said railroad upon the most approved plan, and in a secure and substantial manner, and replace and keep in. good repair the pavement between and at least two feet in width on each outside of the tracks, the whole to be done subject and according to the directions of the city surveyor and street commissioner. * * Said railroad to be also subject to all the-regulations and restrictions contained in the act of the legislature-passed April 2, 1850, and the several acts passed amendatory thereof or supplementary thereto.”
    In December, 1886, the said railroad company was leased to theUtica Belt Line Street Railroad Company, a corporation organized under the surface railroad act of 1884, for the period of ninety-nine years, and the lessee undertook to pay, bear and discharge all taxes and assessments, ordinary and extraordinary, of every description lawfully assessed, imposed, levied and accruing upon the said street surface railroads, etc.; to do any and all paving required by law on the streets upon which said street surface railroads thereby leased are or may be operated, as may be legally imposed during-said lease.
    In March, 1888, the common council “ determined to repave said Genesee street from the northerly line of Eagle street southerly to the Cityline,” and May 28, 1888, the common council accepted the-proposal of the defendant, the Warren-Schai'f Asphalt Paving Company, and entered. into a contract, in which the company agreed to repave said street with Trinadad asphalt, according to certain plans and specifications made by the city surveyor. At a meeting of the common council in 1888, the work was reported by said city surveyor completed, and the bill, amounting to $101,358.87, therefor was audited. Thereupon the city authorities proceeded to ascertain one-third thereof, which was to be a charge upon the city at large, and to ascertain the amount of two-thirds thereof, and made an assessment upon the adjacent property arid ascertained the amount to be levied .against the plaintiff’s property to be the sum of $1,410,40, which .sum they included in the list or roll against the property of the plaintiff. The street railroad company constructed double tracks in the street before the same was repaved. Before the proposal of the Warren-Scharf Asphalt Paving Company was accepted by the common council notice was given on behalf of those owning property on both sides of that portion of Genesee street, southerly from the northerly line of Eagle street to the southerly line of the city, to the common council of the city of Utica, that any attempt to impose upon the real property fronting on said street the expense of said repavement between and at least two feet in width on each óuterside of said tracks, would be resisted and opposed as wrong and unlawful. 1
    The court held, as conclusions of law: “ That this action is maintainable. 2. That said assessment is illegal and void and a cloud xxpon the title of the said real estate of said plaintiff. * * * 4. That neither the expense of that portion of said repavement between the tracks of said railroad in said Genesee sti’eet, the rails of said tracks and a space of two feet in width outside and adjoining the outside rails of said tracks, nor any part of said .expense, was or is chargeable to said the city of Utica or •assessable against the plantiff or the said property of the plaintiff, or against any of the property fronting on said Genesee street or the owners or occupaxxts thereof. 5. That the plaintiff is entitled to judgment perpetually enjoining and restraining said the city of Utica, its common council, its officers, attorneys, agents, collectors and sei'vants, and each and eveiy of them, from proceeding in any manner to or attempting in any manner to collect or enforce said assessment.”

      Everett c& Lewis and A. M. Beardsley, for the appellants.

      W. A. Matteson and P. O. J. Be AngelAs, for the respondent.
   Hardin, P. J.:

On the 16th of March, 1888, when the common council determined by a resolution to repave Genesee street, there rested upon the street railway the burden of repaving that portion thereof occupied by the railroad, and two feet outside of its tracks. The burden was imposed by the resolution passed by the common council in 1862, to which the street railway had subjected itself in accepting the permission upon the condition mentioned in the-resolution, and by assumption of such burden by the terms of the lease under which the present railroad became possessed of the right to operate the same in Genesee street. Besides, in chapter 28 of the Laws of 1870, section 79 of the charter was amended so-as to confer power upon the common council to enforce the-burden resting on the railroad. In the fifth subdivision of section 79, it is provided, viz.: The common council is hereby authorized to require all railroad companies operating street railroads, in any of the streets of the city to repave between their tracks, and at least two feet in width on each side thereof, whenever the common council shall deem such repavement necessary.” This language clearly authorized the common council to determine the necessity for repavement. ’ Such determination was made by the common council; it then became the imperative duty of the street railway to repave-between their tracks, and at least two feet in width on each side thereof.” We think the provisions of the statute just quoted are mandatory, and that it was the duty of the common council to enforce-compliance on the part of the street railway. We think the taxpayers at large had a right to have that provision of the law enforced,, and that the adjacent owners were entitled to have the common council exact a performance on the part of the street railway. (People ex rel. First Nat. Bank v. The Bd. of Suprs. of Herkimer Co., 56 Barb., 452; People ex rel. Otsego Co. Bank, v. The Bd. of Suprs. of Otsego Co., 51 N. Y., 401.) In delivering the opinion in the case last cited, the court referred to Mayor v. Furze (3 Hill, 612), and approves of the language of Judge Nelson, which is. as follows: “ Where a public body or officer has been: clothed by statute with power to do an act which concerns the public interest or the rights of third persons, the execution of the power may be insisted on as a duty, though the phraseology of the statute be permissive merely, and not peremptory.” A similar doctrine was laid down in Supervisors v. United States (4 Wall., 435), in which case Mr. Justice Swayne observed: “ The conclusion to be deduced from the authorities is, that where power is given to public officers in the language of the act before us, or in equivalent language, whenever the public interest or individual rights call for its exercise, the language used, though permissive in form, is, in fact, peremptory. What they are empowered to do for a third person the law requires shall be done. The power is given, not for their benefit, but for his. It is placed with the depositary to meet the demands of right, and to prevent a failure of justice. It is given as a remedy to those entitled to invoke its aid, and who would otherwise be remediless.” (See, also, The City of Galena v. Amy, 5 Wall., 705.)

If the common council had exacted from the railroad a performance of its duty, the burden cast upon the taxpayers and the plaintiff and other adjacent owners would have been much less. The effect of the resolution of 1862, and the provision in the act of 1810 (subd. 5, § 19), relieved the plaintiff and other adjacent owners as Avell as the taxpayers from the burden of maintaining the pavement on that portion of the street occupied by the street railway. In effect, the expense of repaving such portion of the street was not only imposed upon the street railway, but the liability therefor was withdrawn from the adjacent owners and from the taxpayers at large.

We agree with the learned counsel for the appellant that “the railroad’s liability, if any, is a matter between it and the city; ” but we do not agree with him in the assumption that the adjacent owners are not interested in the enforcement of that liability. We think they are relieved pro tcmto from a burden which otherwise would rest upon them.

By chapter 426 of the Laws of 188T, section 99 of the charter was amended, and a mode was prescribed for enforcing the collection of expenditures in grading, leveling or paving or repaving the streets; however, we find nothing in that statute which relieves the railroad from the burden resting upon it to maintain the pavement between its tracks and the two feet adjacent thereto. We think the words, “ the common council shall then determine the expense of the whole work,” may receive a reasonable construction by applying them to the expenditures upon that portion of the street not occupied by the street railway. We think the words were not intended to authorize a transfer of the burden resting upon the railway to the adjacent owners or to the taxpayers at large.

There is nothing in the case to indicate that the street railway company was unable to perform the obligations imposed on it. The common council, therefore, ought to have exacted a performance on the part of the railway company. In the Matter of Appleby (26 Hun, 428), the court says: “ The omission to enforce it (ordinance), and to secure so much of the pavement under it as the railroad company was obliged to lay, was a material error and defect in the proceedings themselves, of which the applicant, as the owner of the property fronting upon the ’ avenue, has a legal right to complain. (Matter of Casey, 5 Hun, 463; Matter of N. Y. Prot., etc., School, 75 N. Y., 324.) No paid of the cost of this twenty-five feet of pavement was legally chargeable to him, but, under the terms of the ordinance, it is clear that it should have been imposed upon the railroad company. A portion of it was included in the assessment required to be paid by him, and to that extent he has been made the subject of injustice.”

O’Reilly v. The City of Kingston (114 N. Y., 440), is distinguishable from the case before us, as the case arose under a different statute anda different resolution of the common council from the one we have been considering. In that case the assessment was to be made upon land bordering upon the street, and it was held that the land occupied by the railroad “ did not border on or touch the street within the meaning of the charter; it being simply a part thereof.”

Whether the contractor, the Warren-Scharf Asphalt Paving Company, can enforce its contract against the city is a question which we need not now determine. As was said by Allen, J., in Moore v. Mayor (73 N. Y., 251): “ While a local assessment may be void; a contract fully performed, made in pursuance of the same ordinance, may be valid.” If the contractor has fully performed, and is entitled to enforce payment of his contract-price from the city, that fact does not of itself stand in the way of the plaintiff’s enforcing bis legal riglits, nor make against the propriety of his resisting an overburdensome assessment. .

Upon the questions we have alluded to, further views are expressed in the opinion delivered at Special Term, as well as upon other questions arising in the case, which are considered therein quite satisfactorily. We, therefore, do not deem it needful to further discuss the questions arising in this case.

We think the plaintiff was entitled to the relief awarded at the Special Term, and the judgment should be affirmed, with costs.

Martin, J., and Merwin, J., concurred.

Judgment affirmed, with costs.


author: Merwin, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. SIMON D. PADDOCK, Appellant, v. KIRBY W. LEWIS, ENOCH C. NICHOLSON and ANDREW G. GRAHAM, as Assessors, and CHARLES C. COLE, as Supervisor of the Town of Elbridge, Onondaga County, New York, Respondents.

      ■Certiorari — returnable at the clerk’s office instead of at Special Term — what is a waiver of the objection — failure of a party assessed to object on grievance day.

    A writ of certiorari, issued under chapter 269 of the Laws of 1880, for the purpose of reviewing an assessment for personal property in the town of Flbridge, New York, against the relator, was returnable “ within twenty days after the service on you of this writ, at the office of the' clerk of Onondaga county, * * * so that our Supreme Court may further cause to be done thereon what of right and according to law ought to be done.” After the service of the writ and the filing of a return thereto with the clerk of Onondaga county, and on the 20th of December, 1888, both parties appeared at the Onondaga Special Term and stipulated that the matter be referred to a referee.

      Held, that an objection that the writ was not returnable at a Special Term, as required by the statute, was waived.
    That the voluntary act of the parties fixed the term on the twentieth of December as the term to which the writ should be returned.
    It was objected that the relator was barred of any remedy, under the act of 1880, by reason of his failure to appear and object to the assessment on grievance day.
    The relator claimed that he was not a resident of the town in which he was assessed, and that, therefore, the assessors had no jurisdiction to assess him; and it appeared', by the evidence that the assessors knew that the relator claimed that he was not ■ a resident of the town, and that there had been a previous controversy between them on the subject.

      Held, that, under the circumstances of this case, the failure of the relator to appear before the assessors on grievance day and object to the assessment did not preclude him from applying for a writ of certiorwri to review the action of the-assessors.
    Appeal by the relator, Simon D. Paddock, from an order and judgment and determination of the Special Term held in Onondaga, county, entered in the office of the clerk of that county on the 2d day of May, 1889.
    The order was made in proceedings had pursuant to a writ-of certiorari, issued upon the application of the relator to review an assessment for personal property against him, made by the assessors of the town of Elbridge, New York, which it was claimed was-illegal, as the relator was not a resident of that town, and the-assessors, consequently, had no jurisdiction to assess him therein for personal property.
    The grounds upon which the writ was quashed were, as stated in the order, as follows :

      First. Said writ is not made returnable to a Special Term of this ■ court as by statute required.

      Second. After personal and due legal notice duly given by said assessors of the hearing of grievances, said relator failed to appear • and make complaint of his assessment, and so is barred of any remedy by writ of certiorwri as provided by statute.

      Waters, McLennan & Waters, for the appellant.

      Miscode, Doheny' <& Miscode, for the respondents.
   Merwin, J.:

It is claimed by the relator that the writ was, in effect, returnable at a Special Term, and, if not, that the defect has been waived. - The writ in this case was allowed at the Onondaga Special Term September ■ 1,1888, and was returnable within twenty days after the service on you of this writ, at the office of the clerk of Onondaga county * * *' so that our Supreme Court may further cause to be done thereon what of right and according to law ought to be done.” Service-was made on the assessors on the twelfth of September and on the supervisor on the fourteenth of September. On the 15th of October, 1888, the assessors filed with the clerk of Onondaga county their' return, in which, in the first place, they answer ,upon the merits,, claiming, in substance, that the assessment is correct. For a further and second return they say they except to the writ as improper and irregular, inasmuch as it is not made returnable at a Special Term. For a third return they allege the relator is barred by reason of hi& failure to appear and object on grievance day, and, fourthly, they say they are improper parties, as the assessment-roll at the time of issuing of the writ was in' the possession of the supervisor. The return of the supervisor is filed the same day and is substantially the same except that the fourth answer is omitted. Each return is-directed to the Supreme Court and is signed by the parties and their attorneys.

The next thing that occurred, so far as the record before us shows,, was the making of an order in the matter by the Onondaga Special Term December 20, 1888. In this order after reciting that a writ, had been duly granted, and the respondents had filed their return thereto, and the matter had been brought on for hearing, and that it appeared to the court that testimony was necessary for the propeidisposition of the matter, and that the parties had stipulated to refer the matter to a referee named, it was ordered that the matter be-referred to the referee named to take the evidence as to the matters-in issue between the parties and report the same to the court.

The parties appeared before the referee on the 4th of January,, 1889, and before any evidence was taken the defendants made the-objection that all the proceedings were unauthorized, because the writ was not returnable at Special Term. No ruling on this was made-by the referee. Evidence was taken before him on several days. He made his report March 13, 1889, and this was before the court on April 20, 1889, when -the order appealed from was made.

The statute (chap. 269 of 1880, § 2) provided that the writ “shall be made returnable at a Special Term in said district.” Yery likely this called for the designation of some particular term at which the-return should be made. Still, after the service of the writ, both parties appeared at the Onondaga Special Term on the 20th of December, 1888, and such proceedings were then taken as would have been ■authorized had that term been named in the writ. How that term was, in fact, fixed upon does not appear. It is to be presumed that both parties voluntarily appeared there. The appearance, so far as the order would indicate, was general and upon a writ “ duly granted.” No motion to dismiss for any irregularity or defect was made. On the contrary, the parties stipulated that the matter be referred, a pro-needing that was not necessary or proper if the defect in the writ was to be insisted on. Before the referee the point was taken, but he had no power to rule on it.

The voluntary and full appearance at the term on the twentieth ■of December, and the stipulation to refer, and failure then to move to dismiss, should be held to be a waiver of the defect complained of. 'The voluntary acts of the parties fixed the term on the twentieth of December as the term for the return of the writ.

Is the relator bai’red of any xnmedy xxnder the act of 1880 by reason of his failure to appear and object on. grievance day ? The .assessment attacked is one for pex-sonal property. The relator claims that he was not a resident of the town of Elbx-idge, and that, therefore, the assessors had no jurisdiction to assess him.

In People ex rel. Mutual Union Telegraph Company v. Commissioners of Taxes, etc. (99 N. Y., 256) it was said, with inference to an assessxnent in New Yoxlc city, that it would be an unwarrantable construction of the statute to permit a party complaining of an assessment to lie by without availing himself of the opportunity to remedy his grievances by application to the tax commissioners, under the statute of 1859, and after the assessment had become confix’med by the lapse of time, to arrest the collection by a proceeding under the act of 1880. In this case •(see S. C., 31 Hun, 570) it was not disputed that the relator was .subject to taxation in the city of New York. The oxxly question was as to the amount. The act of 1859 (chap. 302) gave the party from the second of January to the first day of May an opportunity to apply for correctioxi. It also px’ovided that no reduction should be made by the hoax’d of supervisors of any assessment unless it •■appeared, under oath, that the party aggxieved was unable to attend, within the period prescribed for the correction of taxes, by reason •of sickness or absence from the city. It also provided for a review •on the merits by certiorari, axxd this was not affected by the act of 1880 (§ 10). In People v. Wall Street Bank (39 Hun, 525)’ there was a similar ruling with reference to an assessment in New York city.. '

In People ex rel. Hoffman v. Osterhoudt (24 Week. Dig., 101), where the relator resided in, and was a taxable inhabitant of, the-city of Kingston, and had in his possession certain personal property for which he was by the assessors of that city assessed, but which he claimed belonged to another party, it was held that the assessors-had jurisdiction of the matter of the assessment, and that the relator, having failed to. object in season, had no remedy by certiorari under the statute.

In People ex rel. Grace v. Gray (45 Hun, 243) it was held not. to be necessary for the relator to show that he had appeared before’ the assessors or made objection during the period the roll was open for inspection and correction. The case related to an assessment on real estate. It was said that the only condition to the allowance of the writ is that it shall be allowed within fifteen days after the completion of the roll and the giving notice thereof as required by the act. The case in 99 New York is referred to and distinguished. In People ex rel. R. W. and O. R. R. Co. v. The Assessors of Lewiston, unreported, it was held by Justice Barker that appearance before the assessors was not a prerequisite to the right to obtain the writ. In Hebrew Free School Association v. Mayor, etc. (4 Hun, 446), it was. held that, where a tax is imposed upon property exempt by law, the omission to appear before the commissioner of taxes does not give validity to the assessment. In Matter of Douglas (48 Hun, 318) it is said that the provisions requiring parties to appear .before the-assessors and state their grievances only apply to cases within the jurisdiction of the assessors. A party outside of the jurisdiction is under no obligation to appear before the assessors, and he-cannot be presumed to know that an illegal tax is about to be assessed against him. In case the party appears before the assessors and afterwards obtains the writ, he is not limited to the questions raisfed before the assessors. (People ex rel. D. and H. C. Co. v. Becker, 26 N. Y. St. Rep., 35.)

In the absence of any statutory requirement to that effect, can it be fairly said that the relator was bound to appear before the assessors and litigate, there, before them the question of their jurisdiction to act % They knew, as appears from the evidence, that he claimed he was not a resident of their town. There had been previous controversy on the subject. It is quite apparent that any appearance by him before them would have been entirely futile. The ease in '99 New York is cleax-ly distinguishable from this.

Under the circumstances of this case, we are of the opinion that the failure of the relator to appear before the assessors does not bar him of his remedy under the writ. The respondents in their points discuss the merits of the case< and claim that the assessors correctly decided .that the relator was a resident of their town for the purpose of taxation on personal property. This was not passed upon at .Special Term, as indicated by the order appealed from, and it is not, therefore, proper to consider it here. Nor is the point available, that the assessors did not have the roll at the time of the issuing of the writ. The statute (§ 2 of the act of 1880) contemplates that it may be out of their hands. (People ex rel. R. W. and O. R. R. Co. v. Hicks, 105 N. Y., 198; People ex rel. Warren v. Carter, 47 Hun, 446.)

It follows that the order quashing the writ should be reversed.

Hardin, P. J., and Martin, J., concurred.

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


text:
    MARY E. GOODRICH, Appellant, v. BYRON D. HOUGHTON and CLAUDE S. HOUGHTON, Respondents.

      Agreement made in the State of New York contemplating the purchase in Louisiana of lottery tickets, the sale of which was legal in the latter State, is not enforceable in the State of New Yoi'k.

    .In an action for conversion it appeared that the plaintiff in the action entered into an agreement with the defendants therein, in the State of New York, by which the parties were each to advance a certain sum, which was to be expended in the purchase of lottery tickets in the Louisiana State lottery; that the tickets were purchased and a prize was drawn, the amount of which was forwarded by express and was taken by the defendants, who refused to deliver to the plaintiff ■the share thereof to which she was entitled under the original agreement.

      Meld, that in order to maintain an action for trover, without reference to the enforcement of contract obligations, the possession of the property must be actual, and not constructive merely.
    'That the parties to this action were engaged in an illegal transaction under the laws of the State of New York.
    'That no basis for a recovery by the plaintiff was shown, except as connected with or involved in this illegal transaction, which did not afford a cause of action therefor.
    Where an agreement is unlawful in the State in which it is entered into, although lawful under the laws of the State in which the scheme contemplated thereby is to be carried into execution, the agreement cannot be enforced in the State in which it is made.
    Appeal by tbe plaintiff from a judgment entered, after a trial at tbe Oswego Circuit before tbe court and a jury, in tbe office of tbe clerk of tbe county of Oswego on tbe 18tb day of January, 1889, in favor of tbe defendants, dismissing tbe complaint, with costs; ■and also from an order made by tbe justice presiding at said trial, and entered in tbe office of tbe clerk of Oswego county on January 14, 1889, directing a nonsuit and dismissal of tbe complaint, with costs.
    In tbe complaint there were three counts. In tbe first it was alleged that on tbe 23d of March, 1887, at Oswego, tbe plaintiff was tbe owner and in constructive possession of a certain sum of money to tbe amount of $12,500, and that upon that day tbe defendant Byron D. Houghton, while bolding such money temporarily for plaintiff, combined with tbe other defendant to cheat her, and refused to deliver tbe money to plaintiff, except tbe sum of $6,217.50, and thereafter both defendants converted tbe balance to their own use. In tbe second count it was alleged that, at the above date, tbe plaintiff was tbe owner and entitled to tbe possession of $12,500, then being in tbe custody of tbe United States Express Company at Oswego, and authorized tbe defendant Byron D. to obtain it and bring it to her; that said defendant did obtain it, but refused to deliver it to her, and, in conspiracy with tbe other defendant, and by fraud, induced tbe plaintiff to accept the sum of $6,217.50, and converted tbe balance to their own use. In tbe third count it was alleged that, at tbe same date, tbe plaintiff was tbe owner and entitled to tbe possession of $6,217.50, and on that day tbe defendants detained and converted the same to their own use.
    In tbe answer there was, first, a general denial; then full payment and a release were set up. It was then alleged that, about March 1, 1887, the plaintiff and defendants, at Oswego, N. Y., entered into-an agreement for the purchase of fifty dollars worth of lottery tickets in the Louisiana State lottery, the plaintiff advancing twelve dollars and fifty .cents and purchasing a one fourth interest therein, the defendant Byron D. Houghton a one-half interest, and the other defendant a one-quarter; that the money, fifty dollars, was sent by Byron D. to New Orleans and the tickets were purchased, as agreed,, and sent to him; that thereafter one of the tickets drew a prize of $25,000, and another, twenty dollars; that the tickets were purchased in the name of Byron D., and the prizes drawn were sent to him by express and delivered to him, and thereafter $6,217.50 was paid to plaintiff in full of her share, less expenses; .that the agreement for the purchase was contrary to the laws of the State of New York and void.

      J. B. Higgins and W. A. Boucher, for the appellant.

      F. F. Hamilton, for the respondents.
   Merwin, J.:

The defendant Byron D. Houghton, on the 30th of March, 1887, received from the United States Express Company, at Oswego, the sum of $25,020, and paid expenses thereon to the amount of $150. This money was consigned to Houghton from New Orleans, La. The evidence on the part of the plaintiff showed that this money was sent as money drawn upon lottery tickets in the Louisiana State lottery, purchased about a month before by Byron D. in pursuance of an agreement between him and the plaintiff. The plaintiff, in substance, testifies that she and Byron D. agreed to purchase fifty dollars worth of such lottery tickets, plaintiff to advance twenty-five dollars and Byron D. the rest, and each share equally in the results; that she did advance her part, and Byron sent the whole to New Orleans and obtained the tickets, upon some of which the money was drawn that was sent to Byron.

The claim of the plaintiff is that, inasmuch as the tickets were purchased in New Orleans, the agreement between plaintiff, and Byron was legal, and he can be compelled to account for the profits. It was not shown what the law of Louisiana was on the subject. (Thatcher v. Morris, 11 N. Y., 437.) Assume that the business was legal there, does that make legal the agreement made here between plaintiff and Byron D. %

By the Penal Code (§ 324) a lottery is declared to be unlawful and a public nuisance. This applies, to lotteries drawn in another State, whether authorized by such State or not. (Penal Code, § 334; People v. Noelke, 94 N. Y., 137.) Any person who in any way furnishes to another a share or interest in a lottery, to be drawn within or without the State, is guilty of a misdemeanor. (Penal Code, § 326.) In Grover v. Morris (73 N. Y., 476) it is said that lotteries authorized by the laws of other States are unlawful here. The subject-matter, therefore, of the agreement between plaintiff and Byron D. Houghton was unlawful under our law. That being so, the agreement cannot, here be enforced. It is, however, urged by the plaintiff that a case was made out for recovery without reference to the original agreement between the parties and by reason of what occurred after the drawing of the prizes.

The money was consigned to Byron D. Houghton. Presumptively it belonged to him. The burden was on the plaintiff to show her title. It was shown that the drawing was on the fifteenth of March, and that afterwards, and before the money was received, the plaintiff saw Houghton and he said to her “we had drawn $25,000 ;” that there was then talk between them as to how the money should be sent for, and that it was understood that it should be sent by express; that Houghton said “he would send the tickets back by express and the money was to come by express • to us; ” that afterwards he talked with jflaintiff about the claim of the defendant Claude, and plaintiff then said to him, “ Half is mine and half is yours,” and he replied, “I know it;” and he afterwards told plaintiff, “ "When the money comes I will bring it here, we will count it and divide it.” After the money came Houghton declined to pay plaintiff the half, but paid her a quarter. Afterwards, as the evidence tended to show, the defendants converted the balance to their own use.

In Woodworth, v. Bennett (43 N. Y., 273) it was held that, when an illegal contract has been fully execxxted and money paid thereunder remains in the hands of a mex’e depositax-y, who holds it for the xxse of one of the parties to the contract, an action to recover the money so held will be sustained, but when the recovery of the money requires the enforcement- by the court of any of the unexecuted provisions of the illegal contract, no action can be maintained. In that case the money was in the hands of the plaintiff, who was one of the parties to the original contract, and the question was whether it could be allowed to the defendant as a counter-claim. The plaintiff, after receiving the money, had promised to pay the defendant and apply it on their deal. It was said by Church, Ch. J.: The express promise does not aid the defendant, because the promise was only to carry out the unexecuted provision of the contract of partnership to divide the money.” In Barton v. Port Jackson, etc., Plank-road Company (17 Barb., 397), it is said that every new agreement entered into for the purpose of carrying into effect any of the unexecuted provisions of a previous illegal contract is void. In Colton v. Simmons (6 N. Y. St. Rep., 608) it is said that the court will not lend its process or jurisdiction in aid of a controversy in which a party seehs to recover profits resulting from an illegal business, although that business carried on in this State relates to lotteries that are authorized by other States.

In Merritt v. Millard (4 Keyes, 208), cited by plaintiff, the money was in the hands of a third party for the use of the plaintiff. In Planters’ Bank v. Union Bank (16 Wall., 483) the money had been received by the defendant and credited to the plaintiff, so that the plaintiff did not need the aid of the illegal transaction to establish its case. The same rule was applied in Cook v. Sherman (20 Fed. Rep., 167.)

In Brooks v. Martin (2 Wall., 70) it was held that after a partnership contract, confessedly against public policy, has been carried out and money contributed by one of the parties has passed into other forms, and the results of the contemplated operation completed, a partner in whose hands the profits are cannot refuse to account for and divide them on the ground of the illegal character of the original contract. In that case there were then in the hands of the defendant, lands, money, notes and mortgages, the results of the partnership business; the original capital for which the plaintiff had advanced, and the defendant had by fraudulent means obtained possession and control of all the funds. These cases, and many others somewhat similar that are cited, are not antagonistic to the rule laid down in the Woodworth Case.

The conversations between plaintiff and Byron D. Houghton after the drawing of the prizes, and before the receipt of the money, all had reference to the original bargain, and the promise was no stronger than it was in the Woodworth Case. It was to carry out the unexecuted provision of the venture. Under the rule in that case, it is difficult to see how the plaintiff can stand.

It is suggested that the plaintiff had a constructive possession of the money. The possession must be actual in order to maintain trover without going into the original contract. (Clements v. Yturria, 81 N. Y., 285.) In the Brooks Case there was an actual possession that had been overcome by fraud. Here nothing occurred after the money was received by which the plaintiff can show any title.

It must, I think, be held that the parties were engaged in an illegal business, and that no basis for a recovery was shown except as connected with or involving the illegal transaction.-

The nonsuit was, therefore, properly granted, and the judgment should be affirmed, with costs.

Hardin, P. J., and Martin, J., concurred.

Judgment affirmed with costs.


text:
    GEORGE W. DRISCOLL, as Receiver of the Property of WILLIAM W. DOWNER, MARCELLUS JOHNSON and MINARD C. FANCHER, v. WILLIAM W. DOWNER, MARCELLUS JOHNSON and MINARD C. FANCHER, THE FIRST NATIONAL BANK OF BALDWINSVILLE, New York, and GILES B. EVERSON, as Assignee of the Goods and Effects of said DOWNER, JOHNSON & FANCHER.

      Motion to dismiss a complaint — leave granted on certain conditions to plaintiff, on Ms application, to amend the complaint — the plaintiff, failing to comply with the conditions, cannot claim that the original complaint stated a cause of action.

    In an action brought by a receiver, appointed in proceedings supplementary to execution, to reach personal property of the debtor alleged to have been fraudulently transferred, the defendants’ attorneys moved to dismiss the complaint upon the ground that it did not state facts sufficient to constitute a cause of action, in that it did not show a judgment docketed in any county of this State, nor an execution thereon issued to a county in which the judgment-roll was filed or judgment docketed, nor to any county wherein the defendants, or either of them, resided.
    The court held that the objections were well taken, and thereupon the plaintiff’s attorneys asked leave to amend the complaint in the particulars objected to, which motion was granted on condition that the trial stand over to a day fixed and the plaintiff pay ten dollars costs and witness fees to each of the defendants’ attorneys.
    This condition not having been complied with, the complaint was dismissed.
    Held, that the plaintiff, having applied for the leave granted, was not in a position, on appeal from the judgment of dismissal, to review the ruling of the court upon the sufficiency of the complaint.
    Appeal by plaintiff, upon questions of law and upon tbe facts, from a judgment, entered, after a trial before a Special Term held in the county of Onondaga, in the office of the clerk of the county of Onondaga on the 20th day of May, 1889, and from an order, entered in the action in said clerk’s office on the 16th day of May, 1889, and from an order, entered in an action in said clerk’s office on the 13th day of May, 1889.
    The order of May 13, 1889, recited that the case had been reached in its regular order, and was moved by the plaintiff and opened; that tlie defendants moved that the complaint be dismissed on the ground that the complaint did not state facts sufficient to constitute a cause of action, and that the court having entertained the motion, and held that the complaint was defective, the plaintiff asked leave to amend, which defendants objected to, and thereupon ordered that plaintiff have leave to amend the complaint in certain particulars, on condition that the trial stand over to May sixteenth, and that plaintiff pay ten dollars costs and witness, fees to each of defendants’ attorneys appearing for different parties, such amendment to be made and costs paid on or before said May sixteenth, to which time the court and cause were adjourned, and that if such amendment was not made’ and costs paid, then the complaint be dismissed, with costs to each defendant separately answering.
    The order of May 16, 1889, after referring to the previous order and its contents, stated that the cause was regularly called, and it appearing that such order had not been complied with by plaintiff, and the plaintiff stating in open court that he did riot intend to comply with it, and ordered, in confirmation of the order of the thirteenth, and on motion of the defendants’ attorney, .that “ the plaintiff’s said complaint be and is hereby dismissed, with costs to each defendant separately answering.” The judgment was entered in conformity with these orders.
    The action was brought by the plaintiff as receiver in proceedings supplementary to execution of the property and effects of the defendants William W. Downer, Marcellus Johnson and Minard C. Fancher, to reach personal property alleged to have been transferred by Downer, Johnson & Fancher in fraud of creditors, and especially in fraud of the plaintiffs in the judgment upon which the supplementary proceedings were taken. It was not alleged that the judgment was docketed in any county, nor an execution thereon issued to a county in which the judgment-roll was filed or judgment docketed, nor to any county wherein the defendants or either of them resided. It was alleged that the defendants were partners “ doing business at the village of Baldwinsville in said county; ” that “ judgment was duly recovered in this court; ” “ that on the 2d day of January, 1889, execution was duly issued on said judgment to the sheriff of said Onondaga county, and on the fifth day of February the same was duly returned wholly unsatisfied; ” that afterwards, in proceedings supplementary to execution on said judgment, an order was duly made by the county judge of Onondaga county requiring the defendants to appear and answer, and on the 21st day of March, 1889, the plaintiff “ was duly appointed receiver ■” of the property and effects of said defendants, and the receiver duly accepted the trust and entered upon the discharge of his duties.
    The case and exceptions, as settled, show that the case came on for trial at the Onondaga Special Term on the 13th of May, 1889. After the plaintiff’s attorney had opened and offered to prove the allegations of the complaint, the defendants’ attorney moved to dismiss the complaint upon the grounds “ that it did not show facts sufficient to constitute a cause of action; it did not show a judgment docketed in any county of this State, nor an execution thereon issued to a county in which the judgment-roll was filed or judgment docketed nor to any county wherein the defendants or either of them resided.” The court held that the objections were well taken and that the motion must be granted. Thereupon the plaintiff’s attorney asked leave to amend the complaint in the particulars objected to, which was granted and the order of May 13, 1889, made. On the sixteenth of May tbe case was again called. It appeared that the complaint had not been amended and the plaintiff’s attorney stated that he did not intend to do so, bnt requested to be allowed to make further arguments in regard to the sufficiency of the complaint and to prove the allegation thereof. The defendants objected and the court overruled the plaintiff’s request, and plaintiff’s attorney excepted thereto. Whereupon the court, on motion of the defendants’ attorney, made the order of May 16,1889. No exception was taken by plaintiff to the ruling of the court on May 13, holding that the defendants’ objections to the complaint were well taken.

      William, O. Trotter, for the appellant.

      John O. Hunt, for the respondents.
   Merwin, J.:

The plaintiff upon this appeal seeks to review the ruling of the court at the trial that the complaint was defective. He, however, took no exception to such ruling. He applied for and obtained leave to 'amend, one of the conditions of the order being that in case he did not amend and pay certain costs within a certain time the complaint should be dismissed. In regard to such a case it was held in Weichsel v. Spear (47 N. Y. Superior Court R. [15 J. & S.], 223; affirmed, 90 N. Y., 651), that the party plaintiff, upon whose request leave to amend was granted upon payment of certain costs, otherwise the complaint to be dismissed as not containing facts sufficient to constitute a cause of action, would not be heard to impugn the order as being irregular or erroneous.

There is nothing to show that the amount of costs imposed, as a condition to the amendment, was unreasonable, and upon failure to amend the dismissal of the complaint would follow. The plaintiff had the benefit of the leave given. Whether further discussion upon the adjourned day should be allowed upon the sufficiency of the complaint was entirely a matter of discretion with the trial court, and the exception to the refusal of the court to grant the request of the plaintiff on that subject is not here available. The order of May 16,1889, was, in effect, the final decision of the court upon which the judgment is based. No exception to it was filed.

It seems to me that the plaintiff is not in a position to have reviewed the ruling upon the sufficiency of the complaint. The action of the court thereon transpired at the trial. The plaintiff having asked and obtained leave to amend, and having had to a certain extent the benefit of the order, and not having excepted to the ruling, the only relief he was entitled to was to amend and proceed with the action.

It follows the judgment and orders must be affirmed.

HardiN, P. J., and MartiN, J., concurred.

Judgment and orders affirmed, with costs.


text:
    PHILIP H. LEHNEN, Respondent, v. ALFRED J. PURVIS, Appellant, Impleaded with Another.

      <Joniract of suretyship — when the oblige»' and surety cure properly joined as defendants.

    A complaint alleged tliat on October 20,1885, the plaintiff and defendants entered into an agreement whereby one Westcott was to be released from all obligation on account of a certain bond executed by him and one Killian, and .a contract to secure the performance of which the bond was given, he having transferred his interest therein to the defendant Killian, who had assumed the performance of the same, and that on that day Purvis, the other defendant, who was named as an obligor in and was a surety on said bond, undertook to become surety for Killian, and consented to the assignment to Killian, and agreed that his obligation as surety in said bond should continue to be the same for said Killian as it had been for Westcott and Killian, the original obligors.
    Upon the hearing of a demurrer, interposed on the ground that the said Purvis was not a proper party to be joined with the defendant Killian in the action, and that causes of action, one against the defendant Purvis and the defendant Killian upon the bond set forth in the complaint, and the other against the defendant Purvis alone upon the contract set forth in the complaint, had been improperly united.

      Held, that Purvis continued, under his agreement, to be jointly and severally liable upon the bond to the plaintiff for the performance of the contract mentioned therein; that but one cause of action was stated, namely, the liability of the defendants by reason of a breach of the condition of their bond, and that certain facts were stated for the purpose of showing that they continued that liability, notwithstanding the fact that Westcott had assigned his interest in the contract with Killian.

      Appeal by the defendant Alfred J. Purvis from a judgment, entered in the office of the clerk of the county of Onondaga on the 20th day of June, 1889, after the trial of an issue of law at a Special Term held in Onondaga county, raised by the service of a demurrer, on the part of the defendant Purvis, to the amended complaint herein.
    The amended complaint, among other things, alleged that on or about the 23d day of April, 1885, the defendants and one Frank D. Westcott, made and executed to the plaintiff in this action the bond hereinafter set forth, to wit: “ Know all men by these presents, that we, FrankD. Westcott, Henry O. Killian and Alfred J. Purvis, all of the city, of Utica, N. Y., are held and firmly bound unto Philip H. Lehnen, of Syracuse, N. Y., in the sum of twelve hundred dollars ($1,200) to be paid to the said Philip II. Lehnen, or to his certain attorney, executors, administrators or assigns.
    “ For which payment well and truly to be made, we bind ourselves and our hems, executors and administrators, jointly and severally, firmly by these presents.
    “ Sealed this 23d day of April, in the year of our Lord one thousand eight hundred and eighty-five.

      “ Whereas, The above bounden Frank I). Westcott and Henry C. Killian have contracted with the above-named Philip H. Lehnen for the right to publish and print the programmes for the Grand Opera House in Rochester, N. Y., and the Wieting Opera House in Syracuse, N. Y.
    “ Now, therefore, if the said Killian & Westcott shall well, truly and faithfully pay the smn of money or moneys as in the contract hereto annexed provided, and shall well, truly and faithfully perform all the conditions by said contract provided, then this obligation shall be null and void as to all the above-bounden obligors, and otherwise to remain in full force and virtue.
    “FRANK D. WESTCOTT. “HENRY O. KILLIAN. “ALFRED J. PURVIS.”
    That thereafter, and on or about October 20, 1885, the plaintiffs and defendants entered into an agreement in writing, for value received, whereby the said Frank D. Westcott was to be released of all obligations on account of said bond or on said contract (the performance of which the said bond was given to secure); the said Killian having received from said Westeott a transfer of the right and interest of the said Westeott in and to the said contracts, and having assumed the performance of the same and the obligations of said Westeott in said bond; and the said defendant Purvis having consented thereto in writing, in the following words and figures:
    “ Por value received, I do hereby agree to and by these presents do become bondsman for Henry C. Killian, in the stead and place of Westeott & Killian, publishers of the Wieting and Grand Opera House programmes, published at Syracuse and Rochester, respectively ; and all the surety that I became for said Westeott & Killian I hereby become for said Henry C. Killian.
    “ Utica, N. Y., October 20th, 1885.
    “ALFRED J. PURVIS.
    The plaintiff further alleges that the said bond hereinbefore set forth was made by the said Westeott and the defendant Killian as principals, and by the defendant Purvis as surety, to secure the performance of two certain contracts made originally by said defendant Westeott and defendant Killian, for furnishing programmes for the Wieting Opera House, in the city of Syracuse, and the Grand Opera House in the city of Rochester; * 'x' * that when the said Westeott transferred all his rights and interest in said contracts to the defendant Killian, who accepted and received the same, and assumed all the obligations thereof, the said Purvis consented to said assignment to said Killian, and agreed that his obligation of surety in said bond for the performance of said contract, should continue to be the same for said Killian as it was for said Westeott & Killian.
    The demurrer was on the following grounds:

      “First. That there is a defect of parties defendant in this action in that the said Purvis is not a necessary or proper party to be joined as a defendant with said Killian in an action upon the contract or agreement set forth in the said amended complaint.
    “ Second. That causes of action have been improperly united, viz.: One cause of action in said amended complaint being an alleged cause of action against said defendant Purvis and said defendant Killian upon the bond set forth in said amended complaint, and the other cause of action in said amended complaint being an alleged cause of action against said defendant Purvis alone upon the contract or agreement set forth in said amended complaint.
    “ Third. That 'the amended complaint does not state any or a cause of action in favor of said plaintiff against said defendant Purvis.

      “Fourth. That the amended complaint does not state facts sufficient to constitute a cause of action either against the said defendant Purvis alone, or against said defendant Purvis impleaded with the said defendant Killian.”

      W. & N. E. Eernan, for the appellant.

      Samuel M. Stern, for the respondent.
   Hardin, P. J.:

The complaint contains facts sufficient to constitute a cause of action for a breach of the bond set out in the complaint against the defendants Killian and Purvis.

Killian and Purvis, by the terms of the bond executed on the 23d of April, 1885, were jointly and severally liable to the plaintiff for the non-performaiice of all the conditions contained in the contract referred to in the bond.

The complaint contains an averment that on the 20th of October, 1885, the plaintiff and defendants entered.into an agreement whereby Westcott was to be released of all obligation on account of the bond, or on account of the contract mentioned in the bond, he having-transferred his interest in the contract to Killian, who assumed the performance of the same in accordance with the stipulation theretofore existing against Westcott, and on that day Purvis undertook to become surety for Killian, and it is averred in the complaint that Purvis consented to the assignment to Killian and agreed that his obligation of surety in said.bond for the performance of said contract should continue to be the same for said Killian as it was for said Westcott and Killian.” If the last allegation be trae, then he continued jointly and severally liable upon the bond to the plaintiff for the performance of the contract mentioned in the bond.

The complaint contains an averment of a breach of the contract and a breach of the condition of the bond. It is also averred in the complaint that “ tbe said Purvis consented to said assignment to said Killian, and agreed that bis obbgation of surety in said bond for tbe performance of said contract should continue to be tbe same for said Killian as it was for said Westeott and Killian; ” thus tbe words of tbe bond, we bind ourselves and our beirs, executors and administrators jointly and severally, firmly by these presents,” remained operative against Killian and Purvis, and tbe bond continued to be tbe foundation of their liability, and, as already stated, they were jointly and severally liable in virtue of tbe terms of tbe bond. It is stated that there was a breach of tbe conditions of tbe contract mentioned in the bond, hence there was a breach of tbe conditions of tbe bond, and for such a breach this action is brought.

Barton v. Speis (5 Hun, 61) is distinguishable from tbe case in hand. There tbe plaintiff sought to unite a cause of action against the maker of a note with a cause of action against tbe guarantor of a note, and it was held that tbe liability of tbe maker of tbe note was in virtue of one instrument and tbe bability of tbe guarantor in virtue of another instrument, and, therefore, tbe causes of action were improperly united.

In Harris v. Eldridge (5 Abb. N. C., 278) tbe'action was against the maker of a note, and also against a guarantor of a note, and the court followed Barton v. Speis, bolding that there was an improper joinder of causes of action.

If this complaint united two causes of action in the same count, it would be demurrable (Wiles v. Suydam, 64 N. Y., 173; Goldberg v. Utley, 60 id., 427); but, as already stated, we are of tbe opinion that but one cause of action is stated, to wit: Liability of tbe defendants by reason of a breach in the condition of their bond, and certain facts are stated for tbe purpose of showing that they continued that liability, notwithstanding ’’W’estcott had assigned his interest in the contract to Killian. "We think the, demurrer was properly overruled at the Special Term.

Judgment affirmed, with costs, with leave to the defendants to withdraw their demurrer on payment of the costs of the demurrer and of this appeal, and answer on payment of such costs within twenty days.

MabtiN, J., concurred; MeewiN, J., not sitting.

So ordered.


text:
    GEORGE B. MORE and CHARLES J. PIERCE, Respondents, v. NEW YORK BOWERY FIRE INSURANCE COMPANY, Appellant.

      Insurance — delay on the prn't of am, insun'ance agent to notify a party, holding a contingent contract of insurance, of the refusal of the company to accept the risk — provision requiring an agent to home written authority.

    In an action brought to recover upon a contract to procure a policy of insurance which would insure the plaintiffs for the term of six months from loss or damage by fire to their creamery, situate on Main street in North Harpersfield, it appeared that the negotiations were had by the plaintiffs with one Nichols, who had possession of certain blanks issued by the defendant, an insurance company; that on May 12, 1889, Nichols made a memorandum of the insurance desired by the plaintiffs, told them that he would take their application, and that if it was accepted by the company, the policy would he-dated from that day, but that if it was not accepted they would know in a few days; that he would send it on to Mr. Sage, the agent of the company, to see whether it would be accepted or not.
    On the same day the application was forwarded by Nichols to Sage, who was an agent of the defendant, and on May 16, 1887, Sage forwarded the communication to the defendant, at the same time advising Nichols of its receipt by him. On the 18th day of May, 1887, the assistant secretary of the defendant wrote to Mr. Sage that the company declined the risk. The letter was received by Sage in due course, but he omitted to notify Nichols of the fact that the defendant had declined to take the risk until after the property had been destroyed by a lire which occurred on June 6, 1887, upon which day Nichols telephoned to Sage that the creamery had burned, and Sage telegraphed to Nichols that the application was not accepted by the defendant. The premium for the insurance was paid, in accordance with the negotiations had with Nichols, on the 30th day of May, 1887.

      Held, that the silence and the acquiescence in the application, so far as the plaintiffs had any knowledge thereof, were, in effect, an approval of the application and a consent on the part of the defendant to enter into the contract of insurance which was contemplated by the parties to the negotiations.
    That, by reason of the omission on the part of Sage to notify the plaintiffs of the rejection of the application, they were authorized to assume that their contract for a policy of the defendant was valid and binding.
    That the authority conferred upon Sage, as the agent of the defendant, was such that he might call to his aid others in the execution of the details of the business which he undertook for the defendant.
    That the defendant was bound by Sage’s neglect for a period of eighteen days to cancel or revoke the agreement which had been made with the plaintiffs; that as it had clothed Sage with power and apparent authority to make the contract, which he had sanctioned and allowed the plaintiffs to repose upon until the fire occurred, the defendant was liable therefor to the plaintiffs.

      That the condition of the policy that, “ in any matter relating to this insurance no person, unless duly authorized in writing, shall he deemed the agent of this company,” did not relieve defendant from the liability imposed upon it by the negligence of its agent in the discharge of his duty.
    Appeal by tbe defendant from a judgment, entered in the office of the clerk of the county of Delaware on the 1st day of April, 1889, upon the report of a referee.
    The action was brought to recover upon an alleged contract of insurance made by the defendant, through its agent, with the plaintiffs.
    The complaint alleged, among other things : “ That on or about the 12th day of May, 1887, at North Harpersfield, Delaware county, N. Y., in consideration of the payment by the plaintiff to the defendant of the premium of thirteen dollars and fifty cents ($13.50) the defendant, by-its agent, duly authorized thereto, made and entered into a contract with the plaintiffs to insure them against loss or damage by fire, from the said 12th day of May, 1887, to the 12th day of November, 1887, to the amoirnt of one thousand and eight hundred dollars ($1,800), upon the creamery building and contents therein contained, consisting of creamery fixtures and other articles of property, at North Harpersfield, Delaware county, N. Y., and to issue and deliver to the plaintiffs their policy of insurance in writing, duly executed by the proper officer or officers of said company.”
    The action was brought to recover upon “ a contract to procure a policy of insurance, which would insure the plaintiffs for the term of six months from loss or damage by fire to their creamery situated on Main street, in North Harpersfield.” Plaintiffs negotiated in May, 1887, with one Nichols, for an insurance upon the creamery building in the sum of $800, and $800 on fixtures therein, and $200 on butter packages, milk cans and butter therein contained. The rate was three-quarters per cent, or thirteen dollars and fifty cents for the period of six months. On the 6th of June, 1887, the property was totally destroyed by fire, and the damages caused by such fire exceeded $1,800, the amount of insurance mentioned in negotiations which the plaintiffs had with Nichols, who had possession of certain blanks issued by the defendant. Prior to the 12th day of May, 1887, the plaintiffs had had some negotiations with Nichols, and on that day the plaintiffs informed Nichols that they desired to insure their property to the extent of $1,800. He made a memorandum of tbe insurance desired by them, told them that he Avould talce their application, and that if it was accepted by the company the policy would be dated from that day, but that if it was not accepted they would know in a few days, and that he would send it on to Mr. Sage to see whether it would be accepted or not. After the interview with the plaintiffs on the 12th day of May, 1887, and on the same day, Nichols made out an application to the defendant for $1,800, and forwarded it to Mr. Sage, at Catskill, unsigned, accompanied bjr a letter informing Sage that the plaintiffs wanted the insurance. Sage held a commission as agent for the defendant and resided ’at Catskill' when he received the application in question with a letter from Nichols, on the 16th day of May, 1887; and on that day, he communicated to the defendant at New York that he had received the application for an insurance of $1,800 on the creamery, and on the same day Sage wrote to Nichols to the effect that lie had received the application for an insurance on the creamery, and that he would advise him as soon as he heard from the defendant. On or about the 18th day of May, 1887, Mr. Patterson, the assistant secretary of the defendant, wrote to Mr. Sage that the company declined the risk upon the creamery. That letter was received by Sage in due course of mail, but he omitted to notify Nichols of the fact that defendant had declined to take the risk until after the fire, which occurred on June 6th, 1887. Upon that day Nichols telephoned to Sage that the creamery had burned, and Sage telegraphed to Nichols that the application of Moore & Co. was not accepted by the defendant. The premium for the insurance was paid in accordance with the negotiations had with Nichols, by the plaintiffs to him on the 30th day of May, 1887, by their check, which he received as cash payment for the premium. Nichols had no written appointment from the defendant. He used, however, blanks which were furnished by the company in filling out applications for insurance.
    The referee found as conclusions of law, viz.:
    “ 1. The writing of Nichols on the 12th day of May, 1887, together with the acts of the defendant and the agent Sage, and by reason of the writing not being repudiated within a reasonable time after it was submitted to the defendant, became and was a valid and subsisting contract of insurance at the time of the fire, according to tbe terms of tbe writing and in tbe form of the standard stock policy of tbe State of New York, and was, as such, binding on tbe defendant.
    “ 2 Tbe defendant’s failure to pay tbe loss before tbe commencement of this action-was a breach of tbe contract which entitled tbe plaintiffs to recover their damages.”
    Exceptions were filed to tbe referee’s report, and several exceptions were taken during tbe progress of tbe trial.
    Hallook, Jermi/ngs & Chase and A. E. Sa/wyer, for tbe appellant.

      Qvamt (& WyeJcoff, for tbe respondents.
   Hardin, P. J.:

On the 16th of May, 1887, Sage held a commission from tbe defendant which authorized him to act as its agent in conducting tbe business of fire insurance. Tbe language of the commission is very similar to tbe language used in tbe commission of McCoy, quoted in the opinion of the court, as found in Ellis v. Albany City Fire Insurance Company (50 N. Y., 406), as in that case tbe defendant bad delivered a quantity of blank pobcies of insurance and other papers relating to tbe business, and tbe question was whether McCoy was authorized to make a contract binding upon bis principal for tbe issuing of a policy of insurance; and in discussing that question, Geoveb, J., said: “ I11 determining this question tbe prevailing usage in transacting such business must be regarded, as it is an elementary principle that tbe delegation of an authority to transact any business includes an authority to transact it in tbe usual way, and to do tbe acts usual in its accomphshment. It must also be kept in mind that be was clothed with full authority to make all necessary surveys to determine the risk, its duration and the rate of premium, without any reference to a consultation with tbe company or any of its officers • In short, to negotiate and conclude all tbe terms of tbe contract, and , to consummate it by filling up and countersigning tbe policy. This necessarily includes power to make a preliminary contract for tbe issuing of a policy, as it is manifest that no policy could ever be issued in the absence of such a contract. Tbe question is whether this preliminary contract is binding upon tbe company. In other words, whether, when made, and the' premium therefor paid by the assured, the company is bound, before the policy is actually filled up, countersigned and delivered. It is clear that, if binding upon the company at all for the shortest period of time, it will so continue until, by some act of the assured or in some other way, it is discharged therefrom; mere lapse of time, short of the running of the statute of limitations, will not have this effect. The usage of making agreements for insurance and paying the premiums, providing for the issuing of policies thereafter, to be dated at and in force from the time of making the agreement, is so general that judicial notice must be taken of it. It would, upon principle, follow that an unrestricted authority to negotiate a contract of insurance by issuing a policy, included authority to make a valid preliminary contract for such issue.”

When Angell v. Hartford, Fire Insurance Company (59 N. Y., 173) was tried before me at the Jefferson Circuit, I followed the principle laid down in the case from which the above quotation has been made, and the determination made at that circuit, as well as the case of Filis v. Albany Fire Insurance Company (supra), were approved by the Court of Appeals in deciding the case of Angell v. Hartford Fire Insurance Company (59 N. Y., 173).

From the evidence found in the appeal book it is very apparent that Sage knew on the 16th of May, 1887, that the plaintiffs had made application for insurance in the sum of $1,800, and that they had agreed upon the terms, and that the insurance was to take effect from the 12th day of May, 1887. If he had then issued a policy to them he would have done so in pursuance of his authority as the agent of the defendant. On the sixteenth he knew that the plaintiffs relied upon the defendant as an insurer of their property' Doubtless, when he received the application, he should have rejected the same, but his silence and acquiescence in the application, so far as the plaintiffs had any knowledge thereof, was, in effect, an approval of the application, and a consent on the part of the defendant to enter into the contract of insurance which was contemplated by the parties to the negotiations, and evidenced in part by the application furnished to Sage. lie allowed the plaintiffs to repose upon the faith that they had effected valid insurance with the defendant until after the fire occurred. If he had been more diligent in the discharge of his duty to the defendant as well as to the plaintiffs, as soon as he learned that the defendant desired to reject the application .for the insurance of the plaintiffs’ property, he would have communicated that fact to the plaintiffs. This he wholly omitted to do. By reason of his omission the plaintiffs were authorized to assume that their contract for a policy of the defendant was valid and binding. The cases to which we have already referred clearly sustain the position that it was within the scope of the agency of Sage to make the contract claimed by the plaintiffs; he had not only an apparent authority, but an actual authority to make such contract. It is a f amiliar rule that, “ where confidence has been reposed in an agent, and an apparent authority conferred upon him, that the principal must suffer from an actual exercise of authority not exceeding the appearance of that which is granted. When one of two innocent persons must suffer in such a case, that person must bear the loss who reposed the confidence.” (See opinion of Dwight, C., in Armour v. Mich. Cent. R. R. Co., 65 N. Y., 121.)

We see nothing in the commission of Sage which he received from the defendant, or in the authority which he received from it, or the authority inferable from his course of business with the defendant, or the nature of the business in which he was engaged, which would warrant us in saying that only such acts as he personally supervised in the accomplishment of the business of the defendant could be binding upon the defendant. Upon the other hand, we think the inference reasonable that the authority which he derived from the defendant was such that he might call to his aid others in the execution of the details of the business which he undertook for the defendant. He resided at Catskill, and was engaged for the Co-operative Insurance Company, in a line of business which required his personal presence most of the time in Catskill. He was carrying on business for the defendant in three large and extensive counties, some of the territory embraced within the limits prescribed for him by the defendant was 150 miles distant by rail from his home office, therefore, the circumstances surrounding his relation to the defendant, and to its business, in which he was to act as their agent, justify the inference that the defendant understood during the existence of such agency that he would call to his aid the services of clerks or solicitors. We think the language used by the court in Bodine v. Fxchange Fire Insurance Company (51 N. Y., 122), is quite applicable to this aspect of the case we have been considering. The court said: “We must infer that J ohn Whelp had all the power of ordinary insurance agents. He had acted for this company for nine or ten years in procuring risks for it, and in delivering policies and renewal certificates. His name was indorsed upon the original policy as the company’s agent. It was, therefore, according to the decisions above cited, just as competent for him to waive the condition of ¡^repayment as for any other officer or agent of the company. But conceding this, it is claimed, on the part of the appellant, that his son, Charles Whelp, had no authority to waive the prepayment of the premium so as to bind the company. Charles had been the clerk and assistant of his father for three or four years. He had procured policies and renewal certificates from the company and frequently delivered them to the persons insured, waiving prepayment of the premiums. All this he did with the knowledge and assent of his father, and hence we must infer that he was authorized by his father to do it. The agency of John Whelp was not such as to require his personal attention to all the details of the business intrusted to him. We know, according to the ordinary course of business, that insurance agents frequently have clerks to assist them; and that they could not transact their business if obliged to attend to all the details in person, and these clerks can bind their principals in any of the business which they are authorized to transact. An insurance agent can authorize his clerk to contract for risks, to deliver policies, to collect premiums and to take payment of premiums in cash or securities, and to give credit for premiums or to demand cash, and the act of the clerk in all such cases is the act of the agent, and binds the company just as effectually as if it were done by the agent in person.”

The same view of an agent’s authority and the powers of a subordinate assistant were stated by me in delivering the opinion of the court in Kuney v. The Amazon Insurance Company when it was before this court on the first appeal, and the same doctrine was repeated when the case was before this court on a second appeal, as appears by a report thereof in 36 Hun, 66.

Sage neglected for a period of eighteen days to cancel or revoke the agreement which had been made with the plaintiffs, and during that whole time allowed them to rely upon the arrangement for insurance which had been communicated to him as early as the 16th of May, 1887. We think it reasonable to hold that the defendant is bound by his acts, and that as one of two parties must suffer by his omission, it should be the defendant rather than the plaintiffs, as it had clothed him with power and apparent authority to make the contract which he had sanctioned and allowed the plaintiffs to repose upon until after the loss occurred.

Although our attention has been called to chapter 488 of the Laws of 1886, providing for a standard fire insurance, policy, and to the clause in such a policy, viz. : “ In any matter relating to this insurance no person, unless duly authorized in writing, shall be deemed the agent of this company,” we think, under the circumstances of this case, no such force or effect can be given to the language just quoted as would relieve the defendant from the liability which its agent, Sage, cast upon it by his negligence in discharging his duty.

The views which we have already expressed render it unimportant to consider the exceptions taken upon the trial to the admission of some evidence which was, perhaps, immaterial, as in the view we have considered the case it was unimportant.

We think the conclusion reached by the referee should be sustained and the judgment be affirmed, with costs.

Martin, J., concurred; Merwin, J\, not voting.

Judgment affirmed, with costs.