text:
    CHARLES S. HINE, Appellant, v. THE NEW YORK ELEVATED RAILROAD COMPANY, Respondent.

      Streets in New York city, which were highways at the time of the-Dutch occupation— rights of abutting owners therein.

    If it be conceded that under the treaties made at the time of the capitulation of August 27,1664, the treaties of Breda of July 21-81 of 1667, and of 'Westminster of February 9-19,1674, between the English government and the Dutch authorities, and the action of the State’s general of April 16, 1674, the absolute ownership of the land forming the bed of certain of the streets in the city of New York, existing as highways at that time, may be vested in the sovereign power, it is also the fact that the right to the enjoyment of light and air; and access, whilst the highways continue, also exist in the abutting owners.
    Although such absolute ownership in the land or soil of the highway might belong ' to the sovereign power, and revert to it when the highway is abandoned or closed, nevertheless, while it remains open the public, including the adjacent abutting owners, are entitled to all the advantages secured by its existence.
    Appeal, by tlie plaintiff, from a judgment rendered at the New York Circuit, and entered in the office of the clerk of the county of New York, April 1, 1886, dismissing the complaint.

      Wm. S. Arnoxtx, for the appellant.

      Davies c& Sarpallo, for the respondent.
   Brady, J.:

The plaintiff brought this action to recover damages alleged to have been sustained by reason of the manner in which the defendant built, constructed and operated its railway. The details given in the complaint were that the engines used constantly emitted noxious gases, odors, smoke, steam, coal-dust and cinders, which passed into and through the plaintiff’s building, to the great discomfort of the occupants; and, further, that to exclude the odors and gases mentioned and to lessen- the noises occasioned by the passage of the defendants’ engines and ears, it was necessary to keep the windows of the plaintiff’s building shut; that he had been unable to remedy the evils stated, and, in consequence, the beneficial use and enjoyment of his property had been greatly damaged and its value greatly reduced. The defendant denied that the plaintiff had any right, interest, easement, privileges or benefits in the street known as the Bowery, and in which plaintiff’s property is located, other than the right of passage, and alleged that such right was not interfered with. It also denied the emission of gases, odors, smoke, steam, coal-dust or cinders which passed through the building of the plaintiff; denied that the plaintiff was obliged to keep the windows of the building shut, as alleged, in reference to such elements and that the plaintiff had sustained damages by its wrongful acts. The defendant then alleged that it was duly organized under the acts of the legislature set out; that it had authority to build the railway and to equip the same with locomotives for use thereon, and that such construction and use had been made in the most skillful and careful manner in which it was possible to operate an elevated railway in the streets of this city.

Upon the trial the plaintiff put in evidence a warranty deed granting the locus in quo to the plaintiff, and then gave evidence tending to show that the rental value of the premises was injured by the construction and operation of the defendant’s railway in its effect upon their light, air and access to them, to the extent of $2,500 a year, and that they were thereby injured in value to the extent of $20,000, and rested.

Defendant’s counsel put in evidence act of 1866,- chapter 697. Also put in evidence articles of association of the West Side and Yonkers Patent Railway Company. Also put in evidence the following acts: Act of 1867, chapter 489, and act of 1868, chapter 855 Also put in evidence appointment of commissioners of the Croton aqueduct department by the governor, pursuant to the requirements of the aforesaid acts. Also put in evidence supplemental articles of association of the West Side and Yonkers Railway Company, changing the name of the company. Also put in evidence a mortgage given by the company and foreclosure proceedings under the mortgage given by the company, and the deeds of the property and franchises of the company to the New York Elevated Railroad Company, and the permission of the commissioners so appointed to use dummy engines. Also put in evidence approval by the commissioners of the location and the plans of the structure, stations, and so forth, of the defendant road, and the resolutions connected therewith. Also put in evidence articles of association of the New York Elevated Railroad Company, act of 1875, chapter 595; also, act of 1875, chapter 606; also, appointment of commissioners by the mayor under chapter 606 of the Laws of 1875. Also put in evidence the plan of the route designated by the commissioners, and the conditions and requirements imposed by the commissioners, with the resolution relating to the same. Also put in evidence proceedings in the Supreme Court giving consent to the construction and the operation of the New York Elevated Railroad, including the order in said proceedings. Also put in evidence resolutions of the board of aldermen, with the approval by the mayor, consenting to the route >so designated. Also put in evidence the lease of the New York Elevated Railroad Company to the Manhattan Company in 1879, and the subsequent lease of 1884 by the same company to the Manhattan Company.

Defendant’s counsel then put in evidence a stipulation as to the description of the property taken in this case, marked Exhibit No. 1.

NEW YORIv SUPREME COURT.

CHARLES S. HINE against THE NEW YORK ELEVATED RAIL- " ROAD COMPANY.

It is hereby stipulated by the parties to this action, for the purpose of any future trial of the same, that the diagram, marked A, signed by the counsel hereto, correctly represents the length and position of the boundary lines, according to survey, of the lot No. 13 Bowery, which is described in a deed made February 1, 1855, by Thomas Ward and wife to Charles S. Hine; the figures upon said, diagram correctly stating the length of the respective boundary lines in feet and inches, the distance from the north-east corner of said lot along the northerly boundary line to the easterly line of the Bowery, being, by measurement, one hundred and six feet six inches, and the distance from the south-easterly corner of said lot along the southerly boundary line to the easterly line of the Bowery, being, by measurement, one hundred and ten feet nine inches.

Dated, N. Y., March 24, 1886.

ARNOUX, RITCH & WOODFORD,

Attarneys for Plmntiff. DAVIES & RAPALLO,

Attorneys for Dqfenclcmt,

Also put in evidence Valentine’s History of New York from 1609, volume 1, pages 30, 31, 69 and 70. Also put in evidence Hoffman’s Appendix to the Estate and the Rights of the Corporation of New York, volume 2, the grants mentioned in pages 214, 242, 237, 226, 238 and 193. Also put in evidence map of ancient Bowery, being diagram No. 14, in Hoffman’s Appendix, page 226. Also put in evidence page 236 of Hoffman’s Appendix and the grant made in 1645, made by Governor Keefe to Classen; also, grant dated in 1653, of the same property from Classen to Beekman; also, grant made in 1667. Also put in evidence deed dated 1784, recorded in Liber 54, page 34S, from Isaac Stoutenburg and others, commissioners in forfeiture, to John W. McKesson, letters of administration on the estate of John W. McKesson, recorded in the surrogate’s office, in Liber 5, page 246; records of the Court of Common Pleas containing the proceedings in the partition of the real estate of said McKesson; order of said court dated January 6,1801-, appointing commissioners to make partition; deed of the commissioners to Smith Hicks, recorded in Liber 79 of Conveyances, page 39; deed from Smith Hicks to Anna Gearadt, recorded in Liber 85 of Conveyances, page 93; deed from Anna Gearadt to Henry T. C. Eeltus, recorded in Liber ISO of Conveyances, page 52; the last will and testament of Henry T. C. Feltus, recorded in the surrogate’s office, in Liber 62, page 372; letters testamentary and deed of executors, recorded in Liber 328 of Conveyances, 570, to Jacob Lorillard, conveying the same property ; last will and testament of Jacob Lorillard, recorded in the surrogate’s office in Liber 79 of Wills, page 104; deed of Margaret Anna Lorillard, recorded in Liber 447 of Conveyances, page 574, to Jacob Lorillard, Jr., and others; letters testamentary on the estate of Margaret Anna Lorillard, issued to Albon P. Man, dated December 3,1846 ; deed recorded in Liber 486, page 38; deed of partition recorded in Liber 488 of Conveyances, page 245, deed from Thomas Ward to the plaintiff.

“ The deed from Isaac Stoughtenburgh, Liber 54, page 348, to John McKesson, conveys a portion of the land designated on diagram No. 14 of Hoffman (supra), as E. Bowery, No. 5, the description being “ bounded westerly by the Bowery Lane,” etc. The foregoing chain of title conveys the same property down to the plaintiff’s grantors Thomas Ward and Margaret H. his wife, except that the description in deed of partition (supra), Liber 4S8, page 245, is as follows: Bounded westerly in front by the Bowery * * * containing in width twenty-four feet five inches in front, and twenty feet eight inches in the rear, and in length on the north side one hundred and six feet six inches, and on the south side one hundred and eleven feet, be the said several dimensions more or less.” Also put in evidence terms of capitulations between the British and the Dutch government in 1664, which appear in Hoffman’s Estates, etc., of the Corporation of New York (vol. 1, pp. 19 and 333). Also put in evidence the treaty of Breda, 1674, by which the terms of that capitulation were affirmed. Also put in evidence patent from the British Government to the duke of York. Also put in evidence the Dongan Charter of 1686, and the Montgomerie Charter of 1730. And thereupon, for the purposes of the following motions, the defendants rested their case.

And this “ memorandum,” so-called, was also placed before the court, as appears by the record.

■ Memorandum on treaties bearing upon the surrender of the Province of the New Netherlands to England.

The first document we meet is the articles of capitulation concluded on August 27, 1664, between the English government and Dutch authorities found in Colonial Documents 2, page 250. Article 1 provides that the States General or West India Company shall freely enjoy all farms and houses (except such as are in the forts), and that within six months they shall have full liberty to transport all arms and ammunition or else they shall be paid for them. Article- 2 provides that all public houses shall continue for the use for which they are now used. Article 3 provides that all people shall continue free denizens and enjoy their lands, houses, goods and ships wheresoever they are within this country, and dispose of them as they please. Article 4 gives liberty to the citizens to remove themselves from the country. Article 5 guarantees free transportation to England, if so desired. Article 6 and 7 provide that intercourse and emigration between Holland and the colony shall be free. Article 8 guarantees liberty of conscience. Article 9 provides against Dutchmen being pressed in any war whatever. Article 10 provides that no soldiers shall be quartered on the inhabitants without compensation. Article 11 provides that tbe Dutch, here shall enjoy their own customs concerning their inheritances. Article 12 provides for the keeping of public documents by those in whose hands they are now. Article 13 provides that no judgment that has passed any judicate here shall be called in question, but an appeal is reserved to the State’s general. Article 14 provides for the giving of passports. Article 15 provides that any public debt that has been incurred shall be paid. Article 16 provides that inferior magistrates shall be kept in office until new ones are elected. Article 17 provides that the Dutch law shall apply to all transactions entered into prior to this date. Article 18 provides for the continuation of duties under certain circumstances. Article 19 provides that the military shall march out with drums beating. Article 20 provides that if orders should come to redeliver the colony, it shall be done immediately. Article 21 provides that deputies are to be chosen by the- town of Manhattan. Article 22 provides that those who have any property or any houses in the fort shall be allowed to slight the fortifications, and then shall enjoy all their houses as all people do where there is no fort. Article 23 provides for safe conduct to all soldiers who may want to go to Holland. The text of the treaty of Breda in the original Latin is to be found in Dumont Corps Diplomatique, volume 7, page 44. The date is 21-31 July, 1667.

The third section, after stating that all quarrels should be forgotten, goes on: “ In order that this peace may rest on a firm foundation, and from this day every occasion of contention be removed, it is further agreed that each of the high contracting parties shall hold and possess with full right of sovereignty, property and possession (cum plena/rio, jure summi imperii, proprietatis etpossessionis) all lands, islands, cities, forts, places and colonies which such party may have taken from the other jrarty by force and arms, or in any other way, either during the war or at any other time, in such mode and manner as it occupied -and possessed them on the 10-20 May last, none of these places being excepted.”

When, afterwards, another war broke out between England and Holland, and the colony of New Netherlands had been reconquered by the Dutch, it was stipulated by the treaty, which put an end to the war, that the colony should be surrendered to England. This was done by virtue of a general clause of the treaty of Westminster. (Dumont Corps Diplomatique, vol. 7, p. 253, 9-19 Feb., 1674.)

The sixth clause of this treaty reads: “ It is agreed and understood that all places, islands, cities, harbors, castles or forts taken by one of the contracting parties from the other from the time that the late unfortunate war broke out, either in Europe or elsewhere, up to the time above mentioned for the cessation of hostilities, sluiil be surrendered to their former lord and owner • in the condition in which they shall be when this peace is concluded.”

The seventh clause is as follows: “ It is further agreed that the treaty of Breda concluded in the year 166'T, and also all other treaties confirmed by the said treaty, be renewed and remain in full force in so far as they are not in contradiction with the present treaty.” (The only treaty referred to in the treaty of Breda was a treaty of 1662.)

Shortly after the conclusion of the treaty, the States general; on the 16th of April, 1674, passed a resolution requesting the king of England “ that he will allow the inhabitants of New Netherlands aforesaid, the enjoyment of their lands, bouweries and all their goods and rights which they possess in that country, or with the same right, privilege and freedom as the inhabitants above mentioned enjoyed previous to the aforesaid war.” (2 Colonial Documents, 545.)

The testimony being thus closed, defendant’s counsel moved to dismiss the complaint upon the following grounds.

• 1. That plaintiff has failed to' prove facts sufficient to constitute a case.

2. That the plaintiff has failed to prove that he has or that there is appurtenant to his lot, any easement to light, air or access, or any property right in the street called Bowery; or that there is any right or easement to use the land forming the bed of that street, peculiar to himself or his lot, other than those he has a right to enjoy as one of the public.

.3. That plaintiff has failed to prove that any property of his has been taken by defendant, by the erection or maintenance of the structure of the elevated road in said street, or the operation of trains thereon, and that there is no complaint or evidence of negligence on the part of the defendant.

4. That it appears that the land forming the bed of the Bowery in front of plaintiff’s premises is owned by the State or city of New York, in fee, and free from any covenant or trust for the benefit of the abutting owner; that the State or city has, through the treaties, charters and conveyances in evidence acquired the absolute title to said land originally vested in the Dutch government, which, by Dutch law, was free from any right or easement or residuary estate in the owner of the land abutting upon the street.

5. That plaintiff has not alleged ownership of any land forming the bed of the street, but has alleged the existence of an easement over said land, which precludes the idea of ownership of said land; that he has failed to prove the ownership of any land in the street, as his deed, taken in connection with the actual measurement of his lot, only carries title to the easterly side of Bowery, and that merely as an owner of abutting land, plaintiff has no property in the street.

6. That it appears from the pleadings and proof that the defendant has legislative authority and municipal consent to the construction and operation of its railroad through the Bowery past plaintiff’s premises; that as no property of plaintiff has been taken and no damage been done by negligence, defendant cannot be held responsible for damage or injury (if any) inflicted upon plaintiff, incidental to the construction and operation of the road.

(Motion to dismiss complaint granted and plaintiff excepted. Plaintiff’s counsel then asked the court for permission to go to- the jury on the facts of the case, but this was refused, and the plaintiff excepted.)

The defendant’s counsel, as his proofs and motion to dismiss foreshadowed, contends that, prior to 1664, the land forming the bed of the street in front of the locus in quo was owned absolutely by the Dutch government, was subject to the laws of that government in determining the rights of abutting owners, and being thus controlled, such owners had no right to the soil of the street, highway or road, either during its use or upon its discontinuance, except the right of passage, and, therefore, presented no existing right of easement or other legal element which had been invaded or disturbed.

They fortify this position by elaborate briefs, historically and legally replete, and display great research, the result no doubt of great industry, patience and devotion. The contention against the plaintiffs is, therefore, fully and ably presented, and it may be that, notwithstanding the long period that has elapsed since our Dutch ancestors surrendered the possession of this island, whether it had been rightfully or wrongfully obtained, their laws still prevail to the detriment of its citizens who reside here, and who are supposed to possess an absolute right to those incidents of ownership and possession along the line of a public thoroughfare, which are the enjoyment of light, air and access; and it matters not whether these elements be called easements or appurtenances, rights or incidents.

The question, however, evolved from the documents, treaties, charters and laws arrayed against the plaintiff’s right of action has been recently examined and determined against the defendant by the Superior Court of this city in the Case of Mortimer v. New York Elevated Railway Company (6 N. Y. Supplement, 808), and in which comprehensive and satisfactory opinions were delivered by Justices Truax and Freedman. The subjects embraced, indeed involved, in the ancient history of this- island and its owners, by right of discovery or conquest, are very attractive and naturally excite the desire, if not the ambition, to give them exhaustive exposition, even though it have been done by others, but, nevertheless, the attraction will be resisted, and reliance, as already suggested, be placed upon the opinions mentioned. They might be enlarged, although not improved, and the conclusions arrived at further 'sustained by discussion, but this is not deemed necessary. It is thought proper, however, to say that the right of the adjacent owner to the advantages of a highway, whilst it is continued as such, do not appear to have been questioned. The absolute ownership even of the soil, though it be vested in the sovereign power, and revert to it when the highway is closed, does not destroy the right to the enjoyment suggested of light and air and access, and particularly as the long and uninterrupted user of the street has deprived (it may be) even the legislature of the State of the power of withdrawing it from that use. On that subject the remarks of Judge Andrews, in the case of Mahady v. The Bushwick Railroad Company (91 N. Y., 153), are appropriate, namely: “ The plaintiff, though an abutting owner simply, the fee of the street being in the city, was entitled to the use of the street, and neither the legislature nor the city could devote it to purposes inconsistent with street uses, without compensation, according to the principle of Story v. The Elevated Railroad Company (90 N. Y., 122), recently decided.”

The case of Dunham v. Williams (37 N. Y., 251), is not in conflict with this suggestion, for the reason that there the claim was to the center of an abandoned road-bed, a claim to the ownership thereof. The highway, it was said in that case, was ancient and was laid out when New York was a province of the States general, and subject to the dominion and laws of the Dutch government, which did not permit any person to claim a present or reversionary title to the soil, for the reason that he was not the owner of the lands through which it was laid. Nor is it in conflict with anything decided in Wetmore v. Story (22 Barb., 440.)

Assuming, therefore, that the doctrines of the civil law were controlling and that the land or the soil of the highway belonged to the sovereign power and reverted to it when the highway was abandoned or closed, nevertheless, while open, the public, including, of course, the adjacent owners, were entitled to all the advantages secured by its existence. Some of these already suggested were light and air, which were recognized by the principles of the civil law as belonging so much in common to the whole society of mankind that no one person can make himself master of them, or deprive others of the use of them. (1 Strahan’s Civil Law [translated from Domat], § 115.) And, further, that rivers, the banks of rivers and highways are things public, the use of which is common to all persons according to the respective laws of comities, the sovereign power regulating the use of them. (Id, § 116.) There are things common to every one (res communes), as air, flowing water, the open sea, the sea shoi’e. These things were not appropriated even by the State. (Amos’ History of the Civil Law of Rome, 124.) The adjacent owner gives a consideration for these benefits of light, air and access in the payment of the taxes imposed upon his land, and which are employed in part, at least, in meeting the expenses of the pavement of the street in front of his land and such repairs as are needed — taxes with which it is legally and properly burdened by municipal authority conferred by legislative action.

These benefits, thus paid for, could not, under any system of government, less than a despotism, be denied to the adjacent owner. Nothing bearing directly upon this precise question, it is admitted, has been found in the doctrines of the civil law, though they may exist. It cannot be, however, that these rights can be swept away by the asserted supremacy of the sovereign power over the bed of a highway. This suggestion of the right to the enjoyment of the street, as such, while open, is predicate of the assumed domination of the civil law in this colony in earlier days, which was denied in a well-considered opinion, though a dissenting one, on the ground that neither Great Britain nor the colonial government ever claimed this province by right of conquest. It was claimed by right of discovery, not as a conquered country, and no part of the civil law except that which was derived from England has ever been in force in this colony. The guaranty to the Dutch settlers of the peaceable enjoyment of their possessions did not alter the nature of the British claim to the country. (Canal Comrs. v. People, 5 Wend., 445, opinion of the chancellor.)

The judgment should, for these reasons, be reversed and a new trial ordered, with costs to abide the event.

Daniels, J., concurred.

Judgment reversed and new trial ordered, with costs to abide the event.


source: Caselaw Access Project

author: Yan Brunt, P. J.:

license: Public Domain

text:
    ARTHUR FURBER, Appellant, v. ALEXANDER L. McCARTHY and WILLIAM C. SMITH, Respondents.

      Counter-claim — action on am undertalcing, given to procure am, arrest, is not an action on contract.

    An undertaking, executed in the form required by the statute, on an application to obtain an order of arrest, does not create a contract obligation, and an action, brought for the recovery of damages thereon, is not an action upon contract to which a liability existing upon another contract can be interposed as a counter-claim.
    Appeal by the plaintiff from judgment, entered in the office of the clerk of the county of New York, March 26,1888, dismissing the complaint after a trial by the court without a jury.

      Arthur Furber, appellant, in person.

      F. P. Johnson, for the respondents.
   Yan Brunt, P. J.:

The facts are as follows: In February, 1884, one De Berg gave his note of $261.25, for value, to the firm of Sbufeldt & Go., payable at four months after date, and which lias never been paid. Subsequently Sbufeldt & Go. sued De Berg for damages because of false representations. De Berg was arrested in that action, and, for tbe purpose of obtaining tbe order of arrest, Sbufeldt & Co. procured tbe defendants herein to execute an undertaking in tbe form required by law. The action was tried in June, 1885, and tbe defendant was successful, and on June 6, 1885, a judgment was entered in bis favor for $122.45 costs. On June eighth Sbufeldt & Co. assigned and transferred said note to tbe defendants. Other costs were awarded in tbe action, amounting to ninety-four dollars and ninety-eight cents. In November, 1885, De Berg assigned tbe said undertaking, and tbe cause of action, which bad arisen thereunder, to tbe plaintiff herein. On November 24, 1885, Sbufeldt & Co. paid said two bills of costs to De Berg’s attorney, and tbe judgment therefor was satisfied. De Berg became insolvent before tbe maturity of tbe note, and is still so insolvent. Tbe plaintiff bad knowledge of tbe existence of tbe note, and that it was unpaid, but be bad no knowledge, nor bad Do Berg, of tbe transfer of said note to tbe defendants until service of tbe answer in this action.

Tbe plaintiff, as assignee of tbe said undertaking, brought bis action to recover thereon from the defendants, tbe obligors in tbe undertaking. Tbe defendants sought to counter-claim tbe note, which was allowed by tbe court, and from tbe judgment thereupon entered this aj^peal is taken. Tbe sole question involved upon this appeal is whether tbe defendants could counter-claim this note to tbe liability which bad arisen upon tbe undertaking. The solution of this question seems to depend upon tbe question as to whether tbe undertaking was a contract or not. . That it was not a contract seems to be apparent when we consider what are tbe elements necessary to constitute a contract. A contract is defined to be “ a deliberate engagement between competent parties upon a legal consideration, to do, or to abstain from doing, some act.”

The undertaking in question is not a contract because it is unilateral and the party for whose benefit it was given had no volition in the matter. It is merely a statutory obligation, having no consideration to support it, the only obligation arising under it being because of the provision of the statute. De Berg was not a party to it, and in no way consented to it. The undertaking is a statutory indemnity in the nature of a penalty, which the obligees in the undertaking incur, because of the wrongful act of the parties for whom they have become the sureties. The case seems to come distinctly within the principles laid down in the case of McCoun v. New York Central Railroad Company (50 N. Y., 176), where a contract was defined to be “ a drawing together of minds until they meet, and an agreement is made to do or not to do some particular thing.”

The court also held that “ a statutory liability wants all the elements of a contract, consideration, mutuality, as well as the assent of the party.” It seems to be reasonably clear that the undertaking in question not being a contract, an action upon it is not an action upon contract to which a liability upon another contract can be set up as a counter-claim.

The judgment appealed from should be reversed and a new trial ordered, with costs to the appellant to abide final event.

Brady and Daniels, JJ., concurred.

Judgment reversed and new trial ordered, with costs to the appellant to abide final event.


author: Martin, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. PALMER M. WOOD, Appellant.

      Reference — ea/nnot be compelled, in an action against a public officer, undsr sections 1969, etc., of the Oode of Oiml Procedure.

    In an action brought by the people, in pursuance of the provisions of article 4 of title 1 of chapter 16 of the Oode of Civil Procedure, to recover several sums of money alleged to have been wrongfully and illegally obtained by the defendant from the county clerk of I-Ierkimer county, it was alleged in the complaint that the defendant was county clerk of Herkimer county, and had for several years made out and presented to the board of supervisors his accounts and claims for alleged services and money expended for the county, which were audited an<J allowed by the said board of supervisors; that the sums allowed were received by the defendant from the treasurer of the county; that each of the said claims so presented was to a large extent illegal, false, fictitious and fraudulent, in excess of the fees and proper charges allowed by law, and that such board had no power or authority to audit the same, and that the defendant had not restored any part of the money so received by him, and was justly indebted to the plaintiff therefor.
    Upon an appeal from an order directing a reference of the issues:

      Held, that a claim that this was an action on contract and, therefore, referable, could not be sustained.
    That the plaintiff’s rights of recovery in this action was not based upon any contract, either express or implied, but was founded upon the right given by the statute to recover from the defendant for the wrongful appropriation of moneys to which he was not entitled.
    That the action was one sounding in tort, and, therefore, the court was not authorized to compel a reference.

      Townsend v. Hendricks (40 How., 143-162) followed; Town of Westchester v. Henderson (24 Weekly Dig., 237); Silver Mining Company v. Knowlton (6 N. Y. St. Rep., 526); People v. Peck (57 How., 315) and Ma/yor v. Genet (67 Barb., 275) distinguished.
    That the character of the action must he determined by the complaint, and that the answer could not change it.
    That as there was no account between the parties, in the ordinary acceptation of that term, the action could not be referred, although there might be many items of damages.
    Cases on this subject collated by Martin, J.
    Appear by tbe defendant from an order made at tbe Herkimer Circuit and Special Term, referring the action to a referee to hear and determine tbe same, which order was entered in tbe office of tbe clerk of tbe county of Herkimer on tbe 15th day of April, 1889.

      A. M. Mills, for tbe appellant.

      Thomas Michmxlson, for the respondent.
   Martin, P. J.:

Tbe court had no authority to compel a reference of this action unless it was founded on contract and involved tbe examination of a long account. (Townsend v. Hendricks, 40 How., 143, 162.) Thus, at tbe outset, we are presented with tbe question whether this action was founded on contract, and if so, whether it required tbe examination of a long account. Tbe character of tbe action in this respect must be determined by tbe complaint, and tbe answer cannot change it. (Untermyer v. Beinhauer, 105 N. Y., 521.)

This action was brought by the people, under and in pursuance of tbe provisions of article 4 of title 1 of chapter 16 of tbe Code of Civil Procedure, to recover several sums of money alleged to have been wrongfully and illegally obtained by tbe defendant from tbe treasurer of Herkimer county. Tbe allegations of tbe complaint were, in substance, that tbe defendant was county clerk of Herkimer county; that be performed services and expended money for that county, for which be was entitled to reimbursement from tbe county, in tbe manner provided by law, through tbe audit of the board of Supervisors; that, in each of tbe years, 1880, 1881,1882,1883,1884, 1885 and 1886, be made out and presented to tbe board bis account and claims for alleged services and money expended for the county: that each of such bills was audited and allowed by the board of supervisors at the defendant’s request; that, for the sums so allowed each. year, the defendant received one or more orders upon the treasurer of the county, which were paid out of the money of the county; that each of the claims or accounts so presented was to a large extent illegal, false, fictitious and fraudulent, in excess of the legal fees and proper charges allowed by law, and that said board had no authority or power to audit the same; that each of the many charges or items set forth in the complaint was either excessive or wholly illegal; that the amount thereof was illegally audited by such board, and was illegally paid to and received by the defendant on such bills or claims; that he had no lawful right to receive or retain the same or to convert it to his own use ; that he has not restored any part of the moneys so illegally received by him, and is justly indebted to plaintiff therefor.

The respondent contends that this was an action on contract and, therefore, referable. It is not pretended that there was any express contract between the parties, or between the appellant and the county of Heildmer, but the claim is that there was an implied contract on the defendant’s part to refund the moneys which were Illegally and wrongfully obtained by him, and that this was an action on such implied contract. We cannot assent to this claim. The plaintiff’s right of recovery in this action is not based upon any contract, either express or implied, but is founded upon a right given by statute to recover for the defendant’s wrongful appropriation of moneys to which he was not entitled. We think it is quite manifest that the causes of action set out in the complaint were not on contract. The action was one sounding in tort, and, therefore, the court was not authorized to compel a reference. (Townsend v. Hendricks, supra; Wickham v. Frazee, 13 Hun, 431; Willard v. Doran & Wright Co., 48 id., 402.)

The eases cited by the respondent, where the question of a compulsory reference was involved, are not, wo think, so essentially in conflict with the views above expressed as to justify us in holding that this is an action on contract. In the case of the Town of Westchester v. Henderson (24 Weekly Dig., 237), which was an action by the town against its supervisor for moneys of the town received by him as such supervisor, it was held that it was an action on contract and might be referred. In that case the moneys sought to be recovered were received by the defendant as the moneys of the town, and it was clearly intended by the parties that they should be paid out for or returned to the town. In such a case a-contract to pay out or return such moneys may well be implied. In the Silver Mining Company v. Knowlton (6 N. Y. St. Rep., 526) it was held that “ when it appears from the action that the defendant is rightfully in possession of money or property, either in a fiduciary capacity or otherwise, in accord with the provisions of an agreement, contract or arrangement made with the plaintiff, and an action is brought for an accounting,” a reference may be ordered, although it is alleged that the defendant has converted or applied such moneys to his own use. While the cases of the People v. Peck (57 How., 315) and Mayor v. Genet (67 Barb., 275) more nearly sustain the contention of the respondent than any other to which our attention has been called, still, in the Peck case, the services performed and material furnished were performed and furnished under and in pursuance of two written contracts between .the parties, and the issue in the case was whether, under those contracts, there was due the defendant the amount that had been paid him, and the Special Term held that the action was upon contract and ordered a reference therein. In the case at bar there was no such contract. In the Genet case a reference was denied, and the order was upheld on the ground that it was discretionary. Therefore, the remarks of the judge, as to the referability of the action, were clearly unnecessary to the decision of the case. Besides, the question whether the action was on contract was not, in fact, decided, and the account involved was one existing between the parties.

We have examined the other cases cited by the respondent as bearing upon this question, but do not think they sustain the doctrine contended for. We are of the opinion that, both upon principle and authority, it should be held that this is an action sounding in tort, and, therefore, not referable. The respondent has also cited numerous eases where the actions were on contract, but where there were insufficient allegations of fraud or conversion in the pleadings, and it was held that, notwithstanding such allegations, the actions were on contract. We do not think those authorities have any important bearing upon tbe question here, as the complaint in this action shows that the action is one sounding in tort, independent of the allegation that the defendant’s bills were fraudulent.

Moreover, there was no account between the parties in the ordinary acceptation of that term. The action was for money illegally and wrongfully obtained. Until the appellant has obtained the money no liability on his part existed. While it may be necessary on the trial to resort to the bills presented by the defendant to establish the amount of damages or loss sustained, still, the defendant’s bills do not constitute an account between the parties. “It has repeatedly been held that, where there is no account between the parties, in the ordinary acceptation of the term, the cause cannot be referred, although there may be many items of damage. This rule has been applied in actions on policies of insurance where there were many items of loss.” (Untermyer v. Beinhauer, 105 N. Y., 524; Camp v. Ingersoll et al., 86 id. 433; Claflin et al. v. Drake, 38 Hun, 144; Hyatt et al. v. Roach, 52 How., 115; Kain v. Delano, 11 Abb. [N. S.], 36; Read v. Lozin, 31 Hun, 286.)

As was said by Clerke, J., in Sharp v. Mayor (18 How. Pr., 216), the constitutional right of “ trial by jury in all cases in which it has been heretofore used,” cannot be too faithfully preserved; and compulsory references should be rigorously confined to cases involving the examination of a bona fide account in action on contract. Here is an action brought by the people charging the defendant with the misapprojniation of public funds, with having charged illegal fees, acts involving great moral turpitude, and which, if committed, constitute a crime. He asks that the question, which is of such vital importance to him, shall be tried before a jury. We think that right should not have been denied him.

Order reversed, with ten dollars costs and disbursements.

Merwin, J., concurred, on ground that the action was not on contract. Parker J., concurred

Order reversed, with ten dollars costs and disbursements.


author: Martin, J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. A. E. CARR. E. A. ANDRUS, Complainant and Appellant.

      Review of a judgment of a County Cowt, dismissing an appeal from a judgment for costs, rendered by the Special Sessions against a complainant in a prosecution for petit la/rceny.

    Upon the trial of a prisoner before a Court of Special Sessions, upon a charge of petit larceny, a verdict was rendered of “not guilty.” ^ The jury also found “ that the prosecution was malicious.” The court having ordered the complainant to pay the costs of the proceedings, and he having failed to do so, a judgment. was entered against him for such costs, from which judgment' he appealed to the County Court where the appeal was dismissed.
    The only question presented on the appeal was whether the appellant had a right to appeal to the County Court from such judgment.
    Held, that sections 3044 and 3045 of the Code of Civil Procedure only provided for the review of a judgment rendered by a justice of the peace in a civil action, and that the provisions of the said sections were not applicable to this case.
    Appeal by defendant E. A. Andrus from a judgment of tbe Otsego County Court, entered in the office of the cleric of the county of Otsego, on the 30th day of July, 1889, dismissing an appeal taken by him from a judgment of a Court of Special Sessions in Otsego county.

      W. J. Palmer, for the appellant.

      diaries T. Brewer, for the respondent.
   Martin, J.:

The defendant was arrested for petit larceny, on the complaint of the appellant, and tried before a Court of Special Sessions in Otsego county. A jury was called by the defendant. The trial resulted in a verdict of “not guilty ” The jury also found “that the prosecution was malicious.” The court thereupon ordered the appellant, who was the prosecutor, to pay the costs of the proceedings, which amounted to $12.50. The costs were not paid, nor did the appellant give security to pay the same to the county within thirty days. The court then entered judgment against the appellant for the amount of such costs. From that judgment the appellant appealed to the Otsego County Court, where the appeal was dismissed. An appeal was then taken to this court from the order of the County Court dismissing such appeal.

The sole question presented on this appeal is, whether the appellant had a right of appeal to the County Court from the judgment thus entered. That the right of appeal in such a case is not given by section 749 of the Code of Criminal Procedure was held in People v. Norton (33 Hun, 277; 2 N. Y. Crim. R., 322), and is admitted by the appellant.

The appellant claims that the right is given by sections 3044 and 3045 of the Code of Civil Procedure. These sections provide that the only mode of reviewing a judgment rendered by a justice of the peace i/n a civil action is by appeal to the County Court. It will be observed that the right of appeal there given is limited to an appeal from a judgment rendered in a civil action, and no provision is made for an appeal in any other. Therefore, unless the judgment sought to be reviewed can properly be said to have been rendered in a civil action, it is quite obvious that no authority for this appeal can be found in the sections mentioned. Thus the question is presented whether the judgment entered by the court of Special Sessions in this case was a judgment rendered in a civil action.

That the trial, verdict and order to pay costs were had, rendered and made in a criminal, and not in a civil, action is not denied. But the appellant’s claim is, that the judgment was “ a civil judgment and must be enforced in all respects as if rendered in a civil action.” While it must be admitted that such a judgment, wdien rendered, is to be enforced in the same manner as a judgment rendered by a Justice’s Court, yet, it does not follow that the judgment is rendered in a civil action, nor that it falls within the provisions of the Code of Civil Procedure relating to appeals in civil actions. That this was a criminal action there can be no doubt, and we know of no process by which such an action could be transformed into a civil action. The right given by the Code of Criminal Procedure to impose costs upon the prosecutor, where the prosecution is found to have been malicious, is a mere incident to the action, and the proceeding to enforce their collection is a proceeding in the action. The judgment is to be entered by the court in which the action is tried, and not by the justice acting in his capacity as a civil magistrate. (Code Grim. Pro., § 720.) It was not intended that the provisions of section 720 should have the effect to change the action from a criminal to a civil action, but the purpose of that section was, to prescribe a mode of procedure to be adopted in a criminal action for the collection of such costs when imposed.

"We do not think a judgment rendered in pursuance of sections 719 and 720 of the Code of Criminal Procedure can be held to he a judgment in a civil action. Nor do we think the provisions of sections 3044 and 3045 of the Code of Civil Procedure applicable to such a case. But it is claimed that unless this appeal is sustained, there can be no review of the judgment appealed from. If this were admitted, and if it were conceded that a right to review such a judgment should exist, still, we would not be justified in holding that a right of appeal from a judgment rendered in a criminal action is given by those sections of the Code of Civil Procedure. If the law is defective, its defects should be supplied by legislative rather than judicial action.

As was said by Smith, P. J., in People v. Norton, (supra),It may well be that the legislature intended to provide no appeal from judgments of this nature, as they do not involve the merits of the prosecution, and the amount of costs chargeable upon a prosecutor in a Court of Special Sessions can never be large.”

We think the County Court properly dismissed the appeal in this case, and that the order appealed from should be affirmed.

Hardin, P. J., and Merwin, J., concurred.

Order affirmed.


author: Martin, J.: Martin, J.:

text:
    [ No. 1.]
    [ No. 2.]
    JOSEPH H. BECKWITH, an Infant, by JOHN H. BECKWITH, his Guardian, Respondent, v. NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant. JOHN H. BECKWITH, as Administrator, etc., of WALTER BECKWITH, Deceased, Respondent, v. NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

      Negligence — failure to see an approaching train — what circumstances tending to explain such, failure do not justify the court in taking the case from the jv/ry — absence of contributory negligence.

    An action was brought against a railroad company to recover damages resulting from an accident which occurred at the intersection of its tracks with Peterboro street, in the village of Canastota. There were five tracks, consisting of a side track on the north, and four other tracks, numbered from the north, 4, 3, 2, 1, which were straight for about one mile and a half west of this crossing. The plaintiff, who lived near and was familiar with the crossing, at ten o’clock, on the evening of the day on which the accident occurred, approached, with his brother, the crossing from the north, and stopped about twenty feet from track No. 4, while a train was passing to the west on track No. 3. When that train had passed they walked onto track No. 4 and were struck by an east-bound train. There was a head-light on the engine and the train was moving about twelve miles an hour. From a point in the center of the side track the view west on track No. 4 was unobstructed for the distance of 635 feet; from the point between the side track and track No. 4 it was unobstructed for about two miles.
    On the trial the defendant moved for a nonsuit on the ground that the evidence was insufficient to authorize the submission of the question of the plaintiff’s negligence and the defendant’s freedom from contributory negligence to the jury. The motion was denied, an exception was taken, and the plaintiff obtained a verdict.
    The plaintiff testified that he looked both ways before he attempted to cross the defendant’s track, and that he neither saw nor heard the approaching train. The evidence showed that the night was dark and hazy; that an engine with a head-light stood near the crossing; that there were several switch-lights in the vicinity; that the train that had passed was making considerable noise, and that there were several lights in the rear of the caboose, and was conflicting upon the question whether the engine whistle was blown and the bell rung.

      Held, that, upon this evidence, the court could not have properly held, as a matter of law, that the plaintiff’s failure to see and avoid the train was such contributory negligence on his part as would release the defendant from its liability for negligence.

      How shown where the injured paody has died.

    The evidence and facts in the second above-entitled case were substantially identical with those in the first case of Joseph H. Beckwith, by his guardian, except that in this second case the plaintiff’s intestate, having been killed, could not testify, and there was, therefore, no direct evidence that the decedent looked or listened before attempting to make this crossing.
    There was, however, proof that the decedent was about thirteen years of age; that he was in company with his elder brother; that his brother looked both ways before attempting to cross; that neither seeing nor hearing the approaching train he told the decedent to “ come on,” and they hurried across.

      Held, that there were facts and circumstances which, at least, tended to show that the accident might have occurred without the negligence of the decedent, and that it was for the jury to say what inferences should be drawn from the facts and circumstances disclosed by the evidence.
    Appeal by tbe defendant, in the first above-entitled action, from a judgment recovered at the Oneida Circuit, which was entered, on the verdict of a jury for $500, in the office of the clerk of Oneida county on the 21st day of March, 1889, and from an order, dated March 15,1889, denying a motion, made by the defendant upon the minutes of the justice presiding at the trial, for a new trial.
    Also, in the second above-entitled action, an appeal by the defendant from a judgment recovered at the Oneida Circuit, on the verdict of a jury for $3,000, which was entered in the office of the clerk of Oneida county on the 21st day of March, 1889, and from an order denying a motion for a new- trial made upon the minutes of the justice presiding at the trial.

      O. J). Prescott, for the appellant.

      8. Cromwell, for the respondent.
   Martin, J.:

On the 25th day of February, 1888, Joseph H. Beckwith was injured by a passing train on the defendant’s road at its intersection with Peterboro street in the village of Oanastota, N. Y. The defendant’s road runs east and west through the village and at right angles with Peterboro street. Its tracks are straight for about a mile and a lialf west of this crossing. There was a side track on the north, and from that direction the defendant’s through tracks were in the following order: First, No. 4; second, No. 3; third, No. 2 ; and fourth, No. 1. South of the defendant’s road was the track of the Elmira, Cortland and Northern Railroad. The plaintiff lived near and was familiar with this crossing.

At about ten o’clock on the evening of this accident, the plaintiff and his brother apj>roached the crossing from the north and stopped about twenty feet from track No. 4, while a train was passing to the west on track No. 3. When that train had passed they walked onto track No. 4 and were struck by an east-bound train. There was a head-light on the engine. The train was moving at about twelve miles an hour. From the center of the side track the view west on track No. 4 was unobstructed for a distance of about six hundred and thirty-five feet. From a point between the side track and track No. 4 it was unobstructed for about two miles. The night was cloudy, hazy and dark. A switch engine, upon which there was a head-light burning, stood on the side track west of and facing the crossing. There were also several switch-lights near. The train going west on track 3 was a long one and made considerable noise.

On the trial the defendant moved for a nonsuit on the ground that the evidence of the defendant’s negligence and plaintiff’s freedom from contributory negligence was insufficient to authorize the submission of those questions to the jury. The motion was denied, and an exception taken. The plaintiff had a verdict. The defendant now asks for a reversal of the judgment and order denying a new trial, on the ground that the court erred in denying its motion for a nonsuit. Thus the question presented for review by this court is, whether there was sufficient evidence of the defendant’s negligence and plaintiff’s freedom from contributory negligence to justify the submission of those questions to the jury.

The negligence imputed to the defendant was, that it failed to sound the whistle or ring the bell upon its engine, as the train approached this crossing. On the trial several witnesses, who were at or near the crossing at the time, testified that no whistle was sounded nor bell rung. The defendant’s witnesses testified that the whistle was blown for the station and the bell was rung for about eighty rods before reaching the crossing. Upon this proof we thinlc the question whether the defendant was negligent in omitting- to ring its bell or sound its whistle was a question of fact, and properly submitted to the jury.

A more difficult question is, whether there was sufficient proof of the plaintiffs freedom from contributory negligence. The burden of showing affirmatively, either by direct evidence or by surrounding circumstances, that the plaintiff was free from contributory negligence was upon the plaintiff. (Tolman v. Syracuse, Binghamton and New York R. R. Co, 98 N. Y., 203.) But where there is any evidence, direct or inferential, of care or caution on the part of the person injured, the question of contributory negligence is for the jury. (Greany v. Long Island R. R. Co., 101 N. Y., 419.) As was said by Huger, Oh. J.: “ The question is, whether the injured party, under all the circumstances of the ease, exercised that degree of care and caution which prudent persons of ordinary intelligence usually exercise under like circumstances. This rule must in all cases, except those marked by gross and inexcusable negligence, render the question involved one of fact for the jury.” (Parsons v. N. Y. C. and H. R. R. R. Co., 113 N. Y., 364.)

In this case the plaintiff testified that he looked both ways before attempting to cross the defendant’s track, that he neither saw nor heard the approaching train. The evidence also discloses that the night was dark and hazy; that an engine with a head-light burning stood near and facing- the crossing; that there were several switch-lights in the neighborhood; that the train that had passed was making considerable noise, and there were several lights on the rear of the caboose. With this proof we do not think the cour-t could have properly held, as a matter of law, that the plaintiff’s failure to see and avoid this train was such contributory negligence on his part as would release the defendant from liability for its negligence. (Greany v. Long Island R. R. Co.; Parsons v. N. Y. C. and H. R. R. R. Co., supra; Sherry v. N. Y. C. and H. R. R. R. Co., 104 N. Y., 652.) We are of the opinion that the defendant’s motion for a nonsuit was properly denied.

We have examined the other exceptions in the case to which our attention has been called, but have found none that require special consideration or that disclose any error that would justify a reversal of the judgment.

Hardin, P. J., and Merwin, J., concurred.

Judgment and order affirmed, with costs.

Case No. 2.

Martin, J.:

The evidence and facts in this case are substantially identical with those in the case of Joseph H. Beckwith, by his guardian, against the defendant, which was submitted at the same time with this case, except tñat in that case the plaintiff testified that he looked both ways before attempting to cross defendant’s tracks, and neither heard nor saw the approaching train, while in this case the plaintiff’s intestate was killed and could not testify. In the case at bar there was no direct evidence that the decedent looked or listened before attempting to make this crossing. There was, however, proof that the decedent was about thirteen years of age; that he was in company with his older brother; that his brother looked both ways before attempting to cross; that not seeing or hearing the approaching train, he told the decedent to “ come on,” and they hurried across.

The only question we need specially consider in this case is, whether, in the absence of direct proof that the decedent looked and listened before attempting to cross defendant’s track, the plaintiff so far failed to show that his intestate was free from contributory negligence as to require the trial court to hold, as a matter of law, that the plaintiff was not entitled to recover.

In Tolman v. Syracuse, Binghamton and New York Railroad Company (98 N. Y., 203), Finch, J., in delivering the opinion of the court in that case, said: “ The burden of establishing affirmatively freedom from contributory negligence, may be successfully borne, though there were no eye-witnesses of the accident, and even although its precise cause and manner of occurrence are unknown. If, in such case, the surrounding facts.and circumstances reasonably indicate or tend to establish that the accident might have occurred without negligence of the deceased, that inference becomes possible, in addition to that which involves a careless or willful disregard of personal safety, and so a question of fact may arise to he solved by a jury, and require a choice between possible but divergent inferences.”

In this case there were facts and circumstances which at least tended to show that the accident might have occurred without the negligence of the decedent; and we think it was for the jury to say what inferences should be drawn from the facts and circumstances disclosed by the evidence. (Newell v. Ryan, 40 Hun, 286, 290; Palmer v. N. Y. C. and H. R. R. R. Co., 112 N. Y., 234, 243.) An examination of the defendant’s exceptions, as to the admission of evidence and to the judge’s charge, has failed to disclose any error which requires a reversal of this judgment or that would seem to require special discussion.

We think the judgment should he affirmed.

Hardin, P. J., and Merwin, J\, concurred.

Judgment and order affirmed with costs.


author: Martin, J.;

text:
    WILLIAM L. FORD, Respondent, v. BINGHAMTON HYDRAULIC POWER COMPANY, Appellant.

      Demwrrer served, by a corporation in an action upon its promissory note — must be accompanied icith a judge’s order directing that the issue be tried — Code of Civil Procedure, see. 1778.
    A domestic corporation made two promissory notes, payable to its own order, which were indorsed for its accommodation by one Ford, who, after notice of their protest for non-payment, took up the notes and brought an action against the corporation to recover the amount thereof.
    The corporation demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action, hut did not serve with the demurrer a copy of an order of a judge directing that the issues raised by the demurrer should he tried. At the expiration of the twenty days after the personal service of the complaint, Ford, .the indorser, entered judgment as in case of default in pleading.
    Upon an appeal from an order denying a motion made by the defendant to set aside and vacate such judgment:
    Held, that the motion was properly denied.

      That the action was against a domestic corporation to recover damages for the non-payment of a promissory note, within the provisions of section 1778 of the Code of Civil Procedure, which, in such case, require that unless “the defendant serves, with a copy of his answer or demurrer, a copy of an order of a judge directing that the issues presented by the pleadings betried, the plaintiff may take judgment, as in case of default in pleading, at the expiratian of twenty days after service of a copy of the complaint.”
    Appeal from an order, made at a Special Term held in Broome county, which was entered in 'the office of the clerk of the county of Broome on the 24th day of October, 1889, denying a motion made by the defendant to set aside and vacate a judgment entered by the plaintiff, under section 1778 of the Code of Civil Procedure, after the defendant had appeared and served a demurrer.

      Oonniff c§ Penrie, for the appellant.

      A. P. Wales, for the respondent.
   Martin, J.;

The appellant, a domestic corporation, made two promissory notes payable to its order, which were indorsed by the respondent for the accommodation of the appellant. When due they were not paid. After protest and notice to respondent of non-payment and protest he paid and took up the notes and brought an action against the appellant to recover the amount thereof. The defendant demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. No copy of au order of a judge directing that the issues raised by the demurrer should be tried was served with such demurrer. At the expiration of twenty days after the personal service of the summons and complaint herein the respondent entered judgment as incase of default in pleading. The appellant then moved, at Special Term, to set aside and vacate such judgment, on the ground that the appellant had no authority to enter it until the issues raised by such demurrer were tried and determined. This motion was dismissed.

Section 1778 of the Code of Civil Procedure provides: “In an action against a foreign or domestic corporation to recover damages for the. non-payment of a promissory note or other evidence of debt, for the absolute payment, of money upon demand or at a particular time * -■ unless the defendant serves with a copy of his answer or demurrer a copy of an order of a judge directing that the issues presented by the pleadings be tried, the plaintiff may take judgment, as in case of default in pleading, at the expiration of twenty days after service of a copy of the complaint, either person" ally with the summons or upon defendant’s attorney, pursuant to a demand therefor.”

The only question presented on this appeal is, whether this was an action to recover damages for the non-payment of a promissory note, or other evidence of debt, for the absolute payment of money, within the intent and purpose of this statute. Where an indorser of a promissory note has paid and taken it up he becomes a holder for value, and may maintain an action to recover the amount of the maker. (2 Daniel on Negotiable Instruments, 219; Kelly v. Burroughs, 102 N. Y., 93.) That an action by such an indorser and holder against the maker is an action to recover damages for the non-payment of a promissory note, and, within the provisions of section 1778, is, we think, quite manifest. Nor do we find anything in the case of the New York Life Insurance Company v. The Universal Life Insurance Company (88 N. Y., 424) in conflict with this conclusion. In that case the action was upon an insurance policy, which was held to be a conditional contract, and not within the provisions of that section.

We do not think the case of Shorer v. Times Printing and Publishing Company (24 N. Y. St. Rep., 868), in principle, like the case at bar. In the Shorer case the action was against a domestic corporation as indorser of a promissory note, and it was held that the contract of indorsement was not an instrument which was of itself evidence of debt; that the indorser’s liability was not absolute, but contingent, requiring proof aliónele the instrument, of presentation, demand, non-payment and notice to show that the contingent liability had become absolute, and hence not within the provisions of section 1778. In the case at bar the contract of the corporation was evidenced by two promissory notes made by it whereby it became absolutely hable for the payment at a particular time of the amounts of money mentioned therein. The liability of the defendant was in no wise a contingent one. It was fixed at the inception of the notes and by the express provisions thereof. No proof dtiwnde the note was required to establish the defendant’s liability, nor to show that it was absolute.

We are of the opinion that this action was against a domestic corporation to recover damages for the non-payment of a promissory note, and that the Special Term properly refused to vacate the judgment entered herein.

The order should be affirmed, with ten dollars costs and disbursements.

LIardin, jP. L, and Merwin, J., concurred.

Order affirmed, with ten dollars costs and disbursements.


text:
    MARY WALL, as Administratrix, etc., of WILLIAM WALL, Deceased, Respondent, v. THE DELAWARE, LACKAWANNA AND WESTERN RAILROAD COMPANY, Appellant.

      Negligence — employment of an engineer who habitually neglects to give notice of the movements of Ms engine — question for the jury.

    In an action brought to recover damages for injuries alleged to have been caused by the defendant’s, a railroad company’s, negligence, it appeared that the plaintiff’s intestate had been for a considerable number of years, and was at the time of his death, in the defendant’s employ; that,-at about half-past five o’clock on the morning of his death, he was engaged in shoveling snow, that had fallen on the previous night, from the defendant’s tracks, at a point where its road crosses Eighth street in the city of Oswego; that it was a stormy, windy, blustering morning, and while the decedent was thus engaged one Michael Shay, who was also in the defendant’s employ and in charge of one of its engines, backed the engine to the place where the decedent was at work and ran over and killed him. There was no light upon the rear of the tender, and nothing was done to indicate the approach of the engine, unless the whistle of the engine was blown which was in dispute. This question, uxion which the testimony of the plaintiff and defendant was in conflict,was submitted to the jury by the trial court with instructions that if the whistle was thus sounded their verdict should be for the defendant. The jury, by their verdict, found for the plaintiff.
    Plaintiff’s evidence tended to show that, during the summer preceding the accident, Shay had on numerous occasions run engines through defendant’s yard, and in and across the streets of Oswego, without giving any notice of their movements. There was also evidence which tended to show that this was known to the train dispatcher and the superintendent of the defendant’s road, and that this course of action, upon Shay’s part, was so frequent that it should have been known to the defendant’s officers if they had properly discharged their duties.

      'Held, that the evidence was sufficient to justify the submission to the jury of the question whether the defendant’s officers, whose duty it was to employ and discharge servants occupying the position held by Shay, knew, or ought to have known, that Shay was thus habitually negligent; that the court committed no error in submitting the question of defendant’s negligence to the jury, and that its finding upon that question should be upheld.

      Coppins v. Neto York Central and Hudson Hirer Railroad Company (48 Hun, 292) followed.
    That the question of decedent’s negligence was, under the evidence in this case, a question of fact for the jury, and that the court properly refused to hold, as a matter of law, that he was guilty of contributory negligence, and that it was for the jury to say what inference should be drawn from the facts disclosed by the evidence.

      Netoell v. Ryan (40 Hun, 286); Palmer v. New York Central and Hudson Hirer Railroad Company (112 N. Y., 234-243) followed.
    Appeal by the defendant from a judgment Recovered on the verdict of a jury for $4,000, at the Oswego Circuit, which was entered in the office of the clerk of the county of Oswego on the 12th day of January, 1889, and also from an order, entered the 9th day of January, 1889, which denied a motion made by the defendant, upon the minutes of the justice presiding at the trial, for a new trial.

      Rhodes, Coon & Iliggvns, for the appellant.

      J. A. Hathway, for the respondent.
   Martin, J.:

This case has been three times tried, and this is the third time that it has been before this court. On the first trial the plaintiff had a-verdict for $2,000. On appeal to this court from the judgment entered thereon, and from an order denying a new trial, the judgment and order were reversed on the ground that the trial court erred in the exclusion of certain evidence offered by the defendant. On the second trial the plaintiff was nonsuited. From the judgment entered thereon the plaintiff appealed, and this court then held that the trial court erred in refusing to permit the plaintiff to prove the previous negligence of Shay in running locomotives in and across the streets in question, and in nonsuiting the plaintiff without permitting her to make that proof. Thus it is seen that the only questions that were determined by this court on the previous appeals related exclusively to the rejection of evidence. Therefore, the appellant’s claim, that the question of its liability in- this- action has been passed, upon by this court, cannot be sustained. On the third and last trial the plaintiff had a verdict for $4,000. A motion was made for a new trial on the minutes of the trial judge and denied. From the judgment entered on such verdict and from the order denying the defendant’s motion for a new trial this appeaL was taken.

The appellant now contends that the evidence was insufficient to justify the submission to the jury of the question of the defendant’s-negligence, or the absence of contributory negligence on the part of the plaintiff’s intestate, and that the trial court erred in not non-suiting the plaintiff. The negligence attributed to the defendant was, that it had and retained in its employ a servant who was habitually negligent in’the performance of his duties;-that the death of the plaintiff’s intestate was caused by the negligent act of such servant, and resulted from the failure of the defendant to-discharge him from its service. Hence the determination of the question of the defendant’s negligence involves the examination of the questions: First, whether the defendant’s servant was negligent; and, if so, second, whether the defendant was negligent in retaining him in its service.

The plaintiff’s intestate was in the defendant’s employ at the time of his death, and had been thus employed for a considerable number of years. At about half-past five o’clock on the morning of his death, January 27, 1885, the decedent was engaged in shoveling snow from the defendant’s track at a point where its road crosses Eighth street, in the city of Oswego, N. T. It was a stormy,, windy, blustering morning, and a deep snow had fallen on the previous night. While the decedent was thus engaged, Michael Shay,, who was in the defendant’s employ and in charge of one of its engines, backed it to the place where the decedent was at work, and the decedent was run over by the engine and killed. There was no light upon the rear of the tender, and nothing was done to indicate the approach of the engine, unless the whistle of the engine was blown.

The plaintiff claims that the whistle was not blown, but that, without any signal or warning whatever, the engine was backed on to the decedent and caused his death. This the defendant denies. The defendant asserts, and has proved by several witnesses who were at or near the place of the accident, tliat the whistle was sounded several times. This question was submitted to the jury by the trial court, with instructions that if the whistle was thus sounded their verdict should be for the defendant. The jury by their verdict have found with the plaintiff; therefore the only question on this branch of the case is, whether there was sufficient evidence that the whistle was not sounded to authorize the court to submit that question to the jury. Several witnesses were called by the plaintiff who were near the place where this accident occurred, and who testified that they did not hear any whistle blown, and each describes his situation at the time and the opportunities he had to hear a whistle if sounded. One also testified that he was listening for the whistle of an engine, and that he heard a whistle that he supposed was on an engine on the Rome, Watertown and Ogdensburg Railroad, and that he did not hear a whistle on the defendant’s road that morning. On the other hand, the witnesses called by the defendant testified positively that the whistle upon the engine in question was sounded as it approached the place where the 'decedent was at work. If the witnesses called by the defendant, several of whom were in its employ, were to be believed, the whistle was blown. But the question of their credibility was for the jury. Therefore, if the testimony of the witnesses called by the plaintiff presented sufficient evidence upon this question to justify the jury in finding that the whistle was not blown, then the question was for the jury and its finding should not be disturbed. A careful examination of the evidence has led us to the conclusion that while the evidence of the plaintiff upon that question was not very conclusive it was sufficient to present a question for the jury within the case of Culhane v. New York Central and Hudson River Railroad Company (60 N. Y., 133), and kindred cases, as modified by the principle of the decision in the case of Greany v. Long Island Railroad Company (101 N. Y., 419, 423).

It must, therefore, be assumed, in the further discussion of this case, that Shay ran the engine, which he had in charge, over the place where the decedent was at work when killed, without sounding the whistle, or doing anything to apprise the decedent of its approach, and that he was negligent in so doing. But, assuming such negligence on the part of Shay, yet the defendant was not liable unless it was negligent, as the decedent and Shay were co-employees. A master is not liable to his servant for the negligence of a fellow-servant, unless the master has been guilty of negligence in the selection óf such fellow-servant, or in retaining him in his employ after he has become unfit for the service to which he was assigned.

This leads us to the question of the defendant’s negligence in employing or retaining Shay in its employ. We do not think the evidence sufficient to justify the conclusion that Shay was incompetent to discharge the duties assigned to him by the defendant, unless such incompetency arose from his habitual negligence and carelessness in the performance of his duties. It was the duty of the defendant to exercise reasonable and ordinary care and diligence in providing proper and fit servants to manage and conduct its affairs. If it did not exercise such care, bxit negligently or knowingly employed a servant who was unfit to perform the duties assigned to him by reason of his habits of negligence, or failed to dismiss him after it had knowledge of his habitual negligence, or after it might have acquired such knowledge by the exercise of reasonable care and diligence, it was hable to respond in damages to its other employees engaged in the same service for any injury sustained by reason of such unfitness. The care to be exercised by a master in the selection of the servants employed and retained by him in his service is such as is reasonable and proper, in view of the nature and character of the business and the consequences likely to flow from a negligent or unskillful execution of the work. The law, however, presumes' that that duty was performed ;■ and before the plaintiff could recover in this action she was bound to prove not only that Shay had previously been negligent in the discharge of his duties, but that the defendant knew of his negligence, or was negligent in not ascertaining it. (Cahill v. Hilton et al., 106 N. Y., 512.)

The plaintiff’s evidence tends to show that during the summer preceding the accident Shay had, on numerous occasions,. run engines through the defendant’s yard and in and across the streets of Oswego without giving any notice of their movements. There is also evidence which tends to show that this was known to the train dispatcher and superintendent of the defendant’s road, and that this course of action upon his part was so frequent and continuous that it should have been known to the defendant’s officers if they had properly discharged their duty. We think that the evidence was sufficient to justify the submission to the jury of the question, whether the defendant’s officers, whose duty it was to employ and discharge servants occupying the position held by Shay, knew or ought to have known, that Shay was thus habitually negligent; that the court committed no error in submitting the question of defendant’s negligence to the jury, and that its finding upon that question should be upheld. (Coppins v. N. Y. C. and H. R. R. R. Co., 48 Hun, 292.)

This brings us to the consideration of the question of contributory negligence. The appellant contends that the burden of showing affirmatively that the decedent was free from any negligence which contributed-to his injury was upon the plaintiff, and that she has failed to sufficiently establish that fact to sustain the recovery in this action. The burden of showing affirmatively, either by direct evidence or by surrounding circumstances, that the decedent was free from contributory negligence was upon the plaintiff. But, as was said by Finch, J., in Tolman v. Syracuse, Binghamton and New York Railroad Company (98 N. Y., 203): The burden of establishing affirmatively freedom from contributory negligence may be successfully borne, though there were no eye-witnesses of the accident, and even although its precise cause and manner of occurrence are unknown. If, in such case, the surrounding facts and circumstances reasonably indicate or tend to establish that the accident might have occurred without negligence of the deceased, that inference becomes possible, in addition to that which involves a careless or willful disregard of personal safety, and so a question of fact may arise to be solved by a jury and require a choice between possible but divergent inferences.” In Greany v. Long Island Railroad Company (supra), it was held that “ where there is any evidence, direct or inferential, of care or caution on the part of the person injured, the question as to contributory negligence is for the jury.” “ The question is, whether the injured party, under all the circumstances of the case, exercised that degree of care and caution which prudent persons of ordinary intelligence, usually exercise under like circumstances. This rule must in all cases, except those marked by gross and inexcusable negligence, render the question involved one of fact for the jury.” (Ruger, Ch. J., in Parsons v. N. Y. C. and H. R. R. R. Co., 113 N. Y., 364.)

When this case was heard on a former appeal one of the members of this court was of the opinion that decedent was guilty of contributory negligence “ in not hearing the signal, or, if he heard it, in not respecting it.” This opinion was based on the assumption that the signal was given. The jury have found to the contrary. If we are correct in our conclusion that the evidence was sufficient to sustain that finding, it follows that the decedent was not guilty of contributory negligence in that respect.

We think the question of the decedent’s negligence was, under the proof in this case, a question of fact for the jury, and that the court properly refused to hold, as a matter of law, that he was guilty of such negligence. It was for the jury to say what inferences should be drawn from the facts and circumstances disclosed by the evidence. (Newell v. Ryan, 40 Hun, 286; Palmer v. N. Y., C. and H. R. R. R. Co., 112, N. Y., 234, 243.) Nor do we think that the defendant’s claim, that it should be held that the decedent-knew that Shay was habituallv negligent, or should have known it, can be upheld.

We think the juagment and order appealeu from should be affirmed.

Hardin, P. J., and Merwin, J., concurred.

Judgment and order affirmed, with costs.