text:
    PHENIX INSURANCE COMPANY, Respondent v. WILLIAM H. PARSONS, Survivor, Etc., Appellant.

      Marine insurance, recovery under policies issued therefor.

    This is the second time this case has been before the-general term of this court, and the issues in the action have been fully considered and passed upon, and heretofore reported in 56 Super. Gt. 123, exceptingas follows:
    The learned counsel for appellant argued that there were in the present case differences from the former one which call for another result. On the former trial it did not appear as now, that the policy, on which the insurance for advances was made, called the cargo policy, was accompanied by a policy called “ the freight policy.” This freight policy does not contain the following special claim set forth in the cargo policy, as follows: “ Itis understood that freight and advances insured under this policy are subject to the terms and conditions of ‘ freight policy’ attached hereto.” Held, that this fact does not imply the conclusion that insurances of advances are not subject to the terms of the cargo policy, which insures the advances, and the implied right of the plaintiff to be subrogated to the defendant’s claim against the owner for the reimbursement of advances, secures the same result in this case as was reached in the former, in the consideration of the special clause in the cargo policy
    On the trial the counsel for defendant objected to certain commissions on charter and expense of insuring advances being included in the recovery as a part of defendant’s cl aim against the owner, on the ground that they were not a part of the advances which were insured. Held, that the objection was correctly overruled, for by the assignment of the claim to the plaintiff, there was an implied warranty that the claims amounted to $1,500, which, in fact, comprised the commissions and the expenses of insurance.
    Against the objection of defendant the court below allowed a recovery of certain expenses incurred by the plaintiff in connection with a litigation for the recovery against the owners of the claims for advances. Held, that the plaintiff was not entitled to recover for services of counsel in that litigation the charge of $250. That the costs of the action, amounting to the sum of $36.65, were rightfully included in the recovery, but there was not sufficient proof to justify the recovery of $8.51 for type-writing and copies of brief.
    Judgment affirmed without costs to either party when modified by the deductions named.
    Before Sedgwick, Ch. J., and Truax, J.

      Decided March 2, 1891.
    Appeal from a judgment entered upon a verdict rendered, by the direction of the court, in favor of the plaintiff.

      Goodrich, Deady & Goodrich, attorneys, and W. W. Goodrich of counsel, for appellant.

      George A. Black, attorney and of counsel, for respondent.
   Per Curiam.

issues in this action have been passed upon heretofore as reported in 56 Super. Ct. 423.

The learned counsel for appellant argues that there are in the present case differences from the former case which call for another result. He adverts to the fact that on the former trial it did not appear, as it does now, that the policy on which the insurance for advances was made, called the cargo policy, was accompanied by a policy called the freight policy. The freight policy does not contain a special clause upon which, the counsel argues, the former decision is based, and the cargo policy contained the following clause: “ It is understood that freight and advances insured under this policy are subject to the terms and conditions of freight policy attached hereto.” This does not imply that insurance of advances are not subject to the terms of the cargo policy which insures the advances. And the implied right of the plaintiff to be subrogated to the defendant’s claim against the owners for the re-imbursement of advances, would secure the same result in this action as has been placed before upon the special clause.

On. the trial the counsel for defendant objected to there being included in the recovery as being part of defendant’s claim against the owner, and yet not being advances, which was the thing insured, certain commissions on charter and expense of insuring advances. The objection was correctly overruled, for, by the assignment of the claims to the plaintiff, there was an implied warranty that the claims amounted to $1,500, which, in fact, comprised the commissions and expense of insurance.

Against the objection of defendant the court allowed a recovery for the amount of certain expenses incurred by plaintiff in connection with a litigation for the recovery .against the owners of the claims for advances. The matter involved was not much discussed on the argument of the appeal.

The plaintiff was not entitled to recover for services of counsel the charge of $250. Sedgwick on Dam. [292] note 2.

The costs of the action were rightly recovered. Although the defendant did not have notice of the action, the costs were an actual and definite expense to which the plaintiffs were subjected, by acting upon the defendant’s warranty. Armstrong v. Percy, 5 Wend. 535. These costs amounted to $36.65. There was not sufficient proof to justify the recovery of $8.51 for type-writing and copies of brief.

The judgment should be modified by deducting the amounts that have been specified, and, as modified, affirmed, without costs to either party.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    SEBASTIAN DUNCAN, Jr., Respondent v. THE PREFERRED MUTUAL ACCIDENT ASSOCIATION OF NEW YORK, Appellant.

      Insurance, policy of, against bodily injuries effected through external violent and accidental means.

    The death of Jensen, who was the subject of this policy, was caused by his being struck and run down by a steam locomotive and its train, close to the platform of the Stamford station in the State of Connecticut. The opinion of the court sets forth the facts in the case and the. questions at issue on the appeal. The defendant claims that the testimony establishes that Jensen’s death resulted from his own negligence. The policy provided that the member insured “is required to use all due diligence for personal protection." Held, that there was sufficient testimoiw to call for a verdict of the jury on the question of whether the death resulted from the negligence of the deceased.
    By the conditions of the policy the company was not to be liable if the death resulted “from voluntary exposure to unnecessary danger," and the appellant claims that the testimony disclosed a breach of this covenant by the deceased. Held, if there was not a voluntary exposure, there was not a breach. The word voluntary, of course, in some way refers to the action of the will. Used as it is in the policy by an insurance company for the comprehension of men of ordinary information and intelligence, it does not involve the opposing views of philosophers as to free will or determination. But by all it is considered that the will acts from motives springing from things external to the will, and that such motives have an influence more or less controlling upon the will and tending to cause it to act in a certain way. In common apprehension, and in respect to the ordinary transactions of life, if the external circumstances would have such a controlling influence upon a man of ordinary prudence and intelligence as to cause him to take a certain course, that course would not be considered voluntary on his part. His course would not be freely taken. It would be controlled by external circumstances. In this ease it was a question of fact for the jury to determine as to the extent to which Jensen was controlled by the external circumstances, and the jury would be bound to find that this act was not voluntary if it was such as a man of ordinary prudence would be induced to do by the circumstances.
    The appellant further claims that the injury was not “ accidental." Held, that the meaning of this word seems to be some result not brought about by the purpose or intention of the insured, and certainly this was a question for the jury to consider and pass upon.

      The policy excepts the hazard “ of standing or loathing on the road bed or bridge of any railway.” Held, that this clause does not include such a crossing of the track of a railroad as the deceased made. To stand or walk on a road bed implies some sensible duration of the act, and does not describe a mere crossing, made for a justifiable purpose, such as reaching the station.

      Held, that the judge at trial term did not charge erroneously “ that if the jury find that plaintiff’s assignor was passing the crossing in question, upon an express or implied invitation or inducement of the railroad company, he was rightfully there.” It is apparent from the rest of the charge that this meant and was understood to mean, rightfully, as regarded the railroad company. It was involved in the facts to be passed upon by the jury, to consider whether Jensen was a trespasser, among other things, bearing upon his conduct.
    There was an exception to the charge “ that plaintiff’s assignor, in crossing the tracks where he did, was not a trespasser, and the plaintiff has a right to recover if the injury complained of was not caused by want of ordinary care.” Held, that the evidence established the fact that Jensen was not a trespasser. The remainder of this part of the charge, if considered with the rest of the charge, was not injurious to the appellant, even if, taken by itself, it might not be correct.

      Held, that the trial judge was correct in charging, that to establish the defence that Jensen met his death “ by voluntary exposure to unnecessary danger, the jury must find that the act of so exposing himself was known or ought to have been known to him, and that his crossing the track was done voluntarily with the full knowledge of the danger.” There seems to be some word inadvertently omitted from the charge as printed in the case- The charge means, that to sustain the defence the deceased must have known or ought to have known the danger, and that his act was voluntary and with the knowledge of the danger. The deceased did not voluntarily expose himself to danger if he did not know or was not bound to know the existence of that danger. Held, that the court was right in refusing to charge that Jensen was bound to exercise more than ordinary care, holding that the care should have been such as a prudent man would have used under the same circumstances.
    Before Sedgwick, Ch. J., and Truax, J.

      Decided March 2, 1891.
    Appeal from judgment entered upon verdict of jury, and from order denying motion for new trial made upon the judge’s minutes.

      George W. Sill, attorney and of counsel, for appellant, argued:—

      I. The death of the insured resulted from his own negligence. In his complaint the plaintiff alleges that the insured “ was struck and killed by a railroad train without negligence on his part, and that his death was caused by an accident within the terms of the policy.” The defendant by its answer denies that the death of said insured was caused by “ an accident ” within the terms of the policy, but, on the contrary, alleges that, at the time and place stated in said complaint, “ the said insured unnecessarily and negligently ran upon or across the tracks of the New York, New Haven and Hartford R. R. Company while an express train was rapidly approaching the station of said railroad company, and while he (said insured) was being warned by the employees of the said company against so doing, and that having been struck by the engine of such train his death resulted therefrom.” That the death of the insured did or did not result from negligence on his part, is therefore made one of the principal issues of the case.
    II. The death of the insured was not caused by an “ accident ” within the intent and meaning of the insurance contract. The term “ accident ” defined. (1.) “ Happening by chance, unexpectedly, taking place not according to the usual course of things.” Barry v. U. S. Mut. Acc. Ass’n, 23 Fed. Rep. 714. (2.) It is “Any event which takes place without the foresight or expectation of the person acted upon, or affected by the event.” Ripley v. Railwa Pass. Assurance Co. (U. S. Cir. Court for Western Michigan), 2 Bigelow Life & Acc. Cases, 738. (3.) “It is something Avhich takes place Avithout any intelligent or apparent cause, without design, and out of course.” Mallory v. Travelers’ Ins. Co., 47 N. Y. 52. From the circumstances as they are shown to have existed in the railroad yard at Stamford, when Jensen was in the act of crossing the eleven tracks between Pacific street and the passenger station, the folloAving facts are conclusively established: (a) That when he reached tráck No. 6, and was there warned from, the track by th,e brakeman of the train backing towards the freight house, he then knew that he was in a place of danger, (b) That when he reached track No. 3, or had stepped therefrom toward track No. 2, the view in the direction of the Atlantic street crossing was unobstructed, and the train could be seen rapidly approaching, (c) That although warned by the shouts of the employees of the road to “ Look out for the Express! ” he continued funning toward the station platform. Given, then, these facts in support of the belief that Jensen, as a man of observation and experience, knew of and realized the impending danger, and that, despite such knowledge, he rushed to his death, how shall his acts be characterized, in the light of the definitions hereinbefore cited ? As has been well said, “ There are certain acts shown both by experience and common sense to be dangerous, such as jumping on or off a railroad car while in rapid motion, or crossing a railroad track without looking - to see whether a train is approaching ; ” and when all of the facts in connection with Jensen’s death are fairly considered, it seems a perversion of language to speak of such death as having been “ caused by an accident.” The injury did not happen without “ apparent cause ” or “ out of course ” (Mallory v. Traveler’s Ins. Co., supra), but, on the contrary, “ the precise injury happened to him which he had reason to fear ” (Tuttle v. Traveler’s Ins. Co., 134 Mass. 175).
    III. The death of the insured resulted from “ voluntary exposure to unnecessary danger,” within the terms of the policy. It appears from the testimony of the plaintiff’s witnesses that Jensen’s route of travel to the station, was from Collender’s billiard factory on Pacific street, or from near that point, and that, before starting upon the short journey which culminated in his death, he exercised a power of choice. It might, perchance, have taken him a minute or two longer to have gone by the safe route through Manhattan street to the Atlantic street crossing, where but one track was to be crossed, but that he did not do; as against the safe way, the more perilous way was chosen, and in his charge to the jury Judge Dugro thus spoke of Jensen’s act: “ Well, Jensen’s act was certainly voluntary, because if he did not want to go across the track and willed it, he wouldn’t have gone there.” This declaration on the part of the trial court should be given its due weight. It is universally regarded as negligent for one to go upon the tracks of a railroad company, where, as at Stamford, “ from fifteen to twenty trains were arriving and departing between the hours of 3 and 6 o’clock in the afternoon, and switch engines were running up and down the yard all the time.” Jensen was not a stranger to the locality, but had he been, much more was it incumbent upon him to exercise at least ordinary prudence, and to have given heed to the timely warnings which were given him. “It is negligence to attempt to drive a team across the track of a railroad in full view of an approaching locomotive, on account of the risk of becoming entangled in the rails, or of the teams shying or balking, even where there is apparently time to cross. So it is to drive a team toward a crossing at such reckless speed as to be unable to stop or turn on reaching the track. So it is negligent to walk or run across, in full view of a coming train, unless it is very clear that there is ample time to cross, after allowing for the possibility of a misstep. It is not enough that the chances are equally balanced; nice calculations are not allowed.” Shearman & Redfield on the Law of Negligence, Vol. 2, § 475, and cases there cited. The case of Wilds v. Hudson River R. R. Co., 29 N. Y. 315, the circumstances there detailed were quite similar to those now under consideration. The plaintiff in that case was nonsuited at the circuit, and the judgment was affirmed in both the general term and the Court of Appeals. When commenting upon the plea of “ inevitable accident ” “ or unavoidable injury,” the Court of Appeals, in another case (Austin v. N. J. Steamboat Co., 43 N. Y. 80), say: “ A party cannot avail himself of this defence, who, by his own negligence, gets into a position which renders the accident inevitable. He must exercise care and foresight to prevent reaching a point from which he is unable to extricate himself.” So far as appears from the evidence, there was nothing whatever to prevent Jensen from stopping before he reached the main track. He “ voluntarily ” entered upon the tracks at Pacific street, there being another and entirely safe way for reaching the station, and “voluntarily ” continued in the way thus chosen. The danger, small perhaps, at the first, increased with every step he took from the starting point to the place of his death. There is not a word of evidence in the case tending to explain or to justify the exposure which he voluntarily incurred. That the danger was imminent when he reached the third track from the station platform is abundantly proven.
    IV. The law of negligence applies to insurance contracts which contain provisions that the insured shall “use all due diligence for personal safety and protection,” and that he shall not “voluntarily expose himself to unnecessary danger.” In the case of Sawtelle v. Railway Pass. Assurance Co., 15 Blatch. 216, decided in 1878—the insured met with death while passing from one car to another in the night time, when the train was in full motion. The defendant company having refused to recognize the claim of the plaintiff as valid under the terms of the policy, suit was brought thereon, and the defendant, in its answer to the petition, invoked the following clauses in the policy as against plaintiff’s right of recovery: “ No claim for insurance shall be made when the death or injury may have happened in consequence of exposure to unnecessary danger, hazard or perilous adventure,” and that “ standing, riding or being on the platform of moving railway coaches, or entering, or attempting to enter, or leave any public conveyance using steam as a motive power, while the same is in motion, are hazards not contemplated by the contract.” Upon the trial of the case before Judge Wallace (then District Judge for the Northern District of New York), a verdict was directed for the defendant, and in the opinion denying plaintiffs’ motion for a new trial Judge Wallace characterizes the act of the deceased which resulted in his death as follows: <c Negligence and £ exposure to unnecessary danger ’ are equivalent terms; and, if the jury had found that the deceased did not lose his life £in consequence of exposure to unnecessary hazard,’ the verdict could not have been sustained upon the settled rules of the law of negligence. There were no disputed facts and no disputable inferences which presented a question for the jury. The direction for a verdict for the defendant was right, upon the ground that the assured was guilty of negligence, and met his death in consequence of exposure to unnecessary hazard. The motion for a new trial is denied.” In the case of Aiken v. Penn. R. R. Co., 130 Penn. St. Rep., it appeared that the decedent was attempting to cross ten or eleven railroad tracks at grade occupying 150 feet of space. It was at night, and the view was obstructed on one side by standing cars, etc., and on the other a train was standing with an engine blowing off steam. After decedent and his companion had crossed five or six tracks they saw an approaching train, and the decedent, against the remonstrance of his companion, attempted to cross the track upon which the train was approaching and was killed.

      When reviewing the action of the trial court, in directing a verdict for the plaintiff, the appellate court says: “ This is a perfectly clear case of contributory negligence, unrelieved by any circumstances which the jury should have been allowed to consider as an excuse for a violation of the plainest dictates of prudence and the settled rules of law. It is indisputable that the deceased saw the train while he was in a place of safety, and voluntarily took the chances of crossing in front of it. In the face of this patent fact the other circumstances—the danger of the place, the rate of speed of the train, the absence of warning, the obstructions to sight and hearing—became-totally unimportant, and the plaintiff should have been nonsuited, or a verdict directed against her. The rule as to stopping applies equally to persons walking, as to persons driving. There is no distinction, in the nature of things, except of degree, as to danger, and none is recognized in the cases. It is not a rule of evidence, but a rule of law, peremptory, absolute and unbending; and the jury can never be permitted to ignore it, to evade it, or to pare it away by distinctions and exceptions. That failure to stop is not merely evidence of negligence but negligence per se has been said so often, from Railroad Co. v. Heilman, 49 Pa. St. Rep. 60, to Greenwood v. Railroad Co., 124 Ib., that to cite the cases would be wearisome. See also, to like effect: Irey v. Penn. R. R. Co., 132 Pa. St. Rep. 563 ; Cordell v. N. Y. C. & H. R. R. Co., 75 N. Y. 330; Moyer v. Same, 88 Ib. 350; Wendell v. Same, 91 Ib. 428-9 ; Becht v. Corbin, Receiver, etc., L. I. R. R. Co., 92 Ib. 658 ; Tolman v. Syracuse R. R. Co., 98 Ib. 198; Woodward v. R. R. Co., 106 Ib. 369; Young v. R. R. Co., 107 Ib. 500; Redmond v. R. W. & O. R. R. Co., 10 N. Y. Supp. 330, and cases there cited.
    V. Jensen’s death resulted from a breach of that condition of the policy which provides that “ standing or walking on the roadbed or bridge of any railway are hazards not contemplated or covered by this insurance, and no sum will be paid for injuries or death in consequence of such exposure, or while thus exposed.” Without controversy, Jensen was upon the" track of the New York, New Haven and Hartford E. E. Co. when struck by the engine and killed. All of the witnesses who saw him agree upon this point. Quite apart from the other defences, that Jensen’s death resulted from the failure to “ use all due diligence for personal safety and protection,” and from his negligence or “ voluntary exposure to unnecessary danger ” in going upon the tracks as he did, we have then, the undisputed fact that he was upon the track of the railroad company when he was struck by the engine and killed. This condition was quite as binding upon him as the other conditions, the breach of which is pleaded by the defendant, and the plaintiff is, therefore, not entitled to recover. Hoffman v. Travelers’ Ins. Co., cited in Bliss on Life Insurance, pp. 719-20; Tuttle v. Travelers’ Ins. Co., 134 Mass. 175; Neill v. Travelers’ Ins. Co., 31 Canada Common Pleas Reports, 394; Cornish v. Accident Ins. Co., 23 Law Reports, (Q. B. D.) 453.

      Paul Wilcox, attorney, and David D. Duncan of counsel, for respondent, argued:
    I. Negligence, as the term is ordinarily employed in the books, is not involved in this case. This is an action upon a contract. Questions involving negligence arise only in actions in tort; and where the claim is made for injuries caused by the negligence of the defendant he may retort by a defence of the contributory negligence of the plaintiff. In an action upon a contract, however, no such conditions exist. The plaintiff claims damages upon the contract, as in this case upon a contract of indemnity against accidents, and the defendant cannot be heard to say that the plaintiff contributed by his negligence to cause the accident. It follows that the rules and cases relating to negligence cannot be invoked to aid the defendant herein. This position is fully sustained by the authorities. Schneider v. Provident Life Ins. Co., 24 Wis. 28 ; s. c., 1 Am. Rep., 157. This was an action upon policy of accident insurance. Deceased attempted to get on a train of cars while in slow motion, and fell under them and was killed. The policy contained a clause that the company would not be liable for any injury happening to the assured by reason of his “willfully and wantonly exposing himself to any unnecessary danger or peril.” Plaintiff was nonsuited on the ground that the case fell within this clause, and appealed. It was claimed that, inasmuch as the negligence of the deceased contributed to produce the injury the death was not caused by an accident, within the meaning of the policy. Payne, J., said: “ I cannot assent to this proposition. It would establish a limitation to the meaning of the word £ accident,’ which has never been established, either in law or common understanding. A very large proportion of these events which are usually called accidents happen through some carelessness of the party injured which contributes to produce them. Thus men are injured by the careless use of fire-arms, of explosive substances, of machinery, the careless management of horses, and in a thousand ways where it can readily be seen afterward that a little care on their part would have prevented it. Yet such injuries, having been unexpected, and not caused intentionally or by design, are always called accidents and properly so. * * * An accident is defined as an event that takes place without one’s foresight or expectation; an event which proceeds from an unknown cause or is an unusual effect of a known cause, and, therefore, not expected. An accident may happen from an unknown cause;
      but it is not essential that the cause should be unknown. It may be an unusual result of a known cause and, therefore, unexpected to the party. And such was the case here, conceding that the negligence of the deceased was the cause of the accident. It is true that accidents often happen from such kinds of negligence; but still it is equally true that they are not the usual result. If they were, people would cease to be guilty of such negligence. But cases in which accidents occur are very rare in comparison with the number in which there is the same negligence without an accident. * * * So there are, undoubtedly, thousands of persons who get on and off from cars in motion without accident where one is injured; and therefore when an injury occurs it is an unusual result and unexpected, and strictly an accident.” After quoting an English case (Trew v. Railway, etc., Assurance Co., 6 Hurl. & Nor. 839) where the question being whether drowning was a death by external violence, the court charged the jury that deceased “ died from the action of water causing asphyxia ; that is, a death from external violence within the meaning of this policy, whether he swam to a distance and had not strength enough to regain the shore, or on going into the water got out of his depth.” Judge Payne proceeded : “ Now either of these facts would raise as strong an inference of negligence as an attempt to get upon cars in slow motion. Yet the court said that, although the drowning was occasioned by either one of them it would have been an accidental death within the meaning of the policy, and the plaintiff entitled to recover. I cannot conceive that it would have made such a remark, except upon the assumption that the question whether the injured party was guilty of negligence contributing to the accident does not arise at all in this class of cases. I think that is the true conclusion, both upon principle and authority, so far as there is any upon the subject; and the only questions are, first, whether the death or injury was occasioned by an accident within the general meaning of the policy, and, if so, whether it was within any of the exceptions. “ This conclusion is also very strongly supported by that provision of the policy under which the plaintiff was nonsuited. That necessarily implies that any degree of negligence falling short of £ willful and wanton exposure to unnecessary danger ’ would not prevent a recovery. Such a provision would be entirely superfluous and unmeaning in such a contract, if the observance of due care and skill on the part of the „ assured constituted an element to his right of action, as it does in actions for injuries occasioned by the. negligence of the defendant.” Judgment of nonsuit reversed. Burkhard v. Travelers Ins. Co., 102 Penn. St. 262, where Mercur, Ch. J., said: “ The present is not like a case between a- passenger and a railway company, in which the company may be exempt from liability for damages arising from negligence of the passenger, not voluntary.” See also, Chamlin v. Railway Pass. Assur. Co., 6 Lans. 71; Providence Life Ins. Co. v. Martin, 32 Md. 310; Freeman v. Travelers’ Ins. Co., 144 Mass. 572. It has been directly held by our highest courts that contracts of insurance cover losses occasioned by the negligence of the insured. Phoenix Ins. Co. v. Erie Transportation Company, 117 U. S. 312, a case which has been several times affirmed by the same court, the last occasion being in the California Ins. Co. v. Union Compress Co., 133 U. S. 387. The same principle was announced in Burkhard v. Travelers’ Ins. Co., supra.; Cornish v. Accident Co., 23 Q. B. Div. 453.
    II. Insurance contracts must be construed against the insurance companies and in favor of the insured. In Cotton v. Fidelity and Casualty Co., 41 Fed. Rep. 506, it was held that: “ In cases of doubt as to the proper construction of the contract the conditions for forfeiture must be construed strictly against the company and liberally in favor of the assured.” And this is so, for the reason that these conditions have the effect, if enforced, to defeat the “ very object of the contract.” He speaks of this as one of the “ established rules of a general character.” To same effect. Thompson v. Phoenix Ins. Co., 136 U. S. 287, 297 ; National Bank v. Insurance Co., 95 Ib. 673, 678. Policies of accident insurance are intended to furnish indemnity against accidents, and their language is to be construed with reference to that purpose. In-case of doubt or uncertainty in the terms of the policy the construction should be liberal in favor of the assured. Healy v. Mutual Acc. Assn., 31 Cent. L. J. 419 (Illinois Supreme Ct.) Following. Paul v. Travelers’ Ins. Co., 112 N. Y. 472 ; Kratzenstein v. Western Assurance Co., 5 L. R. A. 799, and cases cited; Darrow v. Family Fund Society, 6 Ib. 495, and cases cited.
    III. The deceased did not “ voluntarily expose himself to unnecessary danger,” nor fail to use “ due diligence.” (a) The words “ voluntary exposure to unnecessary danger,” as found in the contract, were selected for some purpose. It is submitted that upon their face—by the ordinary meaning of the words and of the phrase—all accidents which do not involve an exercise of the will as to the exposure are not included in the exception. The exercise of the will requires the exercise of the reasoning powers ; and the operation must, of necessity, take some time for consideration, varying according to the rapidity of the mental process of the individual. An act cannot be said to be a “ voluntary exposure ” which is done at a moment’s notice and under the belief that the party is already in imminent danger of losing his life; neither can an act constitute a “ voluntary exposure ” which is not the result of some deliberation ; and still less one which is done in a mental panic. The only volition which the insured could have used at the time of the accident was the will to save his life if he could. This position is amply sustained by the decisions. Marx v. Travelers’ Ins. Co., 39 Fed. Rep. 321; Burkhard v. Travelers’ Ins. Co., supra. And see quotation from Schneider v. Provident Life Ins. Co., ‘under point I., supra. (6) Being rightfully where be was, Mr. Jensen became confused by the warnings of the company’s employees, one of whom was behind and the other before him. He was thus informed of imminent danger, but seeing none, and being unable to see any from where he was at that time, and having no time to deliberate, he obeyed the instinct of self-preservation by seeking the nearest place of safety, the station platform. When he started for it he was already, as he was led to think from the warnings, in imminent danger. His mind was occupied with the one object of saving his life. The presumption is in favor of his desire to avoid danger. Under such circumstances he was undoubtedly excused from the necessity of looking for an approaching train, even supposing that it was a physical possibility that he could have seen it while hastening across the second track from the platform (which, we submit, the evidence fails to show), and supposing that the necessary halt in his quickened speed would have enabled him to avoid the express train going at a speed of forty or fifty miles an hour. It would require an exceptionally cool head to stop, under such circumstances, and consider rules of law or craftily worded clauses in a policy of insurance upon which the party relied for the relief of his widow and children in the event of his death by accident. Any prudent man would have taken the same course pursued by Jensen. Surely here was no “failure to exercise due diligence.” (c) Jensen, under the circumstances, could not be held to the strict rule of looking both ways before crossing railroad tracks. Parsons v. N. Y. C. & H. R. R. Co., 113 N. Y. 364.
    IV. From the facts this case was clearly one for the jury, (a) What is “ voluntary exposure to unnecessary danger ” is the question of fact for the jury. Burkhard v. Travelers’ Ins. Co., supra; Cotton v. Fidelity and Casualty Co., supra; Travelers’ Ins. Co. v. Seaver, 19 Wall. 531; s. c., 86 Sup. Ct. 544, may also be consulted. (6) What is “ due diligence” is a question of fact for the jury. Stackus v. N. Y. C. & H. R. R. Co., 79 N. Y. 464; Kellogg v. N. Y. C. & H. R. R. Co., 79 Ib. 76. (c) How far obedience to the instinct of self-preservation from a visible danger would excuse failure to look for another danger is a question for the jury. McCann v. Sixth Ave. R. Co., 117 N. Y. 505; s. c., 213 Am. & Eng. R. R. Cas., 297; Clark v. N. Y. L. E. & W. R. Co., 40 Hun, 605; affirmed, 113 N. Y. 670. (d) From the facts this case would have been clearly one for the jury even had it embraced the question of contributory negligence. Stackus v. N. Y. C. & H. R. R. Co., supra; Sherry v. Ñ. Y. C. & H. R. R. Co., 104 N. Y 652.
    V. The burden of proof rested on the defendant to show that the death of the insured was within the exceptions of the policy. Freeman v. Travelers’ Ins. Co., 144 Mass. 572. In this case the appellate court, per Field, J., said : “ The court [below] refused to rule that there was not sufficient evidence to warrant the jury in finding that deceased used ‘ due diligence,’ and to this the defendant excepted. It is evident that this refusal, if erroneous, has not harmed the defendant because the burden of proof was upon it.” Murray v. N. Y. Life Ins. Co., 85 N. Y. 240.
    VI. Even had deceased been violating a rule of a company, such violation would not prevent recovery, unless it was shown that he knew of the rule and that the rule was in force. Defendant failed entirely to show that Jensen violated any rule of the railroad company in taking the course he took to reach the station, or in anything which he did after entering upon that course, but even a violation of such rules will not prevent a recovery. In the case of Marx v. Travelers’ Ins. Co., 37 Fed. Rep. 321, the court said : “ If, however, it shall be conceded that the railroad company had at some time prior to the death of Marx adopted a rule forbidding passengers to ride on the platform of a car, and that such rule was within the general condition of the policy referring to rules of a corporation, it was not then in force. The testimony of the trainmen was to the effect that it was not at all observed. All passengers on the road who were so inclined, and often by the invitation of the trainmen, rode .on the platforms of' the cars as freely and as commonly as elsewhere. Under such circumstances it cannot be said that there was any rule of the railroad company as to riding on the platform. ***** An insurance company offering indemnity for injury or death in case of accident, as to its policyholders, is not at all in position of a carrier for hire as to its passengers. The latter is engaged in a special service of peculiar danger, as to which some rules of conduct on the part of its patrons are highly necessary. The former assumes a guardianship of its patrons in respect to casualties of life which beset men everywhere, and as to which it is not practicable to impose limitations which shall be constantly borne in mind by the insured. Will any one say on sea and land, at home and abroad, a policyholder must constantly consider whether he is within all the rules of all the corporations, public and private, which he may in any way encounter ? Whatever the answer may be to any such question, it is plain enough that a rule of a corporation, within the meaning of this policy, must be one which is known to the policyholder, and of force at the time of the alleged violation. The evidence at the trial did not establish this fact, and the policy cannot be avoided on the ground that deceased was not observing its terms at the time of the accident. The motion for new trial will be denied.” There is no proof whatever tending to show that the railroad company had ever made or enforced any rule relating to the crossing of its yard by pedestrians; on the contrary the testimony as to the actual use of the yard by the general public in large numbers for a long time as a free passageway to and from the station, without protest or warning from the railroad company is full and convincing. Defendant’s witnesses were quite as positive on these points as were plaintiff’s.
    VII. Standing or walking on the roadbed of a railroad company does not mean crossing the tracks of a railroad. Burkhard v. Travelers’ Ins. Co., 102 Penn. St. 262.
   Per Curiam.

The plaintiff sues as the assignee of a policy of insurance made by defendants insuring one Jensen, the assignor, against bodily injuries effected through external, violent and accidental means.”

For a reversal it is urged that the testimony incontrovertibly proved that Jensen’s death resulted from his own negligence. The policy provided that “ the member is requested to use all due diligence for personal protection.”

The death of Jensen was caused by his being run down by a steam locomotive and its train. The train was moving upon a track, close to the platform of a station. This track was designated on the trial as No 1. South of that track, at a short distance from it, and about parallel to it, was another track called No. 2, and again another track, parallel, designated as No. 3. And still to the south were several other tracks.

It may be assumed that Jensen approached the place, from the outside of all these tracks, from the south. Whether it was a negligent act to approach in this way and to cross until he reached track No. 3, is not material in this case, for the testimony shows that, in fact, he was in no danger from the approaching train until he reached track No. 3, as the jury might find.

The jury iñight find under the evidence, that when he reached track No. 3, he could not see the approaching train if he had looked, as there were cars standing upon that track. If he proceeded to track No. 2, and crossed it without looking for a train, and thereR were no other facts for a jury to find whether he was excusable for not looking and for going on, the court perhaps might hold that his negligence caused the accident in part. But there were other occurrences which made up the circumstances in view of which it was to be determined whether the deceased was negligent.

As he was upon track No. 3, Downey, an employee of the railroad, as he was on the platform,, saw Jensen coming towards the platform. The train that afterwards struck Jensen was coming towards the platform at great speed, and Downey called out in a loud tone, “ look out for the express,” Jensen was then thirty feet away and might have heard. Simultaneously another employee shouted to Jensen from one side. It might have been found that also another em-. ployee was then calling to Jensen from behind him.' Forthwith Jensen, who had been walking rapidly or was upon a half trot, took a still faster pace, crossed track No. 2, and, as he was crossing the next track, was struck.

The jury, in finding what course would be taken by a prudent man, would be obliged to ascertain what would be the effect upon such a man of the calls to him, under the circumstances, and whether their meaning to him would be to stop where he was or to proceed at a fast rate, and that then he would be safer. It is to be noticed that Jensen was not told to stop; that the directions to him may have been confusing, as some came from one side of him and others, the jury might find, came from a track over which he had passed. On the whole, a jury might believe that a man of ordinary prudence and apprehension would be led to believe that it was a safe course to hurry and get to the platform as quickly as he could. It was for the jury to find whether, in taking that course, it was imprudent not to stop at track No. 2, and look for the train.

There was sufficient testimony to call for a verdict of the jury on the question of whether the death resulted from the negligence of the insured. By the policy the company were not to be liable if the death resulted “ from voluntary exposure to unnecessary danger.” The appellant argues that the testimony disclosed a breach of this condition by the deceased. At this point attention will be given only to the term voluntary. If there was not a voluntary exposure, there was not a breach. The word, of course, in some way refers to the action of the will. Used as it is in the policy by an insurance company to be understood by men of ordinary information and intelligence, it does not involve the opposing views of philosophers as to free will or determination. But by all it is considered that the will acts from motives springing from things external to the will, and that such motives have an influence more or less controlling upon the will and tending to induce. it to act in a certain way.

In common apprehension, in respect to the ordinary transactions of life, if the external circumstances would have such a controlling influence upon a man of ordinary prudence and intelligence, that he would take a certain course, that course would not be considered voluntary on his part. His course would not be freely taken. It would be controlled by external circumstances.

In this case, it was a question of fact for the jury as to the extent to which Jensen was influenced or controlled by the external circumstances. And the jury would be bound to find that his act was not voluntary if it was such as a man of ordinary prudence would be induced to do by the circumstances.

It is further maintained for the appellant that the injury was not “ accidental.” The meaning of this word, however, seems to be, not brought about by the purpose or intention of the insured. This was at least for the jury to pass upon.

■ The policy excepts the hazard “ of standing or walking on the roadbed or bridge of any railway.” This does not include such a crossing of the track as the deceased made. To stand or to walk on a roadbed implies some sensible duration of the act, and does not describe a mere crossing made for a justifiable purpose, such as reaching the station. Common language distinguishes between standing, walking, and crossing.

On the trial the following questions were asked and answered, under exception by defendants. Q. Has it been the custom, to your knowledge, for people to reach the station in Stanford by other routes than going by the regular roadway ? Q. Do you know whether there was a general custom at this time for people to cross those tracks from Collender’s billiard factory to the station ? These questions were pro-, perly allowed. They tended to draw out matter relevant to the defence in the answer, under a clause of the policy that Jensen was killed while, or in consequence of, violating the law or the rules of a company, etc.” This supposed violation was crossing the tracks.

It was some evidence of the rule or regulations of the company that the tracks had been used for crossing by people generally.

The court did not charge erroneously “ that if the jury find that plaintiff’s assignor was passing the crossing in question upon an express or implied invitation or inducement of the railroad company, or by its permission he was rightfully there.” It is apparent from the rest of the charge that this meant, and was understood to mean, rightfully, as regarded the railroad company. It was involved in the facts to be passed upon by the jury to consider whether Jensen was a trespasser, among other things, as bearing upon his conduct.

There was an exception to the charge that plaintiff’s assignor, in crossing the tracks when he did, was not a trespasser, and the plaintiff has a right to recover if the injury complained of was not caused by want of' ordinary care. The evidence established the fact that Jensen was not a trespasser. The remainder of this part of the charge, if considered with the rest of the charge, was not injurious to the appellant, even if it be, when taken by itself, not correct.

The court was correct in charging, that to establish the defence that Jensen met his death “ by voluntary exposure to unnecessary danger the jury must find that the act of so exposing himself was known or ought to have been known to him, and that his crossing the track was done voluntarily with the full knowledge of the danger.” There seems to be some word inadvertently omitted from the charge as printr ed in the case. The charge means, that to sustain the defence the deceased must have known or ought to have known the danger, and that his act was voluntary and with the knowledge of the danger that he had or ought to have had. The deceased did not voluntarily expose himself to danger if he did not know, or was not bound to know, the existence of that danger.

The court was asked to charge, that if Jensen heedlessly and unnecessarily exposed himself to danger of injury, the plaintiff could not recover. The court was not called upon to charge in these words. It had held, for the purpose of the charge, that the act of Jensen was voluntary, and had explained that to be voluntary exposure, Jensen must know or should have known that the danger was present.

The court was right in refusing to charge tha.t Jensen was bound to exercise more than ordinary care, holding that the care should have been such as a prudent man would have used under the sa,me circumstances. -

Judgment and order affirmed, with costs.


text:
    EDWARD SUTORIUS, Appellant v. EUGENE W. DUNSTAN, Respondent.

      Undertaking given to procure an orcter of arrest, amount for which sureties are liable.

    The complaint in this action charged the defendant, as one of the sureties ' upon an undertaking given to procure an order of arrest, and it was also averred therein that in the action in which the order was granted there was a judgment for costs for the defendant for a sum greater than $250, and that such judgment was paid. On the argument of the demurrer to the complaint, it was not denied that this payment enured to the benefit of the surety, this defendant, but it was claimed that he remained liable to ■ pay damages sustained by plaintiff by reason of the arrest, not exceeding $250. The undertaking of the surety is “ that if the defendant in the ac- . tion do recover judgment therein, or if it is finally decided that the plaintiff is not entitled to the order of arrest, the plaintiff in said action will pay all costs which may be awarded to the defendant, and all damages which he may sustain by reason of the arrest in said action, not exceeding the sum of two hundred and fifty dollars,” in accordance with section 559 Code Civil Procedure.

      Weld, that the sum specified (§250) is intended to describe the limit of the liability of the surety; that all costs and all damages shall be taken in conjunction, and that to them together shall be applied the words of the undertaking “ not exceeding the sum of two hundred and fifty dollars ; ” and costs having been paid to the extent of $250, the surety is not liable further upon the undertaking.
    Before Sedgwick, Ch. J., and Truax, J.

      Decided March 2, 1891.
    Appeal by plaintiff from a final judgment entered for defendant, on the demurrer to the complaint.

      Davison & Chapman, attorneys, and Charles Stewart Davison, of counsel, for appellant.

      Daniel D. Sherman, attorney and of counsel, for respondent.
   Per Curiam.

The complaint charged the defendant as one of the sureties upon an undertaking given to procure an order of arrest. It was averred that in the action in which the order was granted there was a judgment for costs for the defendant for a sum greater than $250, and that such judgment was paid. On the argument it is not denied that this payment enured to the benefit of the surety, this defendant. But it is claimed that he remained liable to pay damages which the plaintiff sustained by reason of the arrest, not exceeding $250. And the action is to recover the damages to that extent.

The undertaking follows the words of § 559, Code Civil Procedure. The undertaking of the surety is “ that if the defendant recovers judgment, or if it is finally decided that the plaintiff was not entitled to the order of arrest, the plaintiff will pay all costs which may be awarded to the defendant, and all damages which he may sustain by reason of the arrest, not exceeding the sum of $250.

The wording is such that the meaning may be obscure, yet on the whole it should be held that the sum specified is intended to describe the limit of the liability of the surety. To make such a provision practically effective in protection of the person arrested, there should be a surety or a party that possesses means enough to fulfil the undertaking, and a method prescribed for ascertaining the means. It has always been the practice to require some kind of proof on this subject.

On this subject § 812, Code Civil Procedure, requires that a bond or undertaking executed by a surety, must be accompanied by his affidavit to the effect that he is worth the penalty of the bond, or the sum specified in the undertaking, etc. There is an intent to place the penalty, if it be a bond, on the level with the sum specified in the undertaking. It is evident that the latter is a sum in which the surety undertakes. There is no reason for excluding from the justification a test of sufficient means to pay costs, and yet this would be the result if the sum- specified referred only to damages. These considerations guide us to the result that the section intends that all costs and all damages shall be taken in conjunction, and that to them together shall be applied the words u not exceeding the sum specified in the undertaking.”

As on the argument it is conceded that the defendant has upon his undertaking the benefit of the payment of costs to the extent of $250, he is not further liable upon the undertaking for the damages from the arrest.

Judgment affirmed, with costs.


text:
    CHARLES R. JOHNSON, Plaintiff v. THE UNION SWITCH AND SIGNAL COMPANY, Defendant.

      Action on contract to recover a quarter's royalties or license dues claimed to have accrued under the same.

    The right of the plaintiff to recover in this case is based upon the conclusion that there was a termination of the agreement by the defendant that brought into effect and operation the eighth clause thereof that provided, “ that in the event of the termination of this agreement, the said company (by reason of the expenditures that shall have been made during the continuance of this agreement) shall have a license (not exclusive) to use all of the inventions that may have been used in the carrying on the business of the company on the payment of $6,500 per year, said sum to be paid quarterly; and shall be entitled to purchase from Charles R. Johnson, or his executors, the exclusive right to use all of the said inventions, upon as favorable terms as he or his executors may be willing to grant to any other parties.” The plaintiff claimed that there had been a termination of the contract within the meaning of the said eighth clause because of the breach of the first and second clause of the contract by the defendant in discharging plaintiff from the service of the defendant as its general manager without cause. The defendant contended that the termination meant was such as had been provided for in the seventh section which provided “ that this contract shall continue for a period of 10 years, subject to termination by either party, however, by one year’s notice in writing to the other party at any time after the second year, or by the death of Charles R. Johnson, or by his permanent inability to perform his duties as general manager.” Held, there appearing to be no reason for the use of the word “termination ” in the eighth section in any other sense than that of the words “continue ” and “ terminate ” in the seventh section, it must be held that a breach of the contract by the defendant (in the first and second clause) did not terminate the contract within the meaning of the eighth section.
    It was claimed that a judgment roll that was offered in evidence on the trial, by the plaintiff, was improperly excluded. Held, (for the reasons stated in the opinion of the Court) that the judgment roll in question was correctly excluded.
    At the time that the plaintiff was discharged by the president of the company-defendant, the plaintiff said to him, “ of course you will pay me the $6,500 a year royalty.” The president answered “ Yes, oh yes, we shall pay the royalties.” Held, that there was no evidence that the president was authorized to make this promise for the company, or to put a construction upon the contract that had been made.

      Before Sedgwick, Ch. J., and Truax, J.

      Decided March 2, 1891.
    The complaint was dismissed -at the trial term, and the exceptions were ordered to be heard in the first instance at general term.

      Miller & Savage, attorneys, and George W. Miller of counsel, for plaintiff.

      Cravath & Houston, attorneys, and John W. Houston of counsel, for defendant.
   Per Curiam.

The action was upon a written contract between the parties to the action. It provided 1st, that plaintiff be made general manager of the defendant; 2d, that he receive $5,000 each year as salary ; 3d, that he, thereby granted, sold and conveyed to the said company, except as thereinafter provided, the exclusive right to the use of all the inventions of the plaintiff relating to the signal business that he then had or might thereafter acquire, and also the right to use certain inventions designated; 4th, that the company pay for the use of the inventions $3,000 each year in quarterly payments; 5th, that one Henry Johnson be employed.; 6th, that the plaintiff, in addition to the other compensation to him, receive ten per cent, of the net profits; 7th, it is mutually agreed that this contract shall continue for a period of ten years, subject to termination by either party, however, by one year’s notice, in writing, to the other party at any time after the second year, or by the death of Charles R. Johnson, or by his permanent inability to perform his duties as general manager; 8th, it is further. mutually covenanted and agreed, that in the event of the termination of this agreement, the said company (by reason of the expenditures that shall have been made during the continuance of this agreement) shall have a license (not exclusive) to use all of the inventions that may have been used in the carrying on the business of the company, on the payment of $6,500 per year, said sum to be paid quarterly, and shall be entitled to purchase from Charles R. Johnson, or his executors, the exclusive right to use all of the said inventions upon as favorable terms as he or his executors may be willing to grant to any other parties; 9th, that the agreement shall take effect from June 1st, 1886, and 10th, that in the event of the business of the company being terminated by circumstances over which its officers have no control, the contract should be null and void, and the license to use the inventions referred to should cease and all rights therein should revert Jo the plaintiff.

The action was for a quarterly payment under the eighth section of the contract. The plaintiff claimed that there had been a termination of the contract, within the meaning of that section, caused by a breach of the contract on defendant’s part' in discharging, without cause, the plaintiff, from its service. The defendant took the position that the termination meant was such as had been provided for in the earlier part of the contract in its seventh section.

If there were no break between the sections, and the word “ eighth ” omitted, by reading the two sections together as if they were one, it would be clear that the words “ continue ” and “ terminate ” of the early part of the section, referred to the same condition that is indicated by the words termination ” and continuance ” of the later part of the section. There was no necessity of using “ said ” or “ aforesaid.” The words having been once used and nothing intervening to indicaté a purpose to change the meaning, a repetition of the words is a repetition of the meaning.

The construction of the plaintiff involves the following reading: “ that in the event of a breach of this agreement, by the company, the company shall have a license (not exclusive) to use,” etc. A contract should not be construed so as to provide in its executory aspects for bringing about its breach if it be possible to avoid such a construction. Such a construction would involve the idea, that by the eighth section, the plaintiff intended to offer to the defendant a motion to discharge him.

The eighth section, in its provisions, shows wThat was meant in the use of the words “ termination of this agreement.” Immediately after these words is the clause in parenthesis (“ by reason of the expenditures that shall have been made during the continuance of this agreement ” ). The termination was to be at the end of the intended continuance. The expenditures were such as would £e made through ten years, or, if notice were given, through three years. Such was the consideration to the plaintiff for making the license. If his discharge would make the provision operative, then it might be a discharge at the end of a day’s service as well as the end of a year’s service; as well when a few dollars had been expended, as when several hundred dollars had been. At the end of a day’s service many inventions might have been used for the business of the company, or only one. If a breach by discharge terminated the contract, then by the eighth section if the defendants used that one invention they would be bound to pay sixty-five hundred dollars a year, which was intended by the parties to be the compensation for the use of all inventions that might be employed in the company’s business through ten years.

There appearing to be no reason for the use of the word termination in the eighth section in any other sense than that of the words continue and terminate in the seventh section, it must be held that a breach of the contract by the defendants did , not terminate the contract within the meaning of the eighth section.

It does not follow from this, that if they used, as the complaint avers they did, after plaintiff’s discharge, the inventions of plaintiff that had been used in the business, the plaintiff will be deprived of a valuable property right without compensation, for the defendants are liable for the value of that use.

The answer, taking all its averments together, does not admit that there was a termination of the contract as provided for in the eighth section.

It is claimed that a judgment roll offered by plaintiff was improperly excluded. It was in an action against these defendants, brought by one Miller, as the assignee of the present plaintiff, of a quarterly payment under section eight. In that action Miller recovered. It is urged that the judgment was a final adjudication, as to the parties to this action, of the issue of whether the present defendants were liable, under section eight. The fact that the action was not between the same parties, is a valid objection to the judgment roll as evidence, unless the objection is obviated by considerations growing out of the rules of estoppel. It is said that the parties to this action are in privity with the parties to the former action. Of course there is no privity so far as the defendants are concerned because they were parties. As to the present plaintiff being in privity with the former, it could rest only on their relation as assignor and assignee. While there may be a privity of estate or of title, there is none as respects the judgment in favor of the present plaintiff. If there were it would bind them mutually to the estoppel growing out of the relation, and if the plaintiff of the former action had been defeated, as to a single quarterly payment under the contract, the present plaintiff would be bound by it, and would have no action against the defendants for the other instalments. But the present plaintiff is not bound by the estoppel, because he did not gain his interest, after the so called estoppel came into existence. In no sense did the plaintiff of the former action represent the present plaintiff. Nor is the present defendant in the position of one who takes a right burdened with what will constitute an estoppel; for all its rights, as presented in this action, were in 'existence prior to the judgment. The defendants are not estopped by the judgment inasmuch as they do not claim through one who is estopped by it. 2 Smith’s L. C. 664-665 ; Carver v. Jackson, 4 Peters, 83 ; Campbell v. Hall, 16 Ib. 83. The judgment roll was correctly excluded.

Certain pleadings in actions between the present parties were given in evidence. It is urged by the plaintiff that, as in them, the defendants admitted and averred a “wrongful termination of the contract” that was an admission of the termination, which put in operation the provisions of the eighth section. This, however, is opposed to the views that have been expressed as to the construction of that section.

At the time that the plaintiff was discharged by the president of the company, the plaintiff said to him, “ of course you will pay me the §6,500 a year royalty,” and was answered, “ Yes, oh yes, we shall pay the royalties.” There was no evidence that the president was authorized by the company to make this promise for it, or to put a construction upon the contract that had been made.

The exceptions are over-ruled, the judgment ordered for defendants upon the direction that the complaint be dismissed, with costs.


author: By the Court.—Freedman, J.

text:
    AMERICAN BANK NOTE COMPANY, Respondent v. THE NEW YORK ELEVATED RAILROAD COMPANY, et al., Appellants.

      Elevated railroads, as to obtaining rights by prescription—Abutting owner's right of arising out of operations as well as construction of road—Purchasers of abutting property subsequent to construction and operation of road, as to rights of—Corporation, an abutting occupant owner, elements of recovery for damages.

    Where an elevated railroad company constructs, maintains and operates its road through a public street under lawful warrant from the public authorities, it can gain no right by prescription to maintain and operate the road as against an abutting owner.
    The right of an abutting owner to equitable relief against an elevated railroad arises not solely from an unlawful appropriation of the street to the construction and maintenance of its structure, but as well from any operation thereof which involves an abridgment of the abutting owner’s easement in the street.
    The fact that a party after the construction of an elevated railroad in a street, and while it is in operation, purchases abutting property and voluntarily erects a structure thereon which he deems most to his advantage, he acting reasonably and not wantonly or rashly, does not prevent him from at any and at all times until the railway company acquires as against him the right to maintain and operate the road, obtaining equitable relief against such maintenance and operation, nor from recovering the diminished rental value of his property caused by such maintenance and operation.
    Where the abutting owner is a corporation, and itself occupies the premises, it cannot recover as for loss of rental value but may recover for additional expense incurred caused by the construction, maintenance and operation of the road; such as in the ease at bar the cost of an electric light plant and running the same, the cost of reflectors, the injury and •expense in the use of the property and interest on certain items.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided March 3, 1891.
    Appeal by defendants from judgment in favor of the plaintiff, entered upon the decision of a judge at special term.
    The facts .sufficiently appear in the opinion.

      Davies & Rapallo, attorneys, and Edward C. James of counsel, for appellants,
    on the question of defendants’ rights by prescription, referred to and commented on Fobes v. The Rome, Watertown & Ogdensburg Railroad, 121 N. Y. 505 ; Wager v. Railroad Co., 25 Ib. 526; Carpenter v. Railroad Co., 24 Ib. 255 ; Tallman v. El. Ry. Co., 121 Ib. 119 ; Ward v. Warren, 82 Ib. 265 ; Hammond v. Zehner, 21 Ib. 117 ; Nichols v. Wentworth, 100 Ib. 455; Campbell v. Seaman, 93 Ib. 568 ; Wheeler v. Clark, 58 Ib. 270; Burbank v. Fay, 65 Ib. 69 ; Mills v. Hall, 9 Wend. 315; Matter of Niagara Reservation, 37 Hun, 537 ; Abendroth v. N. Y. El. Ry. Co., 33 N. Y. State Rep. 475; Palmis v. Heblethwaite, 2 Shower, 249.
    Upon the question of past damages they argued : That the maxim volenti non fit injuria applied, and that the rule, which, requires a party exposed to injury to do nothing to increase his damages, would be conclusive against the respondent; and on' these points involving the question of nuisance, referred to and commented on 3 Kent’s Com. M. P. 448 ; 2 Blackstone’s Com. 402-403; Brady v. Weeks, 3 Barb. 167; Campbell v. Seaman, 63 N. Y. 568; Abendroth v. N. Y. EL Ry. Co., 33 N. Y. State Reporter, 475-481; Taylor v. Met. El. Ry. Co., 50 Super. Ct. 311323-4; Fobes v. Railroad Co., 121 N. Y. 505; Cogswell v. Railroad Co., 103 Ib. 10 ; Heussuer v. Railroad Co., 114 Ib. 433; Pand v. El. Ry., 112 Ib. 186; Drucker v. El. Ry. Co., 106 Ib. 157-162-3 ; Baptist Church v. Railroad Co., 5 Barb. 79; Bank v. El Ry. Co., 53 Super. Ct. 412; Bank v. El. Ry. Co., 28 Fed. Rep. 231; Railroad Co. v. Baptist Church, 108 U. S. 317.
    Upon the question of errors in admitting evidence of damages they urged: 1st. It was error to admit evidence of the value of the machinery, standing in the Greenwich street side of plaintiff’s building. 2d. It was error to allow evidence as to the effect of the defendants’ railroad upon the machinery, steel plates, etc. 3d. It was error to allow the estimates or evidence of witnesses as to the time lost by plaintiff’s workmen in cleaning machinery, wax plates, etc., or in stopping work when trains passed by, etc., or the cost of such time to the plaintiff in wages. 4th. It was error to allow proof of the cost of reflectors. 5th. It was error to allow proof of the cost of an electric light plant, or of the cost of running it. 6th. It was error to allow the opinion of witnesses as to the percentage of electric light chargeable to the Greenwich street side of the building, and to make a finding on that opinion. An examination of these exceptions will show that the plaintiff was allowed to call its officers, or employees, to prove the effect of the operation of the railroad upon its machinery, processes and work people, and to take the estimate of the witness as to how much time was lost in cleaning the machinery or processes, or in stopping work when the trains passed, and then to charge for this time according to the wages paid to the employees whose time was thus lost. Notwithstanding defendants’ objections to this testimony as incompetent, irrelevant, immaterial, and calling for conclusions or opinions, it was all admitted, and forms the basis, of this finding of “ injury ” and “ expenses.” As to the electric light plant and reflectors we are charged with their entire cost. The plaintiff has them and the defendants pay for them. The errors in regard to this testimony and the findings based upon it are too palpable to require extended discussion.
    Upon further errors in rulings upon evidence, they urged ; 1st. It was error to allow the architect, Mr. Berg, to testify how many more square feet he included in the light wall of the plaintiff’s new building, because of the elevated railroad, and referred to, and commented on Tallman v. Met. El. Ry. Co., 121 N.
      Y. 119. 2d. It was error to allow Mr. Myers to give opinion evidence as to the value of the 1,100 additional square feet per floor, or about 6,000 square feet in all, which Mr. Berg had certified was put into this light shaft on account of the railroad, and referred to and commented on Tallman case, supra, and the Sixth Avenue Railroad Co. case, 56 Hun, 182. 3d. It was error to allow Mr. Myers, a real estate expert, to testify to the value, before and since the railroad, of other property on Greenwich and Washington streets, near Cortlandt, Reade and Duane streets, not shown to have any relation to the property in question ; and as to the comparative ease of selling property on Greenwich and Washington streets, and referred to and commented on Sixth Ave. R. R. Co. v. Met. El. Ry. Co., supra.

    Upon the question of error in vexing compensation they urged: It has been a fixed question in these elevated railroad cases whether noise could be considered at all in fixing either past damages, or compensation for easements, and referred to and commented on Peyser v. Met. El. Ry. Co., 13 Daly, 122-6-7; Drucker v. Met. El. Ry. Co., 106 N. Y. 157-165. But this is the first time the court has fixed a specific price for the privilege of making a noise and .required the defendants to pay it to avoid an injunction.
    There is another matter of much moment to be. considered with regard to the $49,000. The court, finds “ that the interest and easement of the plaintiff, in the street in front of the plaintiff’s premises and the damages to the fee value, as far as the maintenance of the present structure, and the operation of the railroad as at present operated is concerned, as for. all future damages to said part of plaintiff’s easement, is of the value of $50,000, of which $49,000, are for the impairment of light, air and access, and $1,000, for damages from noise.” And on this point referred to and commented on Forbes v. Railroad Co., 121 N. Y. 503; Henderson v. Railroad Co., 78 Ib. 423-438. For the purposes of this question the defendants are not to be treated as a trespasser but as a purchaser, entitled to buy for the public use of its railroad what the plaintiff has to sell that is necessary for-such use. No element of wrong enters into this transaction. It is a judicial enquiry simply into the question of the just compensation to be paid for private property taken for public use. It differs wholly from the principles which govern the fixing of damages for past trespasses. For the past the defendant is to be treated as a wrong doer, for the future as a right doer.

      Peckham & Tyler, attorneys, and W. G. Peckham of counsel, for respondent,
    on the question of defendants’ right by prescription, referred to and commented on Kenkele v. Man. Ry., Gen. Term Supreme Ct.; Sofa el, et al. v. N. Y. El. R. R., Supreme Ct. 1889; affirmed 1890; Tallman v. El. Ry. Co., 121 N. Y. 119; Glover v. El. Ry. Co., 51 Super. Ct. 12, 13; 1 Revised Statutes, § 147, p. 739 ; Broiestedt case, 55 N. Y. 222; Application of Mayor New York, 17 Barb. 617; Brady v. Weeks, 3 Ib. 157-9; Uline v. N. Y. C. & H. R. R. Co., 101 N. Y. 98; Murdock v. Prospect, 73 Ib. 580; Campbell v. Seaman, 63 Ib. 570 ; Mattlage v. El. Ry. Co., Supreme Ct. G. T. Nov. 1890; Arnold v. Hudson R. R. R., 55 N. Y. 661; Menendez v. Holt, 128 U. S. 523 ; Ode v. El. Ry. Co., General Term, Supreme Ct. 1890; Coming v. Troy Iron & Nail Factory, 40 N. Y. 203-7; Eggleston v. The N. Y. & H. R. R. Co., 35 Barb. 162; Christianson v. Linford, 3 Robt. 230 ; Werfelman v. Man. Ry., 32 N. Y. 682 ; Brant v. Virginia C. & I. Co., 93 U. S. 929, book 23, Lawyers' Co. Op. Pub. Co. Ed.

    Upon the question of measure of damages they referred to and commented on 2 Wait's Actions and Defences, 321; Kearney v. Met. El. R. Co., 14 N. Y. State

      Rep. 854 ; First Baptist Ch. v. R. R. Co., 5 Barb. 79; Seventh Ward Natl. Bk. v. El. R. R., 53 Super. Ct. 412 ; Shoe & Leather Bk. v. Thompson, 18 Abb. 413; Fifth Nat. Bk. v. N. Y. El. R. R. Co., 28 Fed. Rep. 231; Baltimore & P. R. Co. v. Fifth Bapt. Church, 108 U. S. 317 ; S. C. 2 Sup. Ct. Rep. 719 ; Lahr case, 104 N. Y.; Kenkele v. El. R. R. Co., General Term Sup. Ct. 1890; Third Ave. R. R. Co. v. El. R. R., 19 Abb. N. C. 251; Driver v. West. Un. R. R., 32 Wis. 569-580; Schile v. Brokhahus, 80 N. Y. 619 ; Francis v. Schoellkopf, 53 Ib. 154; Jutte v. Hughes, 67 Ib. 271; Colrick v. Swinburne, 105 Ib. 507 ; Hexter v. Knox, 63 Ib. 565 ; Irving Nat. Bk. v. The El. R. R., Supr. Ct.; Union El. R. R., N. Y. Supr. Ct., Jan. 1890, p. 854; Werfelman amended decision, 32 N. Y. State Rep. 683; 29 Ib. 190; 104 N. Y. 295.
   By the Court.—Freedman, J.

This is an appeal from a judgment of the special term for injunctive relief, damages and costs. The action was brought for equitable relief against the maintenance and operation of an elevated railroad in front of plaintiff’s premises consisting of Nos. 115 to 123 Greenwich street.

The defendants insist that, prior to the commencement of the action in 1888, they had gained a right by prescription to maintain and operate their elevated railroad in front of plaintiff’s premises.

The West Side and Yonkers Patent Railway Company, to whose rights the defendants have succeeded, constructed its elevated railroad in Greenwich street and in front of the premises in question prior to July 1, 1868. The said railroad was a single track road, consisting of an iron superstructure and cross-ties supported upon iron columns set on the curbstone line on the east side of Greenwich street, and operated by a cable. The said railroad was put in operation July 2, 1868, and its operation since that time underwent the following changes, viz.: April 20, 1871, steam dummies were substituted for cable power to draw the trains. April 20, 1871, to April 5, 1877, turn-outs were built at different periods. October, 1877 to June, 1878, the west side track was built. June 2, 1878, the west side track was put in operation. Fall of 1879 to May 2, 1880, the east track was reconstructed. Since June 2, 1878, the railroad has been operated by means of trains drawn by steam engines down one track and. up the other, with the exception of the use of temporary turn-outs during the period of reconstructing the east track.

These facts being clearly insufficient to establish a user of the entire system for more than twenty years, the defendants have confined their claim of right by prescription to the east track and the structure upon which it rests. As to those it is claimed that, notwithstanding the changes they have undergone, they have been maintained substantially and sufficiently continuously for more than twenty years before the commencement of the action; that thereby the defendants acquired the right to maintain them by prescription against the plaintiff; that the right to maintain the structure and the track having been acquired, they can operate the road in any manner or by any method authorized by the legislature; and that, therefore, it can make no difference that the road was operated by a cable until 1871, and that then steam engines were substituted.

A thorough analysis of the details of this claim, if it were necessary that it should be made, would give rise to quite a number of interesting questions upon which much has been said and written. But I do not deem it necessary. The answer to the entire claim is, that the defendants could not acquire a right by prescription as claimed.

Originally the theory of prescription was that the right claimed must have been enjoyed beyond the period ox the memory of man, which, for a long time in England, went back to the time of Richard I. But, to obviate the necessity of such an impossible proof, it became customary to rely upon the presumption of a deed having been given and of its having been lost, after showing an enjoyment for a sufficient length of time. The matter is regulated in England now by statute. In the United States grants' of incorporeal hereditaments are presumed, upon proof of an adverse enjoyment which has been exclusive and uninterrupted for twenty years, or the period of time fixed by the respective statutes of the several states as the limitation in respect to lands themselves. In the state of New York the limitation is twenty years. But to authorize the presumption of a grant, the enjoyment must not only have been uninterrupted for the period of twenty years, but it must have been adverse, not by leave or favor, but under a claim and assertion of right, and with the knowledge and acquiescence of the owner. Parker v. Foote, 19 Wend. 309.

The defendants had lawful warrant from the public authorities to construct, and they have lawful warrant from the public authorities to maintain and operate their elevated railroad in and through Greem wich street, but only on condition that compensation be made to abutting owners. This proposition has been affirmed so many times that its verification by the citation of authorities would be a work of supererogation. The enjoyment by the defendants of so much of the street in question as they did take in front of plaintiff’s premises, was therefore not adverse to the plaintiff and its predecessors in title, but under a license ' from the public authorities on condition that compensation be made, and the entry under this license must therefore be presumed to have been in subordination to the rights of the abutting owners. Upon this branch of the case the decisión in Broiesfcedt v. The South Side R. R. Co., of Long Island, 55 N. Y. 220, is directly in point. The defendants, therefore, can no more sustain their claim of adverse enjoyment, than a purchaser under a municipal tax lease can sustain a claim of adverse possession. As to the latter it is well settled that possession and claim under a municipal tax lease for over twenty years is not adverse to the claim of the owner in fee. Bedell v. Shaw, 59 N. Y. 46. The claim of the defendants to a right by prescription is, therefore, untenable, and that being so, no acquiescence by the plaintiff and its predecessors in title not constituting an equitable estoppel as defined by the general term of -the Supreme Court in the recent case of Knox v. The Metropolitan Elevated Railway Co., will bar the action. The evidence in this case wholly fails to establish such an estoppel.

Equally untenable is the claim of the defendants that the right of a plaintiff as an abutting owner to equitable relief against an elevated railroad, arises not from its operation, but solely from its unlawful appropriation of the street tp the construction and maintenance of its structure. It is difficult to perceive how a legal right can exist to use an illegal structure to its utmost capacity. Even a steam surface railroad, lawfully in existence and operation, may, in fact, be operated to an extent going so much beyond the ordinary and legitimate uses of the street, as to involve an abridgment of the abutting. owner’s easement in the street, and to entitle him to a corresponding compensation. Green v. N. Y. C. & H. R. R. R. Co., 65 How. 154. It is only when a steam surface railroad, having lawful public authority for the purpose, makes a reasonable use of a street for railroad purposes, without substantially changing its grade, so that the use is not exclusive in its nature, but leaves the passage across and through the street substantially free and unobstructed for the public use, that an abutting owner has no cause of action, and that is all that was decided in Fobes v. The Rome, Watertown & Ogdensburg R. R. Co., 121 N. Y. 505. As to the effects produced by the operation of an elevated railroad upon abutting property, the following is the latest position taken by the Court of Appeals. The precise question under consideration was the question of noise, but the remarks of Andrews, J., who delivered the opinion of the Court on that occasion, and in which all concurred, except Earl, J., apply with equal force to every element of damage caused by an inconsistent and illegal street use. Judge Andrews says, in Kane v. The Metropolitan Elevated R. R. Co., 34 N. Y. State Rep. 876 (*885). " The court allowed the jury to consider the noise created by the trains of the defendant as an element of damage. If the defendant had the lawful right to operate its trains in the street, such inconvenience as might result to the plaintiff in the enjoyment of his property from the ordinary and usual operation of the defendant’s road would not, in the absence of negligence on its part, furnish a ground of action. But we held' in the Lahr case, that' as to abutting owners having easements in the street through which the road was constructed, whose rights had not been acquired by condemnation, the defendant was a trespasser. Upon general principles, therefore, it wrould seem that any consequential injury to the plaintiff’s property from the acts of the defendant while engaged in the unauthorized occupation and use of the street, was proper to be considered by the jury.” In the Lahr case, Chief Judge Ruder, referring to this point, said: “ No partial justification of the damage inflicted by an unlawful structure and its unlawful use can be predicated upon the circumstance that under other conditions, and through a lawful exercise of authority, some of the consequences complained of might have been produced without rendering their perpetrator liable for damages.” See also opinion of Finch, J., Drucker’s case, 106 N. Y. 158 ; 8 N. Y. State Rep. 599.

The next point raised by the defendants is that the plaintiff should not have any equitable relief because it voluntarily erected the building upon the premises in suit in the manner it did after the construction and the commencement of the operation of the elevated railroad. The plaintiff has been for many years engaged in the business of bank note engraving and other engraving and printing in the city of New York. Up to the year 1884 the plaintiff conducted its business at No. 120 Broadway. In the year 1883 the plaintiff purchased ten lots lying between the two lines of the defendants’ railway in Trinity Place and Greenwich street, paying for them $360,000. At this time the lots were covered with warehouse buildings three and four stories high, which had been used as a packing house, and afterwards as United States appraisers’ stores. The defendants’ elevated railroad had been in full operation on both sides of this property for some years prior to 1883, and the said operation has been continued since that time. The plaintiff’s president and its four vice-presidents had charge of the matter of selecting a site and erecting a building for the company’s business. They were all familiar with its business and they were likewise familiar with the character and operation of the elevated railroad. They selected this place between the two railroads, erected a building thereon at a cost of about $500,000, and brought into it all the machinery, apparatus and processes used in their business. But in doing so they, and the architect employed by them, took precautionary measures to avoid, as far as possible, any annoyance from the existence and operation of the railroad. This the evidence fully establishes. The case, therefore, falls within the principle laid down in Tallman v. The Metropolitan Elevated Railway Co., 121 N. Y. 119, where it was held that, while a plaintiff cannot be permitted to prove, or allowed to recover, damages which he might have sustained if he had put his lots to other uses than they were put to, or placed upon them other structures than were placed upon them because such damages would be purely speculative and contingent, he is in no way prevented from putting his lots to any use to which he may wish to put them ; that he has the right, acting reasonably and not wantonly or rashly, to put upon them any structures which he may deem most to his advantage; and that, at any and all times, until the railway company acquires as against him the right to maintain and operate its road, he has the right to recover the diminished rental value of his lots, just as they were occasioned by the maintenance and operation of the road.

So in Campbell v. Seaman, 63 N. Y. 568, it was held that it did not affect plaintiffs’ right to an injunction that the brick-yard complained of was used before plaintiffs purchased their land, and that the plaintiffs, in the immediate vicinity thereof, had built a costly mansion and had laid out their grounds and planted them with ornamental and useful trees and vines for their comfort and enjoyment. The court said: “The fact that trees and vines are for ornament or luxury entitles them no less to the protection of the law. Every one has the right to surround himself with articles of luxury, and he will be no less protected than one who provides himself only with articles of necessity. The law will protect a flower or a vine as well as an oak.”

It is true that it was formerly the law that one who came voluntarily into a known and existing nuisance, could not abate it or recover damages on account of it. But this has been modified to. the extent that one who creates a nuisance, cannot continue it even as against a new-comer, unless he has gained by prescription the right to do so. This is because a continuation of the nuisance, or a repetition of it, is a new nuisance for which the new-comer has his remedy. Campbell v. Seaman, 63 N. Y. 568. This principle is applicable to the elevated railroads in the city of New York, for, although the consent of the public authorities obtained by them conditionally as hereinbefore stated, prevents their being dealt with as a public nuisance, they are nevertheless a private nuisance to abutting property injured by them as long as compensation is withheld, and no promiscuous citation of authorities will ever make it otherwise. The acts of the defendants, in so far as they constitute an inconsistent and excessive street use, when considered in reference to abutting property, involved, in a certain aspect, a trespass from day to day upon such property; in another aspect they involved a taking of private property within the meaning of the constitutional provision requiring compensation to be made; and, in still another aspect, and especially when their combined effects are considered, they constitute a private or special nuisance to the abutting property injured. For the reasons stated the defendants can derive no benefit from the fact that the plaintiff erected the building upon the premises in suit after the construction and the commencement of the operation of the road. In Kenkele v. The Manhattan Railway Co., 55 Hun, 398, it was squarely held that the compensation to be made is to be determined as of the time of the trial and that this is but a just result of the persistent neglect of the defendants to' take the necessary measures provided by law for the acquisition of the easements necessary for the maintenance of their structure and the operation of their road.

Another point upon which the defendants laid great stress is, that the trial judge allowed, as. elements of damage, the cost of an electric light plant and running the same, the" cost of reflectors on the Greenwich street front of the building, and for injury and expense in the use of plaintiff’s property, and interest on certain specific items. This raises a question as to the right rule of past damages in the case of a corporation in possession. In the case of an individual owner who himself was the occupant of the premises, the true measure of damages is the loss of the rental value, provided it appears that the premises were rendered disagreeable and uncomfortable, but the recovery must be confined to the six years preceding the commencement of the action, together with the added damage to the time of the trial. This rule is inapplicable to a corporation in possession, because a corporation cannot be subjected to personal inconvenience and discomfort. Such a corporation, therefore, cannot recover as for loss of rental value, but only for additional expense incurred. Such a recovery is in lieu,of and falls short of the amount recoverable by an individual owner, and is sanctioned by the decisions of Seventh Ward National Bank v. N. Y. Elevated R. R. Co., 53 N. Y. Super. Ct. 412; Fifth National Bank v. N. Y. Elevated R R Co., 28 Fed. Rep. 231; Irving National Bank v. Manhattan Railway Co.; N. Y. National Exchange Bank v. Metropolitan Elevated R. R. Co., 53 N. Y. Super. CCt. 511 and others. The items objected to in this case can be justified under the rule as laid down and as sanctioned by the cases cited.

All the remaining questions raised by the appellants have been determined either expressly or in principle by former decisions in similar cases and it is therefore not necessary to particularize concerning them or any of them.

There being no merit in any of the exceptions disclosed by the record, the judgment appealed from should be affirmed, with costs.

Sedgwick, Ch. J., concurred.

Ingraham, J., concurred in the result.


text:
    JOHN PHILLIPS, Respondent v. FRANK M. ARGUIMBAU, Appellant.

      Contract for the purchase of goods, payment to be made by a draft as thereby provided.

    The contract provided for payment by draft on defendant’s London bankers drawn by Green & Whineray and in no other way. Held, that the contract contains no promise by the defendant to pay the price of the goods in cash on the arrival of the goods or of the bills of lading in New York, or on the delivery of the goods or of the bills of lading to defendant. The plaintiff sought to overcome the difficulty by proving against the objection and exception of the defendant, that it was orally agreed that defendant should accept the goods on their arrival in New York and pay cash for them. Held, that the positive denial of the defendant that such agreement was ever made, the case presented a question of fact which should have been submitted to the jury, for the defendant moved to go to the jury upon it and duly excepted to the denial of his motion.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.

      Decided March 3, 1891.
    Appeal from judgment entered in favor of plaintiff upon a verdict directed by the court, and from two orders denying defendant’s motion for a new trial.

      Carter & Ledyard, attorneys, and George H. Balkan of counsel, for appellant.

      Dill, Chandler & Seymour, for respondent.
   By the Court.—Freedman, J.

As I read the complaint and the evidence given in support thereof, it appears upon plaintiff’s own showing that the contract upon which this action was brought, contains no promise by the defendant to pay the price of the goods in cash on the arrival of the goods or of the bills of lading in New York, or on the delivery of the goods or of the bills of lading to him, but that the contract provided for payment by draft on defendant’s London bankers drawn by Green & Whin-, eray and in no other way. To hold that the contract required the defendant to pay cash on the delivery of the goods or of the documents therefor, would be equivalent to striking out of the contract the words “ Terms L. 1 C. on London, thro’ Green & Whineray,” and to the making of a new contract between the parties.

At the trial the plaintiff seems to have been conscious of the difficulty, for he thought to overcome it by proving, against the objection and exception of' the defendant, that, upon the refusal of Green & Whineray to act as it was contemplated they should, it was orally agreed between the parties that the defendant should accept the goods on their arrival at New York and pay' cash for them. The evidence relating to such subsequent oral agreement, constituting as it did an important modification of the original contract, was only admissible in case the complaint was broad enough for the purpose. Of this I have grave doubt. But assuming that the complaint was sufficient, the defendant, under his answer, had the right to deny that such subsequent oral agreement' was ever made, and he did deny it in positive terms. In that aspect the case presented a question of fact which should have been submitted to the jury,, for the defendant moved for leave to go to the jury upon it and duly excepted to the denial of the motion.

As the conclusion already , reached necessitates a new trial, it is unnecessary to consider the other questions raised by the exceptions. I cannot refrain, however, from saying that some of the evidence sought to be introduced by the defendant upon the cross-examination of plaintiff’s witnesses, and also as part of his own case, seems to have been erroneously excluded. But as this was probably due to the mistaken view adopted by the trial judge concerning the liability of the defendant under the original contract, and in as much as any error so committed can be readily obviated upon the new trial to be had in conformity with the views herein expressed, a discussion of these questions at the present time may well be omitted.

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

Sedgwick, Ch. J., and Ingraham, J., concurred.