author: By the Court.—Curtis, Ch. J.

text:
    MORTIMER HENDRICKS, Plaintiff and Respondent, v. SIXTH AVENUE RAILROAD COMPANY, Defendant and Appellant.
    CARRIERS OF PASSENGERS, THEIR DUTIES, RESPONSIBILITIES AND LIABILITIES. —DAMAGES.
    The conductor and driver of street-cars are the agents and servants of the corporation or persons by whom they are employed, and to their judgment, care and skill the conveyance and safety of the passengers are confided. This duty must be discharged by them with diligence, prudence and foresight.
    The introduction of a manifestly intoxicated, quarrelsome and indecently-attired man into a street car by the employees of the company is an act of negligence for the consequences of which the company is liable; and when the conductor admits such a person into the ear, in response to a statement of the driver that such person is “too full” to ride on the front platform, the negligence is aggravated and unjustifiable. A verdict against the company for damages for personal injuries sustained by a passenger from an unprovoked assault by such person under such circumstances, should not be set aside on the ground that there is no evidence of negligence.
    The plaintiff in this case was severely injured about the head and face by blows received, as above stated. A verdict of $1,000, —Held, not excessive.
    The master is answerable in damages for the mere negligence of his servant, only to the extent of compensation for the injury received. The court should have charged the jury, on the request of the defendant, that the case was not one in which punitive or exemplary damages might be awarded.
    EVIDENCE.
    Statements of the conductor in regard to the occurrence, not made at the time of the act so as to constitute a part of the res gesta, and being recitals of what the driver told him at the time of the event, are in the nature of hearsay evidence and inadmissible, and should have been excluded on objection.
    Before Curtis, Ch. J., and Sanford, J.

      Decided April 1, 1878.

      Appeal by defendant from an order denying a motion to set aside a verdict fdr $1,000 in plaintiff’s favor, on the ground that it was contrary to evidence, and that the damages were excessive. The.exceptions were ordered to be heard in the first instance at the general term, and judgment in the meantime to be suspended.
    The action was brought to recover damages for personal injuries, alleged by the plaintiff to have been inflicted upon Mm while a passenger in defendant’s car, by an intoxicated person whom the conductor brought in from the front platform and seated inside of the car at the request of the driver, who told him that “he was not fit to ride there, he was too full.” All the allegations of the complaint, except that defendant was a corporation operating the railroad, and that plaintiff was a passenger June 4, 1874, were denied by an answer, verified by defendant’s president.

      John E. Burrill, for defendant and appellant.

      E. Y. Bell, for plaintiff and respondent.
   By the Court.—Curtis, Ch. J.

The conductor and driver were the defendant’s agents and servants, to take charge of the car while on the road, and to their judgment, care and skill, the conveyance and safety of the passengers in defendant’s car was confided. As agents of the defendant, this duty should have been discharged by them with diligence, prudence and foresight. Where not only persons in business pursuits, but females, school children, and the aged and infirm are conveyed as passengers, the introduction into a car and seating among them by the conductor, of an intoxicated, quarrelsome, scratched, bloody, dirty, ragged man with Ms clothing unbuttoned in an indecent manner, is an offense against civilization, and unjustifiable, no matter how frequent may be its occurrence. When such an act as this occurs at the request of the driver, and after a notice from the driver to the conductor, that a person of this description is not fitto ride on the front platform, that he is “ too full,” the want of care and judgment by the servants in discharging their duty for the protection and welfare of the passengers, is the more manifest and the more aggravated.

The evidence shows, that the plaintiff sustained the injuries of which he complains, from an unprovoked and aggravated assault, committed upon him by a drunken person of the description above referred to, who was introduced into the car, by the negligence and carelessness of the defendant’s servants, who were in charge of the car. There is no ground to set aside the verdict, as contrary to evidence.

The defendant asks to have the verdict set aside also for excessiveness of damages. It appears the plaintiff was struck several very severe blows, with both fists, in the face and mouth, that his eyes were blackened, his teeth loosened, his lips cut open, his nose injured, and that he was rendered unable to eat meat and had to have his food mashed and could not swallow comfortably for ten days. In my opinion the verdict is not excessive. It is not even compensatory for the pain and suffering, resulting from injuries of the nature shown to have been sustained by the plaintiff. What reputable business man would consider himself compensated by the receipt of the amount of this verdict, for the suffering necessarily incident to an assault of this character % Its amount, perhaps, arose from the very proper instructions of the court, in his charge cautioning the jury against giving excessive damages. But the question of setting aside the verdict for inadequateness of damages is not before us, and it is unnecessary to consider this matter.

The plaintiff testified to a conversation between himself and the conductor after the assault, in which the conductor stated that the driver had told him “ to take charge of this man; that he was afraid something would happen ; that he was- afraid he might be quarrelsome, or he might fall off the car, that he was not in a state to take care of himself.”

The defendant excepted to the admission pf the conversation. These statements of the conductor were not made at the time of the act, so as to constitute a part of the res gestee, and as far as they are recitals of what the driver told him, are in the nature of hearsay evidence. In these respects they do not come within the rule where the statements and admissions of an agent or servant will bind the principal (Luby v. Hudson River R. R. Co., 17 N. Y. 131), and should have been excluded.

The court refused to charge, as the defendant requested, that the case was not one in which punitive or exemplary damages should be awarded. Thg defendant excepted to this refusal, and the exception is tenable. The master is only answerable in damages for the mere negligence of his servant to the extent of compensation for the injury received. Though the actual instructions to the jury, in the charge on the subject of damages, may have led to a more favorable result for the defendant than if the court had complied with the defendant’s request, yet such a result cannot necessarily be presumed; and it was the right of the defendant to have the legal measure of damages, in such a- case, charged by the court (35 N. Y. 301; 53 Id. 28 ; 56 Id. 45 ; Id. 295 ; 67 Id. 103).

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

Sanford, J., concurred.


source: Caselaw Access Project

license: Public Domain

text:
    EDWARD HILSEN, Plaintiff and Appellant, v. JAMES T. LIBBY, Defendant and Respondent.
    trademark, agreement for the use thereof, fraud IN THE CONTRACT.'
    The principles of law applying to patents, ancl contracts of license of the same, and the payments of royalties thereupon, should be applied to registered trademarks, and therefore the defendant, as licensee of a registered trademark, is not in a position, while he holds the license and uses the trademark, to set up and maintain, in an action to recover the royalty or fees' provided for in the license, the defense that the trademark is invalid.
    However, if he was induced to enter into the contract by fraudulent representations he has a right to interpose that as a defense (Sexton d. Dodge, 57 Barb. 110; Marston v. Sweet, 66 IT". T. 212).
    When a party pleads that he has been defrauded, he is bound to so aver it that his opponent shall have notice of it, and an opportunity to meet it. It is not to be gathered from, vague and partial allegations and obscure inferences (See cases cited in the opinion of the court).
    Before Curtis, Ch. J., and Sanford, J.

      Decided April 1, 1878.
    Appeal by the plaintiff to the general term from a judgment in favor of the defendant upon a demurrer to the answer.
    The action is for an accounting under an agreement, which is made a part of the complaint, and which grants to the defendant the exclusive right to use a certain trademark registered in the United States patent-office August 10, 1876. In consideration of this license and privilege, the defendant covenants to pay certain royalties, to furnish statements, and to keep his books of account open for the plaintiff’s inspection.
    The answer admits the agreement, use of the trademark and refusal to pay, and sets up that the trademark was invalid, that the agreement was without consideration ; and, further, that as an inducement to the defendant to enter into the agreement, the plaintiff stated and represented to him that he was the first to adopt and use the trademark, and was solely and exclusively entitled to such use, but that in fact it had been used previous to plaintiff’s adoption thereof by Ward Brothers, and ever since, of which use the plaintiff had knowledge or information at the time of executing such agreement, and that such use diminished defendant’s profits; and that the defendant executed the agreement relying upon such statements.
    The plaintiff demurred to the answer as not stating facts constituting a defense to the action. The demurrer was overruled and judgment granted thereon in the defendant’s favor, from which the plaintiff appeals.

      Walter 8. 'Poor, for appellant.

      Edmund Wetmore, for respondent.
   By the Court.—Curtis, Ch. J.

Although it is held that the invalidity of a patent is a good defense to an action brought for the purchase-price of the same, on the ground of a failure of consideration, yet it is also held, that such invalidity is no defense to an action to recover license fees for the term the patent was actually used under the license (Marston v. Sweet, 66 N. Y. 212; Bartlett v. Holbrook, 1 Gray, 114; Noton v. Brooks, 7 Hurlst. & N. 497; Chanter v. Dewhurst, 12 Meeson & W. 823; Lawes v. Purser, 38 Law & Eq. 48).

It is unjust that a licensee should profit by the use of a right under a license, which he concedes ip his agreement to be valid, and covenants to defend, and then set up that the patent is void, in order to evade the payment of his license dues. It is his duty to offer to surrender the license, if he proposes to question the validity of the patent, and not seek to occupy a position where the patentee can neither sue him as an infringer, since he holds a license, or collect his dues without establishing the validity of his patent, the concession of which was perhaps one of the motives for granting the license.

There is no just reason why the same principle should not apply to registered trademarks. The United States statutes make provision for the transfers of the use of trademarks, and their passage by assignment is recognized by the courts (§ 2,947, U. S. Stat. at L. ; Filkins v. Blackman, 11 Blatchf. 440). The intention to adopt and use a trademark for exclusive use in the United States, entitles such trademark to registration and protection, the same as though it had been already in exclusive use (§ 4,937, U. S. Stat. at L.).

The defendant also urged at the argument that so far as relates to the invalidity or non-existence of the right conveyed by an assumed grant or license constituting a defense to an acKon brought to recover royalties reserved, or for the breach of any other covenants by the licensee or grantee, the agreement in suit does not differ from a license or conveyance under a patent-right.

Though the defendant, as licensee, is not in a position, while he holds the license and uses the trademark, to maintain the defense that the trademark is invalid, and that his agreement consequently was without consideration, yet if he was induced to enter into the contract by fraud, he has a right to interpose that as a defense (Saxton v. Dodge, 57 Barb. 116 ; Marston v. Sweet, 66 N. Y. 212).

By closely examining the various allegations in the answer, there may be gathered statements, substantially, that as an inducement to the defendant to enter into the contract, the plaintiff represented to him that he was the first to adopt and use the trademark, and was solely and exclusively entitled to such use, whereas in fact it had been used previous to plaintiff’s adoption of it, by Ward Brothers, and ever since, of which use the plaintiff had knowledge or information at the time of executing the agreement, and that the plaintiff did not have such sole and exclusive use of the trademark, and that the defendant executed the agreement relying upon such statements.

The question arises, whether this states sufficient facts to constitute the defense of fra Ad. It will be observed that three things are omitted in the answer that are. commonly regarded as essential elements of fraud. It does not allege that the plaintiff made the representations with intent to deceive, or that the defendant was deceived by them, or that the defendant entered into the agreement believing them to be true.

It is argued, on the part of the defendant, that where the action is not brought to recover damages for fraud, and the fraud is merely alleged to avoid a contract by way of defense, it is unnecessary to allege fraudulent intent. There is no principle that creates any distinction where a party pleads that he has been defrauded, whether he pleads it as a plaintiff or a defendant. He is bound to so aver it, that his opponent shall have notice of it and an opportunity to meet it. It is not to be fished out from vague and partial allegations and obscure inferences. This principle should be maintained, when fraud is pleaded, as necessary for the public protection (Addington v. Allen, 11 Wend. 374; Leffler v. Field, 52 N. Y. 621; Ross v. Titterton, 6 Hun, 280; Marsh v. Falker, 40 N. Y. 565; Hubbel v. Meigs, 50 N. Y. 489).

The answer of the defendant, in consequence of these omissions to state facts that are held essential to constitute the defense of fraud, is defective, and for the reasons stated cannot be sustained.

The judgment appealed from should be reversed with costs, and the plaintiff have judgment on the demurrer with costs, with leave to the defendant to amend the answer on payment of such costs, and of the costs of reversal.

Sanford, J., concurred.


author: By the Court.—Sedgwick, J.

text:
    SAMUEL JOYNSON, Plaintiff and Respondent, v. CHARLES B. RICHARD and EMANUEL BOAS, Defendants and Appellants.
    PRINCIPAL AND AGENT.
    The general rule is that if an agent, in the course of his agency, signs a bill in his own name, he is liable, and his principal is not (Rogers y. Coit, 6 Mil, 832 ; Crocker y. Colwell, 59 W. T. 213).
    Section 2, page 768, 1 B. 8.,—which provides that “ every note signed by the agent of any person under a general or special authority, shall bind such person,”—refers to a note which upon its face appears to have been signed by an agent, and does not refer to a note so signed by an agent that, under the general rule, he becomes liable.
    The case of Engh y. Greenebaum (2 Sun, 186), must be read and considered with reference to the facts of the case. It holds a defendant liable as a principal upon a bill signed by the agent personally, yet within his authority as an agent, and that a violation by an agent of private instructions given to him by his principal, does not absolve a principal from his responsibility, provided the act of the agent is within his authority.
    In this case, if the defendants received the money to be transmitted to Liverpool, for the use of the holder of the bill—that is, to put the drawer in funds to pay the bill'; the holder could recover of the defendants if they did not transmit the money. On examination and consideration of the testimony in the'case,, the court held that it did not appear that the money was, so received, and the judgment was reversed on that ground.
    Before Sedowick and Freedmaü, JJ.

      Decided April 1, 1878.
    Appeal from a judgment entered upon decision by judge, a jury trial having been waived.
    The complaint was to recover $2,900, had and received by defendants to plaintiff’s use. It also charged the defendants, as drawees of the bill of exchange hereafter referred to. It also claimed judgment upon a statement of facts sufficiently referred to hereafter.
    The defendants were bankers in New York. One Creagh did business in Boston. The defendants sent to Creagh forms of bills of exchange, advice-sheéts, and lists of bankers in Europe. They were to be used by Creagh in Boston. By accompanying letter the defendants wrote : “Arrangements have been made with our European correspondents to honor all drafts sent by our correspondents here, when advised by us. We would respectfully request you to report and remit promptly.” A book, sent with the blank drafts, stated the mode in which business was to be done, and contained the following: “It is to be understood, you draw these drafts for your own account as principal, and in no case to sign our firm. We only acting as agents for 'the transmission of the funds, guaranteeing, however, the prompt payment of all your orders, if properly advised and entered with remittance, par in New York.”

      The course of business was to be that Creagh should sell bills on bankers in foreign parts. They were to be in form like the one sold to this plaintiff, and hereafter set out. Creagh was to send the advice-sheet to defendants, to inform them what bills had been sold, and was at same time to remit to defendants a certain amount, and thereupon the defendants were to cause the bills to be paid by the drawees upon presentation.
    Before August 17, the defendants had protected bills, which Creagh had drawn, and of which he had advised them, without receiving accompanying remittances. On that day, they wrote to Creagh, asking him to pay the then indebtedness, excepting $500, and informed him that thereafter they could give him no greater credit than $500. On August 20, Creagh was indebted to the defendants in $5,000, about, for bills protected by defendants without remittances from Creagh. About 2 E. m. of August 20, the plaintiff bought at Creagh’s office the following bill;
    “Bostoh, August 20, 1875. “On demand of this sole bill of exchange, pay to the order of Samuel Joynson, five hundred and nineteen pounds sterling, value received, and charge to account C. B. R. & B.
    “M. S. CREAGH. , “To Edward W. Yates & Co.,
    “ 37 Castle Street,
    “Liverpool, England.
    “Ho. 51,328.”
    The plaintiff paid a clerk of Creagh, $2,900. The whole business was done by the clerk, Creagh not being in his office. The clerk forthwith deposited the $2,900 in Creagh’s bank account. The same afternoon, the clerk mailed to the defendants the following advice-sheet :
    „ a a o a -w CD oa <¡ o S W O zñ •40 <V <D m o -L_, Oj 40 m

      “Boston, August 20, 1875. “Messrs. C. B. Richard & Boas, New York.
    “ The following drafts have been issued, which you will please protect:
    *5 0 'a ' 1 Denomination of For. Money. Amount of Foreign Money. cS S Amount of U. S. Money. Drawn to order of. Drawn on. Remarks. 1,299 £ 4. 4.92% Gath. Enwright Dublin. B 23,265 .10 James Rowan London. “ 25,578 4. Mrs. Mary Morony Dublin. [Then follow statements of thirty-five other drafts.] 51.327 51.328 71-4 519. 4.9% Elizabeth Fell 1 Samuel Joynson j Liverpool j Please advise by first mail. 693.16 3435.68 Gold at 113% $4,143.20 Refund, 39.25 $4,103.15 Check tomorrow.
    “E. E., August 20, 1875.
    M. S. CREAGH,
    Per G. J. G.”
    Creagh lived out of Boston, and wrote from his place, some time in the course of August 20, to the clerk to draw from the bank all but $500, and deposit it in a bank to the credit of a New York bank on account of the defendants. This letter reached the clerk on the morning of the 21st. He forthwith drew from the bank a sum of $5,000, and deposited it as directed by Creagh. Further facts on this point are stated in the opinion.
    The defendants received on August 21, the advice-sheet and information by telegraph of the deposit of $5,000. Including the amount stated by the advice-sheet, the indebtedness of Creagh to defendant was about $9,000. The defendants applied the $5,000 to the former indebtedness, so as to extinguish that and leave a balance which might be applied to protecting the bills of the advice-sheet, but not enough to protect the plaintiff’s bill. This balance they thereupon applied to the protection of sundry small bills, that were first on the advice-sheet.
    The plaintiff presented his bill, payment was refused, and this action was brought.
    The court found that the defendants were liable, on the ground that Creagh had remitted the money to defendant, for the specific protection of the bill bought by plaintiff.

      Edward Salomon, for appellants.

      R. B. Gioillim, for respondent.
   By the Court.—Sedgwick, J.

The general rule is that if an agent in the course of his agency sign a bill in his own name, he is liable on it, and the principal is not liable (Rogers v. Coit, 6 Hill, 322; Crocker v. Colwell, 46 N. Y. 212). It is not inconsistent with this rule, that where a partnership does business in the name of one of the partners, and in the course of the business, that partner signs a note in his own name, all the partners are liable on the note (Bank of Rochester v. Monteith, 1 Den. 405).

I understand that section 2, p. 768, 1 B. S.,—i. e., “every note signed by the agent of any person under a general or special authority shall bind such person,” —means a note that on its face shows it is signed by an agent, and does not mean a note whereon the agent is personally liable.

The opinion in Engh v. Greenebaum (2 Hun, 136), must be read vrith reference to the facts of the case. The opinion holds the defendant liable as a principal upon a bill signed by the agent personally, and says that a violation of private instructions given to an agent will not absolve a principal from responsibility, provided the act of the agent is within the authority. The facts in proof showed that the business done by the agent was Greenebaum’s business, and the latter meant it should be done in the agent’s name. When the agent received the consideration of the bill, by construction of law Greenebaum received it, and therefore Greenebaum was liable to refund that consideration (Allen v. Coit, 6 Hill, 318), although technically he might not be liable on the bill.

I am of opinion that in the present case, the testimony proved that the business done by Creagh was his own business, and was not the defendant’s. Creagh, in drawing the bills, did not act as defendant’s agent. All the liability that the defendants incurred from their dealings with Creagh, depended upon a special contract between them, which was, in substance, that upon the defendants receiving funds to correspond in amount with the bills to be protected, they would protect the bills. The defendants would not be liable on the consideration of a bill, simply because it had been paid to Creagh.

■ On the argument it was not denied that if the defendants received from Creagh, money to be transmitted to Liverpool, for the use of the holder of the bill, that is, to put the drawee in funds to pay the bill, the holder has an action if the defendants did not transmit the money.

The testimony must be examined to see if Creagh did pay to the defendants, money to be used for the protection of the bill brought by the plaintiff. The claim is that Creagh sent to the defendants a certain sum of $5,000, to be applied to protect the plaintiff’s bill with others. Wo special instructions were sent with the $5,000, but it is claimed that the defendants received that sum. contemporaneously with the advice sheet, that had opposite the statement of plaintiff’s bill, the words, “Please advise by first mail,” and that this is tantamount to a direction to apply the money to that draft.

The defendant’s claim that before the advice-sheet was received, they had required Creagh to reduce his indebtedness, to them to $500, and to keep it so reduced, and that the $5,000 was sent in answer to this requirement.

There is no doubt that Creagh would not have had the means of drawing the $5,000, if the money paid by plaintiff had not been deposited in Creagh’s bank. But immediately upon Creagh’s receiving the money from plaintiff, it became Creagh’s money. Creagh could use it as his own and give to it any direction that any owner could. His duty to the plaintiff was clear, but his power of disposition was absolute (Sheppard v. Steele, 43 N. Y. 60). The fact, that Creagh had received the plaintiff’s money has still less force, when it appears that the defendants did not know what the fact was. Creagh’s excuse for not remitting regularly was that his agents had not sent him the money for the bills they had sold. For all the defendants knew, the plaintiff’s bill might have been one of these.

Unless Creagh, in remitting the money to the defendants, limited its application, they had the right to apply it to the former indebtedness, as in fact they did. And the plaintiff, to entitle himself to judgment, was to show by a preponderance of testimony that under the general contract between Creagh and the defendants, the payment of the $5,000 was the performance of the condition on Creagh’s part, which made the contract operate specially in favor of the plaintiff as the holder of the bill; that is, that it was paid by Creagh to protect, among other bills, the one bought by plaintiff. It was not enough that it was Creagh’s duty to limit the use, or that Creagh had an intention, not disclosed to defendants, to limit it; or even that defendants knew that Creagh had received and deposited the money paid by the plaintiff (Sheppard v. Steele, supra). If he did not communicate such an intention, or if the circumstances themselves did not show that such was his intention, the defendants’ right to apply the money where they saw fit prevailed (Manning v. Westerne, 2 Vern. 603; Stone v. Seymour, 15 Wend. 19).

On August 20, the plaintiff bought the bill and paid $2,900. All the business was done, and the money deposited on that day by a clerk of Creagh. Another clerk made up and mailed the advice-sheet after 2 o’clock of that day, and of course then wrote, against plaintiff’s bill: “Please advise by first mail.” The next morning the first-mentioned clerk drew from the bank where he had deposited the money paid by plaintiff $5,000, leaving a balance of about $300. The check on which he drew the $5,000, was one of a number signed in blank and left with him by Creagh. He placed the $5,000 in the Suffolk Bank in Boston, to the credit of the Herman-American Bank in New York, for account of the defendants, and sent information of this to defendants by telegraph.

Before the information and the advice-sheet reached defendants on the 21st, Creagh was indebted to them between $4,000 and $5,000 ; nevertheless, as the advice-sheet had requested that plaintiff’s draft be advised at once by mail, and at the same time saying the check would be sent on the 21st, there would, on these facts, only be room for an argument that the deposit of $5,000 was meant to be that check.

Such a conclusion would, however, disregard two controlling facts not yet mentioned. The first is, that on August 17, the defendants had written a letter requiring Creagh to reduce his indebtedness to them to $500, and there is no proof that any communication in •response had come from Creagh, before the 21st. The next is, that whatever had been the clerk's intention on the 20th, in writing on the advice-sheet “ check tomorrow,” the fact was his deposit of $5,000 on the 21st was not made in pursuance of that intention. The proof was clear from himself, that he made it in obedience to a letter that had been written by Creagh on the 20th, at his place, a few miles from Boston. The clerk at one time said that this letter was written by Creagh after he had left his office on the 20th. This was immediately corrected by the witness saying that he did not know that Creagh was at his office at all on the 20th. Indeed, so far as the proof went, there was nothing to show (but the contrary was to be inferred) that Creagh had any knowledge at all of the plaintiff’s purchase or payment. It is, therefore, impossible to find it to be the fact, that the advice-sheet written by the clerk was meant by him or by Creagh, to refer to the deposit. The defendants were justified in considering, in accordance with the fact, that the deposit was made in response to their demand for a reduction of the first indebtedness.

On this last point, there was evidence that the defendants believed that the deposit was made in response to a demand of them, made by telegraph on the 21st; but the inferences to be drawn from the letter in which this appears are not unfavorable to the defendants. That letter was written, as its contents show, after the defendants had received the advice-sheet and information of the deposit. This letter said:

“We telegraphed you to-day, approximate balance of $9,000” (which included the amount of the advice-sheet) “must be paid to Suffolk National Bank, for account of German-American Bank, immediately after the receipt of this telegram ; and we are informed that you have deposited with the Suffolk Bank $5,000 to our credit. This amount is totally insufficient to cover your indebtedness, and we have to request that you will at once pay to the Suffolk Bank, for our credit in the German-American Bank, $4,000.”

If the conclusions from the testimony given on behalf of plaintiff, be not correct this letter would show that the deposit was made, not as accompanying the advice-sheet, but to meet a demand on general account made by the defendants.

If the deposit of $5,000 had been large enough to pay off the indebtedness that existed, irrespective of the advice-sheet, and to leave some funds to be applied to the drafts specified in the sheet, large enough to protect plaintiff’s bill, it might be a question whether it was not defendant’s duty to make that application of the balance. The plaintiff should have proved what was necessary to such a case. The defendants proved that after applying to the general indebtedness the $5,000 there was not enough to protect plaintiff’s bill. It would seem that, with the balance and some funds afterwards remitted by Creagh, the defendants protected other bills to a greater amount-than £579. But the case was made to turn solely upon the way in which the $5,000 was to be applied by defendants.

After the defendants had applied the $5,000 to the general account, Creagh claimed that the remittance of $5,000 was sent by him to be used for plaintiff’s bill; but this claim did not alter the former facts which, at the time, fixed defendants’ rights.

Iam, therefore, of opinion that the judgment should be reversed, on the ground that it was not shown that the $5,000 was remitted for the benefit of the plaintiff.

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

Fbeediiait, J., concurred.


author: By the Court.—Sanford, J. Freedman, J.

text:
    JOHN S. ROSS, Plaintiff and Respondent, v. ELIZABETH HARDEN, as Administratrix, &c., and AMOS H. TROWBRIDGE, as Administrator, &c., Defendants and Appellants.
    EXECUTORS AND ADMINISTRATORS.
    Contracts of executors and administrators, although made in the interest, and for the benefit of the estate they represent, if made upon a new and independent consideration, moving between their promisee and themselves, are their personal contracts, and do not bind the estate (Austin e. Munro, 47 H. T. 360; Ferrin v. Myrick, 41 Id. 315 ; Cary v. Gregory, 38 N. T. Super. Gt. 127; and Ross v. Harden, 42 Id. 427).
    If, however, a valid contract was in fact made by the plaintiff with the deceased, the action can be maintained in its present form, and it can be averred in one count or statement of the cause of action (as in the complaint in this action), that both the intestate, and his representatives promised to pay (Benjamin v. Taylor, 12 Barb. 328; Ross v. Harden, cited above).
    In any case, a contract must be valid as between the parties to it, and must be supported by a good and sufficient consideration as between them, in order to be sustained and' enforced between their legal representatives, or between either of them and the legal representatives of the other. No contract can bind the legal representatives of a deceased person, that was not valid and binding upon that person at the time it was made. So, if a contract be invalid and void, as being against good morals, or in conflict with the established policy of law, .neither the parties to it nor their respective executors or administrators acquire any rights, or incur any liabilities under or by virtue of the same.
    A contract such as is alleged in the complaint in this case as having been made between the. plaintiff and defendant’s intestate, is void as between the parties to it, for want of consideration and mutuality, and as conflicting with the settled policy of the law which governs and controls the transmission and devolution of the estates of deceased persons, and the custody of such estates, upon and after the decease of their original owners (See the opinion of the court).

      EeM, also, that the evidence does not establish the making of such a contract as is alleged in the complaint, and that the motion of defendants for a dismissal on these grounds should have been granted, and the exception to the denial thereof was well taken (See the opinion of the court, Sakfobd, J., for a review of the facts, and the law applicable thereto, and the exceptions to the charge of the judge to the jury oil the trial of the case).

      EeM, also, that the intestate’s meaning, in giving his instructions as to the disposition of the property, should have been distinctly submitted to the jury as a question of fact, and also that, in any aspect of the case the verdict was excessive.
    Before Curtis, Ch. J., Sanford, and Freedman, JJ.

      Decided April 1, 1878.
    Appeal from a judgment rendered on a verdict in favor of the plaintiff, and also from an order denying defendants’ motion, made on the judge’s minutes, that the verdict be set aside and a new trial granted.
    The action was brought to recover $10,000, as the reasonable value of services alleged to have been rendered by the plaintiff, in and about the custody, preservation, and safe keeping of the personal property of defendants’ intestate, after his decease.
    The cause has been twice tried.
    At the first trial, the jury rendered a verdict in favor of the plaintiff for $8,476.80.
    Exceptions then taken by defendants were heard in the first instance at general term, in May, 1877, and were sustained. The verdict was set aside and a new trial ordered, on the ground that the plaintiff had been erroneously examined as a witness in his own behalf, in regard to a personal transaction between himself and the defendants’ intestate (40 N. T. Superior Oí. [10 J. & S.~\ 427).
    A second trial, in June, 1877, resulted in a verdict in favor of the plaintiff for $9,862.50, upon which judgment was entered for $10,414.72.

      The defendants moved for a new trial on the minutes, on the ground that the verdict was against the evidence, and excessive in amount.
    The motion was denied.
    Defendants appeal both from the judgment and the order denying their motion.

      John E. BurriTl, for appellant.

      George W. Lord, for respondent.
   By the Court.—Sanford, J.

The complaint alleges that the services of the plaintiff, for which he seeks compensation, were rendered in and about the custody and preservation of the estate of defendants’ intestate, after his decease, but at his request as well as at theirs ; and that they, in their capacity of administrator and administratrix, promised to pay him therefor. If such services were rendered at the request of the defendants, and not at that of their intestate, the action should have been brought against them in their individual, and not in their representative capacity. For, as was well observed by Freedman, J., when this case was formerly before the court, contracts of executors and administrators, although made in the interest and for the benefit of the estate they represent, if made upon a new and independent consideration, moving between their promisee and themselves, are their personal contracts and do not bind the estate (citing Austin v. Munro, 47 N. Y. 360; Ferrin v. Myrick, 41 Id. 315; Cary v. Gregory, 38 N. Y. Superior Ct. 127).

If, however, a valid contract was, in fact, made with the plaintiff by the deceased, the action may be maintained in its present form, and it may be averred in one count or statement of the cause of action, that both the intestate and his personal representatives promised to pay (Benjamin v. Taylor, 12 Barb. 328). There is, however, no authority for joining a cause of action founded upon the contract of an intestate with one founded upon the contract of his personal representatives. In the case last cited, but one contract was set forth, and that was with the testator. No contract with the executor was alleged. Here the averment is that plaintiff’s services were performed at the request both of the intestate and of the defendants, and that both promised to pay for them. There was, therefore, a misjoinder of alleged causes of action, assuming that a cause of action founded upon a valid contract of the intestate is sufficiently set forth.

At the trial no evidence was offered tending to show either a request or promise, made by or on behalf of the defendants or either of them ; and the plaintiff relied solely on the promise, which he claimed as an implication of law, that the defendants would pay for services rendered their intestate’s estate after his decease, upon his request made in his lifetime.

The recovery, therefore, is to be sustained, -if at all, upon the theory, that one may bind his legal representatives for a consideration not1 moving to himself, but to them, and, by a contract, which in its nature and by its terms, is not susceptible of performance by, or of enforcement against, himself; and upon the further theory, that one may delegate to a person or persons, other than those whom the law designates for that purpose, the care, custody and safe keeping of his property after death, not by last will and testament, executed in the manner and with the solemnities prescribed by law, but informally and by mere word of mouth.

The general principle, doubtless, is that for any cause of action arising upon a contract valid in its inception as against the contractor, suit may be maintained against his executor or administrator, irrespective of the question whether such cause of action actually accrued and became susceptible of enforcement in his lifetime, or not until after his decease.

But contracts may be made upon which no cause of action can arise against the personal representatives of the contractor after his decease. As, for instance, where the contract is purely personal to the deceased, and can, of necessity, be performed according to the intentions of the parties by no one else. The case of an author, who undertakes to write a specified literary work ; or of a musical composer, who agrees to compose an opera or oratorio ; or of an artist, who promises to paint a portrait, affords an apt and pertinent illustration. In each of these cases the undertaking is personal to the contractor, and can be performed, within the intent of the parties, by no one else. The legal maxim “ actio personalis moritur cum persona” is in such case to be invoked and applied. But, in any case, a contract must be valid as between the parties to it, and must be supported by a good and sufficient consideration, as between them, in order to be sustained and to be susceptible of enforcement between their legal representatives, or between either of them, and the' legal representatives of the other, as no contract can bind the legal representatives of a deceased person, which is not valid and binding upon himself. A contract founded upon an illegal consideration, or supported by no consideration whatever, would bind neither the parties to it nor their legal representatives.

So, if a contract be void as against good morals, or as in conflict with the established policy of law, it can be enforced by neither of the parties to it; and their respective executors or administrators acquire no rights- and incur no liabilities under or by value of it. I am of opinion, that a contract such as is alleged in the complaint as having been made between the plaintiff and defendant’s intestate is void, as between the parties to it, for want of consideration and mutuality; and also as conflicting with the settled policy of the law which governs and controls the transmission and devolution of the estates of deceased persons, and the custody and control of such estates upon and after the decease of their original owners. The power of directing, within certain limits, what disposition shall be made of his property after his decease, is accorded by the sovereign power, the people, to every person of suitable age and of sound mind and memory (2 R. S. 60). But that power must be exercised by will, in writing, and not otherwise, excepting in the case of Soldiers in actual military service, and mariners at sea. And every last will and testament must be executed and attested as the law prescribes, or it will have no force or validity whatsoever. According to the older authorities of the ecclesiastical law, the appointment of an executor was essential to a testament, and was said to be its substance, head, true formal cause, and very foundation (Williams on Executors, * 7). Indeed, the common law judges laid down the rule, in Woodward v. Lord Darcy (Plowd. 185), that “without an executor a will is null and void.”

That rule was long since abrogated, and a will may now appropriate the testator’s estate, and apportion it among the objects of his bounty, without specifying the particular individual who shall assume the duty of executing it. On the other hand, the mere nomination of an executor, without legacy or bequest, or direction as to which disposition he shall make of the estate, is sufficient to constitute a will, and, as a will, such nomination must be probated (Williams on Executors,* 124). But in all cases where the custodian of the estate is not nominated by will, the law reserves to itself the right and power of appointment, and charges any one who intermeddles with the goods of the deceased as for a trespass or tortious act, committed in his own wrong. Such intermeddlers or intruders were formerly known and dealt with, as executors de son tort; but that office or function is now abolished in this State, by statute. Any person, however, who takes, receives or interferes with the property or effects of a deceased person, is regarded as a trespasser, and is responsible, as such, for the value of the property or effects so taken or received, and for all damages caused by his acts to the estate (2 R. S. 449, § 17).

There are acts which a stranger may perform without subjecting himself to the hazards of such tortious liability,—such as locking up the goods for preservation, directing the funeral and defraying its expenses out of the effects of the decease, feeding his cattle, or providing necessaries for his children,—for these, it is said, are offices of kindness and charity, Any assumption of exclusive authority, control, or right of disposition, however, is a trespass, and may be treated as such by an executor, or general or special administrator, when qualified, notwithstanding the pretext of a license, power of attorney, or special request from the decedent in his lifetime. At the moment of death, eo instanti, the legal title to personalty vests, by operation of law, in the personal representatives of the deceased. Letters testamentary and of administration relate back from the date of their issue, to the date of the death of the testator or intestate, and no one claiming to act as the agent or attorney of a deceased person can demand or retain personal assets by a right paramount to that conferred by such letters.

It was conceded on the argument that the plaintiff could not have retained possession of the deceased’s box of securities for an hour, after demand from the defendants, when once their title was established by their letters of administration. And yet, as will shortly appear, the contract, if such it can be called, between the plaintiff apd their intestate, authorized and required him to retain the control of the property, not merely until it should be demanded by them, but until one James Gray should arrive from Ireland. And the principle upon which the contract is to be maintained, if at all, would, a#s it seems to me, sanction and sustain an arrangement whereby the legal rights and powers of executors and administrators would be subordinated to the instructions of their testator or intestate, orally imparted to a stranger. The contract now in question, if it meant that anything should be done after the death of the intestate, meant that the plaintiff should retain the control of the defendants’ property, not merely until the defendants should demand its delivery, but until a contingency should occur, which might be in the remote future, and indeed, which might never occur at all. ■ It is manifest that the defendants ■were under no obligation to accede to the terms, or to permit the performance of any such contract as that; nor Can I perceive any good ground upon which they should be required to recognize or respect it at all. It' lacked at least one of the essential elements which underlie the validity of all contracts. It was without mutuality, and as between the parties to it, no consideration moved from either to the other. The intestate might equally well have instructed the plaintiff to purchase or sell property for account of his estate, after his decease, and the plaintiff’s promise to do so, would, on the same principle, have raised an implied promise on the part of the defendants to abide by his action and compensate him therefor.

But the evidence in the case does not, in my j udgment, establish the making of any such contract between the plaintiff and the defendants’ intestate, as that alleged in the complaint; nor any request on the part of said intestate for the rendition of any service to be performed after his decease.

It appeared at the trial that on March 4, 1872, the plaintiff, who was then, and for eleven years had been, the confidential clerk of defendants’ intestate, and, as such, entrusted not only with the possession, care and custody of his securities, but, to a large extent, with their legal title and apparent ownership, brought to the house of said intestate from its accustomed place of deposit, in the vault of the Bank of the State of New York, the tin box in which his securities, consisting of bonds, railroad stocks, mining stocks, &c., &c., were usually kept. The plaintiff, in his capacity of clerk, had repeatedly had the care and custody of the box before, and had previously taken charge of these securities. They had been entrusted to his care for weeks at a time. He was the only clerk of the intestate ; he did all his business ; he had always been the custodian of the box in transferring it to and from the bank. The value of the securities in the box was about $1,200,000. A large portion of them then stood in the name of the plaintiff, and were transferable by him. When the box was brought up, defendants’ intestate had the key. He opened it, told the plaintiff to separate the securities to the extent of $500,000, and to get another box and put James Gray’s securities in it. Plaintiff did separate the securities as directed, under the supervision of his employer, who specified which securities were to go to James Gray. After the separation was effected, under the supervision of the intestate, all the securities were put back into the box. Intestate locked it, handed the key to the plaintiff, and “told him to take charge of the box and to put it in the Safe Deposit Company, until James Gray arrived from Ireland.” ”

This is all that was said on the subject. There was no reference to the condition of intestate as at all precarious in respect to the contingencies of life and death; nothing to indicate that he did not himself expect to survive until the contingency of Gray’s arrival should occur. These words alone constitute the request, upon which, as the plaintiff insists, a promise on the part of the defendants is in law to be implied that they would compensate him for services to be rendered in and about the care, custody and preservation of their intestate’s estate after his decease.

This interview occurred on March 4,1873. Intestate was in fact in a low condition of health at the time,, though evidently capable of attending to business.

He died, two days afterwards, March 6, 1873. The box remained at his house until his death. The plaintiff then took possession of it; removed it to his own house, it being too late to take it to the Safe Deposit. Company on that day. The next day he carried it back to the house of the deceased, but, subsequently, between one and two o’ clock, took it down to the Safe Deposit Company and put it in there; hired a safe, . and put the box in with its contents. It remained there from March 8 to March 14, when it was handed over to the defendants, who had then qualified as the legal representatives of its deceased owner.

Upon this state of facts, as disclosed by the evidence, a motion was made for the dismissal of the complaint, as well on the ground that the averments of the complaint in respect to the employment of the plaintiff by the deceased were not sustained by the proof, as upon the ground already considered, viz., that it was not competent for the decedent to enter into a contract with the plaintiff for the care and custody of Ms estate from and after his decease.

I am of opinion that the motion should have been granted, and that the exception to its denial was well taken, on both the grounds urged.

The same question, however, substantially, was again presented by exceptions taken to the charge of the court, and to his refusal to charge as requested; and it will perhaps be more convenient to consider the evidence, as bearing upon the question of a contract, in connection both, with the charge and with the ruling of the court in refusing to dismiss the complaint.

After evidence had been adduced on the part of the defense, relating mainly to the value of the plaintiff’s alleged services, the court charged, in effect, among other things, that if defendant’s intestate, in view of his situation and for the purpose of taking proper steps to secure his estate, called on the plaintiff to take charge of his estate, at Ms death, and he did take charge of it, he is entitled to compensation for the risk, although previously employed at a moderate salary ; for the contract with respect to such previous employment ceased with the life of the intestate ; and it is precisely at that point of this case that the new contract arises.

He further charged, that when the plaintiff took charge of the box, services were rendered which entitled him to compensation, and that the question whether there was a contract must be answered adversely to the defendants. To these portions of the charge exception was taken, and the defendants also excepted to the refusal of the court to charge, as requested, that the contract as testified to terminated at the death of the intestate. In response to such request the court had charged that the contract commenced on the death of the intestate, to which proposition exception was also taken.

These exceptions, in connection with that taken at the close of the plaintiff’s case to the refusal of the court to dismiss the complaint, clearly raise the question whether any promise on the part of the defendants or their intestate, that the plaintiff should receive compensation for services to be performed in and about the custody of his estate after his decease, can be implied from what occurred at the interview between them on March 4.

There being no conflict of evidence as to what occurred on that occasion, the question would seem to be one for the court and not for the jury, though it is not entirely clear that the learned judge at the trial so regarded it. A portion of the charge indicates that he at first proposed to submit to the jury, the question whether or not the intestate, in view of his situation, and for the purpose of taking steps to secure his estate, called on the plaintiff to take charge of the box, at his death. The fair purport of the charge, however, taken as a whole, is such that it must be deemed to withdraw from the jury, this, and all other questions, except that of the value of the services rendered by the plaintiff and the amount of the compensation to which he was entitled, for the jury were distinctly instructed that the question raised by the counsel for the defendants, as to whether or not there was a contract, must be answered against his view; and they were as distinctly charged, that when the plaintiff took charge of the box, services were rendered, for which he was entitled to compensation. Defendants’ counsel requested the court to charge, that in order to entitle the plaintiff,to recover, the jury must be satisfied that it was the intention of the intestate to enter into a new and independent contract, a,nd that the direction given to him was not intended to be given in the course of his existing employment. To this request the court responded as follows : “I have already said that it was for them to say what he intended.” To the refusal of the court to charge as requested, defendants’ counsel excepted. As already intimated, I am of opinion that in the absence of conflict or contradiction in regard to the facts of the case, the question, whether the defendants’ intestate is to be deemed to have requested the plaintiff to perform services for his estate, after his decease, and also whether any promise to compensate the plaintiff therefor is to be implied from such request, if made, are questions of law. Upon these questions the case was the same when the plaintiff rested and the motion for non-suit was made, as when finally submitted to the jury.

If the facts are not such as to warrant the inference, that in directing his clerk to deposit his box in the Safe Deposit Company, the intestate contemplated a service the performance of which was not to be immediate, but which was only to be contingent upon and to follow after his death, the complaint should have been dismissed. For it cannot be doubted that the transfer of the box to and from its appropriate place of deposit, and its care and custody during such transfer, were within the scope of the plaintiff’s existing employment, and were among the regular and accustomed duties which he was most frequently required to perform.

There was nothing in the language of the intestate to indicate that he contemplated the retention of the box at his place of residence during the remainder of his life ; and nothing in the evidence, save the fact that he did die two days afterwards, tends to show that he was in extremis, or that he apprehended his own immediate demise. Indeed, his expressed purpose of having the box remain in the Safe Deposit Company until Gray should arrive, would indicate that he expected to survive that event,—since he must be presumed to have known that in the event of his death, it would be the right and the duty of his legal representatives to take it into their possession,—and to dispose of its contents in due course of administration. It would have been altogether at variance with the habitual prudence and caution that had previously characterized the action of both the plaintiff and his employer, that a tin box, susceptible of easy demolition or depredation, and containing over a million of dollars in securities, largely negotiable, should be left lying around for an indefinite period, or should not, at once, be consigned according to their established usage, to some safe depository. And, therefore, it seems incredible that the direction given to the plain-'d fE could import a purpose to defer such consignment, during the then uncertain period of the intestate’s life, or could have any other than a present and immediate significance and effect. The words used are clearly susceptible of a construction which would give them immediate effect. They were such as the intestate would, naturally, have used, had he contemplated and designed an immediate deposit of the box in the Safe Deposit Company, irrespective of any question of his life or death. I think it would be doing violence to their ordinary and true import and significance to interpolate among them any such expression as “.after my death,” or equivalent phraseology.

The policy of the law regards with extreme solicitude and suspicion any parol disposition of property causa mortis ; and particularly where such disposition is to take effect only in case of, and after death. If any valid disposition of it, even with respect to its care and custody, can be effectively made, otherwise than by the observance of those testamentary attestations which the statute of wills requires, the purpose and intention of the owner should be established by the clearest and most indubitable evidence, and without any resort to conjecture or surmise. In the present case the alleged purpose of the intestate to devolve upon the plaintiff, the care and custody of his property upon his death and thereafter, rests only in conjecture and surmise. Indeed, in my opinion, the evidence so clearly indicates the intestate’s purpose that immediate action should be taken with respect to the deposit of . the box in the Safe Deposit Company, while he lived, as to withdraw his intention in that regard from the realm of conjecture, and to fix it within the bounds of reasonable certainty.

If such was the import of the intestate’s direction to the plaintiff, the duty devolved upon him was within the scope of his existing employment, and its performance entitled him to no compensation in excess of that thereby provided.

Entertaining no doubt that such is the only construction which can be given to the language used, I am of opinion that the complaint should have been dismissed on this ground, as well as on that first considered ; but if the matter be doubtful, the defendants were at least entitled to have the question- of their intestate’s meaning fairly and distinctly submitted to the jury, substantially in accordance with the terms of their request. I do not think this was done. The question of intestate’s meaning, if it can be deemed to have been submitted to the jury at all, by the learned judge in his charge as delivered, was in effect predetermined by specific instructions as to the law of the case, by which such submission was accompanied or followed. For the learned judge instructed the jury, as matter of law, that the question of contract or no contract, “raised by the learned counsel for the defendant, must be answered against- his view of that question.” It can hardly be asserted that a question of fact is submitted to a jury for their determination when they are at the same time instructed how, as matter of law, that question “must be answered.” The charge, throughout, assumed that there must be a recovery in favor of the plaintiff. “ When Mr. Boss, therefore, took possession of the box,” the learned judge observed, “there were services rendered, for which I must say to you he was entitled to compensation.” Again, he added, “It is true enough that what Mr. Boss did may be summed up as having been done in a few hours, but after all, he is entitled to compensation.” Still again, he remarked, “You should give what he is entitled to for the discharge of this sacred trust, which was put into his hands, and for the fidelity with which he discharged it.” Finally, after discussing at considerable length, the nature of that trust and the great responsibility involved in its execution, the court leaves the case to their consideration, in the assurance that they will be able to reach a decision “as to the proper amount which should be rendered.”

At a still later stage of the case, when requested to charge specifically that the contract terminated upon the death of the intestate, the court refused so to do, and emphasized the refusal by adding, “ I charge that the contract commenced on the death of the intestate.” Unless, under the circumstances of the case, the language employed by defendant’s intestate must of necessity be interpreted as importing an employment of the plaintiff, to take effect upon his decease, and as raising an implied promise on the part of the defendants to compensate him therefor, there was error at the trial, for which the judgment should be reversed. As already intimated, I am of opinion, not only that such is not their necessary import, but that no such construction can be given to them, without wresting them from their ordinary sense and significance, and according to them an elasticity of meaning of which they are by no means susceptible.

But assuming that the intestate’s directions as to the deposit of the box were intended to be executed after and not before his death, it may still be the case that under and by virtue of his original employment, the plaintiff was bound to obey them. He was employed at an annual salary, payable monthly. There is no presumption that the term of his employment would be precisely commensurate with the life of his employer. If not, he was entitled to receive compensation, at the rate agreed, during the entire period fixed for its continuance, irrespective of his employer’s de- ' mise in the mean time. If entitled to compensation, after the death of his employer, by virtue of his original contract of employment, he was under the reciprocal obligation to perform, afterward, at the request or by the direction of his employer, the same services which he had previously been required to render. The burden was upon him to show the expiration of his original term of service, and a new contract by whose terms he was to be compensated in a different manner, or at a different rate.

It would seem hardly necessary, in view of the length to which this discussion has been already protracted, to assign additional reasons for setting aside this verdict, and directing a reversal of the judgment and order appealed from; but my concurrence with the learned judge, who, when the case was formerly before the court, expressed the opinion that the verdict originally rendered was excessive, is so cordial and complete, that I cannot forbear to add a few words on that subject. During a period of eleven years next preceding the death of defendants’ intestate, the defendant had almost daily performed services precisely the same as that for which he now seeks to recover, and at a regular iixed compensation of $1,000 per annum, or less. When he received the directions for his obedience to which he now asserts his right to be paid, he was still engaged in the same service at the same rate, and was apparently satisfied to continue the relation indefinitely, on similar terms. No suggestion of dissatisfaction appears to have been made by him. He proposed no new stipulation as to a different mode or rate of remuneration. His omission so to do affords some evidence of his own estimate of the value of his services. And after all, what was the nature of the service to be rendered % It required the exercise of no particular knowledge, skill, training or experience. It was, one which any honest porter might well have executed, and which, within the observation of most people familiar with the conduct of business in financial circles, honest porters do very frequently perform. The court very properly charged that the responsibility of the undertaking was to be considered. He even suggested that the jury should put to themselves the question, how many men would be willing to take a million of dollars in valuable securities to their own house, and keep it one night, for any body, or for any sum. He ventured to say that- not one of the gentlemen who had testified as to the reasonable and moderate compensation which such institutions as deposit companies, trust companies, express companies, &c., &c., usually charge for assuming the custody of the securities and funds of their customers, would themselves be persuaded to take a million dollars in such property, and take it to their homes and keep it for any body. And he added, that there would be not only the risk of answering for it in money, but that a man’s whole reputation might be at stake if there was the slightest misfortune, even without fault, and the money was not forthcoming.

While it is doubtless proper, and even essential, that the responsibility attaching to services rendered should be considered in ascertaining and assessing their value, it is easy to exaggerate the degree of responsibility which such a service as that rendered by the plaintiff really involves. And while I am not disposed to impugn the charge of the learned judge as erroneous in this respect, I apprehend, and indeed am constrained to believe, that his observations may have tended, and probably did tend to impress the minds of the jury with an inordinate conception of the value of plaintiffs’ services, not only after, but possibly even before the death of his employer ; and it may be that a sense of the inadequacy of his previous compensation induced them to add somewhat to the amount which would fairly remunerate him for the particular service in question. That service required ordinary prudence and care, and common honesty, but it involved no such labor and no such responsibility as the law devolves on executors, administrators, and trustees, in the performance of their respective functions as the custodians of estates. And yet the claim of the plaintiff was for but little less than the law allows to such functionaries when the funds within their custody amount to a million of dollars ; and the verdict of the jury fell but little short of the full amount of his claim. I do not think that the plaintiff’s possession of the key of the box enlarged his responsibility. He had no authority to open it after the testator’s decease, or to deal with it, if at all, otherwise than by immediately transferring it to the care find custody of the Safe Deposit Company, agreeably to the instructions he had received from his employer. Doubtless such transfer was a sacred trust, to be faithfully discharged ; but when I “ consider the plaintiff’s relations with the deceased, and that a species of moral obligation devolved upon him to discharge this duty, irrespective of any question of compensation,” I cannot but regard the verdict as excessive, and its approval as establishing a very questionable precedent. That its amount, approximately, should have received the sanction of two juries, ought not, in my judgment, to influence the action of the court, in favor of sustaining it where, as in the present case, the recovery may have been aggravated by the circumstance that the only limitation imposed upon the liberality of the jury by the judge who presided at the trial, consisted in a suggestion that their estimate of the plaintiff’s services should not be such as would incur the risk of having the court exercise its judgment in setting aside their verdict as extravagant.

As this timely warning appears to me to have been utterly disregarded, I think the verdict should be set aside.

The motion to dismiss the complaint should have been granted. The verdict must be set aside, the judgment and order appealed from reversed, and a new trial granted, with costs to abide the event.

Curtis, Ch. J., concurred in the above opinion.

Freedman, J.

I agree to reverse, on the ground that the intestate’s meaning in giving the instructions as to the disposition of the securities should have been distinctly submitted to the jury as a question of fact; and upon the further ground that in any aspect of the case the verdict is excessive.


author: By the Court.—Sanford, J.

text:
    JAMES C. Y. CORNWALL, as Administrator, &c., Plaintiff and Respondent, v. ROBERT J. MILLS and JOHN W. AMBROSE, Defendants and Appellants.
    STATUTE REQUIRING COMPENSATION FOR CAUSING DEATH BY WRONGFUL ACT, OR NEGLECT OR DEFAULT. LAWS OF 1847, CHAP. 450. AMENDED 1870, CHAP. 78.
    The statute does not limit the recovery to the actual pecuniary loss proved on the trial (Ihl v. Forty-second St. and Grand St. Ferry R. R. Co., 47 JV. F. 317, and cases there cited).
    The evidence of pecuniary injury to the husband in this case was quite sufficient to sustain the recovery.
    Very slight evidence of pecuniary injury or loss is sufficient to warrant the submission of a case to a jury, who are thereupon to award “ such damages as they shall deem, a fair and just compensation therefor."

    If the jury is satisfied that pecuniary injury resulted from, the death, they are at liberty (within the statutory limitation) to fix the compensation according to their sense of justice and right.
    The direction in this statute to the effect, that the damages recovered in such an action shall draw interest from the time of the death of such deceased person, and shall be added to the verdict, and inserted in the entry of judgment, is not in conflict with the constitution.
    Before Curtis, Ch. J., and Sanford, J.

      Decided April 1, 1878.
    Appeal by defendants from a judgment for $6,085.33, entered October 33, 1877, on a verdict in favor of the plaintiff ; also from an order denying defendant’s motion, made on the judge’s minutes, for a new trial, on the ground that the damages are excessive, the verdict against the weight of evidence, the evidence insufficient to sustain the verdict, and on exceptions taken at the trial; also from an order granting an extra allowance of five per cent.; also from an order approving the insertion by the clerk, in the entry of judgment, of an item of $646.53, for interest on the verdict of the jury, from the time of the death of the plaintiff’s intestate.
    The action was brought under the “Act requiring compensation for causing death by wrongfulact, neglect, or default” {Laws of 1847, ch. 450, amended, 1870, ch. 78), to recover the damages sustained by the plaintiff, as administrator of his deceased wife, in consequence of her death, through the negligence and unskillfulness of the defendants in excavating the highway, at the intersection of Broadway with the Fifth avenue, at Twenty-third street, in the city of New York, for the purpose of laying gas-pipes therein.
    It appeared on the trial, without contradiction, that on the morning of December 10, 1875, the plaintiff’s intestate (Ms deceased wife), wMle crossing the Fifth avenue upon a diagonal cross-walk, extending from the northwesterly to the southeasterly corner of the Fifth avenue and Twenty-third street, fell into an excavation or pit which had been dug by the defendants in the roadway, under and on both sides of the cross-walk, for the purpose of laying gas mains beneath the surface. In thus falling she received injuries from which her death directly resulted. She died four or five days afterwards, at the Fifth Avenue Hotel, whither she was carried immediately after the fall.
    The locality at which the accident occurred is one of the most crowded thoroughfares in the city, and is generally thronged by a continuous stream of vehicles and pedestrians. The excavation, as originally constructed, -or intended so to be, was about two feet wide and from three to five feet deep, and extended for a considerable distance'to the north and south of, as well as directly underneath the cross-walk. The excavation intersected the tracks of the Twenty-third street horse railroad as well as the cross-walk ; and at the point of such intersection the trench had caved in! The hole was larger there than elsewhere, its width at that point being six or seven feet. It was a dangerous hole. The cross-walk, before the excavation was made, consisted of three courses of stone, two of which had been removed by the defendants on the morning of the accident, leaving but one for pedestrians to walk over. This was about two feet in width. The earth taken from the excavation was heaped up on both sides of it. The cross-walk, however, or so much of it as the defendants had allowed to remain intact, was unobstructed. No railing or other barrier, for the exclusion or protection of people attempting to pass over the cross-walk, had been erected, and no precaution whatever had been adopted by the defendants for the purpose of preventing accidents. People had been crossing there all the morning; in great numbers, and among them many ladies.
    The deceased left, surviving her, the plaintiff, her husband, and her father and several brothers and sisters, next of kin.
    Exceptions were taken to the refusal of the court to dismiss the complaint, at the close of the plaintiff’s case, and to portions of the judge’s charge.
    The court charged in effect, among other things, that there could be no recovery, unless it appeared from the evidence that the injured party was free from fault or negligence contributing to the injury; and that the law required on her part, the exercise of no more than ordinary care.
    The case was submitted to the jury, with an intimation, that they would probably have no difficulty in finding that the defendants were guilty of negligence in leaving the trench exposed in the manner they did ; but with the positive instruction that the plaintiff could not recover, if the deceased was negligent in any degree; but that he would be entitled to a verdict, if, on all the evidence, they decided that she was not guilty of negligence contributing to the injury.
    Exception was taken to so much of the charge as stated that the law required that the deceased should exercise only ordinary care.
    The jury rendered a verdict in favor of the plaintiff for $5,000.
    The court declined to set aside the verdict as excessive, or as against the weight of, or as unsupported by the evidence, and denied the defendant’s motion, made on the minutes, for a new trial.

      George H. Starr, for appellant.

      Ambrose Monell, for respondent.
   By the Court.—Sanford, J.

The rules of law applicable to cases of this description, have been so well settled, by a long series of adjudications, that there scarcely seems room for misapprehension or discussion with respect them. To warrant a recovery, the injury or death complained of must have resulted solely from the wrongful act, neglect, or default of the defendant, and it must affirmatively appear that the person injured or killed was free from negligence contributing to the injury.

In the present case, it does not appear to be seriously contended that there was any error in submitting to the jury the question of defendant’s negligence, even with the very decided intimation as to the opinion of the court upon that subject. It is, however, strenuously insisted, that not only did the plaintiff fail to exonerate his inte°state from the charge of contributory negligence, but that the evidence adduced on his part so clearly established the fact that her own incaution or rashness occasioned the injuries which resulted in her death, that the court should have withdrawn the question altogether from the jury, and should have determined the case in favor of the defendants by dismissing the complaint.

While it is essential that the absence of negligence contributing to the injury should be made to appear affirmatively, on the part of the claimant, it is not always easy to establish that negative fact or conclusion by direct and positive testimony, and it is particularly difficult, and at times impossible, to do so, in cases where the injury has resulted in death. The mouth of the injured party is, in such case, closed, and resort must therefore, of necessity, be had to the next best evidence attainable, which often consists in the •circumstances of the case, and in the presumptions and inferences, which may justly arise or be derived therefrom. The absence of contributory negligence may be made to appear from such circumstances, as well as from evidence directly establishing the fact, and it may be assumed, in weighing those circumstances, that all creatures are desirous of preserving their lives, and keeping their bodies from harm (Morrison v. N. Y. C. R. R. Co., 63 N. Y. 643). The evidence showed that the deceased had enjoyed excellent health, previously to the accident, that she had no physical difficulty, that her eyesight was not defective, and that, in attempting to pass over the trench, upon the cross-walk which traversed it, she but followed the example of thousands of other people who preceded her. These facts tend to show that in her endeavor to effect the passage, she was guilty of no negligence. She did nothing but what other people, similarly situated, were accustomed to do. The law required of her ordinary care, and she had the right to presume, that, in the absence of any barrier or other intimation of insecurity, the cross-walk, ordinarily used, and then in actual use by multitudes, would afford her the means of safe transit, without a resort to any extraordinary precaution. The piles of dirt which lined the excavation on either side were quite as likely to screen as to indicate the impending peril, and the probability is that she found herself in a precarious and critical position before she had reason to anticipate its difficulties and dangers. The vigilance and caution to be exercised in avoiding disaster should not necessarily be commensurate with the danger that is imminent, but with the danger that is to be apprehended ; and the necessity for the circumspection is qualified by the absence of those indications of peril which usually precede or attend the approaches of harm.

The observations contained in the opinion of the court in the case of Thurber v. Harlem B. M. & F. R. R. Co., 60 N. Y. 326, in reference to the granting of non-suits in actions for negligence, are in my judgment peculiarly applicable to the present case, and should control its decision. “ It is not enough,” say the court, “to authorize a non-suit, that there is evidence which would have warranted the jury in finding that the plaintiff was negligent, and that his negligence contributed to the injury. The question of negligence depends very much upon circumstances, and is addressed to the judgment of men of ordinary prudence and discretion, and is ordinarily for the jury. When the inferences to be drawn from the proof are not certain and incontrovertible, it cannot be decided as a question of law by directing a verdict or non-suit, but must be submitted to the jury.” In this case, I think it would have been error for the court to decide, as matter of law, that the attempt to cross the street, under the circumstances, was an act of negligence, and I am even of opinion that the evidence tends so decidedly the conclusion that there was no negligence on the part of the plaintiff’s intestate, as to justify a direction to find for the plaintiff had such direction been given. The submission of the question to the jiiry, in view of the possibility that men of ordinary prudence and discretion might perhaps differ as to the character of the act, under the circumstances of the case, was a concession to the defendants, which should be the occasion rather of congratulation than complaint on their part. It does not lie with them to impute legal error to a judge who has accorded to them a larger liberality than that to which they were entitled. The motion for non-suit was properly denied. The case was submitted to the jury upon proper instructions as to the law, and the verdict is not only not against but is amply sustained by the weight of the evidence. It is no objection to the charge that the judge omitted to define for the instruction of the jury the term, “ ordinary care.” The rule as laid down in that regard was correct. If the defendants desired more precise instructions upon the point, or a technical definition, they should' have preferred a specific request to that purport.

The evidence of “pecuniary injury resulting from such death to the husband and next of kin,” was quite sufficient to sustain the recovery. The statute does not limit the recovery to the actual pecuniary loss proved on the trial (Ihl v. Forty-Second St. and Grand St. Ferry R. R. Co., 47 N. Y. 317, and cases cited). Very slight evidence of pecuniary injury or loss is sufficient to warrant the submission of the case to the jury, who are thereupon to award “such damages as they shall deem a fair and just compensation therefor.” If they are satisfied that pecuniary injuries resulted, they are at liberty, within the statutory limitation, to fix the compensation therefor according to their sense of justice and right.

The statute (Laws of 1870, ch. 78) expressly directs that “the damages recovered in any such action shall draw interest from the time of the death of such deceased person, and that such interest shall be added to the verdict and inserted in the entry of judgment.” This provision is impugned as ultra vires on the part of the legislature, and contrary to organic law. We are not referred to any particular clause of the constitution which is supposed to be invaded by the enactment, and we perceive no reason why it should not be competent for the legislature to direct the allowance of interest on the damages awarded, as well from the date of the death of the deceased, as from that of the rendition of the verdict. The law has long allowed interest on verdicts to be computed by the clerk, added to the costs of the party entitled thereto, and inserted in the entry of judgment {Code of Pro. § 310). So far as we are aware, no objection on constitutional grounds has ever been urged against this provision of law, nor would any such objection, in our opinion, be tenable. The direction contained in the statute now under consideration is analogous, and is not obnoxious to criticism as in conflict with the constitution.

The extra allowance was authorized by law, and the discretion exercised by the learned judge who presided at the trial, in fixing its amount, cannot properly be questioned.

The judgment and orders appealed from should be affirmed, with costs.

Curtis, Ch. J., concurred.