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    William Anderson and Another, Respondents, v. George W. Steitz, Appellant.

      Proof by consent of a cause of action notin the complaint — too late to object upon appeal — burden of proof to excuse delay in the execution of a building contract — assignment of the contract.

    Where a cause of action, which was not the same as that alleged in the complaint, was tried with the consent of the parties, it is too late, upon appeal, to raise any question on that account as to the regularity of the trial.
    Where a contract calls for the completion of certain work before a specified date, and the person required thereby to complete such work did not complete the same within the time specified, the burden of proof is upon him to excuse his delay. . . .
    A provision in a building contract that “the contractor shall not let, assign or transfer this contract or any interest therein without the written consent of the architects,” is inserted for the purpose of preventing the contractor from subletting any part of the work, and does not relate to an assignment of a claim for any amount which may become due upon the contract.
    Appeal by tbe defendant, George ~W. Steitz, from a judgment of the County Court of Monroe county in favor of the plaintiffs, entered in the office of the clerk of the county of Monroe on the 12th day of April, 1892, upon the decision of the court.
    The contract upon which this action was brought contained the following provision, “ the contractor shall not let, assign or transfer this contract or any interest therein without the written consent of the architects.”

      Eugene Van Voorhis, for the appellant.

      Fanni/ng c§ Williams, for the respondents.
   Lewis, J.:

One James P. Kane entered into a contract with the defendant to do the carpentry work upon some buildings in the city of Rochester at the agreed price of $7,000.

He proceeded with the work under the contract, and during its progress, at the request of the defendant, he did some extra work upon the buildings. He assigned to the plaintiffs his claim against the defendant for work upon the buildings, and they brought this action in the Monroe County Court, claiming in their complaint to recover $580.27 as a balance due under the contract referred to.

The action came on for trial, and at the close of the evidence, at the suggestion of the presiding judge, the jury was excused and the case was submitted to the court for its decision, and the court thereafter found and decided that the plaintiffs, as such assignees, were entitled to a judgment against the defendant for $320, with interest thereon from June 1, 1890, and a judgment was thereupon entered, and the defendant appealed therefrom to this court.

It appeared upon the trial that Mr. Kane, the contractor, had been paid the entire contract price of $7,000 prior to his making the assignment to the plaintiffs. "Without objection by the defendant the question of extra work was litigated upon the trial; the plaintiffs proved that Mr. Kane did extra work upon the houses at the request of the defendant and the value thereof.

This was not the cause of action alleged in the complaint, but it having been tried by the consent of the parties, it is too late upon appeal to raise any question as to its regularity. The defendant interposed.as a defense to the action a claim for damages arising out of a breach of the contract on the part of Kane, which he claimed to set off against the plaintiffs’ demand. Judging from the ' record, it would seem that the case was tried in a rather confused and unsatisfactory manner*, and it is somewhat difficult to determine the theory upon which it was finally decided. It was the plaintiffs’ contention that the extra work was of the value of $700.40, the defendant claimed to have an offset arising out of the breach of the contract amounting to $857.03. A Mr. Crouch testified that Kane and the defendant had an interview in his presence after the work was completed and before the assignment to the plaintiffs; that the parties looked over the items composing the extras, and that it was agreed by them that they amounted in value to the sum of $513.40.

The trial court found and decided that the parties had such an interview and that they adjusted the value of such extras at that sum; he further found that the extras were reasonably worth that amount. One item of the damages claimed by the defendant was for demurrage, arising out of the failure of. Kane to complete his contract within the time agreed upon, amounting to $680.27. The trial court, and we think upon evidence justifying its finding, rejected this item of damages. There was evidence to show that at the time of the looking over the accounts as mentioned, the defendant paid Kane the difference between $857.03 and $680.27, being the sum of $176.76. No account seems to have been taken of this payment by the trial court in making its decision. The defendant made other claims for damages arising out of injuries to his house and furniture caused by defects in the roof of the house. The court found that the defendant was entitled to $354.27 for such damages which should be set off against the plaintiffs’ claim. Some of the reasons given by the trial court for disallowing the claim'for demur-rage are not very satisfactory. The contract called for the completion of the work by Kane on or before the 1st day of March, 1890. He concededly failed to complete the contract within the time, but there was evidence tending to excuse his default. In that respect the burden of proof was on the plaintiffs to excuse the delay in completing the work, and not, as the trial court seemed to think, on the defendant; hut, as stated, we think there was sufficient evidence justifying the conclusion which the court came to upon that question.

The court having found that the extras were of the value of $513.40, and that that amount had been agreed upon between the parties as their correct value, and having found that the set-off to which the defendant was entitled was $354.27, it would seem to follow that the amount the plaintiffs were entitled to recover was the difference between those two sums, to wit, $159.13, instead of the sum of $326, as found by the court; this latter amount was manifestly arrived at by deducting the defendant’s bill of $354.27 from $680.27, that being the amount the court in another part of its decision found was due and unpaid for said extras. The findings in that regard are inconsistent, and we fail to find any satisfactory evidence to sustain the latter finding.

The provision against assigning the contract, or any interest in it, to which our attention is called by the appellant’s counsel, evidently did not relate to an assignment of a claim for any amount whicli might be due upon the contract. The purpose of the clause undoubtedly was to prevent the contractor from suh-letting any part of the work.

There should he a new trial of the action, with costs to abide the event, unless the plaintiffs stipulate to reduce the amount of the damages to $159.13, with interest thereon from June 1, 1890; and if such stipulation be given, and the judgment reduced accordingly, it should be affirmed, but without costs of this appeal to either party.

Dwight, P. J., and Haight, J., concurred.

So ordered.


source: Caselaw Access Project

author: Lewis, J.:

license: Public Domain

text:
    William H. Fancher, Plaintiff, v. The New York, Lake Erie and Western Railroad Company, Defendant.

      Liability of an employer for defective apparatus — when a question of fact — what risks an employee assumes.

    In an action brought by the fireman of an engine to recover damages resulting from injuries sustained through his falling from the engine while shaking the grate, it was proved that the grate was so constructed that it was sometimes lifted from its bed when being shaken so as to allow the bar for shaking it to be thrown so far to one side as to cause it to slip from the fireman’s hands; that a leaky faucet had, on the day of the accident, covered the iron plate upon which the fireman stood while shaking the engine with water so as to make it slippery; that the plaintiff did not know of the tendency of the grate to slip from its bed, although he had ridden on the engine before; that he tried to fix the faucet, which had been leaking for several weeks, but of the leaky condition of which he did not learn until just before the, accident; that while he was attempting to shake the engine the grate was lifted out of its position, the bar slipped from his hands, and at the same time his feet slipped from under him, and he fell from the engine and was injured.
    It was also shown that on previous occasions, when the plaintiff had shaken such a grate as this, he had been supplied with the means of lengthening the shaking bar which facilitated the shaking of the grate.

      Held, that there was a radical defect in the grate and the shaking apparatus which rendered the plaintiff’s hold upon the lever insecure, that he was liable to be precipitated out of the cab in case iiis hands and feet slipped in the manner stated , that the water from the faucet was an important factor in causing the accident, and that the evidence presented questions of fact which should have been submitted to the j ury for it to find whether the defendant had not failed to provide the plaintiff with proper machinery and appliances with which to do the work required of him, and as to whether the accident was not the result of the defendant’s negligence in that regard.
    Where the absence of safeguards, such as chains across the openings between the cab and the tender, is visible to the plaintiff h,e must be held to assume the risk attending the use of the engine without them.

      MotioN by tbe plaintiff, William H. Fanclier, for a new trial on a case containing exceptions, ordered to be beard at tbe General Term in tbe first instance, upon a judgment of nonsuit rendered at the Monroe County Circuit on tbe 12th day of October, 1892. ■

      Walter /S. Rxtbbell, for the plaintiff.

      E. G. Sprague, for the defendant.
   Lewis, J.:

Plaintiff was, at tbe time of tbe accident, and bad been for several years prior thereto, in tbe employ of the defendant as a locomotive fireman. A part of bis duties as such was to shake tbe grate under the fire in the engine. While performing this duty on tbe 3d day of October, 1889, be sustained injuries caused, as be claimed, by the. negligence of tbe defendant, and be brought this action to recover bis damages.

At tbe close of his evidence be was nonsuited, and bis exceptions were directed to be beard in tbe first instance at tbe General Term. Tbe defendant bad two kinds of engines in use at tbe time. One was known as tbe foot-board engine, and tbe other as tbe stem-winder engine. Plaintiff bad worked upon tbe former class of engines mainly. Tbe grates in tbe foot-board engines were arranged to- be worked in sections, and were easily moved. Plaintiff’s usual run was between Rochester and Elmira.

He was directed, on tbe morning of tbe day of tbe accident, to go over bis usual route with a stem-winder engine, known as No. 98, which was tbe one upon which tbe accident occurred. He did as directed. Tbe train left Rochester for Elmira about six o’clock in tbe morning. It is tbe contention of the plaintiff that tbe accident was caused by defects in tbe grate and tbe machinery of tbe engine for which tbe defendant was responsible. Three defects are complained of. Tbe grate was composed of a number of sections, which were so connected that when tbe grate was shaken it necessarily moved as one member.

There was a shaker bar which, when not in use, lay down upon its side; when used, it was brought up to a perpendicular position, and was worked back and forth, crosswise of the engine. There was an arm or projection on each end of tbe several sections composing the grate. These rested in sockets and were arranged to be held in position solely by their own weight and that of the coal upon them, there being no cap or other appliance over the ends of the arms or rods to keep them in position when the grate was being shaken.

There was an ash pan under the grate to catch and hold the ashes and cinders passing through the grate from the burning coal. The sections of the grate had upon their sides projections or fingers some six inches in length, which, when the grate was manipulated, worked up and down, passing by each other. There was evidence tending to show that after the fire had continued for a considerable time ashes and cinders were liable to accumulate in such quantities in the ash pan under the grate that the fingers or projections mentioned, when the grate was shaken, would occasionally strike or press upon the cinders and ashes below, and thereby lift or force the arms of the grates out of their sockets. This, the evidence showed, had happened quite often with this grate before the time of the accident.

If the grate remained in its proper position when shaken, the lever or shaker bar, when it was worked back and forth, would remain so nearly in an, upright position that the operator could easily retain his hold upon it; but when the grate was lifted out of its sockets it would permit the shaker bar to pass so far over as to be nearly or quite at right angles with the body of the person operating it, so that the hands of the fireman were liable to slip off the end of the lever. The fireman’s place to stand when shaking the grate of the stem-winder engine, is in the gangway between the engine and the tender. There is an opening at each end of this gangway of sufficient size to permit the engineer and fireman to pass through it in getting on and off the engine. On engine 98 the place for the fireman to stand when he was engaged in shaking the. grate was covered with sheet iron, which had become very smooth. There was a water tank near this standing place mentioned ; it had a defective faucet, out of which water ran on the day in question, and spread over the standing place mentioned, making it slippery. The evidence tended to show that this leaky condition of the tank had existed for several weeks immediately prior to the time of the accident.

Great force and power were required to work the grate upon this engine, for tbe reason that it all moved at one time. There was evidence showing that there were grates in common use upon other locomotives which could be moved in sections, and which required much less power to shake them than it did to shake the grate of engine 98.

After the train had passed some twenty-three miles below Avon on the day in question, plaintiff attempted to shake the grate. He was obliged, in order to move it, to use all his strength. Standing upon the wet floor he pulled the shaker bar toward himself with such force that the grate was lifted out of its sockets, thus permitting the shaker bar to pass over so far towards plaintiff that his hands slipped off of the lever, his feet at the same time slipped from under him, and he fell back out of the cab through one of the openings mentioned upon the ground, and was injured.

The train was moving at the time about thirty miles an hour. Water had been leaking from this faucet a month or more before the time of the accident — for a sufficient length of time to justify the inference of constructive notice of its condition to the defendant. The plaintiff had not discovered, and did not know that it had leaked until just before the time of the accident. There was evidence showing that the plaintiff had worked upon this same engine on some prior occasions, but he was not aware of the liability of the grate to be lifted out of its position, nor of this leaky faucet.

On the few occasions that he had theretofore shaken such a grate he had been provided with an appliance for lengthening the shaker bar, which facilitated the shaking of the grate. This was not furnished to him on the day of the accident. It is apparent that there was a serious and radical defect in the grate and in the shaking apparatus which rendered the fireman’s hold • upon the lever, in the contingency mentioned, insecure ; standing, as he was obliged to in operating the shaker bar, opposite the openings in the cab heretofore mentioned, he was liable to be precipitated out of the cab in case his hands and feet slipped in the manner stated. This was a danger to be apprehended.

The water from the leaky faucet was an important factor in causing the accident. Many of the defendant’s stem-winder engines were provided witli chains crossing these openings in the cab for the purpose of preventing the employees from falling out of the engine. Engine 98 was not provided with these chains, and that is one of the causes of the plaintiff’s complaint.

The absence of these chains, however, was plainly visible to the plaintiff, and he must be held, we think, to have assumed the risk attending the use of the engine without them. But not so with regard to the' leaky faucet and the defective grate and shaker bar. These defects he was helpless to remedy. Tie discovered, for the first time, immediately before the accident, the condition o'f the faucet, and made an ineffectual attempt to repair it. Tie knew that the grate was worked with great difficulty, but he was not aware of its liability to be lifted out of its place, thereby allowing the shaker bar to pass over so far. It was a part of his duty, as fireman, to shake the 'grate from time to time; the movement of the train depended upon his performance of that work; if he neglected it the engine would not have sufficient draft to make the requisite steam. We are of the opinion that the evidence presented questions of fact which should have been submitted to the jury/ They should have been allowed to find whether the defendant had not failed to provide the plaintiff with proper machinery and appliances with which to do the work required of him, and whether the accident was not the result of defendant’s negligence in that regard.

Whether the plaintiff was guilty of contributory negligence was also a question for the jury. Plaintiff’s motion for a new trial 'should prevail, and a new trial should be granted, with costs to abide the event.

Dwight, P. J., Haight and Beadley, JJ., concurred.

Plaintiff’s motion for a new trial granted, costs to abide the event.


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    Charles W. Brown, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.

      Hackman not protected by chapter 676 of the Laws of 1892' — right of a railway corporation to give a coach company exclusive privileges upon its premises.

    Assuming that the business of a coftunon hackman comes under the general definition of a common carrier, it does not come within the protection of the provisions of chapter 676 of the Laws of 1892.
    A contract was made between a railroad company and a coach company whereby the latter, for a valuable consideration, was given the exclusive right to have its agents upon the trains of the former running to and from a certain city, for the purpose of soliciting business for the coach company, and also the exclusive right to enter the yards of the railroad company with its carriages and to there solicit and receive passengers who desired to go to any point in such city.
    The charges of the coach company were regulated by such contract, and were reasonable.

      Held, that such contract was not against public policy,
    That an order restraining the railroad corporation from granting such coach company, which was a competitor for such business with others, an exclusive right to transact its business as a common carrier in the depot, buildings, yards and grounds of the railroad company was improperly granted and should be reversed
    Appeal by tbe defendant, Tbe New York Central and Hudson River Railroad Company,, from an order of tbe Supreme Court, made at tbe Erie County Special Term and entered in tbe office of tbe clerk of the county of Niagara on the 19th day of July, 1893, enjoining the defendant from giving tbe Miller & Brundage Coach Company (Limited) a preference or exclusive right to transact its business as a common carrier in tbe depots, buildings, yards and grounds of tbe defendant.

      Albert A. Harris, for tbe appellant.

      P. F. King, for the respondent.
   Lewis, J.:

Defendant is a railroad corporation engaged in the business of a common carrier. It has at tbe city of Niagara Falls a passenger station at which it receives and discharges its passengers with their baggage. It has a yard adjoining tbe depot around which it lias erected a fence in such a manner as to prevent access thereto except through gates provided for that purpose. There -is a platform along one side of tbe yard which leads from the stopping place of the cars to the passenger depot. The defendant has entered into a written agreement with the Miller & Brundage Coach Company (Limited), by the terms of which, for a valuable consideration, paid by the coach company, it is given the exclusive right to have its agents upon the defendant’s trains of cars running to and from the city of Niagara Balls for the purpose of soliciting business for the coach company; the contract also gives said coach company the exclusive right to enter said yard with its coaches and carriages and solicit and receive any passengers stopping at said station who may desire to go to points in the city of Niagara Balls. Passengers after alighting from defendant’s cars pass along the platform mentioned, adjacent to. the yard, where they may, if they so desire, enter the Miller & Brun-dage carriages and coaches and be driven out through the gates onto the street.

The }Dlaintiff is the owner of two carriages with teams of horses, and is engaged with them in the transportation of passengers about the city of Niagara Balls. He and others engaged in like business are not allowed to enter the yard; they stand with their carriages upon the street near the depot, and there solicit such passengers as have not already been secured by the Miller & Brundage Company. Manifestly, the situation gives to the coach company great advantages over the other carriages in securing business. The defendant, although requested so to do, has refused to allow the plaintiff to go upon its trains to solicit patronage for his carriages, or to enter the yard mentioned for a like purpose. It does not appear that the plaintiff has offered to pay the defendant anything for the privileges which he desires; he claims that the preference thus given the Miller & Brundage Company is a violation of section 34 of chapter 565 of the Laws of 1890, as amended by chapter 616 of the Laws of 1892, and he commenced this action to restrain the defendant from giving to the said coach company the exclusive privileges mentioned, and he obtained at the Erie Special Term a temporary injunction restraining the defendant, its employees, etc., from “granting, permitting, nfaintaining or allowing to the Miller & Brundage Coach Company (Limited) at Niagara Balls, in competition with the plaintiff herein in the business of a common can-ier, a preference or exclusive right or privilege to transact its business as a common carrier upon or in tbe depot buildings, or upon or in its yards or grounds, and from hindering, prohibiting or excluding the plaintiff from entering the defendant’s depot and buildings, going upon its grounds at Niagara Falls, transacting his business as a common carrier thereon, while and so long as the Miller & Brundage Ooacli Company shall be permitted and allowed by the defendant herein to enter its depot buildings, to go upon its grounds at Niagara Falls to transact the business of a common carrier thereon.” -

That part of the motion relating to soliciting upon defendant’s cars was not granted.

No complaint is made of any preference being given to the Miller & Brundage Company in delivering the people at the defendant’s depot who desire to take passage upon defendant’s trains. They both enjoy equal privileges in that respect, as all passengers are requirechto pass through the depot and there .procure their tickets before entering the yard to take the cars; they all, therefore, alight froi:. carriages at the sidewalk in the public street.

Plaintiff bases his right to the order upon the statute referred to. The original section 36, as passed in 1850 (Chap. 140), provided that every railroad corporation “shall furnisli sufficient accommodation for the transportation of all such passengers and property as shall within a reasonable time previous thereto be offered for transportation at the place of starting and the junctions of other railroads, and at usual stopping places established for receiving and discharging way passengers and freights for that train, and shall take, transport and discharge such passengers and proj>erty at, from and to such places on the due payment of the freight or fare legally authorized therefor, and shall be liable to the party aggrieved, in an action for damages, for any neglect or refusal in the premises.” This section was amended by chapter 49 of the Laws of 1867 by adding thereto the following: “ No preference for the transaction of business shall be granted by such railroad corporation to any one of two or more companies or associations competing in the business of transporting property for themselves or for others upon the railroad owned or operated by such corporation, either upon the cars or in the depots or buildings, or upon the grounds of such corporationand then follow provisions in reference to fair and impartial dealings with connecting railroads. This section was again amended by chapter 565 of the Laws of 1890, but that amendment is not material to tlie questions under consideration.

It was again amended by chapter 676 of the Laws of 1892 (§ 34). So much of the section as is material to the questions under consideration, was, by this last amendment, made to read as follows: “No preference for the transaction of the business of a common carrier upon its cars, or in its depots or buildings, or upon its grounds, shall be granted by any railroad corporation to any one of two'or more persons, associations or corporations competing in the same business, or in the business of transporting property for themselves or others.”

Plaintiff’s business probably comes within the general definition of that of a common carrier, as stated in the text books and decisions. When speaking of common carriers, however, we do not ordinarily understand the hackman’s business to be included in that term. He transports passengers here and there about the streets of ^village or city, having no established route over which his conveyance runs, nor any specified time for making his trips. He assumes the right to let his rig for a day, or any other specified time to suit the convenience or wishes of his patrons. He gives the exclusive use of his carriage to a less number of persons than it can conveniently accommodate; he pursues his business if he finds it profitable to do so; if not, he remains idle. The obligations and duties of a common carrier are very different. A common carrier is bound to accept and carry all such things as he publicly proposes to carry, for all persons who are ready and willing to pay him his customary price, provided he has tire room in his boats, cars, coaches, carts or carriages for their conveyance, and he intends to set orit on his accustomed journey.” (Johnson v. Midland R. R. Co., 4 Exch. 367; Addison on Law of Contracts [6th ed.], 468.)

“ Carriers are called common or private; the latter being persons who undertake for the transportation in a particular instance only, not making it their vocation, nor holding themselves out to the public ready to act for all who desire their services.” (Abbott’s Law Dictionary, under head of Carrier.”) “ A person who holds himself out to carry goods of all persons indiscriminately is a common carrier.” (Allen v. Sackrider, 37 N. Y. 342; Hollister v. Nowlen, 19 Wend. 236.)

If it be conceded that the business of a common hackman comes under the general definition of a common carrier, it does not follow that it comes within the protection of this statute.

It is apparent from a reading of the several acts referred to that the Legislature had in mind a very different class of common carriers. It is a matter of common knowledge that railroad companies had come to unjustly discriminate between rival shippers over their roads and between other connecting railroads; this practice had grown to he very detrimental to the business of the country, and especially to that of rival shippers of goods. These several acts were manifestly passed with a view to remedy this evil; they said to the railroads of the State, you shall not give any preference to any one of two or more persons, associations or corporations competing in the same business, who may wish to ship over your road. Then, again, the statute was intended to apply to such persons, associations and corporations, and those only, who have or wish to have business relations with the railroad company. It would have been quite absurd for the Legislature to have attempted to regulate the conduct of railroads towards those who neither have nor wish to liave any business relations with them.

It does not appear that the plaintiff ever did or desired to do any business with the defendant. When the passengers alight from the cars at the Falls, defendant’s contract relations with them are ended. The business the passengers employed it to do has been performed; the defendant owes them no further duty; it is after the relations of the passenger and the company are ended that the plaintiff’s opportunity to deal with them commences; his business is to take the passenger in his carriage at that time and drive him about the city for a consideration.

The statute does not assume to reach such a case; it says no preference for the business of a common carrier iipon its cars shall be granted, etc. What right has the plaintiff to demand that the defendant shall appropriate to him, for the pfirpose of carrying on his private business, its yard and cars, and that without paying anything for it ? If the statute gives him what he claims, then each and every one of the fifty or more hackmen at the Falls are entitled to put their agents upon the defendant’s cars to solicit business for their carriages, so long as the Miller & Brundage Company enjoys that right, and for which right it pays a consideration to defendant.

If the plaintiff be right in his contention, it logically follows that any one wishing to engage in the business of selling papers, pamphlets, stationery, etc., has the right, if he can find an unoccupied corner in a railroad depot, to insist upon occupying it for his business, if any other person shall be occupying a place in said depot for a like business by permission of the company.

The questions here presented have been the subject of discussion in the courts of this country as well as in those of England. There is some conflict in the authorities, especially in the courts of this country. The English Railway and Canal Traffic Act is in substance like the statute of this State. Beadell v. The Eastern Counties Railway (2 C. B. [N. S.] 509) was a complaint under the statute that the railway company refused to allow the complainant to ply for passengers at its station, it having granted the exclusive right of taking up passengers within the station to one Clark for the consideration of £600 per annum. The respondent allowed the complainant’s cabs to enter the station for the purpose of putting down passengers, and then required him to leave the yard, and refused to allow the plaintiff the same privileges as were accorded to Clark. An injunction was refused.

In Barker v. Midland Railway Company (18 C. B. 45) it was held that the English statute refers entirely to persons using or desirous of using the railway or canal. JeRvis, C. P., in speaking for the court, said: “ I am of opinion that the -defendants are entitled to the judgment of the court. The declaration proceeds upon the assumption that the station is the private property of the railway company, subject to the rights of the public using the railway. It is not pretended that the plaintiff was using or seeking to use the railway. What right, then, can he have to say to the company, ' I will use your private property for my profit ? ’ There is' no pretense for the action; it has neither principle nor any color of authority to sustain it.”

It was held in Painter v. London, Brighton & S. C. R. R. Co. (2 C. B. [N. S.] 701) that only those who use the railroad are entitled to complain.

In Hole v. Digly (27 Wkly. Rep. 884) the Midland Railway had granted one Richardson the exclusive right to provide omnibus and other carriage accommodations for passengers to and from the railway station at Battering. The yard was the private property of the company. Defendant was the servant of another ’bus owner, and by his master’s orders entered with his ’bus and was sued for trespass. On appeal to the Queen’s Bench, Lush, J., said: “ The station of a railway company is as much their property as the yard of a builder is his property, or that of any other person. And they have a right, if they please, to prevent any person who does not come for the purpose of being a passenger, or who, having been a passenger, is going out, or coming in thereand he held that the defendant was a trespasser.

It is stated in The Old Colony Railroad Company v. Tripp (147 Mass. 35) that “ a railroad corporation may contract with one to furnish the means to carry incoming passengers or their baggage and merchandise from its stations, and may grant to him the exclusive right there to solicit the patronage of such passengers, and such an agreement is not within the Pub. Sts. C. 112, sec. 188, which provide that such a corporation shall give to all persons or companies reasonable and equal terms, facilities and accommodations for the use of its depot and other buildings and grounds.”

In Barney v. Oyster Bay & Huntington Steamboat Co. (67 N. Y. 301) the defendant was a common carrier of passengers and their baggage. Plaintiff was engaged in the express business. He attempted to solicit on defendant’s boat the privilege of carrying the baggage of passengers from the steamboat landing. The exclusive privilege to do such soliciting had been granted to another. The plaintiff, refusing to desist, was ejected from 'the boat while he held a ticket which he had -purchased on the boat, and he brought the action to recover damages for being thus ejected. The court held that while it is the general duty of a carrier of passengers to carry all persons who offer themselves, if there is room in the conveyance, upon being paid the usual fare, that he is at liberty to use his property in any way he may • choose to promote his interests not inconsistent with the duty he owes the passengers ; that he may manage and control his own property for his own profit and advantage to the exclusion of all other persons. Judge Axdsews, in his opinion, says: “ The sale of books, papers or refreshments are common incidents to the business of a carrier by certain modes of conveyance, and the carrier may avail himself of the opportunity wbicli liis business gives Mm to supply tlie special wants of travelers in these and other respects, and appropriate to himself the profits of the business, and exclude third persons from entering the car or vessel to carry on the same business in opposition to him. In this, no right of a passenger is invaded.”

“ A carrier may establish for the convenience of passengers and for his own profit, on his car or vessel, an agency for the delivery of baggage of passengers, and exclude all other persons from entering to solicit or receive orders from passengers, in competition with the agency established by him. This is in no just sense a monopoly. It is saving to the carrier a legitimate advantage which his position and business give him.” To the same effect in Fluker v. Ga. R. R. Co. (81 Ga. 461).

The cases of Cravens v. Rodgers (101 Mo. 247); Montana Union Railroad Company v. Langlois (9 Mont. 419), and Kalamazoo Hack & Bus Company v. Sootsma (84 Mich. 194) are in conflict with some of the doctrines of the authorities heretofore referred to, but we think the weight of authority sustains our construction of the statute.

The contract between the defendant and the Miller & Brundage Company is not against public policy. It conduces very much to the comfort and convenience of passengers visiting the Falls of Niagara, as those who have occasion to visit that place know. While upon the cars travelers are at liberty to make their arrangements for the use of carriages at the Falls, and when they alight from the train they can enter the carriages within the inclosure and avoid the unpleasant ordeal of running the gauntlet of a score or more of proprietors of carriages who are in waiting upon the street adjoining the depot soliciting employment. The charges for the use of the Miller & Brundage carriages as regulated in the contract are just and reasonable. No complaint is made in that respect.

' The plaintiff, we think, failed to make a case entitling him to the order appealed from. It should be reversed, with ten dollars costs and disbursements of the appeal, and his motion denied, with ten dollars costs.

Dwight, P. J., and Haight, J., concurred.

Order appealed from reversed, with ten dollars costs and disbursements, and motion for an injunction denied.


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    Sophia Foels, Respondent, v. Town of Tonawanda, Appellant.

      Bridge — notice to a town of a defect therein — contributory negligence.

    In an action brought to recover the damages resulting from personal injuries the ■ evidence tended to show that a hole about a foot wide had existed in a highway bridge for two or three weeks, into which the plaintiff stepped in the day-time, without seeing it, while walking immediately behind two other persons and looking straight before her.

      Held, that the existence of the hole for such a length of time was sufficient to justify a jury in finding that the highway commissioner was guilty of negligence, and that the question of contributory negligence on the part of the plaintiff was properly submitted to the jury.,
    Appeal by tlie defendant, the Toivn of Tonawanda, from a judgment of tlie Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Erie on the 3d day of July, 1891, upon tlie verdict of a jury for $4,500 after a trial at the Erie County Circuit.
    The action was brought to recover for personal injuries sustained by tlie plaintiff in August, 1888, caused by her stepping into a hole in the sidewalk of a highway bridge in the village of Tonawanda. One of the planks of the sidewalk was out, which left a hole in the walk a foot wide and extending across the entire walk. The plaintiff, in company with her two sisters, was crossing the bridge in the daytime ; she was walking immediately behind her sisters, looking straight ahead, and did not see the hole until she stepped into it and was injured.
    , There was evidence tending to show that the hole had been in the walk for two or three weeks immediately prior to the accident; and there was evidence on the part of the defendant controverting the claim of the plaintiff as to the existence of the hole for that length of time.
    There was evidence that a few days before the accident the plaintiff was told of 'the hole in the bridge. She testified that she did not see the hole before she stepped into it, and did not know it was there.
    The verdict was for $4,500; it was the second verdict for the same amount,. the first one having been set aside by the judge before whom the case was tried, for the reason, that, in his opinion, it was excessive.

      George T. Qwmby and John K. Patten, for the appellant.

      W. Pi Simson, for the respondent.
   Lewis, J.:

The existence of the hole in the sidewalk of the bridge on one of the highways of the town for such a length of time as to justify the jury in finding the highway commissioner guilty of negligence was sufficiently established by the evidence.

Whether the plaintiff’s negligence contributed to her injuries was, under the circumstances proven, a question for the jury.

The defendant’s highway commissioner was in charge of the highway bridges of the town, including those within the corporate limits of the village of Tonawanda. The action was, therefore, properly brought against the town.

There does not seem to be any reason for reversing the judgment.

It should be affirmed.

Dwight, P. J., and Haight, J., concurred.

Judgment appealed from affirmed.


text:
    Himan Louis, Appellant, v. The Empire State Insurance Company, Respondent.

      Taxation of costs — where a demurrer is ovm'r-uled with lerne to a/nswer on payment of costs.

    Where a demurrer to a complaint is overruled, with leave to a defendant to answer upon payment of costs, the plaintiff is not entitled to tax the twenty-five dollars costs before notice of trial. ,
    The defendant in such a case should only he required to pay the costs of such proceedings as by the operation of the order overruling his demurrer will he vacated.
    The plaintiff is entitled to costs after notice and before trial.
    Appeal by the plaintiff, Himan Louis, from an order of the Supreme Court, made at the Monroe County Special Term and entered in tbe office of tbe clerk of the county of Monroe on tbe 31st day of May, 1893, denying a motion for tbe retaxation of costs.

      John F. Dor-thy, for tbe appellant.

      S. L. Adler, for tbe respondent.
   Lewis, J.:

Tbe defendant demurred to tbe jflaintiff’s complaint upon tbe ground that it faded to state a cause of action. Tbe demurrer was overruled with costs, but with leave to tbe defendant to withdraw tbe demurrer and answer over within twenty days upon the payment of costs, and in case of bis failure so to do, plaintiff was at liberty to enter final judgment for tbe relief demanded in bis complaint.

Plaintiff presented to tbe clerk for taxation a full bill of costs, including tbe items of twenty-five dollars before notice of trial, one dollar for serving summons and complaint, and sixty-three cents for sheriff’s fees ' on execution. These items mentioned tbe clerk refused to tax, and tbe plaintiff moved- tire Special Term for an order directing tbe clerk to tax said items. His motion was denied, and from tbe order denying tbe motion plaintiff appealed to this court.

It was an interlocutory judgment tbe plaintiff was to enter upon tbe decision overruling tbe defendant’s demurrer. Tbe twenty-five dollars costs before notice of trial be will be entitled to tax when be comes to enter bis final judgment.

Tbe twenty-five dollars before notice of trial is for preparing tbe complaint. Tbe complaint being held to be good, it is not necessary to redraw it. Tbe defendant should be required to pay tbe costs of such proceedings as by tbe operation of the order overruling bis demurrer will be vacated.

Tbe plaintiff was obliged to prepare for tbe argument of the demurrer; therefore, be was entitled to costs after notice and before trial; but nothing that he had done before noticing tbe case for trial was in any way vacated by tbe judgment overruling tbe demurrer. Tbe weight of authority seems to sustain this rule. (Kniering v. Lennon, 51 N. Y. St. Repr. 907; Skinner v. White, 69 Hun, 127; Edson v. Dillaye, 8 How. Pr. 213; Phipps v. Van Cott, 15 id. 110 ; Crary v. Norwood, 5 Abb. 219; Anon., 3 Sandf. 756.)

In Adams v. Ward (60 How. 288) tbe plaintiff demurred to tbe answer. His demurrer was sustained, and it was very properly held that -be was entitled to costs before notice of trial as compensation for drawing tbe pleading.

The order appealed from should be affirmed, witb ten dollars costs and disbursements of tbe appeal.

Dwight, P. L, and Haight, J., concurred.

Order appealed from affirmed, witb ten dollars costs and disbursements.


text:
    The Town of Dunkirk, Respondent, v. The Lake Shore and Michigan Southern Railway Company, The New York, Chicago and St. Louis Railroad Company and The Western New York and Pennsylvania Railroad Company, Appellants.

      Equitable action — striking out immaterial allegations in a pleading — possible bea/ring of such allegations on the question of costs.

    Where certain railroad companies laid their tracks across a highway at some distance above grade, the town in which the highway was located, through its highway commissioner, brought an action in equity under section 15 of chapter 568 of the Laws of 1890, to compel the railroad companies to carry the highway under their tracks.
    The complaint alleged, among other things, that an application had been made to the Railroad Commissioners of the State of New York, calling their attention to the condition of the crossing; that the Board of Railway Commissioners visited and inspected the crossing, and recommended to the railroad companies that the highway should be carried under the tracks; that each of the railroad companies was served with a copy of the report, and that each had failed and refused to follow the recommendations in said report contained.
    On a motion made by the defendants to strike out this portion of the answer as immaterial,

      EM, that in an equitable action great latitude is allowed the court with reference to striking out irrelevant matter, and that where the matter alleged to be irrelevant might bear upon the question of costs, which rests in the discretion of the court, the refusal to strike it out was not error.
    Appeal by tbe defendants, The New Torlt, Chicago and St. Louis Railroad Company and others, from an order of tbe Supreme

      Court, made at tbe Erie County Special Term and entered in the office of the clerk of the county of Chautauqua on the 27th day of June, 1893, denying the defendant’s motion to strike out a portion of the complaint as irrelevant.

      Daniel H. McMillan, for The Lake Shore and Michigan Southern Railway Company, appellant.

      John G. Milburn, for The N. Y., Chicago and St. Louis Railroad Company, appellant.

      JE. D. Wa/rner, for the respondent.
   Lewis, J.:

This is an action brought in equity by the town of Dunkirk, through its highway commissioner, under section 15 of chapter 568 of the Laws of 1890, to compel the several defendants to carry a highway tinder their tracks at a point known as Fessler’s crossing, within the corporate limits of the plaintiff.

The complaint contains appropriate allegations, to the effect that the defendants severally own and occupy railroad tracks running through the town of Dunkirk, used for the purpose of railroad business ; that in building their roadbed at the point where they crossed the Fessler road, they constructed an embankment some twelve or fifteen feet in height, and constructed approaches thereto leading up to the grade of the railroad bed, so that travelers upon the highway were compelled to pass up the embankment and over the railroad tracks, to the great inconvfenience and danger of the teams and travelers; that the defendants neglected and failed to restore the highway to its former state, and judgment was demanded that the defendants be compelled, at their expense, to construct and carry the said highway through the embankments of said railroad, and underneath all their tracks, of sufficient capacity to allow the free passage through the same of vehicles and conveyances. In addition to the foregoing allegations, the complaint stated that a complaint was duly, made and transmitted by the commissioner of highways of the town of Dunkirk to the Board of Railroad Commissioners of the State of New York, calling the said board’s attention to the condition of the railroads at said crossing, and to the importance and necessity of an undercrossing;'that the said board of commissioners visited and inspected 'the said crossing, and thereafter reported it to be substantially as stated in the plaintiff’s complaint, and recommended that the highway should be carried under the tracks of the said railroads by the defendants, so as to do away with the grade crossing, and that thereafter each of the above-named defendants was served with a copy of said report and recommendations of the said Board of Railroad Commissioners, and that notwithstanding said report of said board, and notice thereof to the defendants respectively, they had neglected, failed and refused to follow said recommendation and restore the said highway at the said crossing to its former state. The defendants moved to strike from said complaint so much thereof as related to the proceedings by and before the Board of Railroad Commissioners. The motion was denied, and from the order denying said motion an appeal was taken to this court.

In actions to secure equitable relief greater latitude and liberality are allowed in the preparation of pleadings than in other actions. Motions to strike from pleadings matter claimed to be irrelevant is addressed largely to the sound discretion of the court. It is not an absolute right of a party to have it' stricken out in all cases. The power to strike out such matter should be used with'reluctance and caution. (Town of Essex v. The N. Y. & Canada R. R. Co., 8 Hun, 361; Bradstreet v. Bradstreet Co., 14 N. Y. St. Repr. 260 ; Baer v. Seymour, 12 id. 167; Finger v. City of Kingston, 29 id. 702.)

It is true, as claimed by the appellants, that the powers possessed by the Board of Railroad Commissioners are mainly advisory. The statutes organizing said board have not made any provision for enforcing its recommendations. The complaint states a complete cause of action against the defendants, without the part concerning the Board of Railroad Commissioners. This, in its nature, is an equitable action. The granting of costs against the defendants, if the plaintiff be successful, is discretionary with the court. It may well be that that part of the complaint alleged to be irrelevant may have a bearing with the court in determining the question of. costs. If so it cannot be claimed to be entirely irrelevant. (Evans v. Burton, 5 N. Y. St. Repr. 218; Howard v. Tiffany, 3 Sandf. 695.)

It may be important upon the question of costs to show that defendants’ officials had notice of the situation of things complained of for a sufficient length of time before the commencement of the action to have constructed the underway if they had so desired.

Had the action been commenced without the facts being called to their attention they might well have urged upon the question of costs, that they should have had notice and an opportunity to have constructed the underway before being subjected to the trouble and expense of the action. If the matter complained of be stricken from the complaint, there would be no allegation left showing that the attention of the defendant was called to the matter before the commencement of the action.

We are of the opinion that no error was committed in refusing to grant the defendants’ motion, and that the order appealed from should be affirmed, with ten dollars costs and disbursements of the appeal.

Dwight, P. J., and Haight, J., concurred.

Order appealed from affirmed, with ten dollars costs and disbursements.


author: Bradley, J. :

text:
    Henry B. Hondorf, Plaintiff, v. Silas I. Atwater, William B. Armstrong and Edward S. Clarke, Appellants; John H. Maher and James Glasgow, Respondents, and Others, Defendants.

      Mechanic’s liens— assignment of a contractors claim —pi'iority as between it and the liens — omission to plead a lien — amendment.

    The transfer to a creditor of a building contractor, of the interest of another creditor of the contractor in a claim for moneys due and to become due upon a building contract theretofore assigned to him by the contractor in payment of his indebtedness, is effectual as against any mechanic’s lien subsequently filed.
    The extent of the interest of the assignee of the contractor, in the claim for moneys due and to become due upon the contract so assigned and transferred, is the amount of the contractor’s indebtedness to his assignee at the time of making the assignment.

      Qumre, whether, when the answer of a defendant in an action to foreclose a mechanic’s. lien only alleges a claim to the fund based upon an assignment thereof from the contractor, the trial court can, under section 733 of the Code of Civil Procedure, to conform the pleading to the facts, permit the answer to be amended, against the objection of other parties, so as to set up a claim founded upon a lien under the statute.
    Such an amendment cannot be had at General Term úpon the review of a decision which does not give such defendant the benefit of a lien under the statute, and the fact that the trial court did not disregard the omission of such defendant to allege his statutory lien does not furnish a ground for reversal.
    Appeal by the defendants Silas I. Atwater, William B. Armstrong and Edward S. Clarke from a judgment of the County Court of Monroe county, entered in the office of the clerk of Monroe county on the 16th day of November, 1892, upon a decision of the court rendered after a trial by the court.
    The action was brought to foreclose an alleged lien upon certain premises. It appears that the defendant Edmund C.' Ilondorf entered into contract with the defendants Sibley, Atkinson, Sibley and Averill, as trustees of Iliram Sibley, deceased, to construct a house at the price of something over $2,000, and that at the time of the commencement of the action in October, 1891, there was due from them upon the contract $550. This sum, pursuant to stipulation of the parties, was by such trustees p>aid into court. On July 14, 1891, the building was nearly completed, and on that day the defendant Ilondorf, on account of his indebtedness to them, assigned his interest in the contract and the amount due and to become due, to the defendants Evans and Grant, who completed the house. And afterwards, on September 14, 1891, Evans and Grant transferred to the defendants Atwater, Armstong and Clarke their interest in the moneys due and unpaid of the claim so assigned to them. There was then due to the appellants upward of $550 for materials furnished to Ilondorf for the construction of the building, and to Maher and Glasgow there was due $158.88 for work upon it. On that day the latter filed a mechanic’s lien upon the premises, and later, the defendants Holzworth and Whitmore, Nell and Kern, Hayes, and the plaintiff respectively, filed liens thereon. The trial court determined that, after the payment of the costs of the plaintiff and the defendants Maher and Glasgow, there be paid to the latter $158.88, and to the appellants $221.97. Judgment was entered accordingly.

      John J. Snell, for the appellants.

      James M. E. O' Grady, for the respondents.
   Bradley, J. :

Tbe controversy is mainly between Atwater, Armstrong and Clarke, tbe appellants, and Maker and Glasgow, tbe respondents. Tbe assignment made to tbe appellants by Evans and Grant of tbeir interest in tbe claim transferred to them by Hondorf was effectual as against any lien subsequently filed. (Stevens v. Ogden, 130 N. Y. 182.) Tbe subject of inquiry is what was tbe amount of such interest of Evans and Grant at tbe time of tbe assignment? "Was it made prior to tbe time tbe respondents’ lien was filed? It appears by tlie evidence, and tbe court found, that at tbe time of tbe transfer by Hondorf to Evans and Grant, in July, 1891, be owed them $1,421.97; that be then made to tliem two assignments of claims on account of sucli indebtedness; one of them was that before mentioned; that tbe sum of $800 was allowed to them on tbe other assignment in an action having relation to it, and that before they made tbe transfer to tbe appellants, tbe Sibley trustees bad paid to Evans and Grant tbe sum of $400 embraced in tbe claim so assigned by Hondorf to them, leaving only $221.97 of bis indebtedness to them unpaid. Tbe consequence was that tbe last-mentioned sum was tbe extent of tbeir interest in tbe claim so assigned to tbe appellants at tbe time it was made.

Whether or not tbe transfer to the appellants was made before the lien of tbe respondents was filed was upon tbe trial a controverted question of fact. Tbe court found that tbe lien was filed prior to tbe time of tbe transfer, and such finding has tbe support of evidence. These facts support tbe conclusion of tlie court unless there is some further cause to overcome or modify the effect given to them. It appears that in July, 1891, the appellants filed a mechanic's lien upon tlie premises. And tlie question is whether it is available to them in this action. They may have relied upon the transfer to them by Evans and Grant. This they alleged. They did not make tbe lien a matter of allegation or of claim for relief in tbeir answer. But it is urged by tbeir counsel that as tbe fact was proved on tbe trial without objection, it should be treated as effectual as if it bad been set up in tbeir pleading. Tlie statute provides that all persons who have filed notice of such lien “ shall by answer in such action set forth the same, and the court in which the action is brought may settle and determine the equities of all tbe parties thereto, etc. (Laws 1885, chap. 342, § 17.) While the court found that the appellants filed a mechanic’s lien in July, 1891, he added that they do not claim herein under that lien, and the appellants excepted. The answer of a defendant alleging a claim founded upon a lien under the statute sets forth a cause of action in his behalf and upon it affirmative relief is sought. The appellants did not ask to amend on the trial, and if they had it is quite questionable whether it could have been allowed in the discretion of the court against the objection of any of the other parties so as to set up the lien. It may be done at the trial to conform the pleading to the facts proved where the amendment does not change substantially the claim or defense. (Code, § 723.) The amendment now suggested would have been a substantial change of the pleading. It would have constituted a different defense or cause of action in behalf of those defendants from that alleged in their answer. It cannot now be assumed that the other parties would not have objected to it if application to amend the answer. had been made there. If the court had disregarded the failure to allege the appellants’ lien in their answer and given them the benefit of it by a decision upon the merits, a different question from that now here would have been presented. (Barnes v. Perine, 12 N. Y. 18, 24; Field v. Mayor, 6 id. 179 ; Voorhees v. Burchard, 55 id. 98.) The amendment cannot be made upon this review. Nor can it be said that the trial court erred in not disregarding the omission of those-defendants to allege their lien. (Storrs v. Flint, 14 J. & S. 498, 519 ; Southwick v. First National Bank, 84 N. Y. 420.) It may be observed that although it does not appear by the record that, objection was taken to the introduction of the appellants’ notice of lien in evidence, their offer to prove in that connection the indebtedness represented in.it appears to have been objected to at the trial. The trial court may have deemed this matter of defense and claim, as waived by the failure of those defendants to plead it. (Center v. Weed, 63 Hun, 560.)

These views render it unnecessary to consider any other question.

The judgment should be affirmed.

Dwight, P. J., Lewis and Haight, JJ., concurred.

Judgment of the County Court of Monroe county appealed from, affirmed, with costs.


author: Beadlet, J.:

text:
    George W. Stamp, Plaintiff, v. Augustus W. Franklin, as Executor, etc., of Martha W. Douglass, Deceased, Defendant.

      lies ad/judicata— action by a married woman for services and boa/rd— judgment for services only — not a ban' to an action by the husband for boa/rd — amendment on the trial.

    It is the general rule that a judgment of a court of competent jurisdiction is final, not only as to the subject-matter there actually determined, hut as to all other matters which the parties might there have litigated and had determined ; hut to constitute á former adjudication, such as will bar a recovery in a subsequent action, the actions must be by or between the same parties or their privies.
    A married woman brought an action against an executor to recover for services rendered and board furnished to the testator, and obtained a judgment for the full amount claimed, but on appeal the judgment was modified by excluding and striking therefrom the amount of the claim for board, on the ground that such claim belonged to the plaintiffs husband. Thereafter the husband brought an action against the same defendant to recover the claim for board.

      Meld, that the wife's judgment was not a bar, as a former adjudication, to a recovery by the husband on the claim for board, there being no privity between the two plaintiffs, it appearing that no right of action in the wife was founded upon any assignment from the husband, nor his right of action founded or dependent upon any assignment from her.
    The complaint in the husband’s action alleged an assignment by him to his wife of the claim for board and a reassignment thereof by her to him, but it did not appear that any assignment had been in fact made. On the trial the plaintiff, on calling his wife as a witness to testify to a personal transaction with the testator, was permitted, against the defendant’s objection, to amend his complaint by striking out the allegations as to the assignments of the claim.

      Meld, that the allowance of the amendment was not error.
    It appeared that the husband had consented that the claim for board be paid to his wife, and to the bringing and prosecution of the action by her in her own name.

      Meld, that this did not confer upon the wife a right of property in the claim which would enable her to recover it in an action contested in that respect by the defendant, and' did not prevent a recovery by the husband in his action as owner of the claim.
    MotioN by the defendant, Augustus W. Franklin, as executor, etc., for a new trial upon exceptions taken at the Yates Circuit, and ordered to be heard at General Term in the first instance, upon the direction of a verdict for the plaintiff on the the 24th day of May, 1893.

      Spicer (& Motris and Jolm Gillette, for the plaintiff.

      Jolm II. Johnson, for the defendant.
   Beadlet, J.:

The action was brought to recover for board alleged to have been furnished by the plaintiff to the defendant’s testatrix from the 5th day of November, 1884, to the 10th day of January, 1889. The defendant, amongst other matters of defense, alleges former adjudication of the same subject-matter in an action of Edna M. Stamp against the same defendant. She is the wife of the plaintiff and was called as a witness for him. And when she was asked to state whether she and her husband had a conversation with the testatrix prior to the time they went to her house, on the subject of going there, objection was taken on the ground that, being the plaintiff’s assignor, she was not competent to testify to the conversation with the decedent. Thereupon the plaintiff asked leave to amend his complaint by striking out the allegations of assignment by him to his wife and of reassignment by her to him of the alleged claim. The amendment was allowed and made against the objection of the defendant, and exception taken. It is difficult to see the purpose of those allegations in the complaint, since, if the plaintiff’s right to assert the claim in his own behalf was dependent upon an assignment by his wife to him, she was incompetent to give evidence of any conversation she had with the testatrix in relation to it. If no such assignment had in fact been made, there was no error in making the correction that was made of the pleading by the amendment. The defendant did not ask for any postponement of the trial by reason of the amendment. By reference made to the former action, which will hereafter be more particularly mentioned, it does not, nor did it on the trial of this action, appear that any assignment by the plaintiff to his wife had been made of the claim, or necessarily appear that she had made any assignment to him. The trial of the present action proceeded upon the assumption that he was the original creditor of the testatrix. The main question urged hy the defendant arises upon the former adjudication as a bar to recovery. It appears that an action was commenced in this court by Edna’ M. Stamp, the wife of the plaintiff, against the same defendant for alleged services performed for the defendant’s testatrix and for board furnished to her, and that, as appears by the report of the referee in that action, she recovered for services $1,482.25 and for board $1,148.26, and judgment was directed and entered for $2,631.05 besides costs. On review by the General Term the judgment was reversed and a new trial granted unless the plaintiff should stipulate to deduct from the recovery $1,148.40, and in that event the judgment, as so modified, was affirmed. The plaintiff so stipulated, and the judgment was modified accordingly. Thus it appears by the record in the former action that an amount equal to that included in the judgment for the board and supplies was eliminated from the judgment. Thereupon this action was commenced by the plaintiff to recover the claim forffhe board and supplies, the amount for which it is asserted was excluded from the judgmentrecoverecl by the wife. This was matter within the cause of action alleged in the complaint in that action, and was there litigated. It is the general rule that a judgment of a court of competent jurisdiction is final, not only as to the subject-matter there actually determined, but as to all other matters which the parties might there have litigated and had determined. If, therefore, it can be said that the claim in question was properly the subject of litigation and determination between the parties in the former action, it must be deemed a bar to recovery in the present one. But to constitute a former adjudication strictly as such, the actions must be by or between the same parties or their privies. That was not necessarily so in this instance, since no privity in that sense exists between the plaintiff in that and this action, as no right of action in the wife was founded upon any assignment from the husband, nor is his founded or dependent upon assignment from her. The law of that case, as held by the court on the appeal, was that the claim for the board and supplies was not due to the wife, but was that of the husband, the present plaintiff, and that she was only entitled to maintain the action for her certain services performed for the testatrix. If for that reason she could not and did not recover in that action for such claim, that judgment was not res adjudioata. (Stowell v. Chamberlain, 60 N. Y. 272.) It does not appear that there was any evidence on the trial of Mrs. Stamp’s action that she furnished provisions for the board in question, and on trial of this action there is evidence tending to prove that they were furnished by the plaintiff. Tie and his wife were living together in tbe bouse of the testatrix where she also resided, and there she took her meals, which constituted the board in question. Nothing appearing to the contrary, it may be assumed that the plaintiff furnished the supplies for the table, and his wife had charge of the housework. Upon that state of facts the plaintiff, presumptively at least, was, and his wife was not, entitled to recover whatever was due from the testatrix for the board and provisions furnished to her. But it is suggested that because the plaintiff aided, by his evidence and otherwise, the prosecution of the action of his wife for the recovery of the claim which is the subject of this action, he is estopped from maintaining his action against the defendant. This clearly would be so if she had recovered for that claim in her action;'and the effect would have been the same if the testatrix with his consent had paid his wife the amount of it in her lifetime. (Reynolds v. Robinson, 64 N. Y. 589, 594.) But although the amount of the claim was included in the judgment entered upon the report of the referee, it was excluded from the final judgment in that action; and, therefore, no prejudice results to the defendant from the prosecution of this action which enables him to effectually assert estoppel as a defense. In that fact is the difference between this and the case of Van Koughnet v. Dennie (68 Hun, 179). There, in the former action, the claim for which it was brought was overcome by a counterclaim, and in that way the plaintiff had the benefit of it, and to its extent the defendant’s counterclaim was reduced. It was, therefore, very properly held that by the assistance of the plaintiff in the second action in the prosecution of the former one by her husband for the same cause, she was estopped from maintaining her action.

The conclusion fairly permitted in the case at bar was that the plaintiff in the former action had no right of action for the x-ecovery of the claim which is the subject of the present action, and, consequently, the final judgment there is no bar here. At the close of the evidence each of the parties asked the court for direction of a verdict, and the defendant’s counsel requested the court to submit to the jury the questions whether the plaintiff was owner of the claim, and whether it had not been adjudicated in the other action, “ and whether the plaintiff, by agreement with his wife, had not consented to her having that claim, and bringing the action upon it iii her own name.” This was refused and verdict directed for the plaintiff, and exceptions were taken. There was no error in these rulings. It quite clearly appeared that- the plaintiff had consented that the claim be paid to his wife, and to the bringing and prosecution of the action to recover it, but this did not confer on her a right of property in it for the purpose of recovery in an action contested on that ground by the defendant. And for the reasons before stated, there was nothing for the jury on the question of former adjudication. The case is here upon exceptions only. For want of any further requests to do so the court was not required to submit any question of fact to the jury. No other exceptions require consideration.

The 'motion for new trial should be denied, and the plaintiff have judgment upon the verdict.

All concurred.

Defendant’s motion for a new trial denied, with costs, and judgment ordered for the plaintiff on the verdict.


text:
    John G. Zweigle, Respondent, v. Henry Hohman and Maria Hohman, Respondents, and Otto Beck, Appellant, Impleaded with Gertrude Beck.

      Denise of land charged with a legacy —personal liability of the devisee and lien upon the land — concurrent remedies — enforcement in equity — Statute of Limitations — will under seal — mortgage made by the devisee.

    "When a will devises real estate on condition that the devisee pay a legacy to a minor on his coming of age, such payment not being made a condition precedent to the vesting of the estate in the devisee, the devisee, on accepting the devise, is seized in fee of the premises and becomes personally liable to pay the legacy, and the legacy is also a charge in equity upon the land.
    The legatee’s right of action to enforce payment of such legacy accrues when he comes of age and, his remedies at law and in equity being concurrent, the six years’ Statute of Limitations applicable to an action at law against the devisee to recover the legacy is alike available as a defense to a claim set up by the legatee in a suit in equity, founded upon the charge of the legacy as a lien upon the land.

      Hence, wlien, in an action brought by a mortgagee against the devisee and legatee, to foreclose a mortgage made by the devisee upon land'devised subject to the payment of a legacy for which the devisee is also personally liable, the legatee alleges in liis’answer the non-payment of his legacy and seeks to establish the same as a prior lien upon the land, the maintenance of his claim is subject to the six years’ Statute of Limitations.
    This is so although the will by which such devise and legacy were created was under seal, since this fact would not render an action to recover the legacy from the devisee an action upon a sealed instrument, within the meaning of the Statute of Limitations.
    The limitation of ten years, prescribed by section 388 of the Code of Civil Procedure, is not applicable to an action by the legatee to enforce such a legacy as a charge upon the land, since that provision applies only to cases exclusively within equity jurisdiction where there is no concurrent remedy at law.
    Appeal by tbe defendant, Otto Beck, from a judgment of tbe County Court of Monroe county in favor of tbe plaintiff, entered in the office of tbe clerk of that county on tbe 19th day of June, 1893, upon a decision rendered after a trial by the court.
    Tbe action was brought for the foreclosure of two mortgages made by tbe defendants Hohman, one to the plaintiff, dated July 1,1878, to secure tbe payment of $350. Tbe other, dated January 1, 1879, to John Burger to secure tbe payment of $500, and by tbe latter assigned to the plaintiff. Tbe defendants Beck, who are husband and wife, alone defend. They allege an estate of inheritance in an undivided one-third of tbe premises in tbe defendant Otto Beck, founded upon the following facts: In May, 1876, Margaretha Beck made her will whereby she gave to the defendants Hohman all her property, real and personal, upon the condition that they pay to each of her children, Ludwina Beck, Balthazar Beck and Otto Beck, $300 on the arrival of the latter at the age of twenty-one years, except as to Ludwina, whose legacy was to be paid when she arrived at age. The testatrix soon after died seized of the premises in question, and the will was admitted to probate in February, 1877. The defendants Hohman went into possession of the premises immediately after the death of testatrix. The defendant Otto Beck was then fourteen years of age. He alleges that ho part of his legacy has beeii paid to him. The defendants Hohman by their answer alleged that the legacy to the defendant Otto Beck has been paid to him, and further that the cause of action did not .accrue 'within six years before the commencement of the action, which was begun in April, 1892. The trial court directed judgment of foreclosure and sale in favor of the plaintiff, and upon the issue between the defendants Beck and Hohman directed judgment for the latter.

      E. F. Turk, for the appellant.

      Wile (É Goff, for plaintiff, respondent.

      William G. Jerome, for defendants, respondents, Hohman.
   Bradley, J. :

The provision in the will to the effect that the testatrix gave her property to the defendants Holnnan upon the condition that they paid the legacies there mentioned did not create a condition precedent to the vesting of the estate in them. They, on acceptance of the devise, were seized in fee of the premises and became personally liable to pay the legacies. And by reason of the condition so expressed in the will the legacies were made a charge in equity upon the land. (Loder v. Hatfield, 71 N. Y. 92.) The testatrix was mother of the legatee Otto Beck, then an infant, and in loeo pm'enUs to him, and for that reason, and because no other provision was made for him, he was entitled to interest upon his legacy from the time of her death. (Brown v. Knapp, 79 N. Y. 136.) And the charge of it upon the premises was superior to the lien of the mortgages in question, and was in due time available as such unless reasons existed which would have enabled the mortgagees to insist, if necessary for their protection, that payment of the legacy should first be sought from those who were personally and primarily liable to pay it. (Dodge v. Manning, 1 N. Y. 298.) Whether that could have been required of the legatees of the will in question, if they had proceeded in equity to enforce the lien against the realty devised, we are not advised by the evidence, nor is it necessary in the present case to consider that question. It may here be assumed that the remedies at law and in equity were concurrent. In such case the statute limiting the time for the commencement of the action at law is applicable alike to both remedies. This was so before there was any statute in that respect relating to suits in equity; and the provision of the Bevised Statutes applying to the latter the same limitation of time for tlieir commencement (2 R. S. 301, § 49) was declaratory of the law as it then existed. (Borst v. Corey, 15 N. Y. 505.) The Statute of Limitations applicable to an action at law against the devisees of the wfill to recover the legacy was alike available as a defense to a suit in equity founded upon the charge of it as a lien upon the land. (In re Neilley, 95 N. Y. 382, 390; Butler v. Johnson, 111 id. 204, 217.) The limitation of six years is alleged by the defendant Holiman as a bar to the charge, founded upon the legacy, made by the legatee in Ms answer. His cause of action accrued when he arrived at the age of twenty-one years in 1883, nine years before this action was commenced. Although the will was sealed with the seal of the testatrix an action to recover the legacy would not be one on a sealed instrument within the meaning of the statute. It would be founded upon the implied promise of the devisees to pay, arising from their acceptance of the devise. (Am. Bible Society v. Hebard, 51 Barb. 552; 41 N. Y. 619; Loder v. Hatfield, 71 id. 92, 104.) Nor is the statutory limitation of ten years (Code, § 388) applicable to an action by a legatee to enforce his legacy as a charge upon the land. That provision is applied only to cases exclusively within equity jurisdiction and in which there is no concurrent remedy at law. (Butler v. Johnson, 111 N. Y. 204.)

It follows that the six years’ limitation is applicable to the claim made by the defendant Beck; and as it does not appear that any partial payments were made upon his legacy within that time preceding the commencement of the action it was a bar to relief in his behalf in the action. The question of the alleged payment of the legacy is not here for consideration. Upon that subject there was a conflict in the evidence and the trial court did not find what the fact was.

The judgment should be affirmed.

All concurred.

Judgment of the Monroe County Court appealed from affirmed, without costs of this appeal to either party.


author: Bradley, J.:

text:
    Catharine E. Moore, as Administratrix, etc., of Martin Moore, Deceased, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.

      Bailroads — negligence—signals on approaching a crossing— affirmative and negative • evidence — testimony of, employees.

    “While affirmative evidence oí the fact that a signal was given at, and for some distance before reaching a’street crossing, on the approach of a train, may seem more potent than the testimony of persons to the effect that they did not hear it or that no such signal was given, yet, when the evidence of the latter tends to prove that their attention at the time was directed or called to the fact, and the omission to give any signal was particularly observed by them, the question is one for the jury to determine.
    Although the employees of a defendant railroad company, engaged in running an engine, who testify on behalf of the company that signals were given on approaching a crossing, have at least as good an opportunity as any other person can have to know whether such signal was given, their relation to the company is a circumstance which the jury is permitted to take into consideration in determining a disputed question of fact as to whether or not a signal was given. On the trial of an action brought to recover from a railroad company damages resulting from the death of a person caused by his being struck by an engine while attempting to cross the tracks of a railroad at a street crossing, the evidence upon the questions of the defendant’s negligence and of the decedent’s care was conflicting. The jury rendered a verdict for the plaintiff.

      Held, on appeal from an order denying the defendant’s motion for a new trial, that whether the requisite signal was given of the approach of the train sufficient to advise thereof a person on the street exercising due care, and whether or not the deceased exercised such care for his protection, were, under the circumstances, questions of fact for the jury and were properly submitted to it;
    And that the view which the jury was authorized to and might have taken of the evidence was such that the court could not see that its conclusion was so much against the weight of it as to justify an interference with the verdict.
    Appeal by-the defendant, The New York Central and Hudson River Railroad Company, from an order of the Supreme Court, made at the Ontario Circuit and entered in the office of the clerk of Ontario county on the 29th day of May, 1893, denying the defendant’s motion for a new trial made upon the minutes after a verdict for $4,000 had been rendered in favor of the plaintiff.

      J. W. Dunwell, for the appellant.

      John Gillette, for the respondent.
   Bradley, J.:

The plaintiffs intestate was struck by the engine of a passenger train on the defendant’s road at the crossing of East street, in the village of Canandaigua, and killed, December 10, 1891. The plaintiff charges that his intestate’s death was occasioned solely by the negligence of the defendant. And as to both the question of the negligence of the defendant, and that of • care on the part of the decedent, there is a conflict in the evidence introduced by the parties respectively. He was riding and driving in what is commonly known as a one-horse democrat wagon, and going southerly upon East street and passed onto the railroad track, where his wagon was struck by a train moving westerly, with the result before mentioned. The evidence on behalf of the plaintiff tended to prove that no signal was given of the approach of the train, that no whistle was sounded and no bell rung until just at or immediately preceding the collision. There was much evidence upon the subject. The daughter, two sons and the son-in-law of the deceased were at the house of the latter, which was on higher ground than the railroad track and 625 feet north of it and 710 feet northeasterly from the crossing on East street. They testify that they were in a situation at the time to hear the signal given, if one had been given; that they heard none on the approach of the train; and the daughter and one of the sons testified that their attention was then called to the fact that no whistle or bell was sounded when they saw the train approaching, as the deceased had shortly before left the house to go home and on his way would pass over the crossing in question, and that to enable the son to observe the movement of the train and the progress of his father, he climbed into a tree where he could see both. The fact that he did so was corroborated by the evidence of the others at the house. Two passengers on the train who were in the smoking car testify that they heard no signal, bell or whistle, until 'just at the time of the collision. They were sitting together, and one of them testified that before this oil the train he had noticed signals by whistles given in coming into towns; that he knew the train was coming into Canandaigua, knew where the station was, and the fact that there was no signal given attracted his attention, and that no signal was there given until a moment before the accident; that it was given at the time or an instant before the air brakes were applied; that u They didn’t blow the long whistle for Canandaigua station until after the accident or a secoird before the accident.” On the contrary, the engineer, conductor and two trainmen testify that the whistle was sounded for some considerable distance before reaching the crossing; the engineer said between 300 and 400 feet, and one of the trainmen said that he thought it was 400 or 500 feet east of the crossing. And the fireman testified that he rang the bell; commenced ringing it some 300 or 400 feet east of the crossing. Another witness called by the defendant testified that he was on his way from his residence on Gorham street, which crosses East street north of the crossing in question, and was going easterly on Gorham street, and after passing East street, and when he came along where Kimball resided, he saw the smoke stack of the train and heard the Avhistle as it approached the crossing; that it was a long whistle ; commenced to sound as he judged a quarter of a mile from Kim-ball’s place; that the whistle continued about three or four seconds and stopped before the train reached the crossing, and when it got to the box cars, which will hereafter be more particularly referred to; being asked on his cross-examination “ "Was there a signal from those cars that you heard when it came along by those box cars ? Ans. I don’t remember nothing. I couldn’t see the train when it got behind those box cars at all; you might see the stack. Q. You couldn’t tell there was a train coming except for that, could you ? Ans. No, sir.” And one Mason Mills, a passenger on his way from Phelps to Canandaigua, testified that he was in the smoking car, and that as the train aj)proached this crossing he heard a whistle, a long whistle; that he could not say how far it was from the crossing; it may hare been a 100 rods; that he would not say it was that distance, and that “ it blew four or five seconds, somewhere along there.” Such is substantially the evidence upon the question whether a signal was or was not given of the approach of the train to the crossing, upon which the intestate proceeded in front of the engine. Affirmative evidence of the fact that a signal was given at, and for some distance on, the approach of a train may apparently seem' more potent than that of persons to the effect that they did not hear it or that no such signal was given, yet when the evidence of the latter tends to prove that their attention at the'time was directed or called to the fact, and the omission to give any signal was particularly observed by them, the question is one for the jury to determine. And while the persons on and running the engine have at least as good opportunity to know as any other person can have, whether or not the signal was given in the present case, their relation to the defendant was a circumstance which the jury were also permitted to take into consideration in determining the disputed question of fact. The evidence of the employees of the defendant was that the train was running at the rate of twenty-five or thirty miles an hour, and the speed was estimated as being greater by one or more other witnesses. It seems that East street is within and the eastern boundary of the village of Canandaigua and that the yard of the defendant extends a considerable distance east of that street, and the railroad station or depot is some distance west of it. The train was running about on its regular time on its ajrproach to the street, being due at the station at twelve-fifty p. m. The day was clear. The deceased was familiar with the crossing, and unless his view was interrupted by the defendant’s cars standing upon a track north of that on which the train was moving, he could, by looking, have seen its approach. It appears that at the crossing there were three tracks; that the northern one was a branch track; the middle one, seven feet from it, was that on which the train was coming; that the next track south is that of the Northern Central railway. The branch track before mentioned, and from 150 feet east of the crossing five other tracks, extend east 2,900 feet from East street. Upon the most northerly one of the tracks some cars were standing at the time of the accident, and it is claimed on the part of the plaintiff that they obstructed the view of the train by the deceased as he approached the railroad. After leaving .Kimball’s house he drove southwesterly into and along Gorham street into East street, thence southerly 543 feet in that street to' the crossing, and the evidence on the part of the plaintiff tends to prove that there were cars upon the branch track extending from a point twenty-five feet east of the street a long distance east, and that they at the time shut off the view of the deceased of the train as he was going south to the crossing. The . fact that cars were standing on that track is not questioned, but the controversy in that respect has relation to their location, and as to how continuous the line of them was. The defendant introduced evidence to the effect that the nearest one wab 150 feet from the crossing; tliat the first one was a gondola car thirty-four feet long, then five box cars, altogether occupying a space of about 200 feet in length on the track; that then east therefrom there was an opening of considerable distance to other cars, and so on, cars and openings between them, so that a person passing down East street could see the train as it passed these openings without any obstruction to his view; that the gondola was only about eight feet high and could not prevent any one seeing the train, and that the smoke stack could be seen over the box cars by a person on the street until he was within fifty or sixty feet of the track.

It is reasonable to suppose that when the plaintiff’s intestate drove upon the track he was unaware of the danger he there encountered. And if by the exercise of due care he could have been advised of the approach of the train and avoided the collision, he was chargeable with contributory negligence, and the defendant is not liable for the consequences of it. His situation required him to look and listen, to use his faculties in approaching the railroad track to ascertain whether with safety lie could pass over it. The plaintiff had the burden of proving that the decedent was free from negligence in that respect. Upon that subject the son of the decedent testified that otherwise being unable to see his father, he gat into the tree as before mentioned, from where he could see him as he passed down the street to the crossing; that his father was then twenty or thirty feet from the crossing; that he was driving the horse on a walk and looking both ways; that he was looking up the track and down the track, aiid that the witness heard the whistle of the engine just as it struck him. The witness Mills, before referred to, and who was called on the part of the defense, testified that he saw from the car in' which he was sitting a man approaching the East street crossing in a wagon. As represented by the record before us, he testified, and repeated it on his cross-examination, that when he first saw him the man was about 150 rods from the crossing, and added that he couldn’t tell that he saw him through openings between cars, by which his view was shut off once in a while; that he kept watch of him until he got near the crossing; that he saw him approach to four or five rods from the crossing, might have been closer; that up to the time he came onto that crossing he bad his head down; set with his chin down on his chest, lie was looking straight ahead. I didn’t see no stir of his head.” Assuming that this witness was testifying intelligently, he could not have intended to be understood as saying that the decedent was about 150 rods from the crossing when he first saw him. The distance from Kimball’s house to the crossing from which Moore came, was, by the streets, less than 1,200 feet; there was some opportunity to criticise the testimony of this witness as the record represents it as given by him.

Whether the requisite signal was given to advise a person on the street, exercising due care, of the approach of the train to the crossing, and whether or not the deceased exercised such care for his protection, were, under the circumstances furnished by the evidence, questions of fact for the jury, and properly submitted to it. They were from it permitted to find that the death of Moore was caused by the negligence of the defendant, and without any contributory negligence on his part. And the view which the jury were authorized to take and may have taken, of the evidence, is such that the court cannot see that its conclusion was so against the weight of evidence.as to justify interference upon this appeal with the verdict either in respect to the questions upon which the liability of the defendant was dependent, or as to the amount of damages awarded by it to the plaintiff. There seems to have been no error in the rulings at the trial.

The order denying the motion for a new trial should be affirmed.

Dwight, P. J., Lewis and Haight, JJ., concurred.

Order appealed from affirmed.


text:
    George S. Riley, Respondent, v. Richard W. Cheesman, Appellant.

      Promissoi'y note — deposit of principal andinterest at maturity — recovery of interest from maturity, unless the deposit is kept good.

    To render a deposit, by tbc maker of a promissory note, at its maturity, of the amount of the note with interest to maturity, at the hank where the note is pay* able, followed by an offer to pay such amount shortly before the commencement of an action on the note, and by a payment of the same amount into court, effectual to bar a recovery of interest upon the note from maturity and costs, such deposit in the bank must have been continued and kept good until the payment into court.
    Appeal by tbe defendant, Richard W. Cheesman, from a judgment of the County Court of Monroe County in favor of the plaintiff, entered in the office of the clerk of that county on the 18th day of May, 1893, upon the decision of the court rendered after a trial by the court without a jury.

      John J. Snell, for the appellant.

      John E. Durand, for the respondent.
   Bradley, J.:

The purpose of the action was to recover the amount due on the promissory note of the defendant dated March 31, 1886, whereby he promised to pay to the order of William R. Renshaw $100 fifteen months after its date, with interest, at the Bank of Monroe, in Rochester1, N. Y. On the day the note became due and payable the defendant took to the bank $107.55, the requisite amount to pay it, and made a special deposit of it there to pay the note. It was not presented there for payment, and afterwards, in August, 1887, the money was transferred from such special account to the general credit of defendant in the bank, of which he was then advised. The note was not presented to the bank for payment until in March, 1892, shortly before the commencement of this action. It was not paid by the bank for the reason as then stated that the note was long past due, and that in such case the bank did not pay without order from the maker. The plaintiff, who was1 the owner and holder of the note, called upon the defendant for payment, and was advised by him that he was ready to pay the principal sum and interest to tlie time tbe note became due, and offered to do so. This tlie plaintiff declined to accept in satisfaction of the note. The fact that the note was payable at the bank enabled the maker on the day it became due to be ready there to pay it, and on failure of the holder then to present the note to deposit the money there, and thus relieve himself from the interest upon it and from costs if suit should be brought upon the note. The bank in such case would not' become the agent of the holder of the note, nor woufd the deposit be deemed payment of it, but it would be treated as a tender of performance of his promise to pay; and to make,it' effectual for such relief, continued readiness on his part, and finally bringing the money into court, were essential. (Caldwell v. Cassidy, 8 Cow. 271 ; Hills v. Place, 48 N. Y. 520; Locklin v. Moore, 57 id. 360; Adams v. H. I. Commission, 15 Vroom, 638; 48 Am. Rep. 406.)

The contention on the part of the defendant is, that having been at the bank ready to pay the note at the time it was due, and then left the money there for that purpose, it was sufficient, as he was ready to pay the amount of such tender at the time the note was afterwards presented to him, and brought such amount of mono}'into court. Such is the proposition presented here. It is not deemed essential for his puiqiose that the money should have remained in special deposit to pay the note, but that the continuance of liis'balance in his general account in the bank adequate to tlie" payment of it would have been sufficient in view of the fact that the note when presented could have been paid by the bank and charged to him, the same as if his check had been presented. (Indig v. National City Bank, 80 N. Y. 100, 106.) The plaintiff had before this declined to take anything less than the principal and interest up to the time of payment. And as the defendant had refused to pay such amount, the bank would not have properly represented the defendant if it had paid anything more than the amount due upon the note at its maturity. There are expressions in some of the opinions of the courts which might lead one to suppose that it is only necessary to make the tender or deposit at the proper time of the requisite amount, and when action is brought to plead the readiness at the time and place of payment and bring-such an amount of money into court. Rut an important element in the tender or deposit is that it be continued, or, in other words, kept good until the money is paid into court to support the defense against the claim for further interest and costs in an action brought upon a noté or other obligation to pay. (Roosevelt v. Bull’s Head, Bank, 45 Barb. 579; Tuthill v. Morris, 81 N. Y. 94, 99, 100; Halpin v. Phœnix Ins. Co., 118 id. 166; Nelson v. Loder, 55 Hun, 173; 132 N. Y. 288.) This the defendant failed to prove. And it appears that intermediate the time the deposit was so made and the presentation of the note to him for payment, he had drawn from and deposited in the bank moneys, and that from time to time during that period his balances there were reduced to amounts considerably less than that which he deposited on the day the note became due. His deposit for the payment of the note was, therefore, not 'kept good, and in consequence became ineffectual as a tender, and in that view his readiness and offer to pay the plaintiff the amount so deposited in satisfaction of the note shortly before the aetion was commenced and the payment of such amount into court do not bar the recovery of interest after the maturity of the note.

The judgment should be affirmed.

Dwight, P. J., Lewis and Haight, JJ., concurred.

Judgment of the County Court of Monroe county affirmed, with costs.