author: By the Court.—Horace Russell, J.

text:
    CORA MOFFATT, et al., Respondents, v. JAMES HENDERSON, Appellant.

      Payment after suit brought—what does not constitute.—Costs—how running of stopped. —Pleading.

    By covenant in defendant’s lease it was provided, that the annual charge for Croton water rent upon the premises should be paid by him upon a certain day, and “if not so paid, the same shall be added to the quarter’s rent then due ” plaintiff. Defendant failed to pay such water rent for two years, the amount in arrears being $88.00, for which plaintiff brought this action. Defendant paid said sum to the city after service of the summons and complaint, and answered with a general plea of payment. The court directed judgment for the plaintiff for the amount claimed and costs, and ordered the sum paid by defendant to the’ city to be credited on such judgment.

      Held, that such payment and plea did not relieve defendant of the costs of the action.
    The plea of payment in the answer, being general, should be held to relate to the time of the commencement of the action.
    Defendant’s failure to pay before the time fixed in the covenant, raised a contract debt to plaintiffs, who were primarily liable to the city, which defendant could not thereafter discharge by payment to the city.
    Defendant, if he desired to stop the running of costs, should have made a tender under section 731, Code Civ. Proc., or an offer to compromise under section 738.
    Before Freedman and Russell, JJ.

      Decided December 4, 1882.
    Appeal from a judgment upon a trial by a single judge, a jury trial having been waived.
    By certain conveyances the plaintiffs became the owners and lessors, and the defendant the lessee, of certain premises in Forty-sixth Street, kept as a livery stable. The lease contained the following covenant on the part of the lessee: “To pay the regular annual rent or charge which is or may be assessed or imposed according to law upon the said premises for the Croton water, on or before August 1, in each year during the term, and if not so paid the same shall be added to the quarter’s rent then due.”
    The annual Croton water rent for the year beginning May 1, 1880, and for the year beginning May 1, 1881, $40 each year, was not paid before the commencement of this action. In consequence of such non-payment certain penalties were imposed amounting to $8. After the commencement of this action, and on September .21, the defendant, without the knowledge of the plaintiffs, paid to the Department of Public Works the amount of both the annual rents, above referred to with the extra charges and intérest. In the year 1879, a charge, denominated a meter rate, or charge, was made by the Department of Public Works for Croton water furnished to the defendant at the said leased premises, as ascertained by a water meter on the premises, amounting to the sum of $165.85, and the same, not being paid, was returned to the office of the Clerk of Arrears, in the Finance Department of the City, in July, 1880, and became subject to interest at the rate of seven per cent, per annum from October 27, 1879. This meter charge, with interest, amounting to $182.40, was paid by the plaintiffs after the commencement of this action, and on February 25, 1882.
    The learned judge below found that the plaintiffs were not entitled to recover for the last named sum because it was not paid before the commencement of their action, and that they were entitled to judgment for the sum of $88 and costs, but that the judgment should be marked by the clerk of the court on the docket thereof as having had the sum of $88 paid thereon and that the plaintiff should not collect on the judgment nor issue execution thereon for any sum exceeding the amount of their taxed costs.
    The defendant’s answer, verified October 20, 1881, contained the following allegation: “For a further and separate defense, defendant alleges that he has paid all the regular annual rents or charges which have been assessed or imposed according „ to law upon the said premises for the Croton water, since the assignment to, and acceptance of said lease by the defendant.”

      Henderson & Tompkins, and S. Jones, for appellant.

      Joseph A. Welch, for respondents.
   By the Court.—Horace Russell, J.

The only question raised by this appeal is, whether the payment by the defendant of the $88—the only sum due the plaintiff, as found by the learned judge below—after suit brought and before the answer was served, relieved the defendant from the payment of the costs of the action.

There can be no doubt, that a defendant may plead anything occurring before answer, amounting to a defense—not as a defense, but as a bar to the further maintenance of the suit; and after answer served, a defendant is usually permitted, upon terms, to set up by supplemental answer any facts which would bar the further maintenance of the suit. Before the Code, it was a matter of course to permit a plea puis darrein continuance to be filed. While it was done by the order of the court, that was merely a matter of form (Bate v. Fellowes, 4 Bosw. 638). Since the adoption of the Code, it is almost as much a matter of course to permit the filing of a supplemental answer, but it is at the same time, almost as much a matter of course to impose the payment of the accrued costs, as a condition, and such other conditions as the justice of the case may demand. But I do not understand that the filing of a plea puis darrien continuance, before the Code, relieved a defendant from the payment of the accrued cost, such as there would be, if there had been a continuance. Since the Code it is usual, as I have said, to make provision on that subject - in the order permitting the supplemental answer. The original answer in this case was delayed until after the defendant paid to the Commissioner of Public Works the amount of that portion of the plaintiffs claim, which the judge held the plaintiffs entitled to recover.

There are several objections to the defendant’s position. In the first place, his answer does not constitute a plea puis darrein continuance. It alleges payment generally, and as the rights of the parties were to be determined by the condition of affairs at the time suit was brought, the plea of payment in the answer ought to be held to relate to the time of the beginning of the action. There are no words in it to indicate that the payment was made after the complaint was served.

In the next place, by the covenant in the lease if the tenant failed to pay the water rates before August 1, they were to be added to the quarter’s rent then due. The lessors were primarily liable to the public authorities for the water rate. The defendant became liable to pay them only in consequence of the terms of the lease. His failure to pay before August 1, raised a contract debt from him to the plaintiffs which he could not thereafter discharge by payment to a third person, even though that third person were the one to whom he had originally agreed to pay. Payment to the third person, then, without the order, certainly without the knowledge, of the plaintiffs, was not good payment of a debt which, by the terms of the lease, was then owing directly to the plaintiffs. It is much more than doubtful whether the defendant’s plea of payment in his answer was sustained by the proof, and whether, if technicalities were to be adhered to, the judge below had the right to give the direction that the amount of the defendant’s payment should be credited upon the judgment docketed by the clerk. It may be that the receipt of the sum sued for, after suit, would amount to a waiver of costs (Bendit v. Annesley, 27 How. Pr. 184; Willis v. Chipp, 9 How. Pr. 568). And it was held in Brown v. Richardson (7 Robt. 57), that where leave was given to file a supplemental answer alleging payment, it was to be assumed that provision for accrued costs was made on the motion, so that the final costs could follow the judgment. But Reiner v. Doerge (61 How. Pr. 143), and the cases cited therein, do not support the proposition that the general defense of payment to an action for a debt due a plaintiff, is made out by proving that after suit brought the defendant paid the sum sued for to the plaintiff’s creditor.

The Code has expressly fixed the method by which a party may stop the running of costs against him, by tender after suit brought (§ 731): or, by offer to compromise (§ 738). The plaintiffs were entitled to the costs which accrued up to the time of the payment in any event.

If the defendant wished to stop the running of costs against him, he should have either tendered the amount and costs accrued up to that time, or made the offer contemplated in section 738.

The judgment below was more favorable than the defendant had a right to expect. It should be affirmed, with costs.

Freedman, J., concurred.


source: Caselaw Access Project

license: Public Domain

text:
    ANDREW KNAUER, and KATIE, his wife, Respondents, v. THE GLOBE MUTUAL LIFE INSURANCE COMPANY, Appellant.
    I. Contract.

    1. Rescission or Repudiation of, for Fraud.
    (a) Laches in discovering fraud, when not imputed.

    1. Policy of life insurance.—When a holder of a policy is induced to surrender it, and accept another in its place, upon false representations as to the terms of the new policy, and as to their effect being more favorable to the assured than the terms of the old one, laches will not be imputed to him from his not reading the new policy and discovering that it did not correspond with the representations, for a period of five years, the new policy being so obscure in its terms as that only experts in insurance matters could understand it.
    II. Corporation.

    1. Officer as Agent.
    (a) Authority to bind corporation by his representations.—Prima facie evidence of.

    1. An officer made certain representations to a dealer with the corporation, in its office, the officer and dealer being engaged in the business of the corporation, and the representations having reference to its business, and being designed to produce an act by the dealer beneficial to the corporation, and the dealer did the act which was subsequently accepted by and acted on by the corporation ;

      Reid,

    That there was prima facie evidence (there being no other proof as to the extent of the officer’s authority) of authority in the officer to bind the corporation by his representations.
    Before Sedgwick, Ch. J., Freedman and Russell, JJ.

      Decided December 4, 1882.
    Appeal from a judgment entered after a trial at special term.
    In May, 1870, the plaintiff, Andrew Knauer, took - from the defendant an endowment insurance policy guaranteeing the payment of the sum of $2,000 at the end of fifteen years from the date thereof to him, or, in case of his prior death, to his wife, Katie Knauer. The premium upon this policy was $139.38 per annum, payable in quarterly installments. He paid the premiums up to and including the quarterly premium due January 27, 1874. In October, 1873, when Knauer was paying his premium at the defendant’s office, the cashier solicited him to exchange the policy he held for a .new policy, upon a plan which he represented to be more favorable than the terms of the policy Knauer then had. The cashier represented that the new policy would cost $30 a year less, that it would be payable a year sooner, to wit, 1884, and that in case of his death his wife would receive $2,000, as on the former policy, and in case he survived until 1884, he would himself receive the amount of $2,000 instead of having to pay another premium and waiting until 1885 for his $2,000.
    The cashier also offered to allow two years’ premium on the new policy without any cash payment, saying that the company had lowered its rates since the time when Knauer was first insured.
    The plaintiff did not exchange policies at that time, but did in January, 1874, the same representations being made to him by the cashier. Knauer received the new policy and paid premiums thereon in 1876 and 1878, $109.82 each.
    The new policy differed from the old one in the following particulars:
    1. The first policy entitled the holder to dividends during its progress. Knauer had received several. The new policy entitled him to dividends only at the end of the term in case he should then be living and should have continued to pay, otherwise he forfeited the dividends.
    2. The first policy entitled him, at any time after two annual premiums had been paid, to receive a paid-up policy for a proportionate amount of the sum insured, viz., 2-15th, 3-15th, &c., according to the number of annual premiums paid. The new policy did not give him that benefit, but was absolutely forfeitable, together with all the premiums paid thereon, in case of failure to pay.
    3. The first policy guaranteed the payment of $2,000 at the maturity thereof. The second policy guaranteed him only the payment of the net value of the policy.
    This net value was represented to the plaintiff by the cashier as meaning the same thing—that is, that the policy-holder would get $2,000 at the end of the time.
    According to the plaintiff’s witnesses on trial the words “net value” in the new policy substantially meant that the policy-holder would receive nothing. According to the defendant’s witnesses they meant that he would receive $600 or over.
    The plaintiff Knauer is a German, speaking but not reading English very well. The phraseology of the second policy issued to him was. such that only an expert in insurance matters could understand and interpret it. The plaintiff did not become aware of the difference between his first and second policy until •January, 1878, when he submitted it to an expert, who explained it to him, whereupon he brought this action, offering to surrender up the second policy and claiming the surrender value of the old policy at the time it was surrendered and the amount he had paid in premiums upon the new, with interest, &c.
    The plaintiffs had judgment below, and defendant now brings this appeal.

      Sewell & Pierce, attorneys, and Robert Sewell, of counsel, for appellant, urged :
    I. The cause of action, if Knauer ever possessed any, has been lost by the lapse of time and his own negligence. This is an application to rescind the contract made between him and the company. It is not sought to reform the contract; in. that case far greater laches will be overlooked (Jennings v. Broughton, 5 D. G. M. & G. 126; Story Eq. Jur. 200 a ; Atwood v. Small, 6 Clark & F. 232; Benedict v. Bank, 4 Daly, 171; Scholey v. Worcester, 4 Hun, 302 ; Fitzhugh v. Sackett, 50 N. Y. 699 ; Ross v. Tillotson, 6 Hun, 280 ; North v. Case, 42 N. Y. 362 ; affirming 2 Lans. 264 ; Hay v. Star Fire Ins. Co., 77 N. Y. 240 ; 1 Story Jur. § 776 ; 1 Fonb. Eq. ch. 62, § 2; Bidwell v. Astor Ins. Co., 16 N. Y. 263).
    II. The simple fact that the capacity of this plaintiff is less than that of another person, is no reason for setting aside his contracts (Mann n. Bellerty, 21 Ver. 326). Nor is the mere fact that a contract is hard and unconscionable, sufficient reason in law or equity to set it aside (Willis v. Jannegan, 2 Atk. 251; Warner v. Davids, 1 Woodb. & M. 203). The court of chancery is not the guardian of any but idiots, insane people, and others who are laboring under legal and physical disabilities. And this man of sound mind, of full age, with his eyes open, and understanding the English language, must be held to the same rule that governs other contracting parties, and if he enters into a contract which is improvident, he should not, for the mere reason that it is improvident, be permitted to rescind it. But, it is submitted, that the proof shows that the contract is not hard or unconscionable, and that, therefore, there does not exist even that reason for attempting to set it aside (Blackford v. Christian, 1 Knapp, 77 ; Stevens v. Mayor, 46 J. & S. 295).
    III. The acts of the agent who made the representations to the plaintiff were wholly unauthorized by the defendant, and there is no evidence tending to show that the company ever had any knowledge of those representations, or ever adopted or ratified them. (See Stringham v. St. Nicholas Ins. Co., 4 Abb. Ct. App. Dec. 315). To establish a ratification by a principal of an unauthorized act of his agent, it must appear that the principal acted with knowledge of the facts; he cannot be held to have ratified acts which did not come to his knowledge (Ritch v. Smith, 82 N. Y. 627 ; Bannon v. Warfield, 42 Md. 22 ; Adams Express Co. v. Trego, 35 Md. 47; Hardeman v. Ford, 12 Ga. 205 ; Billings v. Morrow, 7 Cal. 171; P. & S. R. R. Co. v. Gazzam, 32 Pa. 340; Kerr v. Sharp, 83 Ill. 199 ; .Combs v. Scott, 12 Allen, 493 ; Com. Bank v. Jones, 18 Tex. 811; Lewis v. Read, 13 M. & W. 834 ; Freeman v. Rosher, 13 Q. B. 780).
    IV. The learned judge at special term erred in finding that policy Ho. 31,850 (the second policy), was a term policy upon which the reserve accumulations during said years would never exceed the sum of twenty-five dollars, and that the value of said policy Ho. 31,850, at the expiration of the said term (said Knauer being then living), would be nothing.' .

      James P. Albright, attorney, and of counsel for respondents, among other things, urged :
    I. The issuance of the new policy shows that the company ratified the acts of its cashier, done in its own office, and behind its own counters.
    II. There has been no laches on the part of the plaintiffs, for the action was begun immediately upon the discovery of the fraudulent character of the new policy (Rohrschneider v. Knickerbocker Life, 76 N. Y. 216 ; Hay v. Star Fire Ins. Co., 77 N. Y. 240).
   By the Court.—Horace Russell, J.

The grounds urged before us for the reversal of this judgment were (1) that the judge at special term misconceived the meaning of the second policy issued; (2) that the plaintiff, if he ever had any cause of action, had lost it by his own laches ; and (3) that the representations of the cashier were not binding upon the defendant, he having no authority to make them, and the defendant never having ratified them.

1. As the first objection is to a conclusion of fact rather than of law, it is only necessary to say that there is evidence to support the finding below, and, indeed, the witness relied on by the defendant testified that the policy was capable of the interpretation put upon it by the plaintiff’s witnesses, although that was .not the interpretation he put upon it or which was put upon it by the defendant.

2. The judge below having by his finding determined that the plaintiff was guilty of no laches such as should prevent the granting of the relief demanded, we see no reason for disturbing the finding, which was discretionary (Hay v. Star Fire Ins. Co., 77 N. Y. 235). Indeed, it may well be doubted whether the plaintiff had not the statutory time within which to bring his action, viz., six years (Code, § 382., subd. 5), and so, whether it could be held that any action brought within that time should fail because of laches (Matter of Man. Savings Ins., 82 N. Y. 142). The fact that the second policy was obscure in its terms, so much so that only experts in insurance matters could understand it, takes this out of that class of cases where courts of equity have refused to relieve a party who by the exercise of ordinary diligence, and by such an examination as a prudent person ought to have made, might have discovered the falsity of the represen tat ions.

3. As to the cashier’s authority to make the representations so as to bind the defendant, there was no other evidence than that he, when receiving premiums from the plaintiff, urged the plaintiff to make the surrender of his first policy, making the representations relied on, and the defendant thereafter issued to the plaintiff the new policy. The cashier acted as the agent of the defendant in that transaction, whether within the scope of his ordinary employment or not. There was no evidence offered on the part of the defendant that his action was not within the scope of his ordinary employment, and the company ratified his act by issuing the new policy. These facts were sufficient, in our judgment, in the absence of any contradiction, to justify the judge below in holding that the cashier was the defendant’s agent, and that the defendant was bound by and responsible for his misrepresentations.

The judgment was right, and should be affirmed, with costs.

Sedgwick, Ch. J., and Freedman, J., concurred.


author: “ Arnoux, J. By the Court.—Horace Russell, J. Earle, J.,

text:
    CATHERINE HART, as Admr’x, &c., Respondent, v. THE N. Y. FLOATING DRY DOCK Co., Appellant.

      Negligence—fellow-servant, when deemed to be acting in place of employer —liability of employer for acts of.

    Where plaintiff seeks to recover from his employer, damages for injuries caused by the negligence of a fellow servant, upon the theory that as to the matters in regard to which the negligence occurred, such fellow servant was acting in the place of the employer, it is error to leave it entirely to the jury, to determine what acts and duties the defendant is required to perform and discharge as principal.
    Where the business of defendant, a dry dock company, is raising, repairing and again lowering vessels, the court should charge that the duty of the defendant is to supply its servants with suitable and safe machinery and appliances, with competent and skillful coworkers, and to make and promulgate suitable and sufficient rules for the conduct of its business in its ordinary run, and for any extraordinary occasions that "might reasonably be anticipated. The jury should then find whether, as to the act in question, defendant has been guilty of any neglect of these duties.
    A foreman of one of defendant’s docks, who at the time the accident occurred, was engaged in superintending the raising of a vessel in said dock, was not, as to such act, the alter ego of the company, and it cannot upon that ground be held liable for his negligence or for his errors of judgment in directing said work.

      Before Sedgwick, Ch. J., Freedman and Russell, JJ.

      Decided December 4, 1882.
    Appeal by the defendant from a judgment entered upon the verdict of a jury, and from an order denying a motion for a new trial.
    The action was for damages for the alleged negligence of the defendant, whereby the plaintiff’s intestate lost his life.
    The defendant is a corporation owning a dry dock and engaged in the business of repairing vessels. The plaintiff’s intestate was in the defendant’s employ as a laborer. On October 14, 1881, the defendant took upon their dock for repairs the Pacific mail steamer, Crescent City. On October 17, the repairs having been completed, the dock was lowered and the braces and fastenings were removed. An attempt was made to tow the vessel from the dock by tugs, but it was found that the tugs could not move her, as the after-part of the vessel had grounded on the keel blocks and was held fast; the water was not high enough to float the vessel. The defendant’s foreman, McCann, then directed that the tugs leave and the vessel be refastened, and the dock, with the vessel upon it, be raised from the water so as to wait for the next high tide. This was done. When the dock had been partially lifted, McCann noticed that the vessel trembled somewhat, but notwithstanding this he gave no direction to stop raising the dock. When the deck of the dock was about on a level with the water, the vessel careened to one side, crushing and killing the plaintff’s intestate, who at the time, in the performance of his duty, was engaged in adjusting one of the bilge blocks on the rear of the dock.
    The method of receiving and raising vessels on the defendant’s dock was as follows: Before a vessel is placed in the dock a plan of it is given to the foreman, who arranges his keel, dock, and bilge blocks, to hold and steady the vessel in its place. Along the center of the dock there runs a beam or truss, on which were placed the keel blocks on which the weight, of the vessel rested, and from the side of the dock, blocks called bilge blocks were run out to support and hold the bilge of the vessel, to steady rather than' to support. These bilge blocks ran over what are called iron ratchets containing teeth one half an inch in depth, and to their rear were fastened what are called pawls, weighing five pounds, which, when inserted in teeth of the ratchets, held the bilge blocks in position. The plan of the vessel having been given to the foreman, the vessel was floated in and properly centered over the keel blocks, which were held in position by iron dogs to the beam running along the center of the dock. The dock was then raised until the keel of the vessel grounded upon the keel blocks, and the bilge blocks were run out and fastened in their places. It is essential that a correct center should be obtained—that is, .that the keel should rest exactly on the centre of the keel blocks, as otherwise when the dock is lifted and the support of the water removed from the vessel, there is great danger of its careening by reason of the undue weight resting on one side consequent upon, the keel not resting on the center of the blocks.
    McCann was the foreman or dock-master of sectional dock No. 3 belonging to the defendants, had been in its employ in that capacity nearly four years. The defendant owned two other similiar sectional docks.
    As foreman of No. 3, McCann operated the dock.and gave orders ; he did not hire or discharge men, did not purchase or supply machinery. He had raised three hundred and sixty-five other vessels in the same way this was raised, and never before had an accident. The defendant had a president in the vicinity of its-docks, in general charge of its business.

      While the precise cause of the accident was not conclusively shown, the evidence all tended to show, and the argument of the respondent was, that it occurred, because, before raising the dock, after the tugs had failed to haul the vessel off, the vessel was not properly centered by McCann, inasmuch as to properly center a vessel it is necessary that she should be floating free, which this vessel was not: and because the attempts of the tugs to pull the vessel off had so loosened the keel blocks and bilge blocks as that the center of gravity on the keel blocks was not preserved, and so, when the vessel arose out of the water, it careened. According to the testimony, this was the first time a vessel had been, raised after having been lowered upon completion of repairs.
    A motion was made to dismiss the complaint, both at the close of the plaintiff’s case and at the close of the testimony, on the grounds (1) that there was no-negligence on the part of the defendant; (2) that if the accident occurred from the negligence of McCann, it was the negligence of a fellow servant; (3) that the pawls and rachets were proved to have been in good condition, and if they were not it was as well known to-the decedent as to the defendant; and (4) the decedent’s contributory negligence.
    This motion was denied and the court, among other things, charged, “ If the jury believe from the testimony, that on October 17, 1881, the time of the accident, McCann was the general superintendent of the dock in question and had sole and entire charge of the raising and lowering said dock and the placing of vessels-therein and removing the same therefrom, he was, in respect to such acts, the alter ego of the defendant, and for his negligence, if any, in the performance of these-acts, or any of them, the defendant would be liable.” To this the defendant excepted.
    The court- also charged, “If the jury believe from the testimony that the lowering and raising of the dock in question and the placing of vessels thereon and removing the same therefrom, were acts which the defendant corporation was required to perform as principal, it is immaterial to whom the performance of such acts, or any of them, was committed, as the defendant would be liable for negligence or want of proper care in the performance of such acts.” To this the defendant excepted.
    The court also charged substantially, that if the failure properly to re-center the vessel was the cause of the accident, or if failure to lower the vessel when the trembling became apparent showed want of care, then that the plaintiff could recover.
    The defendant, in various forms, made requests to charge the converse of these propositions in regard to the responsibility of the defendant for the negligence of McCann, which the court refused.
    In submitting the case to the jury the court asked them, in addition to a general verdict, to answer the following questions: 1. “Was the plaintiff’s intestate free from contributory negligence ?” (To which the jury answered “yes.”) 2. “Was the defendant, in respect to such acts and duties, as it was required to perform and discharge, guilty of negligence or want of proper care in the matters alleged, in the complaint?” (To which the jury answered “yes.”) 3. “ Did the defendant furnish its employees, for use in the transaction of its business, good and sufficient pawls, ratchets, and keep them in repair at the time of the accident in question?’.’ (To which the jury answered “yes, the latter out of repair at the time of the accident.”)
    The jury rendered a verdict for the plaintiff for $4,200.
    Upon the defendant’s motion for a new trial upon the minutes, the learned judge below delivered the following opinion:

      Benedict, Taft & Benedict, attorneys, and E. N. Taft, of counsel, for the appellant.

      T. C. E. Ecclesine, attorney, and J. C. Tomlinson, of counsel for the respondent.
   “ Arnoux, J.

Where the master places the entire charge of his business in the hands of an agent, the neglect of the agent in supplying and maintaining suitable instrumentalities for the work required is a breach of duty for which the master is liable (Mullan v. Phila. & Southern Mail S. S. Co., 78 Penn. St. 25; 21 Am. R. 2, cited with approbation in Crispin v. Babbitt, 81 N. Y. 516-521; Corcoran v. Holbrook, 59 Id. 517). A corporation necessarily places the entire charge of its business in the hands of its agents, and as the jury has found that there was a breach of duty in this regard, if it could be established that the ruling of the court was wrong in respect to the position of McCann, nevertheless the verdict should be sustained. We think that this case, in respect to the duty that the master owes his servant as to the acts of McCann, is distinguishable from the cases of Crispin v. Babbitt (81 N. Y. 516), and McCosker v. L. I. R. R., (84 N. Y. 77). To entitle the defendant to a new trial he must affirmatively establish that the verdict was wrong in both branches of the case. This, after careful examination, we think he has failed to do, and therefore, the motion for a new trial is denied.”

By the Court.—Horace Russell, J.

[After stating the facts as above.] The fundamental error into which, as it seems to me, the learned judge who tried this case below, fell, was in leaving it entirely to the jury to determine what acts and duties the defendant was required to perform and discharge as principal, instead of holding, as a matter of law, that “the duty of the defendant was to supply its servants with suitable and safe machinery and appliances, with competent and skillful co-workers, and to make and promulgate sufficient rules and regulations for the conduct of the business in its ordinary run and for any extraordinary occasions that might be reasonably anticipated ” (Slater v. Jewett, 85 N. Y. 61, 73), and then asking the jury to find whether the defendant had failed in the performance of its duty in any of these respects. The fact that the defendant’s business is raising, repairing and again lowering vessels does not require it to take charge of the details of this business as principal, or make it liable to a servant for the negligence of a fellow-servant who is put in charge of such details.

It might as well be left to a jury to say whether or pot it is the duty of a railroad company to conduct trains as principal, so that every railroad conductor could be found by the jury to be the alter ego of the company.

The defendant can be held liable only for neglect of its duty in respect to the matters which I have quoted from the opinion of Chief Justice Folgker. Whether or not McCann was the alter ego of the defendant was a matter of law to be determined by the court, not a matter of fact to be decided by the jury. The decision in Mullan v. Phil. & South. Mail S. S. Co. (78 Penn. St. 25 ; 21 Am. R. 2), was approved in Crispin v. Babbitt, only to the extent of this proposition : “Where the master places the entire charge of his business in the hands of an agent, the neglect of the agent in supplying and maintaining suitable instrumentalities for the work required, is a breach of duty for which the master is liable.” The words which I have put in italics were so put by Judge Rapallo in his opinion (81 N. Y. 521), and he goes on to say: “ These were master’s duties. In so far as the case from which the citation is made goes beyond this, I cannot reconcile it with established principles.” “

Was McCann the alter ego of the defendant so that his negligence was the negligence of the defendant, or was he only the fellow-servant of the plaintiff’s intestate, for whose negligence in this case the defendant is not responsible ? This question is not to be determined by the relative grade or rank of McCann and Hart (Crispin v. Babbitt, 81 N. Y. 516; Slater v. Jewett, 85 N. Y. 61; McCosker v. L. I. R. R. Co., 84 N. Y. 77.)

In Crispin v. Babbitt, a person known as “business and financial man,” in general charge of the business, the defendant being absent most of the time, was held to be a co-employee in regard to the business out of which the accident befell.

In Slater v. Jewett the conductor of a train, having general charge of it, was held to be fellow-servant of the fireman who was killed by his negligence.

In McCosker v. L. I. R. R. Co., the yardmaster who employed and discharged drillers (of whom the deceased was one), made up trains, distributed cars in and about the yard and repair shops, was held to be fellow-servant of the driller, who worked under his command and was killed by his negligence.

According to the testimony before us McCann was only foreman of sectional dock No. 3. It was no part of his duty to supply machinery or to employ or discharge men; that was all done by the president of the company, who devoted himself exclusively to the general management of the business; but even if it had been, under the decision in Crispin v. Babbitt, McCann was not, at the time of the accident, engaged in work which the law requires the defendant itself to do, but was the fellow-workman of the intestate.

Earle, J.,

in his dissenting opinion in that case, says this distinction, that a person could at the same time be in one respect the alter ego of the superior, and in another a fellow-workman with an employee, was never recognized before; however that may be, it is recognized now. And though Crispin v. Babbitt was decided by a bare majority of the court of appeals, the case of McCosker v. L. I. R. R. Co. was a unanimous decision following the rule adopted in Crispin v. Babbitt.

It is quite apparent that the accident in this case was occasioned by McCann’s failure to properly center the vessel before re-raising her, or in attempting to re-raise her at all, under the circumstances ; it was a thing which had never before been attempted. That is to say, McCann used bad judgment in the matter.

In Crispin v. Babbitt the “business and financial man” let on steam and started the machinery when he ought not to have done so. In McCosker v. Long Island R. R. Co., the yardmaster signaled the engine “ negligently and at the wrong time.” And in Slater v. Jewett the conductor neglected to direct the engineer to stop at a station when telegraphed to do so.

If, in these cases, defendants were excused from liability for the gross negligence of persons who were in charge of the business in hand, in the absence of their superiors, how can the defendant be held responsible for the bad judgment of its foreman about a mere matter of detail ?

The cases relied on by the respondent to take this case out of the rule laid down in Crispin v. Babbitt (Flike v. Boston & Albany R. R. Co., 53 N. Y. 549 ; Booth v. the same, 73 Id. 38 ; Fuller v. Jewett, 80 Id. 46) are easily distinguishable. The superior was held responsible in each one of these cases, because it deputed to an agent something which, as principal, it was bound to do, within the rule I have quoted as stated by Judge Folger.

In the first two cases, which arose out of the same accident, it was held to be the duty of the railroad, company to supply suitable machinery and sufficient help, and if it delegated either of these duties to an agent, no matter what Ms grade or position, Ms act in that regard was the act of the defendant; and so, the railroad company was held responsible for an accident which arose because a heavy freight train was sent out with only two brakemen when it should have had three, and would have had three, but for the failure of a subordinate to awake the third, who had overslept .himself.

It is worthy of remark that Allen, Grover and Folger dissented from the decision in the Flike case. That decision, however, does not apply to the case before us, because there was no proof or claim on the trial which we are reviewing that sufficient help was not supplied by the defendant.

In Fuller v. Jewett an engineer had been killed by the explosion of a boiler, which, the judge says in his opinion, “ it is quite clear, upon the evidence, was in a dangerous condition at and prior to the time of the accident.” And it was held that, inasmuch as it was the duty of the corporation to keep its.machinery in proper condition, if it delegated that duty, the neglect of the person to whom it delegated it could be imputed to the company.

Under these cases, it seems to me quite clear that McCann was not the alter ego of the defendant, and that the learned judge below erred in refusing so to charge, and in charging that the defendant was responsible for acts of negligence imputable only to McCann.. For this error there should be a new trial.

Nor was the error cured by the finding of the jury that ratchets and pawls were out of order at the time the accident occurred. There was little, if any, evidence to sustain such a finding. It was based mainly upon conjecture. Nor does the evidence show, nor did the respondent’s counsel claim in his very elaborate and able argument before us, that the injury arose from any such cause.

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

Sedgwick, Ch. J., and Freedman, J., concurred.


author: Arnoux, J. Per Curiam.

text:
    EDWARD P. CUTTER, Appellant, v. JOHN D. CUTTER, Respondent.

      Arbitration—common law right of-—irregularities—excess of power in award, when waived.

    The statutes of this State are not inconsistent with, and do not take away or restrict, the common law right of arbitration.
    Where the parties have appeared before the arbitrators and presented their claims and proofs without objection, and an award has been made thereon, such irregularities as the omission of the acknowledgment or proof to the written instrument of submission, and the omission of the arbitrators to be sworn, the oath not having been waived by written consent, according to § 2369, Code Civ. Pro., do not affect the award, and cannot be taken advantage of by either party.
    An award, providing that certain notes therein directed to be given by one of the parties to the other, in settlement of the claim involved, shall be “satisfactorily secured,” is not void for indefiniteness. The phrase has a recognized commercial signification, and means that the note must be secured by an indorser satisfactory to the payee, who may not reject such name except upon good reason shown.
    Only the party prejudiced is entitled to object to the award upon the ground that the arbitrators thereby exceeded their power in relegating to one of the parties a portion of their authority.
    Before Sedgwick, Ch. J., Freedman and Russell, JJ.

      Decided December 4, 1882.
    Appeal from a judgment rendered at special term.
    The action was commenced on February 13, 1882, and was brought to dissolve a partnership, which plaintiff alleged existed between him and the defendant, for a receiver, and for an accounting.

      The facts are stated in the opinion of the court at special term, which is as follows:
   Arnoux, J.

About November 1, 1879, the parties hereto, with one Inslee A. Hopper, entered into a partnership, which continued until September 27, 1881, when it was dissolved by the death of said Hopper. In December, 1881, the surviving partners acquired the interest of said Hopper in said partnership and continued the business. After the purchase of Hopper’s interest differences arose between the parties hereto, and on or about December 17, 1881, they entered into an arbitration agreement, which provided that, in case they should not be able within the next ten days to agree upon the terms and provisions of the copartnership agreement, which they were then considering, and intending to enter into, that the arbitrators therein named should fix the amount of tlie interest of plaintiff in said firm, and the amount defendant should pay to plaintiff for the purpose of acquiring such interest, the time and manner of such payment, and the security to be given; the determination and decision of a majority of the arbitrators in writing in respect thereto to be final and conclusive. Until such determination the business was to be carried on and conducted as it then was.

On January 7, 1882, the ' majority of the arbitrators determined that defendant should pay to plaintiff for his interest in said firm the sum of $25,000 after making certain deductions. The sum was to be paid in four equal payments, as follows : 25 per cent, in cash, and three equal notes, of six, twelve and eighteen months, for the balance ; the last two notes to be satisfactorily secured. Defendant was ready to perform within the time specified in the award, and tender was waived. On January 13, 1882, plaintiff informed the defendant that he would not abide by the award. The submission was not acknowledged or proved, and the arbitrators were not sworn, nor was the oath waived in writing. Defendant thereupon took sole possession of the business and excluded plaintiff therefrom. In consequence whereof plaintiff commenced this action.

The fundamental question in this case arises out of the arbitration. If the submission was binding and the award valid, then by the terms of the submission itself the defendant acquired the entire interest of the plaintiff in the firm ; and the defendant being ready and willing to perform the award, the plaintiff has ceased to have any interest whatever in the firm, and the defendant has the right to exclude the plaintiff and commit the acts complained of.

The first question presented on the argument is whether there is such a thing in this State as a common law arbitration which can be enforced by the courts. The court of appeals, in Bulson v. Lohnes (29 N. Y. 291), have, in some respects, decided that question in the negative. In that case two arbitrators of the three appointed, proceeded to hear the proofs, and made an award. The court held that their proceeding was regular under the common law, but void under the statute. Johesoe, J., writing the opinion of the court, says : " It is entirely clear, I think, that most of the other provisions of the title were designed and intended to regulate and control, by uniform and definite rules, all arbitrations, upon written submission, in this State. This, I think, plainly appears upon the face of the statute. It is entitled, ‘ Cf Arbitrations,’ without qualification.” The policy of the law has been to favor arbitrations, which are now encouraged by the courts (Fudickar v. The Guardian Mutual Life Ins. Co., 62 N. Y. 392, affirming 37 Super. Ct. 358). The question came squarely before the court of appeals, in the case of Wood v. Tunnicliff (74 N. Y. 38), where the court expressly decided that the provisions of the Revised Statutes (2 R. S. 89, § 36 et seq.), relating to the reference of disputed claims against the estates of decedents, are not inconsistent with and do not take away or restrict, the common law right of arbitration. If this be so with respect to executors and administrators, it must be so in regard to any individual acting sui juris. This is recognized in the Code, in the beginning of the chapter on arbitration, which enacts that “A submission of a controversy to arbitration cannot be made, either as prescribed in this title or otherwise, in either of the following cases” (§ 2365). •If in this State there could be no other arbitration than under the statute, the words “or otherwise” would be senseless. It is, however, contended that, where the submission is by an instrument in writing, it must be duly acknowledged or proved. The language of § 2366 of the Code is not imperative in terms. It says: “ Two or more persons may, by an instrument in writing, duly acknowledged, etc., submit, etc.” Under the Revised Statutes the language is imperative. , “ Before proceeding to hear any testimony “ the arbitrators shall be sworn, etc.” (2 R. S. Edm. ed. 560, § 4). Yet, in Howard v. Sexton (4 N. Y. 157), the court held that, by the common law, arbitrators could act judicially without being sworn, and that the statute of arbitrations has not changed the law in this respect; that jurisdiction is conferred upon the arbitrators by agreement of the parties, and the omission to take the oath prescribed by the statute does not affect the validity of their proceedings. To the same effect is the decision of the supreme court in Sonneborn v. Lavarello (2 Hun, 201), where the action of a committee of the Hew York Produce Exchange, sitting as arbitrators, was upheld, although they had failed to take the oath prescribed by the statute and by the by-laws of their association. If the imperative language of the statute in regard to oaths can othus be waived, the requirement with respect to the acknowledgment, which is not made a condition precedent, can likewise be waived. It is a mere irregularity.

In Bulson ». Lohnes, supra, the court laid special stress upon the fact that the hearing in that case was not sanctioned by the defendant. But here, as appears by the award, the arbitrators all met together and heard the said parties and their respective allegations and claims, and duly and fairly considered the same. This was a waiver of the irregularity complained of. A more difficult question to dispose of is the objection that the arbitrators were not sworn. As we have seen, this requirement, under the Revised Statutes, could be waived. But the new Code has the further provision that the arbitrators must be sworn ■ unless the oath is waived by written consent (§ 2869). Has this changed the rule heretofore laid down ? Ordinarily arbitrators are laymen and cannot therefore be supposed to be familiar with the provisions of the Code. I am inclined to think that a liberal construction requires the court to hold that this provision can be waived as fully and in the same manner as the other. I further think that it would be detrimental to the administration of justice, where parties had honestly submitted their claims to arbitrators to permit them to escape the consequence of the award by setting aside the proceeding for any irregularity in their course. It makes the whole proceeding a nullity or else a matter of speculation ; that the party may accept the award if it pleases him, or may wait until the determination is made, and reject it if he is dissatisfied. I, therefore, find that whatever irregularities there may have been in the submission and in the action of the arbitrators, are cured by the award ; and that plaintiff, having waited until after a •decision was made, is estopped from claiming that thereby the award is invalid for the reasons assigned.

In the next place, is the award invalid for indefimiteness in the terms of the award itself %

It is always to be presumed that arbitrators have not exceeded their authority, unless the contrary appear on the face of the record, or is appropriately shown (Hayes v. Forstall, 31 Me. 112 ; Richardson v. Huggins, 23 N. H. 106; Lamphire v. Cowan, 39 Vt. 420; Clement v. Comstock, 2 Mich. 359 ; Myer v. Fork and Cumberland R. R. Co., 2 Curtis C. C. 28; Blair v. Wallace, 21 Cal. 317; Morse Arb. 179). It is contended that the provision that the last two notes should be “satisfactorily secured” was void for indefiniteness. The words satisfactory indorser ” have a recognized commercial signification. It must be an indorsement satisfactory to the payee, and not to the maker. The payee can not capriciously reject such indorser, but must show good and satisfactory reasons for such rejection. In other words, he must accept an indorser whom he ought to accept. The notes that were prepared under this award were indorsed by the firm of A. A. Low & Co., and counsel for plaintiff upon the argument admitted that no objection could be made to those indorsers.

The case of Becker v. Boon (61 N. Y. 317, 325), cited by the learned counsel for the plaintiff, is not an authority for the position claimed. Nothing of 0 the kind was decided in that case. The counsel quotes from the dissenting opinion, wherein reference is made to some case, not cited, and which citation may be correct and not be decisive in this case, for it may have been, if such a case ever had arisen, that the decision was obtained by one standing in the position of the defendant herein. If the defendant had made objection to the award on the ground that the arbitratofs had exceeded their authority, a serious question would have arisen, for they virtually relegated, to some extent, to the plaintiff the authority which was committed to them; but of this plaintiff has no cause to complain. But the defendant, upon the trial, offered to pay the amount in cash, and consequently no question remains upon that point. As the defendant had no discretion in respect to accepting or rejecting the indorsers, whoever they might be, such power resting with the plaintiff alone, the plaintiff cannot complain of the award. Only the party prejudiced is entitled to object to the award upon that ground (In re Bradshaw, 12 Q. B. 562 ; Davy v. Faw, 7 Cranch, 171; Galvin v. Thompson, 13 Me. 367; Lyman v. Reeves, 5 Pick. 213 ; Tomlinson v. Hammond, 8 Iowa, 40 ; Daniels v. Willis, 7 Minn. 374). Hence it follows that the award is valid and binding upon the plaintiff, the firm theretofore existing is dissolved,, and plaintiff’s only right of action against the defendant is for the amount awarded to him by the arbitrators.

James Armstrong, for appellant.

Dunning, Edsall, Hart & Fowler, for respondent.

The complaint in this action must be dismissed, with costs.

Per Curiam.

The judgment appealed from should be affirmed, on the opinion delivered below, with costs.


author: By the Court.—Sedgwick, Ch. J.

text:
    REUBEN T. POLLARD and STEPHEN PETTUS, v. WILLIAM BRADY.
    I. Fictitious names. Laws 1833, chap. 281; Laws 1854, chap. 400.
    1. Transacting business under.—Statute against.
    (a) What dobs hot ball within purview op.
    A note made in a transaction isolated and separate from the general business carried on under a name the use of which is prohibited by a statute, does not fall within the purview of the act; and the fact that the transaction was carried on in such name, and the payee of the note was designated by such name, constitutes no defense.

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

      Decided April 4, 1881.
    Exceptions ordered to be heard in first instance at general term, complaint having been dismissed
    The complaint averred that “ at all the times, hereinafter mentioned they were and still are copartners, doing business in the city of New York, under the firm name or style of Pollard, Pettus &Co.;” that defendant duly made, executed for value received, delivered to the plaintiffs, his certain promissory note, as follows:
    “New York, January 3, 1877.
    “Two years after date I promise to pay to the order of Pollard, Pettus & Co. $5000, &c. &c.”
    After other allegations it demanded judgment for tbhe amount of the note.
    Among other defenses, the answer alleged that at the time, &c., all the alleged transactions, including the delivery to and receipt by the plaintiffs, of the said note, were unlawfully made by the plaintiffs, in carrying on and transacting business, under the firm name and designation of Pollard, Pettus & Co., and that the designation “ & Co.” did not then and there represent an actual partner.
    The only question upon the trial was whether the transaction in which the note was taken was not in violation of section 42, 3 M. S. (5 ed.) 978: “ No person shall hereafter transact business in the name of a partner not interested in his firm, and where the designation ‘and company ’ or ‘& Co.’ is used, it shall represent an actual partner or partners.”
    The testimony showed the following facts. In 1874, the plaintiff and Thomas F. Pettus, composed a firm, which was styled Pollard, Pettus & Co. In that year, the defendant agreed in writing to sell to Pollard, Pettus & Co., certain piece of real estate in Texas, which the contract stated was now deeded to Messrs. Woodward, Stillman & Co. as collateral security, and certain other pieces of real estate.
    Thomas F. Pettus died July 6, 1875. The surviving members of the firm, on August 4, 1875, had a transaction, the nature of which is indicated by the following receipt signed by the defendant:
    “ New York, August 4, 1875.
    ‘ ‘ Received of Messrs. Pollard, Pettus & Co., 400 shares of Houston City R. R. stock, out of the proceeds of a loan on which I promise to liquidate a debt due Woodward & Stillman and make a clear title to the said Pollard, Pettus & Co., to a certain 80 blocks of land, &c., as per my title bond, executed to them in 1874.”
    January 3, 1877, the defendant gave the note in question, and the plaintiffs signed, by the name Pollard, Pettus & Co., an agreement to the following effect, that whereas Pollard, Pettus & Co. now hold two contracts,, being those above referred to, and whereas said Brady has not yet completed said contracts and has executed, the said promissory note, it is agreed that said Pollard, Pettus & Co., at any time before final settlement, shall have the right to elect to receive either payment of the note or a conveyance of the lands, it being understood that according to the election of the plaintiffs, the defendant should be released from the alternative obligation.
    One of the plaintiffs testified, that at the time of receiving the note, the plaintiffs were doing a commission business in the city of New York under the firm name of Pollard, Pettus & Co., and continued the business under that name to the time of testifying.
    He also testified that part of the business of the present firm consisted in liquidating the affairs of the former firm of Pollard, Pettus & Co. of which Mr. Thomas-F. Pettus was a member, and that the present firm took. the note in the course of the liquidation of the affairs, of the former firm.
    On motion, the complaint was dismissed on the ground that the note was taken by the plaintiffs in the name of Pollard, Pettus & Co. in violation of the statute.
    Exceptions were ordered to be heard in first instance, at general term.

      Richard H. Barker, attorney, and Frederick H. Man, of counsel, for plaintiffs.

      Harry Wilbur, attorney, and of counsel, for defendant.
   By the Court.—Sedgwick, Ch. J.

I am of opinion, that so far as the transaction went in fact, in the mere taking of the note, the case of Wood v. Erie Railway Company (72 N. Y. 196), requires us to hold, that it was not in violation of the statute.

In the case cited, the plaintiffs were doing business-under a firm name, that was in violation of the^tatute. In that firm name he bought a carriage. It was delivered by him to the defendant at Buffalo to be transported to New York and to be delivered thereto plaintiff. It was marked by the firm name. The action was-for injuries to the carriage, done in the course of transportation. The court of appeals held that “ the shipping and receiving of carriages was not the business of the plaintiff, but merely incidental to the business of manufacturing and dealing in this species of property.” In this case it was a separate and distinct matter^ outside of the plaintiffs’ ordinary business, and in no wise a violation of the statute. The court also considered that to invalidate a particular transaction, it must be within the mischief which it was the object of the statute to remedy ; and that that mischief was the effect of representing, by a fifm name, that the firm had, as. partners, some one, whose name was not disclosed by the firm name, and the tendency therefrom to induce credit upon the representation.

In the present case, the note was isolated and separated from the business of buying and selling goods on commission, which was the general business of the plaintiffs. It had no connection with that business, directly or indirectly. It was "taken in the process of adjusting the rights of the parties, in a contract for the convey and of real estate. The scope of the transaction was of a nature that would not bring the defendant within any of the consequences that the statute was pointed against.

If the transaction was not illegal, the remaining question, whether the plaintiffs could show that they were the persons designated by the name of the payee in the note, to wit, Pollard, Pettus & Co., should be answered in favor of the plaintiff.

Exceptions sustained, order reversed and new, trial ordered, with costs of the motion to the plaintiff to abide the event.

Truax, J., concurred.


author: Freedman, J.

text:
    MARY E. HILL v. HUBERT O. THOMPSON.

      New York city—right of commissioner of public works to put water-meters into buildings.—Equity—when discretion of public officer will not be interfered with.—Police laws—when not unconstitutional.

    Irrespective of the question of actual consumption of Croton water for business purposes, the commissioner of public works, in the exercise of a sound discretion, may, under § 73 of the charter of 1873, place a water-meter in any building other than a private dwelling, and which falls within one of the classes of buildings enumerated in the statute, and the occupants of which have it within their power to use more water than the regular, or building rate covers. .Under the provisions of said statute, the water-taker must bear the expense of putting in the meter, which, with the charge for extra consumption, if it shall appear that there is such extra consumption, is made a lien upon the land.
    It is only when its interference is necessary to prevent abuse, injustice or oppression, the violation of a trust or the consummation of a fraud, that a court of equity has power to review the exercise of discretionary power vested, by law, in a public officer.
    The above statute is not unconstitutional, though the effect of it may be to compel the water-taker to bear the expense of putting in the meter, when he is using no more water than is covered by the ordinary rate, which in any event he must pay.
    Laws and ordinances relating to the comfort, health, convenience, good order and general welfare of the inhabitants, known as police laws, though they may disturb the enjoyment of individual rights, and make no provision for compensation, are not on that ground unconstitutional.

      Decided November 22, 1882.
    This action is brought to obtain an injunction restraining the defendant-, as Commissioner of Public Works of the City of New York, from placing a water-meter upon the premises of the plaintiff, known as Nos. 26, 28, and 30 Frankfort street, in said city.
    The facts are stated in the opinion.

      Fiero, Chittenden & Fiero, for plaintiff.

      William C. Whitney, corporation counsel, for defendant.
   Freedman, J.

By chapter 225 of the laws of 1842, the mayor, etc., were authorized to organize a department with full powers for the management of the Croton water works and distribution of the Croton water.

Pursuant to the authority thus conferred, the common council, on September 7, 1842, passed an ordinance to regulate the water works of the city of New York (Rev. Ord. 1845, 175).

By section 7, title 2 of those ordinances (page 177), the Croton Aqueduct Board was directed to fix, from time to time, the rate of rents to be paid by the inhabitants for the use of water, and to prescribe rules and regulations relative to the collection of such rates, such rates and rules to be subject to the approval of the joint Aqueduct Committee of the Common Council.

Chapter 383 of the laws of 1849 gave legislative approval to the plan embodied in the ordinance of 1842, and created a Croton Aqueduct Department in the city of New York. Section 18 of the act (page 544), authorized the establishment of a scale of rents, to be called “regular rents,” apportioned to different classes of buildings in reference to their dimensions, values, exposure to fire, ordinary uses for dwellings, stores, shops, private stables and other common purposes, number of families or occupants, or consumption of water, as near as might be practicable, and authorized the local authorities to modify, alter and amend and increase such scale from time to time, and to extend it to other descriptions of buildings and establishments. It was provided that such “regular rents” should become a charge and lien upon such houses and lots respectively. Section 19 of the act provided that hotels, factories, stables and livery stables, and other buildings consuming extra quantities of water might, in addition to the “regular rents,” be charged with additional rents, to be called “ extra rents.” By section 37 (which was directed to be printed on the back of each permit) it was provided that the rules and restrictions for the use of the water printed on each permit should be notice to the water-takers, and should authorize the exaction and recovery of any penalties which the Croton Aqueduct Board might impose, in addition to cutting off the use of the water for violation of the rules.

Under this authority, the Common Council, on May 1, 1850, passed “An ordinance establishing the scale of water rents of the Croton Aqueduct Department.” With some amendments, this ordinance, which may be found in the volume known as the Revised Ordinances of 1859, page 143 (see also Rev. Ord. of 1866, 160), continued to be the scale of water rents in ISew York in .actual operation up to the year 1870. This ordinance, w,ith great detail, prescribes various rates of charge for the several stores and kinds of buildings, and for the different classes of business that are specifically enumerated ; and it also provides that a charge of not less than one cent for one hundred gallons shall be made to all manufacturing and other business requiring a large supply of water. All matters not specified in the ordinance are by it reserved for special contract with the Croton Aqueduct Board.

Under this ordinance, and the authority conferred thereby upon the Croton Aqueduct Board to make special charges for the use of water, in cases where no rate was fixed, the use of a water-meter was frequently resorted to, to determine the actual consumption of water, and to adjust the charge to be made or rent to be demanded therefor. In such cases the meter belonged to the city, and when the object of its use was accomplished, it was returned to the city. The exercise of this right was recognized and approved by the courts, and the charge was held to be a rent and not a tax (Treadwell v. Van Schaick, 30 Barb. 444 ; Trustees of Cannon Street Baptist Church v. Mayor, &c. of N. Y., 1 Hoffm. Laws 286).

The main difference between the so-called regular rent depending upon the size, character and general use of a building, and the extra rent chargeable in the discretion of the Croton Aqueduct Board for extra consumption, was that the first constituted»a lien upon the land, while the payment of the latter could only be enforced by cutting off the supply of water.

By chapter 137 of the Laws of 1870, entitled, “An act to reorganize the local government of the city of New York,” a department of public works was created, to which were transferred, among other things, all the powers and duties of the Croton Aqueduct Board. The head or chief officer of this department was directed to be known by the title of “ Commissioner of Public Works.”

By chapter 383 of the Laws of 1870, § 13, the commissioner of public works was authorized, in his discretion, to cause water-meters of approved pattern and suitable for the purpose, to be designated by said commissioner, to be placed in all stores, shops, hotels, manufactories, public edifices, at wharves, ferry houses, stables, and in all the places in which water is furnished for business consumption by the department of public works, and all expenses for meters, their connections and setting, and water rates, were made a lien upon the premises supplied.

By section 5 of chapter 574 of the Laws of 1871, it was provided: “ That the said commissioner of public works shall, from time to time, establish scales of rents for the supply of Croton water, which rents shall be collected in the manner now provided by law.” This provision was expressly saved from repeal by section 119 of the charter of. 1873 (chapter 335).

The provisions of the act of 1870 were, with some modifications, incorporated into the charter of 1873, section 73 of which provides as follows :

“ . . . The commissioner of public works is hereby authorized, in his discretion, to cause water-meters, the pattern and price of which shall be approved by the mayor, comptroller and chief engineer of the Croton Aqueduct, to be placed in all stores, workshops, hotels, manufactories, public edifices, at wharves, ferry houses, stables, and in all the places in which water is furnished for business consumption by the department of public works, except private dwellings, so that all water so furnished therein or thereat may be measured and known by the said department,, and for the purpose of ascertaining the ratable portion which consumers of water should pay for the water therein or thereat received and used. Thereafter, as shall be determined by the commissioner of public works, the said department shall make -out all bills and charges for water furnished by them to each and every consumer as aforesaid, to whose consumption a meter as aforesaid is affixed, in ratable proportion to the water consumed, as ascertained by the meter on his or her premises or places occupied or used as aforesaid. All expenses of meters, their connections and setting, water rates and other lawful charges for the supply of Croton water, shall be a lien upon the premises where such water is supplied as now provided by law. . . .”

The provisions of 383 of Laws of 1870, and of chapter 335 of the Laws of 1873, contain the only specific expression of the legislative will upon the subject of water-meters, but they are not necessarily inconsistent with the existence of the power to place meters exercised by the Croton Aqueduct Board prior to 1870, except so far as private dwellings are concerned. The object and effect of the statute of 1873 was not, therefore, to confer a new right to attach, water-meters to the supply pipes of the buildings w’here water was consumed, for that right had been previously exercised for many years with the approval of the courts. Its purpose is, as was the purpose of the statute of 1870, to compel the water-taker to bear the expense of the introduction of the meter, and to make such expense and the charge for extra consumption a lien upon the land. The question as to whether or not the water-takers are usin >• the water in such quantities that the ordinary-rate insufflciently remunerates the city, is left for the decision of the commissioner of public works in the exercise of his sound discretion, the only limits upon the exercise of that discretion being that the pattern and price of the meters to be used should be approved by the mayor, comptroller and chief engineer of the Croton aqueduct, and that no meter should be placed in a private dwelling.

The language of the statute of 1873 is plainly applicable to the premises of the plaintiff. The buildings thereon are four stories in height and are used as stores, workshops and manufactories. Among the tenants are lithographers, a wood-cut printer, a printer of newspaper envelopes, a composing printer, a book públisher, a printing-ink storekeeper, a rubber and leather storekeeper, &c.

It is contended, however, that nevertheless the statute does not apply, because all the water used by these tenants for business purposes comes from a tank on the fourth floor which is supplied with well water by an engine on adjacent premises ; because the Croton water used is used only for the purposes of drinking and washing hands, and because the value of the whole quantity of Croton water thus actually consumed does not, according to the established rates, come up to the regular rate imposed upon the buildings as such and payable in any event. In other words, the claim is that the legislature intended to give to the commissioner the power to place meters in stores, workshops, &c., only when the water supplied to them is furnished for business consumption. Such a meaning cannot be given to the language of the statute, if regard is had to the ordinary rules of grammatical construction. fsTor do the rules of statutory construction permit it. The sentence in question, which is plain of comprehension as it stands, would have to be subjected to alterations and additions before it could be made to convey the meaning which the plaintiff desires it should have. Such additions, for instance, would be the words “ that is to say ” to be inserted after the word “stables,” or the word “other” to be inserted before “places.” Besides, the adoption of the meaning contended for by the plaintiff, would lead to absurdities in the practical enforcement of the statute.

Irrespective, therefore, of the question of actual consumption of Croton water for business purposes, the commissioner of public works in the exercise of a sound discretion may place a meter in any building other than a private dwelling, which falls within one of the classes of buildings enumerated in the statute, and the occupants of which have it within their power to use more water than the regular or building rate covers. Within these limits no court has a right to interfere with or control the exercise of his discretionary power by substituting its own judgment for his. It is only when its interference is necessary to prevent abuse, injustice, or oppression, the violation of a trust or the consummation of a fraud, that a court of equity has power to review the exercise of discretionary power vested by law in a public officer (Davis v. Mayor, &c. of N. Y., 1 Duer, 498 ; affirmed as People v. Sturtevant, 9 N. Y. 263).

The case at bar presents no such exceptional fea-. ture. The fact that the tenants are restricted by the plaintiff in their use of the Croton water is not enough. This is no guaranty to the city that they will always respect the restriction. The power and the temptation to use the Croton water in the course of their business exist, and the commissioner of public works is not to be expected to provide and maintain an efficient system of espionage or regular inspection at short intervals to prevent them from making the most of the opportunity. It is the office of the water-meter to prevent such a result.

True, no deduction will be made from the regular rate, if the quantity of water consumed, as shown by the meter, should amount, at meter rates, to a smaller rate. But if it should amount to a larger sum, the regular rate' will be deducted. At any rate, if the plaintiff will be as vigilant hereafter as she is at present to enforce the restriction imposed upon her tenants, she will suffer no loss from the introduction of the.meter.

Nor is there anything in the danger apprehended from a bursting of the meter. The cost of properly protecting the meter against frost, is very slight, and if properly protected it will no more burst in cold weather than the lead pipe through which the water flows into the building. In the two instances given by the plumbers called by the plaintiff where meters did burst, it appeared that no precaution had been taken to prevent such an accident.

Other grounds have been urged, and especially the change wrought in the drainage facilities of the premises by the erection of the Brooklyn bridge. I have duly considered them all, but failed to find in them any reason which would justify an interference with the discretion lodged by law in the commissioner.

The constitutional objections urged against the statute conferring this discretionary power upon the commissioner are clearly untenable. The statute is in the nature of a police regulation. Its object is not only to save money or secure revenue to the city, but also to enhance the comfort and convenience of its citizens in" general and to afford better means of protection for their property. Laws and ordinances relating to the comfort, health, convenience, good order and general welfare of the inhabitants, are comprehensively styled police laws, and it is well settled that laws and regulations of this character, though they may disturb the enjoyment of individual rights, are not unconstitutional, though no provision is made for compensation for such disturbances.

The defendants are entitled to judgment dismissing the complaint on the merits, with costs.