author: Barrett, J. :

text:
    ALFRED A. BLAIR and Others, Respondents, v. JAMES A. FLACK, as Sheriff of the City and County of New York, Appellant.

      Sheriffs — false return — substitution of a cheek for goods seized upon an attachment— question of title in another than the debtor.

    In an action against a sheriff to recover the damages resulting from a false return it appeared that, in January, the plaintiffs obtained a warrant of attachment against a corporation, under which the sheriff levied upon property which at that time was, and which after the levy remained, in the possession of a warehouseman; that, in March, one Adams claimed this property, as the owner thereof, and gave a check to the -sheriff, which covered the amount of the plaintiffs' claim. The evidence was conflicting as to whether the check was given as security for any judgment which the plaintiffs might recover, or whether it was only to stand in the place of the goods attached. The sheriff released the goods, treated the check as representing the goods, and called a sheriff’s jury, which found in favor of Adams’ ownership of the property. The sheriff thereupon gave Adams the check after a refusal, as the sheriff alleged, on the part of the plaintiffs, to give him a bond of indemnity.
    The plaintiffs subsequently recovered judgment in their action, and issued execution thereon, which was returned unsatisfied.

      Held, that the court properly refused to dismiss the complaint in the action brought to recover for a false return.
    That the plaintiffs had- a right to go to the jury upon their allegation that the check was given to the sheriff by Adams as security for any judgment which they might recover.
    That, in such case, the sheriff’s liability would rest upon a duty, which he had assumed, to apply the money in payment of their judgment if obtained.
    That there was nothing objectionable in the substitution of the money for the goods.
    That if, however, the jury believed the testimony, given on behalf of the sheriff, that the money was merely a substitute for the goods, the question of title was material, and that it was error for the court to charge that if the jury found witli the sheriff upon, that question, their verdict must be for the plaintiffs, unless they found that the sheriff, before payment to Adams, had demanded of the plaintiffs a bond of indemnity.
    That the sheriff, while acting in good faith, had a right to return the execution unsatisfied; but that this put upon him the burden of showing, as he had a right to show, that the goods belonged to Adams, and not to the defendant in the execution.
    Appeal by the defendant James Flack, as late sheriff of the city and county of New York, from a judgment, entered in the office of the clerk of the city and county of New York on the 11th day of June, 1891, upon a verdict for the plaintiffs for $1,110.59, after a trial at the New York Circuit before the court and a jury.

      David Tim, for the appellant.

      II. T. Ketchmi, for the respondents.
   Barrett, J. :

This is an action against the late Sheriff Flack, in substance, for a false return. The facts are peculiar, and must be somewhat fully stated to comprehend the question mainly presented upon this appeal.

On the 23d of January, 1889, the plaintiffs obtained a warrant of attachment for $1,156.15 against the property of a foreign corporation known as the Illustrated News Company. This warrant was at once delivered to the then sheriff (Flack), who, upon the same day, through one of his deputies, served a copy of the warrant, with the usual notice, upon a warehouseman named Hobby. Mr. Hobby then had, in his warehouse on storage, papers which were apparently the property of the defendants in the attachment. He says he told the deputy that “ the goods were there,” and the officer could make levy upon them,” but that it was not his (Hobby’s) “business to point them out to him.” There is sufficient evidence in the case to warrant a finding that the property in question was actually levied upon, and remained in the warehouseman’s physical possession, subject to such levy, until it was taken away by the sheriff at a later date. In the early part of the following March, Mr. Horace J. Adams, a Boston gentleman, made a claim to the property which had been thus attached, and he and an assistant of the sheriff’s deputy, named Costa, called upon Mr. Fletcher, the plaintiff’s attorney in the attachment suit, with a view of securing the immediate delivery of the goods to him, Adams. Adams insisted that he was the owner of the goods, and that they should be at once turned over to him. He declared that he had sold the property to Jordan, Marsh & Co., of Boston, and that he would lose money if he failed to ship it to .them that afternoon. Mr. Fletcher told Mr. Adams that the property had been attached, and that he could only have it by paying the plaintiffs’ claim. At first Adams said he . would do this (I am speaking now of Fletcher’s testimony), but finally requested Fletcher to accept a good check of Jordan, Marsh & Co.’s for $1,400, which was enough to cover the plaintiffs’ entire claim, interest and costs. At this point there is a crucial conflict of testimony, Fletcher stating that the check was to be given as security for any judgment which the plaintiffs might recover, while Adams and Costa declare that the check was merely to stand in place of the goods attached. At all events, it was agreed that the sheriff should take the check, release the levy and deliver the property to Adams. This was done. The plaintiffs in the attachment suit then proceeded with their action, which ripened into judgment on the 18th of April, 1889. Execution was issued upon the same day requiring the sheriff to satisfy the judgment out of the property attached ; but this execution was returned unsatisfied, and it seems to be conceded that the proceeds of thb check had, in the meantime, been paid over by the sheriff to Adams. What occurred after the delivery of the check to the sheriff, and the property to Adams, was this : The sheriff treated the check as a mere substitute for the property and called a sheriff’s jury to pass upon Adams’ claim. The jury found in favor of Adams. At this point we have another conflict of testimony. The sheriff’s assistant, Costa, says that he.then demanded a bond of indemnity from Fletcher, and this is denied by the latter. The sheriff, treating the check as a substitute for the property, seems to have paid the proceeds over to Adams because of the verdict of the sheriff’s jury and the alleged refusal to give a bond of indemnity. The defendant also offered to prove that' such proceeds were so paid over by force of a judgment and execution obtained against him by Adams in an independent action.

Upon this state of facts the learned judge properly refused to dismiss the complaint or to direct a verdict for the defendant. The plaintiffs had a right to go to the jury upon the testimony of Mr. Fletcher, and if the jury found, upon that testimony, that the check for $1,400 was given to the sheriff as security for any judgment which the plaintiffs might recover in the attachment suit, they were entitled to a verdict. In that case the plaintiffs were not bound to establish title in the Illustrated News Company to the property attached. The sheriff’s liability would then rest upon the duty which he specifically assumed, to apply the money in his hands to the payment of the plaintiffs’ judgment. If the agreement testified to by Mr. Fletcher was actually made and the cheek was given thereunder, the plaintiffs were no more bound to prove title in the news company than if the action had been upon an undertaking given to discharge the attachment. The defendant also makes the point that the deputy sheriff was alone liable to the plaintiffs. A.nd he invokes the principle that where a plaintiff instructs a deputy of the sheriff to depart from his duty in executing process, the deputy ceases to be the servant of the sheriff ^¡,nd becomes the agent of the party. But that principle is inapplicable. The deputy was not instructed to, nor did he, depart from his duty. It was entirely competent for the plaintiffs and the claimant to make the agreement which Fletcher says they did, and under that agreement to substitute money for the property attached as security for any judgment which might be recovered in the action. It was by no means a departure from his duty for the sheriff to receive the money so substituted under the special agreement testified to. The rule invoked is inapplicable, too, because of the fact that the sheriff ratified his deputy’s acts in the premises by acceptance of the check and the receipt of its proceeds. With the money in his own hands, he cannot be heard to justify its misapplication on the plea that his deputy should not have entered into the arrangement.

It follows that the learned judge was right in submitting this question to the jury, and if the case stood there, the judgment should be affirmed. But we think the learned judge erred in the view which he took of the case, if the facts, with regal’d to the substitution of the check, were as testified to by the claimant Adams and the deputy’s assistant, Costa. If the jury credited their testimony, the check was not given as security for the judgment, but was a substitute for the property attached and was held by the sheriff, just as the property was held subject to the respective claims of the plaintiffs and of the claimant. In that aspect of the case the question of title was vital, for even if the sheriff turned over the attached property, or the proceeds of the check which represented it, to the claimant without giving the plaintiffs an opportunity to furnish a bond of indemnity, still, he could support his return nulla Iona by proving that the property was owned by the claimant Adams, and not by the defendants in the attachment. As was said in Lummis v. Kasson (43 Barb., 373):

Even after a levy and an inquisition, finding the goods to be the property of the defendant, I apprehend the sheriff is at liberty to return nulla bona, provided he acts in good faith; but in so doing, he assumes the responsibility of proving property out of the defendant in the execution, and thus supporting his return. And I think it reasonable -to hold that he may make the same return after indemnity, but in so doing he assumes the like responsibility.”

The doctrine of this case was approved in Third National Bank of Buffalo v. Elliot (3 N. Y. State Rep., 394, 395), and it is in harmony with the principles enunciated in Watson v. Brennan (66 N. Y., 621) and Mumper v. Rushmore (79 id., 19).

The learned judge, however, withdrew this question of ownership entirely from the jury, and on the second branch of the inquiry, that is, in case they should find that the substitution of the check for the property was as testified to by Adams and Costa, directed them to find a verdict for the plaintiffs if the proceeds of the check were paid over to Adams without asking for a bond of indemnity.

The penalty for what the sheriff thus did was not necessarily the payment of the judgment. In so paying over the money to Adams, without giving the plaintiffs an opportunity to indemnify, he assumed the responsibility of justifying Adams? claim. But that was all. The question, therefore, whether the Illustrated News Company owned the property attached should have been submitted to the jury. There was ample evidence to go to them upon the sheriff’s contention that the property belonged exclusively to Adams. And it was error, therefore, to instruct the jury, in this aspect of the case, that the plaintiffs were entitled to recover, if, after the inquisition, the sheriff failed to go to Eletcher and to say to him — I quote from the learned judge’s charge — The sheriff’s jury have awarded this $1,400 to Mr. Adams, and if you do not give me a bond of indemnity, I will pay it over to Mr. Adams.” This presentation was repeated at the close of the ehaige, when the learned judge said that if the jury should find against the plaintiffs on the first question, namely, whether the check was given to secure the judgment, still, if “ Costa never asked him (Fletcher) for a bond of indemnity at all, then the plaintiffs in the second instance would be entitled to your verdict.” That the learned judge meant to withdraw the question of ownership from the jury is further emphasized by his refusal to charge the following proposition:

“If the jury find from the evidence that Horace J. Adams claimed the property in question, and thereupon the sheriff demanded a bond of indemnity from the plaintiffs herein, and they declined or refused to give the same, then the sheriff was not compelled to levy upon or seize said goods and take them into his possession, and if the jwry find from the evidence that the property in question at the time of the attachment belonged to said Horace J. Adams, their verdict must be for the defenda/ntP To this refusal the defendant duly excepted. This was error which necessitates a new trial.

It follows that the judgment should be reversed, and a new tidal ordered, with costs to appellant to abide the event.

Yan Brunt, P. J., and Daniels, J., concurred.

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


source: Caselaw Access Project

author: Daniels, J.: Ingraham, J.

license: Public Domain

text:
    WILLIAM TEBO, Respondent, v. HENRY GREGORY JORDAN and Others, Appellants.

      Shipping — the duty of a mariner in a perilous position to anchor or take soundings is not a question for the jury— a vessel must ie paid for as long as it is used, even though unseaworthy.

    A firm entered into a charter party with, one Tebo, the owner of a steamer, by which the latter agreed, for a stated period, to tow the coal barges of the firm in coast-wise traffic, the firm to be at liberty to place on the steamer a representative whenever they saw fit. It was agreed that for dangers of the sea the steamer was not to be responsible.
    At about six o’clock in the evening of December first the tow, with a representative of the firm upon the steamer, was off the Nantucket shoals, near the Handkerchief Light-vessel. The course was from thence to Shovelful Light-vessel, a distance of three miles.
    The night was dark, and a thick haze was on and near the water. The master could not see the Shovelful Light when he left the Handkerchief Light, but could see the Monomoy Point Light, distant a mile from it. The channel was narrow and full of shoals.
    The captain did not anchor but proceeded on his course, and when about a mile » from the Handkerchief Light, miscalculating the force of the tide, for which he allowed too much, went too far to the westward and ran on a shoal.
    The firm refused to employ the steamer further, because of the accident and the damages resulting to them therefrom.
    In an action brought against them by Tebo for the use of the steamer for the unexpired term:

      Held, that it was error for the court to refuse to charge that, if the weather was such that the master and pilot were unable to see the lights and determine their position, it was the duty of those in charge of the tug to anchor until they could verify their position and proceed with safety.
    That, in any event, it was error for the court to leave it to the jury to say whether such was their duty.
    That the effect of the submission of this 'question to the jury was to leave it to them to establish the legal rule which should govern mariners in such a situation. That, upon the same principle, it was error to submit to the jury the question whether, if the master and pilot were in doubt about their position and the proper direction to pursue, it was their duty to take soundings.
    That the firm were bound to pay' for the steamer as long as they used her, even though she was unseaworthy. (Ingraham, J., dissenting.)
    Appeal by the defendants, Henry Gregory Jordan, Morton Stimpson Crehore and Charles Daniel Jordan, from an order, entered in the office of the clerk of the city and county of New York on the 14th day of February, 1891, denying their motion for a new trial; and also from a judgment of the Supreme Court, entered in said clerk’s office on the 30th day of January, 1891, upon a verdict in favor of the plaintiff fqr $2,970.69, after a trial at the New York Circuit before the court and a jury.
    The action was brought to recover the amount alleged to be due .for services of the plaintiff’s tug-boat under a charter party. A defense was interposed that the tug-boat was unseaworthy and without any qualified pilot, and that as a result two coal barges of the defendant were stranded and damaged through the negligence of the officers of the tug-boat.

      J. A. Shoudy, for the appellants.

      W. W. Goodrich, for the respondent.
   Daniels, J.:

Tbe defendants entered into a charter party with the plaintiff, who was the owner of the steamer B. T. Haviland, to tow their coal barges from New York, Philadelphia or Newport News to Boston, or some other port not east of Portland, in Maine. This charter was made on the 23d of October, 1888, and was to extend from the 26th of the month to the 1st of May, 1889 The compensation to be paid for this use of the steamer was the sum of $2,200 per month, and the privilege was reserved of canceling the charter upon one month’s notice. It was further' stipulated that the defendants were at liberty to place a representative on the steamer, at any time they saw fit, who was to be free of cost to the tug excepting the food which was to be supplied. And for damages which might be caused by the dangers of the sea the steamer was not to be held responsible. Under this charter the steamer was engaged in towing the vessels or barges of the defendants until on or about the 8th of December, 1888, when a notice was served declaring that the defendants would not employ the steamer after that date on account of the stranding of December 2, 1888, and other injuries received by the tows while under charge of the steamer. The plaintiff declined to acquiesce in this termination of the charter, and after the expiration of one month from the service of the notice brought this action to recover the price stipulated for in the charter, after deducting what the steamer had otherwise earned during that month. And, by way of defense to the action, it was alleged that, through the carelessness or mismanagement of the steamer, two of the defendants’ vessels, which it at the time had in charge, were run aground and stranded, from which injury was received by the vessels, and a large amount of money expended in repairing those injuries. And whether this grounding of the vessels was attributable to the unskillfulness or negligence of the persons in charge of the steamer at the time, was the subject mainly contested upon the trial of the action.

Under such a charter, as this was, the rule is quite well settled that the owner becomes obligated to use care and skill in avoiding injury to the vessels constituting the tow. This rule was clearly stated in Alexander v. Greene (7 Hill, 533), and has been sustained in the decisions of Wells v. Steam, etc., Company (4 Seld., 375); Taft v. Carter (59 Barb., 67); The Margaret (94 U. S., 494, 497) and Steamer Webb (14 Wall., 406). It, therefore, became a matter of fact, to be determined from the evidence whicli was taken, whether' the vessels were grounded by reason of the inattention, carelessness or unskillfulness of the persons in charge of the steamer at the time, or from what is denominated in the charter the dangers of the sea. It appeared by the evidence that the vessels and the steamer ran aground near what is called Monomoy island. They were then on their way from Newport News to Boston, and the vessels were laden with coal, one drawing about nineteen feet and the other twenty-one feet of water; This occurrence took place on Sunday night of the first of December, and about six o’clock in the evening. About that hour the steamer with the vessels in tow reached what is called and known as the Handkerchief Light-vessel. From there her course lay in a direct line to what is called the Shovelful Light-vessel, and proceeding from that point to Pollock Rip Light-vessel. The distance between Handkerchief Light to Shovelful Light was from three to five or six miles. And when about one-third of this distance had been passed the steamer and the vessels ran aground. This was caused by the failure on the part of the steamer to follow the course laid down between these two lights, and passing so far to the left of the course as to go beyond the channel and run into shoal water. And it was by the stranding which there took place that it is stated the injuries complained of were sustained by the vessels.

On this trip a representative of the defendants was on board the steamer, and he, together with the persons in charge of the vessels, testified that the night was clear and dark, and when the steamer, with her tow, left Handkerchief Light, Shovelful Light was in sight. And if they were correct in their testimony, then it is entirely clear that there was no obstacle in the way to prevent the steamer from passing directly up the "channel to Shovelful Light. But that the night was clear was denied by the persons in charge of the management of the steamer. They testified that the night was hazy and foggy, and that Shovelful Light was not visible prior to the time when the stranding took place, but that the light most prominently in view was the Monomoy Point light, situated upon Monomoy island. And that at this time the wind was blowing from a westerly direction, and the tide, which was rising, flowed in the' same manner ; and that there was reason to apprehend, from the narrowness of the channel, that the steamer and vessels might be run aground on the easterly side of the channel, and for that reason the course bearing to the west was taken. But it is conceded, in the evidence of the master of the steamer, that the force of the tide was misapprehended or miscalculated, and by that circumstance the steamer went farther to the westward than it was intended she should go. The intention is stated by him to have been to follow the course between Handkerchief Light and Shovelful Light, and that the steamer was put to port, as far as that was done, to follow what was supposed to> be the line between these lights. And as there was a conflict between the evidence of the witnesses who were sworn for the defendants and this testimony given on behalf of the plaintiff, and the jury rendered a verdict in his favor, the effect of the evidence given on behalf of the plaintiff must be followed as the controlling proof taken upon the trial. This evidence was mainly obtained from the witness John Gully, who was the master of the steamer. He testified, as near as he could remember, he had made about thirty trips over the water upon which he wa,s towing at the time when this accident occurred; that he had charts of the route on board at the time and was pretty familiar with them, and that he knew Shovelful Light was a red light, which was a fact agreed to by the witnesses whose attention was directed to the appearance of that light. He further testified that, as he approached Shovelful on this voyage the wind was blowing on the port hand of the vessel, setting it over towards the Stone House shoals, and the tide was running in the same direction as the wind. His statement was that he could not see the Shovelful Light; that there was a haze low on the water. He could see all the other lights, which were higher and white lights, but Shovelful was the lowest around in that vicinity, which, however, according to the other evidence, was very nearly of the same height as the light on the Monomoy Point. His testimony further was that he could not see Shovelful Light, which had been put there for a guide; and if he could have seen Shovelful at the time he left Handkerchief, he should have left it on the starboard side and kept it on the starboard bow until he got near to it, and then left it on the port side to pass up to the Pollock Rip Light-ship. His cross-examination was still more explicit as to the situation. He there stated that they shaped the course for the Shovelful Light-ship, which was about three miles distant, and that the Shovelful and Monomoy Lights were a mile or three-quarters of a mile apart. He also added: “The Shovelful Light-ship is one single red light. I didn’t see it when we came around the Handkerchief Light-ship' first. I saw it after we got off the shoal. Provided there was a perfectly clear horizon, it should be plainly visible from Handkerchief Light-ship. It was a dark, clear night, but I said before, and I say now, there was a haze on the water, low down on the water. It was kind of a very thick, misty looking haze.” He also stated that it was very narrow there, and there are shoals each side of us going through there. It is a dangerous place, and that it was good navigation to go ahead when you cannot see and do not know where you are going in that case. After we got to Handkerchief Light-ship to go and anchor her I would stand about as good a chance of going ashore as I would going on. It was full of shoals all around. It is narrow, and it is policy to keep on. It was in a dense fog. He stated that it was an accident to have run on this shoal, and then said: “ It is liable to occur to any mariner, to the smartest navigator, because I could not see the light. It was hazy, and in running the course the vessel had got to windward of her course. I considered it very good judgment to keep to the weather side. It was a narrow channel.” These statements of the witness described the locality and the condition of the atmosphere, as well as the weather, as the jury probably accepted them in rendering their verdict. And the witness gave one further addition to them by téstifying that it was hard to know what the actual strength of the tide was, and that he made a miscalculation; that it sometimes ran stronger than at other times. His evidence was also corroborated by the pilot of the steamer. And as this evidence must be accepted as that which is to be controlling over the disposition of this appeal, it presents the question whether the master of the steamer observed reasonable or ordinary care in endeavoring to navigate her as he did after leaving the Handkerchief Light-ship. The point to be reached was the Shovelful Light, which, according to this evidence, was invisible. The night was dark, hazy and foggy, and the tide, as well as the wind, set against the port side of the steamer. And all that she then had to run upon was the course laid down by the chart from Handkerchief to Shovelful and the light on the Monomoy Point. And in this condition, with a narrow channel, full of shoals all around, as the witnesses described it, the question arises whether ordinary care was observed in endeavoring to navigate the steamer with these tows through this narrow channel in this condition at that time.

A somewhat similar state of affairs was considered in the case of The Deer by Judge Blatchtford (4 Benedict, 352), and in the case of The Gratitude (25 Fed. Rep., 160), and The Farnsworth (6 id., 307), the tenor of which decisions would require that the master should come to an anchor and await a change in the condition of the weather before undertaking to navigate the steamer and the tows through this narrow channel in the fog and haze stated by these witnesses to prevail at the time, and which prevented them from observing the Shovelful light. All the other lights were visible, including the more distant Chatham Light. This was the only one which is stated to have been concealed from their observation. And it was under this state of the evidence that the defendant’s counsel requested the court to charge the jury: “ That if the weather was such that the master and pilot were unable to see the lights and determine their position, it was the duty of those in charge of the tug to anchor until they could verify their position and proceed with safety.”

But the court declined to charge as requested, and, on the contrary, charged as'follows: “I also leave it to the jury to say if the weather was such that the master and pilot were unable to see the lights and determine their position, whether, upon all the evidence in the case, it was the duty of those in charge of the tug to anchor until they could verify their position and proceed in safety, and I decline to charge as requested.”

The defendant’s counsel duly excejited to the refusal of the court to charge as requested, and to the charge as given in that behalf as above stated.

Under the rule prescribed by the authorities, the proposition which the court was requested to submit to the jury appears to have been justifiable, in view of the facts, as they were related by the plaintiff’s witnesses. For whether the steamer should have anchored, which was not proved to be an insecure precaution, was a proposition to be decided by the court. And as the channel was narrow and beset with known shoals and dangers, and the only light that could surely indicate the safe course to be followed was concealed by the fog, reasonable care appears to have required that to be done to insure the safety of the vessels in charge of the steamer. And even if that should not be held to be the law of the case, it was clearly erroneous for the court to submit the question to the jury for them to determine whether it was the duty of the persons in charge of the tug to anchor until they could verify their position and proceed in safety. For that was submitting to the jury not the determination of any matter of fact, but what should be the legal rule applicable to and governing the conduct of persons at the time in charge of this steamer. And to the submission of this question to the jury in this form the counsel for the defendants excepted. And that exception seems to have been well presented. For it was no part of the province of the jury, in ease the position and weather were as they have been stated to be, to determine the duty of those in charge of the' tug as to coming to an anchor until they could verify their position and proceed in safety. The more practical rule appears to be that where the channel was of the description in which it has been described by the plaintiff’s witnesses, and the night prevented them from discovering the point or light to which they were to proceed, that they should not attempt to prosecute such dangerous navigation until they were able to discover the light, which was their guide, and proceed in safety.

The same disposition was made of another proposition presented to the court, where the request was made for the direction to the jury that if the master or pilot were in doubt as to their position and the proper direction to pursue, that it was their duty to take soundings for the purpose of ascertaining that position. But this, in like manner, was declined ’ by the court. And it was left to the’ jury to say whether, if that doubt did exist and the persons in charge were unable to see the Shovelful Light, it was the duty of the master or pilot to take soundings for the purpose of ascertaining their position. An exception was taken to the refusal to charge, and also to the charge which was given to the jury. And the direction, as it was given, placed the jury in the position to determine what was the duty of the master or pilot in the situation which had been described. And as that was a legal principle to be settled by the court, it certainly was improper to submit it to the determination of the jury. An exception was also taken to the direction given by the justice presiding at the trial that the defendants were bound to pay for the vessel as long as they used it, even though she was unseaworthy. But this proposition has the support of Work v. Leathers (97 U. S., 379). And even without that authority it was clearly the law of the case, for, subject to their claim for damages, the defendants did not and could not legally deny their liability to pay the charter hire of the steamer up to the time when the notice was given terminating their employment of her. But as the jury should not have been permitted to decide upon the duty of the master or pilot, either in respect to taking soundings or coming to an anchor, which should have been decided by the court, and that authority confided to them may very well have been entirely decisive of the case, the judgment and the order should be reversed and a new trial directed, with costs to the defendants to abide the result.

Yan Brunt, P. J., concurred.

Ingraham, J.

(dissenting):

The sole question presented for determination in this action was, whether the steam-tug Haviland was seaworthy, and was in charge of competent officers, and with a qualified pilot.

The court below submitted that question to the jury, stating in the charge: “ This question of seaworthiness is one that must be determined by the jury upon all the evidence in the case. If the jury should find that the vessel was seaworthy itself and. provided with a skillful master and pilot, then, as matter of law, I charge you that the defendants had no right to terminate the charter party, and 'the plaintiff would be entitled to recover. If, on the other hand, the jury should find, as matter of fact, that the vessel herself was not seaworthy, or that the grounding of Nantucket shoals and the other mishap, which it is claimed befel the vessel in her voyage, were due to the want of skill of the master or pilot, then the defendants had the right to cancel the charter party.”

The court then called the attention of the jury to the testimony, and again stated to the jury the question that they were to determine as follows:

“ If they should be of the opinion that these mishaps occurred by reason of the want of skill on the part of the master or pilot, then the defendants had the right to cancel this charter. If, on the other hand, the vessel was in proper condition, and the master and pilot had the proper skill to navigate the vessel over this course, and the going ashore and getting out of the channel were due to ordinary dangers of the sea, then the defendants had no right to cancel the charter party.” -

The jury found a verdict for the plaintiff, thus finding that the tug was seaworthy, in charge of competent officers, and that the stranding of the barges was not caused by the want of skill on the part of the master or pilot, or one of them, and I think that this finding was sustained by the evidence.

The captain of the tug was forty-seven years old, had been master of tug-boats for twenty-five years, and was well acquainted with Boston harbor. The pilot Barnard was on board and was at the wheel piloting the vessel at the time she ran on the shoal, and there is no evidence to show that either the captain or the pilot was not a competent man, skilled in his profession, except from the fact of the accident in question ; and whether or not, under the circumstances, it was their duty to have anchored instead of proceeding, was a question that called for the exercise of their judgment as master and pilot of the vessel, and their determination to proceed cannot be said to be, on the facts that appeared on the trial, such evidence of ineompeteney or unskillfulness as to require the court to take the question from the jury; and so the course of the vessel in entering Boston harbor, and the allowance to be made for the wind and tide, were questions that called for the exercise of their judgment; and it cannot be said that, because they made a mistake in allowing for the strength of the tide so as to go out of the course, it was such an error of judgment as to show, as a matter of law, that they were not competent and skillful navigators.

It was for the jury to say from all the evidence whether or not the implied warranty of seaworthiness of the tug, and that the owners would furnish competent and skillful navigators had been complied with, and the jury by their verdict have found that it had been and that the accident that happened was not due to the want of skill on the part of the master or pilot, but was due to the ordinary dangers of the sea. Upon that finding, under the terms of the charter party, plaintiffs were entitled to their verdict. The cases cited by defendants from the Admiralty Court do not apply, for there the court is to determine the facts as well as the law, while in this case the facts were for the jury.

I have examined the requests to charge submitted by- defendants and which were refused by the court, and I do not think that the defendants were entitled to have any of such requests charged. The form in which this question was submitted to the jury was certainly as favorable to the defendants as the facts warranted, and I think no error was committed that calls for a reversal of the judgment.

Judgment should, therefore, be affirmed, with costs.

Judgment and order reversed, and a new trial directed, with costs to the defendants to abide the result.


author:
Daniels, J.:
      Ingraham, J".:

text:
    DANIEL H. BENNETT and Another, Appellants, v. FRANCES S. DRAPER, Respondent, Impleaded with Others, Defendants.

      Bond — continuing security for afm'm — change in its membership — construction of words “ successors or assigns ” — the eandier pan'ts of the instrument govern.

    A bond provided, in its first clause, that the obligors (the firm of Draper & Co. and a surety) were held and firmly bound to Bennett & Co. in a sum mentioned therein, to be paid to the said Bennett & Co., “their successors or assigns ; ” its second clause recited that the firm of Draper & Co. expected from time to time to borrow money of Bennett & Co., and were desirous of giving them a continuing security for any moneys that the firm then owed, or thereafter should owe, said Bennett & Co., “their successors or assigns,” not exceeding a fixed sum, the condition of the bond was that if the obligors should pay to the obligees, “their successors or assigns,” all sums, not exceeding the amount fixed, which should at any time be due or owing from the -firm to the obligees for or on account of any loans made them by Bennett & Co., “their successors or assigns,” then the obligation was to be void. At the close there was a covenant that the bond should not be construed to require the obligees, “their successors or assigns,” to allow the indebtedness of the firm to reach the fixed sum or to require the obligees, “their successors or assigns,” to make any loan whatever to the firm.
    A partner of the firm of Bennett & Co. died and a new partner was taken in, and the new firm loaned money to the firm of Draper & Co.

      In an action brought upon the bond to recover the money thus loaned the surety demurred to the complaint.

      Held, that the demurrer was well taken.
    That it was apparent, from the clauses preceding the condition, that the intent of the bond was to secure the advances which Bennett & Co., as that partnership was constituted when the bond was delivered, should make to the firm of Draper & Co., and to bind the obligors to repay those advances either to Bennett & Co., as it then existed, or to its successors or assigns, legally entitled to demand and receive the same.
    That it was not intended to cover loans made by Bennett & Co. after that firm had taken in a new partner.
    That, in the construction of an instrument of this character, the earlier parts govern.
    Appeal by the plaintiffs, Daniel H. Bennett and Hiram O. Bennett, from an interlocutory judgment, entered in the office of the clerk of the city and county of New York on the 20th day of April, 1890, in favor of the defendant Frances S. Draper, sustaining her demurrer interposed to the complaint.

      J. Wolsey Shepard, for the appellants.

      George A. Strong, for the respondent.
   Daniels, J.:

The ground upon which the defendant’s liability was asserted in this action was a bond executed by her as a surety in January, 1881. And this is a copy of that bond:

“ Know all men by these presents: That we, John H. Draper and George T. Kellock, composing the firm of John H. Draper & Company, of the city of New York, as principals, and Frances S. Draper, of the same place, widow, as surety, are held and firmly bound unto H. O. Bennett & Company in the sum of forty thousand dollars lawful money of the United States of America, to be paid to the said H. C. Bennett & Company, their successors or assigns; for which payment, well and truly to be made, we bind ourselves, our heirs, executors and administrators, jointly and severally, firmly by these presents.

“ Sealed with our seal and dated the 15th and 28th days of January, in the year one thousand eight hundred and eiglity-one.

“Whereas, the said John H. Draper & Co., have borrowed and expect, from time to time, to borrow divers sums of money from the said II. C. Bennett & Co., and are desirous of giving to II. C. Bennett & Co. a continuing security for any moneys that the said firm of John II. Draper & Co. now owes or shall at any time owe said II. C. Bennett & Co., their successors and assigns, not exceeding the sum of twenty thousand dollars at any one time, and said H. C. Bennett & Co. having required said firm of John H. Draper & Co. to furnish such security.

“Now, the condition of this obligation is such that if the above bounden obligors, their heirs, administrators or executors, shall well and truly pay or cause to be paid to the above named obligees, their successors or assigns, all sums and every sum of money not, however, exceeding in the aggregate the sum of twenty thousand dollars, which shall at any time be due or owing from the said John H. Draper & Co. to the said obligees for or on account of any loans or advances made or any credit granted by the said obligees, their successors or assigns, to the said John H. Draper & Co., then the above obligation to be void, otherwise to remain in full force and virtue.

“ It being expressly understood that this obligation is a continuing security for the sum of $20,000, but that nothing herein contained shall be so construed as to require said obligees, their successors or assigns, to allow the indebtedness of John H. Draper & Co., to reach said sum of $20,000, or to require said obligees, their successors or assigns, to loan or advance to said firm any sum whatever, or to grant them any credit or accommodation whatever.”

When it was given the firm of H. C. Bennett & Co., named in the bond, consisted of Hiram C. and Daniel H. Bennett. Hiram C. Bennett died on the 30th of November, 1881, and another person of the same name was then brought into the firm, and that firm continued to exist down to the time of the commencement of this action. The money for the recovery of which the action was brought, amounting to the sum of $13,500, and interest thereon, was loaned and advanced by this new firm to the firm of John II. Draper & Co., the principal debtors mentioned in the bond. And whether the firm advancing, this money is entitled to recover it under the terms of the bond is the legal point presented for decision in this action.

There is no doubt as to the legal principles which each party has appealed to, that the obligation of the defendant as a surety in the bond must appear to a reasonable degree of certainty to have been created by its language or provisions. And that while the bond is to be strictly construed for the protection of the surety, it is still to have the fair import of its language ascertained for the benefit of the plaintiffs.. These principles have been enunciated repeatedly in the authorities, and may be said to be thoroughly well settled. (People v. Pennock, 60 N. Y., 421; Ward v. Stahl, 81 id., 406 ; Schmitz v. Langhaar, 88 id., 503, 506; Douglass v. Reynolds, 7 Pet., 113.) And it is equally as well settled that the contract of a surety entered into for the benefit of one or more ascertained parties cannot, without language contained in it indicating that to have been the intention, be so far extended as to become a security for the benefit of others. (Barns v. Barrow, 61 N. Y., 39.)

This bond, it is true, by the repeated use of the phrase “ successors or assigns,” does, in a measure, sustain the contention of the plaintiffs that it was not only intended to be a security to the firm of Draper & Co., as it was then constituted, but also as it might afterwards be changed in its membership. But still the controlling purpose of the instrument appears to be to secure loans of money made by the firm of H. C. Bennett & Co., as that firm was constituted at the time when the bond was executed and delivered. In the first paragraph of the bond this limitation or restriction is clearly indicated. For the other obligors, as well as this surety, declared themselves to be held and bound to the firm of H. C. Bennett & Co., and no other firm, even though engaged in business under that name when it should be constituted by different members. And it was this firm which it was intended, according to this portion of the bond, that was to advance the money for which it was given as a security for the firm of Draper & Co. And it was only for money advanced by that firm to these obligors that the obligation was declared to be to pay the firm advancing the money, or their successors or assigns. This was, so far, not an obligation to pay money advanced by the successors or assigns of the firm, but it was an obligation to pay these successors or assigns such money as should be advanced by the firm of H. O. Bennett & Co. And that was designed to include only that company as it then existed. In this respect this paragraph of the bond is clear and explicit, disclosing the intention of the surety, at least, to have been to become obligated to the firm for the money that it might advance to the other obligors, and to pay that money to that firm or to its successors or assigns. And this expressed restriction, in this manner made, is an important circumstance indicating the intention which should govern the construction of this instrument. For, as a general proposition, it has been stated to be the law, and seems to be well sustained by the authorities, where there may be repugnance or incompatible provisions or clauses contained in an agreement, that the earlier shall prevail, the rule in this respect differing from that which is ■applied to the construction of a will. (2 Parsons on Cont. [6th ed.], 513, and cases cited in the note.)

The recital following the first paragraph of the bond is equally as restricted, for it states the fact to be that the firm of Draper & Co. had borrowed, and expected from time to time to borrow, monej' from the firm of H. C. Bennett & Co., and were desirous of giving to this latter firm a continuing security for any moneys that Draper & Co. then owed, or should at any time owe the firm of IT. C. Bennett & Co., their successors and assigns, not exceeding the sum of twenty thousand dollars at any one time, and that H. C. Bennett & Co. had required Draper & Co. to furnish this security. This recital is further evidence that the parties intended to deliver the bond only as a security for the moneys which H. C. Bennett & Co. should loan or advance to Draper & Co. And in case of a liability aidsing in favor of Bennett & Co., that then the liability should still continue in their favor, or might be passed over by them to their successors and assigns. The intention evinced is still to restrict the security to such loans as should be made by IT. C. Bennett & Co. And the condition of the bond, although somewhat differently expressed, is required to be restricted within the operation and effect of these preceding provisions in order to maintain and carry out the intention of these parties. By this condition the obligors in the bond bound themselves to pay to the obligees, their successors or assigns, all and every sum of money, not exceeding the aggregate mentioned, which should at any time be due or owing from Draper & Go. to the obligees for or on account of any loans or advances made, or credit granted by the obligees, their successors or assigns. An extended construction of this language, without reference to what was previously made a part of the bond, would include loans by the successors or assigns of the firm of Bennett & Oo. But, inasmuch as the preceding portions of the bond were clearly restricted to loans and advances made only by Bennett & Co., what was probably intended to be secured by the additional language contained in the condition was the protection of the successors or assigns of the firm in their right to collect such loans and advances as should be made by their predecessors, who were members of the firm when the bond was given. For no intention has been expressed in the condition to enlarge the construction of what had been previously stated to define the obligations this surety was designed to take upon herself. The succeeding clause of the bond also indicates this to have been what was intended by the parties to it. For it is there added that the bond should not be so construed as to require Bennett & Co., or their successors or assigns, to allow the indebtedness of Draper & Co. to reach the sum of $20,000, or to require the obligees, their successors or assigns, to loan or advance said firm any sum whatever, or grant to them any credit or accommodation whatever,, This paragraph in no manner enlarges the obligation previously created and declared. And to so far extend it as to include loans made by the new firm within the scope of the bond, other and more decisive language evincing that purpose should have been inserted in the instrument if that was what was intended to be accomplished by it. The design which the parties appear to have had in view was to secure the loans or advances which Bennett & Co., as that firm existed at the time when the bond was delivered, should make to Draper & Co., and to obligate the surety, as well as the principal debtors, to repay those advances either to the firm of Bennett & Co., as it then existed, or to their successors or assigns, which might become entitled to demand and receive the money so advanced. It would be an unauthorized extension of the controlling paragraphs contained in this bond to so enlarge it by anything in this ambiguous and uncertain manner expressed in the condition as to include within the security the advances made to the principal debtors by the new firm.

The judgment sustaining the demurrer, accordingly, appears to be right, and it should be affirmed, with costs.

Yan Brunt, P. J., concurred.

Ingraham, J".:

By the bond upon which the liabilty of the respondent depends, this respondent with her co-obligors were “ held and firmly bound unto H. C. Bennett & Company in the sum of forty thousand dollars lawful money of the .United States to be paid to the said H. C. Bennett & Co., their successors or assigns.” The obligation was to H. C. Bennett & Co., as that firm then existed, and the amount due to that firm the defendant agreed to pay that firm, their successors or assigns.

There is no indication of an intention that this respondent, who executed as surety for her co-obligors, assumed any obligation to any other firm or individual except the amount due to the firm of H. C. Bennett & Co., the obligees in the bond. By the condition it was provided: “ That if the above bounden obligors, their heirs, administrators or executors, shall well and truly pay or cause to be paid to the above named obligees, their successors or assigns, all sums and every sum of money not, however, exceeding in the aggregate the sum of $20,000, which shall at any time be due or owing from the said John H. Draper & Co, to the said obligees for or on account of any loans or advances made, or any credit granted by the said obligees, their successors or assigns, to the said John H. Draper & Co., then the above obligation to be void, otherwise to remain in full force and virtue.”

The liability of the defendant thus depends upon the existence of a debt due or owing from John H. Draper & Co. to the obligees named in the bond (H. C. Bennett & Co, as then existing). If there was no sum of money due or owing from John H. Draper & Co. to the obligees, then the bond ' was void. If such sum of money was due and owing to the obligees, whether that indebtedness existed by reason of loans or advances made by the obligees, or their successors or assigns, then the bond was to remain in'full force and effect; but the liability, by the condition of the bond, must be to the obligees named in the bond, that is, to the said firm of H. C. Bennett & Co., and unless the complaint alleged that a sum of money was due from John II. Draper & Co. to the obligees (the then existing firm of H. C. Bennett & Co.), the complaint stated no cause of action upon the bond

By the death of one of the partners of H C. Bennett & Go. that firm became dissolved, and the subsequent advances made by the plaintiffs, who may be called the successors to the obligees, created no obligation to the firm that had become dissolved by the death of one of its members. Such advances created a debt which became due to the new firm, but the surviving partner of the dissolved firm, the obligees in the bond, could not have maintained an action to recover for the advances made to John H. Draper & Co. by the new firm.

The complaint does not allege that there is any sum of money ■due or owing from the said John H. Draper & Co. to the obligees named in the bond, and, according to the express terms of the condition, the obligation was void.

I concur, therefore, in the opinion of Mr. Justice Daniels, and the judgment should be affirmed, with costs.

Judgment aifirmed, with costs.


author: Babeett, J.:

text:
    In the Matter of the Application for the Removal of CHARLES E. O’HARA, as Testamentary Trustee under the Last Will and Testament of MELANCTHON L. SEYMOUR, Deceased.

      Trustees — assent of the beneficievry to an investment — contingent remaindermen — a technical breach of trust involving no danger to the trust fund— when a trustee will not he removed.

    One Patience W. Seymour, by ber will, gave to Melancthon L. Seymour a life estate in certain property, with a power of appointment as to the fee, and also made one Sage her executor and trustee. Melancthon L. Seymour, by his will, executed said power in favor of Sage, and made one OTIara his executor and trustee. Sage, while acting as executor and trustee, invested moneys of the trust in notes, secured by mortgages upon property in Connecticut. He, after the death of Melancthon L. Seymour, turned over this identical investment to O’Hara, who continued it.
    The first objection made by Sage to this investment was by the present proceeding, taken by Sage and his children, to have O’Hara removed, as trustee, because of it.

      Held, that as Sage made the investment, and had for many years received the income, he could not now make it a ground for the removal of the trustee.
    That he had a right to have the money invested in the State of New York, but should at least have requested O’Hara to change the investment before taking this proceeding in a summary way for his removal.

      That the children of Sage, who took the estate in the event of the failure of their father to exercise a power of appointment given to him,were in a different position. That as to them there had been, at most, a technical breach of trust.
    That, where this is the case, the court will not remove a trustee if it appears that there is no danger that the fund will be lost.
    That as O’Hara was solvent and responsible, as the investment was safe originally, and had, at the time of the application, been in great part brought into the State of New York, and as O’Hara had filed his account, asking for its judicial settlement, no case for his removal was made out.
    That the provision authorizing the removal of a trustee (Code of Civil Procedure, § 2817, sub. 2), where he has “invested money in securities unauthorized by law,” must be read in connection with the clause of the same section authorizing such removal, where, ‘ ‘ by reason ” of such an act, ‘ ‘ he is unfit for the due execution of his trust.”
    That where such an investment does not endanger the fund or indicate a lack of honesty, capacity or fidelity in the trustee, the court will not remove him.
    Appeal by Warren B. Sage, Edwaid E. Sage, Warren Sage, Emily S. Sage and Adeline B. Yail, all the persons interested in a trust fund held by Charles E. O’Hara under the will of Melancthon L. Seymour, deceased, from a decree, entered in the office of the surrogate of the city and county of New York on the 17th day of June, 1891, denying an application to remove the said O’Hara as testamentary trustee under said will.

      John 8. Meloher, for the applicants, appellants.

      A. B. Tapp an and Wa/rren G. Brown, for the trustee, respondent.
   Babeett, J.:

One Melanchthon L. - Seymour, by his will, appointed the respondent, Mr. O’Hara, his executor and trustee. The trust estate was to be enjoyed by Mr. Warren B. Sage for life, and upon his death was to go to his, Sage’s, appointees. In case of Mr. Sage’s failure to appoint, the principal of the trust estate was then to go to Mr. Sage’s lawful issue. Previous to Seymour’s death, Mr. Sage was himself executor and trustee under the will of Patience W. Seymour, who gave this same estate to Melancthon L. Seymour for life, and upon his death to his, Melancthon’s, appointees. Sage invested the estate in Connecticut in notes secured by mortgage upon Connecticut real estate, and in 1866, upon the death of Melancthon, he turned it over to Mr. O’Hara, who has held it ever since. It is now sought to remove O’Hara, in substance, because he did not reduce the Connecticut investment, which thus fell into his hands, into cash and then bring the cash into this State for investment in lawful securities. There are also some other charges, but none of any great moment, and they are subsidiary to the main charge.

The answer to the main charge is that O’Hara simply continued the Connecticut investment as it came to him from Sage, and that he did so with Sage’s full knowledge and approval. Sage’s denial of such approval is unworthy of serious consideration. He has received the income for upwards of twenty years and he knew perfectly well where it came from. And why, it may be asked, .should he have objected to this investment. It was, in fact, an ■excellent one, 'and it was producing with unfailing regularity an income of from five to seven per cent upon the principal sum. It was also an investment' of his ' own choosing, a trust legacy to O’Hara from Sage himself, as Patience Seymour’s executor and trustee. Por some twenty years this investment was unchanged, but in 1886 the old mortgage was paid off and a new mortgage was given upon the same property, which was then greatly improved and enhanced in value. The present security is, in fact, about twice as valuable as the original. In his answér to the petition, O’Hara further states that he was ready to invest the remainder of the trust fund not covered by the»mortgage in compliance with the directions •of the surrogate.

The investment was greatly to Sage’s advantage, not alone because ■of the large income realized therefrom, but because such income was not diminished by local taxation. Clearly, Mr. Sage cannot now be heard to complain of this investment. If he has altered his mind .about it, and wishes a strictly legal investment, he should, at least, have asked the trustees to make the change before proceeding in this ■summary way. His present position is entirely untenable, for he not only approved of this investment throughout, but, as late as the '25th of September, 1890, approved in writing of the trustee’s •account, based, of course, upon such investment. He has received an excellent income during all these years, and now, without a word of warning, he attacks Mr. O’Hara for retaining the investment which produced that income; an investment, too, which originated with himself, and which has been greatly strengthened since its adoption by O’Hara. It thus appears that the breach of trust has here been purely technical. The trustee has acted in good faith, and the estate has never been in the least jeopardy. The moment complaint was made O’Hara arranged to bring into this State nearly the entire fund, reduced to cash, while the rest of it is amply secured and will follow shortly, namely, in November of next year.

The position of Mr. Sage’s children upon this application is, of course, different from that of their father, but even they have made out no case for removal. They have but a contingent interest in the estate; that is, they take only in case their father fails to exei’cisehis power of appointment. But they undoubtedly have a right to> demand that the estate shall be invested in authorized securities. It does not follow, however, that, because, as against these contingent remaindermen, there has been a technical breach of trust, the trustee is necessarily to be removed. The rule is well stated by Mr. Perry in his work on Trusts (§ 276 [4th ed.]): “ Nor will a trustee be removed for every violation of duty, or even breach of the trust, if the fund is in no danger of being lost. The power of removal of trustees appointed by deed or will ought to be exercised sparingly by the court. There must be a clear necessity for interference to save the trust property. Mere error, or even breach of trust, may not be sufficient; there must be such misconduct as to show want of capacity or of fidelity, putting the trust in jeopardy.”

It is plain that here there has been no such misconduct as the learned author points out. There has been no lack of capacity or fidelity, and the trust has never been in jeopardy. If these contingent remaindermen had requested a change of securities, it would have been Mr. O’Hara’s duty to comply with their request. Had he refused, their request could have been enforced, and, meanwhile, Mr. O’Hara would have been chargeable with all loss caused by the unauthorized investment. He might even have been removed,, especially if his refusal were willful or in bad faith. But we think these applicants, under all the circumstances, owed it to the trustee to Confer with him, to make their complaints and express their wishes before taking so radical a step as is involved in an application for removal.. Mr. O’Hara’s solvency is not questioned, nor is. his character. And he states, under oath, that his financial standing- and responsibility are more than sufficient to meet any demand by reason of the premises. The contingent remaindermen have- not. lost a dollar by reason of the unauthorized investment, nor is there any need of apprehension on that head. Indeed, Mr. O’Hara has not only brought the bulk of the estate into this jurisdiction, but he has filed his account and asked for a judicial settlement thereof. In fact, he has done everything which an honest and capable man could do to rectify a condition of things which he had every reason to believe w&s satisfactory to his cesbuis que trust the moment he was informed that it was objected to. The petitioners have proceeded upon the theory that every investment which the court cannot sanction, or which may subject the trustee to personal liability in case of loss, necessarily draws with it the penalty of removal. In this we think they are mistaken. It is also claimed that the investment of money in securities unauthorized by law of itself calls for the removal of a trustee under subdivision 2 of section 2817 of the Code of Civil Procedure. But the language of this subdivision is: “ Where, by reason of his having * * * invested money in securities unauthorized by law * * * Tie is unfit for the due execution of his trust.” We agree with Surrogate Rollins in Estate of Morgan (8 Civ. Pro. Rep., 158), that the last expression must be regarded as a legislative sanction of a familiar doctrine of equity jurisprudence, which is expressed by Judge Story'(2 Eq. Jur., § 1289),-in these words:

“ It is not, indeed, every mistake or neglect of duty or inaccuracy of conduct of trustees which will induce courts of equity to adopt such a course (remove a trustee).” The acts or omissions must be such as to endanger the trust property or to show a want of honesty or of proper capacity or of reasonable fidelity.

None of these derelictions have here been established, and we think, therefore, that the learned surrogate was right in denying the application. The costs were properly charged upon the petitioners. Their application was precipitate and ill-timed. It was certainly lacking in just consideration to a trustee who seems to have served their father faithfully for a great many years. And it was probably quite unnecessary, for doubtless a simple suggestion would have sufficed to bring about' the desired change of securities.

The decree of the surrogate should be affirmed, with costs.

Yan Brunt, P. J., and Ingraham, J., concurred.

Decree affirmed, with costs.


author: Daniels, J..' Barrett, J.

text:
    JOSEPHINE L. PEYTON, Respondent, v. THE NEW YORK ELEVATED RAILROAD COMPANY and Another, Appellants.

      Elevated railroads — past trespasses — when an expert witness cannot give an opinion — admission of evidence possibly affecting the result not disregarded on appeal.

    In an action brought by the owner of premises upon Third avenue, in the city of New York, to recover for past trespasses of the elevated roads of said city, and to obtain an injunction restraining the further running of their trains, an expert' witness testified on behalf of the plaintiff that rents were less upon the avenue than before the elevated roads were built, and that a better class of tenants could be had on a street, referred to by him, where there was no such road, than on Third avenue.
    He was then asked to what he ascribed the change in the character of Third avenue, and replied, “ To the elevated road.”

      Held, that the answer was improper,' as being an expression of opinion, when the witness should have confined himself to a statement of the facts.
    That, for a similar reason, he should not have been allowed to state, in answer to a question as to the “effects produced” by the elevated road in Third avenue, that he knew that the noises, dust and cinders kept people away from there.
    Nor should he have been permitted to answer the question: “How does the rental of property on First avenue compare with property on Second avenue and Third avenue, in that locality,” by saying that it rented better on First avenue, and that there was no elevated road there.
    That where an error has been committed in excluding or admitting evidence upon a trial, and the court cannot say that this had no effect whatever upon the result, a new trial should be granted. (Barrett, J., dissenting.)
    Appeal by the defendants, the New York Elevated Railroad Company and the Manhattan Railroad Company, from a judgment of the Supreme, Court, entered, upon the report of a referee, in the office of the clerk of the city and county of New York on the 14th day of March, 1891, adjudging a recovery by the plaintiff for past damages; also granting an injunction, unless the defendants acquired the plaintiff’s easements, enjoyed by them in the premises, which they might do upon payment within thirty days of a sum specified in said judgment.

      Da/oies do Sapallo, for the appellants.

      Charles A. B. Pratt, Jr., for the respondent.
   Daniels, J..'

The plaintiff was the owner of premises, consisting of a lot of land and the building thereon, situated on the corner of One Hundred and Nineteenth street and Third avenue, in the city of New York. The lot and building were bounded twenty-eight feet on the avenue and eighty feet on the street. The building was five stories in height above the first floor. This floor was used as a store and the upper stories as flats or tenements. The plaintiff became the owner of the property in January, 1886, when the store and the basement under it were in the occupancy of tenants, and the action was brought for the damages sustained by the plaintiff by the erection and operation of the elevated railway, and to secure an injunction restraining such use of the street by the defendants. Upon the trial evidence was given from which it could be inferred by the referee that the damages found to have been sustained by the plaintiff, in consequence of the maintenance of the structure and the operation of railway trains upon it, was the sum allowed by him for that purpose. The amount of damages which was considered to have been sustained by the plaintiff from these causes was the sum of $710.80. There was also in the case evidence indicating the value of the easements taken and appropriated by the railway companies in the maintenance of the structure and the operation of the trains upon it, and. that value was determined by the referee to be the sum of $1,800, and upon the payment of that amount the defendants were permitted, by the judgment entered upon the report, to acquire the title to these easements. The evidence as to both these subjects was close and conflicting, and all of it appears to have been important, so far as it was given, in the consideration of the question of damages as well as of the value of the easements.

In the course of the examination of the witness, Thomas F. McLaughlin, who was a real estate broker having his place of business on Third avenue, and not far from the premises in question, he testified that the rents were less on Third avenue at the time of the trial than they were before the building of the railroad, and that a better class of people could be' obtained as tenants on the street referred to by him than were obtainable for the use of property upon the avenue. The witness was then asked: “ To what do you ascribe this change in the character of the tenants or dwelling portion of the premises on Third avenue, which you have stated took place ? ” To this question the defendants’ counsel objected on the ground that it was incompetent, irrelevant and immaterial, and as calling for the opinion of the witness. The referee overruled the objection, and the counsel for the defendants excepted, and the witness answered,- “ To the elevated road.” He was then asked: “ What are the effects produced by the elevated road on Third avenue,” and this was objected to as incompetent, irrelevant and immaterial, but the objection was overruled and the counsel for the defendants excepted. The witness then answered that he knew that “the noises, dust and cinders had kept people away from there. They have got to keep their windows closed in summer time, and if they open them the cinders blow in and sometimes it darkens up the apartments and you can’t see across the street. In my opinion, that has an effect upon the rental value of the premises. The rents of property on Third avenue which I had charge of before the road have decreased since the coming of the road. I ascribe that to the cause I just named — the construction and maintenance of the elevated railroad. I do not know any other cause which would have had, during these past years, any detrimental effect upon the rental value of Third avenue properties for dwelling purposes.” These answers, especially the one first given, was no more than the expression of the opinion of the witness, and it bore upon a vital part of the controversy between these parties; and as an opinion it does not appear to have been legally received by the referee (McGean v. Manhattan Ry. Co., 117 N. Y., 219; Avery v. N. Y. Central., etc., Co., 121 id., 31-43; Wyman v. Lexington, etc., Co., 13 Metc., 316), and it was not authorized by anything which has been said in the case recently decided of Roberts v. New York, Elevated Railway Company (40 N. Y. St. Rep., 454). The witness was also asked: “ How does the renting of property on First avenue compare with property on Second avenue and Third avenue in this locality ? ” This was objected to as calling for incompetent evidence, and as irrelevant and immaterial, but the question was allowed to be answered by the referee, and the defendants’ counsel excepted. His answer was that “ it rents very much better on First avenue; there is no elevated road on First avenue. It rents better on First avenue than it does on Second and Third. First avenue has been far superior to Second or Third ; better prices, and you can keep it rented. There is no elevated railroad on First avenue.” This evidence seems to have been received in the same view as the answers to the preceding questions were allowed to be given ; and the ruling permitting the answers allowed the witness to declare his inferences from the facts instead of proving the facts themselves, and permitting that to be done, as the law regularly required it should be, by the referee-That seems to have been improper within the authorities already referred to, as well as the case of Drucker v. Manhattan Railway Company (106 N. Y., 157). The facts, as they appear to have been in the mind of the witness, were all capable of being described and expressed in language enabling the referee to receive as clear a. comprehension of them as that which was.possessed by the witness; and for that reason these facts, instead of the opinions or deductions of the witness, should alone have been taken, leaving the referee, as it was his peculiar province, to draw such inferences from them as he considered to be justifiable.

The case upon the evidence was not so far proved as to allow the conclusion to be drawn that the referee’s mind was not affected by this objectionable testimony. It is, on the contrary, wholly probable that it entered into his determination and contributed to the support of the conclusions reached by him, not only as to the damages, but as to the value of these easements, and for that reason the error of the referee in permitting this evidence to be given cannot be disregarded. (Baird v. Daly, 68 N. Y., 547.) It was said in that case, under analogous circumstances, “ that we cannot say that the exclusion or admission of any of the evidence to which objection was taken upon the trial, however slight or of little weight it may seem, may not have influenced the-result, and if error was committed, either in admitting or rejecting evidence against the objection and exception of the defendants, a new trial should be had.” (Id., 549.) And this rule was followed and applied in Matter of Eysaman (113 N. Y., 62). And it was- also held in Murray v. Great Western Insurance Company (4 N. Y. St. Rep., 624), that it should clearly appear that the party against whom inadmissible evidence has been received has not been injured by the evidence, before the court on appeal will be at liberty to disregard it.

The point whether the elevated railroad, and the trains used upon it, had depreciated the value of the property was one of the most important, if not the most important, involved in the trial of the action. It was not a fact which could be established by opinion or inference on the part of witnesses. This seems to be the result now of all the authorities, which require that the facts alone should employ the attention of the witnesses, whose evidence may be relied upon as supporting the conclusions intended to be maintained in the case.

And, as that was not the course taken upon the trial, the judg ment should be reversed and a new trial ordered, with costs to the defendants to abide the result.

Van Brunt, P. J., concurred.

Barrett, J.

(dissenting):

I am unable to concur with Mr. Justice Daniels in this case. The judgment is plainly a righteous one, and it is amply supported by the evidence. Even if the rulings of the learned referee in the admission of evidence are properly the subject of criticism, the defendants were not prejudiced, and the objections on that head are too slight to warrant the reversal of so just and moderate a judgment. But I think the rulings of the learned referee were correct, and that the evidence objected to was properly admitted. No case has gone so far as to exclude the opinion of experts with regard to changes in the character of tenants and tenements, and the causes thereof. The great question which has agitated the courts, and which has been finally settled by the Court of Appeals, was whether an opinion could properly be given as to the value of property on the line of the elevated railway in case the structure were not there. This has finally been solved against the admission of such evidence. (Roberts v. The New York Elevated Railway Company, 40 N. Y. St. Rep., 454; Gray v. The Same, Id., 478.) The question objected to in the case at bar is covered neither by the point decided in these cases nor by the reasoning of the opinions, whereas in the Doyle case (same volume, page 474), almost identical questions were held to be proper and a judgment was reversed because of their exclusion. It is, indeed, difficult to perceive why an expert may not give his judgment upon a matter so entirely within the domain of experience as changes in the character of a street or in the occupation thereof. TJpon what principle is his expert knowledge as to the cause of such changes to be excluded ? He is not speculating as to what would be the value of the property if the changes had not taken place. He merely says that where well-to-do people formerly occupied an entire floor, it is now necessary to divide the floor into two apartments and to rent each apartment to an inferior tenant. And, in his opinion, this change is due to the elevated railway. Now, what is this but a statement of his observation and experience ? The very next answer illustrates the point. For there he tells us just what he founded his previous opinion upon. People objected to noises, dust and cinders. They objected to keeping their windows compulsorily closed in summer and to the darkening of their rooms. This is what he saw. These complaints are what he heard. He observed well-to-do tenants leaving on account of these annoyances and a cheaper class taking their places. He also observed that the flats had to be altered to suit the new condition of things, and to accommodate the building to lower rents. An opinion as to the cause of these changes does not substitute the judgment of the expert for that of the court upon any question of value or of damages. It is merely an opinion as to a change of condition. It is purely an observation not only of the fact of the change, but of the causes thereof. For surely personal knowledge of the reasons given by a multitude of tenants for their coming and going is necessarily observation and experience.

I have said that such questions were explicitly sustained in the Doyle case. A brief extract from the opinión will demonstrate this:

“ The defendants,” said Earl, J., “ put the following questions to several witnesses who had done business for several years upon Sixth avenue, in the vicinity of the plaintiff’s premises, and who appeared to be familiar with the avenue and its business and competent to speak in reference thereto: ‘ What have you observed in respect of the effect of the elevated railroad upon property in this avenue ? What has been the effect of the elevated railroad upon Sixth avenue as a business street ? ’ ”

The court held that these questions were competent, Earl, J., observing that they “ called not so much for the opinions of the witnesses, as for facts open for their observation.” Reference was there made to the Drucker case (106 N. Y., 157), where similar evidence was held to be competent, the particular question being: “'What effect, if any, has it (the railroad) had upon the business of that store ? ” The answer to this question was almost precisely the same as that objected to in the case at bar. It was as follows:

“ Customers don’t come there any more, as they used to, on account of the smoke, dirt, noise and cinders what is there; and it is very dark in the stores.”

The other question discussed by Mr. Justice Daniels was, in my judgment, equally unobjectionable. A general comparison between the rental of property on the line of the railway and of property on neighboring streets and avenues has always been permitted. The question is said to call for inferences from facts rather than the facts themselves. But, with great respect, I think the question did call for facts, none the less because such facts were general rather than particular. If particular instances had been asked for, they might have been objected to as calling for sj>ecial bargains. The proper course was to inquire as to the general character of rental values on the avenue in question, and to compare such values with those on neighboring streets and avenues. This was precisely what was authorized in the Drucker case when Judge Finch observed that “ a survey of the general facts ” was required to ascertain how much the plaintiff was injured by the impairment of his easements. It was also within the character of evidence authorized in the Roberts case, where Judge Peokham remarked, that “proof might be made of the filling up of the side streets along the lines of this railroad, and of the incoming of a large population, the erection of buildings somewhat similar to plaintiff’s and their rental and fee value, and finally a general statement of the condition and value of property in the neighborhood of that in question could be proved.”

When we consider, also, that the answer to this question amounted to nothing more than this — that property rents very much better on First avenue, where there is no elevated road, than it does on Second and Third avenues, where there is one — the appellant’s point on this head seems trivial and wholly insufficient to warrant the disturbance of the report.

In my judgment, there should be an affirmance, with costs.

Judgment reversed and new trial ordered, with costs to defendants to abide result.


author: Yan Brunt, P. J.: Patterson, J.:

text:
    JAMES L. HART, Respondent, v. WILLIAM T. WASHBURN and Another, as Executors of BENJAMIN RICHARDSON, Deceased, Appellants.

      Bevimr — action for a penalty — the im'ong merged in the judgment — the death of the defendant does not affect proceedings on appeal from an order opening the judgment.

    An action was brought by one Hart to recover of one Richardson, as trustee of a mining corporation, organized under the general manufacturing act of 1848, by reason of a liability created by said act, because of a failure to make, file and publish an annual report. The plaintifE entered judgment by default. This default was opened, and the plaintifE appealed from the order opening the same. Pending the appeal the defendant died.
    The plaintifE then made a motion to continue the action against the executors of the defendant, which was granted.

      Held, that this was proper.
    That the principle that an action for a statutory penalty died with the person did not apply
    That the penalty was merged in the'judgment; that death did not put the judgment out of existence, and although it had been set aside the plaintifE had a right to prosecute his appeal to the end that it might be determined whether or not the judgment should be restored.
    Appeal by the defendants, William T. Washburn, as executor, and Emma Richardson, as executrix, of Benjamin Richardson, deceased, from an order, entered in the office of the cleric of the city and county of New York on the 10th day of April, 1891, continuing the action against the executor and executrix and directing that all papers in the action be amended by making them parties defendant.

      William S. Andrews, for the appellants.

      H. Q. Wood, for the respondent.
   Yan Brunt, P. J.:

This action was brought to recover a liability imposed by the act of 1848 for the failure of the defendant to make and file the annual report of a mining company, of which the defendant was a trustee. A judgment was entered in favor of the plaintifE against the defendant, and a motion was made to open this default, which was granted. An appeal was taken to the General Term, and pending this appeal tlie defendant died. A motion was then made to revive the action against the executors, which motion was granted, and from the order thereupon entered this appeal is taken.

It is claimed, upon the part of the appellants, that the motion should have been denied, because the action, being for a penalty imposed .by statute, died with the person, and cannot be revived against the executors of the defendant.

It is not necessary to discuss the propositions that the cause of action is penal in its nature, and abates with the death of the defendant. But in the case at bar the plaintiff had already acquired a judgment. It is true that that judgment had been set aside, but he had appealed from the order setting aside the judgment to the General Term, and that appeal was pending; and, as far as that appeal was concerned, the litigation was over the judgment, and not over the original cause of action, thus bringing the case precisely within the terms of Carr v. Rischer (119 N. Y., 123), in which case a trial had been had, a verdict rendered and a judgment entered, from which judgment the defendant had appealed to the General Term, where the judgment was reversed and a new trial granted, and an appeal taken from the order of reversal, and then the.defendant died. A motion was then made to dismiss the appeal in the Court of Appeals upon the ground that the action had abated by death, and that court held that the money was merged in the judgment, and that the reversal of the judgment did not strike the judgment out of existence, inasmuch as the judgment might be restored upon appeal to that court, and that the action might be continued for that purpose.

In the case at bar it is true that the judgment had been set aside by the order of the Special Term opening the default, but an appeal was pending from that order, and that judgment might be reinstated upon that appeal, as has been done by the decision of this court handed down herewith.

Under the principles laid down in the case cited, the plaintiff had a right to continue the action against the personal representatives of the defendant for the purpose of ascertaining whether or not that judgment could not be restored upon appeal. We see no distinction whatever between the case and the principle which controls, which is, that the wrong having been merged in the judgment, so long as the parties are litigating over the judgment, death does not operate to abate the action, whatever it might do when the parties are litigating over the original cause of action.

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

Patterson, J.:

I concur. There was a property right in the judgment, and the case is directly within the ruling in Carr v. Rischer, as is pointed out in the opinion of the presiding justice.

Order affirmed, with ten dollars costs and disbursements.


author: Yan Brunt, P. J.:

text:
    THE MAYOR, ALDERMEN AND COMMONALTY OF THE CITY OF NEW YORK, Plaintiff, v. THE TWENTY-THIRD STREET RAILWAY COMPANY, Defendant.

      Street railroads — license fee in New York city — it is based, on the size of the car and not upon the number of horses employed to draw the ear — Laws of 1860, chap. 514.
    An ordinance of the city of New York provided that every passenger railroad car should pay a license fee of fifty dollars, except “the small one-horse passenger cars,” which should pay twenty-five dollars.
    A street railway corporation in said city changed the motive power of the small cars from one horse to two horses. ,

      Held, that the license fee was based on the size of the cars, and not upon the manner in which they were propelled, and that the cars in question were only subject to a fee of twenty-five dollars.
    Submission of a controversy between the Mayor, Aldermen and Commonalty of the City of New York, as plaintiff, and the Twenty-third Street Railway Company, as defendant, under sections 1279 and 1280 of the Code of Civil Procedure.

      Thomas Allison, for the plaintiff.

      O. E. Bright, for the defendant.
   Yan Brunt, P. J.:

The question presented by this submission is whether the defendant must pay to the plaintiff a license fee of twenty-five dollars, or a license fee of fifty dollars upon each of a large number of cars run by the defendant in the city of New York during the years 1881 to 1885, both inclusive.

The franchise under which defendant runs its cars was conferred by chapter 514 of the Laws of 1860, which provides that the railroad should be subject to the payment to the city of the same license fee annually for each car run thereon as was then paid by other city railroads in said city. In 1858 a city ordinance was passed which provided that:

“ Each and every passenger railroad car running in the city of New York below One Hundred and Twenty-fifth street shall pay into the city treasury the sum of fifty dollars annually, for a license, a certificate of such payment to be procured from the mayor, except the small one-horse passenger cars, which shall each pay the sum of twenty-five dollars annually, for said license, as aforesaid.”

After said ordinance was passed, and from then until April 17, 1860, and for many years thereafter, the city railroads in said city ran two classes of cars, to wit: A class of cars drawn by two horses, and which were in length about sixteen feet, and both the front and rear platforms were used by passengers; and another class of cars .usually drawn by one horse, in length about twelve feet and one foot narrower between the benches, and which had their front platforms closed and never used by passengers.

These latter cars were commonly known and spoken of as small one-horse passenger cars. From January, 1859, until some years after April 17, 1860, and down to the date of this submission, the city railroads in said city, other than the road referred to in said act, of 1860, and thereby authorized to be run, have paid annually license fees into the city treasury on each of the large two-horse cars, such as above described, run by them, the sum of fifty dollars each, and on ■each of the smaller passenger cars, such as above described, whether •drawn by one or two horses, the sum of twenty-five dollars. Subsequent to April 17,1860, and until the year 1881, all the cars run upon the defendant’s road were of the dimensions and capacity of the smaller passenger cars above described, and were, as a rule, drawn by one horse, and the railway company never paid for any of such cars any greater license fee than twenty-five dollars a year. In the year 1881, this defendant, being then the lessee of said railroad and engaged in operating the same or a portion of the same, commenced to have said smaller cars run by it, which had theretofore, as a rule, been drawn by one horse, drawn habitually by two horses, and all of the cars above mentioned were of the dimensions and capacity of the smaller passengers cars above described, and were, in fact, the same cars which had theretofore been run and drawn, as a rule, by one horse only. The plaintiff claims that these cars were subject to an annual license fee of fifty dollars when drawn by two horses, and the defendant claims that said cars were subject to a license fee of only twenty-five dollars when drawn by two horses; and'the question submitted is whether the defendant is liable to pay the higher license fee.

We think that, clearly, no such obligation rests upon the defendant. The license fee in the resolution above referred to seems to be predicated upon the size of the cars run. It provides that each and every of such railroad cars running in the city of New York below One Hundred and Twenty-fifth street shall pay into the city treasury fifty dollars annually for a license, except the small one-horse passenger cars, which shall each pay the sum of twenty-five dollars annually for said license. Therefore, a car which was known at the time of the passage of this ordinance as a one-horse passenger car was subject to the payment of a license fee of twenty-five dollars only, even though it might be drawn by more than one horse.

It appears from the case that there was a style of car commonly known and spoken of as small one-horse passenger cars, and it is the cars which are taxed, and not the motive power. It is immaterial, in the consideration of the ordinance, as to how the cars are moved, provided they are of the character commonly known as small one-horse passenger cars. These are the ears which were intended to be excepted, naturally because of their less capacity to carry passengers, and, consequently, less ability to pay the larger license.

Judgment should, therefore, be rendered for the plaintiff for $5,175, and interest on $1,075 thereof from June 1,1881; on $1,000 from January 1,1882; on $1,000 from January 1, 1883; on $1,000 from January 1, 1884, and on $1,100 thereof from January 1,1885.

Barrett and Daniels, JJ., concurred.

So ordered.