author: Learned, P. J.: FIavham, J.: Landon, J.

text:
    WILLIAM H. TOLHURST and Another, Appellants, v. JOSEPH A. POWERS, Respondent.

      (hntraets — promise to pay the debt of a third person, — coimderraMon— statute of frauds — 2 R. S., 135, § 2.
    A firm of machinists had in its possession a dynamo belonging to one Ball. Ball had formerly sold the dynamo to one Crane, who had returned it to the firm (its makers) as defective. One Powers was a creditor of Ball and desired to obtain possession of it. Ball was also indebted to the said firm for constructing said machine., Upon a request being made by Ball and Powers to the firm to ship the machine to New York the firm inquired who would pay the balance due thereon from Ball, Powers replied that lie would.

      JTfld, that as the firm had no lien upon tlie machine, and had only a bare possession thereof not accompanied by any right, its surrender thereof was an act which it was legally bound to do, and furnished no consideration for the promise of Powers to pay the balance due to the firm from Ball. (Landon, J., dissenting.)
    That as tlie debt was one of a third person, a promise to pay it, not in-writing, was void under the statute of frauds. (2 Pi. S., 135, § 2.) (Per Learned, P. J.)

      Appeal by the plaintiffs, William H. Tolhnrst and Charles IL Tolhnrst, from a judgment, entered in the clerk’s office of Rensselaer county on the 30th day of March, 1891, in favor of the defendant for $236.52 costs, after a trial before a referee.
    The action was brought to recover $522.13, the balance of an account originally due to the plaintiffs from Clinton M. Ball for services in the construction and fitting of a dynamo and other electrical appliances, which balance thedefendant orally promised to pay the plaintiffs under the following circumstances: In 1883, and prior to December seventeenth of that year, the plaintiffs, who were proprietors of a machine shop in the city of Troy, rendered services for Clinton M. Ball in the construction and fitting of a dynamo and other electrical appliances. In August they delivered the completed dynamo to Ball, who having made a sale thereof to one Crane in New York, conditional upon its successful operation, directed the plaintiffs to-ship the dynamo to Crane, and they did so. Ball had paid the plaintiffs upon account of all their services, but not in full. Owing to some scientific defect in the dynamo, but not in the work done by the -plaintiffs, the dynamo did not operate successfully, and was sent back to the plaintiffs for further work. The defendant thereupon, with the consent of Ball, assumed the direction of the alterations and further work upon the dynamo ; the plaintiffs performed as defendant requested, and the defendant paid them therefor.
    December 17, 1883, the additional work being completed, and the dynamo remaining in plaintiffs’ shop, the defendant and Ball came to the shop and met the plaintiff, Charles IT. Tolhnrst. The defendant then requested said plaintiff to ship the dynamo to New York. The plaintiff replied that before doing so he wished to know who was going to pay the balance, $522.15, due from Balito the plaintiffs for work done upon the dynamo and other things. The defendant said he would pay it. Thereupon, at the request of defendant, Ball giving his consent, the plaintiffs shipped the dynamo to the defendant at New York. Subsequently the plaintiffs presented their bill for $522.15 to the defendant, who promised to pay it, but has not done so.

      Nelson Davenport, for the appellants.

      Fra/nk 8. Blaek, for the respondent.
   Learned, P. J.:

Leaving out all tlie unimportant facts, tlie case in the aspect most favorable to plaintiffs stands thus: On the seventeenth of December, one Pall owed the plaintiffs for work $522.15. There was at that time in their possession a machine which had belonged to Ball which he had sold and delivered to Crane, and which Crane had returned because it did not work. The machine was in plaintiffs’ lawful possession, but they had no legal lien or claim of any kind upon it.

Ball, or if not Ball, then Crane was entitled to immediate possession. The defendant had paid some money for Ball, and Ball and defendant desired that the machine should go into defendant’s-possession. lie had not, however, at that time any title to it.

Ball.and defendant, were present at plaintiffs’ machine works in Troy, and wished to have the machine shipped to defendant at New York. Plaintiffs said they wished to know who was to pay the balance above' mentioned, which Ball owed them. Defendant-said he would pay it. Thereupon the machine was shipped by-plaintiffs to defendant; or rather Crane came for it to plaintiffs’' works, and had it sent by express to defendant. There was no-written agreement. Plaintiffs subsequently called upon defendant for the aforesaid balance. He at first promised verbally to pay,, but afterwards refused.

The question is whether the verbal promise of defendant to pay plaintiffs a debt which Ball owed them, made to induce them to ship to defendant, with Ball’s consent, a machine belonging to Ball and on which they had no lien, is legally binding on defendant after plaintiffs have made said shipment.

What consideration existed for the promise ? The plaintiffs had no lien on the machine, and could not rightfully have retained possession. If their surrender of possession was an act which they were legally bound to do, then they parted with nothing. It would be a premium on wrong-doing to say that the courts would enforce a promise to pay money, made to induce one to surrender to the rightful owner property to which the possessor had no title and no-right of possession.'

One who has possession, but no right to possession whatever, may possibly delay the rightful owner by refusing to deliver. But to-say that such possessor parts with any tiling of value when he merely does his duty, and gives up what he has no right to retain, is very inconsistent with sound principle. Suppose Ball had not owed plaintiffs and they had insisted that they would not give up the machine unless defendant promised to pay them $500, and he had so piromised, wóuld there have been any consideration for the promise ?

There was not here the compromise of a disputed claim. Nothing is shown to establish that the plaintiffs had, or that they even claimed to have, a lien on the machine. Possibly they could have compelled Ball to bring an action, as it would not have been lawful for him to enter on plaintiffs’ premises forcibly to get liis propert}”. But the voluntary surrender of what one has no right to retain cannot be a good consideration for a promise. The promisee parts with nothing. Tie gives up nothing to which he lias or claims a right.

This is not a case where the original debtor conveys property to another in consideration of his promise to pay the debt. The defendant made no promise to Ball. Ball conveyed nothing to the defendant. Subsequently, it is true, in the following February Ball did convey this machine to defendant. But that conveyance was to secure moneys advanced by defendant and was not in consideration of any promise to pay this debt to plaintiffs. Further, this debt was Ball’s; and defendant’s promise was void under the statute of frauds. We need not discuss this at length. It is enough to refer to Ackley v. Parmenter (31 Hunn, 476, and 98 N. Y., 425).

The judgment should be affirmed, with costs.

FIavham, J.:

Assuming, as 'we must, that the plaintiffs had a mere naked possession of this dynamo, with no interest in or lien upon it, so that after a demand by the real owner their possession would be wrongful, I do not see how its delivery to the defendant, who was entitled to the possession, furnishes any consideration of harm to the plaintiffs or benefit to the defendant to support the promise of the latter to pay the debt of Ball to the former. I think, therefore, the judgment should be affirmed.

Landon, J.

(dissenting) :

We tllink the plaintiffs were entitled to a recovery. They had possession of the dynamo, and they intimated their intention to

retain possession until they should receive some further assurance that their bill against Ball would be paid than Ball’s responsibility or credit afforded them. The defendant ivas interested in the dynamo, upon which he had expended both time and money, and desired to obtain possession of it. Grant that plaintiffs had no lieu upon the dynamo against Ball which they could maintain if a contest should be made, they, nevertheless, had the possession of the dynamo, and had the physical power to retain that possession and try to defend it in the courts; they thus coulu retain the possession until some indefinite future time. The defendant desired possession immediately. It does not appear that he had any title to the dynamo or lien upon it, but evidently from curiosity, scientific interest, or in the hope to obtain indemnity for his expenditures upon it, he desired to obtain possession. Ball, the owner of the dynamo, was willing the defendant should obtain possession. It was for him to dispute plaintiffs’ intimation of a lien if he thought proper, but he did nothing of the kind. The cáse, then, is this: Plaintiffs had possession of Ball’s dynamo, claiming to hold it until payment of their bill against Ball should be secured. The defendant desired to obtain possession of the dynamo, and had no title to stand upon. Ball, the real owner, did not dispute plaintiffs’ claim. He consented that plaintiffs might deliver the dynamo to defendant, but he gave defendant no authority to take it from plaintiffs against their consent. The defendant thereupon, by agreeing to pay them the amount of their bill against Ball, bought of them their possession and the abandonment of their claim of lien, and thus obtained possession of the ■ dynamo. The defendant by his promise obtained possession of the dynamo and the plaintiffs parted with it. True, Ball was not released from his obligation to pay the debt, but the defendant, in consideration of the benefit now moving to himself from the plaintiffs, added his promise to pay, to the old promise made by Ball. The ease falls within the third classification made in Leonard v. Vredenburgh (8 Johns., 29), m which “the promise to pay the debt of another .arises out of some new and original consideration of benefit or harm moving between the newly contracting parties,” and thus is not within the statute of frauds. (Mallory v. Gillett, 21 N. Y., 412.)

The defendant’s contention, that because plaintiffs-had no valid lien upon the dynamo they had nothing to sell or release or deliver to defendant, is not tenable. We have already shown that though •they may not have had a valid lien they had possession and all the .advantages of possession ; and if the defendant had obtained from Ball or could have obtained from him the means to compel them to .surrender what théy had, he, nevertheless, was at liberty to buy them ■out, and he chose to do so.

The judgment should be reversed, referee discharged, new trial •granted, costs to abide event.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Landon, J.:

license: Public Domain

text:
    HENRY E. WEED, Respondent, v. THE HAMBURG-BREMEN FIRE INSURANCE COMPANY, Appellant.

      Insurance policy — condition that the “exact interest” of the assured he stated — construction of the phrase “as his interest may appear” in the case of a mortgagee who had foreclosed hut had not sold.

    An insurance policy, issued upon tlie application of a mortgagee, required that the “exact interest of the assured in the property” be stated in the policy, and provided that otherwise it should be void. It insured “ the estate of 0. Richards; ” and further stated “loss, if any, payable to Henry E. Weed, mortgagee, as his interest may appear.”
    Upon the trial of an action brought by the mortgagee to recover upon said policy, it appeared that Weed received his mortgage from Richards in 1873; that Weed had obtained a jtldgment of foreclosure thereof in 1877, but had never sold under the judgment; that, in 1875, Richards conveyed the premises, subject to this, mortgage, in trust to a third person, but remained in possession thereof, claiming to own them, up to the time of his death, insolvent and intestate, in 1879.
    It further appeared that the policy was issued in 1881; that no one interested in the property under Richards had anything to do with the issuing of said policy, and that the words “ estate of 0. Richards ” were used as a comprehensive term to embrace all who had interests in the property.

      Held, that the plaintiff was entitled to recover.
    That it was not requisite that he should set up in the policy all the intricacies of tlie title, as his mortgage was given prior to their coming into existence, and was valid.
    That the plaintiff, the mortgagee, having stated his own interest correctly, and there being no doubt upon all tlie evidence as to what was meant by the phrase “mortgagee, as his interest may appear,” the plaintiff, although a mortgagee with a judgment of foreclosure, was entitled to recover.

      Appeal by defendant, the'IIamburg-Bremen Fire Insurance Company, from a judgment, entered in the Rensselaer county cleric’s office on the 24th day of November, 1890, in favor of the plaintiff, after a trial at the Rensselaer County Circuit before the court and a jury, at which a verdict was rendered in favor of the plaintiff for $1,525.

      A. H. Sawyer, for the appellant.

      G. B. Wellington, for the respondent.
   Landon, J.:

The policy insured estate of O. Richards,” against loss by fire on “ their grist-mill ” and fixed and movable machinery, “ loss, if any, payable to Henry E. Weed, mortgagee, as his interest may appear.” The policy contains this clause: “ If the exact interest of the assured in the property, whether as owner, trustee, consignee, factor, agent, mortgagee, lessee, or otherwise, be not truly stated in the policy, then and in every such case this policy shall be void.”

The defendant insists that the ‘‘ estate of O. Richards ” is insured, and not the mortgage interest of the plaintiff, and that the plaintiff is the mere payee of the loss sustained by the estate, and the policy is void under the clause quoted for the reason that the exact interest of the assured is not truly stated. Weed v. London and Lancashire Fire Insurance Company (116 N. Y., 114), is relied upon in support of this contention. That was a case in which this plaintiff sought a recovery upon the same loss upon a policy concurrent with this, in which, also, the policy insured the ■ estate of O. Richards, loss, if any, payable to this plaintiff as his claim might appear.

The case cited was decided adversely to the plaintiff, because the policy in that case contained a clause which is absent in this, namely, that if the interest of the assured in the property was other than the entire, unconditional and sole ownership thereof the policy should be void; the referee found it was other than the entire, unconditional and sole ownership thereof, and the Court of Appeals held the policy never had any force. The present case is different.

In the present case evidence was given tending to show that the plaintiff insured his mortgage interest, and that the words “ estate of O. Richards” were merely in identification of the property insured. It was shown that in 1851 O. Richards bought the property ; that in 1873 he and his wife gave the plaintiff the mortgage upon which this policy rests; that there remains unpaid upwards of $12,000 upon the mortgage; that in 1875 Richards and wife conveyed this and other property to Dean Sage, subject to this mortgage, but in trust to hold, enjoy and dispose of the same, and collect the rents and income thereof while unsold, and apply the net rents meanwhile, and the net proceeds of sale ultimately, after payment of incumbrances, to the benefit of Richard’s creditors, with a residuary clause in favor of Richards; that Richards, notwithstanding such conveyance, continued to occupy said premises, claiming to own them, until his death, which occurred in 1879; that he died insolvent and intestate, leaving a widow and three sons surviving him, of whom one is administrator of his estate; that in November, 1881, the plaintiff applied for and procured this policy of the defendant; that he paid the premium; that no one representing the estate of 0. Richards had anything to do with it; that plaintiff obtained the policy through defendant’s agent, D. B. Ketcliuin, who resided near the property. No request was made by either party to submit any question of fact to the jury, but each party requested the court to direct a verdict in his favor. The court directed a verdict in favor of plaintiff, holding that it was here the intention to insure under this policy the insurable interest of Henry E. Weed, mortgagee, and that the case therein differs from the one cited, in which the referee found the fact to be otherwise.” A verdict thus directed settles the facts in favor of the party obtaining the verdict. (Sutter v. Vanderveer, 122 N. Y., 653; Dillon v. Cockcroft, 90 id., 619.) We think the verdict is justified by the evidence. It would be perplexing for the ordinary business man to state, in the usual brevity employed in insurance policies, the exact ownership of this property at the date of the policy. But there was no question about the plaintiff’s mortgage; it was given before the title became involved in any intricacy; the plaintiff desired to insure luis own interest; whether the interest subsequent to his own was insured or not was no concern of his; he bought the insurance he wanted; he could not with confidence name the person who owned the property, but he could identify it, and give to the defendant -the means of finding out, by designating it as the “ estate of O. Richai’ds; ” and lie could state exactly and truly whether his own interest, which he desired to insure, was that of owner, mortgagee, trustee, agent or otherwise, and he did so, and thus completely satisfied the limited kind of exactness which the clause first above quoted from the policy required of him. It was competent for him to insure his own interest in the manner which he employed. (Thomas v. Montauk Fire Ins. Co., 43 Hun, 218; Pitney v. Glens Falls Ins. Co., 65 N. Y., 6; Dakin v. Liverpool, etc., Fire Ins. Co., 77 id., 600.) If there was any doubt whether he intended to do so, that doubt arose from the ambiguity of the words “ estate of O. Richards, ” and from the extrinsic evidence which it was proper to resort to in order to enable the court to understand the circumstances under which the policy was given, to the end that it might be properly construed and effect given to the intention of the parties. The verdict settled the doubt in the plaintiff’s favor.

The defendant cites several cases, of which Grosvenor v. Atlantic Fire Insurance Company (17 N. Y., 391), is the leading one, and argues from them that the plaintiff insured the interest of the estate, and not his own, and that as it was held in 116 New York that the estate had no interest because of the deed from Richards to Hage, therefore the plaintiff, as the mere payee of the loss, can take nothing. The cases referred to state the rule where the owner insures his property and directs that the loss shall be payable to his creditor. They do not apply to a case in which the incumbrancer insures his own interest.

The defendant contends that the plaintiff did not state his exact interest truly in stating that he was mortgagee. This contention is based upon the further fact proved in the case that in 1877 the plaintiff obtained a judgment of foreclosure upon his mortgage, but never proceeded to sale. We have already called attention to the peculiar kind of exact statement of his interest which the policy required the plaintiff truly to make. It was to distinguish by his statement exactly and truly which of several interests he had, whether that of owner, mortgagee, trustee, etc., no more. He was a mortgagee with a judgment of foreclosure. Rut the policy said u mortgagee as his interest shall appear,” thus leaving to appear, when the loss should occur, what further was necessary to define its status among the various kinds of mortgage interests. It may be true that the mortgage was technically merged in the judgment, but it is also true that the judgment is simply a step to enable the mortgagee to realize his mortgage interest. It would be gross injustice to defeat an honest claim upon some nice distinction in the refinements of legal nomenclature, wholly irrelevant to the merits of the controversy.

But if we should assume that the plaintiff insured the estate of O. Richards for his own benefit, the case would be free from the difficulty which defeated the plaintiff in the case in 116 New York, and would be assisted by the rules there enumerated. This case is free from the fatal clause of the policy of that case, and free from the adverse finding of the referee. Here the verdict is in plaintiff’s favor; the restriction in the policy presents no difficulty; the evidence is ample to uphold the finding that the expression “ estate of O. Richards” embraces that of the trustee, heirs and administrator; that it was intended to be a comprehensive term, embracing all, who severally or together, were needful to make the statement that they were owners, exact and truthful, and ample to protect the mortgage interest of the plaintiff “ as it should appear.”

As the plaintiff bought the insurance he is entitled to recover upon it. (Pitney v. Glens Falls Ins. Co., 65 N. Y., 6.)

We think the objections respecting notice of loss and proofs of loss, and the offer of the defendant to prove by oral testimony that the plaintiff held the mortgage as trustee for the bank of which he was president, were properly disposed of by the trial court.

The judgment should be affirmed, with costs. .

Learned, P. J., and Mayiiam, J., concui’red.

Judgment affirmed, with costs.


author: Leakned, P. J.:

text:
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. JOHN H. PHELPS, Appellant.

      €rimes — abortion—Penal Gode, sea. 294 — advising a woman to take drugs, where such advice is not followed by any action on her part induced tiiereby.

    The Penal Code (§ 294) provides that, “A person who, with intent thereby to procure the miscarriage of a woman, * * * advises a woman to take any medicine, drug or substance, * ® * is guilty of abortion.”
    Upon the trial of an indictment for such a crime the evidence showed such advice to have been given to the prosecutrix by the defendant; but it further appeared that the woman never went to the doctor who the defendant said might furnish the medicine, and that she never took any medicine, drug or other substance.

      Held, that the conviction could not be sustained.
    That mere advice, not followed by any action on the part of the woman based upon such advice, did not make out the crime of abortion.
    Appeal by the defendant John H. Phelps from a judgment, rendered by the Court of Sessions of St. Lawrence county on the Ith day of February, 1891, convicting him of the crime of abortion.

      V. P. Abbott, for the appellant.

      O. A. Kellogg, for the respondent.
   Leakned, P. J.:

The defendant was indicted and convicted under section 29J of the Penal Code, and he appeals from the judgment and conviction. We pass for the present the first question, viz., as to the sufficiency of the indictment, to consider whether the evidence showed a crime under that section. That section, taking the parts directly applicable, is as follows: “A person who, with intent thereby to procure the miscarriage of a woman * * * advises or causes a woman to take any medicine, drug or substance * * * is guilty of abortion,” etc. We notice that the first part of the subdivision, which speaks of prescribing, supplying or administering, is made applicable whether the woman is pregnant or not. It is a peculiar enactment which thus says that abortion can be committed on a woman who is not pregnant. That provision is not in the latter part of the first subdivision, under which this case comes, nor in the second subdivision.

The testimony of the woman, towards whom the offense is alleged to have been committed, is to the following effect: That about the ‘fifteenth of June she told defendant that a week or ten days had passed beyond the time of her monthly sickness; that he told her she should better have something done; that she told him what she thought should be done; that he told her that she would better see a doctor; that she would better go to Dr; S. first; that she was to go there and see Dr. S., and see if he would not give her something to produce an abortion; that he told her she could get some kind of medicine, and if she used it at the right time she could produce an abortion; that he told her the time was about the third month.

The witness testified to other conversations, at other times, with defendant similar in character. But the court held that these were admissible only on the probabilities of the former testimony, and that defendant could not be convicted for any advice given at other times. The case rests, therefore, on the testimony above given, assuming its truth.

It further appeared that the witness never went to Dr. S. There was no evidence that she ever took any medicine, drug or other substance; the child was duly born at seven months. She testified that defendant was the father, and that he had had connection with her once within six weeks prior to the conversation of June fifteenth.

The defendant denied this conversation and admitted having had connection with her for some months prior to January fifth, but not afterwards. There was a sharp conflict as to the facts, which we need not discuss.

The important question raised in this case is whether the word “ advises ” in the statute does or does not imply that the advice must be followed in order to constitute the crime. All the other words in the section in a similar position include some act other than mere speech. Such are, prescribes, supplies, administers; ” “ uses or causes to be used.” And where the word advises ” is used the connection is, “ advises or causes a woman to take.”

Further, the person who does any of these is declared to be guilty of abortion. Now, abortion is the producing of young before the natural time; though the word must have a qualified meaning in this section, since the crime may be committed, according to the language, in respect to a woman who is not pregnant.

It is true that the word “ advises ” of itself does not imply that the advice is followed. Advice which is rejected is still advice. But we must judge of the meaning here by the context. Section 295 provides for the punishment of the pregnant woman who takes .a medicine or uses an instrument, or submits to its use with intent to produce her miscarriage. And section 294 provides for the punishment of the accessory, including even the offense of giving medicine with such intent to one not pregnant. Probably this part of the section was enacted in view of the injurious effect of such medicine •on a woman whether pregnant or not. But no injury could be done to a pregnant woman or to her child by advice not acted upon. One who counsels another to commit a crime is now a principal. (Penal Code, § 29; People v. Bliven, 112 N. Y., 82) But where the crime is not committed, such a person is not a principal, whatever counsel he may have given.

We have no occasion to consider the subject of attempts to commit a crime (Penal Code, §34) because the defendant was not convicted of an attempt to commit abortion. (Sec. 686.) He was convicted of having committed abortion ; and, therefore, the question is presented whether that crime is committed by advice which is not acted upon.

' The legislature were careful to explain that abortion might be committed on a woman not pregnant. It seems to us that if they intended that abortion could also be committed by mere speech followed by no act, they should have stated this unequivocally. As they have not done this, we are of opinion that the word “ advises ” in this section, like the word “ causes ” which stands in the same connection, implies that the woman advised acted upon the advice and took the medicine, drug or substance. We are of opinion that mere advice to take medicine where no medicine, drug or substance of any kind is taken, and where, therefore, no injury has been done to any one, cannot be the crime of abortion.

The judgment and conviction must be reversed and a new trial granted.

Landon and Mayham, JJ., concurred.

Judgment and conviction reversed and new trial granted.


author: L'andon, J.: Mayiiam, J.

text:
    LEWIS H. BAUMGARTEL, Respondent, v. THE PROVIDENCE WASHINGTON INSURANCE COMPANY, of Providence, R. I., Appellant.

      Insurance — conditions in a policy — declarations of agent — when an estoppel — after a loss subsequent proceedings may be regulated by consent, notwithstanding stipulations in the policy.

    A policy of insurance provided tliat it should be void if other insurance should be made or procured upon the premises, unless it was otherwise provided by agreement indorsed thereon or added thereto. It further provided that no officer, agent or other representative of the company should have power to waive any provision or condition of the policy, unless such waiver be written upon or attached thereto, nor should any privilege or permission affecting the insurance, under the policy, exist or be claimed by the insured, unless so written or attached. The insured procured other insurance, and thereafter informed the agent of the insurance company of the fact, who replied, “All right, I will attend to it,”but he failed to do so.
    In an action upon the policy to recover for a loss thereunder:

      Held, that the declaration of the agent was equivalent to a promise made to the insured to indorse the proper consent upon the policy; that, upon such a promise, the insured had a right to rely, and that the insurer was thereby estopped to refuse to perform said promise. (Mayham, J., dissenting.)
    Where a loss has occurred under a valid policy, subsequent proceedings, e. g., serving proofs of loss, etc., are mere procedure to ascertain the amount due, and this may be regulated by the consent of the parties, notwithstanding specific provisions in that regard contained in the policy.
    Appeal by the defendant, the Providence Washington Insurance Company, from a judgment, entered in the office of the clerk of Fulton county on the 18th day of March, 1890, in favor of the plaintiff for $808.67, after a trial at the Fulton Circuit before the court and a jury; and also from an order, entered in said clerk’s office on the 25th day of Februaiy, 1890, denying the motion of said defendant for a new trial upon the minutes of the court.
    The action was brought to recover the amount of a loss sustained under a policy of insurance which contained, among others, the following provisions: “ This entire policy, unless otherwise provided by agreement- indorsed hereon or added hereto, shall be void if the insured now has or shall hereafter make or procure any other contract of insurance, whether valid or not, on property covered in whole or in part by this policy. * * * This policy is made- and accepted, subject to the foregoing stipulations and conditions, together with such other provisions, agreements or conditions as may be indorsed hereon or added hereto, and no officer, agent or other representative of this company shall have power to waive any provision or condition of this policy, except such as, by the terms of this policy, may be the subject of agreement indorsed hereon or added hereto, and as to such provisions and conditions no officer, agent or representative shall have such power or be deemed or held to have waived such provisions or conditions, unless such waiver, if any, shall be -written upon or attached hereto, nor shall any privilege or permission affecting the insurance, under this policy, exist or be claimed by the insured, unless so written or attached.”

      I. _N. Avies, for the appellant.

      Dudley cé Thorne, for the respondent.
   L'andon, J.:

The plaintiff did obtain other insurance upon this property after the date of the policy issued to him by defendant. Such subsequent insurance made this policy void, if the defendant’s consent thereto was not indorsed upon this policy, unless the defendant waived the indorsement or so acted as to be equitably bound to make the indorsement, or be estopped from taking advantage of the fact that it was not made.

The plaintiff, after obtaining the subsequent insurance, told the defendant’s agent that he had obtained it. The agent, then being upon the street, replied to the plaintiff, “ All right, I will attend to it.” He failed to attend to it before the fire occurred, and now the defendant claims that that declaration of its agent, under the terms of the policy, has no effect. I think it was equivalent to a promise to indorse the propér consent upon the policy, a promise upon which the plaintiff1 had the right to rely, and did rely, and which the defendant cannot now repudiate to its own gain, and the plaintiff’s loss, and which the defendant is estopped to refuse to perform, and could be compelled, specifically, to perform, if necessary; but since no such circuity is necessary, the law will regard as done what the defendant ought to have done, and will declare the rights of the plaintiff accordingly, and hence hold the present policy valid.

Walsh v. Hartford Insurance Company (73 N. Y., 5) is. cited in opposition. But in that case the agent performed all lie promised to perform; the plaintiff’s misfortune consisted in relying upon the supposed legal effect of the full performance of the promise, and he was mistaken in that respect.

It is not quite correct to call the transaction between the plaintiff and defendant’s agent a waiver,, since that could, under the terms of the policy in respect to further insurance, only be made in writing; but the agent had the power to make the necessary indorsement in writing, and consequently he had the power to make the prelimi-. nary oral executory agreement that he would make it; an agreement which must be enforced, or regarded as enforced, in order to prevent a failure of justice. But as it is the duty of the court to declare the legal effect of the transaction upon the rights of the jiarties, and as it practically amounts to the same result whether called one thing or another, no error to the prejudice of the defendant was committed by the court in speaking of it. as a waiver.

Evidence was given tending to show a waiver of proofs of loss within the time fixed by the policj’.

The policy being valid, and a loss having occurred, subsequent proceedings are mere procedure to ascertain the amount due plaintiff upon the policy, and the consent of the parties may regulate it, notwithstanding specific regulations in the policy. The plaintiff acted as defendant consented he might, and defendant cannot now withdraw that consent to plaintiff’s injury.

The judgment should be affirmed, with costs.

Learned, P. J., concurred.

Mayiiam, J.

(dissenting) :

This was an action upon a fire insurance policy for $1,000, divided as follows: $700 stock of clothes, trimmings and manufactured garments, and $300 on sewing machines, tools, fixtures, wearing apparel, beds, bedding, etc., issued by the defendant on the 26th day of September, 1887, for one year. The policy contained several conditions, among which are the following, under which questions arise in this action :

First. A condition prohibiting other insurance without the consent of the defendant indorsed on the policy.

Second. Either party had the right to cancel the policy on giving the other party five days’ notice before the cancellation took effect.

Third. Proof of loss must he given by the insured to the company within sixty days after the fire, unless the time is extended by the company in writing.

Fourth. The policy provided that there can be no waiver of any of its conditions except by written agreement indorsed thereon or added thereto.

On the 12th of April, 1888, the plaintiff procured from another insurance company a policy of insurance for $1,000 on his stock of ■clothes and trimmings, materials and supplies, used in and incident to his business as a merchant tailor, to run for one year from that date. On the 15th day of August, 1888, a fire occurred which damaged or destroyed the property covered by the policy issued by the defendant. On the 15th day of January, 1889, the plaintiff served upon defendant papers purporting to be proofs of loss, and defendant referred them to the local agent, F. E. Norton, and notified plaintiff of that fact, reserving all rights under the policy. On the 28th of January, 1889, this agent of the defendant wrote plaintiff declining to accept them as proof of loss, on the ground that they had not been served within sixty days after the loss, and that they were imperfect and incomplete, and in that communication stated that he held them subject to the plaintiff’s order.

On the conclusion'of the plaintiff’s evidence, and also at the conclusion of the whole evidence in the case, the defendant moved for a dismissal of the complaint upon the ground that the plaintiff had violated the terms of the policy in procuring further insurance without the written consent of the defendant, and in failing to serve proof of loss within the time fixed in the policy; which motion was denied by the court and the case submitted to the jury, who found a verdict for the plaintiff.

The policy contained this clause relating to further insurance: " This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if -the insured now has or shall hereafter make or procure any other contract of insurance, whether valid or not, on property covered in whole or in part by this policy.” It seems to be clearly established in the case that the plaintiff did procure other insurance on this property, or some portion of the same, and that' the consent of the defendant was not indorsed in writing on this policy; this was a valid provision in the policy, and one which the defendant had á right to incorporate in it, and to enforce as a part of the contract; and, unless the company by some valid act has waived this condition, its violation by the plaintiff is such a breach as to prevent a recovery in this action on the policy. (Allen v. The German American Ins. Co., 123 N. Y., 6.) The plaintiff insists that this condition was waived by the oral interview had between the plaintiff and the defendant’s agent. That interview is given by the plaintiff in his testimony as follows: “ I came out of my office and was on my way to the post-office ; I saw Mr. Young (defendant’s agent) at the corner talking to another gentleman; I walked up to him and said, ‘ I have another insurance out, of $1,000 ;’ as I said that, he turned to me slightly and said: ‘All right, I will attend to it.’ ” In examining whether the agent could waive the condition of this policy, we must also look at the condition contained in the last paragraph before its attestation clause, which reads as follows: “ This policy is made and accepted subject to the foregoing stipulations and conditions, together with such other provisions, agreements or conditions as may be indorsed hereon or added hereto, and no officer, agent or other representative of this company shall have power to waive any provisions or conditions in this policy, except such as, by the terms of this policy, may be the subject of agreement indorsed hereon or added hereto, and as to such provisions and conditions no officer, agent or representative shall have such power or be deemed or held to have waived such - provisions or conditions unless such waiver, if any, shall be written upon or attached hereto, nor shall any privilege or permission affecting the insurance under this policy exist, or be claimed by the insured unless so written or attached.” The case at bar is, in many respects, like Pechner v. Phœnix Insurance Company (65 N. Y., 195), and the learned counsel for the plaintiff cites that as an authority in support of his contention here. But it does not appear in that case that the policy contained an express prohibition upon all the officers and agents of the company prohibiting them from making any waiver or consent, nor does that case proceed upon the ground of any disability of the agent to contract or waive the conditions of the policy, but rather upon the ground that as general agent of the company his acts as to the policyholder were deemed to be the acts of the company. So, also, in the case of Parker et al. v. Arctic Fire Insurance Company (59 N. Y., 1), the general agent of the company who issued policies renewed the policy, with knowledge of the increased risk, and his knowledge was deemed that of the company, and having-authority to issue or renew policies, with a knowledge of the risk, he and the insured could waive the condition that a statement of the increased risk must be in writing.’ The rule that the principal is bound by the acts of its agent, within the general scope of his authority, and as to third persons within the apparent scope of his authority, is too elementary to require the citation of authorities. But can that rule be carried to the extent that an agent may bind the principal by his acts, when both the agent and the party with whom he contracts has notice that the agent is expressly prohibited from making the contract, or waiving a condition in it? We think not. While it is true that knowledge of the agent is deemed to be knowledge of the principal, yet that rule does not go to the extent that knowledge of the agent amounts to consent of the principal, especially when the agent is expressly prohibited from giving consent that will bind the principal. In Walsh v. Hartford Fire Insurance Company (73 N. Y., 5), it was held that a principal is only bound by an act of his agent in excess or abuse of his authority, when a third person, believing, and having a right to believe, that the act was within the authority, has acted or refrained from acting in reliance thereon, and would sustain damage if the act of the agent was not considered that of the principal. In this case Andrews, J., in delivering the opinion of the Court of Appeals, uses this language: “The company could itself dispense with the condition of oral consent-as well as by writing (Trustees, etc. v. Brooklyn Fire Ins. Co., 19 N.Y., 305); and Carpenter, unless especially restricted, would have possessed, in this respect, the power of the principal. But the policy contains the provision that no agent of the company shall be deemed to have waived any of the terms or conditions of the policy, unless such waiver is indorsed on the policy in writing. This is a plain limitation upon the power of agents, and can mean nothing less than that agents shall have no power to waive conditions, except in one mode, viz.: By an indorsement on the policy.”

“ The plaintiff is presumed to have known what the contract contained, and the proof tends to the conclusion that this provision was brought to his notice. He saw lit, however, to accept the assurance of the agent, that an entry in the register was sufficient. It is difficult to see how, upon the law of contracts and agency, the plaintiff can recover. The entry in the register was not an indorsement on the policy. The oral contract was an act in excess of the known authority of the agent. The provision was designed to protect the company against collusion and fraud, and the dangers .and uncertainty of oral testimony. The case seems a hard one for the plaintiff, but the court cannot make contracts for parties, nor can they dispense with their provisions.”

Applying the doctrine of this case to the one at bar, it is difficult to see how, upon the evidence as it stands, the plaintiff can recover. If we assume that the condition in this policy was not waived, then its terms have been violated by the plaintiff in a material part, which the court cannot disregard, and which, by the terms of the policy itself, renders it void. If we undertake to find that its provisions have been waived, we are met with the utter inabilit}'- of the agent to effect such waiver, within the very letter of the policy. In any aspect of the case we think, as the evidence stood, the learned trial court erred in not dismissing the complaint on the motion of the defendant. This conclusion makes it unnecessary for us to examine in detail the other questions raised by the defendant as to the .sufficiency of the proof of loss. But as the dealings in that regard were with the company directly, and by them referred to -their .agent, it may be doubted whether, by not writing them at once, or -calling attention to the claimed defect, they did not waive the question of delay in the presentation of such proofs. But as a deterim ination of that question is rendered unnecessary by reason of the view we have taken of the other questions, we refrain from determining the question raised as to proof of loss. The judgment, I think, must be reversed upon the other question.

Judgment affirmed, with costs.


author: Mayham, J.:

text:
    LOUISA FREEMAN, as Administratrix of GEORGE N. FREEMAN, Deceased, Appellant, v. THE GLENS FALLS PAPER MILL COMPANY, Respondent.

      Negligence — -when a question for the jury — effect of a failure to supply doors in elevator shafts — Latos of 1887, chap. 462 — a risk relating to the safety of the place of employment is that of the master. '

    'In an action brought to recover the damages resulting from the death of a workman caused, as alleged, by the negligence of his employer, it appeared that the deceased was working at the bottom of an elevator shaft in a pulp mill run by very heavy machinery; that the elevator shaft had not the self-closing doors required by chapter 462, Laws of 1887; that the degeased put his head into the elevator shaft, : on the lower floor of the mill, in an effort to load a heavy grindstone upon the elevator platform; that an oil barrel, which had been standing in the upper room of the mill, was at that moment upset by the jarring of the machinery, rolled to the shaft, fell and killed the deceased.

      Held, that a nonsuit should not have been granted.
    That proof of the failure to supply the doors required by statute was prima facie evidence of negligence upon the part of the master.
    That the questions of contributory negligence raised by the defendant, as to whether the workman might have, and was bound to, put in place a certain bar which, as alleged, would have prevented the barrel from rolling into the shaft, and as to whether he was justified in putting his head into the shaft, being disputed questions, should have been submitted to the jury.
    That where a risk relates to the safety of the place of employment, and not to the dangerous character of the employment itself, it is the risk of the master, and not that of the servant.
    That as the barrel standing upon the floor involved, as the result showed, a risk not evident or palpable, the question whether the servant had knowledge of the possible danger was one for the jury.
    That the act of leaving the barrel in the position it occupied, by whomsoever done, was one which affected the safety of the place of employment, and was, therefore, in a legal view, the act of the master, and that if such act was negligence it was the negligence of the master.
    Appeal by tlie plaintiff Louisa Freeman, as administratrix of .George N. Freeman, deceased, from a judgment, entered in tlie office of tlie clerk of Saratoga county on tlie 3d day of June, 1890, in favor of the defendant for costs, and dismissing tlie complaint after a. trial at the Saratoga Circuit before the court and a jury; and also from an order made at said circuit on the 1st day of May, .1890, directing a nonsuit.

      The action was prosecuted for the alleged negligence of the defendant in the construction and operation of its pulp mill, by reason of which the plaintiff’s intestate was killed while engaged as an employee of the defendant in repairing the mill, where he had been engaged in similar service for four or five weeks immediately prior to the accident by which he was killed.
    The defendant’s pulp mill stood upon a steep bank and consisted of three stories, the floor of the upper story of which was on a level with the street, and communicated with the two lower stories of the building by means of an elevator. The elevator passed up and down through a shaft or well and was propelled by machinery, which was put in motion by means of shifting a belt from a loose to a fast pulley.
    At the time of the accident there was no trap door to close the well or shaft in the upper floor throngh which the elevator passed 'in ascending or descending. The well or shaft was closed up on three sides on the upper floor and on the other side were two bars, • the upper of which was fastened to the posts of the well and the other was movable back and forward through clasps attached to the posts. This movable bar was, when in position, about twenty-four inches above the level of the floor at one end, and about twenty-five .and one-half inches at the other. There was some evidence tending to prove that it was the duty of persons passing through these bars from the elevator to the floor, or from the floor to the elevator, to close this lower bar on passing, and that a short time before the accident plaintiff’s intestate, in company with other workmen, passed from the upper floor on to the elevator, and that plaintiff’s intestate, who was the last to pass through, neglected or omitted to close the well by putting up this bar, and that it was closed by another employee of defendant. The evidence also tended to show that the barrel, by the falling of which the accident was produced, would roll under the bar if it was in position. At the time of the accident the intestate, with others, was engaged in loading on the elevator at the lower floor of the mill a heavy grindstone, and while adjusting a roller under the stone boat on which the grindstone was b.eing moved upon the elevator, his head came within the line of the well or shaft, and while in that position an empty oil barrel, which had been left on the upper floor, was put in motion by the vibration of the mill, caused by the working of the powerful machinery used in grinding and pulverizing wood, and rolled from its position, upon tlie floor, which slightly inclined towards the well, into the open well or shaft and fell upon intestate’s head, causing his death, to recover the damages resulting from which this action was brought. On the trial the plaintiff, on motion of the defendant, was nonsuited, and from the judgment entered upon the nonsuit the plaintiff appeals.

      T. F. Hamilton, for the appellant.

      JSÍ. O. Moalc, for the respondent.
   Mayham, J.:

Three questions are raised by this appeal:

First. "Was there evidence on the part of the plaintiff sufficient to authorize the jury to find that the defendant was guilty of negligence in not furnishing a reasonably safe place for the intestate, who was its servant, to perform its work ?

Second. Does the evidence disclose that the intestate was himself guilty of contributory negligence, or was there such a failure of proof of freedom from contributory negligence as to justify the court, as matter of law, in taking that question from the jury %

Third. Did the plaintiff’s intestate, as matter of law, take the risk of his employment so as to exonerate the defendant from liability ?

As to the first inquiry propounded above, it cannot be denied that the law imposes the dirty upon, the employer in a business of this character to furnish a reasonably safe place, considering the nature of the employment, for the performance of the work by the servant. Upon this point the appellant insists that the fact that the defendant omitted to place automatic doors or traps over the elevator well or shaft on each floor of the building in which the elevator was used was in’itself negligence, and upon this point calls attention to the provisions of chapter 462 of the Laws of 1887. By section 8 of that chapter it is provided that, “ It shall be the duty of the owner, agent or lessee * * * to provide, or cause to be provided, such proper trap or automatic" doors so fastened in or at all elevator-ways as to form a substantial surface when closed, and so constructed as to open and close by action of the elevator in its passage either ascending or descending.” Section 20 of this •chapter makes a neglect or refusal to comply with this provision a misdemeanor and-prescribes punishment for the same. Itis apparent that this statute imputes legal negligence to a party coming within its provisions for failing to comply with its requirements and that a party injured in consequence of such negligence, unless shown to have waived its provisions, or to have contributed to the injury by his own negligence, would have a right of action against the party operating such elevator in violation of this provision of the statute.. In Jetter v. The New York and Harlem Railroad Company (2 Keyes, 162) the rule upon this subject is stated to be axiomatic: “ That every person, while violating an express statute, is a wrongdoer, and, as such, is, ex necessita-'e, negligent in the eye of the law, and that every innocent party whose person is injured hy the act which constitutes the violation of the statute is entitled to a civil remedy for such injury, notwithstanding any redress the public may also have.” It is manifest, therefore, that, if this opening in the floor had been closed automatically by a trap door on a plane-with the upper floor of the well where the elevator passed down the shaft, that this injury could not have happened in the manner in which it did, and that the accident is directly traceable to the defendant’s failure to comply with this statute. In McRickard v. Flint (114 N. Y., 222) it was held that where a party was required, by chapter 547 of the Laws of 1874, to provide a trap door at each floor at the openings for the elevator, and failed to comply with the statute, and a person lawfully upon the premises was injured by falling into the shaft, it was primafacie negligence for which the owner was liable. ( White, by Guardian, v. Witteman Lithographic Co., 58 Hun, 381.) But this would not alone make the defendant liable; the plaintiff was required to go farther and show that the plaintiff’s intestate was himself free from contributory negligence on his part, and this brings us to the consideration of the second inquiry propounded. It is the settled law that where a party seeks to recover damages occasioned by the negligence of the deceased, plaintiff cannot recover without establishing on the trial that he himself was guilty of no negligence which, in any degree, contributed to the injury complained of. This doctrine is too elementary to require the citation of authorities. The difficulty and embarrassment in this class of cases arises out of the application of the rule to each particular case. If this case clearly and unmistakably shows that the deceased was free from contributory negligence, then the law upon this branch of the case pronounces in his favor. But if the question arises upon a state of facts, conflicting in themselves or capable of more than one rational construction, then it becomes a question of fact for the jury, and in such case a failure by the trial judge to submit it to the jury would be error for which a new trial should be granted.

It can hardly be claimed in this case that the question of contributory negligence on the part of intestate was so clear as to be properly disposed of as a question of law by the trial judge. On the part of the defendant it is insisted that the failure of the plaintiff’s intestate to close the bar after going upon the elevator to go down, a short time before the accident, was such a neglect as to charge him with contributory negligence, but this is attempted to be answered by the plaintiff by showing that the closing of this bar would not have prevented this barrel from rolling into the well, and that it was closed by a fellow-servant, and that the injury was in no way influenced by the bar being left open.

It is also urged, on the part of the defendant, that it was negligence ■for the deceased to allow his head to get in range of the side of the well or shaft, as by so doing he exposed himself to be hit by any falling substance, to which the plaintiff replies that deceased was giving-attention to his work and could not be expected to anticipate danger from defendant’s allowing empty barrels to roll over the floor of the building and thence into the well and upon intestate. These questions being in the case, and, as we think, bearing in a greater or less degree upon the disputed fact of the plaintiff’s intestate’s contributory negligence or freedom from the same, they were proper subjects for the consideration of the jury upon that question. (Kelly v. N. Y. C. and H. R. R. R. Co., 9 N. Y. Supp., 90; Pitcher v. Lake Shore and M. S. Ry. Co., 8 id., 389.) If, therefore, this was a proper case for the jury, it was error for the learned judge to take it from them, unless, as it is insisted by the defendant, the plaintiff’s intestate in entering upon this employment assumed all the risk incident to the employment, without regard to the question as to whether or not the master had provided a reasonably safe place for the performance of the work. This brings us to the consideration of the third question suggested above. Did the deceased, as matter of law assume the risk of the injury he suffered by reason of accepting the employment in which he was engaged at the time of the accident ? The general rule is well settled, that where the master performs his whole duty to his servant in furnishing a reasonably safe place and suitable and reason ably safe tools, implements and appliances for the performance of the work, the servant takes all the risk incident to the performance of the sendee he undertakes to perform. The defendant insists that the plaintiff’s intestate having voluntarily continued his employment in the mill, with the knowledge of the fact that there were no automatic doors to the elevator, that all known and obvious dangers arising from the absence of such doors were assumed by him and that the plaintiff cannot for that reason recover.

The case does not in express terms show that the deceased had notice of or knew that automatic doors had not been placed in position to close the well at each floor, after the elevator passed, but I think, from the frequency with which he passed up and down on the elevator, it is fair to presume that he was cognizant of that fact or, at least, had such ample opportunity to see the defect that he is chargeable with knowledge in the absence of proof to the contrary. There is no proof that the deceased liad knowledge that loose barrels were left on the upper or first floor in such a position that the vibration of the mill from the working of the heavy machinery might be set in motion, and thus precipitated through the elevator hole in the upper floor, and down upon the deceased, while engaged in his legitimate duties at the bottom of the well or on the lower floor of the mill.

That condition of insecurity does not appear to have been known to him, nor could it be discovered by him while engaged in the heavy and difficult task of loading the grindstone, and it bore expressly upon the question of the safety of the position furnished by the master for the performance of the work by the servant.

I do not see, with that condition existing, how it can be said, as matter of law, that the master in this case furnished a reasonably safe place for his employee to work. What was a reasonably safe place, it seems to us under the circumstances of this case, was a question of fact for the jury; and whether this was such a place should, it seems to us, have been submitted under the evidence as a question of fact for their consideration and determination.

We have been referred by the learned counsel for the respondent to a great number of eases upon this branch of the case, but an examination of them will show that in all, or nearly all, of them the servant had knowledge of the dangerous conditions to which he was exposed which produced the injury. In Fitzgerald v. The New York and Hudson River Railroad Company (36 N. Y. St. Rep., 755), the deceased was hit by a bridge while standing on a freight car in motion. But it appeared that he had had his attention' called to the bridge on previous occasions, and it was held that he could not recover, chiefly on the ground that he knew of the danger, and forgetting or not heeding it at the time was negligence in him.

In Schwartz v. Cornell (36 N. Y. St. Rep., 616) the plaintiff’s intestate, who was an iron-worker and builder, while at work on a roof fell through the hole in the roof, which was not left there by any negligence of the defendant, the existence of which was known to and plainly perceivable by the intestate. In an action by his .administrator he was nonsuited and the nonsuit was sustained on appeal, and the court uses this language : “We do hot see how the defendant -can be held liable in this case, without abolishing the well-established rule that the servant by accepting the employment assumes the risk and perils incident thereto, so far as they are apparent and obvious.”

It will be observed in this case everything ivas open and obvious to the employee; there was no barrel out of sight in another room not seen by or known to the servant which jeopardized his life. If in this case the deceased, with a full knowledge that the elevatoiwell was open and unguarded, had fallen through and been injured, as in the case put by the learned trial judge, it is quite likely he would be without remedy, as in that case he would be held to have known just the risk he ran, and have contracted in reference to that risk. But this is not that case. Here, in addition to the fact that the well was not closed by automatic doors, which may be assumed to have been within the knowledge of the ■deceased, was another concurring, if not an immediate, cause of the accident, which is not shown to have been brought within the knowledge of the deceased. The barrel which fell upon the deceased was left in a position which affected the safety of the place furnislied by the defendant for the performance of the work in which the deceased was engaged, of which the plaintiff’s intestate, so far as the evidence discloses, had no knowledge, and from which the jury might have found the defendant guilty of negligence contributory to the injury for which the intestate was in no way responsible.

If this risk related to the safety of the place of the employment, and not to the dangerous character of the employment itself, then it was the risk of the master, and not that of the servant; for while the deceased took upon himself the risk of the dangerous character of the service, the employer assumed the risk and duty of furnishing a reasonably safe place for the performance of that service. (Cullen v. Norton, 52 Hun, 11; Pantzar v. The Tilly Foster Iron Manufacturing Co., 99 N. Y., 368.) Wo think, therefore, under the circumstances of this case, the question whether the deceased had knowledge of the danger caused by the defendant’s allowing a barrel to stand upon the mill floor in such a manner as to be rolled into the well hole by the jarring of the mill, and thus rendering it unsafe to work upon the platform of the elevator when on the lower floor, was one for the jury.

But it is insisted that even if the leaving of the barrel upon the upper floor in such a manner as that it fell upon the plaintiff’s intestate and thus produced the injury was an act of negligence» still it was the act of a fellow-servant and the defendant is not liable. In this contention we cannot agree with the learned counsel for the respondent. If placing a barrel on the top floor, under the circumstances of this case, was negligence, it was negligence affecting the safety of the place where the work was being done, and not the character of the employment, for which alone the master is responsible. In Cullen v. Norton (supra), Landon, J., in discussing this question, says: “ One of the duties of the master was to furnish his servant a safe and proper place, in which to prosecute his work. This duty continued to be the master’s, no matter to what subordinate servant he delegated its performance. The defendant’s foreman was intrusted with its performance, and hence stood in place of, and represented, the master in assigning the servant to his fatal place of labor. If it was negligence to assign him to this place, the negligence was the master’s.” It is true that this ease was reversed in the Court of Appeals (36 N. Y., St. Rep., 359), on the ground that the principle there stated did not apply to that case, but the doctrine was not overruled. For the reason above stated, we think the case was one for 'the jury, and the refusal of the learned trial judge to submit it to them was error, for which the judgment should be reversed.

Learned, P. J., concurred; Landon, J., concurred in result.

Judgment reversed, new trial granted, costs to abide the event.,


text:
    THE CONSUMERS’ GAS AND ELECTRIC-LIGHT COMPANY, Appellant, v. THE CONGRESS SPRING COMPANY and Others, Respondents.

      Blectric-light companies — injunction to prevent the cutting down of a pole — a license by milage trustees to a company cannot be attached collaterally, because fraudulently obtained, — the giviwj of the license is an exercise of the sovereign power — if special injury is charged the facts must be alleged.

    The complaint in an action alleged the incorporation of a company to supply electric light to a village; that the village trustees duly granted to the company the right to set poles along the streets; that it, by consent, erected a pole at a point opposite the property of the defendant, the Congress Spring Company, which the latter subsequently cut down. The plaintiff prayed for an injunction and damages. The answer, among other things, alleged that the right granted by said trustees was procured through fraud.
    Upon the hearing had upon a demurrer interposed to this defense:

      Held, that the demurrer should be sustained.
    That the ordinance of the trustees was a legislative act, and that public policy forbade that such acts should be impeached collaterally.
    That such a license is derived from the sovereign power, and where it simply enlarges the public right in the street, and does not invade any right of an individual, the latter cannot attack it collaterally.
    That if, because of peculiar circumstances, the property which the public have no right to invade is injured the owner thereof might have a remedy, but in such case he must show by his complaint the special circumstances entitling him thereto.
    Appeal by the plaintiff, the Consumers’ Gas and Electrie-ligbt Company, from a judgment, entered in the office of the clei'k of Saratoga county on the 30th day of January, 1891, overruling its demurrer to the defendants’ answer witli notice of an intention to-bring up for review upon such appeal an order, entered in said clerk’s office on the 22d day of December, 1S90, upon which said judgment was founded.
    The complaint alleged the incorporation of plaintiff for the purpose of supplying electric light in the village of Saratoga Springs, for public and private uses; that the hoard of trustees of the village, prior to the acts complained of, duly granted to the plaintiff the right and franchise to set its poles and string its wires in and along the streets of the village, the said board being clothed with all the authority of commissioners of highways over the said streets that the defendant, the Congress Spring Company, consented that the plaintiff erect a pole on Putnam street, at the place described opposite and in front of its premises, upon which to string its wires, for the purpose of supplying light, as aforesaid, at a point on said street; that plaintiff thereafter erected a pole at such place and strung wires thereon for such purpose as a part of its system of lighting, and that the defendants cut down the pole and threatened to cut. down any other pole which plaintiff may erect at the said point, and plaintiff demanded judgment awarding an injunction and damages.
    The defendants by their answer, among other things, set up this separate defense:
    “ It alleges upon information and belief that any consent, grant, right or franchise by the Board of Trustees of said village to plaintiff' to set poles or string wires in and along the streets or alleys of said village, if any was granted or conferred as alleged, was-unauthorized and illegal and was obtained from said Board of Trustees and the individuals, or some of them composing said Board of Trustees, through fraud and by means of fraudulent and illegal inducements and wrongfully; and the same was not a legal or valid consent, grant, right or franchise, and did not authorize any poles- or wires to be placed in said streets or allej^s, and any person assuming to act in relation to the premises thereunder, by placing poles or wires in or through Putnam street, wrongfully entered upon and trespassed upon defendant’s said property and was a wrong-doer,, violating defendant’s rights in its property aforesaid.”
    The demurrer was interposed upon the ground that such defense-was insufficient in law upon the face thereof. The trial court overruled tlie demurrer, and from tlie order and judgment tliereon this appeal is taken.
    IF, P. Butler, for the appellant.

      B. E. Wing, for the respondents.
   Landon, J.:

We think the demurrer well taken. The answer does not deny that the board of trustees of the village granted plaintiff consent to erect its poles and string its wires, or allege any fact tending to invalidate such grant of consent, except the allegation that the same was obtained “ through fraud and by means of fraudulent and illegal inducements, and wrongfully.” Passing the question whether this is a sufficient allegation of fact, public policy forbids that the acts of municipal bodies, in passing ordinances or administrative regulations, should be impeached collaterally. (Porter v. Purdy, 29 N. Y., 106.)

The ordinance of the board of trustees is a legislative act. (Duryee v. Mayor, 96 N. Y., 477; Mayor v. Third Avenue R. R. Co., 16 N. Y. St. Rep., 122.) The authority to pass it exists in pursuance of the delegation by the legislature to the board of trustees of the village of such local legislative powers as may be suitable to their proper organization, for which the legislature is required to provide (Const., art. 8, § 9), and is, therefore, an exercise of the sovereign power of the State: Whatever powers may exist in the judiciary to vacate such action for fraud and corruption in its exercise, it would, as said by Chief Justice Marshall in Fletcher v. Peck (6 Cranch, 87), “ be indecent in the extreme, upon a private action between two individuals, to enter into an inquiry respecting the corruption of tlie sovereign power of a State.” (See Baird v. Mayor, 96 N. Y., 567, 581.) TRe validity of the grant of the privilege cannot thus be assailed, and this part of the answer is invalid as a defense. Every other part of the answer demurred to is so dependent upon this part that it falls with it.

The defendants contend that because the license given by the trustees operates to permit the plaintiff to invade their lands, and thus prejudice their property rights, the defendants should be permitted to allege anything which avoids the license. The contention is based upon a false assumption. The license in question comes from the sovereign power. Sovereign power is limited by constitutional restraints, and the defendants’ protection against the invasion by the sovereign of private rights exists only in such restraints. Private property shall not be taken for public use without compensation. Put the property in question has been taken for public use, and, presumably, compensation was long since made or waived. The legislature may authorize the use of the streets for other purposes than travel, and electric lighting is one of such purposes. (Electric Construction Company v. Heffernan, 34 N. Y. St. Rep., 436.) It thus enlarges the usefulness of the public right; it does not invade any right reserved by the defendant. When the street was first acquired for public use this particular right was acquired, though long unexercised. The license given by the trustees is thus within the public right, and this is merely the first time that it has thus been exercised. Of course, if the exercise of this right, owing to peculiar and special circumstances, should injuriously affect the lot of the defendants, and thus injure property which the public have no right to invade, or should be solely for private purposes, defendants might have a right to protection or compensation, which the present pleadings do not present.

The judgment and order should be reversed, with costs, and the demurrer sustained, with costs.

Learned, P. L, and .TVIayham, J., concurred.

Judgment reversed and plaintiff’s demurrer allowed and judgment for plaintiff for costs below and of appeal.


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    RACHEL A. WOOLSEY, Respondent, v. THE TRUSTEES OF THE VILLAGE OF ELLENVILLE, Appellants.

      Complaint — nation by a, married woman for personal injuries — competency of proof as to her separate business — presumption that 'the damages belong to her husband.

    In an action brought by a married woman against a village to recover the damages resulting from an injury alleged to have been sustained by her in falling upon an icy sidewalk, the complaint contained no allegations that she carried on a separate business to her own profit, nor did it allege special damages bjr reason of such business.

      Held, that it was error to allow her to prove (hat she had a separate business, and that it was injured because of the accident.

      The law presumes that damages, resulting from an injury which diminishes the capacity of a married woman to earn money, belong to her husband, and if the facts be otherwise, they must be alleged specifically.
    Appeal by the defendants, the Trustees of the Village of Ellen-ville, from a judgment, entered in the office of .the clerk of the county of Ulster on the 6th day of November, 1890, in favor of the plaintiff, after a trial at the Ulster Circuit before the court and a jury, at which a verdict was rendered in favor of the plaintiff for $5,000; and also from an order made at said circuit on the 13th day of October, 1890, denying the motion of said defendants to set aside the verdict and for a new trial upon the minutes of the court.
    The action was prosecuted for an alleged injury to the plaintiff arising from his falling upon a sidewalk in the village of Ellenville, which the plaintiff claims was negligently permitted to be out of repair by the defendants, by reason of which the plaintiff was injured. The jury rendered a verdict in favor of the plaintiff for $5,000, on which judgment was entered and the defendants appealed.

      A. F. Gleanoater, for the appellant.

      John F. Van Ftten, for the respondent.
   Mayham, J.:

The appellant insists that the learned trial judge erred in refusing to dismiss the complaint on motion of the defendant at the close of the- plaintiff’s evidence at the trial, on the ground that plaintiff failed to prove facts sufficient to charge the defendant with negligence or constitute a cause of action against it.

This presents the question whether from all the evidence there was sufficient to authorize the jury, upon the most favorable construction for the plaintiff of which it was capable, to find for her. In the very careful analysis of the evidence by the learned judge, in deciding this motion, it seems clear that he disclosed a state of facts from the evidence which the jury might adopt in arriving •at a verdict for the plaintiff. The theory of the plaintiff was that the defendant, hy the construction of a surface drain or ditch on the southerly side of Cross street, had conducted the water down to the sidewalk on the northerly side of Canal street, and without furnish. lug a sufficient way of escape, under the sidewalk, liad caused or permitted the same to flow upon the flagging of that walk, and thence down the same in a south-westerly direction to the point where the accident is alleged to have occurred, and forming a coating of ice on which the plaintiff fell and was injured; and the judge in discussing and deciding the motion said: “ If the plaintiff can recover in this case, it must be upon the ground that the village caused the water, which it collected in this ditch, to be discharged on this sidewalk not providing a proper outlet for it; that the sidewalk was so fixed that the water could not escape from it.” And he held, and we think properly, that it was a question for the jury to determine whether the ice was produced bj7 that act or by some agency for which the village would not be responsible.

But it is insisted by the defendant that, within the doctrine laid down by the Court of Appeals in Harrington v. City of Buffalo (121 N. Y., 147), the complaint should have been dismissed for want of proof of notice of the defective walk to the defendant, and a sufficient time, after notice, to remedy the defect. But this case does not seem to have established any new rule upon that subject. If the right to recover depended solely upon the question whether or not the defendant, by its affirmative act, in collecting and giving-direction to the surface water through this ditch was guilty of negligence, then knowledge of that defect would be impratable to the defendant from its own act, but the court held that it was a question for the jury whether, under the evidence, the defendant had con .structive notice, by lapse of time, after the formation of the ice and before the accident, and we think it Avas a proper question for them.

The case discloses that the plaintiff at the time of the injury and trial was a married woman having a living husband. The plaintiff Avas permitted to prove, under the objection of the defendant, that she Avas carrying on a separate business on her own account, and that the profits of the business Avere liers. There is-no allegation in the complaint that the plaintiff had a separate business carried on, on her own account, or any allegation of special damages on account of her separate business, and Ave think the admis.sion of this evidence, under the defendants’ objection and exception, Avas error. In the case of Uransky v. The Dry Dock and Battery Railroad Company (118 N. Y., 304), this direct question Avas raised, and, as it appears to us, Avas definitely settled by the Second Division of the Court of Appeals. In that case, as in this, the action was by a married woman. In that case, as in this, the complaint contained no allegation of special damage, or that the plaintiff was carrying on a separate business; and Parker, J., in delivering the opinion of the court, uses this language : £>' Presumptively, damages for negligently diminishing the earning capacity of a married woman belong to her husband; and, when she seeks to recover such damages, the complaint must contain an allegation that, for some reason, she is entitled to the fruits of her own labor, and, if she seeks to recover damages for an injury to her business, she must allege that she was engaged in business on her own .account and by reason of the injury was injured therein as specifically set forth. “ No such allegations are contained in the complaint in this action. Nevertheless, the plaintiff was permitted to prove, against the objection of the defendant, that the evidence was irrelevant- and immaterial, and called for special damages not alleged in the complaint ; that she was engaged in the dressmaking business; sold fancy goods and dry goods; was accustomed to make from sixteen to twenty dollars per week; and that because of her injuries was prevented from working for two months; this was error.”

It seems quite impossible, upon principle, to distinguish that case, from the one at bar. It is true that the learned judge used this language : “ The evidence is clearly admissible as descriptive of her condition, and for no other purpose.” But 1 cannot see that that in any way relieves it from error of its admission, especially as the learned judge,’ in denying the motion to strike out this evidence, said: 11 Nothing is better settled than the fact that a, married woman can carry on her own business separately from her husband. I overrule the objection.”

We think the objection to this evidence was well taken, as was the exception to its admission; and, as the court on review cannot see that it did not affect injuriously the rights of the defendant, we cannot disregard the error.

As this error makes a new trial necessary, an examination of the other exceptions of the defendant is not profitable.

The judgment is reversed and a new trial ordered, costs to abide-the event.

Learned, P. J., concurred; Landon, J., dissented.

Judgment reversed, new trial granted, costs to abide event.