author: Freedman, J.

text:
    In the matter of the Application of ANNIE T. GLEESE.

      Decided May 26, 1884.

      Board of Education New Yorh Oity—Ward Trustees—Rights over teachers.

    A.teacher in a public school in New York city cannot be removed by the trustees of the ward in which such school is situated, except by the approval in writing of a majority of the inspectors of the district, and the approval, on appeal, of the Board of Education; and a transfer involving loss of rank and pay is a removal from the position occupied, within the meaning of the statute.
    A teacher so attempted to be removed has a remedy by mandamus to compel the principal of the school and the trustees of the ward, respectively, the former to place such teacher’s name upon the monthly pay-rolls, and the latter to certify said pay-rolls to the inspectors of the district.
    Before Freedman, J.
    Application of Annie T. Gleese for a writ of peremptory mandamus against Henry C. Litchfield, principal of the male department of Grammar School No. 13, in the city of New York, and Patrick H. Horgan, George H. Beyer, Daniel J. Moore, Hiram Merritt, and Henry Maurer, school trustees of the Seventeenth Ward of the city of New York.
    The facts appear in the opinion.

      Edward M. Shephard, for relator.

      James M. Thompson, for respondents.
   Freedman, J.

This is an application for a writ of peremptory mandamus commanding and requiring Henry 0. Litchfield, as principal of the male department of Grammar School No. 13, in the city of New York, to prepare monthly pay-rolls for the months of February and March, 1884, in such a way as to describe therein the relator as fourth assistant teacher in the primary department of Grammar School No. 13, and entitled as such to a salary at the annual rate of $690, and at the monthly rate of $57.51, and commanding and requiring the other respondents, as trustees of the Seventeenth Ward, in which the said school is situated, or a majority of them, to certify the said, monthly pay-rolls, and to deliver the same, when certified, to the inspectors of the common schools for the inspection district including the Seventeenth Ward.

Between January, 1866, and December, 1873, the relator had held different positions as assistant teacher of a lower grade than fourth assistant, in the primary department of said school. In December, 1873, she was duly appointed by the trustees of the Seventeenth Ward to the position of fourth assistant, and, except for about three terms during which she held the position of third assistant, she con’tinued to hold the position of fourth assistant until February 1, 1884. She also continued to hold the last named position since the day last referred to, unless the respondents have established that she was legally removed therefrom.

On the 10th of January, 1884, the school trustees of the Seventeenth Ward, at a meeting held by them, passed the following resolution, viz:

“ Resolved, That for insubordination and disrespect to a trustee, Annie T. Grleese, fourth assistant P. D. No. 13, be transferred to the position of tenth assistant in said school, to take effect February 1,1884.”

The resolution was never approved, in writing or otherwise, by a majority of the inspectors of the district or by any of the said inspectors. The insubordination and disrespect imputed to the relator by the resolution were alleged to have been shown by her principally to Patrick H. Horgan, one of the trustees, in a conversation between her and the trustees Horgan and Moore, in the course of which she was charged with having corporally punished a child in the class taught by her.

From the action of the board of trustees, culminating in the resolution referred to, the relator, on the 19th of January, 1884, appealed to the Board of Education of the city of New York, whereupon, on the 23d of January, 1884, the trustees caused a formal charge to be made to the Board of Education against the relator, for an alleged violation by her of the by-laws of the last mentioned board in relation to the infliction of corporal punishment.

The charge was duly investigated by the Board of Education, and, the trustees failing to substantiate it by proof, the complaint against the relator was, on the 6th of February, 1884, dismissed.

The Board of Education then took up the appeal of the relator from the action of the trustees, transferring her to the position of tenth assistant, and, after an examination of the facts relating to the subject matter thereof, sustained the appeal, and by resolution of March 26, 1884, directed the trustees to reinstate her in the position of fourth assistant, and that such reinstatement should be dated from February 1, 1884.

This resolution was duly transmitted to the trustees, but they refused, and still refuse, with one exception, to comply with it. They did, however, of their own motion, and as early as February 29, 1884, order a reinstatement by the passage of the following resolution, viz:

“ Resolved,-That Annie T. G-leese be reinstated to the position of fourth assistant of P. D. No. 13, from which she was removed at a meeting held January 10, 1884, to take effect May 1, 1884.”

The proceeding, now taken by the relator for a mandamus, is taken with the sanction and approval of the Board of Education, whose authority in the premises, the trustees, with one exception, refuse to recognise.

Upon the facts as they are made to appear, and as to which there is no dispute, it can hardly be doubted that the trustees undertook to punish the relator, for having inflicted, as they claimed, corporal punishment upon a child. If that offense had been committed, the commission of it would have been a violation of a by-law of the Board of Education (Manual of the Board of Education, edition of 1884, § 44, p. 120). Upon the report of such a violation the Board of Education conducts or directs the investigation, and if the charge be sustained, itself directs the punishment (§ 44, subd. 7).

At the outset of this case, therefore, we have the relator charged with a violation of a by-law of the Board of Education. We have the relator’s innocence of the charge conclusively established by the Board of Education, the only tribunal which could try the charge. And we then have the ward trustees punishing the relator, for an offense of which she was conclusively shown to be innocent, and for which, even if she had been guilty, the ward trustees had no power to punish her.

The respondents, with a single exception, which will be hereinafter referred to, and to which for that reason and for the sake of convenience no further reference will be made at present, contend, however, that the board of trustees of the ward has by statute the sole and exclusive right of appointment of assistant teachers ; that the relator was and is an employee of the said board; that the said board has full and unlimited power to transfer assistant teachers from one position to another, and had full and unlimited power to transfer the relator from the position of fourth assistant to the position of tenth assistant; and that the Board of Education could not and cannot, by claiming and assuming appellate jurisdiction in such a matter, confer upon itself such jurisdiction.

This contention does not affect the relator alone, but is of the gravest importance to the whole public school system, and especially to the 3,000 teachers employed in the schools of this city, and its determination will be the first judicial determination of the question whether or not the law affords, as it has been so far supposed to afford, protection in position and salary to every teacher who faithfully and regularly performs his or her duties. In view of this great importance of the controversy, I gave to the points involved the most careful consideration, and the conclusions reached will necessarily have to be stated somewhat at length.

At the outset valuable assistance will be derived by a clear perception of the relative powers of the Board of Education and of the board of trustees of a ward of the city of New York.

In Donovan v. Board of Education (44 Super. Ct. [12 J. & Sp.], 53), I gave an account of the statutes of this state relating to public education in the city of New York, from the passage of the act of 1805 to the year 1873, and of the history of the Board of Education of the said city, and showed that the said board is a governmental agency created by the sovereign power of the state for the discharge of such powers and duties as were conferred upon it by law, and that in creating it the policy of the state was to instruct and enlighten equally the minds of all children needing education, irrespective of the nationality, religion or pecuniary condition of their parents, and by these means to gradually transform the heterogeneous and uncongenial element of the cosmopolitan city of New York into an intelligent, virtuous, harmonious and happy people.

Since that decision, chapter-410 of the Laws of 1882, commonly known as the New York City Consolidation Act of 1882, was passed, by which all the special and local laws affecting public interests in the city of New -York were consolidated in one act. Such consolidation embraced, among other things, a consolidation of all the statutes relating to public education in the city of New York, and in so far as in such consolidation, phraseology is employed which is more comprehensive than the language of a statute superceded thereby, it operates as a new and direct grant of power. It is, therefore, not necessary to refer to the preceding statutes.

Now, section 1022 of the consolidation act provides that the Board of Education shall “ have full control of the public schools and the public school system of the city, subject only to the general statutes of the state upon education.” The same ample grant of power was repeated in section 1026. The same language is first found in section 4 of chapter 112 of Laws 1873.

In addition to this general grant of power the Board of Education is further specially authorized, among other things, and it is made its duty :

1. To appoint the city superintendent and the assistant superintendents of schools (§ 1027, subd. 2).

2. To appoint the principals and vice principals of schools upon the written nomination of a majority of trustees of the ward (§ 1027, subd. 3).

3. To discontimre any school (§ 1027, subd. 4, 13).

4. To draw the moneys for the purpose of public education (§ 1027, subd. 5).

5. To visit and examine the schools (§ 1027, subd. 6).

6. To make general regulations to secure economy and accountability in the expenditure of school moneys (§ 1027, subd. 7).

7. To remove any school officer for being interested in furnishing siipplies or materials, or in payments therefor, or for immoral or disgraceful conduct in any matter connected with his official duties, or which tends to discredit his office or the school system (§ 1027, subd. 11).

8. To take any school entirely out of the hands of the ward trustees, and to take charge -of such school, and manage the same where the trustees neglect the school (§ 1027, subd. 12).

9. To apportion the school moneys to the schools entitled to participate therein (§ 1028, subd. 1).

10. To provide, by general rules and regulations, for the proper classification of studies, scholars and salaries in such manner that, as near as practicable, the system of instruction pursued in the common schools, and the salaries paid to teachers, shall be uniform throughout the city (§ 1028, subd. 6).

11. To have the care and the control of the title of all school property, real and personal, though such title is vested in the mayor, aldermen and commonalty of the city of New York, and to make all necessary appropriations, exceeding $200 in amount, for the purchase of school sites, and for the erection, fitting up or repairing of buildings (§ 1029); and

12. To receive from the school inspectors and school trustees annual reports as to the condition, efficiency and wants of the schools and school premises (§§ 1034 and 1035, subd. 5).

To make more complete the control thus given to the Board of Education, the latter was further clothed with the power to appoint the trustees of the several wards to fill vacancies, and in proper cases to remove them (§§ 1025, 1027, subd. 11), and to prescribe general rules and regulations and limitations under which the trustees of the several wards are to conduct and manage their respective schools (section 1035, subd. 3).

The powers and duties of the trustees of the several wards, on the other hand, were extended by section 1035 :

1. To the safe keeping of all premises and other property used for or belonging to the schools in their respective wards.

2. To the appointment of teachers other than principals and vice-principals and of janitors.

3. To conduct and manage the schools, furnish needful supplies and make'needful repairs, but all this under such general rules and regulations, and subject to such limitations as the Board of Education may prescribe.

4. To keep books of account and records.

5. To make a report to the Board of Education.

6. To hold as a corporation personal property vested in or transferred to them -for school purposes.

7. To render accounts to their successors ; and

8. To appoint times of meeting and declare vacant the office of one of their number who refuses to attend any three successive stated meetings. They may also nominate principals and vice-principals, but the nomination may be utterly disregarded by the Board of Education (§ 1027, subd. 3). Their consent is necessary to a'discontinuance of any school, unless two-thirds of the Board of Education vote the discontinuance. They may apply to the latter bo,ard for a new school, and if their application be refused, they may appeal to the state superintendent (§ 1027, subd. 13). They may organize new schools when they are duly authorized, and may procure, or hire, or erect a schoolhouse as they may be authorized by the Board of Education, and in fitting up a schoolhouse may incur expenses not exceeding the sum of $200 without being specially authorized (§ 1037). They may remove teachers other than principals and vice-principals, and janitors, provided the removal be approved by the inspectors, subject to the decision of the Board of Education upon appeal (§ 1038); and finally, they must certify all expenses incurred for the schools (§ 1036).

It is impossible to consider this division of powers and duties and the general scope of this carefully drawn statute, without reaching a conviction that the legislature believed that public policy required in the city of Hew York a harmonious and effective school system, and that in so vast and cosmopolitan a community, with such varieties of interests, feelings and prejudices, it was essential that the controlling authority should represent the entire city, and not any particular ward or district. To accom-. plish this result the Board of Education was invested with full control of the public schools and the public school system of the city, subject only to the general statutes of the state upon education, and for these purposes it was constituted a corporation (§ 1027). At the same time certain special powers were conferred upon the boards of trustees of the several wards as inferior, though to a certain extent independent bodies, but such powers were well defined and clearly restricted. The result is, that the power of the Board of Education in educational matters in general, except where it is distinctly restricted, and that the power of the trustees exists only where it is granted on terms. Authority is to be presumed in the Board of Education, but on the part of the boards of trustees of the several wards it must be pointed out either in the statute or in the rules and regulations of the Board of Education. If, therefore, in any particular matter relating to the administration of the public school system, it appears that the Board of Education has done a specific thing or given a specific direction within the reasonable limits of such administration, the burden is upon any one who claims the act or direction to be invalid, to find in the general statutes of the state upon education, or in a specific statute organizing the Board of Education, a plain and express provision limiting the power of the Board of Education to do the act or give the direction. The case of People ex rel. McHugh v. Board of Education (18 Abb. 165), upon which the respondents largely rely, was decided before there was made, by the act of 1873, this general grant of power, subject “ only to the general statutes of the state upon education.” It arose under chapter 386 of the Laws of 1851, by which absolute power of appointment and removal, free from any appeal, subject only to such general rules and regulations as the Board of Education might adopt, had been conferred upon the trustees.

Having thus considered the general scope of the law and the division of powers and duties made by it, it now becomes essential to examine somewhat more in detail the questions relating directly to the appointment, removal and transfer of teachers other than principals and vice-principals. Such teachers, it has already been shown, are to be appointed by the boards of trustees of the several wards (§ 1035). This is a mere naked power to appoint. In respect to removals it is provided by section 1038 as follows :

“ The board of trustees for the ward, by the vote of the majority of the whole number of trustees in office, may remove -teachers employed therein, other than principals and vice-principals, and may also remove janitors, provided the removal is approved in writing by a majority of the inspectors for the district, and provided further, that any teacher so removed shall have a right to appeal to the Board of Education, under such rules as it may prescribe, and the said board shall have power, after hearing the answer of the trustees, to reinstate the teacher.”

But as to transfers the statute is wholly silent. Any transfer amounting to a removal is of course covered by the statute. As to all other transfers falling short of that the Board of Education may take the initiative. In either class of cases the Board of Education may make general rules and regulations to be observed by the trustees, and impose limitations upon their action, with this difference, however, that in the case of a transfer amounting to a removal the rules and regulations and limitations must not be inconsistent with the statutory provisions, and that in every other case of transfer they may take any form which to the Board of Education seems proper.

In the exercise of this power the’ Board of Education enacted the following by-law, viz : “Section 34. Upon the dismissal or application for dismissal of a teacher, or upon any transfer of a teacher from one school or department to another, or upon the change in schedule position in any school, of a teacher, the board of trustees shall file with the clerk of the board,'a copy of the resolution under which it acted, and notify the teacher, in writing, of the cause of its action. The teacher shall have the right to appeal to this board within ten days after the service of the notice aforesaid, and said appeal shall be immediately referred to the committee on teachers, to examine into the facts and circumstances of the case, and report to this board, and the clerk of this board shall at once forward a copy of the appeal to the board of school trustees whose action is appealed from. Pending the consideration of such appeal no salary shall be paid to any teacher acting in the place of the appellant without the consent of this board first being obtained, nor shall any appointment to the position occupied by the appellant be acknowledged without the consent herein referred to being first had. If this board shall decide that there was no good cause for the action of the trustees appealed from, then the teacher shall be restored to the position and salary he or she had previous to the action of the trustees and payment for the intermediate time.”

The validity and binding force of this by-law, if it were applicable to the case at bar, could not be questioned, and in such case it would be decisive of the main question involved. But it does not apply, because it was shown to have been enacted since the present contention arose. It cannot have any retroactive effect. The by-laws as they stood at the time of the origin of the difficulty, referred simply to dismissals, and not .to transfers or changes in schedule position. Nor do I deem it worth while to stop to consider whether there is or is not a difference, and if there, is what the nature of the difference is, between the case of a removal contempla te d. by the statute and the case of a dismissal spoken of in the by-laws as they formerly stood.

The question to be determined narrows itself, therefore, down to this: Was the transfer of the relator equivalent to a removal within the meaning of the statute ? Upon this point a clear understanding of the precise position which the relator occupied as fourth assistant, becomes of the utmost importance.

The by-laws of the Board of Education then in force directed the boards of trustees of the several wards, at the first of each year, to prepare a schedule of salaries to be paid to the assistant teachers, the schedule to exhibit the distribution of the total amount of money to which each school was entitled, and the positions to be numbered in regular order upon said schedule. This schedule, it was further provided, should form the rule for the payment of assistant teachers in the several wards for the year. In pursuance of this direction the respondents, on January 1, 1884, established twenty-three positions of assistants, and designated them numerically as first assistant, second assistant, and so on. The official pay-roll, prepared under the direction of the respondents for January, 1884, distinguished between the same positions, and described the relator as fourth assistant. The salary of the first assistant was fixed at $903 a year ; that of the fourth assistant at $690 ; that of the tenth assistant at $586; and that of the twenty-third assistant at $500. All this is very clear proof that there are various positions among assistant teachers, and that one of those .positions is that of fourth assistant. The most characteristic distinction between the different positions is this difference of salaries, and this subject has been most carefully regulated. In addition to the provisions of the by-laws of the Board of Education already noticed, section 35, subd. 6, directs the trustees to grade the salaries of assistant teachers so that the difference between two successive grades shall not exceed $100. Section 33, subd. 9, forbids the paying to a substitute teacher of a salary more than three-fourths the regular salary of the position in which the substitute teacher is employed. Moreover, the duties of the assistant teachers vary with the grades which they teach (§ ,146).

There was therefore the position of “fourth assistant ” fixed by the respondents’ own designation and description, shown by the official pay-roll and other official papers, and distinguished by a particular salary and by particular duties. This is obviously therefore a position recognized in the educational system, and to which its occupant had a particular claim.

Now, by their resolution of January 10, 1884, the trustees of the seventeenth ward transferred the relator to “ the position of tenth assistant,” and in their resolution of February 29, 1884, they undertook to reinstate her “to the position of fourth assistant .... from which she was removed . . . .” This transfer, under the circumstances stated, involving, as it did, not only the loss of the right to discharge particular duties, but also loss of rank and of pay, was, in my judgment, an attempt to remove the relator from the position of fourth assistant within the meaning of the law. The statute is not to be confined to a removal from office which is equivalent to an entire and absolute dismissal from the public school service. If such had been the intention of the legislature, it is but fair to assume that it would have said so in unambiguous language. Instead of ' that, the statute speaks of removals in general terms. Now to remove is defined by lexicographers to mean to change place, or to make a change in place, in any manner. But for the purposes of this case it is not necessary to go that length. While, therefore, I do not hold that every transfer of a teacher is per se a removal within the statute, I am clearly of the opinion that a transfer accompanied by the assignment of inferior duties, and by loss of rank and pay, and therefore involving degradation, is, in substance, and therefore amounts to, a removal from the position occupied Within the meaning of the statute. The trustees in this case themselves regarded the transfer as a removal, for in their resolution of February 29, 1884, they speak of reinstating the relator “ to the position of fourth assistant from which she was removed, etc.”

• The opinion expressed by me is in accord with the views expressed by the learned counsel to the corporation of the city of New York in his communication, to the Board of Education, reported in the minutes of said board of July 3, 1878, and the action of the Board of Education thereunder since that time.

Nor. is there any authority to the contrary. Reilly v. The Mayor (16 J. & S. 274) ; O’Brien v. The Mayor (28 Hun, 250), and Monroe v. The Mayor (28 Id. 258), were cases that arose under the statutes relating to the Fire Department. In each of these cases there was an acquiescence in the transfer, and a voluntary acceptance of the new appointment, and the decision proceeded upon this ground. Besides the statutes were entirely different from the one now under consideration. In the case of Monroe, it is true, Mr. Justice Davis, in the course of his reasoning added that “ the plaintiff was not removed from his position as a member of the Fire Department. He was simply transferred from one post to another.” But this observation, if it was not obiter, was expressly stated by the judge to be based upon the charter provision “ that the number and duties of the subordinates in every department with their respective salaries shall be such as the heads of the respective departments shall designate and approve.” The fire commissioners, Mr. Justice Davis therefore said, had power to fix and alter at pleasure the salary of any employee.

This provision has no application whatever to schoolteachers or to the trustees of the schools of the several wards, and from what has already been said it is too clear for argument, that it cannot have any application to a school-board with such limited powers as are possessed by the trustees of the schools of the several wards.

Nor was there any acquiescence by the relator in the transfer. She did not accept the position of tenth assistant so as to be estopped from asserting her rights. On the contrary, she immediately appéaled from the action of the trustees, to the Board of Education, and refrained only from performing the duties of fourth assistant as far as by the action of her superiors she was compelled to do so. That in the meantime she did perform the duties of tenth assistant, cannot be urged in bar of her claim. She was' neither paid as such, nor did she receive so far any pay whatever for the period in controversy.

The transfer of the relator, under the circumstances stated, having been shown to amount to an attempt to remove her within the meaning of section 1038 of the statute from the position she held as fourth assistant, the removal, in order to become effective, required, in the first instance, the approval in writing of a majority of the inspectors of the district, and, in the second place, the approval, on appeal, of the Board of Education. Neither has been had or obtained. On the contrary, the Board of Education, upon a hearing of her appeal, sustained her claim and directed her reinstatement and th’at such reinstatement be dated from the day the transfer was made to take effect under the resolution of the trustees. She was, therefore, never removed from the position of fourth assistant or deprived of any right or emolument attaching to said position.

There is still another point in favor of the relator. Section 38 of the by-laws of the Board of Education in force at the time of the passage by the trustees of the resolution' of January 10, 1884, provided, and stilh provides, as follows, viz. :

“No reduction of salary shall be made in the case of any principal or vice-principal or assistant, teacher, whose appeal from the action of the board of trustees shall have been sustained by the Board of Education, except upon the approval of the said last-mentioned board ; and no reduction shall be made in the salary of any teacher whose removal by a board of trustees has not been approved by the inspectors of a school district, or a majority of them, unless the decision of the latter is overruled by "the action of this board.”

"Under this by-law the claim of the relator would have to be sustained even if her case were treated as involving-nothing more than a reduction of salary.

The only remaining question therefore is whether the relator has a remedy by mandamus.

The mandamus is not asked to compel the payment of the money. The respondents have no money in their hands, and it is never their duty to make payment. But there are devolved upon them certain specific ministerial duties in the performance of which the relator has an interest, and without the performance of which she may be defeated, or at least hindered and delayed, in the enforcement of her rights. For section 1034 of the Consolidation Act expressly provides that it shall be the duty of the Inspectors of Common Schools, ór a majority of them, in their respective districts, to examine in respect to every expense certified as correct by a majority of the trustees of any ward in the district, and to audit every such expense which may be just and reasonable ; and that no expense shall be paid unless audited in this manner.

The legal duty of the respondent Litchfield, as principal of the school, to prepare the pay-roll, arises from a bylaw of the Board of Education made in the exercise of the powers of said board, conferred by statute. The legal duty of the trustees to certify the pay-roll, when prepared, is imposed by section 1036 of the Consolidation Act. Thus all the respondents are required by law to furnish to or for the relator certain vouchers without which she either cannot be paid at all, or without which she will be seriously hindered and delayed in obtaining payment of her first claim.

In such a case the rule that mandamus will not lie where the relator has a remedy by action is not applicable, but the courts will compel the performance of the legal duty as an indispensible preliminary to any payment (People ex rel. Satterlee v. Board of Police, 75 N. Y. 38; People ex rel. Navarro v. Van Nort, 64 Bart. 205; People ex rel. Navarro v. Green, 2 Supreme Ct. [T. & C.], 62). The brief memorandum of Barrett, J., in People ex rel. Harnett v. Inspectors of Common Schools, of the Seventeenth Ward, 44 How. 322, does not conflict with the rule as stated, because in that case the mandamus was withheld for the' reason that the validity of the relator’s appointment was in dispute.

For the reasons stated the relator is entitled to a peremptory mandamus against all the respondents as prayed for, with an allowance of $50 costs and her disbursements against all except George H. Beyer. The latter is exempted from the payment of costs because he refrained from opposing the application for a mandamus, and signified his readiness and willingness to perform his duty in the premises.


source: Caselaw Access Project

author: Ingraham, J.

license: Public Domain

text:
    THE METROPOLITAN TELEPHONE AND TELEGRAPH COMPANY v. THE COLWELL LEAD COMPANY.

      Streets of N. Y. City—telegraph and telephone poles—rights of companies.

    The legislature has no power, so far as the rights of abutting owners are involved, to authorize the use of the streets of the city of New York for the erection of poles to conduct telegraph and telephone wires, the legislative authority over the streets being limited to a regulation of use for which the streets are held by the city in trust, which is to appropriate and keep them open as public streets; and such erection of telegraph poles is not a street use, and does not come within the terms of the trust. A telegraph company cannot therefore invoke the equitable power of the court to restrain interference by abutting owners with its poles in city streets; even though its lines have been erected under legislative sanction.

      Decided August 12, 1884.
    Before Ingraham, J.
    Motion for injunction.

      Burton N. Harrison and H. C. Atwater, for the motion.

      L. E. Chittenden, opposed.
   Ingraham, J.

In the limited time at my disposal I shall only attempt to state the conclusions to which I have arrived, after a careful and somewhat extended examination of the principles involved, and the authorities to which my attention has been called.

The act of 1813, under which the street in question was taken for a public street, provides that upon the confirmation of the report of the commissioners appointed under said act by the supreme court, “The said mayor, aider-men and commonalty of the city of New York shall become and be seized in fee of the said lands, &c., in the report mentioned, that shall or may be required for the purpose of opening the said street, &c., in trust, nevertheless that the same be appropriated and kept open for or as part of a public street, &c., forever, in like manner as the public streets, &c., in said city are and of right ought to be.”

The fee thus vested in the city was in trust for a specified purpose, limited by the purpose for which the property was taken, and the trust upon which it was held ; and the use to which the property could be put by the city must be limited by said trust, viz. : to be appropriated and kept open as a public street. In People v. Kerr (27 N. Y. 188), and the cases that have followed that case, it was held that a street railroad authorized by the legislature to be built in a street, was valid as a proper regulation as a street use. In the case of Mahady v. Bushwick R. R. Co. (91 N. Y. 148), the court upheld those cases as deciding that such a horse railroad was a structure consistent with the rights of the abutting owners in the streets, and these cases can now only be considered as' authority for holding that such a railroad is a street use, and a use which it is within the power of the legislature to control. The power of the legislature over the street is, however, not unlimited ; it is to govern and regulate such use or interest in the land as vested in the corporation under the provision of the law for the taking of the property. The city took the property in trust to appropriate it as a public street, and so far as it held it for a public street it was subject to the control of the legislature.

That the power of the legislature over the streets is limited, and that the legislature had no authority to authorize a structure in a street that is inconsistent with such, street use, was held in the Story case (90 N. Y. 122), and in discussing the question in that case, Judge Danforth says, at page 155 : “Within this principle, its [the street’s] surface might be broken up for the insertion of gas or water-pipes, or sewers, or occupied by rails, imbedded therein for surface railroad, but its limit would be found in these and like uses.” It appears, therefore, that the power of the legislature is limited to a regulation of the use for which the property is held by the city in trust. As Judge Danforth says in the Story case (supra), p. 157: “It is certainly well settled that when a grant is made or trust created for a specific and defined purpose, the subject of the grant or trust cannot be used for another and foreign purpose without the consent of the parties from whom it was derived, or for whose benefit it was created.”

Under this statute the city takes the fee in trust to be appropriated for a public street. That is “a specific and defined purpose.” The property is paid for by the abutting owners ; neither the city nor the state pay the amount awarded for the taking of the property, but the owners of the land on the street pay for whatever property is taken. The statute provides that such payment shall be apportioned among such abutting owners, as they shall be benefited by the appropriation of such property as a public street; and that such abutting owners have an interest in the streets is recognized in the Story case (supra) and Mahady v. Bushwick Railroad Company (supra). I think, therefore, that the powers of the legislature to regulate the streets are confined to the uses for which they were taken, viz.: to be appropriated and kept open as public streets. The plaintiff owns and operates a telephone line in Thirty-ninth street and uses poles to conduct the wires used in such business, and I am clearly of the opinion that such a use of the streets is not a street use and does not come within the terms of the trust upon which the city holds the fee of the streets, and that so far as the rights of abutting owners are involved, the legislature had no power to authorize plaintiffs to use the streets for such a purpose.

Plaintiffs cite the case of People v. Metropolitan Telephone & Telegraph Company (31 Hun, 596), but in that case the people were objecting to the use of thestreetsby plaintiffs, and plaintiffs had the consent of the people for such use. As was said in the Story case (page 160), in speaking of the authority given by the legislature, ie So far as the public is concerned it may stand ; not so far as to the individual.”

I do not consider it necessary to express an opinion as to the validity of the license given by the city to the defendants. Defendants do not ask the interposition of the court. Plaintiffs do; and before the court should interfere they must show that they have a vested right, which may be greatly affected by the act sought to be restrained (City of New York v. Mapes, 6 Johns. Ch. 46).

It might be claimed with much force, that, as according to the well-settled rule that a trustee takes no greater title in the property conveyed to him than is necessary to carry out the terms of his trust, the city of New York took under the act in question only such a fee as would be necessary to appropriate and keep open the street as a public street, and that it not appearing that the.portion of the street below the surface sought to be used by defendants was necessary to such use, the fee of such portion of the street did not pass to the city as such trustees, by reason of the proceedings under which the city acquired title to Thirty-ninth street; and consequently defendants were never divested of the right to use the part of the street in question so long as such use did not interfere with the use of the street as a public street.

It is also claimed that as defendants had acquiesced in the use of the street by the plaintiffs, they should be now enjoined from interfering with such use. But, as before said, plaintiffs, and not defendants, ask for an injunction, and while under such circumstances a court of equity might refuse an application of the' defendants to restrain plaintiffs from maintaining the poles, it does not relieve the plaintiffs from the necessity of showing that some right that belongs to them is about to be invaded.

There are several other questions that were discussed in this case which I have examined, but on the whole case I am of the opinion that plaintiffs have failed to make out a case which would justify me in granting the injunction prayed for, and the motion must be denied and the temporary injunction dissolved.

MEMORANDA OF OASES NOT REPORTED IN PtJLL.


text:
    HENRY MAY, et al., Respondents, v. SIMON STERN, Appellant.

      Decided February 4, 1884.

      Interest—when changeable on running account.

    Before Sedgwick, Ch. J., Truax and O’Gorman, JJ.
    Appeal by defendant from judgment in favor of plaintiffs, en tered on the report of a referee.
    The appeal relates to a counter-claim of defendant, that on a certain running, unliquidated account, the defendants were improperly charged with interest upon charges against him ; that he had paid part of such interest upon the express promise of plaintiffs to repay the saíne to him.
    The court at general term said : “The only reason on the record, why plaintiffs’ charge of interest should not be supported, appears in the "counter-claim. That alleges in substance that the defendant paid the interest, and afterwards the plaintiffs expressly promised to repay it to him. There was no testimony that tended to show that this express promise had been made. Further, the evidence did show that, in fact, the defendant did what was equivalent to a payment of the interest. He made a payment,' which was credited to him in the account, the amount of which was ascertained by charging him with interest. As this was done after a claim of right to interest was made by plaintiffs and disputed by defendant, it was a final settlement of the matter, made with knowledge of the facts. After this payment, the defendant knew he was to be charged interest in the account, and his continuance of the account was acquiescence in the charge, which is a legal ground of his liability to pay interest. Although from time to timé the defendant said to the plaintiff that the charge. was wrong, and that he would not pay interest, the case shows that these declarations were extrinsic to other declarations, and to acts done by the defendant, which in themselves constituted the settlement and the acquiescence referred to.”

      Blumenstiel & Hirsch, for appellant.

      John H. V. Arnold, for respondents.
   Opinion by Sedgwick, Ch. J. ; O’ Gorman, J., concurred.

Judgment affirmed, with costs.


text:
    LUDOVIC SPIRIDON, Respondent, v. G. WARREN WATSON, et al., Appellants.

      Decided February 4, 1884.

      Trial—requests to go to jury—waiver.

    Before Sedgwick, Ch. J., Truax and O’Gorman, JJ.
    Appeal by defendants. from a judgment in favor of plaintiff entered on a direction to the jury to find for the plaintiff.
    The case is the same as Pool against the same defendants, argued and decided at this general term (ante, p. 53), excepting that in the present case the plaintiff gave testimony as to his being a bona fide holder for value.
    The court at general term said: “The plaintiff gave evidence that Sheridan bought of him a picture for the price of $5,000, and paid for it by transferring the note in action, and by $1,500 in cash. Whether if the defendants had asked the court to submit to the jury the credibility of the witness giving the evidence, it would have been right to refuse, does not seem to be a question in the case. At the end of the testimony for plaintiff, his counsel moved for a direction in his favor. The defendants’ counsel opposed the motion, and requested to go to the jury upon the ‘ question of delivery, and also upon the p’oint whether or no there was not a further agreement that took the place of the written agreement.’ The court granted plaintiff’s motion, and denied defendants’ request. The effect of the rulings was that if the defendants were deprived of the benefit of a construction of the jury favorable to them, on the only question as to which they asked to go to the jury, yet on the face of the testimony which they did not ask that the jury should consider, the verdict should be for plaintiff. If the counsel had called the attention of the court to the position, that although the plaintiff’s testimony was clear that he had given a consideration, his credibility was for the jury, the court might have submitted the matter to the jury, and as it stands, the demand for the submission of the two questions is a waiver of right as to others.”

      Moody B. Smith, for appellants.

      Childs & Hull, for respondent.
   Opinion by Sedgwick, Ch. J.; Truax and O’ Gorman, JJ., concurred.

Judgment affirmed, with costs.


text:
    EDWARD HALL, Respondent, v. JAMES G. BENNETT, as Executor, &c., Appellant.

      Decided February 4, 1884.

      Building contract—construction of—extension of time—notice that principal will finish building at contractor'’s cost, &a.—“ reasonable cause'1'1— value of old building on site of new one, to whom, allowed.

    Before' Freedman and O’ Gorman, JJ.
    Appeal by defendant (1) from judgment entered in favor of the plaintiff upon a verdict of the jury for the sum of $17,110.08, exclusive of costs; (2) from order denying defendant’s motion upon the minutes for a new trial; and (3) from an order made before trial denying defendant’s motion to make certain lienors parties defendant, and for a stay of proceedings.
    The court at general term said: “ This action is brought by the plaintiff against the defendant as executor, to recover for a breach of a contract made February 5, 1872, by the plaintiff with defendant’s testator for the erection of a building situate on Ann, Nassau and Fulton streets in the city of New York. The alleged breach consists in not having been allowed by the defendant to finish the work under the contract. Upon the trial the plaintiff undertook to recover only for work actually done and remaining unpaid.
    “ Upon a former appeal (48 Super. Gt. 302), it was held by this court, upon the authority of Westervelt v. Levy (2 Duer, 354), that the pendency of the litigation instituted by certain lienors for the foreclosure of mechanics’ liens under the same contract, which was pleaded as a defense, does not constitute a bar to the present action. This disposes of the appeal from the order denying defendant’s motion to make these lienors parties defendant and for a stay of proceedings.
    “It was also held: (1) that this .action was properly brought against the defendant as executor ; (2) thafc, if the plaintiff establishes a breach of contract by the defendant, it is not necessary for the plaintiff to produce, or to account for the non-production of, any architect’s certificate which the contract provided should be procured, at a time subsequent to the time of the breach ; and (3) that the two clauses in the specifications regulating the rate of progress of the work and the number of men to be employed by the contractor, must be read in connection with the fourth provision of the contract, and that by the latter the right of the owner to proceed to do the work depended upon the owner giving to the contractor three days’ notice in writing.
    “ These three points, therefore, will not be reviewed again.
    “It was further held that, inasmuch as the plaintiff had denied the receipt of any notice, the question whether or not the proper three days’ notice was given should have been left to the jury, and it was mainly for the reason that said question was not submitted to the jury, but decided by the trial judge against the plaintiff, that a new trial was granted to the plaintiff.
    “Upon the trial now under review, the plaintiff was. forced to admit, and did admit, that the letters of June 6, and July 6,1872, containing the notice formerly in dispute, were received by him. The evidence also clearly showed, as has been admitted on the argument of the present appeal, that the attorney who signed the letter of July 6, had authority to do so. It was claimed, however, that both these notices became nugatory by the conduct of the defendant subsequent to their service. The plaintiff showed I hat for about two months after July 6, 1872, he was allowed to remain in full charge of the work; and that during that period he did a good deal of work in the erection of the building, and received payments.
    “ The defendant, on the other hand, showed that on or about_ September 10, 1872, and bearing date of said day, a third letter was sent to the plaintiff as follows:

      ‘103 Fulton Street, N. Y., Sept. 10, 1872.
    ‘Dear Sir—As attorney for Mr. Bennett, and at his request, I have to inform you that you having neglected to supply a sufficiency of material and workmen for the continuance of the work on the building on Nassau street, corner of Fulton and Ann streets, and having otherwise delayed the progress of the work, and it being apparent that you cannot proceed with the building so as to complete it in the stipulated time, Mr. Bennett will finish the said building at your expense, .and you are required forthwith to withdraw with your workmen, tools and other effects from said premises to enable Mr. Bennett to get at the work. You will please render a full account of the work to the present time. I feel bound to say that Mr. Bennett has concluded to take this step with extreme reluctance and regret. Yours obediently, John Townshend.’
    To Edward Hall, Esq.’
    “ The defendant also proved that the letter last referred to was left at plaintiff’s house on September 10,1872, between the hours of 4 and 5 P. M. with a young lady supposed to be a daughter of the plaintiff, and that thereafter the plaintiff called upon Mr. Townshend, the attorney of the defendant, and admitted the receipt of the letter and discussed with him the contents thereof.
    “The plaintiff denied the receipt of the letter and that in consequence thereof he called and discussed the matter as alleged.
    “In the aspect of the case most favorable to the plaintiff, for it is not necessary to be more precise, this change in the evidence created a' new issue, namely, whether service was made of the notice of September 10, 1872, and the issue was one which had to be submitted to the jury. In case the jury determined that issue in favor of the plaintiff, the further question presented itself as to what the parties had a right to charge against each other. This under the evidence was also a question for the jury.
    “ The important questions involved in the present appeal relate therefore in the main to the instructions under which the case was submitted to the jury. In substance the jury were, in various forms, instructed that the notice contained in the letter of September 10, 1872, did not entitle the defendant to take any steps under it unless Mr. William Paul, the superintendent of the work, had reasonable cause to give it. This I think was error.

      “ The parties had agreed in the specifications that William Paul should be the superintendent of the work, that as such he should regulate the number of men to be employed, and the rate of progress of the work ; and that, if in his opinion sufficient progress was not made to insure the completion of the building and its delivery to the owner entirely completed on or before April 1, 1873, he, the superintendent, should have full authority • to cause said work to be executed as he might deem advisable.
    “By another part of the specifications the rate of progress and the number of men to be employed was left, to the direction of the architect, Arthur Gilman.
    “ And the contract of which the specifications were a part, provided that should the contractor at any time during the progress of the work refuse or neglect to supply a sufficiency of materials or workmen, the owner should have the power to provide materials and workmen after three days notice in writing being given, to finish the work, and that the expense "should be deducted from the contract.
    “ These three provisions are both cumulative and mutually supplemental. They must, as was held on the former appeal, be read together. This entitled'the plaintiff in any event to a three days’ notice in writing from the owner. But by parity of reasoning the right of the owner to give I he notice under either of said provisions depended upon the actual state of affairs. If the architect or the owner reached the conclusion that sufficient progress was not made, and the circumstances justified such conclusion, the owner could act, though the superintendent might have been of a different opinion.
    “But aside from these considerations the principal error consisted in submitting to the jury the question of reasonableness as one in dispute, for the evidence as a whole conclusively showed that there was reasonable cause under the contract and specifications to give the notice, and that the owner, architect and superintendent had all reached the same conclusion.
    “By the contract it was expressly provided that the new building should be entirely completed and, as thus completed, delivered to the owner on or before April 1, 1873. Time was of the essence of the contract. But the plaintiff from the very start paid no attention to this element of the contract. It took him about a month to take down the old building, and after that his rate of progress with the new work was so uniformly slow, and he kept so comparatively few men at work as to provoke frequent remonstrances from the architect, the superintendent, and defendant’s agent. On July 8, 1872, the architect peremptorily required him to put 80 men to work on the building, and the proof shows that that number could well have been put on. If the plaintiff ever fully complied with this requirement, it was only for a little while. Soon thereafter the working force was reduced again to from 20 to 30. On September 9, 1872, mechanics’ liens commenced to be filed against the building and against the plaintiff as contractor, and it became evident that the plaintiff could not complete. The architect, superintendent and defendant’s agent all arrived at this conclusion. The plaintiff was utterly without means and credit; he owed his laborers and material-men upwards of $13,000, and he had previously admitted to defendant’s agent that he could not complete without receiving payments in advance. Under these circumstances it was not only perfectly reasonable, but it became the duty of the defendant as executor, to take active measures for the protection of the estate in his charge, and hence it conclusively appears that, as matter of law upon the facts stated, the' defendant had reasonable cause for giving the notice of September 10, 1872. There was no real dispute as to these facts. Subsequent occurrences furnish corroborative evidence upon this point. A new contract was made with Cockerill & Spaulding, responsible contractors and the next lowest original bidders after the plaintiff, to finish the work remaining undone for $82,000, and the plaintiff sold to them his scaffolding. No claim or suggestion has been made that this price was not a fair and reasonable one. Cockerill & Spaulding immediately put 75 men on the work and thereafter continued to hurry the several parts of the work as fast as it could be done, and yet the building was not fully completed by the first of May, 1,873.
    “ Under these circumstances, it was clearly error to submit the question of the existence of reasonable cause to the jury as a disputed question of fact, and to instruct them that upon the fact of such reasonableness as it might be determined by them, depended the right of thé defendant to serve the notice of September 10, 1872. As the proof showed beyond controversy, that plaintiff’s contract price was $97,940; that he had received on account thereof according to his own admissions, $16,308, and that Cockerill and Spaulding were paid in good faith $82,000 for finishing the work, the jury should, under all the circumstances, have been instructed that, if they found that the notice of September 10, 1872, was given and received as claimed by the defendant, it was their duty to render a verdict for the defendant.

      “ Another important question presented by the present appeal arises upon the defendant’s claim duly pleaded to an allowance for the value of the old building. The contract provides as follows: ‘ The contractor is to take down all the existing buildings now on the site, and to have the use of the old materials, to be allowed for in his estimate. All such brick and stone as may be found suitable, being used in filling in the walls of the new builing.’ At the trial, the plaintiff, on the theory that the contract had been wrongfully terminated as against him, elected to recover the actual value of the work and materials furnished by him up to the time he was compelled to stop. It was competent for him to do so. In such a case the claim is founded upon the election to "consider the contract rescinded, and the rule of damages is the actual value of what has been done under the contract (Clark v. Mayor, 4 N. Y. 338; Moran v. Mctiwegan, 33 Super. Ot. 350).
    “ The plaintiff by a number of witnesses gave evidence, founded mostly upon measurements, of the value of the work, inclusive of materials, as the work stood at the time the contract was taken out of his hands, and the court charged the jury that the plaintiff, if entitléd to recover, was entitled to recover such value less such sums as had been paid to him. The payments in cash according to plaintiff’s testimony amounted to $16,308, and according to the testim'ony of the defense to $17,308. But the court refused to instruct the jury to take into account the value of the old building, of which the plaintiff had had. the benefit, notwithstanding the defendant by answer had raised an issue upon that point. Of course the defendant was not entitled to a credit for the value of the old building as a building. At most, he could claim the value of the materials in the building after it had been taken down, less the expense of taking it down, and upon this point there was some evidence that for the purpose of being taken down, the building was worth $4,000. But he was at least entitled to a credit which, under all the circumstances, was equitable. To allow him no'thing at all was clearly inequitable.
    “ As the views so far expressed call for a new trial, an examination of the other questions involved in the appeal may be dispensed with.”

      John Townshend, for appellant.

      J. Lafiin Kellogg, for respondent.
   Opinion by Freedman, J.; O’ Gorman, J., concurred.

Judgment and order denying defendant’s motion upon the minutes for a ,new trial, severally reversed, and new trial ordered, with costs to the appellant to abide the event.

Order made before trial denying defendant’s motion to make certain lienors parties defendant, and for stay of proceedings affirmed, with $10 costs to respondent to be set off against costs first above referred to.


text:
    ESTHER SMITH, Respondent, v. GEORGE MOORE SMITH, Appellant.

      Decided February 4, 1884.

      Negligence—contributory negligence—personal injuries—damages.

    Before Sedgwick, Ch. J., Truak and O'Gorman, JJ.
    Appeal from judgment entered on verdict in favor of plaintiff for $2,000, and from an order denying a new trial on the grounds that the verdict is contrary to the evidence, against the weight, of evidence, and because the damages are excessive.
    Action for damages alleged to have been caused by defendant’s negligence.
    The court at general term said: uThe plaintiff, a colored,woman about 60 years old, testified in her own behalf, and her account, of the occurrence is, in'somerespects, incomplete, confused and incoherent. She states that on September 29, 1882, between twelve and one o’clock in the day, she was crossing Lexington avenue from west to east, near the corner of Fifty-sixth street, an,d was knocked down and injured by the defendant’s horse which was attached to the wagon driven by the defendant. She had walked along the south side of Fifty-sixth street, going toward the east, and stood still for a little while at the southwest corner of Lexington avenue, and looked both ways before attempting to cross the avenue. She then stepped off the sidewalk to cross the avenue when the plaintiff’s horse came right up before her, flung his head round and flung her down, and the fore wheel of the wagon went over her legs. She never saw the horse until he came right up before her. She can’t say whether or no she threw her hands out against the horse. She could not tell to save her life at that time what she did. After the accident she got up and walked away.
    “ The defendant testified that he had driven in his one horse buggy down Fifty-sixth street towards Lexington avenue at an easy pace—not more than four miles an hour. A pile of bricks about three or four feet high was heaped at the southwest corner of the avenue and projected into the street. In order to avoid this pile he turned his horse towards the north side of the street, and having done so, turned into Lexington avenue, going south" and keeping about the micldle of the avenue. As he turned into the avenue, going then at the pace of about three miles an hour—just off a walk—he saw the plaintiff standing on the sidewalk at the southwest corner, several feet from the curb. She was looking north up Lexington avenue. After defendant had turned his horse fairly into the avenue, and being then at about the center of Fifty-sixth street, his horse going then at the pace of about four miles an hour, he saw the-plaintiff step off the curb two or three steps, and then stop and stand still, seeming to him to wait until he had passed. When his horse was within ten feet of her, she started across directly in front of his horse. He called out to her—pulled his horse sharply to the left, and brought his horse to a stop. When he called to her, she threw up her hands in a frightened way against the horse, touching him and causing him to start and go on a step or two ; and in putting up her hands she fell backwards, and the right front wheel went over her dress and her legs.
    “He pulled up his horse at the easterly curb of the avenue, got out, and found the plaintiff standing at the corner of the street and avenue. He is positive that she touched the horse first with her hands, and neither the horse nor the wheels had touched her until then. This statement of the defendant is corroborated by two other witnesses who saw the occurrence.
    “Taking these two statements together, that of the plaintiff, and that of the defendant, and reconciling them as far as possible with one another, where they are found to differ, and where they cannot be reconciled, giving credence to the testimony of the plaintiff wherever it does not depend on mere surmise and conjecture, it is by no means clear that there was sufficient- evidence- to go to the jury, that the negligence of the defendant was the cause of the accident-.
    “ All that the law- requires in a case of this kind, is that defendant should exercise ordinary care to avoid inflicting an injury—that is, the degree of care that a prudent man will exercise in his own affairs (Kelsey v. Barney, 12 17. Y. 425). And I cannot see that, in the exercise of ordinary care, defendant would have been expected to do anything other than he did do to avoid collision with the plaintiff. i

      “ The next question is whether the negligence of the plaintiff herself, was a contributing cause of the injury. ‘ If it appears that the undisputed facts show the omission or commission of some act which the law adjudges negligent, a non-suit should be granted by the court (Stackus v. N. Y. C. &. H. R. R, Co., 79 17 Y. 464). She was bound to prove that no contributory negligence existed (Hart v. Hudson R. Bridge Co., 84 N. Y. 56). It is not enough to prove facts from which either the conclusion of negligence, or the absence of negligence may be with equal fairness drawn, but the burden is upon the plaintiff, to satisfy you that there was no contributory negligence on the part of the deceased ’ (Id.).

    “ The plaintiff was bound to exercise ordinary care for her own protection from danger.
    “If she had been reasonably vigilant and active in the use of her senses, she could, no doubt, have seen the defendant as he turned into Lexington avenue, and she would have heard his cry to her, which was heard by other witnesses. From where she stood, near the corner, there was nothing to intercept her vision. At the slow pace at which he moved, there would have been ample time for her to have seen him, if she had looked, and to have waited for him to pass. . •

      “The case of Barker v. Savage (45 If. Y. 193, 4, 5), is in point, where under circumstances very similar to those in the case at bar, the court of appeals held that the plaintiff should have been non-suited. The decision of the superior court, in Harnett v. R. E. (49 Super. Ot. 185), was to the same effect; and although the bench on that appeal, was not unanimous, the ground of dissent was not as to the accuracy of the rules of law there laid down, but as to their applicability to the special facts and circumstances of the case then before the court (See also Wilcox v. R. R., 39 If. Y. 358 ; Belton v. Baxter, 54 Id. 245 ; Button v. Hudson R. R. Co., 18 Id. 248, and cases cited therein).

      “ Whether the question of contributory negligence should be left, as matter of fact, to the jury, or adjudged by -the court as matter of law, is always difficult and doubtful ; and as the court says, in Stackus v. R. R. (79 If. Y. 464), there are no two cases alike in circumstances, and precedents are of little value. ^

      ‘ ‘ In' the case at bar, all the evidence and all legitimate inferences from evidence seem to me, to lead inevitably to the conclusion that but for the failure of the plaintiff to use ordinary care and vigilance in crossing the avenue, no injury would have occurred to her, and that the learned trial judge should have so decided as matter of law.
    “As to the last ground on which the defendant claims a reversal of the judgment and a new trial, viz : excessive damages, little need be said. The injuries to plaintiff, which were immediately apparent, were comparatively trifling and inconsiderable, and did not prevent her from walking from the scene of the accident to Sixth avenue. She would not be entitled by reason of these injuries, to damages to the amount of $2,000. Evidence of the existence of the more important damage, which she claims to have sustained,—displacement of the womb,—depends on her own statement and that of a physician to whom she applied for advice, eleven days after the date of the accident on which this action depends, and to whom she gave her history of her case. To other medical witnesses who visited her on the part of the defendant, the day after the accident, she made no complaint on that account; and they concur in the opinion that such an injury to a woman of her age from such an accident as had occurred to her, would have been improbable, and that if it had occurred, it would have caused severe and immediate pain, of which it is but natural to suppose she would have complained to them. If the existence of this special injury had been not sufficiently proved, the sum allowed in the verdict, for damages, would have been excessive, and it should not be sustained.
    “The evidence of contributory negligence on the part of the plaintiff in this case, is, in my opinion, sufficient to warrant the court in setting aside the verdict, and granting a new trial.
    “ And on the whole case, it seems to me that the ends of justice require a new trial (McDonald v. Walter, 40 W. r.'e si).”

      Chauncey S. Truax, for appellant.

      Vanderpool, Green & Cuming, for respondent.
   Opinion by O’Gorman, J., Truax, J., concurred.

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


text:
    ELLEN McMAHON, as Administratrix, &c., Appellant, v. THE NEW YORK ELEVATED R. R. Co., Respondent.

      Decided February 4, 1884.

      Action by administrator for causing death by negligence—elevated railroad stairway—absence of evidence bearing either way, as to contributory negligence—questions of fact and of law.

    Before Sedgwick, Ch. J., and O’Gorman, J.
    Appeal from judgment in favor of the defendants and against the plaintiff on dismissal of the complaint, and from an order denying a motion for a new trial.

      The court at general term said: “Plaintiff claims damages from defendants on account of the death of her husband, the intestate, which occurred on June 5, 1879, while he was ascending the stairway of the station of defendant’s railroad at One Hundred and Twenty-ninth'streef, and, as she alleges, by reason of the improper construction of the stairway, and the hand-rails being too low and of improper width, and the stairs uncovered, exposed to rain, and slippery.
    “ The learned trial judge held that there was no evidence that the plaintiff’s intestate was not negligent, or that his negligence or misfortune did not contribute to the bringing about of the accident, and dismissed the complaint on that ground.
    “ In order to obtain a verdict in this case, plaintiff was bound to prove that the negligence of the defendants caused the death of the deceased, and also that no negligence on his "part contributed to that event.
    “It is the duty of a railroad company carrying passengers for hire, to provide safe and proper means’ of ingress and egress to and from their trains {Shearman and Redf eld on Negligence, § 275 ; 27 Alb. L. J. 83). Is there evidence that the defendants in this instance failed to perform that duty ? The testimony on that subject is substantially as follows : The accident occurred at about two o’clock in the day. It had rained in the forenoon, but was not then raining. The stairs leading to defendant’s ticket office were made of wood, of very fair width, the steps covered with india rubber strips. There was no roof overhead. The memory of the witnesses as to whether that was the condition of the stairway on the day of the accident to the deceased is not .certain. The side rails were from two feet eight inches to three feet five inches high, came up to about a man’s hip. They were on the top about four inches and a-half wide— too wide for witness to put his hand, round them. In rainy or slushy weather the place was, in the opinion of one of the witnesses, dangerous for people to travel on. A man had fallen on the stairs before the injury to the deceased, but how, or why, or exactly where, or under what circumstances he fell, did not appear.
    “The case of Dougan v. Champlain Trans. Co. (56 N. Y. 1), is, in its leading features, similar to the cáse at bar. In that case, the deceased fell down and slipped under the railing of the gangway of a steamboat, went overboard and was drowned. Held that there was no ground for supposing that any passenger would fall under the railing, and it was obvious that no such thing was likely to occur, the plaintiff should be non-suited ; and the non-suit was sustained by the court of appeals. In the case at bar there was no evidence, that from any imperfection in their construction, any danger of any passenger falling over the stairs to the ground, could fairly have been apprehended, or that such defect would necessarily or naturally lead to such a result, although the stairs may, in some respects, have been imperfect and inconvenient for travel.
    “ The question whether evidence offered to prove negligence should be passed upon as a question of law by the court, or left to the jury as matter of fact, is always doubtful and difficult, and depends on the circumstances of each case. In the case at bar it does not seem to have been passed upon by the trial judge, the motion to dismiss plaintiff’s complaint being granted expressly on the ground that there was no evidence that the negligence of the deceased did not contribute-to the injury. The plaintiff was bound to prove that no contributory negligence on his part existed (Hale v. Smith, 78 N. Y. 480). 'Where there is an entire absence of evidence that plaintiff is free from fault, he cannot recover (Wendell v. R. R, 91 Id. 420). ‘It is not enough to prove facts, from which either the conclusion of negligence or of the absence of negligence may be with equal fairness drawn, but the burden is upon the plaintiff to satisfy the jury that there was no contributory negligence on the part of the deceased (Hart v. Hudson Bridge Co., 84 Id. 56). It is not sufficient that the evidence in this respect was equally balanced, it was essential that at least aprima facie case should be established (Id.).
      Where there is no evidence as to what actually did take place at the time, and the proof is such as to render it uncertain, it cannot be said that absence of negligence is established. No inference can be legitimately drawn in favor of the plaintiff ’ (Id.).

    “This is the difficulty in the case at bar. There is absolutely no evidence to show how or why the accident to the deceased occurred. No one was near him at the time. Witnesses, standing on the ground below, saw him go up the stairs until he got to the second flight, and reached a' spot within three or four steps of the upper platform leading to the ticket office, where he fell. 1 He stopped, and leaned against the rail. He went over sideways. He fell across the rail. He did not have hold of the hand rail. He walked up the stairs the same as anybody else.’ This is all. Whether he imprudently and incautiously léaned over and lost his balance, whether he slipped on the stairs, and fell over, or whether he was the victim of sudden dizziness, and the disaster was inevitable, does not appear. There is no evidence of any -negligence on his part contributing to his fall. Neither is there any evidence that he was not negligent. There is no fact bearing on the subject to go .to the jury—no conflict of evidence to be considered—no inference from any fact to be weighed by them ; and in such cases, the question must, of necessity, be determined by the court (Wendell v. R. R., 91 N. Y. 420 ; Reynolds v. R. R., 58 Id. 248; Cordell v. R. R., 75 Id. 330).”

      O'Byrne & Stewart, for appellant.

      Deyo, Duer & Bauerdorf, for respondent.
   Opinion by O’Gorman, J. ; Sedgwick, Ch. J., concurred.

Judgment appealed from affirmed, with costs, and order denying a new trial affirmed, with ten dollars costs. ■


author: Per Curiam.

text:
    JAMES TOMPKINS v. GEORGE MANNER, et al.

      Decided March 3, 1884.

      Costs—right of attorney to judgment for—vacating satisfaction of judgment.

    Before Sedgwick, Ch. J., Truax, and O’Gorman, JJ.
    Appeal from an order, of the special term made October 31, 1883, vacating the satisfaction of the judgment entered herein in favor of defendants, and giving the attorney for the defendants leave to issue execution thereon.
    The moving papers showed the facts to be as follows: On January 20, 1879, judgment was entered herein in favor of defendants and against the plaintiff for - the sum of §122.59, which judgment was entirely for costs. On February 25, 1879, the judgment was docketed in New York county, and an execution issued thereon against the property of plaintiff and returned unsatisfied. In January, 1882, an execution was issued against the person of plaintiff, and on January 20, 1882, he was admitted to the liberties of the jail. By instrument dated January 25, 1882, purporting to have been executed in Dallas county, Texas, on December 1, 1882, the defendants assigned said judgment to William P. Tompkins. This assignment was filed in the office of the clerk of this court December 13, 1882. On December 12, 1882, on plaintiff’s application, and on consent of said William P. Tompkins, an order was entered discharging plaintiff from the custody of the sheriff under said execution, and directing that the bond given for the liberties of the jail be canceled, and plaintiff was accordingly discharged on December 20, 1882, the judgment was satisfied of record. The assignment and satisfaction of the judgment were without the knowledge or consent of defendants attorney, who never received anything on account of the judgment.
    A motion was thereupon made by defendant’s attorney in person to vacate the satisfaction, and for leave to issue execution, which motion was granted, and from the order entered thereon the plaintiff has appealed. No notice of this motion was given to the assignee.

      Edward S. Clinch, for appellant.

      A. J. Rogers, for respondent.
   Per Curiam.

Order affirmed, with $10 costs, and disbursements to be taxed.


text:
    JOHN G. HOFFMAN, Respondent, v. THE N. Y., LAKE ERIE & WESTERN R. R. Co., Appellant.

      Decided March 3, 1884.

      Witness fees—mileage and per diem allowance.

    Before Sedgwick, Ch. J., and Truax, J.
    Appeal from an order directing a new taxation of costs by the clerk.
    The case was on the day calendar October 1, when a request was made to the court to fix a day for the trial which would relieve the witnesses from unnecessary attendance. The court denied the application, and stated that the witnesses must be in attendance. They were accordingly in court on October 2, on which day the court adjourned, on account of the sickness of the trial judge, to October 4. On October 4 the case was called. The trial judge would not allow the defendant’s default to be taken on account of the absence of the witnesses, but required the defendant to be ready the next day, October 5. The witnesses weretin court on that day, having come a second time to the city. The case was not reached October 5, and the witnesses went home to• spend Sunday with their families. They returned on October 8, and remained in court that day, and also on October 9th, 10th, 11th and 12tli, when the trial took place, and the complaint was dismissed on the plaintiff’s own testimony. The witnesses were paid for their attendance. On the relaxation the court deducted from the amount of the bill, as taxed by the clerk, the sum of $169.74. The court ordered “ witness fees and mileage for one day’s attendance only are allowed for each witness for whom, witness fees and mileage were allowed by said clerk.”
    Defendant supcenaed Orange Sackett three times from Avon, New York, 366 miles ;■ Daniel L. Krum, twice from Elmira, 275 miles; Lewis Tripp, three times from Avon, 366 miles ; Amasa W. DeWitt, three times from Avon, 366 miles ; Dr. William Nesbitt, twice from Avon, 366 miles, and in addition paid them the witnesses’ fees for their actual attendance in court.

      Abbett & Fuller for appellant.
    It has been held that where on Saturday night witnesses necessarily went home and returned on Monday morning they were entitled to two travel fees (Muscott v. Runge, 27 How. 85). It has also been held that where the cause was set down for a later day in the circuit, and the witnesses went home and returned, they were entitled to two travel fees (Miller v. Huntington, 1 How. 218 ; Moulton v. Townsend, 16 ld. 306). When the court adjourned from Tuesday to Thursday on account of the sickness of Justice Sedgwick, practically the case was set down for a later day in the circuit, and therefore the witnesses had a right to return home and receive the other mileage. Although the clerk struck off the last mileage because the witnesses returned home to remain over Sunday, yet, under the case above cited (27 How. 85), they were entitled to that fee.

      Edward S. Hatch, for respondent.
    The clerk should not have allowed more than one traveling fee for any of the witnesses in this case. This case appeared on the day calendar for the October term ; was called from day to day, and was tried before the end thereof. It was the duty of the witnesses to have remained during the term, and they might have been allowed their per dAerri amount for such attendance, but they are entitled to one traveling fee only (Muscott v. Runge, 27 How. 85, 90 ; Wheeler v. Ruckman, 5 Robt. 702 ; Courtney v. Baker, 3 Den. 27 ; Curtis v. Dutton, 4 Sandf. 719).
   Per Curiam.

The appellant is entitled to tax mileage for but one attendance. The witnesses could have compelled the payment of but one fee for mileage. Any payment in excess of one was a gratuity from the defendant to the witness and cannot be taxed.

The appellant is entitled to tax a fee of fifty cents for each day the witnesses were in attendance. This number of days appears to be correctly stated in the bill of costs.

The order appealed is modified so as to allow the appellant witnesses’ fees for each day’s attendance, and as modified is affirmed without costs.


text:
    ELLEN REARDON, an infant, Respondent, v. THE NEW YORK CONSOLIDATED CARD COMPANY, Appellant.

      Decided March 21, 1884.

      Bill of particulars—discretion as to.

    Before Sedgwick, Ch. J., Freedman and O’ Gorman, JJ.
    Appeal from an order denying a motion to make the complaint more definite and certain, or to furnish a bill of particulars.
    The action was brought to recover for injuries suffered by plaintiff while working ata card-cutting machine while in defendants’ employment.
    The original complaint, charged that the machine was out of order at the time of the accident, as was well known to the defendant. On the trial of the cause a juror was withdrawn to enable plaintiff to move to amend the complaint. The amended complaint, charged that plaintiff was injured without knowledge on her part that said machine was then defective. Neither complaint specified in what respect the machine was out of order or defective. The affidavit of the manager and superintendent of the defendant stated that the machine had been examined on the day of the accident immediately before, and again immediately after, the accident, and that after careful examination and diligent inquiry, defendant had not been able to discover wherein the machine was defective or out of order, and that defendant did not believe that the machine was out of order or defective, and did not know where to obtain the information on which the allegation in the complaint was based.
    The motion was denied, for the reason, as stated in the opinion, “ I do not think that this is a case in which a bill of particulars should be ordered—defendant has the same means of knowledge or better than plaintiff.”
    From the order denying motion the appeal is taken.
    The court at general term said:—“The granting or denying the motion was within the discretion of the special term, and this court sees no reason to doubt that such discretion has been properly exercised in this case (Butler r. Mann, 9 Abb. N. C. 49 ; 2 Civ. Pro. R. 240). With the knowledge and information which defendants have, or can acquire as to the condition of the machine at which plaintiff was employed, there can be no difficulty in their making such answer to her complaint as would put on her the burden of proving the existence of the defect, if any there were, in the machine, by reason of which the injury to her occurred, and of testing the worth of the evidence on her behalf by the everyday experience of the working of the machine which, by reason of its being in their possession, they can command.”
    Burrill, Zabriskie & Burrill, for appellant.

      John D. Townsend, for respondent.
   Opinion by O’Gorman, J.; Sedgwick, Ch. J., and Freedman, J., concurred.

Order appealed from, affirmed, with ten dollars costs.


text:
    JAMES WOOD, Appellant, v. JOSEPH O. BROWN, Respondent.

      Decided April 7, 1884.

      Attorney and client—instruments favorable to attorney given on settlement between him and client, burden of justifying rests on attorney.

    Before Sedgwick, Oh. J., Freedman and O’Gorman, JJ.
    Appeal from judgment in favor of defendant, with costs, etc., entered on report of a referee.
    This action was brought for the purpose of setting aside a release executed by the plaintiff in April 1877, in favor of the defendant, and for an accounting and payment by defendant to the plaintiff of all moneys found to be due-by defendant to him. The case was referred by consent, to a referee to hear and determine. The defendant was an attorney and counselor; and plaintiff claimed that defendant acred in that capacity toward him during a period extending over about eighteen .years. At the close of the evidence the plaintiff’s counsel stated the claims against the defendant to be, that the defendant was the real attorney of the plaintiff during the period claimed in the complaint; that plaintiff should have credit on account witli the defendant for $2,000, as paid by plaintiff in a tax matter; that a charge made by defendant against plaintiff for costs, allowance, etc., in a foreclosure suit for $50;000, carried on by defendant, should not be allowed, beyond the amount of $300 ; that éxpenses of examining title of property, on the security of which loans of $1,155 and $1,500 were obtained, should not be charged against plaintiff; that a releo se by plaintiff to the defendant should be set aside.
    As to each of these jdaims, the referee found against the plaintiff and in favor of the defendant.
    After a review of the evidence, the court at general term said :—“ The plaintiff executed a release to defendant, which was duly witnessed and delivered to the defendant. The referee lias found that this release is, in all respects, a good and valid instrument, and should stand as a final settlement with respect to the matters therein set forth. We have considered the evidence on that question, with careful regard to the rule to which our attention has been called by the learned counsel for the plaintiff, that in transactions between attorney and client, the burden rests on the attorney of justifying instruments beneficial to himself, and are of opinion that the finding and conclusion of the learned referee sustaining the release are correct.

      J. Tracy Langan, for appellant.

      Erastus E. Brown, for respondent.
   Opinion by O’Gorman, J. ; Sedgwick, Ch. J., and Freedman, J., concurred.

Judgment appealed from affirmed, with costs.


text:
    ROBERT R. GREER, Respondent, v. THE PEOPLE’S TELEPHONE & TELEGRAPH Co., Appellant.

      Decided March 26, 1884.

      Master and servant—presumption as to continuance of employment heyond term,. —Duty of servants of corporation as to orders of different officers.

    Before Sedgwick, Ch. J., Freedman and O’Gorman, JJ.
    Appeal by defendants from judgment for plaintiff entered on verdict of jury, and from order denying defendant’s motion for a new trial made upon the judge’s minutes.
    The action was upon an alleged breach of contract of hiring of plaintiff by defendants to perform certain services.
    The court at general term said:—“Two questions are involved in this appeal. The first refers to the assumption by the court, below that on the pleading and proof it appeared that the defendants had hired the jdaintiff for one year. The testimony shows that the plaintiff had been hired originally before September 1, 1881, for one year, and has continued in the employment frQnvthat day to September 1, 1882. He remained in the service after that day, until October 31,1882, when he was discharged without his consent. On these facts the law is, that the remaining in the service for any time by the consent of the employer, renews the first contract for one year. Or, if there had been no hiring in the first place expressly for one year, the law implies a contract for services for that time, and also if there be a continuance of services after that time, a renewal for one year.
    “ The second question refers to a claim by defendants, that the evidence incontrovertibly shows that the plaintiff was validly dismissed October 31, 1882, because of disobedience of orders given to him by the secretary, who was also treasurer of the company. The orders which he disobeyed were at variance with orders that he had received from,—as the jury were at liberty to find,—two members of the executive committee. It did not appear that it was the duty of the plaintiff to look solely for orders to the secretary, so clearly -that there was no question for the jury on this point. And the court left it to the jury to find whether the orders he received from the secretary were such as he should have obeyed, saying that if they were, the plaintiff could not recover for services after October 31.”

      George S. Hastings, for appellant.

      H. F. Andrews and R. F. Andrews, for respondent.
   Opinion by Sedgwick, Ch. J. ; Freedman and O’Gorman, JJ., concurred.

Judgment affirmed, with costs, and order appealed from affirmed, with $10 costs.


text:
    ELIAS BACH, et al., Respondents, v. DAVID LEVY, et al., Appellants.

      Decided April 7, 1884.

      Written warranty of quality on sale of personal property—modification of by oral testimony—name known to trade denoting quality—objection to recovery in action for breach of warranty that note given in payment of goods had not matured.—Sale for account of warrantor in case of breach, requisites of—measure of damages.

    Before Sedgwick, Ch. J., and O’Gorman, J.
    Appeal from a judgment founded on the verdict of a jury against the defendants for $3,626.06 damages for breach by them of warranty in the sale to the plaintiffs, of one hundred and seventy-five cases of tobacco, called “Connecticut seconds,” at the rate of ten and one half cents per pound.
    The court at General Term said :—“ The following is a copy of the contract. ‘ New York, April 19, 1883. Sold to Messers. Elias Bach St Son, for acc. of Messrs. D. Levy & Son, (175) one hundred and seventy-five cases Conn, seconds L. Tobacco, crop 1882, by packer’s samples. Mess. D. Levy & Son guarantee the tobacco to be like samples, and sound until after stripped sampling, July 1, 1883. Price lOJc. Marked weight. Insurance guaranteed and storage free. Terms, 5 months note. S. Wollenberg.’ “A few days after the above mentioned date the plaintiffs received from the defendants the bill for the tobacco, of which the following is a copy : ‘ 169 Water Street, New York, April 19, 1883. Messers E. Bach & Son: Bought of D. Levy & Son. Terms, net cash, unless settled by note. Claims for deduction or deficiency to be within five days after receipt of goods. (Here follow the numbers of each case, the gross weight and tare.) 68,233—10|— $6,993.88. Settled by note. (Signed) D. Lew & Son.’
    “ The price of the whole of this tobacco, was $6,903.33, and for this amount plaintiffs gave to defendants their promissory note payable in five months after date, in payment of said tobacco. It appears in evidence that the term ‘Connecticut seconds’ is understood in the trade to mean tobacco grown in the state of Connecticut, and not elsewhere, and the market value of that tobacco is general^ higher than that of tobacco of' the same grade, grown in Massachusetts. The tobacco purchased by the plaintiffs of the defendants was not delivered until about the first day of July, 1883. It was then examined by the plaintiffs, and found to be, not ‘ Connecticut,’ but ‘Massachusetts’ tobacco and in great part not up to the packer’s samples. One of the witnesses testified that ninety-six cases were inferior. The defendant Levy admitted that thirty-eight cases differed from the samples. The plaintiffs offered to return the tobacco to the defendants on the return by them of plaintiff’s note, given in settlement; and this proposition not being accepted, the plaintiffs gave the defendants due written notice that they would sell the tobacco by public auction, and hold defendants responsible for an A’dam age that might ensue. On July 10, 1883, the tobacco was sold at public auction, realizing the net sum of $5,439.22, being at the rate of 8-| cents per pound.
    “The defendants did not call any witnesses in their behalf at the trial, but moved the court to direct a verdict for the defendants, which motion was denied. They also made various objections in the course of the trial to the admission and rejection of testimony, raising thereby questions of law which are substantially as follows :
    “First. That the cause of action was not complete at the time of bringing this action, because the note given to the defendants by the plaintiffs An settlement of the purchase of the tobacco had not then matured, and had not then been paid.
    “In my opinion this objection is not well taken. 1 The plaintiffs gave their note to the defendants payable in five months from the date of the sale, that being the form of payment agreed upon as payment, as was stated in the bill rendered, by the words settled by note.’ This note matured before the trial of the action, which took place on November 22, 1883. It may be reasonably presumed to have been paid before that time, and even if it were not paid, the liability of the plaintiffs on the note continued, and could be enforced by the holder of the note.
    “The second objection of the defendants, against plaintiffs’ recovery, is that there was no express warranty that the tobacco should be ‘Connecticut seconds,’ but only that it should be equal to the packer’s samples, and' that the warranty being in writing, no other or broader warrant}7 could be implied or proved by parol.
    “The learned counsel for the defendants elicited from Bach, one of the plaintiffs, under cross-examination at the trial, the following testimony: ‘At the time the contract was made, Mr. Levy (one of the defendants) said to me, I guarantee these one hundred and seventy-five cases will come up to the packer’s samples, and I will guarantee they are- ‘ Connecticut tobacco ;’ and upon that condition I bought the tobacco ; and I told defendant that he would have to reduce it to writing.’ This evidence was received without objection, and was admissible for the purpose of showing, that the written contract was not a sufficient or a complete record of all the actual antecedent parol agreement between the parties {Benjamin on Sales, vol. 1, §§ 208, 209, 210 ; Chapin v. Hobson, 78 JY. Y. 74 ; Wilson v. Been, 74 Id. 531).
    “It has been also held that where, as in the case at bar, the thing sold is known to the trade by a particular name, and is described by that name in the contract of sale, it is a condition of the sale that the thing delivered should be the thing so described. This condition applies to the subject of the sale, and if the thing thus described and specified be not delivered, the contract fails of performance, irrespective of any express warranty, because the thing is not supplied to which the terms of the contract can attach {Benjamin on Sales, vol. 2, §§ 918, 919 ; Wolcott v. Mount, 36 JY. I. L. 262, 265). Thus in the case at bar, the thing which was the subject of the contract, was what was known as ‘Connecticut seconds,’ To them alone, the written contract and. warranty applied, and delivery to the plaintiffs of any other kind of tobacco, was a failure to carry out the essential and necessary conditions of the contract.
    “For these reasons, I think that the testimony as to the fact that the tobacco delivered was not was was known in the trade as ‘Connecticut seconds’ and as to the market value of ‘Connecticut seconds’ as compared with ‘Massachusetts tobacco,’ was properly admitted (Van Wyck v. Allen, 69 W. 7. 61 ; White ■». Miller, 71 Id. 118).
    “ I see no objection to the sale of the tobacco by auction in a lump, and for cash. The purchase was of 176 cases, was one entire purchase for one sum received in settlement for the whole purchase. When the bulk, or a large proportion of the articles, included in one purchase fails to come up to the warranty, or to fulfill the conditions of the sale, the contract may be treated as violated as to all, and a sale by public auction and for cash seems to have been in this case, a fair means of ascertaining the market value at the time of the sale. It is in evidence that the auction sale in this instance was largely advertised, well attended, and that the tobacco sold, brought its market value. This sale was a proper mode of ascertaining the value (Muller v. Eno, 14 W. 7. 597 ; Pollen v. Le Roy, 30 Id. 549 ; Parks v. Morris, &c. Co., 54 Id. 586).
    “Defendant’s counsel further objects that the proper, measure of damages was not applied in this case. The true measure of damages was the difference between what would have been the value of the tobacco at the time of delivery, if it had corresponded with sample and been ‘ Connecticut seconds,’ which was the article which the parties agreed that it should be, and the value of the.article as it actually was at the time of the auction sale which took place almost immediately after the delivery. The evidence showed that the true value of such sound tobacco at the time of delivery, was twelve cents per pound, making the amount $8,187.96. The sale of the tobacco, as it actually was, at auction, realized at the rate of 8H cents per pound, making the amount $5,439.22,

      The difference between these sums, is $2,748.74, and the verdict was for $2,626.03, somewhat less than the amount of damages that the plaintiffs would have legally been entitled to.

      Kauffman & Sanders, for appellants.

      Townsend, Dyett & Einstein, for respondents.
   Opinion by O’Gorman, J.; Sedgwick, Ch. J., concurred in result.

Judgment appealed from, affirmed, with costs.


author: Sedgwick, Ch. J.

text:
    ELIZA A. THOMAS, as Executrix, etc., v. THE N. Y. LIFE INS. CO.

      Power of general term as to damages.

    Motion to modify general term order.
    The order is to stand, as to its directions for the judgment, neither party to have costs of appeal.

       See S. C., ante, p. 225.

   Sedgwick, Ch. J.

I am of opinion that when the general term, does not reverse any finding of fact, it has the power to modify the judgment by altering the amount of damages recovered when the modification is a result of law upon the facts found (See Andrews v. Tyng, 94 N. Y. 17). Under the special circumstances of the case, I think it would be best that' neither party should have costs of appeal.

Freedman and O’Gorman, JJ., concurred.


text:
    Richard Baker, appellant, v. William L. Roberts, et al., respondents.
    Decided January 2, 1884.
    Appeal from judgment in favor of the respondents, and against the appellant on report of a referee, for $552.72, with interest, from November 1, 1880.
    Winfield, Leeds & Morse, for appellant;
    Sheldon & Brown, for respondents.
   Opinion by O’Gorman, J. ; Sedgwick, Ch. J., and Freedman, J., agreed to affirm. Judgment affirmed with costs.


text:
    Nelson J. Botsford, respondent, v. Charles C. Dodge, et al., appellants. Daniel B. Halstead, respondent, v. Charles C. Dodge, et al., appellants.
    Decided January 7, 1884.
    Appeals from judgments for the plaintiffs overruling the defendant’s demurrers to the complaints, with costs, and giving leave to the defendants to withdraw their demurrers, and serve answers within twenty days, on payment of costs of the action.
    William D. Peck, for appellants ;
    Dill & Chandler, for respondents.
   Opinion by O’Gorman, J., Sedgwick, Ch. J., agrees to affirm. Orders affirmed, with $10 costs in each case, and judgments of the special term affirmed with costs, with leave, to withdraw demurrers and answer within twenty days on payment of costs.