author: Hardin, P-. J.:

text:
    Herman F. Inderlied and Another, Appellants, v. Nicholas Whaley, Respondent, Impleaded with Henry Hart.

      Damages — to what extent recoverable in legal and equitable actions — judgment therefor in an equity action — when a ban' to a recovery in a subsequent action at law.

    The damages recoverable in an action at law are limited to such as occurred prior to the commencement thereof, hut in an action in equity, where the plaintiffs seek to obtain a permanent injunction forbidding' the commission by the defendants of certain alleged wrongful acts and trespasses, and allege damages as incidental to the equity relief, the plaintiffs are entitled, under a proper state of facts, to recover all damages sustained up to the time of the rendering of the decision made in that action, upon which judgment was entered, by reason of the wrongful acts of the defendants.
    They are entitled to recover such damages as would necessarily and naturally result, or be incurred, from the injury complained of.
    The judgment recovered in such action would be a bar to the maintenance of an action at law to recover damages sustained by the plaintiffs since the making of the decree in the prior action by reason of the alleged wrongful acts of the defendants, if such acts were done prior to the making of the decree in the • first action.
    Appeal by the plaintiffs, Herman E. Inderlied and another, from a judgment of the Supreme Court in favor of the defendant Nicholas Whaley, entered in the office of the clerk of the county of Delaware on the 9th day of January, 1894, upon the verdict of a jury dismissing the plaintiffs’ complaint upon the merits, rendered by direction of the court at the Delaware Circuit, and also from an order made on the 9fh day of January, 1894, and entered in said clerk’s office, denying the plaintiffs’ motion for a new trial made upon the minutes.
    Prior to April, 1886, plaintiffs were the proprietors of a large manufactory of wood chemicals at Rock Rift, Delaware county, and had acquired the right to pond, and, by means of flumes and ditches, convey to their manufactory for use therein the waters of a stream known as Chace’s brook, which is a small mountain stream about two miles in length and flows down a narrow valley through lands owned by several different parties. In the fall of 1885 the defendants commenced operating a steam saw mill upon the banks of said stream above the pond of the plaintiffs, and from the defendants’ saw mill the sawdust and debris ran into the waters of Chace brook and ran down into plaintiffs’ pond and thus into their factory, causing them damage. In the month of April, 1886, plaintiffs commenced an action on the equity side of the court, against defendants, alleging that the defendants were running sawdust into the stream, causing them injury, and asked by way of relief a temporary injunction, and also a permanent injunction restraining the defendants from depositing sawdust in the stream. A preliminary injunction was granted which restrained the defendants from putting any sawnlust in the stream thereafter until the further order of the court. That action was tried at Special Term and resulted in findings of fact and law in favor of the plaintiffs therein and awarding the plaintiffs a perpetual injunction restraining the defendants from depositing sawdust, chips and debris from said saw mill into said broolc; and in the 8th finding of fact in that case it was found: “ That by reason of defendants depositing said sawdust, etc., in said brook as aforesaid, the plaintiffs have suffered great and irreparable damage and loss.”
    In the complaint in this action it is alleged “ That in an action in this court wherein said.Inderlied, Son & Co., were plaintiffs, and these defendants were defendants, it was found, adjudged, determined and decreed that the defendants herein had wrongfully done all the acts herein alleged, and wrongfully caused all the damages and loss herein set forth.” Upon the trial of this action the pleadings and findings made by the court in the former action, as well as the judgment thereon, were introduced in evidence. In tlie course of tlie opening in this case the plaintiffs’ counsel said: “We shall not offer proof that the defendants have run any sawdust into the stream since the temporary injunction was served in the former action.” The plaintiffs’ counsel asked the court to rule and hold that the plaintiffs are not precluded from showing damages in this action which arose after the commencement of the former action in equity.” The court declined to make such ruling and the plaintiffs took an exception. Thereupon the plaintiffs’ counsel said : ££ The plaintiffs do not claim that the defendants ran any sawdust into the stream after the decision of the court, but do claim that sawdust was run into the stream before the decision of the equity action — días operated to injure the plaintiffs since.” Thereupon the court observed ££ That no evidence can be given of damages flowing from acts found in the equity action to have been committed by the defendants, but any damage flowing from act of defendants constituting a breach of .the .permanent .injunction granted in that action may be given in evidence and recovered for in this action.” . To that holding the counsel for the plaintiffs took an exception. Thereupon the plaintiffs’ counsel asked the court to ££ hold that although no act has been done by the defendants since the trial of the equity case in violation of the injunction, by running sawdust from the mill into the creek, that the plaintiffs may be entitled to recover for acts done before either injunction, by which sawdust was placed in the creek which afterwards, from its; lodging in the dam and the action of the water, injured the plaintiffs.” The court declined and the plaintiffs excepted.
    A motion was made for a dismissal of the complaint and granted and an exception was taken, and thereupon the court directed the jury to find for the defendants, and plaintiffs excepted, and moved for a new trial on the minutes, which was den’ed.

      Marvins (& Hanford, for the appellants.

      Levi H. '-Brown, for the respondent.
   Hardin, P-. J.:

Plaintiffs’ former action ivas brought on the equity side of the court and sustained because of the alleged wrongs and wrongful acts of the defendants mentioned in the complaint in that action. Plaintiffs’ action was maintained by reason of the alleged wrongs and trespasses of the defendants under the acknowledged head of equity giving power to the court to prevent a multiplicity of suits, and allowing a recovery of damages as incidental to the equity relief. (Williams v. N. Y. C. R. R. Co., 16 N. Y. 111; Davis v. Lambertson, 56 Barb. 480; Hutchins v. Smith, 63 id. 252.) In that action plaintiffs were entitled to recover all the damages sustained up to the time of the trial thereof. (Beir v. Cooke, 37 Hun, 38; Robinson v. Smith, 25 N. Y. St. Repr. 653, and cases there cited.)

In Meyer v. Phillps (97 N. Y. 485) it appeared an action was brought to restrain defendants from floating sawlogs in the waters of a stream, and in dealing with that action the court said that the defendants “ threatened to commit, and claimed the right to repeat, the trespass every year. Here a preventive action was proper to prevent an irreparable injury within the meaning of the equitable rule, and also to avoid a multiplicity of suits,” and in such an action it was said that damages sustained might be awarded to the plaintiff.

In Shepard v. Manhattan R. R. Co. (117 N. Y. 442) it was held that property owners have a remedy in a court of equity in cases where the trespass is continuous in its nature in order to avoid a multiplicity of suits, and they can recover the damages they have sustained, as incidental to the granting of the equitable relief,” and it was further said that the violation of the rights to property having been adjudged in such an action, “ the awarding of damages, sustained in the past from the defendants, follows, they being, on equitable principles, deemed incidental to the main relief sought.”

In Thomas v. Grand View Beach R. R. Co. (76 Hun, 603) the right to maintain an equity action was asserted, and it was said that in such action complete relief could be awarded as justice between the parties should require.”

In Galway v. Metropolitan El. R. Co. (40 N. Y. St. Repr. 148) the opinion relates to the right of a party to maintain an action in a court of equity, under somewhat similar circumstances, and it was there said: “ The cause of action, both at law and equity, in such cases arises out of the trespasses committed, and is based on the ownership of the property upon which the injuries are inflicted. * * * The existence of a legal cause of action is not only a prerequisite to tbe maintenance of tbe equitable action, but is also tbe foundation of tbe jurisdiction which equity courts possess in respect to the subject-matter. * * * Inasmuch as tbe equitable remedy depends, among other things, upon tbe existence of a legal cause of action, it follows that those facts which will bar the legal action will also afford an answer to the equitable remedy, and that so long as a legal remedy exists an equity court is open to aid in the enforcement of the legal claim.” If the former case had been a mere law action the damages recoverable would have been limited to such as occurred prior to the commencement of the action. (Uline v. N. Y. C. & H. R. R. R. Co., 101 N. Y. 98; Rumsey v. N. Y. & N. E. R. R. Co., 63 Hun, 205; Galway v. M. E. R. Co., supra.)

In Hunter v. M. R. Co. (141 N. Y. 281) it was said that inasmuch as the action was on the equity side “ where the main relief sought was an injunction against the continuance by the defendants of acts in violation of the plaintiff’s property rights, an award of damages, for what past injuries might be shown to have been inflicted, would follow as incidental to the main relief. In such an action it is the settled rule that if the court decides that the claim for the equitable relief is well founded, it may proceed to assess the damages sustained, in its own discretion, and no absolute right exists to have them determined by a jury.”

In Lynch v. M. E. R. Co. (129 N. Y. 274) it was held, viz.: “ Where a court of equity gains jurisdiction of a cause for one purpose it may retain it generally, and to do complete justice between the parties, ascertain and award damages as incidental to the main relief sought. Where, therefore, an equity court assumes jurisdiction to restrain a continuous trespass, in order to prevent a multiplicity of suits, it may proceed to give full relief, both for the tortious act and the resulting damages.”

In Van Allen v. N. Y. E. R. R. Co. (144 N. Y. 178) the question arose as to what damages might be recovered, and O’Brien, J., said : The facts showing the right to the injunction are undoubtedly the basis for equitable relief in such cases, and the claim for damages is an incident which equity draws into the litigation in order to prevent a multiplicity of suits and to completely adjust all the rights of the parties. * * * The measure of the relief is adapted to the situation at the time of tbe decree. * * * No principle is better established or more frequently asserted than that when a court of equity has once acquired jurisdiction over a cause for any purpose, it may retain the cause for all purposes and proceed to a final determination of all the matters at issue.” It must be assumed that in the former action the plaintiffs could have recovered all damages which accrued prior to the decision which was made of that action apparently in September, 1887, upon which decision judgment was entered January 12,1888. It was said in the opening in this case that in the former action evidence was given to support the complaint therein, and the counsel in the course of his remarles stated : The main facts are in the former adjudication, and we shall ask this jury to give their attention more particularly to the amount of damages which the plaintiffs, the Inderlieds, have suffered. The former action found all the facts substantially that were necessary to substantiate our action, but in that action there was no proof as to the value of the damages.” It follows from the cases to which reference has been made that the plaintiffs were entitled to recover such damages as they had sustained by reason of the wrongful acts of the defendants done at the time of the making of the decree in that action.

The pleadings and concessions made upon the trial indicate that no wrongful acts were perpetrated by the defendants after the decree made in the former action. We are inclined to think that that judgment is a bar to the plaintiffs’ right to recover for the matters referred to in the complaint in this action and' in the opening made at the trial.

In Smith v. Smith (79 N. Y. 634) it was held that “ an estoppel by judgment in a former action arises when the same matter was at issue therein, and was either litigated by the parties and determined or it might have been litigated and a decision had upon it. * * * It is sufficient if there might have been judgment 'in the first action for the same cause alleged in the second.” The same doctrine was laid down in (Clemens v. Clemens (37 N. Y. 74), and referred to approvingly in Bloomer v. Sturges (58 id. 176). And in Jordan v. Van Epps (85 id. 436) it was said: “ The judgment is final and conclusive between the parties, not only as to the matters actually determined but as to every other matter which the parties might have litigated and have decided as incident to or essentially connected witli the subject-matter of the litigation within the purview of the original action, either as a matter of claim or of defense.”

In Lorillard v. Clyde (122 N. Y. 47) it was said the omission to give proof of the damages would not affect the force to be given to the judgment. In the course of the opinion it is said: Evidence merely tending to show that the defendants omitted to produce upon the trial all the evidence that was admissible in their behalf was immaterial. A judgment rendered on the merits is co-extensive with the issues upon which it is founded, and is conclusive between the parties thereto, not only as to the matters actually proved, argued and submitted for decision, but also as to every other matter directly at issue by the pleadings which the defeated party might have litigated.” Numerous cases are then cited in support of the proposition thus stated. In the case before us the complaint, after setting out the various grounds for the supposed right to recover in this action, expressly avers, viz.: “ That in an action in this court wherein said Inderlied, Son & Co. were plaintiffs and these defendants were defendants, it was found, adjudged, determined and decreed that the defendants herein had wrongfully done all the acts herein alleged and wrongfully caused all the damages and loss herein set forth.” The plaintiffs were entitled to recover such damages in that action “as would necessarily and naturally result or be incurred from the injury complained of.” (Argotsinger v. Vines, 82 N. Y. 314; Henderson v. N. Y. C. R. R. Co., 7S id. 423.)

In McGean v. M. E. R. Co. (133 N. Y. 9) it was held that a party was entitled to preventive relief, “ and the court as a corrrt of equity thus having jurisdiction for this purpose, had power to award the past damages; ” and in the course of. the opinion delivered in that case, at page 16, it is said that “ If the controversy contains an equitable feature or requires any purely equitable relief belonging to the exclusive jurisdiction of equity, or pertaining to the concurrent jurisdiction of equity and law, and a court of equity thus acquires a partial cognizance of the action, it may go on to a complete adjudication and establish purely legal rights and grant legal remedies, which would, otherwise, be beyond the scope of its authority. (Pom. Eq. Juris. §§ 181, 231, 242.) So long as one of the grounds of equitable interference in this class of cases is the avoidance of a multiplicity of suits, this rule must prevail.” The foregoing views lead to the conclusion that the result reached at the Circuit should be sustained.

MARTIN and Merwin, JJ., concurred.

Judgment and order affirmed, with costs.


source: Caselaw Access Project

author: Harden, P. J.:

license: Public Domain

text:
    Forest G. Weeks, Appellant, v. Joseph Binns, Respondent.

      Pwol evidence — admissible to establish a contract, only in pa/rt reduced to writing.

    The rule which rejects parol evidence, when offered in respect to a written contract between parties, has no application to a case where a part only of the original agreement is in writing and the rest is verbal if the verbal part is not inconsistent with the portion in writing.
    It was shown upon the trial of an action brought to recover the agreed value of certain carboys returned by the plaintiff to the defendant, that the plaintiff gave an order in writing to the defendant for certain carboys, which was accepted by the defendant in writing in the following language :
    “ Pec. 28, 1888.
    “ Joseph Binns, 183 Pearl St., New York ;
    “You may enter an order for 140 carboys 66 brimstone acid at 95e. per 100 lbs., delivered F. O. B. cars at Mill 60 days breakage guaranteed. Shipment to be made Feby. 1st, with privilege to increase order to larger carload if Skaneateles Paper Co. wishes to go in. ■ Yours,
    “Accepted. F. G. WEEKS,
    “ Joseph Binns, C. G-. W.
    “Per Joseph Harrington.”
    After the written order was given the plaintiff’s agent stated to the defendant’s agent that the usual arrangement for returning the carboys would apply to the carboys in question, and he said it would, and the price to be paid for them should prevail. The witness added, “I had written the order and he had signed it before anything was said about the carboys; * * * I copied it in the letter book, and as I handed it to him I had the conversation about the carboys.” The defendant’s counsel moved to strike out the evidence. The motion was granted and an exception was taken.
    The plaintiff in effect offered to show that it was well understood by both parties that he should be allowed the price that he paid for the carboys. It was conceded that the plaintiff paid a certain amount for each carboy, and in effect the plaintiff offered to show that the amount that he was to get hack was the same amount that he paid.
    This was objected to by the defendant; the objection was sustained and an exception taken.
    The defendant then moved ‘ ‘ that plaintiff be nonsuited and the complaint be dismissed on the ground that there is no cause of action in the written contract, on the ground that it contains the whole agreement between the parties and cannot be varied by parol, and that, therefore, there is no evidence in the case to sustain the allegations of the complaint.” The motion was granted and the plaintiff excepted.

      Held, that the rulings of the trial court were erroneous, and the exceptions presented such error that upon an appeal from the judgment rendered therein a reversal thereof would be required.
    Appeal by the plaintiff, Forest GJ-. Weeks, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Onondaga on the 16th day of May, 1894,' upon the dismissal of the complaint directed by the court after a trial before the court and a jury at the Onondaga Circuit.
    A. JS. Stone, for the appellant.

      Goodelle & Nottingham, for the respondent.
   Harden, P. J.:

Plaintiff’s complaint alleges that on or about August 1, 1891, at Skaneateles, he “ sold, delivered and returned to defendant one hundred and seven of said carboys’of the value and at the said agreed price of one dollar and fifty cents each, amounting to the sum of $160.50, and that defendant accepted and received the same at New York and paid the freight thereon for plaintiff, but has neglected and 'refused to pay therefor.” Defendant, in his answer, admits “That on or about August 15, 1891, said plaintiff returned 107 of said carboys to the defendant.” In defendant’s answer it is alleged “ That it is the custom of trade, with which plaintiff, as defendant is informed and believes, was well acquainted, to permit the purchasers of carboys to return the same within a year and to receive therefor $1.50 per carboy, but that if the carboys were not returned within a year to pay but seventy-five cents therefor, providing the same were in a good condition.” By the evidence it appears that a written order was given by the plaintiff to and accepted by the defendant in the following language:

Deo. 28, 1888.
“ Joseph BiNNs, 183 Pearl St., New York:
“ You may enter an order for 140 carboys 66 brimstone acid at 95c. per 100 lbs., delivered F. O. B. cars at Mill 60 days breakage guaranteed. Shipment to be made Feby. 1st, with privilege to increase order to larger carload if Skaneateles Paper Co. wishes to go in.
“Accepted. Yours,
“Joseph BiNNs, F. Gr. WEEKS,
“ Por Joseph HaebiNG-toN.” C. Gr. W.

The order was made by Charles Gr. Weeks, son of the plaintiff, acting as agent for‘the plaintiff, and Harrington was then salesman for the defendant and received the order at plaintiff’s office at Skaneateles. Similar transactions had taken place between the parties during the year preceding. After the written order was given the plaintiff’s agent stated to the defendant’s agent “ That the usual arrangement for returning the carboys would apply to these carboys that contained the vitriol, and he said they would. * * * And the price to be paid for them should prevail.” It appeared in the evidence that the order had been signed before this conversation took place. The witness added, “ I had written the order and he had signed it before anything was said about the carboys. * * * I copied it in the letter book, and as I handed it to him I had the conversation about the carboys.” After this conversation had been stated, the defendant’s counsel moved to strike out the evidence. The motion was granted and an exception was taken. The plaintiff in effect offered to show that it was well understood by both parties that he should be allowed the price that he pai.d for the carboys, to wit, one dollar and fifty cents for each. There was a concession that the plaintiff paid one dollar and fifty cents per carboy. The plaintiff, in effect, offered to show that the amount that he was to get back was the same amount that he paid. This was objected to by the defendant, and the objection was sustained and an exception taken. Thereupon the defendant moved “ that plaintiff be nonsuited and the complaint be dismissed on the ground that there is no cause of action in the written contract, on the ground that it contains the whole agreement between the parties and cannot be varied by parol, and that, therefore, there is no evidence in the case to sustain the allegations of the complaint.” The motion was granted and the plaintiff excepted.

In Batterman v. Pierce (3 Hill, 172), where an action was brought upon a note, it was held that “ parol evidence that it was given for the price of goods sold, and that, at the time of the sale, the plaintiff made a promise to the defendant in respect to the goods, which has been violated, is not objectionable as tending to alter, modify or impeach the note.”

In Unger v. Jacobs (7 Hun, 221) it was held that(< the law does not exclude parol evidence to show the further agreement of one party, because that of the other has been reduced to writing. A written agreement having been signed by one party, parol evidence may be given of an agreement made by the other party, as a consideration of the written contract.’ In the course of the opinion in the case it is said: “ The instrument executed by the defendant was •designed to contain only the agreement made by him, which did not preclude him from showing what the jdaintiffs had undertaken to do by so much of the agreement as was made on their part for the purpose of securing the benefit of it to himself in the action.”

In Duparquet v. Knubel (21 Hun, 653) an action was brought to recover the price of a range placed by one Armour in a hotel owned by the defendant. Armour leased the hotel from the defendant and soon thereafter became dissatisfied with it and made an arrangement by which he surrendered the premises together with the range and other things to the .defendant, he being indebted at that time to the plaintiffs for the purchase price of the range. The surrender of the premises was in writing and the instrument therefor “ related by its terms only to the surrender of the leasehold premises. As part of the consideration inducing it, evidence was given tending to show that the defendant obligated himself to pay to the tenant the sum of $200, and also to pay to the plaintiffs the debt owing to them for the price of the range; ” and in disposing of the case the court said: “ As no provision was inserted in the instrument by which the surrender of the premises was made for the disposition of the range, it was entirely consistent with all that was contained in it to show the existence of the agreement alleged to have been made for the payment to tlie plaintiffs. This was a new subject-matter in no way whatever affected by or alluded to in the 'written agreement, and in no respect in conflict with any stipulation or recital contained in it. For that reason the plaintiffs were at liberty to show, as they endeavored to do by oral evidence, the existence of the agreement forming the basis of their recovery in this action. Parol evidence may always be given under such circumstances for the purpose of proving a separate and incidental agreement relating to matters neither contained in or alluded to by the terms of a contemporaneous writing.” Numerous authorities are cited in support of the proposition laid down to which reference is hereby made.

In Briggs v. Hilton, (99 N. Y. 517) it was held, viz.: “ At the time of a negotiation between the parties for the sale by plaintiffs to defendants of certain goods, plaintiffs gave to defendants a writing which acknowledged the receipt of an order for the goods and stated a time of delivery and the price. Held, that defendants were not estopped thereby from proving a parol warranty as to quality; that the instrument could not be construed as being the whole contract between the parties, but was simply in memorandum; that even if it could be construed as embodying a part of the agreement and so conclusive as to that part, oral evidence was competent to show the rest.” That case was referred to with approval in Routledge v. Worthington Co. (119 N. Y. 597), and in the latter case it is said: “ The rule which rejects parol evidence, when offered with respect to a contract between parties and put into writing, has no application to a case like this, where, of the original agreement which has been executed, a part only is in writing and the rest was verbal.”

The opinion delivered in Woodard v. Foster (64 Hun, 147) is in entire harmony with the cases to which we have just referred.

In the case in hand the oral agreement did not controvert nor was it inconsistent with the written order. (Chapin v. Dobson, 78 N. Y. 75; Juilliard v. Chaffee, 92 id. 529.)

In Thomas v. Scutt (127 N. Y. 140), in the course of the opinion, it was said that collateral agreements may be shown “ because they are separate, independent and complete contracts, although relating to the same subject. They are allowed to be proved by parol because they were made by parol, and no part thereof committed'to writing.” TVe think the rulings at the trial were erroneous and that the exceptions present errors which require a reversal.

Martin and Merwin, JJ., concurred.

Judgment reversed on the exceptions and a new trial ordered, with costs to abide the event.


author: Hardin, P. J.:

text:
    The Binghamton Savings Bank, Respondent, v. The Binghamton Trust Company, Appellant, Impleaded with Others.

      Assumption, by a grantee, of a mortgage on an undivided pm'tion of premises, another undivided portion of which is conveyed to him — constructive notice to the granted s incumbrancers and grantees — vendor’s lien for the purchase price of land.

    When a grantee accepts a conveyance of an undivided interest in a piece of real estate by a deed which contains a provision that he shall pay, as part of the purchase price, a certain bond and mortgage given by the grantor upon another undivided interest in the same premises, the mortgagee becomes entitled to receive the jmrehase money mentioned in said deed, and may maintain an action against the grantee for the payment of such purchase price, provided the grantor was personally liable to the mortgagee for the debt, the payment of which was thus secured by such grantor to the mortgagee.
    The performance of the covenant by the grantee, by the payment to the mortgagee, would be for the benefit of the grantor, and she has a legal interest that such covenant be performed in favor of the mortgagee.
    A lien for the unpaid purchase money which accrues in favor of the grantor at the time of a conveyance is not waived, satisfied or canceled by a covenant inserted in the deed to her grantee requiring him to assume a mortgage.
    The effect of such a provision contained in a deed is to render the grantee personally liable for the payment of the mortgage, as well as to create a lien upon the land which he receives from his grantor, and to obligate him to pay the purchase price by applying it upon such mortgage indebtedness of the grantor.
    The recitals in such deed and the statement therein that the purchase price is unpaid are in effect notice to the grantees or incumbrancers of such grantee of the fact that the purchase money was to be paid to the mortgagee, and that at the time the grantee received the deed the grantor had not been paid the purchase price for the premises conveyed thereby — it being notice of such facts to the grantee’s subsequent grantees or incumbrancers they are presumed to have been put upon inquiry and upon inquiry to have ascertained the actual situation in respect to the non-payment of the purchase price.
    The mortgagee will be required to first exhaust the lien acquired by him upon the undivided interest in such lands conveyed by his mortgagor to such grantee and to apply the proceeds of the sale thereof in liquidation of the grantor’s mortgage held by him.

      If a person becomes a lienor or grantee of real estate for a valuable consideration, without notice of the unpaid purchase money due and unpaid by his grantor therefor, he may maintain his right to the land as against the person to whom such purchase price is due from his grantor; but the law presumes an intention on the part of a vendor to retain his lien for the purchase money of real estate sold by him, and imposes upon the purchaser the burden of proving the contrary.
    Appeal by the defendant, The Binghamton Trust Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Broome on the 16th day of April, 1894, upon the decision of the court rendered after a trial at the Broome Special Term directing the foreclosure and sale of certain mortgaged premises.
    This is an action to foreclose a mortgage held by the plaintiff, The Binghamton Savings Bank, executed by May E. White for $2,500, on March 4, 1889, upon an undivided half of the premises described in the complaint, known as the White & Fuller Brewery property. When May E. White' executed the mortgage to the plaintiff in March, 1889, she executed and delivered therewith her personal bond obligating herself to pay the debt mentioned in said bond and mortgage. The mortgage was recorded on the 4th of March, 1889. On the 10th day of July, 1891, the defendant May E. White executed another bond dated on that day in the penalty of $5,000 to the plaintiff, and as collateral thereto on the same day she executed and delivered her mortgage whereby she conveyed to the plaintiff the same undivided half of the premises described in the mortgage of March, 1889, and the mortgage of July, 1891, was recorded on the 10th of July, 1891. May E. White was in default in observing the conditions of the bond and mortgage of March, 1889, when this action was commenced. Subsequent to the execution of the mortgage of March, 1889, and on the 4th of November, 1889, May E. White, by a deed of purchase from the defendant Fred L. White, which was recorded June 23, 1890, became the owner in fee of an undivided one-fourth of the premises described, and on the 23d day of June, 1890, May E. White, “ by deed of conveyance duly executed, sealed, acknowledged and delivered by her, duly conveyed to the defendant Fred L. White the same undivided one-fourth of said described premises that was conveyed to her by said Fred L. White on said November 4, 1889, which deed from said May E. White contained the following provisions: ‘ The second party assumes and agrees to pay as part of the purchase price of the above-described premises the bond and mortgage given by the first party hereto to the Binghamton Savings Bank, of date the 4th day of March, 1889, for the sum of $2,500, and recorded in Broome county clerics office in book of mortgages No. 81 at page 485 which is the mortgage and bond first set forth in the complaint; that said deed was duly recorded in the office of the clerk of Broome county on June 23d, 1890.” ■
    It is found as a fact: “ That on or about the 10th day of February, 1891, the defendants Fred L. "White and Mary S. White, his wife, duly executed, sealed, acknowledged and delivered to the defendant, the Binghamton Trust Company, a mortgage on the undivided half of the premises described, the premises conveyed being the one-half part which was not conveyed by the plaintiff’s said mortgage, by which they granted, mortgaged and conveyed to said the Binghamton Trust Company such undivided half of said premises, to secure the payment to said trust company of any and all indebtedness on notes made or indorsed by said Fred L. White, or by the firm of White & Hargrave, which were then held, or should afterward be held, by said the Binghamton Trust Company, to the amount of $17,000, which mortgage was duly recorded on said 10th day of February, 1891, in Broome county clerk’s office, in book of mortgages 86 at page 323.” It is also found that the indebtedness secured by said mortgage was not paid prior to February 10, 1892, and that there was “ actually due upon the said notes and indebtedness secured by said mortgage on said 10th day of February, 1892, the principal sum of $14,900,” to the trust company. It is also found that at the time of the execution of the mortgage on the 10th of February, 1891, to the Binghamton Trust Company, it “ had no actual knowledge of any claim on the part of said May E. White that the mortgage given by her to the Binghamton Savings Bank was a lien upon any part of the land covered by the mortgage given by said Fred L. White and wife to the' Binghamton Trust Company as aforesaid, or that said May E. White claimed to have any interest in or lien upon said premises, that is, upon the one-half part owned by Fred L. White.”
    It is found “ That a short time thereafter, and within ten days thereafter, it caused a search to be made of the records in regard to the title of the said Fred L. White to the premises covered by said mortgage, and thereupon learned of the contents of the deed from May E. White to Fred L. White, dated June 23, 1890.” It is also found “ That soon after the 11th day of April, 1891, and before the 14th day of that month, the Binghamton Trust Company was informed by the attorney for May E. White that she claimed that the mortgage given by her to the Binghamton Savings Bank, the plaintiff herein, was a lien upon the land covered by the mortgage given by said Fred L. White and wife to the Binghamton Trust Company, that is, that the mortgage given by her to the Binghamton Savings Bank liad become a lien upon said premises by agreement between her and the said Fred L. White, as set forth in said deed of June 23, 1890, and for other reasons.” The mortgage ..to the Binghamton Trust Company was foreclosed, and the premises covered by it were sold, and the trust company purchased the undivided half owned by Fred L. White and mortgaged to the trust company. It is found that in the month of April, 1891, Fred L. White “Became insolvent and unable to pay his debts, and has remained insolvent down to the time of the trial of this action.” It is also found “ That the said deed of June 23, 1890, mentioned in said foregoing thirteenth finding, expressed a consideration of $5,250, but the actual consideration agreed upon by the parties to said deed, as the purchase price of the premises by said deed conveyed, was the payment by the grantee therein, to the Binghamton Savings Bank, of its bond and mortgage bearing date of March 4, 1889, being the bond and mortgage set forth in the complaint and mentioned in the foregoing second and third findings of fact, and also being the same bond and mortgage referred to in the covenant contained in said deed of date of June 23, 1890. That said purchase price was not paid, nor has the consideration of said conveyance of June 23, 1890, or any part thereof, been paid.” It is found “ That said Fred L. White has not performed such agreement other than by entering into the covenant inserted in said deed of date of June 23,1890, mentioned in the foregoing thirteenth finding.”
    As matter of law the court found:
    “ First. That by the covenairt contained in and recorded with the deed from said May E. White to said Fred L. White, of the date of June 23, 1890 said Fred L. White, the grantee therein named, became liable for the payment of the amount of plaintiff’s first bond and mortgage set forth in the foregoing second and third findings of fact, to the holder thereof, and the undivided one-fourth part of the property conveyed by said deed of June 23, 1890, became chargeable in equity with the payment of such bond and mortgage, and the amount of such bond and mortgage became an equitable lien on said fourth part while held by the grantee under said deed.
    Hun.] Fourth Department, February Term, 1895.
    “ Second. That the recitals and provisions contained in said deed of June 23, 1890, were notice to the defendant, the Binghamton Trust Company, that such portion of the purchase price of said fourth part so conveyed remained unpaid as was sufficient to pay and satisfy the amount of said first bond and mortgage of the plaintiff. That they were also, notice to said the Binghamton Trust Company of the covenant of said Fred L. White contained in such deed to pay and satisfy said bond and mortgage, and also that said one-fourth interest in the property conveyed by said deed is primarily chargeable in equity with the plaintiff’s said first bond and mortgage.”
    Also, “ That said undivided one-fourtli interest * * * is primarily chargeable in equity with the payment of the amount of plaintiff’s first bond and mortgage, executed by said May E. White on said 4th day of March, 1889, and said one-fourth part is the primary security out of which the amount of said bond and mortgage should be paid, and the said May E. White is entitled to have said undivided one-fourtli interest in the premises that were conveyed by her to said Fred L. White by said deed of June 23, 1890, sold under a decree of the court, and the proceeds derived from such sale applied to the payment of the amount of said first bond and mortgage of the plaintiff of date of March 4, 1889, before the plaintiff sell the one-half interest in the property mortgaged by said May E. White to plaintiff, on March 4th, 1889.”
    W. J. Welsh, for the Binghamton Trust Company, appellant.

      D. S. db R. B. Richards, for May E. White, respondent.

      G. L. Sessions, 'for the plaintiff, respondent.
   Hardin, P. J.:

Manifestly the purchase price of the undivided quarter conveyed by May E. White to Fred L.'White has never been paid by him to her, or to her appointee, for her benefit. When the conveyance was. made by her, her deed contained the covenant on the part of her grantee, Fred L. White, that the purchase price, to the extent of $2,500, should be paid to her creditor, the plaintiff, who held her personal covenant as well as her mortgage, to secure the sum upon her undivided half of the premises mentioned in the mortgage. Ns soon as Fred L. White accepted the conveyance from his sister, May E. White, with the conditions and covenants as to payments of the purchase price mentioned in the deed, the plaintiff became entitled to receive the purchase money mentioned in said deed, and to maintain an action against Fred L. White for the payment of the purchase price, inasmuch ,as May E. White was personally liable to the plaintiff for the debt secured by her to the plaintiff. (Carrier v. United Paper Co., 73 Hun, 287; Vrooman v. Turner, 69 N. Y. 282; Lawrence v. Fox, 20 id. 268; Pardee v. Treat, 82 id. 389.)

It was said in Burr v. Beers (24 N. Y. 179), and in Garnsey v. Rogers (47 id. 242), that the liability of the grantee to the mortgagee rested upon the equitable right of subrogation; and in refen-ing to that doctrine Finch, J., says, in Gifford v. Corrigan (117 N. Y. 264), viz.: “ It was held that where the mortgagor acquired a new security for his indemnity against the debt which he owed to the mortgagee, the latter might, in equity, be subrogated to the right of his debtor, and, under the statute permitting any person liable for the mortgage debt to be made defendant and charged with a deficiency in the foreclosure, the new covenant became available to the mortgagee.” Nnd the same judge, later on in the same case, seems to approve of the suggestion of Andrews, J.,-given in the following language: “ Niter all, does not the direct right of action rest upon the equity of the transaction ? ” The doctrine stated in Gifford v. Corrigan {supra) was approved and restated in Townsend v. Rackham (143 N. Y. 522. See Gifford v. Corrigan, 105 N. Y., near the close of the opinion, at page 229.)

In N. Y. Life Ins. Co. v. Aitkin (125 N. Y. 660) it was held that a covenant in a deed whereby the grantee assumes and agrees to pay a mortgage, after it has come to the knowledge of the owner of the mortgage and has been adopted by him as security for his own benefit, “ may not be released by the grantor without the assent of the mortgage creditor, and such a release is no defense to an action brought by the latter upon the covenant.” And in Post v. W. S. R. R. Co. (123 N. Y. 580) it was held that “ an undertaking in a deed on the part of the grantee to perform certain acts, becomes, on delivery of the deed to and acceptance by him, effectual as a contract on his part to perform the undertaking, and, upon refusal on his part to perform, an action for specific performance or for damages is maintainable.” The performance of the covenant by Fred, the grantee in the deed, by payment to the' plaintiff, would have been for the benefit of the grantor, as she had a legal interest that the covenant be performed in favor of the plaintiff. (Durnherr v. Rau, 135 N. Y. 219.) In the case in hand the covenant was entered into for the benefit of the grantor, and such benefit would inure to her by the performance, and it was, therefore, within the contemplation of the parties that a benefit should accrue to her by the performance of the covenant on the part of the grantee in the deed.

In King v. Whitely (10 Paige, 468) it was said that the principle of the cases “is that in equity the creditor-is entitled to the benefit of all collateral obligations for the payment of the debt, whicli a person standing in the situation of a surety for others has received for his indemnity, and to relieve him or his property from liability for such payment.” (See Curtis v. Tyler, 9 Paige, 435; Halsey v. Reed, Id. 451.) The lien for unpaid purchase money which accrued in favor of May E. "White at the time of the conveyance was not waived, satisfied or canceled by the covenant inserted in the deed which she made to her grantee, Fred L. White. (2 Washb. on Real Prop. [3d ed.] 90, § 16, *507; Maroney v. Boyle, 57 N. Y. St. Repr. 604; 141 N. Y. 462.) May E. White did not expressly and consciously waive her lien for unpaid purchase money; on the contrary, she inserted a clause in the deed which she gave, requiring it to be satisfied by paying the same upon an indebtedness for which she was personally liable to the plaintiff. The effect of the stipulation in her deed to Fred was to render him personally liable, as well as to create a lien upon the land which he received from her, to pay the purchase price therefor by applying it upon an indebtedness of hers to the savings bank, the plaintiff. The recitals in her deed to Bred, and the statement that the purchase price was unpaid, were, in effect, notice to his subsequent grantees or incumbrancers of the fact that the purchase money was to be paid to the plaintiff, and that at the time she gave the deed she had not been paid therefor ; and being notice of such facts to his subsequent grantees or incumbrancers, they are presumed to have been put upon inquiry, and upon inquiry to have ascertained the actual situation in respect to the non-payment of the purchase price. (Williamson v. Brown, 15 N. Y. 354; Pitney v. Leonard, 1 Paige, 461; Howard Ins. Co. v. Halsey, 4 Seld. 272; Brush v. Ware, 15 Pet. 93; Jumel v. Lagardere, 7 Paige, 591; Acer v. Westcott, 46 N. Y. 384.)

The question of constructive notice was involved in McPherson v. Rollins (107 N. Y. 322), and in the course of the opinion upon that question it was said: As intending purchasers they must be presumed to investigate the title and to examine eveiy deed or instrument forming a part of it, especially if recorded; they must, therefore, be deemed to have known every fact so disclosed (Acer v. Westcott, 46 N. Y. 384), and every other fact which an inquiry suggested by those records would have led up to.”

In Cordova v. Hood (17 Wall. 1) it was held that where a deed of land shows on its face that the consideration is yet to be paid,” a second purchaser who has notice of the deed takes the land subject to the vendor’s lien, unless such a lien has been in some way waived. In the case of such a deed it is the duty of the new purchaser to inquire;' and where inquiry is a duty, the party bound to make inquiry is affected with all the knowledge which he would have got had he inquired.” (Russell v. Pistor, 3 Seld. 171.) Undoubtedly, it is true that if the trust company was a lienor or grantee without notice of the unpaid purchase money, and for a valuable consideration, it might maintain its right to the land as against May E. White, or her appointee. (Mahoney v. Boyle, supra.)

It was said in Garson v. Green (1 Johns. Ch. 308) that a vendor has a lien upon the estate sold for the purchase money while the estate is in the hands of the vendee, and that prima facie the purchase money is a lien, and it lies on the vendee to show the contrary. (Camp v. Gifford, 67 Barb. 434.)

In Bradley v. Bosley (1 Barb. Ch. 125) it was said that a person having an equitable lien upon land for the unpaid purchase money may apply to a court of equity in the first instance to enforce the lien without resorting to a suit at law to recover the amount.

In Benedict v. Benedict (85 N. Y. 625) it appeared that the plaintiff had sold lands to the defendant for which he had not been paid, and that the purchase price remained due, and it was said: “Nothing more was needed to show that he had an equitable lien for such purchase price.”

In Du Bois v. Hull (43 Barb. 26) it was held that a vendor’s lien upon the land sold, for the purchase money, can only be waived by taking collateral security, or by an express agreement to that effect. And it was said that the party disputing the lien must show that the vendor agreed to rest on other security and to discharge the lien. The law presumes an intention on the part of the vendor to retain his lien for the prarchase money, and imposes upon the purchaser the burden of proving the contrary. And in section 1231 of Story’s Equity Jurisprudence it is said : “ So, liens may be created on the purchase money, due on the sale of an estate, in favor of a vendee, if it is agreed that the money shall be deposited in the hands of a third person, to be applied in discharge of prior incumbrances, to the-extent of such incumbrances. * * * For it is a general principle in equity that, as against the party himself, and any claiming under him voluntarily, or with notice, such an agreement raises a trust.”

In Seymour v. McKinstrey (106 N. Y. 230) it was held that “ the lien of a vendor of real estate for unpaid purchase money is good against the vendee and the whole world, unless waived or defeated by an alienation of the property by the vendee to a purchaser without notice.”

It seems to follow from the foregoing views that the appointee of May E. White, the plaintiff, was properly required to exhaust the lien acquired by it upon the undivided fourth, and apply the proceeds of the sale thereof in liquidation of the mortgage held by it against the undivided half of the premises, and that such direction as was given at the Special Term, and as has been carried in the judgment, is in accordance with the principles of equity and justice. Thus the purchase price, which never has been p>aid, is to be asserted against the fourth part of the premises, before the rights of the trust company therein are asserted. May E. White’s equities transferred to .the plaintiff, her creditor, were prior in point of time. A contrary rule would enable. Fred L. White’s grantee to obtain the land without payment, and would work an injustice (if not a fraud) upon the rights of May E. White.

(2) It is suggested by the learned counsel for the trust company that the relief accrued to May E. White could not be given in this action, and our attention is called to sections 521 and 1204 of the' Code of Civil Procedure. In section 521 it is provided that a controversy between defendants shall not delay a judgment to which the plaintiff is entitled unless the court otherwise directs. Inasmuch as-no case containing the record' of the proceedings at the trial is presented before us, we are not advised that any such question was raised upon the trial. If it was raised, it may be assumed the court directed the determination of the controversy between the defendants in-accordance with the provisions of the section, and that proper relief was demanded in the answers, and that they were properly served on the several defendants. (Ostrander v. Hart, 130 N. Y. 406.)

In section 1204 it is provided that judgment may be given for or against one or more- defendants, and- that it may determine the ultimate rights of the parties on the same side as between -themselves, and may grant to a defendant any affirmative relief to which he is entitled.

In Smith v. Hilton (50 Hun, 237) a motion was made to strike out certain allegations in the answer, and it was granted upon the idea that the allegations were such as to present a new cause of action, and in delivering the opinion in that case and commenting upon the sections of the Code of Civil Procedure, it was said: “ They were intended to follow and preserve the powers exercised by courts of equity in actions brought for their determination, as that was permitted and sanctioned by the law and practice previously existing. And by that practice, as well as by the language of these sections, the rights of the defendants, to be determined between themselves, must necessarily be those arising out of, or connected with, or resulting from, the cause of action set forth and maintained by and in favor of the plaintiff.’ ’ Wo see nothing in the case inconsistent with the course adopted on the trial of the action now before us. That case seems to be in harmony with Kay v. Whittaker (44 N. Y. 565), where it. was held that “ the relief which defendants may have as against each other, must be based upon the facts involved in the litigation of the plaintiff’s claim, and as a part of the adjustment of that claim, and not upon claims with which the plaintiff has nothing to do, and which are properly the subject of an independent litigation between such defendants.” (See Derham v. Lee, 87 N. Y. 599.)

We are not persuaded that the appellant suffered any injury by having all the questions relating to the plaintiff’s mortgage and the several rights and interests it has in the property that secures the same determined in this action; inasmuch as Fred L. White and May E. White are parties to the suit, and were actors in the trial, and were heard in connection with the proofs given in regard to the appellant’s rights. We think the decision pronounced at the Special Term is in accordance with the rules of equity.

Merwin, J., concurred; Martin, J., not voting.

Judgment affirmed, with costs.


text:
    Harriet A. Grinnell, Respondent, v. William G. Taylor, Appellant.

      Personal injuries, caused by a horse on a sidewalk — a milage ordinance admissible in evidence — questions for the jury — use of a sidewalk — value of plaintiff’s semiices in business, as damages — inference from a failure to produce evidence.

    Upon tlie trial of an action brought to recover damages resulting from personal injuries sustained by reason of the alleged negligence of the defendant in leading a horse along the sidewalk of a .village street, it is proper to receive in evidence an ordinance of the village in the following language :
    “No person shall ride on horseback, or lead or drive any horse, cattle, sheep or swine, or roll any wheelbarrow, on any of the sidewalks in said village otherwise than crossing into or out of their premises, or for the purpose of loading or unloading, or slide or skate on any sidewalk in the said village, under penalty of one dollar for each effense.” ■
    Where the evidence in such an action is conflicting, it is for the jury to determine whether, in the management of his horse, the defendant exercised the reasonable care which a man of ordinary prudence might be expected to exercise under like circumstances.
    It is not necessary that a horse should be vicious in order to make the owner responsible for injury done by him through the owner’s negligence. If the most gentle horse be driven so negligently as tc do injury to persons or property, the owner or driver will bi^ responsible.
    A person in a wagon is not entitled to the same use of a street in a village as a person on foot; a person on foot has the right to the sidewalk of a village street as against a person in a wagon. It is for the jury in such an action to determine whether it was negligent in the defendant to walk on the sidewalk of the village street and to lead his horse'in the road at the side of the sidewalk so that the horse occasionally, and against his resistance, stepped upon the walk.
    Upon the trial of an action brought to recover damages for personal injuries, it is proper for the court to submit to the jury, on the subject of damages, the question as to the value of the services of the plaintiff in her business, and to allow the jury to ascertain the loss resulting from her being interfered with in the transaction of her ordinary business.
    Upon the trial of such an action the court was asked by the defendant to charge the jury that “if there was evidence at the command of the plaintiff * and she refuses to produce it or permit the defendant to use it, that the jury have the right to infer that such evidence would be unfavorable to the plaintiff’s case.” In response thereto the court observed: “I will allow the jury to take that circumstance and all other circumstances into consideration in their deliberation.”

      Held, that the answer made by the court was sufficiently favorable to the defendant and that no error was committed thereby.
    Appeal by the defendant, William G. Taylor, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Jefferson on the 23d day of February, 1894, upon the verdict of a jury rendered after a trial at the Jefferson Circuit, and also from an order entered in said clerk’s office on the 1st day of March, 1894, denying the defendant’s motion for a new trial made upon the minutes.

      Frederick W. Thomson, for the appellant.

      O. W. Thompson, for the respondent.
   Hardin, P. J.:

Plaintiff, in her complaint, alleges that on the 22d day of April, 1893, she was traveling on foot upon the sidewalk in the principal street in the village of Alexandria Bay, and that defendant, on the same occasion, was wrongfully, unlawfully and carelessly leading a horse along and upon the sidewalk, traveling in an opposite direction, “and the defendant so carelessly and negligently led and managed his horse aforesaid as to permit his said horse to attack and kick the plaintiff in her back, and in region of her back, while she was upon or near said walk, which, attack, and kicking as aforesaid, was inflicted upon plaintiff without fault or neglect on her. part.”

The defendant denied the allegations of the complaint, and alleged that the injuries received by the plaintiff were not due to any negligence, fault or carelessness of the defendant, but were received by the plaintiff and were caused on account of the plaintiff’s own fault, negligence and want of care, and that plaintiff inflicted the injuries herself upon her own person. At the close of the plaintiff’s evidence the defendant moved for a nonsuit upon the alleged grounds: “ First. The plaintiff has failed to make out a cause of action against the defendant. Second. The plaintiff has failed to show any negligence upon the part of the defendant'. Third. The plaintiff has failed to show viciousness upon the part of the defendant’s horse, or that he had previous knowledge of any vice in the horse. Fourth. That the plaintiff, if there was any negligence, herself contributed to the alleged injury.” The motion was denied, and at the time the court observed: I will not hold as a matter of law the defendant in this case had a right to lead his horse in such close proximity to the sidewalk when people are passing along. I think I will leave it to the jury, under all the circumstances, to say whether the defendant exercised proper care in the management of this horse, considering where he was and all about it, what the horse was doing and all the facts.” At the close of the whole evidence a similar motion on similar grounds was repeated by the defendant and an exception taken to the denial thereof.

It is contended by the appellant that the plaintiff failed to show any negligence on the part of the defendant. It appeared that the village of Alexandria Bay is incorporated, and has a population of about 1,500, and that "Walton is one of the principal streets, and that on the 22d of April, 1893, the defendant was the owner of a young, strong horse about six years of age, and weighing some 1,250 pounds, and was leading him easterly along "Walton street to a blacksmith shop, and there was some evidence that the defendant walked on the sidewalk on the northerly side of the street, and the horse was part of the time walking along the outer edge of the walk, playing, prancing, rearing, and occasionally stepping upon the sidewalk; and the defendant was walking abreast of his shoulder, and grasping the halter down to about eighteen inches from the head. The plaintiff was returning home from a neighbor’s upon the sidewalk, and met the defendant on the sidewalk near Coy’s house, when she perceived the actions of the horse, and, appreciating the danger, stepped off the walk into Coy’s yard away from defendant, when the horse kicked her, striking her with one foot in the small of the back on the left side over the kidneys. She did not fall, but staggered a few steps, aud sat down on the piazza in front of Coy’s house. After the kicking, the horse swung around crosswise of the street, with his head toward the walk, and there is evidence that the defendant then said, “ Girl, did he hit you?” to which plaintiff replied, “Yes.” Thereupon the defendant said, “ Where did he hit ? ” and the plaintiff replied, “ On my back.” The defendant then went on to the blacksmith shop, where he left the horse, and returned to the house of Coy, picking up the books which had been dropped by plaintiff in the yard when the collision took place. After sitting on the piazza a few minutes plaintiff entered the house, when one Blanche Hibbard came down from upstairs into the room where the plaintiff sat, and bathed plaintiff’s hands with hot water, and gave her some camphor. The plaintiff and Miss Hibbard went into the bedroom, where Miss Hibbard examined the plaintiff’s back, and testified that she saw a large red spot about the size of a tea saucer in the plaintiff’s back on the left side. This occurrence was about eleven o’clock in the forenoon, and the plaintiff, after remaining at Coy’s house for a time, walked home a short distance, and, it is claimed, with the assistance of the defendant. Miss Hibbard testifies that during the time that defendant was at the house of Coy she “ heard him say he was just going to tell Mrs. Grinnell to step off the walk.” The witness McCue testifies that he had a conversation with the defendant a few days after the occurrence, and the witness says, “ I met him on the sidewalk, and he asked me how the girl was. I told him I could hardly say ; and he made the remark to me at that time, I was just agoing to tell her to leave the walk.’ That was the conversation we had.” In the course of the testimony delivered by the plaintiff herself she testifies that when she turned the comer coming up the street to Coy’s from the lane going back up Walton street, she noticed the defendant coming with a horse at Keeler’s. She says, “ The horse was prancing, and I noticed Mr. Taylor’s hand — from the horse’s nose to his hand, a rope about like that (indicating); and I looked up. He had. hold of a rope at a distance from the horse’s head of about half a yard, I should think. The other hand down like this {indicating) by his side swinging like that, and I started to leave the walk when I saw that, saw the horse. I just stepped off the walk into the yard of Coy’s house when the horse hit me- on the left side of my back and staggered me. I didn’t go down, it - just staggered me, and I put my hand up against the center of the piazza, there was three posts, and then I sat down there. When Hr. Taylor got the horse straightened around so that he could, he said, £ Girl, did he hit you ? ’ and I said, £ Y es.’ He said, £ Where did he hit % ’ I ■said, £ On my back.’ He said, £ Hid he hurt you much % ’ and I said, * I don’t think it did, you may go on, you need not wait.’ After kicking me, the horse went out into Walton street because Hr. Taylor’s back was to me when I was sitting on the porch after I sat •down. The horse was standing crosswise on the street. It was a board walk, four feet wide, I think. The horse was stepping on the walk and on the ground, first one, and then just touching the walk.” In the course of her cross-examination she says : ££ When I first saw the horse he wasn’t in the road at all; he was stepping on the sidewalk and then on the grass, first one foot and then the other, by the side of the sidewalk; it was the road side, and side of the sidewalk too. * * * He was not exerting himself very much; he was not struggling with the horse'to keep him in subjection; he was walking right along fast. The halter was drawn kind of taut; he was back from the horse’s neck a little ways. * * * Before I came opposite the horse I hadn’t got into the yard at all, I had just stepped onto the ground when the horse hit me ; I had just stepped off the walk onto the ground, hardly started to go when he hit me; so that I was on the sidewalk, on the side of the walk next to the yard. Hr. Taylor was there next to the road; he wasn’t way out, he was in a little ways on the walk.” Other witnesses were called who stated several circumstances observed by them, and related such parts of the occurrence as were known to them. The defendant, in the course of his testimony, says : The road was muddy, and the walk there is'somewhat lower than the road, mud and water, and it is pretty muddy there, and I stepped onto the walk there and followed that walk until I crossed Holland street, and continued till I got to this lane, and there I crossed the street to the shop. The horse at this time was on the street side of the walk; he was not on the walk at any of those times. I was walking on the edge of the walk, leading the horse with my right hand; I had the slack of the halter in my left hand; I had my other hand up to the ring in the halter stall.” He states that the horse was not prancing when he met the plaintiff, and passed her about opposite the corner of the Coy house ; and in further description of what took place at the time of the alleged collision, he says she stood with her hands out, “ seemed scared, that is what I would call it. She appeared scared, yes sir, in fact, was, so that it caused me to say, "What is the matter, girl ? ’ and she said, ‘ I think your horse kicked me.’ ‘ "Well,’ said I, ‘ if he did, go and sit down on the piazza, and I will put my horse in the shop and come back.’ So she walked in there over to the piazza.” The defendant called some witnesses who observed some part of the occurrence relating to the alleged collision, tending to support the theory of the defendant that the horse did not strike the plaintiff. Plaintiff gave evidence to the effect that there was an ordinance of the village relating to the use of the sidewalks thereof in -the following language : “No person shall ride on horseback, or lead or drive any horse, cattle, sheep or swine, or roll any wheelbarrow, on any of the sidewalks in said village othérwise than crossing into or out of their premises, or for the purpose of loading or unloading, or slide or skate on any sidewalk in the said village, under penalty of one dollar for each offense.” The ordinance was properly received bearing upon the question of the alleged negligence of the defendant.

In McGrath v. N. Y. C. R. R. Co. (63 N. Y. 530) it was said: “The object of the ordinance was the security and protection of the travelers upon the streets. The defendant must be held to have known of its existence, and all persons within the city were bound to take notice of it as if it had been a law regularly enacted by the Legislature.” Near the close of the opinion in that case it is said, viz.: “ A violation or disregard of the ordinance, while not conclusive evidence of negligence, is some evidence upon the question to be submitted to the jury, with all the other evidence.” Upon the whole evidence, although it was somewhat conflicting, we think it was a question for the jury to determine whether the defendant, under the circumstances, was guilty of negligence in the management of his horse on the occasion when the alleged injury took place. The case presented differs very essentially from Smith v. Matteson (41 Hun, 216), as in that case there was no evidence “ that the boy employed was careless in the discharge of his duties ” in managing the cow, and there was “ no evidence that the boy did or omitted an act which caused the accident.” The evidence called upon the jury to determine whether the defendant failed to use, in the management of his horse, “ the reasonable care which a man of ordinary prudence might be expected to exercise under like circumstances.” Such was the rule of law stated in Moynahan v. Wheeler (117 N. Y. 285) by Dankorth, J., near the close of his opinion.

During the trial the judge properly' ruled that the defendant could not be made liable by reason of any supposed viciousness of the horse as the evidence did not establish it, or that the defendant had knowledge that the horse was vicious. (Van Leuven v. Lyke, 1 N. Y. 515.) The doctrine of that case was explained in Moynahan v. Wheeler (supra).

In the course of the opinion delivered in Dickson v. McCoy (39 N. Y. 400), which case involved an inquiry as to whether the defendant had been guilty of negligence in suffering his horse to go at large upon the sidewalk, it was stated that the negligence of the defendant rendered him liable. The following language was used: “ It is not necessary that a horse should be vicious to make the owner responsible for injury done by him through the owner’s negligence. * * * If the most gentle horse be driven so negligently as to do injury to persons or property, the owner or driver will be responsible. Certainly, not less so if the horse be negligently turned loose in the street without restraint or control.” "We are of the opinion that the trial judge properly refused to nonsuit the plaintiff, and that he properly instructed the jury upon the subject of the defendant’s liability, if found guilty of negligence in the management of his horse on the occasion when the injury occurred to the plaintiff. (Crozier v. Reed, 28 N. Y. Supp. 914.)

(2) We are of the opinion that, upon the evidence produced at the trial, the court properly submitted the question as to whether the plaintiff, on the occasion, was guilty of contributory negligence. There was evidence tending to support the finding as made by the jury that the plaintiff was free from any negligence which in any manner contributed to the injury which she received.

(3) We think that no error was committed in refusing to charge the jury that there are no limitations upon the right to the use of the highway except the boundaries thereof. If the proposition intended to have the court rule contrary to the ordinance of the village, it was properly refused. The court had already stated that “ a person in a wagon is not entitled to the same use of the street as a person on foot. A person on foot has the right to the sidewalk as against a person in a wagon.”

(4) The court was asked to charge the jury that “ it was not of itself negligence for the defendant to walk upon the sidewalk and lead his horse in the road at the side of the sidewalk, notwithstanding the horse occasionally, and against his resistance, stepped his foot upon the walk.” In response to that request the court observed: “I leave it to the jury to say whether, under the circumstances of the case, it was negligence.” We think the court committed no error in that ruling. We think no error was committed by the court in submitting 'to the jury, on the subject of damages, the inquiry as to thé value of the services of the plaintiff in her business, and allowing the jury to ascertain the loss by reason of her being interfered with in the transaction of her ordinary business: (Walker v. The Erie Railway Co., 63 Barb. 260; Ehrgott v. The Mayor, 96 N. Y. 276, and cases there cited.)

In Kessel v. Butler (53 N. Y. 612) a witness was asked “how much money he made prior to the injury from work at his trade,” and objections to it were overruled, and it was held that no error was committed.

In Nash v. Sharpe (19 Hun, 366) it was said: “ It seems to be settled that, in an action for loss of services, evidence of the nature and extent of the party’s business, or how much he was earning from his business, or realizing from fixed wages, is proper upon the question of damages.”

In McIntyre v. N. Y. C. R. R. Co. (37 N. Y. 287) it was held that an inquiry as to what the deceased party usually earned was proper in estimating damages; and at the close of the opinion in Grant v. City of Brooklyn (41 Barb. 385) it is said: “ Indeed, where the damages are for the loss of services, I see no evidence so unobjectionable and so reliable as that which shows how much the party was earning from his business, or realizing from fixed wages, at the time to which the loss refers.” (Pill v. Brooklyn Heights R. R. Co., 27 N. Y. Supp. 230.)

(5) The court was asked to charge the jury that, “If there was evidence at the command of the plaintiff, * * * and she refuses, to produce it, or permit the defendant to use it, that the jury have the right to infer that such evidence would be unfavorable to the plaintiff’s case.” Iu response thereto the court observed: “ I will allow the jury to take that circumstance and all other circumstances into consideration in their deliberation.” We think that the answer made by the court was sufficiently favorable, and that no error was committed. (Schwier v. N. Y. C. & H. R. R. R. Co., 90 N. Y. 558; Crary v. Crary, 18 N. Y. Supp. 753.)

(6) We think the verdict was not against the weight of evidence,, and that the questions of fact were properly determined by the jury, and that the damages allowed to the plaintiff are not excessive. (Fisher v. Smith, 18 N. Y. Supp. 752; Crozier v. Read, 28 id. 915.)

The judgment and order should be affirmed, with costs.

Martin and Mérwin, JJ., concurred.

Judgment and order affirmed, with costs.


text:
    Sarah M. Simmons, Appellant, v. Catherine A. Peters, Respondent.

      Damages for personal injuries — risks occasioned by defects in an elevator — when unknown they are not assumed, by an employee.

    If, upon the trial of an action brought to recover damages resulting from personal injuries sustained by reason of the defendant’s alleged negligence, the evidence is sufficient to justify the jury in finding that the plaintiff had no knowledge of the defects and insufficiencies in the appliances and surroundings of an elevator in use upon her employer’s, the defendant’s, premises, by reason of the defective condition of which she sustained the injuries complained of, it is error for the trial court to hold as a matter of law that the plaintiff assumed the risk arising out of such defects and deficiencies.

      Appeal by the plaintiff, Sarah M. Simmons, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of Onondaga on the 10th day of November, 1893, upon the dismissal of the complaint directed by the court after a trial before the court and a jury at the Onondaga Circuit.

      White <& Oheney, for the appellant.

      W 8. Andrews, for the respondent.
   Hardin, P. J.:

Defendant was engaged in the manufacture of shirts on Noxon street in the city of Syracuse on the 7th of April, 1890, the business being under the supervision of her husband, Henry Peters. She occupied half the basement, half the first floor and the whole of the fourth floor. On the morning of April 7, 1890, which was a dark, rainy morning, Brown, one of defendant’s employees, having reached the store shortly after seven o’clock, found the elevator door closed and .locked. "While he was unlocking the door the plaintiff and her two daughters and Miss Garthe and Miss Washner entered the building; they advanced toward the elevator, some eighteen and a half feet distant from where they entered the building, and at that moment Brown called out to them to hurry, and he opened the elevator door, stepped inside and reached for the cable, so as to bring the elevator car down, which was on the fourth floor. As he swung into the elevator, he seems to have been partially, if not wholly, out of sight of the plaintiff, who was then some nine feet distant from him, and when he reappeared the plaintiff was some four or five feet distant from him. Brown was about three or four feet from the door when she walked in. Brown, on taking hold of the cable, discovered that the elevator was locked at the fourth floor, and, as he turned and stood in the doorway facing the women with his back against the casing, his right hand was on the cable and his left holding the door, which had closed against his arm. The door was open about two and a half feet. The plaintiff continued to walk steadily forward. Miss Garthe had a wet umbrella, and she jokingly spattered some drops of water on Brown, and he let go liis hold upon the cable and the door and turned from the elevator, suddenly took a step or two from the doorway and seized the umbrella. Tlie plaintiff advancing, in the absence of gaslight, reached the elevator, stopped and looked ahead, saw the door standing open, and, supposing that she saw the elevator car, walked in and fell a distance of some twelve feet into the cellar, breaking her leg, from which resulted an amputation, and sustaining injuries for which this action was brought. The door stood about two and a half feet open at the time she passed in. There was some evidence tending to show that the door was stuck on the uneven and worn shoulder. She had ridden upon the elevator on previous occasions, and on no occasion had she seen the door open except when the elevator car was .at tlie landing. She had in one hand at the time she entered tlie building a dinner box, and in tlie other a can of coffee, and did not herself touch the door. She had been accustomed to use the elevator with some forty other women for approach to the fourth floor, where she was engaged in the performance of her duties, and apparently from her experience and obser-. vation of such use she supposed that when the door was open it indicated that the elevator was present. It appears in the evidence that the husband of the defendant had previously received a warning that the condition of the elevator door was defective. He at that time was acting as manager for liis wife, and as such was carrying on the business, 'and he knew that the door did not have automatic attachments, and had seen the elevator door remain partly open on some occasions. There is no exact evidence as to the length of time that elapsed from the moment when Brown stepped away from the door and the moment when plaintiff fell. There is evidence to the effect that from the time Brown stepped out of the opening and the time when the plaintiff walked in, the door remained in a stationary position, leaving an opening of about two and a half feet, and that the door was stationary when the plaintiff passed into the opening.

In chapter 462 of the Laws of 1887, in section 8, it is provided as follows: “ It shall be the duty of the owner, agent or lessee of any manufacturing establishment where hoisting shafts or well holes are used, to cause the same to be properly and substantially enclosed or secured, if, in tlie opinion of the inspector, it is necessary to protect the life or limbs of those employed in such establishments. It shall also be the duty of the owner, agent or lessee to provide, or cause to be provided, such proper trap or automatic doors, so fastened in or at all elevator ways as to form a substantial surface, when closed, and so constructed as to open and close by action of the elevator in its passage, either ascending or descending.” The evidence warranted a finding by the jury that the statute had not been complied with by the defendant.

G-uetig, the factory inspector, who had been, in the discharge of his duty, upon the premises of the defendant and made an examination of the door, testified as follows, viz.: “ I worked the door myself ; it didn’t work; I opened it; it didn’t close when the elevator left it; it was not closed at the time; it was open when I came there. * * * The door itself and its connections had no connection with the elevator; * * * an automatic door on an elevator is a door that works by the action of the elevator itself, either going up or coming down opens the elevator door when it strikes a landing, and closes it when it leaves it, a door which is governed and held in place by the action of the elevator in its motion ascending or descending.” The witness added, Then there are others that have trap doors that open or shut. * * * There always must be a weight to close them.”

The evidence shows that the defendant’s elevator door was hung by iron supports to wheels resting on the tracks moving in grooves. The track inclined toward the shutting of the door, and the door, if it followed the incline downward, would shut. It was about six feet in width and six and a half to seven feet high, and the sill was a solid board grooved out so as to leave a shoulder on each side. Trucks were used on the ground floor for wheeling goods, and they were wheeled across the sills into the elevator, and they had slivered the shoulder and worn it down so that it had become uneven, rounded, and would allow the door to catch. “As the door approached being shut, it would gradually go down into this groove, and the shoulders being worn off, it didn’t run perfectly straight. It would catch on those shoulders and stop, the lower edge of the door, instead of shutting, and would then stand partly open without any one’s holding it.” That condition of things had existed some six months prior to the accident. It appeared in the evidence that “ before the time of the accident there was no person whose business it was to operate the elevator regularly; ” and that, “there was no published or oral rules with reference to its operation.” Whether the defendant was guilty of negligence which contributed to the injury received by the plaintiff, and whether the plaintiff was free of contributory negligence, were questions of fact which should have been submitted to the jury. (Freeman, v. Glens Falls Paper Co., 39 N. Y. St. Repr. 621; Tousey v. Roberts, 114 N. Y. 316; Peil v. Reinhart, 127 id. 381; Morrison v. The Metropolitan Telephone Co., 52 N. Y. St. Repr. 603.) But it is contended by the respondent that the plaintiff assumed any risk that might be caused by the defects and insufficiencies of the approaches and appliances in and about the elevator. It appears by the evidence that she had been for some five months in the employ of the defendant and had most of that time used the elevator in the morning and evening, as she had occasion to approach and leave the room on the fourth-floor, where she was engaged in the-performance of her duties for the defendant.

Plaintiff testified: “ I knew nothing about the appliances the elevator had or didn’t have to cause it to open or -shut. I never saw the door open only when the elevator was there, and somebody there to hold it open. I had never seen it standing open without anybody holding it as upon this morning.”

In Benzing v. Steinway & Sons (101 N. Y. 547) it was said : The risks of the service which a servant assumes in entering the employment of a master are those only which occur, after the due performance by the employer of. those duties which the law enjoins upon him.” (Ford v. L. S. & M. S. R. R. Co., 124 N. Y. 493.) The rule is restated in Abel v. D. & H. C. Co. (128 N. Y. 662); Pantzar v. Tilly Foster Iron Mining Co. (99 id. 369); Davidson v. Cornell (132 id. 234).

In Knisley v. Pratt (75 Hun, 323) allusion was made to the rule in the following language: “ A servant who enters the employ of a master assumes the risk incident to such employment, where the dangerous structures or implements are open and visible imd known to him, but in case the employer owes such employee a duty which is not discharged and is guilty of negligence in not performing such duty, if the injury is the result of such neglect of duty, the risk is not one which is assumed by the servant.” Ye think it should not be stated “ as matter of law that under the facts of the present case the plaintiff assumed the risk.” ( Warn v. N. Y. C. & H. R. R. R. Co., 80 Hun, 71.)

In Simpson v. New York Rubber Co. (80 Hun, 415) the rule is again stated and a majority of tlie court held in that case that a party, “knowing that the machinery is not guarded as prescribed by statute, does not waive the provisions of the statute, nor does he assume such obvious risks as are incident to the use of the machinery without the required safeguards.” In that case the plaintiff knew of the defects and continued in the employ, and the trial court refused to charge that he waived the provisions of the statute and assumed such obvious risks as were incident to the use of the machinery in that condition, and a majority of the court at General Term approved of the refusal to so charge. In the case in hand the evidence was sufficient to justify the jury in finding that the plaintiff had no knowledge of the defects and insufficiencies in regard to the appliances and surroundings of the elevator in use upon defendant’s premises. Under such circumstances we think it was error to hold as matter of law, as apparently the trial judge did, that the plaintiff assumed the risks occasioned by such defects and deficiencies.

The case of Cullen v. Norton (36 N. Y. St. Repr. 359) differs from the case in hand. There the accident resulted from a negligent act done in the very course of the work and by a fellow-workman of the deceased. The master had provided a competent and experienced foreman, who had been in his employ a number of years and was not chargeable with the consequences of a place for work made dangerous only by the carelessness and neglect of a fellow-servant.”

We think the nonsuit was erroneously granted.

MaetiN and MeewiN, JJ., concurred.

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