author: Learned, P. J. :

text:
    THE PEOPLE OF THE STATE OF NEW YORK ex rel. JAMES HALL, A. CUYLER TEN EYCK, JACOB LEONARD and Others, v. EDWARD A. MAHER, JOHN BOWE, CHARLES A. HILLS, THOMAS POWERS and HORACE ANDREWS, THE BOARD OF CONTRACT AND APPORTIONMENT OF THE CITY OF ALBANY, and THOMAS J. LANAHAN, the Clerk of said Board.

      City charter, requiring the city to keep its pavements in repair — validity of a contract which provides, in addition to the work of laying the pavement, that the contractor shall repair it; for the cost of all of which the assessment is to be levied upon property benefited.

    By the charter of the city of Albany it is directed that “ordinary repairing * * * of all streets now paved, or that may be hereafter paved, with granite blocks, * * * shall be charged upon said city; ” and, by chapter 819 of the Laws of 1888, the provisions of said act as to ordinary repairs to granite block, or other kind of square-stone pavement, are made applicable to Trinidad asphalt pavement, if laid in Delaware avenue under the provision of such act of 1888.
    An ordinance, passed by the common council of the city, providing for the pavement of Delaware avenue with Trinidad asphalt, contained a provision requiring •the contractor to agree “to keep the said pavement in repair for seven years, from and after its acceptance by the city, without expense to said city or abutting property owners,"’ which provision was inserted in the specification under which bids were received for the work, pursuant to which a contract was made.

      Held, that the necessary effect of this contract was to charge upon the property •owners the cost of keeping the avenue in repair for seven years, in violation of the provision of the act of the legislature which charged such expense upon the city at large.
    'That anything in the contract which imposed upon the property owners more than the obligation of having the pavement well constructed in the outset was unjust to them.
    ’That the contract was illegal and should be vacated.
    Certiorari to the Board of Contract and Apportionment of the •city of Albany to review a decision of that board, made September 27, 1889, upon a hearing had upon written objections, duly filed with the. said board, to the letting of a contract to the National Yulcanite Company for the grading and paving of Delaware avenue, in said city, with Trinidad sheet asphalt.
    The proceedings before the Board of Contract and Apportionment were instituted pursuant to section 4 of title 11 of the city charter, added thereto by section 12 of chapter 242 of the Laws of 188L
    The contract was objected to because of the fact that it contained a provision which required the contracter to keep in repair the pavement, laid in pursuance of the provision thereof, for the jieriod of seven years, from and after its acceptance by the city, without expense to said city or to the abutting property owners.

      P. E. Bu Bois, for the relators.

      Albert Hessberg, for the contractors.

      B. Oad/y Herrick, corporation counsel.
   Learned, P. J. :

Chapter 319, Laws of 1888, section 5, provides : “ The provisions of the charter of the city of Albany as to ordinary repairs to granite block or other kind of square stone pavement shall apply to the Trinidad asphalt pavement if selected by the property owners to be laid on Delaware avenue.” Whether or not this section is a violation of article 3, section 17 of the Constitution, is a question which has not been raised before us, and we, therefore, do not decide it. (People ex rel. N. Y. Electric Lines Co. v. Squire, 107 N. Y., 602.) And we shall assume the constitutionality of this provision.

The provisions of the charter thus made applicable (chapter 298, Laws of 1883, title 10, section 3), declare that “the repairing of the carriage-way of all streets now paved or that may be hereafter paved with granite blocks or other kind of square stone pavement * * * shall be charged upon said city.” In this respect streets thus paved differ from those paved with cobble-stone. The repairs of the latter are paid by adjacent owners. Thus the adjacent owners who have caused their street to be paved with granite block (or, in this case, Trinidad asphalt) are thereafter relieved from the expense of repairing. The cost of paving with granite block (and Trinidad asphalt in this case) is assessed upon adjacent owners, although they are allowed in certain cases (of which this is one) some years in which to pay, the city assuming the burden meantime. These adjacent •owners have, therefore, a direct interest that the cost of such paving shall be as low as possible, consistent with good work.

Under a petition for- the pavement of Delaware avenue, authorized by the law first cited, the common council passed an ordinance for such paving. This directed the Board of Contract and Apportionment to require the contractor to agree “to beep the said pavement in repair for seven years from and after its acceptance by the city without expense to said city or abutting property owners.” Under this ordinance specifications were prepared containing, among •other things, a clause to that effect. A proposal for the work was made and the accompanying bond bound the proposer to the same effect. The contract was awarded to the proposer, and the written contract refers to the specifications and the ordinance. Hence the contractor is bound, according to the terms of the contract, to keep the pavement in repair for seven years after its acceptance.

The relators objected before the Board of Contract and Apportionment, among other things, that the necessary effect of this contract was to charge upon the property owners the cost of keeping the avenue in repair for seven years, when such expense is only chargeable on the city. The board overruled the objection, and the question now comes before us by certiorari for review under section 4, title 11 of the charter, as amended by chapter 242, Laws of 1887.

The conti’actor, who alone appeal’s here to sustain :the award, urges that the proof shows that the bid did not include any item for repairs, and, therefore, the property owners are not injured. One of the officei’S of the contracting company said that he calculated that the pavement would last the time required, and, therefore, did not estimate anything for repairs. But that is not conclusive on this question. Other bidders may have thought it necessary to make their prices higher, for the reason that they would be required to keep the work in repair for seven years; and if no such requirement had been inserted, such other bidders might have made a proposal lower than this contractor, then the property owners would have had less to pay, and for the ensuing years the city would have done the repairs.

It is further urged that the relators have another remedy, viz., to apply for a reduction of the assessment to be levied if an illegal item should be therein. But the remarks just made show that this, if any remedy at all, is not sufficient, because it cannot be held that lower bids might not have been made if the specification had not contained the item now objected to.

A further argument is made, viz., that since 1883 evei'y contract of paving has required the contractor to keep the pavement in repair for a year. But this may reasonably be considered a time within which to test the pavement. Defects in the construction may not ■appear immediately, and this time of one year may be proper, in order that airy such defects may become apparent. By the present contract five per cent of the price is to he retained, for not more than one year as a guaranty that the work will be kept in good condition. It is evident that a provision of this kind is different from an agreement that the contractor will keep the road in repair for seven years. It is not subject to the objection made by the relator, being, in substance, only a security for the thorough completion of the work, and unobjectionable, so far as we can now see.

It is also urged by the conti’actor that the provision in the charter above referred to, uses the words “ ordinary repairing,” while the ordinance in question has the words “ keep in repair,” and the contractor urges that a fuller statement in the specification shows that the agreement does not refer to ordinary repairs. But we cannot accept this construction. The words “unexpected degradations,” “ badly executed work,” etc., in the specifications do not take away the effect of the previous words “ kept in good condition and repair.” These words certainly include the duty of making ordinary repairs.

It is urged with some force that this agreement is only equivalent to a warranty that the pavement will last seven years without repair, and that such a warranty would be a benefit to all interested in the work. Undoubtedly, such a warranty would be a benefit, as this very provision may be. But the difficulty arises from the circumstance that the property owners are to pay only for the paving, and the city is to pay for subsequent repairs. Anything, therefore, which throws on the property owners more than the burden of having the pavement well constructed in the outset is unjust to them.

"We can see this by extending the time provided for. Let us suppose that the contract was to keep the pavement in repair for 100 years, or perpetually. Is there any doubt that by such a contract the property owners would be required to pay a higher price than the mere cost of the paving thoroughly done ?

It must be noticed that this is not an action to vacate an assessment which has been laid, as were some cases cited by the counsel for the contractor. This is a proceeding to review the action of the board in letting the contract. And the matter stands simply thus : It is the duty of the city to make the repairs. But by this contract they make the property owners liable to pay, not only for the laying of the pavement, but for the making repairs for seven years. And every person who was to bid for the contract was obliged to' agree to these terms. The city, therefore, compels the property owners to pay the contract-price, not only for laying the pavement, but for the seven years’ repairs. This it has no right to do. And it cannot make such a proceeding valid by testimony that the contractor did not include a charge for repairs in his bid. If, as the contractor claims, no repairs will be needed, then there was no need of such a clause. Evidently the city thought repairs might be needed, and arranged that the property owners should pay therefor in advance. They have a right to insist that the specifications for which proposals are to be made, and the contract entered into thereon, shall be limited to that work which they are bound to pay, viz., the construction of the proposed work as distinguished from subsequent, repairs.

The decision of the board must be reversed and the contract adjudged illegal, with fifty dollars costs and disbursements.

Mayham, J., concurred.

Decision of the Board of Contract reversed and contract adjudged illegal, with fifty dollars costs and printing disbursements.


source: Caselaw Access Project

author: Learned, P. J.:

license: Public Domain

text:
    JOHN SKAARUP, as Administrator, etc., Appellant, v. CHARLES STOVER, Respondent.

      Negligence — when a question for the jury — what disregard of the master’s order doe& not constitute contributory negligence.

    In an action to recover damages resulting from tlie death of a servant, it appeared that the master set two boys, one'of fifteen and the other of fourteen years of' age, at work sawing logs near a declivity of about thirty-three feet in the hundred; the log to be sawed was steadied upon a stump by a stick. After-working for some time the younger boy, who had been placed by the master on the upper side of the stump, changed places with his companion; soon after which, the log having been sawed through, both parts fell on the lower side of the stump and began rolling down the declivity. The younger boy attempted to escape, but his foot was caught under the rolling log, weighing about 3,500' pounds, which rolled over upon and killed him.
    It was claimed that the deceased, in going from one side of the log to the other,, had disobeyed the command of the master.

      Held, that if one side of the log was more dangerous than the other the boy should have been informed of it by the master.
    That there was a question for the jury whether the master had, in this respect, discharged his duty to the deceased, as the mere direction to work on the upper side of the stump and stay there gave no warning of any danger existing on the-lower side.
    That disobedience on the part of the servant to the master’s command is not necessarily contributory negligence, which implies a disregard of proper care of one’s safety.
    It is contributory negligence, and not a contributory act, which defeats'a recovery.
    Appeal by the plaintiff from a judgment, entered in tlie oifice of the clerk of tlie county of Rensselaer on tlie 21st day of November,, 1889, in favor of the defendant, dismissing the plaintiff’s complaint after a trial at the Rensselaer Circuit before the court and a jury.

      Nelson Dmewport, for the appellant.

      Nenry A. Merritt, for the respondent.
   Learned, P. J.:

The deceased, a son of plaintiff, fourteen years old, was hired by the defendant to do work on defendant’s farm for board and clothing. Defendant, with the deceased and another boy, named Rivenburgh,. fifteen years old, went out to a lot to have them saw logs under defendant’s direction. The boys were set at this work by defendant,, and they sawed one log. Then defendant and the boys arranged another log for sawing. This second log was about thirty-two feet, long and six feet around. It was placed so that it would seem the middle, or about the middle, of the log rested on a stump. The place was a hillside, and the declivity was about thirty-three feet in one hundred. The log was placed-with its side to the hill. The boys were stationed one on each side of the log, and were to saw the log in the usual manner with a cross-cut saw. The log was. steadied upon the stump by a stick. The object of placing the log on the stump appears to have been to prevent the log from binding the saw as the work progressed. The deceased was placed on the hill above the log, Rivenburgh below, and defendant told the deceased to stay there. Defendant went away, but apparently not very far. The boys worked half an hour and then changed places. When they had sawn through the log the two parts fell on the side of the hill below the stump. The butt log began to roll down hill and the other part soon followed. The deceased ran to get out of the way of the logs, but his foot was caught after he had run about twenty-four feet, and the log rolled over him and killed him. It, weighed about 3,500 pounds. The defendant was near enough to see the accident, for when the logs began to roll he called to the deceased : Look out, bub.” The learned justice nonsuited the plaintiff on the ground that the deceased disobeyed the defendant’s, direction in going from the position above the log to that below; and that this disobedience contributed to the death of deceased. The plaintiff claims that the defendant was negligent in placing the log so that the parts would certainly roll down the hill when sawn apart, and in not putting some block or obstacle to prevent this accident, when putting inexperienced boys at such dangerous work, and in not warning them of the danger.

In considering what effect is to be given to the defendant’s instruction when he placed the deceased above the log, we must consider the circumstances. Here were two boys nearly of the same age, and, so far as appears, of equal experience. In this mode of sawing it is necessary that one should be on each side. Where the ground on one side is higher than that on the other, diferent positions of the body may be required on the different sides. The deceased sat on his overcoat when working on the upper side, and naturally, after working for a time, it would be a relief to each boy to change to the other side, so as to take a new position of the body. If one side was dangerous and the other was not, there was not such a difference in the size of the boys that one could be safely exposed to the danger and the other could not. We can hardly suppose that the defendant placed the deceased on the upper side of the log in order to give him a safe position, when we see that at the same time he placed the Rivenburgh boy on the lower side in a place of danger. This would be to impute to him a disregard of the safety of the Rivenburgh boy.

Now, when defendant placed the boy at this work, if, as might be found by the jury, there was a dangerous place connected with the work, the boy should have been informed of and able to appreciate the danger, before the defendant could be held to have performed his whole duty. (Hickey v. Taaffe, 105 N. Y., 36.) There is no evidence that the danger of the situation was explained to these boys, or to either of them, or that any caution was given to them. If the boys had not changed places, then it is quite probable that Rivenburgh would have been killed in the same way; at least he would have been put in imminent peril. Eor, owing to the length of the sawn logs, it was difficult to escape sideways, and, in running down the hill) there was the risk of the result which befell the deceased. It seems, therefore, to us, that it was a question for the jury whether the defendant discharged his duty to the deceased, unless it can be said, as a matter of law, that the deceased ought to have -understood that he was not to go to the lower side of the log, and that to do so exposed him to danger.

The mere direction to work on the upper side and to stay there gave no warning of any danger on the lower side. The placing of Rivenburgh on the lower side showed to deceased that the defendant did not consider that side dangerous. Indeed, the defendant said .afterwards that, if he had thought of it, he would have blocked the logs so that they could not roll, but that he did not think of it. This shows, as is otherwise apparent, that in placing deceased ■on the upper side, and telling him to stay there, the defendant was ■not taking care of the safety of the deceased. He was only arranging the two boys at the work in the position which seemed most •convenient to them, and, therefore, most profitable to him. It, therefore, might well be found by the jury that, under the circum■stances, all which the defendant said and did, did not amount to a ¡sufficient direction and caution, and that the deceased could not have understood that the boys were prohibited from changing places. •Continued work in one position becomes fatiguing, especially to boys, and probably neither of them supposed that a change of position would be an act of disobedience. Although defendant did not ■come back to the place before the accident, yet he was near enough io see or hear the log begin to roll, for he called out to deceased, “ Look out bub,” when he had gone four or five feet.

The questions, after all, are whether the defendant was guilty of negligence and whether the deceased was guilty of contributory negligence. And the fact that the deceased went to the lower side is material as bearing on this latter question and, perhajts, on the former.' We think that his act was not conclusive. For if .a master puts a servant at work near a dangerous place, it may not be sufficient care on the master’s part to put the servant on .a spot which is out of danger and simply tell him to stay there, without warning him of the peril of going to the dangerous place. And it may not always be negligence for the servant to change his position, especially when circumstances show that the place to which he goes is not considered dangerous by the master. And -though a servant should disobey his master’s orders, such disobedience is not punishable with death. Nor is disobedience to the master’s commands necessarily contributory negligence, when injury results; to the servant. Negligence implies something more, a disregard of proper care of one’s safety. It is contributory negligence, not a, contributory act, which defeats a recovery.

The judgment should be reversed and a new trial granted, costs, to abide event.

Landon and Math am, JJ., concurred.

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


text:
    WILLIAM F. TAYLOR and Others, Respondents, v. ALMON M. HULL, Appellant.

      Attachment —fraudulent disposition of his property, or depa/l'ture from the State with-, intent to defraud, by the debtor — evidence of.

    To sustain an attachment upon the ground that a debtor has assigned his property fraudulently, or departed from the State with intent to defraud his creditors, it is not sufficient to show that the debtor has transferred his farm to his wife- and has gone to one of the western States, and that the creditor was informed, by others that the debtor had said he was about to leave for Dakota and settle on a farm there, and that he had also stated to the creditor himself that he. intended to leave the section of the country in which he had resided.
    Appeal by the defendant from an order denying a motion to set, aside a warrant of attachment theretofore granted in the above-entitled action, which order was entered in the office of the clerk, of the county of Rensselaer on the 19th day of October, 1889.

      Jlerwy A. Emg, for the appellant.

      William Powell, Jr., for the respondents.
   Learned, P. J.:

This is an appeal from an order refusing to vacate an attachment.. The defendant is the maker and plaintiffs are accommodation indorsers of a note which had been discounted in a bank in Troy.. The affidavit made on the 13th day of July, 1889, states that they paid the note the fifteenth of that month, and then became owners.. This does not appear to be a clerical mistake; the undertaking is. dated and acknowledged on the thirteenth, of July before the same officer who took the affidavit. So also the justifications. The summons is dated the fifteenth of-July, and the affidavit states that it-has been issued.

A more serious defect, however, is the failure to show that defendant has assigned his property fraudulently, or departed from the State with intent to defraud.

The facts stated are, that defendant has transferred his farm to his wife and gone to one of the western States; that deponent was. informed by ITakes and Jones that defendant had said he was about to leave for Dakota and settle on a farm there, and that defendant had also stated to deponent that he intended to leave this section of' the country. In all this there is no evidence of fraud.

Deponent also furnishes a copy of a letter from defendant to him dated July 6, 1889. The contents of that letter show that defendant cannot pay his debts, and that is about all that it shows. There is nothing indicating any intention to defraud, or any wrongful act.

The mere fact that defendant has transferred his farm to 'his wife does not show a fraudulent intent. Connected with other circumstances it might have much weight, but the circumstances are not shown. Whether the farm was incumbered, or what was its value, are matters not shown. When he made the transfer, and what was-the consideration, we are not told.

We think there was not enough to sustain the attachment, and the order should be reversed, with ten dollars costs and ■ printing-disbursements, and motion to vacate granted, with ten dollars costs. Such costs and disbursements to be offset against plaintiff’s claim.

'Landon, J., concurred; Mayham, J., not acting.

Order reversed, with ten dollars costs and printing disbursements,, and attachment vacated, with ten dollars costs, to be set off against plaintiff’s claim.


author: Yan Brunt, P. J.:

text:
    MARIETTA L. LANE, as Executrix, etc., Plaintiff, Respondent, v. NEW YORK LIFE INSURANCE COMPANY, Appellant, Impleaded with MALVINA A. De METZ, Respondent.

      ■Court of equity — right of, to discontinue an action, as against an unnecessw'y defendant, which applies for leave to pay into court a fund, claimed by each of two other pao'ties to the action.

    In an action brought to obtain an adjudication that the plaintiff was entitled to a certain fund, and that a life insurance company pay the same over to her, against the life insurance company, and also against a party claiming a right to the fund in question in opposition to the claim of the plaintiff, the insurance company applied to be allowed to pay the fund into court, and to have the action discontinued as to it.

      Held, that the insurance company, under the circumstances, was entitled to the relief asked for.
    'That section 820 of the Code of Civil Procedure, which provides that a defendant, against whom an action to recover upon a contract, etc., is pending, may at any time before answering, on proof by affidavit that a person not a party to the action makes a demand against him for the same debt or property, have an order for the substitution of that person in his place, was only enacted in reference, and intended to apply, to actions at law.
    'That a court of equity needed no statutory authority to justify its exercising the same powers in an equity case, and discharging a defendant, as a party to the action, where its presence therein had become unnecessary.

      Appeal by the defendant, the New York Life Insurance Company, from an order, entered in the office of the clerk of the county of New York on December 12, 1889, denying a motion made by it for 'leave to deposit the amount referred to in the complaint in this action in a trust company, or for the payment of the same into court, and to be relieved thereupon from liability, and to have the action discontinued, as against it, as said order was resettled and amended by an order entered in the said clerk’s office on January 6, 1890.

      James Byrne, for the appellant.

      E. J. Eathan and G. 8. Eastings for the respondents.
   Yan Brunt, P. J.:

This action was brought by the plaintiff against the New York Life Insurance Company and one Malvina A. De Metz, a respondent herein, to determine the rights of the plaintiff to a certain fund in the hands of the defendant company.

The complaint alleges a willingness on the part of the company to pay this money, and then alleges a notice upon the part of the defendant De Metz to the defendant the Insurance Company to withhold the payment of such amount from the plaintiff, and thereby the plaintiff was prevented from collecting and receiving such amount. The complaint further alleges “ that said amount has been retained and is now in the possession of the defendant, the New York Life-Insurance Company, to abide the event of this action by reason of the said acts of the defendant Malvina A. De Metz, and for that, reason the said Malvina A. De Metz is made a defendant herein.

The complaint prays judgment that the plaintiff be adjudged to-be entitled to said sum of money, and that the defendant company be adjudged to pay the same to the plaintiff. The defendant De Metz answered setting up her right to the fund in question, and praying judgment that the company be adjudged to pay the same to her. The defendant company, upon this state of facts, made application to the court to be allowed to pay the said fund into court and to have the action discontinued as to it. This motion was denied upon the ground that the court had no power to grant the same, and from the order thereupon entered this appeal is taken.

It is evident that the motion was denied upon the ground that the •only power of the court to intervene arose from section 820 of the •Code of Civil Procedure, which provides that a defendant against whom an action to recover upon a contract, or an action of ejectment or an action to recover a chattel, is pending, may, at any time before answer, on proof by affidavit, that a person not a parly to the action makes a demand against him for the same debt or property, have an order for the substitution of that person in his place upon giving proper notice. It is apparent that the case at bar does not come within the provisions of section 820, because both the claimants to the fund in question are parties to the action. But it is .to be observed that that section was intended to apply to actions at law and not to actions in equity. The provision is that a defendant against whom an action to recover upon contract is pending may ■obtain an order of substitution. This action is not upon contract. It is bi ought for the purpose of settling rival claims to a fund in the hands of the defendant company. The section in question has no application to actions brought to settle conflicting claims, where all the parties are before the court and the action is not upon a contract out of which the fund arises, but where the ground of interposition upon the part of the court rests upon the fact of the .admitted existence of the fund and the conflicting claims in respect thereto. A court of equity needs no such authority to be conferred upon it, because it has the power at any time to discharge a defendant as a party to an action, where its presence has become unnecessary. This provision of the Code was intended to afford the same relief in actions at law which could be afforded in equity where all the parties were before the court. It enabled the court to allow the holder of the fund to bring the money into court and be discharged from- all further litigation.

This a court of equity necessarily has, having all the parties before it. One of the defendants having no interest whatever in the controversy, as between the plaintiff and its co-defendant, being merely the holder of the fund, makes its application to the court to be discharged upon bringing the fund into court. The result of a different rule would be that the court could afford greater relief in actions at law than it can do in actions in equity. It is apparent that this provision of the Code is applicable only to actions at law, ¡because in an action at law to recover upon this policy it would not have been possible to have made the claimant De Metz a party. She could have demurred; no cause of action would have been set up against her, and it is only by reason of the provisions of section 820 of the Code that she could have been brought in, and she must be brought in in that way, and in no other. In an action in ecpiity, upon the other hand, brought to determine the rival claims of these ■two parties to this fund, she could be made a party and was made a party; and the court, having obtained jurisdiction of these various parties, could permit the discontinuance of the action as to one 'of ■the parties; allowing the others to go on and litigate the subject-matter of their dispute.

The rule laid down in Barbour’s Chancery (2d ed. vol. 2, p. 120, is explicit that it is not necessary to file a bill of interpleader where the holder of the fund is already a party to a suit in this court ¡(namely, the Court of Chancery), brought by one claimant against the other to settle the right to the fund in his hands. The holder .of the fund in such a case should apply by petition in that suit for leave to pay the fund into court, to abide the event of the litigation between the other parties. And Bedell v. Hoffman (2 Paige, 199) and Badeau v. Rogers (2 id., 209) are cited as authorities for this proposition, which they sustain.

We think, therefore, that the learned judge in the court below •erred in supposing that a court of equity, having all the parties before it, had no power to grant relief in a case such as the one at bar.

The order should be reversed, with ten dollars costs and disbursements as against the respondents Lane and De Metz.

Barrett and Bartlett, JJ., concurred.

Order reversed, with ten dollars costs and disbursements as against the respondents Lane and De Metz.


author: Van Brunt, P. J.: Barrett, J.:

text:
    EMMA VAN RADEN, Respondent, v. THE NEW YORK, NEW HAVEN AND HARTFORD RAILROAD COMPANY, Appellant.

      Violation of the requirements of a statute — is not conclusive evidence of negligence — the question should, be submitted to the jury.

    In an action brought to recover damages arising from personal injuries, alleged to-have been caused by the negligence of a railroad company in running its trains, it appeared that the statute of Connecticut, in which State the accident happened, required the sounding of the bell, or of the steam whistle attached to an engine, whenever it should be approaching a highway crossing at grade. The court charged the jury: “ If you believe the bell was not sounded and that the whistle was not blown; if you believe, on the evidence before you, that the occupants of that wagon did not see the train in time to stop the horse before it became frightened, and that it became frightened in consequence of the negligence of the defendant, then I charge you the plaintiff is entitled to recover.”

      Sold, that such instruction to the jury was error.
    That the jury had a right to consider the statute, in determining the question whether or not the railroad company had operated its road with due care, but that the mere fact that the statute was not complied with did not necessarily imply negligence.
    Appeal by the defendant from a judgment entered, after a trial at the New York Circuit before the court and a jury, in the office of the clerk of the county of New York on the 19tb day of June? 1889; and also from an order denying the defendant’s motion for a new trial on the minutes of the court, entered in said office on the 13tb day of June, 1889.
    The plaintiff recovered a verdict upon the trial for $1,500.

      Henry W. Taft, for the appellant.

      Dmid Tim, for the respondent.
   Van Brunt, P. J.:

This action was brought to recover damages on account of personal injuries alleged to bave been caused by the negligence of the defendant. The proof showed that the defendant is a foreign railroad corporation, operating a railroad which passes through the town of Cromwell, in the State of Connecticut, and 'crosses a public highway of said town on a level therewith. That the plaintiff, a resident of Brooklyn, in this State, was, in July, 1887, in said town of Cromwell, and was being driven by a Mr. Franklin in his carriage to the steamboat landing, which was situated on the east side of the railroad, and to reach which it was necessary to turn from the main highway and to cross the railroad. Before reaching the railroad Mr. Franklin and the plaintiff became aware that there was a train upon the railroad which they must avoid. The view of the railroad was obstructed upon one side by buildings, etc., and they stopped and allowed this train to pass. After this train had passed Mr. Franklin and the plaintiff put their heads forward and listened, and hearing nothing started down the highway. Until they arrived within a few feet of the corner, they had no view of the railroad; above the crossing a train of cars had been standing on a side track to allow the other train to pass, and, about the time the plaintiff and Mr. Franklin, turned the corner and started to the ferry, this train commenced backing slowly toward the crossing. There was a dispute .in the evidence as to whether a bell was. rung or not. Upon turning this corner the horse was so near the train that he took fright and ran away, and the plaintiff was injured. Upon these facts the jury found a verdict for the plaintiff, and from the judgment thereupon entered, and from an order denying a motion for a new trial, this appeal was taken. The questions presented upon this appeal are whether the plaintiff was shown to be guilty of contributory negligence, and whether the court erred in certain portions of its charge, which were excepted to. It is claimed, upon the part of the plaintiff, that if the statutory signals were not given by the servants of the defendant in charge of the train in question, the plaintiff has the absolute right to recover, unless she has lost it because of contributory-negligence. This claim is founded upon a statute of Connecticut, which is as follows:

“ Every person controlling the motions of any engine upon any railroad, shall commence sounding the bell or steam whistle attached to such engine, when such engine shall be approaching and within eighty rods of the place where said railroad crosses any highway at grade; should keep such bell or whistle occasionally sounding, until such engine has crossed such highway; and the railroad company in whose employ he may be shall pay all damages which may accrue to any person in consequence of any omission to conqfiy with the provisions of this section; and no railroad company shall knowingly •employ any engineer who has twice been convicted for violating the provisions of this section.” And this seems to have been the theory of the learned court in its presentation of the case to the jury, because, after calling attention in a prior portion of the charge to the statute referred to, the jury were instructed as follows:

If you believe the hell was not sounded and that the whistle was not blown ; if you believe, on the evidence before you, that the ■occupants of that wagon did not see the train in time to stop the horse before it became frightened,und that it became frightened in consequence of the negligence of the defendant, then I charge you the plaintiff is entitled to recover, because it has been settled if a traveler upon a highway, crossing a railroad, is himself free from fault, and does not hear an approaching train, the railroad corporation is guilty of negligence in not giving the proper signals, and that it cannot escape responsibility because the horse of the traveler, frightened by the sudden approach of the engine, suddenly starts forward, and getting beyond control, draws the wagon on to the track and so exposes the traveler to injury. It is not a legal inference that the traveler heard the approach of the train because the horse did.”

This instruction was duly excepted to so far as it instructed the jury that if they should find that the signals were not given on the train, or the ringing of the bell and blowing of the whistle, that they must find for the plaintiff. The complaint makes no mention of this statute, and only claims a right of recovery because of the negligence of the defendant, and hence the failure to comply with the directions of the statute did not necessarily give a right of recovery.

It was competent to prove the statute, because it was some evi-. deuce bearing upon the question of negligence (Archer v. N. Y., N. H. and H. R. R. Co., 106 N. Y., 589), but it was by no means conclusive evidence.

This instruction to the jury was, therefore, error, as the failure to comply with uhe statute was made by the charge conclusive evidence of negligence. The jury had a right to consider the statute in determining the question whether or not the defendant had operated its road with due care, but the mere fact that tlie statute was not complied with would not necessarily import negligence.

There are many other points raised by the appellant which it is not necessary to advert to; as for the error already pointed out there must be a new trial.

The judgment must be reversed and a new trial ordered, with costs to the appellant to abide event.

Barrett, J.:

I concur. "When the defendant excepted to that part of the charge discussed by the presiding justice, the learned judge observed that what he had said to the jury was that they might fl/nd for the plaintiff. Unfortunately, his language was much broader, namely, that the plaintiff was entitled to recover, and that observation was not withdrawn. The surrounding circumstances were not left to the jury, in connection with the defendant’s failure to sound the bell and blow the whistle, as matters of fact.

And the jury must have understood that the defendant’s failure to comply with the Connecticut statute in these two particulars was negligence as matter of law.

Bartlett, J., concurred.

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


author: Van Brunt, P. J.:

text:
    PATRICK FENTON, as Administrator, etc., of JOHN FENTON, Deceased, Respondent, v. THE SECOND AVENUE RAILROAD COMPANY, Appellant.

      Contributory negligence— crossing a street in front of a horse-car.

    In an action to recover the damages resulting from the death of a party injured by being run over by a street car, the fact that the deceased attempted to cross the street in front of the car, which he had ample time to do, but by reason of his having fallen in the street in front of the car was injured, does not establish contributory negligence on his part.

      Belton v. Baxter (54 N. Y., 247); Motel v. Sixth Avenue Bailroad Comroany (99 id., 632) distinguished.

      Semble, that it is otherwise where the party injured has made a miscalculation as to his ability to cross the track before the arrival of the car.

      Appeal by the detendant from a judgment entered, after a trial at the New York Circuit before the court and a jury, in the office of the clerk of the county of New York on the 22d day of March, 1889 ; and also from an order, entered in said office on the 18th day of March, 1889, denying defendant’s motion for a new trial.
    The action was brought bj^ the administrator and father of John Fenton, deceased, to recover for the loss which had resulted from his son’s death, occasioned by being run over by a car of the defendant.

      Aug. 8. Hutchings, for the appellant.

      William M. Lyclcly and James M. Lydchy, for the respondent.
   Van Brunt, P. J.:

This action was brought by the plaintiff, the father and administrator of John Fenton, deceased, a boy of nine years of age at the time he met his death, to recover damages for such death by reason of the alleged negligence of the defendant.

It is claimed, upon the part of the appellant, that the deceased was guilty of contributory negligence, but that no negligence on its part was shown.

The defendant operates a line of street cars running through Second avenue, New York city. The deceased was an intelligent and smart boy, strong and healthy and able to run around and take care of himself; and on the 7th of April, 1888, he proceeded to cross Second avenue from the west side to the east, a few yards from where East Twenty-fifth street intersects the avenue. There was evidence offered tending to show that, before he crossed the street, he looked up and down the avenue, and that there was no obstruction in the street, so that he could see any approaching car; that, at the time he attempted to cross, the car in question was some sixty or seventy feet down the avenue, and when he reached the rail the car was forty-five feet away; while he was crossing the track his foot slipped and he fell some twenty feet in front of the horses, and before the car was stopped he was run over and received such injuries, that he subsequently died. There was some dispute in the evidence as to the distance of the deceased from the horses at the time he fell, some witnesses placing it as near as ten feet. There was also evidence tending to show that after the boy fell no effort was made by the driver of the car until he was struck by the horses; and that the car was not stopped until the wheels ran over the boy, and from the injuries thus received he died.

It is urged, upon the part of the appellant, that the evidence showed contributory negligence upon the part of the boy, and did not show any negligence upon the part of the defendant’s employees; and in support of the proposition that the deceased was guilty of contributory negligence the case of Belton v. Baxter (54 N. Y., 247) is cited by the counsel for the appellant, in which the court uses the following language:

“ The plaintiff was guilty of negligence, which certainly contributed to his injury, and this is apparent upon his own testimony. He wanted to cross Second avenue, on Fourth, street, where he resided. It was near evening, but still daylight, and he saw a Second avenue car coming just above Third street, and behind it a cart also coming. * * * He hurried on a little and made his ‘ calculation ’ that he could cross in front of the car ‘ before the cart could get up.’ * * * He stepped on, the car came faster than usual; he just passed the heads of the horses attached to the ear, aud at that moment came in contact with the horse and cart of the defendants * * * and received the injury.

“ This makes out a plain case of negligence. He clearly saw the possible danger, made his calculation to pass ahead of both car and cart, and failed. * * * It is negligence %>er se for a foot traveler to attempt to cross a public thoroughfare ahead of vehicles of any kind under such circumstances, upon nice calculations of the chances of injury. If such attempt be made, and the calculations fail to plaintiff’s harm, he can have no redress for injuries received in his mistaken eifort. It is not the exercise of common or ordinary care.”

An examination of the facts of this case shows that the plaintiff there miscalculated having time enough to get across the track before the car reached him, and therefore was injured — entirely different from the facts in the case at bar; for the evidence here showed that had not the boy fallen he would have had ample time to clear the horses and get across the track, and, therefore, the deceased was not guilty of negligence in attempting to cross the track, because he had ample time, as the evidence abundantly shows, to cross, and it was the misfortune of falling while attempting to cross that brought him into danger. The question, therefore, presented would be : Is-everybody who crosses a street guilty of contributory negligence because he happens to fall ? In crossing the streets of a crowded city we do not think that a party is bound to wait until all the vehicles are out of the street before he attempts to cross it, for if such a rule prevailed,'he would be compelled during the whole of his life to-stay on one side of the street. He is bound to use reasonable care under the circumstances, and where a party has ample time to get across, although a vehicle may be approaching, he is not guilty of contributory negligence in attempting to do so. That was all that the deceased did in the case at bar.

The case of Motel v. Sixth Avenue Railroad Company (99 N. Y., 632; 2 How. Pr. [N. S.], 30), in which the opinion was written by Mr Justice Beach, and which opinion was adopted by the Court of Appeals, was of precisely similar character to that of Belton v. Baxter (supra). The evidence of the plaintiff in that case was that the plaintiff tried to get across,' that he thought he could get across-before the horses reached him, but he miscalculated the time and had not the opportunity to get across safely before the horses were upon him; and the court held in that case that a party under these circumstances must bear the burden of his own miscalculation.

The other question presented is as to the negligence of the defendant. The evidence is conflicting, as has already been said, as to the distance from the horses’ heads at which the boy fell. It is put by the witnesses anywhere from ten to twenty-five feet. But there was evidence from which the jury might find that, whatever the distance was at which the deceased fell in front of the horses, no effort was made by the driver to stop the car until the horses struck the deceased, as he was trying to raise himself from the ground. Under these circumstances, if the jury should have found that the deceased was twenty or twenty-five feet from the horses at the time he fell, there being no obstructions in the streets and nothing to interfere with the driver’s view, they might well have come to the conclusion that the driver was guilty of negligence in not using-the means which he had of stopping the progress of the car until the horses were actually upon the deceased. It is true there was a conflict of evidence upon this point, but there was ample evidence-to justify the conclusion of the jury that due care was not used by the driver of this car; and, perhaps, they may have laid some stress upon the fact that the car was in charge of a green hand who was being schooled by an old driver, who was also upon the platform.

With evidence of this character to be submitted to the jury, we do not see how an appellate court would be justified in interfering with the verdict. In fact, upon a consideration of the whole of the evidence in the case, it would appear that there had not been that degree of diligence used upon the part of the driver of this car, in •attempting to stop it, which the law imposed upon him.

The learned judge presiding at the circuit presented this case fairly to the jury, calling their attention to what it was necessary for the plaintiff to establish in order to recover, and as already suggested, the jury were justified, from all the evidence, in finding both that the deceased was free from contributory negligence, and that there had been negligence upon the part of the defendant.

The judgment should be affirmed, with costs.

Barrett and Bartlett, JJ., concurred.

Judgment affirmed, with costs.


text:
    STEPHEN J. WEAVER and MARTIN A. MAYER, Respondents, v. HUGH J. GRANT, Sheriff of the City and County of New York, Appellant.

      Evidence — submission to the jury of a question, .the evidence relating to which, when offered on the trial, was excluded — charge of the court discriminating in favor of one of two opposing witnesses.

    In an action to recover the possession of certain merchandise, evidence was offered on hehalf of the plaintiffs tending to prove that certain representations, which had induced a sale of the merchandise and were alleged to he fraudulent, had been made on September 19, 1885. In contradiction of this evidence the defendant showed that the representations could not have been made on that day owing to the absence of the party who was alleged to have made them. The plaintiffs then recalled the witness who had testified in regard to the representations, and offered evidence, which the court excluded, to show that the sale was made on some day other than the nineteenth, and the defendant thereafter limited his testimony entirely to evidence that such representations could not have been made on the nineteenth of September.

      Tlie court charged the jury as follows: “ The question whether the statement was made on the nineteenth of September may, however, be divided into two questions; one is, whether the statement was made at all, and the other is, whether it was made on the nineteenth day of September, as alleged by the plaintiff.” * * * “It may be that the statement was made, and that the plaintiff and his witnesses are merely mistaken as to the day on which it was made. It does not follow because it was not made on September nineteenth . that it was not made on any day” This charge was duly excepted to by the defendant.

      Held, that the court erred in allowing the jury to find that these representations were made on some day other than the nineteenth day of September, as it thereby presented fof the consideration of the jury a question in regard to which the court had refused to receive evidence.
    Where two witnesses differ in their testimony it is error for the court to instruct the jury, as matter of law, that it is to exercise any discrimination in favor of one or the other of such witnesses.
    Appeal by the defendant from a judgment adjudging that the plaintiff recover of the defendant the possession of certain goods mentioned in the complaint, together with costs, which judgment was entered in the office of the clerk of the county of New York on the 24th day of June, 1886.

      W. B. Ooolcran, for the appellant.

      Marie Oolm, for the respondents.
   Van Brunt, P. J.:

This action was brought to recover possession of certain merchandise alleged to have been obtained from the plaintiffs by one David Kaplan by means of false and fraudulent representations in respect to his condition, which goods were held by the defendant, who was then sheriff of the city and county of New York, under an execution issued to him against the goods of said Kaplan upon a judgment obtained by one Rachel Aronson as plaintiff. The answer of the defendant denied the wrongful detention.

The plaintiffs, in support of their cause of action, offered evidence tending to prove certain representations which were alleged to be fraudulent, and the plaintiff Weaver stated that the time at which they were made was on the 19th of September, 1885, and that he made a memorandum of the representations, and that it was made at the time in pencil, and was as follows :

“D. Kaplan, September 19, 1885, has $3,000 over all liabilities ; owes nothing; owes no borrowed money ; has nothing except what he buys for cash.”

The whole theory of the plaintiffs’ case rested upon the evidence that whatever representations were made, were made on the 19th of September, 1885.

The defendant, to meet this evidence, showed that they could not have been made on that day, as Kaplan was elsewhere, and there was a distinct and pointed conflict of testimony between the plaintiffs and the defendant in that respect.

In this condition of the proof the plaintiff Weaver was recalled apparently for the purpose of modifying his previous testimony as to the conversation, so as to leave room for the argument that possibly the representations may have been made a day or two before or after September nineteenth.

The plaintiff was ashed “ ITow did you come to fix the 19th day of September as the day on which this conversation took place between you and David Kaplan ? ” This was objected to as having been gone over before. The court thereupon said: Does counsel desire to prove that the sale was made and the conversation took place some other day than the 19th?” And the counsel answered “Tes, sir.” The court then said: “ Then I exclude the question; ” and the plaintiffs excepted. The witness was then asked the further question': “ Explain how you came to fix upon the 19th day of September, 1885, as the time when these representations were made to you by David Kaplan ? ” The court instructed the witness that he could not contradict his former statement or impeach it, and the witness reiterated the testimony before given, that the representation was made on the nineteenth, which was Saturday; that Kaplan was in the habit of coming into the store almost invariably on Saturday; that the memorandum was dated on the nineteenth and that the twenty-first was Monday, the day on which the goods were delivered.

The court, therefore, refused to allow evidence to be given in the case from which it might be inferred that the representations in question were made upon any other day than the nineteenth of September ; and that being the theory upon which the case was tried, the defendant limited his testimony entirely to the evidence that such, representations could not have been made, because Kaplan was. not in the plaintiffs store upon that day. In charging the jury,, however, the court said :

“You will see that there is a direct conflict of testimony between the plaintiff and his witnesses and-the defendant and his witnesses.. If you believe the plaintiff and his witnesses, you will necessarily find that the statement was made, as alleged by the plaintiff, in regard to the financial condition of Kaplan, and that it was made, on the 19th day of September, 1S85. If you believe the testimony of David Kaplan and the defendant’s witnesses, you will necessarily find that no statement whatever was made on that day, or on any other.

“ The question whether the statement was made on the 19th of' September, may, however, be divided into two: One is whether the statement was made at all, and the other is whether it was made.on the 19th day of September, as alleged by the plaintiff.”

And the court further charged : “ It may be that the statement was made, and that the plaintiff and his witnesses are merely mistaken as to the day on which it was made. It does not follow,, because it was not made on September 19th, that it was not made: on any day.”

Thereupon the attention of the learned justice was called to the-theory upon which the case had been tried, and an exception was. taken to the statement of the court that the jury might find that, those representations could have been made at any other time than, that fixed by the plaintiff himself and the witnesses who corroborated him. The court thereupon reiterated its charge, stated that if they believed that plaintiff and his witnesses were mistaken as to the day, but believed that the statements were made, then the plaintiffs-would be entitled to a verdict.

It seems to us that there was clear error in thus submitting to the jury a question in regard.to which the parties were notified that no evidence would be received. The plaintiff, by his testimony, had fixed with accuracy and certainty the particular day on which these representations were alleged to have been made, and stated that he-could not be mistaken; and the defendant, by his witnesses, had met these allegations, and the court, by the course of its rulings during-the trial, had evidently determined to restrict the proof to the fact of the representations being made on that clay because of the positive character of the evidence upon the part of the plaintiff. The defendant had no reason to suspect that any question would be submitted to the jury as to the representations being made at any other time.

Under these circumstances the defendant had a right to call upon the court to restrict the jury to the consideration of the particular day fixed by the evidence on the part of the plaintiffs, and to which they had been held by the rulings of the court. Allowing the jury to find that these representations were made at some other time was-simply allowing the case to go the jury as to a fact upon which the court had refused to receive evidence. It seems to us that the whole case having been tried upon the theory that these representations, if made at all, must have been made on the nineteenth of September, the court had no right to submit any other question to the jury,, and thus deprive the defendant of an opportunity to meet this new phase or theory of the case.

There is another exception which needs to be considered. There-had been a dispute between the witness .George Kaplan and the coroner who executed the process as to the quantity of goods which were taken away under the replevin writ, and the counsel for the-plaintiff requested the court to charge, and the court did charge,, that the jury were to discriminate between the testimony of Kaplan and the coroner, wherein Kaplan swore there were four loads taken away, and the coroner swore there were only two loads taken away from the store of Kaplan. To this charge the defendant excepted.

The only construction to be placed upon this language is, that the jury were to give greater credence to the evidence of the coroner-than to the evidence of Kaplan upon this point. And thus, by the very charge of the court, the whole testimony of George Kaplan was discredited in the eyes of the j ury. It was for them to determine-as to whether there should be any discrimination between the testimony of Kaplan and the coroner, and the court could not instruct them, as matter of law, that any such discrimination was-to be made.

This seems to have been error which may have been exceedingly detrimental to the defendant.

We think, for the reasons stated, that the exceptions were well taken, and that the judgment appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Brady and Daniels, J J., concurred.

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


text:
    EDGAR POOL, as Assignee of HENRY C. NICHOLS and CORA I. NICHOLS, Respondent, v. RODMAN B. ELLISON and WILLIAM P. ELLISON, as Copartners, etc., and Others, Appellants.

      -Action against a sheriff, in whose place the sureties upon the bond and the plaintiff in an attachment suit are substituted — original complaint sufficient without a'mendment — the furnishing of the bond is evidence that the plaintiff directed the levy to be made — evidence of value — fraudulent representations by an assignor — sale of property subsequent to the assignment.

    In an action brought by an assignee for the benefit of creditors to recover-the value of certain goods which had come into his possession as such assignee and were subsequently attached and sold by the sheriff, the original defendants in the action, the plaintiffs in the attachment suit, and the sureties upon the bond of indemnity given to the sheriff were substituted as defendants in the sheriff’s place.
    Upon the trial of the action it was objected that, as against the sureties named in the bond of indemnity, there were no allegations in the complaint sufficient to constitute a cause of action.

      Meld, that as the sureties had made the application to the court to be allowed to take the place of the sheriff, and answer the cause of action alleged in the complaint, that no amendment of the complaint, as originally drawn, was necessary, as the sureties were defending in the place and stead of the sheriff, and answered the cause of action alleged against him.
    'That the rules governing a case of interpleader had no application, as in this action the plaintiff had only to establish his cause of action against the sheriff.
    It was further contended that the complaint should have been dismissed, as against the plaintiffs in the attachment suit, as there was no evidence, further than the fact that they had received the proceeds of the sale of the goods, establishing a direction on their part to the sheriff to make the levy thereon.

      Meld, that the fact that the bond of indemnity had been furnished to the sheriff, with a view to his making the levy, created a presumption that such indemnity was given at the request of the plaintiffs in the attachment suit.

      That, by the giving of such an. undertaking, they made themselves parties to the-trespass and liable for the damage resulting therefrom.
    That the amount for which the property sold, when disposed of by the sheriff, under the attachment, was evidence upon which the jury might determine-its value.
    That representations made by one member of the firm making the assignment at the time of the purchase of the goods in question, in reference to the'indebtedness of the firm, could not invalidate the assignment subsequently made, simply because such assignment recognized debts which, at the time that such representations were made, it was stated did not exist.
    That evidence that one of the partners had disposed of property in New Jersey,, the title to which was in his name but which belonged to the firm, subsequent to the assignment, was competent upon the question as to whether or not the-assignment was fraudulent.

      Plain v. Pool (13 N. T. St. Rep., 571) distinguished.
    Appeal by the defendants from a judgment entered, after a trial at a New York Circuit, in the office of the clerk of the county of New York on the 2d day of April, 1888, at which trial a verdict, was rendered by direction of the court, in favor of the plaintiff, for the sum of $5,395.13 damages.

      E. P. Wilde?', for the appellants.

      Thomas F. Wentworth, for the respondent.
   Yan Brunt, P. J.:

This action was brought by the plaintiff, as assignee for the benefit of creditors, to recover the value of a stock of goods which came into his possession as such assignee, and were, subsequently, attached and sold by the sheriff, who was the original defendant in the action. It appears that the defendants Yietor and Cullen executed and delivered to the sheriff a bond of indemnity, and the attached goods were sold under execution and the proceeds received by the defendants Ellison. At their request the sheriff’s indemnitors were substituted in his place as defendants, and directed to answer the complaint herein. The answer of the defendants was a general denial and the affirmative defense that the assignment under which the plaintiff claimed title was fraudulent as against creditors. Upon the trial of the case at circuit before a jury motions were made, upon the part of the defendants, to dismiss the complaint upon various grounds, and requests were made on both sides-to direct a verdict j. .and the court directed a verdict in favor of the plaintiff, and from the judgment thereupon entered this appeal is taken. Yarious points have been raised upon this appeal which it will be necessary to discuss briefly. It is urged that the complaint should have been dismissed, as against the defendants Yietor and Cullen, the indemnitors, on the ground that as to them it contained no allegations sufficient to constitute a cause of action. The rules governing the cases of interpleader seem to be relied upon by the counsel for the .appellants to sustain this proposition.

This action was originally brought against the sheriff, and the indemnitors made application to the court, under the statute, to take the place of the sheriff and answer the cause of action alleged in the complaint. It does not appear that under those circumstances any amendment of the complaint was necessary, as they were defending in the place and stead of the sheriff, and answering the cause of •action alleged against him for which, if established against him, they, the indemnitors, had made themselves liable. The rules governing the cases of interpleader, therefore, do not seem to apply, as in view of the manner in which the action was commenced, the plaintiff •only had to establish his cause of action against the sheriff in order to be entitled to a judgment against the indemnitors because of the .action which they had taken in intervening in the action against the sheriff. It was not necessary, therefore, to prove any cause of action as against the indemnitor. It was only necessary to prove the cause of action against the sheriff.

It is further urged that the complaint should have been dismissed as against the defendant Ellison, on the ground that the evidence is insufficient to make out any cause of action. It is true that the mere fact that they received the proceeds of the sale, or a portion thereof, in no manner made them liable ; nor was the fact that the execution issued against the defendant’s property contained a direction to levy and sell the same, for the purpose of satisfying the execution, .sufficient to hold them as authorizing the trespass upon the part of the sheriff. The fact, however, that they indemnified the sheriff against all costs and damages which might result from such levy and sale, it seems to us, was sufficient to make them liable. It is true, it is claimed, that there was no evidence going to show any authority upon the part of the Ellisons for the commission of this trespass. But where the record itself, in consequence of the action of the indemnitors, shows that an indemnity upon the part of the plaintiffs had been given to the sheriff for the purpose of making this levy, the presumption necessarily arises that such indemnity was given at the request of the defendants Ellison, and that they, by the fact of the giving of such undertaking, made themselves parties to the trespass and liable for the damages arising therefrom.

It is further urged that error was committed in regard to the rule of damages, and that there was no evidence upon which the jury could fix any definite amount upon which their verdict could be predicated or that the damages were excessive. It would appear that the latter objection was well taken. The evidence offered upon the part of the plaintiff, tending to prove value, was exceedingly unsatisfactory, and the witnesses were not shown to be qualified to speak upon that point. There was evidence,' however, as to the amount which this property brought when sold by the sheriff, and this was clearly evidence upon which the jury might predicate an estimate of value.

It is finally urged that error was committed in the exclusion of testimony in reference to the fraudulent character of the assignment under which the plaintiff claims. Most of the rulings of the court, in respect to the exclusion of evidence which are criticised by the appellant, were clearly correct.

The representations that one of the members of the firm made, at the time of the purchase of the goods in reference to the indebtedness of the firm, could not invalidate an assignment subsequently made, simply because it recognized indebtedness -which at that time' it was stated did not exist, such representations having no connection whatever with the assignment. A creditor cannot be deprived of the rights which the law and the statutes give him by any such indirect testimony as this. Fraud must be proved, and cannot be presumed, unless such facts are established by competent evidence that no other inference but that of fraud can be drawn therefrom.

"We think, however, that the learned court erred in excluding the testimony as to the New Jersey property; and it is clear that this error arose from the fact that the attention of the court was called to the case of Blain v. Pool (13 N. Y. St. Rep., 571), which was claimed, upon the part of the plaintiff, to settle all the questions raised in the case at bar in favor of the plaintiff, and the attention of the court was not called to the fact that there was a very decided difference in the proof as it was presented in the case at bar from that which had been proved in Blain v. Pool (supra). In the absence of any proof in respect to the statutes of New Jersey, all the real estate, whether situate in New York or New Jersey, owned by the parties to the instrument, would pass to the assignee; and in the case of Blain v. Pool it was held that it did not, simply because, upon proof of the statute of New Jersey, it appeared that such a conveyance in such an assignment was opposed to the policy of that State which controlled the transfers of real estate situated therein.

In the case at bar no evidence was offered of the statute of New Jersey. It did not appear that the statute of New Jersey was in any way different from the statutes of New York, or that the common law had been altered by any statutory regulation in that State, and as a result, as far as the proof in the case at bar was concerned, the assignment would have carried the title to the real estate situate in New Jersey as well as the property situate in New York.

Evidence was offered going to show that one of the parties to this assignment, in whom the title to this real estate in New Jersey stood, after the assignment conveyed it to other parties. And it might well be argued, if this evidence was before the court, that this was a fraudulent action upon the part of one of the assignors in attempting to take out from the action of the assignment this property which had been conveyed thereunder. "Whether proof of this fact would have called upon the court to hold that the assignment for that reason was fraudulent and void, it is not necessary to discuss, because it might very well have been that if that proof had been in the case and the same motions at the end of the case had been made as were made, that the direction of the court as it has been made might have been upheld; but it is impossible for us to say whether or not, with that proof before the court, it would have made-the same disposition of the case which it did, such proof having been excluded.

It is evident that the court was misled as to the purport of the case of Blain v. Pool (supra), and the learned counsel for the respondent, judging from his points, does not yet seem to have realized the difference between that case and the one at bar, as the facts are now presented upon the record.

Ve think, for the reasons given, that the judgment must be reversed and a new trial ordered, with costs to appellants to abide the event.

Brady and Daniels, JJ., concurred.

Judgment reversed and new tidal ordered, with costs to the appellants to abide event.


author: Van Brunt, P. J. :

text:
    CHARLES MINERLY, Jr., Appellant, v. THE UNION FERRY COMPANY OF BROOKLYN, Respondent.

      Violation of a navigation law by a vessel — only raises a presumption of negligence.

    In an action brought to recover damages resulting from a collision, alleged to have been caused by the negligence of a pilot in charge of a ferry-boat belonging to the defendant, it appeai'ed that the plaintiff’s steamboat was not, as nearly as possible, in the center of the river, and was propelled at a greater rate of speed than ten miles an hour, in violation of the provisions of chapter 331 of the Laws of 1848, requiring all steamboats passing up and down the East river, between the Battery and Blackwell’s Island, to be navigated, as nearly as possible, in the center of the river, and not at a greater rate of speed than ten miles an hour.

      Held, that as the statute did not declare that a violation of these provisions should constitute negligence as a matter of law, the violation by the plaintiff did not justify a dismissal of the complaint.
    That the violation of the statute simply created a presumption of negligence on. the part of the plaintiff, and placed upon him the burden of establishing not only that the defendant was negligent, but that the violation of the statute on the part of the plaintiff in no way contributed to bring about the accident.
    Appeal by the plaintiff from a judgment entered, after a trial at. a New York Circuit before a court and a jury, in the office of tb& clerk of the county of New York on the 23d day of December, 1887..
    The judgment directed that the complaint be dismissed, with costs, on the merits.

      Henry Schmitt, for the appellant.

      B. D. Sillimcm and F. A. Ward, for the respondent.
   Van Brunt, P. J. :

This action was brought to recover damages sustained by the plaintiff, alleged to have been caused by the negligence of the pilot in charge of one of the ferry-boats of the defendant.

It will not be necessary, in considering the only question to be discussed- in the disposition of this appeal, to state in detail the evidence that was produced on both sides upon the trial of the action. It will suffice to state the general features of such evidence •and the apparent ruling of the court upon certain portions thereof in order to come to a conclusion.

The plaintiff in this action was a pilot having charge and sole control of the Erie Annex Steamer City of Chester, which was accustomed to run between Brooklyn and Jersey City. The defendant owns and controls, amongst others, the ferry from the foot of 'Whitehall street, New York, to the foot of Hamilton avenue, in the city of Brooklyn. On the morning of the Jth of August, 1885, the plaintiff left his slip at the Fulton Ferry in Brooklyn on his usual trip to Jersey City, and he proceeded upon his course until he neared the Hamilton Ferry slip, at the foot of Whitehall street. A boat, called the Monticello, was coming out from said slip, and another boat, the Brooklyn, was making for said slip on her trip from Brooklyn. The position of the plaintiff’s boat is variously stated by the witnesses on the part of the plaintiff and of the defendant, the defendant claiming that she was running along close to the pier-heads and very far from the middle of the river, and the plaintiff claiming that although she was much nearer the pier-heads than the middle of the river yet still she was as near the center of the river as she could be under the circumstances. It was further claimed, upon the part of the defendant, and the evidence seemed to establish the fact, that she was proceeding down the river at a rate of more than ten miles an hour. The Brooklyn and the Chester came into collison and the plaintiff was injured. Amongst other evidence offered, upon the part of the defendant, was chapter 321 of the Laws of 1848, entitled “An act in relation to the navigation of the East river by steamboats,” which is in the following language:

. Sec. 1. All the steamboats passing up and down the East river, between the Battery at the southern extremity of the city of New York, and Blackwell’s island, shall be navigated, as near as possible, in the center of the river, except in going into or out of the usual berth or landing place of such steamboat, and shall not be propelled at a greater rate of speed than ten miles an hour.

Sec. 2. The master, pilot or engineer of any steamboat violating either of the provisions of the foregoing section shall be deemed guilty of a misdemeanor; and in addition thereto, the master, pilot and engineer of such steamboat shall respectively be liable to the penalty prescribed in section 9, title 10, chapter 20 of the first part of the Revised Statutes, to be sued for and applied as therein directed.

It was claimed npcdu the trial that the evidence showed that the plaintiff’s steamboat was not as near as possible in the center of the river, and that she was propelled at a greater rate of speed than ten miles an hour, and, therefore, that he was shown to have been guilty of negligence by this violation of the statute, and for this reason it would seem the court dismissed the complaint.

This, we think, was error. The statute nowhere decides that a violation of its provisions shall be negligence as a matter of law. It provides a punishment for the violation, but nothing is said as to the liability of being subject to any other penalty than that therein prescribed.

Under these circumstances, proof of the violation of the statute is not such absolute proof of negligence as the court below seems to have considered it. It is undoubtedly true that the failure of a person to comply with the requirements of the statute above referred to is prima faoie guilty of negligence. The failure to conform to the statutory requirements may be qualified by circumstances bearing ujion the question which may rebut the presumption arising from.the failure to comply with the statute, and where there is such a condition of the proof, the question of negligence becomes one for the jury, in view of all the evidence offered in the case, the statutes included. (McRickard v. Flint, 114 N. Y., 222-227.)

In the case at bar evidence was offered, upon the part of the plaintiff, from which the jury might possibly have inferred that the violations of the statute which were established by the evidence in no manner contributed to the happening of the accident, except the mere fact that by the violation of the statute the plaintiff was in • the position in which he was. But even if he was in that position in consequence of his violation of the statute, this gave no right to the other boats in the river to run him down. He had made himself liable to the penalties prescribed by the statute, and he had also made himself liable in case of accident to the presumption that the accident had arisen because of his violation of the requirements of the statute, and these were the only burdens which such violation, imposed upon him.

. It seems, however, to have been consideren by the court below that, upon proof of this violation, all right upon the part of the plaintiff to a recovery for damages sustained in consequence of defendant’s negligence was ended. As already said, we do not think this to be the true rule of law. It placed the burden upon the plaintiff of establishing not only that the defendant was negligent, but that Iris violation of the statute in no manner contributed to the happening of the accident, the presumption as to his own negligence,, because of the violation of the statute being against him.

The conflict of evidence between the witnesses upon the part of the plaintiff and the defendant, as to the happening of the accident, raised the question as to whether the violation of the statute and the subsequent management of the plaintiff’s boat in any manner contributed to it. This was a question for the jury, and they were-to determine whether the plaintiff had given sufficient excuse to rebut the presumption which his alleged violation of the statute raised. "We do not think, therefore, that the court was justified in the extreme view which it took in reference to this matter, and we think that it should have submitted the question to the jury, instructing them as to the effect of the statute in question, and leaving the evidence to them to weigh and determine whether the plaintiff had rebutted the presumption which his violation of the statute entailed.

Under these circumstances, we think that the judgment was erroneous and must be reversed and a new trial ordered, with costs to appellant to abide the event.

Beady and DaNiels, JJ., concurred.

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


author: Barrett, J.:

text:
    In the Matter of the Estate of CATHARINE S. KEMEYS, Deceased. THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. WALTER S. KEMEYS and GERRIT S. MILLER, Appellants.

      ■Statute — when it takes effect — property given to an adopted child, collateral inheritance taoi thereon imposed by a decree of a surrogate of Map 27, 1889, is not affected by chapter 479 0/1889, which took effect June 14, 1889.
    'Tie provision in a legislative act, in the State of New York, that “this act shall take effect immediately,” relates to its approval by the governor, and not to the time of its passage by both houses of the legislature. It simply has the effect of rendering inapplicable to such a statute the provision of the Revised Statutes (1 R. S., 157, § 12) that “ every law, unless a different time shall be prescribed therein, shall commence and take effect throughout the State on and not before the twentieth day after the day of its final passage as certified by the Secretary of State.”
    A tax had become payable, under the collateral inheritance tax law (chap. 483 of the Laws of 1885), upon a gift by a testatrix to an adopted child, and there had been an adjudication by the surrogate on the 27th day of May, 1889, imposing-such tax.

      Meld, that the right of the State to collect the same was not taken away by chapter 479 of the Laws of 1889, which went into effect on the 14th day of June, 1889, exempting such gifts to adopted children from the collateral inheritance tax.
    'That such act of 1889 did not affect the right to collect a tax which had already been imposed and had vested, under the act of 1885, prior to the time of the taking effect of the act of 1889.
    Appeal by the defendants, Walter S. Kemeys and Gerrit S. Miller, from an order made by the surrogate of New York county ■on the 13th day of February, 1889, In the Matter of the Estate of Catharine 8. Kemeys, Deceased, whereby an appraiser was appointed .and directed to give notice to certain parties interested in the property of Catharine S. Kemeys, the decedent, subject to the payment of the collateral inheritance tax; and also from an order of said surrogate, made on the 27th day of May, 1889, whereby the report ■of the appraiser was confirmed and the tax upon the property was fixed.

      8. Jones, for the appellants.

      B. F. Dos Bassos, for the People, respondent.
   Barrett, J.:

The real question presented by this appeal is, whether an act of the legislature, which specifies that it shall take effect “ immediately,” so takes effect upon its passage by both houses or upon its approval by the governor.

The appellants’ contention is that although it only became a law upon the governor’s approval, yet upon such approval it took effect by legal relation from the date of its passage. And he cites Latless v. Holmes (4 Durnf. & East, 660) in support of this contention. In that case it was held, reaffirming the rule laid down in Panter's Case (6 Bro. P. C. 486), that “where no specific day is mentioned in an act of parliament from which it is to take effect it commences-by legal relation from the first day of the session.” ¥e have no-such rule in this State, and such a fiction of law would work great injustice. All fictions and presumptions upon the subject are here changed by the Revised Statutes (1 R. S., 157, § 12) which provides-that “ every law, unless a different time shall be prescribed therein, shall commence and take effect throughout the State on and not before the twentieth day after the day of its final passage as certified by the Secretary of State.”

In the present instance the legislature has prescribed a different-time, namely, “immediately.” That, however, does not mean “immediately” upon the passage of the act by both houses, but immediately upon its becoming a law in the constitutional way. In the absence of an express declaration to that effect, the legislature is not presumed to have given retroactive force to its enactment. And it certainly would give the act retroactive force to-say that upon its becoming law it should take effect at a prior date. This is the only reasonable view of the- matter, and it is emphasized by the act of 1888 (chapter 4, amending section 2 of chapter 306 of the Laws of 1842), -which requires the Secretary of State, in publishing the statutes, to insert immediately under the title of each act the date when it became a law instead of, as formerly, the date of its passage. Now, the Session Laws, as published annually, do not show when the various acts were passed. If, therefore, the phrase- “ this act shall take effect immediately ” be construed to mean immediately upon its passage by both houses, we would have to go-behind the printed laws, as certified by the Secretary of State, 'and • ascertain when, as matter of fact,-the particular bill passed. We are, therefore, of opinion • that the phrase in question was simply intended to operate against the twenty-day provision of the Revised Statutes; and that the act took effect immediately upon its approval by the Governor, and not before.

This conclusion is decisive of the present appeal. Mrs. Kemeys died on the 6th of November, 1885. Under her will her residuary estate plainly vested in Walter S. Kemeys. As the law stood at the time of Mrs. Kemey’s death, Walter S. Kemeys was not exempt from the collateral inheritance tax. (Laws 1885, chap. 483.) The law exempting persons who, like Mr. Kemeys, stood to the deceased for not less than ten years prior to her death in the mutually acknowledged relation of child, was not passed until 1887 (Chap. 713.) And it has been decisively held that this latter law was not retroactive. (In re Miller, 110 N. Y., 217.) There have been differences of opinion, however, as to whether, in a case of this acknowledged relation, the legal machinery for the assessment of the tax could be set in motion, or, if set in motion, the assessment ordered after the act of 1887 went into effect. In the Matter of Cager (46 Hun, 659) it was held that it could not, while in the Matter of Arnett (49 id., 599) it was held that it could. (See Kissam v. The People, 6 Dem., 171 and In re Ryan, 18 N. Y. St. Rep., 992.) The reasoning in the Cager Case was disapproved on appeal (111 N. Y., 347), while the views of Dwight, J., in the Arnett Gase seem to be entirely satisfactory. He says that “ there is nothing in the history or character of the new scheme of taxation to suggest a purpose to grant exemption from its operation in the limited number of cases in which the tax accrued under the original act (1885), and was uncollected at the time of the passage of the amendment ” (1887).

The right to the tax vested under the act of 1885, and as that vested right was not taken away by the act of 1887, but merely withdrawn for the future, there could be no good reason why such vested right should not be enforced after the amendatory act as well as before. This was clearly recognized by the legislature in the passage of the act of 1889, otherwise this latter act would have been superfluous. It provides as follows (chap. 479):

“ Section 1. Section 25 of chapter 713 of the Laws of 1887, entitled ‘An act to amend chapter 483 of the Law of 1885,’ entitled ‘An act to tax gifts, legacies and collateral inheritances in certain cases,’ is hereby amended so as to read as follows:

“ Section 25. All acts and parts of acts inconsistent with the provisions of this act are hereby repealed, but this act shall apply to all estates of deceased persons where no assessment of the tax has been made to which such estate or estates are liable under the provisions of the foregoing act.

“ Section 2. This act shall take effect immediately.”

This amendment, however, under the construction given to it in the first part of this opinion, only went into effect on the 14th day of June, 1889, while the final order of the surrogate, assessing the tax, was made on the twenty-seventh day of the preceding May. The amendment, therefore, was inapplicable to this order, and did not disturb its force or effect.

It follows that the orders of the surrogate should be affirmed, with costs.

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

Orders of the surrogate affirmed, with costs.