text:
    Charles A. Clegg, Respondent, v. The New York Newspaper Union and Others, Appellants.

      Action for damages for a breach of a contract providing for the publication of matter-in certain newspapers — evidence sustaining a judgment for the plaintiff — evidence properly excluded — condition precedent and collateral covenant, distinguished — when a, right of action accrues — an oral assignment of a claim accompanied by the payment of the purchase price is valid — when interest on the amount of the damage should be allowed.

    Appeal by the defendants, the New York Newspaper Union and others, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the city and county of New York on the 2d day of July, 1892, upon the verdict of a jury, rendered at the New York Circuit, and also from an order of the Supreme Court, entered in said clerk’s office on the 4th day of November, 1892, denying defendants’ motion to set aside the verdict and for a new trial.

      Horace Bussell, for the appellant.

      WilUam B. Hornblower, for the respondent.
   Follett, J.:

For some years prior to 1876 the plaintiff was engaged in the city •of New York in securing from persons, firms and corporations advertisements to be published in various newspapers. Pie is ■described in the case as an advertising agent,” but he is neither an agent of the advertisers nor of the publishers. He makes agreements with those wishing to secure the publication of their advertisements to procure their publication in certain newspapers for certain sums, and contracts with the papers, or those representing them, to publish the advertisements at rates agreed on. The difference between the rate paid to the newspapers and the rate which he receives from the advertisers is his profit. The defendants are corporations, except the individual defendants, who are partners under the firm name of Cramer, Aikens & Cramer, and control a list of newspapers called “ The Milwaukee Newspaj>er Union.” Each of these corporations and this firm controlled a number of newspapers called a list, published in various places, using what is known as patent outsides.” These outsides and many of the advertisements printed by these local newspapers were furnished by “ The Ameri-_ can Newspaper Union,” an organization formed and controlled by the defendants, which organization had a president who was authorized to make contracts for advertising binding on the defendants. Before May 3, 1876, the defendants, under contracts entered into with the plaintiff, had procured to be published in the various local newspapers controlled by them advertisements at rates agreed upon. May 3, 1876, the parties entered into the following contract:

,<£ New York Office of the List of Co-operative Newspapers.

“E. W. Foster, Special Agent.

££ 148 and 150 Worth St.

££ Office of the N. Y. Newspaper Union, )

“ New York, May 3, 1876. i

Charles A. Clegg, New York :

“ Dear Sir-— I will execute your orders to the amount of $50,000 gross in the American Newspaper Union Lists, subject to the usual rules and regulations on demand for $14,000, payable $1,000 down, $2,000 July 1st next, $1,000 monthly thereafter until paid, or af least as fast as the advertising expires.

“ Orders in excess of $50,000 previous to April 1st, 1877, will betafeen at 25 per cent of gross rates.

“ A. j. AIKEN S, President.”

Under this contract the plaintiff was entitled to occupy a definite space, which is known as a “ space contract.” Pursuant to this agreement the defendants caused to be published in the newspapers-under their control various advertisements furnished by the plaintiff which he secured from his advertisers. Controversies arose between the parties over their respective obligations and liabilities, and August 1, 1876, a new space contract was entered into, of which the following is a copy:

“ Charles A. Clegg, Advertising Agent,

“Tribune Building.

“ Address : P. O. Box 519.

“New York, August 1st, 1876.

“ Mr. A. J. Aikens,

“ President American dVewspcoper Union,

“ 148 and 150 Worth Street, City:

“ Dear Sir — I hereby agree to carry out the contract for $50,000-(gross) worth of space made with you in the American Newspaper Union Lists May 3, 1876, by paying $1,000 cash and giving my seven notes for the balance, payable $2,000 October 3, $1,000 November 2 and $1,000 December 2, in 1876; also $2,000 January 1, $1,000 February 3, $2,000 March 2 and $3,000 April 1st, in 1877, on your agreeing to carry out the following conditions, viz.:

“ 1st. It is understood that you have given me as low rates as you have to any New York advertiser, agent or agency, and should you give any one a lower rate during the continuance of this contract you are to make this equally low.

“ 2nd. If I have not used up all of said space prior to April 1, 1877, then I am to be allowed to continue inserting advertisements until the space is all used, and should I require any additional space on orders taken before 1st April next, I am to have said extra space at twenty-five per cent of gross rates, by paying cash with each order.

“ 3rd. All of this $50,000 worth of space is to be charged at gross rates.

“4th. You are not to receive any more advertisements from George "W. Niles or his agents, or «ell him any more space.

“ 5th. As there is a disagreement between us as to the contracts made in your and A. N. Kellogg’s lists prior to May 3rd last, I am to retain the amount of $6,766.04 (for which you have rendered me bills), until the completion of the balance of said contracts, when Mr. Poster and myself-are to write out a full statement of our respective claims, and you agree to pass upon the same impartially. Should your decision not prove satisfactory to me, then it is mutually agreed to have the same adjusted by the courts. Hereafter I am to pay you monthly on the balance of said contracts until they are completed.

“Respectfully yours,

“ CHARLES A. CLEGG.’’

The first paragraph of this contract, not numbered, relates to carrying out the stipulations of the contract of May third. Subdivision No. 5 relates to the performance of the then outstanding contracts entered into before May 3, 1876. Between June 10, 1876, and December 27, 1876, the plaintiff secured fourteen contracts from different firms and corporations for advertising in said newspapers for which he was to receive from the advertisers $25,048.31. Twelve of the fourteen advertisements were to be continued during a year, and two of them for one year and six months. These advertisements so contracted for were furnished by the plaintiff to the defendants and the stipulated price for their publication was paid to them, they undertaking to procure them to be published for the times specified in their local newspapers. Before the completion of the publication of these advertisements difficulties arose between the plaintiff and defendants, and April 11, 1877, the defendants refused to complete the publication of the fourteen advertisements furnished by said fourteen firms to the plaintiff and by him to the defendants. . The plaintiff had before this paid to the defendants the full sum to which they were entitled for publishing these fourteen advertisements, and after their publication was discontinued the advertisers paid the plaintiff for the time during which the advertisements had run, and had they been published for the full time stipulated the plaintiff would have been entitled to receive from them the further sum of $14,926.70, which sum he lost by the refusal of the defendants to continue longer to publish the advertisements.

July 27, 1879, this action was brought to compel a specific performance of the contract, and afterwards, by amendment, on terms, it was changed into an action for the recovery of damages for the failure to publish said fourteen advertisements.

The defendants by their answers admitted that they undertook to publish advertisements for the plaintiff under a contract, but denied that they were published on the terms set out in the complaint, and denied that they had broken the contract, and also denied that the plaintiff had kept and performed it on his part. The defendants also set out as counterclaims: (1) That plaintiff was indebted to them for $1,421.42 for advertising, with interest thereon from August 1, 1876, and (2) that before this action was begun the defendants furnished advertising space, for the plaintiff for which he agreed to pay $2,473.40, for which sum he was indebted to them, with interest from April 1,1877. The plaintiff replied to the counterclaims, denying any liability, and alleging that before the action was begun defendants assigned said alleged counterclaims to George P. Rowell, and that the claims were being litigated in a former action pending between the parties.

The jury found a verdict for the plaintiff, and assessed his damages at- $14,926.70, with $13,765.09 interest. No exception was taken to the rule for the assessment of damages laid down by the court, except to the instruction that if certain facts were' found interest might be allowed. On the trial the defendants contended that the plaintiff had violated the clause in the contract, which provides that the plaintiff’s orders were to be executed “ subject to the usual rules and regulations.” It was insisted that one of these rules provided that the plaintiff and all others engaged in the same business should not give their customers less rates than those prescribed in a schédule furnished by the defendants.

The plaintiff insisted that there was no such rule, and also that if one existed it was not applicable to space contracts, but only to advertisements published on commission, and further, that the defendants’ agent Poster saw the fourteen contracts made by the plaintiff with his customers, assisted in settling their terms and approved of the prices agreed on. We must assume that the jury determined in favor of the plaintiff some or all of the sub-issues, which together make up the issue whether plaintiff had violated any of the usual rules and regulations.

The learned counsel for the appellant insists that the court erred in excluding evidence that the plaintiff did not make monthly payments on the contracts outstanding May 3, 1876. The plaintiff objected to the evidence on the grounds : (l).That the making of monthly payments was not a condition precedent; (2) that it was not a defense to the plaintiff’s action ; (3) that it was not pleaded as a defense. The objections were sustained. The court correctly ruled that making monthly payments under the fifth subdivision of the contract was not a condition precedent necessary to be performed by the plaintiff before he could maintain an action for damages arising out of the breach of the other provisions of the contract. When a condition precedent exists in a contract which is to be performed by the plaintiff he must aver and prove performance on his part before he can recover for a breach of the same contract by the defendant. (Code Civ. Proc. § 533; Bogardus v. N. Y. Life Ins. Co., 101 N. Y. 328.) But if the provision is a collateral or independent covenant or promise, and the defendant wishes to avail himself of its breach as a partial defense, the burden is on him to plead and prove non-performance on the part of the plaintiff.. The rule as to which party has the burden of pleading and proving a breach of a stipulation affords a very good test as to whether or not it is a condition precedent. These monthly payments did not in anywise relate to the advertisements which were furnished by the plaintiff to the defendants subsequent to May 3, 1876, but related wholly to independent contracts made prior to that date, and we do not think this stipulation was a condition or promise which the plaintiff was bound to plead and prove performance of as a prerequisite to his right of recovery for defendants’ refusal to complete the publication of advertisements undertaken under the other provisions of the contract.

The order of time in which covenants or promises are to be performed is an important, though not a controlling, factor in determining whether they are conditions precedent, but in addition it must appear that the promises alleged to be conditions precedent relate to the particular promise which the plaintiff alleges has been broken. We think the first and second objections to the evidence were well taken.

Was action prematurely brought? The counsel for the appellants asserts in his brief, under the head of point second, that when the action was begun the defendants were engaged in publishing about 100 advertisements for the plaintiff, under the contract, and refers us to page 56 of the case for the evidence. The evidence is that about 100 advertisements were being published April 11, 1877, and were continued for some time thereafter, but whether they were being published when the action was begun does not, so far as we find, appear.

The advertisements were published under independent orders given by the plaintiff to the defendants, the execution of which they undertook, and when they absolutely refused to complete the publication, a right of action accrued, although the defendants might then have been engaged in publishing other advertisements for the plaintiff under the contract pursuant to other orders.

The court did not err in rejecting the evidence as to the existence of the two counterclaims. It is alleged in the reply that the defendants had assigned those claims to George P. Rowell. Rowell was sworn as a witness for the defendants, and testified that he purchased those claims from Mr. Aikens, paying $3,000 for them, on the 22d of May, 1877.

He had previously testified that he agreed with Aikens, the president of the American Newspaper Union, to purchase the claims against the plaintiff and give $3,000 for them.

Aikens, the president, testified that Rowell, in May, 1877, purchased the claims of him and gave his check for $3,000 at the time. The oral sale and assignment, accompanied with payment of the purchase price, was valid. (Risley v. Phenix Bank, 83 N. Y. 318; Truax v. Slater, 86 id. 630.) This action was not begun until July 27, 1877.

Upon the question of interest the court instructed the jury as follows: “If you believe, on the evidence, that these defendants had at hand the ready means, by ordinary computation, of determining just what their breach of contract (if they were guilty of one) had cost the plaintiff in dollars and cents, then they had it in their power to compensate the plaintiff without awaiting a judicial liquidation of his damages.” The evidence is that the defendants’ agent knew what the customers had contracted to pay plaintiff for the publication of the fourteen advertisements. -The defendants knew what sum the plaintiff had contracted to pay them for the publication of those advertisements. The only fact unknown, if it was unknown to the defendants, which bore upon the question of damages, was whether the plaintiff’s customers would pay him such a proportion of the sums they had agreed to pay for full performance, as the time during which the advertisements were actually published bore to the whole time for which the plaintiff agreed to procure them to be published. The circumstance that this fact may have been unknown to the defendant, we do not think rendered the damages incapable of being ascertained by computation. It was a fact not in dispute on the trial, and was like weight, measurement or market value, one which could have been determined by reasonable inquiry.

If the plaintiff was entitled to recover $14,926.70 as of April 11, 1.877, for defendants’ failure to perform their contract, no injustice is done in allowing the interest on that amount. These are the only questions argued by the plaintiff on his brief, or at the bar of this court, and we find no error sufficient to call for a reversal of the judgment.

The judgment and order should be affirmed, with costs.

Yan Brunt, P. J., concurred.

Judgment and order affirmed, with costs.


source: Caselaw Access Project

author: Haight, J. :

license: Public Domain

text:
    Fredrich Dieboldt, an Infant, by Margaret Dieboldt, his Guardian ad litem, Respondent, v. The United States Baking Company, Appellant.

      Employer and employee — accident to the employee cmmd by the failure of the employer to maintain statutory automatic fasteners on elemtor doors — contributory negligence on the part of the employee.
    Although an employer may he negligent in failing to maintain automatic fasteners for the doors of an elevator well in accordance with the provisions of section 8 of chapter 463 of the Laws of 1887, still, when his employee knows of the condition of the doors and of the kind of fastenings provided therefor, it becomes the duty of the employee to guard against any accident which may be liable to occur in consequence of the absence of such automatic fasteners.
    A boy seventeen years of age, engaged in operating a freight elevator in his employer’s building, left the elevator at an upper floor and stepped into a room through the doors of the elevator well, which were not constructed with automatic fasteners in accordance with the statute, to get his lunch basket; on returning, as testified by the plaintiff, he looked in hut did not see whether the elevator was there or notthat he turned around to speak to a person standing near, and then hacked into the well; the elevator not being where he had left it, he fell and was injured, and thereafter brought an action against his employer to recover the damages resulting from the accident.
    The evidence showed that while the plaintiff was absent from the elevator, the defendant’s engineer had entered it and lowered it, and there was some conflict in the proof as to the distance the plaintiff went from the elevator and the time lie was absent therefrom.

      Held, that assuming that the defendant was negligent in not procuring automatic fasteners for the doors, still the evidence showed that the plaintiff was negligent; that this negligence on his part was the cause of his injury, and that because of such negligence he could not recover.
    Appeal by the defendant, tlie United States Baking Company, from a judgment of tlie Supreme Court in favor of the plaintiff, entered in tlie office of tlie clerk of Erie county on the 16tli day of February, 1893, upon a verdict rendered at tbe Erie Circuit, and from an order denying the defendant’s motion for a new trial made upon the minutes.

      G. S. Grosser, for the appellant.

      Wallace Thayer, for the respondent.
   Haight, J. :

This action was brought to recover damages for a personal injury. Plaintiff was an infant seventeen years of age ; he had been in the employ of the defendant for eight months, and at the time of the receiving of the injury for which this action was brought was engaged in operating an elevator in the defendant’s building. The elevator was located in the center of the building and*ran up through four stories to the roof. The well of the elevator was inclosed. There were double doors upon each floor opening out into the room. Upon the fourth floor the building was divided into two rooms by the elevator well, and there were two sets of doors, one opening into the front room and the other into the rear room. The elevator was used for the hoisting of material, and was not used for the carriage of persons. It appears that there were skylights over the top of the elevator well; that on the day in question they had been removed; that in the large room of the fourth story there were fifteen windows and three skylights; that at the time in question the day was bright and the sun was shining. On the 11th day of June, 1892, at about half-past five o’clock in the afternoon, the plaintiff ran the elevator up to the roof, where men were engaged in constructing an addition to the building. He looked at the men and then returned with the elevator to the fourth floor, and, as he testified, opened the doors into the front room, left them open about a foot and a half, went about ten feet to get his lunch basket and immediately returned without stopping to talk with anybody; walked towards the elevator doors where they were standing as he had left them; looked in the elevator well, but that it was so dark that he could not see whether the elevator was standing there or not; turned around towards a girl by the name of Sophia Luse, who was standing near by; said “ good night ” to her; took hold of the doors with his hands and backed into the elevator well, falling to the lower story, receiving the injuries for which this action was brought, He says that he was not gone from the elevator more than a minute. It further appeared that after the plaintiff left the elevator to get his lunch basket, as he says, that one Peter Young, an engineer in the employ of the defendant, entered the elevator and ran it down to the first story. He testified that he entered it from the front room, closing the doors after him, and took the elevator down to where it belonged ; that the time to quit work had arrived, and notice had been given to that effect, and it then became his duty to see that everything pertaining to the machinery was put in its proper place. Other evidence was given tending to show that there were thirty-five girls at work in the room; that the plaintiff had been absent from the elevator'from four to ten minutes; that he was from forty to fifty feet away, and was engaged in talking with the girls; that when he returned to the elevator the doors were closed as testified to by some of the witnesses and controverted by the others; that he opened the doors, turned to the girls, was waving his hand at them, bidding them good bye, when he backed into the elevator and.fell. It further appeared that the doors to the elevator well were not constructed with automatic fasteners in accordance with the provisions of section 8 of chapter 462 of the Laws of 1887. We shall, therefore, for the purposes of this case, assume that the defendant was negligent in not procuring such automatic fasteners (McRickard v. Flint, 114 N. Y. 222), and shall consider only the question of the plaintiff’s contributory negligence. A motion was made for a nonsuit upon this ground, and the same was denied and an exception taken.

The plaintiff knew of the condition of the doors, and of the kind of fastenings that had been provided therefor. It, therefore, became his duty to guard against any accident which was liable to occur in consequence of the absence of automatic fasteners. (Freeman v. Glens Falls Paper Mill Co., 24 N. Y. Supp. 403 ; Gibson v. Erie Ry. Co., 63 N. Y. 449; De Forest v. Jewett, 88 id. 264; Appel v. B., N. Y. & P. R. Co., 111 id. 550; Haas v. B., N. Y. & P. R. R. Co., 40 Hun, 145; Powers v. N. Y., L. E. & W. R. Co., 98 N. Y. 274; Shaw v. Sheldon, 103 id. 667.)

The plaintiff says that as he looked into the elevator well it was dark, and that he could not see whether the elevator was there or not. It was, however, at half-past five o’clock in the afternoon of one of the longest days in the year, bright and the sun shining. The top of the elevator well had been removed, and there does not appear to have been anything to obstruct the light from entering the well, and it is quite evident from all the testimony in the case that he could have seen had he carefully looked. He says he was gone from the elevator but a minute and but ten feet away, and yet it appears that Peter Young came to the elevator, found it alone with the doors open; that he entered the same and took it down to the lower floor without the plaintiff’s observing it. It is quite possible that he, the plaintiff, was ■ gone a longer time and a greater distance from the elevator than he admits. He concedes that a week before the accident he was instructed by. Mr. Derrick, the superintendent of the defendant, not to leave the elevator alone; that on that occasion'he had left it to do an errand for some one, and when he returned Mr. Derrick took him to task about leaving it and told him never to leave it again, to always stand upon it. ' Mr. Derrick tells us that his instructions were not to leave the elevator at any place except upon the first floor, and under no circumstances to leave it alone; that he was particularly careful of this for he feared that some of the other boys might take the elevator to run it for themselves. He further testified that he should not have regarded it a disobedience of his instructions had the plaintiff simply stepped off to get his lunch basket, but that he should have considered it a breach if the plaintiff stayed away long enough for some one else to come and take it. The plaintiff further concedes that as he returned he looked into the well, but did not see whether the elevator was standing there or not; that he turned around, bid good night to the girl that was standing near, and then backed into the well. In this it appears to us he was negligent and that this negligence was the cause of his injury, and that because of such negligence he cannot recover. (Hickey v. Taaffe, 105 N. Y. 26; Williams v. The D., L. & W. R. R. Co., 116 id. 628.)

Tbe judgment and order should be reversed and a new trial granted, costs to abide the event.

.Dwight, P. J., and Lewis, J., concurred.

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


author: Haight, J.:

text:
    Elijah R. Schoonmaker, Respondent, v. William Hoyt and Mark W. Hoyt, Appellants.

      Conveyance of land with growing hemlock trees thereon — contract reserving the hemlock ba/rk — right to the bm'k of an assignee of the contract as against a subsequent grantee, from the party reserving the bark, of his interest in it.

    Land on which hemlock trees are standing was conveyed hy the owner in accordance with a contract by which he reserved to himself all the hemlock bark upon the premises, together with the right of ingress and egress for the purpose of peeling and removing the same, the effect of the conveyance being such that the trees would have passed thereby as part of the realty were it not for the severance created by the reservation in the contract.

      Held, as it appeared that the parties intended the right to the bark to be a reservation as distinguished from an exception from the conveyance, that the right and title of the grantor to the bark was to be deemed to arise from the contract and would, therefore, pass by an assignment by him of his interest in the contract, as against a subsequent conveyance by him of his interest in the bark on the land to one having actual knowledge as well as constructive notice of the contract containing the reservation.
    Appeal by the defendants, William Hoyt and Mark W. Hoyt, from a judgment of the Supreme Court in favor of the plaintiff, entered in the' office of the clerk of Cattaraugus county on the 24th day of February, 1893, upon the report of a referee.

      Reynolds & Brown, for the appellants,

      Wm. II. Henderson, for the respondent.
   Haight, J.:

This action was brought to recover the value of a quantity of remlock bark ivhich the defendants had peeled and removed from the trees on which it grew. The defense was that the defendants were the owners of the bark.

It appears that on the 8th day of December, 1869, one Job Moses was the owner in fee of certain lands in Cattaraugus county known and described on a certain map made by Joseph Ellicott, surveyor of the Holland Land Company, as lots numbers 11, 60, 68, 66, 55 and 19, on which were growing a large number of hemlock trees. It further appears that Arthur Palen, Edward Palen and Gilbert W. Palen were the owners of other lands in said county known as lots numbers 2, 4, 10 and 12; that on that date Moses entered into an agreement with the Palens by which he sold to them the hemlock'bark growing upon the lands owned b}1, him, and the Palens, in payment therefor, agreed to convey to him lands owned by them, they reserving, however,, to themselves, their heirs and assigns, all the hemlock bark upon the premises to be conveyed by them, together with the right of ingress and egress for the purpose of peeling and removing the same. Thereafter, and on the 10th day of January, 1813, the Palens conveyed their lands to Moses pursuant to the requirements of their contract. Gilbert ~W. Palen having died, James F. Palen succeeded to his interest, and thereafter, and on the 1st day of February, 1873, Arthur, Edward and James F. Palen executed an assignment of their interest in the contract to Jackson S. Schultz of the city of New York, for the purpose of indemnifying and securing him for becoming surety with them upon a bond to the amount of $30,000, the material portion of which assignment is as follows: “ Now, therefore, we, the undersigned, Arthur Palen, Edward Palen and James F. Palen, for the purpose of indemnifying and securing the said Jackson S. Schultz from any and all losses, costs, damages and expenses by reason of his execution of said bond as aforesaid, and for a valuable consideration passing to us in addition to said execution of said bond, do hereby assign and transfer unto him, the said Jackson S. Schultz, all of our right, title and interest in and to the following described contracts, to -wit: (Herej follows the description of a contract not involved in this litigation.) One contract between Job Moses of the first yiart and A., E. and G. "W. Palen ol: the second part, dated December 8th, 1869, for the sale and removal from the lands therein described of the hemlock barlcl thereon and which last-mentioned contract is recorded in the Cat-1 taraugus county cleric’s office in volume 6 of Miscellaneous Records, at page 247.”

An action was commenced against Schultz upon the bond executed by him as surety for the Palens and a judgment was entered thereon on the 18th of December, 1874, for the sum of $16,700.77. On January 4, 1875, he commenced an action against the Palens, and claimed a judgment for the foreclosure of the contracts mentioned, and ashed that the Palens should be foreclosed of all their right, title and interest in and'to the contracts assigned to him, and that the same should be sold under the direction of the court; that such proceedings were had in the action that on the 1st day of February, 1875, judgment of foreclosure and sale in the action was entered for the relief demanded in the complaint, and it is conceded that in that action the court had jurisdiction of the persons and the subject-matter, and that judgment was duly given. A referee was then appointed to sell the interests of the Palens in the contract, and he subsequently sold the same at public sale to Sclmltz for the sum of $2,000, and.thereupon, in pursuance of the judgment, he executed and delivered to him a conveyance thereof.

The defendants, through several mesne conveyances and assignments, acquired the interest of Schultz in the bark in question, and have entered upon the premises and cut and peeled the same. Thereafter, and on the 3d of June, 1886, the Palens executed and delivered to the plaintiff a convej'ance of all their interest in the hemlock bark on lots 2, 4, 10 and 72 with all rights of action against any parties for cutting, removing or interfering with the same.

It will be observed that under the provisions of the contract with Moses the Palens became the owners of all of the hemlock bark growing upon his lands, and in payment therefor they became bound to deed to him the lands owned by them and described as lots 2, 4, 10 and 72, and that this requirement of the contract was subsequently carried out by their executing and delivering deeds pursuant to that provision. At the time of executing and delivering the deeds the trees were still standing, and would be considered a part of the realty were it not for the contract, but under the contract the trees were deemed severed from the soil, and, consequently, became personal property. Under the contract the bark growing upon the tress was reserved by the Palens. The bark consequently remained their property, and did not pass to Moses under the deeds. True, the Palens were the owners of the bark upon lots 2, 4, 10 and 72 before the contract was executed, and they remained the owners after its execution, but under the deeds the bark would have passed to Moses had it not been for the reservation in the contract, so that it is apparent that the Palens’ title to the bark is dependent upon and can be maintained only through the contract.

This contract, as we have seen, was assigned to Schultz. In assigning to Schultz, they in terms transferred to him all of their right, title and interest in and to the contract, so that if they held the bark by virtue of it, their title must of necessity have passed to Schultz. This assignment was made to indemnify Schultz for a liability that lie had incurred in their behalf, which he subsequently was obliged to pay. A suit was then instituted for the foreclosure and sale of the Palens’ remaining interest in the contract, and judgment was entered therein in favor of Schultz for the relief demanded, and all of their interest in the contract was sold at public sale and bid in by him, and it appears to us that the title to the bark on the lots in question passed to him under such sale.

The contention of the plaintiff is that the Palens did not obtain title to the bark upon the lots in question by virtue of the contract, and that, therefore, their title did not pass to Schultz upon the assignment of the contract, or upon the sale thereof under the foreclosure judgment. If this contention should be sustained, what would become of the plaintiff’s title ? For, as we have seen, the trees were standing uncut at the time of the conveyance by deed to Moses, and under the deed Moses would become the owner of the bark upon the growing trees. The plaintiff has not acquired Moses’ title, but stands upon the conveyance obtained from the Palens, and, as we have shown, Palen’s title can be established only through the contract.

Again, it is claimed that the word “ reserves,” appearing in the contract, should be construed to mean “ excepts.” That instead of reserving the bark from the lands to be conveyed, it was intended to except the bark from the conveyance. We shall not enter upon an extended discussion of the -technical «difference in the meaning of the two words further than to state that an .exception appearing in a deed, as ordinarily understood, saves from the operation of the deed some part of the lands described, whilst a reservation is not ordinarily understood to refer to the land itself, but relates to some right, property or interest connected therewith, such as right of way over, the collection of rents, the gathering of a crop or the cutting of the timber upon it. (Craig v. Wells, 11 N. Y. 315-321.)

But whether the right to cut and peel the bark is to be considered as an exception or a reservation must depend upon the manifest intention of the parties. (Rose v. Bunn, 21 N. Y. 275-278.)

It appears to us that, under the circumstances disclosed in this case, there can be no doubt as to the intentions of the parties. Schultz had become surety for the Palens upon the $30,000 bond. Accompanying this bond was a mortgage upon real estate, covering a tract of land in Cattaraugus county. The parties wanted the premises to be released from the lien of the mortgage. In permitting this Schultz required indemnity. The amount of the liability was large. The indemnity offered was an assignment of the interest of the Palens in this and another contract. They in terms assigned all of their title and interest.- They claimed, and were the owners of, all of the hemlock bark growing upon the lands owned by Moses, as well as that conveyed by them to Moses, and evidently intended that it all should be transferred to Schultz to indemnify him. Some comment has been made upon'the descriptions of the contract in the assignment. As we have seen, they assigned all of their right, title and interest in and to the following described contract, to wit,” and then for the purpose of describing the contract so assigned they state, One contract between Job Moses of the first part and A., E. and G. "W. Palen of the second part, dated December 8th, 1869, for the sale and removal from the lands therein described, of the hemlock bark thereon.”

It is claimed that the words for the sale ” only referred to the bark that was purchased by the Palens upon the lands of Moses, but this phrase must be read in connection with that which follows, and removal from the lands therein described.” All of the lands are described in the contract. Those of Moses and those conveyed by the Palens to Moses.

Again, it appears that this assignment was made in 1873, thirteen years before the Palens transferred their interest to the plaintiff. During many of these years the defendants were engaged in cutting and removing the bark on these lots. It appears that this was done with the knowledge of the Palens as well as that of the plaintiff, and jiq objection appears to have been made until about the time of the transfer to the plaintiff. It is, therefore, quite apparent that the Palens not only intended to transfer their interest in the bark to Schultz, but that they understood and supposed that they had in fact done so.

The plaintiff was one of the subscribing witnesses to the assignment. He, therefore, had actual knowledge of its existence as well as constructive notice through its record.

. We think the judgment should be reversed and a new trial ■ordered, costs to abide the event.

Dwight, P. J., and Lewis, J., concurred.

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


author: Haight, L.:

text:
    Clara J. Bogart, as Administratrix, etc., of Hoyt M. Bogart, Deceased, Respondent, v. The Delaware, Lackawanna and Western Railroad Company, Appellant.

      Negligence — death of a raib'oad employee caused by the washing omay of a railroad bridge in a storm — structural defects — requests to charge — contradiction of a witness.

    On the trial of an action brought against a railroad company operating, as lessee, a railroad built by another company, to recover, on the ground of its negligence, the damages resulting from the death of a fireman in the defendant’s employ, it appeared that the death was caused by the locomotive plunging into a stream where the bridge had been washed away in a heavy storm raging at the time; it was claimed by the plaintiff that, while the defendant was not liable for defects in the original construction of the bridge, it was liable if such defects existed and were or could have been ascertained by the defendant by proper inspection after it entered into possession of the road under its lease. Evidence upon this contention was given on both sides.
    The defendant requested the court to charge that, “If under the evidence the jury shall find that the cause of this accident was this extraordinary flow of water, in some way causing the destruction of the south abutment, that the plaintiff is not entitled to recover.”
    The court refused the request.

      Held, that, upon the theory upon which the case was tried and submitted, fclre request was proper and should have been charged, unless it was a mere repetition of what the court had already charged. - .
    It was conceded that the court had in substance charged the matter embraced in the request refused, but the defendant claimed that in a subsequent portion of the charge the court inconsistently left it to the jury to determine whether-there was an apparent structural weakness in the south abutment which ought, to have been discovered by the defendant before the accident, and that there-was, in fact, no evidence of any structural weakness in the south abutment.

      Held, that the charge was not faulty in that respect, it appearing that the consideration by the jury of the subject of structural weakness was limited to the: north abutment, and that they were plainly instructed that there was no evidence tending to show that there was any reason to suspect that the south abutment was not properly constructed.
    An error in admitting testimony to contradict a witness in reference to a statement alleged to have been made by him to others, without his attention having been sufficiently called to the time and place and persons to whom or in whose presence the alleged statement was made, may be cured and rendered harmless by a charge which removes the subject-matter of the witness’ evidence from the consideration of the jury.
    Appeal by the defendant, the Delaware, Lackawanna and Western Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of Livingston county on the 18th day of December, 1890, upon a verdict rendered at the Livingston Circuit, and from an order entered in said clerk’s office on the 18th day of December, 1890, denying the defendant’s motion for a new trial made upon the minutes, and from ah order entered in said clerk’s office on the 9th day of December, 1890, denying the defendant’s motion to set aside the verdict on the ground of irregularity.

      John 6r. Milburn, for the appellant.

      F. F. Babcock, for the respondent.
   Haight, L.:

This action was brought to recover the damages sustained in consequence of the death of Hoyt M. Bogart, plaintiff’s intestate, caused by the alleged negligence of the defendant.

The deceased was a fireman on one of the passenger trains of defendant. On the night of July 5, 1888, the engine upon which he was working plunged into McKercher creek and he was killed. A heavy storm was raging at the time, and the railroad bridge spanning the creek had been washed away, including all of the south abutment and a good portion of the north abutment. The railroad, including the bridge^ was originally built and is owned by the New York, Lackawanna and Western Railway Company. In 1882 it was leased to the defendant, by whom it has since been operated. It is not claimed that the defendant is liable for defects in the original construction of the bridge, but is liable if such original defects existed in its construction, and. were or could have been ascertained by the defendant by proper inspection after it had entered into possession under its lease.

Upon the trial it was claimed on behalf of the plaintiff that the foundation of the abutment was' laid on a wet bottom containing quicksand; that instead of being laid by courses of masonry, field and cobble stones were thrown in as backing, and that the mortar used was worthless; that in 1881 a portion of the north abutment had settled so that a crack appeared, and during a freshet several of the stones were washed out, and that at that time the structural defects of the abutment -were apparent. It was then repaired, but in the following October another crack appeared. Evidence upon this contention was given pro and con.

In submitting the case to the jury the defendant’s counsel asked, the court to charge that “ If under the evidence the jury shall find that the cause of this accident was this extraordinary flow of water, in some way causing the destruction of the south abutment, that the plaintiff is not entitled to recover.” The court refused to so charge, and to such refusal the defendant’s counsel took an exception. Upon the theory upon which the case was tried and submitted by the court, the request was proper and should have been charged, unless it was a mere repetition of that which the court had already charged.

It is conceded that the court had in substance charged the matter embraced in the request, but it is claimed that in a subsequent portion of the charge the court had left it to the jury to determine whether there was an apparent structural weakness in the south abutment which ought to have been discovered by the defendant before the accident. We think, however, that the charge of the court is not faulty in this respect. The judge in his charge, after giving general instructions as to the duty of railroad corporations in the maintenance and inspection of their bridges, proceeds to state that, “ There is not any claim on the part of anybody- that when these abutments were turned over to the defendant there was any -outward sign of weakness about them, or that there was anything which should immediately put the defendant upon notice that the abutments were not properly built. The defendant, unless there was some outward sign of weakness about them, had a right to rely upon their being properly constructed and was not chargeable with any of the faults of the original construction, and although they may have been improperly constructed yet the plaintiff cannot recover in this action unless you shall come to the conclusion that the defendant might have discovered the imperfect construction by a proper system of inspection and failed so to do. There is no evidence whatever directly bearing upon the south abutment which tends to show there was any reason to suspect that it was not properly constructed, that is, there was nothing in the abutment itself or any of the indications surrounding it which shoioed or which would gwe a/ny careful man reason to suspect it was not properly constructed. The evidence in that regard has been devoted entirely to the north abutment.” Tie then proceeds to call attention to the history of the north abutment, its construction, the defects that appeared therein, and concludes: If you shall come to the conclusion that the abutment was properly constructed, and that the defendant kept it properly inspected, and that it was properly made at the time this accident occurred, then the plaintiff is not entitled to a verdict, but the defendant performed its duty towards Bogart and is entitled to a verdict at your hands.” It thus appears that the court did not submit to the jury any question in reference to the structural defects of the south abutment; that as to such defects he specifically limited their consideration to that of the north abutment, and this was done in such clear and concise language as to leave no room for doubt. This is in accordance with the request and is not complained of. The court next proceeded to instruct the jury in reference to the duty of the railroad company as to the size of the throat or the space between the abutments that should be maintained in its bridges over streams, and called attention to the -magnitude of the freshet on the occasion in question, and then stated that it was the duty of the defendant to provide a bridge the opening of which was of sufficient capacity not only to meet all tlie ordinary exigencies of the climate and the situation of the stream, but such extraordinary exigencies as the experience of the people about there would leave them to believe might sometimes occur, although infrequently, and in conclusion charged: “ So it will be for you to say whether the plaintiff has established here, by all the evidence in the case, that these abutments were improperly constructed, and if they were improperly constructed, then whether or not the defendant after it took possession of this road was guilty of negligence in failing to find out they were improperly constructed and to see that they were properly constructed.” It is this portion of the charge that is claimed to be inconsistent with that previously referred to, but, as we have already pointed out, the subject of the structural weakness of the abutments was considered and closed by the court, in which the consideration of the jury upon that subject was limited to the north abutment, and they were plainly instructed that there was no evidence tending to show that there was any reason to suspect that the south abutment was not properly constructed. The court then proceeded to charge upon an entirely different subject, that pertaining to the size of the throat or the space between the abutments of the bridge, and, as we understand the concluding portion of the charge, in speaking in reference to whether the abutments were improperly constructed, had reference to their construction as to size of the throat of the bridge, and not to their structural weakness.

Upon the trial one Ilubbell was sworn as a witness for the defendant, and testified that he remembered the construction of the south abutment of the bridge; that he had charge of the digging of the south foundation pit, and gave evidence tending to show proper construction of that abutment, but stated that he did not see any of the north abutment dug. Upon cross-examination the plaintiff’s counsel asked him if he did not state to either Mr. Sisson or to Mr. Miller after the bridge fell, “That you were surprised that the damn thing did not go out before,” to which the witness replied that he liad no reccollection of ever saying such a word to anybody. The plaintiff then recalled Sisson and asked him as to whether Hub-bell had stated to him in substance “ that he was surprised that the damn thing did not go out before.” To this question defendant’s counsel objected as immaterial; that Mr. Hubbell was not specifically interrogated in regard to the time and place of this conversation, as required by the rules, and that it was immaterial and collateral. The objection was overruled and the witness was permitted to answer the question in the affirmative.

The rule is well settled that, in laying the foundation to contradict a witness, his attention should be called to the time, place and jiersons to whom or in whose presence the alleged statement was made. (Hart v. Hudson River Bridge Co., 84 N. Y. 56-60 ; People v. Weldon, 111 id. 569-575; Ankersmit v. Tuch, 114 id. 51-55.)

But we are of the opinion that the admission of this evidence, if error, was cured by the charge. As we have seen, his evidence related solely to the south abutment. The contradicting of him by the other witness did no harm, for the judge took from the jury the subject of the structural weakness of that abutment, and limited their consideration upon that subject to the north abutment only.

We have considered the otheT questions raised, but find nothing that requires a reversal.

The judgment and orders should, therefore, be affirmed.

Dwight, P. J., and Lewis, J., concurred.

Judgment and order appealed from affirmed.


text:
    Leonard Vogel and Frank Binder, Respondents, v. Valentine F. Whitmore and Others, and Rochester German Brick and Tile Company, Appellants, Impleaded with Lyman M. Otis and Others, Respondents.

      Mechanic’s lien — severance of a building contract with, joint contractors — division of the work between the contractors — lien for materials furnished to one of the contractors.

    A landowner entered into a contract with, two persons who agreed to construct a building for him on bis premises for a specified sum, whereby they became joint contractors, each liable to the owner for the proper performance of the contract, but not copartners or agents for each other so that one could bind the other; the two contractors subsequently entered into a further agreement between themselves by which one was to do the mason work and the other the rest of the work called for by the contract, fixing the amount that each should receive out of the contract price.

      Held, that their interests were thereby severed and each became a sub-contractor under the joint contract;
    That a material man who supplied material to the sub-contractor for the mason work, relying solely upon his interest in the contract, could acquire a statutory lien therefor only to the extent of the amount coming to such contractor under the contract, and could not, by a prior filing of a notice of lien, acquire a lien upon the portion of the contract money coming to the other contractor, superior to that of a person who had furnished material to such latter contractor.
    Appeal by the defendants Valentine F. Whitmore and others, and the Rochester German Brick and Tile Company, from a judgment of the Supreme Court, entered in the office of the clerk of Monroe county on the 28th day of February, 1893, upon a decision rendered after a trial by the court at the Monroe equity term.

      Abram, Benedict, for the appellants.

      F. E. Drake, for the respondents.
   Haight, J.:

This action was brought to foreclose a mechanic’s lien.

On the 21st day of March, 1892, the defendant Jacob J. Augustin entered into a contract, in writing, with the defendants Isaac McNeil and John Kleinow to construct for him certain buildings upon his premises in the city of Rochester for the sum of $11,800. Upon the making of such contract the defendants McNeil and Kleinow agreed between themselves that Kleinow, who was a mason, should do all the mason work upon the building, and furnish the material therefor, and that he should receive out of the contract price the sum of $5,210, and that the defendant McNeil, who was a carpenter, should do all of the remainder of the work, and should receive therefor the balance of the contract price. The defendants McNeil and Kleinow each performed their part of the contract, and have each been paid in full the contract price, with the exception that there still remains due and owing to defendant Kleinow $660, and to defendant McNeil S$3,T31.58, making a total of $4,391.58, which sum the defendant Augustin has paid into court to abide the result of this action. It further appears that the defendant Kleinow purchased of the firm of Whitmore, Rauber & Vicinus materials amounting to the sum of $694.46, and of the Rochester German .Brick and Tile Company materials amounting to the sum of $1,519, which he used in the construction of his part of the building, and that on the 8th of August, 1892, liens were duly filed by these defendants for the amount of their respective claims.

The trial court has found as facts that the sale of the materials by the said Whitmore, Rauber & Vicinus and the Rochester German Brick and Tile Company to said Kleinow was made by them respectively without any knowledge of the terms of said contract, or that said Isaac McNeil had any interest in said contract, and relying exclusively upon the interest of said Kleinow and the amount he was to receive therefrom, and that the said Whitmore, Rauber & Vicinus and the Rochester German Brick and Tile Company in making said sales gave credit solely to the said Kleinow, relying upon his interest in said contract for payment for their sales.”

It further appears that the defendant McNeil purchased of the plaintiffs, who were doing birsiness under the firm name of Vogel & Binder, lumber, sash, doors, blinds and frames, which were used by him in the building, amounting to the sum of $1,187.95; that he also purchased of the defendants Edward Goggin and John W. Knowles, who were doing business under the firm name of Goggin & Knowles, the tin and galvanized iron used by him upon the building, amounting to the sum of $825 ; that he also purchased of the defendants Lyman M. Otis and Charles H. Moody, doing business under the firm name of L. M. Otis & Co., materials consisting of lumber, etc., which were used in the building, amounting to the sum of $1,856.07, and that upon the 9th day of August, 1892, liens were duly filed by such plaintiffs and defendants for the amount of their respective claims. The amount of the liens so filed more than exceeds the sums remaining unpaid to the defendants McNeil and Kleinow on the contract.

The trial court found as conclusions of law that the defendants Whitmore, Rauber & Vicinus and the Rochester German Brick and Tile Company, acquired a lien to the extent of the $660 still remaining due and owing to the defendant Kleinow, and that the-plaintiffs and the defendants Goggin & Knowles and L. M. Otis & Co., acquired a lien to the extent of the $3,731.58 still remaining due and owing to the defendant McNeil.

From tbe judgment entered tliereon the defendants Whitmore, Rauber & Vicinus and the Rochester German Briclc and Tile Company, appealed to this court. They claim that inasmuch as their liens were first filed, and that the defendants McNeil and Kleinow were joint contractors, that they are entitled to have their claims first paid in full, and that all over the $660 going to Kleinow should come out of the amount going to McNeil.

The appellants would doubtless be entitled to have this disposition made of the funds were it not for the subsequent agreement made between the defendants McNeil and Kleinow and the equities of others that have come into existence thereunder. (Pell v. Baur, 133 N. Y. 377.)

But we think the circumstances of this case call for the application of a different rule. If A. should contract with the owner to construct a house upon his premises and should sub-let the mason work to B. and the carpenter work to C., material men supplying B. could acquire no lien upon the premises for more than the amount coming to him. They could not acquire a lien upon that which was going to C. (Carman v. McIncrow, 13 N. Y. 70; Lumbard v. S., B. & N. Y. R. Co., 55 id. 491; Crane v. Genin, 60 id. 127; French v. Bauer, 134 id. 548; Larkin v. McMullin, 120 id. 206; Hagan v. American Baptist Home Mission Society, 14 Daly, 131.)

The defendants McNeil and Kleinow entered into the contract with Augustin to construct the buildings. They thus became joint contractors, each liable to Augustin for the proper performance of the contract. They were not, however, copartners, or agents for each other so that one could bind the other. The appellants were not parties to the contract, nor have they any contractual relation with either .of the parties thereto, excejiting Kleinow. After the execution of the contract with Augustin, McNeil and Kleinow entered into a further agreement by which Kleinow was to do the mason work, and McNeil the other work called for by the contract, fixing the amount that each should have therefor. The effect of this agreement was to sever their interests under the contract, and to make each a sub-contractor under the joint contract. The appellants furnished their material to Kleinow without any knowledge of the terms of the contract with Augustin, or of the interest that McNeil had therein, and gave their credit solely to Kleinow, relying upon Ms interest in the contract, and, under the rule to which we have referred, their liens are limited to the amount that is coming to him under the contract. To hold otherwise, would be inequitable, and deprive the other lienors of rights which the statute intended to protect. Ordinarily the mason work has to be completed first before the carpenter can put in the wood work. There is, therefore, no difficulty about the masons first acquiring a lien. If they can extend their liens so as to cover that which under the agreement is reserved for the carpenters, the carpenters will stand but a poor show under our Lien Law. We may assume that the plaintiffs and the defendants Goggin & Knowles and L. M. Otis & Go., whc trusted the defendant McNeil for the material furnished to him to enable him to perform his part of the contract, knew of the contract with Augustin, and of the subsequent contract with Kleinow by which it was agreed that McNeil was to have all of the contract price over and above the $5,210 going to Kleinow, and thus knowing his interest in the contract and relying thereon, furnished him with the material with which to perform it.

We do not think that it was within the contemplation of the statute that the creditors of Kleinow should acquire a superior lien to the creditors of McNeil upon the funds going to jiim.

The case of Pell v. Baur (supra), has been pressed upon us as sustaining the appellants’ contention. We think, however, that case is distinguishable. The mason and the carpenter submitted separate bids, but when the contract came to be drawn they requested i( that their several agreements be merged into one joint contract between them and the owner.” There was no subsequent agreement between them by which they could be regarded as sub-contractors. The material for which the lien was filed was furnished with the knowledge and consent of both parties, and the contest in that case was as between the lienor and the joint contractors. Whilst in this the question is as to the rights of the lienors of the respective contractors.

We have carefully examined the evidence and are satisfied that the findings of facts by the trial court are amply sustained. The equities are with the respondents. It appears that the members of the firm of Whitmore, Bauber & Vieinus are also stockholders and officers of the corporation, the Bochester German Brick and Tile Company; that their offices are together and one person keeps the books of the corporation and of the firm, and that the collector of the firm also collects for the corporation; that Kleinow paid to the collector the sum of $1,800, the greater portion of which was money derived under the Augustin contract. This money, instead of being applied upon the material furnished for the Augustin buildings, was credited upon an old indebtedness, in violation of the lights of McNeil and his lienors.

The judgment should be affirmed, with costs.

Dwight, P. J., and Lewis, J., concurred.

Judgment appealed from affirmed, with costs.


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    In the Matter of the Application of the City of Buffalo to Take and Appropriate Lands for Park Purposes, in the Fifth and Eleventh Wards of the City of Buffalo and in the Town of West Seneca, Erie County.

      City of Buffalo — condemnation of land, for panic purposes, under chapter 466 of the Lancs of 1893 — railroad land.

    Lands wliicli have been once taken for and devoted to a public use pursuant to law cannot be again taken under the right of eminent domain and devoted to another public use without special authority of the Legislature.
    The city of Buffalo is not empowered to acquire title to the land of a railroad company, occupied by its tracks, under chapter 466 of the Laws of 1893, entitled “ An act to authorize the city of Buffalo to take and improve lands for park purposes,” as such act does not provide for the taking of the land of any railroad company in actual use for the purposes of its incorporation, and under the provisions of that act the city, if permitted to proceed, would acquire title to the land, with the right to take possession of and use the same through its park commissioners, who would have such management and control thereof as to have the power to eject the railroad company and prevent it from operating its railroad over the land.
    Nor can the city of Buffalo take the land of a railroad company for a parkway or park approach by force of the statute which provides for the extending ■ of highways over the right of way of railroad companies.
    Appeal by the Buffalo, Rochester and Pittsburgh Railway Company from an order of the Supreme Court, made at the Erie Special Term on the 31st day of March, 1893, and entered in the office of the clerk of 'Erie county, overruling objections and appointing commissioners to appraise certain land for park purposes.
    The act (Chap. 466 of 1892) under which such proceeding was taken was entitled “ An act to authorize the city of Buffalo to take and improve land for park purposes.”

      John 8. Rockwell, for the appellant.

      W. F. Mackey, for the city of Buffalo, respondent.
   Haight, J.:

Proceedings were instituted on behalf of the city to acquire lands for park purposes pursuant to chapter 466 of the Laws of 1892. The lands so proposed to be taken include a portion of the appellant’s lands occupied by its main tracks in the town of West Seneca.

Upon the hearing before the Special Term the appellant appeared by its attorney and objected to the appointment of commissioners to appraise its lands upon the grounds:

“1. No authority is given by the act under which this proceeding is taken to take the lands of the Buffalo, Rochester and Pittsburgh Railway Company, or of any railroad company;

“2. No authority is given by said act to acquire the right to carry the approaches to parks therein mentioned across the lands of said railway company, or to acquire an easement therein;

“ 3. That the land of said company cannot be condemned or taken by the city of Buffalo for park purposes;

“ 4. That the right or easement across the railroad of said company with the park or approaches can only be given by special legislative authority, which has not been given;

“ 5. The said proposed parkway or approach is not a highway in the town of West Seneca, and has not been laid out as such, and that the said city of Buffalo cannot carry said parkway across said railway under the act relating to highways.”

The court overruled the objections so made, and appointed commissioners to appraise the lands so proposed to be taken.

The statute under which the proceedings were taken provides that upon the confirmation of the report of the commissioners, and the payment of the money as provided for in the order, the said lands shall vest forever in the city of Buffalo, for the uses and purposes in this act mentioned, and the said park commissioners shall be entitled to enter upon, take possession of, and forever use the said lands as an addition to and a part of the public parks, approaches thereto and streets connecting the same, which are now under their jurisdiction.”

Another provision of the same statute is that the lands when so taken “ shall be under the control and management of the said park commissioners.”

It thus appears that under the provisions of the act the city would acquire title to the land, with the right to take possession of and use the same through its park commissioners, and that the same shall be under their management and control. They would'thus have power to eject the appellant and prevent it from running or operating its railroad over the lands in question.

The provisions of the act do not provide for the taking of the lands of the appellant, or that of any other railroad company which is in actual use for the purposes of its incorporation, and it is well settled that lands once taken for and devoted to a public use pursuant to law cannot be again taken under the right of eminent domain and devoted to another public use without special authority from the Legislature. (In the Matter of the Application of the City of Buffalo for the Appointment of Commissioners to Appraise Certain Lands, 68 N. Y. 167 ; The Prospect Park & Coney Island Railroad Company v. Williamson, 91 id. 552; In the Matter of the Application of the New York Central & Hudson River Railroad Company to Acquire Lands, etc., 77 id. 218; In the Matter of the Petition of the New York, Lackawanna & Western Railway Company to Acquire Lands, etc., 99 id. 12; Mills on Em. Dom. chap. 5, §§ 11-16.)

Upon the argument the counsel for the city announced that there was no intention on the part of the city to interfere with the appellant’s right to operate its railroad over the lands in question. But the taking from the railroad of its title to the lands puts it in the power of the city or its park commissioners to interfere with its use, and the intention of the officers of the city may be changed.

There is another statute which provides for the extending of highways over the right of way of railroad companies, but in it there is no provision for the condemning and talcing from the railroad company the fee to the land.

The order appealed from, in so far as it appoints commissioners to appraise the lands of the appellant, should be reversed, with ten dollars costs and disbursements, and the motion to appoint commissioners of appraisal as to appellant’s lands should be denied.

Dwight, P. J., and Lewis, J., concurred.

Order appealed from, in so far as it appoints commissioners to appraise the lands of the appellant, reversed, with ten dollars costs and disbursements.


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    Jonathan L. Slater, Respondent, v. Casper J. Drescher, Appellant.

      Question as to whether a payment was in full or on account — wording of receipt — verdict against the weight of evidence — new trial — omission to request the direction of a verdict.

    On the trial of an action brought to recover the alleged unpaid balance of an account for legal services, where the defendant claimed that a certain sum, less than the original account rendered, which had been paid by him to the plaintiff, had been accepted in full settlement thereof, it appeared that when such payment was made the plaintiff gave back a receipt in which he acknowledged the payment “to apply upon the account as rendered.”

      Held, that inasmuch as this receipt was taken and held by the defendant, it became some evidence in support of the plaintiff’s claim.
    An omission to request the trial court to direct a verdict is not a waiver of the right to move for a new trial upon the ground that the verdict rendered was against the weight of evidence, as distinguished from a motion for a new trial upon the ground that there was no evidence to support the verdict.
    "While the General Term doubtless has power to review the discretion of a trial judge, as exercised upon a motion for a new trial, upon the ground that the verdict was against the weight of evidence, it is not its policy to interfere with such discretion in awarding a new trial, unless it is apparent that there has been an abuse thereof.
    Appeal by tlie defendant, Casper J. Dresoher, from an order of the Supreme Court, entered in the office of the clerk of the county of Erie on the 15th day of April, 1893, setting aside the verdict of a jury rendered at the Erie Circuit as against the weight of evidence, and granting a new trial.

      Thomas Gwry Welch, for the appellant.

      Ilenry W. Brush, for the respondent.
   Haight, J.:

This action was brought to recover the balance due for services rendered by the plaintiff as an attorney and counselor at law for the defendant in two certain actions to foreclose mechanics’ liens, and for divers other legal services and consultations. An account had been rendered by the plaintiff for $280.07 upon which the sum of $125 had been paid. The defendant claimed that when the account was rendered he disputed the amount thereof, and that in view of a settlement of the two actions without trial the plaintiff agreed to accept $187.12 in full, and that the same was to be paid by crediting thereon the amount of the defendant’s bill against him for plumbing, and the balance, $125 in cash, which was paid. His contention is supported by the evidence of himself, his son and bookkeeper, and the verdict was in his favor. The trial court granted a new trial, as we have seen, upon the ground that the verdict was “ against the evidence and the weight of evidence.” The plaintiff asked for a new trial upon the ground that the verdict was against the weight of evidence, and it is upon that ground alone that the order must be supported, if at all, for it cannot be successfully claimed that there was no evidence to support the defendant’s contention. When the money was paid over by the defendant to the plaintiff, he gave a receipt back therefor, and in such receipt he acknowledged the payment of the money to apply upon the account as rendered, etc., and inasmuch as this recent was taken and held by the defendant, it becomes some evidence in support of the plaintiff’s claim. Whether this receipt, when taken by the defendant, was read over by him so that he fully understood its contents does not appear.

It.is quite possible that this court, upon the evidence as it stands, would not have felt justified in ordering a new trial. But the trial court had the advantage of hearing and seeing the witnesses when they delivered their testimony, and is, therefore, better able to judge as to their character and truthfulness, and it is the practice to allow that court considerable latitude in the granting of new trials where the verdict is against what it believes to be the facts.

The. plaintiff did not ask the court to direct a verdict in his favor. It is now claimed that, because of such omission, he admitted that there was evidence sufficient to carry the case to the jury, and that in submitting it to the jury, he took his chances upon recovering a verdict. It is quite possible that such is the rule where the new trial is asked for upon the ground that there was no evidence to support the verdict. In such a case, the ruling is upon a question of law, and may be followed by an exception. (Peake v. Bell, 7 Hun, 454; Mortimer v. Doelger, 11 N. Y. Supp. 583; Keeler v. Dyeing Establishment, 54 N. Y. Super. Ct. 369.)

But this is not the rule where the new trial is asked for upon the ground that the verdict is against the weight of evidence. Such a motion is authorized by the Code, and a verdict cannot be directed by the court upon the ground that the evidence of one party predominates over that of the other. (Allgro v. Duncan,, 24 How. Pr. 210; affd., Algeo v. Duncan, 39 N. Y. 313; McDonald v. Walter, 40 id. 551; Barrett v. The Third Avenue R. R. Co., 45 id. 628-632.)

In Shearman v. Henderson (12 Hun, 170), Talcott, J., criticised Peake v. Bell (supra), and refused to follow it. The criticism is just, provided the motion in that case was made upon the ground that the verdict was against the weight of evidence, or on account of insufficient evidence, which means the same thing. But, as we understand, that decision is placed upon the ground that there was no evidence to sustain the verdict. The trial court, in determining whether a verdict should be set aside as against the weight of evidence, must be controlled largely by the circumstances surrounding-each case. There is no well-defined rule by which the judge must be governed. The motion is addressed to his sound discretion, and he should inquire as to whether or not substantial justice has been done. The General Term, doubtless, has the power to review the discretion of the trial judge, as exercised upon these motions, and is the only court that has such power. It has been its policy, however, not to interfere with such discretion in awarding a new trial unless it was quite apparent that there had been an abuse thereof. (Barrett v. The Third Avenue R. R. Co., supra; Bannon v. McGrane, 45 N. Y. Super. Ct. 517; Langlois v. Hayward, 36 N. Y. St. Repr. 59.)

The order should, therefore, be affirmed, with costs of this appeal to the respondent.

Dwight, P. J., and Lewis, J., concurred.

Order appealed from affirmed, with costs of this appeal to the respondent.


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    Rochester Distilling Company, Respondent, v. Mary M. Devendorf, Appellant.

      Res adjudieata — election of remedies — knowledge of the facts essential to — recovery of possession of goods sold, upon the discovery of fraud in the purchase., after obtaining a judgment for the price.

    The doctrine of res adjudieata does not apply to a judgment recovered for the price of goods sold, so as to prevent the plaintiff’s rescinding the contract of sale on the ground of fraud, where the election so to rescind is exercised immediately upon discovery of the fraud.
    Where there exists an election between inconsistent remedies, the party is confined to the remedy which he first prefers and adopts after knowledge of all the facts.
    The bringing of an action by a vendor against the vendee for the price of goods sold, and the recovery of a judgment, without knowledge of fraud in the purchase, do not constitute an election which will prevent the vendor from rescinding the contract of sale on the ground of fraud, as soon as the fraud is discovered, and thereupon bringing an action to recover possession of the goods.
    The vendor of goods sued the vendee for the price thereof and recovered judgment, and in proceedings supplementary to execution upon the judgment discovered that the vendee was insolvent, the vendor thereupon claimed to dis-affirm the sale, on the ground that at the time thereof the vendee falsely represented that he was solvent and able to pay for the goods, and brought an action of replevin to recover possession of the goods against the vendee’s wife, to whom the latter had transferred the same without present consideration. Subsequently the judgment recovered for the price of the goods was discharged and the proceedings supplementary to execution were dismissed.

      Meld, on appeal from a judgment recovered by the plaintiff in the replevin action, that the prosecution of the action for the price of the goods was not an election of remedies unless such action was prosecuted to judgment with knowledge of tlie fraud; that the jury having found in favor of the plaintiff on that question, the action of replevin, brought immediately on the discovery of the fraud, was maintainable.
    That the satisfaction of the judgment for the price of the goods doubtless raised a presumption of payment, but that presumption was removed by the testimony of the judgment debtor, that the plaintiff’s claim had not been paid;
    That the wife of the vendee, the defendant in the replevin suit, was not protected by her purchase of the goods from her husband, as she paid nothing therefor, the purchase price having been credited upon an antecedent indebtedness.
    Appeal by tlie defendant, Mary M. Devendorf, from a judgment of tbe Supreme Court in favor of tbe plaintiff, entered in tbe office of tbe clerk of Monroe county on tbe 9tb day of February, 1893,, upon a verdict rendered at tbe Monroe Circuit, with notice of an intention to bring up for review on sucb appeal an order made at tbe Monroe Special Term and entered in tbe office of tbe clerk of Monroe county on tbe 16tb day of February, 1893, denying tbe. defendant’s motion for a new trial made upon tbe minutes.

      Walter Welch, for the appellant.

      George D. Reed, for the respondent.

       See postt page 633.

   Haight, J.:

This action is in replevin to recover tbe possession of personal property. Tbe defense is that the goods replevined were sold by tbe plaintiff to Stewart L. Devendorf, tbe husband of tbe defendant; that subsequently tbe plaintiff brought an action against him in tbe Supreme Court and recovered judgment for tbe purchase price thereof ';, that tbe defendant is tbe owner of the goods, and that she purchased them of her husband in good faith for a valuable consideration. Tbe action was prosecuted upon tbe theory that Devendorf, at tbe time be purchased the goods, falsely represented to the plaintiff that he was solvent and able to pay therefor; that as soon as it was discovered that bis representations were false tbe plaintiff elected to disaffirm tbe sale and to pursue the property, and tbe evidence amply sustains tbe verdict in this regard. It is contended, however, that tbe plaintiff cannot disaffirm after judgment; that by bringing tbe action and proceeding therein to judgment it elected its remedy, and tbe judgment becomes a bar to this action. Tbe rule doubtless is that when a matter in controversy between parties has been submitted to a competent judicial tribunal, its decision thereon is final between the parties until it has been reversed, set aside or vacated; and the rule of res adyudicata applies not only to the judgments of courts, but to all judicial determinations, whether made by courts in ordinary actions, or in summary or special proceedings, or by judicial officers in matters properly submitted for their determination. It applies not only to judgments rendered after a litigation of the matter in controversy, but to judgments rendered upon default or confession. (Brown v. Mayor, 66 N. Y. 385-390.)

But this rule does not interfere with the right of a party to rescind a contract for fraud, where the election so to rescind is exercised immediately upon the discovery thereof. (Strong v. Strong, 102 N. Y. 69.)

The plaintiff did bring an action against Stewart L. Devendorf upon the sale, and recovered a judgment for the value of the goods sold. It is claimed, however, that this was done without knowledge of the fraud. The plaintiff did have notice of the transfer of the property by Devendorf to his wife before bringing that action, and the trial court submitted to the jury the question as to whether it had knowledge of the insolvency of Devendorf at the time the purchase was made. The jury found in favor of the plaintiff on this question. The plaintiff claims that its ■ first information was derived through an examination of Devendorf in supplementary proceedings, and that immediately thereafter it elected to disaffirm the sale and demanded of the defendant the return of the goods, and upon her refusal to so do this action was brought; subsequently the judgment was discharged and the proceedings pending supplementary to the exeeution were dismissed.

The rule as stated by us in Terry v. Munger (49 Hun, 560-563), is that, where there exists an election between inconsistent remedies, the party is confined to the remedy which he first prefers and adopts after knowledge of all of the facts. Applying this rule to the case under consideration, the prosecution of the action against Devendorf was not an election of remedies unless such action Avas prosecuted to judgment witli knowledge of the fraud. This precise question appears to have been considered in the case of Kraus v. Thompson (30 Minn. 61), and the conclusion reached in that case seems to be in accordance with the spirit of our own eases. (Terry v. Munger, 121 N. Y. 161; Crossman v. The Universal Rubber Co., 127 id. 34; Morris v. Rexford, 18 id. 552; Moller v. Tuska, 87 id. 166 ; Powers v. Benedict, 88 id. 605 ; Lloyd v. Brewster, 4 Paige Ch. 537.)

The satisfaction of the judgment doubtless raises a presumption of payment, but that presumption is removed by the testimony of Devendorf, in which he' states that the plaintiff’s claim has not been paid.

The defendant purchased the goods from her husband, but paid nothing therefor. The purchase price was credited upon an antecedent indebtedness. She is not, therefore, protected. (Stevens v. Brennan, 79 N. Y. 254 ; Taft v. Chapman, 50 id. 445-448; Weaver v. Barden, 49 id. 286-294.)

The judgment and order should be affirmed.

Dwight, P. J., and Lewis, J., concurred; Bradley, J., not sitting.

The judgment and order appealed -from affirmed.


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    William H. Crandall, Plaintiff, v. Lehigh Valley Railroad Company, Defendant.

      Negligence — collision with a railroad train in driving rcvpidly wpon a street crossing — contributory negligence.

    The plaintiff, in an action brought against a railroad company to recover tile damages resulting from a personal injury received through a collision with a train while lie was driving upon a street crossing, is properly nonsuited at the close of his case, on the ground of contributory negligence, where the evidence of his witnesses tends to show that he was driving very fast, and it appears that if he had been driving slower and exercising his senses by looking and listening he could have seen'the train in time to avoid the injury,
    ^Motion by the plaintiff, William II. Crandall, for a new trial upon a case and exceptions ordered to be heard at the General Term in the first instance, on the direction of a nonsuit at the close of the plaintiff’s testimony at the Cayuga Circuit on the 18th day of October, 1892.

      John D. Teller, for the plaintiff.

      John M. Bravnwrd, for the defendant.
   Haight, J.:

This action was brought to recover the damages which the plaintiff sustained to his person and property by reason of a collision with one of the defendant’s trains upon Orchard street in the city of Auburn.

Orchard street runs east and west. It is crossed by Baker avenue, which runs north and south. The defendant’s road approaches Orchard street from the northeast and crosses the same east of Baker avenue, and then passes diagonally across Baker avenue south of Orchard street.

On the 22d day of August, 1891, about half-past four o’clock in the afternoon, the plaintiff approached Orchard street on Baker avenue, in a light open wagon, driving a horse. The horse was upon a trot, but as the plaintiff approached the railroad crossing in Baker avenue he slowed down to a walk, passed over the crossing and then started the horse into a trot. He passed down to Orchard street, turned to the east into that street, crossed two branch tracks and the Eair Haven main track, and at that instant a train approached upon the depot track. The plaintiff turned his horse to the south to escape the train but was unable to do so. The side of the wagon came in contact with the passing train, causing an injury to plaintiff’s person and damages to his property. At the time of the collision a freight train headed by an engine stood upon one of the branch tracks north of Orchard street, the pilot of the engine reaching to the north line of the street. The evidence on the part of several of plaintiff’s witnesses tends to show that they heard the whistle sounded of the approaching train and also heard its bell ring. It also appears that there was a flagman stationed at the crossing, but the plaintiff testifies that he stood talking with another man with his flag rolled up and did not warn him of the approaching train; that he did not see the approaching train until he had crossed the branch tracks and was within thirty feet of the crossing ; that as soon as he could he turned his horse to avoid a collision. He claims that the train was running at a higher rate of speed than authorized by the ordinances of the city, and that there was negligence on tlie part of the flagman in failing to warn him of the approaching train.

Upon the conclusion of his testimony the trial court ordered a nonsuit, we presume upon the ground that the plaintiff was guilty of contributory negligence, and we shall only consider that question.

It appears from the plaintiff’s testimony that the horse was more than an ordinary fast horse; that from the crossing in Baker avenue he drove on a trot at an ordinary road gait up to the turn into Orchard street, and that just after he turned into Orchard street he heard some one to his left say: “ Eor God’s sake, look out; here comes the trainthat this was just as he saw the train and he then turned his horse to the right.

Ilis witness James Keefe testified that “the horse was going a nice gait; ” that he heard the bell of the approaching train ringing, and as the plaintiff turned into Orchard street to cross the tracks he hollered to him.

Ilis witness Edward Keefe testified that “ He was driving very fast. lie was holding his horse with a stiff rein and coming with good speed. Would say more than a good road gait. Saw him first about fifty feet from Orchard street crossing; I next saw him turn into Orchard street with a short turn,” and upon the cross-examination he testified that his attention was first attracted by the whistle of the train coming around the curve and the ringing of the bell; that “ I heard the whistle and the bell ring a period of time before I saw Crandall. First saw Crandall coming through Baker avenue just before he turned the corner of Orchard street, coming out from, in front of the building ; he was driving at a very fast gait; he was driving at what I should call a good gait; might have been a trifle over three minutes ; between a three and a four-minute gait; ” that one Jerry Murphy was standing between the Weedsport track and the main track and tried to stop the plaintiff; that he shouted to him and held up his hands; that there were several people there who also shouted to him.

Witness Le May testified that “ From the time I saw Crandall until he was struck he was driving on a trot, a pretty good road gait; ” that some one hollered first, and two or three hollered right away afterwards; that the plaintiff had then turned off from Baker avenue and was by the hydrant.

Witness Vrooman testified that he saw “ a man coming towards the railroad track with a horse and buggy, and coming pretty fast; the horse appeared to be on a jump when I saw him, as though trying to run; as though he was frightened.”

The witness McClelland was upon horseback and riding along Baker avenue on a trot. The plaintiff passed him between the railroad crossing on Baker avenue and Orchard street; turned into Orchard street and collided with a passing train as the witness arrived at the intersection of Orchard street with Baker avenue.

It further appears from the map and exhibits introduced in evidence that the approaching train could have been seen by the plaintiff from the time he crossed the railroad tracks in Baker avenue until he reached Orchard street. There may be a doubt as to whether he could see the train whilst turning into Orchard street by reason of the engine standing upon one of the branch tracks, but after reaching the branch tracks the view of the approaching ti-ain was then unobstructed.

The plaintiff’s own evidence is to the effect that his horse was gentle and easily controlled. He was well acquainted with the locality, and had often crossed at the place in question. The evidence of his witnesses tends to show that he was driving very fast, and it appears to us that had he been driving slower, exercising his senses by looking and listening, he could have seen the train in time to have avoided injury, and under the authorities of Powell v. The N. Y. C. & H. R. R. R. Co. (109 N. Y. 613), and Martin v. The N. Y. C. & H. R. R. R. Co. (50 N. Y. St. Repr. 553), the nonsuit should be sustained.

The motion for a new trial should, therefore, be denied, with costs, and judgment ordered for the defendant upon the nonsuit.

Lewis and Bradley, JJ., concurred; Dwight, P. J., not sitting.

Plaintiff’s motion for a new trial denied, and judgment ordered for the defendant on the nonsuit.