text:
    ROBERT E. AUSTIN, et al., Respondents, v. LOUIS HARTWIG, et al., Appellants.

      Evidence.—Posting of letter.—Experts.—Sale of Merchandise by vendors for vendee's benefit—requisites of.

    "Where a witness swears that he addressed a letter to the defendants, and put it in the general post office, and the sole objection made to the reading of said letter in evidence, is that there is no proof of its receipt, its admission is correct, and such ruling cannot be attacked on appeal on the ground that it was not shown that the address was correct nor that the postage was paid.
    Where the question as to which an expert is called to testify is as to the marketable quality of certain merchandise, e. g., sauerkraut, and he testifies that part of his business is to deal in, and buy and sell it, and to examine it to see if it is fit for sale, his testimony as properly admitted though he states therein, of himself, that he is not an expert.
    Where the vendor in an executory contract for the sale and delivery of merchandise, upon the vendee’s refusal to accept the same, elects to sell for the vendee’s benefit, the only requisite to such a sale, as the measure of the rights and injury of the vendee, is good faith, including a proper observance of the usages of the particular'trade.
    The presence of the vendee at the sale, not objecting, is sufficient evidence of its regularity, in an action by the vendor to recover the balance of the contradi price.
    In such an action, the vendee will not be deemed' harmed by the mere fact that the vendor bought in the merchandise, by bidding above others present at the sale.
    Before Sedgwick, Ch. J., Truax and Ingraham, JJ.

      Decided June 2, 1883.
    , Appeal by defendants from judgment entered on verdict of jury, and from order denying motion for new trial made upon the minutes.

      c .The action was brought to recover damages for the refusal of the defendants to accept 200 casks of sauerkraut, under a written agreement, by which they bought from the plaintiffs that number of casks, to be shipped by a November steamer from Hamburg to Bremen, the goods to be of good, merchantable quality.
    It appeared that upon the arrival of the goods, the defendants had accepted under the contract 113 of the casks, but refused to receive the remainder, or 87 casks.
    The defense was that the sauerkraut tendered by the plaintiffs to the defendants was not of a good and merchantable quality on arrival.
    The plaintiffs, after defendants’ refusal to accept the 87 casks, gave notice to the latter that the property would be sold at public auction, at a time and place specified ; and It was, at such time and place, sold at auction. The plaintiffs claimed as damages the contract price for the 113 casks and interest, and the difference between the contract price of the 87 casks and the price at which they were sold at the auction.
    On the trial it was admitted that defendants were liable for the contract price of the 113 casks. As to the 87 casks* the court left to the jury but one question, viz.; whether the 87 casks contained good and merchantable sauerkraut at the time of tender.
    The jury found for plaintiffs. The court granted plaintiff an extra allowance of five per cent, on the whole amount, including the 113 casks received by defendants. Further facts, and the exceptions, appear in the opinion.

      J. A. Englehart, attorney, and A. J. Dittenhoefer, of counsel, for appellants.
    —The refusal to dismiss the complaint, and to charge as requested, was erroneous. The effect of the acceptance of a.part of the casks, at the most, was to entitle plaintiffs to recover only the value of the 113. casks retained by defendants (Avery v. Wilson, 81 N. Y. 341; Shields v. Pettie, 4 lb. 124; Mayor v. Pyne, 3 Bing. 285; Oxendale v. Wetherdell, 9 B. & C. 386; Catlin v. Tobias, 26 N. Y. 217). And it has been doubted whether the contract price of the goods delivered could be recovered in an action on the contract, under the circumstances of this case (Smith v. Brady, 17 N. Y. 173).
    Until plaintiffs proved that the special and requisite sauerkraut arrived, in a November shipment, and were of a good and merchantable quality, and in good condition on arrival, according to their contract, they would not recover (Welsh v. Glossler, 89 N. Y. 540; See v. Bernheimer, 38 Super. Ct. 40; Dike v. Rietlinger, 23 Hun. 41; Shields v. Pettie, supra).

    The court erred in refusing to permit the question as to the fairness of the auction sale to. go to the jury. In the case at bar the evidence all tended to show that the purchase was in fact by the plaintiffs, in the name of their employee, Lochman. For the purposes of such sale the defendants were the principals, and the plaintiffs acted as their agencs, and as such agents, were bound to act with reasonable care and diligence, and in good faith (Dustan v. McAndrew, 44 N. Y. 78; Mason v. Decker, 72 Id. 595). As defendants’ agents they had no right and could not purchase "the property themselves (Bain v. Brown, 56 N. Y. 285; Budenbecker, v. Lowell, 32 Barb. 9; Comstock v. Comstock, 57 Id. 453). And this doctrine applies whether the sale be public, private, or a judicial sale (Moore v. Moore, 5 N. Y. 256). Not only in cases where the strict relation of principal and agent, or trustee and céstui que trust, exists, is this principle applied, but in every case where the duty to perform in reference to the sale is inconsistent with that of purchaser (Torrey v. Bank of Orleans, 9 Paige, 649; affi’d, 7 Hill, 260; Bennett v. Austin, 81 N. Y. 308). If the sale was to' the plaintiffs clearly, it was not a fair and reasonable one, in fact, no sale upon which to base'this action to recover the difference in price, no matter what contrivances were concocted or forms gone through to cover up the nature of the transaction (Caufield v. Minneapolis Agr. and Mech. Asso., 15 Reporter, 260, issued Feb. 28, 1883; Bain v. Brown, supra). It was a question of fact for the jury, on all the circumstances, to say whether the sale was fair (Mintown v. Allen, 3 Sandf. 50).

    The court erred in admitting the evidence of the alleged experts. The opinion .of a witness as to quality or condition of an article is admitted very reluctantly; for it is the province of a jury to draw the conclusions from the facts; and by the evidence of an expert his conclusion or opinion is merely given, which the jury is bound to adopt; and only in a case where it appears that the witness possesses peculiar qualifications to speak on the subject, not possessed by a man of ordinary experience and intelligence, will the opinion of an expert be taken (Harris v. Panama R. R. Co., 3 Bosw. 7; Terrpenning v. Corn Ex. Co., 43 N. Y. 279). In Chamboret v. Cagney (35 Super. Ct. 474), Chief Justice Sedgwick held that when the only evidence to lay foundation for the opinion of an expert was that he had purchased some of the articles, it was improper to admit the evidence; citing Terrpenning v. Corn Exchange Co. (supra).

    The court erred in granting an extra allowance upon the whole verdict. There was no controversy as to the defendants’ liability for the 113 casks; therefore said amount was not “involved” (Code, § 3253). The amount of the recovery or claim is not the measure, but the limit, of the allowance (People v. N. Y. Cent. Co., 30 How. 148). Again, as to these 113 casks, if there was any controversy, it was certainly not difficult or extraordinary. And where there is an offer to allow judgment, no extra allowance can be granted as to the sum covered by the offer (Penfield v. James, 56 N. Y. 659; Astor v. Palache, 49 How. 231; Struthers v. Pearce, 51 N. Y. 365). This error can be reviewed and corrected by this court (People v. N. Y. Cent. Co., supra).

      E. H. Benn, for respondents.
   By the Court.—Sedgwick, Ch. J.

—The counsel for appellant argues that the plaintiffs were not entitled to recover, inasmuch as they did not show on the trial that the goods were of a “November shipment,” stipulated for in the contract. This matter was not within the issues. The answer, after stating the agreement for the sale and delivery of the 200 casks, “November shipment,” avers “that the said sauerkraut tendered by the said plaintiffs to these defendants was not of a good and merchantable quality on arrival; on the contrary, the said sauerkraut was of an inferior, bad, and unmerchantable quality.” The assertions imply that, as a fact, casks of November shipment, to the number named in the contract, had been 'tendered, and that the only objection made by the defendants was that the. article was not of a,merchantable quality. .

This condition of the pleading is also an answer to the position that the court erred in allowing a copy of a letter to be read in evidence which contained a statement that the plaintiff tendered to the defendants a certain part of the shipment. If there were error, it did not injure jhe defendants, as they admitted the tender of the whole. But there was no error. The witness who produced the copy swore that he addressed the letter to the defendants, and put it in the general post-office. The sole objection was that there was no “evidence that the defendants ever received it.” The particular objections now urged, are that the witness had not sworn that the address was correct, and that a postage stamp had been placed on the envelope. If these had been made upon the trial, the plaintiff would have had an opportunity to remedy what was probably an unintentional omission. The objection, as made, was not correct. The plaintiffs were not bound to show by direct evidence that the defendants ever received the letter; and, apart from the specific matters that were not alluded to in the objections, the posting of a letter in the mail is evidence as to the receipt of it by the party to whom it is addressed.

There were objections made to allowing certain witnesses to testify as to the quality of the sauerkraut. The ground stated was, that it was not shown that they were experts as to the quality. The only thing that tends to support the objection is, that some of the witnesses said, as to themselves, they were not experts. This was but an opinion, and the facts they testified to, that part of their business was to deal in sauerkraut, to buy and sell it, to examine it to see if it were fit for sale, showed they were competent to speak of the merchantable quality of the lot in question. The point did not involve the intrinsic quality, but only the marketable quality.

It is further urged as error, that the court refused to submit to the jury the question whether or not a certain auction sale was a fair sale. The action of the court in this respect was correct, because the evidence incontrovertiblv proved that it was a fair sale, after notice of the sale to the defendants, and one of the defendants being present at the sale, making no objection to the proceeding or claim that they should be conducted in any other way than the one used. In Pollen v. Le Roy (30 N. Y. 557), it is said that the only requisite to such a sale, as the measure of the right and injury of the party, is good faith, including the proper observance of the usages of the particular trade.

The only specific objections taken to the fairness of the sale were grounded upon the following facts: The eighty-seven casks were offered for sale in the following manner : Five casks were put up, with the privilege of the buyer taking the whole lot. There were five bids ; and when the five casks were bid in by a Mr. Lockman, he exercised his option of taking the whole. The defendant, who was present, denied in his testimony that there was such an arrangement as the kraut being sold in five lots, with the option of the buyer to take the balance, or that he heard of the announcement of the sale of five casks, with an option to take the whole. On this conflict, if it were one, the preponderance of proof was with the plaintiffs. If however, the defendants were correct, the result is the same. The transaction did not appear to be against the usage of the trade. It did not appear that a sale of smaller lots was necessary to obtain full value. If the whole 87 casks were sold at once, that quantity was less than the purchase of the defendants in this case. The presence of the defendants at the sale, not objecting, is sufficient evidence of the regularity of the sale. .For the plaintiff would have been bound to attend to any reasonable suggestion made by him.

Mr. Lochman, who bought in the goods, was a salesman for the plaintiffs. He, however, was in business for himself, as a retail dealer. At the auction-sale he was not required to pay the price of the goods. He kept them for some time, and then, having an account with the plaintiffs, the price was credited to him, and the plaintiffs sold them for their own account, Lochman making some of these sales. The account in which the price was credited was the account Lochman had with the plaintiffs in respect of purchases for Ms retail business. Lochman testified that he did not receive the goods from plaintiffs’ premises when the auction sale was had. He also testified that he bought for himself. There was nothing to discredit this testimony, and upon it the court was not bound to charge the jury that they could consider, in determining whether the sale was fair, that Lochman was an employee of the plaintiffs, and the other facts, that have been already given, as to his bid and dealing with the property. There was no reason to disbelieve him, and in his testimony the facts alluded to had no tendency to show that in reality the plaintiffs bought the goods through Lochman. And again, the fact of Lochman or the plaintiffs bidding above others was not hurtful to defendants. If they had not bidden, the goods would have been sold to such lower bidder as would take the goods, and there would have been an increase of the damages for which the defendants wrould be responsible.

Upon the evidence and pleading, the only question for the jury was as to the quality .of the contents of the 87 casks, and this was submitted in a correct way.

It is not intended to hold that the defendants, were not liable when, after a tender of the whole, they accepted part as'a, good delivery under the contract, if such was the fact.

When it is perceived that the defendants made a contest as to their liability as to any part of the goods, in their answer, there is no reason for disturbing the action of the court as to the allowance.

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

Truax, J., concurred; Ingraham, J., concurred in the result.


source: Caselaw Access Project

author: By the Court.—Sedgwick, Ch. J.

license: Public Domain

text:
    ARCHER OYSHTERBANK, Appellant, v. WILLIAM GARDNER, et al., Respondents.

      Negligence.—Right to maintain hatchway—duty as to public—implied invitation to enter premises.—Highway.

    Plaintiff, who was nearly blind, turned from the street upon which he was walking, supposing he had reached a certain house to which he intended to go, and went up steps belonging to defendants’ warehouse, through a doorway, and fell into a hatchway close to the door.

      Held, that defendants, having a right to maintain said hatchway with the door, as a well known and ordinary business appliance, the burden of proof was on plaintiff to show negligence; that defendants were bound to use due care to protect from falling into the hatchway persons coming into that part of the building by their invitation, express or implied, but that the existence of such steps and doorway was not sufficient to establish an implied invitation, in the absence of evidence that the appearance of the door was like that used for the entrance of persons ; also, that plaintiff’s defective vision did not affect defendants’ obligation in the premises.

      Wurther held, upon consideration of the facts showing the relation of the hatchway to the street, that the case does not come within the rule permitting a recovery by a person who, proceeding on the highway with ordinary care, inadvertently steps from it into an excavation made by defendants so near the highway that such an occurrence might reasonably be expected.
    Before Sedgwick, Ch. J., and Ingraham, J.

      Decided June 2, 1883.
    Appeal by plaintiff from judgment that his complaint be dismissed.
    The action was for damages from negligence. The plaintiff was a seller of newspapers. He walked along Mott street, intending to go into an eating-house on that street. His sight was imperfect; when he had gone near the eating-house, about nine feet from it, thinking that he had reached, it, he turned and went up steps that, in fact, belonged to defendants’ warehouse. He proceeded through the doorway, and fell into and through a hatchway that was close to the door.
    Further facts appear in the opinion.

      Peet & Fuller, for appellant.
    —Defendants gave a general license and an invitation to the public to enter ; and it was their duty either to keep the entrance in a safe condition or to give warning of danger therein; and if they omitted to perform this duty they are liable for the consequences (3 Bl. Com. 2111; Sweeny v. O. C. & N. R. R. Co., 10 Allen, 369; Elliott v. Pray, 10 Id. 379; Corby v. Hill, 93 E. C. L., 4 C. B. [N. S.] 556; Beck v. Carter, 68 N. Y. 283; Swords v. Edgar, 59 Id. 31; Mayor, &c. v. Williams, 15 Id. 502; Mullaney v. Spence, 15 Abb. Pr. N. S. 323, and cases cited; Bird v. Holbrook, 4 Bing. 628; Barnes v. Ward, 9 C. B. 417; Sher. & R. on Neg. § 508).
    Plaintiff was not guilty of contributory negligence, and therefore defendants owed him this duty as one of the public. Although plaintiff,because of his mistake, might be regarded as a technical trespasser, yet that would not deprive him of his rights nor release defendants from their duty (Brown v. N. Y. C. R. R. Co., 34 N. Y. 410 ; Loomis v. Terry, 17 Wend. 500; Mullaney v. Spence, 15 Abb. Pr. N. S. 323; Barnes v. Ward, 9 C. B. 420; Whirely v. Whiteman, 1 Head Tenn. 610; Lynch v. Nurdin, 41 E. C. L. 342; Stout v. Sioux City & Pacific R. R. Co., 17 Wal. 657; Birge v. Gardner, 19 Conn. 507; Bird v. Holbrook, 4 Bing. 628; Ela v. McConihe, 35 N. H. 275). His trespass was not the controlling act, and therefore of no importance (Harris v. Ubelhoer, 75 N. Y. 177).

      Thornton, Earle & Kiendl, for respondents.
    —So long as the owner of property violates no duty to others, or to the State, he cannot be called in question for the manner in which he uses it; and if in the lawful exercise of his right to so use it, another is injured, he is not liable. That defendants are not liable, see Victory v. Baker, 67 N. Y. 366. Nicholson v. The Erie Railway Co., 41 Id. 525, holds the same doctrine (Also see Hounsell v. Smyth, 97 Eng. Com. Law, 731; Thompson v. Grand Trunk Railway Co., 37 U. C. Q. B. 40; Pierce v. Whitcomb, 48 Vt. 127, 21 Am. R. 120; Severy v. Nickerson, 120 Mass. 306, 21 Am. R. 514; Bush v. Brainard, 1 Cow. 78; Sutton v. N. Y. C. & H. R. R. Co., 66 N. Y. 243; McAlpin v. Powell, 70 Id. 126; Ill. Central R. R. v. Godfrey, 71 Ill. 500, 22 Am. Reps. 112; Gramlich v. Wurst, 86 Penn. St. 74, 27 Am. Reps. 684; Morrissey v. Eastern R. R. Co., 126 Mass. 377, 30 Am. R. 686).
   By the Court.—Sedgwick, Ch. J.

—The burden of proof was upon the plaintiff to show negligence on the part of defendants. They had the legal right to make and maintain the hatchway in their own building. The hatchway was of an ordinary and well known kind of appliance to the management of business. The defendants had a right to suppose that anyone entering their store would expect to find the hatchway in the place where it was. They were bound to use due care to protect from the risk of falling through the hatchway anyone who should come into that part of the building by their invitation, express or implied.

The plaintiff claims that he did enter by implied invitation. To succeed on this point, he must prove the facts from which the invitation may be implied. The only facts he proves are, that there were steps leading to the' door, that there was the door, and the hatchway a short space within the door.

As we have before said, it is generally known that there are doors for the uses of hatchways, and it is as well known that there are other doors for the entrance and exit of persons on business. The mere fact that there are doors leading to hatchways does not give an invitation to enter, unless it is also shown that the appearance of the door and door-way is like that of those generally used for the entrance of persons. In this case there was no proof of what the appearance of the door and door-way was. To assume that it was such as would justify a person believing that he might enter, would be to assume, and not to prove, that the defendants were negligent.

Unhappily, the plaintiff was nearly blind, and for that reason could not, or did not, observe the appearance of the door and door-way. But I apprehend that this blindness did not increase or lessen the duty of the defendants in the matter now in view. The plaintiff had no right to enter the defendants’ house, without the permission or implied invitation of defendants; and defendants had the right to exclude such as they did not, in fact, permit to ehter. Whatever, then, the condition of the plaintiff, he knew he had no right to enter, unless, in fact, there was an appearance of invitation from the defendants; and in making his case on the trial, he did not show any facts that tended to prove an appearance of invitation. The proof was, that the plaintiff did not inadvertently even go up the steps, but entered intentionally, because of a mistaken calculation as to the distance he had gone. This, again, does not affect the measure of the defendants’ obligation to duly protect such persons as were on their premises, in the vicinity of the hatchway, by their consent. So far as the plaintiff’s claim was placed upon his being invited to enter the door-way, the proof failed to show that there was an invitation.

The plaintiff’s claim was also placed, in the argument of the appeal, upon the relation of the hatchway to the street or highway. The foot-step leading to the door-way was eight feet distant from the curb. There were two steps up ; then a flat stone about four feet wide, and then one ocher step to the door-way. The hatchway was close to the door. These facts show that this case is not within the rule that permits a recovery by a person who, proceeding on the highway, with ordinary care, inadvertently steps from it into an excavation made by the defendants so near the highway that the latter might reasonably anticipate such an occurrence. The departure by the plaintiff from the street was intentional, and it was his purpose to enter a house. The defendants were not bound to provide against an intentional use of their premises, which had not been permitted by them, as we have already held.

In view of these considerations, it may be said, as to the plaintiff’s participation in the occurrence, that being a business part of the city, where doors with hatchways having access from the street are frequent, and doors for the entrance of persons are frequent, he had no right to assume that because there was a door, it was of the latter kind.

Judgment affirmed, with costs.

Ingraham, J., concurred.

       See Weinhold v. Acker, ante, p. 182.


text:
    THE SECOND AVENUE R. R. Co., Respondent, v. SOLOMON MEHRBACH, Appellant.

      Corporation—powers of officer—effect of specific authority.—Conversion.

    Where the transaction of certain business for the corporation by one of its officers is the subject of specific authorization by resolution, such resolution furnishes the measure of said officer’s authority in regard thereto, though the matters in question may be comprehended by general powers conferred upon him.
    Accordingly, where certain instruments in the form of bonds, signed and sealed by the proper officers of plaintiff, but not delivered, were entrusted to defendant, the president of the company, under a resolution directing him to sell the same at a certain price, and said defendant loaned them to one E., for the purpose of enabling F. to raise money to pay the company for certain of its bonds for which E. had subscribed and had not paid,—Held, a conversion by defendant, and that the question of his general powers as president was immaterial.
    Before Sedgwick, Ch. J., Truax, and Ingraham, JJ.

      Decided June 2, 1883.
    Appeal from judgment entered on verdict for plaintiff directed by court.

      The facts appear in the opinion.

      Smith, Allan & Smith, for appellant.

      Hutchins & Platt, and Austin G. Fox, for respondent.
    —The defendant Mehrbach, in allowing the defendant Fellows to obtain possession of and carry away the seven bonds in question, was guilty of a conversion of the bonds.
    Trover lies by the maker of a promissory note for its conversion (Decker v. Mathews, 12 N. Y. 313, 319). This is so whether the defendant has transferred the note or not (Thayer v. Manley, 73 N. Y. 305, 308). The allegation that the defendants converted and disposed of the bonds to their own use is sufficient (Decker v. Mathews; Thayer v. Manley, supra). And it is not necessary to prove that the defendants actually appropriated the proceeds to his own use, or derived any benefit from the use of the bonds (Reynolds v. Shuler, 5 Cow. 323; Connah v. Hale, 23 Wend. 462; Murray v. Burling, 10 Johns. 172; Bristol v. Burt, 7 Id. 254). The conversion was complete at the moment of the unlawful delivery of the bonds to the defendant Fellows, by the consent of the defendant Mehrbach. The action is sustained by showing possession in the plaintiff and the wrongful delivery by the direction or assent of the defendant Mehrbach (Cases cited supra; Ely v. Ehle, 3 N. Y. 509). Nor is a wrongful intent an essential element of the conversion (Boyce v. Brockway, 31 N. Y. 490, 493; Poucher v. Blanchard, 86 Id. 256). The delivery of the seven bonds to the defendant Fellows was unauthorized. But, whatever might have been implied frq>m the alleged custom of the president to pledge the company’s bonds at his discretion, in order to raise money for the company, still, in regard to the bonds in question, he was controlled by an express resolution of the board of directors to sell the bonds, and a violation of that instruction was a conversion (Laverty v. Snethen, 68 N. Y. 522).

   By the Court.—Sedgwick, Ch. J.

—The action was for damages for the conversion of what were called in the complaint, bonds. The instruments, seven in number, were in the form of bonds, signed and sealed by the proper officers of the plaintiff, but had not been delivered. While they were in this condition, the defendant, who was president of the plaintiff, loaned them to one Fellows. Fellows had subscribed for twenty-five of the same kind of bonds, had received them, but had not paid the price of them in full. The purpose of the loan was to enable Fellows to raise money with which to pay for the twenty-five bonds in full. This was conversion by the defendant. It was an appropriation by the defendant to himself of the property of the plaintiff.

It was claimed on the trial that the proof showed that the loan of the seven bonds to Fellows was authorized by the plaintiff in general powers that had been conferred by them on defendant, and also that this special transaction had been ratified by the plaintiff. There was no testimony tending to show any ratification. As to the claim of authority under general power, it is not necessary to ascertain what general powers the defendant had, for his powers as to bonds like those in question were the subject of specific authorization by resolution. That resolution conferred on him authority to sell at a certain price. There was no proof that this resolution had become in any way inoperative or unobserved by tacit consent. The loaning to Fellows was not a sale. It was not a transaction, the object of which was a return of money for the loan. It was solely for the benefit of Fellows, to enable him to pay the subscription price of the twenty-five bonds.

There was no error in the proceedings on the trial, and the court was right in directing a verdict for plaintiff.

Judgment affirmed, with costs.

Truax and Ingraham, JJ., concurred.


text:
    ALFRED A. SPARKS, Appellant, v. GEORGE W. BASSETT, Respondent.

      Landlord and tenant—covenant to repair—damages for breach.

    Where the landlord covenants with the tenant to make certain repairs upon the demised premises on or before a specified date, the damages to the-tenant for failure to fulfil such promise are to be assessed as of the time of the breach, viz., the date specified for making said repairs; and where the tenant has suffered no’ special injury, they areTimited to such an amount as would compensate him for himself making such repairs, notwithstanding that he may have been obliged to pay a third person damages caused after said date by failure to make such repairs.
    Before Sedgwick, Ch. J., Truax and Ingraham, JJ.

      Decided June 2, 1883.
    Appeal by plaintiff from an order granting motion for new trial, made by defendant after verdict for plaintiff.
    The action was for damages for a breach of covenant to repair. The plaintiff had a verdict. The defendant moved, for a new trial upon the minutes of the judge. The motion was granted, and the plaintiff appeals from the order entered on this motion.
    The facts appear in the opinion.

      Harrison & Langdon and Abner C. Thomas, for appellant.
    —In the case at bar the testimony uncontradictedly shows that the tenant had no notice or knowledge whatever of the condition of the overflow pipe till the damage had occurred. In 'all cases, however, where -the damage has resulted from a reliance by the tenant upon the performance of an agreement to repair by the landlord, the entire amount of damage has been awarded (Walker v. Swayze, 3 Abb. Pr. 136; Beach v. Crane, 2 N. Y. 86; Myers v. Burns, 35 Id. 269; Hexter v. Knox, 63 Id. 561, reversing S. C., 7 J. & S. 109; Middlekauff v. Smith, 1 Md. 343). There is a class of cases in principle very similar to the one at bar, where a municipal corporation has been compelled to pay damages caused by a breach of duty due to it from some individual or corporation. In such a case the real delinquent is held liable for all of the damage, including the costs and expenses of the litigation (City of Brooklyn v. Brooklyn City R. R. Co., 47 N. Y. 475, and cases cited; City of Troy v. Troy & L. R. R., 49 Id. 657; City of Rochester v. Montgomery, 72 Id. 65, affi’g 9 Hun, 394).

      James K. Hill, Wing & Shoudy, for respondent.
    —The covenant was broken, if at all, on January 1,1881. The only damages which the plaintiff was entitled to recover for breach of the covenant, was what it would have cost him to have put the plumbing in the condition that the contract required. The injury which was received by the tenant on the ground floor by reason of the negligent use of the plumbing by the plaintiff was too remote. Ho such measure of damages was within the purview of the contract (Dorwin v. Potter, 5 Den. 306; approved in city of Brooklyn v. Brooklyn City R. R. Co., 47 N. Y. 482, 483; also, in Flynn v. Hatton, 43 How. 333. See, also, Benkard v. Babcock, 2 Rob. 175, 181, 182; Arnold v. Clark, 45 Super. Ct. 256; Cook v. Soule, 56 N. Y. 423; Meyers v. Burns, 35 Id. 273; Walker v. Swayzee, 3 Abb. Pr. 138; McAdam, Landl. & T. 449, 2d ed.). In Hargous v. Albon (5 Hill, 474), Judge Cowen, illustrating this subject, says : “Dr. Franklin’s case of the defective horse-shoe nail, which resulted in the loss of the shoe, and thence in the loss of the horse, is an excellent lesson ¿n private economy, but in an action against the farrier it would not have done to have looked beyond the loss of the shoe. To have charged him with accidental consequences would have worked his ruin” (See, also, Sedgw. Dam. 79, 4th ed.).
   By the Court.—Sedgwick, Ch. J.

—The defendant, in his agreement of letting to plaintiff, covenanted to make “ the following repair in said premises before the 1st January, 1881, on the first floor; to do the work in the water-closet and wash-stand, and put the plumbing in perfect condition.” The plaintiff gave evidence to show that the defendant did not, at any time, make the repairs ; that in August of 1881, the wash-basin, by reason of some defect of plumbing, was overflowed, and the water ran down into a lower floor, occupied by another person, arid damaged some of his goods ; that the damages were claimed from the plaintiff, and that he was obliged to pay $75 to satisfy the the claim. On the trial, the plaintiff recovered the $75 so paid, and also $75 as the amount paid to his lawyer for services in settling the claim for damages.

It was agreed substantially, on the argument, that there should not have been any recovery for the amount paid by the plaintiff to his counsel for his services.

As to the damages which came from plaintiff’s payment of a claim against him, I am satisfied that the judge below, in granting a new trial, took the correct view. Such damages were not within the contemplation of the parties. The covenant was not meant to be an indemnification of the plaintiff against the consequences of an overflow during the whole of the term. The damages were to be assessed as of the time of the breach, in January 1, 1881, and would consist of compensation to the plaintiff for himself making the repairs. The rule in Dorwin v. Potter (5 Den. 306) is applicable to such a case, as is stated in thé opinion of the court in City of Brooklyn v. Brooklyn City R. R. Co. (47 N. Y. 475).

An extract from the last cited case gives light to another view of the facts. It is, “and the covenantee, in the covenant to keep in repair is within the rule in Hamilton v. McPherson (28 N. Y. 72) and, being in the care and use of the property, bound himself to take measures that the disaster of his covenantor shall be as small as may be.” This intimates that it was incumbent upon the plaintiff to put the plumbing in order himself, especially as to damages to a third person that come from his own negligence.

The order granting a new trial should be affirmed, with costs.

Truax and Ingraham, JJ., concurred.


text:
    BENJAMIN LAWRENCE, et al., Appellants, v. CHARLES FOXWELL, Respondent.

      Pleading.—Action to enforce liability fraudulently contracted—Code, § 549* sub. 4.—Dismissal of complaint.

    It is not the intention of the Code to permit judgment for fraud in an action under subdivision 4 of section 549, upon the general allegation that there was fraud; and where the complaint, after duly setting forth a cause of action on contract, states “that the defendant was guilty of a fraud in contracting and incurring liability, in that,” etc., and there are no averments of facts which constitute fraud, such complaint should be dismissed on the trial, upon the ground that it does not state facts sufficient to constitute a cause of action.
    A complaint which states that at the time of the purchase of the goods by defendant, and to induce plaintiSs to sell them to him on credit, he stated that he had sold the same to another, etc.; that, relying upon this, plaintiffs made the sale; and that said goods had not been so sold by defendant, etc., does not state a good cause of action for fraud, there being no allegation that the representations were fraudulently made, or witli knowledge that they were not true, or with intent to defraud.
    Before Sedgwick, Ch. J., Truax, and O’Gorman, JJ.

      Decided June 2, 1883.
    Appeal by plaintiff from judgment entered upon direction of judge at trial term that the complaint be dismissed* upon the ground that it did not state facts sufficient to constitute a cause of action. The complaint, after duly stating; a cause of action on contract, proceeded: “ That the defendant was guilty of a fraud in contracting and incurring the liability, in that, on or about the 26th. day of October, 1881* he called upon the plaintiffs, at their place of business in the city of New York, and applied to the plaintiffs to purchase from them twenty-five cases of paper; and, to induce said, plaintiffs to sell him said goods on credit, stated to said plaintiffs that' he had sold the said paper, and that he would pay for the same early in November, but that the goods should be billed to him on thirty days’ credit, to enable him to collect from the party to whom he had sold the same, and that the said goods should be shipped by the Hew England Transportation Company to Boston, addressed to George C. Goodwin & Co. ... “ That plaintiffs relied solely upon the representations of defendant that he had sold the said paper to George C. Goodwin & Co., and shipped the goods as requested by the defendant, and billed the same at the agreed price of nine dollars per case, payable in thirty days. . . . That said goods were not in fact sold to George C. Goodwin & Co., or any other person or persons at the time said defendant so represented and stated, but that subsequently the said defendant sold thirteen of the said twenty-five cases to George C. Goodwin & Co., at eight dollars per case, and received the money therefor on or about the 28th October, 1881.”

      Ellis S. Yates, for appellant.
    —The complaint is sufficient, under section 549, subdivision 4, Code of Civil Procedure. It is alleged in the complaint, as required by the Code, “that the defendant was guilty of a fraud in contracting and incurring the liability.” The Code substituted for the averments requisite under the common law practice, in complaints of fraudulent representations under this section, a mere bare allegation of fraud. The section refers not to the sufficiency of the pleading, but solely to the maintaining of the order of arrest. The remedy, if the complaint had not stated that the defendant was guilty of a fraud in contracting or incurring the liability, was not the dismissal of the complaint, but simply the vacating the order of arrest. The statute says, where an allegation of fraud is made, unless he proves the fraud, the plaintiff cannot recover ; but here, it is contended, not that the fraud was not proved, but that no allegation of fraud was made: if this were true, then the order of arrest must fall; that is the only remedy and the only penalty. The whole intent and purview of adding subdivision 4 to sec. 549, by the amendment of 1879, as stated in Throop’s notes to the Code, page 287, was to have the allegation of fraud made in the complaint instead of in an affidavit, and tried as an issue in the action by the jury instead of by the court, and thus to change the method of enforcing a remedy, not to take it away (Hecht v. Levy, 20 Hun, 54). The cause of action for fraud was sufficiently pleaded.

      H. F. Averill and W. T. B. Milliken, for respondent.
    —The action is in the nature of an action on the case, with the contract as only one of its facts, and the sufficiency of its pleading is to be determined by demurrer or motion (Rowe v. Patterson, 48 Super. Ct. 249; Hecht v. Levy, 20 Hun, 54). Subdivision 4 of section 549 of the Code requires the plaintiff to bring his action on the fraud, if he wishes an order of arrest, and procuring an order of arrest concludes him as to the nature of the action. In order to sustain his action he must allege and prove the fraud as well as the .contract. Section 549 defines causes of arrest which are identical with the cause of action, and section 550 states the causes of arrest which are extrinsic to the cause of action, and section 557, which prescribes what proof shall be necessary to procure order of arrest, provides that in cases under section 549 it need' only be shown that a cause of action exists as prescribed in that section; while for arrest under 550 proof must be furnished not only of cause of action but also facts extrinsic to cause of action as cause of arrest, and it will not be pretended that proof of the contract merely would support an order of arrest. There is no separation between the cause of action and the cause of arrest. If there had been, the case could easily have been so divided that the facts constituting the cause of action, and those constituting the cause of arrest, might be respectively passed upon by the jury, and so have saved another trial upon the contract alone.
    The complaint should therefore allege facts sufficient to constitute a cause of action for deceit, or, in this case, for fraud in incurring the liability sought to be enforced (Rowe v. Patterson, 48 Super. Ct. 249).
    This the complaint fails to do. The allegation of the complaint is “ that the defendant was guilty of a fraud in contracting and incurring the liability,” in that, etc., limiting the general statement—so that it is equivalent not even to a positive general statement, but only to the averment that the facts alleged constitute a fraud, etc.
   By the Court.—Sedgwick, Ch. J.

—The complaint began by sufficiently stating a cause of action for goods sold ■ and delivered. It then proceeded, that the defendant was guilty of a fraud in contracting and incurring the liability, in that, in the bargaining for the sale, he did and said certain things. It was not alleged that ány of his acts were fraudulently done. It alleged that certain things he represented to exist did not exist, but it was not alleged that any of his representations were fraudulently made, or with knowledge that they were not true, or with intent to defraud the plaintiff. The answer admitted the sale for the price alleged in the complaint, but denied all the other allegations of the complaint.

On the trial, before testimony given, the defendant moved to dismiss the complaint; and the ground was, as I understand, that although the complaint averred that the defendant was guilty of fraud in contracting the indebtedness, no averments were made that facts existed which constituted the fraud, and that in such a case the plaintiff was not entitled to recover upon the sufficient allegations as to the' sale and delivery.

I do not think that it is necessary to argue that it was not the intention of the Code to permit judgment in such a case for fraud, upon the general allegation that there was fraud. And it was clear that the complaint did not make sufficient averments as to fraud.

The question that remains is, should the judge have refused to dismiss the complaint, or should he have retained it and given judgment for the breach of contract %

It is evident that the plaintiff did not wish a mere money judgment. The admissions of the answer sufficed to give him that; but when he brought the case on for trial, his demand was not only for a judgment of indebtedness on the part of the defendant, but of guilty of the fraud.

The claim is not one consisting of two separable parts, contract and fraud; it is an entire claim, comprehending both. If fraud be sufficiently alleged, but not proven, the plaintiff cannot fall back upon the cause of action on contract ; he must go to another action. Where is the substantial difference between the case of untruly stating facts, the non-proving of a part of which prevents judgment for plaintiff, and the case of truly stating all that can be proved, but which, as matter of law, does not constitute fraud % If, in a case like this, a judge should hold that there were sufficient allegations of fraud, there might be judgment for plaintiff under subdivision 4 of section 549 which would entitle the plaintiff to issue execution against defendant’s person under section 1487. If this were held to be error, could the plaintiff retain the judgment on the ground that it was sustained by sufficient allegation of indebtedness that had been admitted by answer % It is right to hold the party who begins an action on the position that it is not one where he can obtain judgment only on contract, to that position, until it is ended, although, in one sense, the allegations as to the contract are sufficient; nevertheless, until, by a trial, to the expense and trouble of which he put the defendant, he was forced to abandon the claim so far as the fraud was concerned, he never asserted that the action was on contract pure and simple.

I therefore think that the judgment should be affirmed, with costs.

Truax and O’Gorman, JJ., concurred.


text:
    BENJAMIN LAWRENCE, et al., Respondents, v. CHARLES FOXWELL, Appellant.

      Order of arrest under sub. 4, § 549, Code Oiv. Pro.—when must be vacated

    In case the affidavit on which an order of arrest is granted shows that the action is on contract where the defendant lias been guilty of a fraud in contracting (Code, § 549, sub. 4), and it does not appear therein that plaintiff has waived the contract, and elected to proceed for the fraud alone, in the absence of any allegation therein, showing that the complaint alleged that the defendant was guilty of a fraud in incurring the liability, no complaint having been presented upon the motion, the order of arrest must be vacated.
    Before Sedgwick, Ch. J., O’Gorman and Ingraham, JJ.

      Decided June 2, 1883.
    Appeal by defendant from order denying defendant’s motion to vacate order of arrest.
    The facts appear in the opinion.

      H. F. Averill and W. T. B. Millikin, for appellant.

      Ellis S. Yates, for respondent.
   By the Court.—Sedgwick, Ch. J.

—The motion below was made upon the papers on which the order of arrest was granted. I am of opinion that the motion should have been granted.

The affidavit on which the order of arrest was made averred that a summons had been issued for service ; that a sufficient cause of action existed, “ arising out of the following facts that defendant bought certain goods for a certain price, and made certain statements in the course of the purchase ; “and that by reason of the foregoing facts this deponent alleges that the defendant has been guilty of a fraud in contracting the debt hereinbefore set forth ; and that at the time he purchased said merchandize from deponent he did not intend to pay for the same, but intended to, and did, convert the same into money for his own use.” The inference from these allegations is, that the action was upon contract, where the defendant had been guilty of fraud in contracting. There was in no part of the affidavit any allegation that the plaintiff elected to rescind the contract, and bring the action solely Tor damages from the fraud.

The right to the order depended, then, upon its being valid under the terms of subdivision 4 of section 549 of the Code of Civil Procedure. That subdivision gives as a condition of a right to arrest in an action on contract that it is alleged in the complaint that the defendant was guilty of a fraud in contracting the liability.” There was no complaint presented with the motion for the arrest, nor did the affidavit aver what the allegations of the complaint were. The provision of section 558, that implies that in certain cases the complaint need not accompany the order of arrest, does not apply to such a case as this, because the section is made subject to the provisions of section 557, which clearly directs that the affidavit must show that the conditions of subdivision 4 of section 549 exist.

The order appealed from should be reversed, with $10 costs, and an order entered vacating the order of arrest, without costs.

O’Gorman and Ingraham, JJ., concurred.


text:
    JOHN H. PLATT, as Assignee, &c., Respondent, v. EDWARD R. JONES, Appellant.

      Hew York Stock Exchange—right of membership—rights of assignee in bankruptcy therein.—Eguity.—Injunction.

    Defendant held, in his own name, as part of the assets of a firm of which he was a member, a seat in the New York Stock Exchange, a voluntary unincorporated association, which seat was by the by-laws unassignable without the consent of two-thirds of the committee on admissions of said association, it being also provided therein that all unpaid dues of membership and claims of other members'should be a lien on said seat. [ Said firm made an assignment in bankruptcy of all its assets, and the defendant continued thereafter to hold and use said seat for his own bene(i fit. The assignee, after demanding the said seat of defendant, which was refused, brought this action to enjoin him from using or interfering with it, and to compel defendant to do all such acts, and execute all such instruments, as mightabe specified by plaintiff, to the. end that said, seat might be disposed of, and the proceeds applied to the trust, etc. The association was not made a party to the action, and it did not appear that plaintiff had made any contract of sale with a third party, and that defendant or the Stock Exchange had refused to perform any acts necessary to transfer or confirm the title to said seat ; nor was it claimed that, except as above, defendant had been guilty of any interference with plaintiff’s rights.

      Meld, that no equitable cause of action was shown; that defendant had done nothing which impaired the property rights of plaintiff or prevented; him from disposing of whatever rights he had; that no one could become a transferee of said seat under these existing circumstances; and the Stock Exchange not being a party, it will not be assumed that it will refuse its assent to a transfer for the benefit of the assigned estate in a proper case.

      Further held, that the right of membership in said association was incorporeal, and the fact that defendant continued to use it did not affect the' value of the property claimed by plaintiff, or prevent him from receiving any profits to which he was entitled ; also, that there was no possibility that the non-payment of dues or any other lien caused by defendant, could affect plaintiff’s rights.
    Before Sedgwick, Ch. J., Truax and Ingraham, JJ.

      Decided, June 2, 1883.
    Appeal by defendant from judgment entered on decision of judge.
    The facts appear in the opinion.

      Man & Parsons, for appellant.

      Chambers, Boughton & Prentiss, for respondent.
    —-By the assignment (§ 5044, U. S. R. S.) all the property of the defendant vested in plaintiff (Comegys v. Vasse, 1 Pet. 193; French v. Carr, 7 Ill. 664; Kinsee v. Winston, 4 Br. R. 21). Defendant’s membership in the Stock Exchange and right to the “ proceeds ” thereof was property within the above section and decisions, and passed by tho assignment to plaintiff (Re Ketcham, 1 Fed. Rep. 840; U. S. Cir. Ct.; Hyde v. Woods, 4 Otto, 523; Gallagher v. Lane, 19 Bankr. R. 224; Grocers’ Bank v. Murphy, 60 How. 426; Ritterband v. Baggett, 4 Abb. N. C. 67; Powell
      v. Waldron, 89 N. Y. 331-2; Sewall v. Ives, 61 How. 54). It is not merely a “ personal privilege,” but the constitution itself makes the membership and its “proceeds” property as regards the Exchange, and as to its members, and also as to the legal representatives of deceased members, and to voluntary transferees of members,—why, then, is it not also property as to creditors of members ?
    The mere fact that the property in the seat and its proceeds is vested in the plaintiff, and that defendant is using it without plaintiff’s consent, is sufficient ground for the injunction. Moreover, defendant may incumber it with claims on contracts with other members of the Exchange, or with dues to the Exchange itself; also, plaintiff must secure an actual vacancy in the Exchange before he or any transferee from him can apply for election.
    The assignment in bankruptcy not having been sufficient under the rules of the Stock Exchange, the defendant should be required to make such further act of assignment as is required by those rules to put the property in plaintiff’s possession. As it is impossible for plaintiff to predetermine who will be accepted by the Exchange as transferee of the seat, or what form of transfer will be required, the decree is correct in its present general form (Re Ketchum, supra; Grocers’ Bank v. Murphy, supra; Ritterband v. Baggett, supra).

    The decree herein merely disposes of defendant’s seat or membership as defendant himself should voluntarily have disposed of it, by declaring it vacant in law and making it vacant in fact; thus putting plaintiff in position to request the Stock Exchange to fill the vacancy and dispose of the seat as provided by their own constitution when a vacancy occurs.
   By the Court.—Sedgwick, Ch. J.

—It is unnecessary to state the pleadings. The court found, as facts, that the plaintiff had been made assignee in bankruptcy of a firm composed of the defendant and one Davidson; that part of the assets of the firm, when they became bankrupt, “was a seat or membership in the association, in the city of New York, known as the New York Stock Exchange,” which had been purchased in the name of the defendant; that at the time of such purchase the defendant “ became a member of said association, and entitled to the rights of membership, and sat in said association; which seat and rights of membership defendant took, and has ever since continued to hold, in his individual name;” that said seat or membership is of the value of $30,000 ; that plaintiff has demanded of defendant said seat or membership, and all right and title therein ; but said defendant refused, and still neglects and refuses, to comply with said demand, but has at all times since the filing of the petition in bankruptcy held, possessed and enjoyed, and still continues to hold, possess, and enjoy, the same ; that by the constitution and by-laws of said Stock Exchange all dues of a member thereof to the said Exchange are a prior lien upon the seat or membership of such member, and the proceeds thereof ; and such proceeds are also made liable for satisfying the claims of the other members of said Exchange before the balance can be paid to the legal representatives of such member; that by reason of such holding and possession by defendant, there is danger of his incumbering said seat or membership, under the constitution and by-laws of said Exchange, as aforesaid, or that claims for liens or incumbrances thereupon may arise.

The court further found that in and by the constitution and by-laws aforesaid, said seat or membership is transferable, and the defendant, as such member, has the right to transfer his membership under the provisions of said constitution and by-laws. The court did not find what were the conditions of the transferability referred to. The articles in evidence show that a limitation of the' transferability was, that the transferee must be approved by two-thirds of the committee on admissions.

The findings of law were, that by the assignment to the plaintiff as assignee in bankruptcy all the property, right, title and interest of said defendant and his firm “in and to, said seat or membership in the New York Stock Exchange, and the proceeds thereof, passed to, and became and now are, vested in the plaintiff as such assignee,’’ and that the same are property ; that any and all use and occupancy and enjoyment of said seat or membership, and the rights and privileges thereunder, by defendant, are in contravention of plaintiff’s rights as such assignee ; that defendant should be directed and required to do every such act, matter and thing, as shall be lawful and necessary on his part to put plaintiff in such possession and control of said seat or membership, and the rights and privileges thereunder, that the same may be disposed of, and the proceeds thereof realized by, for, or on account of, said plaintiff;. that plaintiff is entitled to judgment that all the right and interest of the defendant in and to the. said seat or membership, and the proceeds thereof, are vested in plaintiff as assignee ; that defendant be enjoined from using, occupying or enjoying, or in any manner interfering with, said seat or membership, or the rights and privileges thereunder, or the proceeds thereof; and that said defendant, upon the request of plaintiff, forthwith execute such instrument or instruments, and do and perform such actor acts of surrender, assignment or transfer, to plaintiff, or to such person as shall be specified by plaintiff, as shall be necessary to be done, performed or executed on the part of the defendant, to the end that said seat or membership may be disposed of, and the proceeds thereof realized by, for, or on account of, said plaintiff, as assignee as aforesaid.

The association was not made a party defendant. Necessarily, it must participate in any proceeding which would transfer the membership to a third party. No one, under existing circumstances, could become a transferee of the right of membership, under the by-laws ; and the testimony does not show that the defendant could do anything to alter these circumstances. For instance, that a contract had been made by plaintiff with a third party conditionally, and the defendant refused to nominate him to the Stock Exchange. The defendant had done no act which impaired the property rights of plaintiff. He had done nothing, and probably could do nothing, which could interfere with the plaintiff selling such right as the plaintiff has. Therefore no equitable cause of action was shown. To make such a cause of action, it is necessary to show that the plaintiff is possessed of some right which the defendant interferes with, or that the defendant is bound in equity to do something to perfect plaintiffs legal title or to enable him to take possession of his right.

In advance of the actual or threatened interference, or in advance of the plaintiff’s being able to enjoy the right, the defendant should not be called upon in a litigation to take part in what is but an argument as to what will be the rights of a plaintiff in a contingency that may never occur. The general rule is, that equity does not entertain questions that do not pertain to definite and existing obligations of defendants ; or, in a common form, that the plaintiff must have a definite and complete right against the defendant (O’Rielly v. Mutual Life Ins. Co., 2 Abb. N. S. 170; Haynes v. American Popular Life Ins. Co., 36 Super. Ct. 214, which applies this principle as to part of a relief demanded, while it follows Cohen v. N. Y. Mutual Life Ins. Co., 50 N. Y. 624, which recognizes the general principle).

It would occupy too much time to state the difference in the views of the plaintiff and of the defendant, as to the nature of the right acquired by the plaintiff, under the assignment in bankruptcy. In some respects, it would appear that the defendant was certainly right. For instance, he denies that privileges personal to him as a member have ever passed to the assignee. The assignee can never be a member. But, whatever view the defendant has taken or announced, it can never interiore with the. .enjoyment of plaintiff of the right he has.

It is not a benefit to the plaintiff that he should have judgment, that in the future the defendant must execute such instrument as the plaintiff shall specify, to the end that the membership may be sold, and the proceeds thereof realized. Such may be his duty hereafter; if it be, he will be held to its performance when the question of performance arises. Until then, the defendant should not be called to litigate as to present .views in their relation to future emergencies. He had a right to take all the time to consider what his views should be. His views being erroneous now, can hardly give a cause of action.

Ñor was the plaintiff injured by what the defendant actually did, so far as that is embodied in the findings “ that the defendant took, and has ever since continued to hold in his individual name, the said rights of membership and seat in said association,” and “ that any and all use, occupancy and enjoyment of said seat or membership, and the rights and privileges thereunder, by defendant, are in contravention of plaintiff’s rights as such assignee.”

The term “seat” implies more of corporeal property than the facts justify. The word is not used in the constitution or by-laws of the Stock Exchange. The right of a membership is incorporeal. The defendant has gone into the Exchange, and used it for buying and selling. There are many other members. The fact that he has thus acted does not, from any inference on the testimony, affect the title or value of the property claimed by the plaintiff. He makes one more broker than there should be, according to the plaintiff’s interpretation of the constitution; but he collects no fees nor enjoys anything which would go to the plaintiff. It is probably true that he is allowed to do what he does on the assumption and assertion, by himself and the officers of the Stock Exchange, that the assignment in bankruptcy did not so entirely divest him of the original rights of membership that upon his discharge in bankruptcy he had not lawful right to use his former privileges. If he were to continue to act as a broker after the Stock Exchange had permitted the plaintiff to transfer to a third person, the plaintiff • would enjoy all the right he claims. The Exchange not being a party, it is not to be assumed that they will not do what by law they are required to do. Their present assertion or assumption, as to the defendant’s right, or want of right, does not show that in the future they will not, upon proper request, perform every duty to the plaintiff.

There is not any possibility that the non-payment of dues by the defendant will disturb plaintiff’s right. No lien can charge the plaintiff’s right which the plaintiff himself has not given or caused.

I am of opinion that, generally, the judgment is a declaration of defendant’s obligation as to contingencies which have not arisen. It is, not intended to intimate that the plaintiff may not have a cause of action in the future against the defendant and the Stock Exchange, if certain things are done.

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

Truax and Ingraham, JJ., concurred.


author: O’Gorman, J. Ingraham, J. Sedgwick, Ch. J.—[Dissenting.]

text:
    CHRISTOPHER COURTNEY, Appellant, v. JOHN B. CORNELL, et al., Respondents.

      Negligence.—Defective rigging of derrick.-—Besponsibility of master to servant.— Negligence offellow-worhnan

    The plaintiff, while engaged as a servant of defendants, in operating a derrick used "by them in the construction of a certain building, received severe injuries, resulting from the slipping of the derrick from its place while in use. The accident was caused by the stretching of the guy ropes, which held the derrick in place, from rain which fell the night before the morning of the accident, it having been in use for some time— and there was evidence that the accident might have been prevented by ]. proper precautions. It was entrusted to defendants’ foreman to construct and rig the derrick, and on the morning in question he superintended the starting of said derrick, immediately prior to the happening of the accident. The complaint was dismissed at the trial.

      Held, error; that it was the continuous duty of defendants ,to furnish to their employees a properly rigged derrick,, and to maintain it in sucli condition; and that the negligence of the foreman in that regard was defendants’ negligence, and not that of a fellow-servant of plaintiff.
    Sedgwick, Oh. J., dissenting, held, that in entering upon his employment, plaintiff accepted the risk involved in changing the derrick from time to time, and could not rely upon defendants’ undertaking to arrange it upon each occasion of its use.
    Before Sedgwick, Ch. J., O’Gorman and Ingraham, JJ.

      Decided June 2, 1883.
    Appeal from a judgment dismissing the plaintiff’s complaint, and from an order denying a motion for a new trial on the judge’s minutes.
    The facts appear in the opinion.

      C. D. Rust, for appellant.

      Tallmadge W. Foster, for respondents.
   O’Gorman, J.

—This is an action to recover damages for injuries claimed to have been inflicted on plaintiff by reason of the negligence, incompetence and unskillfulness of the defendants, in failing to properly place, fasten and guard a derrick used by defendants in raising an iron column to-the fourth floor of a building in process of erection at the corner of Franklin street and Broadway, on October 25,1881. The defense is, that the accident was either unavoidable, or, if the result of negligence, that it was the negligence of a co-servant of the plaintiff, and which is one of the ordinary risks which plaintiff assumed. The accident occurred between seven and eight in the morning. The derrick was on the fourth floor. Marsh was the defendants’ foreman. He had the power to employ and dismiss workmen for the defendants, and the constructing and rigging of the derrick was under the charge and direction of Marsh. The defendants were in the habit of going to the building every morning between nine and ten o’clock—sometimes eleven o’clock—and remaining there ten or fifteen minutes, sometimes less. Marsh directed the rigging of the derrick that morning, and the manner in which the work was done was left to Marsh, and plaintiff had nothing to do with the rigging of it. There was no roof to the building, and it had been wet the day before, and had rained during the night. The derrick was not rigged that morning, but had been rigged some days before. It was standing there ready rigged. The effect of rain on ropes is to cause them at first to shrink, and then, when weight is put upon them, to stretch. From the fact of its having rained before, these guy ropes would stretch considerably ; and of this fact the foreman was aware. The plaintiff and other workmen were set to work at the windlass of the derrick by the foreman in order to raise an iron column weighing about 3,000 pounds ; and they had raised it about four feet clear from the sidewalk when the feet of the derrick kicked back at its base; it slipped off the skids or planks on which it rested, then it broke the plank on which plaintiff stood, and he was thrown from the fourth to the second floor, his legs broken, and he received severe injuries. Marsh, the foreman, had been on the floor where the derrick was, to see if all was right. As soon as he noticed that it was perpendicular, and before it was raised from the sidewalk, he ceased to look at it, and went down stairs. After the hoisting of the column had begun, the foreman sent plaintiff on a message, which occupied him about five minutes. When he returned, the foreman put plaintiff again to work at the handle of the derrick. The derrick rested on two planks called skids. The skids rested on timbers, which timbers rested on iron beams. The skids were not braced or tied' to the timbers, and the derrick retained its position by guys and its own weight.

An expert in the use of derricks and in putting up iron house fronts, examined on the part of the plaintiff, gave it as his opinion that the slipping of the derrick off the skids was caused by the fact that the legs were not hitched and the derrick was leaning too much; that it should have been lashed to the iron beams, or whatever there was to lash it to ; that after a rainy day, in order to avoid accidents arising from stretching of ropes at night, it is usual to test the ropes by raising the column off the ground, watching it to see what the rope gives, and then straightening the derrick up again.

The manner in which the derrick was rigged, and the way in which the column was hoisted, was not the proper course to have pursued under the circumstances. In fact, the derrick was not lashed to the iron beams, and the foreman, having charge of the rigging of the derrick did not test the ropes by raising the column a few feet from the ground, and then readjusting the ropes, but ceased to watch it before it had been raised from the sidewalk. The end of the column was on the walk when he left.

The defendants moved to dismiss the complaint, on the ground that the plaintiif had failed to prove his cause of action, because no negligence on the part of the defendants had been proved, and because the negligence, if any, was the negligence of a co-servant. The motion was granted by the court, and the question now is, whether the case should not have been sent to the jury.

As far as the safe construction of the derrick was concerned, the foreman, Marsh, did not occupy towards the defendant the position of foreman. The duty of providing for the workmen a safe derrick, as far as reasonable care and precaution could affect that result, and also the duty of maintaining the derrick in a safe condition, rested on the defendants ; and the person to whom, in their absence, they delegated that duty was, ‘■‘pro hac vice,” the agent and representative of the defendants, and for his negligence, iff any, therein, the defendants were liable (Fuller v. Jewett, 80 N. Y. 53; Crispin v. Babbit, 81 Ib. 516).

The principles of the law on this subject have been, stated with great clearness and precision by the learned Chief Judge of this court, in the case of Green v. Banta,, decided at general term in June, 1882 (48 Super. Ct. 156).

The question in the case at bar is, whether the defendants having, for all that appears, supplied for their servants a safe derrick, were bound also to see that it was safely rigged, and to take reasonable precautions lest the changes-of the weather, by tightening or stretching the ropes, should affect its position or rigging, so as to make it insecure and. liable to injure the servants. - It may well be argued that a derrick, such as was used in this case, in order to be am efficient machine for any purpose, requires to be attached. and fixed firmly and steadily to its base ; and that the fixing: of it from time to time, or, as it is called, “rigging if,” is a necessary element in the integrity and safety of the machinery, and as essential to its being a working machine as is the due strength of the iron or wood of which the derrick is composed; and until so fixed or rigged it is not in fact a machine for any of its ordinary purposes. The rigging of the derrick in this case was under the special charge of the defendant’s foreman, who directed and had charge of that d.uty. It was the duty of the plaintiff and the other men to work the windlass and put the machine in motion, and hoist weights by means of the derrick. With the rigging of it, or with defects or dangers therein, they had no concern, unless to obey the orders of the foreman. That was no part of their business, any more than it would have been to attend to and take precautions against any defect in any other part of the construction of the machine.

There seems to be no material difference between a defect or unsafety of the derrick, arising from the slackening of the ropes, and .from the weakening of the windlass or any other part of the iron work. The result of a defect in either case, as far as safety to the employees was concerned, would have been the same.

The machine .furnished to the plaintiff for use on the morning in question, and on which he was directed to work, was the derrick as then fixed or rigged, and including, as a necessary part thereof, the ropes as braced to the beams, all together making one machine. Plaintiff was justified in depending on the foreman’s seeing that the rigging of the machine was proper and safe, so that no danger need be apprehended from any neglect in that respect. Where the master places the entire charge of his business in the hands of an agent, the neglect of, the agent in failing to supply and to maintain suitable instrumentalities for the work is a- breach of duty for which the master is liable. These were master’s duties (Crispin v. Babbit, 81 N. Y. 521, et seq.). If there were any negligence on the part of Marsh, the foreman, as to the rigging of the derrick on the morning in question, arising from the stretching of the ropes caused by the rain of the previous day and night, and that negligence caused the injury to the plaintiff, the defendants were liable therefor. And whether the foraman was or was not negligent therein was, in my judgmerit, a question of fact for the jury.

The question whether the plaintiffs own negligence contributed to the accident, as a proximate cause of it does not seem to have been relied on by the learned counsel for the defendants, or to have been dwelt on by the court in dismissing the complaint. It was open to argument, from the evidence, that plaintiff himself, having been for many years in the business óf hoisting heavy weights by the aid of derricks, should have known the necessity of shifting the ropes so as to make allowance for stretching of them caused by rain, and that his own negligence contributed to the accident. But that also was a question for the jury.

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

Ingraham, J.

—There are two well defined exceptions to the rule that the master is not responsible to one servant for an injury occasioned by the negligence of a co-servant .of the common employer. First. Where the servant whose negligence caused the injury was an unfit and incompetent person to be intrusted with the duty to which he was assigned, and the accident resulted from his incompetenoy or unfitness. Second. Where the accident resulted from unsafe and imperfect machinery and appliances furnished for the use of the servant in the master’s business (Murphy v. B. & A. R. R. Co., 88 N. Y. 150).

The master’s liability, if sustained in this case, must be upon the second exception above noticed.

It was the duty of the defendants to furnish the plaintiff with safe and proper machinery and appliances for the business for which he was employed ; and if there was any negligence on his part, or on the part of any person intrusted . by him with the business of employing servants ánd providing safe machinery and appliances, he was liable.

Marsh was the foreman on the work. He employed the plaintiff originally on another piece of work ; and when that was finished, plaintiff continued in the employ of defendants. Marsh engaged other men who worked there. He testified-; “I had charge of the work.” “I had charge of constructing the derricks,” and had filled’that position for about nine years. “ The manner in which the work was done was left to me.” I directed the original rigging of the derrick in question.” “ I also directed the rigging of derrick on" the morning in question.” “ I set them to work that morning.” He further testified that he looked to see if it was all right, and then gave the word to commence.

I think it must be conceded that there was sufficient evidence to sustain a finding that Marsh was not a fellow-workman, but was a person placed by defendants in charge of the building, and that for his negligence his employer was responsible.

The next question is, was the proper rigging of the derrick a duty which the master owes to his servants %

Marsh, the foreman, swears, that he had charge of construction of the derrick ; directed the original rigging of the derrick ; and also directed the rigging on the morning in question, before the men commenced work on it, and he looked to see that it was all right, and then gave the word to commence. That he then took plaintiff off the handle and sent him to find some tools ; then called him back, and put him (plaintiff) on. the handle. Plaintiff testified that he commenced working that day by direction of Marsh, the foreman, and that he had nothing to do with rigging the derrick that day.

In Green v. Banta (48 Super. Ct. 156) the general term of this court held, that it was the duty of the defendants to furnish a workman, a properly built scaffolding ;. and, to perform that duty he employed a foreman, that any negligence of the foreman in putting together the scaffold would Lbe negligence of the defendant and not of a fellow-workman. I cannot see the distinction between that case and the case at bar. If it was the duty of the employer in Green v. Banta to furnish a properly built scaffold, it must have been the duty of the defendant to furnish a properly rigged derrick ; and a foreman having been employed to properly rig the derrick (as he himself testified he was), his negligence in so doing would be negligence of the defendants (Fuller v. Jewett, 80 N. Y. 53).

There is evidence tending to show that the accident was caused by the improper'and negligent rigging of the derrick, and I think there was sufficient to justify the submission of the questions to the jury.

The case of Crispin v. Babbitt (81 N. Y. 521), relied on by the respondent, is direct authority for the liability of the defendants for the acts of the foreman under the circumstances in this case. The court says, on page 521: “ However low the' grade or rank of the employee, the master is liable for injuries caused by him to another servant if they result from the omission of some duty of the master which he has confided to such inferior employee.” In this case Marsh swears that it was his duty to rig the derrick ; that he attempted to perform that duty on the morning in question ; and there is evidence tending to show that in consequence of a negligent performance of that duty the plaintiff was injured.

For these reasons I concur with Judge O’ Gorman that the judgment should be reversed, and a new trial ordered, with costs to abide the event.

Sedgwick, Ch. J.—[Dissenting.]

—I am of opinion that the plaintiff, in entering upon his employment, accepted the risk that would be involved in arranging the derrick and its several attachments, from occasion to occasion, to prepare it for lifting the columns. The necessities of the operation would lead to frequent changes of the derrick from place to place. The plaintiff could not have supposed that he had a right to rely upon the defendant’s undertaking that they would arrange the derrick safely on each occasion of its use. He must have perceived that the management of the derrick would be committed by the defendants to a subordinate. As there was no testimony that 'defendants were negligent in their selecting this subordinate, my opinion is that the judgment should be affirmed.


author: By the Court.—Ingraham, J.

text:
    THE METROPOLITAN CONCERT GARDEN CO., Appellant, v. HENRY E. ABBEY, et al., Respondents.

      Stipulations—power of court in regard to.—Attorney and client.

    The court at special term has general power to relieve in a proper case a client from stipulations entered into by his attorney, e. g., a stipulation that the verdict of a jury, or order on direction of the court, in a certain other action between the same parties, shall be deemed to have been made in the action in which the stipulation is entered into—or, that in case a default in a certain other action between the same parties is not opened, judgment shall be entered in the action in which the stipulation is made against the party stipulating.
    Whether an attorney can bind the client by such stipulations without his express assent or authority, guare.

    Before Sedgwick, Ch. J., and Truax and Ingraham, JJ.

      Decided June 2, 1883.
    Appeal from order of the special term relieving the defendants from stipulations entered into by their former attorneys.
    The stipulation in action No. 3 was to the effect that the verdict of the jury, or direction or order of the court, in certain other actions between the same parties should be taken and considered as having been rendered and made in this action. The exact terms of the stipulation in action No. 4 were not stated, but it appeared to have been to the effect that if the default in actions Nos. 1 and 2 should not be opened, the plaintiffs should enter judgment for the amount demanded in the complaint in said action No. 4.

      Davenport & Leeds, for appellant.

      Geo. L. Rives and A. J. Dittenhoefer, for respondents.
   By the Court.—Ingraham, J.

—It is well settled that the court at special term had power to relieve the defendants from the stipulation entered into by their attorneys (Barry v. Mutual Life Ins. Co., 53 N. Y. 536). At the time the stipulations in action No. 3 was signed defendant’s attorney was in Europe, and both defendants swear that the stipulation had been entered into without their authority, and that, they had no knowledge that either of them had been made until about the trial of the applications to the special term for relief.

I think that under the decision cited by the court, in .granting the order appealed from, there is considerable doubt whether an attorney has authority to make such stipulations as were made in these cases without the--express assent of his client. It was undoubtedly within the power of the court to grant or refuse a favor on condition of making such stipulation; and an acceptance of such a favor would bind the party so accepting it with the terms or conditions on which it was granted; but it does not appear that the stipulations in question were executed under such a direction, but were simply made in pursuance of an agreement between the attorneys for their respective parties.

Without passing on that question, and without passing on the validity of the defenses set up in the amended answer, I think that this was a proper case for the court to relieve the defendants from the stipulations. The original actions were never tried, but judgments were taken by default; the defendants have had no opportunity to try the questions in the regular way, at the regular trial terms; and I think, under the circumstances of these causes, they should have such opportunity. If plaintiffs are entitled to recover, it does not appear that they will be prejudiced by the order appealed from. That provides for security for the payment of any judgment that they may obtain, and the payment to them of the costs of the actions.

I am of the opinion that under all the circumstances of these cases the order appealed from should be affirmed without costs.

Sedgwick, Ch. J., and Truax, J., concurred.


author: Per Curiam.

text:
    ELLEN C. VOSPER, as Adm’rx, &c., Respondent, v. THE MAYOR, &c. OF NEW YORK, Appellants.

      Municipal corporations. —Negligence.—Highways.—Trial.—Argument of counsel.

    In an action to recover damages for injuries caused by the negligence of defendants, which injuries were occasioned by the falling of a tree growing on the.sidewalk in a public street, and which after its fall was found to be rotten from, its roots up, to a dangerous degree,- the evidence being conflicting as to whether there was any exterior sign thereof while the tree was standing,

      Held, that the obligations of the city cannot be limited to the duty to act only upon exterior signs of danger, arid it is a question for the jury whether or not the defendants should by some means anticipate the danger, even by cutting down the tree.
    It is error to permit counsel, against objection, to read, during his summing up, extracts from a book of reports of law cases. But where it is clear that the opposite party was in no way injured, e. g., where none of the facts of the case cited were given by the counsel to the jury, and the matter read contained only the principle of law which the court thereafter properly-charged, such error will not be fatal.
    Before Sedgwick, Ch. J., and Ingraham, J.

      Decided June 2, 1883.
    Appeal by. defendant from judgment for plaintiff entered in a verdict of jury, and from order denying a motion for new trial made upon the minutes of the judge.

      George P. Andrews, corporation counsel, and Charles B. Candy, for appellants.
    —The following appears in the appeal book: “Mr. A. Gr. Vanderpoel summed up for the plaintiff, and in the course of his remarks commenced to read from the New York Weekly Digest of February 3,1883, the case of Brusso v. City of Buffalo (16 W. Dig. 1). Defendants’ counsel objected to his reading this, as incompetent and improper. The court: Counsel may proceed with his argument. Defendants’ counsel excepts. Mr. Yanderpoel then continued to read : ‘ In that case it was held that the city was under an absolute duty to keep its streets in a safe condition for public travel, and was bound to exercise reasonable diligence and care to accomplish that end.’ ” The objection is in proper form (Lyons v. Erie R. R. Co., 57 N. Y. 492).
    The objection thus made was a proper one, and the court ought not to have permitted plaintiff’s counsel to have read from the volume in question, whether it was from an authenticated legal publication or not; and_ it made no difference that it was used by counsel as a part of his argument; that was the only office of counsel at that stage of the trial, and the plaintiff had -no right to read law to the jury, from that or any other particular case (Tuller v. Talbot, 23 Ill. 357; Sprague v. Craig, 51 Id. 288, 294; People v. Anderson, 44 Cal. 65; Yoe v. People, 49 Ill. 410; Koelges v. Guardian Life Ins. Co., 57 N. Y. 638; Gould v. Moore, 40 Super. Ct. 387; Mitchum v. State of Georgia, 11 Ga. 615; Tucker v. Henniker, 41 N. H. 317, 322-326; Hoxie v. Home Ins. Co., 33 Conn. 47; Shepherd v. Thompson, 4 N. H. 213; Loyd v. Hannibal & St. Jo. R. R. Co., 53 Miss. 509; Martin v. Orndorff, 22 Iowa, 504; Commonwealth v. Murphy, 10 Gray [Mass.] 1; Griffin v. Bartlett [N. H.], 19 Alb. L. J. 98; Niel v. Abel, 24 Wend. 185).
    The courts have sometimes permitted counsel to read from legal text-books. Thus, in Harvey v. State (4 Ind. 516), it was held, a proper charge having been given with regard to it, no error to have read Wharton's Medical Jurisprudence to the jury. Text-books in general, however, cannot be so read unless first introduced in evidence, and proved by a competent witness to be an authority (Yoe v. People, 49 Ill. 410, 412; Holman v. Click, 16 Alb. L. J. 136). But there is a wide and obvious difference between a paragraph in a text-book which states general principles, and a reported decision which relates to a specific case ; and the defendants entertain no doubt that their exception hereinabove discussed is well taken (See Reich v. Mayor (Com. Pl., G. T., March 15, 1883; opinion by Beach, J., concurred in by Daly, Ch. J., and Van Brunt, J.; 17 Week. Dig. 140).
    Defendants’ requests to charge as to the responsibility of the city should have been granted (Smith v. Mayor, 15 W. D. 103; Dillon, § 1006, and cases there cited; Griffin v. N. Y., 9 N. Y. 459; Battersby v. Mayor, &c., 7 Daly, 16; Blakeley v. Troy, 18 Hun, 167; Reinhard v. Mayor, 2 Daly, 243; Weston v. N. Y. Elevated R., 73 N. Y. 595; Gorham v. Trustees of Cooperstown, 59 Id. 660; McMahon v. Second Ave. R. R. Co., 75 Id. 231-236; Parker v. Cahoes, 17 Hun, 531; affirmed, 74 N. Y. 610; Hume v. Mayor, &c., 74 Id. 264; Loftus v. Union Ferry Co., 84 Id. 455).

      Aaron J. Vanderpoel, for respondent.
    -—The city has sole power to remove, or permit the removal, of obstructions on sidewalk (Charter 1873, ch. 335, art. II., § 82; 1 Laws N. Y. City, 88; Laws 1866, ch. 74, § 12; 1 Laws N. Y. City, 428).
    It is required to exercise this power as an absolute duty, and remove all obstructions on sidewalk detrimental to the public or dangerous to life or health (Diveny v. City of Elmira, 51 N. Y. 506; Requa v. City of Rochester, 45 Id. 129; Davenport v. Ruckman, 37 Id. 568; Conrad v. Trustees of Ithica, 16 Id. 158).
    In removing obstructions it acts ministerially, and not judicially (Hines v. City of Leckport, 50 N. Y. 236; Requa v. City of Rochester, 45 Id. 129; Barton v. City of Syracuse, 36 Id. 54; Milis & Dean v. City of Brooklyn, 32 Id. 489; Powell v. Tuttle, 3 Id. 396.)
    The city has constructive notice of obstructions by lapse of time during which same might have been seen by its officers and agents (Hume v. Mayor of N. Y. 47 N. Y. 639; Requa v. City of Rochester, 45 Id. 129; Davenport v. Ruckman, 37 Id. 568).
    It must remove a tree on street or sidewalk when it becomes an obstruction dangerous to life or health (Ward v. Atlantic & P. Tel. Co., 71 N. Y. 81; City of Brooklyn v. Brooklyn City R. R. Co., 47 Id. 475; Hume v. Mayor of N. Y., 47 Id. 639; Requa v. City of Rochester, 45 Id. 129; Hutson v. The Mayor, 9 Id. 163).
    The city must respond in damages for negligent acts of omission, as well as negligent acts of commission, on the part of its. agents and employees (Conrad v. Trustees of Ithaca, 16 N. Y. 158).
    The objection of defendants to the reading from a reported case to the jury was properly overruled, because the court had it in its discretion to permit the reading.
   Per Curiam.

—-The action was for damages for the death of plaintiff’s intestate, caused by the negligence of the defendants. The cause of the death was the falling of a tree that had been growing on a sidewalk. After the tree fell it was apparent that it was rotten from the roots up, to a dangerous degree. There was some conflict of evidence as to whether there was any exterior sign of the rottenness when the tree was standing.

On the trial, the defendants’ counsel asked the court to charge, which the court declined, that the plaintiff could not recover, unless she satisfied the jury that the rottenness was visible and obvious to view from ordinary observation; that if the tree presented no outward indication of rottenness or unsafeness, then there was no negligence in not boring the tree or not making any extraordinary examination to test its safety unless the city had reason to believe, from notice or otherwise, that it was rotten or unsafe ; that to demand of the city that it should bore the tree, or should make any other than a superficial examination to look for possible defects which could not be discovered, would, in the absence of notice of their existence, be imposing upon the city more than ordinary care ; that if the decay in the tree, which occasioned the accident, was concealed and hid from ordinary observation, and the city had no notice, actual or constructive, that such tree was decayed or dangerous, the city is not guilty of negligence for not discovering such decay, and the accident is one of misfortune, or inevitable accident, for which there is no redress at law ; and that if the tree was to all outward appearance reasonably safe and sound for the ordinary season and storms, and if the city had no iptice of its unsound character, and no reason to apprehend that it was unsound, then the city is not liable.

It may be well to say that the rottenness or decay referred to in these requests means a rottenness or decay that would make the tree liable to fall or be blown down. There was an assumption in these requests which justified the court in declining to charge them. They assumed that the plaintiff must rely solely upon the duty of the city, as respects an actual condition of rottenness or unsafety. They imply that, as matter of law, the duty began only when the danger began, and that if the city had no reason to believe that the tree had actually become unsafe, it would not be liable. But it was incumbent upon the city to use ordinary caution to anticipate the danger that could come into existence without manifesting itself to ordinary observation. If the contingency of the facts were that a secret cause of danger might grow aiid increase, and yet be hidden, it could not be assumed that, as matter of law, the city was not bound to do anything except use ordinary means to ascertain when danger was imminent and imperiled the safety of passers-by. It would be a question for the jury as to whether the defendant should do or not do something, even to cutting down the tree, to prevent the danger. The jury could find whether it was the duty of the defendant to ascertain the habits of a tree of this kind, growing- in city soil, and to ascertain whether it was likely or unlikely that while the tree was fair on the outside, and apparently staunch, there was reasonable ground for apprehending that it might be, in fact, unsafe. On this point there is the testimony of an expert, a witness for the defendant, who, speaking of the kind of rot that was in this tree, said, “ When the rot first commences down in the tap-root, the •decay goes on, and it is hardly possible to tell whether the tree is sound or not, because it does not appear at the top ; such a tree goes on increasing its diameter, and it rots away as fast in the center as it makes aggregate growth on the outside ; the rot may be in it a long time.” Another párt of his evidence went to show that such rotting was likely to begin from the kind of soil there is in the city. It would be incorrect to limit the obligation of the city to act only upon what was called in the case the appearance of the tree as being dangerous. The city would be bound to act upon their knowledge, or obligation to gain knowledge, as to the intrinsic qualities of the tree and the soil, although these were not manifested in the outward appearances of, the tree.

The charge of the court, as made, included all that was correct in the requests that have been examined.

On the trial, the plaintiff’s counsel was allowed to read to. the jury, in summing up, from a report of law cases, against the objection of defendant’s counsel, the following extract:—“ In that case it was held that the city was under an absolute duty to keep its streets in a sale condition for public travel, and was bound to exercise reasonable diligence and care to accomplish that end.” The counsel who read this, probably mistook the direction of the judge to proceed with his argument as a permission to read the extract. This is doubtful, however, as the words of the court are stated in the case to be, “ Counsel may proceed with his argument.” The permission, if it were given, was irregular. Such a proceeding may, in some cases, tend to withdraw the minds of the jury from the issue of fact before them, and from their duty to take the law from the court.. In this case, it is clear the defendant could not have been injured. None of the facts of the case cited by the counsel to the jury were given by him, and what he read could only have impressed the jury with what the court after-wards, in substance, charged, that it was the absolute duty of the defendant to use reasonable care in keeping the streets in a safe condition.

Other exceptions were taken. They are not of a kind that calls for a detailed statement of them here. They have been examined, and cannot be sustained.

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


text:
    JULIETTE G. SCHOENROCK, Appellant, v. PETER FARLEY, Respondent.
    Pleading— Chattel mortgage may he proven under general denial, as defense in conversion.

    In an action for the wrongful conversion and sale of personal property of plaintiff’s, where the answer is a general denial, defendant may prove as a defense, the execution of a bill of sale of said property to him by plaintiff, and of an instrument by him agreeing.that said bill of sale shall be void on payment of rent, etc., and a sale by him thereunder.
    The said instruments make a mortgage and not a pledge, and the defense thereunder denies plaintiff’s title, and does not constitute matter of justification.
    Before Sedgwick, Ch. J., and Ingraham, J.

      Decided June 2, 1883.
    Appeal by plaintiff from judgment entered on verdict in favor of defendant, and from order denying motion for new trial made upon judge’s minutes.

      L. B. Bunnell, for appellant.

      Barnum & Rebhan, for respondent.
   Per Curiam.

—The complaint charged that the defendant converted to his own use personal property belonging to plaintiff. It appeared in evidence that the property referred to was first taken by defendant about July 2, 1879, and was afterwards sold by him. The allegations of the complaint were so specific that the cause of action was made to rest upon the first taking only; but as the sale was given in evidence, and the trial proceeded as if it affected the issue, it will not be .necessary to view the plaintiff’s claim as if it were confined to the first taking.

The chief point on which the plaintiff relies, in the argument for her that there was no defense, is, that the defendant had not justified the taking in the answer, but relied on the general denial. It is further asserted that this-put in issue only the title of the plaintiff, and not the right of the defendant, to take the goods under that title. The answer, in fact, did put in issue the title of the plaintiff at the time of the alleged taking.

The defendant proved that before the goods were taken by him, the plaintiff and her husband had made and delivered an instrument that on its face purported to be an absolute bill of sale of the goods to the defendant. Contemporaneously with this, the defendant delivered to the husband an instrument to the effect that if the plaintiff and her husband should pay rent about to become due, the bill of sale should be void. These instruments made a mortgage, and not a pledge. The bill of sale invested the defendant with the title, and gave him the right to take possession immediately (Hall. v. Sampson, 35 N. Y. 277). The defense thereupon went to the title, and did not rest upon a justification which admitted the title in the plaintiff.

The jury determined, under proper instructions, that the-plaintiff executed the bill of sale when her husband signed her name at her request. It was claimed that, in some way, she was not bound by the" mortgage, because she did not owe the rent or promise to pay it. It is enough to sustain the mortgage, that she had legal power over her own property, and could transfer it unconditionally or conditional^, to be used as security for the payment of her husband’s debt.

On the trial, no contest was made by the plaintiff as to> the manner in which the goods were sold and the mortgage foreclosed. Other points were made on the trial. They have been examined, but the exceptions connected with them are untenable.

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