text:
    August Schmidt, Respondent, v. John Brown and Another, Appellants.

      A trial judge may grant a new trial upon Ms own motion — when a verdict will he set aside as against the evidence — failure to allow costs.

    Under the provisions of section 999 of the Code of Oivil Procedure a justice presiding at a trial by jury may, in his discretion, entertain a motion to set aside a verdict upon the minutes.
    There is nothing- which prevents a justice from making an order setting aside a verdict and granting a new trial upon his own motion, and the fact that an order was so made on the motion of the justice is not a ground for its reversal. Where the verdict of a jury is against the evidence, or so manifestly against the weight of evidence that it is apparent that the jury either misapprehended the same, or were influenced by passion or prejudice in rendering their verdict, the court on the trial may set it aside.
    The fact that costs were not awarded by a trial judge in setting aside the verdict of a jury and granting a new trial, where no question was raised at the time upon the subject, is not a ground for the reversal of such order upon an appeal therefrom.
    Appeal by tbe defendants, John Brown and another, from an order of the Supreme Court, made at the Greene Circuit and entered in the office of the clerk of the county of Greene on the 26th day of October, 1893, setting aside the verdict of a jury and granting a new trial on the motion of the court.

      Frank H. Osborn, for the appellants.

      D. II. Daley, for the respondent.
   Mayham, P. J.:

This action was prosecuted by the plaintiff to recover damages of the defendants for an alleged breach of contract by the defendants in the furnishing of materials and the construction of a dwelling house, the plaintiff claiming in his complaint to recover $1,000.

The answer alleged a substantial performance of the contract, except in some slight particulars, the completion of which could be made at an expense of a small sum, and also an allegation that the time of the completion fixed in the contract was enlarged by agreement between the parties. The answer also set up a counterclaim for items advanced and delivered to the plaintiff by the defendants. The reply denied the counterclaim. The jury found for the defendants and the trial judge set aside the verdict and granted a new trial on the minutes.

We have examined the evidence, and think the learned judge violated no rule of law in setting aside the verdict.

By section 999 of the Code of Civil Procedure the justice presiding at a trial by a jury may, in his discretion, entertain a motion to set aside a verdict upon the minutes. In this case the justice exercised the discretion without an actual motion, but in the presence of the attorneys for the parties. There seems to be nothing to prevent a justice from making the order on his own motion, and the fact that the order was made on the motion of the justice does not seem to be a ground for the reversal of his order. There was some evidence in the case tending to establish a failure on the part of the defendants to complete this job according to the contract, which does not seem to be expressly disputed by the evidence of the defendants upon the trial.

While upon many points in controversy there is a conflict of evidence, which, if standing alone in the case, would prevent the judge from interfering with the verdict of the jury (Morss v. Sherrill, 63 Barb. 21), yet there seems to be some undisputed testimony upon which the plaintiff would be entitled to recover. When there is sufficient legal evidence in a case to sustain the determination of the trial judge in setting aside the verdict of a jury, and the question turns upon the apparent weight of evidence, the trial judge, having seen and heard the witnesses, is better qualified to determine where the truth lies than the court on appeal is from the -printed record only. The rule seems originally to have been that the trial court could not set aside a verdict where there was a scintilla of evidence to sustain it. But that rule has been modified by the recent decisions, so that in any case where from the undisputed evidence the court may properly direct a verdict for the plaintiff, or where there is such an entire failure of evidence on his part, the court may non-suit the plaintiff; it may set aside a verdict in favor of the party not entitled to it, tested by the above rule. In other words, where the verdict is against the evidence, or so manifestly against the weight of evidence that it is apparent that the jury either misapprehended the same or were influenced by passion or prejudice in rendering their verdict, the court on the trial may set it aside.

In Baulec v. The N. Y. & Harlem R. R. Co. (59 N. Y. 366) Allen, J., says : “ It is not enough to authorize the submission of a question as one of fact to a jury that there is ‘ some evidence.’ A scintilla of evidence or a mere surmise that there may have been negligence on the part of the defendants would not justify the judge in leaving the case to the jury.”

In Dwight v. Germania Life Ins. Co. (103 N. Y. 359) Ruger, Ch. J., quotes with approbation and adopts the rule laid down by the Supreme Court of the United States in Improvement Co. v. Munson (14 Wall. 442) as follows : Nor are judges any longer required to submit a question to a jury merely because some evidence has been introduced by the party having the burden of proof, unless the evidence be of such a character that it would warrant the jury in finding a verdict in favor of that party. Formerly it was held that if there was what was called a scintilla of evidence in support of a case, the judge was bound to leave it to the jury; but recent decisions of high authority have established a more reasonable rule, that in every case, before the evidence is left to the jury, there is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it upon whom the onus of proof rests.” The learned chief judge also cites to the same effect Pleasants v. Fant (22 Wall. 120); Commissioners v. Clark (94 U. S. 284); Griggs v. Houston (104 id. 553) and other cases. We think, within the rule as above stated,'the learned trial judge properly exercised the discretion vested in him by section 999 of the Code of Civil Procedure in entertaining a motion on the minutes for a new trial, and that there was no error committed by him in his disposition of the same.

The costs were not awarded by the judge on setting aside the verdict and granting a new trial, and no question was raised by the counsel for either party upon that subject.

We do not see how error can be predicated on that question here.

The order must be affirmed, with ten dollars costs and printing disbursements.

Putnam and Herrick, JJ., concurred.

Order affirmed, with ten dollars costs and printing disbursements.


source: Caselaw Access Project

author: May ham, P. J.:

license: Public Domain

text:
    In the Matter of the Accounting of Frank F. Hathaway, as Committee, etc., of Francis A. Bush, a Lunatic.

      Committee of lunatic — when investments taken by him from Ms predecessor, in lieu of cash, will be deemed to have been made by him — his duty in making investments— when not liable for losses.

    A person, who had assumed the duties of a committee of the person and estate of a lunatic, acknowledged by his inventory the receipt of a certain amount of cash; his predecessor, by his account, having charged himself with such sum as cash on hand, and having made no claim that any of such cash was at that time invested in certain bonds and mortgages, which the former committee in fact subsequently turned over as representing such cash to the new committee.

      Held, that the new committee, upon his accounting with the administrator of the deceased lunatic, was chargeable with the responsibility for the investment of the cash in such bonds and mortgages, taken by him in lieu of cash, to the same extent as if the investment had been voluntarily made by him.
    The fact that one of the mortgages was given by the prior committee for the pui'pose of meeting in part his liability as committee, as established upon his accounting, does notin any way prejudice the rights of the committee succeeding him to receive the same as an investment, if he had reason to believe, and did believe, that such mortgage was an adequate security for the amount invested therein.
    A committee of a lunatic is bound to use such diligence and prudence in the care and management of the lunatic’s estate as, in general, prudent men of discretion and intelligence in such matters employ in their own like affairs; the preservation of the fund, and the procurement of a just income therefrom, are primary objects of the creation of the trust, and are to be primarily regarded.
    Although trusts for the benefit of the incompetent and infants should be administered with great care and fidelity, and improvidence or dishonesty on the part of a trustee should be visited with severe condemnation and penalties by the courts, yet, when the trust has been administered with the fidelity, prudence and caution that would characterize the management of his own affairs by a prudent business man,- if loss happens it should not be visited upon the trustee.
    Appeal by Frank F. Hathaway, as committee, etc., of Francis A. Bush, a lunatic, from an order of the Supreme Court, made at the Montgomery Special Term and entered in the office of the clerk of the county of Clinton on the 9th day of February, 1894, modifying, and affirming as modified, the report of a referee appointed on the appellant’s accounting, with notice of an intention to bring up for review on sncli appeal said order, the report of the referee and all proceedings had in said matter.

      Matthew Male and G. M. Beckwith, for the appellant.

      L. L. Bhedden, for the administrator of Francis A. Bush, deceased,, respondent.
   May ham, P. J.:

Francis A. Bush, the lunatic, having died intestate, Alfred Guibord was duly appointed administrator of his goods, chattels and credits, and as such, filed his petition for the accounting of the com-’ mittee, Frank F. Hathaway, who thereupon joined in such petition, and having filed his accounts as such committee, the court duly appointed Royal Corbin as referee to take and state the accounts of such committee, who, after hearing the parties, made his report, which, on application to the court, was modified, and as modified, was confirmed, from which order of confirmation this appeal is taken.

The first question raised on this appeal is, as to whether two mortgages held by the committee, as such, should be turned over to and received by the administrator at their face value as a part of the trust fund in the hands of the committee, or whether he should be charged with the face value of the same in cash. The appellant Hathaway succeeded Hiram Clark as committee of the person and estate of Francis A. Bush, the lunatic.

Clark had been such committee for several years, and on his accounting on the 14th of February, 1892, there was found to be. due the estate of the lunatic the sum of $8,257.13, and also a bond and mortgage for $1,000 given to the committee Clark by one-Geo. L. Clark, and a pension certificate issued to the lunatic, granting him a pension at the rate of seventy-two dollars per month.

On the 15th of February, 1892, Hathaway, as committee, filed his inventory of the estate of the lunatic, stating that he had then on hand, cash $8,257.13 and the Geo. L. Clark mortgage of $1,000, for which he on that day gave his predecessor Clark his receipt.

The referee finds that the appellant Hathaway, at the time of giving such receipt, received in lieu of cash, from his predecessor Clark, a mortgage of $2,500, executed by said Clark to Merritt ■Sowles, and assigned by him to Hathaway as such committee, and that at the same time, in lieu of cash, he, as such committee, received another mortgage made by Gonyea to Webster Clark, a brother of Hiram Clark, committee, on which there was unpaid and owing the sum of $1,466.50, principal and interest. Hathaway, as such committee, received from his predecessor several other real estate mortgages as cash, about which no question is raised here.

The referee held and reported that the Clark and Gonyea mortgages were not proper securities in which to invest the trust funds in the hands of the committee belonging to the lunatic, and refused to allow the appellant to turn them over to the administrator in payment and discharge of his liability as such committee, and the Special Term sustained the report of the referee in that respect. The appellant duly excepted to this part of the report of the referee, and to the decision of the court thereon; and the principal contention on this appeal arises out of that refusal.

Hathaway, when he assumed the duties of committee of the person and estate of the lunatic, by his inventory acknowledged the receipt from his predecessor of $8,257.13. His predecessor, by his account, was charged with that sum as cash on hand, and made no ■claim that any of that amount was at that time invested in either of the mortgages in controversy here, so that the appellant must be deemed to have voluntarily made these investments himself and not to have accepted those securities as investments made by his predecessor. He had it in his power to compel his predecessor to pay the amount found in his hands in cash, and having received these securities in lieu of cash, he, and not his predecessor, must on this accounting- be held liable if the securities received by him were not such as he might receive as an investment of the trust funds committed to his care.

While it is quite apparent from the transactions connected with the making of the Hiram Clark mortgage, that Clark gave the same for the purpose of meeting in part his liability as committee on his accounting, we do not see how that fact alone can prejudice the rights of the appellant, provided that Hathaway had reason to believe, and did believe, that the mortgage was good and adequate security for the amount invested in it. The mortgage was given by Clark to Sowles, who was at that time president of the First National Bank of Plattsburgh, and wrho gave Clark his check for $2,500, the amount of such mortgage, Clark indorsing the check to the order of Hathaway, committee, who received the same in part payment of the amount due from Clark as late committee.

That check bore date on the fifteenth of December and was deposited by Hathaway to his credit in the bank, and on the twenty-ninth of January he gave his check for $2,500 to Sowles and received for the same an assignment of the Clark mortgage. There is nothing in this transaction which seems to impugn the good faith of Hathaway in taking the assignment of this mortgage as an investment for the benefit of the trust estate.

He could at any time on his check, after the Sowles check was placed to his • credit, have drawn the currency from the bank as committee. Instead of that he saw fit to invest the proceeds of his deposit in the purchase of an interest-bearing security.

This was his duty as committee, provided the security in which such investment was made was reasonably adequate for the amount invested.

The referee, in his thirteenth finding of fact, finds that this Clark mortgage of $2,500 was doubtful security for that amount, and by his fourteenth finding of fact he finds that the same was not taken by Hathaway in entire good faith, and by his conclusion he finds that the lunatic’s estate is not bound to take the same, but is entitled to demand cash of the committee for the amount of the same.

Exceptions were duly taken by the committee to such findings, and conclusions. The referee in his report refers to the social, business and kinship relations existing between Hiram Clark and the appellant at the time he became the committee of this lunatic, to which the appellant excepted. It is difficult to see the materiality of these facts to the real question under consideration. The real question is, was the mortgage such a security as a prudent business man would take on investing his own funds ? The answer to this question would seem under the authorities to measure the responsibility of a committee of the estate of a lunatic. In King v. Talbot (40 N. Y. 85, 86) the Court of Appeals, in discussing the liability of a trustee, by Woodruff, J., says: “My own judgment, after an examination of the subject, and bearing in mind the nature of the office, its importance, and the considerations which alone induce men of suitable experience, capacity and responsibility to accept its usually thankless burden, is that the just and true rule is that' the trustee is bound to employ such diligence and such prudence in the care and management, as in general, prudent men of discretion and intelligence in such matters employ in their own like affairs. * * * The preservation of the fund and the procurement of a just income therefrom are primary objects of the creation of the trust itself, and are to be primarily regarded.”

Adopting the rule as above stated, and applying it to the security’ under consideration, and eliminating all the extraneous consideration of the relations between the outgoing and incoming committee, and testing this question by an examination of the sufficiency of the security alone, it seems clear that the referee’s determination as to the Clark mortgage was erroneous.

The estate of the lunatic has thus far suffered no loss by this investment. The assignor of this mortgage took it as a sufficient security for a loan to Clark of $2,500. He was a business man and president of a bank at the time of making such loan and taking this ’ security. Several apparently competent business men and real estate owners and dealers, acquainted with the real estate covered'' by this mortgage, and with other real estate located in its vicinity, testified that its value was, at the time of the assignment of this security to the committee, from $3,000 to $4,000. The mortgage bore interest at the legal rate of interest, and contained the interest and insurance clause, and was apparently in every respect a desirable security.

If, under such conditions, the trustee, charged with the duty of Keeping trust funds invested on interest, is to be held responsible for payment of the same in cash without recourse to the securities, then the duties and obligations of committees and trustees will become too onerous and risky for ordinary business men, and responsible and competent men will refuse to assume such duties.

It is quite true that trusts for the benefit of the incompetent and infants should be administered with great care and fidelity, and that improvidence or dishonesty on the part of a trustee should be visited with severe condemnation and penalties by the courts. ,

But when the trust has been administered with fidelity and with prudence and caution that would characterize a prudent business man in tlie management of his own affairs, if loss happens it should not be visited upon the trustee.

I am, therefore, clearly of the opinion that the Hiram Clark mortgage was a security in which the committee might, at the time he took the same, lawfully invest the trust funds, and that the administrator of the estate of the lunatic should be required to take the same at its face value with accrued interest, and credit the same to the committee on his account on this final accounting.

A careful examination of the evidence of the Henry Gonyea mortgage leads to the conclusion that that was full and adequate security for the amount of the trust fund invested in it, and that the reasons stated in reference to the Hiram Clark mortgage apply with equal force to the Gonyea mortgage, and that it too should be received by the administrator of the estate of the lunatic and credited to the committee on his accounts.

The referee was right in disallowing the committee’s claim for personal services and in his refusal to allow for the payment of interest on the Moon mortgage.

The order appealed from should be so modified as to allow the appellant a credit of $2,500, the amount of the Hiram Clark mortgage and $1,460.50, the amount of the Henry Gonyea mortgage, and that those mortgages, with the bonds accompanying them, be transferred and delivered by the appellant to the administrator of Francis A. Bush, the deceased lunatic, and as so modified the order should be affirmed, without costs of this, appeal to either party as against the other.

Putnam and Herrick, JJ., concurred.

Order modified, without costs to either party.


author: Mayiiam, P. J.:

text:
    George V. R. Lewis, as Administrator, etc., of Moses Lewis, Deceased, Appellant, v. The President, Managers and Company of the Delaware and Hudson Canal Company, Respondent.

      Damages sustained by stepping from a moving train• — what instruction of the conductor does not amount to negligence on the pa/rt of the railroad company — contributory 'negligence.

    Upon the trial of an action brought to recover damages resulting from the death of the plaintiff’s intestate, caused by the alleged negligence of the defendant, it was shown that the plaintiff’s intestate boarded a train at Cobleskill which was a through train from that point to Albany. After the train had left Cobleskill, the conductor, in passing through the train collecting fares, was handed by the plaintiff’s intestate a mileage book, and at the same time was informed by him that he desired to stop at. Quaker Street, an intermediate station at which the train was not permitted to stop. The conductor informed him that he did not think the train would stop at such station. Keturning in a short time, he said, “ We will not stop at Quaker Street,” but “ will see.”
    Subsequently the train was compelled to slow up to allow a freight train going in the opposite direction to pass over a bridge on which there was not sufficient room for the two trains to pass; at this point the conductor said to the plaintiff’s intestate : “It is going pretty slow now, and it will be going faster, and you better get off now; that is all I have to say about it.” The deceased thereupon stepped off between the freight and passenger trains, was hit by the freight train and sustained thereby injuries which resulted in his death.
    It was not shown whether the deceased was aware of the proximity of the freight train to the passenger car at the time he alighted therefrom, but it appeared that there was ample space on the opposite side of the passenger car from the freight train for the deceased to have alighted.

      J2eld, that in stepping from the car the plaintiff’s intestate did an act for which the railroad company was in no way legally responsible; he took the hazard of the consequences of his negligence, and it cannot be imputed to the defendant;
    That to alight from or to board a moving train is negligence per se, and the plaintiff’s intestate was guilty of negligence in so doing; that when he did attempt to alight it was his duty to exercise caution in the attempt, and to look and listen before alighting on the track of a railroad, away from a station, where trains were liable to pass and might be expected at any moment.
    Appeal by the plaintiff, George Y. R. Lewis, as administrator, etc., of Moses Lewis, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Saratoga on the 2lth day of October, 1893, upon the dismissal of the complaint directed by the court after a trial at the Saratoga Circuit before the court and a jury, and also from the order and decision of the court rendered at such Circuit upon which said judgment was rendered, with notice of an intention to bring up for review upon such appeal said judgment, order and decision.

      James W. Verbeck, for the appellant.

      Lewis E. Oawr, for the respondent.
   Mayiiam, P. J.:

Two questions seem to he presented for our consideration on this appeal:

Eirst. Was the defendant guilty of any negligence or breach of duty to the plaintiff’s intestate which resulted in the injury of which, the plaintiff complains %

Second. Was plaintiff’s intestate free from negligence ?

The deceased boarded a train at CoblesMU, which was a through tram from that point to Albany, stopping at no intermediate stations between those two points, and was so designated on defendant’s published schedules and time tables.

After the train left Cobleskill the conductor, in passing through the train collecting the- tickets and fare of passengers, was handed a mileage book by the deceased, and at the same time informed by him that he desired to stop at Quaker Street, an intermediate station, at which that train was not permitted to stop, to which the conductor replied that he did not think that they would stop at Quaker Street; returning in a short time he said: “We will not stop at Quaker Street,” but “ will see.”

The train proceeded on its way until after it passed Central Bridge station, when it was compelled to slow up or stop to allow a freight train going in the opposite direction to pass through a bridge on which there was not sufficient room for two trains to pass, and at this point the conductor said to deceased: “ It is going pretty slow now, and it will be going faster, and you better get off now; that is all I have to say about it,” whereupon the deceased stepped off between the freight and passenger trains, and was hit hy the freight train, and so seriously injured that he died soon after. There was ample space on the opposite side of the passenger car from the freight train for the deceased to have alighted, and thus to have avoided all possible danger of being hit by the freight train, but the evidence does not disclose whether or not he was aware of the proximity of the freight to the passenger car at the time he alighted. It is quite apparent that the defendant in running these trains was acting strictly within the lines of its duty, and that as to the manner of running the same it owed the plaintiff’s intestate no duty or obligation which it did not fully perform.

Conductors in the running of railroad trains are properly held by their companies and the public to the most rigid and scrupulous observance of the rules and orders of the company in the management of their trains.

To have stopped this train in violation of that rule, without authority from the train dispatcher or other officer authorized to control the movement of trains, would have been such a breach of duty as would make the conductor amenable for injury resulting from such violation. Was the deceased misled by the statement of the conductor in his attempt to alight from the train, or coerced into such a hazardous step by the statement of the conductor, and if so, is the company liable for such acts or statements of the conductor ? It was known as well to the intestate as to the conductor, at the time the former left the train, that it was a through train, and that it was not allowed by the defendant to stop to enable passengers to alight after it left Cobleskill station until it reached its final destination at Albany, and that the incidental slowing or stopping for the purpose of allowing another train to pass was not for the purpose of enabling a passenger to alight, and that the conductor had no authority as the agent of the company to stop or slow a train to enable a passenger to alight until the train arrived at Albany, and the statement of the conductor to the deceased, at the time that he alighted, was not the demand or request of the company that the intestate must alight from the train, but simply a statement of the conductor, outside of his official control of the train, that that was the best opportunity intestate would have to leave the train before it reached Albany, and that it was not a command of the conductor as such to intestate to leave the train is evidenced by his concluding remark: “ All I have to say about it.”

It is clear, therefore, that the intestate, of his own volition, and without any fault of the defendant or its employee, and without looking to see what dangers he was about to encounter, carelessly stepped from the passenger car to be hit and almost instantly killed by the train on the next track. In doing this act, for which the company was in no way legally responsible, he took the hazard of the consequences of his negligence, and it cannot now be imputed to the defendant. The defendant had given him no reason to expect that he could leave the train until it reached Albany, and if he saw lit to avail himself of the temporary slowing of the train as his opportunity to alight, we think that the risk of that act was assumed by him.

If we are right in our conclusion that the defendant was chargeable with no negligence or breach of duty towards the intestate, we might stop this discussion here; but if wrong in that conclusion, then we must examine the facts to see whether or not the intestate was free from negligence on his part, or whether he, by his own negligence, contributed to the happening of the injury of which the plaintiff complains. •

It has frequently been held that to alight from or to board a moving train is negligence per se. In Hunter v. The Cooperstown & Susquehanna V. R. R. Co. (126 N. Y. 23) Gray, J., in delivering the opinion of the court, uses this language: “ To alight from or to board a train in motion is a negligent and hazardous act, which can only be made to appear excusable, when in the situation of the person, he is under such a coercion of circumstances as to raise a fair question as to whether he was really in the free possession and use of his faculties and judgment.”

In the same case on a former appeal (112 N. T. 313-315) Peokham, J., in delivering the opinion of the court, put and answered the following question: The important question which arises is, does a man who is sui juris, and in the full possession of his faculties, with nothing to disturb his judgment, act with ordinary care in endeavoring to board a train moving at the rate of from four to six miles an hour ? It seems to me there can be but one answer to such a question. That it is a dangerous, a most hazardous attempt, must be the common judgment of all men. Persons are taught from their earliest youth the great danger attending upon an attempt to board or leave a train while it is in motion, and no person of mature years and judgment but has the knowledge that such an attempt is dangerous in the highest degree.”

In that case, as in this, there was proof that the conductor suggested to the passenger to jump on the moving train, and the court, in disposing of that request of the conductor, says: “ That notification certainly cannot be interpreted to mean more than that the train would not stop or go slower than it was then going, and that if the deceased wanted to take it he must jump on at that moment. That does not alter the highly dcmgerous nature of the act itself. The deceased was in absolute safety at the time the direction was given. It created no emergency which called for the exercise of immediate judgment in the choice between two dangers.”

So in this case, had the deceased remained on the train he would have been in a position of absolute safety.

But when the deceased determined to alight it was his duty to exercise caution in the attempt. If he had looked he would have seen the approaching freight train, and there was nothing to prevent his alighting upon the opposite side of the car from that on which the freight train passed. It was his duty to look and listen before alighting on the track of a railroad away from a depot, when trains were liable to pa¡ss and might be expected at any moment. (Halpin v. Third Ave. R. R. Co., 40 N. Y. Super. Ct. [8 J. & S.] 175-185; Morrison v. Erie R. R. Co., 56 N. Y. 302.)

In this last case it is held that where facts are undisputed, negligence is a question of law. The fact that the approaching freight train could have been seen in time to have avoided the injury had the deceased looked, is undisputed.

If he had looked he would have seen and escaped the danger, and not to have looked under such circumstances was negligence. The judgment must be affirmed, with costs.

Putnam and Herrick, JJ., concurred.

Judgment affirmed, with costs.


author: Mayham, P. J.:

text:
    Thomas M. Scully, Respondent, v. The New York, Lake Erie and Western Railroad Company, Appellant.

      Damages for personal injuries — proof of negligence and absence of contributory negligence is essential to a recovery — the rate of speed of a railroad train is not the subject of expert testimony.

    In an action brought to recover damages resulting from personal injuries sustained by reason of the alleged negligence of a railroad company, it is incumbent upon the plaintiff, in order to recover, to prove aiSrmatively the negligence of the defendant and the absence of contributory negligence on his own part.
    The rate of speed of a railroad train is not purely within the knowledge of experts, and is not, therefore, the subject of expert testimony, and while a witness to give testimony upon that subject must have some knowledge or experience upon the subject, he is not required to have the degree of knowledge peculiar to experts, called upon to testify where expert testimony is required, and to give opinions based upon hypothetical questions.

    Upon the trial of an action brought to recover damages resulting from personal injuries, sustained by reason of the alleged negligence of a railroad company, it was shown that the plaintiff, a passenger on the defendant’s cars, while the same were moving at the rate of speed of from six to ten miles an hour, got down upon the steps of the caboose on which he was riding, and jumped from them to the ground, and falling sustained the injuries of which he complained.
    At the time of the accident the train had passed the station to which the railroad company bad sold the plaintiff a ticket; the conductor of the train stood on the steps at the opposite end of the car, and signaled the engineer to stop, and called to the plaintiff not to alight. The plaintiff saw the signal given, but did not hear the conductor’s warning to him.

      Held, that the proximate cause of the injury was the plaintiff’s alighting from the car while the same was in motion;
    That while the defendant was guilty of a violation of its 'duty to the plaintiff in not stopping its train at the station to which it had sold a ticket to the plaintiff, the plaintiff had failed to show the absence of contributory negligence on his part and could not recover.
    Appeal by the defendant, The New York, Lake Erie and Western Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Sullivan on the 1st day of June, 1893, upon the verdict of a jury rendered after a trial at the Sullivan Circuit, and also from an order made at the Sullivan Circuit on the 24th day of May, 1893, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

      Lewis E. Carr, for the appellant.

      John W. Lyon, for the respondent.

      See 78 Hun, 18.

   Mayham, P. J.:

The principal contention on this appeal is whether the plaintiff was free from negligence, which contributed to the injury of which he complains, in alighting from the car of the defendant while the same was in motion.

It is not denied that the defendant, in not stopping its train at the station to which the plaintiff was ticketed, failed in its duty toward him, but it is insisted that the plaintiff, in alighting from the car while the same was in motion, was guilty of such an act of negligence on his part as to preclude any recovery for injury resulting to him from that act.

The evidence discloses that while the car was in motion, running at a rate of speed variously estimated by witnesses from six to ten miles an hour, the plaintiff got down upon the steps of the caboose upon which he was riding, and jumped from there to the ground, on reaching which he fell and sustained the injury complained of.

At the time of the accident the conductor of the train stood on the steps at the opposite end of thenar and signaled the engineer to stop, by the use of the well-understood and appropriate signal for that purpose, and hallooed to the plaintiff not to alight, which signal the plaintiff saw given, but did not hear the conductor’s warning.

The proximate cause of this injury was the plaintiff’s alighting from the car while the same was in motion. If he had remained upon the car the accident could not have happened. Was his alighting from the car, under the circumstances of this case, negligence? The case does not disclose any coercion of the plaintiff, or apparent immediate necessity for leaving the car at this time, farther than his natural and reasonable desire to alight at the point of his destination, at which his ticket entitled him to be left.

It was in the day-time, and the car had gone about 100 yards past the depot when he jumped from it and received the injury.

This act, unexplained, seems clearly to establish negligence on the part of the plaintiff within a number .of recent adjudications in the Court of Appeals. In Hunter v. C. & S. V. R. R. Co. (112 N. Y. 375) the court say: “ Persons' are taught from their earliest youth the great danger attending upon an attempt to board or leave a train while it is in motion; and no person of mature years and judgment but has the knowledge that such an attempt is dangerous in the highest degree.”

And again, in the discussion of the same case on a subsequent appeal (reported in 126 N. Y. 18), the same court uses this language : “ To alight from or to board a train in motion is a negligent and hazardous act, which can only be made to‘appear excusable when, in the situation of the person, he is under such a coercion of circumstances as to raise a fair question as to whether he was really in the free possession of the use of his faculties and judgment.”

If, after this train had passed the station at which the defendant by its contract was required to allow the plaintiff to alight, he had discovered that it was about to collide with another train, or any other accident had happened to it, so that the life of the plaintiff had been put in jeopardy, and he had under such circumstances jumped from the caj’ and been injured, he would, under such conditions, within the decision above quoted, have been freed from the imputation of negligence, and the defendant, by its negligence in carrying him past the place of his destination, would have been liable. -

Or if, without any fault of his, he had, pursuant to the request or direction of this defendant’s conductor in charge of the train, alighted at this point while the car was in motion, it might not lie with the defendant to insist that the plaintiff was guilty of contributory negligence; at least it would then, within the case of Bucher v. The N. Y. C. & H. R. R. R. Co. (98 N. Y. 121), have been a question of fact, within the language of Miller, J., for the jury to say whether any such directions were given by the conductor as authorized the plaintiff to get off of the cars at that time, or made him chargeable with contributory negligence for so doing.”

But in this case no such conditions were proved to exist. The train was moving on without any apparent danger of accident, and there is no proof that the defendant’s conductor gave or intended to give the plaintiff any direction by word or signal to alight from the car.

It is true that the learned trial judge left it to the jury to determine whether any signal was given to the plaifitiff by the conductor to alight from the car, and if the signal were such that the plaintiff could fairly and reasonably understand that it was intended as a signal from the conductor to him to alight, it would have had the same significance as if words were used. This part of the charge was excepted to by the defendant, and ~we think the objection was well taken. The jury were thus invited or permitted to enter the domain of conjecture and to speculate as to the manner in which the plaintiff might have understood or- interpreted a signal, the significance of which was wholly unknown to him, but which was a well-understood signal between the conductor and engineer of the defendant, and possibly the only one by which the conductor could communicate to his subordinate his wishes or orders in reference to the conduct of the train.

There was no evidence that this signal was intended to influence the action of the plaintiff; on the contrary, the only evidence in reference to the significance of the same was that it was an order to the engineer, and the plaintiff himself does not claim, except by inference, that he understood it as a signal to him to alight, while it clearly appears from the uncontradicted evidence of the defendant’s witnesses that the signal with the conductor’s hand spoken of by the plaintiff in his testimony, was to the engineer to stop the train, to which signal the engineer responded by whistling for brakes.

We are inclined to the opinion that the plaintiff in this case, while abundantly establishing the negligence of the defendant in failing to stop at Stockport station, as it was bound to do to enable the plaintiff to alight from the train, has failed to prove the other affirmative proposition equally incumbent on him to authorize a recovery, viz., the absence of contributory negligence on his part, and that for that reason the motion for a nonsuit should have been granted.

We are also of the opinion that it was error to exclude the evidence of the witness Farley as to the rate of speed at which the train was moving at the time of the happening of the accident. He had taken notice of the movements of trains, and had judged their rate of speed, and was, we think, proved to be competent to give an opinion on that subject. The rate of speed of a railroad train is not purely within the knowledge- of experts, and not, therefore, the subject of expert testimony (Salter v. R. R. Co., 59 N. Y. 632; Northrup v. R. R. Co., 37 Hun, 299), and while a witness, to give testimony upon that subject, must have some knowledge or experience upon the same, he is not required to have the degree of knowledge peculiar to experts, called upon to testify where expert testimony is required and to give opinions based upon hypothetical questions. The question of the rate of speed of this train at the time of the happening of this accident was an important subject of inquiry on the trial, and the exclusion of the offered evidence was error.

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

Putnam and Herrick, JJ., concurred.

Judgment reversed, a new trial ordered, costs to abide the event.


author: Putnam, J.:

text:
    Sarah F. Sumner and Another, Appellants, v. Milton P. Skinner and Others, Respondents.

      Ift’audulent conveyance — proof of knowledge by the grantee of the grantor's frcvudulent intent —deed given to secure a loan — purchaser from the grantee protected — a prior judgment creditor is not a proper party to a foreclosure action.

    In an action brought to set aside as fraudulent a conveyance of real estate made by a judgment debtor, it is for the plaintiff to show not only a fraudulent intent on the part of the judgment debtor in making such conveyance, but also that the grantee received the same with notice or knowledge of such unlawful intent.
    When a conveyance, in the form of a deed, is made to secure a loan, so that the interest of the grantee is in fact that of a mortgagee, although he has on the records the apparent legal title, one who, in good faith and for value, purchases the mortgaged premises from such grantee obtains a valid title thereto as against the mortgagor and all other persons.
    'Where a judgment was recovered against the owner of real estate prior to his execution of a mortgage upon the same, the judgment creditor, upon the foreclosure of such mortgage, is not a necessary or proper party to the foreclosure action commenced by such mortgagee, nor is he affected by the decree in that action, as the sale thereunder is subject to his judgment.
    In an action brought by one Sumner to set aside a conveyance of real estate upon the ground that it was fraudulent as to creditors of the grantor, it appeared that the real estate in question was conveyed in 1882 by a warranty deed by-William Yan Yranken to Robert.Clements, to secure an indebtedness owing by Yan Yranken to Clements. In 1883 a judgment was recovered and docketed in. the county in which such real property was situated by Sumner against Van Yranken, who in 1884, having paid the indebtedness to Clements, caused to he executed by the widow and heirs of Clements, who had died, a conveyance of' the property in question to one Skinner, for the purpose of securing an indebtedness owing by Yan Yranken to Skinner.

      Held, that there being an actual, honest indebtedness to Skinner, the conveyance made to Skinner in 1884 was not fraudulent as against Sumner, and that Sumner was not entitled to a judgment setting the same aside.
    Appeal by tbe plaintiffs, Sarab E. Sumner and another, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Schenectady on the 28th day of December, 1893, upon the decision of the court, rendered after a trial at the Schenectady Special Term, dismissing the plaintiffs’ complaint upon the merits, with notice of an intention to bring-up for review on such appeal the exceptions taken upon the trial and the exceptions to the findings and the refusals to find of the court.

      George L. Steelman, for the appellants.

      Jas. O. Bergen and A. J. Thompson, for the respondents.
   Putnam, J.:

This is an appeal from a judgment in favor of the defendants dismissing the complaint on the merits, with costs. The action was brought by plaintiffs, as judgment creditors- of one William Yan Yranken, to set aside certain deeds, alleged to be mortgages, by which said Yan Yranken was divested of all his real estate, which was situated in Schenectady county, and a judgment of foreclosure of one of such mortgage deeds, on the ground that said instruments were made and executed or procured to be so executed by said Yan Yranken, the judgment debtor, with intent to hinder, delay and defraud creditors.

Plaintiffs recovered a judgment against Yan Yranken on the 3d day of January, 1883, which was docketed in Schenectady county, where the defendant resided, on January 6, 1883, and an execution, issued on said judgment on that day to the sheriff of said county, against the property of the judgment debtor, was shortly afterwards returned unsatisfied.

The conveyances alleged in the complaint to have been executed with intent to hinder, delay and defraud the creditors of the judgment debtor, were in form ordinary warranty deeds. One made by the judgment debtor on October 17, 1882, to Robert Clements, conveyed all the real estate of the grantor, which was of large value. The other, executed April 12, 1884, Robert Clements having died intestate, by his widow and heirs, to Samuel Skinner, as executor of Peter Skinner, deceased, conveyed the same premises described in the deed first above mentioned. The last-mentioned deed appears to have been made at the request of Yan Yranken and to secure certain claims against him in favor of the grantee therein. The interest of such grantee under said last-mentioned deed having been transferred to one Milton P. Skinner, an heir of Peter Skinner, deceased, he commenced an action to foreclose said deed as a mortgage, and obtained judgment of foreclosure on the 14th day of December, 1892. This action was commenced on or about January 21, 1893, and the plaintiffs asked to have declared fraudulent and void the two deeds above described, and also that said judgment of foreclosure obtained on the deed last described be vacated and set aside as also collusive and fraudulent.

The trial judge held that the two deeds above described were in fact mortgages, the first to secure certain indebtedness and the payment of certain obligations existing, or to exist, between said Yan Yranken and the grantee Clements; the second deed from the widow and heirs of Clements was also given to secure an indebtedness of said Yan Yranken to the grantee named therein.

He also found that each of said conveyances was made upon a good, lawful and sufficient consideration, and without any notice to or knowledge by the grantees, or either of them, of any intent on the part of Yan Yranken to hinder, delay or defraud creditors.

It was for the plaintiffs to show on the trial not only a fraudulent intent on the part of Yan Yranken in making the conveyance to Clements, and in procuring his widow and heirs to convey to Skinner, but also that said grantees received .their respective deeds with notice or knowledge of such unlawful intent. (Starin v. Kelly, 88 N. Y. 418.)

We have carefully examined and considered the evidence contained in the case, and see no reason to doubt the correctness of the conclusions reached by the learned trial justice that the said two deeds were in fact mortgages, each made upon a good, lawful and sufficient consideration, and without any notice or knowledge on the part of the respective grantees of any unlawful intent on the part of Van Vranken.

As suggested, however, by the trial judge, it is not necessary to consider whether or not the deed from Van Vranken to Clements was made with intent to hinder, delay or defraud creditors, inasmuch as it appears that at the time of and prior to the deed from the heirs of Clements to Skinner, Van Vranken had paid Robert Cléments in full, and fully performed his obligations secured by said mortgage deed, and his heirs claimed no interest under it. Hence, even if the conveyance from Van Vranken to Clements was fraudulent and void, the deed from the heirs of the latter to Skinner, if made upon a good consideration and received in good faith, and without notice of any fraudulent intent on the part of Van Vranken, was valid. (Murphy v. Briggs et al., 89 N. Y. 446.)

It is held that when a conveyance, in form a deed, is made to secure a loan, while the interest of the grantee is in fact that of a mortgagee, yet, having on the records an apparent title, one who in good faith and for value purchases the mortgaged premises from such grantee obtains a valid title thereto as against the mortgagor and all other persons. (See Jones on Mort. § 549 ; Macauley v. Smith, 132 N. Y. 524-532.)

It can hardly be doubted that where a deed is given to secure a loan, the grantee who holds the apparent legal title on the record, at the request of the grantor, may make a valid conveyance of the premises to a third party. Hence, we think the deed from the widow and heirs of Clements to Skinner conveyed a valid title to the premises therein described as a security for loans and advances made by Skinner to Van Vranken. It appearing, as above suggested, that the evidence supports the finding of the learned trial judge, that said conveyance was made for a sufficient consideration, and without any knowledge or notice on the part of the grantee of any unlawful intent on the part of Yan Yranken, the conclusion that plaintiffs have failed to prove facts sufficient to sustain the cause of action alleged in the complaint cannot be overruled. The evidence shows quite clearly that Skinner advanced large sums to Yan Yranken, and we are unable to see any satisfactory evidence indicating a fraudulent intent on his part in taking the conveyance, or any knowledge of any fraudulent intent on the part of Yan Yranken in procuring the execution thereof. In fact it does not appear that the latter had any fraudulent intent in securing the payment of an honest debt.

This action having been brought to set aside, vacate and have declared void the deeds above specified as fraudulent, and made with intent to defraud creditors, and the trial court having on sufficient evidence found that said conveyances were taken by the respective grantees in good faith, and upon a good, lawful and sufficient consideration, it follows that we cannot disturb his conclusion that the-complaint should be dismissed on the merits.

This is not an action like that of Barton v. Lynch (69 Hun, 1) to-have a deed absolute on its face declared a mortgage and for an accounting. Before this action was commenced the defendant. Skinner had claimed that the conveyance of April 12, 1884, was in fact' a mortgage and had obtained a judgment of foreclosure thereon. Nor was it an action like that of Macauley v. Smith et al. (surpra) to have the deed of April 12, 1884, declared a mortgage and the premises subject to the plaintiffs’ lien. Before this action was- . commenced defendant had obtained a judgment of the Supreme Court declaring said deed a 1 mortgage. The said deed was conceded to-have been made as a security for a debt. The object of the action was to have said deed declared void as made and received with an intent to cheat and defraud the creditors of Yan Yranken.

When this action was commenced the defendant Milton P. Skinner had obtained a judgment of foreclosure upon his mortgage deed dated April 12, 1884. Although the Skinner mortgage was in fact a deed, we understand that plaintiffs’ prior judgment became and remained a lien upon the mortgaged premises until the expiration of ten years from its rendition. (Macauley v. Smith et al., supra; Barry v. Hamburg-Bremen Fire Ins. Co., 110 N. Y. 1; Thorn et al. v. Sutherland et al., 123 id. 236; Shattuck et al. v. Bascom, 105 id. 39-43.)

. Therefore, plaintiffs’ judgment lien beiijg prior to the mortgage under which defendant Skinner claimed, plaintiffs were not necessary or proper parties to the foreclosure action commenced by Skinner on his subsequent mortgage deed. Nor were they affected by the decree in that action, as a sale thereunder would be subject to their judgment lien. Of course, if plaintiffs’ judgment ceased to be a lien upon the mortgaged premises prior to the commencement of this action, a purchaser at the sale under the Skinner foreclosure might claim a title to the mortgaged premises free from the lien of such judgment. It was plaintiffs’ misfortune if their judgment had then ceased to be a lien upon the real estate. Possibly they could have protected their rights, if any, under their judgment by issuing an execution under the provisions of section 1252 of the Code of Civil Procedure, and applying to the court to open the judgment entered in the foreclosure action, and to be let in as parties defendant.

¥e are unable, however, to discover from any evidence contained in the case that plaintiffs have any valid grounds to vacate and set aside the mortgage deed executed, subsequent to the rendition of plaintiffs’ judgment, by the widow and heirs of Clements to Skinner, at the request of Yan Yranken, to secure an actual and apparently honest indebtedness of the latter to Skinner, or the judgment of foreclosure thereof.

The judgment should be affirmed, with costs to the defendant .Skinner.

Mayham, P. J., and Herrick, J., concurred.

.Judgment affirmed, with costs to defendant Skinner.


text:
    Emmet M. Fitch, as Administrator, etc., of Jane Ellis, Deceased, Respondent, v. Edward M. McDowell and Another, Appellants, Impleaded, etc.

      Note given, for a pre-existing debt — equities existing between the assignor and assignee of a chose in action — payment by a mwtgagor to a mortgagee by an accommodation note — valid as against an assignee of the mortgagee —foreclosure of a mortgage.

      A note given by a debtor for a pre-existing debt is deemed a payment thereof only when there is an express agreement that it shall be received as such.
    The equities existing between the assignor and assignee of a chose in action, not negotiable, attend the title transferred to a subsequent assignee for value and without notice, the latter taking the exact position of his assignor.
    The knowledge of an indorsee of a note, that it was given for the accommodation of the indorser, where there is no unlawful diversion, does not prevent a recovery thereon by the former.

      A payment by the mortgagor to the mortgagee, on account of the principal due on a bond and mortgage, is valid and binding on an assignee thereof where it appears that the mortgagor did not have knowledge of such assignment, which was not recorded, and that the mortgagee had possession of the bond and mortgage, and that the assignment thereof was by way of collateral security and was afterward destroyed by agreement of the parties thereto.

      A mortgagee received from the mortgagor the note of the latter in payment of a portion of the amount secured by the bond and mortgage. Thereafter he discounted the note at a bank, which had knowledge of the purpose for which such note was given, and subsequently he assigned the mortgage to a person ignorant of the partial payment thereof. It was agreed between the mortgagor and the mortgagee, at the time of the giving of such note to the mortgagee, that the note was to operate as a payment on account of the mortgage only when paid.

      Held, in an action brought by the assignee of the mortgagee for the foreclosure of such mortgage, that the plaintiff therein could only collect from the proceeds of the sale of the property, against which such mortgage was a lien, the amount of the mortgage less the amount of such note;

      Qucere, whether the bank discounting such note could be regarded as the assignee of a portion of such bond and mortgage.
    That the giving of such note, to be applied in payment of the amount secured by the bond and mortgage, did not operate to give the bank discounting the same a right to priority of payment before the payment of the balance remaining unpaid and secured by the bond and mortgage.
    Appeal by tbe defendants, Edward M. McDowell and another, from a judgment of foreclosure .of the Supreme Court in favor of the plaintiff, entered in the office.of the clerk of the county of Clinton on the 28th day of March, 1894, upon the decision of the court, rendered after a trial at the Clinton Circuit before the court, without a jury, with notice of an intention to , bring up for review on such appeal said judgment and decision.
    This action was brought to foreclose a mortgage. The court found that a bond and mortgage was given by the defendant Edward M. McDowell to John H. Whiteside and another, as trustees ; that on February 2,1882, the bond and mortgage were assigned to Andrew Williams, which assignment was recorded on October 5, 1888. In 1886 Williams borrowed of one Jane Ellis $5,000, and, as collateral security, assigned to her in writing such bond and mortgage; on June 20,1888, the assignment of Williams to Ellis as collateral was surrendered or destroyed, and an absolute assignment was given by Williams to Ellis. The bond and mortgage was in Williams’ possession at the time of the assignment thereof as collateral to Ellis, and remained in his possession until the assignment to Ellis made in 1888. The assignment to Ellis of 1888 was recorded October 5, 1888. After the execution and delivery of the assignment of Williams to Ellis of 1886, a note for $1,750 was made by McDowell and delivered to Williams upon the express condition and agreement between them that the note was to apply as a payment of the mortgage only when paid. The note was discounted at the Iron National Bank of Plattsburgh by Williams, and he received from it the proceeds of such discount. At the time of the discount he stated to the cashier of the bank that the note was given to apply on the McDowell mortgage if paid, and if not, he (Williams) would have to take care of it himself. When the note became due it was renewed at the bank by the same parties. McDowell never paid the note, or any part of it, and when it was given he was not indebted1 in any amount to Williams, except the amount of- such bond and mortgage.
    At the time of the assignment of the mortgage to Ellis, and at the time of the giving of such note, Williams was president of such bank, and there was no assignment of the McDowell bond and mortgage to such bank as security for the payment of the note. Jane Ellis had no knowledge of the giving of the $1,750 note, or of any of the facts and circumstances connected with the same or its discount. She paid full value for the bond and mortgage assigned to her, and was a bona fide purchaser thereof. At the time of the execution of the McDowell note, and of the discount thereof, Williams knew of the assignment made by himself to Ellis as collateral to the loan to him of $5,000, and the bank had notice at the time they discounted the $1,750 note that the bond and mortgage had been assigned by Williams to Ellis as collateral.
    None of the avails of the note were used in payment of the McDowell mortgage, and Mrs. Ellis received no benefit from the same.

      T. F. Oonway, for the appellants.

      L. L. Shedden, for the respondent.
   Putnam, J.:

The arrangement under which the mortgagor, Edward M. McDowell, in November, 1887, made and delivered to Andrew Williams the note for $1,750, described in the answer of defendants as a conditional payment on the bond and mortgage in suit, is as valid and binding upon plaintiff as if the assignment by Williams to Jane Ellis, made in 1886 as collateral security, had not been executed. McDowell was not informed of such assignment — it was not recorded. Williams had possession of the bond and mortgage, and, in fact, was authorized to receive payments thereon. (Van Keuren v. Corkins, 4 Hun, 129; 66 N. Y. 77; Kelly v. Bruce, 17 Wkly. Dig. 39.)

Besides, the unrecorded assignment of 1886 was afterwards destroyed, the absolute title to the bond and mortgage revesting in Williams, and the transfer under which plaintiff claims was executed subsequent to the execution of said note and the transfer thereof -to the Iron National Bank of ■ Plattsburgh. It is proper, therefore, to pass on the questions submitted to us as if the note was executed and transferred when Williams was the absolute owner of the bond and mortgage and the assignment as collateral security had not been made. ' ' '

The situation then was as follows : Williams had a bond for the whole amount of the mortgage debt and also a note for $1,750 thereof. If Williams had not, after the execution and transfer of said note, made the assignment of the bond and mortgage to plaintiff’s intestate, and had the foreclosure action been brought by him as a plaintiff, he could not have obtained a decree of foreclosure establishing the mortgage debt without deducting the amount of said note, unless he was ablé to procure and surrender it. (Battle v. Coit, 26 N. Y. 404-406; Burdick v. Green, 15 Johns. 247; Seymour v. Lewis, 19 Wend. 512; Lord v. Bigelow, 124 Mass. 185; Elwood v. Diefendorf, 5 Barb. 398-408; 18 Am. & Eng. Ency. of Law, 176, and authorities cited.)

And this is the case, although it was expressly agreed that the note should only apply as a payment on the bond and mortgage when paid. In the absence of such an express agreement the law would have implied one — would have engrafted such a provision in the contract. A note given by a .debtor for a pre-existing debt is deemed a payment thereon only when expressly agreed to be received as such. (Murray v. Gouverneur et al., 2 Johns. Cas. 438; Van Epps v. Dillaye, 6 Barb. 244-252; Waydell et al. v. Luer, 3 Denio, 410-415; Seymour v. Lewis, 19 Wend. 512.)

A careful examination of the case of Read v. The Marine Bank of Buffalo (136 N. Y. 454), cited by the learned counsel for respondent, will show that the authority does not sustain the position taken by him on the argument. It was held in that case that performance of an impossible thing was not demanded, and the law imported into the contract an exception, and if the paper had been actually lost and he did not know, and could not reasonably be expected to ascertain where it was, or if, knowing of its existence, it was beyond his power to reclaim it by any lawful method of procedure, the defendant would not be discharged from liability, but a recovery could be had by making substantial indemnity at the trial.” No indemnity was tendered by the plaintiff in this case.

Therefore, had Williams remained the owner of the bond and mortgage and brought an action to foreclose it, instead of the plaintiff, he would only have been entitled to a decree establishing the amount of the mortgage debt at the sum secured by said bond, less the amount of the note, unless he could produce and return the note to the mortgagor.

We are of opinion that plaintiff’s intestate acquired no other or superior rights under the bond and mortgage in question than her assignor possessed at the time of the assignment. It is held that “ the equities existing between the assignor and assignee of a chose in action not negotiable attend the title transferred to a subsequent assignee for value and without notice. The latter takes the exact position of his vendor.” (Bush v. Lathrop, 22 N. Y. 535; Green v. Fry et al., 93 id. 353; Hill v. Hoole, 116 id. 299.)

Hence, plaintiff, as against McDowell, the mortgagor (the assignor Williams having transferred the note in question to the Iron National Bank of Plattsburgh, the present owner thereof and of the judgment obtained thereon), being unable to produce and surrender said note, is not entitled to a. decree for that part of the mortgage debt represented by the note. As held in Battle v. Coit (supra), the note given to Williams operated at first as a conditional payment on the mortgage debt, but, being transferred and remaining in the hands of the assignee who had obtained judgment thereon, it operated as an absolute payment on the original consideration as between McDowell, Williams and plaintiff as the assignee of the latter.

The note, therefore, under the circumstances, operating as a payment on the mortgage debt, the Recording Act, which is invoked by respondent, cannot be deemed to apply. Plaintiff’s intestate took the bond and mortgage reduced by the amount of the note in question. The Iron National Bank of Plattsburgh cannot be considered an assignee of a portion of the mortgage debt within the meaning of the Recording Act.

The learned counsel for the appellants assumes that, the Iron National Bank of Plattsburgh having taken the note with notice that it was given to Williams to apply on the bond and mortgage in question when paid, the mortgagor McDowell could have successfully defended the action brought by said bank on said note. That it was in fact an accommodation note, and the bank had notice of that fact.

Granting that when the note in question was discounted by the bank its cashier was informed by Williams that the note was given to apply on the McDowell mortgage if paid, and if not, he (Williams) would have to take care of it himself, as found by the court below, we are unable to see how McDowell could have successfully defended an action upon the note by the bank. Assuming, as claimed by plaintiff, that the note under consideration was accommodation paper, yet, by its terms, the maker, McDowell, agreed to pay two months after its date $1,750 at the Iron National Bank of Plattsburgh, value received. There was no restriction placed upon Williams as to the use of the said note. Therefore, Williams had a right to transfer the note to the bank, and there being no unlawful diversion, the latter could recover thereon as against McDowell. (The Seneca County Bank v. Neass, 3 Comst. 442; Agawam Bank v. Strever et al., 18 N. Y. 502; The Continental Bank of New Work v. Townsend, 13 Wkly. Dig. 295; see, also, Lord v. Bigelow, 124 Mass. 184-189.) The knowledge of an indorsee of a note that it was'given for the accommodation of the indorser, where there is no unlawful diversion, does not prevent a recovery by the former. (The National Bank of Gloversville v. Wells, 79 N. Y. 498.)

It follows that if plaintiff was legally entitled to the decree entei’ed in this case, the mortgagor, McDowell, may be compelled to pay $1,750 of the mortgage debt twice. The note was lawfully transfen-ed by Williams to the Iron National Bank of Plattsburgh; the judgment was lawfully obtained by the bank against McDowell thereon and may at any time be enforced.

We are of opinion that the bank was not chargeable with notice of the unrecorded assignment from Williams to Jane Ellis in 1866, as claimed by respondent. (Merchants’ National Bank v. Clark & Others, 139 N. Y. 314.)

Without discussing other questions in the case, it follows that there must be a reversal of the decree. We are unable to come to a conclusion that will result in the mortgagor’s being compelled to pay a portion of the mortgage debt twice. Probably a proper disposition of the case would be a simple modification of the judgment by reducing the amount found due plaintiff. But as the defendant McDowell so requests, we see no objection to making the following disposal of the case:

The amount secured by the mortgage shall be deemed the amount found due by the decree. Out of the sale of the mortgaged premises plaintiff shall first be paid the amount secured by the bond, less the said note and interest, and also the costs of the action as now in the judgment, and out of the balance of said proceeds, if any, the Iron National Bank of Plattsburgh shall be paid the amount of its judgment recovered on such note.

The transfer of the note from Williams to the bank, operating as a payment as between McDowell and Williams, or his assignee, may have also operated in equity as an assignment of the mortgage security for the amount of the note. But we are unable to say that it could have the effect of giving such equitable assignee the right to a priority of payment before the payment of the legal assignee of the mortgagee.

Let the decree be so modified, with costs of this appeal to be paid by plaintiff to appellants.

Mayham, P. J., and Herrick, J., concurred.

Judgment modified, with costs to he paid by plaintiff to appellants.


author: Putnam, J. :

text:
    James N. Sickles, as Administrator, etc., of Winfield F. Sickles, Deceased, Respondent, v. The New Jersey Ice Company, Appellant.

      Negligence — pi'oof of absence of contributory negligenee — skating on a navigable river — risks assumed — Penal Code, § 429 — duty thereunder of a person cutting ice.

    In an action brought to recover damages sustained by the death of the plaintiff’s intestate, caused by the alleged negligence of the defendant, the burden rests upon the plaintiff to show that the negligence of the deceased did not contribute to the injury, but it is not necessary for him to do so by direct evidence, as the absence of contributory negligence may be inferred from the circumstances or the nature of an accident.
    A person has the right to skate upon a navigable river, which is a public highway, and when so doing is not negligent in assuming that he runs no risk, except the ordinary risk incident to such a highway. He is not, as a matter of law, negligent in assuming that his life will not be imperiled by the gross negligence of parties engaged in cutting ice in omitting to guard their ice cuttings by putting a sufficient fence or guard around the Same, as required by the provisions of section 429 of the Penal Code, until the ice had become safe. The absence of such a fence or guard about a cutting is an assurance'that the ice is at least six inches m thickness.
    Appeal by the defendant, The New Jersey Ice Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Columbia on the 22d day of January, 1894, upon the verdict of a jury, rendered after a trial at the Columbia Circuit, with notice of an intention to bring up for review on such appeal said judgment and the order entered in said clerk’s office on the 22d day of January, 1894, denying the defendant’s motion for a new trial made upon the minutes.

      Franh H. Osborn, for the appellant.

      Gadmam <£¡ Pech, for the respondent.
   Putnam, J. :

The only question which requires consideration is whether on the trial there was evidence produced tending to show the absence of contributory negligence on the part of deceased, which the trial judge was justified in submitting to the jury.

While it was for the plaintiff to show that the negligence of deceased did not contribute to the injury, it was not necessary for him to do so by direct evidence. Absence of such negligence might be inferred from the circumstances or the nature of the accident. Judge Denio, in Johnson v. The Hudson R. R. Co. (20 N. Y. 65-73), uses the following language: “ The jury must eventually be satisfied that the plaintiff did not by any negligence of his own contribute to the injury. The evidence to establish this may consist in that offered to show the nature or cause of the accident, or in any other competent proof. * * * It is not absolutely essential that the plaintiff should give any affirmative proof touching his own conduct on the occasion of the accident. The character of the defendant’s delinquency may be such as to prove, prima facie, the whole issue; or the case may be such as to make it necessary for the plaintiff to show by independent evidence that he did not bring the misfortune upon himself.”

In Hart v. The Hudson River Bridge Co. (80 N. Y. 622) the same doctrine is stated, and it is held that “ where from the circumstances shown inferences are to be drawn which are not certain and uncontrovertible, and as to which persons might differ, it is for the jury to decide.” (See, also, Boyce v. Manhattan Ry. Co., 118 N. Y. 314.)

Under the doctrine established by the above-cited cases was the evidence produced on the trial proper to be submitted to the jury, and from which absence of contributory negligence could be found, or should the trial judge have granted defendant’s motion for a nonsuit? With considerable hesitation I have reached the conclusion that the case was rightfully disposed of by the learned trial judge.

Deceased, when he met his death, was skating on a navigable river. He was rightfully there. (French v. Camp, 18 Maine, 433; Woodman v. Pitman, 79 id. 456; 10 Am. & Eng. Ency. of Law, 861.) He was upon a public highway.

It is said in the opinion delivered by Judge Gray in Turner v. The City of Newburgh (109 N. Y. 301-307), in reference to one traveling along an ordinary highway: “A person using a public highway is not bound to anticipate danger without some notice of a condition of things suggesting a peril of travel. It was for the jury to decide, as matter of fact, whether, under the proofs, the plaintiff conducted herself as a person ordinarily does under similar circumstances.” In Jennings v. Van Schaick (108 N. Y. 530, 531) Judge Finch stated in regard to one passing along a highway : “ She had a right to assume the safety of the sidewalk, and so was not called upon to give attention to her steps until in some manner warned of danger.”' In Pettengill v. The City of Yonkers (116 N. Y. 558-564) the doctrine laid down in the above-cited cases was followed, and it was held that a person using a public street has no reason to apprehend danger, and is not required to be vigilant to discover dangerous obstructions, but he may walk or drive in the day-time or night-time, relying upon the assumption that the corporation, whose duty it is to keep the streets in a safe condition for travel, have performed that duty, and that he is exposed to no danger from its neglect.”

I think to a certain extent the same doctrine should apply to one traveling on the ice on a river highway; that is, that one so traveling is not negligent in assuming that Jie runs no risks except the ordinary risk incident to such a highway. He is not, as matter of law, negligent in assuming that his life will not be imperiled by the gross negligence of parties in omitting to guard their ice cuttings as directed by the statute.

Deceased, at the time of the accident, was lawfully skating on the river. The ice, ordinarily, was of great thickness and perfectly safe for skating. Defendant had cut and removed the ice from three large cuttings, and there was no sufficient fence or guard around such cuttings, as required by section 429 of the Penal Code, which is as follows :

A person or corporation cutting ice in or upon any waters within the boundaries of this State for the purpose of removing the ice for sale, must surround the cuttings and openings made, with fences of bushes or other guards, sufficient to warn all persons of such cuttings and openings. Which fences or guards must be erected at or before the time of commencing the cuttings or openings, and must be maintained until ice has again formed therein to the thickness of at least six inches. Whoever omits to comply with this section is guilty of a misdemeanor.”

The evidence was such that the jury could properly have found that in two of the cuttings the ice was thick enough to bear up a jierson skating, while upon the third opening it was only three-fourths of an inch thick. On this cutting deceased skated, the ice gave way and he was drowned. There was evidence that the ice in all of the three'cuttings was of the same color and appearance.’

The statute above quoted required defendant to make and keep a sufficient fence or guard around its openings or cuttings until the ice was formed thereon at least six inches thick. Although Sickles probably knew that he was skating on a cutting made by defendant it does not appear that he knew that the ice there was only three-fourths of an inch thick; and I do not think he was, as a matter of law, negligent in assuming that the defendant would comply with the statute and keep a fence or guard around the cuttings until the ice had become safe. It was not negligence for him to assume that defendant would not be grossly negligent. The absence of a fence was an assurance to him that the ice was six inches in thickness. It was as if an agent of defendant had been stationed at the place in question and so informed li¿m.

The object of the statute is to prevent the occurrence of such casualties as happened in this case by compelling those taking ice from the river to surround their cuttings with proper guards, so that óiíe on the river, as above suggested, shall run no risk, except the ordinary perils of being on such a highway. ITence, persons skating on the river have the right, without being necessarily negligent, to rely upon the observance of the statute by those taking ice therefrom, and to believe that where there are no fences or guards there are either no ice cuttings, or, if otherwise, that the ice has become six inches thick and safe.

It is probably true, as appellant claims, that deceased knew that he was skating on an ice cutting, but it is not shown that he knew that the ice thereon was unsafe. The absence of the guards and the statute told him that the ice was six inches thick, and was perfectly safe for him to go upon. As one walking along the streets of a city may, without negligence, rely on the assumption that the municipal corporation will perform its duty in keeping the streets safe, so deceased skating on the river could assume that the defendant had performed its duty by complying with the provisions above quoted of the Penal Code.

I think, therefore, that it was, under the circumstances, a question for the jury whether there was any negligence on the part of the deceased. The color of the ice was the same in all the cuttings, and, hence, the color of the part where he lost his life was not notice to him of the danger. If he knew he was where defendant had removed the ice he might, as we have seen, without being negligent, conclude that the ice, four days after defendant had ceased cutting, had formed six inches thick. The facts were all before the jury. It was a case where the inferences to be drawn therefrom were not certain and uncontrovertible, and, hence, they were for the jury to decide.

There was some evidence in the case that deceased was warned by young Yan Yalkenburg not to go on the ice at the place where he was drowned, but it was not clearly shown that Sickles heard the warning. He was shown to be hard of hearing, and, hence, it was a question for the jury to decide whether he did hear it.

I think the evidence, offered and excluded by the learned trial judge, that the fence or guard around the cutting was the same as had been used and maintained by others engaged in the same business, and that no accident had happened before, was properly excluded. The question was whether the fence erected by defendant at the time of the accident was sufficient under the statute. The fact that defendant or others had used a similar guard before would not tend to sliow the sufficiency of the fence. The trial judge could have properly instructed the jury that the guard in question put around the cuttings of defendant was insufficient, under the statute. The learned counsel for appellant calls our attention, among other authorities, to the case of Weston v. The City of Troy (139 N. Y. 281). That case is not a parallel one. There the action was for damages by reason of a fall on a sidewalk, occasioned by a slippery ridge. The plaintiff was a witness on the trial. The accident occurred in the day-time and the ridge, as the case states, ivas plainly visible. The court held that, “ The presumption which a wayfarer may indulge, that the streets of a city are safe, and which excuses him from maintaining a vigilant outlook for dangers and defects, has no application where the danger is known and obvious.” The distinction-between that case and this is clear. In that decision it was not intended to overrule the doctrine stated in Jennings v. Van Schaick (supra), and kindred cases above cited. In Weston v. The City of Troy the obstruction in the street was obvious, and the plaintiff, as a witness or otherwise, was bound to show how she slipped and fell on a ridge plain to be seen in the day-time.

In Jennings v. Van Schaick (supra), and many other cases where the defect in the street was not obvious, it is held that one passing along a highway has the right to assume the safety of the street, and so is not called upon to give attention to his steps until' in some manner warned of his danger. So, in the case under consideration, where the thinness of the ice in the cutting was not .apj)arent, deceased, without negligence, could assume, in skating on the river liighway, that he incurred no risk, except the ordinary ones incident to such a highway, and that the ice in the cuttings around which there was no guards, as required by the statute, was of such a thickness as to render skating thereon safe.

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

Mayham, P. J., concurred; Herrick, J., concurred in the result.

Judgment affirmed, with costs.