text:
    WILLIAM T. COLEMAN and Others, Plaintiffs and Respondents, v. HENRY EYRE, Defendant and Appellant.
    Where, upon the trial, both parties are examined as witnesses on their own behalf, and the effect of plaintiff’s testimony upon a material point in controversy is just the reverse irom that which can be attributed to the testimony of the defendant upon the same point, the case presents, although neither of the parties contradicts the other in express terms, a disputed question of fact, which is to be determined by the referee trying the cause upon all the circumstances surrounding the transaction, and his finding in this respect will not be disturbed.
    An agreement by E. to take one half of the interest of C. in an adventure is a binding contract, which does not require to be in writing, if C. in consequence thereof assumed a risk which he would not have otherwise assumed, or in any manner relied upon the eventual financial cooperation of E. and acted upon the assurance 'thus given. By such agreement the contracting parties are constituted partners, as between themselves, in respect to the adventure, and the agreement to divide the profits always implies an agreement for a corresponding division of the losses, unless the contrary is stipulated or clearly apparent from the mutual intentions of the parties at the time of the making of the agreement.
    But, where E. agreed to take one half of the interest of C. in an adventure which had begun, and after all risk and liabilities which C. ever incurred had been incurred ; where nothing was done or to be done by 0. during the progress of the adventure as a consequence of or induced by E.’s agreement, and where E. neither contributed nor was bound to contribute any thing, however small, towards bringing the adventure to a successful close—held, a mere nudum pactum, and, as such, wholly insufficient to form the basis of any adjudication.
    Before Monell, Jones, and Freedman, JJ.

      [Decided July 2, 1869.]
    This is an appeal from a judgment entered upon the report of a referee in favor of the plaintiffs and against the defendant. The exceptions presented but two questions, namely, first, whether an agreement was entered into between the parties as found by the referee ; and, secondly, whether the agreement so found was a legal and valid agreement. Prior to 1855, the defendant had been interested with the plaintiffs in a venture of coffee to San Francisco, by the ship “ Ritterschaft,” the sale of which was conducted by the plaintiffs, and which resulted in a loss to the defendant. In 1856 an adventure for a shipment of coffee per ship “Versailles,” from Bio to San Francisco, was projected between Kendall & Plympton, owners of the ship, Maxwell, Wright & Co., merchants, of Bio, and William T. Coleman & Co., of San Francisco, the plaintiffs in this action. Kendall & Plympton were each interested in one fourth of that adventure, Maxwell, Wright & Co. in one fourth, and the plaintiffs in one fourth. By the terms of the agreement the vessel was to be allowed freight, and Maxwell, Wright & Co. and the plaintiffs their commissions for purchasing and selling. The defendant was no party to the last-named arrangement; but hearing of it, he, in April, 1857, sought the plaintiffs and asked them that, inasmuch as the venture first referred to had proved unprofitable, they should let him have one half of their interest in the venture per ship “Versailles,” to which the plaintiffs agreed. The defendant testified that, in the course of that conversation which he had with William T. Coleman, one of the plaintiffs, he, the defendant, insisted that the arrangement between them should include commissions and every other benefit to be derived from that venture by the plaintiffs, and that this was assented to. William T. Coleman, on the other hand, without denying this statement specifically, testified that he consented to let the defendant have one half of the plaintiffs’ interest, “ subject to terms of the arrangement of the cargo”

    The referee reported in favor of the plaintiffs, and the defendant appealed.

      Mr. Henry Whittaker for appellant.'
    To establish any cause of action whatever against the defendant, the plaintiffs were bound to show a valid contract binding bim in the premises, and on which an obligation may be predicated.
    FTo such contract has been shown.
    The referee’s decision is evidently based upon the theory that, as the result of the conversation, between Coleman and Eyre, Eyre became a partner pro hoc vice, or a joint adventurer with the plaintiffs in the cargo in question.
    A partnership either general or pro hao vice is entered into for the purpose of some future enterprise, for the common benefit of the participants, a common fund being provided; and, when property is in any manner its subject-matter, it is essential that all those participants should have a common interest in that property (Chase v. Barrett, 4 Paige, 148; Holmes v. United Ins. Co., 2 John. Ca., 329; Post v. Kimberly, 9 Johns., 470; Porter v. McClure, 15 Wend., 187; Smith v. Wright, 5 Sandf., 113; affirmed, 1 Abb., 243 ; Pattison v. Blanchard, 1 Seld., 186). _
    The real transaction between the parties was as follows: The defendant claimed that the plaintiffs had mismanaged a previous shipment by the “ Eitterschaft.” Hearing of the venture by the “Versailles,” he required that the plaintiffs should cede to him a "share of their interest in the amount coming to them under that adventure, as a compensation for his previous loss. He urges it upon them as a duty, and his demand so iu-ged is assented to.
    The true import, therefore, of the cession to him was that of a gift, or of a payment by way pf compensation. In neither aspect can that cession be made the basis of a liability. In the transaction as it occurred, there was neither mutuality nor consideration sufficient to constitute a contract, or on which an assumpsit can be predicated. It was a mere nu&umpactum, from which it was in'the power of the parties to draw back at any time, and in that point of view wholly insufficient to form the basis of any adjudication whatsover (Chitty on Contracts, 15 ; Ingraham v. Gilbert, 20 Barb., 151, and 11 Ad. & Ellis, there cited; Livingston v. Rogers, Coleman & C., Cases, 331; Burnet v. Bisco, 4 John., 235; Utica and Syracuse R.R. Co. v. Brinckerhoff).
    The defendant’s counterclaim was fully sustained by uncontradicted evidence, and it was error in the referee to disallow that counterclaim, and not to give the defendant the full benefit of it upon the accounting, by deducting from the plaintiffs’ recovery $2,170.52, and interest from the 6th day of April, 1858, or otherwise.

      Mr. W. W. Macfarland for respondents.

      “ The court will not interfere with the report of a referee on a question of fact, unless the clear weight of evidence shows that he has erred ’’ (Watson v. Campbell, 28 Barb. S. C., 421).
    The decision of the referee upon the question of fact is manifestly right.
    The agreement was a legal and binding one.
    The consideration is legal and sufficient. It is the consideration on which all contracts of copartnership rest.
    It is no objection that the contract was not in writing; such contracts are not required to be in writing (3 Kent’s Com., side page 26).
    While it is conceded that Eyre could not, by an agreement with Coleman alone, be clothed with all the rights of one of the original partners, and thus become in the strict and technical sense a partner, it is certainly true that, as between himself and Coleman, Eyre could, as he did, become a partner with Coleman & Co. in respect to their share, and as such obtain the right to require them to account, and be himself liable to account to them (Tudor’s Leading Mercantile Cases, 336 ; Exp. Barrow Rose, 225; Sir Charles Raymond’s Case, B. Rose, 225 ; Bray v. Fremont, 6 Madd., 5; Goddard v. Hodges, 1 Crompt. & Mees., B., 34; Tyr., 209; 6 Howard U. S., 122; 7 Pick. Mass., 238 ; Collyer on Part., sec. 194).
   By the Court:

Freedman, J.

It appears from the evidence that neither of the parties contradicted the other in express terms as to the expressions testified to by them in the course of such conversation, and it has been therefore very ingeniously argued, on the part of the appellant, that the referee erred in not giving effect to the testimony of both parties. I cannot conceive, however, how or in what manner the referee could have done so. The effect of Coleman’s testimony was just the reverse from that which could be attributed to the testimony of the defendant; the referee, therefore, had to choose between Coleman’s version and that of the defendant; it was a disputed question of fact, and the referee, after taking into consideration all the other circumstances surrounding the transaction, decided that the agreement was made as testified to by Coleman. On examination of the whole testimony it does not appear that this decision is against the evidence, and for that reason the finding of the referee upon this point cannot be disturbed (Watson v. Campbell, 28 Barb. S. C., 421).

The main question, therefore, to be determined is, whether the agreement, as found, was a legal and valid agreement, upon which the defendant can be held liable to pay one half of the losses sustained by the plaintiffs on that venture, irrespectively of the commissions earned by them. If it was, the defendant in consequence of said agreement became, as between himself and the plaintiffs, a partner with them in respect to their share. It is true that the defendant could not, by an agreement with the plaintiffs alone, be clothed with all the rights of one of the original partners in the adventure, and thus become in the strict and technical sense a partner. But this was not necessary. If he agreed with the plaintiffs to take one half of their interest, to hold them responsible for one half of the profits, and to hold himself liable to assume one half of the losses, and the plaintiffs relied and acted upon it and changed their position in consequence of that assurance, it was a binding contract which did not require to be in writing (3 Kent’s Com. [10th ed.], p. 26; Smith v. Tarlton, 2 Barb. Ch., 336), for under no circumstances can the said agreement be considered and treated as a contract for the sale by the plaintiffs to the defendant of one half of their interest in the profits of that adventure. In general, if there be an agreement to enter into business or some particular transaction together, and share the profits and losses, this constitutes a partnership between the contracting parties, which is just as extensive as the business proposed to be done, and not more so, and the parties may agree to share the risk and profits in whatever proportions they choose (Parson’s Mercantile, Law, p. 165 ; Vassar v. Camp, 14 Barb., 341; Hodgman v. Smith, 13 Barb., 302 ; Fitch v. Hall, 16 How., 175). There may be a partnership in the goods of a particular adventure, or it may be confined strictly to the profits thereof (Story on Partnership, sec 27, and cases there cited; 6 How. U. S., 122). It is not necessary that the capital should be jointly owned, nor that there should be a community of interest in the property out of which the profits are to arise; it is sufficient if there is a community of interest in the profits and losses (Vassar v. Camp, 14 Barb., 341; Smith v. Wright, 1 Abb., 243). In such case the partnership merely uses and employs the property owned by one of the partners (Penny v. Black, 9 Bosw., 310; Champion v. Bostwiek, 18 Wend., 182).

It consequently was not strictly necessary that the defendant should' have contributed funds towards the adventure. If he agreed to take one half of plaintiffs’ interest in the expectation of deriving a benefit therefrom, although he did not engage in express terms to assume any portion of the loss, if any should happen, he could not escape that liability in case the plaintiffs in any manner acted upon his agreement, and assumed a risk in consequence thereof which they would not have otherwise assumed; for a valid agreement to divide the profits of a business or adventure always implies an agreement 'for a corresponding division of its losses, unless the contrary is stipulated, or clearly apparent from the mutual intentions of the parties at the time of the making of the agreement. If, therefore, in case of success the defendant could insist upon the receipt of his full share of the profits under the agreement, it would be manifestly unfair, after the occurrence of a loss, to permit him to claim that there was neither mutuality nor consideration sufficient in the agreement to hold him to it.

It is therefore highly important, in the case under consideration, to determine whether, in case of a successful determination of the adventure, the plaintiffs, in case of then* refusal to account to the defendant for his share of the profits, could be compelled to account. If the agreement in question had been made before the plaintiffs went into the adventure, there is no doubt that they could be so held. In such case the presumption would arise that the plaintiffs relied upon the eventual financial cooperation of the defendant, and assumed the risk in the expectation that in case of loss the defendant was bound to stand one half of it. An assurance to this effect might have enabled the plaintiff to enter into an adventure requiring twice the amount of their available means, and after having acted upon that assurance, and gained a success by means thereof, the law would hold them to their bargain, although the defendant did not contribute any tiring beyond his name and credit.

But the case under consideration is entirely different. The adventure had been entered into between the plaintiffs and other parties, and had begun, and all risk and liabilities which the plaintiffs ever incurred had been incurred by them at the time the conversation took place between Coleman and the defendant. The plaintiffs were under no obligation to permit the defendant to share in the enterprise, and the defendant parted with no consideration whatever for being allowed to come in. He contributed absolutely nothing towards bringing the enterprise to a successful close. Nor was any thing done or to be done by the plaintiff during the progress of the adventure as a consequence of, or induced by, any act or declaration of the defendant. What they were bound to do, and what the plaintiffs subsequently did, in and connected with the sale of the cargo of the Versailles, was entirely and exclusively in fulfilment of a previous duty owed by them to Kendall & Plympton and Haxwell, Wright & Go, their co-adventurers, under the agreement by which the adventure was projected and regulated, and for the benefit of the parties to that agreement. ' To constitute the plaintiffs and the defendant partners or joint adventurers, as between themselves, it is absolutely necessary that the defendant should have contributed something, some service, however small, some facilities, however slight, towards bringing the adventure to a successful close (Story on Part., sec. 15). As lie has done nothing of the kind, a constituent and essential element of a partnership is entirely wanting in .this case, and the plaintiffs’ verbal promise to let the defendant have one half of their interest, not being supported by any consideration received therefor, was not binding upon them in case the enterprise proved a success. This being so, an agreement on the part of the defendant to make good one half of any loss which might occur cannot be implied by law. The conversation between Coleman and the defendant, hereinbefore referred to, was therefore a mere nudum pactum, and as such wholly insufficient to form the basis of any adjudication whatsoever (Ingraham v. Gilbert, 20 Barb., 151; Burnet v. Bisco, 4 John., 235; Smith v. Ware, 13 John., 251).

The judgment appealed from should be reversed, the order of reference vacated, and a new trial ordered, with costs to the appellant to abide the event.


source: Caselaw Access Project

author: Freedman, J. Monell J.

license: Public Domain

text:
    CHARLES ROCKWELL, as Receiver of JAMES E. FARRELL, Plaintiff and Respondent, v. JOHN G. MERWIN, Defendant and Appellant.
    A receiver of the property of a judgment debtor, regularly appointed as snch, unless restricted by special order of the court, possesses general power to sue for and collect the debts due to the judgment debtor in any court having jurisdiction over the subject-matter of the action. Upon the trial of such action it is not necessary for him to show affirmatively that the order of his appointment has been actually recorded.
    A private account kept between the judgment debtor and defendant in one of the books of the defendant, and containing, with one exception, all the debit and credit items between the parties, to which defendant had never objected, is admissible in evidence in an action brought by the receiver for the purpose of showing the state of indebtedness between the judgment debtor and defendant.
    Where, upon a trial before a referee, a portion only of the accounts existing between the parties is put in evidence in support of a counterclaim for a wrongful conversion of funds, which is denied by the plaintiff, and there is other evidence tending to show that the truth could be readily ascertained by a production of all the accounts, and that they are in the possession of the defendant, the referee, upon defendant’s failure to produce them, will be held justified in finding that the counterclaim was not proven.
    Before Monell, Jones, and Freedman, JJ.

      [Decided July 2, 1869.]
    This case was tried before a referee. The action was brought by the plaintiff as receiver, &c., of Janies E. Farrell to recover against the defendant the sum of $625 for work, labor, and services as superintendent of the Milford Hotel. Upon the trial the plaintiff moved to amend his complaint so as to aver that the plaintiff was “duly” appointed receiver, &c. The referee granted the motion, and defendant excepted. Defendant’s counsel objected to the admission in evidence of the order appointing the plaintiff receiver, on the ground that it was never recorded, as required by statute, in the office of the Clerk of the City and County of New York. The referee admitted the game in evidence, and the defendant excepted. The referee allowed in evidence Farrell’s account of the receipts and expenses of the hotel as kept by him, to which ruling the defendant excepted.
    The referee found in favor of the plaintiff, and defendant appealed to the General Term. The facts of the case fully appear in the opinion of the Court.

      Mr. Elbridge T. Gerry for appellant.
    There is no allegation of any recording of the order of appointment of the receiver, and the objection is not cured by the allegation that he was, by an order duly made, duly appointed, for the reason that the registration can alone give vitality to the order, and takes place after the order is duly made (Code, sec. 298).
    These objections were not cured by answer, for the reason that the Code expressly exempts them from waiver (Code, sec. 148 ; Delafield v. Wright, 3 Sandf. R., 746).
    The only evidence to sustain thé complaint was Farrell’s statements made from the boo7cs; all of which were not then produced. So that the referee was not warranted in finding for the plaintiff, if no evidence had been produced by the defence, because the whole accounts were not before him.
    The referee erred in allowing the amendment to the complaint ; also in admitting Farrell’s book of accounts in evidence; also in not dismissing the complaint; and also in not allowing defendant’s counterclaim.

      Mr. Abner C. Thomas for respondent.
    Before the Code, all that it was necessary for a receiver to aver was, that on a certain day, at a certain place, by a certain court, he was appointed a receiver. The complaint contains all of these allegations (Gillett v. Fairchild, 4 Denio, 82).
    The motion to strike out the witness Farrell’s accounts was frivolous. In so far as it concerned the transactions had between Farrell and the defendant, with- regard to Farrell’s earnings, it was entire and unmutilated. It had been stated between Farrell and the defendant, and its correctness had been repeatedly admitted by part payments of the amount shown to be due.
    It is not denied that Farrell performed the services alleged in the complaint, and, unless he was guilty of a fraud, it is conceded that he was never paid for said services. That being the case, the¡presumption of honesty arises in favor of Farrell, and the burden ofproof is thrown upon the defendant.
    Although the bill of particulars contains a long list of claims given with apparent accuracy, not one single item in it is to be found in either of the books which are in evidence. The conclusion is irresistible that the defendant had control of the books in which such entries were made, and designedly secreted them.
    It is not claimed that all the books of the hotel were produced on the trial.
   By the Court:

Freedman, J.

The complaint, as amended, is sufficient, and the amendment was a matter of discretion for the referee. His decision upon this point, haying been made in the exercise of proper discretion, will not be interfered with. In the absence of evidence to the contrary, the jurisdiction of this court in the case under consideration will be presumed.

The evidence adduced before the referee was sufficient to authorize him to find that the plaintiff was duly appointed receiver, and that the provisions of section 298 of the Code, relative to the filing and recording of the order of appointment, were sufficiently complied with to enable the plaintiff to maintain the action.

Having been regularly appointed receiver of the property and effects of the judgment debtor, lames E. Farrell, and not being restricted by special order of the court, the plaintiff possessed a general power to sue for and collect the debts, demands, &c., &c., of such judgment debtor, in any court possessing otherwise jrn-isdiction over the subject-matter of the action, and therefore had an undoubted right to come into this court.

Nor can I discover that the referee erred in admitting in evidence the private account kept by James E. Farrell between himself and the defendant. It was kept in one of the books of the defendant, to which the latter always had access, and which, on Farrell’s departure from the hotel, were all turned over to defendant’s father; it contained, with one exception, all the debit and credit items between the parties, which are now conceded to have been made on the days of the dates of the entries, as the transactions occurred; and it was shown that the last statement of the said account was made to the defendant about one month before Farrell left; that the statement was made from this book, and agreed with the entries, and that the defendant never objected to it. It was, therefore, competent evidence, tending to show the true state of indebtedness between Farrell and the defendant; and I cannot perceive for what reason the plaintiff should have been required to produce other books and accounts, which had nothing to do with establishing plaintiff’s cause of action. Upon the whole evidence, I think it is clear that the plaintiff sufficiently proved the cause of action set forth in his complaint, and the referee was right in refusing to entertain defendant’s motion for a dismissal of the complaint, upon the ground that there is no legal evidence to sustain the allegations.

These remarks dispose of all the points raised upon this appeal, with the exception of such as relate to the counterclaim interposed by the defendant in this action. The defendant claims that during the time Farrell had charge of the hotel, he had control of the receipts and disbursements of the same; that the receipts largely exceeded the disbursements ; that Farrell must have appropriated a large portion of the receipts to his own use and benefit, amounting to about $12,000, for which sum the appellant claims the referee should have awarded judgment to him. To establish this counterclaim, the defendant, on the trial, produced only a portion of the books and accounts kept by Farrell, although he admitted that there were others, for the non-production of which he failed to give any reason; arid although required by notice, served previous to the trial, to produce all books and accounts, he wholly failed to produce the.journal, which, according to Farrell’s testimony, contained a perfect record and chain of all his transactions.

The defendant seems to rely principally, first, upon the fact-that the partial accounts which he did produce do neither balance nor show any entries of the daily receipts of the bar, which several years prior thereto, and while the hotel was in the-hands of another proprietor, averaged $535 per month during the regular boarding season, and for, which the defendant claims to recover at that rate for several years, without making any allowance or reduction for any falling off during the dull season; arid, second, upon a statement alleged to have been made by Farrell, which, however, is denied by the latter, to the effect that at the end of the boarding season of 1867, he, Farrell, expected to be able to pay off all the debts of the hotel, but that, notwithstanding this representation, the debts of the hotel in October, 1867, amounted to about $3,000. This evidence is clearly insufficient to establish the serious charge made by the defendant against Farrell. It appears, however, further, that the partial accounts 6> produced by the defendant are also defective in not containing any items for moneys paid out by Farrell in defraying the running expenses of the hotel, that Farrell had the right to use the receipts for the purchase of goods for the use of the hotel, and that no other funds were ever furnished to him for that purpose, and that defendant’s father-in-law and the family of the latter were supported by Farrell out of the proceeds of the hotel during the whole period of Farrell’s employment, without-Farrell receiving any pay or - service therefor. According to defendant’s own testimony, he sat down with Farrell every Sunday, talked the receipts of the hotel over with him, and the books were there. Farrell testified that when he left the hotel he left all the books there, and that these books, if produced in full, will give a correct statement of what was done with all the moneys received by him while in charge of the hotel; that the defendant had never accused him of being dishonest, and had never claimed to have any demand against him until he, the defendant, interposed his answer in this action; but that, on the contrary, the defendant, at a meeting of the creditors of the hotel held in October, 1867, admitted Farrell’s claim to be just and unpaid, and upon this point Farrell is fully corroborated by two disinterested witnesses. Under these circumstances, the referee was fully justified in finding that the defendant’s allegations to the effect that the receipts of the hotel exceeded the disbursements, and that Farrell appropriated to his own use any sum whatever belonging to the defendant, had not been proven. The referee also found that Farrell received the sums -of money charged in the defendant’s bill of particulars, and that said sums of money were paid out by him in the business of the defendant and for defendant’s benefit. Ho exception has been taken to this finding, and it is therefore unnecessary to inquire into the sufficiency of the evidence adduced in support of it.

In my opinion, no error has been committed by the referee upon the trial of this action, and the judgment appealed from should be affirmed, with costs.

Monell J.

(concurring). I concur in affirming the judgment, but do not concur in the opinion that it was not error in overruling the objection to the sufficiency of the evidence of the plaintiff’s appointment as receiver. The appointment was controverted by the defendant, and as the rcording .of the order of appointment was necessary to vest the receiver with the right of action against the defendant, it was incumbent on him to show such recording, not for the purpose of establishing his legal capacity to sue, but to show the transfer to him of the cause of action, inasmuch as the receiver is vested with the property and effects of the judgment debtor from the time of the filing and recording of the order.

But as proof was furnished, on the argument of the appeal, of the due filing and recording of the order, the error at the trial is cured. Such proof was admissible (Bank of Charleston v. Emerie, 2 Sandf., 718).

The respondent should not have costs of the appeal.


author: Fithian, J. Barbour, C.J.

text:
    FREDERICK HADENCAMP, Plaintiff and Respondent, v. THE SECOND AVENUE RAILROAD COMPANY, Defendants and Appellants.
    When a person is received as a passenger and his fare taken, it is not negligence per se for such person to stand upon the front platform of a street car, provided there is no room for him elsewhere. '
    A carrier of passengers is bound to use all the care and prudence that human foresight can suggest to carry his passengers safely in the mode and manner he undertakes to transport such passengers. He is bound to furnish safe and comfortable vehicles, and comfortable and safe places thereon for the passengers. If a passenger, received as such, take and occupy as secure a seat or position as is open to him on the boat, car, or vehicle in which he is permitted to take passage, and is injured by the negligence of the carrier, the passenger is not chargeable with negligence for being in a more exposed position than other passengers, provided he conduct himself with ordinary care in the place where he is. Ordinarily, when the facts are undisputed, negligence is a question for the court, and should not be left to the jury.
    Before Barbour, C.J., Jones and Fithian, JJ.

      [Decided October 30, 1869.]
    This was an action to recover damages for injuries sustained by plaintiff in consequence of being thrown or falling from the front platform of one of defendants’ ears, under the wheels, and being so injured as to require amputation of one of his legs.
    On the trial before Mr. Justice Jones and a jury, the plantiff testified, in substance, among other things: That shortly after six o’clock p.m. of the 18th July, 1864, at the corner of First street and Second avenue, he got upon the front platform of one of defendants’ horse-cars for the conveying of passengers, for the purpose of riding to his residence on Thirty-fifth street; that the car was standing still when he got on, as they were changing horses; that the car was full of persons inside, so that he could not get inside, and there were persons also on the platforms outside. The rear platform was crowded, and there were four or five persons on the front platform. The plaintiff stood (as he says) on the front platform, with his back to the front of the car, with his hands behind him, holding on to a hand-rail across the front end of the car. After the car started, and while thus riding, the conductor came and took his fare as a passenger. That between Eleventh-and Twelfth streets the car ran over something on the track, by the shock of which plaintiff lost his hold, was throvm from the platform, and fell with one foot under the car-wheels, so that before he coxild arise both car-wheels ran over his foot and ankle, mashing it- so that amputation became necessary. That defendants were a corporation, and a common carrier of passengers for hire by means of a horse-railroad, xvas admitted. There was evidence that in the car there was a notice posted to this effect: “.All passengers must get on and off the rear platform, and must not get on or off when the car is in motion, or stand on the steps of the car.” There was contradictory evidence as to whether plaintiff saw this notice or not. He says he did not see it on this car, but had seen similar notices on other cars. There was evidence on the part of plaintiff tending to show that the front platform of the car was not in a good or safe condition, but was bent downward toward the track, so that it was more difficult to stand on it than if it were in good order and condition. Evidence on the part of defence was given to contradict this. It xvas substantially agreed, however, that the immediate cause of plaintiff’s being throxvn or falling from the place where he stood was the car running over some obstacle on the track.
    Evidence was given by the defendants to show that the car platform was sound, and in a good and safe condition for all purposes for which it was used, also that the defendants’ railroad track was in all respects safe and in good repair and condition ; and evidence tending to show that the obstacle on the track, the passing over of xvhich, it was claimed, had throxvn plaintiff from the car, was a stone of such small size as actually did, and might, without negligence, escape the attention of the defendants’ driver; and that plaintiff could not well be thrown off by such an obstacle without negligence on his part. And defendants gave further evidence tending to show that at the time of the accident plaintiff was standing upon the step of the front platform, and not on the platform itself.
    The proofs being closed, the justice charged the jury, among other matters hereinafter stated:
    First—“ That to entitle the plaintiff to recover, there must be negligence contributing to the injury on the part of defendants, without any negligence contributing to it on the part of the plaintiff.” That if defendants were free from negligence, or if there was negligence on both 'sides contributing to the injury, there could be no recovery. That the defendants were required to “ use all such means as human foresight and prudence can suggest for the preservation of the passenger, when carrying him according to the mode in which they undertake to carry him,” The justice left it to the jury to determine whether the injury was caused by a defective platform or running over a stone. That if the former, and the defect was known to the company, it was negligence. If by the latter, it was for the jury to say whether proper care was taken by the company to protect the passenger from such a cause.
    There were various requests to charge, and exceptions to the refusal, and exceptions to the charge as made, which are noticed in the opinion of the Court. There was a verdict for plaintiff. A motion was made at Special Term for a new trial, which was denied. Judgment was entered upon the verdict. The defendants appealed from the judgment ánd order.

      Mr. John Slosson for appellants..
    The verdict is against the weight of evidence, and the judge at Special Term should have granted a new trial.
    It was negligence in the plaintiff to have put himself and to have remained in that precarious position on the step, especially as he swears himself that the platform “ was bent down when he got on.” If was a rash, foolhardy thing to be done. It was contrary to the rules of the company, which he knew, or was chargeable with the knowledge of. He was not sent there by the conductor, as was the case in Sheridan v. Brooklyn City R.R. Co. (36 N. Y., 39).
    The motion for a nonsuit should have been granted when the plaintiff rested. After the defendants’ proof was in, the complaint should have been dismissed.
    It was error in the judge to admit in evidence the declarations of Hoffman to the driver. Hoffman was not the plaintiff, and these declarations were made before the accident happened, and were not evidence of the fact of the injured condition of the platform, and could in no respect bind or affect the defendants.
    The Court erred in refusing to charge that, if the stone upon the track was of such a small size as to escape the observation of defendants’ driver, the defendant was not guilty of negligence in driving over it; that the plaintiff must affirmatively make out his case—-unless he does so, there can be no recovery; that it was negligence on plaintiff’s part if, contrary to the rules of defendants, he stood upon the platform.
    All that part of the charge which left to the jury to determine whether taking fare from the plaintiff extended over him, while standing on the platform or step, the protection which the company were bound to extend to an inside passenger, was erroneous.

      Mr. Ira Shafer for respondent.
    The plaintiff’s negligence did not contribute to produce the injury in judgment of lam, and the motion for a nonsuit on that ground was properly denied. The evidence showed a clear case of negligence on the part of the defendants, when the plaintiff rested. The plaintiff’s standing on the platform, or on the steps thereof, was not joer se negligence (6 Duer, 383 ; Willis Case, 32 Barb., 402; Willis Case, 34 N. Y., 670).
    Hone of the exceptions to the admission or rejection of evidence were well taken. Hotice to the driver of the condition of the platform of the car was clearly admissible. The motion for a nonsuit was properly denied; there was no negligence on the part of the plaintiff, contributing to the accident; the defendants’ negligence was clearly established when the plaintiff rested, and afterwards by the other evidence; the judge committed no error in his charge to the jury, or in his refusal to charge as requested; no error was committed in the admission or rejection of evidence; and the damages are not excessive (Collins v. Albany and Sch. R.R. Co., 12 Barb., 492, 499).
   By the Court:

Fithian, J.

In the progress of the trial in this case, a witness on the part of the plaintiff testified that when, or at the place where, plaintiff got upon the platform of the car, there was a change of horses, and that the (¡earn there fastened to the car became unmanageable, and so acted as to break or damage the front platform of the car, and render it insufficient to support the weight then and afterward suffered to get upon it. This witness was permitted, under objection from defendants’ counsel, to state that he called the attention of the car driver to this injury, and told him that he “ would have to get a new platform before he could get up, for that one was in a bad condition.” This evidence was excepted to by defendants’ counsel, on the ground that it was the declaration of a third person, for which defendants were in no way responsible. I am of opinion this exception is not well taken. It was certainly proper and material for the plaintiff, if he could, to prove that the platfrom was in a bad and unsafe condition, and that that contributed to the injury. And it was equally proper and material to bring notice of that defect to the defendants’ agent, the driver. True, this statement did not of itself prove the fact of any defect in the platform, but the same witness had before sworn positively to its bad condition. The declaration was proper by way of notice to the company.

By orders of defendants, it was the duty of car conductors, when an accident happened, to make immediate report thereof to the superintendent. The conductor in this case made such report, which was offered in evidence by the defendants and excluded. This ruling was correct. The report was an ex parte declaration made by the defendants, not in the presence or hearing of plaintiff, and to the correctness of which he in no manner acquiesced. Allowing such statements in evidence would he permitting a party litigant to manufacture testimony in his own behalf by his own unsworn and ex parte statements.

The defendants’ counsel, at the conclusion of the charge, requested the justice to charge that if the stone upon the track was of such small size as to escape the observation of the driver, it was not negligence to drive over it. The justice declined to charge in these words, and I think correctly. The court had already charged the jury that if they should find that the plaintiff was thrown from the car in consequence of its running over the stone, and he was not guilty of negligence in standing where he was at the time of the accident, then it was for the jury to say, upon the evidence, whether the defendants exercised all the care that was requisite to carry the plaintiff safely. This in effect left to the jury all questions in respect to the alleged obstruction on the track, whethef there was any such obstruction, and if so, what it was, and how large, and whether it was negligence not to have seen and removed it. The defendants were permitted to obtain, if they could, the verdict of the jury in their favor, not only on the facts, but the conclusion as well. If there was any error in this respect, it was in favor of the defend' ants. If plaintiff had so requested, it would have been the duty of the judge to have charged that, if the jury found the plaintiff was thrown from the car by reason of its running over an obstruction on the track, sufficient to produce the concussion or shock sworn to by plaintiff’s witnesses, the existence of such an obstruction, and colliding with it, was negligence on the part of defendants.

The principal questions discussed on the argument, however, were whether the plaintiff was or not free from negligence on his part, and whether the justice at the trial erred in his charge, and refusals to charge as requested by defendants’ counsel, on this subject. The defendants’ counsel requested the justice to charge, in substance, as follows: 1st. That if the jury should find plaintiff was standing upon the steps of the car at the time of the accident, he could not recover. 2d. If the defendants had knowledge of th^ notice to passengers posted inside the cars, then he could not recover. 3d. It was negligence on the part of the plaintiff if, contrary to the rules of defendants, he stood upon the platform. The justice refused to charge in these respects other than he had already charged. He had and did charge in these respects in various forms of expression, but substantially as follows: That the jury must ascertain in what way this company undertook to carry passengers, whether seated inside, or both seated and standing inside only, or whether it undertook to carry inside and out, and on the platform, wherever the passenger could find sitting or standing room.” If the former only, then the company was bound to such care only as was sufficient to prevent an inside passenger from being injured; and in such case, if the ■ jury shall find the accident was not such as to harm an vnside passenger, there was no negligence on the part of defendants sufficient to entitle plaintiff to recover, unless the conductor, by the act of' taking fare from the plaintiff, extended the contract of the carrier to the postion in which the plaintiff stood at the time he paid his fare; and that the jury must come to the conclusion that the contract was so extended, in order to justify a verdict for the plaintiff.”

And further the justice charged: I shall charge tiffs- proposition to you: H you find that this injury occurred to the plaintiff by reason of his standing upon the front platform, or on the step of the front platform; that it would not have occurred to him if he had not been standing there ; that his standing, there was an act of negligence on his part; and that taking his fare from him while he was standing in that position did not extend to him the same protection which was given to the passengers inside of the car, or, in other words, did not relieve him from the responsibility which would otherwise have rested upon him in conse-: quence of his own negligence in standing where he did, you will have to find a verdict for the defendants. " If, on the other hand, you find that there was no actual negligence on the part of the plaintiff in standing on the front platform, or the steps of the front platform, whichever it was, or, if there was actual negligence, the conductor, hy taking his fare, deprived it of that character, and extended over the plaintiff the same right to protection as was enjoyed hy inside passengers, you will then proceed to inquire whether defendants were guilty of negligence,” &c. And in conclusion, and by way of reiteration, the justice charged: “ I will conclude by again calling your attention to the salient points presented by the testimony, which are: That the defendants are bound to use all the care and prudence which human sagacity and foresight can suggest, for the purpose of preventing injury to their passengers, carried in the way in which they undertake to carry them. That is the first general proposition. The second is to ascertain in what manner the defendants undertook to carry their passengers, whether inside the walls of their cars, or inside of the walls and outside on the platform, indiscriminately. If they only undertook to cany them inside of the walls of their cars, then they are only required to use that prudence and foresight which are necessary to prevent injury to their passengers so inclosed within those walls. If you so find, you will render your verdict for the defendants ; that is, if you find that they used such foresight and prudence as I have mentioned, as the law thus laid down requires from them, to prevent the occurrence of an accident to a passenger inside of the car; unless you also find that the conductor of the car, by taking fare from the plaintiff, standing where he did, cast over him by that act the mjis of the law, giving him the same protection as was given by law to the passengers who were inside of the car. If by that act the conductor did extend to the plaintiff that protection, the defendants were bound to use such care and prudence as human foresight and sagacity could suggest, to prevent such an accident as this from inflicting an injury upon a passenger standing where the plaintiff stood.”

These portions of the charge were excepted to'by defendants’ counsel, and it was contended on the, argument that the justice erred in leaving it to the jury to determine any thing in respect to the character of the contract of passage between plaintiff and defendants, or the act of taking fare by the conductor, and that the justice should have charged as matter of law that standing upon the front platform, or the steps thereof, was of itself negligence on the part of the plaintiff; or if not, then if knowledge of the notice to passengers posted inside the car was brought home to plaintiff, that made it negligence in plaintiff to get on or stand on the front platform.

I am clearly of opinion that if there was any error in the rulings of the justice in these respects, it was an error in favor of the defendants. Questions of negligence being always, when the facts are in dispute, mixed questions of law and fact, it is difficult, in the hurry of a trial at nisiprius, clearly to discriminate between those elements of the question which are purely legal, to be determined by the court, and those which are matters of fact or conclusions of fact, to be determined by the jury. So, in this case, the justice submitted to the jury several matters which I think he should have decided as matters of law, in favor of the plaintiff. The case of Clark v. Eighth Av. R.R. Co. (36 N. Y., 135) is, in most respects, analogous to this case. There the plaintiff stood upon the steps of the front platform, the car being so crowded that he could not procure a safer position. He was permitted to stand there by the driver, and the conductor received his fare while thus standing. The Court of Appeals held that under such circumstances it was not negligence in the plaintiff thus to stand; and having been injured by the fault of the defendant while there, he could recover.So, in the case of Edgerton v. The Harlem R.R. Co. (39 N. Y., 227), the plaintiff took passage and paid fare in a caboose ” car, attached to the end of a freight train, concededly not an ordinary passenger car, nor used for carrying passengers, and not as strong or as safe as the cars used exclusively for carrying passengers on the regular passenger trains. The plaintiff was injured while in this caboose,” by its being thrown from the track, and partly broken in such a manner as would not , probably have occurred to a stronger and heavier passenger car. It was objected by the company that it was negligence in the plaintiff to take passage in that car; that he had not, therefore, the rights of a passenger, and rode at his peril. The court held otherwise; that, the servants of the company having received the plaintiff in the car and taken his fare, he was entitled to all the rights of a passenger, and the company were bound to carry him as safely as if in their ordinary passenger cars. That is, the company were bound to take such care as that the passenger should by no means sustain injury through any fault or neglect of theirs, and, if he was so injured, négligence could not be imputed to him for being where he was. Applying these principles to the ease at bar, the justice would have been well warranted in charging the jury as matter of law (waiving for the present the question as to the notice posted in the car) that, upon the undisputed facts in the case, it was not negligence in the plaintiff to stand upon the front platform, or the steps / and that, notwithstanding the position of the plaintiff on the car, the company were bound to carry him as safely as any inside passenger; or, in other -words, the company insured him against sustaining any injury from any fault or neglect of theirs. And that is all that is required of them as to an inside passenger. I say, upon the undisputed facts of the case; for it is not questioned by either party that plaintiff was permitted to get and remain on the front platform or steps, that his fare was collected while there, and that the car was - so crowded' that he could not get any safer place. If the justice at the trial had thus ruled, it would have excluded from the consideration of the jury, to the prejudice of the defendants, all question as to plaintiff’s negligence. The defendants, however, were permitted to go to the jury on these questions, and have the eha/nce of a verdict in their favor on them. If that was error, defendants cannot be heard to object.

The remaining question is, whether there was any error, to the prejudice of the defendants, in the refusal of the judge at the trial to charge, as requested, as to the notice to passengers posted inside the car. The justice declined to charge that this notice oi itself, even if known to the plaintiff, rendered the act of getting and standing upon the front platform negligence on the part of the plaintiff. I am of opinion this ruling was correct. The notice contains a mandate and a'prohibition, and neither one expressly includes the act in question here. The mandate is, that “ passengers must get oil and off' the rear platform.” The prohibition is, that they “ must not get on or off when the car is in motion, or stand on the steps.” • This is as much a command to the employes of the. company as to the public j and it will be observed that, while this notice requires passengers to get on and off at the rear, it does not forbid them getting on or off elsewhere, and its phraseology, in confining the prohibition as to standing to the “ steps” alone, is tantamount to an express permission to “ stand” anywhere else on the car. How, it was not the mere act of getting on at .the front that in any manner contributed to the injury to plaintiff in this case, dr exposed him to danger; it was remaining there after he was on, and that act was in no manner forbidden by the notice. But aside from this, even if the court must shut its eyes to the open, constant, everyday practice of the employés- of street railways themselves. in disregarding such no.tices, there is abundant evidence in this case that the employés of the defendants’ company do constantly and habitually disregard and disobey this notice, and so do with the consent and apjDarent encouragement of the company itself. The conductor testifies in this case that on this, occasion both platforms and the inside of the car were so full that no more could get on; that there were nine or ten persons on the front-platform, and no more could get on. And, speaking of his ordinary custom, he says he never paid attention to where or what place passengers got onbut when I see. them get on, I put for them to get their fare”'-—as well on the front platform as elsewhere—“ from the last one that gets on.” And this habitually, and, as the defendants-would have us believe, in the face of their-own rules to the contrary. Surely they cannot complain if ,the court and jury construe their rules and notices in the same manner and meaning that their own officers and employes habitually do, nor can they expect the court to enforce rules which they habitually disregard in their own interest, and seek to enforce only when they could thereby shield themselves from liability. This would seem to be sufficient grounds upon which to sustain the ruling of the judge at circuit. But I am prepared to go further, and hold that when a common carrier of passengers, by himself or his manager or conductor, accepts a person as a passenger, and receives from such person the full and established fare, without any restriction in the contract itself as to mode or place of carriage, he is bound to furnish such passenger with a safe and comfortable vehicle, and a safe and comfortable place or position in it or on it, and so to transport that passenger that he shall not sustain injury from any fault or neglect of the carrier, any rule, notice, or regulation of the carrier to the contrary notwithstanding; and is responsible for any injury the passenger may sustain by the fault or neglect of the carrier, provided always the passenger shall occupy as' safe a place as he can, and conducts himself with proper care in the place where he is. Of course, if the passenger wilfully and unnecessarily persists in taking and occupying an exposed or dangerous position on the boat, car, or vehicle by which he is being carried, when more secure and unexposed places are open and offered to him, and he is injured by an accident which would not have harmed him if he had been in the safer position, then it is negligence in him, and he takes the risk of such exposure. But if the passenger has no option, and occupies as safe and secure a position or place on the carriage as the, carrier affords to him, and conducts himself with ordinary care while there, negligence cannot be imputed to him, and he can recover for any injury sustained through the fault or neglect of the carrier. Those are well-settled elementary principles of the common law as to carriers of passengers (1 Parsons on Contracts, 2d cd., p. 695 to 700, and notes; Storey on Bailments, sec. 590 et seq.; Angel on the Law of Carriers, chap. 11). In applying these principles to the various and generally different classes of facts in particular cases, courts may and do differ, but I think the principles above stated have been uniformly acquiesced in. In this case, the judge at the trial submitted to the determination of the jury all the questions of negligence of the plaintiff. It was left to the jury to say, upon all the evidence, whether the plaintiff was guilty of negligence contributing to the injury. The substance of the objection of defendants’ counsel is, that the justice should have charged as matter of law that plaintiff was guilty of negligence in being where, he was when the accident occurred. In my opinion, for the reasons before stated, upon the undisputed facts in the case he should have charged the other way. And inasmuch as the jury have found as the justice should have ruled, I see- no reason for disturbing the verdict. The judgment should be affirmed, with costs.

Barbour, C.J.

(dissenting). __ The obligations and liabilities of common carriers of goods differ essentially from those of carriers of passengers; for, while the former are bound to carry the property safely to its place of destination, unless prevented from so doing by some act of God or of a public enemy, and, to that extent, may therefore be said to be insurers of the goods, the latter are liable, in actions of this character, only for such injuries to the persons transported by them as are occasioned by their doing, or omitting to do, some act which careful, prudent men, of good judgment and competent skill in that business, and having a due regard for the safety of the persons of others, would' not have done or omitted; nor even then, unless such injpry is wholly caused by the negligence of the carriers, or that of their' servant. If the carelessness of the passenger contribute to the accident which occasions the injury, his carrier is thereby exonerated from liability.- The reason for the distinction between these two classes of common carriers is found in the fact that, in the one case, the property carried is wholly within the care and custody and under the- exclusive control of the carrier for the time being; while,in the other, the passenger retains the management and control of his own person, upon or within the vehicle in which he is transported, and is therefore bound to exercise such caution and care for his own protection as a prudent, sensible man would exhibit in the same position.

Negligence,per se, cannot properly be imputed to a passenger upon a street-railroad liorse-car, merely because he is riding upon one or the other, of the platforms, nor to the railroad proprietors for carrying him there; although, there can be no doubt, it would be safer for the passenger within the body of the car. There are degrees of danger, as of negligence; all are comparative. bio place between the cradle and the grave is wholly safe from accidents. One who is within a street-car is less exposed to danger than another who stands upon the platform; while a man in 1ns own house may be safer than either. It may probably be assumed, too, that a passenger upon a ship or steamer at sea, or on a train of cars propelled by a locomotive engine at the rate of thirty or fifty miles an horn*, is in greater danger than is a passenger upon even the front platform of a street-railroad car. But it would be contrary to reason to say that the occupying of a seat in a locomotive train, or a berth in a ship, or a standing place upon the front platform of a street car, is of itself, and unqualified by other circumstances, such an act of negligence on the part of a passenger as will exonerate the candor from liability for an injury caused by his own negligence. Indeed, the fact, which is within the knowledge of all of us, that many thousands of our most careful,-prudent, and sensible men do thus travel daily and repeatedly, is conclusive evidence to the contrary.

Assuming, then, as we may, that the standing of a passenger upon the platform of a street car is not, on his part, negligence per se, it is, at least, equally as clear that the carrier is not guilty of negligence merely because he permits such passenger to stand there. That which is negligence in the one must be negligence in the other; provided both have the same knowledge in regard to the danger.

But it is a matter of. common knowledge and common-sense, and must, therefore, be considered as an established fact in this case, that it is more dangerous to stand upon the crowded front platform of a street cpr than to occupy a place .within it; and that fact, it appears to me, all passengers are bound to understand. In this case, certainly, the person injured must have been aware of the extra danger, for he had been in the habit of travel-ling upon such cars for many years. He therefore voluntarily took his place upon the platform with full knowledge of the hazard he incurred, and thereby assumed to himself the risk consequent upon his own negligence in so doing, whatever it may have been.

The condition of such a passenger is totally unlike that 'of one upon a locomotive train in motion, who cannot leave the same because of the extreme danger, and is forced to take the platform as the safest proper place left to him, because there is no room for him within the cars; for a person desiring to take passage upon an approaching street car can see at a glance whether it is or is not so full as to prevent his riding inside; and if he does not choose to look, his ignorance will be that kind of orassa ignorwntia which excuses no man. Or, if he has misjudged, and finds, when upon the platform, that the interior is full, he may require the conductor to stop the car, and alight therefrom.

For these reasons, it appears to me, the defendants were not bound to extend to the passenger the same protection upon the platform as if he was within the car, even though his fare was paid, nor any protection, indeed, beyond that which pertained to the position such passenger had himself voluntarily selected or taken ; and it follows, in my opinion, that the submission to the jury of the question whether the payment of such fare did not entitle the platform passenger to the samp protection that was given, to' inside'passengers, was erroneous, and probably tended to the injury of the defendants. Indeed, I cannot perceive why the payment of the fare changed the relative rights of the parties to apy extent. We all know that persons desiring passage upon cars of this description step on to them whenever they please, and thus become passengei's, and entitled to protection as such, whether the conductor has yet collected his fare or not. If that were otherwise, carriers might relieve themselves from liability for a portion of the journey by abstaining from collecting the fare. Because of that misdirection, and without passing upon any further questions, I am of opinion that the judgment should be set aside, with costs, and a new trial ordered.


text:
    ELIZABETH GONZALES, Administratrix, &c., of John H. Gonzales, deceased, Plaintiff, v. THE NEW YORK AND HARLEM RAILROAD CO., Defendants.
    It is prima facie negligence for a person to go upon a railroad track, and omit the precaution of looking to see if any train is approaching. If an injury is received by reason of such neglect, the injured person cannot recover.
    It is equally negligent for a person bereft of sight or hearing to go upon a railroad track without- aid or assistance. If, in consequence of such inability to see or hear, an injury is sustained, the injured party cannot recover.
    Before Barbour, C.J., Fithian and Freedman, JJ.

      [Decided October 30, 1869.]
    This case was tried before Mr. Justice Jones and a jury.
    The action was to recover damages against defendants, carriers of passengers for hire, for negligently causing the death of John H. Gonzales, plaintiff’s intestate. On the 15th of November, 1864, Gonzales took passage on one of defendants’ “ way” passenger trains for the village of West Mount Vernon, where he resided, and at which place was a station on defendants’ road. At that place there is a double track on defendants’ road running nearly north and south. The train on which Gonzales was a passenger was going north on the east or right-hand track. At Mount Vernon, on the east side of that east track, was a platform one hundred and eighty-five feet in length, along-side the track, for landing passengers from trains going north. The ticket-office and depot, however, were on the west of the west track, where there was also a platform for landing passengers from trains going south on the west track. Gonzales’ house was likewise on the westerly side of both railroad tracks,'so that on alighting from a train going north it was necessary for Gonzales, in order to reach his house, to cross the track from the east to the west side. At the south end of the east platform is a street, crossing the railroad tracks at right angles, running east and west. On the arrival of the train in which deceased was a passenger at Mount Vernon station it. stopped, and the deceased, instead of .alighting on the ,platform on the east side of the car, got out on the west side, directly between the railroad tracks, and as he was attempting to cross or approach the west track he was struck by an “ express ” train going south at full speed, and thrown under the wheels of the train which he had just left, and which was then just starting forward, and so badly injured that he died in consequence. This occurred in full daylight; and it was shown that at that time the railroad tracks were straight, and nothing to obstruct the view for several hundred feet each way. It appeared, also, that the deceased had resided - at Mount Vernon for seven or eight years, and was in the daily habit of passing to and from New York (his place of business) on defendants’ cars, and must, therefore, have been acquainted with the time-tables and the running of trains. There was also contradictory evidence as to whether the “ express” train gave any signal, by bell or whistle, when passing the station. The cause was twice tried. On the first trial plaintiff had a verdict and judgment in her favor. On appeal to the Court of Appeals, the judgment was reversed and a new trial ordered, on the grounds that there was negligence on the part of deceased in going, or attempting to go, on the west track under the circumstances; that Gonzales must have omitted to look out for this passing train, and such omission was negligence on his part; and further, that upon the evidence it is not entirely clear whether deceased received his injury from being struck by the express train, or from having attempted to get down from the car on which he was a passenger before that train had come to a full stop, and was thereby thrown under the wheels of the train while in motion, and that in either case it was negligence on his part. On the second trial, from the judgment on which this appeal is taken, the foregoing facts were shown, and also it was satisfactorily proven that the train on which deceased was a passenger had come to a full stop, and one of the brakemen on the car had called out, “ All out for Mount Vernon,” before Gonzales left the car. It was also proved by plaintiff that before this Gonzales had sustained an injury to his byes, whereby his sight was so impaired that he could only distinguish such objects as were very close to him, and those imperfectly and with the aid of glasses. Evidence was given on both sides, at the close of which the court ordered judgment of dismissal of the complaint with costs, on defendants’ motion, to which plaintiff’s counsel excepted, and the exceptions were ordered to be heard at the General Term in the first instance.

      Mr. R. W. Van Pelt for plaintiff.
    The negligence on the part of the defendants in running the trains in question, so as to meet at the station, and their omission to give any signal of the approach of the express train, are "undisputed, and unless the deceased, by his own negligence, contributed to the accident, the defendants are liable.
    The deceased was guilty of no negligence whatever, and the injury complained of resulted solely from the carelessness and negligence of the defendants.
    In order to sustain the dismissal of the complaint on the last trial, this court must hold that it was negligence fcr se for the deceased to ¿et out of the train on the depot or westerly side of the track, and if such a principle is established every passenger who resides upon the opposite side of a railroad track, or whose , business renders it necessary for him to cross it, is placed entirely at the mercy of a railroad company.
    There is no, law, statute or common, requiring passengers to alight on one side or the other of a track; there is no rule or regulation of the defendants requiring passengers to alight on the easterly.side of their track.
    The sole question for the court to decide in this case is, whether a railroad company can escape liability for carelessly and negligently causing the death of a passenger whose only offence is inability, through impaired vision, to discover an approaching train beyond the distance of one hundred feet.

      Mr. Charles A. Rapallo for defendants.
    The motion for a dismissal of the complaint was properly granted.
    Gonzales was grossly negligent in undertaking to alight from the cars in the manner he did, and his death resulted wholly from this negligence.
    He not only neglected to avail himself of the means provided by the defendants for the safe landing of their passengers, viz., the platform, but recklessly jumped from the opposite side of the car upon the track at the very moment that an express train was passing.
    “A railroad' company that has provided sufficient platform for the egress of passengers from their cars is not liable for injuries to a passenger sustained in consequence of his voluntarily leaving them on the opposite side, and stepping on the other track instead of on the platform ” (Penn. St. R.R. Co. v. Zebe, 33 Penn. St. Rep., 318).
    It is negligence for a blind man to go upon a railroad track.
    If he has not the means of seeing or avoiding danger, he is not justified in exposing himself to it in the expectation of holding others responsible for the consequences of his infirmities.
    Contributing negligence is not excused even in case of infants and lunatics, and the same rules are applied to them as to persons in the full possession of their faculties (Honegsberger v. Second Ave. R.R. Co., Court of Appeals, How. Pr. Rep., 33, p. 201; Hunger v. Tonawanda R.R. Co., 4 Com., 349; Willets v. Buffalo and Roch. R.R. Co., 14 Barb., 14; Spencer v. Utica and Sch. R.R. Co., 5 Barb., 337; Cott v. Lewiston R.R. Co., 34 How. Pr., 222, and case cited; Burke v. Broadway and Seventh Ave. R.R. Co., 34 How. Pr., 249).
   By the Court:

Fithian, J.

That, the managers of defendants’ express train were guilty of negligence in passing that station without giving the usual and ordinary signals, must be assumed, for there was evidence upon which the jury might well have so found, had the cause been submitted to them. " The only question in the case, then, is, considering the defendants to be guilty of negligence, whether there was negligence also on the part of the deceased, contributing to the injury. If so, it is settled there can be no recovery.

The Court of Appeals have decided in this case that it was clear, upon the evidence before that court, Gonzales omitted to look and see if there was any approaching train before attempting to cross the track; that if he had so looked he must have seen the express train and avoided the injury; and that such omission was negligence on his part so as to debar a recovery. This must be taken as the law of this case; we could not 'change it if we would; that is also settled to be the rule in all cases. In the case of Wilcox v. the Borne, Watertown, &c., Railroad Company, decided by the Court of Appeals in June last (1868), it was held to be negligence per.se for a person to go upon a railroad track, and omit to exercise his ordinary powers of vision, when by so doing he could see and avoid any approaching ear or engine. Miller, J., reviewed all the cases on the subject, and showed clearly that the principle was recognized in every ease; that in every case where a recovery had been permitted without the precaution, “ circumstances existed tending to show that the sight was obstructed, or to fender it at least doubtful whether the party was in fault, so that it was proper for, the jury to pass upon the question of negligence.” Grover, J., wrote a concurring opinion, and the decision of the court was unanimous. It must, therefore, be considered settled by the court of last resort, that for a person to go upon a railroad track without exercising the ordinary sense of hearing and seeing, with a view to discover and avoid any approaching obstacle, is, of itself, prima facie,an act of negligence. And if an injury happen to the person in consequence of so being upon the track, the burden is upon the injured party to show a legal excuse for omitting thus to avail himself of the protection afforded by his ordinary senses. He may show that, by some matter or thing over which he had no control, the view or sounds were so obstructed that seeing or listening would have afforded no protection; or that, by some act or neglect of the alleged wrongdoer, he was justifiably excused from so looking; some fact must be shown which will take the case out of the general rule above stated.

The inquiry in this case, then, is whether on the second trial any evidence appeared, not proven on the first trial, sufficient to excuse plaintiff’s intestate for his omission to see and avoid the express train, and thereby except the case from the effect of the decisions above cited.

On the last trial it was conceded that deceased did not look, or attempt to look, for the reason, as it was then for the first time proven, that his sight was so impaired he could not see an approaching train; that for all purposes oí protection by the sense of sight, from an approaching train, he was substantially blind. And it was further claimed, that he was excused for thus going upon the track unable to see, and without protection, by the act' of defendants’ servant in calling: “All out for Moxont Vernon ! ” It was claimed tiffs cell was equivalent to an assurance to the passengers, by the defendants’ servants, that they could safely go upon the track without care or precaution. These words cannot possibly bear such a construction; they were merely notice to the “Mount Vernon” passengers that they had arrived at their place of destination; that, so far as they were concerned, the company had performed its contract with them, and they were requested to leave the defendants’ cars by the usual and ordinary mode of exit provided by the carrier, viz., the platform. This notice, and the passenger leaving the car in pursuance of it, terminated the relation of passenger and carrier. And how it could be construed by any person of ordinary intelligence into a further license or permit unnecessarily to go upon defendants’ railroad track with impunity and exempt from the duty of observing ordinary care and precaution, I am unable to see.

The remaining question is, whether the deceased was excused for not looking for the approaching express train by reason of Ms blindness; or, in other words, is it equally an act of negligence for a person who cannot see to go upon a railroad track unattended, as it is for a person who can see and omits to do so ? In a person possessing the ordinary powers of vision, the negligence consists not alone in omitting to use them but in presuming to go upon the railroad track, knowing cars were likely to pass at any certain or uncertain time, without first taking that precaution wMch a person of ordinary care and prudence, possessed of ordinary faculties, would be likely to do, viz., to look for any approaching train.' Is it not equally negligent for a person who does not possess the sense of sight to go, without assistance, upon a track where eight years’ experience had told him trains were frequently passing and are expected and known to pass just about that time?

Negligence is defined to be the omission to observe that care which a man of common prudence takes of his own concerns.” In the case of Hatfield v. Roper (21 Win., 615), the plaintiff, a child two years of age, was suffered by its parents to go in the highway, and was there negligently injured by defendant’s horses and sleigh, in the custody of defendant. It was held to be an act of negligence on the part of the parents or guardians to suffer a child of so tender years to be in the highway; and that this was the negligence of the infant, although it did not possess the faculties of a person of full age and discretion; and that the same rule would apply to an idiot or lunatic, which rule was applied to a lunatic in the case of Willets v. Buffalo and Rochester R. R. Co. (14 Barb., 585), where it was held that the act of a custodian of a lunatic, in leaving him unattended so that he was put off the cars on a railroad track for refusing to pay his fare, and run over and killed by another train, was negligence, chargeable to the lunatic himself, such as to preclude a recovery by the administrator. I understand the doctrine'of all these authorities on the subject of actions for negligence, to be, in substance, that, to enable a plaintiff to recover for an injury sustained by the negligence of another, he must show that in the particular case he exercised all the care and prudence which persons of usual and ordinary faculties would be likely to exercise, under similar circumstances, to avoid the injury. It follows, therefore, that a person bereft of sight or hearing cannot recover for an injury resulting from an act, or partly from an act, done blindly* which injury could have been avoided by the possession and exercise of the sense of sight or hearing, because it was negligence in him to go upon the track without first supplying, through the aid of others, those faculties of which he was himself bereft.

In this case, the plaintiff’s intestate, Gonzales, was possessed of all his faculties save eye-sight. He had resided eight years on the line of defendants’ railroad, passing over it, to and from this particular station, nearly every day. He was familiar with the mode and place provided for ingress and egress to and from the cars,'the number of tracks, the number and time of trains passing north and south. He must have known that there was an express train passing south, due at that station, at or about that time. The time-table, put in evidence by plaintiff, shows that the express train, and the train that Gonzales was on, pass that station within a minute of each other; the express train being a minute later. So that, if both trains were on time, Gonzales would have just one minute in which to get out and cross the railroad track ahead of the “ express.” In this case, either the express was a minute ahead, or the way-train a minute behind time, for the trains met at that point. The plaintiff (Mrs. Gonzales) says she saw from her house her -husband standing on the, platform of one. of the cars, ready to get off, just as the train was coming to a stop. Another witness for plaintiff testifies he saw the whole occurrence from his own residence. He saw the express ■ train approaching from the north, at some distance off, before the way-train from the south had stopped its motion. As the way-train stopped, looking across the south end of the depot, he saw Gonzales in the act of getting off the platform of one of the cars. At the .same-instant he saw the express train disappear behind the north end of the depot, and just as Gonzales stepped on the track he was struck by the express train in passing. Thus it appears that this blind man, knowing, as he must have known, there was a train about to pass—instead of leaving the car on the side and in the manner and at the place provided for such purpose, where there was no exposure to injury, and not attempting to cross the track until the express” had passed, or he had assured himself it was safe to do so—gets off on to the trade in an exposed place, and steps directly in front of the passing train. This is not only negligence but extreme recklessness, inexcusable by any known principle of law or reason; and this upon the assumption that he was substantially Hind. That, however, was not the fact wholly. His sight was much impaired, but it was proved and conceded by plaintiff’s counsel that he could see an approaching train ninety or one hundred feet. The ordinary exercise of even this much vision would have saved him. Tor, as he stepped upon the ground from the way-train, the express could not have been ninety feet from him, and a single glance in that direction would have prevented the accident. He did not look, but walked directly into the engine of the express train.

I appreciate fully the hardship and suffering caused by a misfortune of this kind, and would gladly afford relief to a family thus bereaved if I could consistently do so. But the rules of law and the decisions of the courts must be adhered to.

The plaintiff’s motion for judgment must be denied, and the order dismissing the complaint affirmed, with costs, and judgment ordered for defendants.-

Barbour, C.J.

(dissenting). There was one question in this case which, it appears to me, ought to have been submitted to the jury, viz.:

One of the witnesses, who was a passenger with Gonzales upon the train, testified that; after the train had reached Mount Vernon, one of the brakemen of the company came and hallooed for the passengers to get out, saying, “All out for Mount Vernon; ” and that the witness, after the train had stopped, got off the car upon one side as Gonzales was getting off from the other side; and that he heard no signal, by bell or whistle, from the coming express train. Indeed, the fact that no signal was given by the incoming train was fully established by the evidence in the" case.

The question,- then, is, whether Gonzales, not hearing the signal which he, as an old resident of Mount Vernon and a frequent passenger upon the cars, must have known was usually made by an incoming train, and hearing the direction of the brakeman to the passengers for that place to get off the cars, had not a right to receive such directions as an assurance on the part of the company that it was perfectly safe to obey such directions, and get off the car, as he did, without looking to see whether another train might not be coming.

I think this case is a much stronger one in favor of the plaintiff upon the point in question than was that of Ferris v. The Union Ferry Co. (37 N. Y. R., 312), where it was held by the Court of Appeals that the mere letting down of the guard-chain of a ferry-boat, by an employe, as was customary upon the arrival of such boat at her dock, was such an assurance to the passengers that the boat was properly secured to the bridge, and the exit safe, as justified them in attempting to walk off from the boat in the ordinary way, and that negligence could not be imputed to them for doing so. In that case, it was the mere sound of a dropping chain that induced the plaintiff to suppose the boat was fastened to the bridge, while here, the passengers, it appears to me, might well consider the directions of the brakeman as an assurance by an employe of the company that the passengers could obey that direction with safety, and alight from the cars.

Besides, it is to be considered that the person injured was partially blind, and, for that reason, was not only, probably, compelled to rely upon information obtained from others to supply his defect of vision, but he had a perfect right to do so. His being upon the cars, although partially blind, was not negligence per se / nor, being there, would an attempt to get off when the cars stopped have been, negligence raider all circumstances. In leaving the train, however, he was bound to do all that a prudent, cautious man, in his condition, would have done to insure the safety of his person. If such a man, for instance, would not have relied, absolutely, upon the fact that no bell or whistle had been sounded indicating the coming of a train, but would have inquired of some bystander whether it was safe to get out, it would have been the duty of Gonzales to obtain the information from some one who could see. But, certainly, it was not necessary for him to make such inquiry after the direction of the brakeman was given, if he had a right to believe, considering all the circumstances, that such direction was, in effect, an. assurance to the passengers that all was safe.

For these reasons, I am of opinion that the learned justice erred in directing a dismissal of the complaint, instead of submitting tbe question as to negligence on the part of Gonzales to the jury; and that the order dismissing the complaint should be reversed, and a new trial granted, with costs to abide the event.


author: Jones, J.

text:
    BRIDGET DOYLE, Plaintiff and Respondent, v. MICHAEL MULREIN, Defendant and Appellant.
    A party who, by an erection made by himself, renders an excavation made on adjoining property by the owner thereof more dangerous to those lawfully using the highway than it otherwise would be, is bound to use proper and reasonable precaution to protect those so using the highways from sustaining injury by falling (without negligence on their part) into the excavation.
    A violation of this duty, by the negligent omission of such precaution, subjects the’ violator to a liability for damages at the suit of one who thereby, without contributory negligence, sustains injuries.
    An objection that the cause of action proved is not the cause of action alleged in the ■ complaint, and that the cause of action alleged in the complaint is unproved in its entire scope and meaning, must be distinctly taken at the trial to be available on appeal.
    A motion to dismiss the complaint, without stating the grounds therefor, is insufficient to enable the defendant to raise on appeal the objection to the denial of the motion.
    Before Monell, Jones, and Freedman, JJ.

      [Decided October 30, 1869.]
    This case was tried before Chief-Justice Barbour and a jury.
    ■ The action was brought to recover damages for injuries sustained by plaintiff from falling into an excavation. The complaint, omitting such portions as are not necessary for the decision of the cause, was as follows:
    Bridget Doyle, the plaintiff in this action, respectfully shows to this Honorable Court that on or about the second day of November, 1867, at the city of New York, Michael Mulrein, the defendant, had caused certain excavations to be made on the lot and sidewalk fronting the same, situate on the west side of James street, about seventy feet south from the corner formed by the intersection of said street and New Bowery, and known as No. 27 James street, to the best knowledge, information, and belief of the plaintiff.

      That said, excavations were so made on the said lot and sidewalk fronting on the same, to the depth of eight to ten feet or thereabout.
    And this plaintiff further shows that the said excavations were, at the time aforesaid, left in a negligent and careless condition, in this that they were left without sufficient guards, or any guards, for proper protection of pedestrians on the said sidewalk and street, and that the said negligent and careless condition was and remained a continued danger to passers-by.
    That at or about 8 o’clock p.h. of the second day of November, 1867, while the plaintiff was passing along the said sidewalk, as she lawfully might, intending to go from Chatham square to No. 65 James street, she did, without any negligence or carelessness on her part, fall into the said excavation so made in the said lot and sidewalk so being negligently and carelessly unguarded and unprotected as aforesaid.
    That, by reason of the premises, the said plaintiff has sustained damages, as she is advised and believes, in the sum of one thousand dollars.
    Wherefore she demands judgment against the said defendant for her damages in the premises, in the sum of one thousand dollars.
    On the trial, the following matters appeared in evidence: A brick house stands on the corner of New Bowery and James street. Opposite to a portion of this house, and a portion of the excavation, there was a large quantity of bricks piled up, resting partly on the sidewalk and partly on the street, leaving a space, between the pile and the house and the pile and the excavation, of about two feet. This pile extended from some point opposite the excavation a distance of twenty-five or thirty feet to a point distant ten - or twelve feet south of said corner. A person passing along James-street, in a southerly direction, first encounters this house and pile of bricks, and, passing between them, comes immediately to the excavation in question, which was on the lot adjoining this corner-house on the south.
    The excavation was made for the purpose of laying the foundation of the James street school-house, to be erected on such adjoining lot, and the evidence -was contradictory as to whether it extended into the sidewalk or not.
    The defendant was the contractor to build the school-house. By his contract he was to erect the building, but not to excavate for the foundation. He, in fact, did not dig, or cause to be dug, the excavation. That was done by some other person who, having finished his work, had left the premises.
    At the time of the accident, defendant had not used or actually occupied any part of this excavation which laid between his building line and the street, and his building line was four feet inside of the inside line of the sidewalk, nor was it necessary for erecting the building to use or actually occupy that part. He, however, had erected the above-mentioned pile of bricks, and the effect of this was to prevent the street lamps on the corner of James street and New Bowery from shedding any light in the narrow passage-way between the pile of bricks and the house or •on the excavation.
    The only safeguard pretended to have been erected was a large timber running from the corner house across the sidewalk to the pile of bricks. There was contradictory evidence as to whether that safeguard was there or not. The preponderance of proof was that it was not.
    On the evening of November 2,1867, the plaintiff was walking down James street from the New Bowery, passed through this narrow passage-way, and suddenly fell into the excavation.
    At the conclusion of the testimony on both sides, the defendant moved to dismiss the complaint, without specifying any grounds. The motion was denied and an exception taken.
    The judge thereupon charged the jury that, to “ entitle the plaintiff to recover, they must be satisfied from the evidence that the defendant was negligent in the performance of some duty which he ought to have done, and that the plaintiff was guilty of no negligence which contributed to the accident. If, in walking along the sidewalk, she exercised the care which a prudent person would have done under the circumstances, and the accident occurred without any fault on her part, she would be enitled to recover, if they found that the -defendant was negligent in the performance of some duty which he ought to have performed.
    “ That the evidence showed there was a pile of brick, partly covering the sidewalk, leaving a space of two or three feet between the brick and the house, and that there was an excavation of eight or ten feet into which the plaintiff fell. The defendant had given some testimony himself in regard to the matter. It was for the jury to say, from all the evidence, whether he occupied or used the excavation. If he did so occupy and use it, without placing around the excavation a proper guard, or without putting a light there, or taking such precaution as would warn people of the danger, he would be liable for such damages as the plaintiff had sustained— in case they found there was no negligence on her part.”
    Defendant’s counsel then asked the court to charge that the defendant was not in the occupancy or possession of the excavation on James street, and was therefore entitled to a verdict.
    The court refused, and defendant excepted.
    The jury rendered a verdict for the plaintiff for $150, and judgment was entered thereon, from which the defendant appealed.

      Mr. A. A. Redfield for appellant.

      Mr. H. C. Snebley for respondent.
   By the Court:

Jones, J.

One who, by an erection made by himself, in a public highway, renders an excavation made on adjoining property by the owner thereof, or his authority, more dangerous to those lawfully using the highway than it otherwise would be, is bound to use proper and reasonable precautions to protect those so using the highway from sustaining injury by falling (without negligence on their part) into the excavation, thus rendered more dangerous.

A violation of this duty, by the negligent omission of such precautions, subjects the. violator to a liability for damages at the suit of one who thereby, without contributory negligence, sustains injuries.

The uncontroverted facts in this case show that the defendant, oy the erection of the pile of bricks in the street, rendered the excavation more dangerous to those using the street at night than it otherwise would have been.

The questions as to whether defendant negligently omitted to put proper and reasonable safeguards about this excavation, as to whether plaintiff was guilty of negligence contributing to the injury, and as to damages sustained by her, were submitted to the jury, who found in favor of the plaintiff upon sufficient evidence.

I am aware that the defendant’s liability was not placed upon the above ground, either in the complaint or in the charge of the judge, and am also aware of the principle .that a recovery should he secwidum allegata as well as probata (Rome Exchange Bank v. Eames, 1 Keys, 588; Wright v. Delafield, 25 N. Y., 266; Code, sections 171-173).

But the objection that the cause of action proved is not the cause of action alleged in the complaint, and that tire cause of action alleged in the complaint is unproved in its entire scope and meaning, must be distinctly taken at the trial in order to be available on appeal.

This objection was not so taken in.this case.

The defendant moved to dismiss the complaint without specifying any grounds, and on a denial of the motion an exception was taken. Such a motion is held by the Court of Appeals to be insufficient to enable the defendant to raise, on appeal, the objection in question (Belknap v. Seely, 14 N. Y., p. 144; Rosebrooks v. Dinsmore, 5 Abbt., N. S., 59, reversing 4 Robertson, 672).

The only other exception is as to a refusal to charge “ that the defendant was not in the occupancy or possession of the excavation, and was therefore entitled to a verdict.”

As his liability does not depend on his occupancy or possession of the excavation, it would have been error thus to charge.

The exception does not point to the objection that, although there may be some cause of action proved, yet it is not the one alleged in the complaint, and that the cause of action alleged in the complaint was wholly unproved in its entire scope and meaning, as the ground of the request to charge that defendant was entitled to a verdict. If the objection had been thus pointed, non constat but that the judge might have allowed a juror to be withdrawn and permitted plaintiff to move at Special Term to amend his complaint.

The only point raised by this exception is, whether the proof sustains the ground upon which the judge at the trial placed the defendant’s liability. It is unnecessary, in the view taken by the General Term of the ground of defendant’s liability, to consider that point.

Judgment affirmed, with costs.

Monell, J., dissented.


author: Freedman, J.

text:
    SEYMOUR N. MARSH and JOSHUA REED, Plaintiffs and Respondents, v. B. FRANK PALMER and WILLIAM RICHARDSON, Defendants and Appellants.
    Where an appeal from a judgment entered upon the report of a referee presents only questions of fact, in regard to which there is a conflict of evidence, the findings of the referee upon such evidence will he held conclusive.
    Before Monell, Jones, and Freedman, JJ.

      [Decided October 30, 1869.]
    This case was tried before a referee.
    The action was brought to recover commissions alleged to be due to the plaintiffs for orders for artificial limbs sent to the defendants ; also for the defendants’ proportion of the cost of advertising their artificial leg in circulars and books issued and distributed by the plaintiffs.
    The referee reported in favor of the plaintiffs:
    Judgment was entered, and defendants appealed to the General Term.

      Mr. Joseph H. Choate for appellants.
    The fatal defect in the referee’s report is that he fails to state all the terms of the agreement, which was made solely with reference to and as a part of the plaintiffs’ agency for the defendants, which was terminated by mutual consent in 1854, and never resumed.
    The agreement found by the referee is a part of the agreement which the parties made in writing, by reference to which its true limits and nature are immediately apparent.
    If there were any grounds for liability of the defendants’ firm, consisting of Palmer, Hudson, and Richardson, the parties sued as partners; they certainly cannot be charged for work done in the way of advertising before their firm existed, and after it was dissolved.
    The finding of the referee that the 'advertising after 1854 was done “in pursuance of such agreement” falls to the ground when it appears that that agreement, the only one that was made to pay for advertising, was terminated, by mutual consent of the parties, in 1854.

      Mr. Ira D. Warren for respondents.
    There is no question of law in this case. Upon all the disputed ' questions of fact the preponderance of testimony is in favor of the plaintiffs; besides, the only witness who attempts to controvert the agreement is impeached—contradicted by his own letters. In eases of conflict.of evidence the referee’s decision is conclusive (Watson v. Campbell, 28 Barb., 421; Hooglan v. Night, 9 Bos., 894, cases cited; Voorhees’ Code, sec. 373,note h).
   By the Court:

Freedman, J.

This is an appeal from a judgment entered upon the report of a referee in favor of the plaintiffs and against the defendants. The plaintiffs’ claim- for commissions having been waived, we have carefully examined the evidence bearing upon the liability of the defendants for the cost of the advertisements of their business inserted in the pamphlets issued by plaintiffs, and the findings of the referee thereon, and are of the opinion that the only questions arising therefrom, and presented upon this appeal, are questions of fact, in regard to which the evidence is conflicting, and upon which the decision of the referee must be held conclusive (Watson v. Campbell, 28 Barb., 421; Hooglan v. Wight, 7 Bosw., 394).

The judgment appealed from must, therefore, be affirmed, with costs.