text:
    CHARLES ETEN, Plaintiff and Respondent, v. CORNELIUS W. LUYSTER and GEORGE G. GREGORY, Defendants and Appellants.
    I. LANDLORD and tenant.
    3 Summary Proceedings.

      Under-tenant.

    On a reversal óf a judgment given against an under-tenant, such under-tenant may recover damages under section 49, article 3,. title 10, chapter 8, part 3, Revised Statutes.
    A Damages sustained by under-tenant. 1.

    1. What will not prevent recovery of.
    The voluntary surrender of the term by the lessee from whom he hires to such lessees; lessor will not.

      ■ 31. LESSEE AND HIS TENANT.
    1. Surrender by lessee—effect on tenant. a. A lessee can not, by the surrender of bis term to his lessor affect a lease given by him. for the term to another.
    1. Therefore, where, by the lease to him, he covenants to give up possession on having two months’ notice, he can not, by any voluntary act, deprive his under-tenant of the benefit of the two months’ notice.

    .IH. PLEADING.
    1. Damages—averment of, what fboveable under.
    1. An averment “to his great damage, viz.: six thousand dollars,” refers to and comprehends all particulars of an alleged trespass set forth in the same paragraph. a. Loss of money.

    Where one of the particulars of the trespass there set forth was the conversion of personal property, tht taMng or destruction of money by defendant may be proved under such allegation.
    5. Value of the use of premises.

    When one of the particulars thus alleged was that defendants “ had thence hitherto deprived and kept the plaintiff • 1 out of his land and premises,” evidence of the value of the use of the premises for that period is admissible. '
    IV. EVIDENCE. . '
    ' 1. Action in which damages are demanded for the removal or destruction of a building claimed to be personal property. a. The way in which the house was attached to the soil may he shown.

    V. TRIAL.
    1. Election as to elements of damage.-

      a. Use of land and value of a house on it.

    Where an action is brought to recover damages for depriving the plaintiff of the use of land leased to him, and for the destruction of a house erected by him thereon, which be claims . to own as personal property, he is entitled to have both the value of the use of the land, and the value of the house go to the jury to show them what damage had been suffered.
    8. A party is not hound to elect until specifically called on to do so.
    Before Monell, Ch. J., and Freedman and Sedgwick, JJ.

      Decided June 1, 1874.

      Appeal from judgment on verdict, and order denying motion on the minutes for new trial
    The complaint averred “that at the time of the committing of the wrongs and injuries by the defendants hereinafrer mentioned, the" plaintiff was lawfully possessed, and in the occupation, of the lot of land and premises lSro. 753 Eighth-avenue, in the city of New York, upon which lot of land the plaintiff had before that time erected a building at the cost of one thousand dollars, and had thereon also personal property of great value, to wit: of the value of two thousand dollars.
    “And the plaintiff further shows, that on August 1, 1868, proceedings to recover possession of the said lot of land and premises, were made returnable before John A. Stemler, Esq., the justice of the seventh district court in said city, instituted by said defendants against this plaintiff, impleaded with other persons, then m possession of other portions of certain premises, of which the lot of land and premises aforesaid formed part thereof.
    “Thatin said proceedings, the said Justice Stemler rendered a judgment whereby he awarded to said defendants the possession of the premises mentioned in said proceedings, including the lot of land and premises occupied and possessed by this plaintiff as aforesaid and this plaintiff, by means thereof, was dispossessed and put out of the said lot of land and premises by the defendants, who, with force and arms, ejected the plaintiff therefrom, and then and there pulled down and destroyed the said building so erected and owned by the plaintiff, as aforesaid; and then and there took and converted the said personal property of the plaintiff to their own use, and has from thence hitherto deprived and kept the plaintiff out of his property and lot of land and premises ; and he has by means thereof been prevented from carrying on and conducting liis business of milk dealer in and upon said premises, by which means he has been deprived of great gains and profits which he otherwise would have accumulated out of his said business, to his great damage, viz.: six thousand dollars, and his ¿said business broken up.
    “ That the proceedings and judgment of the said Justice Stemler so as aforesaid rendered by him, were by this plaintiff removed to the supreme court, wherein such proceedings were afterward had that the said supreme court on November 10, 1868, by the order of the said court then and there made, reversed the said judgment and proceedings of the said Justice Stemler, and the same were held for naught and adjudged void and of no effect.
    “ Wherefore the plaintiff demands judgment for the sum of six thousand dollars besides costs.”
    By the answer defendants averred:

      First. That they deny each any every allegation in the complaint herein contained, except as hereinafter admitted.
    ” Second. That on or about July 16, 1868, one John ' Milhau and his wife, by full covenant warrantee deed, free from all incumbrances and free from any lien, under their hands and seals, bearing date on that day, conveyed to the defendants the premises mentioned in the complaint with others, which deed was recorded in the office of register of the city and county of New York on the same day, and to which the defendants, for greater certainty, pray leave to refer.

      Third. That on July 29, 1868, proceedings to recover possession of said premises were instituted as alleged in the complaint; that the plaintiff herein was included therein and duly served, and the justice before whom the same was made returnable had jurisdiction of the subject matter and -of the plaintiff herein, and that the said justice rendered judgment as alleged in the complaint. That iñ pursuance thereof, a warrant was issued by said justice to an officer to remove the plaintiff from said premises, who executed the same.

      Fourth. That the said proceedings of said justice were removed into the supreme court by the plaintiff ; and it there appearing to said court that, the said justice had erred in his ruling as matter of law, that the plaintiff, as under-tenant, could not file a counter affidavit; on that ground only, the said court reversed the proceedings.
    Wherefore defendants demand that the complaint be dismissed with costs.
    On the trial it appeared that on March 12, 1868, one Milhau, by his agent, leased to John Morrison, for the term of one year, from May 1, 1868, certain premises, including the lot in question. The lease contained a, clause of re-entry in case of default being made in any of the covenants therein contained, and also contained the following clause : 1 ‘And the said party of the second part also agrees and covenants to vacate the said house and premises on having two months’ notice in writing, and being paid two hundred dollars as an equivalent for moving and giving up this lease.”
    That in April, 1868, Morrison sub-let the lot in question to the plaintiff for one year from May 1, 1868; that plaintiff erected a frame building on the lot; that-in , 1868, B. P. Fairchild having contracted, to purchase the premises from Milhau, Morrison, in consideration of three hundred dollars, voluntarily executed, under seal, an instrument whereby ■ he canceled the lease to him, and waived any further notice, and agreed to vacate the premises on or before , 1868? and to give full possession thereof; that on July 16, 1868, said Milhau, at the direction of said Fair-child conveyed said _ premises to the defendants herein ; that on July 29, 1868, the defendants herein commenced summary proceedings, before one of the justices of .the city of Hew York, against said Morrison and this plaintiff and others to disposess them from said premises, and such proceedings were had therein that judgment of dispossession was rendered August 1, 1868, and on that day a warrant was issued, under which plaintiff was removed from said premises ; this plaintiff sued out a certiorari from the supreme court, and that court reversed the judgment below.
    There was evidence tending to show that Morrison, at the time he sub-let to the plaintiff, told him that he would have to move when he (Morrison) had to, and that every body would have to move when the property was sold; that that was what the lease to him (Morrison) said; that Morrison, in June, on the Friday after he executed the surrender, told plaintiff that he would have to move, but that he could stay two months.
    ■ In the course of the trial the following testimony was given by plaintiff, questions asked him, objections raised, rulings made, and exceptions taken:
    “I had my money in the house that I should have paid my debts with, which was stolen away.
    “ Q. State what money you had there ?
    Objected to. Objection overruled, and defendants excepted. “A. Two thousand dollars.
    ‘•Q. What was the use of these premises worth from the time you were dispossessed to the year ending May 1, 1869 ?
    Objected to, on the grounds that there is no allegation of this kind in the complaint; and that the plaintiff claims the value of the building, and can not claim for the building and the rent also.
    Objection overruled, and defendants’ counsel excepted. “A. It was a good deal. Fifty dollars a month and more.”

      And the following questions were put to a witness called in behalf of plaintiff; objections raised thereto, rulings made, and exceptions taken:
    “ Q. What was the value of that house in August, 1868 ?
    Objected to, on the ground that the plaintiff has not elected to claim the value of the house, but has claimed for loss of rent. Objection overruled. Exception. “A. It was worth one thousand and three dollars. I'have made an estimate of what it was worth. That is the way I came at that value.
    “ Q. Was that building on the ground, or did it have a foundation going into the ground ?
    Objected to as irrelevant and incompetent. Admitted, and exception. “A. It was on the ground.
    “ Q.. Could the building have been removed without injury to the lot ?
    “Yes, sir.”
    At the close of the testimony on both sides, defendants’ counsel moved the court to direct a verdict for the defendants on the evidence, which motion was denied, and an exception taken.
    Defendants’ counsel moved the court to instruct the jury that the plaintiff was entitled to nominal damages only, which motion was denied, and an exception taken.
    The judge, among other things, charged the jury that the right of sixty days’ notice reserved to Morrison, in the lease to him, was a right that enured to the benefit of plaintiff as matter of law, to which charge defendants excepted ; he also charged that there was a tenancy up to the time.of removal of plaintiff’s effects,, under the warrant, to which charge defendants excepted. He also charged that the plaintiff could only be removed from the premises by due course of law, to which charge defendants excepted.
    The defendants’ counsel requested the court • to charge, that the plaintiff must elect whether he will claim for the building, or rent; and that he can not require the jury to determine for him whether he is to. have one or the other.
    The request was refused, and defendants’ counsel excepted.
    The jury rendered a verdict for plaintiff for one thousand six hundred and fifty-one dollars and thirty-three cents.
    Defendants' moved for a new trial on the judge’s minutes, which motion was denied, and an exception taken.
    From the judgment entered on the verdict, and the denial of the motion for a new trial, defendants appeal.
    • Arnoux, Hitch & Woodford, attorneys, and Wm. Henry Arnoux, of counsel, for appellants, urged: 1.
    The cause of action set forth in the complaint herein was solely injury to business, whereby the plaintiff had been deprived of great gains and profits, and his business broken up to his damage, six-thousand dollars. 1. The legal construction of the complaint will bear no other meaning. All that is stated about the destruction of the building, and the conversion of property, is in aggravation of the loss sustained by breaking up the business, and not as distinct elements of damage. The judge, therefore, erred when the cause came on for trial, in refusing to hold that upon the pleadings, the issue presented is simply damages to ■business by reason of the dispossession (James v. McKennan, 6 Johns. 563; Ferguson v. Ferguson, 2 N. Y. 360; People v. Ryder, 12 Id. 437; Wright v. Delafield, 25 Id. 266). It will be remembered, that the action is not an ordinary action under the code, but an action on the case under the statute (2 Rev. Stat. p. 516, § 49). 2. Clearly, the loss of money could not have been proved under the pleadings. The allegation of loss of personal property meant furniture and chattels only. ' In actions for the recovery of special damage it is essential to the validity of the declaration to show the damage particularly (Butler v. Kent, 19 Johns. 228 ; Dumont v. Smith, 4 Denio, 322 ; Westwood v. Cowne, 1 Stark. N. P. C. 172). 3. Even if the complaint should be held sufficient to allow the plaintiff to recover for the value of the building, the conver- . sion of the property, and the loss to the business, it did not warrant the admission of evidence as to the value of the use of the premises. When such evidence was offered on the trial it was specifically objected to, on the ground that there was no allegation of that kind in the complaint. The objection was overruled, and the defendants’ counsel excepted. This ruling was erroneous.
    II. Upon the surrender to the defendants by Morrison of his term and right to notice, and upon their purchase from Milhau of the fee, the defendants became entitled to the immediate possession of the premises in question. The term of the plaintiff was ended, and he himself was a trespásser. 1. The right . reserved in the lease to Morrison to have sixty days’ notice of the expiration of his term, was a personal covenant with him, and did not run with the land. It was error on the part of the judge to charge that the right to sixty days’ notice reserved to Morrison, in his lease, of right belonged to the plaintiff, whether he had knowledge of it at the time or not. The charge is contrary to the law as laid down in the court of appeals, where it has been held that between the lessor and under-tenant there is neither privity of estate nor privity of contract (McFarland v. Watson, 3 N. Y. 286). 2. The uncontradicted testimony of Morrison is, that he never communicated to the plaintiff his right to the .sixty days’ notice, and that he did make his lease to him on the sole condition that it should terminate on the sale of the property. The property having been sold, the plaintiff’s tenancy, therefore, had terminated; “ The party who remains upon the land of another against his will, is there prima facie against right, and is bound to show circumstances which make such • possession lawful” (Hayling v. Oakley, 8 Exch. 545). “ The only safe and just rule, I believe to be the one established by authority, that the tenant holds over his term at his peril, and the owner of the term may treat him as a trespasser ” (Schuyler v. Smith, 51 N. Y. 309; Conway v. Starkweather, 1 Denio, 113; Rowan v. Lytle, 11 Wend. 616). To the same effect are the following: Allen v. Jacquish, 21 Wend. 628-631 ; McKay v. Mumford, 10 Id. 353 ; Garner v. Hannah, 6 Duer, 271; Smith, v. Littlefield, 51 N. Y. 541; People y. Schack, 48 Barb. 551 ; Parmlee v. O. & S. R. R., 6 N. Y. 74-81; Nichols v. Williams, 8 Cow. 13-15; Witt v. Mayor, &c., 6 Robl. 449; Danforth v. Sargeant, 14 Mass. 491. 3. The plaintiff being a trespasser, and the defendants having the right to the immdeiate possession, they were entitled to enter, and eject the plaintiff without being liable to him in damages therefor (Jackson v. Farmer, 9 Wend. 201 ; Hyatt v. Wood, 4 Johns. 150 ; Ives v. Ives, 13 Id. 235 ; 3 Black. Com. 174 ; Taylor on Landl. and T. §§ 523, 531-2; Livingston v. Tanner, 14 N. Y. 66 ; Wilde v. Cantillon, 1 Johns. Cas. 123 ; Jackson v. Morse, 16 Johns. 200; Curl v. Lowell, 19 Pick. 25 ; and see Sampson v. Henry, 13 Id. 36 ; Mugford v. Richardson, 16 Allen, 76 ; Minor v. Stevens, 1 Cush. 485; Meader v. Stone, 7 Metc. 147 ; Curtis v. Galvin, 1 Allen, 215 ; Walton v. File, 1 Dev. & B. 567 ; Overdeer v. Lewis, 1 W. & S. 90 ; Frible v. Frame, 7 J. J. Marsh, 599 ; Johnson v. Hannahan, 1 Strobhart, 313 ; Burling v. Read, 11 Q. B. 904). 4, The defendants are not precluded by summary proceedings from asserting this right (Gault v. Jenkins. 12 Wend. 488). In this ease, the officers executed an unlawful warrant under, the direction of the landlord. The court held, “If the defendants had acted under any other authority than the warrant, they would have been trespassers ; but under the orders of the landlord they were protected. The procuring the warrant did not deprive him of the power which he had without the warrant, nor did it prevent him conferring authority upon the defendants ” (Frazer v. Freeman, 43 N. Y. 566).
    III. For the errors committed during the progress' of the trial, material to the case,' the judgment should be reversed. Upon' the trial, the court erred in permitting the plaintiff to claim the value of the building and the lease for sixty days’ rent. The plaintiff was bound to elect which of the two lie would claim ; he had no right to both. The court erred in permitting evidence to be given of the character of the building. It was placed upon the ground, but had foundations going into the ground. It was not a fixture, and was not governed by the law pertaining to fixtures. It was a house erected upon the land, and became, by its erection a part of the freehold, and passed to the defendants by the conveyance to them of the premises without reservation.

      W. C. Carpenter, attorney, and James Clark, of counsel, for respondent, urged : I.
    The reversal, on • certiorari, of the proceedings under which the plaintiff was dispossessed, by the terms of the statute, gave him an absolute right to recover of the defendants ‘‘ any damages he may hace sustained by reason of such proceedings, with costs ” (2 Rev. Stat. Edm. Ed. p. 533, § 49).
    II. The ground of reversal is wholly immaterial, and in no way affects plaintiff’s right to recover (Manuscript opinion of Earl, commissioner, in" Heyden v. The Florence Sewing Machine Co. recently decided by the com. of appeals.
    III. The reversal of the proceedings under which the dispossessory warrant issued, rendered the warrant nugatory, and placed those acting -under it, and all in complicity with them, in the attitude of trespassers by force.
    IY. Even had plaintiff’s tenancy in fact expired, defendants had no right to dispossess him by force (Flaherty v. Andrews, 2 E. D. Smith, 529 ; Jackson v. Ellsworth, 20 Johns. 180).
    y. But plaintiff’s tenancy had not expired at the time of his dispossession by defendants. 1. The premises had been let to him for a year from May 1, 1888. 2. Plaintiff being in actual possession of the premises at the date of the deed from Milhau (the owner of the fee) to the defendants, the latter were chargeable with notice of plaintiff’s rights, and took subject to them (Tuttle v. Jackson, 6 Wend. 213 ; Grimstone v. Carter, 3 Paige, 421; Wright v. Douglass, 10 Barb. 97; Williams v. Birbeck, Hoff. 859; Gouverneur v. Lynch, 2 Paige, 300; Bank of Orleans v. Flagg, 3 Barb. Ch. 316). 3. The clause in the lease from Milhau to Morrison, (plaintiff’s immediate lessor), entitling Morrison to two months’ notice in order to terminate his tenancy, enured to the benefit of the plaintiff; and, after Morrison’s lease to him, his tenancy could not be terminated before the expiration of the year which it had to run, without the notice to which his landlord was entitled. This notice, after plaintiff’s rights had become fixed by his lease, could not be waived to his prejudice by any act of his landlord.
    yi. The request of defendants’ counsel that the court should adjudge that the only issue raised by the pleadings is as to the damage to plaintiff’s business, was properly refused. 1. The words, to his great damage, viz., six thousand dollar sJ relate to all the wrongful acts previously recited in the complaint. 2. The conclusion of the complaint, “Wherefore the plaintiff demands judgment for the sum of six thousand dollars,” &c., implies that that sum is demanded by reason of all the matters previously stated.
   Sedgwick, J.

The plaintiff has his action of trespass on the case by force of section 49, of the article entitled “.summary proceedings, to recover the possession of land in other cases” (2 Rev. Stat. Edm. Ed. p. 533). The section literally says, if the proceedings shall be reversed or quashed, the tenant or lessee may recover against the person making application for removal any damages he may have sustained by reason of such proceeding, in an action on the case. The plaintiff is an under-tenant. As such, however, he is entitled to the same protection as his landlord the tenant is, against an illegal attempt to remove him from land of which he is in possession. The word tenant, as used, does not necessarily negative an under-tenant being included in its meaning. An under-tenant is a tenant of a certain kind. There is nothing to indicate that the section meant to distinguish tenant or lessee from under-tenant or sub-lessee. As used, the words were evidently employed to designate the party to the proceeding that might have an action on reversal. Beginning the section with, either party that prevails, in case of an application, may have an action for costs, there was in proceeding a necessity of describing the party against whom the proceeding was taken, as the party that on reversal might have an action on the case. That description was sufficiently given by saying tenant or lessee. The proceedings were neither in an action nor on a writ, and the party defendant had no proper title. \ The same use of the word tenant occurs in section 29. There it evidently refers to tenant, lessee,. assigns, under-tenant, or legal representative of such tenant or lessee, a.s particularized in section 28.

This construction was taken as granted to be true, in Hayden v. Florence Sewing Machine Company, in the commission of appeals (MSS. opinion). Indeed, I am not certain that the learned counsel for the appellant disputed this in his able argument.

He did take the position, that, if irrespective of the warrant, the defendants had a right to enter arid remove the plaintiff as a trespasser or intruder, the reversal of the proceedings did not prevent his lawfully exercising that right, although he also used the warrant as his authority (Gault v. Jenkins, 12 Wend. 488). We need go no further here than to look into the facts as to the plaintiff being a trespasser.

By written lease, Morrison hired, in March, 1868, three lots, of which the locus in quo was a part, for one year from May 1,1868. He agreed in it to “ vacate the said house and premises on having two months’ notice in writing, and being paid two hundred dollars as an equivalent for moving and giving up this lease.” He further agreed, that “if default shall be made in any of the covenants herein contained, then it shall be lawful for the said party of the first part to re-enter said premises and to remove all persons therefrom.”

Before May 1, 1868, Morrison let the lot (of which the plaintiff was afterward dispossessed by summary proceedings), to the plaintiff, for one year from May 1, 3868.

About July 26, 1868, Morrison made an agreement in writing with the owner of the fee (it having in the meantime been conveyed) in consideration of three hundred dollars. The tenor of the material part is : “ I hereby cancel said lease or agreement, and waive any further notice, and agree to vacate said premises on or before July 1 ( ), A. D., 1868, and give the full possession thereof.”

On the trial, Morrison swore that about the time of making this, lie told the plaintiff he must move in two months. He also swore, that at the time of giving the one year lease to plaintiff, he told him that when he, Morrison, had to move, the plaintiff had to move. Again that he told him-“what the lease said.” The jury, if they had not relied on the plaintiff’s testimony, would, I think, by the weight of the evidence, have been bound to find that Morrison, at the time of letting to the plaintiff, informed him of the covenant of the lease as to vacating the premises.

Morrison could not, by 1ns cancellation of the lease, annul the lease lie had previously made to the plaintiff 14 Co. 429, Davenport’s case, and note B). The plaintiff’s interest in the land remained unimpaired, subject, we may say, to the terms and conditions of the lease to Morrison. Morrison, by that, xvas only bound to vacate upon two months’ notice in writing. Even if he had had this notice, and that time had elapsed, the term was not absolutely or ipso facto -gone, but continued until the landlord otherwise elected. The words used permit the landlord to enter, but do not provide for the term ending, at all events, upon breach of the covenant (Beach v. Nixon, 9 N. Y. 37). These provisions are strictly construed. Morrison had not received the notice in writing provided, nor even had two months passed from the time he cancelled his lease. Therefore, the plaintiff, at the time he was dispossessed, was lawfully in possession, his term not-having expired. The defendants had no rights against him as a trespasser.

As to the exceptions based upon the form of the complaint in its averments of damage, we must hold that the words “to his great damage, viz: six thousand dollars, and his said business broken up,” comprehensively referred to all the particulars of alleged trespass set forth in the same paragraph. The plaintiff had a right to prove these particulars, so far as it was shown they were parts of the trespass complained of. Part of this was an alleged loss of money suffered by the plaintiff. There was a specific objection taken that this ioss being in the nature of special damage, the complaint should have specially alleged it. Such is the rule where the loss is not the natural and direct consequence of the trespass ; but in the present case, the trespass itself was alleged to be, in part, the taking and conversion of “ personal propeity of great value, to wit: two thousand dollars.” Money in bills is certainly personal property. If there was uncertainty in the averment, and the defendantueeded greater particularity to enable him to defend, the code provides that a motion to compel certainty might be made.

On the trial no objection was made that it did not appear that the taking of the money was either by the pelendants or their authority, or that it was not a part of dispossessing under the warrant. The objection was that it was not competent to prove under the complaint the taking of the money. As the complaint alleged that personal property was wrongfully taken, I think the plaintiff had a right to give the testimony.

The question, “ what was the use of the premises worth from the time you were dispossessed to the year ending May 1, 1869 ?” was objected to, on the ground, first, there is no allegation of this kind in the complaint; second, that the plaintiff' claims the value of the building and the rent also. As to the first ground, the complaint alleged that the defendants had thence hitherto deprived and kept the plaintiff out of his land and premises.” As to the second ground, the plaintiff in this action was entitled to all the facts going to show the jury what damage had been suffered. The value of the building was one fact. The value of the use and occupation was another. Because the plaintiff gave the two in evidence, he did not necessarily claim that he was entitled to the whole of both. Indeed, if there were any inconsistency in the claims, he was not bound to put himself on one or the other until he was called upon to elect. This demand, however, was not made. In the charge, the judge presented the matter in such a way that the defendants were not in danger of having double damages given against them. .

On this same point, I do not think the eleventh request to charge was correct. It was “that the plaintiff must elect whether he will claim for the building or rent, and that he can not require the jury to determine for him whether he is to have one or the other.” . I do not think if it were a case to put the plaintiff to an election, that he was bound to elect, until specifically called upon to do it. It was the duty of the jury to give damages, according to the facts in evidence, under the charge of the court.

It was competent to give evidence as to the way in which the house was placed on the soil, at least to-show that no injury would be done to the freehold by its removal. The court left it to the jury in a correct manner to determine if the house were the plaintiff’s or not (Tifft v. Herton, 53 N. Y. 377; Voorhis v. McGinnis, 48 N. Y. 278; Loughran v. Ross, 45 N. Y. 792). In any view, the defendants were not injured by proof of the fact.

There were several minor exceptions, not calling for detailed attention, which I think should not be sustained.

On the whole case, I am of opinion that the judgwwat should be affirmed, with costs, to respondent.

Momell, Ch. J., and Fbeemiatt J., concurred.


source: Caselaw Access Project

author: By the Court.—Sedgwick, J.

license: Public Domain

text:
    EBEN GOODWIN, survivor of EBEN GOODWIN and WILLIAM H. GOODWIN, Plaintiff, v. DAVID HIRSCH, Defendant.
    I. Examination of parties, &c., under section 399 of the code.
    1. Conversations by a defendant with two partners, one of whom has died, which conversations resulted in a contract, the basis of an action on a defense.

      a. What does not authorise the defendant to testify to the conversation between him and the deceased.

    1. The fact that the surviving partner, being plaintiff, has testified to a conversation with the defendant, on the subject of the contract, does not authorize the defendant to testify to conversations between him and the deceased partner on that subject.*
    But,
    if the plaintiff undertakes to testify as to what occurred between the defendant and the deceased partner, and the evidence thus given has the force of testimony, the door is opened to the defendant to testify on the same subject,—Semble, even if such evidence of the plaintiff has not the force of testimony, yet if the case was tried before a jury, a ruling refusing defendant leave to testify as to what took place between him and the deceased partner, would be a material error.

    But,
    when the case is disposed by a court, in whose mind such evidence had no weight, such refusal to permit clefend ant. to testify, will not constitute material error, for thp case will be treated as if the plaintiff had not given-the evidence in question.

      * The question as to whether, when a plaintiff being a surviving partner, testifies to a communication between himself and the defendant, which in itself contains such a reference to what was said or done between the defendant and the deceased partner as that a knowledge thereof, would be necessary to an understanding of the communication between the plaintiff and defendant, the defendant can testify as to what took place between him and the deceased partner, although adverted to in the opinion, is not passed on, but left open for discussion and decision when the case arises.

      n. ADMISSIONS.—PLEADING.
    1. Denies.—The use of this word in an answer does not necessarily constitute a denial.

    Instance.—To a complaint averring a salo and delivery, the-defendant answered: “First. Denies that plaintiff sold and delivered .... except on conditions hereinafter set forth. Second. And for a further defense, &c.” The answer nowhere alleged a sale on condition, but alleged.certain representations made as an inducement to purchase, and a. . guarantee.
    Held,
    no denial of the averment of the complaint, and that, consequen tly, the cause of action th erein set forth was admitted.

    HI. TRIAL. -AFFIRMATIVE OF ISSUE.
    ■ 1. On WHOM IT RESTS IN A peculiar case.
    1. In the instance above put, the affirmative is on the defendant-to sustain his allegations of representations and guaranty.
    2. Effect of plaintiff in such case assuming the affirmative. AND FAILING to ESTABLISH HIS CASE BY PROOF.
    1. It does nob pi-event his taking on appeal, the ground that his cause of action was admitted Try the pleading, for the purpose of sustaining a judgment in his favor in the court below.
    IV. APPEAL.
    1. Exclusion of testimony.
    1. Mon-offer to prove facts, proof of which is necessary to render-the evidence offered material and competent; effect of on appeal, a. The ruling excluding the testimony will not be sustained' by reason of such non-offer.
    1. Where the ruling was in substance that the proposed evidence could not be given, even if the other facts (of which no proof was offered) existed. Or,
    2. When no question was, or was intended to be raised,, as to the existence of such other facts, or when they were either conceded or not disputed.
    V. AGENT.
    1. Evidence of agency.

      a. What sufficient to establish so that his acts, statements and. declarations made, or communicated to one who, on the faith thereof, enters into a contract, will bind the other party to the contract.

      1. Evidence that the party claimed to be the principal, during the preliminaries to a contract for the sale and purchase of certain machines, said to the person who subsequently entered into the contract on the faith of the statements, &c., of the one who was claimed to be agent, “ My brother and Mr. A. have the entire control over this machine business, and whatever arrangement they may make, I shall be satisfied and content with.”
    Held,
    sufficient to establish the agency of A. for above purposes.
    2. Statements and declabations op agent.
    1. When not, and when, binding on prinoipal.

    1. Mere colloquial narrations and statements which do not make part of a contract entered into, or of the inducement which led to it, are not binding on the principal.
    2. But statements made in the course of a negotiation which either form a part of the contract, or of the inducement which led to it are binding to the same extent as if made by the principal.

    Before Monell, Ch. J., Freedman and Sedgwick, JJ.

      Decided June 1, 1874.
    'Exceptions ordered to be heard at general term.
    The complaint averred that at divers times, in the years 1870 and 1871, the firm of William H. Goodwin & Company sold and delivered to the defendant, goods, wares, and machines, for which the defendant promised to pay six thousand two hundred and seventy dollars ; that he had paid on account of the same two thousand five hundred dollars; that plaintiff was sole survivor of the firm, &c.
    The answer denied “that at divers or any times, in the years 1870 or 1871, of any year or years, the said firm of William H. Goodwin & Company sold or delivered to the defendant, at his request or otherwise, goods, wares, or merchandise or machines, for which said defendant promised to pay the sum of six thousand two hundred and seventy dollars, or any other sum as alleged in said complaint, except under conditions hereinafter set forth.” ;
    For a further defense the answer averred, that in the year 1871, William H. Goodwin & Company had for sale a machine and mold for the manufacture of cigars ; that to induce the defendant to ' use said machine and mold, in his own business as a manufacturer of cigars, said firm represented to him that said machine was a “new, useful and valuable machine for the purpose of such manufacture in an unusually rapid and economical matter, surpassing in all respects, in value, usefulness and efficiency any machine o then in use or known to the public ; ” that as a further inducement, said firm “did guarantee” the defendant that said machine was in all respects a better machine than any other then in use, and that in case any improvement of any kind should be made in said machine or molds the firm would furnish to the defendant improved machines in the place of that sold to defendant, and that the firm would indemnify and save harmless the defendant against loss, damage- or expense which the defendant might incur, as a consequence of the use of said machine or from its failure in any respect in which it had been recommended by said firm ; that relying on such representations and guarantee the defendant took from the said firm a number of such machines and molds during the years 1870 and 1871,. and used them in his business; that said machines proved to be defective in many respects, and produced an article of merchandise which was unsalable, and that such machines and molds proved to, be a failure in each respect in which the same were recommended and guaranteed; that the defendant expended large sums of money .in preparing to use said machines and molds before he discovered their bad quality and failure, and that by reason of the poor quality of the cigars made by the machine in consequence of its defects, the defendant suffered great loss and damage in his business and business reputation; that by reason of the premises the defendant was damnified and suffered loss to the extent of ten thousand dollars, which sum this defendant counter claims and insists shall be allowed him in this action, and for which he may have judgment in his favor, and that said plaintiff shall not take anything whatsoever by reason of the several matters by him alleged and set forth in his said complaint.
    The action was tried by a judge and jury, the plaintiff opening. The plaintiff testitied that the firm of William H. Goodwin & Company formerly consisted ■of himself and his brother William H. Goodwin, who was then dead. He testified to a negotiation between himself personally and the defendant, for the sale of certain machines for,making cigars. He testified “the actual sale, the bargain, -was finally consummated between my brother and Mr. Hirsch for the first fifty machines. My brother accepted the offer which I had refused.” On cross-examination by defendant’s counsel, he,testified : “I have not personal knowledge ofj all I have been testifying about. I take the entry on the books as to dates. The first fifty machines he bought I refused to sell at the price he offered, but my brother sold them. I was not present at the conversation and know nothing about the transaction, except as reported to me by my brother. After my first interview with Hirsch I did not see him on the subject of purchasing the machines, until he bought the seventeen. These I sold him myself.”
    For the defense, the defendant was examined. In his testimony he gave no evidence that the plaintiff personally had made the representations or guarantees on which the answer averred the defendant took the machines. He was asked the question: “State what was done between you and Mr. William H. Goodwin on the subject of your taking these machines and molds?” And the further question : “ What, if any, agreement did you make with William H. Goodwin or Eben Goodwin in regard to the receiving at' yóur store or factory of these cigar machines and molds ?” The-questions were objected to, and excluded by the court, to1 which the defendant excepted.
    At the closé of the testimony, the defendant moved to dismiss the complaint on the ground" that the-evidence discloses that there is a party in interest' who is not joined in the pleadings. •
    ; Which motion was denied by the court,- and defendant excepted.
    The plaintiff moved the court to direct the jury to find a verdict for the plaintiff.
    The defendant requested the court to submit the disputed questions of fact to the jury.
    Which request the court then and there refused, and the defendant excepted.
    The defendant requested the .court to submit to the jury whether there had been an unconditional sale of, the seventeen machines as claimed by the plaintiff, and also whether they were worth the prices claimed.
    Which request the court then and there refused,, and the defendant excepted.
    The court then directed the jury to find a verdict for the plaintiff for four thousand two hundred -and twenty-two dollars and twenty-four cents.
    To which.direction the defendant then and there-excepted.. ; ■ ■ ■ ;
    And the. jury found a verdict accordingly."
    The court directed the exceptions to be heard in the-first instance at the general term, and in the meantime,, proceedings.on the verdict to be stayed. . - ■

      Arthur, Phelps. & Knevels, attorneys, and Benj
      K. Phelps, of counsel for plaintiff, urged:—I.
    The testimony offered of conversations between Pearl and the witness Boehme were properly excluded. Conversations between two outsiders, neither of them parties to the action, could in no aspect be competent,' especially as there was no pretense that the conversation,. whatever it was, was ever communicated to either of the parties to the action. Nor is it bettered by the assumption that Pearl had an interest in the machines. It would have been equally inadmissible if it had related to conversation between plaintiff and witness. It was as to what was said before the contract or bargain was-made. It could not have influenced the defendant in making the contract, because it was not communicated to. him, and being before the bargain, it can not be used as an admission by the party in interest as to what the bargain was.
    II. As to the conversations with Wm. H. Goodwin, deceased, the questions put to defendant, were all properly excluded by the court. They were all plainly within the prohibition of the Code, § 399, as amended by Laws of 1869, and as construed by all the authorities (Clark v. Smith, 46 Barb. 30 ; Dyer v. Dyer, 48 Id. 190; Stanley v. Whitney, 47 Id. 586 ; Barrett v. Carter, 3 Lans. 68; Hier v. Grant, 47 N. Y. 278 ; Hoxie v. Allen, 38 Id. 175), the objections were well taken.
    III. The only issue raised by the pleadings was, whether the sale was an absolute one, as claimed in the complaint, or one induced upon false representations and upon a guarantee, as claimed in the answer. After the evidence was in, there having been no application to amend the answer, the issue remained exactly the same. Unless the defendant had given evidence tending to show, and upon which the jury might find the guarantee set up in the answer, there was nothing to go to the jury, and the court was bound to direct a verdict. There was no such evidence, and the direction was properly given. There was no evidence whatever of guarantee. If the case had been submitted to the jury, and they had found for the defendant, the court would have been bound to set it aside as against evidence, and therefore not to have directed a verdict for plaintiff, would have been error (Newkirk v. N. Y. & H. R. R., 38 N. Y. 158 ; Peo. exrel. Peck v. Police, 35 Barb. 651 ; Goelet v. Ross, 15 Abb. Pr. 257; Deyo v. N. Y. Central 34 N. Y. 7, and cases there cited).

      A. J. Perry, attorney, and with A. Oakey Hall, of counsel, for defendant, urged: I.
    The court erred in excluding defendant’s testimony about the transactions between the deceased partner, the living partner, and defendant. 1. The injustice was committed of permitting the living partner to testify about his portion of the negotiation with defendant, while the latter was not allowed to give the story touching the other portions. '2. It was not only an injustice, but an illegality, and against the latter clause of section 399 of the Code—a clause intendéd to protect such a defendant as the one at bar under all the evidence. The evidence shows that the negotiations were begun with the dead partner, and continued and perhaps consummated by the living one.
    II. The court erred in excluding the testimony offered of conversation between Pearl and Boehme. It sought to adduce the declarations of an agent of plaintiff and one interested with him in the very suit being tried.
    III. The court erred in adjudicating that the answer admitted the making of the contract. If it did, why should plaintiff prove it ? '
   By the Court.—Sedgwick, J.

The defendant was asked several questions, which in their form called for his inferences and conclusions. These were properly excluded. It is unnecessary to give particular attention to them.

He was asked other questions, which called for conversations with Wil'iam H. Goodwin, the deceased member of plaintiff’s firm. These questions were properly asked if they were not excluded by the effect of section 399 of the Code of Procedure. It is not argued that these questions would have been admissible if the plaintiff had not testified as to his interview with the defendant, or that the sale was consummated in an interview between the defendant and the deceased partner. It is argued that his testifying to these matters permitted the questions, since it is provided by the last clause of the section, that the prohibition shall not extend to any transaction or communication to which any such survivor shall be examined on his own behalf.

I think the plaintiff was at liberty to testify to that part of the negotiations which took place between him and the defendant personally, without opening the door to testimony as to what was done between the deceased partner and the defendant personally, and which closed the negotiations. The clause, saying that the prohibition shall not extend to a transaction, &c., clearly refers to such a transaction as could not be testified to by the previous terms of the section. That is a personal transaction between a witness and the deceased. In a general sense, if the deceased acted in part of a transaction, and the survivor in the rest of it, the whole is but one transaction, andif the survivor testifies to what he took part in personally, he testifies to the transaction. This is true, however, only in legal idea or judgment; for, as a matter of fact and actual occurrence, what the one did was not a part of what the other did. The section relates to testimony to facts or actual occurrences. For the purposes of the section what was done between a defendant and a sur■vivor, not being a part of what was done with the ■deceased, there is no ground for saying that the plaintiff having been allowed to give part, the defendant ■should have been allowed to give the rest.

■' But the plaintiff did testify to what took place between bis deceased partner and the defendant, in saying that the deceased partner accepted the offer of the "defendant. If this had the force of evidence, the question we are considering would, without doubt, have been allowed by the court. But it appeared that the witness was not present at any interview between the deceased and defendant. He knew of it only from what his brother said. Clearly, this had no force ■as testimony. It was not evidence against the defendant. If the case had gone to the jury, there would be room to say that they might have-been influenced by it. But the case was disposed of by the /court, in whose mind this had no weight whatever. It •must be treated as if no evidence had been given as to the interview between the defendant and the deceased, and as not permitting the defendant to testify as to that interview.

It will be observed that the case does not call for any decision as to the result of testifying to a communication between a defendant and a living partner, which in itself contained such a reference to what was -said or done between a deceased partner and the defendant, that a knowledge of the latter would be necessary to an understanding of the former.

But this brings up the consideration of whether if the court did reject this hearsay testimony, and the case was left upon an incomplete negotiation between the parties, in which the price was not fixed, .and as to which there was conflicting evidence, it ■was correct, to direct a verdict for the plaintiff, on the assumption that a complete contract appeared in the case in.behalf of plaintiff, and that there was no evidence to take the defense to the jury.

. I am of opinion that the answer admitted all that the plaintiff would have been called on to maintain if the answer made an issue with the averments of the complaint.- The first paragraph of the answer is the one alone which makes any pretense to deny any allegation of the complaint. That denies that the defendant bought any goods of the firm of William H. Goodwin & Company “except upon the conditions hereinafter set forth.” The complaint had averred nothing as to conditions, and the clause quoted is in no sense a denial of anything in the complaint. It is insensible unless it is construed, that he denies that he bought any goods, absolutely as stated in the complaint, but he admits he did, conditionally, and upon the condition afterwards stated.

. In looking to the rest of the answer, we find no allegations of a sale upon condition. Certain representations are alleged to have been made (but not fraudulently) as inducements to the defendant to purchase, and also “a guarantee” in respect of the goods is alleged. These representations and this guarantee are not inconsistent with the defendant having bought the goods and promised to pay, as alleged in the complaint. They rather imply that he did. He does not claim that the price was improperly averred in the complaint. These averments of. the answer do not annul the contract of sale, stated in the complaint, but furnish an independent defense which he should affirmatively maintain. On this state of. the issue, the plaintiff had nothing to prove, but defendant was to prove his affirmative defense. He sought to do this by the questions as to the interviews between himself and the deceased partner, which we have considered to be inadmissible. He farther gave some testimony that .he made certain statements to the plaintiff. The circa m-stances under which they were made were such, that it would be a question for the jury whether the plaintiff’s silence or replies were not virtually an admission of the truth of the statements. The defendant’s evidence as to the substance of these statements was vague and disconnected. It was so uncertain that it is best not to weigh on appeal several delicate considerations' that arise from it, especially in view of the character of another exception that we now refer to.

The defendant had testified that while the preliminaries to the sale were on foot, the plaintiff saicl to him, in reference to the price of the machines, “My brother and Mr. Pearl have the entire control of this machine business, and whatever arrangement they may make, I shall be satisfied and content with.” After this testi- , mony, á witness, who proved that he was foreman of the defendant, and in charge of his shop, was asked, “State when ,Mr. Pearl first- came to Mr. Hirsoh’s place and spoke to you about the mode and manner in ■which those machines were at your place ?” The defendant’s counsel further offered to prove, in connection with the question, after it had been objected to and excluded, that the time referred to was before the delivery of any of the machines. The court ruled that declarations of Pearl, in the presence of William H. Goodwin or Eben Goodwin, would be allowed, but those made to another party should be excluded. The defendant’s counsel then,further offered to prove by the witness, a conversation with Pearl about the contract which was to be entered hito. Exceptions were duly taken. In view of the testimony that the plaintiff had •said that his brother and Pearl had sole control of the machine business, Pearl’s oral statements in the course of the negotiation, might have been part of the oral agreement, or an inducement to the making of the contract. They were alleged to have been made to the defendant’s foreman. If communicated to the defend-. ant by the witness, and acted upon, there can be no doubt they were evidence. It not appearing that they were so communicated that it could be left to the jury to say that they were part of the contract, or of the inducement that led to it, the general objection that was taken might have been good, if the ruling of the court had not been that Pearl’s declarations to any one, except made in the presence of one of plaintiff’s firm, were not evidence. This was, in substance; a ruling that defendant should not give the evidence proposed, although the declarations were communicated to the defendant. After that, the defendant could not do otherwise, than deem that to be the law of case. Moreover, from all that passed, I think we can see that no question could have been intended to be raised by plaintiff, as to Hirsclr s foreman having told Hirsc-h, what was said. Of course, questions of that character should be excluded, if it appeared that the statements of Pearl did not- make part of the contract, or of the inducement that led to the ccntracj. Mere colloquial narrations of an agent do not bind the principal. The party offering" the evidence, must show prima facie that it is competent, unless there are in the case such circumstances, as we think there are here, that indicate that facts which would render the evidence competent, were not disputed, or were conceded for the occasion of the ruling.

For the reason last given, the exceptions must be sustained, the verdict set aside, and a new trial ordered, with costs to defendant to abide event.

Monede, Ch., J. and Freedman, J. concurred.


author: By the Court.—Speir, J. Curtis, J.

text:
    THOMAS E. FAIRFAX, Plaintiff and Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Defendant and Appellant.

      L 'CARRIER OF PASSENGERS.
    Baggage.
    1. Duty of carrier to take, outside of any special agreement,' is incident to the carriage of the passenger to whom it belongs.
    2. Loss of. liability of carrier for, as carrier, rests on.

      a. The carriage of the passenger and the payment of his fare for such carriage, where there is no special agreement.
    2. Agreement special.
    1. lleceipt by train baggags-masPr.

      a. Tiie receipt by a train baggage-master of a carrier by railroad plying between two points, of the baggage of a traveler, who is a passenger by another carrier plying between the same points by different routes, and who has paid no fare to the first carrier, does not constitute a special agreement with the first carrier, and render him liable as carrier for the loss of the baggage.

    3. Connecting lines.
    1. One carrier can make arrangements with connecting lines so that he may undertake to give a pissenger, who desires to be carried between two points, an option between several different routes as to which he will take, or to carry the passenger by one route and, his baggage by another.

    But,
    where there are two distinct lines running between two points, A. and B., the testimony of the agent of a carrier plying from a third point, C., in connection with several lines, one of the termini of the last of which was at B., that the carrier of which he was agent was in the habit of chocking baggage through to A., under some arrangment with connecting lines, that baggage checked with a cheek which indicated that it was not issued by either of the lines between B. and A., but rather that it was issued by one of the roads founing the connection between C. and B., might come by either of the lines between B. and A., and that the passengers might come by one of those lines and his baggage by the other, '
      is not sufficient to establish an arrangement between the line plying from C. with either of the lines between B. and A. to take the baggage of a passenger who has not paid for his passage on its line.

      a. The receipt by an employee of one of the lines between B. and A. of the baggage of a traveler who lias not paid for his carriage on that line will not impose on such Une a liability as carrier for the loss of the baggage.

    IL Application op above principles.
    ■ When A. purchased a ticket at Montreal from the agent of the Grand Trank R. R. Go., which on it's face purported to carry him to New York by the connecting lines of the Grand Trunk R. R., Plattsburg and Montreal, R. R., Champlain Transportation Co., Rensselear and Saratoga R. R., and the Peoples’ Line of Steamboats, and at Montreal he had his baggage checked by checks which did not purport to be checks of the Central and Hudson River Railroad Company, and he came to the city of New York not oh the C. and H. R. R. R. Co.,but via the Peoples’ Line of Steamboats’; avhilc at Troy the carrier who brought him from Whitehall delivered his baggage to the train baggage-master of the Central and Hudson R. R. R. Co., which company brought the baggage to the city of Now York; and a passenger agent of the Grand Trunk Railroad testified as above stated.
    Held,
    that the Central and Hudson R, R. were not liable as carriers for the loss of his baggage.
    Before Monell, Ch. J., Curtis and Speir, JJ.

      Decided June 1, 1874.
    Appeal by defendant from judgment entered on a verdict.
    The plaintiff being in Montreal, purchased a series of tickets from Montreal to Hew York, and left Montreal October 8,1870. The plaintiff was unable .to state the corporation he purchased the tickets of. He says, however, that he purchased them at an office adjoining St. Lawrence Hall, on October 7. 1870, and from the inscription on the check, “ H R. & ft. It.” meaning Hudson River and Railroad,” and the fact that he landed from a steamboat plying between Albany and New York, and other evidence, it is plain that he purchased them in Montreal of the Grand Trunk Railway, and that his route was by the Rensselaer & Saratoga. Railroad to Albany, and from thence by the People’s Line of Steamboats to New York. He procured, on leaving Montreal, seven pieces of baggage to be checked to New York, including the lost portmanteau, the subject of the action, for which last he received a check, which indicated on its face, and from the usual course of transportation of passengers and their baggage, that the baggage was to be taken over the same route. The carrier between Whitehall and Albany brought the plaintiff’s baggage to Troy, and there delivered the seven pieces to a train baggage-master of the defendants, on October 9, 1870, and it was carried through to New York- by the defendants, arriving between three and four o’clock P. M'., unloaded into defendants’ baggage-room in Twenty-ninth-street in the city, and held ready for delivery.
    Statement of the Case.
    The tickets consisted of a book of coupons available until the first day of November to the holder, to stop at various places, including Albany and Plattsburg. Leaving Montreal in the afternoon of October 8, he arrived at the usual pier of the landing of the People’s line of steamers on October 11, at six or seven o’clock P. M., having stopped over at Albany and Plattsburg ; and on the following morning, between eight and twelve o’clock, sent to the station in Twenty-ninth-street for his baggage. Six pieces were delivered. The-portmanteau had been stolen from the defendants’ baggage-room, between six o’clock of that morning and the time of demand, it having been on hand at the hour of six. The baggage-room was occupied by the Wesfccott’s Express Campan}'-, for the purpose of receiving and delivering baggage for the defendants, under an agreement with the Hudson River Railroad Company, and they were to take charge of baggage not called for within twenty-four hours after its arrival on the train. The room was a proper place for the receipt and storage of baggage, and due care was exercised in respect to it.
    On the question as to whether there was any arrangement or agreement between the Grand Trunk Bailroad and the New York Central and Hudson River Railroad, whereby the latter company was bound to take at Troy, and transport to New Yovk the baggage of a passenger who bought from the former company a ticket from Montreal to New York, via The Rensselaer <& Saratoga Railroad, and the People’s Line of Steamers, and who traveled to New York by that route, the following was the only evidence adduced,
    Isaac F. Hicks, a passenger agent in New York city for the Grand Trunk Railway, testified :
    ‘•'The Grand Trunk Railway Company’s northern terminus is Montreal. It issues tickets, and did in October, 1870, to carry passengers and their luggage from Montreal to New York. That (ticket shown witness) is the style of the tickets they used in October, 1870, over the Rensselaer & Saratoga Railroad as it reads.”
    The ticket was offered and received in evidence, and is as follows :

    “ Cross-examined. The coupon attached to this ticket from Whitehall to Albany, passes a passenger over the Bensselaer and Saratoga R. R.
    “ Q. A.nd over any part of the ST. Y. Central and Hudson R. R. R. Co. ?
    “ A. Yes, sir.
    “ Re-direct. The Rensselaer & Saratoga R. R. Co. operate the railroad between Albany and a point north of Troy called the Junction. That ticket takes a passenger from Whitehall to Albany, by the Rensselaer & Saratoga R. R.—not going first to Troy, not necessarily—to West Troy, and then coming down on that side of the river to Albany. That ticket reads from Albany to New York by the People’s Line of Steamers, which is a separate corporation from .the Hudson River Railway. Our company would sell, that and other kinds of tickets, also at Montreal. Passengers are privileged to stop over at the terminus of either of the coupons. It is not stated on the ticket' itself, but it is customary.

      ‘■'Re-cross. They were in the habit of checking their baggage through from Montreal to Hew York, under some arrangement of connecting lines. They used to give checks like this one at Montreal,' when they sold through tickets of either kind.
    “ Re-direct. This check can be used at either end of the line. The letters H. B. & B. B. seem to be a misprint, so far as I can understand it, it means undoubtedly the Hudson Biver, or Hudson Biver arid Bensselaer & Saratoga or Butland line, whichever you might call it.
    “ Re-cross. The route was not the H. Y. C. & H. B. but the Hudson Biver. I do not understand it to mean the Hudson Biver B. B. either. It is probably the designation of a route rather than a railroad. Baggage with those checks might come by the Hudson B. B. or by the steamer. A man might come down in the steamer and the baggage might come down on the Hudson Biver B. B.
    ■ “ Re-direct. Coming by the steamer it is the duty of the proprietors of the steamers to take up the last ticket. The several coupons would be surrendered to the several railroad companies over which the passen-' gers were carried.”
    ’ Charles H. Kendrick, general ticket agent of the. Hew York Central and Hudson Biver B. B., testified : “ I suppose the agents of other roads have in the general course of their business, authority to sell tickets over our road.
    “ The defendants had no agent in Montreal in October, 1870, authorized to sell tickets for them. If the Grand Trunk. Bail way Company should sell a ticket, running over the Hudson' Biver Bailroad, the defendants' would accept it. They had no agent for the sale of tickets for them- over any line of railways from. Montreal. The way the business was conducted at that time was, if the Grand Trunk Bail way sold', a-ticket running over the defendants’ road, they accepted it and charged the Grand Trunk Bailway with the price of it.
    “ Cross-examined. Other roads in other places where we had no agents sold tickets, which allowed passengers under our rules to travel over oar road with their baggage.

      ii lie-direct. If there was a coupon attached to the ticket entitling the passenger to a passage over the New York Central or Hudson Biver Boad, we would accept it as entitling him to a passage with his baggage over our road.”
    One of defendant’s train baggage-masters testified, that he had often seen checks similar to the one held by plaintiff, and had often had under his charge as such baggage-master baggage so checked ; and one of the employees of Westcott’s Express Co. testified, that he had often seen such checks on baggage that came from the Hudson Biver Bailroad.
    The defendants’ counsel requested the court to charge as follows:
    1. That the reasonable time within which the plaintiff was bound to call or procure his baggage to be called for, began to run after the arrival of the train with the baggage, and the readiness of the defendants to deliver it.
    2. That the defendants did not hold the plaintiff’s baggage as common carriers, and are not liable as such therefor.
    3. That the reasonable time within which the plaintiff was bound to call for his baggage can not be enlarged or prolonged by the act ,of the plaintiff in omitting to travel an 1 ve upon the same train with his baggage.
    4. That if the jury believe that the defendants did .-not receive any compensation for the carriage of the plaintiff and his baggage, or did not receive that portion of the plaintiff’s ticket which would enable them to claim such compensation from the Grand ‘Trunk Railway Co., then the defendants are not liable, unless they were guilty of gross negligence in respect ¡to the said baggage.

      5. That it was the duty of the company selling the plaintiff his ticket to send and procure to be sent his baggage by the lines over which his tickets ran; and if the jury believe there was a failure so to send the plaintiff’s baggage, and the plaintiff’s loss was caused ■or contributed to by such failure, the defendants are not liable.
    The court declined so to charge, and thereupon ■defendant’s counsel excepted.
    The jury, under the charge of the court, rendered a verdict for plaintiff, and assessed the damages at seven hundred dollars.
    From the judgment entered on the verdict defendant appeals.

      Frank Loomis, attorney, and of counsel for appellant, urged; I.
    The relation of carrier to a passenger and bis baggage, did not exist between the plaintiff and defendant. 1. The carriage of baggage is incidental to the carriage of the passenger (Ang. on Car. §§ 107,110 ; 2 Redfield on Railways, 4th Ed. 39; Laws of 1850, ch. 140, § 28, sub. 9). The obligation of a railroad company is to take whatever is delivered and received as baggage from a passenger in the baggage-car of ¡a passenger train in which the passenger takes Ms passage, and take it along with and deliver ■ it to the passenger at the place of destination in the usual manner of transporting and delivering baggage (Glasco v. N. Y. C. R. R. Co. 36 Barb. 557; Jones v. Norwich and N. Y. Trans. Co. 50 Barb. 193; Collins v. Boston and Maine R. R. Co. 10 Cush. 506). , The defendants did not carry nor undertake to carry the plaintiff with his baggage, and he had no ticket issued by the defendants, or which they would have received for his carriage, or which entitled him to carriage with his-baggage by the defendants. The witness, Hicks, by an evident blunder, states, in answer to a cross-question, th ■ t the coupon ticket between Whitehall and Albany passes a passenger over a part of the defendant's road, but on his re-direct examination he states correctly that the ticket passes the passenger from Whitehall to Albany by the Rensselaer and Sara-toga Railroad. Reference to any railway guide-book will show the same thing, and the court will take-judicial notice of established railroad routes generally known and used (Maghee v. Camden and Amboy R. R. Co. 45 N. Y. 524). As, then, the relation of carrier to passenger and his baggage did not exist between the-plaintiff and defendants, it was error to refuse to charge as requested, a. The question of the baggage being carried by the defendants under any arrangement other than incidental to the carriage of the plaintiff as a passenger was not presented by the pleadings. 5. There was no evidence from which any arrangement could be- inferred or to justify the submission to the-jury of the question whether there was such an arrangement, c. Newell, defendants’ train baggage-master, had no authority to receive the baggage, except as incidental to the carriage of the plaintiff (2 Redfield on Railways, 4th Ed. 39). And the delivery to. him of the plaintiff’s baggage by the Rensselaer and Saratoga Railroad, was an implied representation that the plaintiff had a ticket running over defendants’ line. «
    : II. Admit, for argument’s sake, that an arrangement existed between the Grand Trunk Railroad Company and the defendants for the carriage of baggage over the defendants’ road,-and for which carriage the Grand Trunk Railway Company was liable to pay another line. 1. The defendants fully' discharged their duties as carriers of-passengers an.d their baggage. That duty is- to carry the baggage safely upon the train upon which it is received and have the baggage ready for delivery on the arrival of the train and for a reasonable time thereafter, and if the owner fails to call for it within such reasonable time, the rigorous liability of carrier ceases, and ordinary care is the measure of duty (2 Redfield on Railways, 4th Ed. 40 ; Ouimit v. Henshaw. 35 Vt. 605 ; Glasco v. N. Y. Central R. R. Co. supra; Jones v. Norwich and N.Y. Trans. Co. supra ; Holdridge v. Utica and Black River R. R. Co. 56 Barb. 191 ; Roth v. Buffalo & State Line R. R. Co. 34 N. Y. 548 ; Burnell v. N. Y. Central R. R. Co. 45 N. Y. 184). The defendants safely carried the baggage, and held it ready for delivery for more than a reasonable time after its arrival, and thereafter exercised ordinary care-in respect to it, and the request to charge should have been granted. Plaintiff had no right to suit his own pleasure or convenience to prolong the rigorous liability of the carriers (Hedges et al. v. Hudson R. R. Co. 49 N. Y. 223). 2. If there was any arrangement for-the transportation of this baggage between the Grand Trunk Railroad and the defendants, it did not constitute as between the plaintiff and the defendants, the relation of carrier to 'the-passenger and his baggage. That relation calls for the" carriage of the passenger with his baggage by the same" route, and at the same time, and is not severable. If the defendants carried this baggage by an arrangement with the Grand Trunk Railroad in the absence of any proof as to its terms the defendants must be held to have undertaken to early ttie baggage as freight, and they fully performed the duties of that undertaking. The owner or consignee was not-present to'receive the portmanteau on arrival, and he was not known so that notice could be given to him, and the portmanteau was stolen without fault of those having its custody (Northrop v. Syracuse and B. R. R. Co. court of appeals, 5 Abb. Pr. N. S. 425; Fenner v. Buffalo & State Line R. 44 N. Y. 505).

      Hammond and Stickney, attorneys, and Albert Stickney, of counsel, for respondent, urged :—I.
    The first point in the case is whether the defendant received the plaintiff’s luggage as a common carrier. The defendant received the luggáge, under the liability of a common carrier, or under no liabilty whatever. The evidence is undisputed that the Grand Trunk Railway had authority to sell tickets which would carry passengers and their luggage over defendant’s road. They sold' tickets which sent passengers from Albany by either boat, or rail. They gave these same checks when they sold tickets of either kind. And these checks sent the luggage by either route. Clearly, then, the course of business, the “arrangement” between these different lines, was, that the railroad would sometimes be paid without conveying the luggage, and would sometimes carry the luggage, without being paid. And the two cases balanced. The authority of the party in Montreal that sold the plaintiff his ticket being admitted, the question comes, what contract that party assumed to make. The plaintiff made only one con- • tract; he paid his fare, as the consideration of the contract. He received for that consideration, from the agent, for himself the ticket, and for his luggage the checks. There was only one contract; that contract was entire. That contract was for the carrying of both person and luggage. The consideration moving from the plaintiff was his fare. The consideration, moving to the defendant was some other passenger’s fare, when-the defendant did not carry the luggage. Aside from ■that view of the case, however, the defendant, by its uniform course of business, recognized these checks delivered by the Grand Trunk Bail way, always under precisely these circumstances. The particular check in this case was delivered by the Grand Trunk Bailway to the plaintiff for the usual valuable consideration. There can, then, be no question but that the relation of common carrier did really exist between the plaintiff and the defendant. The point was, under proper instructions, submitted to the jury.
    II. If the defendant was, as to the luggage, a common' carrier, of course the plaintiff was entitled to a reasonable time to call for his luggage. The only point would be, whether the reasonable time began to run from the .arrival of the plaintiff or of the luggage itself. This depends on what contract, in that respect, the plaintiff made. As to this there is no doubt, on the defendant’s own testimony, that the plaintiff was entitled to stop over, at any period, “ at the terminus of either of the coupons,” provided the ticket was all used “within thirty days from date of issue.” He only stopped one day and a night. There was no conflict whatever in the testimony on the point. The “ reasonable time ” is invariably reckoned from the time of the arrival of the passenger, provided he travels and arrives according to the terms of the original contract of carriage. The plaintiff was entitled to have it charged, as matter of law, that the “reasonable time,” in this case, ran from the arrival of the plaintiff himself, if the relation of common carrier existed. This disposes of the first request.
    III. The question, what was a reasonable time, was a question for the jury. This has never been doubted.
   By the Court.—Speir, J.

The complaint states as the cause of action that the defendant, on October 8, 1870, as common carriers of passengers and their baggage, received into its cars the plaintiff with his baggage, to wit: one portmanteau containing wearing' apparel, money for his journey, and other articles, to be carried to the city of New York, and-there to deliver the said baggage ; and that by the negligence and improper conduct of the defendants, said portmanteau and contents were lost, to the plaintiff’s damage, &c.

The answer admits that a portmanteau was received by the defendants on or about October 8, 1870, and ' alleges that the same was by the defendants carried to New York; and then had safely, at the defendants, baggage room, ready for delivery to the owner until after the expiration of a reasonable time, for the owner' to receive the same, and tor a long time thereafter ; but the owner failed to call for it, and it was thereafter, without fault on the part of the defendants, stolen. '

■ It appears to be well settled that the obligation of a railroad company is to take whatever is delivered and received as baggage from a passenger in the baggage car of a passenger train, in which a passenger takes his passage; and take it along with, and deliver it to the passenger at the place of destination, in the usual manner of transporting and delivering baggage (Jones v. Norwich & N. Y. Transportation Co., 50 Barb. 193 ; Glasco v. N. Y. C. R. R. Co., 36 Id. 557).

This is so, though nothing be said about it, or any separate agreement made concerning it; and no compensation be made for carrying the baggage. The contract to carry the ordinary baggage of the passenger is implied from the usual course of the business, and the price paid for fare is considered as including a compensation for carrying the freight (Hawkins v. Hoffman, 6 Hill, 586 ; Powell v. Myers, 26 Wend. 591). If the baggage of the passenger be taken, whether ordinary or extra, it is to be carried with the passenger, unless there is some agreement to the contrary.

The obligation is the same whether the baggage is within the quantity allowed to a passenger, to be carried without any charge other than his ordinary, fare, or whether it is an extra quantity for which an additional charge is made. Any other rule would be productive of hardship and inconvenience, and subject travelers to injury by loss and vexatious delays (Glasco v. N. Y. C. R. R. Co, supra). I have extracted this much from the opinions of these learned judges to bring into view the grounds upon which the decisions are based, and to show that it must follow, that the carriage of the baggage is an incident to the carriage of the passenger ; and that agents of companies have no authority to receive baggage on their account, except as incidental to passenger transportation (Redfield on Railways, 4 ed. vol. 2, 39). This leads us to consider the first question presented in the case, Did the relation of carrier to a passenger and his baggage exist between the plaintiff and defendant ?

The tickets which the plaintiff procured do not, on their face, contract to carry the plaintiff over defendants’ road. They do undertake to carry him by another route, viz., by the Rensselaer and Saratoga Railroad and the Peoples’ Line of Steamers ; and he went that way. The check given for the baggage, anjd the testimony shows it was to be taken with the owner and the inference and legal presumptions are that it was to go over his route. The baggage was, in fact, taken to Troy, and over defendants’ road to Rew York, whether by mistake, accident, or intention does not, appear. The Grand Trunk Railway at Montreal, by. its agent, the Rensselaer and Saratoga Road, must be held responsible for this deviation of the route ; for they issued the check and the tickets. It is not shown that the plaintiff passed oyer any part of the defendants’ road, and the inference, both from his ticket and stopping at Albany, is that he went the nearest route by continuing on the Rensselaer and Saratoga Road on the west side of the river. The proof is clear that the baggage at the junction crossed, over the river to-Troy, and passed down on the east side, on defendants* road to New York.

The court may take judicial notice of established railroad routes generally known and used (Maghee v. Camden and Amboy Railroad Co. 45 N. Y. 524). -The-defendants’ baggage-master taking possession of the baggage at Troy without any authority to receive it, except as incidental to the carriage of the plaintiff, and the delivery of it to Mm by the Rensselaer and Sara-' toga Railroad, was an implied representation that the plaintiff had a ticket running over defendants’ line. The agent who took the baggage had a right to suppose that the plaintiff was on the same line. This was-not the fact. Nor was it the undertaking between the parties, or cause of action alleged in the complaint; for at no time £ ‘ was the plaintiff received into defendants’ cars with his baggage ” as there alleged. Taking the baggage by an agent through mistake or accident, without authority, can in no legal sense establish that the relation of carrier to a passenger exists between the plaintiff and defendant.

Nor do we think that after rejecting all extraneous circumstances, the evidence can fairly be said to establish that relation, and unless it exists the plaintiff’s case is not made out, and the defendants can only be responsible for ordinary care. The question wh ether the baggage was carried by the defendants under any arrangement other than incidental to the carriage of the plaintiff as a passenger, was not presented by the pleadings. The evidence, we think, showed that the course of business was for the defendants to accept and carry the passenger and his' baggage when his ticket ran over their road. The learned judge told the jury, if from these circumstances they believed, that this baggage was taken by the defendant under some arrangement which it had made with 'the Grand Trunk Bailroad, then the defendant was a common carrier as respects that trunk.

The facts proved are not only inconsistent with an agency on the part of the Grand Trunk Bailroad to sell these tickets which should carry the plaintiff over defendant’s road, but we think they do not imply such agency. The testimony of the witness, Hicks, on his cross-examination, is “The coupon attached to this ticket from Whitehall to Albany passes passengers over the Rensselaer and Saratoga Railroad.” Then the counsel, not the witness, says, “And over any part of the N. Y. Central and Hudson River Railroad Company,” witness says “Yes, sir.” This is immediately explained by the witness, as follows: “The Bensselaer and Saratoga Bailroad Company operate the railroad between Albany and a point north of Troy, called the junction. That ticket takes a passenger from Whitehall to Albany, by the Bensselaer and Saratoga Bail-road, not going first to Troy, not necessarily, to West Troy, and then coming down on that side of the river to Troy. That ticket reads from Albany to New York by the Peoples’ Line of Steamers, which is a separate corporation from the Hudson River Railway.” This embraces all the testimony on the subject of agency. After this positive evidence relating to the ticket, and the course of travel indicated by it, we think positive proof of agency was required to justify the submission of the question to the jury.

That it was in the power of the Grand Trunk Bail-road Company or its connecting line to do something contrary to the course of business, and that there were instances of that kind testified to by some of the witnesses, is not evidence of an arrangement, nor evidence from which an arrangement can be inferred.

The ticket was evidence of the payment by the plaintiff, to the Grand Trunk Railway, of the fare for the carriage of himself and baggage, from Montreal to New York, to be by the People’s Line of Steamers, and the proprietors of that line received the ticket and the undetached coupon, and charged the Grand Trunk Railway Company with the fare of the carriage of the plaintiff and Ms baggage, between Albany and New' York. It would be most extraordinary to infer that the Grand Trunk Railway had arranged either .to fay another line for the carriage of the plaintiff’s baggage, or to have his baggage carried by another line.

If these views be correct, the examination of the remaining question is not material; but as it was discussed by counsel on the argument, it may be noticed. That question is : Did the owner call within a reasonable time for his trunk % If we admit as claimed by the plaintiff, and charged by the learned judge, that the jury might find from the evidence, and did find that the arrangement above alluded to existed for the carriage of baggage over the defendants’ road, for which the Grand Trunk whs liable to pay another line, I am of the opinion that the defendants fully discharged their duty as carriers of passengers and their baggage. That duty is to carry the baggage safely upon the train upon which it is received, and have the baggage ready for delivery on the arrival of the train, and for a reasonable time thereafter ; and if the owner fails to call for it within such reasonable time, the rigorous liability of the carrier ceases, and ordinary care is the measure of duty (Redfield on Railways, 4 ed. vol. 2, 40; Ovimit v. Harshaw, 35 Vt. 605; Roth v. Buffalo & State Line Railway Co., 34 N. Y. 548 ; Burnell v. N. Y. C. R. R. Co., 45 Id. 184 ; Glasco v. N. Y. Cen. R. R. Co., supra ; Holdridge v. Utica & Black River R. R. Co., 56 Barb. 191).

The plaintiff’s ticket was good by its terms for thirty days from date of issue. He might make a coritinuous trip between Montreal and New York at any time within thirty days from the date of his ticket. It was customary to allow passengers to stop at the terminus of either of the coupons. He did stop over at Albany and Plattsburg, and came to ¡New York city on the afternoon of Tuesday, and demanded his baggage on Wednesday, between eight and twelve o’clock in the forenoon. It was clearly the plaintiff’s duty, knowing that his baggage would precede him by as many days at least as he stopped over, to have had it checked according to the intervals he tarried on the way. When he checked through to ¡New York, it represented, in effect, that he intended a continous trip to that place. After having misled the carriers by the above representation, he had no right to suit his own pleasure or convenience to prolong their rigorous liability (Hedges v. Hudson River R. R. Co., 49 N. Y. 223).

There was no community of interest between the defendants and the Grand Trunk Railroad Company, and it is quite certain that the defendants did not derive any pecuniary benefit from the transportation (Milnor v. N. Y. & N. H. R. R. Co., 53 N. Y. 368). Again, the relation as we have seen of a carrier to a passenger and his baggage, did not exist between the plaintiff and defendants. That relation calls for the carriage of the passenger with his baggage by the same route and at the same time, and is not severable. The portmanteau was received on October 9, at defendants’ station in Twenty-ninth - street,, and the defendants either held it in their store-room, by the Westcott’s Express Company as their agents, or deposited it with that company for storage, and due care seems to have been exercised in regard to it until the demand was made for it in the forenoon of October 12. It was on hand at six o’clock in the morning of that day, and stolen after that hour, and before the demand was made. The plaintiff was not present to receive the ' portmanteau on arrival, and he was not known so that notice could be given to him. The carrier should not, in justice, be held to the strict liability as insurer of the goods for any indefinite time at the plaintiff’s convenience (Fisk v. Newton, 1 Denio, 45; Northrop v. Syracuse Railroad Co., 5 Abb. Pr. N. S. 425).

There being no conflict of testimony regarding the time of the receipt of the trunk, the time it was held, the demand and loss, the care exercised in regard to it, it follows, I think, that the submission of the case to the jury, was error.

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

Monell, Ch. J., concurred in reversing the judgment, on the first ground stated in foregoing opinion.

Curtis, J.

(dissenting).—The defendants sold tickets through the' agency of the Grand Trunk Railway at Montreal, which would carry passengers and their baggage over defendants’ road. These tickets were good for thirty days, from Montreal to New York, with privilege to stop over at various places on the route. They issued checks for baggage at Montreal marked, “H. R. & R. R.” in connection with the passenger-tickets by which baggage might come by the Hudson river or by the railroad. The baggage was thus checked through from Montreal to New York, under some-arrangement with the connecting lines. The evidence is, that under this arrangement, a passenger might come down in the steamer, and his baggage might come down on the Hudson River Railroad. This arrangement existed apparently for the convenience or advantage of the defendants and other parties interested, in the transportation of through passengers, over the two routes, and it did not appear to have depended on the volition of the passenger, over which of the two-routes Ms baggage was carried. The plaintiff arrived in Yew York in the evening, and sent to the defendants’ station between seven and eight o'clock the next morning for the portmanteau in question, presenting his check. It was not delivered to him, and could not be found. It had arrived the afternoon of the day preceding plaintiff’s arrival, and was in defendants’ , •custody at six o’clock the morning he called.

The defendants claim that they did not receive the . portmanteau in the capacity of a common carrier, and also, that the plaintiff did not call for it in a reasonable time.

It was left-for the jury to find if there existed the state of facts claimed to exist by the plaintiff, making the defendants’ relation to the transportation of the plaintiff’s baggage that of a common carrier. It was also left to the jury to determine if, in case the defendants’ relation was that of a common carrier, whether the plaintiff applied for his baggage in a reasonable time.

The jury rendered a verdict for the plaintiff, and it must be assumed that they found for the plaintiff on the two questions submitted. The evidence justifies the verdict.

If the defendants entered into an arrangement with other parties for their own advantage, by which a passenger is transported over a part of his journey separated from his baggage, it should not operate to discharge the defendants from their ordinary liability to a passenger who has paid Ms fare for the transpor- . tation of himself and his baggage, because the defendants have arranged, as their part, to transport only the passenger’s baggage. They had their consideration out of plaintiff’s fare, paid at Montreal, for their share of the transportation, in the general settlements made by the parties engaged in it. The defendants were notified by the check, and if they wished to have avoided the usual liability to a passenger, they should have declined taking the portmanteau, and refrained from selling through tickets, and holding themselves out to the public as responsible.

The jury found properly that the plaintiff called for his baggage in a reasonable time. The ticket provides for delay, which he did not avail himself of. It is. not ' desirable to encourage any theory that parties entrusted with the transportation of baggage may, after what they consider a reasonable time, neglect or lose it.

Some question is raised as to the damages. The jury appear not to have been governed much by the statement of value made by the dealer in second-hand garments called by the defendants, but there is ne reason to suppose that it was because they thought his business was the purchasing of this class of missing' and lost or uncalled-for effects. On the contrary, there was evidence of value justifying the finding of the jury in that respect.

My impression of the case is, that the judgment appealed from should be affirmed.


author: Freedman, J.—To

text:
    AT SPECIAL TEEM,
    JUNE 1, 1874.
    CORTLAND De P. FIELD, v. RUFUS W. LEAVITT, ET AL.
    L UNDERTAKING ON APPEAL—MARRIED WOMAN.
    1. A married woman can not be surety on an undertaking on appeal.

      Decided June 1, 1874.
    Motion for approval of undertaking on justification. of sureties.
   Freedman, J.—To

render an appeal to the court of appeals from a judgment of the general term affirming-a money judgment, and awarding to the respondent the costs of the appeal, effectual for any purpose, a written undertaking must be executed on the part of the appellant, by at least two sureties, to the effect that the appellant will pay all costs and damages which may be awarded against him on the appeal, not exceeding the sum of five hundred dollars, &c. (Code, § 334).

_ If, in addition, the appellant desires to stay the execution of the judgment, he must file a further undertaking, executed by at least two sureties, to the effect that, if the judgment appealed from, or any part thereof, be affirmed, or the appeal be dismissed, the appellant will pay the amount directed to be paid by the judgment, or the part of such amount as to which the judgment shall be affirmed, if it be affirmed only in part, and all damages which shall be awarded against the appellant upon the appeal (section 335).

These undertakings may be in one instrument or several, at the option of the appellant (section 340), but no undertaking will be of any effect unless accompanied by the affidavit of the sureties that they are each worth double the amount specified therein (section 341).

The respondent may except to the sufficiency of the sureties, and thereupon the sureties must justify in the same manner as sureties on the discharge of a defendant from arrest are required to justify, or the appeal will be regarded as if no undertaking had been given, (section 341).

The appellants in this case have complied with these requirements, but the respondent objects to the approval of the undertaking, on the ground that one of the sureties is a married woman.

Though a married woman may now incur a liability for another by declaring her intent to make, and by making, such liability a charge upon her separate estate in the contract into which she enters (Corn Exchange Ins. Co. v. Babcock, 42 N. Y. 613), and though this has been done in this case,, and the said surety has disclosed sufficient property, I am nevertheless of the opinion that the objection should not be overruled. The code prescribes the form of the undertaking, and contemplates a personal responsibility on the part of the sureties. An undertaking, - executed by a married woman in the precise language of the Code, binds neither her nor her estate. In no event can she bind herself generally, and in order to bind her estate, she must add words having that effect. An undertaking containing such words, however, is an instrument of a form different from that prescribed by the Code, which the respondent may accept, if he see fit, but which he should not be compelled to take.. In lieu of the required undertaking, the appellants may deposit the amount for which such undertaking is to be given (sections 334, 335), but the acceptance of any other substitute- can not be compelled.

The motion for the approval of the undertaking • must be denied.