author: Stover, J.: Herrick, J.

text:
    Clarissa Miles, Respondent, v. The Fonda, Johnstown and Gloversville Railroad Company, Appellant.

      The question of contributory negligence is for the jury.

    The question of contributory negligence is, in actions brought to recover damages for alleged negligence, one to be determined by the jury; and where such contributory negligence is not clearly established by uncontradicted evidence the appellate court will not interfere with the verdict of the jury.
    Herrick, J., dissenting as to the result.
    Appeal by tbe defendant, The Fonda, Johnstown and Gloversville Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Montgomery on the 18th 'day of May, 1891, upon the .verdict of a jury rendered after a trial at the Montgomery Circuit, and also from an order entered in said clerk’s office on the 21st day of May, 1891, denying the defendant’s motion for a new trial made upon the minutes.

      A. D. L. Balter, for the appellant.

      L. F. Fish, for the respondent.
   Stover, J.:

The circumstances under which this accident occurred have been heretofore reviewed by this court in the case of Shires v. The Fonda, Johnstown & Gloversville Railroad Company (reported in 80 Hun, 92). In the case cited the action was brought by the driver and the owner of the vehicle. This action is brought by a passenger.

I think the evidence in this case shows a different state of facts from that appearing in the Shires case. In this case four witnesses have testified that they were listening; that no bell was rung, whistle blown or signal given as defendant’s train approached the crossing. Other witnesses testified that a hell was rung; hence this question was properly submitted to the jury.

As to the contributory negligence of the plaintiff, in the Shires case the plaintiff testified that he did not look to the south, from which direction the train was approaching, after he reached a point forty-five feet from the railroad track. In this case plaintiff swore slie looked when twenty-five or thirty feet from the track, but did not see the approaching train. The question for the jury was whether the passenger had been guilty of contributory negligence, and I think that question was properly submitted to the jury.

On the whole case, as the facts appear on- this trial, I think the question of contributory negligence was for the jury within principles established in Hoag v. N. Y. C. & H. R. R. R. Co. (111 N. Y. 199); Massoth v. D. & H. C. Co. (64 id. 524) and like cases. In the Hoag case deceased and her husband could see down the track a long distance for seventy feet before reaching it, yet the court held the case should have been submitted to the jury.

In this case there is evidence that plaintiff was going from four to six miles an hour and the train eighteen miles. At that rate the wagon was traveling about seven feet per second and the train about twenty-six feet. Probably the train could not have been seen before the wagon passed the elm tree sixty feet from the track. "When the plaintiff passed the tree the horse was only about seven or eight seconds from the track and the train may not have been in sight. It should be remembered that the railroad track made a short curve from the bridge to the crossing and that the plaintiff, Shires and Shires’ wife were sitting on one seat facing the west. 'When the wagon was about thirty feet away, say four seconds, from the track, at which point plaintiff said she looked to the south, the train may have been one hundred feet distant. The evidence of the plaintiff that she looked and did not see it is not incredible. The train was coming around a curve, behind her. As she sat facing the west, with two others in the seat, doubtless unable to turn around and look back of her, it is not improbable that the cars were not in her line of vision, looking to the left as far as she could see. The witnesses who afterwards stood in the street at the place of the accident, with their faces to the south, could see to the railroad bridge, but a person driving to the west, sitting on a seat with two others, and naturally unable to look backwards, could not very likely see more than seventy-five or one hundred feet as the witness Cross testified.

As we have seen, when plaintiff passed the elm tree, the horse’s head was probably about eight seconds from the track. Plaintiff then might, without being deemed negligent, turn and look to the right and after that to the left, as she swears she did at twenty-five or thirty feet from the track. When she again looked the horse was on the track.

The facts were all before the court and jury. I do not think it clearly appeared from the uncontradicted evidence that plaintiff’s negligence contributed to her injury, and hence conclude the case was properly disposed of on the trial.

Putnam, J., concurred.

Herrick, J.

(dissenting):

This is an appeal from a judgment rendered upon the verdict of a jury in favor of the plaintiff and against the defendant. The action is founded upon an accident that occurred on the 10th day of May, 1893.

Another case arising out of the same accident has been heretofore before this court, and is reported in 80 Hun, 92.

The facts in each case are substantially the same; practically the only difference' is that in that case the action was brought by the driver of the wagon that collided with defendant’s train, and in this action the plaintiff was a passenger in said wagon.

The horse attached to the wagon in which plaintiff was seated appears to have been entirely under the control of the driver, and as stated in the Shires Case (80 Hun, 92), defendant’s train was in plain sight of the occupants of the wagon for a distance of 200 feet before the crossing was reached at which the accident occurred; it could be seen by the occupants of said wagon, had they looked, in sufficient time to have stopped, or to have turned out upon either one of two turnouts from the main road before the crossing was reached.

Recognizing the fact that the responsibility of the driver of a vehicle and of a passenger therein is different in degree, still I am unable to find any evidence in this case to submit to a jury showing that the plaintiff was, free from contributory negligence. And in cases of this kind it is too well established to need citation of authorities that the plaintiff must show affirmatively her own freedom from negligence in order to enable her to maintain her action; this she has failed to do.

From the oral evidence in this case, and the maps of the locality-submitted, it is perfectly apparent that had the plaintiff discharged the duty devolving upon a person approaching a dangerous crossing it would have been impossible that she should not have either heard or seen the approach of the defendant’s train in ample time before the crossing was reached to have avoided the danger, or at least to have made an attempt to avoid the danger, that would have released her from the imputation of contributory negligence. Under the circumstances of this case, the fact, if it be a fact, that she did not hear or see the approaching train, is of itself sufficient to satisfy me that she neither looked or listened, when she should, or might have done so ; therefore, she did not discharge the duty resting upon her in approaching such a locality. The judgment should be reversed and a new trial granted, costs to abide the event.

Judgment affirmed, with costs.


source: Caselaw Access Project

author: Stover, J.:

license: Public Domain

text:
    William Ramsay, Respondent, v. William Robinson, Appellant.

      Jurisdiction to allow damages, not obtained by-an appearance under a/rrest.

    ■William Ramsay made an affidavit before a justice of the peace in which he stated that William Robinson unlawfully removed a sheep and lamb from lands occupied by Ramsay to lands of Robinson and refused to return the same, without any proof that the sheep and lamb were Robinson’s property. Upon this affidavit the justice issued a warrant of arrest, and Robinson having been brought before the justice, pleaded not guilty', and stated that he owned the sheep in question.
    Ho papers of any kind were ever served upon Robinson. The justice took testimony and subsequently gave judgment for the plaintiff for five dollars damages and costs.
    Held, that the appearance of the defendant before the justice was not a voluntary appearance, and that the justice had no jurisdiction to render the judgment.
    Appeal by the defendant, William Robinson, from a judgment of the County Court of Washington county in favor of the plaintiff, entered in the office of the clerk of said county on the 29th day of October, 1894, upon the decision of the court affirming a judgment of a justice of the peace of the town of Hebron, Washington county.
    The return of the justice of the peace states that he rendered judgment in favor of the plaintiff for five dollars damages and two dollars and seventy cents costs. It further states that before the notice of appeal to the County Court was served the defendant paid to the justice the amount of the judgment.

      Willard Robinson, for the appellant.

      Abner Robertson, for the respondent.
   Stover, J.:

On the 1st day of May, 1891, the plaintiff mads the following affidavit:

“Belcher, 1-5-91.
“I, William Ramsay, being duly sworn, deposes and says that William Robinson did unlawfully remove one sheep and her lamb from off lands occupied by said William Ramsay to the said William Robinson’s land, and refused to return the same without any proof of '"said sheep and lamb being the property of said William Robinson. ‘ WILLIAM RAMSAY. ’
“ Subscribed and sworn to before \ me this 1st day of May, 1891. S
“ John A. Gibson,
Justice of the Peace.”

On this the justice issued a warrant of ai-rest, and, as the return certifies, on the second day of May the defendant was brought before the justice under arrest; that the answer of the defendant was a plea of not guilty, and alleged that the defendant was the owner of the sheep mentioned in the complaint. The only “ complaint ” was the affidavit above referred to.

Neither a copy of the warrant nor any paper was served upon the defendant at any time. On the appearance of the defendant under arrest, and his plea, the justice proceeded to take the testimony, and on the fifth day of May entered in his minutes a judgment in favor of the plaintiff. The return shows that on the tenth day of August the judgment was entered in the docket of the justice. The appeal was seasonably taken.

I think the justice was entirely without jurisdiction to enter the judgment. No summons was ever issued or served upon the defendant, and his appearance before the justice under arrest, in the custody of a constable, and a plea of not guilty, cannot be said to be a voluntary appearance before tbe justice. An examination of the testimony further shows that there is no sufficient evidence to warrant a judgment in favor of the plaintiff if an action was pending. The justice certifies that, the defendant having failed to prove that the sheep in question was not the property of the plaintiff, he thereupon proceeded to enter judgment against the defendant in the action.

There is no sufficient evidence that plaintiff owned the sheep. The proceeding under review can scarcely be said to have been conducted under the form of law.

Judgment must be reversed, with costs in this court and the County Court.

Putnam and Herrick, JJ., concurred.

Judgment reversed, with costs of appeal in this court and in the County Court.


author: Mayham, P. J.:

text:
    The People of the State of New York ex rel. Orrando P. Dexter, Appellant, v. Elijah A. Palmer and Others, as Assessors of the Town of Waverly, in the County of Franklin and State of New York, Respondents.

      Tax — certiorari under chapter 269 of 1880 — the return not conclusive — proceeding not governed by technical rules.

    At common law and under section 2188 of the Code of Civil Procedure, a return made to a writ of certiorari is conclusive upon both parties as well as upon the court. But where it is sought to review the correctness of an assessment by a writ of certiorari under the provisions of chapter 269 of the Laws of 1880, and a reference is ordered to talie testimony, the respondents to the writ may show, in reference to the statement in the return that they have assessed the property of the relator at its true value, that the property was«assessed at an amount less than its true value, but at the same rate at which they assessed the other property in the same district.
    Such proceeding is not an action in any of its essential features, but is a special proceeding and is necessarily governed by rules peculiarly adapted to such proceedings and not by the analogies of pleadings in either common-law or equitable actions.

      Quaere, whether the petition, writ and return in a certiorari proceeding can be governed by the technical rules applicable to pleadings in ordinary actions.

      Appeal by tbe relator, Orrando P. Dexter, from a judgment of tlie Supreme Court, entered in the office of tbe clerk of tbe county of Franklin on the 21st day of August, 1894, quashing and dismiss-' iug a writ of certiorari, affirming the assessment sought to be reviewed and awarding costs and disbursements to the defendants, and also from an order made at the St. Lawrence Special Term and entei’ed in the office of the clerk of the county of Franklin on the 21st day of July, 1894, upon which said judgment was entered.

      J. _P. Badger, for the appellant.

      J. W. Webb and John P. Bellas, for the respondents.
   Mayham, P. J.:

The respondents in their return to the writ of certiorari in this matter state, among other things, that they assessed the relator’s property at its true value as it would be appraised in the payment of a just debt due from a solvent debtor.”

The case was not heard at Special Term upon the petition of the relator and the return, but a reference was awarded, and there was proof taken before the referee tending to show that the real estate of the town of Waverly was not assessed at its full and true value in the year in which the assessment in question was taken, but that it was that year assessed at about thirty-five per cent of its real value. At the hearing before the referee the respondents introduced evidence, under the objection of the relator, that the relator’s property in question was not assessed at its full value, and proof was made by the respondents that the relator’s property, which was assessed at $4,800, was really worth from $10,000 to $12,000.

The first point urged by the appellant for a reversal of the order of the Special Term, and the judgment entered in pursuance thereof, is that the defendants, by their return to the writ of certiorari, made by them under oath, are estopped, and that the return is an estojDjDel of record against them, and that it was error to receive evidence of the real value of the relator’s property in contradiction of, or at variance with, the return, and that for the purposes of this proceeding the real value of the relator’s property must be taken to be the value as fixed by the assessors in their return. At common law, and under the Code of Civil Procedure (§ 2138), a return seems conclusive upon both parties as well as the court. (People ex rel. Peck v. Commissioners, etc., 106 N. Y. 67.)

But by chapter 269 of the Laws of 1880 it was provided that in the certiorari provided for in that act to review the correctness of an assessment, if, upon the hearing, it shall appear to the court that testimony is necessary for the proper disposition of the inatter the court may take evidence, or may appoint a referee to take such evidence as the court may direct, and report the same to the court, and such testimony shall constitute a part of the proceedings upon which the determination of the court shall be made.” In the case at bar a reference was ordered by the Special Term on the motion of the relator, and without opposition on the part of the respondents, and on such reference a large amount of testimony was taken, which, with the writ and return, seems to have been considered by the court at Special Term on the final hearing, the relator objecting to the consideration by the court of any evidence taken before the referee on the application of the respondents tending to increase the valuation of the relator’s property above the sum fixed ‘in the assessment, wdiich, by the return, the respondents had alleged was assessed at its true value as set forth in the return.

If the respondents and the town, which they as assessors represented, are concluded by the return, then the receipt and consideration of such evidence by the court was error for which the determination of the Special Term should be reversed.

The question is, therefore, sharply presented whether the assessors in this class of certiorari are concluded by their return to the writ, or whether, when the relator, by refusing to adopt the conclusiveness of the return, obtains a reference, and thus opens the field to extraneous evidence, and thus by proof seeks to assail its correctness, lie can prevent the respondents from showing that the property in question was undervalued in the assessment and return, for the purpose of showing that there was in fact no inequality in the assessment of the relator’s property as compared with other property in the town.

The case discloses that the relator on grievance day appeared before the assessors and sought to reduce the valuation of the property in question from $4,800 to $2,000; but it also appears that he refused to answer pertinent questions propounded to him by the assessors on that hearing, and his testimony on that occasion furnished the assessors no reliable data for determining the real value of his property, so that, unless the assessors are concluded by their return, there was apparently no impropriety, on the hearing before the referee, in ascertaining by proof the real value of this property.

We are referred to no case in which it has been determined that the return in a case like this is conclusive on the officers making it. The case of The People ex rel. D. & H. Canal Co. v. Parker (117 N. Y. 86) is not an authority upon this question. It is true that the court in that case, in discussing the effect of the act of 1880, on the writ of certiorari, uses this language: “ In all this we observe that an old writ, whose function and character was well settled and understood, was applied to a new purpose, and moulded so far, and only so far, as was necessary to accomplish the review desired.” This language, we think, falls far short of sustaining the contention of the relator, that the assessors and town are estopped by the return. Under the old writ, to which the learned judge refers, the relator would be concluded by the return. Under the modification he may attack it and show the actual and relative value of the relator’s property as compared with other property on the same assessment roll. The new purpose embodied in the act of 1880 is that of determining by proof the equality or inequality of assessments on the same assessment roll, and the “new process” is “moulded” “so far as was necessary to accomplish the review desired.” '

Section 3 of the act of 1880 makes it the duty of the assessors to return the assessment roll or other original papers acted on by them, or certified or sworn copies of the -same, and the return may concisely set forth such other facts as may be pertinent or material to show the value of the property assessed.

Oan it be fairly claimed that the opinion of the assessors, that they had assessed this property at “ its true value, as it would be appraised in the payment of a just debt,” would be such a statement of fact as would estop them and the town which they represent, even if the return upon an allegation of fact could be held an estoppel ? It was, at most, but a conclusion or opinion of the assessors, which they were not required to give in making their return to this writ. But it is also urged by the relator that the respondents-are concluded by the return from giving tbe evidence objected to, assuming tbat tbe return is but an answer in an action.

If this were an action governed by tbe ordinary rules of pleadings in actions, tbe contention of tbe relator would be entirely sound. But it is not quite clear tbat tlie petition, writ and return in a certiorari proceeding can be governed by tbe technical rules applicable to an ordinary pleading.

It is not an action in any of its essential features, but a special proceeding, and is necessarily governed by rules peculiarly adapted to such proceedings, and not by tbe analogies of pleadings in either common-law or equitable actions.

It will be observed tbat tbe language used by tbe respondents in their return as to tbe value at which tlie relator’s land was assessed, and by which it is claimed by tbe relator that tbe respondents are estopped, is precisely identical with tbe language used by them in tbe fourteenth paragraph of tbe return as to all the property assessed in tbat town, and yet it is insisted by tlie relator, and properly so, tbat tbat allegation may be controverted by proof ; and upon tbe proof offered by tbe relator it seems to have' been established tbat tbe balance of tbe property of the town was assessed at about tliirty-five per cent only of its real value.

Tbe petition of tbe relator sets up tbat tbe assessment of tbe relator’s real estate is unequal, as compared with tbe assessment of other real estate of tbe town.

Tbe manifest purpose of tbe Legislature in providing tbis remedy by certiorari and allowing tbe return to be assailed by proof, was to furnish a means by which inequalities of assessment might be corrected, but tbat means would fail if, as in a case like tbis, the assessors of a town have assessed tbe property at a percentage far below its true value, and tbe relator is permitted to show tbe true value of all other property in tbe town, and then to insist tbat bis property at tbe assessed value is rated at its true value. It was to prevent such results that tlie Legislature provided tbat “ such testimony shall constitute a part of the proceedings upon which tbe determination of tbe court shall be made.”

Much of tbe confusion in cases of tbis character arises out of tbe well-known and almost universal practice of assessors,' as in this case, of assessing property at but a fraction of its true value, and then, in verifying the assessment roll, swearing that they have assessed property at its full, true value. But we are not called upon to correct that abuse on this appeal, but rather to see whether, from the whole record, including the evidence taken in this proceeding, such an inequality exists in this assessment as justifies the court in setting aside the assessment; and in doing this we think we must con-sider as well the evidence offered by the relator as that offered by the respondents, notwithstanding the objection taken by the relator, that the respondents were estopped from giving the evidence offered by them by their return (People ex rel. Warren v. Carter, 47 Hun, 447; People ex rel. Wallkill Valley R. R. Co. v. Keator, 36 id. 592.)

In People ex rel. U. & D. R. R. Co. v. Smith (24 Hun, 71) Learned, P. J., in discussing the effect of .evidence offered on certioraris of this kind, says: “Not only may the court take testimony or appoint a referee for that purpose, but expressly such testimony shall constitute a part of the proceeding’s upon which the determination of the court shall be made. That is, the court is to determine upon testimony to be taken. Thus the rule that the return is conclusive is swept away in this proceeding, and the court is to receive other testimony on which to determine whether the assessment is illegal, erroneous or unequal.”

W e are clearly of the opinion that the evidence offered by the respondents, tending to prove the real value of the relator’s land in question, was competent.

That being so, the Special Term was called upon to consider the evidence upon the question of fact as to whether or not the relator’s property was unequally assessed as compared with other assessments in that town, and upon such examination and consideration that court has found against the relator.

We think its finding is fully sustained by the evidence.

The order and judgment appealed from must be affirmed, with costs.

Putnam and Herrick, JJ., concurred.

Order and judgment affirmed, with costs..


text:
    John Burk, as Administrator, etc., of Edward Burk, Deceased, Appellant, v. The President, Managers and Company of the Delaware and Hudson Canal Company, Respondent.
    2-tegligence— not presumed — when a question of fact — duty of a railroad company at a private crossing.

      In an action brought to recover damages for injuries resulting in the death of the plaintiff’s intestate by reason of the alleged negligence of the defendant, caused by the intestate’s being run over by a train on the defendant’s railroad, the plaintiff must show that the defendant failed in the performance of some duty which it owed to his intestate at the time the injury was inflicted, and that such failure caused or contributed to the injury.
    Where the plaintiff sets forth the negligence of the defendant as the cause of the injury, he assumes the burden of establishing by proof the fact or facts establishing such negligence, and these requirements are not met or established by proof of the accident alone or by any presumption which can be drawn from it.
    To maintain such an action the plaintiff must show that the death of his intestate was caused solely by the negligence of the defendant, and this must be shown by competent proof and not left to mere speculation.
    Negligence is a question of fact and should usually be decided as such, especially when men of ordinary prudence and discretion might differ as to the character of the act under the circumstances of the case, the positions and the conditions of the parties.
    A railroad company at a private crossing is not required to give any warning of ' the approach of its trains, and the only duty if owes its licensee at such crossing is to do him no intentional wrong or injury.
    Appeal by tbe plaintiff, John Burk, as administrator, etc., of Edward Burk, deceased, from a judgment of tbe Supreme Court in favor of tbe defendant, entered in tbe office of tbe clerk of tbe county of Saratoga on tbe 5th day of September, 1894, upon tbe decision of tbe court rendered after a trial at tbe Saratoga Circuit before tbe court without a jury dismissing tbe plaintiff’s complaint upon tbe merits.

      E. T. Bradkebt and T. F. Hamilton, for tbe appellant.

      Lewis E. Garr, for tbe respondent.
   Mayham, P. J.:

The plaintiff prosecuted this action as administrator to recover for tbe alleged negligence of tbe defendant in tbe management of its railroad train, by which the plaintiff’s intestate was killed. The case discloses that the defendant is a railroad corporation, and that in 1834 it acquired a right of way for its railroad, the line of which has not since that time been changed, over and upon which it has since owned and operated a railroad. That in 1871 the grandfather of the intestate, with whom the intestate resided, purchased a piece of land adjacent to such railroad land and adjoining it on.the east, on which he built a house in which he and his family since 1872 have resided. That such house stood near the lands of the railroad, and that the persons residing in such house had from the time of the erection thereof been in the habit of crossing over the defendant’s railroad lands and track from the house to tli.e highway on the opposite side of the railroad, and which ran at that point about parallel with the line of the railroad, and that that was the only or usual way of egress from, and ingress to, the house from such highway. At the time of the accident, and for some time previous thereto, the plaintiff’s intestate had resided in the house as a member of his grandfather’s family, and as such was accustomed to pass over and across this railroad track to and from such house.

’On the day of the injury which resulted in intestate’s death, he started for school, and while attempting to cross the defendant’s railroad he was struck by a train backing down on this track and killed. He was at the time about six years old, but no claim is made that he was non sui juris at the time of the injury.

When the train struck intestate it was moving at the rate of about fifteen miles an hour, and no bell was rung or whistle blown to give warning of the moving of the train. There is no proof in the case that this was an unusual rate of speed for the train at that point, or that there was any custom on the part of the defendant to give any warning or signal of the approach of the train at that point. The plaintiff in this action, to entitle him to recover, must show that the defendant has failed in the performance of some duty which it owed the intestate at the time the injury was inflicted, and that such failure caused or contributed to the injury.

The plaintiff having alleged the negligence of the defendant as the cause of the injury, assumed the burden of establishing by proof the fact or facts establishing such negligence. (Heinemann v. Heard, 62 N. Y. 455 ; Lamb et al. v. Camden & Amboy Railroad & T. Co., 46 id. 271-279.)

These requirements are not met or established by proof of the •accident alone, or by any presumption which can be drawn from it.

The negligence cannot be presumed by reasoning from the effect back to some supposed cause, but a cause arising in some failure of •duty on the part of the defendant must be shown which produced the injurious effect complained of.

In Cordell v. N. Y. C. & H. R. R. R. Co. (75 N. Y. 332) Earl, J, says: To maintain this action the plaintiff must show that the death of the intestate was caused solely by the negligence of the •defendant, and this she must show by competent proof. It must not be left to mere speculation.” This rule lias been so long and universally accepted as the true one in this class of cases that it may be regarded as elementary, and the appellant, in the arguments in support of this appeal, seems to concede its application to this case.

But the appellant insists that he has complied with the requirements of this rule by proving the omission on the part of the •defendant to ring a bell or blow a whistle when approaching the Burk house. It is quite clear from all the evidence in this case that this was at most only a private way over the defendant’s railroad, for the use of the occupants of tlie Burk house, arising from a user or implied license ; but it is insisted that that is enough to bring the case within the rule laid down in Barry v. N. Y. C. & H. R. R. R. Co. (92 N. Y. 292). But that case discloses that tlie public was in the habit of crossing the track at the point'where the injury occurred, and had been for more than thirty years, and that several hundreds crossed there daily. The only real analogy between that case and the one at bar is that there was an unrevoked license of the defendant to cross its track in either case, but in the one case it was a license to the public, which gave it the characteristics of a public crossing, while in the other case it was in the nature of a private license to be used only in connection with the Burk dwelling.

This distinction was one which clearly imposed a different obligation upon the defendants in these cases, and the case relied upon recognizes the difference in the obligation of a railroad company towards the public, who are permitted to cross its tracks by sufferanee, and one wlio by sufferance is casually thereon. (Barry v. R. R. Co., supra.)

In Byrne v. N. Y. C. & H. R. R. R. Co. (104 N. Y. 362) the public had notoriously and constantly been in the habit of crossing the defendant’s track, and it was held that that fact imposed upon the defendant a duty to exercise reasonable care in running its trains so as to protect persons crossing from injury.

These cases can be clearly distinguished from the one at bar in this, that the former by their use had become or were public crossings, while the case at bar is at most but a private crossing, and it is insisted by the respondent that this difference creates different obligations on the part of the defendant from that which the law imposes at a public crossing; that in case of a public crossing the law imposes upon a railroad company the exercise of active vigilance-in the protection of the public from the dangerous agencies which it has created, while in case of a private crossing by a licensee the license to cross imposed no duty upon the railroad company, except to do him no intentional harm or wanton injury. In Matze v. N. Y. C. & H. R. R. R. Co. (1 Hun, 417) it was held by the General Term, sitting in this department, that “ even if there was any evidence-from which a license might be inferred, and the plaintiff was not a trespasser, such license created no legal right and imposed no duty upon the defendant, except the general duty which every man owes to others, to do them no intentional wrong or injury.” And Mil-lee, J., in another part of the same opinion, uses this language : “ I do not understand that they owe any duty, even to the owner of a private right of way through which"’they pass, which calls upon them to exercise care in the running of their trains.” This doctrine was approved and the language of Millee, J., quoted with approbation by Hardin, P. J., in Cornell v. Skaneateles R. R. Co. (40 N. Y. St. Repr. 2, 3), which was an action against the defendant for injuring the plaintiff’s horse, which was crossing the defendant’s track at a private crossing. In Nicholson v. Erie Railway Co. (41 N. Y. 525)-the court, in discussing this question, uses the following language : “ Nicholson, the deceased, * * * was not on his own ground. Tie was where he had no legal right to be. At most he had a mere-license to cross the defendant’s track, a license implied from use, and from the fact that such use had not been expressly forbidden. But such license created no legal right, and imposed no duty upon the defendant, except the general duty which every man owes to others, to do them no intentional wrong or injury.”

This same doctrine is repeated and enforced in Collis v. N. Y. C. & H. R. R. R. Co. (71 Hun, 509).

I think it must now be held to be the settled law of this State that a railroad company at a private crossing is not required to give! any warning of the approach of its train, and that the only duty it owes the licensee at that crossing is to do Mm no intentional wrong or injury. Applying that rule to the case at bar upon the evidence as it stands, we see no ground upon which the plaintiff could legally recover in this case.

But if we are wrong in this conclusion still this court on appeal could not properly reverse this judgment, as the learned trial .judge was, by the submission of the case to him without a jury, called upon to determine facts as well as the law.

“Negligence is a question of fact and should usually be decided as such, especially whenever men of ordinary prudence and discretion might differ as to the character of the act under the circumstances of the case, the positions and conditions of the parties.” (Wendell v. N. Y. C. & H. R. R. R. Co., 91 N. Y. 427; Morrison v. Erie Ry. Co., 56 id. 308.)

Applying the rule above quoted, the question of negligence became one for the judge acting as, and for, the jury. It is clear that the question of negligence in this case was one about which men of ordinary discretion might differ, as we find here the learned judge and counsel for appellant differing on that vital question.

Under the circumstances of this case the finding of the judge upon that question cannot be disturbed on this appeal.

The judgment should be affirmed, with costs.

PutNAM and HbesicK, JJ., concurred.

Judgment affirmed, with costs.


author: MatiiaM, P. J.: Putnam, J.:

text:
    The Travelers' Insurance Company, Respondent, v. Ann Healey and Others, Appellants; Samuel A. Peterson and Another, Respondents.

      Life insurance — chapter 248 o/1879 — rights of beneficiaries under an assignment thereof by a wife — surrender by an assured to the insurer for cash — bill of interpleader.

    The insured named in a policy of life insurance borrowed of one Ann Healey, on the 13th day of April, 1884, a sum of money, and gave therefor the joint note of himself and his wife (the beneficiary in the policy), and also delivered to Healey the insurance policy as security. Ho written assignment of the policy was made at that time. The policy contained the provision “that no assignment of this policy shall be valid unless made in writing, indorsed hereon, and unless a copy of such assignment shall bo given to this company within thirty days after its execution, and any claim against this company arising under this policy made by any assignee, shall bo subject to proof of interest.”
    On October 29, 1886, the insured and beneficiary executed an assignment of the policy to Peterson and Packer. On November 1, 1886, Peterson and Packer gave the insurer written notice of the assignment of the policy to them. On May 24, 1889, Healey notified the insurer by letter that the policy had been verbally assigned to her, and on April 4, 1890, she sent the insurer a copy of a written assignment of the policy executed and delivered to her on that day' by the insured and the beneficiary.

      Held, that the transfer, by means of which Healey obtained possession of the policy, was at most only a pledge, and gave the pledgee, if any right, only a special property right in the policy which would divest the interest of the beneficiary; that it was at most an agreement to give a lien to secure the payment of the note.
    A policy of life insurance must be regarded as a contract made between the insurer and the insured for the benefit of the persons named as beneficiaries therein, and the rights of the beneficiaries do not depend upon any privity between them and the insured, but rest in contract, and are capable of being enforced as other contracts, and stand where, at the maturity of the policy, the contract leaves them.
    An insurance policy is a chose in action, and can pass only by assignment, and if the same is not transferable by delivery, and is negotiable only by assignment, it follows that the assignee thereof will take no greater interest than was possessed by his assignor at the time of the assignment.
    A life.insurance policy contained the following clause: “The said sum insured to be paid at the office of said company in (sum insured, $2,000.00) Hartford, Conn., to Josephine Doty (hereinafter called the assured), wife of the said insured, within ninety days after due notice and direct evidence that the death of the said insured has taken place during the continuance of this policy, and within that period of any year for which period the premium shall have been actually paid, and not otherwise. In the event of any indebtedness to this company, either on the part of the insured or assured, then such sum -only as shall remain in excess of such indebtedness shall become due and payable as'aforesaid. And in case of the death of the said assured before the decease of the said insured, the said insurance shall be paid when due to their children, if any then living, or to their guardian, in trust, if they be minors. But if neither said assured nor any such child shall survive said insured, then said insurance shall be paid to his executors, administrators or assigns. * *
    “ MffJith. That this policy may bo converted into cash, at the option of the holder,. at any time after the expiration of fifteen years from the date hereof, for the amount indorsed upon the back of this policjr, corresponding- to the age (nearest birthday) of the insured at the time of such conversion ; provided that this policy shall have been first paid up by the payment of ten full annual premiums, as herein stipulated.”
    Held, that the assignment of the policy by the wife of the insured would in no way affect the rights of the children of the insured, and such of them as were living at the time of the death of the insured would be entitled to the amount of the insurance, providing their mother-died before their father;
    That the assignee of the wife of the insured, prior to the death of the insured, who had living children, had no right under the eighth clause of the policy of insurance to surrender the same to the insurer for cash;
    That the rights of the beneficiaries named in the policy could not be fixed or known until the death of the insured, and until the happening of that event the children had a contingent interest in the policy which would become vested if the wife of the insured should die before the maturity of the policy;
    That under the provisions of clause eighth the policy must be deemed held by the parties to whom it was payable, and the possession thereof by the insured, or by any of such parties, must be considered the possession of all, and the option provided for by such clause could only be exercised by all of the parties to whom the policy was payable. (Per Putnam, J.)
    Under the provisions of chapter 248 of the Laws of 1879 a married woman cannot make a valid assignment of an insurance policy on the life of her husband during his life without his consent in writing.
    Chapter 248 of the Laws of 1879 authorizes a married woman, with the written consent of her husband, to assign a policy of life insurance, but contains no authority for her to assign the interest which, by the express terms of the policy, is reserved to her children. (Per Putnam, J.)
    A bill of interpleader is justified if the rights of the conflicting claimants to a fund are in a condition, at the time of the commencement of the action, to be adjudicated and settled between themselves. (Per Mayham, P. J.)
    Herrick, J., dissenting.
    Appeal by the defendants Ann Healey and others from a judgment of the Supreme Court in favor of the defendants Samuel A. Peterson and another, entered in tbe office of tbe clerk of tbe county of Rensselaer on tbe 29th day of June, 1894, upon tbe decision of the court rendered after a trial at tbe Rensselaer Special Term adjudging that tbe assignment of a certain policy of life insurance to tbe defendants Samuel A. Peterson and another was valid; that the defendants Peterson and another were the lawful holders and owners of tbe said policy; that tbe alleged assignment of tbe said policy to tbe defendant Ann Healey was invalid; that tbe defendants Starks Doty and another have no interest in tbe said policy; that this action is maintainable by tbe plaintiff, and that tbe plaintiff pay to the defendants Samuel A. Peterson and another, whenever they may exercise their option, whatever sum may become due on tbe said policy after deducting the expenses of tbe action, and upon such payment being made discharging tbe plaintiff from liability under such policy.

      William L. lea/rned, for infant defendants, appellants.

      A. O. Gomstoek, for Healey, appellant.

      Matthew Hale, for tbe plaintiff, respondent.

      George 1Z. Donnan, for Peterson and Packer, respondents.
   MatiiaM, P. J.:

On tbe 23d day of May, 1814, tbe plaintiff issued its policy for $2,000 on the life of Alonzo H. Doty, which policy contained tbe following provision which is material for consideration on this appeal for tbe purpose of determining who, if any, of tbe claimants were at tbe time of tbe commencement of this action beneficiaries entitled to tbe proceeds of this policy:

“ Tbe said sum insured to be paid at tbe office of said company in (sum insured, $2,000.00) Hartford, Conn., to Josephine Doty (hereinafter called tbe assured), wife of tbe said insured, within ninety days after due notice and direct evidence that tbe death of the said insured has taken place during tbe continuance of this policy, and within that period of any year for which period tbe premium shall have been actually paid, and not otherwise. In tbe event of any indebtedness to this company, either on tbe part of tbe insured or assured, then such sum only as shall remain in excess of such indebtedness shall become due and payable as aforesaid. And in case of the death of the said assured before the decease of the said insured, the said insurance shall be paid when due to their children, if any then living, or to their guardian, in trust, if they be minors. But if neither said assured nor any such child shall survive said insured, then said insurance shall be paid to his executors, administrators or assigns. * * *

Eighth. That this policy may be converted into cash at the option of the holder at any time after the expiration of fifteen years from the date hereof, for the amount indorsed upon the back of this policy, corresponding to the age (nearest birthday) of the insured at the time of such conversion’-;-provided that this policy shall have been first paid up by the payment of ten full annual premiums; as herein stipulated.'

N;mth. That no assignment of this policy shall be valid unless made in writing, indorsed hereon, and unless a copy of such assignment shall be given to this company within thirty days after its execution; and any claim against this company arising under this policy made by any assignee, shall be subject to proof of interest.”

On the 13th of April, 1884, the insured borrowed of the defendant Ann Healey $800, and gave a joint note of himself and the assured Josephine to Healey for the same, and also delivered to her the policy in question as security, which she has ever since retained. No assignment of the policy was made to her at that time; but on the 4th of April, 1890, Alonzo and Josephine executed and delivered to Healey a written assignment of all their right, title and interest in the policy. .On the 29th of October, 1886, Josephine and Alonzo executed an assignment of the policy to the defendants Peterson and Packer, reciting in the same an indebtedness to them of $1,130.65, for which sum on the same day they perfected judgment against the defendants Alonzo and Josephine. On the 1st day of November, 1886, Peterson and Packer gave the plaintiff written notice of the assignment of the policy to them. On the 24th of May, 1889, Healey notified the plaintiff by letter that the policy had been verbally assigned to her to secure a $600 loan, and on the 4th of April, 1890, she, by her attorneys, sent the plaintiff a copy of the written assignment of the policy to her on that day. On the 22d of October, 1891, Ann Healey commenced an action against the plaintiff to recover $740, in the complaint in which it is-alleged that she elects that the same be converted into cash.”

On the 17th of November, 1890, an alleged guardian of the children of Alonzo and Josephine, all of whom were infants, forbade by letter the plaintiff from paying any thing on the policy either to Healey or Peterson and Packer, and therein asserted that the children of Alonzo and Josephine had an interest in the policy. None of the claimants under the policy have demanded that this policy be converted into cash, under the provisions of the eighth clause, of the same, except the demand made by Healey in her complaint in the action brought by her against the insurance company. Alonzo H. Doty and Josephine Doty are still living, as are the children.

On or about the 30th day of January, 1892, and while the said action brought by ITealey against this plaintiff was still pending and undetermined, this plaintiff brought an action, alleging that the plaintiff has no interest in or claim upon the said moneys, but is ready and willing to pay such moneys into court to abide the event of any action between the said parties, or any order that the court may make with reference thereto, upon being discharged from liability to each of said claimants; and asking judgment that plaintiff may be allowed to pay the said moneys into court or to the defendant or defendants to whom said moneys of right belong," and that it be thereafter protected from the claims of all such persons, and that the defendant Ann Healey and all the defendants be enjoined and restrained from further proceeding with said action against this plaintiff, and that the rights of the parties defendant to the said fund, as against each other, may be determined and declared by the court.

The learned trial judge found that the title to this policy was in Peterson and Packer, who held the first written assignment from the insured and assured, and were entitled to exercise the option given by the policy to the holder thereof. That the assignment to Healey was invalid, and that she had no interest in the policy. That the children of the insured and assured- have neither of them any interest in the policy, actual or contingent. By the judgment Ann Healey was perpetually enjoined from the further prosecution of her action against the plaintiff, and it directed the plaintiff to pay to Peterson and Packer the proceeds of the policy, whenever they should exercise tlieir option, less $100, cost allowed to tlie plaintiff in this action.

From the judgment the defendants Ann Healey and Starks A. Doty and Carrie E. Doty, children of tlie assured, appeal.

It is insisted on tlie part of the appellant ITealey that this policy, by its terms, after the lapse of fifteen years from its date, became payable in cash at the option of the holder, and that by the delivery to her without assignment by the insured, as collateral to a loan after ten years from the date, she became the holder, and as against all but the plaintiff the assignee in law of the policy, and she insists that it does not lie with the other defendants to challenge her title on the ground that the policy, by its terms, required an assignment in writing. We think that that contention cannot prevail. She did not acquire possession of the policy by any written assignment as required by the terms of the contract itself, but received the same only as a pledge or collateral security for a loan made to the insured.

Such transfer was, at most, only a pledge, and gave the pledgee, if any right, only a special property right in the policy which would divest the interest of the assured. It was, at most, an agreement to give a lien to secure the payment of the $600. (McFarland v. Wheeler, 26 Wend. 467; Ocean Nat. Bank v. Olcott, 46 N. Y. 12; McCaffrey v. Wooden, 62 Barb. 316-333.)

Again, such transfer could not operate as a valid assignment by Josephine, one of the assured, for the reason that, by chapter 248 of the Laws of 1879, she could not make a valid assignment of a policy on the life of the husband for her benefit without his consent, in writing, during the life of her husband. (Smillie v. Quinn, 90 N. Y. 496 ; Baron v. Brummer, 100 id. 376; Brick v. Campbell, 122 id. 337.)

This policy was issued prior to the enabling act of 1879, and unless that act gave her power to assign this policy she could not do so while her husband was living, she having at the time living children.

At common law, and under the act of 1840 (Chap. 80), and all subsequent acts down to the enactment of chapter 248 of the Laws of 1879, a policy on the life of the husband for the benefit of the wife was not assignable bj her, where she had living children. The act of 1873 (Chap. 821) only authorized a married woman to make an assignment of such a policy with the written consent of her husband, when she had no living children at the time. It will be observed by an examination of all the decisions upon this subject, that the right to make such transfers has never been upheld except where autlim-ized by the express terms of the statute. In discussing this question Potter, J., in Brick v. Campbell (122 N. Y. 343), uses this language:

So strictly have the courts adhered to the enabling acts passed by the Legislature upon the subject of such policies, that they have refused to regard the general enabling acts in relation to married women, and their separate property, as having any reference or applicability to such policies.”

Independently, then, of the requirements of the policy itself, that the ti’ansfer must be in writing, it seems quite apparent that no valid transfer of this policy was made to Healey.

This conclusion is reached aside from, and independent of, the question raised and pressed by the learned counsel for the children of Alonzo and Josephine, that as againsi them no valid assignment of this policy, either to Iiealey or Peterson and Packer, has been or can be made so as to divest the contingent interest of such children.

Three contingent beneficiaries are named in this policy. The first taker is Josephine, the wife, if she survive her husband. If she does not, then the second taker is the children or child of the insured living at the time of his death or the descendants of any who may have died, and in case no widow or descendants of the insured survive him, then his executors or administrators. This policy must be regarded as a contract made between the plaintiff and the insured for the benefit of the assured named as beneficiaries therein. The rights of the beneficiaries from the very nature of the contract do not depend upon any privity between the insured and the beneficiaries named in the policy, and do not depend upon the principle enumerated in the somewhat criticised authority of the case of Lawrence v. Fox (20 N. Y. 268). The rights of the assured rest in contract and are capable of being enforced as other contracts, and stand where, at the maturity of the policy, the contract leaves them.

Those rights I think may be regarded as vested rights, subject only to be defeated by the happening of a contingency provided for in the policy itself. It is quite true that the force and character of such a contract are largely regulated by the statute in force at the time of the making of the contract or by some subsequent statute which may operate retrospectively on the same.

It is insisted by the learned counsel for Peterson and Packer that under the provisions of chapter 248 of the Laws of 1819, the wife who is named as beneficiary in this policy is fully authorized to assign the same with the consent of her husband regardless of the claim of her children as subsequent beneficiaries in the same policy. The provisions of that chapter are as follows:

“ All policies of insurance heretofore or hereafter issued within the State of New York upon the lives of husbands for the benefit and use of their wives, in pursuance of the laws of the State, shall be from and after the passage of this act assignable by said wife, with the written consent of her husband, or in case of her death by her legal representatives, with the written consent of her husband, to any person whomsoever, or be surrendered to the company issuing such policy with the written consent of the husband.”

It is to be observed that this provision of the statute makes no reference to policies for the benefit of children, as well as for that of the wife. The policy under consideration provides for both these classes of beneficiaries. It is true that the policy provides that it may be converted into cash after fifteen years at the option of the holder. But can the assignee, if one of the possible beneficiaries, without the consent of the other possible beneficiaries, be deémed the holder as against the rights of the latter ?

The death of Josephine before the assignment would have devolved the benefits of this policy on her children if her husband were at that time living.

It is difficult to see how any greater right could attach to her assignees than inhered in her at the time of the assignment. The policy is a chose in action which passes only by assignment, and as the same was not transferable by delivery, and negotiable only by assignment, it would seem to follow that the assignee took no greater interest than was possessed by the assignor at the time of the assignment. (Davies v. Austen, 1 Vesey’s Ch. 247; Greene v. Warnick, 64 N. Y. 220.) Doubtless Josephine could at the time of making the assignment, with the consent of the husband, transfer to her assignee her contingent interest in the policy, and the assignee would, in the event of her surviving her husband, realize on the policy; but if her husband survived her the right which belonged to her or her assignee would vest, by the terms of the policy, in her children. Under such conditions can Peterson and Packer, as assignees of Josephine,' be deemed the holders of this policy, as against the children, so as to adopt the option of converting this policy into cash while their rights to the same still exist and have not been extinguished ?

Such a conclusion seems to be at war with the plain provisions and intent of the policy. The rights of children under policies issued on the life of the husband for the benefit of the wife seem to have been guarded by the Legislature when they are not made beneficiaries by the terms of the policy. ,By chapter 820 of the Laws of 1873 the wife was authorized to assign a policy in her favor with the consent of the husband, and will the same when she had no children. This authority negatives the existence of such right under that act when she has children.

But it is insisted that, under the provisions of chapter 248 of the Laws of 1879, the powers of a wife to assign a policy ^were extended, and that with the consent of her husband all obstacles in the way of an assignment are removed, and that the cases of Brick v. Campbell (122 N. Y. 337) and Anderson v. Goldsmidt (103 id. 617) are authorities iu support of that' contention. The rights of children in a policy issued on the life of a husband for the benefit of the wife were not involved or discussed in the case of Brick v. Campbell (supra). In Anderson v. Goldsmidt (supra) the policy was unlike the one at bar.

In that case the policy was issued to the wife on the life of her husband, payable ]\iay 31, 1885, to the wife, and in case of her death before her husband to her children.

Before the period for the maturity of the policy fixed in it she with her husband assigned it to the plaintiff in that action. She and her husband lived beyond the time of the maturity of the policy,, and on the 31st of May, 1885, the personal representative of the assignee who had died sued upon the policy. The wife interposed a claim for tlie money, and it was paid into court, and tlie title to the same, in a litigation between the wife and representative of the assignee, was held to be in the latter, notwithstanding the condition in the policy in favor of the children. In that case Judge Earl, after quoting the provisions of chapter 2J8 of-the Laws of 1879, used this language: The mere.fact that she had children at the time she executed the assignment did not render her assignment void. The statute, whether there be children or not, gives the wife with the consent of her husband the absolute power to assign or surrender the policy. It is quite true that the children had a contingent interest in the policy, which would have become vested in case the wife had died before the policy matured. But here she survived that period, and hence the contingency did not arise which gave the children any interest whatever in the policy.”

It will be seen in the case from which the above quotation is made that the whole case turned upon the fact that the wife survived the period at which the policy absolutely matured, to wit, May 31,1885, when her right became absolute, and all possibility of a devolution of the benefits of the policy upon the children ceased.

The policy under discussion in the case at bar matures and becomes payable at the office of the company within ninety days after notice of the death of the insured. Clearly the rights of the beneficiaries named in the policy cannot be fixed or known until the death of the insured. That period has not yet arrived, and until it does, in the language of Judge Earl, the children had a contingent interest in the policy which would have become vested in case the wife had died before the policy matured.”

It follows, therefore, from the authority of Anderson v. Goldsmidt, referred to by the counsel for the respondents Beterson and Packer, that the children in this case have a contingent interest in this policy which will become absolute if Josephine die before the insured.

Nor does the expiration of fifteen years at which time the option of the holder to demand cash payment commences, constitute the maturity of the policy, so long as any contingency exists as to who shall be the ultimate beneficiary. It may be conceded that if all contingency was removed the person in whom the absolute right vests might, after the expiration of the fifteen years, exercise the option. But so long as the ultimate right to this fund, remains unsettled none of the contingent beneficiaries can exercise the option. But as Peterson and Packer have not assumed to exercise the option, the question of their right to do so is not before us.

If we .are right in our conclusions above, the rights of the respective parties to the proceeds of the policy in question cannot be determined in this action. The right of Josephine to this money depends upon her surviving her husband. The right of Peterson and Packer depends upon the title of their assignor, which cannot now be determined. The right of the children of the insured depends upon the death of their mother before that of their father, all of which events are in the uncertain future.

It is also urged by the learned counsel for the appellant Doty that this action of interpleader cannot be maintained for the reason that the parties named as defendants are not all demanding the same relief or right as against the plaintiff.

The complaint alleges the issuing of its policy on the life of Alonzo II. Doty, sets out the policy and some of the acts clone under it. Also sets up the claim made by Ann Healey to recover §740, the present casli value of the policy, and her election to accept that sum in full satisfaction for the amount of the same.

The complaint also sets up the claim of Peterson and Packer as assignees of the policy. No claim to this policy or fund by Starks Doty and Carrie E. Doty, infant children of the insured, was made against the plaintiff, but a letter from Peter Doty, claiming to be guardian of these children, was sent to the plaintiff forbidding payment to either Peterson and Packer or Ann Healey, claiming that the policy could not be properly assigned, and claiming that the infants had an interest in the policy. Under these facts the plaintiff claimed in its complaint that as it acknowledged its liability on the policy, the parties should interplead in this action and settle the question as to the rights under the policy between themselves to the same.

If the rights of these conflicting claimants were in a condition in this case at the time of the commencement of this action to be adjudicated and settled between .themselves, then there was sufficient conflict between them to justify a bill of interpleader on the part of the plaintiff. (Crane v. McDonald, 118 N. Y. 648.)

But can the rights of the conflicting claimants be definitely settled by an interpleader so long as they are inchoate ?

The very nature of an interpleader seems to pfe-suppose that the rights of the parties to the action are matured, fixed and determined, or at least so far settled as not to depend upon the happening of a future event which is certain to occur, but upon the order in which such event may occur the rights of the parties must depend. But so long as the contingencies upon which the rights of the respective parties depend continue to exist, it is alike impossible to determine who is to be the ultimate beneficiary in this policy or the amount of the liability of the plaintiff on the same. If Josephine survive her husband so that the title vest in her assignee, then the whole face of the policy would be due and pass to the assignee under the assignment, and the payment of $740 would not extinguish the plaintiff’s liability. If Josephine should die before the insured, as we have seen, the title to the policy or the proceeds of it would vest in the children, who, as holders of the same, could exercise the option of then demanding the cash value, or they could refuse to exercise the option, and thus postpone the time of payment until the death of the insured, when they could then demand the full face of the policy. Under such conditions we do not think an action of inter-pleader will lie.

The parties defendant do not claim the same thing. Ilealey claims $740 cash; Peterson and Packer claim to be adjudged entitled to the policy with all' benefits under it. The children claim a contingent interest in the policy, and ask that the adjudication as to the final right of the parties be postponed until either by the death of the insured or Josephine it may be ascertained who at that time shall be entitled to the beneficial interest under the policy. They make no claim against the plaintiff, but ask a postponement until their claim may mature. Under these conditions it does not seem to us that the requirements for an interpleader are met, even as laid down in Crane v. McDonald (118 N. Y. 648), relied upon by the learned counsel for the plaintiff, who concedes that in that case it was held : “ That the material allegations in a bill of interpleader are: (1) That two or more persons have preferred a claim against the complainant; (2) that they claim the same thing; (3) that the complainant has no beneficial interest in the thing claimed ; and (4) that he cannot determine without hazard to himself to which of the defendants the thing belongs.” (Citing Atkinson v. Manks, 1 Cow. 691-703.)

It follows that if such allegations are material in a complaint, they must be supported by the proof before a decree can pass in favor of the plaintiff. (1) The proof in this case fails to establish the facts necessary to support such allegations. All the parties defendant have not preferred a claim against the complainant; (2) all do not claim the same thing; (3) that the complainant has no beneficial interest in the tiling claimed ; (4) that the plaintiff cannot determine without hazard to itself to which of the claimants the thing belongs. . •

For this reason, and the reason stated in this opinion on the other branch of this case, we think the judgment should be reversed.

Putnam, J.:

Story, in his Equity Jurisprudence, remarks in reference to a bill of interpleader (10thed., § 806): “It is properly applied to cases where two or more persons severally claim the same thing under different titles or in separate interests from another person who, not claiming any title or interest therein himself, and not knowing to which of the claimants he ought of right to render the debt or duty claimed or to deliver the property in his custody, is either molested by an action or actions brought against him, or fears that he may suffer injury from the conflicting claims of the parties. He, therefore, applies to a court of equity to protect him, not only from being compelled to pay or deliver the thing claimed to both the claimants, but also from the vexation attending upon the suits which are, or possibly may be, instituted against him.”

I think, under the doctrine just stated, this action was properly brought. Each, of the defendants claimed an interest in the policy of insurance described in the complaint. Each claimed under such policy. Peterson and Packer urged that they were its absolute owners; the defendant Ann Healey made the same claim; while the defendants Doty asserted that they were vested with a contingent interest in said policy, which, upon the death of Josejxhine Doty before, the decease of her husband, would become absolute.

Plaintiff admitted its liability under the policy in question to the legal owner thereof, either for the sum of $2,000 on the death of the insured or for the sum of $740 when the action was commenced, if it should appear that such sum was then due under the option contained in the eighth clause of said policy.

An action had been commenced by Ann Healey, who claimed to be the holder of the policy, to recover $740 under the provisions of the said eighth clause. Each of the defendants had served a notice upon plaintiff forbidding the payment to Ann Healey of the sum claimed by her. "When this action was commenced, the plaintiff was placed in such a position that if Ann Healey should recover judgment, and it should be compelled to pay the amount of her claim, it might be subjected to other actions by the other defendants, and hence would be liable to a double recovery under the same policy.

I think, therefore, that the conclusion reached by the learned trial judge, that the action was properly brought for the purpose of protecting plaintiff from a multiplicity of suits and also from a double recovery, was correct. (See Crane v. McDonald, 118 N. Y. 648.)

I am unable to agree, however, with his conclusion that the defendants Starks A. Doty and Carrie E. Doty, or either of them, have no longer any interest, either actual or contingent, in the said policy.”

The instrument insured the life of Alonzo H. Doty in the sum of $2,000 for the term of his natural life, said sum being payable to his wife Josephine, or, in case of her death before that of the insured, to their children, said Starks A. and Carrie E. Doty. It was held of a similar policy in Whitehead v. N. Y. Life Ins. Co. (102 N. Y. 143) that the wife and children acquired a vested interest in the policy at the moment of its delivery to the insured. (See U. S. Trust Co. v. Mut. Ben. Life Ins. Co., 115 N. Y. 152-157.)

So, in this case, on the delivery of the policy, both the wife and children of the insured acquired a vested right therein, and I am unable to see why such right in the children does not still exist. The defendants Packer and Peterson have not elected to convert the policy into cash in pursuance of the provisions of the eighth clause therein, if they had the right so to do, and the trial court determined that the defendant Healey acquired no interest in the policy under the verbal assignment to her; hence the question involved may be considered as if the instrument did not contain the said eighth clause.

Here, then, is a policy providing for the payment of $2,000 te the wife of the insured if she should survive him, and if not to the defendants Doty, her children. She could, with her husband’s assent, assign her interest in the policy to the defendants Peterson and packer, or to Healey, but she could not by such assignment. ■ interfere with or cut off the rights of her children. Their interest remains the same as if the assignment to Peterson and Packer or Healey had not been made.

Chapter 248 of the Laws of 1879, which authorizes a married woman, with the written consent of her husband, to assign a jiolicy of insurance taken for her benefit on the life of her husband, contains no authority for her to assign the interest by the express terms, of the policy reserved to her children. (Knickerbocker Life Ins. Co. v. Weitz, 99 Mass. 157; Conn. Mut. Life Ins. Co. v. Burroughs, 34 Conn. 305 ; Chapin v. Fellowes, 36 id. 132.)

If the policy in question had not been made payable to the children in case of the death of Josephine prior to that of her husband, the former could, under the act of 1879, with the consent of her husband, have conveyed an absolute title to the policy. It has been held that under chapter 80, Laws of 1840, and the several acts amendatory thereof, children of a married woman who has a policy on the life of her husband, unless actually named as beneficiaries in the policy, have no interest therein. (Olmsted v. Keyes, 85 N. Y. 593, 603-605.)

But in this case the policy is made payable to the children if the wife does not survive her husband; they are beneficiaries therein, and I am unable to see how she can extinguish their contingent interest. The case of Anderson v. Goldsmidt (103 N. Y. 617-621) does not hold a doctrine contrary to the views above expressed. In that case the insurance was upon the life of the husband for the. benefit of the wife, and in case of her death before his was payable to their children. It provided for the payment of $1,000 on May 31, 1885, or within sixty days after his decease, and after due proof of his death had been given. Prior to May 31,1885, the- wife, with the consent of her husband, assigned the policy. The action was brought after Hay 31, 1885, the policy having then matured. "When the action was brought the interest of the children by its terms had ceased; the wife was living, and under the terms of the policy the $1,000 was payable to her. "When the action was commenced any contingent rights of the children therein had become extinguished by the lapse of time, and the policy, by its terms, was payable to the widow'or her assignee. It will be seen that the question involved in this case was not before the court in the cases cited. In Conn. Mut. Life Ins. Co. v. Van Campen (32 N. Y. St. Repr. 1125) I infer that the policy, by its terms, was not made payable to the children of the assured in ease of her death, and hence the case is not in point.

I think, therefore, that while the assignment to Peterson and Packer conveyed the interest of the insured and his wife in the policy in question, the interest of the children therein remained unaffected. Should the insured die before Josephine, Peterson and Packer will be entitled, as assignees of Josephine, to recover the sum of $2,000. But should Josephine die before her husband the defendants Doty will receive the insurance money, no one authorized to do so having taken the benefit of the option in the eighth clause. The only effect of the assignment to Peterson and Packer was to place them in the place of Josephine, and the right of defendants Doty remained and remains unaffected. Yet, by the judgment rendered herein, their rights under the policy are cut off, although the defendant Josephine should not survive her husband, and although no one authorized to do so should ever exercise the option contained in the eighth clause of the policy.

Por the reasons above suggested I concur with the conclusion reached by Justice Mayham that a new trial should be directed.

It is claimed .by the learned counsel for defendant Healey that under the contract of insurance Alonzo IT. Doty must be deemed the “holder” and entitled to convert the policy into cash under the eighth clause thereof. If this position is correct probably the delivery of the policy to defendant Healey by the insured in consideration of the loan of $600 might be effectual to transfer the same. (Marcus v. St. Louis Mut. Life Ins. Co., 68 N. Y. 625.) In the case cited it was held that a life insurance policy could be transferred by a mere delivery, without an assignment in writing, although the policy, by its terms, requires a written assignment. If the insured, Alonzo IT. Doty, was the holder ” of the policy, within the meaning of the eighth clause of the policy, that provision in the contract was entirely for his benefit, and he could transfer his separate interest in the policy alone without his wife joining in the transfer, and as to an assignment of his separate interest under the contract of insurance, the act of 1819 did not apply. Hence, I am inclined to believe that if the position of the counsel is correct, that Alonzo IT. Doty should be deemed the “ holder ” of the policy, his conclusion that the defendant Healey was entitled to maintain her action is also correct.

The question, therefore, arises, who was the holder of the policy ? By it an insurance was effected for the benefit: First, of the wife; second, the children, and third, the estate of the insured in case his wife and children did not survive him. Does the word “ holder ” mean the party having possession of the policy, or the person or persons to whom it is made payable. If a promissory note is made to several persons and in possession of one, each of them are the legal owners and holders. The possession of one is that of all. If a note is made to A., but in possession of A.’s agent, A. is still the holder. I am inclined to believe that this policy, which secured the payment of $2,000 to Josephine Doty on the death of her husband, or, in case she did not survive him, to her children, or, if neither wife or children survived him, to his personal representatives, must be deemed held by the parties to whom it wras payable, and that the possession of the policy by the insured, or by either of such parties, must be considered the possession of all. If the policy had been for the wife’s benefit alone she would have been the holder and could have exercised the option in the eighth clause, or could, with her husband’s consent, have assigned the policy and her assignee could have exercised such option. In such a policy as the one under consideration, in which several parties are interested, I am inclined to think that the option can only be made by all these parties together; that the word “holder” means the persons to whom the policy is by its terms payable —■ the owners thereof.

I conclude, therefore, that the trial judge was right in holding that the defendant Healey was not entitled to maintain her action against the plaintiff. For the reasons first suggested, the judgment should be reversed and a new trial granted, costs to abide the event.

Herrick, J., dissented.

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


author: Putham, J.:

text:
    Charles N. Smith, Appellant, v. John Kiniry, Respondent.

      Action to recover for the keeping of a horse — when judgment for the plaintiff therein is proper,

    "Where it is shown upon the trial of an action brought to recover for the care and keeping of a horse, that the defendant took the horse to and left it at the plaintiff’s stable, and that the plaintiff furnished board and attendance and medical care for it, such evidence standing alone justifies a recovery by the plaintiff.
    Appeal by the plaintiff, Charles N. Smith, from a judgment of the County Court of Montgomery county in favor of the defendant, entered in the office of the clerk of the county of Montgomery on the 10th day of December, 1894, upon the decision of the court reversing the judgment of a justice of the peace of the town of Minden, Montgomery county.

      G. E. Phillips and E. V. Eorst, for the appellant.

      L. M. Weller, for the respondent.
   Putham, J.:

The action was brought to recover for the care and keeping of a horse at plaintiff’s stable. There was no conflicting evidence in regard to the facts establishing defendant’s liability for the claim on. which the action was brought. The latter purchased the horse in question at an auction sale had by one' Snell at the plaintiff’s stable on January 6, 1894. , A few days afterwards, claiming a breach of warranty on the part of Snell, and a right to return the horse under the terms of salfe announced by him at the auction, defendant took the horse to plaintiff’s stable and left it with the hostler. He did not notify plaintiff when he left the horse at the stable that he (defendant) did not expect to be liable for its board and keep, or that he was returning the horse to Snell at the stable in pursuance of tlie terms of sale as announced at the auction. Plaintiff was not present at the auction sale, nor was it shown that he knew of the terms of sale, or that he had agreed, or was obligated, to receive any horses at his stable after the purchase by defendant from Snell. All that appeared, material to the issues in this case, from the evidence was that defendant took and left the horse at plaintiff’s stable, and plaintiff furnished board and attendance and medical' care for it. We think the evidence clearly sustains the judgment rendered in the Justice’s Court.

The justice properly excluded evidence offered to show the terms of sale at the auction, it appearing that plaintiff was not present; also evidence tending to show breach of warranty by Snell, and that Snell had, in case of such a breach, agreed to take back the horse. Plaintiff was not responsible for Snell’s warranties or contracts. There wras no evidence given to show that plaintiff was legally bound to receive the horse at his stable for Snell, or that he was in any way a party to Snell’s contracts to take back the horse if any such contract was made.

The judgment of the County Court should be reversed, with costs in this court and in the County Court, and the judgment of the Justice’s Court affirmed.

Stover and TIeeriok:, JJ., concurred.

Judgment of the County Court reversed. Judgment of the Justice’s Court affirmed, with costs and disbursements in this court and in the County Court.


author: PütNAM, J.:

text:
    Mary Egan, as Administratrix, etc., of Edward Egan, Deceased, Respondent, v. The New Jersey Steamboat Company, Appellant.

      Cylinders containing oxygen and hydrogen — -not included in the term “other like explosive, burning fluids or like dangerous m’ticles.”

    Cylinders containing oxygen and h3rdrogen are not covered by tlieterm “ otter like explosive, burning fluids or like dangerous articles ” as used in the statute of the United States (U. S. Rev. St. § 4472), which provides that “ no loose hay, loose cot,tonorloose hemp, camphene, nitro-glycerine, naphtha, benzine, benzole, coal ■oil, crude or refined petroleum, or other like explosive, burning fluids or like dangerous articles, shall be carried as freight or used as stores on any steamer carrying passengers.” In order to recover damages for injuries sustained by reason of the violation by a steamboat company of such statute, the plaintiff must show a knowing and intentional violation thereof by the defendant.
    Appeal by the defendant, The New Jersey Steamboat Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 19th day of October, 1894, upon the the verdict of a jury rendered after a trial at the Albany Circuit, and also from an order entered in said clerk’s office on the 16th day of October, 1894, denying the defendant’s motion for a new trial made upon the minutes.

      R. K. Prentice, H. Reilly and W. P. Prentice, for the appellant.

      Olin A. Martin, for the respondent.
   PütNAM, J.:

The learned trial justice in his charge instructed the jury that the plaintiff could not recover unless defendant, in carrying as freight the cylinders containing oxygen and hydrogen, by the explosion of one of which plaintiff’s intestate was killed, had negligently and knowingly violated the statute of the United States, which provides that “ No loose hay, loose cotton or loose hemp, campliene, nitroglycerine, naphtha, benzine, benzole, coal oil, crude or refined petroleum, or other like explosive, burning fluids or like dangerous articles, shall be carried as freight or used as stores on any steamer carrying passengers.” (U. S. Rev. St. § 4472.)

The learned justice was in doubt whether the question involved was one of law, to be passed upon by the court, or of fact, but concluded to submit the case to the jury. After a careful examination of the evidence (which we do not deem it necessary to discuss), we are of opinion that it did not justify the submission of the ease to the jury.

The statute above quoted, it will be observed, prohibited the carrying of loose hay, cotton, hemp, camphene, nitro-glycerine, naphtha, benzine, benzole, coal oil, crude or refined petroleum or other like explosive, burning fluids or like dangerous articles. Assuming that the statute in question applied to steamers like defendant’s running between two cities in the same State, plaintiff was not entitled to recover unless the evidence established the fact that the cylinders containing oxygen and hydrogen-were within the prohibition of the statute, and hence that oxygen and hydrogen could be deemed “ other like explosive, burning fluids or like dangerous articles ” within the meaning of the law. It will be seen that each of the articles specifically mentiozied therein are dangerously inflammable or explosive in themselves. We think plaintiff failed to show that oxygen and hydrogen were like explosi/ve, burning fluids or like dangerous articles to those mentioned in the statute. They are not in themselves explosive or dangerous. The witness Mason, called by the plaintiff, testified as follows: “ Oxygen and hydrogen by itself is not in the ordinary parlance any more explosive than compressed air. All these other things which I have mentioned, benzole, benzine, naphtha and refined petroleum, give off a vapor. Some, I should judge most, of the danger I have described comes from that. * * * Any package of oxygen or hydrogen at low pressure might be carried anywhere. There is nothing to indicate that there is anything dangerous about it. A lowqpressure cylinder itself, sufficiently low, is as harmless as the siphons of seltzer water. As a fact we have a number of experiments where glass vessels containing compressed air or containing seltzer water, carbonated water, have exploded, and the glass has flown to a great distance. I suppose every reading man has a number of such instances within his knowledge. The danger is from the pressure, and of the pressure you can tell nothing by the outside of the vessel.” The evidence indicated that the accident to plaintiff’s intestate occurred through the explosion of one of the cylinders containing hydrogen or illuminating gas. While hydrogen will burn, the evidence failed to show that it was dangerously inflammable or explosive like the articles specifically mentioned in the statute. As the witness above quoted said, oxygen and hydrogen by itself is not, in the ordinary parlance, any more explosive than compressed air. If properly packed they can be carried without danger. The accident in this case occurred, not on account of the dangerous and inflammable character of the gas, but on account of its being placed in a defective cylinder or of the cylinder being overcharged. The same accident might have occurred if the cylinder had been filled with compressed air.

We liave been furnished with a copy of an oral opinion delivered by Landon, J., on the trial of an action brought by another party injured by the accident which caused the death of Egan, which, we think, states the correct doctrine applicable to this case. The learned justice, referring to the testimony of the witness whose evidence is quoted above, said: “ We have seen from the evidence of the professor in what manner campliene, and nitro-glycerine, and benzine, and benzole, and naphtha and the other articles are dangerous articles. They are dangerous, of course, in consequence of their inflammability. The article we are dealing with is illuminating gas, and that gas, as I have already remarked, is not per se dangerous. Taking the testimony of the professor, the gas is not dangerous in the sense any of these articles are dangerous. The danger does not arise from the article itself, but from the use to which the article is put, namely, the cylinder is not strong enough to hold it. It is the danger that arises from overcrowding the cylinder beyond its strength. Is that danger like the danger which arises from any of the other articles ? The danger does not arise from any of these articles, as I understand it, in consequence of the weakness of the vessel which contains them, or the overcrowding them or overpressing them into that vessel. The danger arises in consequence of the element of danger which inheres in the very nature of the composition itself.

“ Here the element of danger does not inhere in the elements of the article itself, so that the danger that exists here is not in the article, but in the improper overcharging of the cylinder which contains the article, and that was the act of the oxygen company.”

We concur in the views of Justice Landon above quoted, and think it unnecessary to add anything further to what he has so clearly and ably expressed.

The cylinders in question were shipped with defendant as oxygen. The evidence of the witness Mason established the fact that oxygen was not inflammable or more explosive than compressed air. Hence we think there was a failure to show what the learned trial judge correctly held was necessary to be proved to entitle the plaintiff to recover, a knowing-and intentional violation of the statute by defendant. Shipping the cylinders as oxygen was not notice to defendant ‘ that they contained a dangerous substance or article it was prohibited from carrying by the provisions of the statute in question.

The views above suggested will render it unnecessary to discuss1 the various other questions in the case.

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

.Mayham, P. J., and Herriok, J., concurred.

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


author: Per Curiam:

text:
    Anthony H. Lawatsch, Respondent, v. John J. Cooney, Appellant.

      Trover — what constitutes a conversion of a bill of exchange — defense of the pendency of another action.

    Where two persons owning a draft in common agree upon the amount 'of their respective interests therein and that the draft shall he delivered to a third person to collect and divide the proceeds, and upon the faith of such agreement one of the owners indorses the draft, and afterwards the other wrongfully obtains possession thereof with the indorsement thereon, and claiming to be its sole owner denies that such indorser has any interest therein, the action of •such person constitutes such a wrongful appropriation of the draft, in violation of the contract of the parties, as to constitute a conversion.
    Quart3, whether the agreement and the delivery of the draft to the third person for collection operated as a separation of the tenancy in common therein.
    The pendency of an equitable action brought for the specific performance of such a contract is not a defense to an action brought to recover damages for the wrongful conversion of the draft subsequent to such contract, when both such actions are commenced at the same time.
    An action in the nature of a trover can be maintained as well for the conversion of a bill of exchange or a note as for any other property.
    Appeal by the defendant, John J. Cooney, from a judgment of the Supreme Court in favor of the plaintiff, entered in the officé of the clerk of the county of Ulster on the 26th day of April, 1893, upon the verdict of a jury rendered after a trial at the Ulster Circuit, and also from an order entered in said clerk’s office on the 22d day of May, 1894, denying the ■ defendant’s motion for a new trial made upon the minutes.

      George Van Etten and John J. Benson, for the appellant.

      John E. Van Etten, for the respondent.
   Per Curiam:

The evidence was snch that the jury could properly find that plaintiff was part owner of the draft described in the complaint. The parties had agreed upon the amount of his interest therein and that the draft should 'be delivered to Brinnier to collect and divide the proceeds, and on the faith of that agreement plaintiff had indorsed the draft. Afterwards the defendant wrongfully obtained possession of the paper with plaintiff’s indorsement thereon, claimed to be the sole owner and denied that plaintiff had any interest therein.'

We think defendant’s action was such a wrongful appropriation of the draft in violation of the contract of the parties as to constitute a conversion. (Delaney v. Root, 99 Mass. 546; Osborn v. Schenck et al., 83 N. Y. 201.)

Probably the agreement and the delivery of the draft to Brinnier operated as a separation of the tenancy in common therein. (Lobdell v. Stowell, 51 N. Y. 70 ; Channon v. Lusk, 2 Lans. 211.)

An action in the nature of a trover can be maintained as well for the conversion of a bill of exchange or a note as any other kind of property. (Murray v. Burling, 10 Johns. 172; Develin v. Coleman, 50 N. Y. 531; Decker v. Mathews et al., 12 id. 313.)

We do not regard the pendency of the other action, commenced at the same time as this, as a defense. That action is an equitable one, brought for a specific performance of the contract between the parties. This action is for a wrongful conversion by the defendant of the draft subsequent to the contract. (Paige v. Wilson, 8 Bosw. 294; Webb v. Van Zandt, 16 Abb. Pr. 190.)

The judgment should be affirmed, with costs.

Present — Putnam,. Herrick and Stoter, JJ.

Judgment affirmed, with costs.