author: O’Brien, «L:

text:
    William L. Andrews, Appellant, v. Richard W. G. Welling, as Assignee, etc., of Francis H. Weeks, Respondent, and Mary Elizabeth S. E. Goddard Williams, Defendant.

      Bonds delivered to a, Tyi'oker to sell — right thereto of the assignee for creditors of the h'olcer.

    Wliere certain specified bonds were bouglit and paid for, and were in the possession of the purchaser until delivered with certain other bonds to a broker for sale, if the broker does not sell them the assignee for the benefit of creditors of the broker cannot successfully assert title thereto.
    Appeal by the plaintiff, William L. Andrews, from a judgment of the Supreme Court in favor of the defendant Richard W: G. Welling, as assignee, etc., of Francis H. Weeks, entered in the office of the clerk of the county of New York on the 23d day of July, 1891, upon the report of a referee, dismissing the plaintiff’s complaint and the answer of the defendant Mary Elizabeth S. E. Goddard Williams, upon the merits.

      Alfred J. Taylor, for the appellant.

      John L. Wilkie and Everett V. Abbot, for the respondent.
   O’Brien, «L:

This action was brought to recover possession of two bonds of $1,000 each of the Land and River Improvement Company. Among other property which came into the possession of the defendant as assignee were the two bonds in question, against which a claim was asserted by the plaintiff and the defendant Williams. Upon the reference the latter presented no proof to sustain her claim; and, not having appealed, she may be regarded as no longer a claimant.

As to plaintiff’s claim, it appears that he purchased these bonds, which were numbered respectively 1018 and 821, of Weeks & Co., brokers, the former bond being paid for and delivered to plaintiff February 13, 1891, and the latter on March 18, 1892. In addition to these, the plaintiff, from time to time,, had purchased other bonds of Weeks & Co., and about April I, 1893, he delivered ten bonds so purchased, including the two in dispute, to Francis II. Weeks, an attorney, for sale. Eight were sold and the proceeds accounted for by Weeks to plaintiff, and the remaining two of the ten left for sale were put in an envelope and marked in the handwriting of Weeks, as follows : “$2,000 Land and River Improvement Company bonds, property W. L. Andrews, 16 East 38th street.” Francis H. Weeks made a general assignment on the 29th day of April, 1893, for the benefit of his creditors, and the property and securities belonging to Weeks, and the property and securities that he held in trust or as agent, were in separate packages. The assignee testified: “ When Mr. Weeks delivered the assignment to me he handed to me two packages of papers, one of which he said, as near as he could tell, contained his own personal property, assets, and the other of which, * * * as far as he knew, contained trust property, that is, property he held in trust. Mr. Weeks assumed to assign to me the property represented by the papers in the first package. These bonds, which are the subject of this litigation, were in the second package.” And in this second package of trust property was contained the envelope marked in the manner already stated in the handwriting of Weeks.

Upon the record we find the following admission: “ It is admitted by all parties that the two bonds in .suit were delivered by the firm of Weeks & Co., brokers, at 18 Wall street, to William L. Andrews, plaintiff herein, on February 13, 1891, No. 1048, and on March 18, 1892, bond No. 824.”

It is not claimed that the plaintiff was indebted to Weeks, nor is there any contradiction of the testimony that the bonds were delivered by plaintiff to Weeks, as his agent, to sell. The referee, because in one or two instances it was shown that Weeks had incorrectly designated the owners of some of the securities which he turned over to the assignee, concluded that he was not bound to determine the question in plaintiff’s favor, and upon the ground that there was not sufficient identification of the bonds as plaintiff’s he dismissed the complaint. In this, we think, the referee was clearly in error.

Apart from the admission on the 'record of the original purchase of these specific bonds by plaintiff, we have the testimony of the plaintiff and of the defendant assignee, which is entirely uncontradicted and clearly sufficient to identify the bonds as the property of the plaintiff; and, in addition, we have the indorsement in the handwriting of Weeks, found on the envelope containing the bonds, which states that they are the property of the plaintiff. Upon such evidence there is not even room for discussion, as under the authority of Govin v. de Miranda (140 N. Y. 474) the plaintiff was entitled to judgment. Though in some respects like that case the one at bar is stronger in favor of plaintiff. In the case cited, after the death of the testator, there were found in a box in a safe at his office, a sealed envelope 'with the following indorsement théreon in Spanish: “A declaration in favor of Emilia, Felix, Guellennina Govin and Luz Diaz y Sanchez who lived in 147 East 39th street.” In the envelope was a paper which contained the following, among other declarations: “ There is besides in my safe a parcel containing $29,000 in bonds of the Iowa Division Railroad, and out of them $10,000 belong to Luz Diaz y Sanchez, mother of the aforesaid persons, for covering a memorandum or note for the same sum subscribed by me, and the balance belongs to the aforesaid Emilia, Felix and Guellennina, share and share alike.” Of the thirty-eight bonds contained in the box the plaintiffs claimed nineteen; and it was held that in the absence of any evidence explaining or contra-dieting tlie indorsement on tlie envelope, it furnished complete proof of ownership, the judge, in the course of the opinion, saying: “ The case depends entirely upon the force and effect to be given to that paper as evidence; and, we think, it shows that nineteen of these bonds belonged to the plaintiffs. They were found in the safe, and there is the unqualified declaration that they belonged to them. We must infer from that language that they came to the ownership of the plaintiffs in some legal way by purchase or gift from some one; and if there was nothing else in the paper qualifying the declaration, no one would dispute that it furnished absolute evidence of their ownership of the bonds.”

In the case at bar we are not left in doubt as to the manner in which plaintiff acquired the ownership of the bonds, nor as to how they came to be in the possession of Francis Ii. Weeks at the date of his assignment, it clearly appearing that these specific bonds were bought and paid for by the plaintiff, and were in his possession until delivered to Weeks for sale with eight other bonds, and he not having sold them, they remained the property of the plaintiff; and, as against the assignee, who succeeds to no other or greater rights than his assignor, the plaintiff should have been awarded the title and possession.

Tlie judgment, accordingly, should be reversed, and a new trial ordered, with costs to appellant to abide the avent.

Yan Brunt, P. J., and Parker, J., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event.


source: Caselaw Access Project

author: Parker, J. :

license: Public Domain

text:
    Warren N. Goddard and Another, Respondents, v. Harris Cassell and Another, Appellants.

      Amendment of a complaint changing the cause of action from one for the recovery, to one for the conversion, of chattels— Code of Civil Procedure, § 723.
    Ordinarily tlie appellate court will not interfere with the discretion of the Specml Term, exercised- under the provisions df section 723 of the Code of Civil Procedure, in permitting a complaint alleging a cause of action for the recovery of the possession of personal property to be so amended as to allege a cause of action for .the conversion thereof. •

      Appeal by the defendants, Harris Cassell and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 27th day of April, 1894, granting the plaintiffs’ motion for leave to serve an amended complaint.

      A. Jilumenstiel, for the appellants.

      Abraham Ghrub&r, for the respondents.
   Parker, J. :

It was not held in Freeman v. Grant (132 N. Y. 22) that the court at Special Term is without authority to permit an amendment to a 'complaint which shall entirely change the cause of action.

The decision made was that such an amendment may not ordinarily be granted on the trial against the objection of the other party. Upon the question of power there has been some conflict of authority, but this controversy was recently put at an end by the Court of Appeals in Deyo v. Morss (144 N. Y. 216). The court held that, under section 723 of the Code of Civil Procedure, authority is conferred upon the Special Term to direct a^ amendment of the complaint, although it changes the cause of action and substitutes another belonging to a different class. The Special Term was informed, by the • pleadings and affidavits before it, that A. & J. Levy fraudulently, and without intent to pay therefor, obtained from the plaintiffs certain personal property, which these defendants thereafter directed the sheriff of the city and county of New York to take possession of, and sell under certain writs of execution issued to him against the property of the firm of A. & J. Levy; that the sheriff in accordance with such direction sold the property and paid over the proceeds realized upon the sale to the creditors in whose favor the executions were issued. Before the sale the plaintiffs demanded of the sheriff that he deliver to them such property, and he having refused, an action to recover their possession was instituted. Thereafter these defendants, at their request, were substituted as defendants in such action in the place and stead of the sheriff. Before the action came on for trial it was decided in Wise v. Grant (140 N. Y. 593) that where a sale and delivery of goods is procured by fraudulent representations on the part of a purchaser, tbe title and possession pass to him notwithstanding the fraud, subject to the right of the vendor to rescind the contract of sale; that if such goods be levied upon prior to any act on the part of the vendor, showing an intention to rescind the contract of sale, an action of replevin to recover the goods will not lie, the -remedy of the vendor being in an action for conversion against the sheriff after demand made upon him for a delivery of the goods and his refusal. This decision coming to the knowledge of the plaintiff’s attorney, lie promptly made a motion for leave to so amend his complaint as to make the cause of action one for conversion instead of one for the recovery of the possession of the property. The Special Term in the exercise of its discretion granted the motion upon payment of taxable costs and disbursements, and we see no reason for questioning the decision made.

The order should be affirmed, with teu dollars costs and printing disbursements.

Yaw Brunt, B. J., and O’Brien, J., concurred.

' Order affirmed, with ten dollars costs and disbursements.


author: O’Brien, J.:

text:
    Ida A. Currier, Appellant, v. Henry W. Poor and Others, Respondents.

      False representations — remedies of a person aggrieved thereby — tender.

    An action, brought to recover damages for false representations made to tbe plaintiff, whereby he was induced to enter into a contract, is not maintainable until tbe maturity of tbe security or note received by tbe plaintiff under sucb contract.
    Tbe law gives three remedies to one who claims to have suffered by reason of tbe fraud of another. He may rescind tbe transaction, and offer to restore what be has received, and begin a suit at law to recover tbe moneys paid, or he may bring a suit in equity to obtain a rescission of tbe contract, and to recover what be bad parted with, his complaint containing an offer to restore what he has received, or be may keep what be has received, and sue for damages for tbe alleged fraud.
    Where sucb a person brings an action to rescind tbe contract and recover tbe purchase price, be is bound not only to tender, but to keep bis tender good, and upon tbe trial to offer to return, tbe property received by him under sucb contract.

      In an action brought to rescind a contract on the ground of fraud it is unnecessary to wait for the maturity of the security given under the terms thereof, or to wait for the expiration of a term of credit.
    Whether the .action is brought for the rescission of the contract, or for damages because of the fraud of the defendant in inducing the plaintiff to enter into the same, if a note has been given it must be returned ; an action for damages cannot be maintained until it is ascertained whether the note will be paid or not.
    Where the person defrauded makes no offer to return what he has received, the action must be regarded as one brought to recover damages for false representations ; in such a case what has been received may be kept, and the damages suffered by reason of the fraud may be recovered; but such recovery must be based upon evidence showing the damage.
    Appeal .by the plaintiff, Ida A. Currier, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of New York on the 24th day of March, 1894, upon the dismissal of tlie complaint directed by tlie court after a trial before the court and a jury at the New York Circuit.
    6r. E. Waldo, for the appellant.

      Adricuii II Jolme, for the respondents.
   O’Brien, J.:

By this action it was sought to recover the purchase money of five second-mortgage bonds of the Knickerbocker Brewing Company, upon the ground that the plaintiff was induced to purchase the bonds of the defendants by fraudulent representations. The plaintiff’s brother and agent testified that before purchasing he had an interview with one of the members of the defendants’ firm in which the latter had falsely represented that the bpnds were better than any railroad bonds that could be bought at about par; that they were more valuable than such railroad bonds; were secured by mortgage on real estate of greater value than the whole issue of bonds; that the bonds were issued for full value, and that at any time if the bonds were brought back defendants would get the plaintiff’s money for her; and that by such representations the defendants induced the plaintiff to make the purchase. It was shown that the bonds would not mature until 189Y; that they are still held by the plaintiff, and that interest has been paid as the same matured, except that the interest due November 1, 1891, was defaulted and not paid until November 29, 1891; that the bonds were tendered before suit to defendants, and repayment of tlie purchase money demanded and refused.

Upon these facts appearing, the defendants moved to dismiss the complaint, on the ground that by the testimony offered it did not appear that the plaintiff had sustained any damage; and, in response to the inquiry of the court, plaintiff stated that she had no further testimony as to representations, but that the only evidence she liad to offer, in addition to that already offered, was that the representations were false as to 'the value of the property, as to the fact that the bonds were issued for full value, and also as to the fact whether they were issued for full value or not, a.nd whether they were worth par on the market. Upon this statement the court granted the motion and dismissed the complaint, on the ground that no damage had been shown, adding that, according to the testimony of Ur. Currier, most of the statements complained of were mere expressions of opinion.

In determining the correctness of the ruling let us assume that the representations were made, and at least one of them, that relating to the question of value, was a statement of fact, and was untrue. In this condition of the record the question is, whether the learned trial judge was right in holding that it was an essential part of the plaintiff's cause of action to prove damages.

The plaintiff insists that the complaint was dismissed upon the ground that the action was prematurely brought. This, though not altogether an accurate statement, may be in one aspect correct; for, as we shall show, though the complaint was dismissed because no damages were proved, it is true that damages were not proven because the amount thereof could not be ascertained until the bonds matured ; and it has been held that where the action was brought to recover damages for false representations, and the plaintiff had the note or securities, which had not matured, the action was not maintainable until the,maturity of such securities or note. That counsel is not entirely correct in the statement that the dismissal was placed upon the ground that the action was prematurely brought we think appears from what occurred upon the trial, and from the language of, the judge in disposing of the motion, it being necessary only to quote a single sentence at the end to show the position taken. He says: “ If the plaintiff had shown any loss, no matter how slight it might be, I should certainly not take the case away from the jury; but the interest upon the bonds being regularly paid, it is not for us to say now that when the principal matures that will not be paid also, and, therefore, the complaint, I think, should be dismissed.” It will thus be seen that the motion was put upon the ground of a failure to prove any damages, and that it was granted by the court upon this express ground.

Though frequently stated, it seems necessary for the sake of clearness in cases of this character to refer to the remedies which by law are given to one who claims to have suffered by reason of the fraud of another. The plaintiff had one of three remedies open to her if her allegations were true: (1) To rescind the transaction, offering to restore what she had received, and begin a suit at law to recover the moneys paid; (2) to bring a suit in equity to obtain a rescission of the contract, and to recover what she had parted with, the complaint containing an offer to restore what she had received, and (3) to keep what she had received and sue for damages for the alleged fraud. (Kountze v. Kennedy, 25 N. Y. Supp. 682; Met. El. R. R. Co. v. Man. El. R. R. Co., 11 Daly, 373, 449 ; Vail v. Reynolds, 118 N. Y. 291.) The complaint seemingly would indicate that the plaintiff intended to avail herself of the first-mentioned remedy, for there is an allegation in the complaint of tender before suit; but we find no allegation of continued willingness to return the bonds, and there was no profert made of them at the trial. The trial was conducted on the theory that the suit was one for damages for false representations; and that this was the view taken both by counsel for the plaintiff and the judge is apparent from the remarks of both as they appear in the record. Plaintiff had the right, as shown, to rescind the contract and recover the purchase price, but in that case she was bound not only to tender but to keep the tender good, and upon the trial offer to return the bonds. This was not done, either by suitable allegations in the complaint, or by the proof, or by profert of the bonds upon the trial.

In an action to rescind it is unnecessary to wait for the maturing of the security, or, if a note be given, for the maturing of the note, or for the expiration of a term of credit; but where such remedy is elected the plaintiff must maintain a consistent attitude. ‘Where, however, one defrauded makes no- offer to return what has been received, the action must be regarded as one brought to recover damages for false representations, and in such 'a case what has been received may be kept and the damages suffered by reason of the fraud recovered; but such'recovery must be based upon evidence showing the damage. The distinction between the various remedies thus pointed out has been clearly presented upon two appeals before this court in the case of Thomas v. Dickinson (47 N. Y. St. Repr. 209, and 67 Hun, 350). Upon the first appeal the record showed that, by means of false representations, the plaintiff had been induced to part with goods, and had received in payment therefor a note, which was not due at the commencement of the action and was not tendered before or after suit brought, nor at the trial. Upon this ground a motion was made to dismiss, which was denied, and an exception taken. And it was therein held that, whether the action is for a rescission of the contract or for damages because of the fraud of the defendant in inducing the plaintiff to enter into the contract, if a note has been given, it must be returned. An action for damages, in such case, cannot be maintained until it is ascertained whether the note will be paid or not, and it must be shown that plaintiff is still the holder of the note, the reasoning of the court being that “ until it is ascertained whether or not the .note in question, which has been given in payment of the goods, will be paid, it cannot be ascertained as to whether the plaintiff has or will suffer any damage by reason of the alleged false representations.” And upon the second appeal, the record showing that the note had not been paid and that the plaintiffs at the trial offered to return the note to the defendants, it was held that, as “the defendants were guilty of fraud in obtaining the property of the plaintiffs, although they accepted a note therefor, they were entitled to maintain the action for the fraud, their right of action having accrued immediately upon the discovery of such fraud, and that when upon the trial they tendered back the note, they were entitled to recover as damages the value of the property obtained from them.”

So here, if the plaintiff, upon the theory of a rescission of the contract for fraud, had tendered back the securities and kept such tender good, and made profert at the trial, then, although they had not matured, she could recover back the purchase price; but not having offered to return the securities or made a profert of them at the trial, and having proceeded upon the theory that the action was one to recover damages for false representations, she was obliged to show her damages.

We think, therefore, that in the disposition made the court was right, and the judgment should be affirmed, with costs.

Yan Brunt, P. J., and Parker, J., concurred.

Judgment affirmed, with costs.


author: Follett, J.:

text:
    Patrick J. O’Brien, Respondent, v. The Mayor, Aldermen and Commonalty of the City of New York, Appellant.

      Attendant of the Court of General Sessions' — a public offker, not a city officer — entitled to pay although he has served as a United States marshal.

    An attendant of tlie Court of General Sessions of the Peace in and for the city and county of New York is a public officer, and, in effect, is declared to be such by sections 53, 54 and 55 of the Consolidation Act (Chap. 410 of 1882); he is not, however, an officer under the chy government, within the meaning of section 55 of the Consolidation Act; and although such attendant serves as a deputy United States marshal for a day, yet if the appointing power recognizes his right to the office of attendant of the Court of General Sessions by notifying him that his services will not be required after a certain subsequent date, and he continues to discharge the duties of attendant until such date, he is entitled to his pay up to that time.
    Appeal by the defendant, The Mayor, Aldermen and Commonalty of the City of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 19th day of October, 1894-, upon the . verdict of a jury rendered by direction of the court after a trial at the New York Circuit.

      William II. Glawh and Jmies T. Malone, for the appellant.

      John R. Fa/rrar, for the respondent.
   Follett, J.:

This action was brought to recover eighty-tliree dollars and thirty-three cents, the salary of the plaintiff for November, 1892, as an attendant of the Court of General Sessions of the Peace in and for the city and county of New York. Section 1531 of the Consolidation Act (Chap. 110, Laws of 1882) provides :

“§ 1531. The judges of the Court of General Sessions shall appoint such officers to attend said court as to the judges of said court shall appear to be necessary; the salaries shall be paid out of the city treasury in monthly installments; but the salary of each officer or attendant shall in no case exceed twelve hundred dollars per annum, and the salary of each officer or attendant appointed after May twenty-ninth, eighteen hundred and eighty, shall be one thousand dollars. Such officers may be removed by the court, but their successors shall be appointed by the judges of the court, provided, however, that no other officers or clerks shall be appointed by said judges than is by law provided for.”

February 1, 1882, the plaintiff was duly appointed by the judges of the Court of General Sessions an attendant of said court and immediately entered upon his duties and continued to discharge them until December-1, 1892, when he was dismissed from the service, pursuant to the following communication :

- “New York, Rov. 21, 1892.
“ To Mr. Patrick J. O’Brien :
“You are hereby notified that your services as an officer or attendant of the Court of General Sessions of the Peace will not be further required on or after the 1st day of December, 1892.
“JAMES FITZGERALD,
Judge of G-m%eral Sessions.
“RUFUS B. COWING,
Gi1/y Judge.
“FREDK. SMYTH,
Recorder”

In October, 1892, the plaintiff was appointed a special deputy United States marshal, took an oath of office and served one day, for which he was paid ten dollars. The defendant insists that by becoming special deputy marshal for one day the plaintiff vacated -bis office as an attendant and is not entitled to recover his salary for November, though he served through that month. No other defense is alleged or suggested. Section 55 of the Consolidation Act provides:

“ § 55. Any person holding' office, whether by election or appointment, who shall, during his term of office, accept, hold or retain any other civil office of honor, trust or emolument, under the government of the United States (except commissioners for the taking of bail, or register of any court), or of the State (except the office of notary public or commissioner of deeds, or officer of the National Guard), or who shall hold or accept any other office connected with the government of the city of New York, or who shall accept a seat in the Legislature, shall be deemed thereby to have vacated every office held by him under the city government. * * * ”

An attendant of the Court of General Sessions is, in effect, declared to bo a public officer by sections 53, 54 and 55 of the Consolidation Act, and it has been held by the Court of Appeals that an attendant of the Supreme Court is a public officer. (Rowland v. The Mayor, 83 N. Y. 372.)

Was the plaintiff an officer under the city government, within section 55 above quoted, or was he an officer of the Court of General Sessions ? . In Goettman v. The Mayor (6 Hun, 132) an interpreter of a District Court was held to be a public officer, but not an officer of the city government. In the case cited, the plaintiff was appointed and served as an inspector of elections, and the city refused to pay his salary for November, but in an action brought it was held that he was an officer of the court and not of the city, and was entitled to recover. In People ex rel. Gilchrist v. Murray (73 N. Y. 535) it was held that the office of assistant clerk of a District Court was not within section 114 of chapter 335, Laws of 1873, and that the office was not vacated by the incumbent becoming a clerk in the department of public works, or because elected to the Assembly. Section 55 of the Consolidation Act is an exact copy of section 114, chapter 335, Laws of 1873, and the cases cited are applicable to the case at bar.

People ex rel. Schultze v. Myers (61 Hun, 500 ; affd., 131 N. Y. 644) arose under section 56 of the Consolidation Act, and is not in conflict with the cases before cited. After the plaintiff had acted as a deputy marshal for one day, the appointing power, by its notice of November 21' 1892, above quoted, recognized Iris right to the office, and pursuant thereto the plaintiff discharged the duties thereof until December of that year, and we think he is entitled to his pay.

The judgment should be affirmed, with costs.

Tan Brunt, P. J., and Parker, J., concurred.

Judgment affirmed, with costs.


author: Per Curiam :

text:
    In the Matter of the Application of Oscar H. Goodman, Respondent, to Strike from the List or Registry of Voters, etc., the Name of Henry W. Bainton, Appellant.

      Residence at a seminary of lemming — right to rote there.

    The Constitution of the State of New York forbids the acquisition by a student, of a residence at a seminary of learning, for the purpose of voting.
    Appeal by Henry AY. Bainton from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 2d day of November, 1894, granting the respondent’s motion to strike the name of the appellant from the list or registry of voters of the twenty-fifth election district of the twenty-first Assembly district, and directing the inspectors of election to reconvene for that purpose. /

      Thomas F. Wentworth, for the appellant.

      Charles H. Know and Louis II. ILahlo, for the respondent.
   Per Curiam :

Henry AY. Bainton registered from No. 41 East Sixty-ninth street, a seminary of learning, known as the “ Union Theological Seminary.”

He had occupied the same apartment for more than one year, and had no other domicile. He was born in the city of New York, but in another Assembly district than that in which the seminary was situated.

His father died in 1890, since which time the building in which his father lived has been demolished. The motion to strike his name from the registry was made on the ground that the Constitution forbids the acquisition by a student of a residence, for the purpose of voting, at a seminary of learning.

It reads as follows: “ For the purpose of voting, no person shall be deemed to have gained or lost a residence by reason of his presence or absence while employed in the service of the United States; nor while engaged in the navigation of the waters' of this State, or of the United States, or of the high seas; nor while a student of any seminary of learning; nor while kept at any almshouse, or other asylum at public expense; nor while confined in any public prison.” (Art. 2, § 3.)

The learned judge reached the conclusion that Bainton did not gain a residence .while a student at the “Union Theological Seminary.”

That his decision was right seems to be so clearly written in the Constitution as not to warrant any discussion of the subject. However, it should be said that the assurance, which to some can only come from final judicial decision, is afforded by Silvey v. Lindsay (107 N. Y. 55).

The order should be affirmed.

Present — Yan Brunt, P. J., O’Brien and Parker, JJ,

Order affirmed.


text:
    William Guichard, an Infant, by Augustine L. Guichard, his Guardian ad Litem, Appellant, v. Jacob New, Respondent.

      Damages for personal injuries •— elevator gates —prudence and judgment required of an infcmt sui juris — damages recovered by a trespasser.

    Sliding gates, three feet in height, placed by the side of an elevator shaft on a landing, cannot be held, as a matter of law, to have been fully adequate for the protection of passengers in the elevator.
    If, on the trial of an action brought to recover damages for personal injuries arising from the alleged negligence of the owner of the building in which such elevator is operated, it bo shown that the danger to be apprehended from such low gates was brought home to such owner, a question is presented for the determination of the jury as to whether such a construction was proper and safe, and was a compliance with the provisions of section 28 of chapter 275 of the ■ Laws of 1892.
    An infant, although sui juris and thus chargeable with his own negligence which contributes to his injury, is not to be held to the same standard of prudence and judgment as a man of mature years and experience, and an act of such child, although contributing to his injury, if not under all the circumstances negligent, will not prevent a recovery of damages for the injuries which he has sustained.
    It is not the contributing act but contributory negligence that defeats recovery.
    The fact that a person who has sustained personal injuries, while in a building belonging to another, was technically a trespasser, will not, as a matter of law, preclude a recovery of damages from the owner for the injuries he has sustained.
    Appeal by tlie plaintiff, William Guicliard, an infant, by Augustine L. Guicliard, his guardian ad litem, from a judgment of tbe Supreme Court in favor of the defendant, entered in the office of tbe clerk of tbe county of New York on tbe 27th day of October, 1893, upon tbe dismissal of the complaint directed by the court after a trial before tbe court and a jury at tbe New Yonc Circuit, and also from an order made on tbe 23d day of October, 1893, and entered in said clerk’s office denying the plaintiff’s motion for a new trial made upon the minutes.

      Q. E. Waldo, for tbe appellant.

      Charles C. Nadal, for tbe respondent.
   O’Brien, J.:

This action is brought to recover damages for injuries sustained by tbe plaintiff. On September 13, 1892, tbe defendant was the owner of premises on South Fifth avenue in this city, which were a five-story building rented in floors to manufacturers, some of whom employed a large number of hands, among them young girls. At tbe rear of the hallway in tbe building is an elevator, used 'for both freight and passengers, very little of the former being carried thereon, it liaviug been mostly used for passengers. The elevator faces the street and is plainly visible therefrom.' On each floor at tbe opening into tlie elevator shaft there was an automatic wooden gate three feet high, which slid up and down like a window, and a gate of tbe same construction guarded tbe shaft at the street floor. Attached to and on the elevator car was a flexible iron^gate, which was open at the time of the accident, and was so rusted that it could not be closed. Between the wooden gate on the landing and the iron gate on the car there was a space of two and one-half inches; and between the top of the iron gate on the car and the iron bar at the top of the car there was a space of about ten inches.

On the date mentioned the appellant, then an infant eight years and seven months of age, and about four feet two inches in height, was playing on the sidewalk in front of the adjoining building. The man employed to run the elevator for respondent called the boy inside the door of the hallway and told him to get a pitcher and get a pint of beer, to pay for which he gave the boy ten cents. The boy went home for a pitcher, and thence across the street to a saloon, where he got the beer and returned to the premises and gave it to the elevator man in the front part of the hall. The latter requested him to go up on the third floor with him on the elevator, which he did. There they got off, stayed just long enough for the elevator man to drink the beer, and then both got on again and went down to the first or street floor, where the boy got off and started towards the street. The elevator man shut the wooden gate and started the car down towards the basement. The boy, after having gone a little way towards the street door, returned to the elevator shaft and, seeing the elevator moving down and the shaft gate closed, looked over, and at the same time asked the elevator man where he was going; but before he got an answer the top iron cross bar or frame of the elevator caught on the top of the boy’s head, tore his scalp completely off, and otherwise injured seriously his face, teeth and head.

It appeared that the boy had played frequently in front of the entrance to the premises, knew of the existence and position of the elevator, but had never been in it nor in the hallway before, and had never spoken to the elevator man, nor the latter to him, prior to the day of the accident. In addition to plaintiff’s witnesses, tenants in the building were examined, who testified to the condition of the elevator and the rusty condition of the gate on the car which prevented its closing, and also that they had notified the defendant of the danger which they apprehended from such conditions and from the low gates on the landings that guarded the elevator shaft. IJpon such testimony, supplemented by chapter 275 of the Laws of 1892 (§ 28), which requires that elevator shafts similar to the one in question “ shall be provided with and protected by a substantial guard or gate,” the plaintiff relied for a recovery.

At the close of plaintiff’s case a motion to dismiss the complaint was made, placed upon three grounds: (1) That no negligence on defendant’s part was shown ; (2) that no evidence that plaintiff was free from contributory negligence was given, but, on the contrary, the evidence was that plaintiff himself contributed to the injury; and (3) that plaintiff was a trespasser on the premises, or at most was there by mere sufferance, and thus assumed the conditions as they existed there, the defendant owing him no special duty. The learned trial judge granted the motion upon the two latter grounds assigned, viz., the absence of evidence showing plaintiff’s freedom from contributory negligence, and that for the reason that the accident happened after the boy had quit the elevator to go to the street, the defendant could not be held responsible. We might confine our attention, therefore, to these grounds; but, as the other question, of the absence of any negligence on the part of the defendant, is also urged to support the judgment, it will be necessary to refer briefly to the three grounds upon which the motion was made.

First. Was there sufficient evidence to submit to the jury the question of whether or not the defendant was negligent ? As stated, the construction and use of the elevator and shaft was not that of a • hoistway, but of a passenger elevator with a close-fitting car, so that the slightest projection of a person’s head or limbs into the shaft would be dangerous, the distance between the iron bar at the top of the car and the wooden gate at the landing being but two and a half inches. To prevent injury to those in the car from the projection of their persons, as well as to prevent their getting on or off while the car was in motion, a flexible iron gate was provided. On account of the rust this was not. in a condition at the time of the accident to be closed, and, so far as appears, had not been used for some time prior thereto. It is true that the boy was not injured while on the car, but while on the landing: but there is something in the suggestion made by one of the witnesses, who testified : “ There are prongs go up from this iron gate, and those prongs slip through the iron bar on the top of the car. If this gate had been shut, that iron frame couldn’t have caught the boy’s head unless he put it in between the top of the gate and this bar. In that case his face would have struck that if he had put his head over the gate.” According to this witness, if the flexible gate of the car had been closed, the projection of the boy’s head over the low wooden gate on the landing would have brought his face against the gate of the car, unless he happened to run his head in the space (assuming the gates to be closed) that would be left between the top of the gate and the iron bar at the top of the car, which, as testified to by one of the witnesses, was about eight inches.

Apart, however, from this, considering the character of the construction of the sliding gate on the landing, which was only three feet high, and which cannot be held as a matter of law to have been fully adequate for the protection of the passengers, coupled with the fact that the danger to be apprehended from this low gate was brought home to the defendant, we think a question was presented as to whether such a construction was proper and safe, and a compliance with the statute, and upon this branch as to defendant’s negligence, there was sufficient evidence to go to the jury.

Upon the second ground, that there is no evidence that the plaintiff: was free from contributory negligence, there was sufficient upon which the learned judge should have submitted this also to the jury. It lias been frequently held that an infant, although sui juris, and ■ thus chargeable with his own negligence which contributed to his injury, is not to be held to the same standard of prudence and judgment as a man of mature years and experience. In O’Mara v. Hudson River R. R. Co. (38 N. Y. 449) the court says : “ It is to be considered, also, that the deceased was a lad -eleven and a half years old, to whom greater indulgence should be extended than to an adult. He was of that age that he was quite fit to be trusted with the care of his own person in the streets of a country village, and yet it is not probable that he would exercise as much prudence and caution as would an adult. * * * The young are entitled to the same rights, and cannot be required to exercise as great foresight and vigilance as those of maturer years. More care toward them is required than toward others. In the case of a child of but two or three years of age, no knowledge or foresight could be expected. This an engineer is bound to know, and if the child is within liis view, to act accordingly. In a case like the present, that of a boy eleven and a half years of age, the jury were not bound to require the same demureness and caution as in tlie case of an older person.” (See, also, McGovern v. N. Y. Cen. & H. R. R. R. Co., 67 N. Y. 421; Byrne v. Same, 83 id. 621; Wendell v. Same, 91 id. 420; Brown v. City of Syracuse, 77 Hun, 411.)

No doubt, as urged by tlie respondent, the act of tlie boy in putting his head over the gate to call to the elevator man contributed to the injury. But an act, though contributory to the injury, if not, under all the circumstances appearing, negligent, would not prevent a recovery. In other words, it is not the contributing act, but contributory negligence, that defeats recovery; and this distinction has been pointed out in the case of Schmidt v. Cook (30 Abb. N. C. 285-290).

~We do not think, therefore, as a matter of law, it could be held that a child of the age of tlie appellant, who was injured in the manner described, was guilty of contributory negligence which would bar a recovery, but upon the facts here appearing that question should have been submitted to the jury.

The final ground, that aftér tlie boy had left the elevator for the purpose of returning to the street .the defendant owed him no obligation, does not seem to us to be tenable. That tlie boy was not a trespasser appears from the fact that he was invited upon 'the premises by the elevator man, who used him'in doing an errand; and, in the absence of express rules to the contrary, there was nothing wrongful in sending tlie boy upon a message. If, instead of sending him for beer, tlie elevator man had sent him for food or for water to quench his thirst, we do not think, unless there was a rule of the defendant forbidding his employees sending a boy on such an errand, that it would be wrongful in him to do so. There is no ’ prohibition against a workman having a pint of beer with which to quench his thirst, any more than there is against liis having food or water; nor is there sufficient in the fact that it was beer instead of either food or water to justify the conclusion that the boy while on the premises, where he had been brought by the invitation of one having the apparent right to do so, was a trespasser. By this, we do not mean to hold that the one who sends the boy, or the one who sells the beer to him, may not do wrong, but only that tlie boy’s status, by the mere fact of going, is not changed from a rightful into a wrongful one. It is unnecessary, however, for us to determine just wbat the boy’s status was, because, even if technically a trespasser, it would not as a matter of law preclude a recovery. But we do not think he could be regarded, even technically, as a trespasser.

Upon all the testimony, as inferences favorable to the plaintiff upon all the grounds could have been drawn, and as it cannot be said as a matter of law that any, or all, should have been resolved in defendant’s favor, wo think it was error to dismiss the complaint, and for such error the judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.

Van Brunt, P. J., and Parker, J., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event.


author: Yan Brunt, P. J.:

text:
    Charles I. Berg, Respondent, v. Henry Parsons, Appellant.

      Blasting ■ — a pa/rty injw'ed thereby, not bou/nd to enjoin it — improper denial of a motion for a nonsuit, cured — evidence of an injunction, inadmissible — incompetent employee — chwrge to the jury.

    It is the duty oí a person to employ in tlie business of blasting, which is dangerous in its character, a suitable and competent person, and if lie does not employ such a person, there is no obligation on the part of a person whose premises are being damaged by such blasting to take active legal measures to restrain the action of the incompetent person improperly employed to do the blasting.
    It is a well-established principle that if on the trial of an action the defendant subsequently supplies evidence which would have made it proper to deny his motion to dismiss the complaint made at the close of the plaintiff’s case, had it been in the case prior to the making of the motion, the error of the trial court in denying such motion is cured.
    Upon the trial of an action brought to recover damages for injuries to real estate, sustained by reason of the defendant’s alleged negligence in employing an incompetent person to do blasting on his property near that of the plaintiff, the admission in evidence of an injunction pendente lite, obtained by the plaintiff against the defendant and his employee restraining the continuance of such work, is erroneous.
    In such an action a charge by the court to the jury, that “in considering the question whether the defendant exercised due and reasonable care in the selection of a contractor, the jury may take into account defendant’s failure to make inquiry as to such contractor’s record at the office of the Fire Department where permits to blast must be obtained by contractors before they can lawfully begin operations,” is in such respect erroneous, and the judgment rendered in the action in favor of the plaintiff will be reversed upon appeal.

      Appeal by the defendant, Henry Parsons, from a judgment of the Supreme Court in favor of tliejilaintiff, entered in the office of the clerk of the county of New York on the 23d day of October, 1894, upon the verdict of a jury rendered after a trial at the New York Circuit, and also from an order made at the New York Circuit on the 19th day of October, 1894, and entered in said clerk’s office, denying the defendant’s motion for a new trial made upon the minutes.

      A. Thain, for the appellant.

      G. W. Pierson, for the respondent.
   Yan Brunt, P. J.:

This action was brought to l’ecdver damages for defendant’s negligence and want of care in employing an incompetent contractor to engage in blasting operations in proximity to the plaintiff’s house. It appeared that the plaintiff was the owner of the house and premises known as No. 315 West Eighty-second street, and that the defendant was the owner of certain vacant lots adjoining the plaintiff’s house on the west, and that defendant employed one Michael Tobin to excavate in his lots to a depth of ten feet below the curb line. Tobin, in performing this contract, by his carelessness caused injury to the plaintiff’s house, compensation for which was sought to be recovered from the defendant in this action upon the grounds above stated. Evidence having been taken upon both sides the case was submitted to the jury, who found a verdict in favor of the plaintiff ; and an order having been made denying a motion for a new trial, from such judgment and order the present appeal is taken.

It is claimed upon the part of the appellant that there was no evidence upon which the jury was warranted in finding that the defendant was negligent, or that the plaintiff was free from contributory negligence, and that the burden of proof was upon the plaintiff as to both of these propositions.

The claim of contributory negligence seems to be founded upon the fact that the plaintiff did not stop Tobin from continuing his reckless career as a blaster as soon as he might have done, and before he had sustained as much damage as he did, and that the plaintiff had a right to interfere with the contractor while the defendant had not; and that if Tobin was carrying on his work carelessly, and in a manner likely to endanger bis property, the plaintiff might have applied for and obtained before the accident an injunction, which injunction it appears he did procure after the injury was done. The force of this reasoning we are unable to see. The plaintiff was not bound to take legal measures to restrain trespasses committed by persons employed upon the part of the defendant. It was the duty of the defendant to have employed for this business, conceded to be dangerous in its character, a suitable and competent person; and if he did not employ such a person there was no obligation upon the part of the plaintiff to take active legal measures to restrain the action of this incompetent person, so improperly employed.

Another objection to the recovery is that there was no evidence from which the jury was warranted in finding that the defendant was negligent. Upon an examination of the case it appears that although the defendant originally swears that he made inquiry in respect to the capacity of Tobin to do the work in question, upon further examination it is evident that he made no inquiries whatever except from a clerk in a lawyer’s office; and that he claimed to. have seen a piece of blasting done by the contractor which was reasonably well done. But from all information that the defendant got in respect to the capabilities of the contractor, he was not informed that he had ever done the kind of work called upon to be done upon this occasion. He had done some blasting for sewers, but nobody ever knew that he had excavated a cellar. We think, therefore, that the defendant did not, so far as this record discloses, perform that duty which is incumbent upon a man who is about to employ another to do a dangerous piece of work.

It may perhaps be proper to notice that the objection is taken that some of this evidence of negligence in regard to the defendant’s inquiries in respect to Tobin came out upon the defendant’s case ; and that, therefore, it was error not to dismiss the complaint upon the motion of the defendant at the termination of the plaintiff’s case. But it is a well-established principle that if the defendant subsequently supplies evidence which would have made it proper to deny a motion to dismiss had it been in the case prior to the making of the motion, the error is cured. This objection, therefore, is not available.

¥e think, however, that there was error in the admission of evidence, and also in the charge of the judge. The plaintiff having obtained an injunction pendente lite against the defendant and Tobin restraining the continuance of the work, that injunction was offered in evidence and received, notwithstanding the objection of the defendant. This, we think, was error. As is claimed upon the part of the defendant, the effect of the introduction of these papers might have been to lead the jury to, believe that the court had already adjudged not only that Tobin had been negligent, but that the defendant himself had also been negligent.

We think also that the court erred'in charging the plaintiff’s request, as follows : In considering the question whether defendant exercised due and reasonable care in the selection of a contractor, the jury may take into account defendant’s failure to make inquiry as to such contractor’s record at the office of the Fire Department, where permits to blast must be obtained by contractors before they can lawfully begin operations. Also the failure to make inquiries of jiersons familiar with the manner in which the contractor had performed previous jobs.” This charge was objected to. It seems to us that the part relating to the fire department was clearly erroneous. It is manifest from the regulations of the department that the permit referred to in such regulations as applicable to the case at bar related to the keeping of combustibles upon any work in progress; and as a result, until the contractor had obtained the contract for performing the work, he would not be likely to pay fees to the fire department for permission to keep combustibles upon the premises in question. If inquiry had been made at the fire department nothing would have been found there against Tobin, as the evidence shows, and the fact that he had no permit to keep combustibles in this particular place would have argued nothing against his competency to do the work in a proper manner.

For these reasons we think that error has been committed, and that the judgment and order appealed from must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Parker, J., concurred.

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