text:
    ANTHONY McGARRY, Respondent v. THE NEW YORK AND HARLEM RAILROAD COMPANY, Appellant.

      Action by plaintiff while in the employ of the company-clefendant, for damages resulting from injuries received from being bitten and JcicJced by a vicious horse, owned by the company-

    The first position held by defendant is that there was no evidence that the horse was dangerous and vicious, or accustomed to attack or hurt those handling and caring for him. Held, that the'plaintiff was entitled to the judgment of the jury on this point.

      It was further claimed by defendant that if the horse was vicious there was no evidence that the defendant knew it. The evidence upon this point related to the knowledge and action of one Totten and one McQuade, who were claimed to be the agents of defendant and in such relation to and service with the defendant as made their knowledge the knowledge of the defendant. Held, that this was a question of fact proper for the jury, and that, under the circumstances proved, Totten’s knowledge was the knowledge of the defendant, as was also the knowledge of McQuade; that they were both agents of defendant, and the defendant was bound by their knowledge. Held also, that the court below correctly refused to charge the jury, that even if the men employed by defendant in the stable to keep and take care of the horses knew of the horse’s viciousness, yet that fact did not charge the defendant with notice or knowledge.
    There was an objection raised to the court instructing the jury to find whether or not defendant owed a duty to plaintiff, to instruct him with respect to the character of the horse in question. Held, there was such a duty if the horse was dangerous and known to be so by McQuade, who put the plaintiff to work upon the horse, as the jury might find. There was no error in this instruction. The employment of plaintiff by defendant was to attend to horses not vicious or dangerous. If the plaintiff was ordered to attend a horse that was dangerous or vicious, it was the duty of the employer to warn his servant of the character of the horse and of the risk he was about to take if that character was known to the employer.

      Held, that the court correctly refused to charge that the plaintiff, in order to recover, must satisfy the jury that the horse in question had, prior to the accident, done mischief similar to that complained of, and that the defendant knew it. It was sufficient to create liability on this point, that what defendant knew previously of the character of the horse would lead a reasonable mind to infer that the horse was likely to behave as he did in the present instance.
    Before Sedgwick, Ch. J., and Gildersleeve, J.

      Decided March 14, 1892.
    Appeal by defendant from a judgment entered upon the verdict of a jury.

      Charles T. Titus, attorney, and M. H. Hirschberg of counsel, for appellant, argued :—
    I. There was no evidence whatever tending to show that the horse was “dangerous and „vicious,” and
      “ accustomed to attack and hurt any person who attempted to handle and take care of him.” 1st. There was proof that the animal was nervous when about to be shod, and that he then required tying. But the witnesses testified and the court said, “ He might have been dangerous under those circumstances and not otherwise,” and the court charged the jury that the fact that the horse was unruly on such occasions does not justify the conclusion that the defendant knew it would be unsafe for the plaintiff to go into his stall for the purpose of feeding him; and also that the knowledge of this fact on the part of the blacksmiths was not the knowledge of the defendant. 2nd. The only proof of any vicious act on the part of the horse while in the stable was the testimony of Talt, already referred to. The judgment cannot be upheld by that proof. It is unconsequential and remote. The horse did not kick or hurt Talt. Talt never told anyone what the horse did do, not even McQuade. He merely informed McQuade that he should be careful about handling the horse’s hind feet, etc., without repeating to him anything the horse had done. The court will search the case in vain for any proof that prior to September 11, 1889, the horse had acted in the stable in any worse way than the other horses, or in any manner indicating that it was in any way unsafe or dangerous to handle and feed him.
    II. If the horse was vicious there was not the slightest proof that the defendant knew it. Assuming that knowledge on the part of Mr. Totten, the stable foreman, would be knowledge by the defendant, yet no witnesses pretended that Totten was aware of any vicious act exhibited by the animal. Even if the men employed in the stable did know of the horse’s assumed vicious propensities, that fact did not charge the defendant with notice thereof. Shaver v. N. Y. & Lake Champlain Co., 31 Hun, 55.

    III. It was incumbent on the part of the plaintiff to show affirmatively that the defendant had' actual notice of the vicious propensities of the horse. Van Leuven v. Lyke, 1 N. Y., 515; Moynahan v. Wheeler, 117 Ib., 285; and Shaver v. N. Y. & Lake Champlain Co., cited above. The plaintiff claimed that McQuade’s knowledge was notice to the defendant; in other words that his knowledge was imputable to the master. McQuade’s relation to the defendant was clear and undisputed. He was one of forty or fifty grooms in the stables employed to feed and take care of the teams while in the stable. He was employed in the same capacity precisely as the plaintiff was. Whether or not his knowledge was the knowledge of the master therefore was a question of law. But the judge submitted it to the jury to decide as a question of fact. The defendant subsequently requested the court to charge that McQuade’s knowledge was not the knowledge of the defendant, which request was refused and the defendant excepted.

      Francis C. Devlin, attorney and of counsel, for respondent, argued:—
    I. From the facts it appears: 1st. That the horse was dangerous and vicious. 2nd. That the defendants’ general stable superintendent Totten and their special superintendent over this gang of sixteen horses— McQuade—knew that he was a vicious "and a dangerous horse. 3rd. That defendants neglected to warn plaintiff or to notify him that the horse was vicious and dangerous. 4th. That with this knowledge defendant sent plaintiff to this horse without any notice or warning whatever of the great danger they exposed him to, and that in consequence thereof he received these injuries. Mr. Totten, the general superintendent of this defendant-corporation’s stables, hired the plaintiff; and then gave him in charge of Mr. McQuade, who had charge of this gang of horses. Both of these men then knew the vicious propensities of this horse. These men—Totten and McQuade—were not co-servants with the plaintiff but were the defendant-corporation’s representatives in this branch of their business. Crispen v. Babbitt, 81 N. Y., 520, 521. Held—The liability of the master does not depend upon the grade or rank of the employee causing the injury to a co-employee; if it results from the omission of some duty intrusted to such employee. Flike v. Boston & Albany R. R. Co., 53 N. Y., 549—553; Benzing v. Steinway & Sons, 101 Ib., 547-552. See also the case of Criswell v. Pittsburg C. & St. L. R. Co., 30 W. Va., 789. Held—a foreman in charge of a gang of railroad laborers with power to discharge them subject to the approval of the supervisor and under the duty to see that they work faithfully is the direct representative of the railroad company and not a fellow-servant with the laborers. The owner of a vicious horse which kicked a colt is not relieved from liability by the fact that at the time the servant of the OAvner of the horse had without the owner’s knowledge or consent temporarily placed the horse in charge of a third person. Campbell v. Trimble, 75 Tex., 270, 12 S. W., 863. A person entrusted with the control of work, and who has authority to direct the servants where and when to work, may be regarded as a vice-principal. Cox v. Syenite Granite Co., 39 Mo. App., 424. A night boss who has charge of a coal mine with authority to direct operations is not a fellow-servant with an ordinary laboring miner. Consolidated Coal Co. v. Wombacher, 31 Ill. App., 288. The foreman of a brick company’s clay mine who had entire charge of mining and shipping the clay and hiring and discharging the laborers, is not a fellow servant of an ordinary laborer working in the mine. Chicago Anderson Pressed Brick Co. v. Sobkoniak, 34 Ill. App., 312. The foreman of a section-gang in charge of a hand-car, is not a fellow-servant with one of the workmen, so as to relieve the company from his negligence in respect to the condition of a wooden handle to the hand-car. Banks v. Wabash W. R. Co., 40 Mo. App., 458. The fact that a boss ” personally acted in a negligent manner, whereby an employee working under his orders was injured, will not relieve the master of liability, where the act was one within the scope of the boss’ authority to direct and supervise as the master’s representative. Gulf, C. S. F. R. Co. v. Wells (Tex.), 16 S. W., 1025; Nall v. Louisville, N. A. C. R. Co. (Ind.), 28 N. E., 183; 44 Alb. L. J., 230; Dayharsh v. Hannibal and St. J. R. Co., 103 Mo., 570, 15 S. W., 554.
    H. The learned judge in refusing defendant’s motion for a new trial held that the evidence showed that the man placed by defendant in charge of their horses, had knowledge prior to plaintiff’s employment, of the vicious propensities of the horse, and that this knowledge was the knowledge of the defendant, and cited the following cases : Baldwin v. Casella, L. R., 7 Ex., 325; Applebee v. Percy, L. R., 9 C. P., 647; Clerk & Lindsell Law of Torts, 350; Sheehan v. N. Y. C. & H. R. R. Co., 91 N. Y., 334; Held, Daeforth. J., “ Where a master delegates to another control over a branch or circumstance of his business the person so delegated stands in the place of the master as to all duties resting upon him to his servant; and his knowledge, acts and omissions are the knowledge acts and omissions of the master himself.” [91 N. Y. foot of p. 324.] Sutton v. Dillage, 3 Barb., 529, Held, “ Knowledge of a particular fact acquired by an agent in the course of business is the knowledge of the principal.” To the same effect. Ingalls v. Morgan, 10 N. Y., 178; Jeffrey v. Biglaw, 18 Wend., 518. In 1st Waifs Actions and Defences, page 231, the rule is laid down as follows: “ It is a duty of every agent to notify his principal of all facts which came to his knowledge, if they will or may materially affect the rights or interest of such principal. The law presumes that an agent will perform this duty, and, therefore, the rule is conclusively settled that the principal knows whatever the agent knows in relation to the business of the agency.” Sutton v. Dillaye, 3 Barb., 529; Meehan v. Forrester, 52 N. Y. [7 Sick], 277; Ingalls v. Morgan, 10 N. Y. [6 Seld], 178, 184; Hove v. Blanchard, 13 N. H., 145; Smith v. Water Com., 38 Conn., 208; Philadelphia v. Lockhart, 73 Penn. St., 217; Slater v. Irwin, 38 Iowa, 261; Baldwin v. Casella, L. R. 7 Exch., 325; S. C. 3 Eng. Rep., 434; Applebee v. Percy, L. R. 9 C. P., 647—22 W. R., 704—43 L. J. [C. P.], 365; 30 L. T. [N. S.], 785.
    HI. It is a fundamental principle of the law of master and servant that the master provide the servant with safe implements or animals for the purposes of the work he hires him for, and for any injury caused by his failing to do so he is liable. McGovern v. C. V. R. R. Co., 123 N. Y., 287, foot of page; Pantzar v. Tilly Foster Iron Co., 99 Ib., 372; 44 Albany Law Journal, 231 and 497, and cases there cited; Nall v. N. A. & C. R. Co., Ind. Supreme Court, June 19, 1891; Car Co. v. Parker.
   By the Court.—Sedgwick, Ch. J.

The action was for damages alleged by the complaint to have been suffered by the plaintiff from his being bitten and kicked by a vicious and dangerous horse, known by the defendant to be vicious and dangerous. At the time of the occurrence the plaintiff was employed by the defendant as hostler, and it was part of his duty to care for the horse. When he was injured he was in the stall, about to feed the horse.

The first position taken for the appellant is that there was no evidence that the horse was dangerous and vicious or accustomed to attack and hurt any person handling and caring for him. On the circumstances in evidence and on inferences that might be drawn from them, the plaintiff was entitled to the judgment of the jury on this point.

It is further argued that if the horse was vicious there was not the slightest proof that the defendant knew it. On the trial the plaintiff claimed, that the relation of two employees of the defendant was of such a kind that their knowledge was the knowledge of the defendant. One of these, named Totten, was the superintendent of the stable, which contained about 1,000 horses. It was the duty of the defendant to the plaintiff, as its employee, to use a reasonable degree of observation to ascertain the character of the horses, and to prevent any horse that was dangerous being kept in a stall for the work of a man upon it. If Totten was in the performance of this duty upon the delegation of the defendant, and that was a question of fact proper for the jury, the jury might have also competently found that Totten was informed of the viciousness of the horse, and for that reason had caused him to be transferred from one floor to another. Under the circumstances proved, it should be held, that Totten’s knowledge was the knowledge of the defendant.

The other employee was one McQuade. His employment did not have as wide a scope as that of Totten. In the stable he assisted in grooming horses, but he was not a mere groom. He had charge, with two or three men under him, of a gang of sixteen horses. There were particular circumstances tending to show that he was a servant of more authority than the grooms. The evidence was such that the jury would be authorized to find that part of McQuade’s duties was to look generally after the horses in his charge, to notice whether any were vicious and to cause its removal, or that a groom should not be sent into the stall with it. If such were the case, he was an agent of the defendant in this regard, and it was bound by his knowledge. There was testimony for the jury that McQuade had knowledge that the horse was dangerous.

The learned counsel for the appellant objects that the judge left it to the jury to say whether the knowledge of McQuade was the knowledge of the defendant. The objection would he well founded if the testimony incontrovertibly showed that the relation of McQuade to the defendant was such that his knowledge could not be imparted to defendant. As we have already said, the jury could find that the testimony as to McQuade’s employment signified that he was in the place of the defendant, performing certain duties what it was hound directly to the plaintiff to perform.

The court was asked, for defendant, to charge the jury that even if the men employed in the stable to keep and take care of the horses did know of the horse’s viciousness, that fact did not charge the defendant with notice or knowledge. The court correctly refused to make this charge. The charge included McQuade, and we have already held that, for the purpose involved, the jury might find he held the place of the defendant.

It was objected to the court’s charge, that if Tait, a stableman, told McQuade that the horse was vicious, that was sufficient to put the defendant on inquiry, and that if the defendant did not inquire, the jury could find that it had notice that the horse was vicious. This charge seems correct when viewed with that part of the charge that instructed the jury to find, in substance, whether it was part of McQuade’s duty to observe what was the character of the horse. The court made a specific reference to this by saying, that is, if McQuade was the person in charge of the horse, then such a notice to McQuade would he notice to the defendant and put it on inquiry. There was nothing objectionable in the charge that this inquiry, if made by McQuade, would have undoubtedly resulted in ascertaining what sort of ahorse it was. From the testimony in the case there is no doubt that McQiuade could have learned the character of the horse as it was.

The defendant excepted to the refusal of the court to charge, that if the horse from the time of his purchase by defendant, had been fed and cared for in the manner the plaintiff was required to feed and care for him without to the defendant’s knowledge attacking or injuring any person while so being fed and cared for, the defendant was justified in believing that it was safe for the plaintiff to feed and take care of him, and the plaintiff could not recover. The request does not seem to have been correct if the defendant had no knowledge of whether the horse was dangerous in the stall or whether he was not, a belief that he was not dangerous would not have been justified.

There was- an objection to the court instructing the jury to find whether the defendant owed a duty to plaintiff to instruct him with respect to the character of the horse in question. There was such a duty, if, as the jury might find, the horse was dangerous and known to be so by McQuade, who put the plaintiff to work upon the horse. The employment was to attend to horses, not vicious or dangerous. If the plaintiff were ordered to tend a horse that was dangerous or vicious, it was the duty of the employer to warn the servant of the character of the risk he was about to take if it were known to the employer.

The court refused to charge that the plaintiff in order to recover, must satisfy the jury that the horse in question had, prior to the accident, done mischief similar in character to that complained of, and that the defendant knew it. The charge was correct. For it was sufficient to create liability on this point, that what the defendant knew previously of the disposition and conduct of the horse would lead a reasonable mind to infer that the horse was likely to behave as he did in the present instance.

The defendant requested a charge that the declaration of the men employed by the defendant in the stable and shop, as to the habits and disposition of the horse, are not competent or sufficient to charge the defendant with knowledge. This was charged by the court, and then there was a charge as to what was the effect of such declarations if they were made to McQuade. This subject has already been referred to. There was no error.

Judgment and order affirmed, with costs.

Gildersleeve J., concurred.


source: Caselaw Access Project

author: By the Court.—Dugro, J.

license: Public Domain

text:
    JAMES NUNAN, Respondent v. ANDREW T. DOYLE, Appellant.

      Mechanic's lien, discharged by the filing of bond whichtook the place of the land as security, etc—Building contract, substantial performance.

    The appellant claims that the lien was invalid, and seems to rely upon one of the findings of fact to the effect that the work covered by the contract was not fully completed at the time of the trial. Meld, that a substantial completion was not referred to in this finding is evidenced by the fourth finding which states, as follows: “ that before the 14th day of July, 1890, plaintiff had substantially completed the plastering work required to be done.”
    The case shows that the trial judge found that plaintiff had substantially performed the contract and the work for which he filed the lien, and that allowance was made for the lack of full performance. Meld, that where there has been a substantial compliance with the terms of a building contract, the contractor is entitled to recover the full amount of his contract less such sums as may be required for remedying the lack of full performance and completing the contract fully.
    Before Sedgwick, Ch. J., Dugro and Gildersleeve, JJ.

      Decided March 14, 1892.

      Appeal from a judgment entered upon the findings of a judge on a trial before him without a jury.

      Charles J. Hardy, attorney and of counsel, for appellant, argued:—
    I. The plaintiff failed to establish a valid lien. The II. and III. conclusions of law found by the trial judge, were erroneous, and the judgment for that reason must be reversed. These findings are that plaintiff, by his notice of claim of lien, acquired a valid lien against defendant’s property, which said lien was displaced by the bond given by .defendant. To these findings defendant duly excepted, and the question is, therefore, fairly presented to this court. In the notice of claim of lien filed by the plaintiff, he alleges that the lien is claimed for “ doing all the plastering in and furnishing all labor * * and all materials * * for the plastering of said * * houses ” ; and “ also doing extra plastering and extra labor caused by alteration of plans, the value of said extra plastering and extra work being altogether $1,334,” and “making the whole amount and value of said extra work, labor and materials, $16,064.00,” and that there is a “balance unpaid of $1,614.00.” And also “ That all the work and materials for which the claim is made has been actually performed or furnished for and used in the erection of said * * houses.” The notice also stated that the work was done and the materials were furnished “at the agreed price of $14,680” —thus referring to the contract between the parties set forth in the complaint. This contract referred to the specifications under which the work was to be done, and the plaintiff offered these specifications in evidence so that the contract and the specifications under which was done the work for which the lien was claimed are before the court. The court found, allowing every item claimed by plaintiff, both for balance due on original contract and for every item of extra work claimed by him, that the utmost amount he could claim was $1,-481.95, instead of the $1,614 claimed in the notice of lien. The court also found expressly that plaintiff did not complete the work he contracted to do; that defendant had to expend money to do work that plaintiff agreed to do ; and that the plaintiff’s work was not complete at the time of the rendering of judgment. The statements made by plaintiff in his notice of claim of lien, that he did all the work, etc., required under his $14,680 contract, that all the work, etc., for which the lien was claimed had been actually performed or furnished, and as to the balance due him, are untrue. Under such circumstances the plaintiff acquired no valid lien. In Foster v. Schneider, 50 Hun, 157, it was held that an untruthful statement in a notice of claim of lien that all the work for which the claim is made had been actually performed, invalidated the notice and all the proceedings resting thereon. That was a case analogous to the one now before the court. There the claimant had filed a claim for the entire balance due under a contract, and the referee found that claimant was not entitled to that amount, and that a further expenditure was necessary for the completion of the work claimant had contracted to do. Daniels, J., said, “ but a more serious difficulty is presented by the notices (of hens) themselves. ® * In her notices she (claimant) has stated the nature and amount of the labor and services performed and materials furnished to be the entire plumbing work and materials furnished ’ in the plumbing work of the * * house, amounting to the sum of $800, and it was further stated that all the work and materials for which the claim is made has been actually performed or furnished.’ The claim * * was for one third of the entire contract, and each notice stated that all the work and materials for which the claim was made, had been performed or furnished. This was not a truthful statement. For * * services and materials of the value of $250 were still required to complete the plumbing work' of each of two of the houses, and of the value of $330, to complete the other of the houses * * and the question accordingly is presented whether upon this untruthful statement contained in each of the notices a lien * * was acquired. * * “ § 4 of ch. 342, Law of 1885, * * has prescribed when the notice to create the lien shall be filed and what it is to contain. * * But this section has required the notice to contain ‘ the names and residences of the claimants, the nature and amount ’ of the labor and service performed or the materials furnished, or to be furnished. * * Whether all the work for which the claim is made has been actually performed or furnished, and if not, how much of it. * * * The plaintiff has failed to state in the notices that the work for which the claim was made had not been wholly performed or furnished, and failed to say how much of the work under the contract still remained unperformed, and untruthfully stated that it had all been done, entitling her in the aggregate to the moneys payable for the full performance of her contract. * * “ It cannot be said that a misrepresentation in this particular would not invalidate the proceeding, for the legislature as a part of the proceeding by which the lien is to be secured has provided otherwise. It was intended in this manner that a truthful statement of the facts should be contained in the notice, and that probably was intended to be for the benefit of other claims due as well as of the owner of the property and the truthful information of the court. And the courts can no more dispense with the observance of this requirement in the making and filing of the notice than they can with any other direction required to be observed for the purpose of creating a lien upon the property.” The court held that the claimant acquired and could acquire no valid lien, because of the misstatement contained in the notice of claim. The same point was held by the general term of tlie Common Pleas in Close v. Clark, 30 State Rep., 671, where the court said : “ The lien was filed for the unpaid balance of the whole contract price. In his notice of lien it is stated that all the work and materials had been actually performed and furnished. Leaving out of consideration a large num her of departures from the contract, which the referee finds were waived or assented to, he finds directly in several particulars, more or less substantial, the contract was not completed. He finds the work and materials to the value of $93 were required to complete the same. I cannot see why, on respondent’s own showing, the present case does notcome squarely within the reasoning of Foster v. Schneider, supra.” In the present case, the trial judge, by his finding, found what the referee found in the cases cited, i. e., that the statements contained in plaintiff’s notice of claim of lien were untrue. From this it follows that the findings are erroneous, and the judgment must be reversed.
    II. The questions objected to were proper. Their exclusion was error for which a reversal should be had. The questions tended to. show what it would probably cost defendant to complete the work left undone by plaintiff. It will be observed that plaintiff sues not upon a quantum meruit, but sues upon the entire contract—alleging its complete performance, and for extra work done in excess of the requirements of the contract itself. Plaintiff alleges that he performed all his contract. This defendant denies and alleges that he will be compelled to expend moneys to complete plaintiff’s work. He alleges that the work was not complete at the time of the bringing of the action, nor at the time of the trial; naturally, therefore, he cannot state exactly what is the amount of his offset to plaintiff’s clahn. Why, therefore, is not evidence as to what would be the probable cost of completing the work plaintiff contracted to do material? How else could the amount of his offset be arrived at ? It is to be remembered that the court has found that defendant expended certain sums “ in completing the plaster work on said buildings covered by the aforesaid contracts ” (his contracts with plaintiff), “ and that such work is not yet completed.” We have here, therefore, a distinct finding that plaintiff had failed to complete his contract; that defendant had already expended money to complete plaintiff’s work; that the work was not yet complete. Naturally, therefore, defendant must expend further sums to complete the work plaintiff agreed to do.- And yet defendant was prevented from showing what it would cost him to complete plaintiff’s work. Because of the erroneous exclusion of the evidence sought to be adduced by the questions objected to, the judgment must be reversed.'
    III. That the plaintiff never completed the work he contracted to do is expressly found by the trial judge. The contract expressly provides that the last payment should be made when the job should be completed. It seems that there is an inconsistency between the findings. How could it bé found that there was a balance due plaintiff in the last payment provided for in the agreement, in the face of the finding that the work had not been completed—the contract calling for the last payment only when the entire job was complete ? Having made the finding, the court' could not find that plaintiff was entitled to the last payment under the. contract. It was, on the contrary, bound to find that plaintiff, so far from having a balance due him under that contract, had never become entitled to anything on it. For this reason, the judgment rendered is erroneous, and must be reversed.

      William Stone, attorney and of counsel, for respondent, argued:—
    I. The fact that the court has allowed appellant §353 for moneys paid or expense incurred in completing the plastering does not conflict with the fourth finding that respondent’s work was substantially completed. How much of this amount was allowed for plastering- work not actually done by respondent and how much for repairing plastering work which may have been found defective, cannot be determined. The omissions and defects in the plastering were of a slight character, for which the court has allowed appellant what he has paid to remedy them. The extra work was done satisfactorily, at least no claim is made that it was not done satisfactorily, and respondent is entitled to recover for it. And it is a significant fact in this connection that notwithstanding appellant’s claim on the witness stand that respondent had not done his work properly, he set up no counter-claim for damages because of the alleged defective work.
    H. Where there has been a substantial compliance with the terms of a building contract the contractor is entitled to recover the full amount of his contract, less such sums as may he allowed for remedying defects. Glacius v. Black, 50 N. Y., 145; Woodward v. Fuller, 80 Ib., 312; Heckmann v. Pinkney, 81 Ib., 211; Nolan v. Whitney, 88 Ib., 648; Flaherty v. Miner, 123 Ib., 382; Demorest v. Haide, 52 N. Y. Super. Ct., 398; Hollister v. Mott, 32 State Rep., 743; S. C., 10 N. Y. Supp., 409. In Woodward v. Fuller, $100 out of the contract price of $550—almost twenty per cent.—was allowed for non-performance of the work, and the contractor was allowed to recover the balance, the court holding that the work had been substantially performed. In Nolan v. Whitney, contract price for certain mason work was $11,700. There were trivial defects in the plastering for which $200 Avas allowed by the court, and for the balance due judgment was given for the contractor. Here the amount allowed was a little less than two per cent, of the contract price. In Flaherty v. Miner the contract price of the work was $3,500, $900 of which was paid, and for the balance of which the plaintiff sued defendant. The jury gave a verdict for plaintiff for $2,000, thus apparently allowing $600 for expense of work which plaintiff should have done. This was more than sixteen per cent, of the contract price. The verdict was allowed to stand. In Hollister v. Mott, which was an action by a sub-contractor to foreclose a mechanic’s lien against an owner and contractor, the contract price for building three houses was $2,970, which included certain lateral sewers, which the contractor failed to complete, but which the owner completed at an expense of $180. There were also some defects in plastering which cost $10 to complete, and a defect in one chimney which cost $3.50 to complete, making in all $193.50, which amount was allowed on the trial to the owner. The court held that there had been a substantial performance of the contract, and as full compensation had been allowed for defects, the lien could not be defeated. In this case the defects amounted to over six per cent, of the contract price. In the case at bar, the contract price being $14,680 and the court having allowed $453 for incomplete or defective work, the percentage allowed is less than two and one half per cent, of the contract price. This small percentage certainly warranted the finding that the plastering work had been substantially completed.
   By the Court.—Dugro, J.

This is an appeal from a judgment in favor of the plaintiff.

The action was brought to foreclose a mechanic’s lien. The amount claimed to be due was $1,614, and was for a balance upon a contract of $14,680, and for extra work. The recovery was for $1,063.60. The appellant claims that the lien was invalid and seems to rely greatly upon a finding of fact which is in effect that the work covered by the contracts was not yet completed at the time of the trial. • That a substantial completion was not referred to in this finding is evidenced by the fourth finding, which reads, “ that before the 14th day of July, 1890, plaintiff had substantially completed the plastering work required to be done * * * "

The case shows that the referee found that plaintiff had substantially performed the contract and work for which he filed the lien. Allowance was made for the lack of full performance.

Hollister v. Mott, 32 State Rep., 743, is satisfactory authority that a recovery ought not to be defeated upon the ground that there was not full performance by the plaintiff. Substantial performance will suffice.

I have examined the exceptions which appear in the case and find no error which warrants a reversal.

The judgment should be affirmed, with costs and disbursements.

Sedgwick, Ch. J„, and Gildersleeve, J., concurred.


text:
    ALEXANDRINA JORDAN, Respondent v. THE METROPOLITAN ELEVATED RAILWAY COMPANY, et al., Appellants.

      Elevated railroads—Damages caused by future operation of trains a proper element of compensation—Release by mortgagee.

    In fixing the amount which the defendant elevated railroad companies may pay to obviate the injunction granted with reference to plaintiff’s abutting premises, it is proper to include as the subjects to be compensated for, the future passage of trains, with the dust, cinders, steam, smoke or odors incidental to such operation upon the permanent elevated structure. Sperb v. The Metropolitan Elevated Railway Company, 16 N. Y. Supp., 392, disapproved.
    The judgment should provide for a release to the defendants of the easements taken for the maintenance and operation of the elevated railroad, by the owner of the mortgage found to be an existing lien upon the premises in suit.

      Before Sedgwick, Ch. J., Dugro and Gildersleeve, JJ.

      Decided March 14, 1892.
    Appeal by defendants from a judgment entered on the report of a referee awarding an injunction, to be obviated upon payment of the sum fixed as compensation for property rights taken, and directing judgment for incidental rental damages.

      Davies & Rapallo, attorneys, and Joseph E. Lord of counsel, for appellants.

      Sackett & Bennett, attorneys, and Charles Gibson Bennett of counsel, for respondent.
   By the Court.—Dugro, J.

This is an appeal from a judgment in favor of the plaintiff for past damages, and an injunction with alternative relief.

Assuming the appellants’ point to be in the case, the main question in this appeal is presented by their claim that an error was committed by the learned trial judge in including as a part of the subjects to be compensated for by the amount which was fixed as the fee damage, the future passage of the trains, with the dust, cinders, steam, smoke or odors incidental to the operation of trains in the future upon the structure of the defendants.

The appellants’ contention is, in substance, that the injury to plaintiff’s easements of light, air and access in the street adjacent to her lot, for which she can recover, is merely that done by the existence of the structure in the street, as distinguished from that incident to this existence and the running of trains with the incidental injuries thereby occasioned to the easements referred to. In support of their contention they rely mainly upon the case of Sperb v. The Metropolitan Elevated Railway Company, 16 N. Y. Supp., 392. This case is recent and supports their position. It seems, however, in conflict with the following cases: Story v. The New York Elevated Railroad Company, 90 N. Y., 122; Drucker v. The Manhattan Railway Company, et al., 106 N. Y., 157; American Bank Note Company v. The New York Elevated Railroad Company, et al., 41 State Rep., 531; Messenger v. The Manhattan Railway Company, et al., 42 Ib., 96. With the first: wherein it holds that the street occupies the surface and to its uses the rights of the adjacent lots are subordinate, but above the surface there can be no lawful obstruction to the access of light and air to the detriment of the abutting owner.”

With the second: wherein it holds that smoke, gases, ashes, cinders, affect and impair the easement of air,” and proclaims these as elements of damage, even though the necessary concomitants of the construction and operation of the road, and reads: there remains but the annoyance of noise and vibration of the buildings * * * * but no objection or exception selected these out as improper elements in proof of damage, and the question wliich might involve the difference of opinion among us is not here presented.” The difference referred to I take to be that later found in American Bank Note Co. v. The New York Elevated R. R. Co., et al., 41 State Rep., 531, where it was held that “ the noise of operation should not be taken into account as an element of fee damage."

With the third: because the question here presented was there not passed upon in the appellants’ favor, although presented upon the hearing of the appeal in the Court of Appeals, and because the Sperb case and nearly all of those now upon appellants’ brief were upon the brief and supplemental brief presented to the Court of Appeals by the present defendant, then the appellant.

With the Messenger case, wherein it, adverting to evidence of noise, reads : It does not appear that the evidence was received as bearing upon the fee damage * * * * According to our decision in the case last cited, it was not competent in relation to the fee damage. In estimating that, evidence must be confined to what the railroad company is authorized to take, or interfere with, to wit: the easements of light, air and access.”

Subtle refinement may possibly discover the Sperb case as in harmony with the cases referred to. If so, the defendants are right in their position upon the question presented; for the Sperb case has the merit of being explicit.

Some provision should have been made for the protection of the defendants against such right as the mortgagee may have in the premises.

As no other error appears in the case the judgment should be modified by inserting therein between the words, “ taken by the defendants,” and, “ and providing further that the defendants at a time,” the following: and also such a release for the purposes of execution by the mortgagee, Frederick Van Keuren, as will relieve from his mortgage lien the said easements.” And conforming in other respects the judgment thereto.

If the respondent so desires, the judgment will be further modified by the insertion of appropriate provisions in case she should be unable to obtain the release.

Modified as stated, the judgment is affirmed, without costs.

Sedgwick, Ch. J., and Gildersleeve, J., concurred.


author: By the Court.—Gildersleeve, J.

text:
    JULIA LIVINGSTON, Respondent v. THE METROPOLITAN ELEVATED RAILWAY COMPANY, et al.,Appellants.

      Evidence—When question addressed to real estate expert calls for fact rather than opinion.

    Upon the trial of an action to secure an injunction and incidental damages with reference to defendants’ elevated railway in West Broadway upon which plaintiff’s premises abutted, real estate experts were allowed to testify against defendants’ objection as to “the course of rents in general on West Broadway, in the neighborhood of the premises in question, since the erection of the elevated railroad and for a few years previous thereto.” Held, that the injury was a proper one. The questions called for a statement of fact from witnesses who had shown themselves competent to testify in respect of the subject-matter under investigation. It was not strictly opinion evidence. It was a grouping of facts too numerous to require statement in detail.
    Before Sedgwick, Ch. J., Dugro and Gildersleeve, JJ.

      Decided March 14, 1892
    Appeal by defendants from a judgment entered upon the report of a referee awarding an injunction, to be obviated upon payment of the sum fixed as compensation for easements taken, and incidental damages.

      Davies & Rapallo, attorneys, and Herbert Barry of counsel, for appellants.

      Olin, Rives & Montgomery, attorneys, and George L. Rives of counsel, for respondent.
   By the Court.—Gildersleeve, J.

The judgment enjoins the defendants from operating their elevated railway in front of the premises Nos. 76 and 78 West Broadway, in the city of New York, hut permits the defendants to pay to plaintiff the sum of $4,000, with interest from the date of the report, in avoidance of the injunction; and also awards to plaintiff the sum of $366.66, past damages, together with costs and allowance.

A careful examination and analysis of the evidence satisfy us that the damages for loss of rent and the allowance in avoidance of the injunction are fully warranted. The evidence shows substantial injury, and the awards are not excessive.

The alleged error, which is urged by the appellants as the principal ground of reversal, arose upon the admission by the learned referee, under the objections and exceptions of the defendants, of testimony as to “ the course of rents in general on West Broadway, in the neighborhood of the premises in question, since the erection of the elevated railroad and for a few years previous thereto.”

This inquiry was addressed to certain witnesses, called by the plaintiff, who had previously fully stated their experience and opportunities of observation as to rents of real estate in the vicinity of plaintiff’s property, and had given facts in regard to numerous specific pieces of property, as to* which they had personal knowledge. They had also given their opinions generally as to past and present values of this and adjacent property. We think the character of inquiry on the subject of rent and also of fee values, in the questions challenged by defendants, was proper. The questions called for a statement of fact from witnesses who had shown themselves competent to testify in respect of the subject matter under investigation. It was not strictly opinion evidence. It was a grouping of facts too numerous to require statement in detail.

We find no substantial error in the rulings of the referee. The judgment must be affirmed, with costs.

Sedgwick, Ch. J., and Dugro, J., concurred.


text:
    JAMES A. WHITNEY, Plaintiff v. CHARLES L. CAMMANN, et al., Defendants.

      Manufacturing corporations under act of 1S4S—Liability of directors if annual report is not filed.

    Action to recover from defendants, as trustees of a manufacturing corporation, organized under the act of 1S4S, as amended by chapter 510 of the laws of 1875, a debt due to plaintiff from said corporation, on the ground of their personal and individual liability for said debt because of their failure and the failure of the corporation to file, within the twenty days following January 1, 1888, the annual report required by section 12 of said act in the clerk’s office of the county in which the business was carried on. The defendants were all trustees of the corporation from 1885, to March, 1889, and the corporation failed to file, at any time during the year 1888, and prior to January 21,1889, any report whatever, but a report was duly made January 20,1889, and duly filed January 21,1889. The important question in the case is, Was this making of the report on the 20th of January, 1889, and the filing thereof on the 21st of January, 1889, a substantial compliance with the statute, and such a compliance as prevents the penalty of individual liability of the trustees, which the statute provides, from attaching to these defendants ? Held, that there was a total failure of the corporation to comply with the law, inasmuch as it filed no report within twenty days after the first day of January, 1888, nor at any time during that year, nor prior to January 21,1889, and by reason of such default the defendants clearly incurred the statutory liability provided in the act.

      Held also, that there was no error in the admission or exclusion of evidence on the trial. The trial judge was justified in permitting the plaintiff to testify as to the number of hours of service that he had rendered the corporation, from recollection refreshed as it had been by reference to original memoranda made by him, or at his direction, at the respective times of the rendition of such service, and which memoranda he knew were correct when made, and indeed the book itself, supplemented by plaintiff’s testimony, would have been admissible to prove such fact.

      Before Sedgwick, Ch. J., Dugro and Gildersleeve, JJ.

      Decided March 14, 1892.
    Motion by defendants for a new trial upon exceptions directed to be heard in the first instance at general term.

      Roscoe H. Channing, for plaintiff.

      Alfred P. W. Seaman, for defendants Cammann and Mali.

      Lowrey, Stone & Auerbach, for defendant Hollins.
   By the Court.—Gildersleeve, J.

This action is brought to recover against the defendants, as trustees of a manufacturing corporation, organized in October, 1884, under the act of 1848, as amended by chapter 510 of the laws of 1875, a debt due to the plaintiff from said corporation for professional services, contracted for in November, 1886, and rendered between February 17, 1888, and January 1, 1889. The plaintiff claims that the defendants are individually liable for the said debt of the corporation, for the reason that the corporation failed to file, within the twenty days following January 1, 1888, or at any time thereafter and prior to January 21, 1889, the annual report required by Section 12 of said act to be filed in the clerk’s office of the county in which its business was then carried on. It is conceded that the defendants were all trustees of the corporation from 1885 down to March, 1889. The uncontradicted evidence shows that the plaintiff’s services, for which the company became indebted, were all rendered and became an obligation against the company between February 17, 1888, and January 1, 1889, and that the sum claimed in this action, therefore, is all due and unpaid.

The defendants’ counsel urges in his brief that, inasmuch as the report was duly made on the 20th day of January, 1888, and published in the “ Wall Street Daily News,” on January 21, 1888, the trustees are not liable because of the failure to file said report, for the reason that they were not carrying on business at that time in the United States, being under an injunction ; and therefore that they were not obliged to file their report in the office of the clerk of any county. The statute required them to file the report in the office of the clerk of the county Avhere the business shall be carried on.” The answers admit that the report was not filed in the office of the clerk of the city and county of New York, which Avas the county where the business of the said company has always been carried on.” The claim that the company was under an injunction is not set up in any of the answers, or interposed as a defence in the action. The only evidence on the subject is the statement of the plaintiff himself that the corporation Avas under a preliminary injunction when he first came into its employment in 1888, and that the injunction was never discharged. What the nature of the injunction was, or what Avas its scope does not appear, and the evidence on the subject is too meagre to be taken into consideration, especially as it was not set up in the answers or interposed as a defence.

It is true that the Court of Appeals have held, in the case of Kirkland v. Kille, 99 N. Y., 390, that where a corporation organized under this act has never in fact commenced business; and before the time prescribed for making such a report has elapsed, the object for which it is formed becomes impossible for it to accomplish ; and there is neither ability nor intention on its part at any time to prosecute its business; it is not required to make such report, and its trustees are not liable to creditors because of its failure so to do. But this does not apply to the case at bar, for there is no evidence or claim that the defendants’ corporation has not commenced business in the city of New York, or that it has no intention at any time to prosecute the same, even assuming that it was or is temporarily unable to do so. It was conceded upon the argument that the annual report for the year next preceding the year in question was duly filed. But, as we have said, the evidence is not sufficiently definite to warrant us in taking this question into serious consideration, in view of the fact that it was not set up as a defence.

The defendants concede that the report was not filed at any time during the year 1888, and prior to January 21, 1889; hut, they allege that the report was duly made on January 20, 1888, and published on January 21, 1888, which allegations are abundantly sustained by the evidence.

The question here presented is, was the making and publishing a substantial compliance with the requirements of the statute, such a compliance as prevents the penalty, which the statute provides, from attaching to the trustees ?

Section 12 of the manufacturing act of 1848, as amended by chapter 510 of the laws of 1875, under which the defendants’ liability is alleged to have arisen, is as follows:—“ Every such company shall, within twenty days from the first day of January, if a year from the time of the filing of the certificate of incorporation shall then have expired, and, if so long a time shall not have expired, then within twenty days from the first day of January in each year after the expiration of a year from the time of filing such certificate, make a report which shall be published in some newspaper published in the town, city or village where the business of the company is carried on, which shall state the amount of capital and the proportion actually paid in and the amount of its existing debts, which report shall be signed by the president and a majority of the trustees, and shall be verified by the oath of the president or secretary of such company, and filed in the office of the clerk of the county where the business of the company shall be carried on ; and if any of said company shall fail so to do all the trustees of the company shall be jointly and severally liable for all debts of the company then existing and for all that shall be contracted before such report shall be made.”

The statute makes the trustees personally liable for all debts existing at the time of the failure of the corporation to make its report, and for all debts that shall be contracted before such report is made.” The corporation is at liberty to make, publish and file its report at a time subsequent to the time required; and when it has so done, the liability of the trustees ceases for all debts contracted subsequently to such time, but they are still liable for all debts existing up to the time of such filing of the report. See Boughton v. Otis, 21 N. Y., 266. The Court of Appeals in that case, as we understand it, did not hold the theory, advanced by the counsel for the defendants herein, that the personal liability of the trustees ceases upon the mere making of the report; but, on the contrary, the court specifically asserts that the trustees are chargeable with all prior debts and all those contracted during the twenty days (the first twenty days of January), but their hands are not so tied but that they may stop the incurring of further liability by filing the report after the time when it ought to have been done.”

We can find no authority for the contention of the defendants that the statute under consideration simply implies a duty or an obligation on the part of the corporation to file and publish, and imposes no penalty for a failure to do so. The cases relied upon by the learned counsel for the defendants to sustain this contention are Cameron v. Seaman, 69 N. Y., 396, and Butler v. Smalley, 101 Ib., 72. While it may be fairly claimed, under these authorities, that the language of the statute, requiring publication and filing within the twenty days, is simply directive, the Court of Appeals in these cases clearly recognizes and adjudges that the statute is mandatory in the sense of making it an imperative duty of corporations to substantially comply with its terms by publishing and filing within the twenty days, or as soon thereafter as both acts can be done by prompt performance and diligent action on the part of the trustees. In Cameron v. Seaman, supra, the trustees duly prepared and signed the annual report; on January 20th, it was verified by the president, and on the same day sent by mail to the clerk of the county to be filed. The clerk received and filed it on the 22nd day of January. The trustees also on the 21st day of January sent a copy of the report by mail to a laAvful newspaper for jsublication, and it was published therein on the 24th day of January. It will be seen that all the acts necessary to an avoidance of the penalty were performed, but that the filing was two days beyond the time prescribed bylaw and the publication four days. Andrews, J., in delivering the opinion of the court, says : “ The statute must have a fair and reasonable interpretation, and effect must be given to it, according to the intention of the Legislature as indicated in the language used. The language is not to be wrested from its true meaning to protect trustees against liability, however serious, to which they may be exposed; and on the other hand, the statute being in the nature of a penal statute, is to be strictly construed, and cannot be extended beyond the clear import of its language. Smith on Statutory and Constitutional Construction, 854; Garrison v. Howe, 17 N. Y., 458; Verona C. C. Company v. Murtaugh, 50 Ib., 314. * * * We are of opinion that the words make a report’ in this section refer to the preparation, signing and verification of the report, and that the limitation of the twenty days does not apply to the acts of filing or publication * * * that the filing and publication must he within a reasonable time after the twenty days, and this requirement in view of the object of the statute could only be satisfied by prompt performance and diligent action on the part of the trustees."

In Butler v. Smalley, supra, the trustees met the requirements of the statute except as to the filing, which was not done until February 13th, twenty-four days after the time prescribed. Danforth, J., delivering the opinion of the court, states, with approval, the rule laid down in Cameron v. Seaman, above quoted, and characterizes it “as most consistent with reason and a due regard to convenience and justice.” In this case, it is held that it is enough that the report be filed within a reasonable time after the expiration of the twenty days ; and also that “ in the absence of anything to show the want of good faith and active diligence in respect thereto on his part, the trustee, when no time is fixed by the statute within which an act shall he performed, should not be subjected to a penalty, provided the thing required is actually done at a reasonable time, having regard to the nature and circumstances of the performance.”

In the ease at bar, there was a total failure of the corporation to. comply with the law, in that it filed no report within twenty days after the first of January, 1888, or at any time during that year, or prior to the 21st day of January, 1889 j and by reason of such default, the defendants are clearly brought within the mischief at which the act is aimed, and incurred the statutory liability provided therefor.

Each requirement of the statute appears to he a part of the whole scheme devised for the protection of those dealing with corporations. The failure to which the penalty attaches is not only the making, but the publishing and filing of the report. The manifest intent of the legislative act, under consideration, is to prevent concealment and to insure the utmost publicity as to the corporate resources and liabilities. . No other construction than the one here given will carry out the intent of the act. The publication in an obscure paper of small circulation and seldom met, though a strict compliance with the law in that particular, furnishes little information to creditors of the company and those who might have dealings with it of its financial condition, a,t fixed annual periods, to enable them to act advisedly in their business with the corporation. The law imposes upon corporations the obligation of giving to the business community an opportunity to get the information that their annual reports furnish by an examination of the files in the offices of the clerks of the respective counties of the state, within a reasonable time after the expiration of the twenty days.

There was no error in the admission or exclusion of evidence that requires consideration here. The" trial judge was justified in permitting the plaintiff to testify as to the number of hours of service that he had rendered the corporation from recollection, refreshed, as it had been, by reference to original memoranda, made by him or at his direction, at the respective times of the rendition of such service, and which memoranda he knew were correct when made. See Bigelow v. Hall, 91 N. Y., 145; Mayor, etc., v. Second Avenue R. R. Co., 102 Ib., 578. And, indeed, the book itself, supplemented by plaintiff’s testimony, would have been admissible to prove such fact. See Taggart v. Fox, 11 Daly, 159; Nat’l Ulster Co. Bank v. Madden, 114 N. Y., 280.

For the reasons above indicated, defendants’ motion for a new trial must be denied, and judgment must be ordered for the plaintiff upon the verdict, with costs.

Sedgwick, Ch. J., and Dugro, J., concurred.


text:
    MARY ELIZA ROWLAND, Appellant v. CHARLES MILLER, et al., Respondents.

      Ejectment—Premises sought to be recovered must be intelligently described in the complaint.

    The sole question argued or decided in the court below, relates to the sufficiency of the description of the premises set forth in the complaint, as follows: “ commencing at a point in the easterly line of said premises three and one-eiglith inches southerly from the northerly line of said premises, and running thence westerly to a point distant one and one-eighth inches southerly from a point in the said northerly line of said premises, distant nineteen feet west'erly from the easterly line thereof.”

      Held, that this description is that of a straight line and nothing else. As it is impossible to deliver the possession of a straight line the complaint clearly does not set forth facts sufficient to constitute a cause of action, and, therefore, the demurrer must he sustained.
    Before Sedgwick, Ch. J., Dugro and Gildersleeve, JJ.

      Decided March 14, 1892.
    Appeal from an order of the special term and from the judgment entered thereon.

      Lockwood & Hill, attorneys, and John L. Hill of counsel, for appellant, argued :
    I. Miller owns the lot southeast corner of Forty-third street and Madison avenue. Plaintiff owns the adjoining lot on Madison avenue. Miller built a brick wall on his lot, encroaching on the northerly side of plaintiff’s lot. The wall is 19 feet long. It encroaches Sc-inches on the easterly line of our lot, and runs thence westerly on our lot to a point inches south of our line; i. e., this wall, 19 feet long, is 3-g- inches on our lot at its southeast corner, which stands in our easterly-line, and lg- inches at its southwest corner. There stands this wall, an existing physical, visible monument, its exact encroachment on our lot specified, and yet the court said that we described nothing but a straight line in our complaint. Perhaps there might be some ground for defendant’s contention if the law required that a complaint in ejectment should describe the premises by metes and bounds only. But that is not the law. On the contrary the only requirement is that the description, whether by metes and bounds, or by monuments or in any other way, must be simply sufficient to enable the sheriff to execute the judgment, provided plaintiff succeeds in the action. The Code says : “ With common certainty, by setting forth the name of the township or tract and the number of the lot, if there is any, or in some other appropriate manner 5 so that, from the description, possession of the property claimed may be delivered where the plaintiff is entitled thereto ” (§ 1511). We may therefore describe the property in any “appropriate manner.” We shall show that this description is sufficient, whether treated as one by metes and bounds or by monuments.
    II. This description is sufficient as by monuments. We describe that part of our lot which is covered by this brick wall. We definitely describe our lot by metes and bounds. W e then say that Miller entered into the possession of, and occupied, by a brick wall forming the southerly side of a building, a part of our lot. We describe the exact part of our lot thus occupied. But no matter about that. Suppose that we had given no other details of description than this wall alone. Can it be possible that we have not described that part of our lot on which this brick wall stands ? No matter whether it is 10 feet this way or 50 feet that way. The wall is there, and that land under that wall, south of our line, is the land we “ claim.” Can it be possible that, if I lay a plank down on a boundary line, and then draw a chalk line on the plank showing where the line really is, and then say that I “ claim ” (see Code, 1511) all the land covered by the plank on the south side of the chalk line—can it be possible that I have not thus indicated a four-sided piece of ground! Can it be possible that I have not thus described a piece of ground, no matter how many sides it has ? And is the description any the less certain when we use a brick wall of a brick building in place of the plank ?
    III. But the description is sufficient even by metes and bounds. We have definitely described a quadrilateral so- that any person of ordinary experience can go and find exactly the land which we claim. Let us now throw away the idea of the brick wall, except so far as its sides shall help us to describe geometric lines, (a.) We certainly have four sides of a quadrilateral definitely described. (1.) We have in the first place the northerly and easterly lines of our lot described in the ordinary way. Thus we have two sides of the quadrilateral. (2.) Now, let us look for the others :. We begin in the easterly line of our lot 3y inches south of the northerly line. That makes the easterly side of our quadrilateral 3» inches long. We run thence 19 feet westerly to a point 1-y- inches from the northerly line. We have thus a 19-foot line and a line 1¿- inches long (&.) But, say our adversaries, you do not say that the land which you claim lies within these lines. Your description of the land in dispute is wholly within paragraph IY. of the complaint. So far we agree. But our adversaries go on to say that that paragraph describes nothing but one straight line. W e say no : It describes the quadrilateral. In the first place, this paragraph certainly does say that the land claimed is a part of our lot. Hence necessarily it is south of our northerly line. And the question is what part of our lot is described. In the next place, this straight line, 19 feet long, is the southerly side of a building. Hence, it is safe to say that the building and its brick wall lies north of that line. It is therefore plain that we are talking about that “ portion of said premises,” which lies north of this straight line, 19 feet long. And so we clearly get the land which we “ claim ” within three lines: (1.) Our northerly line as its northerly boundary ; (2.) the 19-feet straight line as its southerly boundary; (3.) the 3¿- inches of our easterly line which intersect these two lines as its easterly boundary. In the next place, the fourth line (the line Te¡ inches long) necessarily forms a right angle with our northerly line, i. e., unless “ a straight line ” has ceased to be “ the shortest distance between two points.” (c.) Now this is certainly within the term “ common certainty,” at least within the phrase other appropriate manner.” Code, § 1511. (1.) It is definite and accurate. The moment we recall the fact that the premises claimed ” are covered by the “ brick wall,” and that that wall forms the “ southerly side of a building,” we know that the locus in quo is between the four lines of the quadrilateral above described, because it couldn’t be anywhere else and still be a “ portion of said premises.” Hence we have metes and bounds. (2.) Then we have that part of our lot which lies under the brick wall—the wall being a monument. (3.) St. John v. Northrup, 23 Barb., 31, was infinitely more indefinite and yet sufficient. The complaint simply described “ fifty acres in the southerly part ” of a lot otherwise accurately described the same as our lot is accurately described.

      Burrill, Zabriskie & Burrill, attorneys, and John B. Burrill of counsel, for respondent Miller,
    argued that the complaint only describes a straight line as the property of which possession is claimed, and therefore no property is described in the complaint, and cites the case of Budd v. Bingham, 18 Barb., 494, as one exactly like the case at bar. There the description of the premises will be seen on inspection to be the description of a straight line, and the court held that a demurrer was proper and that a motion to make more definite and certain would" not be proper, because there was no property described in the complaint, and therefore nothing to make more definite. Jolly v. Ghering, 40 Ind., 139.

      William H. Sage, attorney and of counsel, for respondent The Taylor Co.
   By the Court.—Gildersleeve, J.

This is an action for ejectment. The description of the property in suit is set forth in the complaint as follows: Commencing at a point in the easterly line of said premises three and one-eight inches southerly from the northerly line of said premises, and running thence westerly to a point distant one and one-eighth inches southerly from a point in the said northerly line of said premises, distant nineteen feet westerly from the easterly line thereof.”

This is a description of a straight line, and nothing else.

Section 1511 of the Code of Civil Procedure provides that the complaint must describe the property claimed with common certainty, by setting forth' the name of the township or tract, and the number of the lot, if there is any, or in some other appropriate manner; so that, from the description, possession of the property claimed may be delivered, where the plaintiff is entitled thereto.”

As it is impossible to deliver possession of a straight line, the complaint clearly does not set forth facts sufficient to constitute a cause of action; and, therefore, the demurrer must be sustained. Code, section 488.

The complaint does not describe any property at all; and there is, therefore, nothing of which a bill of particulars can be given, and nothing to be made more definite and certain by motion, under section 546 of the Code; it consequently follows that defendants’ proper course was to demur. See Budd v. Bingham, 18 Barb., 494.

The judgment and order appealed from are affirmed, with costs.

Sedgwick, Ch. J., and Dugro, J., concurred.


text:
    WILLIAM CALMBACHER, an Infant, by ADOLPH CALMBACHER, his Guardian ad litem, Appellant v. LOUIS E. NEWMAN, et al., Respondents.

      Practice—Order of the court permitting a party to pay the amount of a judgment into court and directing the cleric to cancel the judgment of record.

      Held hy the court.—There is no express authority in the Code for the proceeding taken herein, nor are we able to find any precedent therefor, yet it does not necessarily follow that the order was improperly made. Did the court possess the necessary power to grant the order asked, and if it did, was the power properly exercised. In the absence of any statutory provision for or against the order in question, the power to grant it is embraced within the general inherent powers of a court of equity. A court of equity or a superior court of record has always power over its own judgments. When the amount has become certain by judgment and stipulation not to appeal as in this case, there can be no valid objection under our practice against the payment of the money into court and satisfying the judgment, where good cause for this proceeding is shown. The court had power to bestow the relief sought, and, under the circumstances presented, it became the duty of the court to grant the order.
    Before Sedgwick, Ch. J., and Gildersleeve, J.

      Decided March 14, 1892.
    Appeal from order of special term.

      W. Bourke Cochran, attorney, and Wales F. Severance of counsel, for appellant.

      Ullo & Ruebsamen, attorneys, and James W. Mc-Elkinney of counsel, for respondents.
   By the Court.—Gildersleeve, J.

The plaintiff, an infant, by his guardian ad litem, brought this action to recover damages for injuries sustained while in the employment of defendants, and a verdict was rendered in his favor for two thousand dollars, and judgment duly entered. Both parties agreed not to appeal. The defendants, anxious to pay the judgment, requested the guardian ad litem to give security, pursuant to Section 474 of the Code, or have himself appointed general guardian of said infant. Being unable to furnish the necessary security, he failed to comply with this request. No execution was issued by the plaintiff. Upon motion of defendants, setting up by affidavit the foregoing, the court at special term ordered defendants to pay into court the amount of the judgment, with interest to date of deposit, and directed the clerk, on such payment being made, to cancel of record the said judgment. From this order this appeal is taken.

The brief of the learned counsel for the appellant in this matter is largely taken up by discussion of the merits of acts that never happened, but that might have taken place in the regular course of procedure. We are inclined to believe that his views on these hypothetical situations are, in the main, correct, but we are not called upon to determine their correctness in disposing of this appeal. It is undoubtedly true that had defendants parted with the amount of the judgment in some manner authorized by law in satisfaction thereof, their liability would have ceased, though the money never reached the infant. The payment, in virtue of due and regular legal process, would have been a bar to any further proceeding. Code, § 743 ; Shailer v. Morgan, 9 N. Y. Supp., 493; Wuesthoff v. Germania L. Ins. Co., 107 N. Y., 580.

Had the amount of the judgment been paid to the plaintiff’s attorney by either the defendants or the sheriff, the responsibility of settlement with the guardian ad litem would then have been with the attorney. Had the money failed to reach the infant, it would then have been a matter between the court, the plaintiff’s attorney, the infant, and the guardian ad litem.

But we must reason from the situation as we find it. The powers of the plaintiff, had he chosen to exercise them, are not material to this discussion. Their effect is equally immaterial. Neither demand consideration here.

The facts that confronted the learned judge, at special term, in this matter, were as follows, viz : A judgment against the defendants, awarding the plaintiff damages, through his guardian ad litem; a stipulation that no appeal was to be taken therefrom by either party; no execution had been issued; no security had been given by the guardian ad litem to entitle him to receive money or property of the infant, as provided by section 474 of the Code, and the concession that he was not in a position to do so ; and the further fact that the defendants were anxious and willing to pay said judgment and asked authority to pay the amount thereof into Court for the benefit of the plaintiff.

Section 469 of the Code is as follows : " Before a summons is issued in the name of an infant plaintiff, a competent and responsible person must be appointed, to appear as his guardian for the purpose of the action, who shall be responsible for the costs thereof.” Section 474 of the Code expressly provides that a guardian ad litem for an infant party shall not be permitted to receive money or property of the infant, other than the costs and expenses allowed to the guardian by the court, until he has given sufficient security, approved by a judge of the court.”

The legislature has very properly assumed to describe and regulate the appointment of guardians ad litem, and it is within its power to define, limit and regulate the authority of the guardian, and declare the conditions under which the authority shall be exercised. Infants are specially entitled to the protection of the law. It is obvious that the legislature in enacting the above provision intended to furnish protection to the infant. It is a wise safeguard, and imposes upon the guardian the imperative duty of giving security before he can lawfully receive money or property of the defendant. Wuesthoff v. Germania Life Insurance Company, 107 N. Y., 580.

There is no express authority in the Code for the proceeding taken herein, nor are we able to find' any precedent therefor. From this, however, it does not necessarily follow that the order was improperly made.

Did the court possess the necessary power to grant the order asked, and if it did, was the power properly exercised ?

Prior to January 1, 1830, when the revised statutes took effect, the chancellor of New York had the same jurisdiction over infants as belonged to the chancellor of England. Our courts of record have the same equity jurisdiction possessed by the courts of England, with the exceptions, additions and limitations created and imposed by the constitution and laws. 2 Kent’s Com., 223.

In the absence of any statutory provision for or against the order in question, we are of the opinion that the power to grant it is embraced within the general inherent powers of a court of equity. A court of equity or a superior court of record has always power over its own judgments. Dietz v. Farish, 43 N. Y. Super. Ct., 87.

It is common to make payment into court before judgment. A plea of tender before suit requires a defendant answering to pay the tender into court at time of answering, and. yet the authority therefor is not found in any express statutory provision. Becker v. Boon, 61 N. Y., 321.

When the amount due has become certain, by entry of judgment, and stipulation not to appeal, there can be no valid objection, under our practice, to paying the money into court and satisfying the judgment, for any good cause. Any court, having equity jurisdiction, would decree payment of money so received to whomsoever establishes his rights to it. The course here followed puts a stop to injuries the defendants are sustaining. It finds support in the general principle of equity jurisprudence that equity aims at putting parties exactly in the position which they ought to occupy; giving them in specie what they are entitled to enjoy ; and putting a stop, actually, to injuries which are being inflicted.” Bispham’s Prin. of Equity, p. 67. It relieves the defendants from the obstacles and embarrassments which the lien of the judgment upon their real estate entails; saves them accruing interest, and also saves them from possible sheriff’s fees, when they stood ready and willing to pay. It protects the infant by securing to him the amount of the judgment, while the defendants were ready and able to pay it, and secures him from loss through his guardian ad litem, who already has manifested inability to furnish security. Further, the interests of the infant imposed upon the court the duty of protecting his rights and preserving his property. As to all matters not included within the statutes, and in many states concurrently with the statutory system, the original equity jurisdiction over infants, like that over administrations, still remains in full force, to be exercised whenever occasion calls for its being set in motion.” Pomeroy’s Equity Jurisprudence, vol. 3, p. 326.

We think the court had power to bestow the relief sought and that, under the circumstances presented, it became the duty of the court to grant the order.

The order should be affirmed, with ten dollars costs to the respondents.

Sedgwick. Ch. J., concurred.


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    JOHN H. GOULD, Respondent v. FRANK E. WALBRIDGE, Appellant.

      Action to recover a penalty, under section 27, chapter 40 of Laws of 1S4S, (manufacturing corporation act) of the defendant, as the treasurer of the John II. Goitld company.

      Held, that the only questions in the case are purely questions of fact, and were correctly submitted to the jury by the trial judge. The jury, by their verdict on all the evidence, found that defendant was duly elected treasurer, and that he continued to act as such up to the time of the service of the notice. This finding is conclusive.
    Before Sedgwick, Ch. J., and Gildersleeve, J.

      Decided March 14, 1892.
    Appeal from a judgment in favor of the plaintiff, entered on the verdict of a jury, and from an order denying defendant’s motion for a new trial.

      E. L. Collier, attorney for appellant.

      Beattys & Low, attorneys, and George D. Beattys of counsel, for respondent.
   By the Court.—Gildersleeve, J.

This action was brought by the plaintiff to recover a penalty of $340, under section 27 of the Manufacturing Corporation Act of 1848, and acts amendatory thereof and supplemental thereto, from the defendant, as treasurer of the John H. Gould Company, for not rendering to the plaintiff a statement of the affairs of said company, when requested by plaintiff so to do. It is fully established by the pleadings and the evidence that the plaintiff was entitled to serve a notice to render a statement of the affairs of said company, and that he did duly serve such a notice on the defendant, as treasurer of the company, on July 2, 1890, and that defendant neglected to render such statement up to the 20th day of August, 1890, the day of the commencement of this action.

The language of the statute is as follows : “ Whenever any person or persons owning five per cent, of the capital stock of any company, not exceeding one hundred thousand dollars, or any person or persons owning three per cent, of the capital stock of any company exceeding one hundred thousand dollars, formed under the provisions of this act, shall present a written request to the treasurer thereof that they desire a statement of the affairs of such company, it shall be the duty of such treasurer to make a statement of the affairs of said company, under oath, embracing a particular account of all its assets and liabilities, in minute detail, and to deliver such statement to the person who presented the said written request to said treasurer, within twenty days after such presentation, and shall also at the same time and place keep on file in his office, for six months thereafter, a copy of such statement, which shall at all times during business hours be exhibited to any stockholder of said Company, demanding’ an examination thereof; such treasurer, however, shall not be required to deliver such statement in the manner aforesaid oftener than once in any six months. If such treasurer shall neglect or refuse to comply with any of the provisions of this act, he shall forfeit and pay to the person presenting said written request the sum of fifty dollars, and the further sum of ten dollars for every twenty-four hours thereafter, until such statement shall be furnished, to be sued for and recovered in any court having cognizance thereof.”

The only questions in the case are purely questions of fact, and were correctly submitted to the jury by the learned trial judge, in the following language : Counsel have agreed that there are but two propositions in the case for you to consider; the first is, Was the defendant treasurer of the company at the time when the notice was served upon him ? Of course, if he was, he is liable, because the answer admits that he never gave the information desired until the books were handed to the president, which was about the 20th of August. If he was not treasurer, of course, he was not liable. With respect to that, you can consider two questions: first, was he elected treasurer? second, was the election by ballot ? With respect to that the evidence is conflicting. You have heard the testimony of Mr. Balestier and the plaintiff with respect to the method of electron, and you have heard the testimony of the defendant and his secretary; you must determine from it whether or no this defendant was elected by ballot as treasurer of that company. If he was, then he became its treasurer, and continued so up to the time he was served with this notice, unless in the interval he resigned.”

The jury, by their verdict, on all the evidence, found that the defendant was duly elected treasurer, and that he continued to be such up to the time of the serving of the notice. This finding is conclusive.

There are no exceptions to the admission or exclusion of evidence that are of sufficient importance to require discussion.

The judgment and order appealed from are affirmed, with costs.

Sedgwick, Ch. J., concurred.


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    FRANK F. LOVELL, et al., Respondents v. DENNIS SHEA, Appellant.

      The rights of property in laioful owners thereof—Felonious conversion of personal property.

    The right of property is absolute and inherent in the owner, and his right of dominion in and over it entitles him to its use and possession at all times and in all places.
    A bona fide purchaser of stolen goods for value, acting in complete ignorance that he was dealing in stolen goods, acquires no right of property by such purchase. When a chattel once passes feloniously from the possession of the lawful owner, no subsequent holder of the same can acquire any title thereto except by the consent of its lawful owner.
    Conversion is an unauthorized act which deprives a person of his property permanently or for an indefinite time. Wrongful intent is not an essential element in a conversion. It is conversion if the rightful owner has been deprived of the use and possession of his property by some unauthorized act of another in assuming dominion or control over it. The question of demand does not arise in this case. A demand of the possession of property and a refusal to deliver, are necessary to put a party in the wrong and render him guilty of conversion only in a case where the defendant has exercised no act of ownership over the property and has otherwise acted and proceeded in good faith. If the property in question has little or no marketable value, the actual value to the owner is the just rule. The jury may consider the cost of replacing the property. In all cases of conversion, except where punitive damages are allowable, the true rule to be adopted rests upon the fundamental theory which affords the plaintiff a just indemnity for the loss he has sustained, the actual value to the plaintiffs for use in their business is the proper rule of damages.
    Before Dugbo and Gildersleeve, JJ.

      Decided March 14, 1892.
    Appeal from a judgment, entered on the verdict of the jury in favor of plaintiffs, and from an order denying defendant’s motion for a new trial.

      Carter, Pinney & Kellogg, attorneys, and Frederick B. Kellogg of counsel, for respondents.

      Johnston & Johnston, attorneys, and Edward W. S. Johnston of counsel, for appellant.
   By the Court.—Gildersleeve, J.

The complaint alleges the wrongful conversion by defendant of a quantity of stereotyped book plates of the total value of §1,017.75, the property of plaintiffs. The plaintiffs are publishers. The defendant is a paper stock and metal dealer and general junkman. It is claimed by the plaintiffs that one Andrew J. McKenna, an employe of plaintiffs, stole the plates and sold them to the defendant. The issues raised by the pleadings and submitted to the jury for determination were, (1) the ownership of the plates by plaintiffs; (2) the larceny of them by McKenna; (3) their purchase by defendant; and (4) their value. The trial resulted in a verdict in favor of the plaintiffs for the sum of §449.84.

The action was properly brought. When a chattel once passes feloniously from the possession of the lawful owner, no subsequent holder can acquire any title thereto, except by consent of the owner. A hona fide purchaser of stolen goods for value, acting* in ignorance of the fact that he was dealing with stolen goods, acquires no right of property therein by such purchase. He has no more rights than the thief. The right of property is absolute and inherent in the owner. Blackstone says : The origin of private property is probably founded in nature; * * * but certainly the modifications under which we at present find it, the method of conserving it in the present owner, and of translating it from man to man, are entirely derived from socie'ty; and are some of those civil advantages, in exchange for which every individual has resigned a part of his natural liberty. The laws of England are, therefore, in point of honor and justice, extremely watchful in ascertaining and protecting this right.” Chase’s Blackstone, page 78.

The general right of dominion which the owner of a chattel has in it, entitles him to the use of it at 'all times and in all places.” Fouldes v. Willoughby, 8 M. & W., 540.

No country has attributed greater importance to this right than our own. Our laws recognize it as necessary to our happiness and prosperity, and throw around it the strongest safeguards. “ Conversion is an unauthorized act which deprives another of his property permanently or for an indefinite time. Wrongful intent is not an essential element in a conversion. It is enough that the rightful owner has been deprived of his property by some unauthorized act of another assuming dominion or control over it.” Boyce v. Brockway, 31 N. Y., 490; Connah v. Hale, 23 Wend., 462.

If McKenna stole the plaintiffs’ stereotyped book plates and sold and delivered them to the defendant, who purchased them, even in the ordinary course of business and without guilty knowledge, the defendant is liable to the plaintiffs. Pease v. Smith, 61 N. Y., 477.

The question of demand does not arise in this case. The defendant admits in his answer that plaintiffs demanded a return of the chattels or payment of the value thereof. If credit is given to the testimony offered by the plaintiffs, then the defendant received the chattels into his possession and assumed dominion over them. Under such circumstances, no demand is necessary to sustain an action for conversion. It is only where a defendant has exercised no act of ownership over the property, and has proceeded in good faith, that a demand and refusal are necessary to put him in the Avrong and render him guilty of conversion. Pease v. Smith, supra.

We do not feel called upon to discuss the position taken by the learned counsel for the respondents that the appellant is not entitled to claim, on this appeal, that the verdict, co far as it finds that defendant received the chattels in question, is insufficiently supported by the evidence, because he did not ask the court to direct a verdict in the defendant’s favor on that ground. We think the technical rule that this proposition invokes may be safely disregarded. We are of the opinion that the verdict is fully and sufficiently supported by the evidence. True, the plaintiffs’ main witness, McKenna, upon whose testimony the verdict is largely based, is an acknowledged thief. It may fairly be presumed that his motives to make out a good case for the plaintiffs are strong. But he is not entirely uncorroborated. The boxes that contained the chattels are empty ; McKenna had an opportunity to steal the plates, and as to one lot he was caught by a reliable witness red-handed, with them in his possession, and at the defendant’s place of business, attempting to sell them. The jury could, without doing violence to the law, believe the thief, although uncorroborated.

The learned trial judge, most prudently and wisely, omitted no proper warning to the jury as to the caution they should observe in receiving the testimony of such a witness as McKenna. He said: A man in Mc-Kenna’s situation is to be believed with hesitation; * * you must be on your guard against a man that has committed such an offence as McKenna did.” Certainly, the defendant’s rights in this regard were fully protected.

In Pease v. Smith (supra), the Court of Appeals say: The most the judge can do is to caution them (the jury) to weigh such testimony with care and close scrutiny. All testimony, when once admitted in the case, is, in general, for the jury to consider, whether it be that of an accomplice in crime, or of a person discredited as to his general character, or not strictly regardful of the truth.”

On the question of value, the learned counsel for the defendant earnestly contends that there is no leg’al proof of the value of the plates, and that the court erred in the rule of damages stated to the jury. These are his principal contentions : • The value of the plates depended upon their condition at the time of the conversion, the damaged plates had no value, except as old metal, three or four cents a pound, as testified to hy defendant. Of the 1357 plates stolen by McKenna, according to his own testimony, only seventy-four were broken. He says: I battered them myself with a hammer or axe ; I know all the rest were not broken and in good condition. I took them out of the boxes.” This testimony is uncontradicted, and its weight depends entirely upon the degree of credibility placed upon McKenna’s evidence. As we have already seen, the jury saw fit, under proper instructions, to give substantial credit to McKenna’s testimony. No objection was made to the admissibility of any of the evidence as to value, and the only question raised is as to whether it furnished any reasonable basis for the finding of the jury. The plaintiffs called Edward Lovell, an employee of the United States Book Company, and- formerly in the employ of the plaintiffs as general superintendent of the press-room, who testified that in the course of business the plates of the firm came under his inspection. He testified as follows : “ I have been in the printing and ¡publishing business all my life. We handled a great many stereotyped plates like these in question. * * * In the course of my experience I have bought and sold a great many stereotype plates.” Q. From your experience in the business, are you familiar with the values of stereotype plates like those in question in this action ? A. Yes, sir. * * * I ought to be competent to judge what their value is. * * * A plate is never put back in the vault imperfect; these plates were in good condition ; I know how many plates there were. belonging to each of these volumes. Q. Now, state to the jury and the court, from your experience in the business and from your knowledge of the condition of these plates, what their value was when the witness McKenna testifies to having taken them? A. We value them at seventy-five cents a page; it makes a total value of $1,017.75.”

No exception was taken to the admission of this evidence, and there is an entire absence of testimony in contradiction. It is ample basis as to value upon which to rest a verdict. It is manifest that the value placed upon the plates by this witness was the actual value to the owner. The plates were adapted to the special use of printing the books, the contents of which in type form they bore upon their surface, and were not, strictly speaking, marketable property, readily salable or procurable in the market. They had a special value to the plaintiffs in the business in which they were engaged. The witness had shown himself competent to testify as to their special value, and in our opinion it was the correct measure of damages. “ If the property have little or no marketable value, the actual value to the owner is the just rule. The jury may consider the cost of replacing the property.” 11 Sedgwick on Dam., p. 474. Such property (stereotype plates) in market would be worth comparatively nothing, but to the owner it might be of great value ; and that would be a very inequitable and harsh rule that limited his recovery against a person converting it to its market value, which would really be but little, if anything, more than the value of the material. In such cases, it is held that the measure of the recovery is the fair value of such property to the plaintiff.” See Wood’s Mayne on Damages, p. 340.

The actual value to one who owns and has uses for them is the just rule of damages in an action against one who converts them to his own use.” Heald v. MacGowan, 15 Daly, 233; Stickney v. Allen, 10 Gray, 352; Starkey v. Kelly, 50 N. Y., 676; Wehle v. Haviland, 69 Ib., 448; Wright v. Bank of Metropolis, 110 Ib., 237.

In all cases of conversion, except where punitive damage are allowable, the true rule to be adopted rests upon the fundamental theory which affords the plaintiff a just indemnity for the loss he has sustained. The market value of these plates as old metal ” is not compensation to the plaintiffs. The actual value to the plaintiffs for use in their business is the proper rule of damages. No other rule will secure to them just indemnity.

The evidence warranted the jury in placing a much higher value upon the plates than the sum found by their verdict.

We can find no error in the instructions from the court. The question of value was fairly left to the jury upon the evidence, which, we have already said, was sufficient.

The case is free from any exception to the admission or exclusion of evidence that demands consideration.

It follows that the judgment and order appealed from must be affirmed, with costs.

Dugro, J., concurred.